FIRST AMENDED AND RESTATED
SUBSCRIPTION AGREEMENT
(Planet Hollywood International, Inc.)
THIS FIRST AMENDED AND RESTATED SUBSCRIPTION AGREEMENT (the
"Agreement") is entered into as of ________________, 2000, by and between PLANET
HOLLYWOOD INTERNATIONAL, INC., a Delaware corporation (the "Company") and LAUREN
INVESTMENTS HOLDINGS LIMITED, a corporation organized under the laws of the
British Virgin Islands, as trustee of the ▇▇▇▇▇ TRUST, a British Virgin Islands
Trust U/A/D 9/10/99 (the "New Money Investor").
WHEREAS, on October 12, 1999, the Company and certain of its
affiliates (collectively, the "Debtors") commenced cases under Chapter 11 of
Title 11 of the United States Code by filing voluntary petitions in the United
States Bankruptcy Court for the District of Delaware, Case No. 99-03612 (the
"Bankruptcy Court").
WHEREAS, on November 8, 1999, the Debtors filed their Joint
Plan of Reorganization and Disclosure Statement with the Bankruptcy Court, which
was supported by the Official Committee of Unsecured Creditors for the Debtors.
WHEREAS, following a hearing held on December 9, 1999, the
Bankruptcy Court approved the Disclosure Statement as amended and scheduled a
hearing on confirmation of the reorganization plan for January 20, 2000.
WHEREAS, on December 13, 1999 the Debtors filed their First
Amended Joint Plan of Reorganization (the "Plan") and First Amended Disclosure
Statement (the "Disclosure Statement") with the Bankruptcy Court.
WHEREAS, the parties entered into a Subscription Agreement,
dated as of January 20, 2000 (the "Initial Agreement"),with respect to the
purchase and sale of certain equity interests in the Company in accordance with
the terms of the Plan.
WHEREAS, a hearing on the confirmation of the Plan was held on
January 20, 2000 and the Plan, as modified by the Confirmation Order, was
confirmed by the Bankruptcy Court pursuant to an order entered January 21, 2000
(the "Confirmation Order").
WHEREAS, the parties desire to amend and restate the Initial
Agreement in its entirety in order to clarify and modify various provisions
contained therein.
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WHEREAS, this Agreement is being entered into in accordance
with the terms of the Plan, such terms outlining the investment of approximately
$30 million in the Company by certain persons or entities (collectively, the
"New Money Investors") in order to acquire seven million shares of the Company's
New Class B Common Stock (as defined in the Plan) to be issued upon consummation
of the Plan.
WHEREAS, the New Money Investor desires to purchase from the
Company, and the Company desires to issue and sell to the New Money Investor,
2,333,341 shares of the Company's New Class B Common Stock, par value $0.01 per
share, (the "Shares"), in a transaction exempt from registration under state and
federal securities laws, in accordance with the terms and conditions set forth
in this Agreement.
NOW THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements hereinafter set forth, the parties hereby agree
as follows:
1. SALE AND PURCHASE. Subject to the terms and conditions
hereof, and in reliance on the respective representations, warranties and
covenants of the parties contained herein, the Company hereby agrees to sell the
Shares to the New Money Investor, and the New Money Investor hereby agrees to
purchase the Shares from the Company.
2. PURCHASE PRICE, ESCROW AND CLOSING.
2.1 The aggregate purchase price for the Shares is Ten
Million Dollars ($10,000,000.00) (approximately $4.2857 per Share), payable by
bank wire transfer of immediately available funds. The New Money Investor agrees
that said purchase price shall be deposited in an interest bearing escrow
account (the "Escrow Account") with Gray, Harris & ▇▇▇▇▇▇▇▇, P.A. acting as
escrow agent, within five (5) business days of the Company's request for such
deposit. The parties further agree that the New Money Investor has previously
deposited approximately One Million Six Hundred Sixty-Six Thousand Six Hundred
Sixty Six and 67/100 Dollars ($1,666,666.67) as a good faith deposit with the
escrow agent and that such sum shall be applied toward the purchase price.
2.2 In accordance with the terms hereof, all monies
deposited into the Escrow Account (the "Escrowed Funds") shall be released to
the Company on that date (the "Closing Date") which is on or after the Effective
Date of the Plan (as such date is defined in the Plan); provided, that all of
the following conditions have been satisfied:
(i) all modifications to the Plan subsequent to the
date of this Agreement have been approved by the New Money Investor;
(ii) the Company has delivered to the New Money
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Investor, or its designee, stock certificates representing the Shares, other
than the Celebrity Shares (as defined herein) (the "Delivered Shares");
(iii) the Company and the New Money Investor have
entered into a Registration Rights Agreement relating to the Delivered Shares
(as described in Section 4.2 hereof);
(iv) the Company and the New Money Investor have
entered into a Voting Agreement relating to the Delivered Shares (as described
in Section 4.3 hereof);
(v) the Company shall have delivered a certificate to
the New Money Investor representing that the representations and warranties of
the Company under this Agreement shall be true and correct in all material
respects when made and shall continue to be true and correct as of the Closing
Date as though such representations and warranties were made on the Closing
Date, and that the Company has complied with all covenants required of the
Company under this Agreement; and
(vi) the Company (and any other appropriate parties)
shall have delivered a certificate to the New Money Investor representing that
the Plan has been declared effective and that all conditions to the
effectiveness of the Plan have been satisfied or otherwise waived.
2.3 Unless otherwise agreed to between the parties, in the
event the Effective Date has not occurred by _______________, 2000, the Escrowed
Funds (and all interest accruing thereon) shall be returned to the New Money
Investor.
2A. CELEBRITY SHARES AND DELIVERY. The New Money Investor acknowledges
that the terms of the Plan contemplate the New Money Investors agreeing to allow
the Company to redirect up to approximately one million of their seven million
shares of New Class B Common Stock to celebrities in consideration for their
involvement with the Company. Consequently, the New Money Investor agrees and
acknowledges that the Company will withhold from delivery to the New Money
Investor approximately fourteen and 29/100 percent (14.29%) of the Shares (the
"Celebrity Shares") in order to deliver the Celebrity Shares to certain
celebrities and other parties in consideration for their involvement with the
Company. Such delivery shall be at the discretion of the Company, and the New
Money Investor shall not be entitled to the return of any of the Celebrity
Shares. The New Money Investor also acknowledges that under the terms of the
Company's Restated Certificate of Incorporation and Bylaws, upon delivery of the
Celebrity Shares to such celebrities and other parties, such shares shall
automatically convert to an equal number of the Company's New Class A Common
Stock (as defined in the Plan).
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3. NEW MONEY INVESTOR'S REPRESENTATIONS AND WARRANTIES. The New Money
Investor represents and warrants to the Company as follows:
3.1 Residence. The New Money Investor's principal residence
or principal office is as shown next to the New Money Investor's signature
hereto.
3.2 Investment Representation. The New Money Investor is
acquiring the Shares for its own account and not on behalf of other persons and
for investment purposes only and not with a view to or for resale or
distribution of the Shares; the New Money Investor has no contract, agreement or
arrangement with any person or entity, to sell, transfer, or pledge to such
person or entity, the Shares nor has any present intention of distributing the
Shares or of selling the Shares under any contract, agreement, or arrangement.
3.3 Access to Information.
(i) The New Money Investor has had an opportunity to
ask questions of, and receive answers from, appropriate executive officers of
the Company concerning the Company and the terms and conditions of the issuance
of the Shares.
(ii) The New Money Investor has had access to full
and fair disclosure of all material information concerning the Company,
including, but not limited to, the Plan, the Disclosure Statement, all material
books and records of the Company and all material contracts and documents
relating to the sale and purchase of the Shares.
(iii) The Company has made available for inspection
all material documents relating to the Company's business and has not refused in
any way to permit the New Money Investor to inspect any document requested by
the New Money Investor.
3.4 Suitability.
(i) The New Money Investor is an "accredited
investor" within the meaning of Regulation D promulgated under the Securities
Act of 1933, as amended (the "Act"). If the New Money Investor is an individual,
the New Money Investor has adequate means for providing for his/her current
anticipated needs and personal contingencies without respect to his/her
investment in the Company and any income therefrom, if any, and does not
anticipate any need to sell, assign, transfer or hypothecate his/her interest in
the Shares purchased by him/her in the foreseeable future.
(ii) The New Money Investor also has such knowledge
and experience in financial and business matters as to be capable of evaluating
the merits and risks of investing in the Shares.
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3A. COMPANY REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to the New Money Investor as follows:
3A.1 Organization; Authorization and Validity of Agreement.
The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has the corporate power to
enter into this Agreement and to carry out its obligations hereunder. The
execution and delivery of this Agreement and the performance of the Company's
obligations hereunder have been, or will have been on the Closing Date, duly
authorized by the Board of Directors of the Company and/or the Bankruptcy Court,
and no other corporate proceedings on the part of the Company are necessary to
authorize such execution, delivery and performance. This Agreement has been duly
executed by the Company and is the legal, valid and binding obligation of the
Company.
3A.2 Capitalization. On the Effective Date and the Closing
Date, there shall be approximately ten million (10,000,000) shares of New Class
A Common Stock and New Class B Common Stock, in the aggregate, issued and
outstanding, with such number including the Celebrity Shares. All of the issued
and outstanding shares of New Class A Common Stock and New Class B Common Stock
have been, or will be on the Effective Date duly authorized, validly issued,
fully paid, and nonassessable. Except as provided in the Plan: (i) there are no
outstanding or authorized options, warrants, purchase rights, subscription
rights, conversion rights, exchange rights, or other contracts or commitments
that could require the Company to issue, sell, or otherwise cause to become
outstanding any of its capital stock and (ii) there are no outstanding or
authorized stock appreciation, phantom stock, profit participation, or similar
rights with respect to the Company.
3A.3 No Conflict or Violation. The execution, delivery and
performance by the Company of this Agreement do not and will not violate or
conflict with any provision of the amended certificate of incorporation or
by-laws of the Company, and do not and will not violate any provision of any
agreement or instrument to which the Company is a party or by which it is bound,
or any order, judgment or decree of any court or other governmental or
regulatory authority to which the Company is subject.
3A.4 Title. Subject only to the retention of the Celebrity
Shares by the Company in accordance with Section 2A hereof (i) the Shares are
and, as of the Closing Date, will be legally and beneficially owned by the New
Money Investor, and (ii) the Shares will be, on the Closing Date, free from and
unaffected by any option or right to acquire, interest or other equity or
encumbrance whatsoever in favor of any other person.
4. NEW MONEY INVESTOR'S ACKNOWLEDGMENTS. The New Money Investor hereby
acknowledges and agrees:
4.1 Restrictions. The Shares purchased pursuant to this
Agreement have been acquired pursuant to certain investment representations by
the New
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Money Investor and shall not be sold, pledged, hypothecated, donated or
otherwise transferred, whether or not for consideration, by the New Money
Investor, and the Company may not permit the transfer of such Shares, except
upon the registration of the Shares under the Act and any applicable state
securities laws, or issuance to the Company of a favorable opinion of counsel
satisfactory to counsel for the Company, or the submission to the Company of
such other evidence as may be satisfactory to counsel for the Company, in any
case, to the effect that any such transfer shall not be in violation of the Act
and any applicable state securities laws. The New Money Investor acknowledges
and agrees that a conspicuous and appropriate legend shall be placed on any
certificate or certificates delivered to it in connection with this Agreement in
substantially the following form:
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED
PURSUANT TO AN INVESTMENT REPRESENTATION ON THE PART OF THE
PURCHASER HEREOF AND SHALL NOT BE SOLD, PLEDGED, HYPOTHECATED,
DONATED, OR OTHERWISE TRANSFERRED, WHETHER OR NOT FOR
CONSIDERATION, BY THE PURCHASER EXCEPT UPON THE REGISTRATION
OF THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR THE ISSUANCE TO THE COMPANY OF A FAVORABLE
OPINION OF COUNSEL, SATISFACTORY TO COUNSEL FOR THE COMPANY,
OR THE SUBMISSION TO THE COMPANY OF SUCH OTHER EVIDENCE AS MAY
BE SATISFACTORY TO SUCH COUNSEL, IN ANY CASE TO THE EFFECT
THAT ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE ACT
AND APPLICABLE STATE SECURITIES LAWS. THE SECURITIES
REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE ACT OR
ANY STATE SECURITIES LAWS.
The certificates will also bear any other legends required by
applicable securities laws.
4.2 Registration. The parties acknowledge and agree that in
connection with this Agreement, and in accordance with the terms of the Plan,
the parties shall enter into a Registration Rights Agreement simultaneously
herewith (the "Registration Agreement"), providing for the filing of a "shelf"
registration statement with the Securities and Exchange Commission covering the
resale of the Delivered Shares. The registration of the Delivered Shares shall
be in accordance with the terms of the Registration Agreement.
4.3 Voting Agreement. The parties acknowledge and agree
that in connection with this Agreement, and in accordance with the terms of the
Plan, the
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parties shall enter into a Voting Agreement simultaneously herewith
(the "Voting Agreement"), providing for the election of certain directors of the
Company. The New Money Investor shall be required to vote the Delivered Shares
in accordance with the terms of the Voting Agreement.
4.4 Operating History. The Company is in the process of
emerging from Chapter 11 bankruptcy protection and does not have a recent
history of profitable operations. The New Money Investor acknowledges that the
ownership of the Shares involves a high degree of risk of loss of the New Money
Investor's entire investment. The New Money Investor has made such investigation
of the business and prospects of the Company as it deems adequate and
specifically recognizes there is no assurance of any income from this
investment.
5. INDEMNIFICATION. In the event any litigation or controversy arises
out of or in connection with this Agreement, the New Money Investor agrees that
in consideration for the issuance and transfer of the Shares, the New Money
Investor will indemnify the Company, and any officer, director, employee, agent,
or any other person controlling any of them against all liabilities, damages,
expenses, or claims, including reasonable attorneys' fees, expenses and costs,
including those associated with any appellate or post-judgment collection
proceedings, incurred by the Company or such persons, if such liabilities,
damages or claims arise from a misrepresentation or a breach of warranty made by
the New Money Investor in connection with this Agreement.
6. NOTICES. Any and all notices, designations, consents, offers,
acceptances, or any other communication provided for herein shall be given in
writing by registered or certified mail, which shall be addressed to the
addresses of the parties set forth herein, or, if none, to the last known
address of the addressee.
7. INVALID PROVISION. The invalidity or unenforceability of any term or
provision of this Agreement or the nonapplication of any such term or provision
to any person or circumstance shall not impair or affect the remainder of this
Agreement, and the remaining terms and provisions hereof shall not be
invalidated, but shall remain in full force and effect and shall be construed as
if such invalid, unenforceable, or nonapplicable provision were omitted.
8. WAIVER OR MODIFICATION. No waiver or modification of this Agreement
or of any covenant, condition or limitation herein contained shall be valid
unless in writing and duly executed by the party to be charged therewith.
Furthermore, no evidence of any waiver or modification shall be offered or
received in evidence in any proceeding, arbitration or litigation between the
parties arising out of or affecting this Agreement, or the rights or obligations
of any party hereunder, unless such waiver or modification is in writing and
duly executed as aforesaid. The provision of this paragraph may not be waived
except as herein set forth.
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9. COMPLETE AGREEMENT. This Agreement constitutes the entire agreement
of the parties hereto with respect to the subject matter of this Agreement and
supersedes any and all previous agreements between the parties, whether written
or oral, with respect to such subject matter (including the Initial Agreement).
10. APPLICABLE LAW AND BINDING EFFECT. This Agreement shall be
construed and regulated under and by the laws of the State of Florida, U.S.A.,
excluding the choice of law rules thereof, and shall inure to the benefit of and
be binding upon the parties hereto and their respective heirs, personal
representatives, successors and assigns. All references herein to "Dollars" and
"$" shall refer to United States Dollars.
11. ARBITRATION. In the event a dispute arises under this Agreement
which cannot be resolved, such dispute shall be submitted to arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association then in effect. All such arbitration shall take place at the office
of the American Arbitration Association located in Orlando, Florida. The award
or decision rendered by the arbitrator(s) (including an allocation of the costs
of arbitration) shall be final, binding and conclusive and judgment may be
entered upon such award by any court. The arbitration provisions of this
Agreement shall not prevent any party from obtaining injunctive relief from a
court of competent jurisdiction to enforce the obligations of the other party
hereunder for which such party may require provisional relief pending a decision
on the merits by the arbitrator(s). The arbitrator(s) shall have authority to
award any remedy or relief that a court of the State of Florida could grant in
conformity to applicable law, including the authority to award attorneys' fees
or punitive damages. If any party to this Agreement brings an arbitration or
action to enforce its rights under this Agreement, the prevailing party shall be
entitled to recover its costs and expenses, including without limitation
reasonable attorneys' fees and fees of experts, incurred in connection with such
action, including any appeal of such action.
12. SECTION AND PARAGRAPH HEADINGS. Section and paragraph headings used
throughout this Agreement are for reference and convenience and in no way
define, limit or describe the scope or intent of this Agreement or affect is
provisions.
13. MULTIPLE COPIES OR COUNTERPARTS OF AGREEMENT. The original and one
or more copies of this Agreement may be executed by one or more of the parties
hereto. In such event, all of such executed copies shall have the same force and
effect as the executed original and all of such counterparts taken together
shall have the effect of a fully executed original.
14. NUMBER AND GENDER. Whenever used herein, singular numbers shall
include the plural, the plural the singular, and the use of any gender shall
include all genders.
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15. SURVIVAL. The warranties, representations and acknowledgments
contained in this Agreement shall survive execution of this Agreement by the
parties hereto and issuance of the Shares by the Company to the New Money
Investor. Notwithstanding any investigation made by or on behalf of the New
Money Investor or the Company, whether before or after the date hereof, the New
Money Investor and the Company shall be entitled to rely upon the respective
representations, warranties and acknowledgments given or made by each to the
other herein.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement on the day and year first above written.
NEW MONEY INVESTOR:
▇▇▇▇▇ Trust
---------------------------------
Entity Name, if any
Address:
By: Lauren Investments Holdings Limited
Title: Trustee
--------------------------
__________________________
__________________________ By:_____________________________
Name:___________________________
Title:____________________________
By:_____________________________
Name:___________________________
Title:____________________________
COMPANY:
Address:
Planet Hollywood International, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------ By:___________________________
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: ________________________
------------------------
Title: ________________________
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