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Exhibit 4.40
FINAL
STOCK PURCHASE AGREEMENT
BY AND AMONG
OUTBACK STEAKHOUSE INTERNATIONAL, X.X.
XXXXX XXXX XXX, XXXXX XXXX XXX,
XXXX XXX XXX, XXXX XXXX AN, MOON XXXX XXX,
XXXX XXX SHIN, IN XXX XXX, XXXX XXX IM
AND
GREAT FIELD, INC.
FEBRUARY 25, 2000
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TABLE OF CONTENTS
PAGE NO.
ARTICLE I TRANSFER OF SHARES AND PURCHASE PRICE....................... 1
1.01. Agreement to Buy and Sell.................................... 1
1.02. Purchase Price............................................... 1
1.03. Effective Date............................................... 1
ARTICLE II REPRESENTATIONS AND WARRANTIES OF COMPANY AND SELLERS...... 1
2.01. Organization and Good Standing............................... 1
2.02. Power and Authority.......................................... 2
2.03. Authority and Validity....................................... 2
2.04. Capitalization............................................... 2
2.05. Concerning the Shares........................................ 2
2.06. Liability for Company Obligations............................ 3
2.07. Financial Statements......................................... 3
2.08. No Material Adverse Change................................... 3
2.09. Taxes........................................................ 4
2.10. Inventory.................................................... 4
2.11. Accounts and Notes Receivable................................ 4
2.12. Employee Benefit Plans....................................... 4
2.13. Title; Leased Assets......................................... 4
2.14. Litigation................................................... 5
2.15. Corporate Records............................................ 5
2.16. Commitments.................................................. 5
2.17. Items Reflected on Schedule 2.17............................. 5
2.18. Environmental Matters........................................ 6
2.19. Debts........................................................ 6
2.20. Operations................................................... 6
2.21. Labor Relations.............................................. 6
2.22. Insurance.................................................... 6
2.23. Corrupt Practices............................................ 6
2.24. Finder's Fee................................................. 6
2.25. Accuracy of Information Furnished............................ 6
ARTICLE III REPRESENTATIONS AND WARRANTIES OF BUYER................... 7
3.01. Organization and Good Standing............................... 7
3.02. Authorization and Validity................................... 7
3.03. Investment Intent............................................ 7
3.04. No Violation................................................. 7
ARTICLE IV CONDUCT PRIOR TO CLOSING................................... 7
4.01. Business Operations.......................................... 7
4.02. Corporate Transactions....................................... 7
4.03. Third-Party Approvals........................................ 8
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4.04. Obstruction of Purpose....................................... 8
4.05. Reasonable Efforts........................................... 8
4.06. Competing Proposals.......................................... 8
4.07. Access....................................................... 8
4.08. Supplement to Schedules...................................... 8
ARTICLE V CONDITIONS TO CLOSING....................................... 9
5.01. Conditions to Sellers' Obligations........................... 9
5.02. Conditions to Buyer's Obligations............................ 9
ARTICLE VI THE CLOSING................................................ 10
6.01. Closing...................................................... 10
6.02. Execution and Delivery of Closing Documents.................. 10
6.03. Simultaneous Transactions.................................... 10
ARTICLE VII TERMINATION PRIOR TO THE CLOSING.......................... 10
7.01. Termination of Agreement..................................... 10
7.02. Effect of Termination........................................ 11
7.03. Expenses..................................................... 11
7.04. Procedure Upon Termination................................... 11
ARTICLE VIII POST-CLOSING MATTERS..................................... 11
8.01. Discharge of Personal Obligations............................ 11
8.02. Non-Competition and Non-Solicitation......................... 11
8.03. Confidentiality.............................................. 12
8.04. Consideration................................................ 12
8.05. Equitable Relief............................................. 12
ARTICLE IX MISCELLANEOUS.............................................. 12
9.01. Dispute Resolution........................................... 12
9.02. Notices...................................................... 14
9.03. Extensions and Waivers....................................... 15
9.04. Survival of Representations and Warranties................... 15
9.05. Indemnification by Seller.................................... 15
9.06. Entire Agreement............................................. 15
9.07. Cooperation with Buyer's Auditors............................ 15
9.08. Governing Law................................................ 15
9.09. Further Assurances........................................... 16
9.10. Limitations on Actions....................................... 16
9.11. Counterparts................................................. 16
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is entered into on
February 25, 2000, by and among OUTBACK STEAKHOUSE INTERNATIONAL, L.P., a
Georgia limited partnership ("Buyer"); the following individuals, all of whom
reside in Seoul, Korea: XXXXX XXXX XXX, XXXXX XXXX XXX, XXXX XXX XXX, XXXX XXXX
AN, MOON XXXX XXX, XXXX XXX SHIN, IN XXX XXX, AND XXXX XXX IM (individually, a
"Seller" and collectively, the "Sellers"); and GREAT FIELD, INC., a Korea
corporation ("Company").
WHEREAS, Sellers together own 310,600 shares of the common stock,
5,000 won par value, of Company (the "Shares"), constituting approximately 82%
of the issued and outstanding shares of Company's capital stock.
WHEREAS, Sellers desire to sell the Shares to Buyer, and Buyer desires
to purchase the Shares from Sellers, on the terms and conditions set forth in
this Agreement; and
WHEREAS, to accommodate Sellers, Company is willing to make certain
representations, warranties and commitments concerning Company and its affairs;
NOW, THEREFORE, the parties mutually agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
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 Sellers agree to sell, transfer and assign the Shares to Buyer, and
Buyer agrees to purchase the Shares from Sellers.
Section 1.02. Purchase Price. The purchase price for the Shares
("Purchase Price") is U.S. $6,000,000, which Buyer shall pay to Sellers at the
Closing by wire transfer of immediately available funds to an account
designated by Sellers.
Section 1.03. Effective Date. The effective date of the sale and
purchase of the Shares will be January 1, 2000. The transfer of the Shares will
take place at the Closing.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF COMPANY AND SELLERS
Company and Sellers jointly and severally represent and warrant to
Buyer that on the date of this Agreement and on the Closing Date:
Section 2.01. Organization and Good Standing. Company is a
corporation duly organized, validly existing and in good standing under the
laws of Korea and has the requisite power and authority to own or lease its
property and to carry on its business as now being
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conducted. Company is duly licensed or qualified as a corporation in each
jurisdiction in which the nature of its business makes such licensure or
qualification necessary. There is no pending or threatened proceeding for the
dissolution, liquidation, reorganization or rehabilitation of Company.
Section 2.02. Power and Authority. Company possesses all power and
authority (corporate and other), and holds all licenses and permits required by
law, to own, lease and operate its properties and assets and to carry on its
business as currently conducted.
Section 2.03. Authority and Validity. Sellers have the
unrestricted right, power, authority and capacity to execute and deliver this
Agreement, to sell the Shares, 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. The execution, delivery and performance by
Company of this Agreement and any ancillary documents that Company delivers at
the Closing ("Company's Ancillary Documents") have been duly authorized by all
necessary corporate action. This Agreement and Company's Ancillary Documents,
when executed and delivered by Company, will be duly authorized, executed and
delivered, and will constitute valid, legal and binding obligations of Company,
enforceable against Company 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 2.04. Capitalization. Company's authorized capital
consists of 580,000 shares of common stock, 5,000 won par value (the "Common
Stock"), of which 379,000 shares are issued and outstanding. Company is not
authorized to issue any other class or type of capital shares, whether common
or preferred, voting or non-voting. Except as disclosed on Schedule 2.04, (i)
no shares of Common Stock are held by Company as treasury shares, (ii) no
shares of Common Stock are reserved for future issuance for any purpose, and
(iii) there is not authorized or outstanding any option, subscription, warrant,
convertible security, call, right, commitment, contract, understanding, or
other agreement that obligates Company (a) to offer, sell, issue, or grant any
shares of Common Stock or any securities convertible into Common Stock, or (b)
to redeem, purchase or otherwise acquire, or offer to redeem, purchase or
otherwise acquire any shares of Common Stock.
Section 2.05. Concerning the Shares. The Shares represent 81.96%
of the issued and outstanding shares of Company's Common Stock. The Company has
never issued certificates for any of the Shares, and none of the Sellers has in
his possession a stock certificate evidencing any Shares. Each of the Shares 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 Shares
beneficially and of record, and possesses full authority and legal right to
sell, assign, transfer and deliver the entire legal and beneficial ownership of
the Shares, free and clear of all claims, liens and encumbrances, except those
listed and described in Schedule 2.05. As of the Closing Date, no Seller has
issued any options or warrants that cover any of the Shares and no Seller is
not a party
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to any shareholder agreement, voting trust or other agreement that would
prevent such Seller from selling the Shares to Buyer as contemplated in this
Agreement.
Section 2.06. Liability for Company Obligations. Attached to this
Agreement as Schedule 2.06 is a complete list and description of all notes and
other financial obligations and of all leases and other contractual obligations
of Company for which any Seller has accepted personal liability as a co-maker,
guarantor or surety. Except as listed and described in Schedule 2.06, no Seller
is liable as co-maker, guarantor or surety for any financial or contractual
obligation of Company.
Section 2.07. Financial Statements. Company has furnished to Buyer
a balance sheet of Company at December 31, 1999 and an income statement of
Company for the year then ended, both audited by the firm of Ernst & Young (the
"Financial Statements").
(a) The Financial Statements fairly present Company's
financial condition at December 31, 1999 and the results of its operations for
the year then ended in accordance with Korean generally accepted accounting
principles, consistently applied, reconciled to U.S. generally accepted
accounting principles. The Financial Statements reflect no significant items of
income or expense that were unusual or of a nonrecurring nature.
(b) The Company's books and records have been maintained
in accordance with applicable legal and accounting requirements and good
business practices, and the Financial Statements reflect only valid
transactions. All contingent liabilities of and unasserted claims against
Company are fully and accurately reflected in the Financial Statements.
(c) Except for contractual liabilities and obligations
incurred in the ordinary course of business since December 31, 1999, 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. All allowances and
reserves shown in the Financial Statements are appropriate, reasonable and
sufficient to provide for anticipated expenses and losses. 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 2.08. No Material Adverse Change. Since the date of the
Financial Statements, 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 (i)
declared, paid or distributed any dividend or any distribution on or with
respect to the Common Stock; (ii) redeemed or repurchased, or authorized the
redemption or repurchase of, any shares of Common Stock; (iii) incurred any
long-term debt or signed any lease with a term in excess of three years; (iv)
implemented or promised any salary, bonus or compensation increases to any
officers, employees or agents of Company; (v) experienced or been notified of
any pending or threatened labor disputes or other labor problems against or
potentially affecting Company; or (vi) entered into any other transactions,
except in the ordinary course of business and consistent with past practice.
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Section 2.09. Taxes. 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. All taxes shown in such returns,
reports and estimates to be payable have been paid or adequate provision for
their payment has been made. 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. 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 2.10. Inventory. 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. Obsolete or discontinued items do not constitute a material part of
such inventory, materials and supplies. All such inventory items are standard
quality goods, saleable in the ordinary course of business.
Section 2.11. Accounts and Notes Receivable. All accounts, notes,
and other receivables reflected in the balance sheet included in the Financial
Statements or generated by Company on or prior to the Closing Date (including
any accounts and notes receivable from affiliates), are valid and genuine
obligations that arose out of bona fide sales actually made, services actually
performed or loans actually advanced. None of the accounts and notes receivable
are subordinate in right of payment to any other debt, claim or obligation;
none of such accounts and notes receivable are subject to any offsets or claims
of offsets; and none of the obligors of the accounts or notes receivable have
given notice that they will or may refuse to pay any portion of the account or
note.
Section 2.12. Employee Benefit Plans. Schedule 2.12 to this
Agreement contains a complete and accurate list and description of each
pension, retirement, profit sharing or similar benefit plan that Company
provides for any group of its employees (a "Plan"). The current value of the
vested, accrued benefits under each Plan does not exceed the current value of
Plan assets allocable to vested, accrued benefits.
Section 2.13. Real and Personal Property. Schedule 2.13 to this
Agreement (i) accurately lists and describes all parcels of real property that
Company leases or operates (collectively, the "Real Property"), and (ii)
describes in reasonable detail all buildings and other improvements located on
each parcel of Real Property.
(a) Company occupies each parcel of Real Property
pursuant to a valid and enforceable lease that is in full force and effect.
Neither Company nor any landlord is in material default under any such lease
and no event or condition exists which, with the giving of notice, the passage
of time, or both, would constitute a default under any such lease. There are no
lawsuits, condemnation proceedings or other actions pending, threatened or
contemplated that might result in the eviction or dispossession of Company from
the premises covered by any such lease.
(b) Except as otherwise indicated in Schedule 2.13,
Company has good and marketable title (i) to the personal property reflected in
its books and records as being owned by
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it, including the personal property reflected in the Financial Statements
(except for assets subject to financing leases required to be capitalized under
U.S. generally accepted accounting principles, all of which are so reflected in
the Financial Statements or related notes); (ii) to all assets that Company has
purchased since December 31, 1999; (iii) to all assets used by or necessary for
the conduct of Company's business; and (iv) to all computer data files and
electronic media containing stored information used in the business of Company,
whether or not reflected in the Financial Statements or on Company's books and
records (the "Personal Property"). Unless otherwise indicated in Schedule 2.13,
the Personal Property is owned free and clear of any lien, claim or
encumbrance.
(c) All properties and assets material to Company's
operations are reflected on the Financial Statements in the manner and to the
extent required by U.S. generally accepted accounting principles. Immediately
after the Closing, Company will own or lease all assets required for or
necessary to the conduct of its business as conducted before the Closing.
Section 2.14. Litigation. Except as set forth in Schedule 2.14,
there are no pending or, to Company's or any Seller's knowledge, threatened
lawsuits, administrative proceedings or investigations against Company or to
which any of its assets are subject. Company has complied in all material
respects with all laws and regulations applicable to it. Company is not subject
to any order, writ, injunction or decree relating to its operations.
Section 2.15. Corporate Records. Company has delivered true and
correct copies of its articles of incorporation and bylaws to Buyer. The
corporate minute book of Company correctly reflects all corporate action taken
at all the meetings (or by written consent in lieu of a meeting) of Company's
directors and stockholders and correctly record all resolutions adopted by
Company's directors and stockholders.
Section 2.16. Commitments. 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 2.17. Items Reflected on Schedule 2.17. Schedule 2.17 to
this Agreement contains a true and complete list or brief description of:
(a) all current or pending contracts, commitments and
leases (of real or personal property), written or oral, between Company and any
party that involves, in the aggregate, the payment or receipt by Company of
more than 10,000,000 won and that cannot be canceled by Company without penalty
on 30 or less days' notice;
(b) all employee benefit programs (including medical,
profit-sharing or pension plans) and all employee bonus and incentive
compensation arrangements that Company provides to any of its employees;
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(c) any currently effective compensation arrangement
between Company and any Seller; and
(d) all of Company's capital assets with a book value
greater than 50,000,000 won, describing any liens or restrictions on such
assets.
Section 2.18. Environmental Matters. Since its inception, Company
has operated in compliance with all applicable environmental laws and
regulations, and possesses all permits required under applicable environmental
laws and regulations.
Section 2.19. Debts. Except as otherwise disclosed in Schedule
2.19, 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.
Section 2.20. Operations. Company's operations consist exclusively
of the operation of Outback Steakhouse Restaurants in Korea.
Section 2.21. Labor Relations. Except as listed and described in
Schedule 2.21, Company is not a party to any collective bargaining agreements;
is in compliance in all material respects with all applicable laws with respect
to employment and employment practices, terms and conditions of employment, and
wages and work scheduling; is not engaged in any unfair labor practice; and is
not the subject of any actual or threatened labor strike, dispute, slowdown or
stoppage.
Section 2.22. Insurance. Schedule 2.22 lists all insurance
policies that currently insure Company's business or any of its assets against
loss (collectively, the "Insurance Policies"), including each insurer's name,
type of coverage, deductible, coverage limit, expiration date and premium. Each
Insurance Policy listed in Schedule 2.22 is in full force and effect, all
premiums have been paid through the Closing Date, and no notice of cancellation
or termination has been received with respect to any such policy. True and
correct copies of all Insurance Policies have been provided to Buyer.
Section 2.23. Corrupt Practices. Since its inception, neither
Company nor anyone acting on its behalf has offered or made any payment to any
government official to induce such official to take or approve an action or to
overlook an activity or practice that such official was not authorized by law
to take, approve or overlook in the ordinary course of performing such
official's duties.
Section 2.24. Finder's Fee. Neither any Seller nor Company has
incurred any obligation for any finder's, broker's or agent's fee in connection
with the transactions contemplated by this Agreement.
Section 2.25. Accuracy of Information Furnished. All of the
schedules provided by Company and Sellers pursuant to this Agreement are true,
correct and complete in all material respects, and no representation, warranty
or statement made by Company or any Seller in or
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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 Shares for
its own account for investment and not with a view to the resale, distribution
or other disposition of the Shares.
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.
ARTICLE IV
CONDUCT PRIOR TO CLOSING
Section 4.01. Business Operations. Prior to the Closing, Company
will continue to operate in accordance with its current methods of transacting
business and will use its best efforts to preserve the goodwill of employees,
suppliers, customers and others having business dealings with it. Company will
make all normal and customary repairs, replacements and improvements to its
facilities, and will not dispose of any assets other than at fair market value
and in the ordinary course of business.
Section 4.02. Corporate Transactions. Prior to the Closing, Company
will not, without Buyer's prior written consent:
(a) merge or consolidate with or into any entity, or
obligate itself to do so;
(b) declare, set aside or pay any dividend or other
distribution on or in respect of the Common Stock, or redeem, retire or
purchase any of shares of Common Stock;
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(c) pay, discharge or satisfy any lien, charge,
encumbrance or indebtedness to any Seller or any affiliate of any Seller; or
(d) authorize any compensation increases of any kind for
any officer or employee.
Section 4.03. Third-Party Approvals. Prior to the Closing, Company
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 4.04. Obstruction of Purpose. Prior to the Closing,
neither any Seller nor Company 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 Company and Sellers not to be true,
correct and accurate as of the Closing Date.
Section 4.05. Reasonable Efforts. Company and Sellers will take all
reasonable steps within their power to fulfill those conditions to Buyer's
obligations to purchase the Shares that are dependent upon the actions of
Company or Sellers.
Section 4.06. 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 Company or any Seller may receive.
Section 4.07. Access. Prior to the Closing, Company shall provide
Buyer's authorized representatives reasonable access during normal business
hours to all the properties, books, records and documents of Company and shall
furnish to Buyer such financial records and other information with respect to
Company's operations and business as Buyer shall reasonably request. Prior to
the Closing, each Seller shall provide Buyer such information with respect to
his personal guarantees of Company's obligations and his ownership of the
Shares as Buyer may reasonably request.
Section 4.08. Supplement to Schedules. If, between the date of
this Agreement and the Closing Date, Company or 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
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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 Shares 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: (a) the
representations and warranties of Buyer in this Agreement shall be true and
correct at and as of the Closing Date; (ii) 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; and (iii) Sellers shall have received a certificate to
that effect signed by an executive officer of Buyer and dated the Closing Date.
Section 5.02 Conditions to Buyer's Obligations. The obligations of
Buyer to purchase the Shares 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 and
Company 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,
and Buyer shall have received a certificate to such effect, signed by each
Seller, and dated the Closing Date.
(c) Company 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 it at or prior to the Closing,
and Buyer shall have received a certificate to such effect, signed by Company's
chief executive officer, and dated the Closing Date.
(d) Company shall have received the written resignation
of each of Company's directors and employee whose resignation Buyer requests.
(e) Buyer shall have received an opinion from the firm
of Xxx & Ko, counsel for Sellers, satisfactory in form and substance to Buyer's
counsel, with respect to the matters set forth in Sections 2.01, 2.02, 2.03,
2.04, 2.05, 2.13, 2.14 and, to such counsel's knowledge, 2.18.
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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
March 3, 2000 at the offices of Shin & Xxx in Seoul, Korea. The parties may
mutually stipulate a different time, date or place for the Closing, except that
in no event shall the Closing occur later than March 31, 2000. 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,
Sellers and Company shall execute and deliver or perform the following at the
Closing:
(a) Each Seller shall deliver to Buyer a duly executed
stock power or assignment for his Shares in form sufficient to vest title to
the Shares in Buyer, free and clear of all liens, claims and encumbrances;
(b) Buyer shall deliver the Purchase Price to Sellers by
wire transfer of immediately available funds to a bank account designated by
Sellers prior to the Closing Date;
(c) Each party shall execute and deliver the
certificates called for in Article V of this Agreement;
(d) Company shall receive the resignations required by
Section 5.02(c); and
(e) Sellers shall cause their legal counsel to deliver
the legal option required by Section 5.02(d).
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, if it receives information during the
conduct of its due diligence review that reasonably indicates to Buyer that the
value of the Shares is less than the Purchase Price, and Sellers unreasonably
refuse to adjust the Purchase Price by amendment to this Agreement; or
(c) by Buyer or Sellers if the Closing does not occur on
or before March 31, 2000; or
(d) by Buyer, upon a material breach of any
representation, warranty, covenant or agreement on the part of Company or
Sellers set forth in this Agreement, or if any
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representation or warranty of Company or 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.
Section 7.02. Effect of Termination . If this Agreement is
terminated pursuant to Section 7.01, all obligations of Buyer, Sellers and
Company shall terminate, except the obligations of the parties pursuant to
Section 7.04. Further, if Buyer terminates this Agreement on account of a
failure or refusal by Sellers or Company to comply with any of the requirements
of Article IV, or because any representation or warranty of Sellers or Company
is or becomes untrue to a material degree, Sellers shall pay the legal fees and
expenses that Buyer incurred in connection with this Agreement, including legal
fees for the preparation of this Agreement and related documents. In all cases,
the provisions of Section 9.08 will survive the termination of this Agreement.
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 incurs in connection with this Agreement. Sellers agree
that Company shall bear none 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, Sellers or Company. If the
transactions contemplated by this Agreement are terminated:
(a) Buyer and Sellers will return all documents, work
papers and other materials of the other party; and
(b) Buyer and Sellers shall continue to comply with
Paragraphs F and G of their letter of intent dated as of January 31, 2000.
ARTICLE VIII
POST-CLOSING MATTERS
Section 8.01. Discharge of Personal Obligations. Not later than 30
days following the Closing, Buyer will take commercially reasonable steps
either to (i) refinance, (ii) provide a substitute guarantee for, or (iii) pay
any debt or lease obligation that is listed as a personal obligation of any
Seller on Schedule 2.06, and to obtain the Seller's release from liability
under each such obligation. Buyer indemnifies and agrees to hold each of the
Sellers harmless from and against any payments any of them is required to make
or any securities any of them is required to forfeit after the Closing Date
with respect to an obligation listed on Schedule 2.06.
Section 8.02. Non-Competition and Non-Solicitation.
(a) Each Seller especially agrees that, for five years
after the Closing Date (the "Non-Competition Period"), except for services
performed for Company, neither he nor any of his affiliates will, directly or
indirectly, either as an individual, partner, joint venturer
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or in any other capacity, purchase, invest in (other than in up to 1% 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 revenues from the sale of
steak.
(b) During the Non-Competition Period, no Seller will
not, directly or indirectly, (i) solicit, induce, or attempt to persuade any
employee of Company, Buyer or its affiliates or any person who was an employee
of Company or Buyer or its affiliates within the four-month period immediately
preceding such solicitation to accept employment in any position by a Seller or
anyone else.
Section 8.03. Confidentiality. Each Seller acknowledges that all
written and oral information he 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.
Sellers especially agree that, for the longest period permitted by applicable
law, none of them will use any part of such confidential information for his
own benefit, nor will any of them disclose or divulge any part of such
confidential information to any other person, for or without compensation.
Section 8.04. Consideration. The parties acknowledge that the
provisions of Sections 8.02 and 8.03 are supported by valuable consideration,
and that Buyer's agreement to purchase the Shares 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 8.05. 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.
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
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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. THE THIRD ARBITRATOR SHALL ALSO BE AN ATTORNEY HAVING SUBSTANTIAL
EXPERIENCE WITH KOREAN BUSINESS LAW WHO IS LICENSED TO PRACTICE LAW IN KOREA.
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 TOKYO, JAPAN, 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.
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(f) THE DECISION IN WRITING OF THE ARBITRATOR(S) SHALL
BE (I) IN THE ENGLISH LANGUAGE, AND (II) FINAL AND BINDING. THE COSTS AND
EXPENSES OF ARBITRATION SHALL BE BORNE 50% BY BUYER AND 50% BY SELLERS. 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.
(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 Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
e-mail: xxxxx@xxxxxxxxxxx.xxx
Notices to Sellers or Company shall be directed to:
Xx. Xxxxx Xxxx Xxx
Great Field, Inc.
#303 Worim Xxxx.
000-0 Xxxxx-xxxx
Xxxxxxx-xx
Xxxxx, Xxxxx
Facsimile No.: 000-0000-0000
e-mail:
------------------
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Section 9.03. 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 the Closing, 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 by Sellers. 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, but
subject to the limitations expressed in the last two sentences of this Section
9.05, 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 (i) any misrepresentation or breach of
warranty made by Sellers and/or Company concerning a matter stated in this
Agreement or a schedule, (ii) any claim made against Company with respect to
obligations or liabilities that have not been expressly disclosed to Buyer in
writing prior to or at the Closing, (iii) any lawsuit, obligation or other
liability relating to Company arising out of transactions or circumstances
occurring or existing prior to the Closing that are not disclosed in the
Financial Statements or in a schedule to this Agreement. Sellers will have no
obligation to reimburse Buyer for any Losses unless and until Buyer and Company
sustain Losses aggregating U.S. $250,000, but if aggregate Losses at any time
exceed U.S. $249,999, Sellers will be obligated to indemnify, defend and
reimburse Buyer and Company with respect to all Losses, regardless of amount.
Buyer further agrees that it shall not be entitled to indemnification of any
damages, losses or expenses relating to any breach of warranty, covenant or
agreement or inaccurate or erroneous representation, if such breach or
inaccuracy was expressly waived in writing by Buyer prior to or at Closing.
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. Cooperation with Buyer's Auditors. Sellers and
Company agree to cooperate fully with the independent auditors Buyer chooses to
conduct an audit of Company's books and records. Company agrees to execute and
deliver to the auditors such management representation letters as the auditors
may reasonably request in connection with the audit.
Section 9.08. 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
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their choice of law provisions), except insofar as the laws of Korea apply
mandatorily to matters arising under this Agreement.
Section 9.09. 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 Shares.
Section 9.10. Limitations on Actions. No party may demand
arbitration or bring or maintain an action under or with respect to this
Agreement more than 12 months after the Closing.
Section 9.11. Counterparts . This Agreement may be executed in one
or more counterparts, all of which together shall constitute one and the same
instrument.
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: XXXXXXXX INTERNATIONAL, INC.,
its general partner
By:
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
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SELLERS:
----------------------------------------
Xxxxx Xxxx Xxx, individually
----------------------------------------
Young Xxxx Xxx, individually
----------------------------------------
Jong Xxx Xxx, individually
----------------------------------------
Xxxx Xxxx An, individually
----------------------------------------
Moon Xxxx Xxx, individually
----------------------------------------
Xxxx Xxx Shin, individually
----------------------------------------
In Xxx Xxx, individually
----------------------------------------
Xxxx Xxx Im, individually
COMPANY:
GREAT FIELD INC., a Korean corporation
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
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