AMENDED AND RESTATED PURCHASE AGREEMENT
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This Amended and Restated Purchase Agreement (the "Agreement") is
made and entered into as of this 14th day of May 1997, by and between Xxxx-
Folks, Inc., a Georgia corporation ("Xxxx-Folks"), and Checkers Drive-In
Restaurants, Inc., a Delaware corporation ("Checkers"), and amends and restates
in its entirety that certain Purchase Agreement between Xxxx-Folks and Checkers,
dated as of August 2, 1995, as amended by Amendment No. 1 to Purchase Agreement,
dated as of October 20, 1995, Amendment No. 2 to Purchase Agreement, dated as of
April 11, 1996, and Amendment No. 3 to Purchase Agreement, dated as of June 12,
1996.
W I T N E S S E T H:
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WHEREAS, Xxxx-Folks holds three promissory notes of Checkers, each
dated May 4, 1994, in the original principal amounts of $1,793,891, $71,036 and
30,536 (the "Notes"); and
WHEREAS, Checkers desires to acquire the Notes and Xxxx- Folks
desires to sell the Notes to Checkers, upon the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual
representations, warranties, covenants and agreements hereinafter contained, and
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound, the parties agree as
follows:
ARTICLE I.
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PURCHASE AND SALE
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1.01 PURCHASE AND SALE OF THE NOTES. Subject to and upon the terms
and conditions hereinafter set forth and the representations and warranties
contained herein, Checkers agrees to purchase from Xxxx-Folks, and Xxxx-Folks
agrees to sell, assign, transfer and deliver to Checkers, free and clear of any
and all liens, encumbrances, liabilities, claims, charges and restrictions of
any kind or nature whatsoever, all of Xxxx-Folks's right, title and interest
(which will be good, valid and complete) in and to the Notes.
1.02 NON-ASSUMPTION OF LIABILITIES. None of the provisions of this
Agreement will be deemed to create any obligation or liability of Checkers to
any person or entity that is not a party to this Agreement, whether under a
third-party beneficiary theory, successor liability theory or otherwise.
ARTICLE II
PURCHASE PRICE
2.01 PURCHASE PRICE. The aggregate purchase price (the "Purchase
Price") payable to Xxxx-Folks for the Notes will be equal to the outstanding
balance (principal and accrued interest) due under the Notes on the Closing Date
(as hereinafter defined) payable in shares of the common stock of Checkers, par
value $.001 per share ("Common Stock"). The number of shares to be issued (the
"Stock Payment") shall be equal to the amount determined by dividing the
Purchase Price by the arithmetic average (rounded to the nearest xxxxx) of the
closing sale price per share of the Common Stock as reported on the Nasdaq Stock
Market's National Market for the five full trading days ending on the third
business day immediately preceding the Closing Date, as reported in The Wall
Street Journal.
2.02 DELIVERY OF SHARES. On the Closing Date, Checkers will deliver
one or more certificates in the name of Xxxx-Folks representing the shares of
Common Stock constituting the Stock Payment.
2.03 NO FRACTIONAL SHARES. Notwithstanding anything contained in this
Agreement to the contrary, neither certificates nor scrip for fractional shares
of the Common Stock shall be issued as part of the Stock Payment. In the event
that the number of shares of Common Stock constituting the Stock Payment
includes a fractional share, the number of shares shall be rounded up or down to
the nearest whole number of shares.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF XXXX-FOLKS
Xxxx-Folks represents and warrants to Checkers (each of which shall
be deemed material and independently relied upon by Checkers) as follows:
3.01 ORGANIZATION AND STANDING. Xxxx-Folks is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Georgia with full power and authority to own its properties and assets.
Xxxx-Folks is in good standing and duly qualified to conduct business as a
foreign corporation in each of the jurisdictions in which the nature of its
business or the ownership of its properties requires such qualification and in
which failure to be so qualified would have a material adverse effect on the
business, operations, assets, financial position or prospects of Xxxx-Folks.
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3.02 CORPORATE AUTHORITY. Subject to receipt of the approval and
consent of the stockholders of Xxxx-Folks and the consent of First Citizens
Bank, Newnan, Georgia ("First Citizens Bank"), Xxxx-Folks has the full power and
authority to enter into and perform this Agreement and to consummate the
transactions contemplated herein in accordance with the terms of this Agreement.
Compliance with the terms and conditions hereof will not (i) violate or conflict
with any provision of the Xxxx-Folks Articles of Incorporation or Xxxx-Folks
By-laws or any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge or other restrictions of any government,
governmental agency or court to which Xxxx-Folks is subject, or (ii) subject to
the consent of First Citizens Bank, result in the breach or termination of any
provision of, result in the acceleration of, create in any party the right to
accelerate, terminate, modify or cancel, require any notice or constitute a
breach or default under any note, bond, indenture, lease, agreement or other
instrument or obligation to which Xxxx-Folks is a party or by which any of the
properties or assets of Xxxx-Folks may be subject, bound or affected. No
authorization, consent or approval of any public body or authority is necessary
to the validity of the transactions contemplated by this Agreement except for
the consent of the stockholders of Xxxx-Folks. Xxxx-Folks is not otherwise a
party to any contract or subject to any other legal restriction that would
prevent or restrict complete fulfillment by Xxxx-Folks of all of the terms and
conditions of this Agreement or compliance with any of the obligations under it.
3.03 CORPORATE AUTHORIZATION. Other than obtaining the consent of the
stockholders of Xxxx-Folks, Xxxx-Folks has taken all necessary corporate actions
to authorize and approve the execution, delivery and performance of this
Agreement and the transactions contemplated hereby (including approval by the
Board of Directors of Xxxx-Folks). This Agreement constitutes a legal, valid and
binding obligation of Xxxx-Folks, enforceable against Xxxx-Folks in accordance
with its terms.
3.04 TITLE TO THE NOTES. Xxxx-Folks has good, valid and complete
title to the Notes, subject to the rights of First Citizens Bank, as pledgee of
the Notes.
3.05 LITIGATION AND DISPUTES. There is no claim, litigation or
proceeding pending or, to the knowledge of Xxxx- Folks, threatened, against or
with respect to Xxxx-Folks, and there exists no basis or grounds for any such
suit, action, proceeding, claim or investigation, which affects the title or
interest of Xxxx-Folks to or in the Notes or which would prevent or affect the
consummation of the transactions contemplated by this Agreement by Xxxx-Folks.
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3.06 REGISTRATION STATEMENT. None of the information regarding
Xxxx-Folks supplied or to be supplied by Xxxx-Folks for inclusion (i) in the
Registration Statement (as hereinafter defined) or any Resale Registration
Statement (as hereinafter defined) to be filed by Checkers with the Securities
and Exchange Commission ("SEC") in connection with the registration of the
Common Stock issued hereunder, or (ii) in any other documents to be filed with
the SEC or any other regulatory authority in connection with the transactions
contemplated in this Agreement, as the same may be updated by written notice
from Xxxx-Folks to Checkers from time to time, will at the respective time such
documents are filed and, in the case of the Registration Statement or any Resale
Registration Statement, when it becomes effective, be false or misleading with
respect to any material fact, or omit to state any material fact necessary in
order to make the statements therein not misleading.
ARTICLE IV
[INTENTIONALLY DELETED]
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF CHECKERS
Checkers represents and warrants to Xxxx-Folks (each of which shall
be deemed material and independently relied upon by Xxxx-Folks) as follows:
5.01 ORGANIZATION AND STANDING. Checkers is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware with full power and authority to own its properties and assets and to
conduct its business as now conducted or proposed to be conducted. Checkers is
in good standing and duly qualified to conduct business as a foreign corporation
in each of the jurisdictions in which the nature of its business or the
ownership of its properties requires such qualification and in which failure to
be so qualified would have a material adverse effect on the business,
operations, assets, financial position or prospects of Checkers.
5.02 CORPORATE AUTHORITY. Checkers has the full power and authority
to enter into and perform this Agreement and to consummate the transactions
contemplated herein in accordance with the terms of this Agreement. Compliance
with the terms and conditions hereof will not violate or conflict with any
provision of Checkers' Restated Certificate of Incorporation or By-laws or any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
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ruling, charge or other restrictions of any government, governmental agency or
court to which Checkers is subject or result in the breach or termination of any
provision of, result in the acceleration of, create in any party the right to
accelerate, terminate, modify or cancel, require any notice or constitute a
breach or default under any note, bond, indenture, lease, agreement or other
instrument or obligation to which Checkers is a party or by which any of the
properties or assets of Checkers may be subject, bound or affected. All
necessary approvals of the parties under any contracts, commitments or
understandings to which Checkers is a party or any other person required to
permit the consummation on the part of Checkers of the transactions contemplated
in this Agreement (other than the approval of the SEC to the effectiveness of
the Registration Statement) have been obtained by Checkers. Checkers is not
otherwise a party to any contract or subject to any other legal restriction that
would prevent or restrict complete fulfillment by Checkers of all of the terms
and conditions of this Agreement or compliance with any of the obligations under
it.
5.03 CORPORATE AUTHORIZATION. Checkers has taken all necessary
corporate actions to authorize and approve the execution, delivery and
performance of this Agreement and the transactions contemplated hereby
(including approval by the Board of Directors of Checkers). This Agreement
constitutes a legal, valid and binding obligation of Checkers, enforceable
against Checkers in accordance with its terms.
5.04 CAPITALIZATION. As of May 1, 1997, the authorized capital stock
of Checkers consisted of (i) 100,000,000 shares of Common Stock, of which
60,540,409 shares were issued and outstanding, and (ii) 2,000,000 shares of
preferred stock, $.001 par value per share, of which 87,719 shares were issued
and outstanding. All of the issued and outstanding shares of Common Stock are,
and all of the shares of Common Stock to be issued hereunder will be, validly
issued, fully paid, nonassessable and outstanding and not issued in violation of
the preemptive rights of any stockholder.
5.05 REQUIRED CONSENTS. Except for the registration of the shares of
Common Stock to be issued hereunder with the SEC and under any applicable state
blue sky laws, no consents or approvals of any public body or authority and no
consents or waivers from any other parties to any agreements or other
instruments are required for the lawful consummation on the part of Checkers of
the transactions contemplated by this Agreement.
5.06 REGISTRATION STATEMENT. None of the information included (i) in
the Registration Statement or any Resale Registration Statement and (ii) in any
other documents to be filed with the SEC or any regulatory authority in
connection with the transactions contemplated in this Agreement will at the
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respective time such documents are filed and, in the case of the Registration
Statement or any Resale Registration Statement, when it becomes effective, be
false or misleading with respect to any material fact, or omit to state any
material fact necessary in order to make the statements therein not misleading,
except that no representation or warranty is being made with respect to
information supplied by Xxxx-Folks to Checkers for inclusion therein. All
documents which Checkers is responsible for filing with the SEC and any
regulatory authority in connection with the Registration Statement or any Resale
Registration Statement will comply as to form in all material respects with the
provisions of applicable law.
ARTICLE VI
COVENANTS OF CHECKERS
Checkers covenants to Xxxx-Folks as follows:
6.01 REGISTERED SHARES. The shares of Common Stock to be issued to
Xxxx-Folks pursuant to Section 2.01 of this Agreement shall be issued in
accordance with the registration requirements of the Securities Act of 1933, as
amended (the "1933 Act") and listed on the Nasdaq Stock Market's National
Market. Checkers shall remain in compliance with SEC Rule 144(c).
6.02 PREPARATION OF THE REGISTRATION STATEMENT. On or before April
22, 1996, Checkers shall prepare and file with the SEC a registration statement
on Form S-4 (including the related prospectus), and required amendments thereto
or supplements to any prospectus contained therein (the "Registration
Statement"), relating to the issuance of the shares of Common Stock contemplated
to be issued under Section 2.01 of this Agreement, and shall use its
commercially reasonable best efforts to have the same declared effective by the
SEC as expeditiously as practicable; provided, however, that Checkers shall have
the right (i) to defer the initial filing or request for acceleration of
effectiveness or (ii) after effectiveness, to suspend effectiveness of any such
registration statement, if, in the good faith judgment of the board of directors
of Checkers and upon the advice of counsel to Checkers, such delay in filing or
requesting acceleration of effectiveness or such suspension of effectiveness is
necessary in light of the existence of material non-public information
(financial or otherwise) concerning Checkers, disclosure of which at the time is
not, in the opinion of the board of directors of Checkers upon the advice of
counsel, (a) otherwise required, and (b) in the best interests of Checkers.
Checkers shall also take any action required to be taken under any applicable
state blue sky laws in connection with the issuance of shares of Common Stock
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hereunder. No material information about Checkers will be contained in the
Registration Statement that is not contained in Checkers previously filed SEC
reports, other than information concerning Xxxx-Folks and the transactions
contemplated by this Agreement. The Registration Statement will not cover
resales of the Common Stock. When the Registration Statement is declared
effective by the SEC, Checkers shall give Xxxx-Folks prompt notice of such fact
and shall supply Xxxx-Folks with sufficient copies of the Registration Statement
to enable Xxxx-Folks to send copies to each of its stockholders in connection
with calling of a meeting of such stockholders for the purpose of voting on this
Agreement and the transactions contemplated herein. Notwithstanding the
foregoing, in the event that on the date of this Agreement Checkers is
negotiating with Rally's Hamburgers, Inc. ("Rally's") to acquire all of the
outstanding stock of Rally's through a merger of Rally's with a subsidiary of
Checkers or otherwise, then Checkers' obligation to have the Registration
Statement declared effective by the SEC as expeditiously as practicable shall be
suspended until the closing of the transaction with Rally's or the termination
of such negotiations or the termination of any definitive agreement relating to
such transaction.
6.03 GUARANTEE OF PROCEEDS FROM THE SALE OF THE COMMON STOCK. In the
event that Xxxx-Folks proceeds in good faith to sell all of the Common Stock
constituting the Stock Payment in a reasonably prompt but orderly manner
(subject to the limitations set forth in Section 7.07), if the aggregate net
proceeds (gross proceeds less brokers' commissions and discounts) from the sale
of such stock is less than the Purchase Price, Checkers shall issue to
Xxxx-Folks, at Xxxx-Folks option, either (i) a promissory note in the amount of
the difference between the Purchase Price and the aggregate net proceeds
received from the sale of the Common Stock constituting the Stock Payment (such
difference is hereinafter referred to as the "Initial Price Differential") or
(ii) additional shares of Common Stock with a value equal to the Initial Price
Differential. The parties agree that Xxxx-Folks will be deemed to be proceeding
in good faith to sell all of the Common Stock in a reasonably prompt but orderly
manner if it sells in each three-month period commencing with the three month
period beginning on the day after the Closing Date and continuing in each
consecutive three-month period thereafter at least 90% of the lesser of (i) the
maximum number of shares permitted to be sold during such period under Rule 144
promulgated under the Securities Act of 1933 or (ii) the maximum number of
shares permitted to be sold during such period under Section 7.07 without regard
to any upticks (as defined therein). Xxxx-Folks shall provide Checkers with
satisfactory evidence of the fact that the aggregate net proceeds from the sale
of such shares was less than the Purchase Price (i.e., broker confirmation
slips). Checkers shall deliver the note or issue instructions to its transfer
agent to issue the additional Common Stock within two business days after the
later of (1) the date Xxxx-Folks has provided to Checkers satisfactory evidence
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from which to determine the number of additional shares of Common Stock to be
issued (broker confirmation slips), and (2) the date Xxxx- Folks notifies
Checkers in writing of its choice between a note and additional shares of Common
Stock. If Xxxx-Folks determines that a promissory note should be issued, the
note shall bear interest at 11%, be for a term of six months, with all principal
and accrued interest due at maturity, and be subordinated to Checkers bank debt
pursuant to the same subordination provisions contained in the Notes. If
Xxxx-Folks determines that additional Common Stock should be issued, the number
of shares to be issued (the "Second Stock Payment") shall be equal to the amount
determined by dividing the Initial Price Differential by the arithmetic average
(rounded to the nearest xxxxx) of the closing sale price per share of the Common
Stock as reported on the NASDAQ Stock Market's National Market (as reported in
The Wall Street Journal) for the three (3) full trading days immediately
preceding the date on which Checkers issues instructions to its transfer agent
to issue such additional shares (such average closing sale price being referred
to hereinafter as the "Resale Price" for such shares). Checkers shall promptly
prepare and file a registration statement and all necessary or appropriate
related state securities law or blue sky filings under which Checkers shall
register the Common Stock representing the Second Stock Payment, and Xxxx-Folks
may sell the shares representing the Second Stock Payment, upon the terms and
conditions provided in Section 6.04 below. In the event that the aggregate net
proceeds from the sale of such shares is less than the Initial Price
Differential, Xxxx-Folks may again determine to have Checkers either issue (A) a
promissory note in the amount of the difference between the Purchase Price and
the aggregate net proceeds received from the sale of the Common Stock
constituting the Stock Payment and the Second Stock Payment (such difference is
hereinafter referred to as the "Second Price Differential") or (B) additional
shares of Common Stock with a value equal to the Second Price Differential, as
provided above with respect to the Initial Price Differential. If Xxxx-Folks
determines that additional Common Stock should be issued, Checkers shall
register the same and Xxxx-Folks may sell the same as provided in Section 6.04
below with respect to the Second Stock Payment. Checkers and Xxxx-Folks will
continue this process until such time as there is no Price Differential realized
by Xxxx-Folks on the sale of any batch of Common Stock issued in payment of a
Price Differential on a previous batch of Common Stock. All additional Common
Stock issued under this Section 6.03 shall be listed on the Nasdaq Stock
Market's National Market. The foregoing notwithstanding, Checkers shall have the
option at any time to deliver cash to Xxxx-Folks in lieu of a note or additional
shares in order to pay any Price Differential. Checkers shall have the right to
require Xxxx-Folks at any time to either, at the option of Xxxx-Folks, sell to
Checkers any shares held by Xxxx-Folks representing part of a Stock Payment at a
price per share equal to the Resale Price thereof or terminate any future price
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protection for such shares pursuant to this Section 6.03. In the event that
Checkers exercises the right described in the preceding sentence, Xxxx-Folks
may, in its discretion, sell to Checkers a portion of the shares then held by it
and retain the remainder, which remaining shares shall not be subject to the
future price protection provisions of this Section 6.03.
6.04 REGISTRATION OF COMMON STOCK CONSTITUTING THE SECOND STOCK
PAYMENT. As soon as practicable after the issuance of the Common Stock
constituting the Second Stock Payment, if any, Checkers shall prepare and file a
registration statement on Form S-3 (if it is eligible to use such form), or such
other form as it deems suitable (together with all amendments and supplements
thereto, the "Resale Registration Statement"), and all necessary or appropriate
related state securities law or blue sky filings (together with all amendments
and supplements thereto, the "Blue Sky Filings"), under which Checkers shall
register the shares of Common Stock issued hereunder as the Second Stock
Payment; provided, however, that in any event such Resale Registration Statement
shall be filed within 10 business days after issuance if Checkers utilizes a
Form S-3, or 20 business days if it utilizes a Form S-4 or S-1. Checkers shall
also use its commercially reasonable best efforts to have the Resale
Registration Statement declared effective by the SEC as expeditiously as
practicable, and shall keep such Resale Registration Statement and Blue Sky
Filings current for such period of time as is required for Xxxx-Folks to
complete the sale of all shares of Common Stock registered therein, so long as
Xxxx-Folks proceeds in good faith to sell such shares in a prompt but orderly
manner; provided, however, that Checkers shall have the right (i) to defer the
initial filing or request for acceleration of effectiveness, or (ii) after
effectiveness, to suspend effectiveness of the Resale Registration Statement (to
be later recontinued) if, in the good faith judgment of the board of directors
of Checkers and upon the advice of counsel to Checkers, such delay in filing or
requesting acceleration of effectiveness or such suspension of effectiveness is
necessary in light of the existence of material non-public information
(financial or otherwise) concerning Checkers, disclosure of which at the time is
not, in the opinion of the board of directors of Checkers upon the advice of
counsel, (a) otherwise required, and (b) in the best interests of Checkers.
Checkers shall not voluntarily take any action that would cause more than a
90-day delay in filing or requesting acceleration of effectiveness or a 90-day
suspension of effectiveness. Checkers shall give Xxxx-Folks notice of
effectiveness and any suspensions and recontinuations of the effectiveness of
the Resale Registration Statement. Subject to the foregoing, Checkers shall file
all such post effective amendments and supplements to the Resale Registration
Statement and Blue Sky Filings as may be necessary, in its judgment, to keep
such Resale Registration Statement and Blue Sky Filings current. Xxxx-Folks may
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proceed to sell the shares representing the Second Stock Payment beginning on
the date the Resale Registration Statement is declared effective by the SEC (the
"Effective Date"). Checkers shall pay all expenses related to such registration,
except that Xxxx-Folks shall bear the expenses of commissions or discounts and
any fees of Xxxx-Folks' advisors, including legal counsel. Notwithstanding the
foregoing, Checkers shall not be obligated to register shares for sale in the
states of Arizona or Nevada, unless the costs of registration in such states,
including filing fees and reasonable attorneys' fees, are paid by Xxxx-Folks.
The provisions of this Section 6.04 shall similarly apply to any subsequent
stock payments made pursuant to Section 6.03 with respect to any succeeding
Price Differential.
6.05 ISSUANCE OF COMMON STOCK FOR NEW NOTES. If Xxxx- Folks
determines that a promissory note should be issued in payment of any Price
Differential, and if it is permissible under the rules and regulations of the
SEC to do so, Checkers will, at the request of Xxxx-Folks, promptly thereafter
enter into an agreement with Xxxx-Folks substantially identical to this
Agreement pursuant to which Checkers will agree to issue to Xxxx-Folks, upon the
same terms and conditions contained herein, additional shares of Common Stock in
payment of such note which Common Stock will be registered by Checkers in a
registration statement on Form S-4 prior to the issuance such Common Stock.
6.06 PAYMENT OF INTEREST ON VALUE OF UNSOLD SHARES. Beginning on the
Closing Date, and on the same day of each third month thereafter, Checkers shall
pay to Xxxx-Folks in cash an amount equal to 2.5% of the value of the shares of
Common Stock received by Xxxx-Folks as part of the Stock Payment and held by
Xxxx-Folks on such date. The value of such shares shall be deemed to be the
Purchase Price less the net sales proceeds from previously sold shares of Common
Stock constituting part of the Stock Payment. In the event the shares
representing the Stock Payment are sold for an amount less than the Purchase
Price, giving rise to an obligation on Checkers' part to issue additional shares
constituting the Second Stock Payment pursuant to Section 6.03 hereof, Checkers
shall continue to pay to Xxxx-Folks in cash an amount equal to 2.5% of the value
of the shares of Common Stock received by Xxxx-Folks as part of the Second Stock
Payment and held by Xxxx-Folks on each third monthly anniversary of the Closing
Date. The value of such shares shall be deemed to be the Initial Price
Differential less the net sales proceeds from previously sold shares of Common
Stock constituting part of the Second Stock Payment. In the event the shares
representing the Second Stock Payment (or any subsequent stock payment) are sold
for an amount less than the Initial Price Differential (or any subsequent price
differential), giving rise to an obligation on Checkers' part to issue
additional shares constituting a subsequent stock payment pursuant to Section
6.03 hereof, Checkers shall continue to pay to Xxxx-Folks in cash an amount
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equal to 2.5% of the value of the shares of Common Stock received by Xxxx-Folks
as part of the subsequent stock payment and held by Xxxx-Folks on each third
monthly anniversary of the Closing Date. The value of such shares shall be
deemed to be the applicable price differential less the net sales proceeds from
previously sold shares of Common Stock constituting part of the applicable stock
payment.
6.07 ACTIONS PRIOR TO CLOSING. From and after the date of execution
of this Agreement and until the Closing Date, or until this Agreement shall be
terminated as herein provided, Checkers shall not engage in any activity, enter
into any transaction or fail to take any action which would be inconsistent with
any of the representations and warranties as set forth in Article V of this
Agreement as if such representations and warranties were made at a time
subsequent to such activity or transaction and all references to the date of
this Agreement were deemed to be such later time.
6.08 PAYMENT OF CURRENT INTEREST. Beginning on November 1, 1995, and
on the first day of each month thereafter, Checkers shall pay to Xxxx-Folks an
amount equal to the interest due under the Notes for the preceding month.
6.09 ADDITIONAL PAYMENTS. In the event that Checkers has not filed
the Registration Statement pursuant to Section 6.02 on or before November 30,
1995, Checkers shall pay to Xxxx-Folks (i) on November 30, 1995, the amount of
$100,000 in cash, to be applied first against any accrued interest due under the
Notes, with the remainder, if any, to be applied against the principal due under
the Notes and (ii) on February 1, 1996, the amount of $100,000 in cash, to be
applied first against any accrued interest due under the Notes, with the
remainder, if any, to be applied against the principal due under the Notes.
6.10 PAYMENT OF PRINCIPAL. Beginning on July 15, 1997, and on the
15th day of each month thereafter through November 15, 1997, in the event that
the Registration Statement has not yet been declared effective by the SEC,
Checkers shall pay to Xxxx-Folks in cash the amount of One Hundred Thousand
Dollars ($100,000.00), to be applied against the principal balance due under the
Notes. Notwithstanding any other provision contained in this Agreement or the
Notes, if the exchange of Common Stock for the Notes contemplated herein has not
occurred prior to December 15, 1997, all remaining principal due under the Notes
and any accrued but unpaid interest thereon shall be due and payable on such
date, unless the failure to complete the exchange is due to the failure of
Xxxx-Folks or its stockholders to perform their obligations hereunder.
6.11 PAYMENT OF LEGAL EXPENSES. No later than one business day after
the execution hereof by Xxxx-Folks, Checkers shall pay to Xxxx-Folks Ten
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Thousand Dollars ($10,000.00) as partial reimbursement for legal fees incurred
by Xxxx-Folks in connection with this Agreement and related matters.
ARTICLE VII
COVENANTS OF XXXX-FOLKS
Xxxx-Folks covenants to Checkers as follows:
7.01 ACTIONS PRIOR TO CLOSING. From and after the date of execution
of this Agreement and until the Closing Date, or until this Agreement shall be
terminated as herein provided, Xxxx-Folks shall not (i) sell the Notes to any
other corporation or person, (ii) pledge the Notes to any person or otherwise
subject the Notes to a lien or encumbrance, (iii) engage in any activity, enter
into any transaction or fail to take any action which would be inconsistent with
any of the representations and warranties as set forth in Article III of this
Agreement as if such representations and warranties were made at a time
subsequent to such activity or transaction and all references to the date of
this Agreement were deemed to be such later time.
7.02 EXTENSION OF THE TERM OF THE NOTES; ACTION ON THE NOTES. The
term of the Notes shall be extended until and the Notes shall be payable on the
earlier of (i) the Closing Date or (ii) 20 days after the termination of this
Agreement in accordance with the terms hereof; provided however, that in the
event the Registration Statement is declared effective by the SEC prior to the
termination of this Agreement and the stockholders of Xxxx-Folks fail to approve
this Agreement and the transactions contemplated herein within 30 days after
Xxxx-Folks receives actual notice that the Registration Statement has been
declared effective by the SEC, the term of the Notes shall be extended
automatically until December 31, 1996. Xxxx-Folks shall not take any action to
collect any amounts due under the Notes, notwithstanding their maturity on
August 4, 1995, during the term of the Notes as extended by the preceding
sentence.
7.03 REGISTRATION STATEMENT INFORMATION. On request of Checkers,
Xxxx-Folks will furnish to Checkers all information concerning Xxxx-Folks as is
required to be set forth in (i) the Registration Statement and any Resale
Registration Statement and (ii) any application or statement made by Checkers to
any governmental agency or authority in connection with the transactions
contemplated by this Agreement.
7.04 APPROVAL BY STOCKHOLDERS. Promptly after the date on which
Xxxx-Folks receives actual notice that the Registration Statement has been
declared effective by the SEC, Xxxx-Folks shall call a meeting of the
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stockholders of Xxxx-Folks, to be held within 30 days after Xxxx-Folks' receipt
of such notice, for the purpose of obtaining the approval of the stockholders of
Xxxx-Folks of this Agreement and the transactions contemplated herein.
Xxxx-Folks shall distribute a copy of the Registration Statement to each
stockholder of Xxxx-Folks along with the notice of such meeting.
7.05 RELEASE BY FIRST CITIZENS BANK. Xxxx-Folks shall use its
commercially reasonable efforts to cause First Citizens Bank to release the
Notes from the pledge of Xxxx-Folks.
7.06 DISSOLUTION OF XXXX-FOLKS OR DISTRIBUTION OF COMMON STOCK TO
STOCKHOLDERS. Within one year after the Closing, Xxxx- Folks shall either (i)
dissolve and wind up its affairs pursuant to Georgia law or (ii) distribute the
shares of Common Stock issued to Xxxx-Folks pursuant to the terms of this
Agreement to the stockholders of Xxxx-Folks, pro rata in accordance with their
proportionate ownership of the stock of Xxxx-Folks.
7.07 TRANSFERS OF COMMON STOCK. Xxxx-Folks shall not sell, pledge,
transfer or otherwise dispose of the shares of Common Stock to be received by it
except in compliance with the applicable provisions of the 1933 Act and the
rules and regulations promulgated thereunder, including Rule 145. In order to
assure that any sales of the shares of Common Stock issued hereunder will be
made in an orderly manner so as not to adversely affect the market for the
Common Stock, for a period of two years after the Closing Date, Xxxx-Folks shall
not, without the prior consent of Checkers, (i) sell in excess of 50,000 shares
of Common Stock during any calendar week and (ii) sell in excess of 25,000
shares in any one day; provided however, that additional sales in excess of such
limits may be made provided the same are made at a price higher than the lowest
then current bid price for the Common Stock (on an "uptick"). Checkers may
refuse to register or give effect to any sales in excess of such limitation
(Xxxx-Folks shall provide Checkers with evidence that all sales in excess of
such limit were made on an uptick). Xxxx-Folks shall, upon the distribution of
any of the Common Stock to any stockholder of Xxxx-Folks, cause such person to
deliver an Agreement to Checkers as a condition of such distribution and the
transfer of the ownership of such shares upon the stock register of Checkers,
which agreement shall contain the covenants set forth in this Section 7.07 and a
proportionate limitation on sales. In the event that Checkers acquires all of
the outstanding stock of Rally's through a merger of Rally's with a subsidiary
of Checkers or otherwise, then the 25,000 share per day and 50,000 share per
week volume limitations set forth above shall be increased to 37,500 shares per
day and 75,000 shares per week.
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ARTICLE VIII
MUTUAL COVENANTS OF CHECKERS AND XXXX-FOLKS
Each of Checkers and Xxxx-Folks covenants with the other as follows:
8.01 CONFIDENTIALITY. All information furnished by one party to the
other in connection with this Agreement or the transactions contemplated hereby
shall be kept confidential by such other party (and shall be used by it and its
officers, attorneys, accountants and representatives (including brokers) only in
connection with this Agreement and the transactions contemplated hereby) except
to the extent that such information (i) already is known to such other party
when received, (ii) thereafter becomes lawfully obtainable from other sources,
(iii) is required to be disclosed in any document filed with the SEC or any
other agency of any government, or (iv) as otherwise required to be disclosed
pursuant to any federal or state law, rule or regulation or by any applicable
judgment, order or decree of any court or by any governmental body or agency
having jurisdiction in the premises after such other party has given reasonable
prior written notice to the other parties to this Agreement of the pending
disclosure of any such information. In the event that the transactions
contemplated by this Agreement shall fail to be consummated, it shall promptly
cause all copies of documents or extracts thereof containing information and
data as to the other party hereto to be returned to such other party.
8.02 PREPARATION OF REGISTRATION STATEMENTS. Each party shall
cooperate and consult with the other party hereto in the preparation of the
Registration Statement and any Resale Registration Statement to be filed by
Checkers with the SEC registering the shares of Common Stock to be issued
hereunder. When the Registration Statement, any Resale Registration Statement or
any Post-Effective Amendment thereto shall become effective, the information
prepared by each party for inclusion therein (i) will comply in all material
respects with the applicable provisions of the 1933 Act and the Rules and
Regulations promulgated thereunder and (ii) will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein are necessary to make the statements contained therein not
misleading. In no event shall any party hereto be liable to any other party
hereto for any untrue statement of a material fact or omission to state a
material fact in any registration statement, or any amendment or supplement
thereto, or in any report made in reliance upon, and in conformity with, written
information concerning the other party hereto furnished by such other party
specifically for use in such registration statement or report. Each party hereto
shall advise the other party hereto promptly of the happening of any event which
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makes untrue any statement of a material fact contained in the Registration
Statement or any Resale Registration Statement or any amendment or supplement
thereto or that requires the making of a change in the registration statement or
any amendment or supplement thereto in order to make any material statement
therein not misleading.
8.03 MISCELLANEOUS AGREEMENTS. Subject to the terms and conditions
herein provided, each party shall use its best efforts to take, or cause to be
taken, all action, and to do, or cause to be done, all things necessary,
appropriate or desirable under applicable laws and regulations to consummate and
make effective the transactions contemplated by this Agreement.
8.04 THE CLOSING. The Closing (the "Closing") of the transactions
contemplated herein shall take place at the offices of Xxxxxxxx, Loop &
Xxxxxxxx, 000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxxxx Xxxxx, Xxxxx, Xxxxxxx
00000, at 10:00 a.m., local time on the third business day following the date on
which the stockholders of Xxxx-Folks approve this Agreement and the transactions
contemplated herein, or at such other time and place as Checkers and Xxxx-Folks
shall agree (the "Closing Date"). The obligations of Checkers and Xxxx-Folks to
close or effect the transactions contemplated in this Agreement shall be subject
to satisfaction, unless duly waived, of the applicable conditions set forth in
this Agreement.
ARTICLE IX
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF
CHECKERS AND XXXX-FOLKS
The respective obligations of each party to effect the transactions
contemplated herein shall be subject to the fulfillment or waiver at or prior to
the Closing Date of the following conditions:
9.01 LITIGATION. Neither Checkers nor Xxxx-Folks shall be subject to
any order, decree or injunction of a court or agency of competent jurisdiction
which enjoins or prohibits the consummation of the transactions contemplated
herein.
9.02 XXXX-FOLKS STOCKHOLDER APPROVAL. This Agreement and the
transactions contemplated herein shall have been approved by the affirmative
vote of the holders of a majority of the outstanding shares of the common stock
of Xxxx-Folks.
9.03 REGISTRATION STATEMENT EFFECTIVE. The Registration Statement
shall have been declared effective by the SEC and the state securities
commission in each jurisdiction in which the Common Stock to be issued hereunder
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is required to be registered, and shall not be subject to a stop order or any
threatened stop order.
9.04 CLOSING DATE. The Closing Date shall be on the third business
day following the date on which the stockholders of Xxxx-Folks approve this
Agreement and the transactions contemplated herein after the SEC declares the
Registration Statement effective, but in no event shall the Closing Date be
extended past December 15, 1997, without the written consent of Xxxx-Folks.
ARTICLE X
CONDITIONS PRECEDENT TO OBLIGATIONS OF XXXX-FOLKS
The obligations of Xxxx-Folks to effect the transactions
contemplated herein shall be subject to the fulfillment or waiver at or prior to
the Closing Date of the following conditions:
10.01 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Checkers set forth in Article V of this Agreement shall be true
and correct in all material respects as of the date of this Agreement and as of
the Closing Date (as though made on and as of the Closing Date) except (i) to
the extent such representations and warranties are by their expressed provisions
made as of a specified date and (ii) for the effect of transactions contemplated
by this Agreement.
10.02 PERFORMANCE OF OBLIGATIONS. Checkers shall have performed in all
material respects all obligations required to be performed by it under this
Agreement at or prior to the Closing Date.
10.03 NO MATERIAL ADVERSE CHANGE. Since January 2, 1996, there shall
have been no material adverse change in the financial condition, results of
operations, business or prospects of Checkers and its subsidiaries taken as a
whole.
10.04 OFFICERS' CERTIFICATE. Checkers shall have furnished to
Xxxx-Folks a certificate dated the Closing Date, signed on behalf of Checkers by
its Chief Executive Officer, President, Chief Operating Officer or Chief
Financial Officer, to the effect that, to his knowledge and belief, the
conditions set forth in Sections 10.01, 10.02 and 10.03 have been satisfied.
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ARTICLE XI
CONDITIONS PRECEDENT TO OBLIGATIONS OF CHECKERS
The obligations of Checkers to effect the transactions contemplated
herein shall be subject to fulfillment at or prior to the Closing Date of the
following conditions:
11.01 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Xxxx-Folks set forth in Article III of this Agreement shall be
true and correct in all material respects as of the date of this Agreement and
as of the Closing Date (as though made on and as of the Closing Date) except (i)
to the extent such representations and warranties are by their expressed
provisions made as of a specified date and (ii) for the effect of transactions
contemplated by this Agreement.
11.02 PERFORMANCE OF OBLIGATIONS. Xxxx-Folks shall have performed in
all material respects all obligations required to be performed by it under this
Agreement at or prior to the Closing Date.
11.03 OFFICERS' CERTIFICATE. Xxxx-Folks shall have furnished to
Checkers a certificate dated the Closing Date, signed on behalf of Xxxx-Folks by
its President and chief financial officer, to the effect that, to the knowledge
and belief of each of them, the conditions set forth in Sections 11.01 and 11.02
have been satisfied.
11.04 RELEASE BY FIRST CITIZENS BANK. First Citizens Bank shall have
delivered its release of the Notes from the pledge of Xxxx-Folks.
ARTICLE XII
DOCUMENTS TO BE DELIVERED AT THE CLOSING BY XXXX-FOLKS
Xxxx-Folks shall deliver to Checkers the following documents at the
Closing:
12.01 OFFICER'S CERTIFICATE. The certificate referred to in Section
11.03 of this Agreement.
12.02 CERTIFICATE OF SECRETARIAL OFFICER. Certificates of the
Secretary or an Assistant Secretary of Xxxx-Folks, dated the Closing Date, with
respect to the incumbency of corporate officers and their signatures, corporate
good standing, and the corporate director and stockholder resolutions of
Xxxx-Folks approving this Agreement and the transactions contemplated by this
Agreement.
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12.03 THE NOTES. The Notes, marked "Paid in Full" over the signature
of a duly authorized officer of Xxxx-Folks.
12.04 OTHER DOCUMENTS. Such other documents as shall be reasonably
requested by Checkers and its counsel or required to be delivered pursuant to
this Agreement.
ARTICLE XIII
DOCUMENTS TO BE DELIVERED AT THE CLOSING BY CHECKERS
Checkers shall deliver to Xxxx-Folks the following documents at the
Closing:
13.01 OFFICER'S CERTIFICATE. The certificate referred to in Section
10.04 of this Agreement.
13.02 CERTIFICATE OF SECRETARIAL OFFICER. The certificate of the
Secretary or Assistant Secretary of Checkers, dated the Closing Date, with
respect to the incumbency of corporate officers and their signatures, corporate
good standing and the corporate director resolutions authorizing the
transactions contemplated by this Agreement.
13.03 STOCK CERTIFICATES. The stock certificates representing the
Stock Payment.
13.04 OTHER DOCUMENTS. Such other documents as shall be reasonably
requested by Xxxx-Folks or required to be delivered pursuant to this Agreement.
ARTICLE XIV
TERMINATION AND ABANDONMENT
14.01 EVENTS OF TERMINATION. This Agreement may be terminated at any
time before the Closing Date: (i) by mutual consent of the Boards of Directors
of Checkers and Xxxx-Folks, or the respective Presidents thereof, pursuant to
duly delegated authority; (ii) by the Board of Directors of Xxxx-Folks if any of
the conditions precedent found in Articles IX or X of this Agreement have not
been met and have not been waived in writing by Xxxx-Folks; (iii) by the Board
of Directors of Checkers if any of the conditions precedent found in Articles IX
or XI of this Agreement have not been met and have not been waived in writing by
Checkers; (iv) by the Board of Directors of Xxxx-Folks if there is a breach of
or failure by Checkers to perform in any material respect any of the
representations, warranties, commitments, covenants or conditions under this
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Agreement, which breach or failure is not cured within five days after written
notice thereof is given to Checkers; (v) by the Board of Directors of Checkers
if there is a breach of or failure by Xxxx-Folks to perform in any material
respect any of the representations, warranties, commitments, covenants or
conditions under this Agreement, which breach or failure is not cured within
five days after written notice thereof is given to the party committing such
breach; or (vi) by the Board of Directors of Xxxx-Folks or by the Board of
Directors of Checkers at any time on or after December 16, 1997, if the Closing
shall not theretofore have been consummated and completed. In the event of
termination and abandonment by any party as above provided in clauses (ii),
(iii), (iv), (v) or (vi) of this Section, written notice shall forthwith be
given to the other party, which notice shall clearly specify the reason of such
party for terminating this Agreement. Termination by either party hereto
pursuant to this Section 14.01 shall not restrict or limit in any manner the
remedies which the parties might have at law or in equity for any breach of the
covenants, representations, or warranties contained in this Agreement.
14.02 SURVIVAL. The provisions in Sections 8.01 and 16.13 of this
Agreement shall survive the termination of this Agreement.
ARTICLE XV
INDEMNIFICATION
15.01 SURVIVAL. All representations, warranties, covenants and
agreements of each of the parties hereto set forth in this Agreement or in any
other instrument or document delivered by any of the parties hereto pursuant to
this Agreement shall survive the Closing and shall remain operative and in full
force and effect regardless of any investigations at any time made by or on
behalf of any party hereto and shall not be deemed merged in any document or
instrument executed or delivered at or after the Closing.
15.02 INDEMNIFICATION BY XXXX-FOLKS. From and after the Closing,
Xxxx-Folks shall indemnify, defend and hold harmless Checkers' Group (as
hereinafter defined) from, against and with respect to any claim, liability,
obligation, loss, damage, assessment, judgment, cost and expense (including,
without limitation, reasonable attorney's and accountant's fees and costs and
expenses reasonably incurred in investigating, preparing, defending against or
prosecuting any litigation or claim, action, suit, proceeding or demand), of any
kind or character arising out of or in any manner incident, relating or
attributable to (i) the inaccuracy in any representation or breach of warranty
of Xxxx- Folks contained in this Agreement or otherwise made or given in writing
in connection with this Agreement, (ii) any failure by Xxxx-Folks to perform or
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observe any covenant, agreement or condition to be performed or observed by it
under this Agreement or under any certificates or other documents or agreements
executed by it in connection with this Agreement, and (iii) any claims arising
out of or based upon any untrue statement of a material fact contained in the
Registration Statement or any Resale Registration Statement or any prospectus
included therein or arising out of or based upon any omission to state therein a
material fact necessary to make the statements made, in light of the
circumstances under which they were made, not misleading, insofar as such claims
arise out of or are based upon information furnished to Checkers in writing by
Xxxx-Folks for use therein. Xxxx-Folks shall be liable to and shall reimburse
Checkers' Group for any payment made by Checkers' Group at any time after the
Closing in respect of any liability, obligation or claim to which the foregoing
indemnity relates within five (5) days of the date of receipt by Xxxx-Folks of
written demand for payment thereof by Checkers' Group. If any claim covered by
the foregoing indemnity be asserted against Checkers' Group, Checkers shall
notify Xxxx-Folks promptly and give it an opportunity to defend the same, and
Checkers shall extend reasonable cooperation to Xxxx-Folks in connection with
such defense. In the event that Xxxx-Folks fails to defend the same within a
reasonable time, Checkers shall be entitled to assume the defense thereof and
Xxxx-Folks shall be liable to repay Checkers for all of its expenses reasonably
incurred in connection with such defense (including reasonable attorney's fees
and settlement payments). For purposes of this Agreement, the term "Checkers'
Group" shall mean Checkers and its subsidiaries, parents, officers, directors,
employees, agents, representatives, predecessors, successors, attorneys and
accountants.
15.03 INDEMNIFICATION BY CHECKERS. From and after the Closing,
Checkers shall indemnify, defend and hold harmless Xxxx- Folks' Group (as
hereinafter defined) from, against and with respect to any claim, liability,
obligation, loss, damage, assessment, judgment, cost and expense (including,
without limitation, reasonable attorney's and accountant's fees and costs and
expenses reasonably incurred in investigating, preparing, defending against or
prosecuting any litigation or claim, action, suit, proceeding or demand), of any
kind or character arising out of or in any manner incident, relating or
attributable to (i) the inaccuracy in any representation or breach of warranty
of Checkers contained in this Agreement or otherwise made or given in writing in
connection with this Agreement, (ii) any failure by any Checkers to perform or
observe any covenant, agreement or condition to be performed or observed by it
under this Agreement or under any certificates or other documents or agreements
executed by it in connection with this Agreement, (iii) any failure by Checkers
to comply with the provisions of the 1933 Act or any applicable state securities
law in connection with the registration of any of the Common Stock issued
hereunder, and (iv) any claims arising out of or based upon any untrue statement
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of a material fact contained in the Registration Statement or any Resale
Registration Statement or any prospectus included therein or arising out of or
based upon any omission to state therein a material fact necessary to make the
statements made, in light of the circumstances under which they were made, not
misleading, other than claims which arise out of or are based upon information
furnished by Xxxx-Folks to Checkers in writing for use therein. Checkers shall
be liable to and shall reimburse Xxxx-Folks' Group for any payment made by
Xxxx-Folks' Group at any time after the Closing in respect of any liability,
obligation or claim to which the foregoing indemnity relates within five (5)
days of the date of receipt by Checkers of written demand for payment thereof by
Xxxx-Folks' Group. If any claim covered by the foregoing indemnity be asserted
against Xxxx-Folks' Group, Xxxx-Folks' shall notify Checkers promptly and give
it an opportunity to defend the same, and Xxxx-Folks' Group shall extend
reasonable cooperation to Checkers in connection with such defense. In the event
that Checkers fails to defend the same within a reasonable time, Xxxx-Folks'
Group shall be entitled to assume the defense thereof and Checkers shall be
liable to repay Xxxx-Folks' Group for all of its expenses reasonably incurred in
connection with such defense (including reasonable attorney's fees and
settlement payments). For purposes of this Agreement, the term "Xxxx-Folks'
Group" shall mean Xxxx-Folks and its subsidiaries, parents, officers, directors,
employees, agents, representatives, predecessors, successors, attorneys and
accountants.
ARTICLE XVI
MISCELLANEOUS
16.01 BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the corporate parties hereto and their respective
successors and permitted assigns, and of the individual parties hereto and their
respective heirs, personal representatives and permitted assigns.
16.02 PUBLICITY. Subject to the other provisions of this Agreement,
press releases and other publicity materials relating to the transactions
contemplated by this Agreement shall be released by the parties hereto only
after review and with the consent of each of Checkers and Xxxx-Folks; PROVIDED,
HOWEVER, Checkers shall have the right, after consulting with Xxxx-Folks, to
make a public announcement of the execution of this Agreement and a disclosure
of the basic terms and conditions of this Agreement if advised to do so by its
legal counsel in connection with the reporting and disclosure obligations of
Checkers under the federal securities laws and/or the NASDAQ National Market
System.
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16.03 HEADINGS. The headings in this Agreement have been inserted
solely for ease of reference and shall not be considered in the interpretation
or construction of this Agreement.
16.04 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute one and the same instrument.
16.05 GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of Georgia without regard to any applicable conflicts
of law.
16.06 EXPENSES. Except as otherwise herein provided, each of the
parties hereto shall pay its respective costs and expenses incurred or to be
incurred by it in connection with the negotiations respecting this Agreement and
the transactions contemplated by this Agreement, including preparation of
documents, obtaining any necessary regulatory approvals and the consummation of
the other transactions contemplated in this Agreement. Except as expressly
stated otherwise herein, the costs related to the preparation and filing of the
Registration Statement, any Resale Registration Statement, and all Nasdaq and
state securities law filings shall be paid by Checkers.
16.07 NON-ASSIGNMENT. This Agreement shall not be assignable by any
party without the written consent of the others.
16.08 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties hereto with respect to the transactions contemplated herein
and supersedes all other prior agreements, understandings and letters related
hereto.
16.09 SINGULAR AND PLURAL. Unless the context of this Agreement
otherwise clearly requires, references to the plural include the singular and
the singular includes the plural. Wherever the context so requires, the
masculine shall refer to the feminine, the neuter shall refer to the masculine
or the feminine, the singular shall refer to the plural, and vice versa.
16.10 KNOWLEDGE OF XXXX-FOLKS. Wherever any representation, warranty
or other statement made in this Agreement is qualified as to the knowledge of
Xxxx-Folks, such qualification shall mean the actual knowledge of Xxxx-Folks and
each of the directors and executive officers of Xxxx-Folks.
16.11 NOTICES. Any notice or other communications required or
permitted by this Agreement shall be in writing and shall be deemed to have been
duly given (i) on the date sent if delivered personally or by cable, telecopy,
telegram or telex (which is confirmed) or (ii) on the date received if mailed by
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registered or certified mail (return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(a) if to Checkers, to:
Checkers Drive-In Restaurants, Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
with a copy to:
Xxxx X. Xxxxx, Esquire
Xxxxxxxx, Loop & Xxxxxxxx
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Telecopy No.: (000) 000-0000
and,
(b) if to Xxxx-Folks, to:
Xxxx-Folks, Inc.
Attention: President
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000
Telecopy No.: (000) 000-0000
with a copy to:
Xxxx X. Xxxxxxx, Esquire
Xxxxxxxxxx, Xxxxxx & Xxxxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000-0000
Telecopy No.: (000) 000-0000
16.12 RIGHTS OF THIRD PARTIES. This Agreement shall not create any
legal rights in any person or entity other than the parties to this Agreement,
except for Checkers' Group under Section 15.02 and Xxxx-Folks' Group under
Section 15.03 of this Agreement.
16.13 REMEDIES. Nothing contained in this Agreement shall be
construed to restrict or limit in any manner the remedies which the parties
might have at law or in equity for any breach of the covenants, representations,
or warranties contained in this Agreement.
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16.14 AMENDMENT. This Agreement may be amended or supplemented by the
parties hereto. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto.
16.15 WAIVER. Any party hereto may, by written notice to the other
parties hereto, (i) extend the time for the performance of any of the
obligations or other actions of such other party under this Agreement, (ii)
waive any inaccuracies in the representations or warranties of such other party
contained in this Agreement or in any document delivered pursuant to this
Agreement, or (iii) waive compliance with any of the conditions or covenants of
such other party contained in this Agreement, or (iv) waive or modify
performance of any of the obligations of such other party under this Agreement.
Except as provided in the preceding sentence, no action taken pursuant to this
Agreement, including, without limitation, any investigation by or on behalf of
any party, shall be deemed to constitute a waiver by the party taking such
action of compliance with any of the representations, warranties, covenants,
conditions, or agreements contained in the Agreement. The waiver by any party
hereto of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach. If, prior to the Closing, any
party provides all of the other parties with written notice, which refers
specifically to this Section 16.15, that a representation or warranty made by
such party in or pursuant to this Agreement is not true, correct and complete
and the Closing is consummated notwithstanding such disclosure, such other
parties shall be deemed to have waived any claims for indemnification under this
Agreement as a result of the inaccuracy of such representation or warranty.
16.16 EFFECTIVENESS. This Amended and Restated Purchase Agreement
shall become effective upon execution by all of the parties hereto and the
payment by Checkers to Xxxx-Folks in cash of the amount of One Hundred Thousand
Dollars ($100,000.00), to be applied against the principal balance due under the
Notes. Such amount shall be paid within three business days following the
execution and delivery of this Agreement by both parties hereto.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorized officer as of the day and year
first above written.
CHECKERS DRIVE-IN RESTAURANTS, INC.
By /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
XXXX-FOLKS, INC.
By /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
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