EXHIBIT 10.27
ADVISORY AGREEMENT
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This ADVISORY AGREEMENT is made and entered into as of this 31st day
of January 2000 (the "Effective Date"), by and between (a) Wm. Xxxxxxxxxxx Xxxxx
("Xxxxx"); (b) HOB Entertainment, Inc. ("HOB"); (c) Chase Capital Partners,
Chase/HOB 1999 Partners (GC), L.L.C., Chase/HOB 1998 Partners (GC), L.L.C., CB
Capital Investors, LLC, and Chase Venture Capital Associates, L.P. (collectively
"Chase"); (d) First Union Investors, Inc. ("First Union"); and (e) X. X. Xxxxxxx
& Co., X. X. Xxxxxxx III, L.P., Whitney Strategic Partners III, L.P. and X. X.
Xxxxxxx Market Value Fund, L.P. (collectively, "Whitney," and Chase, First Union
and Whitney collectively referred to as the "Investors").
WHEREAS, Gorog performed certain advisory and consulting services (the
"Services") for the benefit of HOB and the Investors prior to and in connection
with HOB's acquisition of Universal Concerts, Inc. and certain of its affiliates
(the "UCI Acquisition"); and
WHEREAS, HOB, the Investors and Gorog have agreed to enter into this
Advisory Agreement to compensate Gorog for his provision of the Services.
NOW, THEREFORE, in consideration of the execution and delivery of this
Agreement and the mutual promises contained herein, and other good and valuable
consideration, the parties agree as follows:
1. Compensation. In consideration of the Services rendered by Gorog:
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(a) On the Effective Date, Gorog shall be paid an amount equal to
$808,937 in respect of the Services and $153,063 in reimbursement of expenses
incurred by Gorog in connection with the UCI Acquisition, of which (i) HOB shall
pay Gorog $288,600, (ii) Chase shall pay Gorog $306,100, (iii) Whitney shall pay
Gorog $306,100, and (iv) First Union shall pay Gorog $61,200.
(b) On the Effective Date, Gorog and HOB shall also enter into a
stock option agreement, dated as of the date hereof, in the form annexed hereto
as Exhibit A (the "Stock Option Agreement"), pursuant to which Gorog shall
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receive options to purchase an aggregate amount of 2,675,000 shares of HOB
Common Stock (the "Stock Options"). The Stock Options are subject solely to the
terms and conditions of the Stock Option Agreement and HOB's 1993 Amended and
Restated Stock Option Plan (the "Plan"). Contemporaneously herewith, Gorog
agrees to become a party to the Amended and Restated Stockholders Agreement,
dated as of September 10, 1999, by and among HOB and the investors listed
therein (as amended from time to time, the "Stockholders Agreement"), and on the
Effective Date, Gorog shall execute a counterpart of the Stockholders Agreement.
Each of the Investors agrees, severally and not jointly, upon any exercise of
the Stock Options by Gorog, to sell to HOB, at the exercise price for such Stock
Options in the Stock Option Agreement and for the same form of consideration
utilized by Gorog, a number of shares of HOB Common Stock equal to the
percentage set forth opposite its name below of the shares of HOB Common Stock
to be received by Gorog upon such exercise:
Investor Percentage
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Chase 28.126%
Whitney 28.126%
First Union 17.579%
Each Investor agrees to exercise its right to convert into HOB Common Stock
securities convertible into, or exercisable for, HOB Common Stock to the extent
necessary to comply with its obligations in the preceding sentence. No failure
by any Investor to discharge its obligations to HOB under this paragraph 1(b)
will relieve or otherwise affect HOB's obligations to Gorog under the Stock
Option Agreement.
(c) HOB and the Investors shall seek to resolve or eliminate claims
("E&Y Claims") by Ernst & Young International or its agents, subsidiaries,
predecessors, successors or affiliates, including Xxxxxxx Xxxxxxxxxx ("Xxxxx &
Xxxxx"), against Gorog for services allegedly rendered to Gorog in connection
with the UCI Acquisition, and Gorog shall support their efforts to resolve or
eliminate the E&Y Claims. Gorog shall pay fifty percent (50%), HOB shall pay
fifteen percent (15%), Chase shall pay fifteen and 91/100 percent (15.91%),
Whitney shall pay fifteen and 91/100 percent (15.91%), and First Union shall pay
three and 18/100 percent (3.18%), of any resolution of any E&Y Claim(s) which
requires the payment of any monies to Ernst & Young. The terms of any
resolution of any E&Y Claim require the approval of each of Gorog, HOB, Xxxxx,
Xxxxxxx and First Union; provided, however, that the parties have pre-approved a
cash settlement of all E&Y Claims for up to one hundred fifty thousand dollars
($150,000), with each of the parties paying the percentage set forth in the
previous sentence of such settlement.
2. HOB Board. At each election of directors of HOB, HOB and the Investors
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will consult each other and will vote their respective shares of HOB's voting
stock in favor of the election of Gorog to the Board of Directors of HOB, so
long as (i) Gorog is the record owner or beneficially owns (or has the right to
acquire) at least 500,000 shares of stock of HOB (as such number may be adjusted
to account for stock splits, reverse stock splits and other recapitalizations);
and (ii) Gorog is not otherwise engaged in a concert promotion business in
competition with HOB. While serving as a director of HOB, Gorog will be entitled
to indemnification rights, and coverage under any directors and officers and/or
any errors and omissions insurance policy, and to other rights and benefits
accorded to directors, to the same extent as the other directors of HOB.
Notwithstanding anything in this Agreement to the contrary, the obligations of
HOB and the Investors set forth in this paragraph 2 shall terminate upon the
completion of a Qualified Public Offering or a Qualified Sale (as such terms are
defined in the Stockholders Agreement).
3. Co-Sale. If at any time prior to a Qualified Public Offering or a
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Qualified Sale (as such terms are defined in the Stockholders Agreement), any of
the Investors party to that certain Co-Sale Agreement dated as of September 10,
1999 by and among such Investors and certain other stockholders of the Company
(the "Co-Sale Agreement") is an Originating Stockholder (as such term is defined
in the Co-Sale Agreement) with respect to a transaction subject to Section 2 of
the Co-Sale
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Agreement, such Investor will afford Gorog the opportunity to participate in
such transaction to the same extent as if Gorog was a Stockholder under the Co-
Sale Agreement; provided, however, that if any party to the Co-Sale Agreement
that is not an Investor under this Agreement elects to participate in such
transaction, the number of shares to be sold by such party shall not be reduced
without such party's consent to be treated as a "Consenting Seller", as set
forth below. Any such party who does not consent to have its participation
reduced is referred to as a "Non-Consenting Seller"; any such party who consents
to have its participation reduced is referred to as a "Consenting Seller". If
Gorog elects to participate in such sale, Gorog, any Investor participating in
such sale and any Consenting Seller shall be entitled to sell its Pro-Rata
Portion of the Available Shares. The term "Pro-Rata Portion" shall mean, with
respect to Gorog, any Investor participating in such sale and any Consenting
Seller, a fraction the numerator of which is the number of Shares (as defined in
the Co-Sale Agreement) held by such person, and the denominator of which is the
aggregate number of Shares held by Gorog, all Investors participating in such
sale and all Consenting Sellers. The term "Available Shares" shall mean the
total number of Shares to be sold in such transaction less the amount to be sold
by all Non-Consenting Sellers.
4. Relationship.
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(a) Gorog's status with respect to HOB and each of the Investors is
and was that of an independent contractor rather than an employee of HOB or any
of the Investors and it is understood and agreed that none of HOB or any of the
Investors will withhold any federal, state or local income, Social Security,
unemployment or other taxes on account of payments to Gorog hereunder, but will
remit the full amount of such payments to Gorog and report them on federal tax
form 1099. All estimated tax payments and employment tax obligations arising
from payments hereunder are agreed to be those of Gorog.
(b) Except as may hereafter be agreed upon in writing, Gorog shall
not have the authority to obligate or commit HOB in any manner whatsoever.
5. Gorog Release. Gorog, on behalf of himself and each of the Gorog
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Releasees (as hereinafter defined) (collectively, the "Gorog Releasors"), for
good and valuable consideration the receipt and adequacy of which is hereby
acknowledged, unconditionally and forever releases and discharges HOB, House of
Blues Concerts, Inc. (formerly named Universal Concerts, Inc.), Chase, First
Union, Whitney, and their respective partners, officers, directors,
stockholders, representatives, affiliates, subsidiaries, predecessors,
successors, co-investors, controlling persons, agents and employees, past and
present, and any other person or entity acting by, through, or in concert with
them, or any of them (collectively the "HOB/Investor Releasees") of and from all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, rights, obligations, losses, liabilities, costs, expenses,
attorneys' fees, and demands whatsoever, whether known or unknown, contingent or
absolute, suspected or unsuspected, disclosed or undisclosed, asserted or
unasserted, hidden or concealed, matured or unmatured, material or immaterial,
whether individual, class, derivative or representative, whether in law,
admiralty or equity, or of any other type or in any other capacity, against each
of the respective HOB/Investor Releasees,
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which the Gorog Releasors or any of them ever had, now have 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 Effective Date in any way
arising out of, based upon or related to the UCI Acquisition or any other plans,
discussions or proposals by or among any of the parties hereto with respect to a
possible transaction involving Universal Concerts, Inc., except for any claim
arising out of, based upon or related to this Agreement or the Stock Option
Agreement. The Gorog Releasors, and each of them, intend that this release (and
the covenant not to xxx set forth in paragraph 6 of this Agreement) shall be
effective as a full and final accord and satisfaction, and as a bar to all
actions, causes of action, claims, obligations, costs, expenses, attorneys'
fees, damages, losses, liabilities and demands of or against any HOB/Investor
Releasee of any nature, character or kind, known or unknown, suspected or
unsuspected, in any way arising out of, based upon or related to the UCI
Acquisition or any other plans, discussions or proposals by or among any of the
parties hereto with respect to a possible transaction involving Universal
Concerts, Inc., except for any claim pursuant to, arising out of, or for breach
of, this Agreement or the Stock Option Agreement. The Gorog Releasors, and each
of them, represent and warrant that he/she/it/they have not assigned or
transferred any interest in any claim released by this paragraph 5
(collectively, "Released Gorog Claims"), and, further, that any Gorog Releasor
who breaches the foregoing representation and warranty shall indemnify and hold
harmless any and all HOB/Investor Releasees, and each of them, of, from and
against all liabilities, claims, demands, damages, costs, expenses, and
attorneys' fees incurred by such HOB/Investor Releasee as a result of any person
asserting any such assignment or transfer in violation of this paragraph's
representation and warranty. It is the intention of the parties to this
Agreement, and each of them, that this indemnity does not require payment as a
condition precedent to recovery. The Gorog Releasors, and each of them,
acknowledge that they are familiar with Section 1542 of the California Civil
Code, which provides as follows:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with the
debtor.
The Gorog Releasors, and each of them, expressly waive and relinquish any and
all rights and benefits which they may have under, or which may be conferred on
them by, the provisions of Section 1542 of the California Civil Code, as well as
under any other state or federal statute or common law principle of similar
effect, to the fullest extent that they may lawfully waive such rights or
benefits pertaining to the released matters. The Gorog Releasors, and each of
them, intend that this release shall be and will remain in effect as a full and
complete release notwithstanding the discovery or existence of any additional or
different claims or facts arising out of the released matters.
6. Gorog's Covenant Not To Xxx. Xxxxx, on behalf of himself and each of
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the Gorog Releasees (as hereinafter defined), covenants and agrees that he and
they will never initiate any suit or action at law or otherwise against any of
the HOB/Investor Releasees, or institute, prosecute, induce, encourage, assist,
participate in or in any way aid any other person or entity to institute or
prosecute any litigation, claim, demand, action or cause of action against any
of the HOB/Investor Releasees, for any relief, including without limitation,
damages, costs, expenses or compensation for
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or on account of any damage, loss or injury either to person or property, or
both, or for breach of any agreement, obligation or duty, whether developed or
undeveloped, resulting or to result, known or unknown, which any of the Gorog
Releasors ever had, now has, or which they or their successors or assigns
hereafter can, shall or may have for or by reason of any matter, cause or thing
whatsoever from the beginning of the world to the Effective Date in any way
arising out of, based upon or related to the UCI Acquisition or any other plans,
discussions or proposals by or among any of the parties hereto with respect to a
possible transaction involving Universal Concerts, Inc., excepting only claims
pursuant to, arising out of, or for breach or enforcement of this Agreement or
the Stock Option Agreement. The Gorog Releasees, and each of them, acknowledge
and agree that if he/she/it/they hereafter commence any suit arising out of,
based upon, or relating to any Released Gorog Claim, the Gorog Releasee who
violates the provision of this paragraph 6 shall pay to such HOB/Investor
Releasee, in addition to any other damages caused thereby, all attorneys' fees
and costs incurred by such HOB/Investor Releasee, and each of them, in defending
or otherwise responding to such suit or claim.
7. HOB And The Investors' Release. HOB and the Investors on behalf of
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themselves and each of the HOB/Investor Releasees (collectively, the
"HOB/Investor Releasors"), for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, unconditionally and forever release
and discharge Gorog and each of his heirs, successors, representatives,
executors, administrators, affiliates, predecessors, agents and assigns, past
and present and any person or entity acting by, through, or in concert with them
or any of them (collectively, including Gorog, the "Gorog Releasees"), from all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, rights, obligations, losses, liabilities, costs, expenses,
attorneys' fees, and demands whatsoever, whether known or unknown, contingent or
absolute, suspected or unsuspected, disclosed or undisclosed, asserted or
unasserted, hidden or concealed, matured or unmatured, material or immaterial,
whether individual, class, derivative or representative, whether in law,
admiralty or equity, or of any other type or in any other capacity, against each
of the Gorog Releasees or any of them, which the HOB/Investor Releasors ever
had, now have 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
Effective Date in any way arising out of, based upon or related to the UCI
Acquisition, or any other plans, discussions or proposals by or among any of the
parties hereto with respect to a possible transaction involving Universal
Concerts, Inc., except for any claim arising out of, based upon or related to
this Agreement or the Stock Option Agreement. The HOB/Investor Releasors, and
each of them, intend that this release (and the covenant not to xxx set forth in
paragraph 8 of this Agreement) shall be effective as a full and final accord and
satisfaction, and as a bar to all actions, causes of action, claims,
obligations, costs, expenses, attorneys' fees, damages, losses, liabilities and
demands of or against any Gorog Releasee of any nature, character or kind, known
or unknown, suspected or unsuspected, in any way arising out of, based upon or
related to the UCI Acquisition or any other plans, discussions or proposals by
or among any of the parties hereto with respect to a possible transaction
involving Universal Concerts, Inc., except for any claim pursuant to, arising
out of, or for breach of, this Agreement or the Stock Option Agreement. The
HOB/Investor Releasors, and each of them, represent and warrant that
he/she/it/they have not assigned or transferred any interest in any claim
released by this paragraph
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7 (collectively, "Released HOB/Investor Claims"), and, further, that any
HOB/Investor Releasor who breaches the foregoing representation and warranty
shall indemnify and hold harmless any and all Gorog Releasees, and each of them,
of, from and against all liabilities, claims, demands, damages, costs, expenses,
and attorneys' fees incurred by such Gorog Releasee as a result of any person
asserting any such assignment or transfer in violation of this paragraph's
representation and warranty. It is the intention of the parties to this
Agreement, and each of them, that this indemnity does not require payment as a
condition precedent to recovery. The HOB/Investor Releasors, and each of them,
acknowledge that they are familiar with Section 1542 of the California Civil
Code, which provides as follows:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with the
debtor.
The HOB/Investor Releasors, and each of them, expressly waive and relinquish any
and all rights and benefits which they may have under, or which may be conferred
on them by, the provisions of Section 1542 of the California Civil Code, as well
as under any other state or federal statute or common law principle of similar
effect, to the fullest extent that they may lawfully waive such rights or
benefits pertaining to the released matters. The HOB/Investor Releasors, and
each of them, intend that this release shall be and will remain in effect as a
full and complete release notwithstanding the discovery or existence of any
additional or different claims or facts arising out of the released matters.
8. HOB And The Investors' Covenant Not To Xxx. HOB and the Investors each
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covenant and agree on behalf of itself and each of its respective HOB/Investor
Releasees that it and they will never initiate any suit or action at law or
otherwise against any of the Gorog Releasees, or institute, prosecute, induce,
encourage, assist, participate in or in any way aid any other person or entity
to institute or prosecute any litigation, claim, demand, action or cause of
action against any of the Releasees, for any relief, including without
limitation, damages, costs, expenses or compensation for or on account of any
damage, loss or injury either to person or property, or both, or for breach of
any agreement, obligation or duty, whether developed or undeveloped, resulting
or to result, known or unknown, which any of the HOB/Investor Releasors ever
had, now has, or which hereafter can, shall or may have for or by reason of any
matter, cause or thing whatsoever from the beginning of the world to the
Effective Date in any way arising out of, based upon or related to the UCI
Acquisition or any other plans, discussions or proposals by or among any of the
parties hereto with respect to a possible transaction involving Universal
Concerts, Inc., excepting only claims pursuant to, arising out of, or for breach
or enforcement of this Agreement or the Stock Option Agreement. The HOB/Investor
Releasees, and each of them, acknowledge and agree that if he/she/it/they
hereafter commence any suit arising out of, based upon, or relating to any
Released HOB/Investor Claim, the HOB/Investor Releasee who violates the
provision of this paragraph 8 shall pay to such Gorog Releasee, in addition to
any other damages caused thereby, all attorneys' fees and costs incurred by such
Gorog Releasee, and each of them, in defending or otherwise responding to such
suit or claim.
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9. Regulatory and Filing Obligations. Each party hereto shall separately
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undertake all actions necessary or appropriate to satisfy any regulatory or
filing obligations such party may have resulting from the execution of this
Agreement or the performance of any obligations hereunder. Further, each party
holds harmless and indemnifies the other from and against any liabilities
arising from such party's own failure to properly take such action or actions.
10. Confidentiality.
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(a) Except as may be required by law or as may be specifically
authorized by HOB in writing or in connection with the enforcement of this
Agreement, Gorog shall not directly or indirectly in any way utilize or disclose
any information relating to HOB or its business which he has acquired or
acquires or has been given access to, unless Gorog shall have demonstrated that
such information was, at the time of such utilization or disclosure and not as a
result of any action by Gorog or by any other party in breach of such party's
obligations to HOB, in the public domain.
(b) The parties to this Agreement agree that the terms of this
Agreement shall be held strictly confidential and shall not be divulged to any
non-party to this Agreement, except counsel and accountants and other financial
advisors for the parties hereto. Notwithstanding the foregoing sentence, the
parties hereto may divulge the existence and terms of this Agreement if required
to do so to comply with any legal or regulatory requirements, including any
court order in connection with a judicial proceeding, or if required to do so in
connection with an administrative proceeding (including an audit by the Internal
Revenue Service) or in connection with the filing of tax returns, or in
connection with the enforcement of this Agreement.
11. Assignment. Gorog may not assign any of his rights or delegate any of
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his duties or obligations under this Agreement. The rights and obligations of
each of HOB and the Investors under this Agreement shall inure to the benefit of
and shall be binding upon the successors and assigns of each of them. Each of
HOB and each Investor may not assign its rights or obligations under this
Agreement except to an entity that succeeds to all or substantially all of such
entity's assets.
12. Arbitration. ANY DISPUTE OR CONTROVERSY ARISING OUT OF, RELATING TO,
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OR CONCERNING ANY INTERPRETATION, CONSTRUCTION, PERFORMANCE OR BREACH OF THIS
AGREEMENT, SHALL BE SETTLED BY ARBITRATION TO BE HELD IN LOS ANGELES COUNTY,
CALIFORNIA, IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES THEN IN EFFECT
OF THE AMERICAN ARBITRATION ASSOCIATION AS MODIFIED HEREIN. THE PARTY OR
PARTIES SEEKING ARBITRATION SHALL COLLECTIVELY SUBMIT WITH ITS OR THEIR DEMAND
THE NAME, ADDRESS AND TELEPHONE NUMBER OF ONE ARBITRATOR. THE OPPOSING PARTY OR
PARTIES SHALL COLLECTIVELY SUBMIT WITH ITS OR THEIR RESPONSE THE NAME, ADDRESS
AND TELEPHONE NUMBER OF ONE ARBITRATOR. THE TWO SELECTED ARBITRATORS SHALL THEN
CONFER PROMPTLY WITH ONE ANOTHER IN ORDER TO NAME A THIRD DIS-INTERESTED NEUTRAL
ARBITRATOR. IF THE TWO SELECTED ARBITRATORS ARE UNABLE TO AGREE UPON THE
SELECTION OF THE THIRD NEUTRAL ARBITRATOR WITHIN THIRTY DAYS THEN
Page 7
THE AAA SHALL BE AUTHORIZED TO SELECT A NEUTRAL ARBITRATOR. THE ARBITRATORS MAY
GRANT INJUNCTIONS OR OTHER RELIEF IN SUCH DISPUTE OR CONTROVERSY. EXCEPT AS
REQUIRED BY LAW OR TO ENTER OR ENFORCE A DECISION OF THE ARBITRATORS, THE
ARBITRATION SHALL BE MAINTAINED AS STRICTLY CONFIDENTIAL BY ALL PARTIES, THE
ARBITRATORS AND THE AAA. DISCOVERY SHALL BE PERMITTED TO THE EXTENT PERMISSIBLE
IN CIVIL ACTIONS. THE DECISION OF THE ARBITRATORS SHALL BE FINAL, CONCLUSIVE
AND BINDING ON THE PARTIES TO THE ARBITRATION. JUDGMENT MAY BE ENTERED ON THE
ARBITRATORS' DECISION IN ANY COURT HAVING JURISDICTION. THE ARBITRATORS SHALL
HAVE THE AUTHORITY TO INCLUDE, AS AN ITEM OF DAMAGES, THE COSTS OF ARBITRATION,
INCLUDING LEGAL FEES AND EXPENSES, INCURRED BY THE PREVAILING PARTY.
13. Notices. Notices or process required to be given hereunder shall be
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sent by certified mail (return receipt requested) and also by first class mail
and shall be deemed given or received 3 days after mailing thereof, to:
If to Gorog:
Wm. Xxxxxxxxxxx Xxxxx
0000 Xxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
with a copy by mail or fax to:
O'Melveny & Xxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
If to HOB:
HOB Entertainment, Inc.
0000 Xxxxxx Xxxx., 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
With a copy by mail or fax to:
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Xxxxxx & Xxxxxxx
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax No.: 000-000-0000
Attention: Xxxx Xxxxxxx, Esq.
If to Chase:
Chase Venture Capital Associates, L.P.
000 Xxxxx Xxxxxxxx Xxxx, Xxxx
Xxxxx 000
Xxxx, Xxxxxxxx 00000
Fax No.: 000-000-0000
Attention: Xxxxx X. Xxxxxxxx
If to First Union:
First Union Investors, Inc.
Xxx Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Fax No.:
Attn: Xx. Xxxxx X. Xxxx
with a copy by mail or fax to:
Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, LLP
Bank of America Corp. Ctr.
Suite 4200
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Fax No.: 000-000-0000
Attention: Xxxxx X. Xxxxx, Esq.
If to Whitney:
c/o X. X. Xxxxxxx & Co.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX. 00000
Fax No.: (000) 000-0000
Attn: Xx. Xxxxx X. Xxxxxxxxx
Xx. Xxxxxx X. X'Xxxxx
Xxxxx X. Xxxxxx, Esq.
Xxxxx Xxxxxx, Esq.
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with a copy by mail or fax to:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No. (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
Xxxxxx X. Xxxxxxxx, Esq.
14. Miscellaneous Provisions.
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(a) Governing Law. This Agreement shall be governed, construed,
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interpreted, and enforced in accordance with the substantive law of the State of
California applied to agreements entered into and performed entirely within such
State.
(b) Entire Agreement. This Agreement is the complete and exclusive
----------------
statement of the entire agreement and understanding between all the undersigned
parties with respect to the subject matter hereof. No representations, oral or
otherwise, express or implied, other than those specifically set forth in this
Agreement (including the annexed exhibit) have been made by any party to the
other party regarding the subject matter of this agreement.
(c) Titles and Captions. Paragraph titles or captions contained
-------------------
herein are inserted only as a matter of convenience and for reference and in no
way define, limit, extend or describe the scope of the Agreement or the intent
of any provision.
(d) Further Assurances. Each of the parties shall take such other
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actions and execute such other documents as may be reasonably necessary to
effectuate this Agreement and the undertakings made herein.
(e) Acknowledgment of Receipt of Consideration. Each party
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acknowledges receipt of legally sufficient consideration for this Agreement.
(f) Parties. This Agreement shall be binding upon, and shall inure
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to the benefit of, the parties hereto and their respective heirs, estates,
successors and assigns.
(g) Non-Waiver of Breach. The waiver by any party of any breach of
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this Agreement shall not be deemed or construed as a waiver of any other breach,
whether prior, subsequent, or contemporaneous, of this Agreement.
(h) Amendments. This Agreement shall not be suspended, waived,
----------
terminated, amended or modified in any manner except in a writing signed by all
parties to be bound.
(i) Counterparts. This Agreement may be executed simultaneously in
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one or more counterparts, each of which shall be deemed an original, but all of
which together shall
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constitute one and the same instrument. Telefacsimile transmissions of any
executed original Agreement or document and/or retransmission of any executed
telefacsimile transmission shall be deemed to be the same as the delivery of an
executed original.
(j) Drafter. For purposes of construing this Agreement, each of the
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parties hereto shall be deemed the drafter of this Agreement.
(k) No Acknowledgment Of Liability. Neither the execution and
------------------------------
delivery of this Agreement nor any actions taken by any party pursuant to this
Agreement shall be deemed to constitute any acknowledgment of wrongdoing or
liability on the part of any party to this Agreement.
(l) Legal Counsel. The parties hereto have each been represented by
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legal counsel in connection with this Agreement.
(m) Representations and Warranties. Each of HOB and the Investors
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hereby severally, but not jointly, represents and warrants as to itself to Gorog
as follows:
(i) Organization, Existence and Power. Such entity (1) is
---------------------------------
duly organized, validly existing and in good standing under the laws of the
applicable state of organization, and (2) has the power and authority to
execute, deliver and perform its obligations under this Agreement, and as to
HOB, the Stock Option Agreement.
(ii) Authorization; No Contravention. The execution, delivery
-------------------------------
and performance of this Agreement by such entity (and as to HOB, the Stock
Option Agreement): (1) has been duly authorized by all necessary action; (2) do
not and will not contravene the terms of any applicable governing documents of
such entity or any applicable laws; (3) do not and will not conflict with,
contravene, result in any violation or breach of or default under (with or
without the giving of notice or the lapse of time or both) any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other instrument or
arrangement to which the entity is bound.
(iii) Binding Effect; Enforceability. This Agreement (and as
------------------------------
to HOB, the Stock Option Agreement) has been duly executed and delivered by such
entity and constitutes the legal, valid and binding obligation of such entity
enforceable against it in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity relating to enforceability.
11
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
WM. XXXXXXXXXXX XXXXX
/s/ Wm. Xxxxxxxxxxx Xxxxx
-------------------------------------
HOB ENTERTAINMENT, INC.
By: /s/ Xxxxxxx X. Trojan
---------------------------------
Name: Xxxxxxx X. Trojan
----------------------------
Title:
CHASE CAPITAL PARTNERS
By:
-----------------------------------
Name:
Title:
CHASE/HOB 1999 PARTNERS (GC), L.L.C.
By: CB Capital Investors, L.P.
Its Managing Member
By: CB Capital Investors, Inc.
Its Managing Partner
By:
------------------------------------
Name:
Title:
12
CHASE/HOB 1998 PARTNERS (GC), L.L.C.
By: Chase Venture Capital Associates, L.P.
Its Managing Member
By: Chase Capital Partners
Its General Partner
By:
------------------------------------
Name:
Title:
CB CAPITAL INVESTORS, LLC
By: Chase Capital Partners
Its Manager
By:
------------------------------------
Name:
Title:
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
By: Chase Capital Partners, General Partner
Its General Partner
By:
-----------------------------------
Name:
Title:
13
FIRST UNION INVESTORS, INC.
By:
--------------------------------------
Name:
Title:
X. X. XXXXXXX & CO.
By: Whitney General Partner, L.L.C.,
Its General Partner
By:
------------------------------
Name:
A Managing Member
X. X. XXXXXXX III, L.P.
By: X. X. Xxxxxxx Equity Partners III, LLC,
Its General Partner
By:
-----------------------------------
Name:
A Managing Member
WHITNEY STRATEGIC PARTNERS III, L.P.
By: X. X. Xxxxxxx Equity Partners III, LLC,
Its General Partner
By:
--------------------------------
Name:
A Managing Member
14
X. X. XXXXXXX MARKET VALUE FUND, L.P.
By: Whitney Market Value GP, Ltd.
Its General Partner
By:
--------------------------------
Name:
A Managing Member
15
