CONVERSION AGREEMENT
THIS CONVERSION AGREEMENT (this "Agreement") is entered into as of
September 30, 1998, between ROADHOUSE GRILL, INC., a Florida corporation (the
"Company"), and BERJAYA GROUP (CAYMAN) LIMITED ("Berjaya"), a Cayman Islands
corporation.
PRELIMINARY STATEMENTS
WHEREAS, the Company borrowed $2,000,000 from Berjaya pursuant to an
unsecured Promissory Note dated August 16, 1996 (the "August Promissory Note")
and borrowed an additional $3,000,000 from Berjaya pursuant to an unsecured
Promissory Note dated September 27, 1996 (together with the August Promissory
Note, the "Notes"); and
WHEREAS, on November 28, 1997, the Company repaid $2,000,000 of its
outstanding indebtedness to Berjaya under the Notes, and, on January 9, 1998,
the Company repaid an additional $1,500,000 of its outstanding indebtedness to
Berjaya under the Notes; and
WHEREAS, the Company's aggregate remaining indebtedness to Berjaya
under the Notes (the "Remaining Indebtedness") is $1,500,000 as of the date
hereof; and
WHEREAS, the Company and Berjaya desire to convert the Remaining
Indebtedness into shares of the Common Stock, par value $0.03 per share, of the
Company (the "Common Stock") and, in connection therewith, to discharge the
Company from its remaining obligations to Berjaya under the Notes.
NOW THEREFORE, in consideration of the preliminary statements and the
respective covenants, representations and warranties contained in this Agreement
and other good and valid consideration the parties hereto agree as follows.
1. CONVERSION OF REMAINING INDEBTEDNESS. Effective as of the date
hereof, the Remaining Indebtedness shall, by virtue of this Agreement and
without any further action on the part of Berjaya, be converted into and
exchangeable for the number of shares of Common Stock (the "Exchange Shares")
equal to the aggregate amount of the Remaining Indebtedness divided by $3.75,
the closing price of the Common Stock as reported on the Nasdaq National Market
on February 8, 1998.
2. ISSUANCE OF CERTIFICATES REPRESENTING EXCHANGE SHARES. As soon as
practicable after the execution of this Agreement, Berjaya shall surrender the
Notes to the Company or its duly appointed agent for cancellation. Upon receipt
and cancellation of such surrendered Notes, the Company shall issue and exchange
therefor certificates representing the Exchange Shares to which Berjaya is
entitled.
3. DIVIDENDS. No dividends or other distributions declared after the
date hereof with respect to the Exchange Shares and payable after the date
hereof shall be paid with respect to the
Exchange Shares until any unsurrendered Notes are surrendered and canceled as
provided herein. Upon the surrender and cancellation of any such Notes, however,
there shall be paid to the record holder of the certificates representing
Exchange Shares the aggregate amount of dividends and distributions, if any,
which theretofore became payable in respect of the Exchange Shares, subject in
any case to any applicable escheat laws and unclaimed property laws. No interest
shall be payable on or in respect of the payment of such dividends upon the
surrender and cancellation of outstanding Notes.
4. RELEASE FROM OBLIGATIONS. Other than with respect to the issuance of
the Exchange Shares upon surrender and cancellation of the Notes as hereinabove
set forth, Berjaya hereby unconditionally and irrevocably releases and forever
discharges, effective as of the date hereof, the Company and each of its
subsidiaries and their respective officers, directors, employees and agents,
from any and all rights, claims, demands, judgments, obligations, liabilities
and damages, whether accrued or unaccrued, asserted or unasserted, and whether
known or unknown, relating directly or indirectly to the Notes or the Remaining
Indebtedness which ever existed, now exist, or may hereafter exist, by reason of
any tort, breach of contract, violation of law or other act or failure to act
which shall have occurred at or prior to the date hereof (other than claims
based on actual fraud). Berjaya expressly intends that the foregoing release
shall be effective regardless of whether the basis for any claim or right hereby
released shall have been known to or anticipated by Berjaya. The provisions of
this Section 4 are expressly intended to be for the benefit of the Company and
each of its subsidiaries and their respective officers, directors, employees and
agents.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to Berjaya as follows:
a. DUE AUTHORIZATION AND EXECUTION. The execution and delivery
of this Agreement by the Company and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action on the part of the Company and, subject to the terms and
conditions of this Agreement, constitutes the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
its terms.
b. AUTHORIZATION OF EXCHANGE SHARES. All Exchange Shares
issuable pursuant to this Agreement will, upon issuance in accordance with the
terms of this Agreement, be duly authorized, validly issued, fully paid and
non-assessable. All Exchange Shares shall constitute shares of the Company's
Common Stock.
6. REPRESENTATIONS AND WARRANTIES OF BERJAYA. Berjaya hereby represents
and warrants to the Company as follows:
a. DUE AUTHORIZATION AND EXECUTION. The execution and delivery
of this Agreement by Berjaya and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action on the part of Berjaya and, subject to
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the terms and conditions of this Agreement, constitutes the legal, valid and
binding obligations of Berjaya, enforceable against Berjaya in accordance with
its terms.
b. OWNERSHIP OF NOTES. Berjaya is the sole record and
beneficial owner of each of the Notes. Berjaya owns the Notes free and clear of
any liens, pledges, charges, rights, claims, interest, options or other
encumbrances, restrictions, limitations or third-party rights of any kind, and
no other person or entity has any option or other right, or claim or interest of
any kind to purchase, acquire or receive the economic or other benefits of the
Notes.
c. INVESTMENT REPRESENTATIONS. Berjaya is acquiring the
Exchange Shares for its own account for investment and not with a view towards
any resale or distribution of all or any part thereof. Berjaya understands and
acknowledges that (i) the Exchange Shares are being offered and sold to it
without registration under the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder (the "Securities Act") in a private
placement that is exempt from the registration provisions thereof; (ii) Berjaya
is an "Accredited Investor" within the meaning of the Securities Act; (iii) the
availability of such exemption depends, in part, on the accuracy and
truthfulness of the foregoing representations; and (iv) the Company will rely
upon the foregoing representations of Berjaya, and Berjaya hereby consents to
such reliance. Berjaya understands and agrees that the certificates evidencing
the Exchange Shares will bear an appropriate legend evidencing the restricted
nature of such Exchange Shares and indicating that no transfer of any of such
shares may be made unless they are registered under the Securities Act or an
exemption from such registration is available and that the Company may instruct
its transfer agent not to transfer any such shares unless such transfer shall be
made in compliance with such legend.
7. REGISTRATION RIGHTS. If at any time or from time to time, the
Company shall propose to register any securities for public sale under the
Securities Act, then the Company shall give Berjaya prompt notice of the
proposed registration and shall include in such registration on the same terms
and conditions as the other securities included in such registration such number
of Exchange Shares as Berjaya shall request within 15 business days after the
giving of such notice; PROVIDED, HOWEVER, that the Company may at any time prior
to the effectiveness of any such registration statement, in its sole discretion
and without the consent of Berjaya abandon the proposed offering in which
Berjaya had requested to participate. Notwithstanding the foregoing, (i) the
Company shall not be obligated to include such Exchange Shares in such offering
if the Company is advised in writing by the managing underwriter or underwriters
of such offering that such offering would in its or their good faith judgment be
materially adversely affected by such inclusion; PROVIDED, HOWEVER, that the
Company shall in any case by obligated to include such number or amount of
Exchange Shares in such offering, if any, as such underwriter or underwriters
shall determine will not materially adversely affect such offering, and (ii) the
Company shall not be obligated to effect any registration of such Exchange
Shares incidental to the registration by the Company of any of its securities in
connection with mergers, acquisitions, exchange offers, subscription offers,
dividend reinvestment plans or stock option or other director or employee
benefit plans. Berjaya shall be entitled to withdraw any or all of its Exchange
Shares included in any such registration at any time before its agreement to
sell such securities.
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8. BINDING EFFECT. Neither this Agreement nor any rights, duties or
obligations hereunder shall be assignable by either party, in whole or in part,
and any attempted assignment in violation of this prohibition shall be null and
void. Notwithstanding the foregoing, this Agreement shall be assignable by
Berjaya to any of its affiliates without the consent of the Company. Subject to
the foregoing, all of the terms and provisions hereof shall be binding upon, and
inure to the benefit of, the successors and permitted assigns of the parties
hereto.
9. GOVERNING LAW. This Agreement will be governed by and construed and
enforced in all respects, including validity, interpretation and effect, in
accordance with the laws of the State of Florida without giving effect to its
conflicts of laws principles.
10. COUNTERPARTS. This Agreement may be executed in several
counterparts, all of which together shall constitute one and the same instrument
with the same force and effect as though all of the parties had executed the
same document.
11. ENTIRE AGREEMENT. This Agreement constitutes the complete and
entire agreement among the parties hereto with respect to the matters contained
herein and therein and supersedes all prior agreements and understandings
between the parties with respect thereto.
12. NO THIRD PARTY BENEFICIARY. Except as set forth in Section 4,
nothing in this Agreement is intended, or shall be construed, to confer upon or
give any person or entity other than the parties hereto and their respective
heirs, personal representatives, legal representatives, successors and permitted
assigns, any rights or remedies under or by reason of this Agreement.
13. INJUNCTIVE RELIEF. It is possible that remedies at law may be
inadequate and, therefore, the parties hereto shall be entitled to equitable
relief including, without limitation, injunctive relief, specific performance or
other equitable remedies in addition to all other remedies provided hereunder or
available to the parties hereto at law or in equity.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
ROADHOUSE GRILL, INC.
By: /s/ XXXXX SABI
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Name: Xxxxx Sabi
Title: CEO
BERJAYA GROUP (CAYMAN) LIMITED
By: /s/ XXXXXX XXXX XXXX XXXX
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Name: Xxxxxx Xxxx Xxxx Xxxx
Title: Director
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