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EXHIBIT 4
PURCHASE AND SALE AGREEMENT
1. Parties.
This Agreement (the "Agreement") is dated for identification purposes
as of August 1, 2000, and is made and entered into by and between Xxxxx X. Xxxxx
and Xxxx Xxxxx Xxxxx, Trustees of the Xxxxx Revocable Trust of 1993 ("Seller")
and Xxxxx X. Xxxxx, Trustee of The Xxxxx X. Xxxxx 2000 Irrevocable Trust
("Buyer"). Seller and Buyer are herein sometimes called individually a "Party"
and collectively the "Parties."
2. Recitals.
2.1 Seller is the beneficial owner of 17.3% of the capital stock of
Grill Concepts, Inc., a Delaware corporation (the "Company").
2.2 Seller desires to sell and Buyer desires to purchase 250,000 shares
of Common Stock of the Company (the "Shares"), in exchange for the Purchase
Price (as defined herein), upon the terms and subject to the conditions
hereinafter set forth.
3. Transfer of Shares.
3.1 Upon the terms, covenants and conditions herein set forth, at the
"Closing" to be held on the "Closing Date" (as such terms are hereinafter
defined), Seller hereby agrees to sell to Buyer and Buyer hereby agrees to
purchase from Seller, the Shares.
3.2 The purchase price for the Shares, as determined at the Closing,
shall be an amount equal to the Adjusted Closing Trading Price (as hereinafter
defined) multiplied by the number of Shares (the "Purchase Price"). The Purchase
Price will however be adjusted after the Closing, as set forth in Section 3.3.
For purposes of determining the Purchase Price at the Closing, "Adjusted Closing
Trading Price" shall equal 70% of the price per share of the Company's Common
Stock paid in the last trade of the Company's Common Stock before July 31, 2000,
as quoted on the Nasdaq SmallCap Market.
3.3 The parties understand and agree that within five (5) days
following the Closing Date, Seller and Buyer shall select an appraiser (the
"Appraiser") to more precisely determine the Adjusted Closing Trading Price of
the Shares. The Appraiser shall determine the Adjusted Closing Trading Price of
the Shares, within sixty (60) days following the Closing Date. The parties
understand and agree that the final Purchase Price shall be based solely on the
Adjusted Closing Trading Price, as determined by the Appraiser.
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3.4 Buyer shall pay the Purchase Price as follows: (i) $24,000 in cash
on the Closing Date (the "Closing Payment") payable by check or wire transfer;
and (ii) the balance of the Purchase Price (the "Purchase Price Balance") shall
be due and payable pursuant to a Promissory Note in the form of Exhibit "A"
attached hereto (the "Note"). Interest on the unpaid principal balance of the
Note shall be payable annually at the rate of 6.22% per annum. Notwithstanding
the foregoing, Buyer agrees that the Note with a face amount equal to the
Purchase Price Balance shall be exchanged for a Note with a face amount equal to
the Purchase Price as determined by the Appraiser less the Closing Payment (the
"Adjusted Purchase Price Balance"), within ten (10) days following the final
determination of the Purchase Price as provided in Section 3.3 above.
4. Closing and Conveyances.
4.1 The closing of the transaction provided for herein (the "Closing")
shall occur in Los Angeles, California, at the offices of Xxxxxxxxx Xxxxxxx
Fields Claman & Machtinger LLP, 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000, Xxx
Xxxxxxx, XX 00000, on August 1, 2000 (the "Closing Date").
4.2 Seller shall deliver to Buyer at the Closing the stock certificates
representing all of the Shares, endorsed in blank or accompanied by duly
executed assignment documents.
4.3 Buyer shall deliver to Seller at the Closing: (a) the Closing
Payment; (b) the Note in the face amount of the Purchase Price Balance; and (c)
such further instruments, documents of transfer and assignments as may be
reasonably requested by Seller in order to carry out the terms and provisions of
this Agreement.
5. Representations and Warranties of Seller.
5.1 Seller represents and warrants to Buyer the following:
5.1(a) Seller has the full power and authority to enter into
this Agreement.
5.1(b) Seller has not heretofore assigned, transferred,
hypothecated or otherwise conveyed, or purported to assign, transfer,
hypothecate or otherwise convey, all or any portion of the Shares.
5.1(c) Seller shall exchange a new Note with a face amount
equal to the Adjusted Purchase Price Balance for the Note executed by Buyer at
the Closing.
5.1(d) The foregoing representations and warranties in this
Article 5 shall survive the Closing.
6. Representations and Warranties of Buyer.
6.1 Buyer hereby represents and warrants to Seller the following:
6.1(a) Buyer has the full power and authority to enter into
this Agreement.
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6.1(b) Buyer shall exchange a new Note with a face amount
equal to the Adjusted Purchase Price Balance for the Note executed by Buyer at
the Closing.
6.1(c) Buyer understands that the Shares are "restricted
securities" under applicable U.S. federal and state securities laws and that,
pursuant to these laws, Buyer must hold the Shares indefinitely unless
subsequently registered under the Securities Act of 1933, as amended (the
"Securities Act") or unless an exemption from such registration is available.
Buyer is aware of the provisions of Rule 144 promulgated under the Securities
Act which permits limited resale of securities purchased in a private placement
subject to the satisfaction of certain conditions.
6.1(d) Buyer understands that all certificates evidencing the
Shares will bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT
AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION
THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER THE SECURITIES ACT OF 1933."
6.1(e) The foregoing representations and warranties in this
Article 6 shall survive the Closing.
7. Notices.
Any notice, demand or document given or delivered hereunder shall be in
writing and shall be deemed to have been duly given if mailed, either by
certified or registered mail, postage prepaid or sent by facsimile transmission:
If to Seller: Xxxxx X. Xxxxx and Xxxx Xxxxx Xxxxx, Trustees
The Xxxxx Revocable Trust of 1993
00000 Xx Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Fax: 000-000-0000
If to Buyer: Xxxxx X. Xxxxx, Trustee
The Xxxxx X. Xxxxx 2000 Irrevocable Trust
00000 Xx Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Fax: 000-000-0000
or to such other address as such Party shall have specified in writing to the
other Parties, and shall be deemed to have been given or delivered or made on
the date of receipt by the Party to whom such
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notice is to be given, delivered or made. Any notice, demand or document not
given, delivered or made by registered or certified mail as set forth above
shall be deemed to be given, delivered or made only upon receipt of the same by
the Party to whom the same is to be given, delivered or made.
8. Entire Agreement.
This Agreement constitutes the entire agreement between the Parties and
supersedes all prior agreements or understandings, oral and written, between the
Parties hereto with respect to the subject matter hereof. There are no promises,
representations or agreements between the Parties with respect to the subject
matter hereof, except as expressly herein set forth. Each Party is entering into
this Agreement based upon such Party's independent investigation respecting the
advisability of the transactions provided for herein, and is not relying upon
any promise, agreement or undertaking of the other Party, except as may be set
forth in this Agreement.
9. Amendment.
This Agreement may not be modified or amended except by an instrument
in writing executed by all Parties hereto.
10. Binding Effect; Benefit.
This Agreement shall inure to the benefit of and be binding upon the
Parties hereto and their respective successors and assigns.
11. Section and Other Headings.
The Section and other headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
12. Counterparts.
This Agreement may be executed in one or more counterparts and, when
executed by each of the Parties signatory hereto, said counterparts shall
constitute a single valid agreement even though each of the signatory Parties
may be executing a separate counterpart thereof.
13. Attorneys' Fees.
In the event of any action for breach of, to enforce the provisions of,
or otherwise involving this Agreement, the court in such action shall award a
reasonable sum as attorneys' fees to the Party who, in light of the issues
litigated and the court's decision on those issues, was more successful in the
action. The more successful Party need not be the Party who recovers a judgment
in the action. If a Party voluntarily dismisses an action, a reasonable sum as
attorneys' fees shall be awarded to the other Parties.
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14. No Third Party Rights.
All promises, undertakings and agreements of the Parties herein set
forth are, except as expressly set forth otherwise, made for the sole benefit of
the Parties, and this Agreement shall not create any rights or grant any
remedies to any person who is not a Party to this Agreement.
15. Gender and Tense.
Wherever appropriate in this Agreement, the singular shall be deemed to
refer to the plural and the plural to the singular, and pronouns of masculine,
feminine and neuter gender shall be deemed to include either, both or all of the
other genders.
(Signature Page to Follow)
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first written above.
"SELLER"
The Xxxxx Revocable Trust of 1993
/s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx, Trustee
/s/ XXXX XXXXX XXXXX
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Xxxx Xxxxx Xxxxx, Trustee
"BUYER"
/s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx, Trustee of the
Xxxxx X. Xxxxx 2000 Irrevocable Trust
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EXHIBIT A
PROMISSORY NOTE
(ATTACHED)
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