SC 13D

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

SOLE VOTING POWER

0

SHARED VOTING POWER

1,250,000 (See Items 3, 4, 5 and 6)

SOLE DISPOSITIVE POWER

0

SHARED DISPOSITIVE POWER

1,250,000 (See Items 3, 4, 5 and 6)

0001193125-20-144011.txt : 20200515 0001193125-20-144011.hdr.sgml : 20200515 20200515162433 ACCESSION NUMBER: 0001193125-20-144011 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20200515 DATE AS OF CHANGE: 20200515 GROUP MEMBERS: BJ'S ACT III, LLC GROUP MEMBERS: RONALD M. SHAICH GROUP MEMBERS: RONALD M. SHAICH 2000 REVOCABLE TRUST GROUP MEMBERS: RONALD M. SHAICH 2018 CHILDREN'S TRUST GROUP MEMBERS: SC 2018 TRUST, LLC GROUP MEMBERS: SGC TRUST, LLC GROUP MEMBERS: SHAICH GRANDCHILDREN'S TRUST SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BJs RESTAURANTS INC CENTRAL INDEX KEY: 0001013488 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 330485615 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-47661 FILM NUMBER: 20885730 BUSINESS ADDRESS: STREET 1: 7755 CENTER AVENUE STREET 2: SUITE 300 CITY: HUNTINGTON BEACH STATE: CA ZIP: 92647 BUSINESS PHONE: (714) 500-2440 MAIL ADDRESS: STREET 1: 7755 CENTER AVENUE STREET 2: SUITE 300 CITY: HUNTINGTON BEACH STATE: CA ZIP: 92647 FORMER COMPANY: FORMER CONFORMED NAME: CHICAGO PIZZA & BREWERY INC DATE OF NAME CHANGE: 19960614 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Act III Holdings LLC CENTRAL INDEX KEY: 0001750383 IRS NUMBER: 845029958 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 23 PRESCOTT STREET CITY: BROOKLINE STATE: MA ZIP: 02446 BUSINESS PHONE: 6172834131 MAIL ADDRESS: STREET 1: 23 PRESCOTT STREET CITY: BROOKLINE STATE: MA ZIP: 02446 SC 13D 1 d901752dsc13d.htm SC 13D SC 13D

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED

PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED

PURSUANT TO RULE 13d-2(a)

Under the Securities Exchange Act of 1934

(Amendment No. __)*

BJ’s Restaurants, Inc.

(Name of Issuer)

Common Stock

(Title of Class of Securities)

09180C106

(CUSIP Number)

Ronald M. Shaich

23 Prescott St.

Brookline, MA 02246

617-991-8038

With a copy to:

Francis J. Aquila, Esq.

Audra D. Cohen, Esq.

Sullivan & Cromwell LLP

125 Broad Street

New York, New York 10004

(212) 558-4000

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

May 5, 2020

(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 that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ☐

*	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 the 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 (the “Exchange Act”) or otherwise subject to the liabilities of that section of the Exchange Act but shall be subject to all other provisions of the Exchange Act (however, see the Notes).

CUSIP No. 09180C106


1		NAMES OF REPORTING PERSONS BJ’s Act III, LLC
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☐ (b) ☐
3		SEC USE ONLY
4		SOURCE OF FUNDS (SEE INSTRUCTIONS) OO (see Item 3)
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E) ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

Based on a total of 23,136,229 shares of Common Stock (as defined herein), which is calculated based upon the sum of (i) 22,261,229 shares of Common Stock issued and outstanding as of May 8, 2020 as disclosed by the Issuer (as defined herein) in its quarterly report on Form 10-Q for the quarterly period ending March 31, 2020 (the “10-Q”) and (ii) 875,000 shares of Common Stock issuable upon the exercise in full of the Warrant (as defined herein).

CUSIP No. 09180C106


1		NAMES OF REPORTING PERSONS Act III Holdings, LLC
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☐ (b) ☐
3		SEC USE ONLY
4		SOURCE OF FUNDS (SEE INSTRUCTIONS) OO (see Item 3)
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E) ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

Based on a total of 23,136,229 shares of Common Stock (as defined herein), which is calculated based upon the sum of (i) 22,261,229 shares of Common Stock issued and outstanding as of May 8, 2020 as disclosed by the Issuer (as defined herein) in the 10-Q and (ii) 875,000 shares of Common Stock issuable upon the exercise in full of the Warrant (as defined herein).

CUSIP No. 09180C106


1		NAMES OF REPORTING PERSONS SGC Trust, LLC
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☐ (b) ☐
3		SEC USE ONLY
4		SOURCE OF FUNDS (SEE INSTRUCTIONS) OO (see Item 3)
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E) ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

Based on a total of 23,136,229 shares of Common Stock (as defined herein), which is calculated based upon the sum of (i) 22,261,229 shares of Common Stock issued and outstanding as of May 8, 2020 as disclosed by the Issuer (as defined herein) in the 10-Q and (ii) 875,000 shares of Common Stock issuable upon the exercise in full of the Warrant (as defined herein).

CUSIP No. 09180C106


1		NAMES OF REPORTING PERSONS SC 2018 Trust, LLC
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☐ (b) ☐
3		SEC USE ONLY
4		SOURCE OF FUNDS (SEE INSTRUCTIONS) WC (see Item 3)
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E) ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

Based on a total of 23,136,229 shares of Common Stock (as defined herein), which is calculated based upon the sum of (i) 22,261,229 shares of Common Stock issued and outstanding as of May 8, 2020 as disclosed by the Issuer (as defined herein) in the 10-Q and (ii) 875,000 shares of Common Stock issuable upon the exercise in full of the Warrant (as defined herein).

CUSIP No. 09180C106


1		NAMES OF REPORTING PERSONS The Ronald M. Shaich 2000 Revocable Trust
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☐ (b) ☐
3		SEC USE ONLY
4		SOURCE OF FUNDS (SEE INSTRUCTIONS) OO (see Item 3)
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E) ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION Massachusetts

Based on a total of 23,136,229 shares of Common Stock (as defined herein), which is calculated based upon the sum of (i) 22,261,229 shares of Common Stock issued and outstanding as of May 8, 2020 as disclosed by the Issuer (as defined herein) in the 10-Q and (ii) 875,000 shares of Common Stock issuable upon the exercise in full of the Warrant (as defined herein).

CUSIP No. 09180C106


1		NAMES OF REPORTING PERSONS The Shaich Grandchildren’s Trust
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☐ (b) ☐
3		SEC USE ONLY
4		SOURCE OF FUNDS (SEE INSTRUCTIONS) OO (see Item 3)
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E) ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

Based on a total of 23,136,229 shares of Common Stock (as defined herein), which is calculated based upon the sum of (i) 22,261,229 shares of Common Stock issued and outstanding as of May 8, 2020 as disclosed by the Issuer (as defined herein) in the 10-Q and (ii) 875,000 shares of Common Stock issuable upon the exercise in full of the Warrant (as defined herein).

CUSIP No. 09180C106


1		NAMES OF REPORTING PERSONS Ronald M. Shaich 2018 Children’s Trust
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☐ (b) ☐
3		SEC USE ONLY
4		SOURCE OF FUNDS (SEE INSTRUCTIONS) OO (see Item 3)
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E) ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

Based on a total of 23,136,229 shares of Common Stock (as defined herein), which is calculated based upon the sum of (i) 22,261,229 shares of Common Stock issued and outstanding as of May 8, 2020 as disclosed by the Issuer (as defined herein) in the 10-Q and (ii) 875,000 shares of Common Stock issuable upon the exercise in full of the Warrant (as defined herein).

CUSIP No. 09180C106


1		NAMES OF REPORTING PERSONS Ronald M. Shaich
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☐ (b) ☐
3		SEC USE ONLY
4		SOURCE OF FUNDS (SEE INSTRUCTIONS) OO (see Item 3)
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E) ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION United States of America

Based on a total of 23,136,229 shares of Common Stock (as defined herein), which is calculated based upon the sum of (i) 22,261,229 shares of Common Stock issued and outstanding as of May 8, 2020 as disclosed by the Issuer (as defined herein) in the 10-Q and (ii) 875,000 shares of Common Stock issuable upon the exercise in full of the Warrant (as defined herein).

Item 1.

Security and Issuer

This Schedule 13D relates to the common stock, no par value (the “Common Stock”), of BJ’s Restaurants, Inc., a California corporation (the “Issuer”). The principal executive office of the Issuer is located at 7755 Center Avenue, Suite 300, Huntington Beach, CA 92647.

Item 2.

Identity and Background.

(a) This statement is being filed jointly by Ronald M. Shaich, BJ’s Act III, LLC (“BJ’s LLC”), Act III Holdings, LLC (“Act III LLC”), SGC Trust LLC (“SGC LLC”), SC 2018 Trust, LLC (“SC LLC”), The Ronald M. Shaich 2000 Revocable Trust (“RMS Trust”), The Shaich Grandchildren’s Trust (“Grandchildren’s Trust”) and Ronald M. Shaich 2018 Children’s Trust (“Children’s Trust”) (collectively, the “Reporting Persons”). The Reporting Persons have entered into a joint filing agreement, dated as of May 15, 2020, a copy of which is attached hereto as Exhibit 99.1.

Pursuant to the Operating Agreement of BJ’s LLC, the business and affairs of BJ’s LLC are controlled by Act III LLC, the sole holder of Class A Units of BJ’s LLC. The members of Act III LLC are the RMS Trust, SC LLC and SGC LLC. Mr. Shaich is the sole trustee of the RMS Trust. The sole member of SC LLC is the Children’s Trust. Mr. Shaich is the Investment Trustee of the Children’s Trust and has all voting and dispositive power over the assets of the Children’s Trust. SC LLC is managed by a board of managers, who pursuant to the Operating Agreement of SC LLC, have delegated all voting and dispositive power over the assets of SC LLC to Mr. Shaich as Investment Trustee of the Children’s Trust. The sole member of SGC LLC is the Grandchildren’s Trust. Mr. Shaich is the Investment Trustee of the Grandchildren’s Trust and has all voting and dispositive power over the assets of the Grandchildren’s Trust. SGC LLC is managed by a board of managers who, pursuant to the Operating Agreement of SGC LLC, have delegated all voting and dispositive power over the assets of SGC LLC to Mr. Shaich as Investment Trustee of the Grandchildren’s Trust.

Annex A hereto sets forth each executive officer, manager or controlling person, as applicable of the Reporting Persons (collectively, the “Covered Persons”), and, as applicable the residence or business address and present principal occupation or employment of each of the Covered Persons.

Each of the Reporting Persons other than (i) SC LLC, with respect to the Common Stock directly held by SC LLC, (ii) BJ’s LLC, with respect to the Common Stock directly held by BJ’s LLC and the Common Stock issuable upon exercise of the Warrant directly held by BJ’s LLC and (iii) Mr. Shaich, with respect to the Common Stock directly held by SC LLC and BJ’s LLC and the Common Stock issuable upon exercise of the Warrant, expressly disclaims beneficial ownership of the Common Stock for purposes of Section 13(d) of the Exchange Act and the rules under Section 13(d) of the Exchange Act. Each of the Covered Persons expressly disclaims beneficial ownership of the Common Stock (other than any Common Stock directly held by such Covered Person) for purposes of Section 13(d) of the Exchange Act and the rules under Section 13(d) of the Exchange Act.

(b) The address of the principal office of each of the Reporting Persons is 23 Prescott St., Brookline, MA, 02446. The address of the principal office of each of the Covered Persons is set forth in Annex A hereto.

(c) The Reporting Persons are either holding companies or trusts without operations, or are principally engaged in the business of acquiring, holding and disposing of interests in various companies for investment purposes. The principal occupation or employment of each of the Covered Persons is set forth in Annex A hereto.

(d) During the last five years, none of the Reporting Persons or, to the knowledge of each Reporting Persons, any of the Covered Persons have been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors).

(e) During the last five years, none of the Reporting Persons or, to the knowledge of each Reporting Persons, any of the Covered Persons have been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which proceeding he or she was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

(f) SC LLC, BJ’s LLC, Act III LLC and SGC LLC are limited liability companies organized under the laws of the State of Delaware. The Children’s Trust and Grandchildren’s Trust are trusts formed under the laws of the State of Delaware. The RMS Trust is a trust formed under the laws of the State of Massachusetts. Mr. Shaich is a citizen of the United States.

Item 3.

Source and Amount of Funds or Other Consideration

The shares of Common Stock described in this Schedule 13D were acquired initially by SC LLC as follows: (i) February 28, 2020 – 60,000 shares of Common Stock were acquired for an aggregate purchase price of $1,963,848; (ii) March 2, 2020 – 68,000 shares of Common Stock were acquired for an aggregate purchase price of $2,291,866, (iii) March 3, 2020 – 22,280 shares of Common Stock were acquired for an aggregate purchase price of $743,658 and (iv) May 5, 2020 – 375,000 shares of Common Stock and the Warrant were acquired for an aggregate purchase price of $7,500,000. The total aggregate consideration paid by the Reporting Persons for the Common Stock and the Warrant is $12,499,372. In May 2020, SC LLC transferred 375,000 shares of Common Stock and the Warrant to BJ’s LLC. These purchases by SC LLC were funded using cash on hand.

Item 4.

Purpose of Transaction.

The Reporting Persons believe that the Issuer is an attractive investment opportunity.

The Reporting Persons intend to review their investment in the Issuer on a continuing basis. In connection therewith, and with a view of enhancing shareholder value, the Reporting Persons and their respective representatives expect, from time to time, to engage in discussions with the Issuer’s management and the board of directors of the Issuer (the “Issuer Board”), with other current or prospective shareholders and other third parties regarding business strategy, operating performance and corporate governance of the Issuer, in each case subject to the terms of the IRA (as defined below). The Reporting Persons may exchange information with the Issuer or other persons pursuant to confidentiality or similar agreements. The Reporting Persons intend to consider, explore and/or develop plans and/or make proposals with respect to, among other things, the foregoing matters, as well as pursue other plans or proposals that relate to or could result in any of the matters set forth in clauses (a)-(j) of Item 4 of Schedule 13D. The Reporting Persons may also take steps to explore and prepare for various plans and actions regarding the foregoing matters, before forming an intention to engage in such plans or actions.

Depending on various factors, including, without limitation, the outcome of any discussions referenced above, the Issuer’s financial position, results and strategic direction, actions taken by the Issuer’s management and the Issuer Board, price levels of the Common Stock, other investment opportunities available to the Reporting Persons, conditions in the securities market and general economic and industry conditions, the Reporting Persons may in the future take such actions with respect to their investment in the Issuer as they deem appropriate, including, without limitation, acquiring additional shares of Common Stock, including through exercise of the Warrant and/or other equity, debt, notes, instruments or other securities of the Issuer (collectively, “Securities”) or disposing of some or all the Securities beneficially owned by them, in the public market, in privately negotiated transactions or otherwise with respect to their investment in the Issuer, in each case subject to the terms of the IRA and pre-clearance policies of the Issuer applicable to any Reporting Persons or Covered Persons.

The information set forth in Item 6 hereto is incorporated by reference into this Item 4.

Item 5.

Interest in Securities of the Issuer.

(a) As of the date that this Schedule 13D is filed, (i) SC LLC directly holds 150,280 shares of Common Stock and (ii) BJ’s LLC directly holds 375,000 shares of Common Stock and a five-year Common Stock Purchase Warrant to purchase 875,000 shares of Common Stock with an exercise price of $27.00 per share, subject to customary adjustments, including anti-dilution adjustments for below-market issuances (the “Warrant”). As a result of the relationships described in Item 2, (i) Act III LLC, SGC LLC, the RMS Trust and the Grandchildren’s Trust may be deemed to directly or indirectly beneficially own the shares of Common Stock, including the shares of Common Stock issuable upon exercise of the Warrant, directly held by BJ’s LLC and (ii) SC LLC, the Children’s Trust and Mr. Shaich may be deemed to directly or indirectly beneficially own the shares of Common Stock, including the shares of Common Stock issuable upon exercise of the Warrant, directly held by both SC LLC and BJ’s LLC. See also Items 11 and 13 of the cover pages to this Schedule 13D and Annex A hereto for the aggregate number of shares of Common Stock and the percentage of the Common Stock beneficially owned by each of the Reporting Persons and the Covered Persons.

Pursuant to Rule 13d-3(d)(1)(i) under the Exchange Act, the beneficial ownership disclosed on the cover pages of this Schedule 13D includes shares of Common Stock that are issuable upon exercise of the Warrant. The applicable ownership percentages reported in this Schedule 13D are based on (i) 22,261,229 shares of Common Stock outstanding as of May 8, 2020 as disclosed by the Issuer in the 10-Q plus (ii) 875,000 shares of Common Stock issuable upon the exercise in full of the Warrant.

(b) See Items 7 through 10 of the cover pages to this Schedule 13D and Annex A hereto for the aggregate number of shares of Common Stock deemed to be beneficially owned by each of the Reporting Persons and the Covered Persons as to which there is sole power to vote or to direct the vote, shared power to vote or direct the vote, sole power to dispose or to direct the disposition, or shared power to vote or to direct the vote and sole or shared power to dispose or to direct the disposition.

(c) There have been no transactions in the Common Shares by the Reporting Persons, or to the knowledge of the Reporting Persons, any Covered Person, within the last 60 days other than as described in this Schedule 13D.

(d) Not applicable.

(e) Not applicable.

Item 6.

Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

Securities Purchase Agreement

On May 1, 2020, the Issuer and SC LLC entered into a purchase agreement (the “Purchase Agreement”), pursuant to which the Company agreed to sell 375,000 shares of Common Stock (the “Purchased Shares”) to SC LLC for $20.00 per share in a private placement under Section 4(a)(2) of the Securities Act of 1933, as amended, for a gross purchase price of $7,500,000 and issue the Warrant to SC LLC. The closing of the purchase and sale and the issuance of the Warrant contemplated by the Purchase Agreement occurred on May 5, 2020 after the conditions precedent thereto were satisfied pursuant to the terms of the Purchase Agreement (the “Closing”).

The Purchase Agreement contains customary representations, warranties, and covenants of the Issuer and SC LLC.

Reporting Persons Internal Reorganization and Contribution

Following the Closing, SC LLC contributed the Purchased Shares and the Original Warrant to BJ’s LLC, a newly formed wholly owned subsidiary of SC LLC (the “Contribution”). In connection with the Contribution, BJ’s LLC executed joinders to the IRA and Registration Rights Agreement (as defined below). Following the Contribution, SC LLC transferred ownership of BJ’s LLC to Act III LLC. In addition, in connection with the Contribution, on May 15, 2020, the Issuer cancelled the Original Warrant (as defined herein) and issued the Warrant to BJ’s LLC.

Registration Rights Agreement

Pursuant to the Purchase Agreement, on May 5, 2020, the Issuer and SC LLC entered into a Registration Rights Agreement (the “Registration Rights Agreement”), pursuant to which, among other things, the Issuer granted SC LLC certain registration rights. As disclosed above, BJ’s LLC executed a joinder to the Registration Rights Agreement in connection with the Contribution. Under the Registration Rights Agreement, the Issuer is required to use its reasonable best efforts to cause the registration of the Purchased Shares and the shares of Common Stock issuable upon exercise of the Warrant.

Investor Rights Agreement

Pursuant to the Purchase Agreement, on May 5, 2020, the Issuer and SC LLC entered into an Investor Rights Agreement (the “IRA”). As disclosed above, BJ’s LLC executed a joinder to the IRA in connection with the Contribution. Pursuant to the IRA, SC LLC and any transferees of the Securities (as defined in the Purchase Agreement) who agree to become parties to the IRA (together, the “Investors”) have certain rights and obligations, including the following:

Board Nominee. The Investors have the right to designate one member (the “Act III Director”) to the Issuer Board. Keith Pascal has been selected as the initial Act III Director, subject to formal approval by the Issuer Board. The Act III Director is required to meet certain criteria in order to be seated as or remain a member of the Issuer Board. The Issuer Board will be required to name the Act III Director as a nominee in each election of directors at a meeting of shareholders. The Investors shall retain the right to designate the Act III Director for so long as the Investors collectively own the lesser of 4.25% of the then outstanding Common Stock or rights convertible or exercisable into Common Stock (on an as-converted or exercised basis) or 187,500 shares of Common Stock (the “Ownership Threshold”).

Voting Agreement. Under the terms of the IRA, for so long as the Investors have the right to designate or nominate a director to the Issuer Board, they have agreed to vote any shares of Common Stock held by them (i) in favor of each director nominated or recommended by the Issuer Board for election at any meeting of shareholders, (ii) in favor of the Issuer’s “say-on-pay” proposal, and (iii) in favor of the Issuer’s proposal for ratification of the appointment of the Issuer’s independent public accounting firm.

Standstill. Until the later of three years following the date of the IRA, or at such time as the Investors no longer have the right to designate the Act III Director, subject to certain customary exceptions, the Investors are prohibited from, among other things, (i) effecting a tender offer, merger or acquisition of the Issuer, (ii) soliciting proxies or seeking a director/management change in the Issuer, and (iii) acquiring securities, assets or indebtedness of the Issuer in connection with any of the actions described in the foregoing clauses (i) and (ii) above.

Preemptive Rights. If, after the date of the IRA, the Issuer intends to issue new equity securities for cash to any person, then the Investors have the right to participate in such equity offering, subject to exceptions with respect to certain excluded securities and issuances.

Access to Information. For so long as the Investors meet the Ownership Threshold and subject to certain confidentiality obligations, the Investors shall have customary information rights under the IRA, including the right to review Issuer records and have reasonable access to the Issuer’s facilities, books and records, and personnel.

Warrant

Pursuant to the Purchase Agreement, on May 5, 2020, the Issuer issued to SC LLC a five-year Common Stock Purchase Warrant to purchase 875,000 shares of Common Stock with an exercise price of $27.00 per share, subject to customary adjustments, including anti-dilution adjustments for below-market issuances (the “Original Warrant”). In connection with the Contribution, on May 15, 2020, the Issuer cancelled the Original Warrant and issued the Warrant to BJ’s LLC. Under the terms of the Warrant and subject to customary adjustments, including anti-dilution adjustments for below-market issuances, the holder has the right to purchase up to 875,000 shares of Common Stock at a purchase price of $27.00 per share. The Warrant expires five years following issuance.

The foregoing descriptions of the Purchase Agreement, the Registration Rights Agreement, the IRA and the Warrant do not purport to be complete and are subject to, and qualified in their entirety by, the full text of the Purchase Agreement, the Registration Rights Agreement, the IRA and the Warrant which are filed as Exhibit 99.2, Exhibit 99.3, Exhibit 99.4 and Exhibit 99.5, respectively, hereto and which are incorporated herein by reference.

Item 7.

Material to be Filed as Exhibits.


Exhibit 99.1		Joint Filing Agreement, dated May 15, 2020, among the Reporting Persons.

Exhibit 99.2		Securities Purchase Agreement, dated May 1, 2020, between BJ’s Restaurants, Inc. and SC 2018 Trust, LLC (incorporated by reference to Exhibit 10.3 of the Current Report on Form 8-K, filed by BJ’s Restaurants, Inc. on May 4, 2020).

Exhibit 99.3		Registration Rights Agreement, dated as of May 5, 2020, between BJ’s Restaurants, Inc. and SC 2018 Trust, LLC.

Exhibit 99.4		Investor Rights Agreement, dated as of May 5, 2020, between BJ’s Restaurants, Inc. and SC 2018 Trust, LLC.

Exhibit 99.5		Common Stock Purchase Warrant, originally issued as of May 5, 2020, in favor of BJ’s Act III, LLC.

SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: May 15, 2020


SC 2018 TRUST, LLC

By:		/s/ Gad Liwerant
Name:		Gad Liwerant
Title:		Manager

BJ’S ACT III, LLC

By:		/s/ Ronald M. Shaich
Name:		Ronald M. Shaich
Title:		Chief Executive Officer

ACT III HOLDINGS, LLC

By:		/s/ Ronald M. Shaich
Name:		Ronald M. Shaich
Title:		Chief Executive Officer

SGC TRUST, LLC

By:		/s/ Gad Liwerant
Name:		Gad Liwerant
Title:		Manager

THE RONALD M. SHAICH 2000 REVOCABLE TRUST

By:		/s/ Ronald M. Shaich
Name:		Ronald M. Shaich
Title:		Trustee

THE SHAICH GRANDCHILDREN’S TRUST

By:		/s/ Gad Liwerant
Name:		Gad Liwerant
Title:		Trustee

RONALD M. SHAICH 2018 CHILDREN’S TRUST

By:		/s/ Gad Liwerant
Name:		Gad Liwerant
Title:		Trustee

RONALD M. SHAICH

		/s/ Ronald M. Shaich

ANNEX A

The following sets forth information with respect to the executive officers and managers of SC LLC, SGC LLC, BJ’s LLC and Act III LLC. Capitalized terms used herein without definition have the meanings assigned thereto in the Schedule 13D to which this Annex A relates. Each of the persons listed below is a citizen of the United States. Each of the persons listed below who is not a Reporting Person disclaims beneficial ownership of the shares of Common Stock reported as beneficially owned by the Reporting Persons.

SC LLC Managers

Name

Principal Occupation or
Employment

Principal Office

Number of Shares

Percent of Class

Nancy A. Shaich

Self-employed investor

23 Prescott St., Brookline, MA, 02446

—

Gad Liwerant

Self-employed businessman

16 Essex Rd., Chestnut Hill, MA 02467

—

SGC LLC Managers

Name

Principal Occupation or
Employment

Principal Office

Number of Shares

Percent of Class

Robin Antonacci

Physician

58 Stouts Rd., PO Box 144, Skillman, NJ 08558

—

Gad Liwerant

Self-employed businessman

16 Essex Rd., Chestnut Hill, MA 02467

—

BJ’s LLC Executive Officers


Name	Principal Occupation or Employment	Principal Office	Number of Shares			Percent of Class
Ronald M. Shaich	Managing Partner, Act III LLC	23 Prescott St., Brookline, MA, 02446		(1	)		(1	)
Noah Elbogen⁽³⁾	Partner, Act III LLC	23 Prescott St., Brookline, MA, 02446		58,941			(2	)
Keith Pascal⁽⁴⁾	Partner, Act III LLC	23 Prescott St., Brookline, MA, 02446		1,000			(2	)

Act III LLC Executive Officers


Name	Principal Occupation or Employment	Principal Office	Number of Shares			Percent of Class
Ronald M. Shaich	Managing Partner, Act III LLC	23 Prescott St., Brookline, MA, 02446		(1	)		(1	)
Noah Elbogen⁽³⁾	Partner, Act III LLC	23 Prescott St., Brookline, MA, 02446		58,941			(2	)
Keith Pascal⁽⁴⁾	Partner, Act III LLC	23 Prescott St., Brookline, MA, 02446		1,000			(2	)

(1)	Included in the Schedule 13D to which this Annex A relates.

(2)	Less than 1% of class.

(3)	Mr. Elbogen holds the Shares solely in his individual capacity and his capacity as a director of the Issuer. Mr. Elbogen has sole voting power and sole dispositive power with respect to the shares of Common Stock beneficially owned.

(4)

Mr. Pascal holds the Shares solely in his individual capacity. Mr. Pascal has sole voting power and sole dispositive power with respect to the shares of Common Stock beneficially owned. In addition, Mr. Pascal has been selected as the initial Act III Director, subject to formal approval by the Issuer Board.

EX-99.1 2 d901752dex991.htm EX-99.1 EX-99.1

Exhibit 99.1

JOINT FILING AGREEMENT

The undersigned hereby agree that the foregoing statement on Schedule 13D is filed on behalf of each of the undersigned, and any amendments thereto executed by the undersigned shall be filed on behalf of each of the undersigned without the necessity of filing any additional joint filing agreement. The undersigned acknowledge that each is responsible for the timely filing of such statement on Schedule 13D and any amendments thereto, and for the completeness and accuracy of the information concerning it contained therein, but shall not be responsible for the completeness or accuracy of the information concerning the others of the undersigned, except to the extent that it knows or has reason to believe that such information is inaccurate or incomplete. This Joint Filing Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.

IN WITNESS WHEREOF, the undersigned have executed this Joint Filing Agreement as of May 15, 2020.


SC 2018 TRUST, LLC

By:		/s/ Gad Liwerant
Name:		Gad Liwerant
Title:		Manager

BJ’S ACT III, LLC

By:		/s/s Ronald M. Shaich
Name:		Ronald M. Shaich
Title:		Chief Executive Officer

ACT III HOLDINGS, LLC

By:		/s/ Ronald M. Shaich
Name:		Ronald M. Shaich
Title:		Chief Executive Officer

SGC TRUST, LLC

By:		/s/ Gad Liwerant
Name:		Gad Liwerant
Title:		Manager

THE RONALD M. SHAICH 2000 REVOCABLE TRUST

By:		/s/ Ronald M. Shaich
Name:		Ronald M. Shaich
Title:		Trustee

THE SHAICH GRANDCHILDREN’S TRUST

By:		/s/ Gad Liwerant
Name:		Gad Liwerant
Title:		Trustee


RONALD M. SHAICH 2018 CHILDREN’S TRUST

By:		/s/ Gad Liwerant
Name:		Gad Liwerant
Title:		Trustee

RONALD M. SHAICH

		/s/ Ronald M. Shaich

EX-99.3 3 d901752dex993.htm EX-99.3 EX-99.3

Exhibit 99.3

REGISTRATION RIGHTS AGREEMENT

THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of May 5, 2020, is made and entered into by and among BJ’s Restaurants, Inc., a California corporation (the “Company”), and the investors listed on the Schedule of Investors attached hereto as Schedule 1 (each, an “Investor” and collectively, the “Investors”).

WHEREAS, pursuant to the Securities Purchase Agreement by and among the Company and each of the Investors, dated as of May 1, 2020 (the “Purchase Agreement”), the Company has agreed, upon the terms and subject to the conditions of the Purchase Agreement, to issue and sell, at the Closing, to the Investors 375,000 shares of the Company’s common stock, no par value per share (the “Common Stock”);

WHEREAS, pursuant to the Common Stock Purchase Warrant (the “Warrant”) between the Company and SC 2018 Trust LLC, dated as of the date hereof (the “Warrant”), the Investors have agreed, upon the terms and subject to the conditions of the Warrant, at any time and from time to time on or prior to the close of business on May 4, 2025 but not thereafter, to subscribe for and purchase from the Company, up to 875,000 shares of the Common Stock (as subject to adjustment under the Warrant and together with any other capital stock of the Company then purchasable upon exercise of the Warrant in accordance with the terms of the Warrant, the “Warrant Shares”);

WHEREAS, in accordance with the terms of the Purchase Agreement, the Company has agreed to provide Investors certain registration rights under the Securities Act of 1933 (the “1933 Act”), and the rules and regulations thereunder, and applicable state securities laws.

NOW, THEREFORE, in consideration of the foregoing and the agreements contained in this Agreement, and intending to be legally bound by this Agreement, the Company and the Investors agree as follows:

1. Definitions. Capitalized terms used and not otherwise defined in this Agreement that are defined in the Purchase Agreement shall have the respective meanings ascribed to such terms in the Purchase Agreement. As used in this Agreement, the following terms shall have the respective meanings set forth in this Section 1:

“1933 Act” shall have the meaning set forth in the preamble of this Agreement.

“Agreement” shall have the meaning set forth in the preamble of this Agreement.

“Automatic Shelf Registration Statement” means an “automatic shelf registration statement” as defined in Rule 405 under the 1933 Act.

“Business Day” means a day that is a Monday, Tuesday, Wednesday, Thursday or Friday and is not a day on which banking institutions in New York, New York generally are authorized or obligated by law, regulation or executive order to close.

“Commission” means the United States Securities and Exchange Commission.

“Common Stock” shall have the meaning set forth in the preamble of this Agreement.

“Company” shall have the meaning set forth in the preamble of this Agreement.

“Effectiveness Deadline” means, with respect to any registration statement required to be filed to cover the resale by the Investors of the Registrable Securities pursuant to Section 2, (a) the date such registration statement is filed, if the Company is a WKSI as of such date and such registration statement is an Automatic Shelf Registration Statement eligible to become immediately effective upon filing pursuant to Rule 462 under the 1933 Act; or (b) if the Company is not a WKSI as of the date such registration statement is filed, the one hundred and twentieth (120^th) day after the date of this Agreement. If applicable, the Effectiveness Deadline with respect to the Prospectus Supplement shall be the date the Prospectus Supplement is filed.

“Effectiveness Period” shall have the meaning set forth in Section 2(b).

“Electing Investors” means, with respect to a registration, each of the Investors that has Registrable Securities directly owned by such Investor included in such registration in accordance with Sections 2 or 6, as the case may be, as communicated in writing to the Company in accordance with Sections 2(a) or 6(a), as applicable.

“Exchange Act” means the Securities Exchange Act of 1934 and the rules and regulations of the Commission thereunder.

“Existing Shelf Registration Statement” means the Company’s Registration Statement on Form S-3 (File No. 333-237813), which became effective on April 23, 2020.

“Filing Deadline” means, (i) with respect to the Prospectus Supplement, if applicable, twenty (20) calendar days following the date of this Agreement, or (ii) with respect to any registration statement required to be filed to cover the resale by Investors of the Registrable Securities pursuant to Section 2, sixty (60) calendar days following the date of this Agreement; provided that, to the extent that the Company has not been provided the information regarding the Investors and their Registrable Securities in accordance with Section 13(b) at least two (2) Business Days prior to the applicable Filing Deadline, then the such Filing Deadline shall be extended to the second Business Day following the date on which such information is provided to the Company.

“Freely Tradable” means, with respect to any security, a security that is eligible to be sold by the holder thereof without any volume or manner of sale restrictions pursuant to Rule 144.

“FINRA” means the Financial Industry Regulatory Authority, Inc.

“Indemnified Party” shall have the meaning set forth in Section 12(c).

“Indemnifying Party” shall have the meaning set forth in Section 12(c).

“Investor Indemnitee” shall have the meaning set forth in Section 12(a).

“Investors” shall have the meaning set forth in the preamble of this Agreement.

“Moving Party” shall have the meaning set forth in Section 15(d).

“Other Securities” shall have the meaning set forth in Section 6(a).

“Piggyback Notice” shall have the meaning set forth in Section 6(a).

“Piggyback Registration” shall have the meaning set forth in Section 6(a).

“prospectus” means the prospectus included in a registration statement (including a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A under the 1933 Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by a registration statement, and all other amendments and supplements to the prospectus, including post-effective amendments.

“Prospectus Supplement” means a prospectus supplement to the Existing Shelf Registration Statement that registers the resale of the Registrable Securities hereunder.

“Purchase Agreement” shall have the meaning set forth in the recitals of this Agreement.

“register,” “registered,” and “registration” refer to a registration effected by preparing and filing a registration statement with the Commission in compliance with the 1933 Act and applicable rules and regulations thereunder, and the declaration or ordering of effectiveness of such registration statement by the Commission.

“Registrable Securities” means, as of any date of determination, (a) any Common Stock issued to the Investors pursuant to the Purchase Agreement (whether or not subsequently transferred to any other Person), (b) any Common Stock issued to the Investors pursuant to the Warrant, including, for the avoidance of doubt, the Warrant Shares (whether or not such Warrant or any Warrant Shares subsequently assigned or transferred to any other Person) and (c) any securities issued as (or issuable upon the conversion or exercise of any warrant, right or other security that is issued as) a dividend, stock split, recapitalization or other distribution with respect to, or in exchange for, or in replacement of, the securities referenced in clauses (a) and (b) above; provided that the term “Registrable Securities” shall exclude in all cases any securities (i) that shall have ceased to be outstanding; or (ii) that are sold pursuant to an effective registration statement under the 1933 Act or publicly resold in compliance with Rule 144.

“Registration Expenses” means, with respect to any registration, (a) all expenses incurred by the Company in effecting any registration pursuant to this Agreement, including all registration and filing fees, printing expenses, fees and disbursements of counsel for the Company, blue sky fees and expenses; (b) all reasonable fees and expenses related to any registration of Registrable Securities by the Electing Investors (including the fees and disbursements of one legal counsel (and only one legal counsel) to the Electing Investors); and (c) all expenses of the Company’s independent accountants in connection with any regular or special reviews or audits incident to or required by any such registration; provided that Registration Expenses shall not include any Selling Expenses.

“registration statement” means any registration statement that is required to register the resale of the Registrable Securities under this Agreement, including the related prospectus and any pre- and post-effective amendments and supplements to each such registration statement or prospectus.

“Resale Shelf Registration” shall have the meaning set forth in Section 2(a).

“Resale Shelf Registration Statement” shall have the meaning set forth in Section 2(a).

“Rule 144” shall have the meaning set forth in Section 14.

“Selling Expenses” means all underwriting discounts, selling commissions and stock transfer taxes, if any, applicable to the sale of Registrable Securities by the Electing Investors and all related fees and expenses of any counsel to the Electing Investors (other than such fees and expenses included in Registration Expenses).

“Shelf Offering” shall have the meaning set forth in Section 5.

“Shelf Registration” means the Resale Shelf Registration or a Subsequent Shelf Registration, as applicable.

“Shelf Registration Statement” means the Resale Shelf Registration Statement or a Subsequent Shelf Registration Statement, as applicable.

“Subsequent Shelf Registration” shall have the meaning set forth in Section 2(c).

“Subsequent Shelf Registration Statement” shall have the meaning set forth in Section 2(c).

“Suspension Period” shall have the meaning set forth in Section 4.

“Take-Down Notice” shall have the meaning set forth in Section 5.

“TRowe” shall mean those certain funds and accounts advised by T. Rowe Price Associates, Inc., acting as investment adviser.

“TRowe Demand Registration” shall have the meaning set forth in Section 6(a).

“TRowe Registration Rights Agreement” shall mean the Registration Rights Agreement between the Company and TRowe, dated as of the date hereof.

“Underwriter Cutback” shall have the meaning set forth in Section 6(b).

“Underwritten Offering” shall have the meaning set forth in Section 3(a).

“Underwritten Offering Notice” shall have the meaning set forth in Section 3(a).

“Warrant” shall have the meaning set forth in the preamble of this Agreement.

“Warrant Shares” shall have the meaning set forth in the preamble of this Agreement.

“WKSI” means a “well known seasoned issuer” as defined in Rule 405 under the 1933 Act.

2. Registration.

(a) Subject to the other applicable provisions of this Agreement, the Company shall file, as promptly as reasonably practicable, but no later than the applicable Filing Deadline, (i) the Prospectus Supplement, if permitted by applicable law and the Company determines that registration through a Prospectus Supplement is appropriate in light of the possible termination of WKSI status as of the next determination date under Rule 405 of the 1933 Act, or (ii) a registration statement under the 1933 Act covering the sale or distribution from time to time by the Investors, on a delayed or continuous basis pursuant to Rule 415 of the 1933 Act of all the Registrable Securities and shall provide for the registration of such Registrable Securities for resale by such Investors in accordance with any reasonable method of distribution elected by the Investors (such registration, a “Resale Shelf Registration”). The registration statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, then such registration shall be on another appropriate form for such purposes) (the “Resale Shelf Registration Statement”), and if the Company is a WKSI as of the filing date and determines to file a Prospectus Supplement as provided in (a)(i) above, the Resale Shelf Registration Statement shall be an Automatic Shelf Registration Statement. If the Resale Shelf Registration Statement is not an Automatic Shelf Registration Statement, then the Company shall use its reasonable best efforts to cause such Resale Shelf Registration Statement to be declared effective by the Commission as promptly as practicable after the filing thereof, but in any event prior to the Effectiveness Deadline.

(b) Once declared effective, the Company shall, subject to the other applicable provisions of this Agreement, use its reasonable best efforts to cause the Resale Shelf Registration Statement to be continuously effective and usable until such time as there are no longer any Registrable Securities or at such time as all of the Registrable Securities are Freely Tradeable (the “Effectiveness Period”).

(c) If any Shelf Registration ceases to be effective under the 1933 Act for any reason at any time during the Effectiveness Period, the Company shall use its reasonable best efforts to promptly cause such Shelf Registration to again become effective under the 1933 Act (including obtaining the prompt withdrawal of any order suspending the effectiveness of such Shelf Registration), and in any event shall, promptly amend such Shelf Registration in a manner reasonably expected to obtain the withdrawal of any order suspending the effectiveness of such Shelf Registration or file an additional registration statement (a “Subsequent Shelf Registration Statement,” and such registration, a “Subsequent Shelf Registration”) for an offering to be made on a delayed or continuous basis pursuant to Rule 415 of the 1933 Act registering the resale from

time to time by the Investors of all securities that are Registrable Securities as of the time of such filing. If a Subsequent Shelf Registration is filed, the Company shall use its reasonable best efforts to (i) cause such Subsequent Shelf Registration to become effective under the 1933 Act as promptly as is reasonably practicable after such filing, but in no event later than the date that is ninety (90) days after such Subsequent Shelf Registration is filed and (ii) keep such Subsequent Shelf Registration (or another Subsequent Shelf Registration) continuously effective until the end of the Effectiveness Period. Any such Subsequent Shelf Registration shall be a registration statement on Form S-3 to the extent that the Company is eligible to use such form, and if the Company is a WKSI as of the filing date, such registration statement shall be an Automatic Shelf Registration Statement. Otherwise, such Subsequent Shelf Registration shall be on another appropriate form and shall provide for the registration of such Registrable Securities for resale by such Investors in accordance with any reasonable method of distribution elected by the Investors.

(d) The Company shall supplement and amend any Shelf Registration if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration if required by the 1933 Act or as reasonably requested by the Investors covered by such Shelf Registration.

(e) If a Person becomes an Investor of Registrable Securities after a Shelf Registration becomes effective under the 1933 Act, the Company shall, as promptly as is reasonably practicable following delivery of written notice to the Company of such Person becoming an Investor and requesting for its name to be included as a selling securityholder in the prospectus related to the Shelf Registration:

(i) if required and permitted by applicable law, file with the Commission a supplement to the related prospectus or a post-effective amendment to the Shelf Registration so that such Investor is named as a selling securityholder in the Shelf Registration and the related prospectus in such a manner as to permit such Investor to deliver a prospectus to purchasers of the Registrable Securities in accordance with applicable law;

(ii) if, pursuant to Section 2(e)(i), the Company shall have filed a post-effective amendment to the Shelf Registration that is not automatically effective, use its reasonable best efforts to cause such post-effective amendment to become effective under the 1933 Act as promptly as is reasonably practicable, but in any event by the date that is ninety (90) days after the date such post-effective amendment is required by Section 2(e)(i) to be filed; and

(iii) notify such Investor as promptly as is reasonably practicable after the effectiveness under the 1933 Act of any post-effective amendment filed pursuant to Section 2(e)(i).

3. Underwritten Offering.

(a) If the Electing Investors intend to distribute the Registrable Securities by means of an underwriting (the “Underwritten Offering”), the Electing Investors shall, after the Resale Shelf Registration Statement becomes effective, so advise the Company by delivering a written notice to the Company (the “Underwritten Offering Notice”) specifying some or all of the Registrable Securities subject to the Shelf Registration Statement; provided, however, the

Investors may not, without the Company’s prior written consent, launch more than one (1) Underwritten Offerings within any three hundred sixty-five (365) day period. The Electing Investors shall have the right to appoint the book-running, managing and other underwriter(s) in consultation with the Company.

(b) The Company shall not include in any Underwritten Offering pursuant to this Section 3 any securities that are not Registrable Securities without the prior written consent of the Investors. If the managing underwriter or underwriters advise the Company and the Investors in writing that, in its or their good faith opinion, the total number of Registrable Securities requested to be so included (and, if permitted hereunder, other securities requested to be included in such offering), exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or distribution of the Registrable Securities to be so included, then there shall be included in such Underwritten Offering the number or dollar amount of Registrable Securities (and, if permitted hereunder, other securities requested to be included in such offering) that in the good faith opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities (and, if permitted hereunder, other securities requested to be included in such offering) shall be allocated for inclusion as follows: (i) first, the Registrable Securities of the Investors that have requested to participate in such Underwritten Offering, allocated pro rata among such Investors on the basis of the percentage of the Registrable Securities requested to be included in such offering by such Investors; and (ii) second, and only if all the securities referred to in clause (i) have been included, any other securities of the Company that have been requested to be so included.

4. Suspension. Notwithstanding anything to the contrary in this Agreement, upon notice to the Investors, the Company may delay, on one (1) occasion in any one hundred eighty (180) day period, the Filing Deadline and/or the Effectiveness Deadline with respect to, or suspend the effectiveness or availability of any registration statement for up to sixty (60) days in the aggregate in any twelve (12)-month period (a “Suspension Period”) if the Board determines in good faith that there is a valid business purpose for suspension of such registration statement; provided that (a) any suspension of a registration statement pursuant to Section 9 shall be treated as a Suspension Period for purposes of calculating the maximum number of days of any Suspension Period under this Section 4, (b) the Company shall be actively employing in good faith all reasonable best efforts to launch such registered offering through such Suspension Period and (c) the Investors are afforded the opportunity to include the Registrable Securities offering in accordance with Section 6. The Company shall deliver to the Investors a certificate signed by an executive officer certifying that such Suspension Period is for a valid business purpose determined by the Board in good faith and such certificate shall contain a statement of the reasons for such Suspension Period and an approximation of the anticipated length of such Suspension Period (provided such notice shall not contain material, non-public information about the Company). If the Company defers any registration of Registrable Securities pursuant to Section 2 or in response to an Underwritten Offering Notice or requires the Investors to suspend any Underwritten Offering, the Investors shall be entitled to withdraw such demand for registration or Underwritten Offering Notice, as applicable, and if it does so, such request shall not be treated for any purpose as the delivery of an Underwritten Offering Notice pursuant to Section 3. The parties hereto agree and acknowledge that (i) none of the Investors or any of their respective Affiliates or transferees shall be restricted from trading or otherwise transferring any of the Registrable Securities with respect to which a registration statement is effective and (ii) nothing in any existing agreements or

any other arrangements involving the Company and any of the Investors or any of their respective Affiliates (contractual or otherwise) shall be construed as limiting any of the Investors’ or any of their respective Affiliates’ or transferees’ ability to trade or otherwise transfer any of the Registrable Securities with respect to which a registration statement is effective.

5. Take-Down Notice. Subject to the other applicable provisions of this Agreement, at any time that any Shelf Registration Statement is effective, if an Investor delivers a notice to the Company (a “Take-Down Notice”) stating that it intends to effect a sale or distribution of all or part of its Registrable Securities included by it on any Shelf Registration Statement that requires an amendment or supplement to the Shelf Registration Statement (a “Shelf Offering”) and stating the number of the Registrable Securities to be included in such Shelf Offering, then the Company shall amend or supplement the Shelf Registration Statement as may be necessary, subject to the other applicable provisions of this Agreement, in order to enable such Registrable Securities to be sold and distributed pursuant to the Shelf Offering.

6. Piggyback Registration.

(a) Subject to the terms and conditions of this Agreement, if at any time the Company files a registration statement under the 1933 Act with respect to an offering of Common Stock or other equity securities of the Company (such Common Stock and other equity securities collectively, “Other Securities”), including, for the avoidance of doubt, any registration statement filed in response to TRowe’s demand for a Underwritten Offering pursuant to Section 3 of the TRowe Registration Rights Agreement (“TRowe Demand Registration”) and whether or not for sale for its own account (other than a registration statement (i) on Form S-4, Form S-8 or any successor forms or (ii) filed solely in connection with any employee benefit or dividend reinvestment plan), then the Company shall promptly give written notice of such filing to the Investors, which notice shall be given, to the extent reasonably practicable, no later than ten (10) Business Days before the anticipated filing or launch date (except in the case of an offering that is an “overnight offering,” in which case such notice must be given no later than one (1) Business Day prior to the filing or launch date) (the “Piggyback Notice”). The Piggyback Notice and the contents thereof shall be kept confidential by the Investors and their respective Affiliates and representatives, and the Investors shall be responsible for breaches of confidentiality by their respective Affiliates and representatives in their capacity as such. The Piggyback Notice shall offer each Investor the opportunity to include in such registration statement, subject to the terms and conditions of this Agreement, the number of Registrable Securities as such Investor may reasonably request (a “Piggyback Registration”). Subject to the terms and conditions of this Agreement, the Company shall include in each such Piggyback Registration all Registrable Securities with respect to which the Company has received from an Electing Investor a written request for inclusion therein within five (5) Business Days following receipt of any Piggyback Notice by such Electing Investor (but in any event not later than one (1) Business Day prior to the filing date of a Piggyback Registration Statement), which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Electing Investor and the intended method of distribution. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, the Company may not commence or permit the commencement of any sale of Other Securities in a public offering to which this Section 6 applies unless the Electing Investors shall have received the Piggyback Notice in respect to such public offering not less than ten (10) Business Days prior to the commencement of such sale of Other Securities. The Electing Investors shall be permitted to withdraw all or part of the Registrable Securities from a Piggyback Registration at any time at least two (2) Business Days prior to the effective date of the registration statement relating to such Piggyback Registration.

(b) If any Other Securities are to be sold in an underwritten offering, (i) the Company or other Persons designated by the Company shall have the right to appoint the book-running, managing and other underwriter(s) for such offering in their discretion and (ii) to the extent such Other Securities are of the same class as the Registrable Securities, the Electing Investors shall be permitted to include all Registrable Securities requested to be included in such registration in such underwritten offering on the same terms and conditions as such Other Securities proposed by the Company or any third party to be included in such offering; provided, however, that if such offering involves an underwritten offering and the managing underwriter(s) of such underwritten offering advise the Company in writing that it is their good faith opinion that the total amount of Registrable Securities requested to be so included, together with all Other Securities that the Company and any other Persons having rights to participate in such registration intend to include in such offering (an “Underwriter Cutback”), exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or distribution of the Registrable Securities to be so included together with all Other Securities, then there shall be included in such firm commitment underwritten offering the number or dollar amount of Registrable Securities and such Other Securities that in the good faith opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows: (A) first, all Other Securities being sold by the Company for its own account; (B) second, and only if all the securities referred to in clause (A) have been included, all Registrable Securities requested to be included in such registration by the Electing Investors, pro rata, based on the number of Registrable Securities beneficially owned by such Electing Investors; and (C) third, and only if all the securities referred to in clause (B) have been included, all Other Securities of any holders thereof (other than the Company and the Electing Investors) requesting inclusion in such registration, pro rata, based on the number of Other Securities beneficially owned by each such holder of Other Securities; provided; however that in the event of a Piggyback Registration in connection with a TRowe Demand Registration, such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows: (w) first, all Registrable Securities requested to be included in such registration by TRowe; (x) second, and only if all the securities referred to in clause (x) have been included, all Registrable Securities requested to be included in such registration by the Electing Investor; (y) third, and only if all the securities referred to in clause (y) have been included, Other Securities being sold by the Company for its own account; and (z) fourth, and only if all the securities referred to in clause (y) have been included, all Other Securities of any holders thereof (other than the Electing Investors and the Company) requesting inclusion in such registration, pro rata, based on the number of Other Securities beneficially owned by each such holder of Other Securities.

7. Expenses of Registration. Except as specifically provided for in this Agreement, all Registration Expenses incurred in connection with any registration, qualification or compliance hereunder shall be borne by the Company. All Selling Expenses incurred in connection with any registration hereunder shall be borne by the Electing Investors in proportion to the number of Registrable Securities for which registration was requested.

8. Obligations of the Company. Whenever required to effect the registration of any Registrable Securities pursuant to Sections 2, 3 or 6 of this Agreement, the Company shall, as promptly as reasonably practicable:

(a) Prepare and file with the Commission a registration statement (including all required exhibits to such registration statement) with respect to such Registrable Securities and cause such registration statement to become effective, or prepare and file with the Commission a prospectus supplement with respect to such Registrable Securities pursuant to an effective registration statement and keep such registration statement effective or such prospectus supplement current;

(b) Prepare and file with the Commission such amendments, including post-effective amendments, and supplements to the applicable registration statement and the prospectus or prospectus supplement used in connection with such registration statement as may be necessary to comply with the provisions of the 1933 Act with respect to the disposition of all securities covered by such registration statement (including to permit the intended method of distribution thereof) and as may be necessary to keep the registration statement continuously effective for the period set forth in this Agreement;

(c) To the extent reasonably practicable, not less than five (5) Business Days prior to the filing of a registration statement or any related prospectus or any amendment or supplement thereto, the Company shall furnish to the Electing Investors and to their legal counsel copies of all such documents proposed to be filed and give reasonable consideration to the inclusion in such documents of any comments reasonably and timely made by the Electing Investors or their legal counsel; provided that the Company shall include in such documents any such comments that are necessary to correct any material misstatement or omission regarding an Electing Investor;

(d) Furnish to the Electing Investors and to their legal counsel such number of copies of the applicable registration statement and each such amendment and supplement thereto (including in each case all exhibits but not documents incorporated by reference) and of a prospectus, including a preliminary prospectus, in conformity with the requirements of the 1933 Act, and such other documents as the Electing Investors may reasonably request in order to facilitate the disposition of Registrable Securities owned by the Electing Investors. The Company hereby consents to the use of such prospectus and each amendment or supplement thereto by each of the Electing Investors in accordance with applicable laws and regulations in connection with the offering and sale of the Registrable Securities covered by such prospectus and any amendment or supplement thereto;

(e) Use its reasonable best efforts to register and qualify the securities covered by such registration statement under blue sky or such other securities laws of such jurisdictions as shall be reasonably requested by the Electing Investors and to keep such registration or qualification in effect for so long as such registration statement remains in effect; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions;

(f) In connection with a customary due diligence review, make available for inspection by the Electing Investors, any underwriter(s) participating in any such disposition of Registrable Securities and any counsel or accountants retained by the Electing Investors or underwriter(s), all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information and participate in customary due diligence sessions in each case reasonably requested by any such representative, underwriter(s), counsel or accountant in connection with such registration statement; provided that (i) any party receiving confidential materials shall execute a confidentiality agreement on customary terms if reasonably requested by the Company and (ii) the Company may in its reasonable discretion restrict access to competitively sensitive or legally privileged documents or information;

(g) Enter into customary agreements and take such other actions as are reasonably required in order to facilitate the disposition of such Registrable Securities, including, if the method of distribution of Registrable Securities is by means of an underwritten offering, using commercially reasonable efforts to (i) cause the chief executive officer and chief financial officer to be available at reasonable dates and times to participate in “road show” presentations and/or investor conference calls to market the Registrable Securities during normal business hours, on reasonable advance notice and without undue burden or hardship on the Company; provided that the aggregate number of days of “road show” presentations in connection with an underwritten offering of Registrable Securities for each registration pursuant to a demand made under Section 3 shall not exceed three (3) Business Days; and (ii) negotiate and execute an underwriting agreement in customary form with the managing underwriter(s) of such offering and such other documents reasonably required under the terms of such underwriting arrangements, including using reasonable best efforts to procure a customary legal opinion and auditor “comfort” letters. The Electing Investors shall also enter into and perform their obligations under such underwriting agreement;

(h) If such securities are being sold through underwriters, (i) furnish, on the date that such Registrable Securities are delivered to the underwriters, an opinion, dated as of such date, of the legal counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and a “negative assurance letter,” dated as of such date, of the legal counsel representing the Company for purposes of such registration, in form and substance as is customarily given to underwriters and (ii) furnish, on the date of the underwriting agreement and on the date that the Registrable Securities are delivered to the underwriters, a letter dated as of such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters;

(i) Use reasonable best efforts to list the Registrable Securities covered by such registration statement with any securities exchange on which the Common Stock is then listed;

(j) Give notice to the Electing Investors as promptly as reasonably practicable:

(i) when any registration statement filed pursuant to Sections 2 or 3 or in which Registrable Securities are included pursuant to Section 6 or any amendment to such registration statement has been filed with the Commission and when such registration statement or any post-effective amendment to such registration statement has become effective;

(ii) when the prospectus or any prospectus supplement has been filed and, with respect to such registration statement, when the same has become effective;

(iii) of any request by the Commission or other federal or state governmental authority for amendments or supplements to any registration statement (or any information incorporated by reference in, or exhibits to, such registration statement) filed pursuant to Sections 2 or 3 or in which Registrable Securities are included pursuant to Section 6 or the prospectus (including information incorporated by reference in such prospectus) included in such registration statement or for additional information;

(iv) of the issuance by the Commission of any stop order suspending the effectiveness of any registration statement filed pursuant to Sections 2 or 3 or in which Registrable Securities are included pursuant to Section 6 or the initiation of any proceedings for that purpose;

(v) if at any time the Company has reason to believe that the representations and warranties of the Company or any of its subsidiaries contained in any agreement (including any underwriting agreement contemplated by Section 8(g) above) cease to be true and correct;

(vi) of the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of the Common Stock for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and

(vii) at any time when a prospectus relating to any such registration statement is required to be delivered under the 1933 Act, of the happening of any event as a result of which such prospectus (including any material incorporated by reference or deemed to be incorporated by reference in such prospectus), as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, which event requires the Company to make changes in such effective registration statement and prospectus in order to make the statements therein or incorporated by reference therein not misleading (which notice shall be accompanied by an instruction to suspend the use of the prospectus until the requisite changes have been made and shall not contain any material, non-public information about the Company);

(k) Use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of any registration statement referred to in Section 8(j)(iv) at the earliest practicable time;

(l) Cooperate with the Electing Investors and each underwriter or agent participating in the disposition of Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;

(m) Upon the occurrence of any event contemplated by Section 8(j)(vii), reasonably promptly prepare a post-effective amendment to such registration statement or a supplement to the related prospectus or file any other required document so that, as thereafter delivered to the Electing Investors, the prospectus will not contain (or incorporate by reference) an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Electing Investors in accordance with Section 8(j)(vii) to suspend the use of the prospectus until the requisite changes to the prospectus have been made, then the Electing Investors shall suspend use of such prospectus and use their reasonable best efforts to return to the Company all copies of such prospectus (at the Company’s expense) other than permanent file copies then in the Electing Investors’ possession, and the period of effectiveness of such registration statement provided for in Section 8(a) above shall be extended by the number of days from and including the date of the giving of such notice to the date the Electing Investors shall have received such amended or supplemented prospectus pursuant to this Section 8(m); and

(n) Use reasonable best efforts to procure the cooperation of the Company’s transfer agent in settling any offering or sale of Registrable Securities, including with respect to the transfer of physical stock certificates into book-entry form in accordance with any procedures reasonably requested by the Electing Investors or the managing underwriter(s). In connection therewith, if reasonably required by the Company’s transfer agent, the Company shall, promptly after the effectiveness of the registration statement, cause an opinion of counsel as to the effectiveness of the registration statement to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without legend upon sale by the holder of such shares of Registrable Securities under the registration statement.

9. Suspension of Sales. Upon receipt of written notice from the Company pursuant to Section 8(j)(vii), the Electing Investors shall immediately discontinue disposition of Registrable Securities until they (i) have received copies of a supplemented or amended prospectus or prospectus supplement pursuant to Section 8(m) or (ii) are advised in writing by the Company that the use of the prospectus and, if applicable, prospectus supplement may be resumed, and, if so directed by the Company, the Electing Investors shall deliver to the Company (at the Company’s expense) all copies, other than permanent file copies then in the Electing Investors’ possession, of the prospectus and, if applicable, prospectus supplement covering such Registrable Securities current at the time of receipt of such notice.

10. Limitation on Subsequent Registration Rights. From and after the date hereof, the Company shall not enter into any agreement granting any holder or prospective holder of any securities of the Company registration rights with respect to such securities that conflict with the rights granted to the Investors herein without the prior written consent of the Investors holding a majority of the Registrable Securities. It is agreed that the granting of pro rata registration rights to any other investor in the Company shall not be considered to conflict with the rights granted to the Investors herein.

11. Free Writing Prospectuses. The Electing Investors shall not use any free writing prospectus (as defined in Rule 405 under the 1933 Act) in connection with the sale of Registrable Securities without the prior written consent of the Company; provided that the Electing Investors may use any free writing prospectus prepared and distributed by the Company.

12. Indemnification.

(a) Notwithstanding any termination of this Agreement, the Company shall indemnify and hold harmless each of the Electing Investors and each of their respective current and former officers, directors, employees, agents, partners, members, stockholders, representatives and Affiliates, and each Person or entity, if any, that controls the Electing Investors within the meaning of Section 15 of the 1933 Act or Section 20 of the Exchange Act and the officers, directors, employees, agents and employees of each such controlling Person, and each underwriter thereof, if any, and each Person who controls any such underwriter within the meaning of Section 15 of the 1933 Act (each, an “Investor Indemnitee”), against any and all losses, claims, damages, actions, liabilities, costs and expenses (including reasonable fees, expenses and disbursements of attorneys and other professionals), joint or several, arising out of or based upon any untrue or alleged untrue statement of material fact contained or incorporated by reference in any registration statement, prospectus, preliminary prospectus or final prospectus contained therein, offering circular or other document, or any amendment or supplement thereto, or contained in any “issuer free writing prospectus” (as such term is defined in Rule 433 under the 1933 Act) prepared by the Company or authorized by it in writing for use by the Investors or any amendment or supplement thereto; any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or any violation by the Company of any rule or regulation promulgated under the 1933 Act, the Exchange Act or state securities laws applicable to the Company in connection with any such registration, and the Company will reimburse each of the Investor Indemnitees for any reasonable legal and any other expenses reasonably incurred in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, as such expenses are incurred; provided that the Company shall not be liable to such Investor Indemnitee in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon (i) an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, including any such preliminary prospectus or final prospectus contained therein, offering circular or other document, or any such amendments or supplements thereto or contained in any “issuer free writing prospectus” (as such term is defined in Rule 433 under the 1933 Act) prepared by the Company or authorized by it in writing for use by the Investors or any amendment or supplement thereto, in reliance upon and in conformity with information regarding such Investor Indemnitee or its plan of distribution or ownership interests which such Investor Indemnitee furnished in writing to the Company for use in connection with such registration statement, including any such preliminary prospectus or final prospectus contained therein, offering circular or other document, or any such amendments or supplements thereto, (ii) offers or sales effected by or on behalf of such Investor Indemnitee “by means of” (as defined in Rule 159A under the 1933 Act) a “free writing prospectus” (as defined in Rule 405 under the 1933 Act) that was not authorized in writing by the Company, or (iii) the failure to deliver or make available to a purchaser of Registrable Securities a copy of any preliminary prospectus, pricing information or final prospectus contained in the applicable registration statement or any amendments or supplements thereto (to the extent the same is required by applicable law to be delivered or made available to such purchaser at the time of sale of contract); provided that the Company shall have delivered to each Electing Investor such preliminary prospectus or final prospectus contained in the applicable registration statement and any amendments or supplements thereto pursuant to Section 8(d) no later than the time of contract of sale in accordance with Rule 159 under the 1933 Act.

(b) Each Electing Investor shall, severally and not jointly, indemnify and hold harmless the Company and its officers, directors, employees, agents, representatives and Affiliates, each underwriter, if any, of the Company’s securities covered by such a registration, each Person who controls the Company or such underwriter within the meaning of Section 15 of the 1933 Act, and each other Electing Investor and each of such other Electing Investor’s officers, directors, partners and members and each Person controlling such other Electing Investor within the meaning of Section 15 of the 1933 Act, against any and all losses, claims, damages, actions, liabilities, costs and expenses (including reasonable fees, expenses and disbursements of attorneys and other professionals) arising out of or based upon any untrue or alleged untrue statement of material fact contained in any registration statement, prospectus, preliminary prospectus, offering circular or other document, or any amendment or supplement thereto, or contained in any “issuer free writing prospectus” (as such term is defined in Rule 433 under the 1933 Act), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, but only to the extent that such untrue statements or omissions are based solely upon information regarding such Electing Investor furnished in writing to the Company by such Electing Investor expressly for use therein. In no event shall the liability of any Electing Investor hereunder be greater in amount than the dollar amount of the net proceeds received by such Electing Investor upon the sale of the Registrable Securities giving rise to such indemnification obligation.

(c) If any proceeding shall be brought or asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”) with respect to a claim for which indemnity is required under this Agreement, such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall assume the defense in such proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with such defense; provided that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Section 12, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have proximately and materially adversely prejudiced the Indemnifying Party. An Indemnified Party shall have the right to employ separate counsel in any such proceeding and to participate in the defense of such proceeding, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (i) the Indemnifying Party has agreed in writing to pay such fees and expenses; (ii) the Indemnifying Party shall have failed promptly to assume the defense of such proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such proceeding; or (iii) the named parties to any such proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and such Indemnified Party shall have been advised by counsel that representation of both such Indemnified Party and the Indemnifying Party by the same counsel would be inappropriate because of an actual conflict of interest between the Indemnifying Party and such Indemnified Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Party); provided that the Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to, but only to the extent necessary, one local counsel) at any time for all Indemnified Parties. The Indemnifying Party shall

not be liable for any settlement of any such proceeding effected without its written consent, which consent shall not be unreasonably withheld, conditioned or delayed. No Indemnifying Party shall, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such proceeding. All fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such proceeding in a manner not inconsistent with this Section 12) shall be paid to the Indemnified Party, as incurred, promptly upon receipt of written notice thereof by the Indemnifying Party (regardless of whether it is ultimately determined that an Indemnified Party is not entitled to indemnification hereunder; provided that the Indemnifying Party may require such Indemnified Party to undertake to reimburse all such fees and expenses to the extent it is finally judicially determined that such Indemnified Party is not entitled to indemnification under this Section 12).

(d) If the indemnification provided for in Sections 12(a) or 12(b) is held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to any losses, claims, damages, actions, liabilities, costs or expenses referred to in Sections 12(a) or 12(b), as the case may be, or is insufficient to hold the Indemnified Party harmless as contemplated therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages, actions, liabilities, costs or expenses, in such proportion as is appropriate to reflect the relative fault of the Indemnified Party, on the one hand, and the Indemnifying Party, on the other hand, in connection with the statements, omissions or violations which resulted in such losses, claims, damages, actions, liabilities, costs or expenses, as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party, on the one hand, and of the Indemnified Party, on the other hand, shall be determined by reference to, among other factors, whether the untrue or alleged untrue statement of a material fact or omission to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Investors agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in this Section 12(d). Notwithstanding the foregoing, in no event shall the liability of any Electing Investor hereunder be greater in amount than the dollar amount of the net proceeds received by such Electing Investor upon the sale of the Registrable Securities giving rise to such contribution obligation. No Indemnified Party guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from an Indemnifying Party not guilty of such fraudulent misrepresentation.

13. Agreement to Furnish Information. If requested by the Company or the book-running managing underwriter(s) of Common Stock (or other securities of the Company convertible into Common Stock), each Electing Investor shall provide such information regarding itself and its Registrable Securities as may be reasonably required by the Company or such representative of the book-running managing underwriter(s) in connection with the filing of a registration statement and the completion of any public offering of the Registrable Securities pursuant to this Agreement.

14. Rule 144 Reporting. With a view to making available to the Investors the benefits of certain rules and regulations of the Commission which may permit the sale of the Registrable Securities that are Common Stock to the public without registration, the Company agrees to use its reasonable best efforts to: (a) make and keep public information available, as those terms are understood and defined in Rule 144 under the 1933 Act or any similar or analogous rule promulgated under the 1933 Act, at all times after the effective date of this Agreement (“Rule 144”); (b) file with the Commission, in a timely manner, all reports and other documents required of the Company under the Exchange Act; and (c) so long as the Investors own any Registrable Securities, furnish to such Investors forthwith upon request: (i) a written statement by the Company as to its compliance with the reporting requirements of Rule 144 and of the Exchange Act; (ii) a copy of the most recent annual or quarterly report of the Company; and (iii) such other reports and documents as such Investors may reasonably request in availing themselves of any rule or regulation of the Commission allowing them to sell any such Common Stock without registration.

15. Miscellaneous.

(a) Termination of Registration Rights. The registration rights of any particular Investor granted under this Agreement shall terminate with respect to such Investor upon the date upon which neither the Investor nor any of its Affiliates holds any Registrable Securities.

(b) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed in all respects by the internal laws of the State of California without giving effect to any choice of law or conflict of law provision or rule (whether of the State of California or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of California.

(c) Jurisdiction; Jury Trial. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in Los Angeles County, California, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to service in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service or process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN.

(d) Specific Performance. Each of the Investors, on the one hand, and the Company, on the other hand, acknowledges and agrees that irreparable injury to the other party hereto would occur in the event any of the provisions of this Agreement were not performed in

accordance with their specific terms or were otherwise breached and that such injury would not be adequately compensable by the remedies available at law (including the payment of money damages). It is accordingly agreed that the Investors, on the one hand, and the Company, on the other hand (the “Moving Party”), shall each be entitled to specific enforcement of, and injunctive relief to prevent any violation of, the terms hereof, and the other party hereto will not take action, directly or indirectly, in opposition to the Moving Party seeking such relief on the grounds that any other remedy or relief is available at law or in equity. This Section 15(d) is not the exclusive remedy for any violation of this Agreement.

(e) Successors and Assigns. Except as otherwise provided in this Agreement, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the successors, heirs and permitted assigns (including, for the avoidance of doubt, any of the Investors’ Affiliates) of the parties; provided, however, that in the event that any Person acquires or becomes a transferee or assignee of any Registrable Securities, such Person shall, without any further writing or action of any kind, be deemed a beneficiary hereof for all purposes and such Registrable Securities shall be held subject to all the terms of this Agreement, and by taking and holding such Registrable Securities such Person shall be treated as an “Investor” for all purposes under this Agreement and shall be entitled to receive the benefits of, and be conclusively deemed to have agreed to be bound by all of the applicable terms and provisions of, this Agreement.

(f) No Third-Party Beneficiaries. Notwithstanding anything contained in this Agreement to the contrary, this Agreement is intended solely for the benefit of the parties hereto and their respective successors, heirs and permitted assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person; provided, however, that each Indemnified Party (but only, in the case of an Investor Indemnitee, if such Investor Indemnitee has complied with the requirements of Section 12(c), including the first proviso of Section 12(c)) shall be entitled to the rights, remedies and obligations provided to an Indemnified Party under Section 12, and each such Indemnified Party shall have standing as a third-party beneficiary under Section 12 to enforce such rights, remedies and obligations.

(g) Entire Agreement. This Agreement, the Purchase Agreement and the other Transaction Documents supersede all other prior or contemporaneous negotiations, writings and understandings between the Investors, the Company, their Affiliates and Persons acting on their behalf with respect to the matters discussed herein, and this Agreement, the Purchase Agreement, the other Transaction Documents, and the instruments referenced herein and therein constitute the full and entire understanding and agreement among the parties hereto with regard to the matters covered herein and therein, and, except as specifically set forth herein or therein, neither the Company nor any Investor makes any representation, warranty, covenant or undertaking with respect to any such matters.

(h) Notices. Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement shall be in writing and shall be deemed to be delivered: (i) upon receipt, when delivered personally; (ii) upon delivery, when sent by electronic mail; or (iii) one Business Day after deposit with an overnight courier service, in each case properly addressed to the party to receive the same. The addresses and e-mail addresses for such communications shall be:

if to the Company:

BJ’s Restaurants, Inc.

7755 Center Avenue

Huntington Beach, California 92647

Attention: Greg Levin

E-mail: glevin@bjsrestaurants.com

with a copy to (for informational purposes only):

Elkins Kalt Weintraub Reuben Gartside LLP

10345 West Olympic Boulevard

Los Angeles, California 90066

Attention: Robert M. Steinberg, Esq.

E-mail: rsteinberg@elkinskalt.com

if to the Investors:

SC 2018 Trust LLC

23 Prescott St.

Brookline, MA 02446

Attention: Ron Shaich

E-mail: ronshaich@act3holdings.com

with a copy to (for informational purposes only):

Sullivan & Cromwell LLP

125 Broad St.

New York, NY 10004

Attention: Frank Aquila

Audra D. Cohen

E-mail: aquilaf@sullcrom.com

cohena@sullcrom.com

or to such other address and/or e-mail address and/or to the attention of such other person as the recipient party has specified by written notice given to each other party five (5) days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s e-mail containing the time, date, and recipient e-mail address or (C) provided by an overnight courier service shall be rebuttable evidence of personal service, receipt by facsimile or e-mail or receipt from an overnight courier service in accordance with clause (i), (ii), or (iii) above, respectively.

(i) Delays or Omissions. No failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and not exclusive of any other remedies provided by law.

(j) Expenses. The Company and the Investors shall bear their own expenses and legal fees incurred on their behalf with respect to this Agreement and the transactions contemplated hereby, except as otherwise provided in Section 7.

(k) Amendments and Waivers. Provisions of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively) only if such amendment or waiver is in writing and signed, in the case of an amendment, by the Company and the holders of at least a majority of the Registrable Securities then outstanding or, in the case of a waiver, by the party against whom the waiver is to be effective. Any amendment or waiver effected in accordance with this Section 15(k) shall be binding upon each holder of any Registrable Securities at the time outstanding (including securities convertible into Registrable Securities), each future holder of all such Registrable Securities and the Company. No such amendment shall be effective to the extent that it applies to less than all of the Investors or holders of Registrable Securities.

(l) Counterparts. This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party; provided that a facsimile or .pdf format signature shall be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original, not a facsimile or .pdf signature.

(m) Severability. If any provision of this Agreement is prohibited by law or otherwise becomes or is declared by a court of competent jurisdiction to be invalid or unenforceable, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions of this Agreement so long as this Agreement as so modified continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties hereto will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).

(n) Headings; Interpretation. The headings used in this Agreement are used for convenience of reference only and are not to be considered part of, or affect the interpretation of, this Agreement. When a reference is made in this Agreement to a Section or Schedule, such reference shall be to a Section or Schedule of this Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein,” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole (including all of the Schedules) and not to any particular provision of this

Agreement. Unless otherwise specified in this Agreement, the term “dollars” and the symbol “$” mean U.S. dollars for purposes of this Agreement and all amounts in this Agreement shall be paid in U.S. dollars. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute, rule or regulation defined or referred to in this Agreement means such agreement, instrument or statute, rule or regulation as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes. Any reference to any section under the 1933 Act or Exchange Act, or any rule promulgated thereunder, shall include any publicly available interpretive releases, policy statements, staff accounting bulletins, staff accounting manuals, staff legal bulletins, staff “no-action,” interpretive and exemptive letters, and staff compliance and disclosure interpretations (including “telephone interpretations”) of such section or rule by the Commission. Each of the parties has participated in the drafting and negotiation of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if it were drafted by each of the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of authorship of any of the provisions of this Agreement.

(o) Further Assurances. Each party hereto shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby.

[Signature pages follow.]

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.


BJ’S RESTAURANTS, INC.

By:	/s/ Gregory S. Levin
	Name:	Gregory S. Levin
	Title:	President, Chief Financial Officer and Secretary

[Signature Page to Registration Rights Agreement]

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.


SC 2018 TRUST LLC

By:		/s/ Gad Liwerant
		Name: Gad Liwerant
		Title: Manager

[Signature Page to Registration Rights Agreement]

SCHEDULE 1

SCHEDULE OF INVESTORS

SC 2018 Trust LLC, a Delaware limited liability company

EX-99.4 4 d901752dex994.htm EX-99.4 EX-99.4

Exhibit 99.4

INVESTOR RIGHTS AGREEMENT

This Investor Rights Agreement (this “Agreement”) is made and entered into as of May 5, 2020 by and among BJ’s Restaurants, Inc., a California corporation (the “Company”), and SC 2018 Trust LLC, a Delaware limited liability company (“Trust LLC,” and together with any transferees of the Securities (as defined in the Purchase Agreement) who agree to become parties to this Agreement, each an “Investor” and collectively, the “Investors”) (each of the Company and the Investors, a “Party” to this Agreement, and collectively, the “Parties”).

RECITALS

WHEREAS, the Company and Trust LLC are parties to that certain Securities Purchase Agreement, dated as of May 1, 2020 (the “Purchase Agreement”), pursuant to which Trust LLC has become the holder of 375,000 shares of common stock, no par value per share, of the Company (the “Common Stock” and such shares, the “Common Shares”) and a holder of 875,000 Warrants (as defined in the Common Share Purchase Warrant); and

WHEREAS, in connection with the investment contemplated by the Transaction Documents (as defined in the Purchase Agreement), the Company and Investors have determined to come to an agreement with respect to certain governance matters as well as certain other matters, as provided in this Agreement.

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound hereby, agree as follows:

1. Board Appointment and Related Agreements.

(a) Board Appointment

(i) From the date of this Agreement and for so long as the Investors meet the Minimum Ownership Threshold, the Investors shall have the right to designate for appointment or nomination, as the case may be, to the Company’s board of directors (the “Board”) or replace an Appointed Director with one (1) person (the “Director Nominee”), who shall be designated by the Investor Representative. The “Investor Representative” shall be Ron Shaich or any replacement thereof approved by Trust LLC. Schedule 1 hereto sets forth the names of three (3) individuals to be considered for selection by the Governance and Nominating Committee of the Board (the “Nominating Committee”) as the initial Director Nominee (the “Initial Director Nominee”). Within seven (7) business days following the Closing Date (as defined in the Purchase Agreement), the Nominating Committee shall inform the Investor Representative as to its decision with respect to which of such individuals has been selected as the Initial Director Nominee.

(ii) As soon as reasonably possible after the Closing Date (and in no event later than ten (10) business days after the Closing Date), and subject to the Initial Director Nominee meeting the Independent Director Criteria below, the Company agrees that the Board and all applicable committees of the Board shall take all necessary actions (A) to appoint the Initial Director Nominee to the Board, (B) simultaneously therewith, increase the size of the Board from nine (9) to ten (10) directors, and (C) to the extent necessary, cause an existing director of the Board to resign effective simultaneously with the appointment of the Initial Director Nominee. As used in this Agreement, an “Appointed Director” means any Director Nominee, including the Initial Director Nominee, who is elected or appointed to the Board to serve as a director of the Company, including a Replacement Director.

(iii) Any Director Nominee shall (a) have business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (b) be reasonably acceptable to the Nominating Committee and the Board, (c) qualify as “independent” pursuant to Nasdaq Stock Market listing standards and satisfy any other criteria applicable to “independent” directors under such listing standards and under applicable law and the rules and regulations of the Securities and Exchange Commission, (d) have provided the items that would be required of an independent director pursuant the Company’s normal director intake procedures (including completion of a standard director and officer questionnaire and completion of a background check), and (e) who does not serve as a director or officer of any company that owns, operates or franchises casual dining restaurants; provided that, for purposes of clause (e), such casual dining restaurants shall not include any fine dining restaurants, any fast casual restaurants or any casual dining restaurants with fewer than 25 locations and shall not include serving as a director or officer of Trust LLC or Act III Holdings, LLC or any of its Subsidiaries (clauses (a)-(e), the “Independent Director Criteria”).

(iv) Within ten (10) business days of his or her name being submitted to the Nominating Committee, the Nominating Committee shall determine whether such Director Nominee is reasonably acceptable to the Board, and if such nomination is recommended by the Nominating Committee and approved by the Board, the Board shall take all necessary actions to promptly appoint the Appointed Director as a director of the Company within five (5) business days of the Nominating Committee’s recommendation. In the event the Nominating Committee or the Board does not accept a Director Nominee, the Investors shall have the right to recommend a substitute Director Nominee, so long as no Resignation Event has occurred, whose appointment shall be subject to the procedures described above and satisfaction of the Independent Director Criteria.

(v) The Company agrees that, so long as a Resignation Event has not occurred, subject to his or her continued satisfaction of the Independent Director Criteria (i) the Board shall nominate for election to the Board, along with its other nominees, the Director Nominee, including the Initial Director Nominee, at any annual or special meeting of shareholders of the Company at which directors are to be elected and shall recommend, support and solicit proxies for the election of such Director Nominee at any such meeting in the same manner as it recommends, supports, and solicits proxies for the election of any continuing directors.

(vi) If any Appointed Director is unable or unwilling to serve as a director and ceases to be a director, resigns as a director, is removed as a director, or for any other reason fails to serve or is not serving as a director at any time prior to the occurrence of a Resignation Event, the Investor Representative shall have the right to designate a person to be a Replacement Director (any such replacement nominee, when appointed to the Board, shall be referred to as a “Replacement Director”). Any Replacement Director must satisfy the Independent Director Criteria. Any Replacement Director will be considered, approved and appointed to the Board in accordance with the process specified in Section 1(a)(iv).

(vii) So long as no Resignation Event has occurred, the Board shall give any Appointed Director the same due consideration for membership to any committee of the Board as any other independent director; provided that the Appointed Director shall serve on at least one (1) committee of the Board. The remaining members of each Board committee shall be selected such that each committee includes directors whose skill sets and expertise are relevant to such committee.

(b) Resignation Events. As a condition to the Appointed Director’s appointment to the Board, the Appointed Director shall, and the Investors shall cause the Appointed Director to submit prior to effectiveness of any appointment, an irrevocable resignation letter pursuant to which the Appointed Director shall resign from the Board and all applicable committees thereof effective automatically and immediately (i) upon a Resignation Event or (ii) if at any time following the date of such person’s appointment to the Board such person no longer meets the Independent Director Criteria set forth in Section 1(a)(iii)(e); provided that in the case of clause (ii), the Investors shall retain the right to nominate for appointment or nomination a Replacement Director. The Investors shall promptly (and in any event within five (5) business days) inform the Company in writing if the Investors fail to satisfy the Minimum Ownership Threshold at any time. For the avoidance of doubt, the Investors shall have no rights under Sections 1 or 4 if any Resignation Event has occurred and the Company shall have no rights under Section 2 if any Resignation Event has occurred. For purposes of this Agreement, a “Resignation Event” means, regardless of actual resignation, if the Investors fail to satisfy the Minimum Ownership Threshold at any time after the date of this Agreement. For purposes hereof, the “Minimum Ownership Threshold” shall mean collective beneficial ownership (as determined under Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of the lesser of (i) 187,500 shares of Common Stock (subject to proportionate adjustment in the event of splits, combinations or reclassifications) or (ii) a number of Common Shares or shares or rights convertible or exercisable into Common Shares, including the Warrants (whether or not presently convertible or exercisable) that, in the aggregate, are convertible or exercisable into and/or equal at least 4.25% of the then-outstanding Common Stock (on an as-converted and as-exercised basis).

(c) Reimbursement. The Director Nominee or Appointed Director, as applicable, shall be entitled to (i) reimbursement of expenses and indemnification in the same manner and to the same extent as the other members of the Board, in accordance with the Company’s organizational documents and on the basis of the director indemnification agreement with the Company, and (ii) compensation in the same manner and to the same extent as the other members of the Board. Any director minimum ownership requirements shall be deemed satisfied in respect of the Director Nominee or Appointed Director, as applicable, by the Common Shares or shares or rights convertible or exercisable into Common Shares, including the Warrants, (whether or not presently convertible or exercisable) held by the Investors.

2. Voting. For so long as the Investors have the right to designate or nominate a Director Nominee pursuant to Section 1, in connection with any proposal submitted for Company shareholder approval (at any annual or special meeting called, or in connection with any other action (including the execution of written consents)) related to the election or removal of directors of the Board or any business or proposal involving the Company, each of the Investors will (A) cause all of their respective shares of Company capital stock that are entitled to vote, whether

now owned or hereafter acquired (collectively, the “Voting Securities”), to be present in person or represented by proxy at all meetings of shareholders of the Company, so that all such shares shall be counted as present for determining the presence of a quorum at such meetings and (B) vote all of their Voting Securities in accordance with the recommendation of the Board for: (1) any nominee or director nominated by the Nominating Committee, (2) the Company’s “say on pay” proposal set forth in the proxy statement for any such annual meeting, and (3) the ratification of the appointment of the Company’s independent public accounting firm set forth in the proxy statement for any such annual meeting; it being understood that any Investor shall be under no obligation to vote in the same manner as recommended by the Board or in any other manner other than its sole discretion with respect to any other matter.

3. Standstill. The Investors agree that until the later of (x) the third anniversary of the date of this Agreement, and (y) the date on which the Investors no longer have the right to designate or nominate a Director Nominee pursuant to Section 1, without the prior written consent of the Company, such Investors will not at any time, nor will they cause or permit any of their respective controlled Affiliates (as defined in the Purchase Agreement) to: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person (as defined in the Purchase Agreement) to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof), or rights or options to acquire any securities (or beneficial ownership thereof), or any assets, indebtedness or businesses of the Company or its Subsidiaries (as defined in the Purchase Agreement), (ii) any tender or exchange offer, merger or other business combination involving the Company or its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the Company or any of its Subsidiaries; (b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to the Company or otherwise act in concert with any Person in respect of any such securities; (c) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or to obtain representation on the Board of the Company (other than pursuant to the terms of this Agreement); (d) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing; it being understood that nothing in this Section 3 shall (x) restrict or prohibit the Appointed Director from taking any action, or refraining from taking any action, which he or she determines, in his or her reasonable discretion, is necessary to fulfill his or her fiduciary duties as a member of the Board (y) restrict the Investors’ acquisition of any Equity Securities paid as dividends or acquired pursuant to Section 4 of this Agreement, in each case, in accordance with the terms of this Agreement, or (z) restrict the Investors acquisition of equity or debt securities of the Company or any of its Subsidiaries, or voting such securities (subject to the provisions of Section 2) and otherwise exercising its rights and privileges with respect to such securities, so long as such acquisition, voting or exercise of the rights and privileges, would not constitute a violation of clauses (a)(ii) and (iii) or (b) through (e) above.

4. Preemptive Rights.

(a) Notwithstanding anything contained in Section 3, from and after the Closing Date, for so long as the Investors meet the Minimum Ownership Threshold, if the Company makes any public or non-public offering of any New Securities, each Investor shall be afforded the opportunity to acquire from the Company all or a portion of such Investor’s Preemptive Rights Portion of such New Securities for the same price as that offered to the other purchasers of such New Securities; provided, that such Investor shall not be entitled to acquire any New Securities pursuant to this Section 4 to the extent the issuance of such New Securities to such Investor would require approval of the stockholders of the Company as a result of any such Investor’s status, if applicable, as an Affiliate of the Company or pursuant to the rules and listing standards of the Nasdaq Stock Exchange, in which case the Company may consummate the proposed issuance of New Securities to other Persons prior to obtaining approval of the stockholders of the Company (subject to compliance by the Company with Section 4(e) below).

(b) If the Company proposes to offer New Securities, it shall give the Investors written notice of its intention, describing the anticipated price (or range of anticipated prices), anticipated amount of New Securities and other material terms and timing upon which the Company proposes to offer the same (including, in the case of a registered public offering and to the extent possible, a copy of the prospectus included in the registration statement filed with respect to such offering) at least seven (7) business days prior to such issuance (or, in the case of a registered public offering, at least seven (7) business days prior to the commencement of such registered public offering) (provided that, to the extent the terms of such offering cannot reasonably be provided seven (7) business days prior to such issuance, notice of such terms may be given as promptly as reasonably practicable but in any event prior to such issuance). The Company may provide such notice to the Investors on a confidential basis prior to public disclosure of such offering. Other than in the case of a registered public offering, the Investor Representative may notify the Company in writing at any time on or prior to the second (2^nd) business day immediately preceding the date of such issuance (or, if notice of all such terms has not been given prior to the second (2^nd) business day immediately preceding the date of such issuance, at any time prior to such issuance) whether any of the Investors will exercise such preemptive rights and as to the amount of New Securities the Investors desire to purchase, up to the such Investor’s Preemptive Rights Portion. In the case of a registered public offering, the Investor Representative shall notify the Company in writing at any time prior to the second (2^nd) business day immediately preceding the date of commencement of such registered public offering (or, if notice of all such terms has not been given prior to the second (2^nd) business day immediately preceding the date of commencement of such registered public offering, at any time prior to the date of commencement of such registered public offering) whether any of the Investors will exercise such preemptive rights and as to the amount of New Securities the Investors desire to purchase, up to such Investor’s Preemptive Rights Portion. Such notice to the Company shall constitute a binding commitment by the Investors to purchase the amount of New Securities so specified at the price and other terms set forth in the Company’s notice to it. Subject to receipt of the requisite notice of such issuance by the Company, the failure of the Investor Representative to respond prior to the time a response is required pursuant to this Section 4(b) shall be deemed to be a waiver of the Investors’ purchase rights under this Section 4 only with respect to the offering described in the applicable notice.

(c) Each Investor shall purchase the New Securities that it has elected to purchase under this Section 4 concurrently with the related issuance of such New Securities by the Company (subject to the receipt of any required approvals from any governmental entity to consummate such purchase by such Investor); provided, that if such related issuance is prior to the twentieth (20^th) business day following the date on which such Investor has notified the Company that it has elected to purchase New Securities pursuant to this Section 4, then each Investor shall purchase such New Securities within twenty (20) business days following the date of the related issuance. If the proposed issuance by the Company of securities which gave rise to the exercise by the Investor of its preemptive rights pursuant to this Section 4 shall be terminated or abandoned by the Company without the issuance of any securities, then the purchase rights of the Investors pursuant to this Section 4 shall also terminate as to such proposed issuance by the Company (but not any subsequent or future issuance), and any funds in respect thereof paid to the Company by the Investors in respect thereof shall be promptly refunded in full.

(d) In the case of the offering of securities for consideration in whole or in part other than cash, including securities acquired in exchange therefor (other than securities by their terms so exchangeable), the consideration other than cash shall be deemed to be the fair value thereof as reasonably determined by the Board; provided, however, that such fair value as determined by the Board shall not exceed the aggregate market price of the securities being offered as of the date the Board authorizes the offering of such securities.

(e) In the event that the Investors are not entitled to acquire any New Securities pursuant to this Section 4 because such issuance would require the Company to obtain stockholder approval in respect of the issuance of such New Securities to the Investors as a result of any such Investor’s status, if applicable, as an Affiliate of the Company or pursuant to the rules and listing standards of the Nasdaq Stock Exchange, the Company shall, upon the Investor’s reasonable request delivered to the Company in writing within seven (7) business days following its receipt of the written notice of such issuance to the Investors pursuant to this Section 4, at the Investor’s election, (i) consider and discuss in good faith modifications proposed by the Investors to the terms and conditions of such portion of the New Securities which would otherwise be issued to the Investors such that the Company would not be required to obtain stockholder approval in respect of the issuance of such New Securities as so modified; and/or (ii) solely to the extent that stockholder approval is not required in connection with the issuance of Equity Securities to Persons other than the Investors, use reasonable best efforts to seek stockholder approval in respect of the issuance of any New Securities to the Investors.

(f) If the Investors do not elect to purchase their respective Preemptive Election Share of the New Securities pursuant to this Section 4, the Company may sell such portion of the New Securities on terms and conditions that are not materially more favorable in the aggregate to the applicable purchaser(s) than those set forth in the written notice of such offer. If such sale is not consummated within 120 days of the date upon which the written notice of such offer was given, then no issuance of such New Securities may be made thereafter by the Company without again offering the same to the Investors in accordance with this Section 4. The election by any Investor to not exercise its subscription rights under this Section 4 in any one instance shall not affect its right as to any subsequent proposed issuance.

(g) The Company and the Investors shall cooperate in good faith to facilitate the exercise of the Investors’ rights pursuant to this Section 4, including securing any required approvals or consents.

(h) For purposes of this Section 4, the following terms have the following meanings:

(i) “Convertible Securities” means any security convertible into or exchangeable for capital stock of the Company.

(ii) “Equity Securities” means (A) all capital stock of the Company, (B) all Convertible Securities and (C) all Options to acquire from the Company shares of such capital stock or such Convertible Stock.

(iii) “Excluded Securities” means (A) any securities issued by the Company as full or partial consideration in connection with a merger, acquisition, consolidation or purchase of all or substantially all of the securities or assets of a corporation or other entity; (B) any shares of capital stock or options to purchase shares of capital stock, or other equity-based awards (including restricted stock units), issued or granted to employees (or prospective employees who have accepted an offer of employment), directors or consultants (as defined in the Company’s Equity Incentive Plan) of the Company or any of its Subsidiaries, pursuant to plans that have been approved by a majority of the independent members of the Board or that exist as of the date of this Agreement; (C) securities issued by the Company upon the exercise, exchange or conversion of any securities that are exercisable or exchangeable for, or convertible into, shares of capital stock and are outstanding as of the date of this Agreement, provided that such exercise, exchange or conversion is effected pursuant to the terms of such securities as in effect on the date of this Agreement; and (D) securities issued by the Company pursuant to any equipment loan or leasing arrangement, real property leasing arrangement or debt financing from a bank or similar financial institution approved by a majority of the disinterested members of the Board.

(iv) “New Securities” means all Equity Securities other than: (A) Excluded Securities; (B) shares of any class of capital stock of the Company issued on a pro rata basis to all holders of such class as a stock dividend or upon any stock split or other subdivision of shares of capital stock; (C) shares of capital stock of the Company issued as consideration in connection with an acquisition (approved by the Board) by the Company of assets or capital stock of any Person; (D) shares of Common Stock issued pursuant to a bona fide public offering, or Convertible Securities or shares of Common Stock issuable upon exercise or conversion of Convertible Securities issued pursuant to a bona fide public offering, in each case with aggregate proceeds of at least $10,000,000, (E) shares of Common Stock, Convertible Securities and Options issued to existing or former officers, directors, employees or consultants of the Company pursuant to any equity incentive plan adopted or approved by the Board from time to time, including any shares of Common Stock issuable upon exercise of any such Option or settlement or vesting of any award issued under such plans, (F) rights issued pursuant to a shareholder rights plan, and (G) the issuance of warrants with indebtedness for purposes of yield enhancement.

(v) “Options” means any options, warrants or other rights to subscribe for, purchase or otherwise acquire any capital stock of the Company or Convertible Securities.

(vi) “Preemptive Rights Portion” means, with respect to an Investor, the amount of New Securities that each Investor shall be entitled to purchase in the aggregate determined by multiplying (1) the total number of such offered shares of New Securities by (2) the quotient of (a) the aggregate number of shares of Common Stock or shares or rights convertible or exercisable into Common Shares (whether or not presently convertible or exercisable) (on an as-converted and as-exercised basis) held by such Investor, as of such date, divided by (b) the aggregate number of shares of Common Stock (on an as-converted and as-exercised basis) outstanding as of such date.

5. Corporate Opportunities. The Company, on behalf of itself and its Subsidiaries, to the fullest extent permitted by applicable law, (a) acknowledges and affirms that the Investors and their Affiliates and Representatives, including any Director Nominee or any other members of the Board affiliated with the Investors (the “Investor Group”): (i) have participated (directly or indirectly) and will continue to participate (directly or indirectly) in direct investments in corporations, joint ventures, limited liability companies and other entities (“Other Investments”), including Other Investments engaged in various aspects of businesses similar to those engaged in by the Company and its Subsidiaries (and related services businesses) that may, are or will be competitive with the Company’s or any of its Subsidiaries’ businesses or that could be suitable for the Company’s or any of its Subsidiaries’ interests, (ii) have done and may do business with any client, customer, vendor or lessor of any of the Company or its Affiliates or any other Person with which any of the Company or its Affiliates has a business relationship, (iii) have interests in, participate with, aid and maintain seats on the board of directors or similar governing bodies of, or serve as officers of, Other Investments, (iv) may develop or become aware of business opportunities for Other Investments; and (v) may or will, as a result of or arising from the matters referenced in this Section 5, the nature of the Investor Group’s businesses and other factors, have conflicts of interest or potential conflicts of interest, (b) hereby renounces and disclaims any interest or expectancy in any business opportunity (including any Other Investments or any other opportunities that may arise in connection with the circumstances described in the foregoing clauses (a)(i) through (a)(v) (each, a “Renounced Business Opportunity”)), (c) acknowledges and affirms that no member of Investor Group, including any Director Nominee, shall have any obligation to communicate or offer any Renounced Business Opportunity to the Company or any of its Subsidiaries, and any member of Investor Group may pursue a Renounced Business Opportunity and (d) waives any claim against the Investor Group and each member thereof. The Company agrees that in the event that the Investor Group or any member thereof acquires knowledge of a potential transaction or matter which may constitute a corporate opportunity for both (x) the Investor Group and (y) the Company or its Subsidiaries, a member of the Investor Group shall not have any duty to offer or communicate information regarding such corporate opportunity to the Company or its Subsidiaries. To the fullest extent permitted by applicable law, the Company hereby waives any claim against the Investor Group and each member thereof that such member or the Investor Group is liable to the Company or its stockholders for breach of any fiduciary duty solely by reason of the fact that the Investor Group or such member of the Investor Group (A) pursues or acquires any corporate opportunity for its own account or the account of any Affiliate or other Person, (B) directs, recommends, sells, assigns or otherwise transfers such

corporate opportunity to another Person or (C) does not communicate information regarding such corporate opportunity to the Company. Notwithstanding anything to the contrary in the foregoing, the Company does not renounce its interest in any corporate opportunity if such corporate opportunity was expressly offered to a Director Nominee solely in his or her capacity as a member of the Board of Directors; provided that such opportunity has not been separately presented to the Investors, their Affiliates or their respective Representatives. Notwithstanding anything to the contrary in the foregoing, the Company shall not be prohibited from pursuing any Renounced Business Opportunity as a result of this Section 5.

6. Access to Information.

(a) For so long as the Investors meet the Minimum Ownership Threshold and subject to the provisions of Section 7, if there is not at such time an Appointed Director or any other member of the Board affiliated with the Investors serving on the Board:

(i) the Company shall, and shall cause its Subsidiaries and Representatives to, deliver to the Investor Representative (who shall have the right to share such information provided by the Company, its Subsidiaries or its Representatives with the Investor Group) promptly upon reasonable advance notice, all books, records and information, including financial information, and documents concerning or regarding its businesses, properties and assets and personnel of the Company and its Subsidiaries as may reasonably be requested by or on behalf of the Investors or their Affiliates.

(ii) the Company shall (and shall cause its Subsidiaries to), upon reasonable prior notice, afford the Investors, their Affiliates and their respective Representatives reasonable access, during normal business hours, to the Company, its employees, agents, properties, offices and other facilities, contracts, books and records. The Company shall, and shall cause its Subsidiaries and Representatives to, cooperate with the Investors, their Affiliates and their Representatives in connection with such investigation and examination, and the Investors, their Affiliates and their Representatives shall cooperate with the respective Representatives of the Company and shall use their reasonable best efforts to minimize any disruption to the business.

(b) For so long as the Investors meet the Minimum Ownership Threshold and subject to the provisions of Section 7, the Appointed Director may, from time to time, share Confidential Information he or she receives with the Investor Group.

7. Confidentiality.

(a) The Investors will, and will direct their respective Affiliates and their respective Representatives who actually receive Confidential Information to, keep confidential any Confidential Information and to use the Confidential Information solely for the purposes of monitoring, administering or managing the Investors’ investment in the Company made pursuant to this Agreement; provided that an Investor may disclose Confidential Information (i) to its attorneys, accountants, consultants and financial and other professional advisors to the extent reasonably necessary to obtain their services in connection with its investment in the Company, (ii) subject to the provisions of Section 3, to any prospective purchaser of Equity Securities from such Investor (as long as such prospective purchaser is not an owner, operator or franchisor of

casual dining restaurants or an Affiliate of any such person) agrees in writing to be bound by similar confidentiality or non-disclosure terms as are contained in this Agreement (with the Company as an express third-party beneficiary of such agreement), (iii) to any Affiliate, partner, member, limited partners, or related investment fund of such Investor and their Affiliates and their respective Representatives, in each case in the ordinary course of business (provided that the recipients of such Confidential Information are directed to abide by the confidentiality and non-disclosure obligations contained herein), (iv) as may be reasonably determined by such Investor to be necessary in connection with such Investor’s enforcement of its rights in connection with this Agreement or its investment in the Company, or (v) as may otherwise be required by law or legal, judicial or regulatory process; and provided, further, that (x) any breach of the confidentiality and use terms herein by any Person to whom such Investor may disclose Confidential Information pursuant to clauses (i) and (iii) of the preceding proviso shall be attributable to such Investor for purposes of determining such Investor’s compliance with this Section 7, except those who have entered into a separate confidentiality or non-disclosure agreement or obligation with the Company and (y) that such Investor takes commercially reasonable steps (at the Company’s sole expense) to minimize the extent of any required disclosure described in clause (v) of the preceding proviso.

(b) For purposes of this Agreement, the following terms shall have the following meanings:

(i) “Confidential Information” means any information (including oral, written and electronic information) regarding the Company or its Subsidiaries that may be furnished to the Investors, their Affiliates or their Representatives by or on behalf of the Company pursuant to this Agreement that is non-public, confidential or proprietary in nature, together with all analyses, compilations, forecasts, studies or other documents prepared by the Investors or their respective Affiliates or Representatives which contain, are based upon or otherwise reflect such information. “Confidential Information” shall not include such portions of the Confidential Information that (a) are or become generally available to the public other than as a result of the Investors’, their Affiliates’ or their Representatives’ disclosure in violation of this Agreement, (b) are or become available to the Investors, their Affiliates or their Representatives on a non-confidential basis from a source other than the Company or its Subsidiaries, (c) were already in the Investors’, their Affiliates’ or their Representatives’ possession prior to the date of this Agreement and which were not obtained from the Company or its Subsidiaries or (d) are independently developed by the Investors, their Affiliates or their Representatives without reference to the Confidential Information.

(ii) “Representatives” means a Person’s directors, members, officers, employees, agents, consultants, accountants, attorneys or financial advisors and direct or indirect members or partners or Affiliates of the foregoing.

(c) The provisions of this Agreement shall supersede that certain Non-Disclosure Agreement, dated April 17, 2020, by and between the Company and Act III Management, LLC but shall not supersede the existing Non-Disclosure Agreement, dated October 3, 2019, by and among the Company, Noah Elbogen and Trust LLC.

8. Specific Performance. Each of the Investors, on the one hand, and the Company, on the other hand, acknowledges and agrees that irreparable injury to the other Party hereto would occur in the event any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached and that such injury would not be adequately compensable by the remedies available at law (including the payment of money damages). It is accordingly agreed that the Investors, on the one hand, and the Company, on the other hand (in each case, the “Moving Party”), shall each be entitled to specific enforcement of, and injunctive relief to prevent any violation of, the terms hereof, and the other Party hereto will not take action, directly or indirectly, in opposition to the Moving Party seeking such relief on the grounds that any other remedy or relief is available at law or in equity. This Section 8 is not the exclusive remedy for any violation of this Agreement.

9. Section 16 Matters. If the Company becomes a party to a consolidation, merger or other similar transaction, or if the Company proposes to take or omit to take any other action under Section 4 (including granting to the Investors or their Affiliates the right to participate in any issuance of New Securities) or otherwise or if there is any event or circumstance that may result in the Investor Group or any member thereof being deemed to have made a disposition or acquisition of Equity Securities or derivatives thereof for purposes of Section 16 of the Exchange Act (including the purchase by the Investors of any New Securities under Section 4 or any awards or grants made to the Director Nominee), and if the Director Nominee is serving on the Board at such time or has served on the Board during the preceding six (6) months (i) the Board or a committee thereof composed solely of two (2) or more “non-employee directors” as defined in Rule 16b-3 of the Exchange Act will pre-approve such acquisition or disposition of equity securities of the Company or derivatives thereof for the express purpose of exempting the interests of Investor Group or any member thereof (for the Investors and/or their Affiliates, to the extent such persons may be deemed to be “directors by deputization”) in such transaction from Section 16(b) of the Exchange Act pursuant to Rule 16b-3 thereunder and (ii) if the transaction involves (A) a merger or consolidation to which the Company is a party and the Common Stock is, in whole or in part, converted into or exchanged for equity securities of a different issuer, (B) a potential acquisition or deemed acquisition, or disposition or deemed disposition, by Investor Group or any member thereof of equity securities of such other issuer or derivatives thereof and (C) an Affiliate or other designee of the Investors or their Affiliates will serve on the board of directors (or its equivalent) of such other issuer pursuant to the terms of an agreement to which the Company is a party (or if the Investors notify the Company of such service a reasonable time in advance of the closing of such transactions), then if the Company requires that the other issuer pre-approve any acquisition of equity securities or derivatives thereof for the express purpose of exempting the interests of any director or officer of the Company or any of its subsidiaries in such transactions from Section 16(b) of the Exchange Act pursuant to Rule 16b-3 thereunder, the Company shall require that such other issuer pre-approve any such acquisitions of equity securities or derivatives thereof for the express purpose of exempting the interests of Investor Group or any member thereof (for the Investors and/or their Affiliates, to the extent such persons may be deemed to be “directors by deputization” of such other issuer) in such transactions from Section 16(b) of the Exchange Act pursuant to Rule 16b-3 thereunder.

10. Securities Laws. Each Investor acknowledges that it is aware, and will advise each of its representatives who are informed as to the matters that are the subject of this Agreement, that the United States securities laws may prohibit any person who directly or indirectly has received from an issuer material, non-public information from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.

11. Miscellaneous.

(a) Governing Law; Jurisdiction; Jury Trial. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal laws of the State of California, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of California or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of California. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in Los Angeles County, California, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.

(b) Counterparts. This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each Party and delivered to the other Parties; provided that a facsimile or .pdf signature shall be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original, not a facsimile or .pdf signature.

(c) Headings. The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this Agreement.

(d) Severability. If any provision of this Agreement is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions of this Agreement so long as this Agreement as so modified continues to express, without material change, the original intentions of the Parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the Parties or the practical realization of the benefits that would otherwise be conferred upon the Parties. The Parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).

(e) Entire Agreement; Amendment and Waiver. This Agreement and the other Transaction Documents (as defined in the Purchase Agreement) supersede all other prior oral or written agreements between the Investors, the Company, their Affiliates and Persons acting on their behalf with respect to the matters discussed herein, and this Agreement, the other Transaction Documents, and the instruments referenced herein and therein contain the entire understanding of the Parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor any Investor makes any representation, warranty, covenant or undertaking with respect to such matters. Provisions of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and the Investor Representative. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by law. Any amendment or waiver effected in accordance with this Section 11(e) shall be binding upon each Investor and the Company. No such amendment shall be effective to the extent that it applies to less than all of the Investors. Notwithstanding the foregoing, any Affiliate of Buyer (as defined in the Purchase Agreement) to whom there is a Transfer (as defined in the Purchase Agreement) of Securities shall have the right to become party to this Agreement as an Investor pursuant to a joinder to this Agreement.

(f) Notices. Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon delivery, when sent by electronic mail; or (iii) one business day after deposit with an overnight courier service, in each case properly addressed to the party to receive the same. The addresses and e-mail addresses for such communications shall be:


If to the Company:		BJ’s Restaurants, Inc. 7755 Center Avenue Huntington Beach, California 92647 Attention: Greg Levin E-mail: glevin@bjsrestaurants.com

with a copy (for informational purposes only) to:		Elkins Kalt Weintraub Reuben LLC 10345 W. Olympic Blvd. Los Angeles, CA 90064 Attention: Robert Steinberg, Esq. E-mail: rsteinberg@elkinskalt.com



If to Trust LLC:		SC 2018 Trust LLC 23 Prescott St. Brookline, MA 02446 Attention: Ron Shaich E-mail: ronshaich@act3holdings.com

with a copy (for informational purposes only) to:		Sullivan & Cromwell LLP 125 Broad St. New York, NY 10004 Attention: Frank Aquila Audra D. Cohen E-mail: aquilaf@sullcrom.com cohena@sullcrom.com

If to the Investor Representative:		Ron Shaich 23 Prescott St. Brookline, MA 02446 E-mail: ronshaich@act3holdings.com

with a copy (for informational purposes only) to:		Sullivan & Cromwell LLP 125 Broad St. New York, NY 10004 Attention: Frank Aquila Audra D. Cohen E-mail: aquilaf@sullcrom.com cohena@sullcrom.com

If to an Investor, to its address and e-mail address set forth on the Schedule of Investors attached hereto, with copies to such Investor’s representatives as set forth on such Schedule of Investors, with a copy (for informational purposes only) to:

Sullivan & Cromwell LLP

125 Broad St.

New York, NY 10004

Attention: Frank Aquila

Audra D. Cohen

E-mail: aquilaf@sullcrom.com

cohena@sullcrom.com

or to such other address and/or e-mail address and/or to the attention of such other Person as the recipient Party has specified by written notice given to each other Party five (5) days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s e-mail containing the time, date, recipient e-mail address or (C) provided by an overnight courier service shall be rebuttable evidence of personal service, receipt by e-mail or receipt from an overnight courier service in accordance with clause (i), (ii) or (iii) above, respectively.

(g) Successors and Assigns. The terms and conditions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the Parties and their respective successors, heirs, and permitted assigns. No Party shall assign this Agreement or any rights or obligations hereunder without, with respect to any Investor, the prior written consent of the Company, except to an Affiliate of Buyer, and with respect to the Company, the prior written consent of the Investor Representative.

(h) No Third Party Beneficiaries. This Agreement is intended solely for the benefit of the Parties and their respective successors, heirs and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.

(i) Interpretation; Absence of Presumption.

(i) When a reference is made in this Agreement to an Article, Section, Schedule or Exhibit, such reference shall be to an Article, Section, Schedule or Exhibit of this Agreement unless otherwise indicated.

(ii) Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”

(iii) The words “hereof,” “herein,” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole (including all of the Schedules and Exhibits) and not to any particular provision of this Agreement.

(iv) Unless otherwise specified in this Agreement, the term “dollars” and the symbol “$” mean U.S. dollars for purposes of this Agreement and all amounts in this Agreement shall be paid in U.S. dollars.

(v) The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term.

(vi) Any agreement, instrument or statute defined or referred to in this Agreement means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes.

(vii) Each of the Parties has participated in the drafting and negotiation of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if it is drafted by each of the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of authorship of any of the provisions of this Agreement.

[The remainder of this page intentionally left blank]

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized signatories of the Parties as of the date hereof.


BJ’S RESTAURANTS, INC.

By:		/s/ Gregory S. Levin
		Name: Gregory S. Levin
		Title: President, Chief Financial Officer and Secretary

[Signature Page to Investor Rights Agreement]

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized signatories of the Parties as of the date hereof.


SC 2018 TRUST LLC

By:		/s/ Gad Liwerant
		Name: Gad Liwerant
		Title: Manager

[Signature Page to Investor Rights Agreement]

Schedule 1

1.	Keith Pascal

2.	Charles Chapman

3.	Dwight Jewson

EX-99.5 5 d901752dex995.htm EX-99.5 EX-99.5

Exhibit 99.5

THE SECURITIES REPRESENTED HEREBY AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS AND MAY BE OFFERED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED, TRANSFERRED OR OTHERWISE DISPOSED OF (EACH, A “TRANSFER”) ONLY IF SUCH SECURITIES ARE REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR IF SUCH TRANSFER IS MADE PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH STATE SECURITIES LAWS AFTER PROVIDING AN OPINION OF COUNSEL TO SUCH EFFECT.

COMMON STOCK PURCHASE WARRANT

BJ’S RESTAURANTS, INC.


Warrant Shares: 875,000		Initial Issuance Date: May 5, 2020

THIS COMMON STOCK PURCHASE WARRANT (this “Warrant”) certifies that, for value received, BJ’S Act III, LLC or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, on or prior to the Close of Business on May 4, 2025 (the “Termination Date”) but not thereafter, to subscribe for and purchase from BJ’s Restaurants, Inc., a California corporation (the “Company”), up to 875,000 duly authorized, validly issued, fully paid and nonassessable shares of Common Stock (as subject to adjustment hereunder, the “Warrant Shares”). The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price (as defined below). This Warrant supersedes and replaces an original Common Stock Purchase Warrant, dated May 5, 2020, issued to SC 2018 Trust LLC at the Closing of the transactions contemplated by the Purchase Agreement.

Section 1. Definitions. Capitalized terms used and not otherwise defined in this Warrant that are defined in the Purchase Agreement shall have the respective meanings ascribed to such terms in the Purchase Agreement. As used in this Warrant, the following terms shall have the respective meanings set forth in this Section 1:

a) “Aggregate Exercise Price” means an amount equal to the product of (i) the number of Warrant Shares in respect of which this Warrant is then being exercised pursuant to Section 2, multiplied by (ii) the Exercise Price in effect as of the Exercise Date in accordance with the terms of this Warrant; provided that for the purposes of Section 3(a), “Aggregate Exercise Price” shall mean an amount equal to the product of (x) the total number of Warrant Shares initially issuable pursuant to this Warrant (as adjusted pursuant to Section 3(a)) multiplied by (y) the Exercise Price in effect as of the date of the applicable adjustment pursuant to Section 3(a).

b) “Business Day” means a day that is a Monday, Tuesday, Wednesday, Thursday or Friday and is not a day on which banking institutions in New York, New York generally are authorized or obligated by law, regulation or executive order to close.

c) “Cashless Exercise Date” has the meaning set forth in Section 2(c).

d) “Change of Control” means, at any time, the occurrence of any of the following events or circumstances: (i) any “person” or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act) shall (A) become the “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act), directly or indirectly, of securities of the Company representing 50% or more of the total voting power represented by the Company’s then outstanding voting securities or (B) otherwise acquire, directly or indirectly, the power to direct or cause the direction of the management or policies of the Company, whether through the ability to exercise voting power, by contract or otherwise, (ii) persons who were (A) directors of the Company on the date hereof or (B) appointed by directors who were directors of the Company on the date hereof or were nominated or approved by directors who were directors of the Company on the date hereof shall cease to occupy a majority of the seats (excluding vacant seats) on the Board, (iii) the consummation of a merger or consolidation of the Company with or into any other Person, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent at least 50% of the total voting power represented by the voting securities of the Company or such surviving entity or its parent outstanding immediately after such merger or consolidation or (iv) any direct or indirect sale, transfer or other disposition, in one transaction or a series of related transactions, of all or substantially all of the assets of the Company and its subsidiaries, taken as a whole (it being agreed that the sale, transfer or other disposition by any Person of the Equity Interests of any subsidiary constitutes an indirect sale, transfer or disposition of the assets of such subsidiary).

e) “Close of Business” means 5:00 p.m., eastern time, on any Business Day.

f) “Closing Bid Price” means, for any date, the price determined by the first of the following clauses that applies: (i) if the Common Stock is then listed or quoted on a Trading Market, the last reported closing bid price of the Common Stock for such date on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P., (ii) if the Common Stock is not then listed on a Trading Market or quoted for trading on the OTC Bulletin Board and if prices for the Common Stock are then reported in the “Pink Sheets” published by OTC Markets Group Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported or (iii) in all other cases, the fair market value of a share of Common Stock as determined by an independent nationally recognized investment banking, accounting or valuation firm selected in good faith by the Company and reasonably acceptable to the Holder, the fees and expenses of which shall be paid by the Company.

g) “Commission” means the U.S. Securities and Exchange Commission.

h) “Common Stock” means the common stock, no par value per share, of the Company.

i) “Company” has the meaning set forth in the Preamble.

j) “DWAC” has the meaning set forth in Section 2(d).

k) “Equity Interests” means any and all shares, interests, participations or other equivalents (however designated) of equity interests of a corporation, any and all equivalent ownership interests in a Person other than a corporation (including, without limitation, partnership interests, membership interests and similar ownership interests), any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing, and all other ownership or profit interests in a Person (including partnership, member or trusts interests in such Person), in each case whether voting or non-voting and whether or not outstanding on any date of determination.

l) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as the same may be amended from time to time.

m) “Exercise Date” has the meaning set forth in Section 2(a).

n) “Excluded Issuance” means any issuance or sale by the Company after the Initial Issuance Date of: (i) shares of Common Stock issued upon the exercise of this Warrant; (ii) options, Convertible Securities (as defined in the Investor Rights Agreement) and shares of Common Stock (as such number of shares is equitably adjusted for subsequent stock splits, stock combinations, stock dividends and recapitalizations) issued directly or upon the conversion or exercise of options or Convertible Securities to directors, officers, employees, or consultants of the Company in connection with their service as directors of the Company, their employment by the Company or their retention as consultants by the Company, in each case authorized by the Board and issued pursuant to the Company’s Equity Incentive Plan or any successor plan (including all such shares of Common Stock, options and Convertible Securities outstanding prior to the Initial Issuance Date); (iii) shares of Common Stock issued upon the conversion or exercise of options or Convertible Securities (other than options and Convertible Securities covered by clause (ii) above) issued prior to the Initial Issuance Date, or (iv) any Equity Securities (as defined in the Investor Rights Agreement) with respect to which the Investors (as defined in the Investor Rights Agreement) had exercised preemptive rights under the Investors Rights Agreement.

o) “Exercise Price” has the meaning set forth in Section 2(b).

p) “Governmental Authority” means any supra-national, national, federal, provincial, state, municipal or other government, or political subdivision thereof, and any governmental department, commission, board, bureau, court, agency, authority, regulatory body, central bank, or instrumentality or other entity or officer exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

q) “Holder” has the meaning set forth in the Preamble.

r) “Initial Issuance Date” means May 5, 2020.

s) “Investor Rights Agreement” means the Investor Rights Agreement dated as of May 1, 2020, by and among the Company, the Holder and any transferees of the Securities (as defined in the Purchase Agreement) who agree to become subject to the Investor Rights Agreement.

t) “Moving Party” has the meaning set forth in Section 5(g).

u) “Notice of Exercise” has the meaning set forth in Section 2(a).

v) “Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity and any governmental entity or any department or agency thereof.

w) “Purchase Agreement” means the Securities Purchase Agreement, dated as of May 1, 2020, by and between the Company and the Holder.

x) “Registration Rights Agreement” means the Registration Rights Agreement, dated as of May 5, 2020, by and among the Company, and the Investors (as defined in the Registration Rights Agreement).

y) “Termination Date” has the meaning set forth in the Preamble.

z) “Trading Day” means a day on which the Common Stock is traded on a Trading Market or, if the Common Stock is not traded on a Trading Market, then on the principal securities exchange or securities market on which the Common Stock is then traded.

aa) ”Trading Market” means any market or exchange of the Nasdaq Stock Market LLC or the New York Stock Exchange.

bb) “Transfer Agent” has the meaning set forth in Section 2(d).

cc) “VWAP” means, for any date, the price determined by the first of the following clauses that applies: (i) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:00 p.m. (New York City time)), (ii) if the Common Stock is not then listed on a Trading Market or quoted for trading on the OTC Bulletin Board and if prices for the Common Stock are then reported in the “Pink Sheets” published by OTC Markets Group Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported or (iii) in all other cases, the fair market value of a share of Common Stock as determined by an independent nationally recognized investment banking, accounting or valuation firm selected in good faith by the Company and reasonably acceptable to the Holder, the fees and expenses of which shall be paid by the Company.

dd) “Warrant” has the meaning set forth in the Preamble.

ee) “Warrant Register” has the meaning set forth in Section 4(c).

ff) “Warrant Share Delivery Date” has the meaning set forth in Section 2(d).

gg) “Warrant Shares” has the meaning set forth in the Preamble.

Section 2. Exercise.

a) Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or before the Termination Date by delivery to the principal office of the Company (or such other office or agency of the Company as it may designate by notice in writing to the registered Holder at the address of the Holder appearing on the books of the Company) of a duly executed facsimile or original copy of the Notice of Exercise Form annexed hereto (each, a “Notice of Exercise”). Unless the purchase rights represented by this Warrant are being exercised on a cashless basis in accordance with Section 2(c), within three Trading Days following the date of exercise as aforesaid, the Holder shall deliver the Aggregate Exercise Price for the shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank (such date of delivery of the Aggregate Exercise Price, the “Exercise Date”). Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and this Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three Trading Days of the date the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall inform the Holder if a Notice of Exercise has not been duly completed within one Business Day of receipt of such notice, but shall not refuse or object to the issuance of the Warrant Shares upon receipt of, and pursuant to, a duly completed Notice of Exercise. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.

b) Exercise Price. The exercise price per share of the Common Stock under this Warrant shall be $27.00, subject to adjustment hereunder (the “Exercise Price”).

c) Cashless Exercise. If at the time of exercise of this Warrant there is no effective registration statement registering the resale of the Warrant Shares by the Holder, the Holder, at its option, may exercise this Warrant, in whole or in part, by means of a “cashless exercise” in which the Holder shall be entitled to receive a certificate for the number of Warrant Shares equal to the quotient obtained by dividing [(Y)*(A-B)] by (A), where:


(A)		=		the average of the Closing Bid Price of the shares of Common Stock for the five consecutive Trading Days ending on the last Trading Day immediately preceding the date on which the Holder elects to exercise this Warrant by means of a “cashless exercise,” as set forth in the applicable Notice of Exercise (such date, the “*Cashless Exercise Date*”);


(B)	=	the Exercise Price of this Warrant, as adjusted hereunder in effect of the Cashless Exercise Date; and

(Y)	=	the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise pursuant to Section 2(a) rather than a cashless exercise.

d) Mechanics of Exercise.

i. Delivery of Certificates Upon Exercise. Certificates for shares purchased hereunder shall be transmitted by the Company’s transfer agent (the “Transfer Agent”) to the Holder by, at the Holder’s option, (A) crediting the account of the Holder’s prime broker with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder or (B) physical delivery of a certificate (or certificates, as applicable) for the applicable number of Warrant Shares to the address specified by the Holder in the Notice of Exercise by the date that is three Trading Days after the latest of (1) the delivery to the Company of the Notice of Exercise, (2) surrender of this Warrant (if required), (3) payment of the Aggregate Exercise Price as set forth above and (4) three Trading Days following the Cashless Exercise Date, if applicable (such date in (1), (2), (3) or (4), the “Warrant Share Delivery Date”). The applicable Warrant Shares shall be deemed to have been issued, and the Holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the applicable Exercise Date or the date that is three Trading Days following the Cashless Exercise Date, as applicable.

ii. Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of the Holder and upon surrender of this Warrant, at the time of delivery of the certificate or certificates representing the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.

iii. Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder a certificate or the certificates representing the Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date, then the Holder shall have the right to rescind such exercise. Any rescission by the Holder pursuant to this Section 2(d)(iii) shall not affect any other remedies available to the Holder under applicable law or equity as a result of the Company’s failure to timely deliver the Warrant Shares.

iv. No Fractional Shares. No fractional shares shall be issued upon the exercise of this Warrant. As to any fraction of a Warrant Share that the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at the Holder’s election, either (A) pay to such Holder an amount in cash (by delivery of a certified or official bank check or by wire transfer of immediately available funds) equal to the product of (1) such fraction multiplied by (2) the Closing Bid Price of one Warrant Share on the Exercise Date or the Cashless Exercise Date, as applicable, or (B) round up to the next whole share.

v. Closing of Books. The Company shall not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant pursuant to the terms hereof.

e) Conditional Exercise. Notwithstanding any other provision hereof, if an exercise of any portion of this Warrant is to be made in connection with a public offering or a sale of the Company (pursuant to a merger, sale of stock, or otherwise), such exercise may, at the election of the Holder (set forth in the applicable Notice of Exercise), be conditioned upon the consummation of such transaction, in which case such exercise shall not be deemed to be effective until immediately prior to the consummation of such transaction.

f) Representations, Warranties and Covenants of the Company. The Company hereby represents, covenants and agrees, as applicable:

i. The Company (A) is a corporation duly organized and validly existing and in good standing under the laws of the State of California, and has the requisite power and authority to own its properties and to carry on its business as now being conducted and as presently proposed to be conducted and (B) is duly qualified as a foreign entity to do business and is in good standing in every jurisdiction in which its ownership of property or the nature of the business conducted by it makes such qualification necessary.

ii. The issuance of this Warrant and any Warrant in substitution for or replacement of this Warrant (including pursuant to Section 2(d)(ii)) is and shall be duly authorized and, upon issuance, shall be (A) validly issued and free from all preemptive or similar rights, taxes, Liens, charges and other encumbrances with respect to the issue thereof, (B) a legal, valid and binding obligation of the Company, enforceable against the Company 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. Upon any exercise of this Warrant (whether in part or in whole), the applicable Warrant Shares will be validly issued, fully paid and nonassessable and free from all preemptive or similar rights, taxes, Liens, charges and other encumbrances with respect to the issue thereof, with the Holder being entitled to all rights accorded to a holder of Common Stock. Assuming in part the accuracy of each of the representations and warranties of the Holder set forth in Section 2(g) of this Warrant, the offer and issuance by the Company of this Warrant is exempt from registration under the 1933 Act.

iii. The execution, delivery and performance by the Company of this Warrant and the consummation by the Company of the transactions contemplated hereby does not and will not (A) result in a violation of the Articles of Incorporation or the Bylaws, (B) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) in any respect under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party or result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of the Company or any of its Subsidiaries or (C) result in a violation of any law, rule, regulation, order, judgment or decree (including foreign, federal and state securities laws and regulations and the rules and regulations of the Trading Market and applicable laws of the State of California and any foreign, federal, and other state laws) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected.

iv. The Company covenants that, during the period this Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights represented by this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of executing stock certificates to execute and issue the necessary certificates for the Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such action as may be necessary or appropriate to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, of any requirements of the Trading Market upon which the Common Stock may be listed or any preemptive or similar rights of any equity holder of the Company. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, Liens and charges (other than taxes in respect of any transfer occurring contemporaneously with such issue).

v. Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, through an amendment of its Articles of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of the Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (A) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (B) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (C) use its reasonable best efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.

vi. Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.

g) Representations and Warranties of the Holder. The Holder, by the acceptance hereof, represents and warrants that it is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D and that it is acquiring this Warrant and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered or exempted under the 1933 Act.

Section 3. Certain Adjustments. In order to prevent dilution of the purchase rights granted under this Warrant, the Exercise Price and the number of Warrant Shares issuable upon exercise of this Warrant shall be subject to adjustment from time to time as provided in this Section 3 (in each case, after taking into consideration any prior adjustments pursuant to this Section 3).

a) Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions on shares of Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this Warrant), (ii) subdivides (by

any stock split, recapitalization or otherwise) outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares or (iv) issues by reclassification of shares of Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be adjusted by multiplying the Exercise Price in effect immediately prior to (A) the record date for the determination of stockholders entitled to receive such dividend or distribution or (B) the effective date in the case of a subdivision, combination or re-classification by a fraction, the numerator of which shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and the denominator of which shall be the number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the Aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.

b) Pro Rata Distributions. If the Company, at any time while this Warrant is outstanding, shall distribute to all holders of Common Stock (and not to the Holder) evidences of its indebtedness or assets (including cash and cash dividends) or rights or warrants to subscribe for or purchase any security, then in each such case the Exercise Price shall be adjusted by multiplying the Exercise Price in effect immediately prior to the record date fixed for determination of stockholders entitled to receive such distribution by a fraction, the numerator of which shall be such VWAP on such record date less the then fair market value (as determined by the Board in good faith) at such record date of the portion of such assets or evidence of indebtedness so distributed applicable to one outstanding share of Common Stock, and the denominator of which shall be the VWAP determined as of the record date mentioned above. Such adjustment shall be made whenever any such distribution is made and shall become effective immediately after the record date mentioned above.

c) Issuance Less Than Fair Market Value.

i. Except as provided in Section 3(e) and except in the case of an event described in either Section 3(a) or Section 3(b), if the Company shall, at any time or from time to time after the Initial Issuance Date, issue or sell any shares of Common Stock without consideration or for consideration per share less than the VWAP immediately prior to such issuance or sale , then immediately upon such issuance or sale, the Exercise Price in effect immediately prior to such issuance or sale shall be reduced (and in no event increased) to an Exercise Price equal to a product obtained by multiplying the Exercise Price in effect immediately prior to such issuance or sale, by a fraction (which shall in no event be more than one):

(1) the numerator of which shall be the sum of (A) the product obtained by multiplying the Common Stock deemed outstanding immediately prior to such issuance or sale by the VWAP immediately prior to such issuance or sale plus (B) the aggregate consideration, if any, received by the Company upon such issuance or sale; and

(2) the denominator of which shall be the product obtained by multiplying (A) the Common Stock outstanding immediately after such issuance or sale by (B) the VWAP immediately prior to such issuance or sale.

ii. Upon any and each adjustment of the Exercise Price as provided in Section 3(c)(i), the number of Warrant Shares issuable upon the exercise of this Warrant immediately prior to any such adjustment shall be increased to a number of Warrant Shares equal to the quotient obtained by dividing:

(1) the product of (x) the Exercise Price in effect immediately prior to any such adjustment multiplied by (y) the number of Warrant Shares issuable upon exercise of this Warrant immediately prior to any such adjustment; by

(2) the Exercise Price resulting from such adjustment.

d) Certain Events. If any event of the type contemplated by the provisions of this Section 3 but not expressly provided for by such provisions occurs, then the Board shall make an appropriate adjustment in the Exercise Price and the number of Warrant Shares issuable upon exercise of this Warrant so as to protect the rights of the Holder in a manner consistent with the provisions of this Section 3; provided, that no such adjustment pursuant to this Section 3(d) shall increase the Exercise Price or decrease the number of Warrant Shares issuable as otherwise determined pursuant to this Section 3.

e) Excluded Issuance. Anything herein to the contrary notwithstanding, there shall be no adjustment to the Exercise Price or the number of Warrant Shares issuable upon exercise of this Warrant with respect to any Excluded Issuance.

f) Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock issued and outstanding.

g) Notice to the Holder.

i. Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly compute such adjustment, in good faith, in accordance with the terms of this Warrant, and prepare a certificate setting forth such adjustment, including (A) a statement of the adjusted Exercise Price and adjusted number or type of Warrant Shares or other securities issuable upon exercise of this Warrant (as applicable), (B) in the case of adjustment pursuant to Section 3(b), a statement of the portion of assets or evidences of indebtedness so distributed or such subscription rights applicable to one

share of Common Stock, and setting forth a brief statement of the facts requiring such adjustment and certifying the calculation thereof and (C) in the case of adjustment pursuant to Section 3(c), a statement of the material terms of the issuance of Common Stock, including (w) the per share consideration of such issuance, (x) the total amount received or receivable by the Company as consideration for such issuance, (y) the date of such issuance and (z) the VWAP immediately prior to such issuance. The Company will deliver a copy of each such certificate to the Holder as promptly as reasonably practicable following any adjustment of the Exercise Price, but in any event not later than ten Business Days thereafter.

ii. Notice to Allow Exercise by the Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall authorize the granting to all holders of the Common Stock or rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights of the Company, (D) the Company enters into or becomes bound by an agreement in connection with a Change of Control or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be mailed to the Holder at its last address as it shall appear upon the Warrant Register (as defined below) of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distribution, redemption, rights or warrants are to be determined or (y) the date on which such Change of Control is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of Common Stock for securities, cash or other property deliverable upon such Change of Control; provided that the failure to mail such notice or any defect therein or in the mailing thereof shall not affect the validity of the corporate action required to be specified in such notice. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein. Except as otherwise prohibited by applicable laws, to the extent that any notice provided pursuant to this Section 3(g)(ii) contains material, non-public information regarding the Company, the Company shall disclose such information regarding the Company in a Current Report on Form 8-K and file such Current Report on Form 8-K with the Commission no later than the second Trading Day following the date such notice is delivered to the Holder, unless (1) such disclosure shall cause the Company to be in breach of a bona fide agreement between the Company and any third party existing as of the Initial Issuance Date;

provided that the Company shall use its reasonable best efforts to preemptively cure such breach so that the Company can make such disclosure as promptly as possible or (2) the Board reasonably determines that such disclosure would cause material harm to the Company or its business, in which event, the Board can delay such disclosure for up to ten (10) Trading Days following the notice.

h) In the event of any (i) capital reorganization of the Company, (ii) reclassification of the stock of the Company (other than a change in par value or from par value to no par value or from no par value to par value or as a result of a stock dividend or subdivision, split-up or combination of shares), (iii) Change of Control or (iv) other similar transaction (other than any such transaction covered by Section 3(a) or Section 3(b)) in each case which entitles the holders of Common Stock to receive (either directly or upon subsequent liquidation) stock, securities or assets with respect to or in exchange for Common Stock, each Warrant that is not exercised prior to such event shall, immediately after such reorganization, reclassification, Change of Control or similar transaction, remain outstanding and shall thereafter, in lieu of or in addition to (as the case may be) the number of Warrant Shares then exercisable under this Warrant, be exercisable for the kind and number of shares of stock or other securities or assets of the Company or of the successor Person resulting from such transaction to which the Holder would have been entitled upon such reorganization, reclassification, Change of Control or similar transaction if the Holder had exercised this Warrant in full immediately prior to the time of such reorganization, reclassification, Change of Control or similar transaction and acquired the applicable number of Warrant Shares then issuable hereunder as a result of such exercise (without taking into account any limitations or restrictions on the exercisability of this Warrant); and, in such case, appropriate adjustment shall be made with respect to the Holder’s rights under this Warrant to insure that the provisions of this Section 3 shall thereafter be applicable, as nearly as possible, to this Warrant in relation to any shares of stock, securities or assets thereafter acquirable upon exercise of this Warrant (including, in the case of any Change of Control or similar transaction in which the successor or purchasing Person is other than the Company, an immediate adjustment in the Exercise Price to the value per share for the Common Stock reflected by the terms of such Change of Control or similar transaction, and a corresponding immediate adjustment to the number of Warrant Shares acquirable upon exercise of this Warrant without regard to any limitations or restrictions on exercise, if the value so reflected is less than the Exercise Price in effect immediately prior to such Change of Control or similar transaction). The provisions of this Section 3(h) shall similarly apply to successive Change of Control or similar transactions. Prior to the consummation thereof, (A) the successor Person (if other than the Company) resulting from such Change of Control or similar transaction, shall assume, by written instrument substantially similar in form and substance to this Warrant, the obligation to deliver to the Holder such shares of stock, securities or assets which, in accordance with the foregoing provisions, such Holder shall be entitled to receive upon exercise of this Warrant.

Section 4. Transfer of Warrant.

a) Transferability. Subject to applicable securities laws, this Warrant and all rights hereunder are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. This Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued. For the avoidance of doubt, nothing in any of the existing agreements or any other arrangements involving the Company and the Holder or any of their respective Affiliates (contractual or otherwise) shall be construed as limiting the Holder’s or any of its Affiliates’ or assigns’ ability to transfer or exercise this Warrant or transfer any of the Warrant Shares.

b) New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the Initial Issuance Date and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.

c) Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.

Section 5. Miscellaneous.

a) No Rights as Stockholder Until Exercise. Except as provided in Section 3, this Warrant does not entitle the Holder to any voting rights, dividends or other rights as a shareholder of the Company prior to the exercise hereof as set forth in Section 2(d).

b) Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of this Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company shall make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.

c) Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein is not a Business Day, such action may be taken or such right may be exercised on the next succeeding Business Day.

d) Governing Law; Jurisdiction.

i. Governing Law. This Warrant and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Warrant and the transactions contemplated hereby shall be governed by, and construed in accordance with, the law of the State of California without giving effect to any choice of law or conflict of law provision or rule (whether of the State of California or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of California.

ii. Jurisdiction. Each party hereto irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against any other party hereto in any way relating to this Warrant or the transactions relating hereto, in any forum other than the courts of the State of California sitting in California in Los Angeles County, and of the United States District Court of the Central District of California, and any appellate court from any thereof; and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined in such California State court or, to the fullest extent permitted by applicable law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

iii. Waiver of Venue. Each party hereto irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (ii) of this Section 5. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

iv. Service of Process. Each party hereto irrevocably consents to service of process in the manner provided for notices in Section 5(f).

e) Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS WARRANT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS WARRANT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5(E).

f) Notices. Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Warrant shall be in writing and shall be deemed to be delivered: (i) upon receipt, when delivered personally; (ii) upon delivery, when sent by electronic mail; or (iii) one Business Day after deposit with an overnight courier service, in each case properly addressed to the party to receive the same. The addresses and e-mail addresses for such communications shall be:

if to the Company:

BJ’s Restaurants, Inc.

7755 Center Avenue

Huntington Beach, California 92647

Attention: Greg Levin

E-mail: glevin@bjrestaurants.com

with a copy to (for informational purposes only):

Elkins Kalt Weintraub Reuben Gartside LLP

10345 West Olympic Boulevard

Los Angeles, California 90066

Attention: Robert M. Steinberg, Esq.

E-mail: rsteinberg@elkinskalt.com

if to the Holder:

BJ’s Act III, LLC

23 Prescott St.

Brookline MA 02446

Attention: Ron Shaich

Email: ronshaich@act3holdings.com

with a copy to (for informational purposes only):

Sullivan & Cromwell LLP

125 Broad Street

New York, NY 10004

Attention: Francis J. Aquila

Audra D. Cohen

Email: aquilaf@sullcrom.com

cohena@sullcrom.com

or to such other address and/or e-mail address and/or to the attention of such other Person as the recipient party has specified by written notice given to each other party five days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s e-mail containing the time, date, and recipient e-mail address or (C) provided by an overnight courier service shall be rebuttable evidence of personal service, receipt by facsimile or e-mail or receipt from an overnight courier service in accordance with clause (i), (ii), or (iii) above, respectively.

g) Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any Common Stock or as a shareholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.

h) Remedies. Each of the Holder, on the one hand, and the Company, on the other hand, acknowledges and agrees that irreparable injury to the other party hereto would occur in the event any of the provisions of this Warrant were not performed in accordance with their specific terms or were otherwise breached and that such injury would not be adequately compensable by the remedies available at law (including the payment of money damages). It is accordingly agreed that the Holder, on the one hand, and the Company, on the other hand (in each case, the “Moving Party”), shall each be entitled to specific enforcement of, and injunctive relief to prevent any violation of, the terms hereof, and the other party hereto will not take action, directly or indirectly, in opposition to the Moving Party seeking such relief on the grounds that any other remedy or relief is available at law or in equity. This Section 5(g) is not the exclusive remedy for any violation of this Warrant.

i) Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall be binding upon and inure to the benefit of the parties hereto and their respective the successors, heirs and permitted assigns. The provisions of this Warrant are intended to be for the benefit of the Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares. For the avoidance of doubt, that in the event that any Person acquires this Warrant or any Warrant Shares, such Person shall, without any further writing or action of any kind, be deemed a beneficiary hereof for all purposes and by taking and holding such Warrant or Warrant Shares, as applicable, such Person shall be treated as a “Holder” for all purposes under this Warrant and shall be entitled to receive the benefits of, and be conclusively deemed to have agreed to be bound by all of the applicable terms and provisions of, this Warrant.

j) No Third Party Beneficiary. Notwithstanding anything contained in this Warrant to the contrary, this Warrant is intended solely for the benefit of the parties hereto and their respective successors, heirs and permitted assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.

k) Entire Agreement. This Warrant supersedes all other prior or contemporaneous negotiations, writings and understandings between the Holder, the Company, their Affiliates and Persons acting on their behalf with respect to the matters discussed herein, and this Warrant and the instruments referenced herein constitute the full and entire understanding and agreement among the parties hereto with regard to the matters covered herein and therein, and, except as specifically set forth herein or therein, neither the Company nor the Holder makes any representation, warranty, covenant or undertaking with respect to any such matters.

l) Amendments and Waivers. Provisions of this Warrant may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively) only if such amendment or waiver is in writing and signed, in the case of an amendment, by the Company and the Holder, and, in the case of a waiver, by the party against whom the waiver is to be effective. Any amendment or waiver effected in accordance with this Section 5(k) shall be binding upon the Holder (and each future Holder) and the Company.

m) Counterparts. This Warrant may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party; provided that a facsimile or .pdf format signature shall be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original, not a facsimile or .pdf signature.

n) Severability. If any provision of this Warrant is prohibited by law or otherwise becomes or is declared by a court of competent jurisdiction to be invalid or unenforceable, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions of this Warrant so long as this Warrant as so modified continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties hereto will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).

o) Headings; Interpretation. The headings of this Warrant are for convenience of reference and shall not form part of, or affect the interpretation of, this Warrant. When a reference is made in this Warrant to a Section, Schedule or Annex, such reference shall

be to a Section, Schedule or Annex of this Warrant unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Warrant, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein,” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Warrant as a whole (including all of the Schedules and Annexes) and not to any particular provision of this Warrant. Unless otherwise specified in this Warrant, the term “dollars” and the symbol “$” mean U.S. dollars for purposes of this Warrant and all amounts in this Warrant shall be paid in U.S. dollars. The definitions contained in this Warrant are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute, rule or regulation defined or referred to in this Warrant means such agreement, instrument or statute, rule or regulation as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes. Any reference to any section under the 1933 Act, or any rule promulgated thereunder, shall include any publicly available interpretive releases, policy statements, staff accounting bulletins, staff accounting manuals, staff legal bulletins, staff “no-action,” interpretive and exemptive letters, and staff compliance and disclosure interpretations (including “telephone interpretations”) of such section or rule by the Commission. Each of the parties has participated in the drafting and negotiation of this Warrant. If an ambiguity or question of intent or interpretation arises, this Warrant shall be construed as if it were drafted by each of the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of authorship of any of the provisions of this Warrant.

p) Further Assurances. Each party hereto shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request in order to carry out the intent and accomplish the purposes of this Warrant and the consummation of the transactions contemplated hereby.

(Signature Page Follows)

IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.


BJ’S RESTAURANTS, INC.

By:	/s/ Gregory S. Levin
	Name:	Gregory S. Levin
	Title:	President, Chief Financial Officer and Secretary

[Signature Page to Common Stock Purchase Warrant]


Accepted and agreed,

BJ’s ACT III, LLC

By:	/s/ Ron Shaich
	Name:	Ron Shaich
	Title:	Authorized Signatory

[Signature Page to Common Stock Purchase Warrant]

Annex

NOTICE OF EXERCISE

To: BJ’s Restaurants, Inc.

(1) The undersigned hereby elects to purchase Warrant Shares of the Company pursuant to the terms of the attached Common Stock Purchase Warrant (the “Warrant”), and tenders herewith payment of the applicable exercise price, together with all applicable transfer taxes, if any. Capitalized terms used and not otherwise defined in this Notice of Exercise that are defined in the Warrant shall have the respective meanings ascribed to such terms in the Warrant.

(2) Payment shall take the form of (check applicable box):

[ ] in lawful money of the United States; or

[ ] if permitted, the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in Section 2(c) of the Warrant, to exercise the Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in Section 2(c) of the Warrant.

(3) As to any fraction of a Warrant Share that the undersigned would otherwise be entitled to purchase in connection with this Notice of Exercise, please (check applicable box):

[ ] pay an amount in cash pursuant to Section 2(d)(iv) of the Warrant; or

[ ] round up to the next whole share.

(4) Please issue a certificate or certificates representing said Warrant Shares in the name of the undersigned or in such other name as is specified below:

The Warrant Shares shall be delivered to the following DWAC Account Number or by physical delivery of a certificate to:

[SIGNATURE OF HOLDER]

Name of Investing Entity:

Signature of Authorized Signatory of Investing Entity:

Name of Authorized Signatory:

Title of Authorized Signatory:

Date:

ASSIGNMENT FORM

(To assign the foregoing warrant, execute

this form and supply required information.

Do not use this form to exercise the warrant.)

FOR VALUE RECEIVED, all of or [ ] of the shares of the foregoing Common Stock Purchase Warrant (the “Warrant”) and all rights evidenced thereby are hereby assigned to

whose address is

Dated: ,

Holder’s Signature:

Holder’s Address:

Signature Guaranteed:

NOTE: The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatsoever, and must be guaranteed by a bank or trust company. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the Warrant.