UNIT PURCHASE AGREEMENT By and Among OUTBACK STEAKHOUSE INTERNATIONAL, L.P. and EUN TAE CHUNG, CHAI WOO YI, YOON HEE EOH November 8, 2006
Exhibit
10.1
By
and Among
OUTBACK
STEAKHOUSE INTERNATIONAL, L.P.
and
EUN
XXX XXXXX, XXXX XXX YI, XXXX XXX EOH
November
8, 2006
Page
No.
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ARTICLE
I
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TRANSFER
OF UNITS AND PURCHASE PRICE……………………………
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1
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|||||
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1.01.
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Agreement
to Buy and Sell ……………………………………………………..
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1
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1.02.
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Purchase
Price ……………………………………………………………………
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1
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|||||
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1.03.
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Effective
Date …………………………………………………………………….
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2
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|||||
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1.04.
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Sellers’
Representative ………………………………………………………….
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2
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|||||
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1.05.
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Transfer
Taxes ……………………………………………………………………
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2
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ARTICLE
II
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REPRESENTATIONS
AND WARRANTIES OF SELLERS …………………
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2
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2.01.
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Authority
and Validity ………………………………………………………….
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2
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|||||
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2.02.
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Concerning
the Units ……………………………………………………………
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3
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2.03.
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Debts:
Affiliates ………………………………………………………………….
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3
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2.04.
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Liability
for Company Obligations ……………………………………………..
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3
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2.05.
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Financial
Statements …………………………………………………………….
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3
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|||||
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2.06.
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No
Material Adverse Change …………………………………………………..
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4
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|||||
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2.07.
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Taxes
………………………………………………………………………………
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4
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|||||
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2.08.
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Inventory
…………………………………………………………………………
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4
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|||||
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2.09.
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Litigation
…………………………………………………………………………
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5
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|||||
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2.10.
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Commitments
…………………………………………………………………….
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5
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|||||
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2.11.
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Assets
…………………………………………………………………………….
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5
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|||||
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2.12.
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Accuracy
of Information Furnished …………………………………………..
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5
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|||||
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ARTICLE
III
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REPRESENTATIONS
AND WARRANTIES OF BUYER …………………..
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5
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|||||
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3.01.
|
Organization
and Good Standing ………………………………………………
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5
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|||||
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3.02.
|
Authorization
and Validity ………………………………………………………
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5
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|||||
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3.03.
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Investment
Intent ………………………………………………………………..
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6
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3.04.
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No
Violation ………………………………………………………………………
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6
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ARTICLE
IV
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CONDUCT
PRIOR TO CLOSING …………………………………………….
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6
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|||||
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4.01.
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Third-Party
Approvals …………………………………………………………..
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6
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|||||
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4.02.
|
Obstruction
of Purpose ………………………………………………………….
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6
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|||||
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4.03.
|
Reasonable
Efforts ……………………………………………………………….
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6
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|||||
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4.04.
|
Competing
Proposals …………………………………………………………….
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6
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4.05.
|
Supplement
to Schedules ……………………………………………………….
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7
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ARTICLE
V
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CONDITIONS
TO CLOSING ………………………………………………….
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7
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5.01.
|
Conditions
to Sellers' Obligation ……………………………………………….
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7
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5.02.
|
Conditions
to Buyer’s Obligations …………………………………………….
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7
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ARTICLE
VI
|
THE
CLOSING …………………………………………………………………
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8
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6.01.
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Closing
…………………………………………………………………………….
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8
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6.02.
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Execution
and Delivery of Closing Documents ……………………………..
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8
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6.03.
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Simultaneous
Transactions ……………………………………………………..
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9
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ARTICLE
VII
|
TERMINATION
PRIOR TO THE CLOSING ……………………………….
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9
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7.01.
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Termination
of Agreement ………………………………………………………
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9
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7.02.
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Effect
of Termination ……………………………………………………………
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9
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|||||
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7.03.
|
Expenses
……………………………………………………………………………
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9
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7.04.
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Procedure
Upon Termination ……………………………………………………
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9
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ARTICLE
VIII
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POST-CLOSING
MATTERS ………………………………………………..
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10
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8.01.
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Non-Competition
and Non-Solicitation ……………………………………….
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10
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8.02.
|
Confidentiality;
Return of Materials ………………………………………….
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10
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8.03.
|
Consideration
…………………………………………………………………….
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11
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8.04.
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Equitable
Relief …………………………………………………………………..
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11
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8.05.
|
Prior
Obligations …………………………………………………………………
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11
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ARTICLE
IX
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MISCELLANEOUS
………………………………………………………………
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11
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9.01.
|
Dispute
Resolution …………………………………………………………….
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11
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9.02.
|
Notices
……………………………………………………………………………
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13
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9.03.
|
Assignment;
Extensions and Waivers ………………………………………..
|
13
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9.04.
|
Survival
of Representations and Warranties …………………………………
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13
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9.05.
|
Indemnification
………………………………………………………………….
|
14
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9.06.
|
Entire
Agreement ………………………………………………………………..
|
14
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|||||
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9.07.
|
Governing
Law …………………………………………………………………..
|
14
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9.08.
|
Further
Assurances ……………………………………………………………..
|
14
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9.09.
|
Counterparts
……………………………………………………………………..
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14
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SCHEDULES
Schedule
6.02(b) - Wire Transfer Instructions
THIS
UNIT
PURCHASE AGREEMENT ("Agreement") is entered into on November 8, 2006, by
and
among OUTBACK STEAKHOUSE INTERNATIONAL, L.P., a Georgia limited partnership
("Buyer"); and the following individuals, all of whom reside in Seoul, Korea:
EUN XXX XXXXX, XXXX XXX YI and XXXX XXX EOH (individually, a “Seller” and
collectively, “Sellers”).
WHEREAS,
Sellers together own 69,400 units of the capital, 5,000 won per unit (the
“Units”), of Aussie Xxxxx Ltd., a Korean limited liability company (“Company”),
constituting approximately 18% of the issued and outstanding units of Company’s
capital, as indicated for each Seller on the signature page hereto.
WHEREAS,
Sellers desire to sell the Units to Buyer, and Buyer desires to purchase
the
Units from Sellers, on the terms and conditions set forth in this Agreement;
and
NOW,
THEREFORE, the parties mutually agree as follows:
ARTICLE
I
PURCHASE
AND SALE OF UNITS
Section
1.01.
Agreement
to Buy and Sell.
Subject
to the terms and conditions expressed in this Agreement and in reliance on
the
representations, warranties, covenants and agreements contained in this
Agreement, at the Closing and on the Closing Date (as such terms are defined
in
Section 6.01). Sellers agree to sell, transfer and assign the Units to Buyer,
and Buyer agrees to purchase the Units from Sellers.
Section
1.02.
Purchase
Price.
The
purchase price for the Units (“Purchase Price”) is U.S. $34,872,198. Buyer shall
pay the Purchase Price as follows: (i) U.S. $17,831,358 to Sellers at the
Closing by wire transfer to an account or accounts designated by Sellers,
in
writing; (ii) U.S. $14,040,839 at the Closing by wire transfer to an account
or
accounts designated by the Company, in writing, for repayment of loans (“Loans”)
from the Company to the Sellers recorded on the books of the Company on Sellers’
behalf and with Sellers’ consent and (iii) U.S. $3,000,000 (the “Escrow Amount”)
shall be paid by wire transfer to an interest-bearing escrow account at an
institution mutually acceptable to Sellers and Buyer pursuant to the terms
of an
escrow agreement (“Escrow Agreement”) that will provide for the payment of any
remaining Escrow Amount (plus interest accrued thereon) to the Sellers, on
May
1, 2008 (the period from the Closing Date to April 30, 2008 is hereinafter
referred to as the “Escrow Period”), after payment or deductions for any and all
Losses (defined in Section 9.05), for which the Sellers are responsible pursuant
to Section 9.05, and Special Expenses. As used herein, the term “Special
Expenses” means any and all costs, liabilities or expenses incurred after the
date hereof by Buyer or Company or any of their affiliates as a result of
a tax
audit conducted by the National Tax Service of Korea in respect of the Company’s
business operation in 2005, or in connection with, any violations of applicable
laws occurring prior to March 14, 2006, including fines and penalties imposed
on
the Company or Buyer by the National Tax Service of Korea or any
applicable
U.S. government authorities or other obligations relating thereto, and all
court
costs and
attorneys’ and accountants’ fees and other expenses relating thereto, incurred
by the Company or Buyer in connection with the investigation and resolution
of
such matters. The allocation among the Sellers of responsibility for Special
Expenses and Losses shall be determined in such manner as the Sellers may
separately agree, and neither Buyer nor Company shall have any responsibility
for such allocation. Any deductions from the Escrow Amount made under this
Section 1.02 shall be treated by the parties as an adjustment of the Purchase
Price.
Section
1.03. Effective
Date.
The
effective date of the sale and purchase of the Units will be October 31,
2006.
The transfer of the Units will take place at the Closing.
Section
1.04.
Sellers’
Representative.
Each
Seller hereby irrevocably constitutes and appoints Eun Xxx Xxxxx as such
Seller's representative (“Sellers’ Representative”) in connection with this
Agreement. Sellers' Representative is hereby authorized and directed to perform
and consummate all of the transactions contemplated by this Agreement on
behalf
of such Seller. Such appointment shall be binding upon the heirs, executors,
administrators, estates, personal representatives, successors and assigns
of
each Seller. All actions of Sellers’ Representative, including the giving and
receiving of notices, the making of determinations or waivers with respect
to
the sufficiency of any matter or the fulfillment of any conditions precedent,
and any other action taken or purported to be taken by Sellers’ Representative
on behalf of Sellers, shall be binding on the other Sellers, and Buyer and
Company may rely thereon.
Section
1.05.
Transfer
Taxes.
All
securities transaction tax and individual income tax on capital gains relating
to the transactions contemplated hereby which are required to be paid by
Sellers
under the applicable tax laws shall be paid by the Sellers. All other taxes
and
fees relating to the transactions contemplated hereby imposed by any
Governmental Entity shall be paid by the party against which they are imposed
under applicable laws.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF SELLERS
Sellers,
jointly and severally, represent and warrant to Buyer that on the date of
this
Agreement and on the Closing Date:
Section
2.01.
Authority
and Validity.
Sellers
have the authority and capacity to execute and deliver this Agreement, to
sell
the Units, and otherwise to perform their obligations under this Agreement
and
any ancillary documents that Sellers deliver at the Closing (“Sellers’ Ancillary
Documents”). This Agreement and Sellers’ Ancillary Documents, when executed and
delivered by Sellers, will constitute valid, legal and binding obligations
of
Sellers, enforceable against each Seller in accordance with their respective
terms, except as such enforcement may be limited by general principles of
equity
and by laws affecting the enforcement of creditors’ rights generally. Neither
the execution of this Agreement nor the consummation of the transactions
contemplated by this Agreement will result in the breach of any term or
provision of, or constitute a default under, any agreement, indenture,
instrument, order, law or regulation to which any Seller is a party or by
which
he or she or any of the Units is bound. The
consummation
of the transactions contemplated hereunder require no action by Sellers in
respect of or filing with any governmental or regulatory body or any other
third
party.
Section
2.02.
Concerning
the Units.
Each
Seller owns the number of Units indicated on the signature page hereto. Each
of
the Units is validly issued, fully paid and non-assessable and has not been
issued in violation of the preemptive rights of any person. Sellers own the
Units beneficially and of record, and possesses the authority and legal right
to
sell, assign, transfer and deliver the entire legal and beneficial ownership
of
the Units, free and clear of all claims, liens. pledges and other encumbrances
of any kind. As of the Closing Date, no Seller has issued any options or
warrants that cover any of the Units and no Seller is a party to any unitholder
agreement, voting trust or other agreement that would prevent such Seller
from
selling the Units to Buyer as contemplated in this Agreement.
Section
2.03.
Debts;
Affiliates; Related Party Contracts.
To each
Sellers’ knowledge, Company is not indebted to any Seller or any Affiliate of
any Seller, and no Seller or an Affiliate of any Seller is indebted to Company
except for the Loans. To each Sellers’ knowledge, no Seller, and no Affiliate of
any Seller, has any interest in any supplier of Company or lessor of premises
to
Company. As used in this Agreement, an “Affiliate” of a person means (i) any
legal entity of which such person is a director or has the right to appoint
a
director or participate in management, or of which such person owns 10% or
more
of the equity or voting securities, and (ii) the spouse and lineal ascendants
and descendants of such person. To each Sellers’ knowledge, there are no
contracts or arrangements (formal or informal, written or oral) related directly
or indirectly to the business of Company between the Company and any of the
Sellers or any of their Affiliates.
Section
2.04 Liability
for Company Obligations.
To each
Sellers’ knowledge, no Seller has accepted personal liability as co-maker,
guarantor or surety for any financial or contractual obligation of Company,
including loan agreements, notes, leases and other contracts.
Section
2.05.
Financial
Statements.
Company
has furnished to Buyer and Sellers a balance sheet of Company as at December
31,
2005 and an income statement of Company for the year then ended, and unaudited
interim balance sheet of Company as of October 31, 2006 and the related income
statement for the 10 months then ended (the “Financial Statements"). To each
Sellers’ knowledge:
(a)
(i) the
Financial Statements fairly present Company’s financial condition as of the
dates thereof and the results of its operations for the period therein indicated
in accordance with Korean generally accepted accounting principles, consistently
applied, reconciled to U.S. generally accepted accounting principles; and
(ii)
except as indicated in the notes therein, the Financial Statements reflect
no
significant items of income or expense that were unusual or of a nonrecurring
nature.
(b)
(i) the
Company’s books and records have been maintained in accordance with applicable
legal and accounting requirements and good business practices; (ii) the
Financial Statements reflect only valid transactions; and (iii) all contingent
liabilities of and unasserted claims against Company are fully and accurately
reflected in the Financial Statements.
(c)
(i)
except for contractual liabilities and obligations incurred in the ordinary
course of business since October 31, 2006, the Financial Statements reflect
all
liabilities and
obligations of Company, accrued, contingent or otherwise, that arose out
of
transactions effected or events that occurred on or prior to the Closing
Date;
(ii) all allowances and reserves shown in the Financial Statements are
appropriate, reasonable and sufficient to provide for anticipated expenses
and
losses; and (iii) Company is not liable on or with respect to, or obligated
in
any way to provide funds in respect of or to guarantee or assume in any manner,
any debt or obligation of any other person.
Section
2.06.
No
Material Adverse Change.
To each
Sellers’ knowledge, since the date of the Financial Statements and prior to
October 31, 2006, there has not been any material adverse change in the
financial condition, results of operations, business, prospects, assets or
liabilities (actual or contingent) of Company, and Company has not (a) declared,
paid or distributed any dividend or any distribution on or with respect to
the
units constituting the equity of Company; (b) redeemed or repurchased, or
authorized the redemption or repurchase of, any such units; (c) incurred
any
long-term debt or signed any lease with a term in excess of three years;
(d)
implemented or promised any salary, bonus or compensation increases to any
officers, employees or agents of Company other than as set out in the internal
employment regulations of Company; (e) experienced or been notified of any
pending or threatened labor disputes or other labor problems against or
potentially affecting Company; or (f) entered into any other transactions,
except in the ordinary course of business and consistent with past
practice.
Section
2.07.
Taxes.
To each
Seller’s knowledge, (a) Company has filed proper and accurate tax returns,
reports and estimates for all periods with respect to which such returns,
reports and estimates were due; (b) all taxes shown in such returns, reports
and
estimates to be payable have been paid or adequate provision for their payment
has been made; (c) there is not in force any extension of the date on which
any
tax return was or is due, or any waiver or agreement for the extension of
time
for Company’s payment of any tax; and (d) the provision for taxes shown on the
balance sheet included in the Financial Statements is adequate to cover
Company’s liability for all taxes to the date of the Financial
Statements.
Section
2.08.
Inventory.
To each
Sellers’ knowledge, (a) no item included in the inventory, materials or supplies
of Company, as reflected on the balance sheet included in the Financial
Statements, is pledged as collateral or held on consignment from others;
(b)
obsolete or discontinued items do not constitute a material part of such
inventory, materials and supplies; and (c) all such inventory items are standard
quality goods, saleable in the ordinary course of business.
Section
2.09.
Litigation.
To each
Sellers’ knowledge,(a) there are no pending or, threatened lawsuits,
administrative proceedings or investigations against Company or to which
any of
its assets are subject; (b) Company has complied in all material respects
with
all laws and regulations applicable to it; and (c) Company is not subject
to any
order, writ, injunction or decree relating to its operations.
Section
2.10.
Commitments.
To each
Sellers’ knowledge, Company has performed in all material respects all
obligations to be performed by it under all contracts, agreements and
commitments to which it is a party, and there is not under any such contracts,
agreements or
commitments
any existing default, event of default or event which, with notice or lapse
of
time or both, would constitute a default.
Section
2.11. Assets
(a) To
each
Sellers’ knowledge, Company is the sole owner of and has good and marketable
title to its assets, which assets constitute all of the assets, rights, and
properties used in, or reasonably necessary for, the conduct of its business
in
the manner and to the extent currently conducted, and includes all items
of
property located at its offices, used as though owned, that any Seller purports
to own, reflected on the Financial Statements.
(b) None
of
the Sellers is a person authorized to draw on any account of the Company
of any
nature.
Section
2.12.
Accuracy
of Information Furnished.
All of
the schedules provided by Sellers pursuant to this Agreement are true, correct
and complete in all material respects, and no representation, warranty or
statement made any Seller in or pursuant to this Agreement contains any untrue
statement of a material fact or omits to state any fact necessary to make
such
representation, warranty or statement not misleading.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF BUYER
Buyer
represents and warrants to Sellers that, on the date of this Agreement and
on
the Closing Date:
Section
3.01.
Organization
and Good Standing.
Buyer
is a limited partnership duly formed, validly existing and in good standing
under the laws of the State of Georgia, U.S.A., and has the requisite power
and
authority to carry on its business as now being conducted.
Section
3.02.
Authorization
and Validity.
This
Agreement and any ancillary documents that Buyer delivers at the Closing,
have
been executed by all necessary corporate action and, when executed and delivered
by Buyer, will be duly authorized, executed and delivered, and will constitute
valid, legal and binding obligations of Buyer, enforceable against Buyer
in
accordance with their respective terms, except as such enforcement may be
limited by general principles of equity and by laws affecting the enforcement
of
creditors’ rights generally.
Section
3.03.
Investment
Intent.
Buyer
is acquiring the Units for its own account for investment and not with a
view to
the resale, distribu-tion or other disposition of the Units.
Section
3.04.
No
Violation.
Neither
the execution of this Agreement nor the consummation of the transactions
contemplated by this Agreement will result in the breach of any term or
provision of, or constitute a default under, any agreement, indenture,
instrument, order, law or regulation to which Buyer is a party or by which
it or
any of its properties is bound.
Outback
Aussie Xxxxx Ltd. - Korea Unit Purchase Agreement (November 7
2006)I.DOC
5
ARTICLE
IV
CONDUCT
PRIOR TO CLOSING
Section
4.01.
Third-Party
Approvals.
Prior
to the Closing, Buyer and Sellers shall use their best efforts to obtain
all
approvals of public authorities and private persons (including lessors and
other
persons having contractual relations with Company) that are necessary for
the
consummation of the transactions contemplated by this Agreement, or to prevent
any termination of any material right, privilege, license or agreement of,
or
any material loss or disadvantage to, Buyer or Company upon consummation
of the
transactions contemplated by this Agreement.
Section
4.02.
Obstruction
of Purpose.
Prior
to the Closing, none of the Sellers shall take, permit or condone any action
or
engage in any omission or inaction that might cause any condition to Closing
not
to be satisfied or fulfilled, including action or inaction that might cause
the
representations and warranties of Sellers not to be true, correct and accurate
as of the Closing Date.
Section
4.03.
Cooperation
and Reasonable Efforts.
Sellers
will cooperate with Buyer and take all reasonable steps within their power
to
fulfill all conditions to Buyer's obligations to purchase the Units that
are
dependent upon the actions of Sellers.
Section
4.04.
Competing
Proposals.
Prior
to the Closing, Sellers (i) will not, directly or indirectly, whether through
Company, its officers, directors, employees, Affiliates, representatives,
agents
or otherwise, encourage or solicit any inquiries or proposals by, engage
in any
discussions or negotiations with, or furnish any business or financial
information to, any person concerning any merger, acquisition or purchase
of
Company, any of its equity or debt securities, or any material portion of
its
assets; and (ii) will promptly communicate to Buyer the substance of any
inquiry
or proposal concerning any such transaction that any Seller may
receive.
Section
4.05.
Supplement
to Schedules.
If,
between the date of this Agreement and the Closing Date, any Seller becomes
aware that any of their representations or warranties was inaccurate when
made,
or if any event occurs or condition changes that causes any of their
representations and warranties to be inaccurate, Sellers will notify Buyer
in
writing and supplement the appropriate section or schedule to account for
any
such inaccuracy, event or change. Any such supplement to a section or a schedule
will not be deemed to have been disclosed as of the date of this Agreement
or to
have cured any breach of the representations and warranties made in this
Agreement, unless Buyer so agrees. However, any such supplement to a section
or
schedule will be deemed to be disclosed as of the Closing Date for purposes
of
the accuracy of the representations and warranties made in this Agreement
as of
the Closing Date.
ARTICLE
V
CONDITIONS
TO CLOSING
Section
5.01.
Conditions
to Sellers’ Obligations.
The
obligations of Sellers to sell the Units and otherwise consummate the
transactions this Agreement contemplates subject to the satisfaction at or
prior
to the Closing of each of the following conditions, any of which Sellers
may
waive:
Outback
Aussie Xxxxx Ltd. - Korea Unit Purchase Agreement (November 7
2006)I.DOC
6
(a) The
representations and warranties of Buyer in this Agreement shall be true and
correct at and as of the Closing Date;
(b) Buyer
shall have performed and complied with all the agreements and satisfied all
the
conditions required by this Agreement to be performed or complied with or
satisfied by Buyer at or prior to the Closing;
(c) Sellers
shall have received a certificate signed by an executive officer of Buyer
and
dated the Closing Date certifying that the conditions contained in Subsections
(a) and (b) above have been satisfied in full; and
(d) Sellers
shall have received, in form and substance reasonably satisfactory to the
Sellers, a written waiver and release signed by Company and Buyer and dated
the
Closing Date, in which Company and Buyer irrevocably waive, all claims of
any
kind that they may have against the Sellers (including, but not limited to,
all
claims in connection with the Loans), other than claims arising out of Sellers’
obligations under this Agreement.
Section
5.02 Conditions
to Buyer’s Obligations.
The
obligations of Buyer to purchase the Units and otherwise consummates the
transactions this Agreement contemplates are subject to the satisfaction
at or
prior to the Closing of each of the following conditions, any of which Buyer
may
waive:
(a) The
representations and warranties of Sellers in this Agreement shall be true
and
correct at and as of the Closing Date;
(b) Sellers
shall have performed and complied with all the agreements and satisfied all
the
conditions required by this Agreement to be performed or complied with or
satisfied by them at or prior to the Closing;
(c) Buyer
shall have received a certificate, signed by each Seller and dated the Closing
Date certifying that the conditions contained in Subsections (a) and (b)
above
and in Section 8.02(b) have been satisfied in full; and
(d) Buyer
shall have received, in form and substance reasonably satisfactory to the
Buyer,
a written waiver and release signed by each Seller and dated the Closing
Date,
in which each Seller irrevocably waives, all claims of any kind that it may
have
against the Company or the Buyer, other than claims arising out of Buyer’s
obligations under this Agreement.
ARTICLE
VI
THE
CLOSING
Section
6.01.
Closing.
The
consummation of the transactions contemplated by this Agreement (the “Closing”)
shall occur at 10:00 a.m. on November 10, 2006 at the offices of Shin & Xxx
in Seoul, Korea. The parties may mutually stipulate a different time, date
or
place for the
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7
Closing,
except that in no event shall the Closing occur later than November 15, 2006.
The date on which the Closing actually occurs is referred to as the “Closing
Date.”
Section
6.02.
Execution
and Delivery of Closing Documents.
Buyer
and Sellers shall execute and deliver or perform the following at the
Closing:
(a) Each
Seller shall deliver to Buyer (i) a duly executed assignment for his/her
Units
in form sufficient to vest title to the Units in Buyer, free and clear of
all
liens, claims and encumbrances, (ii) a duly executed power of attorney giving
full power to Buyer or its designee to exercise his/her voting right at a
general meeting of members of the Company where the transfer of the Units
under
this Agreement will be approved and (iii) a duly executed acknowledgment
and
relinquishment of rights agreement pertaining to Company’s Outback Steakhouse
Restaurant Franchise Agreements;
(b) Buyer
shall deliver: (i) U.S. $9,192,142, U.S. $7,883,310 and U.S. $755,906 (in
the
aggregate representing the Purchase Price less the Loans and the Escrow Amount)
to each Seller, respectively, (ii) U.S. $14,040,839 (representing the repayment
of the Loans) to Company; and (iii) the Escrow Amount to the escrow agent,
Shinhan Bank, each by wire transfer to the respective bank accounts set forth
in
Schedule 6.02(b) attached hereto on the Closing Date; and
(c) Each
party shall execute and deliver the certificates called for in Article V
of this
Agreement.
Section
6.03. Simultaneous
Transactions.
All the
transactions described in or contemplated by Section 6.02 will be deemed
to have
occurred simultaneously, and no transaction will be deemed to have occurred
unless they all occur.
ARTICLE
VII
TERMINATION
PRIOR TO THE CLOSING
Section
7.01.
Termination
of Agreement.
This
Agreement may be terminated at any time prior to the Closing:
(a) by
mutual
written agreement of the parties; or
(b) by
Buyer
in its sole discretion, based on the results of its due diligence review;
or
(c) by
any
party if the Closing does not occur on or before November 15, 2006 as long
as
such party is not responsible for the delay or such failure to close;
or
(d) by
Buyer,
upon a material breach of any representation, warranty, covenant or agreement
on
the part of Sellers set forth in this Agreement, or if any representation
or
warranty of Sellers is or becomes untrue to a material degree, unless Sellers
cure the breach or deficiency within 10 days after Buyer gives Sellers written
notice of the breach or deficiency; or
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(e) by
a
Seller, upon a material breach of any representation, warranty, covenant
or
agreement on the part of Buyer set forth in this Agreement, or if any
representation or warranty of Buyer is or becomes untrue to a material degree,
unless Buyer cures the breach or deficiency within 10 days after a Seller
gives
Buyer written notice of the breach or deficiency.
Section
7.02.
Effect
of Termination .
If this
Agreement is terminated pursuant to Section 7.01, all obligations of Buyer
and
Sellers shall terminate, except the obligations of the parties pursuant to
Section 7.04.
Section
7.03.
Expenses.
Regardless of whether the Closing occurs and except as provided in Section
7.02,
each party shall pay all costs and expenses that it or he/she incurs in
connection with this Agreement. Sellers agree that neither Company nor Buyer
shall bear any of the legal fees or other expenses that Sellers incur in
connection with this Agreement.
Section
7.04.
Procedure
Upon Termination.
In the
event of termination pursuant to Section 7.01, written notice shall be
immediately given to the other parties and the transactions contemplated
by this
Agreement will be terminated without any further action by Buyer or
Sellers.
ARTICLE
VIII
POST-CLOSING
MATTERS
Section
8.01. Non-Competition
and Non-Solicitation.
(a) Each
Seller agrees that, for two years after the Closing Date (the "Non-Competition
Period"), except for services performed for Company, neither he/she nor any
of
his/her Affiliates will, directly or indirectly, either as an individual,
partner, joint venturer or in any other capacity, purchase, invest in (other
than in up to 5% of the securities of publicly-owned companies), manage,
accept
employment by, provide consulting services to, serve on the Board of Directors
of, or otherwise become associated with any business that operates restaurants
in Korea, if such restaurants, on average, derive 25% or more of their entrée
sales from the sale of American-style steak. Buyer acknowledges that Seller
intends to open a “Bulgogi Brothers” Korean-style barbeque restaurant, and Buyer
agrees that the opening and operation of such restaurant shall not be considered
a breach of this Section 8.01 so long as such restaurant does not otherwise
on
average, derive 25% or more of their entrée sales from the sale of
American-style steak.
(b) During
the Non-Competition Period, no Seller will directly or indirectly, (i) solicit,
induce, or attempt to persuade any employee of Company or Buyer or their
Affiliates, or any person who was an employee of Company or Buyer or their
Affiliates within the four-month period immediately preceding such solicitation,
to accept employment in any position by a Seller or an Affiliate of a Seller
or
anyone else; provided, however, that advertisements or job postings published
or
broadcasted on television, radio, newspapers or website of a Seller or any
of
its Affiliates and other general solicitations which are not specifically
targeted to the employees of Company or Buyer or their Affiliates shall not
be
deemed a violation of this Section 8.01(b).
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Section
8.02. Confidentiality;
Return of Materials.
(a) Each
Seller acknowledges that all written and oral information he/she has received
with respect to Company’s operations, suppliers, standards, finances, marketing
strategies and personnel is confidential information that is proprietary
either
to Company or to Buyer. Each Seller further agrees that, he/she will not
use any
part of such confidential information for his/her own benefit, or disclose
or
divulge any part of such confidential information to any other person, for
or
without compensation, for so long as such confidential information remains
proprietary and does not become publicly known other than through breach
of a
confidentiality obligation of any person.
(b) On
or
before the Closing Date, and as a further condition to Closing, each Seller
shall return to Company or to Buyer all data, notes, reports, proposals,
lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, or other documents or property, or reproductions of any such items,
and any other materials in his/her possession that contain or refer to such
confidential information, and shall confirm that he/she no longer has any
such
items in his/her possession and shall deliver to Buyer a certificate, signed
by
each Seller and dated the Closing Date, certifying that condition contained
in
this Subsection (b) has been satisfied in full.
Section
8.03. Consideration.
The
parties acknowledge that the provisions of Sections 8.01 and 8.02 are supported
by valuable consideration, and that Buyer’s agreement to purchase the Units for
the Purchase Price is conditioned upon its receipt of the protection provided
in
this Article VIII. The parties further acknowledge that the scope and duration
of the covenants set forth in this Article VIII are in all respects reasonable.
The parties agree that, if Sellers’ non-competition agreement is determined by a
court to be unenforceable as written, such agreement shall be reformed by
the
court to the minimum extent necessary to render it enforceable and, as so
reformed, shall be enforced by the court.
Section
8.04. Equitable
Relief.
Each
Seller acknowledges and agrees that his breach of the agreements in this
Article
VIII could not be adequately compensated with monetary damages, but would
irreparably injure Buyer and Company. Accordingly, Sellers agree that injunctive
relief and specific performance will be appropriate remedies to enforce the
provisions of this Article VIII, and each Seller waives any claim or defense
that an adequate remedy at law for such breach exists. Nothing in this Article
VIII shall limit the remedies, legal or equitable, otherwise available to
Buyer.
Section
8.05. Prior
Obligations.
Subject
to and conditioned upon the occurrence of the Closing, the foregoing provisions
of this Article VIII shall replace and supersede the provisions relating
to
non-competition, non-solicitation and confidentiality to which any Seller
is
subject in connection with (i) franchise agreements, and other agreements
related to such franchise agreements, executed by such Seller in his/her
capacity as Franchisee’s Principal or a Covenantor (as such terms are defined in
such agreements) or in any other capacity, and (ii) any other agreements
with
Buyer, Company or any of their Affiliates. If for any reason the Closing
does
not occur, all such obligations shall remain in effect as if this Agreement
had
never been entered into.
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ARTICLE
IX
MISCELLANEOUS
Section
9.01.
Dispute
Resolution.
(a) Except
as
otherwise expressly provided in this article ix, any claim, controversy
or
dispute (a “dispute”) that arises out of or in relation to this agreement or any
related instrument or agreement that the parties cannot settle by agreement
shall be resolved by binding arbitration in accordance with this
section 9.01.
(b) Either
buyer or sellers (collectively, but not individually) may initiate arbitration
by serving upon the other a notice (i) stating that the notifying party
desires
to have a particular dispute reviewed by a board of three arbitrators,
and (ii)
naming one person whom such party chooses to act as one of the three
arbitrators. Within 15 days after receipt of such a notice, the other party
shall designate one person to act as arbitrator and shall notify the party
requesting arbitration of such designation and the name of the person so
designated. if the party upon whom a request for arbitration is served
fails to
designate its arbitrator within 15 days after receipt of such a notice,
the
arbitrator designated by the party requesting arbitration shall act as
the sole
arbitrator to resolve the dispute.
(c) If
both
parties designate an arbitrator, the two arbitrators shall promptly select
a
third arbitrator who has served on no less than three occasions as an arbitrator
or mediator in disputes involving commercial businesses that operate full
service restaurants outside the united states. if the two arbitrators chosen
by
the parties are not able to agree on a third qualified arbitrator within
30 days
after the second arbitrator is designated, unless such time is extended
by the
parties, either arbitrator, on five days notice to the other, shall apply
to the
international chamber of commerce to designate and appoint the third
arbitrator.
(d) No
arbitrator chosen pursuant to this section 9.01 shall be related to or
affiliated with buyer, any seller, company or any of their respective
affiliates.
(e) The
arbitration proceedings shall be conducted in (i) accordance with and shall
be
subject to the rules of conciliation and arbitration of the international
chamber of commerce in effect from time to time; and (ii) the English language.
The arbitration proceedings shall be conducted at the facilities of and
administered by the international chamber of commerce in Hong Kong, provided
that buyer may, in its discretion, elect to have the arbitration proceedings
conducted in the city in which company’s corporate headquarters are located.
(f) The
decision in writing of the arbitrator(s) shall be (i) in the English language,
and (ii) final and binding. Each party shall bear its own costs and expenses
of
arbitration. Each party shall bear the costs and expenses of the arbitrator
it
has chosen and the costs and expenses of any third arbitrators shall be
shared
50% by buyer and 50% by sellers. Either party may apply to any court having
jurisdiction for an order confirming, or to enforce, the award. Buyer and
sellers both waive any right to judicial action on any matter subject to
arbitration hereunder, except suit to enforce the arbitration
award.
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(g) The
arbitrator(s) shall not extend, modify or suspend any of the terms of this
agreement. a notice of, or request for, arbitration will not operate to
stay,
postpone or rescind the effectiveness of any demand for
performance.
(h) Notwithstanding
the foregoing, actions initiated or maintained by buyer or sellers for
injunctive or other equitable relief are not limited to arbitration and
may be
brought in any court having jurisdiction.
Section
9.02.
Notices.
Any
notice, request, instruction or other document to be given under this Agreement
shall be in writing and shall be delivered by international courier or by
telecopier or e-mail.
Notices
to Buyer shall be addressed or directed to:
|
Outback
Steakhouse International, L.P.
|
0000
Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
XXX
|
Attn:
Xxxx X. Xxxxxxx
|
|
Facsimile
No.: x0 (000) 000-0000
|
|
e-mail:
xxxxx@xxxxxxxxxxx.xxx
|
Notices to Sellers shall be directed to the addresses indicated on the signature
page:
Section
9.03.
Assignment;
Extensions and Waivers.
Either
Buyer or Sellers may, by written instrument, extend the time for the performance
of any of the obligations or other acts of the other party, and (i) waive
any
inaccuracies in the other party’s representations and warranties in this
Agreement or in any document delivered pursuant to this Agreement, and (ii)
waive such other party's performance of any of the obligations set out in
this
Agreement.
Section
9.04. Survival
of Representations and Warranties.
The
representations and warranties of Sellers and Company set forth in Article
II
shall survive for the Escrow Period, regardless of any investigation that
Buyer
may have made prior to the Closing. Similarly, the representations and
warranties of Buyer set forth in Article III shall survive the Closing,
regardless of any investigation that Sellers may have made prior to the
Closing.
Section
9.05.
Indemnification.
a.
Sellers
agree that, notwithstanding any investigation of the assets, properties,
books,
records and business of Company made by or on behalf of Buyer prior to the
Closing, Sellers will promptly indemnify Buyer and Company and will jointly
and
severally hold Buyer and Company harmless from and against all damages, losses
and expenses (including court costs and attorneys' fees) (collectively,
“Losses”) caused by or arising out of any misrepresentation or breach of
warranty made by Sellers concerning a matter stated in this Agreement, the
Financial Statements or a schedule; provided that the aggregate amounts of
Sellers’ indemnification
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12
obligations
related to any Losses sustained by Company or Buyer and Sellers’ liability for
Special Expenses set forth in Section 1.02 shall be limited to and paid through
the Escrow Amount.
b.
Buyer
agrees to indemnify and hold harmless each Seller from and against all Losses
caused by or arising out of any misrepresentation or breach of warranty made
by
Buyer concerning any matter stated in this Agreement or a schedule; provided
that Buyer’s indemnification obligations related to any Losses sustained by
Sellers shall be limited to an amount equal to the Escrow Amount.
Section
9.06.
Entire
Agreement.
This
Agreement and the documents referred to herein set forth all the promises,
agreements, conditions and understandings between and among the parties with
respect to the subject matter of this Agreement, and supersede all prior
and
contemporaneous promises, agreements, conditions and understandings, whether
oral or written, with respect to such subject matter.
Section
9.07.
Governing
Law.
This
Agreement shall be governed by and interpreted in accordance with the laws
of
the United States and the State of Georgia (without giving effect to their
choice of law provisions), except insofar as the laws of Korea apply mandatorily
to matters arising under this Agreement.
Section
9.08.
Further
Assurances .
Each
party agrees to execute and deliver all further instruments and documents
and to
perform all other acts, whether before or after Closing, that may be reasonably
necessary or expedient to further the purposes of this Agreement and, after
the
Closing, to further evidence Buyer’s ownership of and title to the
Units.
Section
9.09.
Counterparts.
This
Agreement may be executed in one or more counterparts, all of which together
shall constitute one and the same instrument.
[**signature
page follows**]
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
BUYER:
OUTBACK
STEAKHOUSE INTERNATIONAL, L.P.,
a
Georgia
limited partnership
|
By:
|
OSI
INTERNATIONAL, INC., its general
partner
|
By: /s/
Xxxx Walther______________________
Name:
Xxxx Walther___________________
Title: _Chief
Administrative Officer__________
SELLERS:
/s/
Eun Tae Chung________________________________
Eun
Xxx
Xxxxx, individually
35,776
Units
Address for
notices: 101-204
Castle Spa Apt.
0000-0
Xxxxxx-xxxx,
Xxxxxx-xx
Xxxxx,
Xxxxx
Email:
____________
Facsimile:
_________
/s/ Xxxx Xxx Yi___________________________________
Xxxx
Xxx
Yi, individually 30,682
Units
Address
for
notices: 137-841
A-701-888-40
Xxxxx
Xxxxxx Park
Bangbae
0
Xxxx
Xxxxxx-xx
Xxxxx,
Xxxxx
Email:
_____________
Facsimile:
__________
/s/ Xxxx Xxx Eoh_____________________________________
Xxxx
Xxx
Eoh, individually 2,942
Units
Address
for
notices: 011-204
Castle Spa Apt.
0000-0
Xxxxxx-xxxx
Xxxxxx-xx
Xxxxx,
Xxxxx
Email:
____________
Facsimile:
_________
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