Exhibit 10.1


 


ASSET PURCHASE AGREEMENT


 


This ASSET PURCHASE AGREEMENT
(this “Agreement”) is made and entered into as of April 1, 2015, by and among JAMBA JUICE COMPANY, a
California corporation (“Seller”), and Vitaligent, LLC, a Delaware limited liability company, or its permitted
assigns (“Buyer”).


 


RECITALS


 


WHEREAS, Seller
is the lessee under certain leases (a “Prime Lease” and collectively, the “Prime Leases”)
of certain parcels of real property (a “Leased Property” and collectively, the “Leased Properties”)
currently operated as JAMBA JUICE® stores (each a “Store” and collectively, the “Stores”). Section
4.8 of the Disclosure Schedule contains a complete and accurate list of the Prime Leases, Leased Properties and Stores.


 


WHEREAS, Seller
desires to sell and transfer to Buyer, and Buyer desires to purchase from Seller certain assets concerning the Stores; Seller desires
to sublease to Buyer and Buyer desires to sublease from Seller the Leased Properties; Seller and Buyer desire to enter into Jamba
Juice’s franchise agreements for the operation of the Stores by Buyer as a JAMBA JUICE® Store (a “Franchise
Agreement” and collectively, the “Franchise Agreements”), all upon the terms and subject to the conditions
set forth in this Agreement.


 


AGREEMENT


 


NOW, THEREFORE,
in consideration of the mutual covenants, agreements, representations and warranties contained in this Agreement, the parties
hereby agree as follows:


 


ARTICLE I

DEFINITIONS


 


1.1           Defined
Terms. Unless otherwise defined in this Agreement, all capitalized terms shall have the meanings set forth in Annex 1.1,
attached hereto.


 


ARTICLE II

Purchase and Sale


 


2.1           Transfer
of Assets. At the Closing, Seller hereby agrees to sell, transfer, convey, assign and deliver to Buyer, and Buyer agrees to
purchase, acquire and assume from Seller, all of Seller’s right, title and interest in and to the assets listed below (collectively,
the “Purchased Assets”). The Purchased Assets shall include:


 


(i)          all
machinery, equipment, computer hardware (including the point of sale equipment), furniture, fixtures, tools, signs, vehicles owned
by Seller, and other items of tangible personal property (including Marketable Inventory) located at the Stores (the “Fixed
Assets”); and


 


(ii)         all
goodwill associated with the Stores, subject to the limitations contained in Section 2.2(c).


 




     


     


    

 


2.2           Excluded
Assets. The Purchased Assets shall include only the assets expressly listed in Section 2.1 and shall not include, and
Seller shall not sell, convey, transfer, assign and deliver to Buyer, any other assets of any kind, including but not limited to
the following assets, properties, rights, contracts or claims, wherever located, whether, real, personal, tangible, or intangible,
accrued, contingent or otherwise (the “Excluded Assets”):


 


(a)          all
cash on hand or in banks, checks, drafts or other negotiable instruments except the Change Fund;


 


(b)          all
accounts receivable, refunds, rebates and credits due from the Stores as of the Effective Time;


 


(c)          all
of Seller’s rights provided with respect to the Stores under the Franchise Agreements, including without limitation, the
Marks and the System and any goodwill associated with the Marks and the System;


 


(d)          except
as provided in the Subleases, Seller’s interest as tenant in the Leased Properties and all tenant improvement allowances
still due and outstanding for work completed prior to the Effective Time under the Prime Leases for the Leased Properties;


 


(e)          all
computer software, including without limitation, Kronos, eRS, email access, and all locally installed applications (such as HRB);


 


(f)          all
employee benefit plans;


 


(g)          all
insurance policies and any benefits paid thereunder; and


 


(h)          all
claims and rights to receive tax refunds, credits and benefits relating to the operation or ownership of the Stores or the Purchased
Assets prior to the Effective Time.


 


2.3           Sublease
of Leased Properties.


 


(a)          At
Closing, Seller shall sublease to Buyer all of the Leased Properties. The rental for the Leased Properties shall be an amount equal
to the rent, additional rent, and any and all other amounts due under the Prime Leases. The subleases of the Leased Properties
shall be in the form to be agreed upon by Buyer and Seller prior to Closing and to be attached hereto as Exhibit 2.3(a)
prior to Closing (each a “Sublease” and collectively, the “Subleases”). Prime Leasor will send all
notices and communications directly to Buyer, and Seller shall provide any communications it receives from the landlords to Buyer
promptly but no later than 72 hours after receiving the communications.


 


(i)          Simultaneously
with the execution of the Sublease, Buyer and Seller shall enter into a side agreement in the form to be agreed upon by Buyer and
Seller prior to Closing and to be attached hereto as Exhibit 2.3(b) prior to Closing that governs the use and assignment
language of the sublease (each a “Side Agreement” and collectively, the Side Agreements”).


 




     


     


    

 


(b)          Buyer
has reviewed the Prime Lease of each Leased Property and, except as may be otherwise provided below, acknowledges that the remaining
term under each Prime Lease (specifically excluding any option renewals in the Prime Lease) is acceptable to Buyer.


 


2.4           Excluded
Liabilities. Buyer will not and does not assume, and will not and does not become responsible for, any Liabilities of any kind
of Seller or its affiliates, parent or subsidiary companies, shareholders, directors, employees, successors or assigns (collectively,
for purposes of this Section 2.4, “Seller”), to any person or entity, including, without limitation,
any of Seller’s Liabilities relating to or involving its employees, landlords, vendors, lenders, creditors or suppliers with
respect to Seller’s acts, omissions, or conduct of the Seller’s business occurring prior to the Closing Date. Seller
will remain solely responsible and liable for all such Liabilities including all such Liabilities arising after the Closing Date
based upon acts, omissions or such conduct prior to the Closing Date. “Liabilities” means any debt, claim, liability,
obligation or cause of action of whatever kind or nature, whether known or unknown, whether asserted or unasserted, whether absolute
or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due, including but
not limited to any liability for taxes, employee benefits, fees, fines, penalties, those items set forth in the last sentence of
Section 3.5(a), Sections 3.5(c) and 3.5(d), and for the waivers set forth in Section 13.12.


 


2.5           Area
Development Rights. During the term of the Franchise Agreement, prior to granting any new or recaptured area development rights
within the markets being sold to Buyer in California, Seller shall first offer such area development rights to Buyer. Upon notice
thereof (“Seller’s Notice”), Buyer may notify Seller (“Buyer’s Notice”) of Buyer’s
interest therein and, upon providing such notice, Seller shall enter into good faith negotiations with Buyer with respect thereto.
Buyer’s rights with respect to any such area development rights shall expire 15 days after Buyer receives Seller’s
Notice. If Buyer provides the Buyer’s Notice, Buyer and Seller will cooperate and negotiate in good faith to enter into an
appropriate area development rights agreement within 30 days after Seller receives Buyer’s Notice.


 


2.6           Store
Software. Commencing upon the execution of this Agreement, Seller shall use its reasonable good faith commercial efforts, working
with Buyer, to effectuate the transfer or assist Buyer with obtaining new licenses, of any necessary software and software agreements
reasonably necessary for the efficient operation of the Stores following the Closing Date without interruption in service.


 


ARTICLE III

Purchase Consideration


 


3.1           Cash
Consideration from Buyer at Closing.


 


(a)          The
purchase price (the “Purchase Price”) for the Purchased Assets shall be Thirty-Six Million Dollars ($36,000,000)
plus the amounts due pursuant to Section 3.1(b). The Purchase Price includes the Initial Fee for each of the Stores
otherwise due under any Franchise Agreement.


 




     


     


    

 


(b)          The
amount Buyer shall pay Seller for the (i) Change Fund shall be $1,200.00 per Store, and (ii) Marketable Inventory shall be the
value of Marketable Inventory actually located at a Store at the Effective Time as determined pursuant to this Section. Ten (10)
business days prior to Closing, Seller shall provide Buyer with an estimate of Marketable Inventory using the 2 weeks prior inventory
count, which value shall be used to estimate the Marketable Inventory portion of the Purchase Price. During the evening on the
Closing Date, representatives of Buyer and Seller shall conduct a physical inventory of all items of Marketable Inventory at the
Stores. The final value of the Marketable Inventory shall be determined within 10 business days following the Closing Date by mutual
agreement of Seller and Buyer at cost using the most current price list of each vendor for the Marketable Inventory in effect on
the Closing Date. For the Change Funds, Seller shall ensure that there is exactly $1,200.00 in each Store register at the Effective
Time.


 


(c)          The
Purchase Price shall be paid by Buyer as follows:


 


(i)          An
amount equal to the lesser of (y) $10,000 for each Store that Buyer, using commercially reasonable efforts, does not complete a
Fixed Assets due diligence review prior to the Closing Date or (z) $200,000, shall be paid to the Escrow Agent to cover defects
in and replacements to the Fixed Assets at these Stores as further described in Section 12.3 (“Fixed Assets Escrow”).


 


(ii)         The
balance of the Purchase Price, after the payment in (i) above is made shall be paid to Seller by wire transfer of immediately available
funds to an account designated by Seller at Closing.


 


3.2           Franchise
Agreements and Fees.


 


On the Closing Date, Buyer
as franchisee and Seller as franchisor, shall enter into, for each Store, a mutually acceptable Franchise Agreement together with
any applicable state addendum; provided however, that the Franchise Agreement for each Store shall be modified by a mutually acceptable
addendum to change certain standard terms and conditions (the “Addendum to Franchise Agreement”) as the parties
mutually agree, the form of which will be attached hereto as Exhibit 3.2 prior to Closing. The Addendum to Franchise Agreement
shall provide, among other things, that the continuing royalty rate shall not exceed 5.5% during the initial term of the Franchise
Agreement, the initial term of the Franchise Agreement will be 15 years with 2 successive 10 year renewal periods, the royalty
rate and marketing contribution rates for any renewal term will not exceed the rates being charged to 80% or more of all Jamba
franchisee stores, that there will be no renewal fee upon the first renewal of any franchise agreement and that the renewal fee
on the second renewal of any franchise agreement will be the lesser of $5,000 per Store or the then-current renewal fee offered
in the then-current Franchise Agreement upon exercise of a renewal term. Furthermore, the Buyer agrees to complete the refresh
of those Stores identified in Section 3.2 of the Disclosure Schedule on or before the earlier of (y) December 31, 2016 or
(z) the date set forth in the Prime Lease requiring the complete refresh for any Store identified in Section 3.2 of the
Disclosure Schedule. The form of the Franchise Agreement will be Seller’s current form as of the Closing Date subject to
such modifications provided in the Addendum to Franchise Agreement as the parties mutually agree.


 


(a)          JambaGo’s. 
Seller will use commercially reasonable efforts to provide at least thirty (30) days prior written notice to Buyer with regard
to any new JambaGo locations to open within Buyer’s markets.


 




     


     


    

 


3.3           Pro-Rations;
Etc.


 


(a)          The
following pro-rations relating to the Purchased Assets will be made as of the Effective Time, with Seller liable to the extent
such items relate to any time period up to and including the Effective Time and Buyer liable to the extent such items relate to
periods after the Effective Time.  Except as otherwise specifically provided herein, the net amount of all such pro-rations,
to the extent not already paid by Buyer, will be settled and paid on the Closing Date:


 


(i)          Personal
property taxes and other assessments, if any, on or with respect to the Purchased Assets; including special assessments for work
actually commenced or levied prior to the Effective Time;


 


(ii)         Rents,
additional rents, taxes and other items payable or paid by Seller under any lease, license, permit, contract or other agreement
or arrangement to be assigned to or assumed by Buyer;


 


(iii)        The
amount of rents, real property taxes and charges for sewer, water, fuel, telephone, electricity and other utilities; provided that
if practicable, meter readings shall be taken at the Effective Time and the respective obligations of the parties determined in
accordance with such readings;


 


(iv)        The
amount payable to Seller by Buyer, or payable by Seller to Buyer, based upon loads and redemptions of “jambacards”
prior to the Effective Time;


 


(v)         Gross
sales receipts;


 


(vi)        Sales
tax accruing prior to the Effective Time; and


 


(vii)       Such
other items customarily pro-rated in connection with similar transactions.


 


If the actual receipts or
expenses of any of the above items for the billing period within which the Effective Time falls is not known on the Closing Date,
the pro-ration shall be settled and paid as soon as is reasonably practicable after the Closing Date. Seller agrees to furnish
Buyer with such documents and other records as shall be reasonably requested in order to confirm all pro-ration calculations.


 


(b)          Notwithstanding
the foregoing, the parties agree that the following items will be handled as set forth below:


 


(i)          Seller
shall not transfer to Buyer any security deposits paid by Seller under the Real Property Leases and the Purchase Price shall not
be adjusted by any security deposits paid by Seller pursuant to the Real Property Leases; provided, however, in the event Buyer
secures a lease in Buyer’s name as lessee or tenant for any of the Leased Properties, any security deposit on file with the
landlord of such Leased Property shall be retained and transferred to Buyer by the landlord without any further obligation between
Buyer and Seller;


 




     


     


    

 


(ii)         The
Purchase Price shall not be increased by any prepaid expenses paid by Seller with respect to the Stores and for which the benefit
is not transferred to Buyer hereunder; provided however, that to the extent the benefit is transferred to Buyer, such prepaid expenses
shall be pro-rated pursuant to Section 3.3(a) above;


 


(iii)        Seller
shall be responsible for any sales, use or similar taxes arising in connection with the transfer and sale of any personal property
comprising the Purchased Assets to Buyer and Seller shall remit payment of all such taxes to the appropriate taxing authority;
and


 


(iv)        Seller
will extend its ISP services for the Stores for up to sixty (60) days after the Closing in order to allow Buyer to obtain its own
ISP services and Buyer shall pay for or reimburse Seller, at Seller’s actual cost, for such ISP services but not exceeding
$50,000 for providing such DSL services.


 


(c)          In
lieu of the Closing adjustments provided for in this Section, either party may, subsequent to the Closing Date, invoice the other
party for any item for which such party would be entitled to a credit under this Section 3.3, and the other party shall
pay the undisputed amount within thirty (30) days of receipt of the invoice. 


 


3.4           Allocation
of Purchase Price. On or prior to the Closing Date, the parties shall agree on an estimated allocation of the Purchase Price
and, within ninety (90) days following Closing, the parties shall agree on a final allocation of the Purchase Price. Seller and
Buyer agree that said final allocation of the Purchase Price shall be used by Seller and Buyer in reporting the transactions covered
by this Agreement for income tax purposes. The final allocation shall include all state and local sales and use taxes caused by
the sale of the Purchased Assets, which shall be paid by Seller to the appropriate taxing authority.


 


3.5           Employees.


 


(a)          Section
3.5 of the Disclosure Schedule contains a true, accurate and complete list of all employees required to operate the Stores
and the respective position, job location and salary rate of each employee listed thereon. Subject to the provisions of this Section
3.5, as of the Effective Time, Seller will terminate and Buyer will make an offer of employment, on an at-will basis, to such
employees, on the terms and subject to the conditions specified by Buyer, but commensurate in terms of salary and benefits to those
currently being received by each employee (the employees who are actually employed by Buyer are referred to collectively as the
“Transferred Employees”); provided, however, that, Buyer shall not be required to offer employment to all employees
or offer the same employee benefits to the Transferred Employees that may be offered or provided to such employees as of the Effective
Time. Buyer and Seller acknowledge and agree that it is their intent that any WARN and state equivalent duty and obligation to
such employees, arising out of or following the consummation of this Agreement, is that of Seller.


 


(b)          The
transfer to Buyer of such Transferred Employees shall be conditioned upon the closing of the transactions contemplated by this
Agreement, and upon such reasonable conditions as Buyer may include in its employment letter to such employee. Only upon the satisfaction
of all such conditions shall an employee become a Transferred Employee, and until such time (i) the employee shall not be eligible
for compensation from, or to participate in any benefit plans of, Buyer, and (ii) Buyer shall have no liability with respect to
any employee of Seller.


 




     


     


    

 


(c)          Seller
shall be responsible for payment of all final wages and all paid time off benefits, including vacation pay accrued by Transferred
Employees up to the Effective Time. Seller will pay out all wages, and accrued but unused vacation pay, to Transferred Employees
after the Effective Time in accordance with Applicable Law.


 


(d)          Seller
shall be responsible for payment of all accrued and payable bonuses for all Transferred Employees to whom Seller has agreed to
pay such bonuses.


 


(e)          Seller
shall be responsible for providing COBRA and other notices and documentation to the employees of Seller as required by Seller’s
employee benefit plans and Applicable Law; provided that Buyer will reimburse the Transferred Employees for the COBRA cost until
covered by any employee benefits provided by Buyer to the Transferred Employees.


 


3.6           Leased
Vehicles and Catering Trucks.


 


At Closing, Seller shall
cooperate with Buyer and facilitate the assignment of any vehicle and catering truck leases that Buyer chooses to assume after
Buyer has completed its due diligence review of the vehicles, catering trucks and leases.


 


ARTICLE IV

Representations and Warranties of Seller


 


Seller represents and warrants,
including those matters reflected in a disclosure schedule attached to this Agreement (the “Disclosure Schedule”),
which disclosures shall qualify the representations and warranties of Seller, that as of the date of this Agreement and as of the
Effective Time:


 


4.1           Organization.
Seller is a California corporation, duly organized, validly existing, and in good standing under the laws of California. Seller
is qualified and in good standing as a foreign corporation under the laws of each jurisdiction in which the failure to be so qualified
and in good standing would have a Material Adverse Change on the assets, financial condition, operations or business of Seller.


 


4.2           Power
and Authority; Authorization. Seller has all requisite power and authority to enter into, and perform its obligations under,
this Agreement and related agreements. The execution, delivery and performance of this Agreement by Seller have been or will be
duly authorized prior to the Closing Date.


 


4.3           Enforceability.
This Agreement constitutes a valid and legally binding obligation of Seller enforceable in accordance with the terms hereof, except
as may be limited by principles of bankruptcy and creditors’ rights in general.


 




     


     


    

 


4.4           No
Consents or Approvals. Except as set forth on Section 4.4 of the Disclosure Schedule, no consent, approval, or authorization
of, or declaration, filing, or registration with, any federal, state or other governmental or regulatory authority, or any other
persons is required to be made or obtained by Seller in connection with the execution, delivery, and performance of this Agreement
and related agreements and the consummation of the transactions contemplated by this Agreement, other than applicable state franchise
filings (all of which have been made). Except as set forth on Section 4.4 of the Disclosure Schedule, Seller has obtained
all consents required to be obtained from landlords in connection with the Subleases as provided in the applicable Prime Leases.


 


4.5           Agreement
Will Not Cause Breach or Violation. Neither the execution, delivery nor performance of this Agreement or related agreements
or the consummation of the transactions contemplated by this Agreement will result in or constitute (a) a conflict or breach under
Seller’s organizational documents, (b) a default or an event that, with notice or lapse of time or both, would be a default,
breach or violation of the Assumed Contracts or any other material lease, license, promissory note, conditional sales contract,
commitment, indenture, mortgage, deed of trust or other agreement, instrument or arrangement to which Seller is a party or by which
the Stores or Purchased Assets are bound or affected, or (c) the creation or imposition of any Lien on the Purchased Assets or
the Stores.


 


4.6           Financial
Statements.


 


(a)          Seller
has previously furnished Buyer with, and attached as Section 4.6 of the Disclosure Schedule are, true and complete copies
of unaudited profit and loss statements for each of the Stores for Seller’s Fiscal Years 2011, 2012, 2013 and 2014 and will
furnish monthly, updated statements through the Closing Date (the “Actual Financials”), adjusted pursuant to
the Confidential Information Memorandums dated December, 2014 (the “Confidential Information Memorandums”) for
all of the Stores. The Actual Financials are true, complete, and correct in all material respects, and present fairly and accurately
the results of operations of each of the Stores for the periods indicated. The books and records of Seller relating to the Stores
fully and fairly reflect all transactions, properties, assets and liabilities of the Stores.


 


(b)          Since
March 31, 2015: (i) the Stores have been operated in a manner consistent with Seller’s ordinary course of business, (ii)
there has been no Material Adverse Change in the assets, financial condition, operations or business of the Stores from that which
is reflected in the profit and loss statements, (iii) the Stores have not incurred any material obligation or liability except
in the normal course of business, and (iv) the Stores have not experienced any Material Adverse Change in its relationships with
customers and/or suppliers.


 




     


     


    

 


4.7           Title;
Condition of Purchased Assets and Marketable Inventory.


 


(a)          Section
4.7 of the Disclosure Schedule completely and accurately lists all of the Fixed Assets owned by, in the possession of, or used
by Seller in connection with the Stores. At Closing, Seller is or shall: (i) be the sole owner, beneficially and of record, of
all of the Purchased Assets, the Change Fund, and the Marketable Inventory; and (ii) has or shall have, and will convey good and
marketable title to all of the Purchased Assets, the Change Fund, and Marketable Inventory, whether real, personal, mixed, tangible
or intangible. The Purchased Assets, the Change Fund, along with the Marketable Inventory that shall be in the Stores on the Closing
Date, constitute all the assets and interests in assets that are used in the operation of each of the Stores and are sufficient
to operate each of the Stores in a manner consistent with Seller’s operation of the Stores in the ordinary course of business
for such Store and in compliance with the FDD. At Closing, all of the Purchased Assets, the Change Fund, and Marketable Inventory
are or will be free and clear of restrictions on, or conditions to, transfer or assignment, and are or will be free and clear of
mortgages, liens, pledges, charges, encumbrances, equities, claims, easements, rights of way, covenants, conditions or restrictions
(“Liens”), and at the Closing, Seller shall transfer and assign to Buyer the Purchased Assets, the Change Fund,
and Marketable Inventory free and clear of any and all Liens. 


 


(b)          Subject
to Sections 12.2 and 12.3, Buyer agrees to accept the Purchased Assets and the Stores in “AS-IS” condition,
with all faults, known or unknown, patent or latent.


 


4.8           Stores;
Leased Real Property. Section 4.8 of the Disclosure Schedule contains a true, accurate and complete list of all of the
Prime Leases, the Stores, and the Leased Properties. The Stores have been continuously open and operated consistent with the normal
course of business from the date of this Agreement until the Effective Time. The Stores comply with all requirements set forth
in the Franchise Agreement. The Prime Leases (a) are valid and in full force and effect, and (b) to Seller’s knowledge, are
not the subject of any default by Seller or landlord or event which with notice or lapse of time, or both, would constitute a default.
Seller has provided to Buyer a true, correct and complete copy of the Prime Leases. Seller does not occupy or use the premises
where any Store is located in violation of any law, regulation, decree or other restriction.


 


4.9           Tax
Matters. Within the times and in the manner prescribed by law, Seller has filed all federal, state and local tax returns required
by law and has paid all taxes (including, without limitation, sales taxes), assessments and penalties due and payable. There are
no present disputes, nor is there any reason to believe a dispute may result, as to taxes of any nature payable by Seller with
respect to any Store or the Purchased Assets.


 


4.10         Compliance
with Laws. Seller has to his knowledge, complied, and is in full compliance, in all material respects, with all applicable
federal and state franchise laws and all applicable federal, state and local statutes, laws and regulations (including, without
limitation, any applicable building, zoning, health, employment, environmental protection or other law, ordinance or regulation)
affecting the Stores or the Purchased Assets, and the operation of the Stores has not been cited for any violation of any such
law or regulation. Seller has in full force and effect all licenses, permits and other authorizations required for the conduct
and operation of the Stores presently constituted; and Seller has not received notice of any default or violation in respect of
or under any of the foregoing. Seller has not received any non-compliance orders, warning letters, notices of violation, claims,
suits, actions, proceedings, judgments, penalties, fines or judicial or administrative investigations of any nature pending or
threatened against or involving the Stores, the business, operations, or property of the Stores, or the Purchased Assets.


 


4.11         Litigation,
Etc. There is no pending, or, to the knowledge of Seller, any threatened suit, action, arbitration or legal, administrative
or other proceeding, or governmental investigation or claims against, or affecting, the Purchased Assets or any of the Stores.
To the knowledge of Seller, there is no basis for any claim against Seller relating to, or which could have a Material Adverse
Change on the Purchased Assets or any of the Stores.


 




     


     


    

 


4.12         Employees.
Seller is not a party to or bound by any collective bargaining agreement, employment agreement, consulting agreement or other commitment
for the employment or retention of any employees or independent contractors who work at the Stores or are otherwise employed by
Seller in connection with the business conducted at the Stores. Seller has not had any material labor difficulty at any of the
Stores in the past two (2) years.


 


4.13         Employee
Benefits. Seller does not maintain and is not required to make any contributions to any pension, profit-sharing, retirement,
deferred compensation or other such plan or arrangement for the benefit of employees who work at any of the Stores or are otherwise
employed by Seller in connection with the business conducted by the Stores, except for 401(k) matching contributions from paychecks
through the Closing Date, and except for health plan coverage for certain General Manager employees as described in Section
12.2. Subject to the foregoing, Seller has made all required payments, contributions and filings under or in respect of any
such plans or arrangements, and there has not occurred any act, omission, event or condition such as would give rise to any liability
of Seller or the Stores thereunder other than the obligations to make normal payments and contributions thereunder.


 


4.14         Finder’s
or Broker’s Fees. Seller has not engaged a broker or financial advisor to
assist Seller in connection with this transaction except for Peak Franchise Capital. Seller is solely responsible for all fees
to be paid to Peak Franchise Capital.



 


4.15         Full
Disclosure. None of the representations and warranties made by Seller or made in any certificate or memorandum furnished or
to be furnished by Seller or on Seller’s behalf, contains or will contain any untrue statement of a material fact, or omits
to state a material fact necessary to make the statements made, in the light of the circumstances under which they were made, not
misleading. Certain of the representations and warranties of Seller are made “to Seller’s knowledge” or refer
to what is “known” to Seller or of what Seller is “aware.” The parties hereto agree that the meaning of
such expressions shall with respect to Seller in all cases be understood as comprising the actual knowledge and belief of the corporate
officers of Seller without any type of additional investigation thereof.


 


4.16         Seller’s
Representation and Warranties. Seller’s representations and warranties shall all survive the Closing through the period
during which claims for indemnification may be made pursuant to Section 11.1 (at which time each such representation and
warranty shall terminate as applicable).


 


ARTICLE V

Representations and Warranties of BuyeR


 


Buyer hereby represents
and warrants as of the date of this Agreement as of the Effective Time that:


 


5.1           Organization.
Buyer is a limited liability company duly organized, validly existing, and in good standing under the laws of the jurisdiction
in which it was organized.


 




     


     


    

 


5.2           Power
and Authority; Authorization. Buyer is a limited liability company with the power and authority to enter into, and perform
its obligations under, this Agreement and related agreements. The execution and delivery of this Agreement by Buyer has been duly
authorized by all necessary action on the part of Buyer and neither the execution, delivery nor performance of this Agreement or
related agreements or the consummation of the transactions contemplated by this Agreement will result in or constitute a conflict
or breach under Buyer’s organizational documents.


 


5.3           Enforceability.
This Agreement constitutes a valid and legally binding obligation of Buyer, enforceable in accordance with the terms hereof, except
as may be limited by principles of bankruptcy and creditors rights in general.


 


5.4           No
Consents or Approvals. No consent, approval, or authorization of, or declaration, filing, or registration with, any federal,
state or other governmental or regulatory authority, or any other persons is required to be made or obtained by Buyer in connection
with the execution, delivery, and performance of this Agreement and related agreements, and the consummation of the transactions
contemplated by this Agreement, in each case, which have not been obtained by the Closing Date.


 


5.5           Non-contravention.
Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, shall (i) violate
any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which Buyer is subject, or (ii) conflict with, result in a breach of, constitute a default under,
result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement to which Buyer is a party or by which it is bound
or to which any of its assets are subject. Buyer does not need to give any notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in order for the parties to consummate the transactions contemplated
by this Agreement.


 


5.6           Finder’s
or Broker’s Fees. Buyer has not engaged a broker or finder in connection with any transaction contemplated by this Agreement,
and no broker or other person is entitled to any commission or finder’s fee from Buyer in connection with any of these transactions
as a result of any actions by Buyer.


 


5.7           Representations
of Seller. Buyer acknowledges that neither Seller nor any representative of Seller has made any representations or statements
of projected or forecasted sales, profits or earnings of the Stores, and Buyer acknowledges that future sales, profits and earnings
at the Stores may be more or less than past sales, profits and earnings. In making its decision to enter into this Agreement and
the transaction documents related to this Agreement, except as otherwise provided in this Agreement, Buyer has not relied on any
information provided by Seller or any other third party; provided that nothing in this Agreement shall disclaim or require Buyer
to waive reliance on any representation that Seller made in the FDD. Buyer has inspected and reviewed, including in the context
of what may be required pursuant to applicable law, regulation or code, a majority of the Fixed Assets in the possession of, or
used by Seller in connection with the Stores. In addition, effective as of the Closing Date, Buyer acknowledges that it has read,
reviewed with appropriate counsel and advisors, Seller’s FDD and the Confidential Information Memorandum.


 




     


     


    

 


ARTICLE VI

Seller’s Obligations Before Closing


 


6.1           Buyer’s
Access to Premises and Information. Buyer and its counsel, accountants and other representatives shall have full access during
normal business hours to all properties, books, accounts, reports, records, contracts, employees and documents of Seller relating
to the Stores, provided Buyer shall permit Seller to be present during such access, upon reasonable request of Seller. Seller shall
furnish, or cause to be furnished, to Buyer and its representatives all data, reports and information concerning the business,
finances and properties of Seller relating to the Stores that may reasonably be requested.


 


6.2           Conduct
of Business in Normal Course. Seller shall, from and after the date of this Agreement and through the Closing Date, with respect
to each of the Stores, (i) carry on its business solely in the usual and ordinary course and as diligently as heretofore conducted,
including, without limitation, maintenance of inventory levels consistent with past practices in the ordinary course of business;
(ii) use reasonable efforts to preserve and maintain its business organization intact, to retain its employees and to maintain
its relationships with suppliers, customers and others so that such relationships will be preserved on and after the Closing Date;
(iii) repair and maintain all Fixed Assets of each of the Stores in accordance with its usual and ordinary repair and maintenance
standards and maintain the Fixed Assets through the Closing Date in substantially the same condition as they were at the time of
the Inspections, normal wear and tear excepted; (iv) consult with Buyer regarding all significant developments, transactions and
proposals relating to the business or operations or any of the Purchased Assets or liabilities of Seller; (v) not end, terminate
or change in any material respect any lease, contract, undertaking or other commitment and shall not knowingly do any act, or omit
to do any act, or permit an act or omission to act, which will cause a material breach of any such lease, contract, undertaking
or other commitment; and (vi) not grant any general increase in the rates of pay of any of its hourly-paid employees, grant any
increase in the salaries or other compensation of any of the employees described in Section 3.5(a) hereof; or grant any
increase in the pension, retirement or other employment benefits of any character of, or grant any new benefits to, such employees.


 


ARTICLE VII

Buyer’s Obligations Before Closing


 


7.1           Cooperation
in Securing Consents of Third Parties. Buyer shall use reasonable efforts to assist Seller in obtaining the consents listed
on Section 4.4 of the Disclosure Schedule of all necessary persons and agencies to the assignment and transfer to Buyer
of any and all properties, assets and agreements, to be assigned and transferred under the terms of this Agreement, but Buyer shall
not, in order to obtain such consents or otherwise, be required to give consideration, assume or guarantee any obligations of Seller,
whether relating to Seller’s operation of the Stores, ownership of the Purchased Assets or otherwise.


 




     


     


    

 


7.2 Initial Financing
Contingency. Buyer shall use commercially reasonable efforts to deliver to Seller within thirty (30) days of the execution
of this Agreement a fully-executed commitment letter or non-binding term sheet from a bank or other financial institution (“Debt
Commitment Letter”) to provide debt financing to Buyer (“Initial Financing Contingency Requirement”).
Such debt financing, when taken together with committed equity financing and/or other sources of funds, will need to be sufficient
for Buyer to consummate the transactions contemplated by this Agreement.  If Buyer has been unable to deliver such Debt
Commitment Letter or pull together committed equity financing and/or other sources of funds within the time period specified above,
despite its commercially reasonable efforts to do so, such time period may be extended by Seller or Buyer for an additional period
as is commercially reasonable for Buyer to deliver such Debt Commitment Letter or pull together committed equity financing and/or
other sources of funds, not to exceed fifteen (15) business days. If Buyer is unable to deliver the Debt Commitment Letter or pull
together committed equity financing and/or other sources of funds within such additional period of time, this Agreement shall terminate
and Buyer shall have no further obligations under this Agreement.


 


7.3           Further
Assurances with Respect to Financing. Buyer shall use commercially reasonable efforts to obtain financing in an amount at least
equal to the amount set forth in the Debt Commitment Letter, including the execution of definitive agreements for the financing
contemplated by the Debt Commitment Letter and equity financing upon terms and conditions acceptable to Buyer in its sole discretion,
on or prior to the Closing Date. The definitive agreements for such debt and equity financing (along with any other documents pursuant
to which Buyer intends to obtain the financing contemplated hereby) are collectively referred to herein as the “Financing
Agreements.” Without limiting the generality of the foregoing, in the event that at any time it may be reasonably likely
that funds will not be made available under the Debt Commitment Letter or the Financing Agreements so as to enable Buyer to proceed
with the Closing in a timely manner, Buyer shall promptly notify Seller. If Buyer is unable to obtain financing as contemplated
in this Section, this Agreement shall terminate and Buyer shall have no further obligations under this Agreement.


 


7.4           Certain
Agreements. The parties anticipate that Seller will at its sole cost and expense discontinue the Security Services previously
provided to Seller by Diebold-Alarm alarm company. Buyer agrees that it shall assume sole responsibility for contracting for the
security services it deems necessary for the Stores following the Closing Date. Buyer further agrees that effective immediately
following the Closing Date for each of the Stores, Buyer shall be solely responsible for all service and termination fees in connection
with internet services provided by Earthlink for no less than the duration of Seller's existing contracts therefor (dates having
been previously provided to Buyer).


 


ARTICLE VIII

Conditions Precedent To Buyer’s Performance


 


8.1           Buyer’s
Closing Conditions. The obligations of Buyer to purchase the Purchased Assets under this Agreement are subject to the satisfaction,
at or before the Closing, of all the conditions set out below. Buyer may waive any or all of these conditions in whole or in part
without prior notice.


 


(a)          All
representations and warranties by Seller in this Agreement, or in any written statement that shall be delivered to Buyer in connection
with this Agreement, shall be true in all material respects on, and as of, the Closing Date as though made at that time.


 




     


     


    

 


(b)          Seller
shall have performed, satisfied and complied with all covenants, agreements and conditions required by this Agreement to be performed
or complied with by Seller in all material respects, on or before the Closing Date including all deliveries set forth in Section
10.2.


 


(c)          Seller
shall have completed and delivered final versions of the Disclosure Schedule and all Exhibits hereto, including all exhibits to
agreements attached hereto as Exhibits, all of which shall be satisfactory to Buyer in its sole discretion.


 


(d)          Seller
shall have delivered a certificate certifying the satisfaction of the conditions set forth in Sections 8.1(a), (b) and (c)
above.


 


(e)          The
parties have performed immediately prior to Closing, in the manner set forth in Section 3.1(b), an inventory of the Marketable
Inventory and counting and verification of the Change Fund.


 


(f)          The
financing conditions precedent set forth in Sections 7.2 and 7.3 shall have been completed as provided in those Sections.


 


(g)          Buyer
shall have completed all due diligence regarding the Stores and the results of all due diligence shall be acceptable to Buyer in
its sole discretion.


 


ARTICLE IX

Conditions Precedent To Seller’s Performance


 


9.1           Seller’s
Conditions. The obligations of Seller to sell the Purchased Assets under this Agreement are subject to the satisfaction, at
or before the Closing, of all the conditions set out below. Seller may waive any or all of these conditions in whole or in part
without prior notice.


 


(a)          All
representations and warranties by Buyer in this Agreement, or in any written statement that shall be delivered to Seller under
this Agreement, shall be true in all material respects on and as of the Closing Date as though made at that time.


 


(b)          Buyer
shall have performed, satisfied and complied with all covenants, agreements and conditions required by this Agreement, including
the execution by all required parties of the Franchise Agreement(s) and the Subleases to be performed or complied with by Buyer
in all material respects on or before the Closing Date including all deliveries set forth in Section 10.3.


 


(c)          Buyer
shall have delivered a certificate certifying the satisfaction of the conditions set forth in Sections 9.1(a) and (b) above.


 


(d)          To
the extent possible, Seller shall have removed its proprietary information from the Stores including, without limitation, erasing
computer hard drives, removing credit card merchant information, removing human resources manuals, and the like, except to the
extent such information is required to operate the Stores, in which case it shall not be removed. Seller shall bear the costs of
all such removals.


 




     


     


    

 


(e)          Buyer
shall have delivered to Seller personal financial statements of David Peacock. Such personal financial statement shall be held
in confidence and used solely for (i) Seller’s due diligence in conjunction with this transaction, and (ii) upon notice to
Buyer, to provide to owners of properties being subleased pursuant to the Sublease Agreement where the property owner’s approval
is required and such property owners have specifically requested copies of the personal financial statement.


 


(f)          Buyer
has completed all training required under the Franchise Agreements.


 


(g)          Seller
shall have received consent from Wells Fargo to dispose of the Purchased Assets.


 


ARTICLE X

The Closing


 


10.1        Time
and Place. The parties shall undertake reasonable good faith commercial efforts to effect the transfer of the Purchased Assets
by Seller to Buyer (the “Closing”) on May 19, 2015 (the “Closing Date”), with the Closing
to be deemed effective as of 11:59 p.m., Pacific Daylight Time, on the Closing Date (the “Effective Time”),
it being acknowledged and agreed that the a May 19, 2015 Closing Date is ambitious and that Closing may not occur until later and
the parties agree to extend the Closing Date as necessary, subject to the last sentence of this Section 10.1. The obligations of
the Parties to close or effect the transactions contemplated by this Agreement will be subject to satisfaction, unless duly waived,
of the applicable conditions set forth in this Agreement, and, subject to the parties’ termination rights expressly set forth
herein, if any said condition is not satisfied or waived, the Closing Date shall be extended until satisfaction of such condition.
Notwithstanding the foregoing, if the Closing has not occurred on or before June 30, 2015 (the “Walkaway Date”),
then Seller and Buyer shall each have the right at any time after the Walkaway Date, but prior to Closing, to terminate this Agreement
pursuant to Section 13.1.


 


10.2        Seller’s
Obligations at Closing. At the Closing, Seller shall deliver or cause to be delivered to Buyer:


 


(a)          Instruments
of assignment and transfer of all the Purchased Assets and Marketable Inventory, including titles for any vehicles and related
documents required by the Department of Revenue or Department of Motor Vehicles;


 


(b)          The
executed Subleases and Side Agreements, Franchise Agreements, Escrow Agreement, Addendums to Franchise Agreements;


 


(c)          Keys
to all Stores and passwords necessary to log-in to any computer or cashier systems therein; and


 


(d)          An
estoppel certificate completed and signed by the landlord under each Prime Lease, in a form to be provided by Buyer and acceptable
to Seller. The Parties acknowledge that not all Prime Leases require the landlord to execute the estoppel certificate contemplated
herein and Seller’s use of commercially reasonable efforts to obtain such estoppel certificates shall satisfy this obligation.


 




     


     


    

 


Simultaneously with the consummation
of the transfer, Seller shall put Buyer into full possession and enjoyment of all the Purchased Assets, the Stores, the Change
Fund and Marketable Inventory.


 


10.3        Buyer’s
Obligations at Closing. At the Closing, Buyer shall deliver or cause to be delivered to Seller:


 


(a)          The
Purchase Price pursuant to Section 3.1(c), by wire transfer of immediately available funds to accounts designated by Seller
and the Escrow Agent; and


 


(b)          The
executed Subleases and Side Agreements, Franchise Agreements, Escrow Agreement, Addendums to Franchise Agreements, and Letter of
Credit.


 


10.4        Cash
for Each Store. Buyer and Seller shall ensure that the Change Fund is on hand on each Store as of the Effective Time.


 


10.5        Closing
Costs and Escrow Agent Fees. All closing cost and the fees charged by the escrow agent, if any, shall be shared equally by
Seller and Buyer; provided however that each party shall be liable for their own advisors’ fees (attorneys, accountants,
consultants, etc.) and any income taxes. To the extent that the cost of such fees and expenses are known by the Closing Date, the
parties agree to adjust payments made at Closing. Any differences between any estimated charges paid and actual charges incurred,
or other costs or fees that arise out of the transactions contemplated by this Agreement that should have been deemed included
in this Section 10.5 that are incurred post-Closing, will be resolved pursuant to Section 3.3(c).


 


ARTICLE XI

Indemnification


 


11.1        Seller’s
Indemnities.


 


(a)          Seller
shall indemnify, defend and hold harmless Buyer and its officers, agents, attorneys, employees, directors, parent entities, subsidiaries
and affiliates, including third parties that have a secured interest in the Stores pursuant to any Financing Agreements (as defined
in Section 7.3 above) (collectively, the “Buyer Parties”) against and in respect of any and all claims,
demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties
and reasonable attorneys’ fees, that Buyer and the Buyer Parties (collectively, the “Buyer Indemnified Parties”)
shall incur or suffer, that arise from, result from or relate to (i) any breach of, or failure by Seller to perform, any of Seller’s
covenants or agreements in this Agreement, (ii) any inaccuracy or breach of, or failure by Seller to perform, any of Seller’s
representations or warranties in this Agreement or in the Disclosure Schedule or any schedule, certificate, or exhibit furnished
or to be furnished by Seller under this Agreement, (iii) any and all litigation pending against Seller at Closing, or (iv) any
and all Seller Liabilities.


 


(b)          Seller’s
obligations to indemnify the Buyer Indemnified Parties for claims arising under Sections 11.1(a)(i) and 11(a)(ii) shall
survive the Closing for a period of eighteen (18) months; provided that Seller’s obligations to indemnify the Buyer Indemnified
Parties for claims arising under Section 11.1(a)(iii) or Section 11.1(a)(iv) shall survive the Closing without limitation.
Seller’s, aggregate liability to Buyer Indemnified Parties for claims arising under Sections 11.1(a)(i) and 11.1(a)(ii)
shall not exceed the Purchase Price.


 




     


     


    

 


(c)          Seller
represents, warrants and agrees that Seller is the operating entity for all Jamba stores; that Seller has and will maintain a sufficient
level of assets to provide for Seller’s indemnification obligations set forth in this Section; that Seller does not have
any plans to wind-up or liquidate Seller or its assets prior to satisfying its indemnification obligations set forth in this Section;
and that Seller does not plan to and will not transfer all or substantially all of its assets to Parent or any affiliate in order
to avoid or minimize its indemnification obligations set forth in this Section.


 


11.2        Buyer’s
Indemnities. Buyer shall indemnify, defend and hold harmless Seller and its officers, agents, attorneys, employees, directors,
parent entities, subsidiaries and affiliates (collectively, the “Seller Parties”) against and in respect of
any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including
interest, penalties and reasonable attorneys’ fees, that Seller and the Seller Parties (collectively, the “Seller
Indemnified Parties”) shall incur or suffer, that arise from, result from, or relate to, (i) any breach of, or failure
by Buyer to perform, any of Buyer’s covenants or agreements in this Agreement, or (ii) any inaccuracy or breach by, or failure
by Buyer to perform, any of Buyer’s representations or warranties in this Agreement or in any certificate executed and delivered
to Seller under or pursuant to this Agreement or the transactions contemplated herein.


 


The indemnity obligations
under this Section 11.2 shall survive Closing for a period of eighteen months.


 


11.3        Procedure
for Indemnified Claims.


 


(a)          In
the case of any claim for indemnification pursuant to this Article by any indemnitee, other than a claim covered by Section
11.3(b), the indemnitee shall send written notice of such claim to the indemnitor, setting forth in such notice the material
facts known to the indemnitee giving rise to such claim. Failure to give such notice shall not relieve the indemnitor of its obligations
hereunder except to the extent, and only to the extent, that the indemnitor is actually prejudiced thereby. Promptly after the
delivery of such notice (and in any event within thirty (30) days, or such longer period as the parties may mutually agree), the
indemnitee shall meet with the indemnitor and attempt in good faith to settle and compromise such claim. If the indemnitor refuses
to meet with the indemnitee within such thirty (30) day period, or if the claim cannot be resolved within an additional thirty
(30) day period following such meeting (or such longer period as the parties may mutually agree), the indemnitee may commence legal
proceedings to resolve such claim.


 


(b)          If
any third party shall notify any indemnitee with respect to any matter which may give rise to a claim for indemnification against
an indemnitor pursuant to this Article, the indemnitee shall promptly notify the indemnitor in writing; provided, however, that
failure of the indemnitee to give the indemnitor notice as provided herein shall not relieve the indemnitor of its obligations
hereunder except to the extent, and only to the extent, that the indemnitor is actually prejudiced thereby. In the case any legal
proceedings shall be commenced against any indemnitee with respect to a third party claim, the indemnitor shall be entitled to
jointly participate with the indemnitee in the defense of such proceeding. Whether or not the indemnitor jointly participates in
the defense of any proceeding, the indemnitee shall not admit any liability with respect to, or settle, compromise or discharge,
such proceeding without indemnitor’s prior written consent (which consent shall not be unreasonably withheld or delayed)
to the extent the indemnitor would be obligated to indemnify the indemnitee under this Article with respect to such proceeding.


 




     


     


    

 


11.4        Exclusive
Remedy. The remedies provided for in this Article are exclusive and shall be in lieu of all other remedies, including consequential
and direct or indirect damages, for any breach of any representation, warranty, covenant, obligation or other provision of this
Agreement; provided however, that the foregoing clause of this sentence shall not be deemed a waiver by any party of any right
to obtain in court specific performance or injunctive relief or other equitable remedies.


 


11.5        Additional
Indemnification. If the transactions contemplated by this Agreement fail to close for any reason, Buyer shall return to Seller
(or, at Seller’s direction, destroy) all documentation, test results, surveys, financial statements and other confidential
information furnished to Buyer by or on behalf of Seller. Buyer agrees to reimburse, indemnify and hold Seller harmless from and
against any and all damages, injuries, liabilities, claims, demands or liens, including, without limitation, any property damage,
personal injury or claim of lien against the Stores, caused by the due diligence activities of Buyer permitted by this Agreement
(including, without limitation, reasonable attorneys’ fees and expenses paid or incurred by Seller during litigation, if
any), which indemnity shall survive the Closing or earlier termination of this Agreement.


 


ARTICLE XII

POST CLOSING MATTERS


 


12.1        Post-Closing
Store Access by Seller. To the extent Seller has not completed the removal of proprietary information contemplated by Section
9.1, Buyer will provide access to the Stores during normal business hours during the five (5) days following the Closing Date
for Seller to complete such removal.


 


12.2        Critical
Deficiencies.


 


(a)          Notwithstanding
that the Purchased Assets are being sold to Buyer “AS IS, WHERE IS,” with all faults, and subject to the representations,
warranties and limitations set forth herein, Seller agrees to indemnify the Buyer for the actual costs incurred by Buyer to cure
any Critical Deficiency. For purposes of this Agreement, “Critical Deficiency” means a (i) deficiency in the
preparation area of any Store (or other areas of a Store that are not accessible to the general public) that Buyer reasonably assumes
that, if known, a local health department would probably determine to be of such a magnitude that Buyer would not be permitted
to open such Store for business while such deficiency exists, or (ii) a deficiency of the store grease trap or plumbing so that
such grease trap or plumbing is not, in Buyer’s reasonable opinion, adequate for the operation of the Store. Seller’s
obligation to provide Buyer with an indemnification due to a Critical Deficiency is conditioned upon Buyer notifying Seller within
45 days after the Closing Date of any deficiency described in Section 12.2(a)(i) or Section 12.2(a)(ii), and providing
Seller with back-up documentation or copies of all relevant inspections reports citing the Critical Deficiencies.


 




     


     


    

 


(b)          The
maximum amount of the indemnity for which Seller shall be liable under Section 12.2 shall not exceed Three Hundred Thousand
Dollars ($300,000) for all Stores combined. Seller shall have no obligation to indemnify Buyer for lost profits or other consequential
damages resulting from any business interruption while the Critical Deficiencies are cured. Buyer specifically acknowledges that
this provision supersedes entirely all prior oral or written discussions, agreements or understandings regarding Seller’s
responsibility for the costs to repair Critical Deficiencies. Any amounts paid by Seller to Buyer pursuant to this Section 12.2
shall not be counted for purposes of the last sentence of Section 11.1(b).


 


12.3        Fixed
Assets Repairs and Replacements. Notwithstanding that the Purchased Assets are being sold to Buyer “AS IS, WHERE IS,”
with all faults, and subject to the representations, warranties and limitations set forth herein, at Closing, Buyer and Seller
shall enter into the Escrow Agreement in the form attached hereto as Exhibit 11.6. The Escrow Agreement shall provide for
the payment and reimbursement to Buyer for defects and replacements of Fixed Assets from the Fixed Assets Escrow, which shall only
include those repairs, purchases and replacements needed so that the Stores for which Buyer does not complete a Fixed Asset due
diligence review prior to the Closing Date are operational and able to conduct business post- Closing. Buyer shall use commercially
reasonable efforts to complete a due diligence review of the Fixed Assets at all Stores prior to the Closing Date, and no later
than 45 days following the Closing Date. The total amount to be reimbursed to Buyer for defects and replacements of Fixed Assets
shall not exceed Two Hundred Thousand Dollars ($200,000) for all Stores combined.


 


12.4        Letter
of Credit. Buyer will maintain a renewable standby letter of credit (the “Letter of Credit”) in favor of Seller
in the amount of $3,000,000 for the first 3 years following the Closing Date and in a reduced amount of $2,000,000 beginning 3
years following the Closing Date and lasting for the remaining initial term of the Franchise Agreements. The Letter of Credit will
secure Buyer’s payments of (i) Continuing Royalty and Marketing Contribution payments required by and as defined in the Franchise
Agreements, and (ii) rent payments pursuant to the Subleases. Seller will be permitted to make a draw on the Letter of Credit in
the event Buyer defaults in any of these payments and fails to cure the default as provided in the Franchise Agreements or Subleases,
as applicable.


 




     


     


    

 


ARTICLE XIII

MISCELLANEOUS


 


13.1        Events
of Termination. In addition to the other termination rights set forth in this Agreement, this Agreement may be terminated,
without liability on the part of the terminating party to the other party, at any time before the Closing Date: (i) by mutual
consent of Buyer and Seller; (ii) by Buyer if any of the conditions precedent found in Article VIII of this Agreement
shall have become incapable of fulfillment by the Closing Date through no fault of Buyer and provided Buyer has proceeded with
reasonable diligence and Buyer has not waived the same; (iii) by Seller if any of the conditions precedent found in Article
IX of this Agreement shall have become incapable of fulfillment by the Closing Date through no fault of Seller and have not
been waived in writing by Seller; (iv) by Buyer if there is a breach of or failure by Seller to perform in any material respect
any of the representations, warranties, commitments, covenants or conditions under this Agreement, which breach or failure is not
cured after written notice thereof is given to Seller and prior to the Closing Date; (v) by Seller if there is a breach of
or failure by Buyer to perform in any material respect any of the representations, warranties, commitments, covenants or conditions
under this Agreement, which breach or failure is not cured after written notice thereof is given to the Buyer and prior to the
Closing Date; (vi) by Seller or Buyer at any time after the Walkaway Date if the Closing has not occurred on or before such Walkaway
Date; or (vii) by Buyer or Seller upon the occurrence of a Material Adverse Change or by Buyer or Seller as provided in Section
13.15. In the event of termination and abandonment by any party as above provided in clauses (ii), (iii), (iv), (v), (vi) or
(vii) of this Section, written notice shall forthwith be given to the other party, which notice shall clearly specify the reason
of such party for terminating this Agreement.


 


13.2        Notices.
Except as otherwise expressly provided herein, all written notices and reports permitted or required to be delivered by the parties
pursuant hereto shall be deemed so delivered at the time delivered by hand, or one business day after transmission by facsimile,
telegraph or other electronic system (with confirmation copy sent by regular U.S. mail), or three (3) business days after placement
in the United States Mail by Registered or Certified Mail, Return Receipt Requested, postage prepaid and addressed as follows:


 


	To Seller:	Jamba Juice Company

6475 Christie Ave

Suite 150

Emeryville, CA 94688

Attn:  SVP - Global Franchise and Development
	 	 
	With a copy to:	Jamba Juice Company

6475 Christie Ave

Suite 150

Emeryville, CA 94688

Attn:  Director, Legal Affairs
	 	 
	To Buyer:	
        Vitaligent, LLC

        7701 Forsyth Blvd., Suite 1000

        St. Louis, Missouri 63105

        Attn: Dean VandeKamp

	 	 
	With a copy to:	
        Polsinelli PC

        100 S. Fourth Street

        Suite 1000

        St. Louis, MO 63102-1825

        Attn: Andrew Hoyne, Esq.



 


Any party may change its
address for purposes of this Section 13.2 by giving the other parties written notice of the new address in the manner set
forth above.


 




     


     


    

 


13.3        Effect
of Headings. The subject headings of this Agreement are included for convenience only and shall not affect the construction
or interpretation of any of its provisions.


 


13.4        Entire
Agreement; Modification; Waiver. This Agreement and the Disclosure Schedule, together with all Exhibits and schedules hereto
or thereto and agreements or instruments executed in connection herewith or therewith, constitutes the entire agreement between
the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations
and understandings of the parties; provided that nothing in this Agreement shall disclaim or require Buyer to waive reliance on
any representation that Seller made in the FDD. No supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by all the parties. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute,
a waiver of any other provision, whether or not similar, and no waiver shall constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.


 


13.5        Parties
in Interest. Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by
reason of this Agreement on any persons other than the parties to it and its respective successors and assigns. Nothing in this
Agreement is intended to relieve or discharge the obligation or liability of any third persons to any party to this Agreement,
and no provision herein shall give any third persons any right of subrogation or action over or against any party to this Agreement.


 


13.6        Assignment.
This Agreement and the rights, interests, and obligations hereunder shall be binding and upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted assigns, but neither this Agreement nor any of the rights, interests,
or obligations hereunder shall be assigned by Seller without the prior written consent of Buyer, but Buyer may at its sole discretion
assign its rights and obligations hereunder to any affiliate or any subsidiary; provided however, that any such assignment shall
not relieve Buyer of its obligations hereunder and any such affiliate or subsidiary shall agree to be bound by the provisions of
this Agreement.


 


13.7        Signatures.
The signatures of the parties to this Agreement, or to any related document, may be delivered by facsimile or email transmission,
each of which shall be deemed an original. This Agreement may be executed simultaneously in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same instrument.


 


13.8        Governing
Law; Jurisdiction. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF CALIFORNIA
AS APPLIED TO CONTRACTS THAT ARE EXECUTED AND PERFORMED ENTIRELY IN CALIFORNIA. EACH PARTY SUBMITS TO THE EXCLUSIVE JURISDICTION
OF THE COURTS OF THE STATE OF CALIFORNIA AND THE U.S. FEDERAL COURTS SITTING IN SAN FRANCISCO COUNTY, CALIFORNIA FOR PURPOSES THEREOF.
THE PARTIES AGREE THAT VENUE FOR ANY SUCH PROCEEDING SHALL BE THE STATE AND FEDERAL COURTS LOCATED IN SAN FRANCISCO COUNTY, CALIFORNIA.
EACH PARTY TO THIS AGREEMENT WAIVES AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH ACTION OR
PROCEEDING, ANY CLAIM THAT (A) IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS, (B) THE ACTION OR PROCEEDING IS
BROUGHT IN AN INCONVENIENT FORUM OR (C) THE VENUE OF THE ACTION OR PROCEEDING IS IMPROPER.


 




     


     


    

 


13.9          Attorneys’
Fees. The prevailing party in any dispute or controversy under or in connection with this Agreement shall be entitled to collect
its reasonable attorneys’ fees and costs from the other party.


 


13.10        Severability.
If any provision of this Agreement is held invalid or unenforceable by any arbitrator or court of final jurisdiction, it is the
intent of the parties that all other provisions of this Agreement be construed to remain fully valid, enforceable and binding on
the parties.


 


13.11        Expenses.
Except as otherwise provided herein, each party shall pay all costs and expenses incurred or to be incurred by it in negotiating
and preparing this Agreement and in closing and carrying out the transactions contemplated by this Agreement.


 


13.12         Bulk
Sales. Seller and Buyer each waive compliance by the other with any bulk sales or similar laws that may be applicable to the
transactions contemplated by this Agreement.


 


13.13         Disclosure.
Seller and its parent organization shall have the right to disclose this Agreement and related agreements in connection with any
filings or other disclosures required in connection with compliance with federal and state securities and franchise laws, or the
rules and regulations of any applicable securities trading organization. Subject to the other provisions of this Agreement, press
releases and other publicity materials relating to the transactions contemplated by this Agreement shall be released by the parties
only after review and with the consent of the other parties. Buyer shall not disclose to anyone, including without limitation,
any employee of Seller, including but not limited to employees at a Store or any employee of any vendor of Seller, without Seller’s
prior consent, the existence or nature of the transactions contemplated by this Agreement. All other terms of the Confidentiality
Agreement signed by Buyer prior to the execution of this Agreement shall survive. This Section 13.13 does not alter or amend
any confidentiality obligations that Buyer may have or will have under the Franchise Agreement. Buyer acknowledges and agrees that
Seller’s remedy at law for any breach of Buyer’s obligations hereunder would be inadequate, and that Seller shall have
the right to seek temporary and permanent injunctive relief in any court proceeding to enforce this covenant regarding confidentiality.
However, nothing contained herein shall in any way affect Seller’s rights and remedies afforded by law and/or in equity,
and Seller shall retain the right to recover such damages as it may have sustained by reason of any breach hereof. Notwithstanding
the foregoing, Seller or Buyer may disclose to any of its current or prospective lenders, equity or other financing sources any
of the provisions of this Agreement and the documents entered into or to be entered into in connection herewith.


 


13.14         Further
Assurances. Each party, as requested by the other, shall execute, acknowledge and deliver any further deeds, assignments, conveyances
and other assurances, documents and instruments of transfer, reasonably requested by the other, and shall take any other action
consistent with the terms of this Agreement that may reasonably be requested by the other, for the purpose of assigning, transferring,
granting, conveying and confirming to Buyer, or reducing to possession, any or all property to be conveyed and transferred under
this Agreement.


 


13.15         Schedules
and Exhibits. The parties acknowledge that this Agreement may be signed without certain Schedules or Exhibits agreed upon and
attached hereto. In such event, the mutual agreement of the parties to the terms and conditions of any missing Exhibit or Schedule
or any updates proposed by Buyer or Seller to any Exhibit or Schedule attached hereto shall be a condition precedent to the Buyer’s
and Seller’s obligation to close the transactions contemplated by this Agreement, failing which either Buyer or Seller may
terminate this Agreement as provided in Section 13.1.


 


SIGNATURE PAGE FOLLOWS


 




     


     


    

 


IN WITNESS WHEREOF, the
parties to this Agreement have duly executed it on the day and year first above written.


 


	“SELLER”	 	“BUYER”
	 	 	 
	JAMBA JUICE COMPANY	 	VITALIGENT, LLC
	a California corporation	 	a Delaware limited liability company
	 	 	 	 	 
	By:	 	 	By:	 
	 	 	 	 	 
	Name:	 	 	Name:	 
	 	 	 	 	 
	Its:	 	 	Its:	 


 




     


     


    

 


ANNEX 1.1

DEFINED TERMS


 


“Actual Financials”
has the meaning given to it in Section 4.6(a).


 


“Addendum to Franchise
Agreement” has the meaning given to it in Section 3.2(a).


 


“Affiliates”
means any person or entity that directly or indirectly controls, is controlled by, or is under common control with, the person
or entity in question or any partner, member, manager, officer, or director of the person or entity in question. “Control”
means directly or indirectly having the power to direct or cause the direction of management, whether through ownership, governance,
contract or otherwise.


 


“Agreement”
has the meaning given to it in the Caption.


 


“Applicable Law”
means and includes applicable common law and all applicable statutes, laws, rules, regulations, ordinances, policies and procedures
established by any governmental authority, including, without limitation, those governing the development, construction and/or
operation of a Jamba Juice Store, including, without limitation, all labor, disability, food and drug laws and regulations, as
in effect on the Closing Date hereof, and as may be enacted, modified or amended from time to time thereafter.


 


“Assumed Contracts”
has the meaning given to it in Section 2.1(ii).


 


“Bankruptcy”
means any voluntary petition by or involuntary petition against Seller or Parent shall be filed under any chapter of the United
States Bankruptcy Code or similar code of an foreign country; or any proceeding involving Seller or Parent shall be instituted
under any other law relating to the relief of debtors and is not discharged within thirty (30) days of filing or institution; or
Seller or Parent shall be called to perform on any indebtedness or guaranty held by any creditor or lender of Seller or Parent,
whether by scheduled maturity, required prepayment, acceleration, demand or otherwise, and Seller or Parent fails to perform when
called upon to do so; or the insolvency of Seller or Parent under any state insolvency act; or the appointment of a receiver or
trustee for Seller or Parent; or any other event of “bankruptcy” with respect to Seller or Parent.


 


“Buyer”
has the meaning given to it in the Caption.


 


“Buyer Indemnified
Parties” has the meaning given to it in Section 11.1(a).


 


“Buyer Parties”
has the meaning given to it in Section 11.1(a).


 


“Change Fund”
has the meaning given to it in Section 3.1(b).


 


“Closing”
has the meaning given to it in Section 10.1.


 


“Closing Date”
has the meaning given to it in Section 10.1.


 




     


     


    

 


“Contracts”
all contracts, agreements, leases, license agreements, arrangements and/or commitments of any kind to which Seller is a party which
relate to the Store other than the Real Property Lease.


 


“Contract Interests”
has the meaning given to it in Section 2.3(b).


 


“Critical Deficiency”
has the meaning given to it in Section 12.3.


 


“Disclosure Schedule”
has the meaning given to it in Article 4.


 


“Effective Time”
has the meaning given to it in Section 10.1.


 


“Escrow Agent”
has the meaning given to it in the Escrow Agreement.


 


“Escrow Agreement”
has the meaning given to it in Section 12.3.


 


“Excluded Assets”
has the meaning given to it in Section 2.2.


 


“FDD”
means Seller’s most recent Franchise Disclosure Document updated through the date of this Agreement.


 


“Fiscal Year”
means the 51, 52 or 53 week period that ends on the Tuesday closest to December 31 of each calendar year and begins on the following
Wednesday.


 


“Fiscal Period”
is the basic fiscal weeks or months that comprise a Fiscal Year.


 


“Fixed Assets”
has the meaning given to it in Section 2.1(i).


 


“Fixed Assets
Escrow” has the meaning given to it in Section 3.1.


 


“Franchise Agreement”
and “Franchise Agreements” have the meanings given to them in the Recitals.


 


“General Manager”
has the meaning given to it in Section 7.2.2 of the Franchise Agreement.


 


“Initial Fee”
or “Initial Fees” refers to the Initial Fee defined and described in the Franchise Agreements.


 


“Inspections”
means Buyer’s right to inspect the Store and Purchased Assets to determine if the Fixed Assets are in satisfactory working
condition.


 


“Liabilities”
has the meaning given to it in Section 2.6.


 


“Leased Property”
and “Leased Properties” have the meanings given to them in the Recitals.


 


“Letter of Credit”
has the meaning set forth in Section 12.4.


 


“Liens”
has the meaning given to it in Section 4.7(a).


 




     


     


    

 


“Marketable Inventory”
refers to items of tangible personal property for sale that are of a quality that is usable and salable and meets all applicable
requirements of any applicable law.


 


“Marks”
refers to certain proprietary and other property rights and interests in and to the “JAMBA JUICE®” name
and service mark, and such other trademarks, service marks, logo types and commercial symbols as Seller may from time to time authorize
for use by either its licensees or franchisees.


 


“Material Adverse
Change” means any effect or change that would be materially adverse to the business of any of the Stores. None of the
following shall be deemed to constitute, and none of the following shall be taken into account in determining whether there has
been, a Material Adverse Change: any material adverse change in (1) general business or economic conditions, excluding such conditions
related to the business of a Store, (2) financial, banking, or securities markets (including any disruption thereof and any decline
in the price of any security or any market index), excluding markets and market conditions related to Seller or Parent, (3) changes
in United States generally accepted accounting principles, (4) changes in laws, rules, regulations, orders or other binding directives
issued by any governmental entity (unless such changes affect the smoothie industry or the ability of some or all of the Stores
to operate), or (5) the taking of any action contemplated by this Agreement and the other agreements contemplated hereby. Material
Adverse Change shall include a Bankruptcy.


 


“Memorandum of
Intent” means that certain Non-Binding Indication of Interest to Purchase JAMBA JUICE® Store dated March 2015 delivered
by Buyer to Seller.


 


“Confidential
Information Memorandum” has the meaning given to it in Section 4.6(a).


 


“Parent”
means Jamba, Inc., the parent company of Seller.


 


“Prime Lease”
and “Prime Leases” have the meanings given to them in the Recitals.


 


“Purchase Price”
has the meaning given to it in Section 3.1(a).


 


“Purchased Assets”
has the meaning given to it in Section 2.1.


 


“Seller”
has the meaning given to it in the Caption.


 


“Seller Indemnified
Parties” has the meaning given to it in Section 11.2.


 


“Seller Parties”
has the meaning given to it in Section 11.2.


 


“Store”
and “Stores” have the meanings given to them in the Recitals.


 


“Sublease(s)”
have the meanings given to them in Section 2.3(a).


 


“System”
shall mean the Seller’s business operating methods for a Store, as further defined in the Franchise Agreement.


 


“Transferred Employees”
has the meaning given to it in Section 3.5(a).


 


“Walkaway Date”
has the meaning given to it in Section 10.1.


 


“WARN”
has the meaning given to it in Section 3.5(a).