THIRD AMENDMENT TO ASSET PURCHASE AGREEMENT
Exhibit
10.1
EXECUTION
VERSION
THIRD AMENDMENT TO ASSET
PURCHASE AGREEMENT
This
Third Amendment to Asset Purchase Agreement (the “Agreement”) is made and
entered into this 4th day of September, 2008, by and among Rick’s Cabaret
International, Inc., a Texas corporation (“Rick’s), its wholly owned subsidiary,
RCI Entertainment (Las Vegas), Inc., a Nevada corporation (the “Purchaser”), DI
Food and Beverage of Las Vegas, LLC, a Nevada limited liability company (“DI
Food” or “Seller”) and Xxxxxx Xxxxxx (“Danzig”), Xxxxx Xxxxxx (“Xxxxxx”) and
Xxxxxx XxXxxx (“XxXxxx”), who are all members of DI Food. Messrs.
Danzig, Xxxxxx and DeGori are hereinafter collectively referred to herein as
“Members”.
RECITALS
WHEREAS,
Purchaser, Rick’s, Seller and the Members entered into an Asset Purchase
Agreement dated April 17, 2008, (“Purchase Agreement”) for (i) the acquisition
by Purchaser of all of the assets owned by the Seller which are associated or
used in connection with the operation of an adult entertainment cabaret known as
“SCORES” located at 0000 Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000 (the “Real
Property” or the “Premises”), all as set forth in the Purchase Agreement; and
(ii) the entering into an Option Agreement pursuant to which either the
Purchaser or Seller may exercise the option to purchase the Real Property where
SCORES is located; and
WHEREAS,
Purchaser, Rick’s, Seller and the Members entered into an Amendment to the Asset
Purchase Agreement dated June 8, 2008, amending Section 4.1 of the Purchase
Agreement to change the Closing Date and Section 11.1 of the Purchase Agreement
to change the Termination Date; and
WHEREAS,
Purchaser, Rick’s, Seller and the Members entered into a Second
Amendment to the Asset Purchase Agreement effective June 30, 2008,
amending Section 3.1 of the Purchase Agreement to change the structure of the
Purchase Price, amending Section 4.1 of the Purchase Agreement to change the
Closing Date and amending Section 11.1 of the Purchase Agreement to change the
Termination Date; and
WHEREAS,
Purchaser, Rick’s, Seller and the Members have negotiated, in good faith, new
terms and conditions of the Purchase Agreement and wish to amend and restate, in
its entirety, the Purchase Agreement.
NOW, THEREFORE, in
consideration of the premises, the mutual covenants and agreements and the
respective representations and warranties herein contained, and on the terms and
subject to the conditions herein set forth, the parties hereto, intending to be
legally bound, hereby agree as follows:
The
Purchase Agreement is hereby amended and restated in its entirety to read as
follows, and the Exhibits to the Purchase Agreement shall be revised as
necessary to conform to the amended and restated Purchase
Agreement:
This
Asset Purchase Agreement (the “Agreement”) is made and entered into this 17th day
of April, 2008, by and among Rick’s Cabaret International, Inc., a Texas
corporation (“Rick’s), its wholly owned subsidiary, RCI Entertainment (Las
Vegas), Inc., a Nevada corporation (the “Purchaser”), DI Food and Beverage of
Las Vegas, LLC, a Nevada limited liability company (“DI Food” or “Seller”) and
Xxxxxx Xxxxxx (“Danzig”), Xxxxx Xxxxxx (“Xxxxxx”) and Xxxxxx XxXxxx (“XxXxxx”),
who are all members of DI Food. Messrs. Danzig, Xxxxxx and DeGori are
hereinafter collectively referred to herein as “Members”.
WHEREAS, DI Food presently
owns and operates an adult entertainment cabaret known as “SCORES” (the
“Business” or “SCORES”) located at 0000 Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000
(the “Real Property” or the “Premises”); and
WHEREAS, DI Food presently has
an option to purchase the Real Property where SCORES is located;
and
WHEREAS, the Members own 100%
of the membership interest of DI Food (the “Membership Interest”);
and
WHEREAS, DI Food desires to
sell, transfer and convey all of the assets owned by it which are associated or
used in connection with the operation of SCORES to the Purchaser, including the
option to purchase the Real Property on the terms and conditions set forth
herein; and
WHEREAS, the Purchaser desires
to purchase the assets from DI Food on the terms and conditions set forth
herein.
NOW, THEREFORE, in
consideration of the premises, the mutual covenants and agreements and the
respective representations and warranties herein contained, and on the terms and
subject to the conditions herein set forth, the parties hereto, intending to be
legally bound, hereby agree as follows:
ARTICLE
I
PURCHASE
AND SALE OF THE ASSETS
Section
1.1 Assets of Seller to be
Transferred to Purchaser. On the Closing Date (as defined in
Section 4.1 hereof), and subject to the terms and conditions set forth in this
Agreement, Seller shall sell, convey, transfer and assign, or cause to be sold,
conveyed, transferred and assigned to Purchaser free and clear of all liens and
encumbrances, and Purchaser shall acquire all of the tangible and intangible
assets and personal property of every kind and description and wherever situated
of the business of SCORES from the Seller, including but not limited to, the
following personal property of the Seller:
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(i)
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all
of the tangible and intangible assets and personal properties of every
kind and description and wherever situated of the business of SCORES,
including, without limitation, inventories, furniture, fixtures, equipment
(including office and kitchen equipment), computers and software,
appliances, sign inserts, sound and lighting and telephone
systems not incorporated into the building, telephone numbers, and other
personal property of whatever kind and nature owned or leased by Seller,
installed, located, situated or used in, on, or about, or in connection
with the operation, use and enjoyment of the Premises and all other items
on the subject Premises and used in connection with the operation of
SCORES;
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(ii)
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all
of Seller's inventory of supplies, accessories and any and all other items
of personal property of whatever nature, sold by the Seller in the
operation of SCORES (the
"Inventory");
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(iii)
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all
supplies (other than Inventory) and other "consumable supplies" used in
connection with the operation of SCORES (the
"Supplies");
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(iv)
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all
of Seller's right, title, and interest, as lessee, of any and all
equipment leased by Seller and located at SCORES (the "Leased
Equipment");
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(v)
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all
of Seller’s right, title and interest under that certain Real Estate Lease
and Option Agreement by and between Seller and SHE CAT, LLC (the “Lease
Agreement”), a copy of which is attached hereto as Exhibit
1.1(v);
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(vi)
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all
right, title, and interest of Seller to the use of the telephone numbers
presently being used by the Business, including all rotary extensions
thereto, and all advertisements in the "Yellow Pages", "City Directory"
and other similar publications (the "Telephone Numbers") and after the
Closing, Purchaser shall assume all expenses for the Telephone Numbers and
advertising;
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(vii)
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all
right, title and interest of Seller to all lists, whether written or in
electronic form, of customers and accounts, contracts, sales information,
and pricing lists of SCORES;
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(viii)
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copies
of Seller's lists of suppliers, and any and all of books, records, papers,
files, memoranda and other documents relating to or compiled in connection
with the operation of SCORES which are requested by Purchaser (the
"Records"); and
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(ix)
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to
the extent transferable, any and all necessary permits and authorizations
which are needed to conduct an adult entertainment business serving
alcoholic beverages at SCORES which the Seller has the right to transfer
and convey, including its sexually oriented business permit and license
and all other licenses, consents, authorizations, accreditations, waivers
and approvals (together with all government filings pertaining thereto),
however designated, establishes, maintained or renewed and issued
evidencing or authorizing the Seller, Seller’s agent(s) or nominee(s) for
the purpose of engaging in the business and/or operation of an adult
cabaret nightclub business, gaming facility, restaurant, bar, lounge, sale
of liquor or any other business currently operating or capable of being
operated on the Premises however
characterized.
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All of
the items set forth in this Section 1.1 are collectively referred to as the
“Purchased Assets”.
Section
1.2 Excluded
Assets. Specifically excluded from the Purchased Assets are
the corporate seals, books, accounting records and records related to corporate
governance of the Seller and those assets listed on Exhibit 1.2 (hereinafter
collectively referred to as the “Excluded Assets”).
Section
1.3 Intent of the
Parties. Although the Exhibits to this Agreement are intended
to be complete, in the event such Exhibits fail to contain the description of
any asset belonging to Seller which is used solely for the business of SCORES,
such assets shall nonetheless be deemed transferred to Purchaser at the
Closing.
ARTICLE
II
NO
ASSUMPTION OF LIABILITIES
Section
2.1 Excluded
Liabilities. Notwithstanding anything contained in this
Agreeent to the contrary, Purchaser shall have no obligation and is not
assuming, and Seller shall retain, pay, perform, defend and discharge all of the
liabilities and obligations of every kind whatsoever related or connected to the
Purchased Assets or the business of SCORES arising or accruing prior to the
Closing Date, whether disclosed or undisclosed, known or unknown on the Closing
Date, direct or indirect, absolute or contingent, secured or unsecured,
liquidated or unliquidated, accrued or otherwise, whether liabilities for taxes,
liabilities of creditors, liabilities arising under any profit sharing, pension
or other benefit under any plan of Seller, liabilities to any Governmental
Agency (as hereinafter defined) or third parties, liabilities assumed or
incurred by Seller by operation of law or otherwise (collectively, the “Excluded
Liabilities”), including, but not limited to, (i) contractual liabilities
arising from SCORES’ business or ownership of the Purchased Assets prior to the
Closing Date, and (ii) any taxes owing by Seller, whether occurring before or
after Closing and whether related to the business of SCORES, the Purchased
Assets or otherwise and any Liens on the Purchased Assets relating to any such
taxes.
Section
2.2 Taxes. Seller
shall pay when due any sales, transfer, excise, or other taxes which may be
imposed in any jurisdiction in connection with or arising from the sale and
transfer of any of the Purchased Assets to Purchaser.
Section
2.3 Bulk Sales
Laws. Seller acknowledges that any applicable provisions of
any tax clearance or bulk sales laws pertaining to the transactions contemplated
by this Agreement are being complied with and that Seller agrees to
indemnify and hold harmless Purchaser from and against any and all liabilities
arising out of or relating to any such tax clearance or bulk sales
law. Any such liability shall be an Excluded Liability.
ARTICLE
III
PURCHASE
PRICE FOR
THE
PURCHASED ASSETS
Section
3.1 Purchase
Price. As consideration for the purchase of the Purchased
Assets, Purchaser shall pay to Seller an aggregate amount payable at Closing as
follows:
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(i)
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$12,000,000
payable by cashier’s check, certified funds or wire
transfer;
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(ii)
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$3,000,000
pursuant to a promissory note (“the Rick’s Promissory Note”), executed by
and obligating Rick’s, bearing interest at eight percent (8%) per annum
with a five (5) year amortization, with monthly payments of principal and
interest to commence upon the seventh month following the Closing, with a
balloon payment of all then outstanding principal and interest due upon
the expiration of two (2) years from the execution of the Rick’s
Promissory Note.
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(iii)
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200,000
shares of restricted common stock, par value $0.01 of Rick’s (the “Rick’s
Shares”) issued to the Seller.
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Section
3.2 Right of
Seller to “Put” Shares.
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(a)
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On
or after seven (7) months from the date of Closing, the Seller shall have
the right, but not the obligation, to have Rick’s purchase from the Seller
a total of 150,000 of the Rick’s Shares (for purposes of this Section 3.2,
the 150,000 Rick’s Shares shall hereinafter be referred to as the “Rick’s
Put Share”) in an amount and at a rate of not more than 6,250 of the
Rick’s Put Shares per month (the “Monthly Shares”) calculated at a price
per share equal to $20.00 per share (“Value of the Rick’s Shares”) until
the Seller has received an aggregate of $3,000,000 from (i) the sale of
the Rick’s Put Shares, regardless of whether sold to Rick’s, sold in the
open market or in a private transaction or otherwise and (ii) the payment
of any Deficiency (as hereinafter defined) by Rick’s. Seller
shall notify Rick’s during any given month of its election to “Put” the
Monthly Shares to Rick’s during that particular month and Rick’s shall
have three (3) business days to elect to buy the Monthly Shares or
instruct the Seller to sell the Monthly Shares in the open
market. At Rick’s election, during any given month, it
may either buy the Monthly Shares or, if Rick’s elects not to buy the
Monthly Shares from Seller, then Seller shall sell the Monthly Shares in
the open market and any deficiency between the amount which Seller
receives from the sale of the Monthly Shares and the Value of the Rick’s
Shares (the “Deficiency”) shall be paid by Rick’s within three (3)
business days after receipt of written notice from the Seller of the sale
of the Monthly Shares which shall provide the written sales confirmation
and the amount of the Deficiency. Rick’s obligation under this
Section 3.2(a) to purchase the Monthly Shares from Seller shall terminate
and cease at such time as Seller has received an aggregate amount of
$3,000,000 from (i) the sale of the Rick’s Put Shares, regardless of
whether sold to Rick’s, sold in the open market or in a private
transaction or otherwise, and (ii) the payments of any Deficiency by
Rick’s. Seller agrees to provide monthly statements to Rick’s
as to the total number of Rick’s Put Shares which Seller sold and the
amount of proceeds derived therefrom. Except as set forth in
Section 3.2(b) below, nothing contained in this Section 3.2(a) shall limit
or preclude Seller from selling the Rick’s Put Shares in the open market
or require Seller to “Put” the Rick’s Put Shares to Rick’s during any
given month.
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Asset
Purchase Agreement - Page 5
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(b)
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Seller
and Rick’s will enter into a Lock-Up/Leak-Out Agreement which will provide
that the Seller will not sell more than 25,000 Rick’s Shares per 30-day
period, regardless of whether the Seller “Puts” the Rick’s Put Shares to
Rick’s or sells them in the open market or otherwise. In the
event that the Seller elects to sell any of the Rick’s Put Shares pursuant
to this Section 3.2(b), then any amount sold at prices less than the Value
of the Rick’s Shares shall be deemed to be sold at $20.00 for purposes of
Section 3.2(a). The form of the Lock-Up/Leak-Out Agreement
shall be as attached hereto as Exhibit 3.2(b) and made a part
hereof.
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The (i)
$12,000,000 cash payment (ii) the Rick’s Promissory Note and (iii) the Rick’s
Shares are collectively referred to as the “Purchase Price”.
Section
3.3 Payment into
Escrow. As of the date of execution of this Agreement, the
Purchaser shall have deposited $250,000 into an escrow account (the “Escrow
Amount”) with Xxxxxx X. Xxxxxxx, P.C. (the “Escrow Agent”) pursuant to a written
Escrow Agreement with the Seller and the Escrow Agent (the “Escrow
Agreement”). The $250,000 shall be held in escrow until the Closing
as hereinafter defined.
In the event that the Closing occurs,
the Escrow Amount will be paid by the Escrow Agent to the Seller and shall be
credited against the cash portion of the Purchase Price as set forth in Section
3.1(i) above. The Escrow Agreement shall further provide that if the
Purchaser, through no fault of Seller, does not complete the acquisition as
provided for in this Agreement, that the Seller shall be entitled, as its sole,
legal and equitable remedy, to receive and retain all of the Escrow Amount as
and for its liquidated damages. The Escrow Agreement shall further
provide that in the event that the Closing does not occur through no fault of
Purchaser, then the Purchaser shall be entitled, in addition to any other
remedies which it may have, to receive and retain all of the Escrow
Amount.
Section
3.4 Pro Rata Payment of License
Fees. In the event that the Purchaser does not complete and
close the acquisition of the Purchased Assets by May 31, 2008, then the
Purchaser and Seller agree that any licensing fees that are required to be
renewed and paid for by he Seller after May 31, 2008, and prior to the Closing
Date shall be pro rated for the applicable renewal period and the Purchaser will
be required to reimburse the Seller at Closing for the pro rata portion of the
term of the licensing fee that each of Purchaser and Seller shall have the use
and benefit.
ARTICLE
IV
CLOSING
Section
4.1 The
Closing. The closing of the transactions contemplated by this
Agreement shall take place not later than September 8, 2008 (the “Closing
Date”), at the offices of Xxxxxx & Xxxxxxxx, a Professional Corporation,
0000 X. Xxxxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000, or at such other
time and place as agreed upon among the parties hereto (the
“Closing”).
Section
4.2 Right to License
Name. In the event that the Closing does not occur on or prior
to May 6, 2008, then Rick’s will agree, commencing on that date, to license its
name for a period of ninety (90) days (or until the Closing Date if sooner)
without charge to DI Food to use instead and in place of the name SCORES at the
Premises.
Asset
Purchase Agreement - Page 6
Section
4.3 Delivery and
Execution. At the Closing: (a) the Seller shall deliver to
Purchaser all instruments of assignment and bills of sale necessary to transfer
to Purchaser good and marketable title to the Purchased Assets free and clear of
all liens, charges or encumbrances against delivery by Purchaser to the Seller
of payment in an amount equal to the Purchase Price of the Purchased Assets
being purchased by Purchaser in the manner set forth herein; (b) the Seller and
Purchaser shall deliver the various certificates, instruments and documents (and
shall take the required actions) referred to in Articles VII and VIII below; and
(c) the Related Transaction (as defined below) shall be consummated concurrently
with the Closing.
Section
4.4 Related
Transaction. In addition to the purchase and sale of the
Purchased Assets, the following actions shall take place contemporaneously at
the Closing (the "Related Transaction"):
(a) Covenant Not to
Compete. At Closing certain members and managers of DI Food
will enter into a Non-Competition Agreement as agreed to by the parties and
attached hereto as Exhibit 4.4(a).
(b) Consulting
Agreement. At Closing, XxXxxx will enter into a Consulting
Agreement with Rick’s as evidenced by a Consulting Agreement as agreed to by the
parties and attached hereto as Exhibit 4.4(b).
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES
OF
THE SELLER AND THE MEMBERS
The
Seller and the Members, jointly and severally, hereby represent and warrant to
Purchaser and Rick’s as follows:
Section
5.1 Organization, Good Standing
and Qualification.
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(i)
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The
Seller (i) is an entity duly organized, validly existing and in good
standing under the laws of the state of Nevada, (ii) has all requisite
power and authority to own, operate and lease its properties and to carry
on its business, and (iii) is duly qualified to transact business and is
in good standing in all jurisdictions where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, except where the failure to do so would not have a material
adverse effect to Seller.
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(ii)
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The
authorized capital of the Seller consists of 1,200 units of
Membership Interest of which 1,200 units of Membership Interest are
validly issued, fully paid and outstanding. There is no other class of
capital authorized or issued by the Seller. The Members
collectively own all of the Membership Interest. None of the
Membership Interest issued are in violation of any preemptive
rights. The Seller has no obligation to repurchase, reacquire,
or redeem any of its outstanding Membership Interest. There are
no outstanding securities convertible into or evidencing the right to
purchase or subscribe for any Membership Interest of the Seller, there are
no outstanding or authorized options, warrants, calls, subscriptions,
rights, commitments or any other agreements of any character obligating
the Seller to issue any Membership Interest or any securities convertible
into or evidencing the right to purchase or subscribe for any Membership
Interest, and there are no agreements or understandings with respect to
the voting, sale, transfer or registration of any Membership Interest of
the Seller.
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Asset
Purchase Agreement - Page 7
Section
5.2 Ownership of the Purchased
Assets. Seller owns all of the Purchased Assets free and clear
of any liens, claims, equities, charges, options, rights of first refusal, or
encumbrances. Seller has the unrestricted right and power to transfer, convey
and deliver full ownership of the Purchased Assets without the consent or
agreement of any other person and without any designation, declaration or filing
with any governmental authority. Upon the transfer of the Purchased
Assets to Purchaser as contemplated herein, Purchaser will receive good and
valid title thereto, free and clear of any liens, claims, equities, charges,
options, rights of first refusal, encumbrances or other
restrictions.
Section
5.3 Authorization. The
Seller has all requisite corporate power and authority to execute and deliver
this Agreement and to perform its obligations hereunder and to consummate the
transactions contemplated hereby. All action on the part of the
Seller necessary for the authorization, execution, delivery and performance of
this Agreement and all documents related to consummate the transactions
contemplated herein have been taken or will be taken prior to the Closing Date
by the Seller. This Agreement, when duly executed and delivered in accordance
with its terms, will constitute legal, valid and binding obligations of the
Seller enforceable against it in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization and other similar laws of
general application affecting creditors’ rights generally or by general
equitable principles.
Each
Member, individually, represents that he is a person of full age of majority,
with full power, capacity, and authority to enter into this Agreement and
perform the obligations contemplated hereby by for himself. All
action on the part of such Member necessary for the authorization, execution,
delivery and performance of this Agreement by him has been taken and will be
taken prior to Closing. This Agreement, when duly executed and
delivered in accordance with its terms, will constitute legal, valid and binding
obligations of such Member enforceable against him in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization and other
similar laws of general application affecting creditors’ rights generally or by
general equitable principles.
Section
5.4 Acquisition of the Rick’s
Shares. The Seller understands that the issuance by Rick’s of
the Rick’s Shares (as referenced in Section 3.1 herein) will not have
been registered under the Securities Act of 1933, as amended (the “Act”), or any
state securities acts, and accordingly, are restricted securities.
The
Seller understands that any sale of the “Rick’s Shares, under current law, will
require either (a) the registration of the Rick’s Shares under the Act and
applicable state securities acts; (b) compliance with Rule 144 of the Act; or
(c) the availability of an exemption from the registration requirements of the
Act and applicable state securities acts.
Asset
Purchase Agreement - Page 8
To
assist in implementing the above provisions, the Seller hereby consents to the
placement of the legend, or a substantially similar legend, set forth below, on
all certificates representing ownership of the Rick’s Shares acquired hereby
until the Rick’s Shares have been sold, transferred, or otherwise disposed of,
pursuant to the requirements hereof. The legend shall read
substantially as follows:
“THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY APPLICABLE STATE SECURITIES ACTS. THESE SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT, ARE RESTRICTED AS TO TRANSFERABILITY, AND MAY
NOT BE SOLD, HYPOTHECATED, OR OTHERWISE TRANSFERRED WITHOUT COMPLIANCE WITH THE
REGISTRATION AND QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND STATE
SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM.”
Seller further understands and agrees
that Rick’s may notify its transfer agent of the Lock-Up/Leak Out Agreement and
the limitation on the number of the Rick’s Shares that Seller may sell in any
given month in accordance with the terms and conditions of the Lock-Up/Leak Out
Agreement as described in Section 3.2(b) above.
Section
5.5 Seller’s Access to
Information. The Seller hereby confirms and represents that it
(a) has received a copy of Rick’s Form 10-KSB filed with the Securities and
Exchange Commission (the “SEC”) for the year ended September 30, 2007, and a
copy of Rick’s Form 10-QSB for the quarters ended December 31, 2007, March 31,
2008 and June 30, 2008, as filed with the SEC; (b) a copy of Rick’s Form 14C
filed with the SEC on June 27, 2007; (c) a copy of the Form 8-K’s filed with the
SEC on January 28, 2008, February 11, 2008, February 13, 2008, March 7, 2008,
March 18, 2008, April 3, 2008, April 4, 2008, April 23, 2008, May 9, 2008, May
14, 2008, June 17, 2008, June 23, 2008 and Form 8-K/A’s dated June 9, 2008 and
July 2, 2008; (d) has been afforded the opportunity to ask questions of and
receive answers from representatives of Rick’s concerning the
business and financial condition, properties, operations and prospects of
Rick’s; (e) has such knowledge and experience in financial and business matters
so as to be capable of evaluating the relative merits and risks of the
transactions contemplated hereby; (f) has had an opportunity to engage and is
represented by an attorney of his choice; (g) has had an opportunity to
negotiate the terms and conditions of this Agreement; (h) has been given
adequate time to evaluate the merits and risks of the transactions contemplated
hereby; and (i) has been provided with and given an opportunity to review all
current information about Rick’s. Seller has asked such questions to
representatives of Rick’s about Rick’s as it desires to ask and all such
questions have been answered to the full satisfaction of the
Seller. The forms filed by Rick’s with the SEC as set forth in
Section 5.5(a), (b) and (c) are hereafter collectively referred to as “SEC
Reports”.
Section
5.6 Purchase for
Investment. Seller acknowledges that it is an Accredited
Investor as that term is defined in Rule 501(a) of Regulation D of the Act, as
amended. Seller and its representatives have received, or have had
access to, and have had sufficient opportunity to review, all books, records,
financial information and other information which Seller considers necessary or
advisable to enable it to make a decision concerning its acquisition of the
Rick’s Shares, and that it possesses such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks of
its investment hereunder.
Asset
Purchase Agreement - Page 9
Section
5.7 No Breaches;
Consents. Except as set forth in Schedule 5.7, the execution,
delivery, and performance of this Agreement and the transactions contemplated
hereby by the Seller does not: (i) violate any provision of its
Articles of Organization or Regulations, (ii) conflict with, violate, or
constitute a breach of or a default under, (iii) result in the creation or
imposition of any lien, claim, or encumbrance of any kind upon the Purchased
Assets, or (iv) require any authorization, consent, approval, exemption, or
other action by or filing with any third party or Governmental Authority under
any provision of: (a) any applicable Legal Requirement, or (b) any
credit or loan agreement, promissory note, or any other agreement or instrument
to which the Seller is a party or by which the Purchased Assets may be bound or
affected. For purposes of this Agreement, "Governmental Authority"
means any foreign governmental authority, the United States of America, any
state of the United States, and any political subdivision of any of the
foregoing, and any agency, department, commission, board, bureau, court, or
similar entity, having jurisdiction over the parties hereto or their respective
assets or properties. For purposes of this Agreement, "Legal
Requirement" means any law, statute, injunction, decree, order or judgment (or
interpretation of any of the foregoing) of, and the terms of any license or
permit issued by, any Governmental Authority.
Section
5.8 Pending
Claims. Except as set forth in Schedule 5.8, there is no
claim, suit, arbitration, investigation, action or other proceeding, whether
judicial, administrative or otherwise, now pending or, to the best of the
Seller’s or Members’ knowledge, threatened before any court, arbitration,
administrative or regulatory body or any governmental agency which may result in
any judgment, order, award, decree, liability or other determination which will
or could reasonably be expected to have any effect upon the Seller, or the
business of SCORES or the operation of SCORES after the Closing Date, nor is
there any basis known to the Seller or Members for any such
action. No litigation is pending, or, to the Seller’s or Members’
knowledge, threatened against the Seller, or the business of SCORES, or the
Purchased Assets which seeks to restrain or enjoin the execution and delivery of
this Agreement or any of the documents referred to herein or the consummation of
any of the transactions contemplated hereby. Neither the Seller nor the Members
is subject to any judicial injunction or mandate or any quasi-judicial or
administrative order or restriction directed to or against them which would
affect the Seller or the business of SCORES.
Section
5.9 Taxes. The
Seller has timely and accurately prepared and filed all federal, state, foreign
and local tax returns and reports required to be filed prior to such dates and
have timely paid all taxes shown on such returns as owed for the periods of such
returns, including all sales taxes and withholding or other payroll related
taxes shown on such returns. The Seller is not delinquent in the
payment of any tax or governmental charge of any nature. Neither the
Seller nor the Members has knowledge of any liability for any tax to be imposed
by any taxing authorities as of the date of this Agreement and as of the Closing
that is not adequately provided for. No assessments or notices of
deficiency or other communications have been received by the Seller with respect
to any tax return which has not been paid, discharged or fully reserved against
and no amendments or applications for refund have been filed or are planned with
respect to any such return. None of the federal, state, foreign and
local tax returns of the Seller have been audited by any taxing
authority. Neither the Seller nor the Members has knowledge of any
additional assessments, adjustments or contingent tax liability (whether federal
or state) of any nature whatsoever, whether pending or threatened against the
Seller for any period, nor of any basis for any such assessment, adjustment or
contingency. There are no agreements between the Seller and any
taxing authority, including, without limitation, the Internal Revenue Service,
waiving or extending any statute of limitations with respect to any tax
return.
Asset
Purchase Agreement - Page 10
Section
5.10 Financial
Statements. Seller has delivered to Purchaser its unaudited
income statement for the eleven months ending November 30, 2007 (the “Financial
Statements”). Such Financial Statements are in accordance with the books and
records of the Seller and fairly represent the financial position of the Seller
and the results of operations as of the date indicated, in each case in
conformity with generally accepted accounting principles applied on a consistent
basis.
Section
5.11 No Material Adverse
Change. Since the date of the Financial Statements, Seller has
conducted its business in the ordinary course, consistent with past practice,
and there has been no (i) change that has had or would reasonably be expected to
have a material adverse effect upon the Purchased Assets or business or the
financial condition or other operations of Seller or SCORES, (ii) acquisition or
disposition of any material asset by Seller or any contract or arrangement
therefore, otherwise then for fair value in the ordinary course of business,
(iii) material change in Seller’s accounting principles, practices or methods or
(iv) incurrence of any material indebtedness.
Section
5.12 Labor
Matters. The Seller is not a party or otherwise subject to any
collective bargaining agreement with any labor union or
association. There are no discussions, negotiations, demands or
proposals that are pending or have been conducted or made with or by any labor
union or association, and there are not pending or threatened against the Seller
any labor disputes, strikes or work stoppages. To the best of
Seller’s and Members’ knowledge, the Seller is in compliance with
all
federal and state laws respecting employment and employment practices, terms and
conditions of employment and wages and hours, and, to its knowledge, is not
engaged in any unfair labor practices.
Section
5.13 Compliance with
Laws. The Seller is, and at all times prior to the date
hereof, has been in compliance with all statutes, orders, rules, ordinances and
regulations applicable to it or to the ownership of its assets or the operation
of its businesses, except for failures to be in compliance that would not have a
material adverse effect on the business, properties, condition (financial or
otherwise) or prospects of the Seller. The Seller has no basis to
expect, nor has it received any order or notice of any such violation or claim
of violation of any such statute, order, rule, ordinance or regulation by the
Seller. Schedule 5.13 sets forth all licenses and permits held by the
Seller used in the operation of SCORES, all of which are in good standing and in
effect as of the Closing Date. These licenses and permits represent
all of the licenses and permits required by the Seller for the operation of
SCORES.
Section
5.14 Title to Properties;
Encumbrances. Except as set forth in Schedule 5.14, the
Seller has good and marketable title to all of the Purchased Assets, which
represent all of the assets, personal, tangible, and intangible, that are
material to the condition (financial or otherwise), business, operations or
prospects of SCORES, free and clear of all mortgages, claims, liens, security
interests, charges, leases, encumbrances and other restrictions of any kind and
nature.
Asset
Purchase Agreement - Page 11
Section
5.15 Contracts and
Leases. Except as previously provided to Purchaser, the
Seller does not (i) have any leases of personal property relating to the
Purchased Assets, whether as lessor or lessee; (ii) have any contractual or
other obligations relating to the Purchased Assets, whether written or oral; and
(iii) have given any power of attorney to any person or organization for any
purpose relating to the Purchased Assets or the business of
SCORES. The Seller has previously provided to Purchaser or will
provide to Purchaser prior to the Closing Date each and every contract, lease or
other document relating to the Purchased Assets to which it is subject or is a
party or a beneficiary. To Seller’s and Members’ knowledge, such
contracts, leases or other documents are valid and in full force and effect
according to their terms and constitute legal, valid and binding obligations of
the Seller and the other respective parties thereto and are enforceable in
accordance with their terms. Neither Seller nor the Members has any
knowledge of any default or breach under such contracts, leases or other
documents or of any pending or threatened claims under any such contracts,
leases or other documents. Except for the consent to assign the Lease
Agreement, neither the execution of this Agreement, nor the consummation of all
or any of the transactions contemplated under this Agreement, will constitute a
breach or default under any such contracts, leases or other documents which
would have a material adverse effect on the Purchased Assets or the financial
condition or operation of SCORES after the Closing.
Section
5.16 Lease Agreement for the
Premises. The Seller is not presently and as of the Closing
Date shall not be in default under the provisions of the Lease Agreement with
SHE CAT, LLC and is, and shall be as of the Closing Date, in compliance with all
terms and conditions thereof, including payment of all rent and that there are
not any charges which the landlord, SHE CAT, LLC, claims against Seller and that
the Lease Agreement and the option contained therein to purchase the Premises
is, and shall be as of the Closing Date, in full force and effect.
Section
5.17 No Pending
Transactions. Except for the transactions contemplated by this
Agreement and the Related Transactions contemplated in Section 4.4 herein, the
Seller is not a party to or bound by or the subject of any agreement,
undertaking, commitment or discussions or negotiations with any person that
could result in: (i) the sale of any of the Purchased Assets; (ii) the sale,
merger, consolidation or recapitalization of the Seller; (iii) the acquisition
by the Seller of any operating business or the capital stock of any other person
or entity; (iv) the borrowing of money; (v) any agreement with any of the
respective officers, managers or affiliates of the Seller; (vi) the expenditure
of more than $10,000, in the aggregate, or the performance by the Seller
extending for a period more than one year from the date hereof, other than in
the ordinary course of business; or (vii) the sale of any outstanding securities
of the Seller.
Section
5.18 Insurance Policies. Copies
of all insurance policies maintained by the Seller relating to the operation of
SCORES has been delivered or made available to Purchaser. The
policies of insurance held by the Seller are in such amounts, and insure against
such losses and risks, as the Seller reasonably deems appropriate for its
property and business operations. All such insurance policies are in
full force and effect, and all premiums due thereon have been
paid. Valid policies for such insurance will be outstanding and duly
in force at all times prior to the Closing.
Section
5.19 No
Default. Seller is not in default under any term or condition
of any instrument evidencing, creating or securing any indebtedness
of the Seller, and there has been no default in any material
obligation to be performed by Seller under any other contract, lease, agreement,
commitment or undertaking to which the Seller is a party or by which it or its
assets or properties are bound, nor has Seller waived any material right under
any such contract, lease, agreement, commitment or undertaking.
Asset
Purchase Agreement - Page 12
Section
5.20 Books and
Records. The books of account, minute books, stock record
books and other records of the Seller, all of which have been made available to
Purchaser, are accurate and complete and have been maintained in accordance with
sound business practices.
Section
5.21 Environmental. The
Seller has not received any citation, directive, letter or other communication,
written or oral, or any notice of any proceeding, claim or lawsuit relating to
any environmental issue arising out of the ownership or occupation of the
Premises, and there is no basis known to the Seller or the Members for any such
action.
Section
5.22 Brokerage
Commission. The Seller represents and warrants that it shall
be responsible for any broker or finder’s fee due or payable in connection with
this Agreement or the transactions contemplated hereby, including any fees due
Xxxxxx Property Group, Inc. In the event of a claim for
broker’s or finder’s fees or commissions in connection with the transactions
contemplated hereby by any third party, then Seller shall indemnify, defend and
hold harmless Purchaser and Rick’s from same.
Section
5.23 Disclosure. No
representation or warranty of the Seller or the Members contained in this
Agreement (including the exhibits and schedules hereto) contains any untrue
statement or omits to state a material fact necessary in order to make the
statements contained herein or therein, in light of the circumstances under
which they were made, not misleading.
ARTICLE
VI
REPRESENTATIONS
AND WARRANTIES
OF
PURCHASER AND RICK’S
Purchaser
and Rick’s hereby represent and warrant to the Seller as follows:
Section
6.1 Organization, Good Standing
and Qualification.
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(i)
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Purchaser
(i) is an entity duly organized, validly existing and in good standing
under the laws of the state of Nevada, (ii) has all requisite power and
authority to carry on its business, and (iii) is duly qualified to
transact business and is in good standing in all jurisdictions where its
ownership, lease or operation of property or the conduct of its business
requires such qualification, except where the failure to do so would not
have a material adverse effect to
Purchaser.
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(ii)
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Rick’s
(i) is an entity duly organized, validly existing and in good standing
under the laws of the state of Texas, (ii) has all requisite power and
authority to carry on its business, and (iii) is duly qualified to
transact business and is in good standing in all jurisdictions where its
ownership, lease or operation of property or the conduct of its business
requires such qualification, except where the failure to do so would not
have a material adverse effect to
Rick’s.
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Asset
Purchase Agreement - Page 13
Section
6.2 Authorization. Purchaser
is a corporation duly organized in the state of Nevada and has full power,
capacity, and authority to enter into this Agreement and perform the obligations
contemplated hereby. Rick’s is a corporation duly organized in the
state of Texas and has full power, capacity, and authority to enter into this
Agreement and perform the obligations contemplated hereby. All action
on the part of Purchaser and Rick’s necessary for the authorization, execution,
delivery and performance of this Agreement by it has been taken or will be taken
prior to the Closing Date. This Agreement, when duly executed and
delivered in accordance with its terms, will constitute legal, valid, and
binding obligations of Purchaser and Rick’s enforceable against each of them in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
and other similar laws affecting creditors' rights generally or by general
equitable principles.
Section
6.3 Consents. No
permit, consent, approval or authorization of, or designation, declaration or
filing with, any governmental authority or any other person or entity is
required on the part of Purchaser or Rick’s in connection with the execution and
delivery by Purchaser or Rick’s of this Agreement or the consummation and
performance of the transactions contemplated hereby other than as may be
required under the federal securities laws.
Section
6.4 Compliance with Filing
Obligations. Rick’s has filed with the SEC all reports,
schedules and statements required to be filed by it under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) and will, as of the
Closing Date, have filed all reports required of it under the Exchange
Act.
Section
6.5 No
Conflicts. The execution and delivery of this Agreement by the
Purchaser and Rick’s does not, and the performance and consummation of the
transactions contemplated hereby by the Purchaser and Rick’s will not (i)
conflict with the articles of incorporation or bylaws of the Purchaser or
Rick’s; (ii) conflict with or result in a breach or violation of, or default
under, or give rise to any right of acceleration or termination of, any of the
terms, conditions or provisions of any note, bond, lease, license, agreement or
other instrument or obligation to which the Purchaser or Rick’s is a party or by
which the Purchaser’s or Rick’s assets or properties are bound; or (iii) result
in the creation of any encumbrance on any of the assets or properties of the
Purchaser or Rick’s
Section
6.6 Brokerage
Commission. No broker or finder has acted for the Purchaser or
Rick’s in connection with this Agreement or the transactions contemplated
hereby, and no person is entitled to any brokerage or finder’s fee or
compensation in respect thereof based in any way on agreements, arrangements or
understandings made by or on behalf of Purchaser or Rick’s.
Section
6.7 Disclosure. No
representation or warranty of the Purchaser or Rick’s contained in
this Agreement (including the exhibits and schedules hereto) contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading.
Asset
Purchase Agreement - Page 14
ARTICLE
VII
CONDITIONS
TO CLOSING OF
SELLER
AND THE MEMBERS
Each
obligation of Seller and the Members to be performed on the Closing Date shall
be subject to the satisfaction of each of the conditions stated in this Article
VII, except to the extent that such satisfaction is waived by Seller and the
Members in writing.
Section
7.1 Representations and
Warranties Correct. The representations and warranties made by
Purchaser and Rick’s contained in this Agreement shall be true and correct as of
the Closing Date.
Section
7.2 Covenants. All
covenants, agreements and conditions contained in this Agreement to be performed
by Purchaser or Rick’s on or prior to the Closing Date shall have been performed
or complied with in all respects.
Section
7.3 Delivery of
Certificate. Purchaser and Rick’s shall provide to Seller
certificates, dated the Closing Date and signed by the President of Purchaser
and Rick’s to the effect set forth in Section 7.1 and 7.2 for the purpose of
verifying the accuracy of such representations and warranties and the
performance and satisfaction of such covenants and conditions.
Section
7.4 Payment of Purchase
Price. Purchaser shall have tendered the Purchase Price for
the Purchased Assets as referenced in Section 3.1 to the Seller concurrently
with the Closing.
Section
7.5 Related
Transaction. The Related Transaction set forth in Section 4.4
and the Lock-Up/Leak Out Agreement set forth in Section 3.2(b) shall be
consummated concurrently with the Closing.
Section
7.6 Assignment of Lease
Agreement. The landlord under the Lease Agreement shall have
agreed to an assignment of the Lease Agreement to the
Purchaser. Purchaser and Rick’s shall cooperate in any reasonable
manner requested by DI Food to assist DI Food in procuring said assignment from
Landlord.
Section
7.7 Corporate
Resolutions. Purchaser and Rick’s shall provide corporate
resolutions of their Board of Directors which approve the transactions
contemplated herein and authorize the execution, delivery and performance of
this Agreement and the documents referred to herein to which it is or is to be a
party dated as of the Closing Date.
Section
7.8 Absence of
Proceedings. No action, suit or proceeding by or before
any court or any governmental or regulatory authority shall have been commenced
and no investigation by any governmental or regulatory authority shall have been
commenced seeking to restrain, prevent or challenge the transactions
contemplated hereby against Purchaser or Rick’s.
Asset
Purchase Agreement - Page 15
ARTICLE
VIII
CONDITIONS
TO CLOSING OF
PURCHASER
AND RICK’S
Each
obligation of Purchaser and Rick’s to be performed on the Closing Date shall be
subject to the satisfaction of each of the conditions stated in this Article
VIII, except to the extent that such satisfaction is waived by Purchaser and
Rick’s in writing.
Section
8.1 Representations and
Warranties Correct. The representations and warranties made by
the Seller and the Members shall be true and correct as of the Closing
Date.
Section
8.2 Covenants. All
covenants, agreements and conditions contained in this Agreement to be performed
by the Seller and the Members on or prior to the Closing Date shall have been
performed or complied with in all respects.
Section
8.3 Delivery of
Certificate. Seller and the Members shall provide to Purchaser
and Rick’s certificates, dated the Closing Date and signed by the
President/Manager of the Seller and the Members, respectively, to the effect set
forth in Section 8.1 and 8.2 for the purpose of verifying the accuracy of such
representations and warranties and the performance and satisfaction of such
covenants and conditions.
Section
8.4 Delivery of Purchased
Assets. The Seller shall have delivered to
Purchaser all instruments of assignment and
bills of sale necessary to transfer to Purchaser good and marketable title to
the Purchased Assets.
Section
8.5 Corporate
Resolutions. The Seller shall provide to Purchaser resolutions
of the Seller which approves all of the transactions contemplated herein and
authorizes the execution, delivery and performance of this Agreement and the
documents referred to herein to which it is or is to be a party dated as of the
Closing Date.
Section
8.6 Ownership of Purchased
Assets. The Seller shall own not less than 100% of the
Purchased Assets, which represent all of the assets, personal, tangible and
intangible that are required and material to the condition (financial or
otherwise), business, operations or prospects of SCORES.
Section
8.7 Consents; Transfer of
Licenses. Purchaser shall possess all necessary permits,
zoning classifications and other authorizations, whether city, county, state or
federal, which may be needed or necessary to conduct adult topless
entertainment with the sale of alcoholic beverages on the Premises, without any
interruption, and all such permits, zoning classifications and authorizations
shall be in good order, without any administrative actions pending or concluded
that may challenge or present an obstacle to the continued performance of adult
topless entertainment or sale of alcoholic beverages at SCORES. All
necessary transfers of licenses and leases required for the continued operation
of SCORES shall have been obtained. The sexually oriented business
license of SCORES shall be in full force and effect.
Asset
Purchase Agreement - Page 16
Section
8.8 Related
Transactions. The Related Transactions set forth in Section
4.4 and the Lock-Up/Leak Out Agreement set forth in Section 3.2(b) shall be
consummated concurrently with the Closing.
Section
8.9 No Assumption of
Liabilities. Neither the Purchaser nor Rick’s shall assume any
liabilities as of the date of Closing.
Section
8.10 Assignment of Lease
Agreement. The landlord under the Lease Agreement shall have
agreed to an assignment of the Lease Agreement to the
Purchaser. Purchaser and Rick’s shall cooperate in any reasonable
manner requested by DI Food to assist DI Food in procuring said assignment from
Landlord.
Section
8.11 Satisfactory
Diligence. Purchaser and Rick’s shall have concluded their due
diligence investigation of the Seller and the business of SCORES and their
respective assets and properties and all other matters related to the foregoing,
and shall be satisfied, in its sole discretion, with the results
thereof.
Section
8.12 Absence of
Proceedings. No action, suit or proceeding by or before any
court or any governmental or regulatory authority shall have been commenced and
no investigation by any governmental or regulatory authority shall have been
commenced seeking to restrain, prevent or challenge the transactions
contemplated hereby or seeking judgments against the Seller or any of its
assets.
Section
8.13 Board
Approval. The Board of Directors of Purchaser and Rick’s shall
have approved all of the transactions contemplated hereby and shall have
authorized the execution, delivery and performance of all agreements and
documents referred to herein to which it is or is to be a party.
ARTICLE
IX
COVENANTS
OF THE SELLER AND THE MEMBERS
Section
9.1 Stand
Still. To induce Purchaser and Rick’s to proceed with this
Agreement, the Seller and the Members agree that until the Closing Date or the
termination of this Agreement, no representative of the Seller or the Members
will offer to sell or solicit any offer to purchase or engage in any discussions
or activities of any nature whatsoever, directly or indirectly, involving in any
manner the actual or potential sale, transfer, encumbrance, pledge,
collateralization or hypothecation of any of the Purchased
Assets. The Seller and the Members hereby agree to advise the
Purchaser and Rick’s of any contact from any third party regarding the
acquisition of the Purchased Assets or other investment in the Seller, or of any
contact which would relate to the transactions contemplated by this
Agreement.
Section
9.2 Access; Due
Diligence. Between the date of this Agreement and the Closing
Date or the termination of this Agreement, Seller and the Members shall (a)
provide Purchaser and Rick’s and their authorized representatives full access to
all assets, plants, offices, warehouse and other facilities and properties
of Seller and SCORES, and to the books and records of Seller and
SCORES; (b) permit the Purchaser and Rick’s to make inspections thereof; and (c)
cause the officers, managers, members and advisors of Seller to furnish the
Purchaser and Rick’s with such financial and operating data and other
information with respect to the business and properties of Seller and to discuss
with the Purchaser and Rick’s and their authorized representatives the affairs
of Seller as the Purchaser and Rick’s may from time to time reasonably
request.
Asset
Purchase Agreement - Page 17
Section
9.3 Preservation of
Business. Subsequent to the execution of this Agreement, and
prior to the Closing Date of this Agreement, the Seller will carry on its
business and operate the Seller and SCORES in substantially the same manner as
it has heretofore consistent with past practices, and:
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(a)
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The
Seller will not authorize, declare, pay or effect any dividends or
liquidate or distribute any common stock of the Seller or other equity
interest or undertake any direct or indirect redemption, purchase or other
acquisition of any equity interest of the
Seller;
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(b)
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The
Seller will not make any changes in its condition (financial or
otherwise), liabilities, assets, or its business, or the business of
SCORES, or in any of its business relationships, including relationships
with suppliers or customers, that, when considered individually or in the
aggregate, might reasonably be expected to have a material adverse
effect on the Seller;
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(c)
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The
Seller shall perform in all material respects all of its obligations under
material contracts, leases and other documents relating to or affecting
any of its assets, property or its business or the business of
SCORES;
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(d)
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The
Seller will not sell, lease, transfer or assign any of its assets,
tangible or intangible, other than inventory for a fair consideration, and
in the ordinary course of business;
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(e)
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The
Seller will not accelerate, terminate, modify or cancel any agreement,
contract, lease or license (or series of related agreements, contracts,
leases and licenses) involving more than $10,000 to which the Seller is a
party, absent the consent of the
Purchaser;
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(f)
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The
Seller will not make any loans to any person or entity, or guarantee any
loan, absent the consent of the
Purchaser;
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(g)
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The
Seller will not waive or release any right or claim held by the Seller,
absent the consent of the
Purchaser;
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(h)
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The
Seller will operate its business and the business of SCORES in the
ordinary course and consistent with past practices so as to preserve its
business organization intact, to retain the services of its employees
and to preserve its goodwill and relationships with suppliers, creditors,
customers, and others having business relationships with
it;
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Asset
Purchase Agreement - Page 18
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(i)
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The
Seller will not issue any note, bond or other debt security or create,
incur or assume, or guarantee any indebtedness for borrowed money or
capitalized lease obligations, absent the consent of the
Purchaser;
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(j)
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The
Seller will not delay or postpone the payment of accounts payable and
other liabilities outside the ordinary course of
business;
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(k)
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The
Seller will not enter into any employment agreements or enter into any
other transaction with, any of its members, managers and
employees;
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(l)
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The
Seller will not make any change in any method, practice, or principle of
accounting involving the Seller’s business or the assets of the
Seller;
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(m)
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The
Seller will not issue, sell or otherwise dispose of any of its capital
stock or create, sell or dispose of any options, rights, conversion rights
or other agreements or commitments of any kind relating to the issuance,
sale or disposition of any of its equity
interests;
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(n)
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The
Seller will not reclassify, split up or otherwise change any of its common
stock or capital structure;
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(o)
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The
Seller will not be a party to any merger, consolidation or other business
combination; and
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(p)
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The
Seller will not agree to take any action described in this Section
9.3.
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ARTICLE
X
INDEMNIFICATION
Section
10.1 Indemnification from Seller
and the Members. Seller and the Members, jointly and
severally, hereby agree to and shall indemnify, defend (with legal counsel
reasonably acceptable to Purchaser and Rick’s), and hold Purchaser and Rick’s,
its officers, directors, shareholders, employees, affiliates, agents, legal
counsel, successors and assigns (collectively, the "Purchaser Group") harmless
at all times after the date of this Agreement, from and against any and all
actions, suits, claims, demands, debts, liabilities, obligations, losses,
damages, costs, expenses, penalties or injury (including reasonable
attorneys=
fees and costs of any suit related thereto) suffered or incurred by any of the
Purchaser Group arising from: (a) any misrepresentation by, or breach of any
covenant or warranty of the Seller or the Members contained in this Agreement,
or any exhibit, certificate, or other instrument furnished or to be furnished by
Seller or the Members hereunder; (b) any nonfulfillment of any agreement on the
part of Seller or the Members under this Agreement; (c) any liability or
obligation due to any third party by the Seller or the business of SCORES
arising or incurred at or prior to the Closing Date; (d) any suit, action,
proceeding, claim or investigation against any of the Purchaser Group which
arises from or which is based upon or pertaining to the conduct or the operation
or liabilities of Seller or the business of SCORES at or prior to the Closing
Date; or (e) any suit, action, proceeding, claim or investigation against any of
the Purchaser Group arising out of or resulting from any claims by SHE CAT, LLC
that the Seller failed to fulfill any of its obligations under the Lease
Agreement at any time prior to the effective date of the Assignment and
Assumption of Real Estate Lease and Option and Amendments
Thereto.
Asset
Purchase Agreement - Page 19
Section
10.2 Indemnification from
Purchaser and Rick’s. Purchaser and Rick’s agree to and shall
indemnify, defend (with legal counsel reasonably acceptable to the Seller) and
hold each Member and Seller and its members, managers, employees, affiliates,
agents, legal counsel, successors and assigns (collectively, the "Seller Group")
harmless at all times after the date of the Agreement from and against any and
all actions, suits, claims, demands, debts, liabilities, obligations, losses,
damages, costs, expenses, penalties or injury (including reasonably attorney’s
fees and costs of any suit related thereto) suffered or incurred by
any of the Seller Group, arising from (a) any misrepresentation by, or breach of
any covenant or warranty of Purchaser or Rick’s contained in this Agreement or
any exhibit, certificate, or other agreement or instrument furnished or to be
furnished by Purchaser or Rick’s hereunder; (b) any nonfulfillment of any
agreement on the part of Purchaser or Rick’s under this Agreement; or (c) any
suit, action, proceeding, claim or investigation against any of the Seller Group
which arises from or which is based upon or pertaining to Purchaser’s conduct or
the operation of the business of SCORES subsequent to the Closing
Date.
Section
10.3 Defense of
Claims. If any lawsuit enforcement action or any attempt to
collect on an alleged liability is filed against any party entitled to the
benefit of indemnity hereunder, written notice thereof shall be given to the
indemnifying party within ten (10) business days after receipt
of notice or other date by which action must be taken; provided that
the failure of any indemnified party to give timely notice shall not affect
rights to indemnification hereunder except to the extent that the indemnifying
party demonstrates damage caused by such failure. After such notice,
the indemnifying party shall be entitled, if it so elects, to take control of
the defense and investigation of such lawsuit or action and to employ and engage
attorneys of its own choice to handle and defend the same, at the indemnifying
party's cost, risk and expense; and such indemnified party shall cooperate in
all reasonable respects, at its cost, risk and expense, with the indemnifying
party and such attorneys in the investigation, trial and defense of such lawsuit
or action and any appeal arising therefrom; provided, however, that the
indemnified party may, at its own cost, participate in such investigation, trial
and defense of such lawsuit or action and any appeal arising therefrom, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party, except to the extent that (i) the employment thereof has been
specifically authorized by the indemnifying party in writing, (ii) the
indemnifying party has failed after a reasonable period of time to assume such
defense and to employ counsel or (iii) in such action there is, in the
reasonable opinion of such separate counsel, a material conflict on any material
issue between the position of the indemnifying party and the position of such
indemnified party, in which case the indemnifying party shall be responsible for
the reasonable fees and expenses of no more than one such separate
counsel. The indemnifying party shall not, without the prior written
consent of the indemnified party, effect any settlement of any proceeding in
respect of which any indemnified party is a party and indemnity has been sought
hereunder unless such settlement of a claim, investigation, suit, or other
proceeding only involves a remedy for the payment of money by the indemnifying
party and includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such
proceeding.
Asset
Purchase Agreement - Page 20
Section
10.4 Default of Indemnification
Obligation. If an entity or individual having an
indemnification, defense and hold harmless obligation, as above provided, shall
fail to assume such obligation, then the party or entities or both, as the case
may be, to whom such indemnification, defense and hold harmless obligation is
due shall have the right, but not the obligation, to assume
and
maintain such defense (including reasonable counsel fees and costs of any suit
related thereto) and to make any settlement or pay any judgment or verdict as
the individual or entities deem necessary or appropriate in such individuals or
entities absolute sole discretion and to charge the cost of any such settlement,
payment, expense and costs, including reasonable attorneys=
fees, to the entity or individual that had the obligation to provide such
indemnification, defense and hold harmless obligation and same shall constitute
an additional obligation of the entity or of the individual or both, as the case
may be.
Section
10.5 Right to
Offset. In the event that the Purchaser or Rick’s is entitled
to indemnification in accordance with Section 10.1 and 10.3 hereof, including
the payment by the Purchaser of any debts or liabilities resulting from the
purchase of the Purchased Assets which were incurred prior to the Closing Date,
then Purchaser or Rick’s shall have the right to offset any such amount from any
obligations that are then due and payable to the Seller.
Section
10.6 Survival of Representations
and Warranties. The respective representations, warranties and
indemnities given by the parties to each other pursuant to this Agreement shall
survive the Closing for a period ending twenty-four (24) months from the Closing
Date (“Survival Date”). Notwithstanding anything to the contrary
contained herein, no claim for indemnification may be made against the party
required to indemnify (the “Indemnitor”) under this Agreement unless the party
entitled to indemnification (the “Indemnitee”) shall have given the Indemnitor
written notice of such claim as provided herein on or before the Survival
Date. Any claim for which notice has been given prior to the
expiration of the Survival Date shall not be barred hereunder.
ARTICLE
XI
MISCELLANEOUS
Section
11.1 Termination of
Agreement. This Agreement shall terminate and be of no force
and effect and all other agreements executed herewith shall be of no force and
effect if: (i) the transactions contemplated by this Agreement,
including the sale of the Purchased Assets are not consummated on or before
September 8, 2008, unless all of the parties hereto agree in writing to extend
the Agreement or (ii) all of the parties agree in writing to terminate this
Agreement sooner.
Section
11.2 Amendment;
Waiver. Neither this Agreement nor any provision hereof may be
amended, modified or supplemented unless in writing, executed by all the parties
hereto. Except as otherwise expressly provided herein, no waiver with
respect to this Agreement shall be enforceable unless in writing and signed by
the party against whom enforcement is sought. Except as otherwise
expressly provided herein, no failure to exercise, delay in exercising, or
single or partial exercise of any right, power or remedy by any party, and no
course of dealing between or among any of the parties, shall constitute a waiver
of, or shall preclude any other or further exercise of, any right, power or
remedy.
Asset
Purchase Agreement - Page 21
Section
11.3 Notices. Any
notices or other communications required or permitted hereunder shall be
sufficiently given if in writing and delivered in person or sent by registered
or certified mail (return receipt requested) or nationally recognized overnight
delivery service, postage pre-paid, addressed as follows, or to such other
address has such party may notify to the other parties in writing:
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(a) If
to DI Food:
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Attn: Xxxxx
Xxxxxx
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____________________
____________________
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(b) If
to the Members:
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____________________
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____________________
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with
a copy to:
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Xxxxx
Xxxxxx
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Xxxxxx
& Lehtinen, P.C.
0000 X.
Xxxxxxxxxx Xxxx., Xxxxx 000
Xxx
Xxxxx, Xxxxxx 00000
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(c) if
to Purchaser or Rick’s:
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Rick’s
Cabaret International, Inc.
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Attn: Xxxx
Xxxxxx, President/CEO
00000
Xxxxxx Xxxx
Xxxxxxx,
Xxxxx 00000
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with
a copy to:
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Xxxxxx
X. Xxxxxxx
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Xxxxxxx,
Xxxxx & Xxxxxxxxx
0000
Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
A notice
or communication will be effective (i) if delivered in person or by overnight
courier, on the business day it is delivered and (ii) if sent by registered or
certified mail, three (3) business days after dispatch.
Section
11.4 Severability. Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
Section
11.5 Assignment; Successors and
Assigns. Except as otherwise provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the successors and
permitted assigns of the parties hereto. No party hereto may assign
its rights or delegate its obligations under this Agreement without the prior
written consent of the other parties hereto, which consent will not be
unreasonably withheld.
Section
11.6 Public
Announcements. The parties hereto agree that prior to
making any public announcement or statement with respect to the transactions
contemplated by this Agreement, the party desiring to make such public
announcement or statement shall consult with the other parties hereto and
exercise their best efforts to agree upon the text of a public announcement or
statement to be made by the party desiring to make such public announcement;
provided, however, that if any party hereto is required by law to make such
public announcement or statement, then such announcement or statement may be
made without the approval of the other parties.
Asset
Purchase Agreement - Page 22
Section
11.7 Entire
Agreement. This Agreement and the other documents delivered
pursuant hereto constitute the full and entire understanding and agreement
between the parties with regard to the subject matter hereof and thereof and
supersede and cancel all prior representations, alleged warranties, statements,
negotiations, undertakings, letters, acceptances, understandings, contracts and
communications, whether verbal or written among the parties hereto and thereto
or their respective agents with respect to or in connection with the subject
matter hereof.
Section
11.8 Choice of
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Nevada, without regard to principles
of conflict of laws. In any action between or among any of the
parties, whether arising out of this Agreement or otherwise, each of the parties
irrevocably consents to the exclusive jurisdiction and venue of the federal and
state courts located in Xxxxx County, Nevada.
Section
11.9 Execution. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if
such facsimile or “.pdf” signature page were an original thereof.
Section
11.10 Costs and
Expenses. Each party shall pay their own respective
fees, costs and disbursements incurred in connection with this
Agreement.
Section
11.11 Section
Headings. The section and subsection headings in this
Agreement are used solely for convenience of reference, do not constitute a part
of this Agreement, and shall not affect its interpretation.
Section
11.12 Attorney Review -
Construction. In connection with the negotiation and drafting
of this Agreement, the parties represent and warrant to each other that they
have had the opportunity to be advised by attorneys of their own choice and,
therefore, the normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any amendments hereto.
Section
11.13 No Third-Party
Beneficiaries. Nothing in this Agreement will confer any third
party beneficiary or other rights upon any person or any entity that is not a
party to this Agreement.
Asset
Purchase Agreement - Page 23
Section
11.14 Validity. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provisions of this Agreement,
which shall remain in full force and effect.
Section
11.15 Further
Assurances. Each party covenants that at any time, and from
time to time, after the Closing Date, it will execute such additional
instruments and take such actions as may be reasonably be requested by the other
parties to confirm or perfect or otherwise to carry out the intent and purposes
of this Agreement.
Section
11.16 Exhibits Not
Attached. Any exhibits not attached hereto on the date of
execution of this Agreement shall be deemed to be and shall become a part of
this Agreement as if executed on the date hereof upon each of the parties
initialing and dating each such exhibit, upon their respective acceptance of its
terms, conditions and/or form.
Section
11.17 Gender. All
personal pronouns used in this Agreement shall include the other genders,
whether used in the masculine, feminine or neuter gender and the singular shall
include the plural and vice versa, wherever appropriate.
[SIGNATURES
APPEAR ON THE FOLLOWING PAGE.]
Asset
Purchase Agreement - Page 24
IN WITNESS WHEREOF, the undersigned
have executed this Stock Purchase Agreement to become effective as of the date
first set forth above.
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RICK’S
CABARET INTERNATIONAL, INC.
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/s/ Xxxx Xxxxxx
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By: Xxxx
Xxxxxx, President
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Date: 9-4-08
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RCI
ENTERTAINMENT (LAS VEGAS), INC.
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/s/ Xxxx Xxxxxx
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By: Xxxx
Xxxxxx, President
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Date: 9-4-08
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DI
FOOD AND BEVERAGE OF LAS VEGAS, LLC
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/s/ Xxxxxx XxXxxx
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By: Xxxxxx
XxXxxx, Manager
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Date: 9-4-08
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/s/ Xxxxxx Xxxxxx
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Xxxxxx
Xxxxxx, Individually,
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Member
of DI Food and Beverage of Las Vegas, LLC
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Date: 9-4-08
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/s/ Xxxxx Xxxxxx
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Xxxxx
Xxxxxx, Individually,
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Member
of DI Food and Beverage of Las Vegas, LLC
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Date: 9-4-08
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/s/ Xxxxxx XxXxxx
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Xxxxxx
XxXxxx, Individually,
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Member
of DI Food and Beverage of Las Vegas, LLC
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Date: 9-4-08
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Asset Purchase Agreement - Page 25
