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Exhibit 4.41
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
OS PACIFIC, INC.
AND
RESTAURANT CONCEPTS OF XXXXXX SPRINGS, LIMITED PARTNERSHIP
DATED JUNE 1, 2000
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ASSET PURCHASE AGREEMENT
TABLE OF CONTENTS
1. PURCHASE OF THE RESTAURANTS.........................................1
1.1 Purchased Assets...........................................1
1.2 Purchase Price.............................................1
1.3 Adjustments to Estimated Purchase Price ...................2
1.4 Allocation of Purchase Price...............................2
2. TRANSFER OF ASSETS .................................................2
2.1 Definition of Purchased Assets.............................2
2.2 Prorations.................................................3
2.3 Excluded Assets............................................4
3. LIABILITIES.........................................................4
3.1 Liabilities Not to be Assumed..............................4
3.2 Liabilities to be Assumed..................................5
4. REPRESENTATIONS AND WARRANTIES OF THE SELLER........................6
4.1 General....................................................6
4.2 Authority..................................................6
4.3 No Violation...............................................6
4.4 Financial Statements.......................................6
4.5 Tax Matters................................................7
4.6 Accounts Receivable........................................7
4.7 Inventory..................................................7
4.8 Absence of Certain Changes.................................7
4.9 Absence of Undisclosed Liabilities.........................8
4.10 No Litigation..............................................8
4.11 Compliance With Laws and Orders............................8
4.12 Title to and Condition of Properties.......................9
4.13 Insurance..................................................9
4.14 Contracts and Commitments.................................10
4.15 Labor Matters.............................................11
4.16 Employee Benefit Plans....................................11
4.17 Employment Compensation...................................12
4.18 Intellectual Property.....................................12
4.19 Major Suppliers...........................................12
4.20 Assets Necessary to Business..............................12
4.21 No Brokers or Finders.....................................12
4.22 Disclosure................................................12
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER.................12
5.1 Corporate.................................................13
5.2 Authority.................................................13
5.3 No Brokers or Finders.....................................13
5.4 Disclosure................................................13
5.5 Buyer's Cooperation.......................................13
5.6 Other Action..............................................13
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6. EMPLOYEES - EMPLOYEE BENEFITS......................................13
6.1 Affected Employees........................................13
6.2 Retained Responsibilities.................................13
6.3 Payroll Tax...............................................14
6.4 Termination Benefits......................................14
7. OTHER MATTERS......................................................14
7.1 Pre-Closing Revenue and Expenses..........................14
7.2 Post Closing Revenue and Expenses.........................14
7.3 Confidentiality...........................................14
7.4 Non-Solicitation..........................................14
7.5 Reasonableness of Restrictions; Reformation; Enforcement..15
7.6 Specific Performance......................................15
8. FURTHER COVENANTS OF THE SELLER....................................15
8.1 Access to Information and Records.........................15
8.2 Conduct of Business Pending the Closing...................16
8.3 Consents..................................................16
8.4 Other Action..............................................16
8.5 Disclosure................................................17
9. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS........................17
9.1 Representations and Warranties True on the
Closing Date..............................................17
9.2 Compliance With Agreement.................................17
9.3 Absence of Litigation.....................................17
9.4 Consents and Approvals....................................17
9.5 Termination of Employment Agreement.......................17
10. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS.......................17
10.1 Representations and Warranties True on the
Closing Date..............................................17
10.2 Compliance With Agreement.................................17
10.3 Absence of Litigation.....................................18
11. INDEMNIFICATION....................................................18
11.1 By the Seller ............................................18
11.2 By Buyer..................................................18
11.3 Indemnification of Third-Party Claims.....................18
11.4 Payment...................................................19
11.5 No Waiver.................................................19
11.6 Survival of Indemnification...............................19
12. CLOSING............................................................19
12.1 Closing Date..............................................19
12.2 Place of Closing..........................................19
12.3 Documents to be Delivered by the Seller...................20
12.4 Documents to be Delivered by Buyer........................20
13. TERMINATION........................................................21
13.1 Right of Termination Without Breach.......................21
13.2 Termination for Breach....................................21
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14. MISCELLANEOUS......................................................21
14.1 Disclosure Schedules......................................21
14.2 Further Assurance.........................................21
14.3 Disclosures and Announcements.............................22
14.4 Assignment; Parties in Interest...........................22
14.5 Law Governing Agreement...................................22
14.6 Amendment and Modification................................22
14.7 Notice....................................................22
14.8 Expenses..................................................23
14.9 Entire Agreement..........................................24
14.10 Counterparts..............................................24
14.11 Headings..................................................24
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is dated June 1,
2000, and entered into by and between OS PACIFIC, INC., a Florida corporation
("Buyer"), and RESTAURANT CONCEPTS OF XXXXXX SPRINGS, LIMITED PARTNERSHIP, a
Florida limited partnership (the "Seller").
RECITALS
A. Seller is a Florida limited partnership governed by and
operating under that certain Agreement of Limited Partnership of Restaurant
Concepts of Xxxxxx Springs, Limited Partnership dated December 31, 1998
("Agreement of Limited Partnership").
B. The Seller is engaged in the business of owning and operating
an upscale restaurant known as "Roy's" and located at The Promenades, Space No.
A-1, Bonita Springs, Florida ("Restaurant").
C. The Restaurant utilizes trademarks, recipes and operating
systems as a licensee of Xxx Xxxxxxxxx and Xxx'x Worldwide, Inc. pursuant to a
Licensing and Services Agreement dated July 16, 1998 ("Licensing Agreement").
D. Pursuant to the provisions hereof, Buyer desires to purchase
from the Seller and the Seller desires to sell to Buyer substantially all of
the property and assets of the Seller, including the Restaurant.
NOW THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and intending to be legally bound hereby, the parties hereto agree
as follows.
1. PURCHASE OF THE RESTAURANTS
1.1 Purchased Assets. Subject to the terms and conditions of this
Agreement, on the Closing Date (as defined in SECTION 12.1), the Seller shall
sell, transfer, convey, assign and deliver to Buyer (or upon Buyer's request,
to an Affiliate of Buyer) and Buyer shall purchase and accept all of the
business, rights, claims and assets (of every kind, nature, character and
description, whether real, personal or mixed, whether tangible or intangible,
whether accrued, contingent or otherwise, and wherever situated) of the Seller,
together with all rights and privileges associated with such assets and with
the Restaurant and the business of the Seller, other than the Excluded Assets
(as hereinafter defined) (collectively the "Purchased Assets"), free and clear
of any debts, liabilities, claims, encumbrances or obligations other than the
Assumed Liabilities, as hereafter defined. The Purchased Assets shall include,
but not be limited to, those assets listed in ARTICLE 2 hereof. For purposes of
this Agreement, the term "Affiliate" shall mean any individual or entity
(hereafter a "Person"), directly or indirectly, through one or more
intermediaries, controlling, controlled by, or under common control with such
Person, as applicable. With respect to the Seller, the term "Affiliate" shall
include F. Xxxxxx Xxxxx and Xxxxxx X. Xxxxx. The term "control," as used in the
immediately preceding sentence, shall mean with respect to a corporation or
limited liability Seller the right to exercise, directly or indirectly, more
than fifty percent (50%) of the voting rights attributable to the controlled
corporation or limited liability company, and, with respect to any individual,
partnership, trust, other entity or association, the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of the controlled entity.
1.2. Purchase Price. The Purchase Price shall be Four Million
Eight Hundred Thousand Dollars ($4,800,000), subject to adjustments as provided
herein. On the Closing Date, the Purchase Price shall be paid in the form of
certified or bank cashier's check payable to the order of the Seller or at the
Seller's option, by wire transfer of immediately available funds to an account
designated by the Seller.
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1.3. Adjustment to Estimated Purchase Price.
1.3(a) Credits to Seller. The Purchase Price paid to the
Seller in cash on the Closing Date pursuant to SECTION 1.2 shall be
increased by the amount of any security deposits paid by the Seller
pursuant to any Real Property Lease transferred to the Buyer in
accordance with the terms of this Agreement and utility and other
deposits paid by Seller and transferred to Buyer; and
1.3(b) Credits to Buyer. Buyer shall assume and Buyer shall
receive a credit against the Purchase Price paid to the Seller in cash
on the Closing Date pursuant to SECTION 1.2 in an amount equal to:
(i) all vacation, holiday and sick pay unpaid
by the Seller as of the Closing Date attributable to any
period or partial period of employment by the Seller prior to
the Closing Date, plus employee payroll taxes applicable
thereto due or to become due, for those employees of the
Seller who will be employed by Buyer after the Closing Date
and who have not as of the Closing Date taken vacation,
holiday or sick time earned prior to the Closing Date; and
(ii) the amount of unredeemed gift certificates.
1.3(c) Invoice. In lieu of the credits provided for in
SECTIONS 1.3(A) AND 1.3(B), either party may, within one year of the
Closing Date, invoice the other party for any item for which such
party would be entitled to a credit under SECTIONS 1.3(A) OR 1.3(B)
and the other party shall pay the undisputed amount within thirty (30)
days of receipt of the invoice.
1.4. Allocation of Purchase Price. The aggregate Purchase Price
(including the assumption by Buyer of the Assumed Liabilities) shall be
allocated among the Purchased Assets for tax purposes in accordance with
SCHEDULE 1.4 attached hereto. The Seller and Buyer will follow and use such
allocation in all tax returns, filings or other related reports made by them to
any governmental agencies. To the extent that disclosures of this allocation
are required to be made by the parties to the Internal Revenue Service ("IRS"),
Buyer and the Seller will disclose such reports to the other prior to filing
with the IRS.
2. TRANSFER OF ASSETS
2.1. Definition of Purchased Assets. The Purchased Assets shall
include, but not be limited to, the following:
2.1(a) Leased Real Property. The lease of real property
dated July 8, 1998 between Promenade at Xxxxxx Bay, L.P., as Landlord,
and Seller, as Tenant, for the Restaurant located at The Promenade,
Space No. A-1, Bonita Springs, Florida (the "Real Property Lease")
with respect to the real property described therein (the "Leased Real
Property").
2.1(b) Personal Property. All machinery, equipment,
vehicles, tools, supplies, spare parts, furniture, smallwares and all
other personal property owned, utilized or held for use by the Seller
in the operation of the Restaurant or located at the Restaurant.
2.1(c) Inventory. All inventory held by the Seller on the
Closing Date, which shall be that level of inventory typically held at
the Restaurant in the ordinary course of business.
2.1(d) Contracts. All rights in, to and under the Licensing
Agreement and those agreements, contracts and purchase orders
(hereinafter "Contracts") of the Seller specified in SCHEDULE 2.1(d).
Buyer does not assume any agreement, contract or purchase order of
Seller not specified in SCHEDULE 2.1(d). To the extent that any
Contract for which assignment to Buyer as provided herein is not
assignable without
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the consent of another party, this Agreement shall not constitute an
assignment or an attempted assignment thereof if such assignment or
attempted assignment would constitute a breach thereof. The Seller and
Buyer agree to use their reasonable best efforts (without any
requirement on the part of Buyer or Seller to pay any money or, on the
part of Buyer, to agree to any change in the terms of any such
Contract) to obtain the consent of such other party to the assignment
of any such Contract to Buyer in all cases in which such consent is or
may be required for such assignment. If any such consent shall not be
obtained, the Seller agrees to cooperate with Buyer in any reasonable
arrangement designed to provide for Buyer the benefits intended to be
assigned to Buyer under the relevant Contract, including enforcement
at the cost and for the account of Buyer of any and all rights of the
Seller against the other party thereto arising out of the breach or
cancellation thereof by such other party or otherwise. If and to the
extent that such arrangement cannot be made, Buyer, upon notice, shall
have no obligation pursuant to SECTION 3.2 or otherwise with respect
to any such Contract and any such Contract shall not be deemed to be a
Purchased Asset hereunder.
2.1(e) Computer Software. All computer source codes,
programs and other software of the Seller, including all machine
readable code, printed listings of code, documentation and related
property and information of the Seller.
2.1(f) Literature. All menus, sales literature and
promotional literature and similar materials of the Seller.
2.1(g) Records and Files. All records, files, invoices,
supplier lists, blueprints, specifications, designs, drawings,
accounting records, business records, operating data and other data of
the Seller.
2.1(h) Notes and Accounts Receivable. All notes, drafts and
accounts receivable of the Seller, except those owed by affiliates of
Seller.
2.1(i) Licenses; Permits. All licenses, permits and
approvals of the Seller to the extent the same may be assigned to
Buyer.
2.1(j) General Intangibles. All causes of action arising
out of occurrences before or after the Closing Date, and all other
intangible rights and assets of the Seller.
2.2. Prorations. The following prorations relating to the
Purchased Assets will be made as of the Closing Date, with the Seller liable to
the extent such items relate to any time period up to and including the Closing
Date and Buyer liable to the extent such items relate to periods subsequent to
the Closing Date. The net amount of all such prorations will be settled and
paid on the Closing Date, if possible, and if not possible then as soon as
practicable thereafter.
2.2(a) Personal property taxes, real estate taxes and
assessments, and other taxes, if any, on or with respect to the
Purchased Assets; provided that special assessments levied prior to
the Closing Date shall be paid by the Seller.
2.2(b) Rents, additional rents, taxes and other items
payable by the Seller under any lease, license, permit, contract or
other agreement or arrangement to be assigned to or assumed by Buyer.
2.2(c) The amount of rents, taxes and charges for sewer,
water, fuel, telephone, electricity and other utilities; provided that
if practicable, meter readings shall be taken on the applicable
Closing Date and the respective obligations of the parties determined
in accordance with such readings.
2.2(d) All other items normally adjusted in connection with
similar transactions.
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If the actual expense of any of the above items for the billing period
within which the Closing Date falls is not known on the Closing Date, the
proration shall be made as soon as such actual expense becomes known. The
Seller agrees to furnish Buyer with such documents and other records as shall
be reasonably requested in order to confirm all proration calculations.
2.3. Excluded Assets. The provisions of SECTION 2.1
notwithstanding, the Seller shall not sell, transfer, assign, convey or deliver
to Buyer, and Buyer will not purchase or accept the following assets of the
Seller (collectively the "Excluded Assets"):
2.3(a) Cash and Cash Equivalents. All cash and cash
equivalents, other than xxxxx cash balances at the Restaurants.
2.3(b) Consideration. The consideration delivered by Buyer
pursuant to this Agreement, Seller's other rights under or in
connection with this Agreement, and any other agreements or
instruments contemplated hereby or thereby.
2.3(c) Tax Credits and Records. Federal, state and local
income and franchise tax credits and tax refund claims and associated
returns and records; provided however, Buyer shall have reasonable
access to such returns and records and may make excerpts therefrom and
copies thereof.
2.3(d) Organizational Documents. The Seller's Agreement of
Limited Partnership, minute book and other records having exclusively
to do with the organization and capitalization of the Seller; provided
however, Buyer shall have reasonable access to such books and records
and may make excerpts therefrom and copies thereof.
2.3(e) Employee Records. Any and all employee books and
records to the extent that such transfer of books and records would be
in violation of any laws, provided Seller shall provide Buyer with
copies of such books and records.
3. LIABILITIES
3.1. Liabilities Not to be Assumed. As used in this Agreement, the
term "Liability" shall mean and include any direct or indirect indebtedness,
guaranty, endorsement, claim, loss, damage, deficiency, cost, expense,
obligation or responsibility, fixed or unfixed, known or unknown, asserted or
unasserted, liquidated or unliquidated, secured or unsecured. The Seller agrees
to timely pay and discharge all Liabilities which relate to periods on or
before the Closing Date. Except as and to the extent specifically set forth in
SECTION 3.2, Buyer is not assuming any Liabilities of the Seller and all such
Liabilities shall be and remain the responsibility of the Seller. Without
limiting the generality of the foregoing, Buyer is not assuming and the Seller
shall not be deemed to have transferred to Buyer the following Liabilities of
the Seller:
3.1(a) Income and Franchise Taxes. Any Liability of the
Seller for Federal income taxes and any state or local income, profit
or franchise taxes (and any penalties or interest due on account
thereof).
3.1(b) Insured Claims. Any Liability insured against, to
the extent such Liability is or will be paid by an insurer.
3.1(c) Litigation Matters. Any Liability with respect to
any action, suit, proceeding, arbitration, investigation or inquiry,
whether civil, criminal or administrative ("Litigation"), whether or
not described in SCHEDULE 4.10.
3.1(d) Infringements. Any Liability to a third party for
infringement of any third party's intellectual property.
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3.1(e) Transaction Expenses. Except as provided in SECTION
14.8, or elsewhere in this Agreement, all Liabilities incurred by
Seller in connection with this Agreement and the transactions
contemplated herein.
3.1(f) Liability For Breach. Liabilities of the Seller for
any breach or failure to perform any of the Seller's covenants and
agreements contained in, or made pursuant to, this Agreement, or,
prior to the Closing Date, any other contract, whether or not assumed
hereunder, including breach arising from assignment of contracts
hereunder without consent of third parties.
3.1(g) Liabilities to Affiliates. Liabilities to present or
former Affiliates, except obligations for compensation for services
rendered as an employee pursuant to plans or practices discussed in
SECTION 4.16.
3.1(h) Violation of Laws or Orders. Liabilities for any
violation of or failure to comply with any statute, law, ordinance,
rule or regulation (collectively, "Laws") or any order, writ,
injunction, judgment, plan or decree (collectively, "Orders") of any
court, arbitrator, department, commission, board, bureau, agency,
authority, instrumentality or other body, whether federal, state,
municipal, foreign or other (collectively, "Government Entities").
3.2. Liabilities to be Assumed. Subject to the terms and
conditions of this Agreement, on the Closing Date, Buyer shall assume and agree
to perform and discharge the following, and only the following Liabilities of
the Seller (collectively the "Assumed Liabilities"):
3.2(a) Contractual Liabilities. The Seller's Liabilities
arising from events occurring after the Closing Date under and
pursuant to the following Contracts:
(i) The Real Property Lease.
(ii) All Contracts described in SCHEDULE 2.1(D);
and
(iii) Every Contract entered into by the Seller
in the ordinary course of business which does not involve
consideration or other expenditure by the Seller payable or
performable on or after the Closing Date in excess of One
Thousand Dollars ($1,000) or performance over a period of
more than twelve (12) months.
The Contracts described in SECTIONS 3.2(A)(I), (II) AND (III) above
are hereinafter collectively described as the "Assumed Contracts." The Buyer
agrees to indemnify, defend and hold harmless Seller for any Liability,
including reasonable attorneys' fees, resulting from any and all guarantees
executed in connection with the Real Property Lease assumed by the Buyer
pursuant to SECTION 3.2(A)(I) above, to the extent such liability arises out of
any events first occurring subsequent to the Closing Date. Buyer assumes no
agreement or contract of Seller except the Assumed Contracts.
3.2(b) Liabilities Under Permits and Licenses. The Seller's
Liabilities arising from events occurring after the Closing Date under
any permits or licenses listed in SCHEDULE 3.2(B) and assigned to
Buyer at the Closing.
3.2(c) Other Obligations. The obligations set forth in
SECTION 1.3(B) above, to the extent of the credit received by Buyer.
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4. REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to Buyer that, each of the
following is true and correct in all material respects on the date hereof
except to the extent identified in disclosure schedules referred to below in
this SECTION 4 and attached to this Agreement ("Disclosure Schedules"), shall
remain true and correct in all material respects to and including the Closing
Date and shall be unaffected by any investigation heretofore or hereafter made
by Buyer, or, except as specifically provided herein, any knowledge of Buyer,
and shall survive the closing of the transactions provided for eighteen (18)
months from the Closing Date.
4.1. General.
4.1(a) Organization. The Seller is a limited partnership
duly organized, validly existing and in good standing under the laws
of the State of Florida.
4.1(b) Power. The Seller has all requisite partnership
power and authority to own, operate and lease its properties, to carry
on its businesses as and where such are now being conducted, to enter
into this Agreement and the other documents and instruments to be
executed and delivered by the Seller pursuant hereto and to carry out
the transactions contemplated hereby and thereby.
4.1(c) No Subsidiaries. The Seller does not own any
interest in any corporation, partnership or other entity.
4.2. Authority. The execution and delivery of this Agreement and
the other documents and instruments to be executed and delivered by the Seller
pursuant hereto and the consummation of the transactions contemplated hereby
and thereby have been duly authorized by all necessary partnership action on
the part of the Seller. Other than as specifically provided in this Agreement
or disclosed in the Disclosure Schedules, no other or further act or proceeding
on the part of the Seller is necessary to authorize this Agreement or the other
documents and instruments to be executed and delivered by the Seller pursuant
hereto or the consummation of the transactions contemplated hereby and thereby.
This Agreement constitutes, and when executed and delivered, the other
documents and instruments to be executed and delivered by the Seller pursuant
hereto will constitute, valid binding agreements of the Seller, enforceable in
accordance with their respective terms, except as such may be limited by
bankruptcy, insolvency, reorganization or other laws affecting creditors'
rights generally, and by general equitable principles.
4.3. No Violation. Except as set forth on SCHEDULE 4.3, neither
the execution and delivery of this Agreement or the other documents and
instruments to be executed and delivered by the Seller pursuant hereto, nor the
consummation by the Seller of the transactions contemplated hereby and thereby
(a) will violate any applicable Law or Order, (b) will require any
authorization, consent, approval, exemption or other action by or notice to any
Government Entity, or (c) subject to obtaining the consents referred to in
SCHEDULE 4.3, will violate or conflict with, or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a default)
under, or will result in the termination of, or accelerate the performance
required by, or result in the creation of any Lien (as defined in SECTION
4.12(A)) upon any of the assets of the Seller under, any term or provision of
the Agreement of Limited Partnership of the Seller or of any material contract,
commitment, understanding, arrangement, agreement or restriction of any kind or
character to which the Seller is a party or by which the Seller or any of its
assets or properties may be bound or affected.
4.4. Financial Statements. Included as SCHEDULE 4.4 are true and
complete copies of the financial statements of the Seller consisting of (i)
unaudited balance sheets of the Seller as of December 31, for the two (2) most
recent calendar years, and the related statements of income and cash flows for
the years then ended (including the notes contained therein or annexed
thereto), and (ii) an unaudited balance sheet of the Seller as of April 30,
2000 of the current year (the "Recent Balance Sheet"), and the related
unaudited statements of income
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and cash flows for the four (4) months then ended and for the corresponding
period of the prior year (including the notes and schedules contained therein
or annexed thereto). All of such financial statements (including all notes and
schedules contained therein or annexed thereto) are true, complete and
accurate, have been prepared in accordance with the cash basis accounting
method, have been prepared in accordance with the books and records of the
Seller, and fairly present, in accordance with generally accepted accounting
principles, the assets, liabilities and financial position, the results of
operations and cash flows of the Seller as of the dates and for the years and
periods indicated.
4.5. Tax Matters. Except as set forth on SCHEDULE 4.5 all state,
county, local and other tax returns required to be filed by or on behalf of the
Seller have been timely filed and when filed were true and correct in all
material respects, and the taxes shown as due thereon were paid or adequately
accrued. The Seller has duly withheld and paid all taxes that it is required to
withhold and pay relating to salaries and other compensation heretofore paid to
the employees of the Seller.
4.6. Accounts Receivable. All accounts receivable of the Seller
reflected on the Recent Balance Sheet, and as incurred in the normal course of
business since the date thereof represent arm's length transactions actually
made in the ordinary course of business; to the best of the Seller's knowledge,
are collectible (net of the reserves shown on the Recent Balance Sheet for
doubtful accounts) in the ordinary course of business without the necessity of
commencing legal proceedings; are subject to no counterclaim or setoff; and are
not in dispute.
4.7. Inventory. All inventory of the Seller reflected on the
Recent Balance Sheet consisted of a quality and quantity usable and saleable in
the ordinary course of business, had a commercial value at least equal to the
value shown on such balance sheet. All inventory purchased since the date of
such balance sheet consisted of a quality and quantity usable and saleable in
the ordinary course of business. All current inventory of the Seller is located
on premises leased by the Seller as reflected in this Agreement.
4.8. Absence of Certain Changes. Except as and to the extent set
forth in SCHEDULE 4.8, since the date of the Recent Balance Sheet there has not
been:
4.8(a) No Adverse Change. Any material adverse change in
the financial condition, assets, Liabilities, business, prospects or
operations of the Seller;
4.8(b) No Damage. Any material loss, damage or destruction,
whether covered by insurance or not, affecting Seller's business or
properties;
4.8(c) No Increase in Compensation. Other than such thereof
as has occurred in the ordinary course of business, any increase in
the compensation, salaries or wages payable or to become payable to
any employee of the Seller (including, without limitation, any
increase or change pursuant to any bonus, pension, profit sharing,
retirement or other plan or commitment), or any bonus or other
employee benefit granted, made or accrued;
4.8(d) No Labor Disputes. Any labor dispute or disturbance,
other than routine individual grievances which are not material to the
business, financial condition or results of operations of the Seller;
4.8(e) No Commitments. Any material commitment or
transaction by the Seller (including, without limitation, any
borrowing or capital expenditure) other than in the ordinary course of
business consistent with past practice;
4.8(f) No Disposition of Property. Any sale, lease or other
transfer or disposition of any properties or assets of the Seller,
except in the ordinary course of business;
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4.8(g) No Indebtedness. Any indebtedness for borrowed money
incurred, assumed or guaranteed by the Seller;
4.8(h) No Liens. Any Lien made on any of the properties or
assets of the Seller other than liens for taxes not yet due and
payable;
4.8(i) No Amendment of Contracts. Any entering into,
amendment or termination by the Seller of any contract, or any waiver
of material rights thereunder, other than in the ordinary course of
business;
4.8(j) No Unusual Events. Any other event or condition not
in the ordinary course of business of the Seller.
4.9. Absence of Undisclosed Liabilities. Except as and to the
extent specifically disclosed in the Recent Balance Sheet, or in SCHEDULE 4.9,
the Seller does not have any Liabilities other than liabilities and obligations
incurred since the date of the Recent Balance Sheet in the ordinary course of
business and consistent with past practice and none of which has or will have a
material adverse effect on the business, financial condition or results of
operations of the Seller. Except as and to the extent described in the Recent
Balance Sheet or in SCHEDULE 4.9, the Seller has no knowledge of any basis for
the assertion against the Seller of any Liability and to the knowledge of the
Seller, there are no circumstances, conditions, happenings, events or
arrangements, contractual or otherwise, which may give rise to Liabilities,
except for liabilities and obligations incurred in the ordinary course of the
Seller's business.
4.10. No Litigation. Except as set forth in SCHEDULE 4.10 there is
no Litigation pending or, to the knowledge of the Seller, threatened against
the Seller, its managers or members (in such capacity), its business or its
assets, nor does the Seller know, or have grounds to know, of any basis for any
such Litigation. SCHEDULE 4.10 also identifies all Litigation to which the
Seller or its managers or members (in such capacity) have been parties since
July 31, 1998. Except as set forth in SCHEDULE 4.10, neither the Seller nor its
business or assets are subject to any Order of any Government Entity.
4.11. Compliance With Laws and Orders.
4.11(a) Compliance. Except as set forth in SCHEDULE 4.11(A),
to the best of Seller's knowledge, the Seller (including its
operations, practices, properties and assets) is in material
compliance with all applicable Laws and Orders, including, without
limitation, those applicable to discrimination in employment,
occupational safety and health, trade practices, competition and
pricing, product warranties, zoning, building and sanitation,
employment, retirement and labor relations and product advertising.
Except as set forth in SCHEDULE 4.11(A), the Seller has not received
notice of any violation or alleged violation of, and is subject to no
Liability for past or continuing violation of, any Laws or Orders. All
reports and returns required to be filed by the Seller with any
Government Entity have been filed, and were accurate and complete when
filed. Without limiting the generality of the foregoing:
(i) The Seller has made all required payments
to its unemployment compensation reserve accounts with the
appropriate governmental departments of the states where it
is required to maintain such accounts, and each of such
accounts has a positive balance.
(ii) The Seller has delivered to Buyer copies of
all reports of the Seller required under all applicable
health and safety laws and regulations. The deficiencies, if
any, noted on such reports have been corrected.
4.11(b) Licenses and Permits. Except as set forth on
SCHEDULE 4.11(B), the Seller has, or will have on the Closing Date,
all licenses, permits, approvals, authorizations and consents of all
Government Entities and all certification organizations required for
the conduct of the business (as presently conducted
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and as proposed to be conducted by the Seller) and operation of the
Restaurant. Except as disclosed on SCHEDULE 4.11(B), all such
licenses, permits, approvals, authorizations and consents as described
in SCHEDULE 4.11(B), are in full force and effect. Except as set forth
in SCHEDULE 4.11(B), the Seller (including its operations, properties
and assets) is and has been in compliance with all such permits and
licenses, approvals, authorizations and consents.
4.12. Title to and Condition of Properties.
4.12(a) Marketable Title. The Seller has, or will have on
the Closing Date, good and marketable title to all the Purchased
Assets, free and clear of all mortgages, liens (statutory or
otherwise), security interests, claims, pledges, licenses, equities,
options, conditional sales contracts, assessments, levies, easements,
covenants, reservations, restrictions, rights-of-way, exceptions,
limitations, charges or encumbrances of any nature whatsoever except
those described in SCHEDULE 4.12(A) and other than liens for taxes not
yet due and payable and the interests of the lessors under Real
Property Lease and Personal Property Lease (collectively, "Liens").
Except as described on SCHEDULE 4.12(A), none of the Purchased Assets
are subject to any restrictions with respect to the transferability
thereof. Except as described on SCHEDULE 4.12(A), the Seller has
complete and unrestricted power and right to sell, assign, convey and
deliver the Purchased Assets to Buyer as contemplated hereby. On the
Closing Date, Buyer will receive good and marketable title to all the
Purchased Assets, free and clear of all Liens of any nature whatsoever
except those described in SCHEDULE 4.12(A).
4.12(b) Condition. To the best of Seller's knowledge, all
tangible assets (real and personal) constituting Purchased Assets
hereunder are in good operating condition and repair, free from any
defects (except such minor defects as do not interfere with the use
thereof in the conduct of the normal operations of the Seller), have
been maintained consistent with the standards generally followed in
the industry and are sufficient to carry on the business of the Seller
as conducted during the preceding twelve (12) months. To the best of
Seller's knowledge, all buildings and other structures constituting
the Restaurants' premises are in good condition and repair and have no
structural defects or defects affecting the plumbing, electrical,
sewerage, or heating, ventilating or air conditioning systems.
4.12(c) Real Property. SCHEDULE 2.1(A) sets forth all real
property presently used or occupied by the Seller and its Restaurant
(the "Real Property"). There are now in full force and effect duly
issued certificates of occupancy permitting the Real Property and
improvements located thereon to be legally used and occupied as the
same are now constituted. All of the Real Property has rights of
access to dedicated public highways, as provided in and subject to the
Real Property Lease. To the knowledge of the Seller, no fact or
condition exists which would prohibit or adversely affect the ordinary
rights of access to and from the Real Property from and to the
existing highways and roads and there is no pending or threatened
restriction or denial, governmental or otherwise, upon such ingress
and egress. To the Seller's knowledge, no public improvements have
been commenced and to Seller's knowledge none are planned which in
either case may result in special assessments against or otherwise
materially adversely affect any Real Property. To the Seller's
knowledge, no portion of any of the Real Property has been used as a
landfill or for storage or landfill of hazardous or toxic materials.
The Seller does not have notice or knowledge of any (i) Order
requiring repair, alteration, or correction of any existing condition
affecting any Real Property or the systems or improvements thereat,
(ii) condition or defect which could give rise to an order of the sort
referred to in "(i)" above, or (iii) underground storage tanks, or any
structural, mechanical, or other defects of material significance
affecting any Real Property or the systems or improvements thereat
(including, but not limited to, inadequacy for normal use of
mechanical systems or disposal or water systems at or serving the Real
Property).
4.13. Insurance. Set forth in SCHEDULE 4.13 is a complete and
accurate list of all policies of fire, liability, product liability, workers
compensation, health and other forms of insurance presently in effect with
respect to the business and properties of the Seller, true and correct copies
of which have heretofore been made
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available to Buyer for its inspection. No notice of cancellation or termination
has been received with respect to any such policy, and the Seller has no
knowledge of any act or omission of the Seller that could result in
cancellation of any such policy prior to the Closing Date.
4.14. Contracts and Commitments.
4.14(a) Real Property Lease. Except for the Real Property
Lease, the Seller has no leases of real property. The Real Property
Lease is in full force and effect, to the best of Seller's knowledge,
the Seller is not in default of any term, covenant or obligation under
any of the Real Property Lease, and no condition exists which, with
the passage of time or giving of notice, would constitute a default
under any term, covenant or obligation of Seller under the Real
Property Lease.
4.14(b) Personal Property Leases. Except as set forth in
SCHEDULE 2.1(d), the Seller has no leases of personal property
involving consideration or other expenditure in excess of one thousand
dollars ($1,000) or involving performance over a period of more than
twelve (12) months.
4.14(c) Purchase Commitments. The Seller has no purchase
commitments for inventory items or supplies that, together with
amounts on hand, constitute in excess of two (2) months normal usage,
or which are at an excessive price.
4.14(d) Collective Bargaining Agreements. The Seller is not
a party to any collective bargaining agreement with any unions,
guilds, shop committees or other collective bargaining groups.
4.14(e) Loan Agreements. Except as set forth in SCHEDULE
4.14(e), the Seller is not obligated under any loan agreement,
promissory note, letter of credit, or other evidence of indebtedness
as a signatory, guarantor or otherwise.
4.14(f) Guarantees. Except as disclosed on SCHEDULE 4.14(f),
the Seller has not guaranteed the payment or performance of any
person, firm or corporation, agreed to indemnify any person or act as
a surety, or otherwise agreed to be contingently or secondarily liable
for the obligations of any person.
4.14(g) Burdensome or Restrictive Agreements. The Seller is
not a party to or bound by any agreement, deed, lease or other
instrument which is so burdensome as to materially and adversely
affect or impair the operation of the Restaurants. Without limiting
the generality of the foregoing, the Seller is not a party to or bound
by any agreement requiring it to assign any interest in any trade
secret or proprietary information, or prohibiting or restricting it
from competing in any business or geographical area or soliciting
customers or otherwise restricting it from carrying on its business
anywhere in the world.
4.14(h) Other Material Contracts. The Seller does not have a
lease, license, contract or commitment of any nature involving
consideration or other expenditure in excess of one thousand dollars
($1,000), or involving performance over a period of more than twelve
(12) months, or which is otherwise individually material to the
operations of the Restaurant, except as described in SCHEDULE 4.14(h)
or in any other Disclosure Schedule.
4.14(i) No Default. To its knowledge, the Seller is not in
default under any lease, contract or commitment, nor has any event or
omission occurred which through the passage of time or the giving of
notice, or both, would constitute a default thereunder or cause the
acceleration of any of its obligations or result in the creation of
any Lien on any of the assets owned, used or occupied by it. To the
knowledge of the Seller, no third party is in default under any lease,
contract or commitment to which the Seller is a party, nor has any
event or omission occurred which, through the passage of time or the
giving of notice,
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or both, would constitute a default thereunder or give rise to an
automatic termination, or the right of discretionary termination,
thereof.
4.15. Labor Matters. The Seller has not experienced any labor
disputes, union organization attempts or any work stoppage due to labor
disagreements in connection with its business; (a) the Seller is in compliance
with all applicable laws respecting employment and employment practices, terms
and conditions of employment and wages and hours, and is not engaged in any
unfair labor practice; (b) there is no unfair labor practice charge or
complaint against the Seller pending or threatened; (c) there is no labor
strike, dispute, request for representation, slowdown or stoppage actually
pending or threatened against or affecting the Seller; (d) no question
concerning representation has been raised or is threatened respecting the
employees of the Seller; (e) no grievance which might have a material adverse
effect on the Seller, nor any arbitration proceeding arising out of or under
collective bargaining agreements, is pending and no such claim therefor exists;
and (f) there are no administrative charges or court complaints against the
Seller concerning alleged employment discrimination or other employment related
matters pending or threatened before the U.S. Equal Employment Opportunity
Commission or any Government Entity, except as disclosed on SCHEDULE 4.10.
4.16. Employee Benefit Plans.
The Seller has provided and/or identified each "employee benefit
plan," as defined in Section 3(3) of ERISA which (i) is subject to any
provision of ERISA and (ii) is or was at any time during the last 5 years
maintained, administered or contributed to by the Seller or any affiliate (as
defined in Section 407(d)(7) of ERISA) and covers any employee or former
employee of the Seller or any affiliate or under which the Seller or any
affiliate has any liability. Such plans are referred to collectively herein as
the "Employee Plans." None of the Employee Plans would, individually or
collectively, constitute an "employee pension benefit plan" as defined in
Section 3(2) of ERISA, including, without limitation, a "multiemployer plan,"
as defined in Section 3(37) of ERISA, or a "defined benefit plan," as defined
in Section 3(35) and subject to Title IV of ERISA, and no Employee Plan is
maintained in connection with any trust described in Section 501(c)(9) of the
Code. It is understood and agreed that Buyer is not assuming any Employee Plans
or liabilities associated therewith, and that the Seller shall retain all such
Employee Plans, including all obligations deriving directly or indirectly from
sponsoring or participating in such Employee Plans.
Each Employee Plan has been maintained in compliance with its terms
and the requirements prescribed by any and all statutes, orders, rules and
regulations, including but not limited to, ERISA and the Code, which are
applicable to such Plan. No assets of the Seller are or could be subject,
directly or indirectly, to any liability or lien by reason of any action or
inaction taken with respect to any Employee Plan maintained by the Seller.
The Seller has no liability in respect of post-retirement health and
medical benefits for retired employees of the Seller or any affiliate,
determined using assumptions that are reasonable in the aggregate, over the
fair market value of any fund, reserve or other assets segregated for the
purpose of satisfying such liability (including for such purposes any fund
established pursuant to Section 401(h) of the Code). The Seller has reserved
its right to amend or terminate any Employee Plan or other benefit arrangement
providing health or medical benefits in respect of any active employee of the
Seller under the terms of any such plan and descriptions thereof given to
employees. With respect to any Employee Plans which are "group health plans"
under Section 4980B of the Code and Section 607(l) of ERISA, there has been
timely compliance in all material respects with all requirements imposed
thereunder, and under Parts 6 and 7 of Title I of ERISA generally, so that the
Seller and any affiliate have no (and will not incur any) loss, assessment, tax
penalty or other sanction with respect to any such plan.
There has been no amendment to, written interpretation or announcement
(whether or not written) by the Seller or any affiliate relating to, or change
in employee participation or coverage under, any Employee Plan which would
increase the expense of maintaining such Employee Plan above the level of the
expense incurred in respect thereof for the fiscal year ended immediately prior
to the Closing Date.
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4.17 Employment Compensation. SCHEDULE 4.17 contains a true and
correct list of all employees to whom the Seller is paying compensation,
including bonuses and incentives, at an annual rate in excess of Twenty
Thousand Dollars ($20,000) for services rendered or otherwise; and in the case
of salaried employees such list identifies the current annual rate of
compensation for each employee and in the case of hourly or commission
employees identifies certain reasonable ranges of rates and the number of
employees falling within each such range.
4.18 Intellectual Property. In order to conduct the business of
the Seller, as such is currently being conducted or proposed to be conducted,
the Seller does not require the rights to any intellectual property that it
does not already have. To its knowledge, the Seller is not infringing and has
not infringed any intellectual property of another in the operation of the
business of the Seller, nor is any other person infringing the intellectual
property of the Seller. The Seller has not granted any license or made any
assignment of its rights in any intellectual property. The Seller does not pay
any royalties or other consideration for the right to use any intellectual
property of others. There is no Litigation pending or threatened to challenge
the Seller's right, title and interest with respect to its continued use of any
intellectual property. All intellectual property of the Seller are valid,
enforceable and in good standing, and there are no equitable defenses to
enforcement based on any act or omission of the Seller.
4.19 Major Suppliers. SCHEDULE 4.19 contains a list of the five
(5) largest suppliers (other than alcoholic beverages) to the Seller for the
most recent fiscal year (determined on the basis of the total dollar amount of
purchases) showing the total dollar amount of purchases from each such supplier
during the last twelve months. The Seller does not have any knowledge or
information of any facts indicating, nor any other reason to believe, that any
of the suppliers listed on SCHEDULE 4.19 will not continue to be suppliers to
the business of the Seller after the Closing Date and will not continue to
supply the business with substantially the same quantity and quality of goods
at competitive prices.
4.20 Assets Necessary to Business. The Purchased Assets include
all property and assets (except for the Excluded Assets), tangible and
intangible, and all leases, licenses and other agreements, which are necessary
to permit Buyer to carry on, or currently used or held for use in, the business
of the Seller as presently conducted and as conducted immediately prior to the
Closing Date.
4.21 No Brokers or Finders. Neither the Seller nor any of its
managers, officers, employees, members or agents have retained, employed or
used any broker or finder in connection with the transaction provided for
herein or in connection with the negotiation thereof.
4.22 Disclosure. No representation or warranty by the Seller in
this Agreement, nor any statement, certificate, schedule, document or exhibit
hereto furnished or to be furnished by or on behalf of the Seller pursuant to
this Agreement or in connection with the transactions contemplated hereby,
contains or shall contain any untrue statement of material fact or omits or
shall omit a material fact necessary to make the statements contained therein
not misleading. All statements and information contained in any certificate or
Disclosure Schedule delivered by or on behalf of the Seller shall be deemed
representations and warranties of the Seller.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER
Buyer represents and warrants to the Seller that each of the following
is true and correct in all material respects on the date hereof, shall remain
true and correct in all material respects to and including the Closing Date,
shall be unaffected by any investigation heretofore or hereafter made by the
Seller or any knowledge of the Seller, and shall survive the closing of the
transactions provided for herein for eighteen (18) months.
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5.1. Corporate.
5.1(a) Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Florida.
5.1(b) Corporate Power. Buyer has all requisite corporate
power to enter into this Agreement and the other documents and
instruments to be executed and delivered by Buyer and to carry out the
transactions contemplated hereby and thereby.
5.2 Authority. The execution and delivery of this Agreement and
the other documents and instruments to be executed and delivered by Buyer
pursuant hereto and the consummation of the transactions contemplated hereby
and thereby have been duly authorized by the Board of Directors of Buyer. No
other corporate act or proceeding on the part of Buyer or its shareholders is
necessary to authorize this Agreement or the other documents and instruments to
be executed and delivered by Buyer pursuant hereto or the consummation of the
transactions contemplated hereby and thereby. This Agreement constitutes, and
when executed and delivered, the other documents and instruments to be executed
and delivered by Buyer pursuant hereto will constitute, valid and binding
agreements of Buyer, enforceable in accordance with their respective terms,
except as such may be limited by bankruptcy, insolvency, reorganization or
other laws affecting creditors' rights generally, and by general equitable
principles.
5.3 No Brokers or Finders. Neither Buyer nor any of its
directors, officers, employees or agents have retained, employed or used any
broker or finder in connection with the transaction provided for herein or in
connection with the negotiation thereof.
5.4 Disclosure. No representation or warranty by Buyer in this
Agreement, nor any statement, certificate, schedule, document or exhibit hereto
furnished or to be furnished by or on behalf of Buyer pursuant to this
Agreement or in connection with transactions contemplated hereby, contains or
shall contain any untrue statement of material fact or omits or shall omit a
material fact necessary to make the statements contained therein not
misleading.
5.5. Buyer's Cooperation. Buyer shall use its best efforts to
cooperate with the Seller in obtaining the consents referred to in SECTION 8.3
hereof.
5.6 Other Action. The Buyer shall use its best efforts to cause
the fulfillment at the earliest practicable date of all the conditions to the
parties' obligations to consummate the transactions contemplated in this
Agreement.
6. EMPLOYEES - EMPLOYEE BENEFITS
6.1 Affected Employees. "Affected Employees" shall mean employees
of the Seller who are employed by Buyer immediately after the Closing Date.
6.2 Retained Responsibilities. Subject to SECTION 1.3(B) above,
the Seller agrees to satisfy, or cause its insurance carriers to satisfy, all
claims for benefits, whether insured or otherwise (including, but not limited
to, workers' compensation, life insurance, medical and disability programs),
under Seller's employee benefit programs brought by, or in respect of, Affected
Employees and other employees and former employees of the Seller, which claims
arise out of events occurring on or prior to the Closing Date, in accordance
with the terms and conditions of such programs or applicable workers'
compensation statutes without interruption as a result of the employment by
Buyer of any such employees after the Closing Date.
6.3 Payroll Tax. The Seller agrees to make a clean cut-off of
payroll and payroll tax reporting with respect to the Affected Employees paying
over to the federal, state and city governments those amounts
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respectively withheld or required to be withheld for periods ending on or prior
to the Closing Date. The Seller also agrees to issue, by the date prescribed by
IRS Regulations, Forms W-2 for wages paid through the Closing Date. Except as
set forth in this Agreement, Buyer shall be responsible for all payroll and
payroll tax obligations after the Closing Date for Affected Employees.
6.4 Termination Benefits. Subject to SECTION 1.3(B) above, and
except as provided in the following sentence, Buyer shall be solely responsible
for, and shall pay or cause to be paid, severance payments and other
termination benefits, if any, to Affected Employees who may become entitled to
such benefits by reason of any events occurring after the Closing Date. Subject
to SECTION 1.3(B) above, if any action on the part of the Seller prior to the
Closing Date, or if the sale to Buyer of the business and assets of the Seller
pursuant to this Agreement or the transactions contemplated hereby, or if the
failure by Buyer to hire as a permanent employee of Buyer any employee of
Seller, shall directly or indirectly result in any Liability (i) for severance
payments or termination benefits or (ii) by virtue of any state, federal or
local law, such Liability shall be the sole responsibility of the Seller, and
the Seller shall indemnify and hold harmless Buyer against such Liability.
7. OTHER MATTERS
7.1 Pre-Closing Revenue and Expenses. The Seller shall be
responsible for all expenses, debts and other Liabilities of the Seller and the
Restaurants arising out of or relating to periods prior to and including the
Closing Date.
7.2 Post-Closing Revenue and Expenses. The Buyer shall be
responsible for all expenses, debts and other Liabilities of the Restaurants
arising out of or relating to periods subsequent to the Closing Date.
7.3 Confidentiality.
7.3(a) Definition. For the purpose of this Agreement,
"Proprietary Information" shall include all information, whether
owned, licensed or otherwise used by or in the possession of the
Seller, which reasonably would be considered proprietary or
confidential to the business of the Seller including but not limited
to suppliers, customers, trade or industrial practices, marketing and
technical plans, technology, personnel, organization or internal
affairs, plans for products and ideas, recipes, menus, wine lists and
proprietary techniques and other trade secrets. Notwithstanding the
foregoing, "Proprietary Information" shall not include information
which has entered the public domain.
7.3(b) No Disclosure, Use, or Circumvention. Except in
connection with Seller's or its Affiliates development of an
authorized Roy's Restaurant, the Seller and its Affiliates shall not
disclose any Proprietary Information to any third parties and will not
use any Proprietary Information in the Seller's business or any
affiliated business without the prior written consent of the Buyer and
then only to the extent specified in that consent. Consent may be
granted or withheld at the sole discretion of the Buyer. The Seller
shall not contact any suppliers, customers, employees, affiliates or
associates to circumvent the purposes of this provision.
7.3(c) Maintenance of Confidentiality. The Seller shall
take all steps reasonably necessary or appropriate to maintain the
strict confidentiality of the Proprietary Information and to assure
compliance with this Agreement.
7.4 Non-Solicitation. For a period two (2) years following the
Closing Date, the Seller and its Affiliates shall not offer employment to any
employee of the Buyer or its Affiliates or otherwise solicit or induce any
employee of the Buyer or its Affiliates to terminate his or her employment, nor
shall the Seller act as partner, consultant, agent, owner or part owner, or in
any other capacity for any person or entity which solicits or otherwise induces
any employee of the Buyer or its Affiliates to terminate his or her employment
with the Buyer.
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7.5 Reasonableness of Restrictions; Reformation; Enforcement. The
parties hereto recognize and acknowledge that the limitations contained in
SECTIONS 7.3 AND 7.4 hereof are reasonable and properly required for the
adequate protection of the Buyer's interests. It is agreed by the parties
hereto that if any portion of the restrictions contained in SECTIONS 7.3 OR 7.4
are held to be unreasonable, arbitrary, or against public policy, then the
restrictions shall be considered divisible, both as to the time and as to the
geographical area, with each month of the specified period being deemed a
separate period of time, so that the lesser period of time shall remain
effective so long as the same is not unreasonable, arbitrary, or against public
policy. The parties hereto agree that in the event any court of competent
jurisdiction determines the specified period or the specified geographical area
of the restricted territory to be unreasonable, arbitrary, or against public
policy, a lesser time period or geographical area which is determined to be
reasonable, nonarbitrary, and not against public policy may be enforced. If any
of the covenants contained herein are violated and if any court action is
instituted by the Buyer to prevent or enjoin such violation, the period of time
during which the business activities shall be restricted, as provided in this
Agreement, shall be lengthened by a period of time equal to the period between
the date of the breach of the terms or covenants contained in this Agreement
and the date on which the decree of the court disposing of the issues upon the
merits shall become final and not subject to further appeal.
In the event it is necessary for the Buyer to initiate legal
proceedings to enforce, interpret or construe any of the covenants contained in
SECTIONS 7.3 AND 7.4 hereof, the prevailing party in such proceedings shall be
entitled to receive from the non-prevailing party, in addition to all other
remedies, all costs, including reasonable attorneys' fees, of such proceedings
including appellate proceedings.
7.6 Specific Performance. The parties agree that a breach of any
of the covenants contained in SECTION 7.3 AND 7.4 hereof will cause irreparable
injury to the Buyer for which the remedy at law will be inadequate and would be
difficult to ascertain and therefore, in the event of the breach or threatened
breach of any such covenants, the Buyer shall be entitled, in addition to any
other rights and remedies it may have at law or in equity, to obtain an
injunction to restrain any threatened or actual activities in violation of any
such covenants. The parties hereby consent and agree that temporary and
permanent injunctive relief may be granted in any proceedings which might be
brought to enforce any such covenants without the necessity of proof of actual
damages, and in the event the Buyer does apply for such an injunction, that the
Buyer has an adequate remedy at law shall not be raised as a defense.
8. FURTHER COVENANTS OF THE SELLER
The Seller covenants and agrees as follows:
8.1 Access to Information and Records. During the period
commencing thirty (30) days prior to the Closing Date, the Seller shall give
Buyer, its counsel, accountants and other representatives (i) access during
normal business hours to all of the properties, books, records, contracts and
documents of the Seller for the purpose of such inspection, investigation and
testing as Buyer deems appropriate (and the Seller shall furnish or cause to be
furnished to Buyer and its representatives all information with respect to the
business and affairs of the Seller as Buyer may request); (ii) access to
employees, agents and representatives for the purposes of such meetings and
communications as Buyer reasonably desires; and (iii) access to vendors,
customers, manufacturers of its machinery and equipment, and others having
business dealings with the Seller. Through the Closing Date, the Buyer and its
Affiliates shall not disclose any Proprietary Information obtained pursuant to
this paragraph to any third parties and until the Closing Date will not use any
such Proprietary Information in the Buyer's business or any affiliated business
without the prior written consent of the Seller and then only to the extent
specified in that consent. Consent may be granted or withheld at the sole
discretion of the Seller. The Buyer shall not contact any suppliers, customers,
employees, affiliates or associates to circumvent the purposes of this
provision. The Buyer shall take all steps reasonably necessary or appropriate
to maintain the strict confidentiality of the Proprietary Information through
the Closing Date.
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8.2 Conduct of Business Pending the Closing. From the date hereof
until the Closing Date, except as otherwise approved in writing by the Buyer,
which approval shall not be unreasonably withheld:
8.2(a) No Changes. The Seller will, in all material
respects, carry on its business diligently and in the same manner as
heretofore and will not make or institute any material changes in its
methods of purchase, sale, management, accounting or operation.
8.2(b) Maintain Organization. The Seller will take such
action as may be necessary to maintain, preserve, renew and keep in
favor the material rights and franchises of the Seller and will use
its commercially reasonable best efforts, to the extent material
hereto, to preserve the business organization of the Seller intact, to
keep available to Buyer the present officers and employees, and to
preserve for Buyer its present relationships with suppliers and
customers and others having business relationships with the Seller.
8.2(c) No Breach. The Seller will not do or omit any act,
or permit any omission to act, which may cause a breach of any
material contract, commitment or obligation, or any breach of any
representation, warranty, covenant or agreement made by the Seller
herein, or which would have required disclosure on SCHEDULE 4.8 had it
occurred after the date of the Recent Balance Sheet and prior to the
date of this Agreement.
8.2(d) No Material Contracts. Other than reasonable and
necessary contracts entered into in connection with opening the third
Restaurant as contemplated by this Agreement, no contract or
commitment will be entered into, by or on behalf of the Seller, except
contracts, commitments, purchases or sales which are in the ordinary
course of business and consistent with past practice, are not material
to the Seller (individually or in the aggregate) and would not have
been required to be disclosed in the Disclosure Schedule had they been
in existence on the date of this Agreement.
8.2(e) No Corporate Changes. The Seller shall not
materially amend its Agreement of Limited Partnership or make any
changes in ownership percentages.
8.2(f) Maintenance of Insurance. The Seller shall maintain
all of the insurance in effect as of the date hereof.
8.2(g) Maintenance of Property. The Seller shall use,
operate, maintain and repair all of their property in a normal
business manner.
8.2(h) Interim Financials. The Seller will provide Buyer
with interim monthly financial statements and other management reports
as and when they are available.
8.2(i) No Negotiations. The Seller will not directly or
indirectly (through a representative or otherwise) solicit or furnish
any information to any prospective buyer, commence, or conduct
presently ongoing, negotiations with any other party or enter into any
agreement with any other party concerning the sale of the Seller, any
Restaurants, the Seller's assets or business or any part thereof or
any membership interest in the Seller (an "acquisition proposal"), and
the Seller shall immediately advise Buyer of the receipt of any
acquisition proposal.
8.3 Consents. The Seller will use its commercially reasonable
best efforts prior to the Closing Date to obtain all consents necessary for the
consummation of the transactions contemplated hereby.
8.4 Other Action. The Seller shall use its best efforts to cause
the fulfillment at the earliest practicable date of all of the conditions to
the parties' obligations to consummate the transactions contemplated in this
Agreement.
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8.5 Disclosure. Through the Closing Date, the Seller shall have a
continuing obligation to promptly notify Buyer in writing with respect to any
matter hereafter arising or discovered which, if existing or known at the date
of this Agreement, would have been required to be set forth or described in the
Disclosure Schedule, but no such disclosure shall cure any breach of any
representation or warranty which is inaccurate.
9. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS
Each and every obligation of Buyer to be performed on the Closing Date
shall be subject to the satisfaction prior to or on the Closing Date of each of
the following conditions:
9.1 Representations and Warranties True on the Closing Date. Each
of the representations and warranties made by the Seller in this Agreement, and
the statements contained in the Disclosure Schedule or in any instrument, list,
certificate or writing delivered by the Seller pursuant to this Agreement,
shall be true and correct in all material respects when made and shall be true
and correct in all material respects at and as of the Closing Date as though
such representations and warranties were made or given on and as of the Closing
Date, except for any changes permitted by the terms of this Agreement or
consented to in writing by Buyer.
9.2 Compliance With Agreement. The Seller shall have in all
material respects performed and complied with all of its agreements and
obligations under this Agreement which are to be performed or complied with by
it prior to or on the Closing Date, including the delivery of the closing
documents specified in SECTION 12.3.
9.3 Absence of Litigation. No material Litigation shall have been
commenced or threatened, and no material investigation by any Government Entity
shall have been commenced, against Buyer, the Seller or any of the Affiliates,
officers, directors or managers of any of them, with respect to the
transactions contemplated hereby.
9.4 Consents and Approvals. Except as otherwise specifically
provided in this Agreement, all approvals, consents and waivers that are
required to effect the transactions contemplated hereby shall have been
received, and copies thereof shall have been delivered to Buyer on or prior to
the Closing Date.
9.5 Termination of Employment Agreement. Seller shall have
delivered to Buyer a termination of Xxxx Xxxxx'x employment agreement,
consented to by Xxxx Xxxxx, and confirming that Buyer and the Purchased Assets
shall not be under any obligation to Xxxx Xxxxx as of the Closing.
10. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
Each and every obligation of the Seller to be performed on the Closing
Date shall be subject to the satisfaction prior to or on the Closing Date of
the following conditions:
10.1 Representations and Warranties True on the Closing Date. Each
of the representations and warranties made by Buyer in this Agreement shall be
true and correct in all material respects when made and shall be true and
correct in all material respects at and as of the Closing Date as though such
representations and warranties were made or given on and as of the Closing
Date.
10.2 Compliance With Agreement. Buyer shall have in all material
respects performed and complied with all of Buyer's agreements and obligations
under this Agreement which are to be performed or complied with by Buyer prior
to or on the Closing Date, including the delivery of the closing documents
specified in SECTION 12.4.
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10.3 Absence of Litigation. No material Litigation shall have been
commenced or threatened, and no material investigation by any Government Entity
shall have been commenced, against Buyer, or the Seller or any of the
affiliates, officers, managers, directors or shareholders of either of them,
with respect to the transactions contemplated hereby.
11. INDEMNIFICATION
11.1 By the Seller. Subject to the terms and conditions of this
ARTICLE 11, the Seller hereby agrees to indemnify, defend and hold harmless
Buyer, and its directors, officers, employees and Affiliates (hereinafter
"Buyer's Indemnitees"), from and against all Claims asserted against, resulting
to, imposed upon, or incurred by Buyer's Indemnitees or the business and assets
transferred to Buyer pursuant to this Agreement, directly or indirectly, by
reason of, arising out of or resulting from (a) the inaccuracy or breach of any
representation or warranty of the Seller contained in or made pursuant to this
Agreement (regardless of whether such breach is deemed "material"); (b) the
breach of any covenant of the Seller contained in this Agreement (regardless of
whether such breach is deemed "material"); or (c) any Claim against the Seller,
the Purchased Assets or the business of the Seller not specifically assumed by
Buyer pursuant hereto or which arises out of or relates to any event first
occurring on or prior to the Closing Date. As used in this ARTICLE 11, the term
"Claim" shall include (i) all Liabilities; (ii) all losses, damages (including,
without limitation, consequential damages), judgments, awards, settlements
approved by the Seller (such approval shall not be unreasonably withheld or
delayed), costs and expenses (including, without limitation, interest
(including prejudgment interest in any litigated matter), penalties, court
costs and reasonable attorneys' fees and expenses); and (iii) all demands,
claims, suits, actions, costs of investigation, causes of action, proceedings
and assessments, whether or not ultimately determined to be valid.
11.2 By Buyer. Subject to the terms and conditions of this ARTICLE
11, Buyer hereby agrees to indemnify, defend and hold harmless the Seller, its
controlling persons, its Affiliates, its partners and their officers,
directors, shareholders, agents, employees and controlling persons, from and
against all Claims asserted against, resulting to, imposed upon or incurred by
any such person, directly or indirectly, by reason of or resulting from (a) the
inaccuracy or breach of any representation or warranty of Buyer contained in or
made pursuant to this Agreement (regardless of whether such breach is deemed
"material"); (b) the breach of any covenant of Buyer contained in this
Agreement (regardless of whether such breach is deemed "material"); or (c) all
Claims of or against the Seller specifically assumed by Buyer pursuant hereto
or which relate to the Purchased Assets and arise out of any event occurring
after the Closing Date.
11.3 Indemnification of Third-Party Claims. The obligations and
liabilities of any party to indemnify any other under this ARTICLE 11 with
respect to Claims relating to third parties shall be subject to the following
terms and conditions:
11.3(a) Notice and Defense. The party or parties to be
indemnified (whether one or more, the "Indemnified Party") will give
the party from whom indemnification is sought (the "Indemnifying
Party") written notice of any such Claim, and the Indemnifying Party
will undertake the defense thereof by representatives chosen by it.
Failure to give such notice shall not affect the Indemnifying Party's
duty or obligations under this ARTICLE 11, except to the extent the
Indemnifying Party is prejudiced thereby. So long as the Indemnifying
Party is defending any such Claim actively and in good faith, the
Indemnified Party shall not settle such Claim. The Indemnified Party
shall make available to the Indemnifying Party or its representatives
all records and other materials required by them and in the possession
or under the control of the Indemnified Party, for the use of the
Indemnifying Party and its representatives in defending any such
Claim, and shall in other respects give reasonable cooperation in such
defense.
11.3(b) Failure to Defend. If the Indemnifying Party, within
a reasonable time after notice of any such Claim, fails to defend such
Claim actively and in good faith, the Indemnified Party will (upon
further notice) have the right to undertake the defense, compromise or
settlement of such Claim or consent to the entry of a judgment with
respect to such Claim, on behalf of and for the account and risk of
the
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Indemnifying Party, and the Indemnifying Party shall thereafter have
no right to challenge the Indemnified Party's defense, compromise,
settlement or consent to judgment.
11.3(c) Indemnified Party's Rights. Anything in this ARTICLE
11 to the contrary notwithstanding, (i) if there is a reasonable
probability that a Claim may materially and adversely affect the
Indemnified Party other than as a result of money damages or other
money payments, the Indemnified Party shall have the right to defend,
compromise or settle such Claim, and (ii) the Indemnifying Party shall
not, without the written consent of the Indemnified Party, settle or
compromise any Claim or consent to the entry of any judgment which
does not include as an unconditional term thereof the giving by the
claimant or the plaintiff to the Indemnified Party of a release from
all Liability in respect of such Claim.
11.4 Payment. The Indemnifying Party shall promptly pay the
Indemnified Party any amount due under this ARTICLE 11, which payment may be
accomplished in whole or in part, at the option of the Indemnified Party, by
the Indemnified Party setting off any amount owed to the Indemnifying Party by
the Indemnified Party. To the extent set-off is made by an Indemnified Party in
satisfaction or partial satisfaction of an indemnity obligation under this
ARTICLE 11 that is disputed by the Indemnifying Party, upon a subsequent
determination by final judgment not subject to appeal that all or a portion of
such indemnity obligation was not owed to the Indemnified Party, the
Indemnified Party shall pay the Indemnifying Party the amount which was set off
and not owed together with interest from the date of set-off until the date of
such payment at an annual rate equal to the average annual rate in effect as of
the date of the set-off, on those three maturities of United States Treasury
obligations having a remaining life, as of such date, closest to the period
from the date of the set-off to the date of such judgment. Upon judgment,
determination, settlement or compromise of any third party Claim, the
Indemnifying Party shall pay promptly on behalf of the Indemnified Party,
and/or to the Indemnified Party in reimbursement of any amount theretofore
required to be paid by it, the amount so determined by judgment, determination,
settlement or compromise and all other Claims of the Indemnified Party with
respect thereto, unless in the case of a judgment an appeal is made from the
judgment. If the Indemnifying Party desires to appeal from an adverse judgment,
then the Indemnifying Party shall post and pay the cost of the security or bond
to stay execution of the judgment pending appeal. Upon the payment in full by
the Indemnifying Party of such amounts, the Indemnifying Party shall succeed to
the rights of such Indemnified Party, to the extent not waived in settlement,
against the third party who made such third party Claim.
11.5 No Waiver. The closing of the transactions contemplated by
this Agreement shall not constitute a waiver by any party of its rights to
indemnification hereunder, regardless of whether the party seeking
indemnification has knowledge of the breach, violation or failure of condition
constituting the basis of the Claim at or before the closing, and regardless of
whether such breach, violation or failure is deemed to be "material".
11.6. Survival of Indemnification. The indemnification obligations
of the parties contained in this ARTICLE 11 shall survive the date of this
Agreement and the Closing Date for a period of eighteen (18) months following
the Closing Date, except that the indemnification obligations relating to the
representations and warranties regarding tax obligations shall survive until
one (1) year after the expiration of the applicable statute of limitations for
such tax obligations.
12. CLOSING
12.1 Closing Date. The closing referred to in this Agreement shall
take place on June 1, 2000 or such other date as is mutually agreed to by the
parties (the "Closing Date").
12.2 Place of Closing. The closing shall take place at Buyer's
corporate office or at such other place as the parties hereto shall agree upon.
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12.3 Documents to be Delivered by the Seller. On the Closing Date,
the Seller shall deliver to Buyer the following documents, in each case duly
executed or otherwise in proper form:
12.3(a) Bills of Sale. Bills of sale and such other
instruments of assignment, transfer, conveyance and endorsement as
will be sufficient in the opinion of Buyer and its counsel to
transfer, assign, convey and deliver to Buyer the Purchased Assets as
contemplated hereby.
12.3(b) Compliance Certificate. A certificate signed by the
manager of the Seller that each of the representations and warranties
made by the Seller in this Agreement is true and correct in all
material respects on and as of the Closing Date with the same effect
as though such representations and warranties had been made or given
on and as of the Closing Date (except for any changes permitted by the
terms of this Agreement or consented to in writing by Buyer), and that
the Seller has performed and complied with all of the Seller's
obligations under this Agreement which are to be performed or complied
with on or prior to the Closing Date.
12.3(c) Certified Resolutions. A certified copy of the
resolutions of the general partner of the Seller authorizing and
approving this Agreement and the consummation of the transactions
contemplated by this Agreement.
12.3(d) Incumbency Certificate. Incumbency certificates
relating to each person executing any document executed and delivered
to Buyer pursuant to the terms hereof.
12.3(e) Other Documents. All other documents, instruments or
writings required to be delivered to Buyer on or prior to the Closing
Date pursuant to this Agreement and such other certificates of
authority and documents as Buyer may reasonably request.
12.4 Documents to be Delivered by Buyer. At the Closing, Buyer
shall deliver to the Seller the following documents, in each case duly executed
or otherwise in proper form:
12.4(a) Purchase Price. A certified or bank cashier's check
(or wire transfer) as required by ARTICLE 1.
12.4(b) Assumption of Liabilities. Such undertakings and
instruments of assumption as will be reasonably sufficient in the
opinion of the Seller and its counsel to evidence the assumption of
Assumed Liabilities as provided for in SECTION 3.2.
12.4(c) Compliance Certificate. A certificate signed by the
chief executive officer of Buyer that the representations and
warranties made by Buyer in this Agreement are true and correct on and
as of the Closing Date with the same effect as though such
representations and warranties had been made or given on and as of the
Closing Date (except for any changes permitted by the terms of this
Agreement or consented to in writing by the Seller), and that Buyer
has performed and complied with all of Buyer's obligations under this
Agreement which are to be performed or complied with on or prior to
the Closing Date.
12.4(d) Certified Resolutions. A certified copy of the
resolutions of the Board of Directors of Buyer authorizing and
approving this Agreement and the consummation of the transactions
contemplated by this Agreement.
12.4(e) Incumbency Certificate. Incumbency certificates
relating to each person executing any document executed and delivered
to the Seller by Buyer pursuant to the terms hereof.
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12.4(f) Other Documents. All other documents, instruments or
writings required to be delivered to the Seller on or prior to the
Closing Date pursuant to this Agreement and such other certificates of
authority and documents as the Seller may reasonably request.
13. TERMINATION
13.1 Right of Termination Without Breach.
13.1(a) Mutual Agreement. This Agreement may be terminated
without further liability of either party at any time prior to the
closing by mutual written agreement of Buyer and the Seller.
13.1(b) By Either Party. This Agreement may be terminated
without further liability of any party, by either Buyer or the Seller
if the Closing Date of the transaction contemplated in SECTION 1.1
shall not have occurred on or before June 15, 2000, provided the
terminating party has not, through breach of a representation,
warranty or covenant, prevented such closing from occurring on or
before such date.
13.2 Termination for Breach.
13.2(a) Termination by Buyer. This Agreement may be
terminated by Buyer if (i) there has been a material violation or
breach by the Seller of any of the agreements, representations or
warranties contained in this Agreement which has not been waived in
writing by Buyer, or (ii) there has been a failure of satisfaction of
a condition to the obligations of Buyer which has not been so waived,
or (iii) the Seller shall have attempted to terminate this Agreement
under this ARTICLE 13 or otherwise without grounds to do so, then
Buyer may, by written notice to the Seller at any time prior to the
closing that such violation, breach, failure or wrongful termination
attempt is continuing, terminate this Agreement with the effect set
forth in SECTION 13.2(c) hereof.
13.2(b) Termination by the Seller. The Seller may terminate
this Agreement if (i) there has been a material violation or breach by
Buyer of any of the agreements, representations or warranties
contained in this Agreement which has not been waived in writing by
the Seller, or (ii) there has been a failure of satisfaction of a
condition to the obligations of the Seller which has not been so
waived, or (iii) Buyer shall have attempted to terminate this
Agreement under this ARTICLE 13 or otherwise without grounds to do so,
then the Seller may, by written notice to Buyer at any time prior to
the closing that such violation, breach, failure or wrongful
termination attempt is continuing, terminate this Agreement with the
effect set forth in SECTION 13.2.(C) hereof.
13.2(c) Effect of Termination. Termination of this Agreement
pursuant to this SECTION 13.2 shall not in any way terminate, limit or
restrict the rights and remedies of any party hereto against any other
party which has violated, breached or failed to satisfy any of the
representations, warranties, covenants, agreements, conditions or
other provisions of this Agreement prior to termination hereof.
Subject to the foregoing, the parties' obligations under ARTICLE 11,
SECTIONS 7.3 - 7.6 and SECTION 14.5 of this Agreement shall survive
termination.
14. MISCELLANEOUS
14.1 Disclosure Schedules. The Disclosure Schedules shall not
vary, change or alter the language of the representations and warranties
contained in this Agreement.
14.2 Further Assurance. From time to time, upon request and
without further consideration, the parties will execute and deliver such
documents and take such other action as may be reasonably requested in
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order to consummate more effectively the transactions contemplated hereby,
including, but not limited to, vesting in Buyer good, valid and marketable
title to the business and assets being transferred hereunder.
14.3 Disclosures and Announcements. Both the timing and the
content of all disclosure to third parties and public announcements concerning
the transactions provided for in this Agreement by the Seller or Buyer shall be
subject to the approval of the other in all essential respects, except that
Seller approval shall not be required as to any statements and other
information which Buyer may submit to the Securities and Exchange Commission,
NASDAQ or the stockholders of Buyer or Buyer's Affiliates, or be required to
make pursuant to any rule or regulation of the Securities and Exchange
Commission or NASDAQ, or otherwise required by law.
14.4 Assignment; Parties in Interest.
14.4(a) Assignment. Except as expressly provided herein, the
rights and obligations of a party hereunder may not be assigned,
transferred or encumbered without the prior written consent of the
other parties. Notwithstanding the foregoing, Buyer may, without
consent of any other party, cause one or more subsidiaries or
Affiliates of Buyer to carry out all or part of the transactions
contemplated hereby; provided, however, that Buyer shall,
nevertheless, remain liable for all of its obligations, and those of
any such subsidiary, to the Seller hereunder.
14.4(b) Parties in Interest. This Agreement shall be binding
upon, inure to the benefit of, and be enforceable by
the respective successors and permitted assigns of the parties hereto.
Nothing contained herein shall be deemed to confer upon any other
person any right or remedy under or by reason of this Agreement.
14.5 Law Governing Agreement. This Agreement may not be modified
or terminated orally, and shall be construed and interpreted according to the
internal laws of the State of Delaware, excluding any choice of law rules that
may direct the application of the laws of another jurisdiction.
14.6 Amendment and Modification. Buyer and the Seller may amend,
modify and supplement this Agreement in such manner as may be agreed upon by
them in writing.
14.7 Notice. All notices, requests, demands and other
communications hereunder shall be given in writing and shall be: (a) personally
delivered; or (b) sent to the parties at their respective addresses indicated
herein by registered or certified U.S. mail, return receipt requested and
postage prepaid, or by private overnight mail courier service. The respective
addresses to be used for all such notices, demands or requests are as follows:
(a) If to Buyer, to:
OS Pacific, Inc.
0000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxx X'Xxxxxxx, CEO
Facsimile: 000-000-0000
(with a copy to)
Xxxxxx X. Xxxxx, Vice President and General Counsel
Outback Steakhouse, Inc.
0000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
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or to such other person or address as Buyer shall furnish to the Seller in
writing.
(b) If to the Seller, to:
Restaurant Concepts of Xxxxxx Springs, L.P.
0000 Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile: 000-000-0000
(with a copy to)
Xxxxxx X. Xxxxx, Esquire
Xxxxxxx & Xxxxxxx, P.C.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxxx, Xxxxxxxx 00000
Facsimile: 757-491-4020
or to such other person or address as the Seller shall furnish to Buyer in
writing.
If personally delivered, such communication shall be deemed delivered
upon actual receipt; if sent by overnight courier pursuant to this paragraph,
such communication shall be deemed delivered upon receipt; and if sent by U.S.
mail pursuant to this paragraph, such communication shall be deemed delivered
as of the date of delivery indicated on the receipt issued by the relevant
postal service, or, if the addressee fails or refuses to accept delivery, as of
the date of such failure or refusal. Any party to this Agreement may change its
address for the purposes of this Agreement by giving notice thereof in
accordance with this Section. Notices sent by facsimile or other electronic
means shall not constitute notice under this Agreement.
14.8 Expenses. Regardless of whether or not the transactions
contemplated hereby are consummated:
14.8(a) Brokerage. The Seller and Buyer each represent and
warrant to each other that there is no broker involved or in any way
connected with the transfer provided for herein. Buyer agrees to hold
the Seller harmless from and against all claims for brokerage
commissions or finder's fees incurred through any act of Buyer in
connection with the execution of this Agreement or the transactions
provided for herein. The Seller agrees to hold Buyer harmless from and
against all claims for brokerage commissions or finder's fees incurred
through any act of the Seller in connection with the execution of this
Agreement or the transactions provided for herein.
14.8(b) Expenses to be Shared Equally by the Parties. The
parties shall equally share the cost of the following:
(i) Taxes Arising from Transaction. Any taxes
applicable to, imposed upon or arising out of the sale or
transfer of the Purchased Assets to Buyer and the other
transactions contemplated by this Agreement, including but
not limited to any transfer, use, gross receipts or
documentary stamp taxes. Buyer shall pay all retail sales
taxes arising from the transactions contemplated in this
Agreement.
(ii) Other Expenses. All other costs and
expenses of third parties engaged jointly by the parties
hereto in connection with the consummation of the
transactions contemplated hereby, normally shared by the
parties in similar transactions.
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14.8(c) Other. Except as otherwise provided herein, each of
the parties shall bear its own expenses and the expenses of its
counsel, accountants, and other agents in connection with the
transactions contemplated hereby.
14.8(d) Costs of Litigation. The parties agree that the
prevailing party in any action brought with respect to or to enforce
any right or remedy under this Agreement shall be entitled to recover
from the other party or parties all reasonable costs and expenses of
any nature whatsoever incurred by the prevailing party in connection
with such action, including without limitation reasonable attorneys'
fees and prejudgment interest.
14.9 Entire Agreement. This instrument and the agreements referred
to herein embody the entire agreement between the parties hereto with respect
to the transactions contemplated herein, and there have been and are no
agreements, representations or warranties between the parties other than those
set forth or provided for herein.
14.10 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14.11 Headings. The headings in this Agreement are inserted for
convenience only and shall not constitute a part hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
"BUYER"
OS PACIFIC, INC., a Florida corporation
By:
------------------------------------
Xxxxxx X. Xxxxxx, President
"SELLER"
RESTAURANT CONCEPTS OF XXXXXX SPRINGS,
LIMITED PARTNERSHIP,
a Florida limited partnership
By: R&B of Xxxxxx Springs, Inc.,
a Florida corporation, General Partner
By:
------------------------------------
Xxxxxx X. Xxxxx, President
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