EXHIBIT 6.3
AGREEMENT
AGREEMENT (the "Agreement") made this 9th day of April, 1999 by and
between Diversified Restaurant Holdings, Inc., a Florida Corporation ("DRH") and
Xxxxxx X. Xxxxxxxx, having offices at 000 X. Xxxxxxxx Xxxxxx, Xxxxxx Xxxxx,
Xxxxxxx 00000 ("Xxxxxxxx").
WITNESSETH
WHEREAS, DRH has agreed to exchange 17,743,250 shares of the Common
Stock of DRH, (the "DRH Shares") for 100 shares of the Common Stock of JRB
Marketing of South $.OOI par value Florida, Inc., a Florida Corporation
("Marketing") .001, par value (the "Marketing Shares") on the terms and
conditions hereinbelow set forth; and
WHEREAS, Xxxxxxxx has agreed to exchange to 100 Marketing Shares for
17,743,250 DRH Shares on the terms and conditions hereinbelow set forth
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NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. EXCHANGE.
(a) DRH hereby agrees to issue and deliver to Xxxxxxxx the DRH
Shares.
(b) Xxxxxxxx hereby agrees to transfer, assign and deliver to
DRH the Marketing Shares.
2. CLOSING DATE. The closing of the transactions contemplated herein
(the "Closing") shall take place simultaneously with the execution hereof on the
date hereof (the "Closing Date"). At the Closing:
(a) The certificates representing the Marketing Shares duty
registered in the name of DRH and duty endorsed for transfer to DRH shall be
delivered thereto. The following legend shall be placed on such certificate:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR ANY
STATE SECURITIES LAWS. THE SHARES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF A CURRENT AND
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND SUCH
APPLICABLE STATE SECURITIES LAWS WITH RESPECT TO SUCH SHARES,
OR AN OPINION OF THE REGISTERED HOLDER'S COUNSEL REASONABLY
ACCEPTABLE TO THE ISSUERS COUNSEL TO THE EFFECT THAT SUCH
REGISTRATION IS NOT REQUIRED.
(b) The certificates representing the DRH Shares bearing the
above be issued in the name of and delivered to Xxxxxxxx.
(c) Xxxxxxxx shall be elected to the Board of Directors of DRH
and all existing officers and directors of DRH shall resign in writing.
(d) Xxxxxxxx shall enter into an Employment Agreements with
Marketing in the form attached hereto as Exhibit "A."
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF XXXXXXXX. Xxxxxxxx
hereby represents warrants and covenants to DRH that:
(a) Xxxxxxxx has full authority and legal capacity to
execute and deliver this
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Agreement and to perform this Agreement. This Agreement has been duly and
validly executed and delivered by Xxxxxxxx, and constitutes the valid and
binding obligation of Xxxxxxxx, enforceable against him in accordance with its
terms.
(b) The Marketing Shares when sold by Xxxxxxxx pursuant hereto
will be legally issued, fully paid and non-assessable with no personal liability
attaching thereto .
(c) The execution and delivery of this Agreement does not and
will not violate any provision of any agreement or conflict with any restriction
of any kind or nature to which Marketing or Xxxxxxxx is a party or by which they
are bound, nor will such execution and delivery allow any party to any such
agreement to terminate such agreement or alter the terms or conditions thereof.
On the Closing Date, the consummation of the transactions contemplated hereby
will not violate any provision of any agreement or conflict with any restriction
of any kind or nature to which Marketing or Xxxxxxxx is a party or by which they
are bound and Xxxxxxxx will have the unqualified right to assign and deliver the
Marketing Shares to DRH and to pass to it good and valid title thereto, free and
clear of any and all liens, claims, charges or encumbrances whatsoever.
(d) Marketing does not now have nor ever had any Subsidiary.
For the purposes hereof, the term "Subsidiary" shall mean a subsidiary as
defined in Rule 405 under the Securities Act of 1933 (the "Act").
(e) Marketing has been duly organized under the laws of
Florida and is validly existing and in good standing therein, and has the
requisite corporate power and authority to carry on its business to the extent
presently conducted.
(f) The authorized capital stock of Marketing consists of
50,000,000, $.OOI par value common shares, of which l00 of such shares are
issued and outstanding and the number of common shares outstanding shall, except
as otherwise set forth herein, remain unchanged until the earlier of the Closing
or the termination of this Agreement pursuant to its terms. There is not now,
and as of the Closing Date there will not be any outstanding options, warrants
or other rights to subscribe for or purchase any shares of capital stock of
Marketing nor is there or will there be outstanding any security or other
instrument convertible into or exchangeable for shares of capital stock of
Marketing; nor has Marketing entered into any agreement, arrangement or
understanding to issue any of the foregoing. All of the outstanding equity
securities of Marketing have been duly authorized, validly issued and are fully
paid and non-assessable with no personal liability attaching thereto.
(g) Neither the execution nor delivery hereof nor the
consummation of the transactions contemplated hereby constitutes a violation by
Xxxxxxxx or Marketing of any law, rule, regulation, order, judgment or decree of
any court or of any local governmental authority or any laws, rules, policies or
regulations of any United States federal or state regulatory agenty or of
Marketing's organizational documents or bylaws, and any actions necessary to
consummate such transactions have been duly taken as may be required by
Marketing.
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(h) Xxxxxxxx has delivered to DRH a copy of Marketing
unaudited balance sheet as of March 31, 1999 (the Marketing Balance Sheet Date")
together with the unaudited statement of operations for the period from October
7, 1996 through March 31, 1999 (collectively the "Marketing Financial
Statements").
(i) The Marketing Financial Statements accurately reflect in
all material respects Marketing's financial condition as of the respective dates
of the balance sheets and the results of its operations and cash flows and
statement of stockholders' equity for the period reflected therein and have been
prepared in accordance with generally accepted accounting principles
consistently applied.
(j) Except to the extent reflected or reserved Against in the
Marketing Financial Statements, Marketing did not have, as of the date thereof,
any liabilities or obligations of any nature whatsoever, whether absolute,
accrued, contingent or otherwise due, including, without limitation, liabilities
as a result of taxes with respect to or measured by income or liabilities for
taxes arising from any transaction or state of facts entered into or in
existence prior to such date.
(k) Marketing has duly filed any tax reports and returns
required to be filed thereby and has duly paid all taxes and other charges due
or claimed to be owed by all taxing authorities (including, without limitation,
taxes due in connection with property or the use thereof, income, franchises,
licenses, duties, excises, tangible assets, sales and payrolls).
(l) There are no pending or, to the best of the knowledge of
Marketing andBergmann, threatened administrative, equitable or legal proceedings
or notices thereof against Marketing, including, but not limited to tax audits,
relating to, or claims asserted for, taxes or assessments against Marketing.
(m) Xxxxxxxx is aware that DRH has transferred its investment
in Southern Dragon, Inc. thereto for $I. 00 and the Xxxxxxxx hereby, irrevocably
waives any claim he may now have or ever have against such company or others in
connection with such transfer.
(n) Other than with respect to the transactions contemplated
hereby and described herein, since the Marketing Balance Sheet Date, has not:
(1) Suffered a Material Adverse Effect, as that term
is hereinafter defined, as to the financial condition of Marketing or as to any
of its assets, liabilities, prospects, suppliers, customers or respective
results of operations or businesses, including but not limited to any such
change resulting from any change in any statute, ordinance, rule or regulation.
For all purposes under this Agreement , "Material Adverse Effect" shall be
defined as any occurrence that adversely affects the actual or projected
financial condition, revenues, expenses, business or prospects of Marketing in
any material manner or any other occurrence the consequence of which would
materially impair or alter the ability of Marketing to continue to own, use or
operate any of the assets and/or conduct or operate the business of Marketing as
the case may be, in the same manner as same is owned, used, operated and
conducted as of the date immediately prior to the date of any such occurrence;
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(2) Incurred any obligation or liability, whether
absolute, accrued or contingent, other than in connection with this Agreement or
in the ordinary course of its business;
(3) Paid any claim or satisfied any lien, encumbrance
or liability, whether absolute, accrued or contingent, other than liabilities
reflected in the Marketing Financial Statements or incurred in accordance with
subparagraph (2) above other than in the ordinary course of its business;
(4) Permitted or allowed any of its assets, whether
tangible or intangible, to be mortgaged, pledged or otherwise subjected to any
liens or encumbrances;
(5) Canceled any debtor claims, waived any rights of
substantial value, or sold or transferred any of its assets, except in the
ordinary course of business or as is consistent with their past practices;
(6) Disposed of or permitted to lapse any patents,
trademarks, service marks or copyrights, or any patent, trademark, service xxxx
or copyright application, or disposed of or disclosed to any person any trade
secret, formula, process or know-how;
(7) Granted or promised any increase in the
compensation of any employee, including any such increase pursuant to any bonus,
pension, profit sharing or other plan, or any increase in any such compensation
payable or to become payable by them to any employee other than in the ordinary
course of business;
(8) Made any capital expenditure or commitment for
capital improvements, property, equipment or otherwise;
(9) Declared, paid or set aside for payment to
stockholders any dividend or other distribution, or redeemed, purchased or
otherwise acquired any of its capital stock or any option relating thereto, or
agreed to take any such action-,
(10) Made any material change in any method of
accounting or accounting practice;
(11) Experienced any material labor difficulties;
(12) Engaged in any transaction outside of the
ordinary course of business;
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(13) Entered into, amended or terminated any
contract, agreement or understanding, whether oral or written, which entry,
amendment or termination has had or is reasonably likely to have a Material
Adverse Effect;
(14) Engaged in any action or failed to act where the
result is likely to interfere with the consummation of the transactions
contemplated hereby;
(15) Failed to keep in good standing and in full
force and effect all insurance policies and coverage, if any, in such
commercially reasonable amounts which are necessary in order to properly operate
the businesses of Marketing as such business is presently operated; or
(16) Failed to keep the business records of Marketing
in good order.
(o) Marketing is not the subject of an order, writ,
injunction, decree or judgment of any arbitrator, arbitration panel or any court
or other federal, state or other governmental agency, department, commission
board or instrumentality, either domestic or foreign, the result of which would
have a Material Adverse Effect.
(p) There is no outstanding contract or commitment that, upon
the completion or the performance thereof, after allowance for expenses, is
likely to result in a Material Adverse Effect to Marketing or that, in the
aggregate, is not likely to result in normal profits to Marketing consistent
with past practice.
(q) Xxxxxxxx has been the only shareholder of Marketing since
its formation.
(r) There is no default on the part of Marketing under any
material contract or obligation thereof.
(s) There are no claims for brokerage commissions or finder's
fees in connection with the transactions contemplated hereby that have arisen or
may arise from any act or failure to act of Marketing or any person or entity
authorized to act on its behalf.
(t) No petition in bankruptcy has been filed by or against
Marketing nor has it made any assignment for the benefit of creditors.
(u) Marketing will acquire the DRH Shares solely for
investment purposes for its own account, and not with a view to the
distribution, fractionalization or other disposition thereof or any interest
therein.
(v) Marketing is able to bear the economic risk of the
investment in the DRH Shares, and is aware of the limited ability to sell,
transfer or otherwise dispose of them.
(w) Marketing has such knowledge and experience in financial
and business matters that it can evaluate the merits and risks of the purchase
of the DRH Shares.
(x) Xxxxxxxx understands that:
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(1) He must bear the economic risk of an investment
in the DRH Shares for an indefinite period of time, since the DRH Shares have
not been registered under the Act or any other applicable federal or state
statute and they cannot be transferred, sold or otherwise disposed of unless
registered under the Act or pursuant to an exemption therefrom;
(2) The hereinabove described legend will be placed
on the certificate evidencing the DRH Shares.
and
(3) DRH will issue "stop-transfer" instructions to
its transfer agent with respect to the DRH Shares or so indicate on its internal
records.
(y) Xxxxxxxx is aware that Rule 144 under the Act, as such
rule is presently written and as herein relevant, permits public sales of
restricted securities such as the DRH Shares only if a minimum of one year, as
calculated in accordance with the provisions of such Rule, has elapsed between
the later of the date of the acquisition of such securities from the Issuer or
an affiliate of the Issuer, and with respect to any resale of such securities in
reliance on Rule 144 for the account of either Xxxxxxxx or any subsequent holder
of such securities, such one year period to begin at the time that such
securities are fully paid as contemplated in such Rule, and only upon
satisfaction of the other conditions to the availability of such Rule. If such
Rule is available to Xxxxxxxx, Xxxxxxxx may make only routine sales of such
securities in limited amounts in accordance with the terms and conditions of
such Rule.
(z) Xxxxxxxx understands that DRH is the only party which may
register the Shares under the Act and that DRH has no intention or obligation to
do so.
(aa) Xxxxxxxx has had the opportunity to discuss the business,
management and financial condition of DRH with the management of DRH and has had
the opportunity to ask questions of the management of DRH. DRH has made
available to Xxxxxxxx all documents and information Xxxxxxxx has requested in
order for Xxxxxxxx to evaluate the merits and risks of an investment in the DRH
Shares.
(bb) DRH has provided Xxxxxxxx with the opportunity to make
such business, accounting and legal review, examination or investigation as
Xxxxxxxx has wished as to the business affairs of DRH. DRH has furnished
Xxxxxxxx and his representatives with all such information and copies of such
documents concerning the affairs of DRH as he has requested, and DRH has
cooperated fully in connection with such review and examination and in making
full disclosure to them of all material facts affecting the financial condition
and business operations of DRH.
No investigation by DRH shall diminish or obviate any of the representations,
warranties, covenants or agreements of Xxxxxxxx under this Agreement.
4. REPRESENTATIONS WARRANTIES AND COVENANTS OF DRH. DRH hereby
represents, warrants and covenants to Xxxxxxxx as follows:
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(a) DRH has full and legal capacity to execute and deliver
this Agreement and to perform this Agreement. This Agreement has been duty and
validly executed and delivered by DRH and constitutes the valid and binding
obligation of it enforceable against it in accordance with its terms.
(b) The DRH Shares when transferred and delivered to Xxxxxxxx
pursuant hereto will be legally issued, fully paid and non-assessable with no
personal liability attaching thereto.
(c) The execution and delivery of this Agreement does not and
will not violate any provision of any agreement or conflict with any restriction
of any kind or nature to which DRH is a party or by which it is bound, nor will
such execution and delivery allow any party to any such agreement to terminate
such agreement or alter the terms or conditions thereof. On the Closing Date,
the consummation of the transactions contemplated hereby will not violate any
provision of any agreement or conflict with any restriction of any kind or
nature to which DRH is a party or by which it is bound and DRH will have the
unqualified right to issue and deliver the DRH Shares to Xxxxxxxx and to pass to
him good and valid title thereto, free and clear of any and all liens, claims,
charges or encumbrances whatsoever.
(d) DRH does not now have any Subsidiary or assets.
(e) DRH has been duly organized under the laws of Florida and
is validly existing and in good standing therein, and has the requisite
corporate power and authority to carry on its business to the extent presently
conducted.
(f) The authorized capital stock of DRH consists of
25,000,000, $.001 par value common shares, of which 7,256,750 of such shares are
issued and outstanding, and 5,000,000, $.001 par value preferred shares, of
which none of such shares is issued and outstanding, and the number of common
shares and preferred shares outstanding shall, except as otherwise set forth
herein, remain unchanged until the earlier of the Closing or the termination of
this Agreement pursuant to its terms. There is not now, and as of the Closing
Date there will not be any outstanding options, warrants or other rights to
subscribe for or purchase any shares of capital stock of DRH nor is there or
will there or will there be outstanding any security or other instrument
convertible into or exchangeable for shares of capital stock of DRH; nor has DRH
entered into any agreement, arrangement or understanding to issue any of the
foregoing. All of the outstanding equity securities of DRH have been duly
authorized, validly issued and are fully paid and non-assessable with no
personal liability attaching thereto.
(g) Neither the execution nor delivery hereof nor the
consummation of the transactions contemplated hereby constitutes a violation by
DRH of any law, rule, regulation, order, judgment or decree of any court or of
any local governmental authority or any laws, rules, policies or regulations of
any United States federal or state regulatory agency or of DRH's organizational
documents or bylaws, and any actions necessary to consummate such transactions
have been duly taken as may be required by DRH.
(h) DRH has delivered to Xxxxxxxx a copy of its unaudited
balance sheet as of April 6, 1999 (the DRH Balance Sheet Date") together with
the unaudited statement of operations, statement of cash flows and statement of
stockholders equity for the period its inception through April 6, 1999 and notes
thereto (collectively the "DRH Financial Statements").
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(i) The DRH Financial Statements accurately reflect in all
material respects DRH's financial condition as of the DRH Balance Sheet Date and
the results of its operations and cash flows for the period reflected therein
and have been prepared in accordance with generally accepted accounting
principles consistently applied.
(j) Except to the extent reflected or reserved against in the
DRH FinancialStatements, DRH did not have, as of the date thereof, any
liabilities or obligations of any naturewhatsoever, whether absolute, accrued,
contingent or otherwise due, including, without limitation, liabilities as a
result of taxes with respect to or measured by income or liabilities for taxes
arising from any transaction or state of facts entered into or in existence
prior to such date.
(k) DRH has duly filed any tax reports and returns required to
be filed thereby and has duly paid all taxes and other charges due or claimed to
be owed by all taxing authorities (including, without limitation, taxes due in
connection with property or the use thereof, income, franchises, licenses,
duties, excises, tangible assets, sales and payrolls)., including, but not
limited to tax audits, relating to, or claims asserted for, taxes or assessments
against DRH.
(m) Other than with respect to the transactions contemplated
hereby and described herein and the disposition by DRH of its investment in
Southern Dragon, Inc. for $1.00, since the DRH Balance Sheet Date, DRH has not:
(1) Suffered a Material Adverse Effect, as that term
is hereinafter defined, as to the financial condition of DRH or as to any of its
assets, liabilities, prospects, suppliers, customers or respective results of
operations or businesses, including but not limited to any such change resulting
from any change in any statute, ordinance, rule or regulation. For all purposes
under this Agreement, "Material Adverse Effect" shall be defined as any
occurrence that adversely affects the actual or projected financial condition,
revenues, expenses, business . manner or any other occurrence the consequence of
or prospects of DRH in any material which would materially impair or alter the
ability of DRH to continue to own, use or operate any of the assets and/or
conduct or operate the business of DRH as the case may be, in the same manner as
same is owned, used, operated and conducted as of the date immediately prior to
the date of any such occurrence;
(2) Incurred any obligation or liability, whether
absolute, accrued or contingent, other than in the ordinary course of business
or in connection with this Agreement;
(3) Paid any claim or satisfied any lien,
encumbrance or liability, whether absolute, accrued or contingent, other than
liabilities reflected in the DRH Financial Statements or incurred in accordance
with subparagraph (2) above;
(4) Permitted or allowed any of its assets, whether
tangible or intangible, to be mortgaged, pledged or otherwise subjected to any
liens or encumbrances;
(5) Canceled any debtor claims, waived any rights of
substantial value, or sold or transferred any of its assets, except in the
ordinary course of business or as is consistent with their past practices,
(6) Disposed of or permitted to lapse any patents,
trademarks, service marks
9
or copyrights, or any patent, trademark, service xxxx or copyright application,
or disposed of or disclosed to any person any trade secret , formula, process or
know-how,
(7) Granted or promised any increase in the
compensation of any employee, including any such increase pursuant to any bonus,
pension , profit sharing or other plan, or any increase in any such compensation
payable or to become payable by them to any employee other than in the ordinary
course of business;
(8) Made any capital expenditure or commitment for
capital improvements, property, equipment or otherwise,
(9) Declared, paid or set aside for payment to
stockholders any dividend or other distribution, or redeemed, purchased or
otherwise acquired any of its capital stock or any option relating thereto, or
agreed to take any such action,
(10) Made any material change in any method of
accounting or accounting practice;
(11) Experienced any material labor difficulties,
(12) Engaged in any transaction outside of the
ordinary course of business;
(13) Entered into, amended or terminated any
contract, agreement or understanding, whether oral or written, which entry,
amendment or termination has had or is reasonably likely to have a Material
Adverse Effect;
(14) Engaged in any action or failed to act where
the result is likely to interfere with the consummation of the transactions
contemplated hereby;
(15) Failed to keep in good standing and in full
force and effect all insurance policies and coverage, if any, in such
commercially reasonable amounts which are necessary in order to properly operate
the businesses of DRH as such business is presently operated; or
(16) Failed to keep the business records of DRH in
good order.
(n) DRH is not the subject of an order, writ, injunction,
decree or judgment of any arbitrator, arbitration panel or any court or other
federal, state or other governmental agency, department, commission) board or
instrumentality, either domestic or foreign, the result of which would have a
Material Adverse Effect.
(o) There is no outstanding contract or commitment that, upon
the completion or the performance thereof, after allowance for expenses, is
likely to result in a Material Adverse Effect to DRH or that, in the aggregate,
is not likely to result in normal profits to DRH consistent with past practice.
(p) There is no default on the part of DRH under any material
contract or obligation thereof.
(q) There are no claims for brokerage commissions or finder's
fees in connection
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with the transaction contemplated hereby that have arisen or may arise from any
act or failure to act of DRH or any person or entity authorized to act on its
behalf.
(r) No petition in bankruptcy has been filed by or against DRH
nor has it made any assignment for the benefit of creditors.
(s) DRH will acquire the Marketing Shares solely for
investment purposes their own account, and not with a view to the distribution,
fractionalization or other disposition thereof or any interest therein.
(t) DRH expects to be able to bear the economic risk of the
investment in the Marketing Shares, and are aware of the limited ability to
sell, transfer or otherwise dispose of them.
(u) DRH has such knowledge and experience in financial and
business matters that it can evaluate the merits and risks of the purchase of
the Marketing Shares
(v) DRH understands that:
(1) DRH must bear the economic risk of an investment
in the Marketing Shares for an indefinite period of time, since the Marketing
Shares have not been registered under the the Act or any other applicable
federal or state statute and they cannot be transferred, sold or otherwise
disposed of unless registered under the Act or pursuant to an exemption
therefrom;
(2) The hereinabove described legend will be placed
on the certificate evidencing the Marketing Shares.
and
(3) Marketing will issue "stop-transfer" instructions
to its transfer agent with respect to the Marketing Shares or note such
restriction on its internal records.
(w) DRH is aware that Rule 144 under the Act, as such rule is
presently written and as herein relevant, permits public sales of restricted
securities such as the Marketing Shares only if a minimum of one year, as
calculated in accordance with the provisions of such Rule, has elapsed between
the later of the date of the acquisition of such securities in reliance on Rule
144 for their account or any subsequent holder of such securities, such one year
period to begin at the time that such securities are fully paid as contemplated
in such Rule, and only upon satisfaction of the other conditions to the
availability of such Rule. If such Rule is available to DRH, it may make only
routine sales of such securities in limited amounts in accordance with the terms
and conditions of such Rule.
(x) DRH understands that Marketing is the only party which may
register the Marketing Shares under the Act and that Marketing has no intention
or obligation to do so.
(y) DRH has had the opportunity to discuss the business,
management and financial
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condition of Marketing with the management of Marketing and has had the
opportunity to ask questions of the management of Marketing. Marketing has made
available to DRH all documents and information DRH has requested in order for
DRH to evaluate the merits and risks of an investment in the Marketing Shares.
(z) Marketing has provided DRH with the opportunity to make
such business, accounting, and legal review, examination or investigation as DRH
has wished as to the business affairs of Marketing. Marketing has furnished DRH
and its representatiaves with all such information and copies of such documents
concerning the affairs of Marketing as DRH has requested, and Marketing has
cooperated fully in connection with such review and examination and in making
full disclosure to DRH of all material facts affecting the financial condition
and business operations of Marketing.
No investigation by Marketing shall diminish or obviate any of the represent
covenants or agreements of DRH or Xxxxxxxx under this Agreement.
5 . INDEMNIFICATION.
(a) DRH hereby agrees to indemnify, defend and hold harmless
Xxxxxxxx from and against any and all demands, claims, actions or causes of
action, assessments, losses, damages, liabilities, costs and expenses,
including, without limitation, interest, penalties and attorney's fees and
expenses asserted against, imposed upon or incurred by Xxxxxxxx resulting from
or by reason or a breach of any representation , warranty or covenant of DRH
contained herein.
(b) Xxxxxxxx hereby agrees to indemnify, defend and hold
harmless DRH from and against any and all demands, claims, actions or causes of
action, assessments, losses, damages, liabilities, costs and expenses,
including, without limitation, interest penalties and attorney's fees and
expenses asserted against, imposed upon or incurred by DRH resulting from or by
reason of a breach of any representation, warranty or covenant of Xxxxxxxx
contained herein.
6. CONDITIONS OF INDEMNIFICATION. The obligations and liabilities of
the parties hereunder regarding claims resulting from the assertion of liability
by third parties shall be subject to the following terms and conditions:.
(a) The indemnified party hereby agrees to promptly notify the
indemnifying party in writing of any claims asserted against, imposed upon or
incurred by the indemnified party and the indemnifying party hereby agrees to
undertake the defense thereof by representatives chosen by the indemnifying
party. The indemnifying party shall have the right to control and handle the
conduct of any litigation. The indeminfied party hereby agrees to cooperate with
the indemnifying party in the defense of any litigation. The indemnifying party
hereby agrees to keep the indemnified party informed as to the progress of any
such claim or proceeding; and
(b) In the event that the indemnifying party, within fifteen
(I 5) days after notification by the indemnified party of any claim, fails to
defend, control or handle such matter, the indemnified party shall have the
right, upon written notification to the indemnifying party, to defend,
compromise or settle the same on behalf of and for the account and at the risk
of the indemnifying party. In such event, the indemnifying party hereby agrees
to advance and pay all costs and reasonable attorneys fees of such
indemnification and give full cooperation to the indemnified party, subject,
however, to the right of the
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indemnifying party to assume such defense at any time prior to final settlement,
compromise or determination thereof.
7. REMEDIES. Except as specifically provided for elsewhere herein, all
remedies hereunder shall be cumulative and shall not preclude the assertion by
any party of any other rights or the seeking of any other remedies by it against
the other party, including, but not limited to, the right of specific
performance.
(a) Each of the parties hereto shall execute such documents
and other papers and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof and the transactions contemplated
hereby and each of the parties hereto shall use its best efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all other things
necessary, proper or advisable to consummate and make effective as promptly as
practicable the transactions contemplated by this Agreement, including causing
party's representations, warranties and covenants set forth herein to remain
true and correct at and as of the Closing Date as though made on and as of the
Closing Date
(b) The parties hereto shall each use their respective best
efforts to obtain or make, at the at the earliest practicable date, all consents
and filings necessary to the consummation of the transactions contemplated
hereby or which are reasonably requested by the other party.
9. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All of the
representations, warranties and agreements of the parties hereto shall survive
the Closing of the transactions contemplated hereby.
10. TERMINATION. Without prejudice to other remedies which may be
available to the parties by law or pursuant to the terms of this Agreement, this
Agreement may be terminated:
(a) by mutual consent of the parties hereto; or
(b) by a nondefaulting Party (the "Notifying Party") hereto by
giving written notice of such termination on the Closing Date to the other party
(the "Notified Party") if, as of the Closing Date, any material conditions
precedent to the performance of the obligations of the party giving such notice
shall not have been satisfied and shall not have been waived by such party,
provided, however, that the Notified Party shall be allowed five (5) business
days within which to satisfy any such unsatisfied condition precedent; or
(c) by any party (a "Nondefaulting Party") if the closing of
the transactions contemplated hereunder shall not have been consummated on or
before November 10, 1998, provided such party is not in default hereunder,
unless the Closing Date is extended by written agreement of all the parties
hereto; provided, however, that no party may exercise such right of termination
if the other parties have satisfied all conditions to be satisfied by them
hereunder.
11. PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No Party hereto or related
entity or person shall issue any press release or make any public announcement
relating to the subject matter of this Agreement without the prior written
consent of Marketing; provided, however, that any party may make any public
disclosure such party believes in good faith is required by applicable law.
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12. MISCELLANEOUS.
(a) BENEFIT. This Agreement shall enure to the benefit of the
parties thereto and there respective successors and assigns.
(b) ENTIRE AGREEMENT. This Agreement, including all schedules
and other instruments or documents referred to herein or delivered pursuant
hereto which form a part hereof, contains the entire understanding of the
parties hereto in respect of the subject matter contained herein. There are no
representations, warranties, promises, covenants or undertakings other than
those expressly set forth herein or therein. This Agreement supersedes all prior
agreements, whether written or oral, between the parties with respect to the
subject matter hereof. This Agreement may be amended only by a written agreement
duly executed by the parties hereto. Any condition to a particular party is
obligations hereunder may be waived in writing by such party. .
(c) HEADINGS. The headings contained in this Agreement have
been inserted for convenience and reference purposes only and shall not affect
the meaning or interpretation hereof in any manner whatsoever.
(d) SEVERABILITY. If any of the terms, provisions or
conditions contained in this Agreement shall be declared to be invalid or void
in any judicial proceeding, this Agreement shall be honored and enforced to the
extent of its validity, and those provisions not declared invalid shall remain
in full force and effect.
(e) REMEDIES. In the event of a breach or threatened breach by
any party of its obligations hereunder, each party acknowledges that the other
parties may not have an adequate remedy at law and shall be entitled to such
equitable and injunctive relief as may be available to restrain the other party
from any violation of such obligations. Nothing herein shall be construed as
prohibiting any party from pursuing any other remedies available for such breach
or threatened breach, including the recovery of damages.
(f) DISCLOSURE. Any disclosure made in any schedule or exhibit
hereto shall be deemed to be disclosure in all other applicable schedules. and
exhibits hereto.
(g) EXHIBITS AND SCHEDULES. All exhibits and schedules hereto
shall be deemed to be a part hereof.
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(h) NOTICES. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be deemed given
when actually received addressed to each of the parties as follows:
If to Xxxxxxxx: Xxxxxx X. Xxxxxxxx
000 X. Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxx 00000
If to DRH: Xxxxx X. Xxxx
0 Xxx Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
or to such other address, or the attention of such other party, as the parties
shall advise the other by notice given in conformity herewith.
(i) GOVERNING LAW. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of Florida,
without giving effect to conflicts of law.
(j) COUNTERPARTS. This Agreement may be executed in
counterparts each of which shall be deemed an original and all of which together
shall constitute one and the same agreement.
(k) EXPENSES. Each party shall bear all of his or its own
expenses associated with the transactions contemplated hereby.
(1) ASSIGNMENTS. This Agreement may not be assigned by either
party.
(m) FACSIMILE SIGNATURES. Facsimile signatures on counterparts
of this Agreement are hereby authorized and shall be acknowledged as if such
facsimile signatures were an original execution, and this Agreement shall be
deemed as executed when an executed facsimile hereof is transmitted by a party
to any other party.
(n) LITIGATION, JURISDICTION AND VENUE. In the event any
action, suit or proceeding is instituted as a result of this Agreement, the
prevailing party in such action, suit or proceeding shall be entitled to receive
reimbursement of the costs of such action, suit or proceeding at all levels,
including reasonable attorneys' fees. Further, in the event of the institution
of any such action, suit or proceeding, each of the parties hereto hereby
consents to the exclusive jurisdiction and venue of the courts of the State of
Florida located in Palm Beach County, Florida and the United States District
Court in and for the Southern District of Florida with respect to any matter
relating to this Agreement and the performance of the parties' obligations
hereunder and each of the parties hereto hereby further consents to the personal
jurisdiction of such courts. Any action suit or proceeding brought by or on
behalf of either of the parties hereto relating to such matters shall be
commenced, pursued, defended and resolved only in such courts and any
appropriate appellate court having jurisdiction to hear an appeal from any
judgment entered in such courts. The parties hereby agree that service of
process may be made in any manner permitted by the rules of such courts and the
laws of the State of Florida.
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(o) CONSTRUCTION. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context otherwise requires.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
DIVERSIFIED RESTAURANT HOLDINGS, INC.
By:
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Xxxxx X. Xxxx
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XXXXXX X. XXXXXXXX
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