EXHIBIT 2.3
SETTLEMENT AGREEMENT
This Settlement Agreement (this "Settlement Agreement") is entered into
as of December 11, 2003, in connection with (i) that certain Asset Purchase
Agreement between O'Charley's Inc. and 99 Boston Inc., 99 Boston of Vermont,
Inc., Doe Family II, LLC, Xxxxxxx X. Xxx, III, Xxxx X. Xxx, and Xxxxxxx X. Xxx,
Xx. dated October 28, 2002 (the "Asset Purchase Agreement") and (ii) that
certain Merger Agreement among O'Charley's Inc., Volunteer Acquisition
Corporation and 99 West, Inc., Xxxxxxx X. Xxx, III, Xxxx X. Xxx and Xxxxxxx X.
Xxx, Xx. dated October 28, 2002 (the "Merger Agreement"). All capitalized terms
herein shall have the meanings ascribed to them in the Asset Purchase Agreement
or the Merger Agreement, as applicable, unless otherwise defined herein.
WHEREAS, in accordance with Section 2.8 of the Asset Purchase
Agreement, Buyer prepared and delivered to Sellers the Closing Date Balance
Sheet and calculation of the Consolidated Net Book Value of Sellers and 99 West
as of the Closing Date, and Sellers duly provided written notice to Buyer of
certain objections to such Closing Date Balance Sheet and calculation of the
Consolidated Net Book Value of Sellers and 99 West as of the Closing Date; and
WHEREAS, Sellers and Buyer engaged in negotiations regarding Sellers'
objections to the Closing Date Balance Sheet, the calculation of Consolidated
Net Book Value of Sellers and 99 West as of the Closing Date and other issues
related to the Estimated Balance Sheet and the Financial Statements as presented
by the Sellers and have reached an agreement to settle and resolve all
outstanding issues of the adjustment of the Purchase Price under the Asset
Purchase Agreement based upon the Consolidated Net Book Value of the Sellers and
99 West as of the Closing Date pursuant to the Asset Purchase Agreement and with
respect to the Financial Statements presented by the Sellers pursuant to the
Asset Purchase Agreement and the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing, the transactions set
forth in the Asset Purchase Agreement and the Merger Agreement and the terms and
conditions of this Settlement Agreement, Buyer and Sellers hereby agree as
follows:
1. SETTLEMENT. As settlement in full of any and all amounts owed by
Buyer or Sellers with respect to the adjustment of the Purchase Price under the
Asset Purchase Agreement based upon the Consolidated Net Book Value of the
Sellers and 99 West as of the Closing Date pursuant to the Asset Purchase
Agreement and in exchange for Buyer agreeing not to make any claims against any
of the Sellers for loss, damages or indemnification with respect to, arising out
of, or relating to, the Financial Statements (including but not limited to the
manner of presentation of items set forth therein), Buyer and Sellers agree that
the 101,961 shares of Buyer Common Stock which Buyer is obligated to deliver to
Sellers on the first anniversary of the Closing Date as part of the Purchase
Price shall be reduced by the number equal to the quotient obtained by dividing
(A) 300,000 by (B) the average closing price of Buyer Common Stock on the Nasdaq
Stock Market for the ten trading days ending on January 23, 2004.
Each of Buyer and Sellers does hereby acknowledge that this Settlement
Agreement constitutes full accord and satisfaction of all obligations of any of
them with respect to the adjustment of the Purchase Price based upon the
Consolidated Net Book Value of the Sellers and 99 West as of the Closing Date
pursuant to the Asset Purchase Agreement and any claims Buyer may have with
respect to, arising out of, or related to, the Financial Statements (including
but not limited to the manner of presentation of items set forth therein) under
the Asset Purchase Agreement or the Merger Agreement.
2. NO EFFECT ON SECTION 8.6. Buyer and Sellers agree that the
settlement reached herein shall not be counted against the $250,000 threshold
set forth in Section 8.6 of the Asset Purchase Agreement or Section 8.6 of the
Merger Agreement.
3. CAPACITY AND AUTHORITY. Each signatory to this Settlement Agreement
hereby represents and warrants that he, she or it has the full right, power,
authority and capacity to enter into this Settlement Agreement, and that this
Settlement Agreement constitutes a legal and binding agreement that is
enforceable in accordance with its terms.
4. MERGER PROVISION/NO ORAL MODIFICATION. The parties understand and
agree that this Settlement Agreement embodies and contains all the agreements
and understandings between the parties pertaining to the subject matter herein.
This Settlement Agreement constitutes the entire agreement between the parties
regarding the subject matter herein, and it supersedes any and all prior or
contemporaneous agreements and understandings between the parties in connection
therewith. Any amendments to, or modifications of, this Settlement Agreement, or
any waiver of its terms, shall not be enforceable unless in writing and signed
by the party against whom enforcement is sought.
5. FUTURE INTERESTS. This Settlement Agreement shall be binding upon
and shall inure to the benefit of Buyer and Sellers and their respective legal
representatives, successors and assigns.
6. COUNTERPARTS. This Settlement Agreement may be executed in two (2)
or more counterparts, each of which shall be deemed to be an original document
and all of which, taken together, shall be deemed to constitute but a single
original document.
7. RATIFICATION. Except to the extent amended hereby, all of the terms,
conditions and provisions of the Asset Purchase Agreement and the Merger
Agreement shall remain unmodified, and the Asset Purchase Agreement and the
Merger Agreement, each as amended hereby, are ratified and confirmed as being in
full force and effect.
2
IN WITNESS WHEREOF, each of the following parties has caused this
Settlement Agreement to be executed as of the date first above written.
O'CHARLEY'S INC. (as a party to the Asset
Purchase Agreement and the Merger
Agreement)
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
-----------------------------------
Title: CEO
-----------------------------------
99 BOSTON, INC. (as a party to the Asset
Purchase Agreement)
By: /s/ Xxxxxxx X. Xxx, Xx.
------------------------------------
Name: Xxxxxxx X. Xxx, Xx.
------------------------------------
Title: President
-----------------------------------
DOE FAMILY II, LLC (as a party to the
Asset Purchase Agreement)
By: /s/ Xxxxxxx X. Xxx, Xx.
------------------------------------
Name: Xxxxxxx X. Xxx, Xx.
------------------------------------
Title: Manager
-----------------------------------
99 BOSTON OF VERMONT, INC. (as a party to
the Asset Purchase Agreement)
By: /s/ Xxxxxxx X. Xxx, Xx.
------------------------------------
Name: Xxxxxxx X. Xxx, Xx.
------------------------------------
Title: President
-----------------------------------
/s/ Xxxxxxx X. Xxx, III
-----------------------------------------
XXXXXXX X. XXX, III (as a party to the
Asset Purchase Agreement and the Merger
Agreement)
3
/s/ Xxxx X. Xxx
---------------------------------------
XXXX X. XXX (as a party to the Asset
Purchase Agreement and the Merger
Agreement)
/s/ Xxxxxxx X. Xxx, Xx.
---------------------------------------
XXXXXXX X. XXX, XX. (as a party to the
Asset Purchase Agreement and the Merger
Agreement)
99 WEST, INC. (as a party to the Merger
Agreement)
By: /s/ Xxxxxxx X. Xxx, Xx.
----------------------------------
Name: Xxxxxxx X. Xxx, Xx.
----------------------------------
Title: Vice President
---------------------------------
4
