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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 5)*
Jennifer Convertibles, Inc.
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(Name of Issuer)
Common Stock, par value $.01 per share
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(Title of Class of Securities)
476153101
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(CUSIP Number)
Andrew J. Levander, Esq.
Swidler Berlin Shereff Friedman, LLP
919 Third Avenue
New York, New York 10022
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(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
August 20, 1999
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box [ ].
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 240.13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 1 of 7 sequentially numbered pages
Exhibit Index Appears at sequentially numbered Page 6.
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SCHEDULE 13D
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CUSIP NO. 476153101 PAGE 2 OF 7 PAGES
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (entities only)
RETAIL VENTURE PARTNERS, L.P.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(See Instructions) (b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (See Instructions)
OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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NUMBER OF
SHARES 7 SOLE VOTING POWER 0
BENEFICIALLY ------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER 0
EACH ------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER 0
PERSON ------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER 0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (See Instructions) [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.00%
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14 TYPE OF REPORTING PERSON (See Instructions)
PN
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INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION.
Page 2 of 7 Pages
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SCHEDULE 13D
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CUSIP NO. 476153101 PAGE 3 OF 7 PAGES
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (entities only)
RVP, INC.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(See Instructions) (b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (See Instructions)
OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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NUMBER OF
SHARES 7 SOLE VOTING POWER 0
BENEFICIALLY ------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER 0
EACH ------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER 0
PERSON ------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER 0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (See Instructions) [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.00%
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14 TYPE OF REPORTING PERSON (See Instructions)
CO
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INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION.
Page 3 of 7 Pages
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SCHEDULE 13D
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CUSIP NO. 476153101 PAGE 3 OF 7 PAGES
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (entities only)
SEYMOUR ZISES
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(See Instructions) (b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (See Instructions)
OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
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NUMBER OF
SHARES 7 SOLE VOTING POWER 0
BENEFICIALLY ------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER 0
EACH ------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER 0
PERSON ------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER 0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (See Instructions) [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.00%
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14 TYPE OF REPORTING PERSON (See Instructions)
IN
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Page 4 of 7 Pages
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SCHEDULE 13D AMENDMENT NO. 5
JENNIFER CONVERTIBLES, INC.
This Amendment No. 5 to the Statement on Schedule 13D amends and
supplements the Statement on Schedule 13D relating to the event date of March
21, 1991 (the "Schedule 13D"), filed by Retail Venture Partners, L.P., formerly
known as JCI Consultant L.P. ("Consultant"), RVP, Inc., formerly known as JCI
Consultant Corp.(the "General Partner"), and Seymour Zises ("Zises")
(collectively, the "Reporting Persons") and Amendment No. 1 to Schedule 13D
relating to the event date of July 24, 1991, Amendment No. 2 to Schedule 13D
relating to the event date of February 25, 1992, Amendment No. 3 to Schedule 13D
relating to the event date July 28, 1994 and Amendment No. 4 to Schedule 13D
relating to the event date of January 20, 1995, each relating to the common
stock, par value $.01 per share (the "Common Stock"), of Jennifer Convertibles,
Inc. (the "Issuer"). The address of the Issuer is 419 Crossways Park Drive,
Woodbury, New York 11797. Capitalized terms used herein and not defined herein
shall have the meanings ascribed thereto in the Schedule 13D.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
In consideration for entering into the Termination Agreement, as
described in Item 4 below, the Issuer has agreed to cause $252,000 to be paid to
Consultant on September 1, 1999, and has caused a promissory note in the
principal amount of $447,000 to be executed payable to Jenco Partners L.P.
ITEM 4. PURPOSE OF TRANSACTION
The Issuer has entered into an L.P. and Option Purchase and Termination
Agreement, dated as of August 20, 1999 (the "Termination Agreement"), with
Consultant and certain other parties named therein. This summary of the
Termination Agreement is qualified in its entirety by the copy of the
Termination Agreement which is attached hereto as Exhibit 9 and incorporated
herein by reference. Pursuant to the Termination Agreement, each of the
following agreements has been terminated:
1. Letter Agreement, dated as of February 25, 1992, between the Issuer
and Consultant (the "Consulting Agreement"), previously described in Amendment
No. 2 to Schedule 13D relating to the event date of February 25, 1992;
2. Stock Option Agreement, dated as of March 21, 1991, between the
Issuer and Consultant, as amended by an agreement dated as of February 25, 1992
(as amended, the "Option Agreement"), previously described in the Amendment No.
2 to Schedule 13D relating to the event date of February 25, 1992;
3. Voting Trust Agreement, dated as of March 21, 1991, between the
Issuer, Consultant and Harley J. Greenfield, as amended by letter agreement
dated as of February 25, 1992 (as amended, the "Voting Trust Agreement"),
previously described in the Amendment No. 2 to Schedule 13D relating to the
event date of February 25, 1992; and
4. Registration and Sales Agreement, dated as of March 21, 1999,
between Consultant, Harley J. Greenfield, Fred Love, Edward B. Seidner and Jara
Enterprises Inc., a New York corporation ("Jara"), as amended by an agreement
dated as of February 25, 1992, previously described in the Amendment No. 2 to
Schedule 13D relating to the event date of February 25, 1992.
Also pursuant to the Termination Agreement, Jenco Partners L.P., a
limited partnership, has assigned its limited partnership interest in Jennifer
Chicago, L.P., a Delaware limited partnership, to Jennifer Chicago Ltd., an
Illinois corporation and a wholly owned subsidiary of the Issuer. The
Termination Agreement provides that the Reporting Persons shall not acquire any
beneficial interest in the Common Stock until December 31, 2010. In connection
with and pursuant to the Termination Agreement, Consultant and the Issuer have
entered into mutual general releases, each dated as of August 20, 1999 (each a
"General Release"), forms of which are attached as an exhibit to the Termination
Agreement filed as Exhibit 9 hereto.
Page 5 of 7 Pages
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ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) and (b) The Reporting Persons are no longer the beneficial owners
of any shares of the Common Stock.
(c) The Reporting Persons only transactions in the Common Stock within
the last sixty days were effected pursuant to the Termination Agreement as
described in Items 3 and 4 above.
(d) not applicable.
(e) The Reporting Persons ceased to be beneficial owners of more than
five percent (5%) of the Common Stock on August 20, 1999.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
Item 6 of Schedule 13D is supplemented by the descriptions of the
Termination Agreement provided in Item 4 above.
Except as described above and in the Schedule 13D, there are no
contracts, arrangements, understandings or relationships among the persons named
in Item 2 with respect to the Common Stock.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 9: L.P. and Option Purchase and Termination Agreement, dated as of
August 20, 1999, among Jennifer Convertibles, Inc., Jennifer
Chicago Ltd., Jenco Partners, L.P., JCI Consultant, L.P., Selig
Zises, Jay Zises, Jara Enterprises, Inc., Fred Love, Harley J.
Greenfield and Edward B. Seidner.
Page 6 of 7 Pages
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SIGNATURES
After reasonable inquiry and to the best of its knowledge and belief,
the undersigned certifies that the information set forth in the Statement is
true, complete and correct.
Dated: August 20, 1999
Retail Venture Partners, L.P.
By: RVP, Inc., its General Partner
By: /s/ Selig Zises
-------------------------------
Name: Selig Zises
Title: President
RVP, Inc.
By: /s/ Selig Zises
-------------------------------
Name: Selig Zises
Title: President
/s/ Seymour Zises
-----------------------------------
Seymour Zises
Page 7 of 7 Pages
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EXHIBIT 9
L.P. AND OPTION PURCHASE AND TERMINATION AGREEMENT
AGREEMENT, dated as of August 20, 1999 (the "Agreement"), among
Jennifer Convertibles, Inc., a Delaware corporation ("Jennifer"), Jennifer
Chicago Ltd. ("Sub"), an Illinois corporation and a wholly-owned subsidiary of
Jennifer, Jenco Partners, LP, a limited partnership ("LP Owner"), which is the
sole limited partner of Jennifer Chicago, L.P., a Delaware limited partnership
("LP"), JCI Consultant, LP ("Consultant"), limited partnership which owns
certain options to purchase capital stock of Jennifer, Selig Zises, a principal
of LP Owner and Consultant, Jay Zises (collectively with Selig Zises, "Zises"),
Jara Enterprises, Inc. a New York corporation ("Jara"), Fred Love ("Love"), the
owner of Jara, and Harley J. Greenfield ("Greenfield") and Edward B. Seidner
("Seidner"), each of whom is a principal stockholder, an officer and a director
of Jennifer.
WHEREAS, LP Owner is the sole limited partner of LP;
WHEREAS, pursuant to a Limited Put Agreement, dated as of March 21,
1991 (the "Put Agreement") LP Owner has the right, under certain circumstances,
to put the interest to Jara;
WHEREAS, pursuant to a Stock Option Agreement dated as of March 21,
1991, as amended by an amendment dated February 25, 1992 (as amended, the
"Option Agreement"), Consultant has an option (the "Option") to purchase up to
1,200,000 shares of Jennifer's common stock, par value $.01 per share;
WHEREAS, in connection with the Option, Consultant entered into (a) a
Voting Trust Agreement with Greenfield and Jennifer, dated as of march 21, 1991,
as amended by a letter amendment dated February 25, 1992 (as amended, the
"Voting Trust Agreement"), and (b) a Registration and Sales Agreement with
Greenfield, Love, Seidner and Jara, dated as of march 21, 1991, as amended by an
amendment dated February 25, 1992 (as amended, the "Registration Agreement");
WHEREAS, the parties desire to terminate the Voting Trust, the
Registration Agreement, the Put Agreement and all other agreements between them
relating to the Option, the Consulting Agreement, or the LP (collectively, the
"Agreements");
WHEREAS, LP Owner desires to sell, assign and transfer all its right,
title and interest in, to and under the Interest in LP to the Sub;
WHEREAS, the parties desire to enter into certain cross releases (the
"Releases"),
NOW THEREFORE, in consideration of the premises and of the
representations, warranties, covenants and agreements set forth herein, the
parties hereto hereby agree as follows:
ARTICLE I
THE TRANSACTION
Section 1.1 TRANSFER OF INTEREST, TERMINATION OF OPTION AND OTHER
AGREEMENTS. In exchange for $252,000, payable to Consultant on September 1,
1999, and a note in the principal amount of $447,000 (the "Note") payable to LP
Owner and other good and valuable consideration, receipt of which is hereby
acknowledged, (i) LP Owner hereby sells, assigns and transfers to Sub all of its
right,
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title and interest in, to and under the Interest; (ii) Consultant hereby agrees
that the Option is hereby terminated and shall be of no further force or effect,
and (iii) the parties hereto hereby agree that the Agreements to which they are
a party are hereby terminated and shall be of no further force or effect.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF JENNIFER AND SUB
Jennifer and Sub, jointly and severally, represent and warrant to LP
Owner, Zises, Consultant, Jara, Love, Greenfield and Seidner as follows:
Section 2.1 EXISTENCE, GOOD STANDING, CORPORATE AUTHORITY. Each of
Jennifer and Sub is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation. Each of Jennifer
and Sub is duly licensed or qualified to do business as a foreign corporation
and is in good standing under the laws of any other state of the United States
in which the character of the properties owned or leased by it or in which the
transaction of its business makes such qualification necessary.
Section 2.2 AUTHORIZATION, VALIDITY AND EFFECT OF AGREEMENTS. Each of
Jennifer and Sub has the requisite corporate power and authority to execute and
deliver this Agreement, the Releases and the Note. The execution and delivery of
this Agreement, the Releases and the Note, and the consummation by Jennifer and
Sub of the transactions contemplated hereby and thereby has been duly authorized
by all requisite corporate action. This Agreement constitutes the valid and
legally binding obligation of Jennifer and Sub and the Releases and the Note
constitute the valid and legally binding obligations of Jennifer, in each case
enforceable against Jennifer and (as to this Agreement) Sub, in accordance with
their respective terms, subject to applicable bankruptcy, insolvency, moratorium
or other similar laws relating to creditors' rights and general principles of
equity.
Section 2.3 NO VIOLATION. Neither the execution and delivery by
Jennifer or Sub, of this Agreement or the Releases, nor the consummation by any
of them of the transactions contemplated hereby or thereby in accordance with
the terms hereof or thereof, will (a) conflict with or result in a breach of any
provisions of their respective Certificate of Incorporation or Bylaws; (b)
violate, conflict with, result in a breach of any provision of, constitute a
default (or an event which, with notice or lapse of time or both, would
constitute a default) under, result in the termination, or in a right of
termination or cancellation of, accelerate the performance required by, result
in the triggering of any payment or other material obligations pursuant to,
result in the creation of any lien, security interest, charge or encumbrance
upon any of the material properties of Jennifer or Sub under, or result in being
declared void, voidable, or without further binding effect, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of trust
or any material license, franchise, permit, lease, contract, agreement or other
instrument, commitment or obligation to which any of them is a party, or by
which any of them or their properties is bound or affected; (c) contravene or
conflict with or constitute a violation of any provisions of any law,
regulation, judgment, injunction, order or decree binding upon or applicable to
any of them; or (d) require any consent, approval or authorization of, or
declaration of or registration with, any domestic governmental or regulator
authority.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF LP OWNER, CONSULTANTS AND
ZISES
LP Owner, Consultant and Zises, jointly and severally, hereby represent
to Jennifer, Sub, Jara, Greenfield, Love and Seidner as follows:
Section 3.1 AUTHORIZATION, VALIDITY AND EFFECT AGREEMENTS. Each of LP
Owner, Consultant and Zises has the requisite power and authority to execute and
deliver this Agreement, the Releases and all agreements and documents to be
executed and delivered in connection herewith. The execution and delivery of
this Agreement and the Releases (and the agreements contemplated hereby) and the
consummation by LP Owner, Consultant and Zises of the transactions contemplated
hereby have been duly authorized by all requisite corporate action. Each of this
Agreement and the Releases has been duly executed by LP Owner, Consultant and
Zises. Each of this Agreement and the Releases (and each of such other
agreements) constitutes the valid and legally binding obligations of LP Owner,
Consultant and Zises, enforceable against them in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights and general principles of
equity.
Section 3.2 NO VIOLATION. Neither the execution and delivery by LP
Owner, Consultant and Zises of this Agreement or the Releases, nor the
consummation by any of them of the transactions contemplated hereby or thereby
in accordance with the terms hereof or thereof, will (a) conflict with or result
in a breach of any provisions of the agreement of limited partnership,
Certificate of Incorporation or Bylaws of LP Owner or Consultant or their
respective general partners; (b) violate, conflict with, result in a breach of
any provision of, constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under, result in the termination,
or in a right of termination or cancellation of, accelerate the performance
required by, result in the triggering of any payment or other material
obligations pursuant to, result in the creation of any lien, security interest,
charge or encumbrance upon any of the material properties of LP Owner,
Consultant or Zises under, or result in being declared void, voidable, or
without further binding effect, any of the terms, conditions or provisions of
any note, bond, mortgage, indenture, deed of trust or any material license,
franchise, permit lease, contract, agreement or other instrument, commitment or
obligation to which any of them is a party, or by which any of them or their
properties is bound or affected; (c) contravene or conflict with or constitute a
violation of any provisions of any law, regulation, judgment, injunction, order
or decree binding upon or applicable to any of them; or (d) require any consent,
approval or authorization of, or declaration of or registration with, any
domestic governmental or regulatory authority.
Section 3.3 THE INTEREST. The Interest in LP represents all of the
outstanding limited partnership interests in LP and is free and clear of any
liens, claims, encumbrances, options, security interests or other limitations or
restrictions. Jennifer Investment Chicago Limited Partnership has no interest
in LP.
Section 3.4 THE OPTION. The Option is free and clear of any liens,
claims, encumbrances, options, security interests or other limitations or
restrictions.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF JARA AND LOVE
Jara and Love, jointly and severally, hereby represent to Jennifer,
Sub, Consultant, LP Owner, Zises, Seidner and Greenfield as follows:
Section 4.1 AUTHORIZATION, VALIDITY AND EFFECT OF AGREEMENTS. Jara has
the requisite corporate power and authority to execute and deliver this
Agreement, the Releases and all agreements and documents to be executed and
delivered in connection herewith. The execution and delivery of this Agreement,
the Releases (and the agreements contemplated hereby) and the consummation by
Jara of the transactions contemplated hereby has been duly authorized by all
requisite corporate action. Each of this Agreement and the Releases constitutes
the valid and legally binding obligations of Jara and Love, enforceable against
them in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, moratorium or other similar laws relating to creditors'
rights and general principles of equity.
Section 4.2 NO VIOLATION. Neither the execution and delivery by Jara
and Love of this Agreement or the Releases, nor the consummation by them of the
transactions contemplated hereby or thereby in accordance with the terms hereof
or thereof will (a) conflict with or result in a breach of any provisions of the
Certificate of Incorporation or Bylaws of Jara; (b) violate, conflict with,
result in a breach of any provision of, constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default) under, result
in the termination, or in a right of termination or cancellation of, accelerate
the performance required by, result in the triggering of any payment or other
material obligations pursuant to, result in the creation of any lien, security
interest charge or encumbrance upon any of the material properties of Jara or
Love under, or result in being declared void, voidable, or without further
binding effect, any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust or any material license, franchise, permit,
lease, contract, agreement or other instrument, commitment or obligation to
which any of them is a party, or by which either of them or their properties is
bound or affected; (c) contravene or conflict with or constitute a violation of
any provisions of any law, regulation, judgment, injunction order or decree
binding upon or applicable to Jara or Love; or (d) require any consent, approval
or authorization of, or declaration of or registration with, any domestic
governmental or regulatory authority.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF GREENFIELD AND LOVE
Greenfield and Seidner, jointly and severally, hereby represent to
Jennifer, Sub, Consultant, LP Owner, Zises, Jara and Love as follows:
Section 5.1 AUTHORIZATION, VALIDITY AND EFFECT OF AGREEMENTS. Each of
this Agreement and the Releases has been duly executed by Greenfield and
Seidner. Each of this Agreement and the Releases constitutes the valid and
legally binding obligations of Greenfield and Seidner, enforceable against them
in accordance with their respective terms, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws relating to creditors' rights and
general principles of equity.
-4-
<PAGE>
Section 5.2 NO VIOLATION. Neither the execution and delivery by
Greenfield and Seidner of this Agreement or the Releases, nor the consummation
by them of the transactions contemplated hereby or thereby in accordance with
the terms hereof or thereof, will (a) violate, conflict with, result in a breach
of any provision of, constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, a result in the
termination, or in a right of termination or cancellation of, accelerate the
performance required by, result in the triggering of any payment or other
material obligations pursuant to, result in the creation of any lien, security
interest, charge or encumbrance upon any of the material properties of
Greenfield or Seidner under, or result in being declared void, voidable, or
without further binding effect, any of the terms, conditions or provisions of
any note, bond, mortgage, indenture, deed of trust or any material license,
franchise, permit, lease, contract, agreement or other instrument, commitment or
obligation to which any of them is a party, or by which either of them or their
properties is bound or affected; (b) contravene or conflict with or constitute a
violation of any provisions of any law, regulation, judgment, injunction, order
or decree binding upon or applicable to Greenfield or Seidner; or (c) require
any consent, approval or authorization of, or declaration of or registration
with, any domestic governmental or regulatory authority.
ARTICLE VI
COVENANTS
Section 6.1 OTHER ACTION.
Subject to the terms and conditions herein provided, the
parties shall use all reasonable efforts to take, or cause to be taken, all
action and do, or cause to be done, all things necessary, proper or appropriate
to consummate and make effective the transactions contemplated by this Agreement
and the Releases. If, at any time after the closing of the transactions
contemplated hereby, any further reasonable action is necessary or desirable to
carry out the purpose of this Agreement or the Releases, the parties shall take
all such necessary action. Each party hereto shall perform such further acts and
execute such documents as may be reasonably required to effect the transactions
contemplated hereby.
Section 6.2 EXPENSES. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall, except as
otherwise provided herein, be paid by the party which incurs them.
Section 6.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Notwithstanding
any right of a party to investigate the accuracy of the representations and
warranties and notwithstanding any knowledge of facts determined or determinable
by such party pursuant to such investigation or right of investigation, such
party has the right to rely fully upon the representations, warranties,
covenants and agreements of the other parties contained in this Agreement. All
such representations, warranties, covenants and agreements shall survive the
execution and delivery hereof and the closing hereunder.
Section 6.4 STANDSTILL. From and after the date hereof, until December
31, 2010, Selig Zises and Jay Zises shall not acquire, and shall cause their
immediate family members and their affiliates not to acquire, any beneficial
interest in the common stock of Jennifer.
-5-
<PAGE>
ARTICLE VII
INDEMNIFICATION
Section 7.1 OBLIGATION OF CONSULTANT, LP OWNER AND ZISES TO INDEMNIFY.
Consultant, LP Owner and Zises shall, jointly and severally, indemnify, defend
and hold harmless each of the other parties hereto and their respective
assignees from and against Losses arising out of or due to a breach of any
representation, warranty, covenant or agreement of Consultant, LP Owner and
Zises contained in this Agreement or the Releases. In addition, Consultant, LP
Owner and Zises hereby, jointly and severally, indemnify, defend and hold
harmless each of the other parties hereto and the Releasees (as defined in the
Release given by Consultant, LP Owner and Zises), against any claims made by any
relative, associate or affiliate of any of them (including without limitation
Glenn S. Myers and Jennifer Chicago Investment Limited Partnership) against the
Releasees as to any subject matter as to which such Release constitutes a
release by Consultant, LP Owner or Zises.
Section 7.2 OBLIGATION OF JENNIFER TO INDEMNIFY. Jennifer shall
indemnify, defend and hold harmless Consultant, LP Owner and Zises from and
against any Losses arising out of or due to a breach of any representation,
warranty, covenant or agreement of Jennifer or Sub contained in this Agreement,
the Note or the Releases.
Section 7.3 OBLIGATION OF JARA, LOVE, GREENFIELD AND SEIDNER TO
INDEMNIFY. Jara, Love, Greenfield and Seidner shall indemnify, defend and hold
harmless each of the other parties hereto and their respective assigns from and
against Losses arising out of or due to a breach of any representation,
warranty, covenant or agreement of such party contained in this Agreement or the
Releases.
Section 7.4 NOTICE AND OPPORTUNITY TO DEFEND. If any party (the
"Indemnitee") receives notice of any claim or the commencement of any action or
proceeding with respect to which any other party (or parties) is obligated to
provide indemnification (the "Indemnifying Party"), the Indemnitee shall
promptly give the Indemnifying party notice thereof; provided, however, that
failure to give such notification shall not affect the indemnification provided
hereunder except to the extent the Indemnifying Party shall have been actually
and materially prejudiced as a result of such failure. The Indemnified Party
shall have the right to retain counsel of its own choice to represent it, and
the Indemnifying Party shall pay the fees, expenses and disbursements of such
counsel; and such counsel shall, to the extent consistent with its professional
responsibilities, cooperate with the Indemnifying Party and any counsel
designated by the Indemnifying Party. The Indemnifying Party shall be liable for
any settlement of any claim against the Indemnified Party made with the
Indemnifying Party's written consent, which consent shall not be unreasonably
withheld. The Indemnifying Party shall not, without the prior written consent of
the Indemnified Party, settle or compromise any claim, or permit a default or
consent to the entry of any judgment in respect thereof, unless such settlement,
compromise or consent includes, as an unconditional term thereof, the giving by
the claimant to the Indemnified Party of any unconditional release from all
liability in respect of such claim.
-6-
<PAGE>
ARTICLE VIII
GENERAL PROVISIONS
Section 8.1 NOTICES. Any notice required to be given hereunder shall be
sufficient if in writing, and sent by facsimile transmission or by courier
service (with proof of service), hand delivery or certified or registered mail
(return receipt requested and first-class postage prepaid), addressed as
follows:
If to Jennifer, Sub, If to Consultant, LP Owner If to Jara or Love:
Greenfield or Seidner: or Zises:
Jennifer Convertibles, Inc.
417 Crossways Park Drive
Woodbury, New York 11797
Attn: Harley J. Greenfield,
President
With copies to: With copies to:
Squadron, Ellenoff, Plesent,
& Sheinfeld, LLP
551 Fifth Avenue
New York, New York 10176
Fax: (212) 697-6686
Attn: Kenneth R. Koch
or to such other address as any party shall specify by written notice so given,
and such notice shall be deemed to have been delivered as of the date so
telecommunicated, personally delivered or mailed.
Section 8.2 ASSIGNMENT, BINDING EFFECT. 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 the other parties. Subject to the preceding sentence, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respect permitted successors and assigns.
Section 8.3 ENTIRE AGREEMENT. This Agreement and any documents
delivered by the parties in connection herewith constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreement and understandings among the parties with respect thereto. No
addition to or modification of any provision of this Agreement shall be binding
upon any party hereto unless made in writing and signed by all parties hereto.
Section 8.4 AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
Section 8.5 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
its rules of conflict of laws.
-7-
<PAGE>
Section 8.6 COUNTERPARTS. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument.
Section 8.7 HEADINGS. Headings of the Articles and Sections of this
Agreement are for the convenience of the parties only and shall be given no
substantive or interpretive effect whatsoever.
Section 8.8 INTERPRETATION. In this Agreement, unless the context
otherwise requires, words describing the singular number shall include the
plural and vice versa, and words denoting any gender shall include all genders
and words denoting natural persons shall include corporations and partnerships
and vice versa.
Section 8.9 WAIVERS. Except as provided in this Agreement, no action
taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Agreement. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
Section 8.10 SEVERABILITY. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
Section 8.11 ENFORCEMENT OF AGREEMENT. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to seek an injunction or injunctions to prevent breaches of this Agreement and
to enforce specifically the terms and provisions hereof, this being in addition
to any other remedy to which they are entitled at law or in equity.
-8-
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement and caused
the same to be duly delivered on their behalf on the day and year first written
above.
JENNIFER CONVERTIBLES, INC.
By: /s/ Harley J. Greenfield
------------------------------
Name: Harley J. Greenfield
Title: Chief Executive Officer
JENNIFER CHICAGO, LTD.
By: /s/ Harley J. Greenfield
------------------------------
Name: Harley J. Greenfield
Title: Chief Executive Officer
JCI CONSULTANT LP
By: JCI CONSULTANT CORP.
(Its General Partner)
By: /s/ Selig Zises
------------------------------
Name: Selig Zises
Title: President
JENCO PARTNERS, L.P.
By: M.P. (JENCO) PARTNERS, L.P.
(Its General Partner)
By: JENCO ACQUISITION CORP.
(Its General Partner)
By: /s/ Selig Zises
------------------------------
Name: Selig Zises
Title: President
-9-
<PAGE>
/s/ Selig Zises
-------------------------------
Selig Zises
/s/ Jay Zises
-------------------------------
Jay Zises
/s/ Harley J. Greenfield
-------------------------------
Harley J. Greenfield
/s/ Edward B. Seidner
-------------------------------
Edward B. Seidner
/s/ Fred J. Love
-------------------------------
Fred J. Love
JARA ENTERPRISES, INC.
By: /s/ Fred J. Love
-------------------------------
Fred J. Love, President
-10-
<PAGE>
GENERAL RELEASE
This general release is made as of the 20th day of August, 1999 by
Jennifer Convertibles, Inc., Jennifer Chicago Ltd., Jara Enterprises, Inc.,
Harley J. Greenfield, Fred J. Love and Edward B. Seidner (collectively
"Releasors").
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW
THAT RELEASORS, for god and valuable consideration, receipt of which is hereby
acknowledged, pursuant to and in conjunction with the execution and delivery of
that certain LP and Option Purchase and Termination Agreement (the "Termination
Agreement"), among the Releasors, JCI Consultant L.P., Jenco Partners LP, Jay
Zises and Selig Zises, (the "Other Parties") hereby releases and forever
discharges the Other Parties and their immediate family members, officers,
directors, employees, and agents, subsidiaries and affiliates, past and present
and their heirs, executors, administrators and assigns (collectively, the
"Releases" and, individually, a "Releasee") from all actions, causes of action,
including without limitation, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialities, covenants, contracts, agreements,
guarantees, liabilities, controversies, agreements, promises, variances,
trespasses, damages, judgments, extents, executions, claims and demands
whatsoever, in law, equity or otherwise, whether known or unknown, contemplated
or not contemplated, foreseen or unforeseen, fixed or contingent, which against
the Releasees, the Releasor ever had, now has or hereafter can, shall or may
have, for, upon, or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the day of the date hereof, provided, however, such
release shall not include, in any case, from and after the date hereof, the
rights, powers, liabilities and obligations arising out of or under the
Termination Agreement and as to Jennifer, the Note executed as of the date
hereof.
This General Release may not be amended, waived, terminated or
otherwise changed in any respect, except with respect to a specific Releasee by
a writing signed by such Releasee. THE VALIDITY, CONSTRUCTION AND INTERPRETATION
OF THIS GENERAL RELEASE AND ALL RIGHTS, OBLIGATIONS AND LIABILITIES ARISING
HEREUNDER SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND FOR THE
PURPOSE OF LEGAL PROCEEDINGS THIS GENERAL RELEASE SHALL BE DEEMED TO HAVE BEEN
MADE AND PERFORMED IN THE STATE OF NEW YORK.
This General Release may be executed in one or more counterparts, and
shall become effective when one or more counterparts have been signed by each of
the parties thereto.
THIS GENERAL RELEASE IS FREELY AND VOLUNTARILY GIVEN TO THE RELEASEES
BY RELEASORS WITHOUT ANY DURESS OR COERCION AND AFTER SUCH RELEASORS HAVE EITHER
CONSULTED WITH COUNSEL OR HAVE BEEN GIVEN AN OPPORTUNITY TO DO SO, AND THE
RELEASORS HAVE CAREFULLY AND COMPLETELY READ ALL OF THE TERMS AND PROVISIONS OF
THIS GENERAL RELEASE.
<PAGE>
IN WITNESS THEREOF, each Releasor has hereunto executed this General
Release as of the date first written above.
JENNIFER CONVERTIBLES, INC.
By: /s/ Harley J. Greenfield
-------------------------------
Name: Harley J. Greenfield
Title: Chief Executive Officer
On this 20th day of August, 1999, before me personally appeared Harley
J. Greenfield to me known and known to me to be the Chief Executive officer of
Jennifer Convertibles, inc. who executed the foregoing instrument on behalf of
Jennifer Convertibles, Inc., and be duly acknowledged to me that he executed the
same on behalf of Jennifer convertibles, inc., for the purpose above stated,
and, being by me duly sworn, did depose an say that the statements therein
contained are true.
- -------------------------
Notary Public
JENNIFER CHICAGO LTD.
By: /s/ Harley J. Greenfield
-------------------------------
Name: Harley J. Greenfield
Title: Chief Executive Officer
On this 20th day of August, 1999, before me personally appeared Harley
J. Greenfield to me known and known to me to be the Chief Executive Officer of
Jennifer Chicago Ltd., who executed the foregoing instrument on behalf of
Jennifer Chicago Ltd., and he duly acknowledged to me that he executed the same
on behalf of Jennifer Chicago Ltd., for the purpose above stated, and, being by
me duly sworn, did depose and say that the statements therein contained are
true.
- --------------------------
Notary Public
<PAGE>
JARA ENTERPRISES
By: /s/ Fred J. Love
-------------------------------
Name: Fred J. Love
Title: President
On this 20th day of August, 1999, before me personally appeared Fred J.
Love to me known and known to me to be the President of Jara enterprises, inc.,
who executed the foregoing instrument on behalf of Jara enterprises, Inc.,
President of Jara Enterprises, inc., and he duly acknowledged to me that he
executed the same on behalf of Jara enterprises, inc., for the purpose above
stated, and, being by me duly sworn, did depose and say that the statements
therein contained are true.
- ------------------------
Notary Public
<PAGE>
/s/ Harley J. Greenfield
-------------------------------
Harley J. Greenfield
On this 20th day of August, 1999, before me personally appeared Harley
J. Greenfield who executed the foregoing instrument and he duly acknowledged to
me that he executed the same for the purpose above stated, and, being by me duly
sworn, did depose and say that the statements therein contained are true.
- ----------------------------
Notary Public
/s/ Edward B. Seidner
-------------------------------
Edward B. Seidner
On this 20th day of August, 1999, before me personally appeared Edward
B. Seidner who executed the foregoing instrument and he duly acknowledged to me
that he executed the same for the purpose above stated, and, being by me duly
sworn, did depose and say that the statements therein contained are true.
- ----------------------------
Notary Public
/s/ Fred J. Love
-------------------------------
Fred J. Love
On this 20th day of August, 1999, before me personally appeared Fred J.
Love who executed the foregoing instrument and he duly acknowledged to me that
he executed the same for the purpose above stated, and, being by me duly sworn,
did depose and say the statements therein contained are true.
- ----------------------------
Notary Public
-4-
<PAGE>
GENERAL RELEASE
This general release is made as of the 20th day of August, 1999 by JCI
Consultant, LP, Jenco Partners J.P. Jay Zises and Selig Zises (collectively
"Releasors").
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN KNOW THAT
RELEASORS, for good and valuable consideration, receipt of which is hereby
acknowledged, pursuant to and in conjunction with the execution and delivery of
that certain LP and Option Purchase and Termination Agreement (the "Termination
Agreement"), among the Releasors, Jennifer Convertibles, Inc. ("Jennifer"),
Jennifer Chicago Ltd., Jara Enterprises, Inc., Harley J. Greenfield, Fred J.
Love and Edward B. Seidner (the "Other Parties") hereby releases and forever
discharges the Other Parties and their immediate family members, officers,
directors, employees, and agents (including without limitation Jerome I.
Silverman Company, Jerry Silverman and Isabelle Silverman), subsidiaries and
affiliates, past and present and their heirs, executors, administrators and
assigns (collectively, the "Releasees and, individually, a "Releasee") from all
actions, causes of action, including without limitation, suits, debts, dues,
sums of money, from all actions, causes of action, including without limitation,
suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, agreements guarantees, liabilities,
controversies, agreements, promises, variances, trespasses, damages, judgments
extents, executions, claims and demands whatsoever, in law, equity or otherwise,
whether known or unknown, contemplated or not contemplated, foreseen or
unforeseen, fixed or contingent, which against the Releasees, the Releasor ever
had now has or hereafter can, shall or may have, for, upon, or by reason of any
matter, cause or thing whatsoever from the beginning of the world to the day of
the date hereof, provided, however, such release shall not include, in any case,
from and after the date hereof, the rights, powers, liabilities and obligations
arising out of or under the Termination Agreement and as to Jennifer , the Note
executed as of the date hereof.
This General Release may not be amended, waived, terminated or
otherwise change in any respect, except with respect to a specific Release by a
writing signed by such Release. THE VALIDITY, CONSTRUCTION AND INTERPRETATION OF
THIS GENERAL RELEASE AND ALL RIGHTS, OBLIGATIONS AND LIABILITIES ARISING
HEREUNDER SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK AND FOR THE
PURPOSE OF LEGAL PROCEEDINGS THIS GENERAL RELEASE SHALL BE DEEMED TO HAVE BEEN
MADE AND PERFORMED IN THE STATE OF NEW YORK.
This General Release may be executed in one or more counterparts, and
shall become effective when one or more counterparts have been signed by each of
the parties thereto.
THIS GENERAL RELEASE IS FREELY AND VOLUNTARILY GIVEN TO THE RELEASEES
BY RELEASORS WITHOUT ANY DURESS OR COERCION AND AFTER SUCH RELEASORS HAVE EITHER
CONSULTED WITH COUNSEL OR HAVE BEEN GIVEN AN OPPORTUNITY TO DO SO, AND THE
RELEASORS HAVE CAREFULLY AND COMPLETELY READ ALL OF THE TERMS AND PROVISIONS OF
THIS GENERAL RELEASE.
-1-
<PAGE>
IN WITNESS WHEREOF, each Releasor has hereunto executed this General
Release as of the date first written above.
JCI CONSULTANT, LP
By: JCI Consultant Corp.
(its General Partner)
By: /s/ Selig Zises
---------------------------
Name:Selig Zises
Title: President
On this 20th day of August, 1999, before me personally appeared
______________ to me known and known to me to be the President of JCI Consultant
Corp., the general partner of JCI Consultant, LP, who executed the foregoing
instrument on behalf of JCI Consultant Corp., as general partner of JCI
Consultant LP, and he duly acknowledged to me that he executed the same on
behalf of JCI Consultant Corp., as general partner of JCI Consultant Corp., for
the purpose above stated, and, being by me duly sworn, did depose and say that
the statements therein contained are true.
- --------------------
Notary
JENCO PARTNERS, L.P.
By: MP (JENCO) PARTNERS, L.P.
(Its General Partner)
By: JENCO ACQUISITION CORP.
(Its General Partner)
By: /s/ Selig Zises
---------------------------
Name:Selig Zises
Title:
On this 20th day of August, 1999, before me personally appeared Selig
Zises to me known and known to me to be the President of Jenco Acquisition
Corp., the general partner of MP (Jenco) Partners, L.P., the general Partner of
Jenco partners, L.P. who executed the foregoing instrument on behalf of Jenco
Acquisition Corp., as general partner of MP (Jenco) Partners, L.P., the general
partner of Jenco Partners, L.P., and he duly acknowledged to me that he executed
the same on behalf of Jenco Acquisition Corp., as general partner of MP (Jenco)
Partners, L.P., the general partner of Jenco Partners, L.P., for the purpose
above stated, and, being by me duly sworn, did depose and say that the
statements therein contained are true.
- --------------------
Notary Public
-2-
<PAGE>
/s/ Jay Zises
---------------------------
Jay Zises
On this 20th day of August, 1999, before me personally appeared Jay
Zises who executed the foregoing instrument and he duly acknowledged to me that
he executed the same for the purpose above stated, and, being by me duly sworn,
did depose and say that the statements therein contained are true.
- --------------------
Notary Public
/s/ Selig Zises
---------------------------
Selig Zises
On this 20th day of August, 1999, before me personally appeared Selig
Zises who executed the foregoing instrument and he duly acknowledged to me that
he executed the same for the purpose above stated, and, being by me duly sworn,
did depose and say that the statements therein contained are true.
- --------------------
Notary Public
-3-
