Asset Purchase Agreement - OS Sea Inc., Bonefish Grill Holdings Inc., Bonefish Grill LLC, Timothy V. Curci and Christopher L. Parker
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
OS SEA, INC.
AND
BONEFISH GRILL HOLDINGS, INC.
BONEFISH GRILL, LLC
TIMOTHY V. CURCI
AND
CHRISTOPHER L. PARKER
DATED OCTOBER ___, 2001
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ASSET PURCHASE AGREEMENT
TABLE OF CONTENTS
1. PURCHASE OF THE SYSTEM.....................................................1
1.1 Purchased Assets.....................................................1
1.2 Purchase Price.......................................................1
1.3 Liabilities Not To Be Assumed .......................................2
1.4 Allocation of Purchase Price.........................................2
2. TRANSFER OF ASSETS ........................................................2
2.1 Definition of Purchased Assets.......................................2
3. ROYALTY....................................................................3
3.1 Royalty..............................................................3
3.2 Termination of Royalty...............................................3
4. REPRESENTATIONS AND WARRANTIES OF THE BG PERSONS...........................4
4.1 General.............................................................4
4.2 Authority...........................................................4
4.3 No Violation........................................................4
4.4 Absence of Liabilities..............................................5
4.5 No Litigation.......................................................5
4.6 Ownership of Purchased Assets.......................................5
4.7 Intellectual Property...............................................5
4.8 Assets Necessary to Business........................................6
4.9 No Brokers or Finders...............................................6
4.10 Disclosure..........................................................6
5. REPRESENTATIONS AND WARRANTIES OF BG PRINCIPALS............................6
5.1 Authority and Validity...............................................6
5.2 Binding Effect.......................................................6
5.3 Ownership............................................................6
5.4 Voting...............................................................7
5.5. Compliance With Other Instruments....................................7
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER.........................7
6.1 Corporate............................................................7
6.2 Authority............................................................7
6.3 No Brokers or Finders................................................7
6.4 Disclosure...........................................................7
6.5 Buyer's Cooperation..................................................7
6.6 Other Action.........................................................8
7. COVENANTS OF BG PERSONS....................................................8
7.1 Noncompetition.......................................................8
7.2 Confidentiality......................................................8
7.3 Non-Solicitation.....................................................8
7.4 Reasonableness of Restrictions; Reformation; Enforcement.............9
7.5 Specific Performance.................................................9
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8. FURTHER COVENANTS OF BG PERSONS............................................9
8.1 Access to Information and Records....................................9
8.2 Conduct of Business Pending the Closing.............................10
8.3 Consents............................................................10
8.4 Other Action........................................................10
8.5 Disclosure..........................................................11
8.6 Name Change.........................................................11
9. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS...............................11
9.1 Representations and Warranties True on the
Closing Date........................................................11
9.2 Compliance With Agreement...........................................11
9.3 Absence of Litigation...............................................11
9.4 Consents and Approvals..............................................11
9.5 Delivery of Closing Documents.......................................11
9.6 Additional Agreements...............................................11
10. CONDITIONS PRECEDENT TO BG PERSONS' OBLIGATIONS...........................11
10.1 Representations and Warranties True on the
Closing Date........................................................11
10.2 Compliance With Agreement...........................................12
10.3 Absence of Litigation...............................................12
10.4 Additional Agreements...............................................12
11. INDEMNIFICATION...........................................................12
11.1 By the BG Persons ..................................................12
11.2 By Buyer............................................................12
11.3 Indemnification of Third-Party Claims...............................12
11.4 Payment.............................................................13
11.5 No Waiver...........................................................13
12. CLOSING...................................................................14
12.1 Closing Date........................................................14
12.2 Place of Closing....................................................14
12.3 Documents to be Delivered by the BG Persons.........................14
12.4 Documents to be Delivered by Buyer..................................14
13. TERMINATION...............................................................15
13.1 Right of Termination Without Breach.................................15
13.2 Termination for Breach..............................................15
14. MISCELLANEOUS.............................................................16
14.1 Disclosure Schedules................................................16
14.2 Further Assurance...................................................16
14.3 Disclosures and Announcements.......................................16
14.4 Assignment; Parties in Interest.....................................16
14.5 Governing Law ......................................................16
14.6 Consent to Personal Jurisdiction and Venue; Waiver of Jury Trial;
Attorney's Fees.....................................................17
14.7 Amendment and Modification..........................................17
14.8 Notice..............................................................17
14.9 Expenses............................................................18
14.10 Entire Agreement....................................................18
14.11 Counterparts........................................................19
14.12 Headings............................................................19
II
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is dated
this ___ day of October, 2001, and entered into by and between OS SEA, INC., a
Florida corporation ("Buyer"), BONEFISH GRILL, LLC, a Florida limited liability
company ("Seller"), BONEFISH GRILL HOLDINGS, INC., a Florida corporation
("BGH"), TIMOTHY V. CURCI, an individual residing in the state of Florida
("Curci"), and CHRISTOPHER L. PARKER, an individual residing in the state of
Florida ("Parker"). Curci and Parker are referred to herein individually and
collectively as the "BG Principals". Seller, BGH and the BG Principals are
hereinafter sometimes collectively referred to as the "BG Persons". All
capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to such terms in that certain Limited Liability
Company Agreement of OSS/BG, LLC, a Delaware limited liability company, of even
date herewith.
RECITALS
A. The BG Principals own all of the issued and
outstanding capital stock of BGH, and BGH owns all the issued and outstanding
member interests in Seller.
B. Seller has created and is the owner of the Bonefish
Grill restaurant operating system, including certain trademarks, recipes and
operating systems.
C. Seller is the owner of all of the issued and
outstanding member interests of Bonefish Grill of St. Petersburg, LLC, a
Florida limited liability company ("St. Pete") and Bonefish Grill of Safety
Harbor, LLC, a Florida Limited liability company ("Safety Harbor"), and Seller
is the owner of fifty-one percent (51%) of the issued and outstanding member
interests of Bonefish Grill of Sarasota, LLC, a Florida limited liability
company ("Sarasota"). (St. Pete, Safety Harbor and Sarasota are sometimes
herein individually referred to as a "Subsidiary" and collectively as the
Subsidiaries").
D. Each Subsidiary operates one Bonefish Grill
restaurant (the "Restaurants").
E. Pursuant to the provisions hereof, Buyer desires to
purchase from Seller, and Seller desires to sell to Buyer, all right, title and
interest in and to the Bonefish Grill restaurant operating system.
NOW THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and intending to be legally bound hereby, the parties hereto agree
as follows.
1. PURCHASE OF THE SYSTEM.
1.1 Purchased Assets. Subject to the terms and conditions of this
Agreement, on the Closing Date (as defined in SECTION 12.1), Seller shall sell,
transfer, convey, assign and deliver to Buyer, and Buyer shall purchase and
accept, all of Seller's right, title and interest in and to the System (which
includes the Marks and the Intellectual Property), as hereinafter defined, (the
"Purchased Assets"), free and clear of any liens, claims, or encumbrances
whatsoever. The Purchased Assets shall include those assets defined, listed or
described in SECTION 2 hereof.
1.2 Purchase Price. The Purchase Price for the Purchased Assets
shall be One Million Five Hundred Thousand Dollars ($1,500,000). On the Closing
Date, the Purchase Price shall be paid in the form of certified or bank
cashier's check payable to the order of Seller, or at Seller's option, by wire
transfer of immediately available funds to an account designated by Seller.
1.3 Liabilities Not to be Assumed. As used in this Agreement, the
term "Liability" shall mean and include any direct or indirect indebtedness,
guaranty, endorsement, claim, loss, damage, deficiency, cost,
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expense, obligation or responsibility, fixed or unfixed, known or unknown,
asserted or unasserted, liquidated or unliquidated, secured or unsecured. Buyer
is not assuming any Liabilities of Seller whatsoever and all such Liabilities
shall be and remain the responsibility of Seller.
1.4 Allocation of Purchase Price. The aggregate Purchase Price
shall be allocated among the Purchased Assets for tax purposes in accordance
with the provisions of Section 1060 of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder. Seller and Buyer will follow and use
such allocation in all tax returns, filings or other related reports made by
them to any governmental agencies. To the extent that disclosures of this
allocation are required to be made by the parties to the Internal Revenue
Service ("IRS"), Buyer and Seller will disclose such reports to the other prior
to filing with the IRS.
2. TRANSFER OF ASSETS
2.1 Definition of Purchased Assets. The Purchased Assets shall
include:
2.1(a) System - The "System" means the techniques, know-how,
designs, decor, recipes and methods owned by Seller and used in connection with
the development, construction, operation and marketing of Bonefish Grill
restaurants, and collateral products and activities, and the distinctive menu,
cuisine, culinary style and services provided in Bonefish Grill restaurants,
including, without limitation, the Intellectual Property and Marks.
2.1(b) Marks - The "Marks" means the trademark and service
mark "Bonefish Grill", and such other trademarks, service marks, trade dress,
logos, symbols and indicia of origin owned by Seller and used in connection with
the operation of Bonefish Grill restaurants, and the promotion, distribution and
sale of collateral products, and all registrations and applications for
registrations thereof.
2.1(c) Intellectual Property - "Intellectual Property" means
all intellectual property owned by Seller and used in connection with the
development, construction, operation, marketing and promotion of Bonefish Grill
restaurants and collateral products and activities, including, without
limitation:
(i) All manuals, recipes, procedures,
standards, specifications, databases, customer and supplier
lists, training materials, ideas, research and development,
know-how, formulas, patterns, compilations, programs,
devices, methods, compositions, manufacturing processes and
techniques, technical data, designs, drawings,
specifications, pricing and cost information and business and
marketing plans and materials;
(ii) All Marks together with all translations,
adaptations, derivations, and combinations thereof and
including all goodwill associated therewith, and all
applications, registrations and renewals in connection
therewith;
(iii) All inventions (whether patentable or
unpatentable and whether or not reduced to practice), all
improvements thereto, and all patents, patent applications
and patent disclosures, together with all reissuances,
continuations, continuations-in-part, revisions, extensions
and reexaminations thereof;
(iv) All copyrightable works, all copyrights,
and all applications, registrations and renewals in
connection therewith;
(v) All computer software including data and
related documentation;
(vi) All other proprietary rights of whatever
kind or character;
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(vii) All copies and tangible embodiments of any
of the foregoing, in whatever form or medium.
2.1(d) Collateral Products and Activities. The Purchased
Assets include the exclusive ownership of and right to exploit the
System, Marks and Intellectual Property in any and all activities,
products, lines of commerce and channels of distribution, regardless
of whether such activities, products, lines of commerce or channels of
distribution involve the operation of restaurants.
2.1(e) Computer Software. All proprietary computer source
codes, programs and other software owned by Seller, including all
machine readable code, printed listings of code, documentation and
related property and information relating to the System.
2.1(f) Literature. All menus, sales literature and
promotional literature and similar materials.
2.1(g) Records and Files. All records, files, invoices,
supplier lists, blueprints, specifications, designs, drawings,
accounting records, business records, operating data and other data
relating to the System.
3. ROYALTY
3.1 Royalty. The parties acknowledge that an Affiliate of Buyer
has employed each of the BG Principals pursuant to separate Employment
Agreements of even date herewith. During the employment of the BG Principals
with Buyer or any Affiliate of Buyer, Buyer shall pay to Seller a royalty from
each "OSS Restaurant" in an amount equal to one percent (1%) of Adjusted Gross
Sales ("Royalty"). For purposes of this Agreement an "OSS Restaurant" shall
mean any Bonefish Grill restaurant in which none of (i) Seller, BGH, or any BG
Principal; or (ii) any entity in which Seller, BGH or any BG Principal or any
immediate family member of a BG Principal owns an ownership or beneficial
interest, directly or indirectly through one or more subsidiary entities; own,
directly or indirectly through one or more subsidiary entities, any equity
interest, (other than ownership of capital stock of Outback Steakhouse, Inc., a
Delaware corporation and Affiliate of Buyer). For purposes of this Agreement
"Adjusted Gross Sales" shall mean gross sales reduced by (i) discounts and
complimentary food and beverages, (ii) sales and other taxes and surcharges
collected for transmittal to taxing authorities, (iii) revenues received from
the sale of gift certificates until redeemed, and (iv) revenue from catering
activities done for charitable, marketing or community involvement purposes.
The Royalty shall be payable no less frequently than quarterly.
3.2 Termination of Royalty. Upon termination of either BG
Principal's employment with Buyer (or any Affiliate of Buyer), for whatever
reason other than a wrongful termination by the Employer, the Royalty shall
terminate effective immediately upon the termination of either BG Principal's
employment with Buyer or Buyer's Affiliate, and Buyer shall pay to Seller,
within forty-five (45) days of such termination, a Royalty termination fee in
an amount equal to five (5) times the amount of the Royalty payable to Seller
during the twelve full calendar months immediately preceding the month of
termination of either BG Principal's employment with Buyer. If either BG
Principal's employment with Buyer is terminated within twelve calendar months
of the date of this Agreement, then the amount of the Royalty termination fee
payable pursuant to this SECTION 3.2 shall be annualized in an equitable manner
based on the actual number of days of continued employment by each of the BG
Principals.
4. REPRESENTATIONS AND WARRANTIES OF THE BG PERSONS
Each BG Person represents and warrants to Buyer that each of the
following is true and correct in all material respects as of the Closing Date,
except to the extent identified in disclosure schedules attached to or
accompanying this Agreement (the "Disclosure Schedules").
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4.1 General.
4.1(a) Organization. BGH is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Florida. Seller is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Florida.
The Articles of Incorporation and By-Laws of BGH attached hereto as
EXHIBIT 4.1(A) are true and accurate copies thereof and same are in
full force and effect and have not be modified or amended. The
Operating Agreement of Seller attached hereto as EXHIBIT 4.1(A) is a
true and correct copy thereof and same is in full force and effect and
has not been modified or amended.
4.1(b) Power. Each of BGH and Seller have all requisite
power and authority to own, operate and lease its properties, to carry
on its businesses as and where such are now being conducted.
4.1(c) Qualification. Each of BGH and Seller is duly
licensed or qualified to do business as a foreign entity, and it is in
good standing, in each jurisdiction wherein the character of the
properties owned or leased by is, or the nature of its business, makes
such licensing or qualifications necessary.
4.1(d) Subsidiaries. BGH does not own any interest in any
corporation, partnership, limited liability company or other entity,
except for ownership of all of the issued and outstanding member
interests of Seller. Seller does not own any interest in any
corporation, partnership, limited liability company or other entity,
except for ownership of: (i) all of the issued and outstanding member
interests in St. Pete, (ii) all of the issued and outstanding member
interests in Safety Harbor, and (iii) fifty-one percent (51%) of the
member interests in Sarasota.
4.2 Authority. The execution and delivery of this Agreement and
the other documents and instruments to be executed and delivered by BGH and
Seller pursuant hereto and the consummation of the transactions contemplated
hereby and thereby have been duly authorized by all necessary member or manager
action on the part of BGH and Seller. No other or further act or proceeding on
the part of BGH and Seller is necessary to authorize this Agreement or the
other documents and instruments to be executed and delivered by BGH and Seller
pursuant hereto or the consummation of the transactions contemplated hereby and
thereby. This Agreement constitutes, and when executed and delivered, the other
documents and instruments to be executed and delivered by BGH and Seller
pursuant hereto will constitute, valid binding agreements of BGH and Seller,
enforceable in accordance with their respective terms, except as such may be
limited by bankruptcy, insolvency, reorganization or other laws affecting
creditors' rights generally, and the availability of equitable remedies may be
limited by general equitable principles.
4.3 No Violation. Neither the execution and delivery of this
Agreement or the other documents and instruments to be executed and delivered
by BGH and Seller pursuant hereto, nor the consummation by BGH and Seller of
the transactions contemplated hereby and thereby (a) will violate any
applicable Law or Order, (b) will require any authorization, consent, approval,
exemption or other action by or notice to any Government Entity, or (c) will
violate or conflict with, or constitute a default or breach (or an event which,
with notice or lapse of time, or both, would constitute a default or breach)
under, or will result in the termination of, or accelerate the performance
required by, or result in the creation of any Lien (as defined in SECTION
4.6(B)) upon any of the Purchased Assets under any term or provision of the
organizational documents of BGH and Seller or of any contract, commitment,
understanding, arrangement, agreement or restriction of any kind or character
to which BGH and Seller is a party or by which BGH and Seller or any of the
Purchased Assets may be bound or affected.
4.4 Absence of Liabilities. Seller and BGH do not have any
Liabilities that would in any manner impair the Purchased Assets or result in
any Lien on any of the Purchased Assets. The BG Principals have no knowledge of
any basis for the assertion against Seller and BGH of any Liability and to the
knowledge of the
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BG Principals, there are no circumstances, conditions, happenings, events or
arrangements, contractual or otherwise, which may give rise to Liabilities that
would a material adverse effect on the Purchased Assets.
4.5 No Litigation. There is no Litigation pending or, to the
knowledge of the BG Principals, threatened against any BG Person or their
respective businesses or assets, nor do the BG Principals know, or have grounds
to know, of any basis for any such Litigation.
4.6 Ownership of Purchased Assets.
4.6(a) Exclusive Ownership. Seller is the sole and exclusive
owner of the Purchased Assets. Except for that certain West Florida Development
Option Agreement dated January 1, 2001 (the "Development Agreement") by and
between Seller and John L. Mays, no person or entity other than Seller has or
has been granted any franchise, right or license of any kind, written or oral,
to use any part of the Purchased Assets in any manner. Except for that certain
Restaurant Operating Agreement dated January 1, 2001 (the "Restaurant Operating
Agreement") by and between Seller and Sarasota (which prohibits development of
another Bonefish Grill restaurant within a five (5) mile radius of the
restaurant operated by Sarasota), there is no oral or written agreement,
contract, commitment, understanding or obligation which in any manner restricts
Seller's rights to develop, own and operate Bonefish Grill restaurants in any
manner.
4.6(b) Title to Purchased Assets. Seller has, and will have
on the Closing Date, good and valid title to all the Purchased Assets, free and
clear of all mortgages, liens (statutory or otherwise), security interests,
claims, pledges, licenses, equities, options, conditional sales contracts,
assessments, levies, covenants, charges or encumbrances of any nature
whatsoever, perfected or unperfected (collectively "Liens"). None of the
Purchased Assets are subject to any restrictions with respect to the
transferability thereof. Seller has complete and unrestricted power and right to
sell, assign, convey and deliver the Purchased Assets to Buyer as contemplated
hereby. On the Closing Date, Buyer will receive good and valid title to all the
Purchased Assets, free and clear of all Liens of any nature whatsoever.
4.6(c) Burdensome or Restrictive Agreements. No BG Person
is a party to or bound by any agreement requiring it to assign any
interest in any trade secret or proprietary information, or
prohibiting or restricting it from competing in any business or
geographical area or soliciting customers or otherwise restricting it
from carrying on its business anywhere in the world.
4.6(d) No Default. To the knowledge of the BG Principals,
Seller is not in default under any agreement, contract or commitment,
nor has any event or omission occurred which through the passage of
time or the giving of notice, or both, would constitute a default
thereunder or cause the acceleration of any of its obligations or
result in the creation of any Lien on any of the Purchased Assets
4.7 Intellectual Property. In order to operate Bonefish Grill
Restaurants as such are currently being operated by the Subsidiaries, Seller
and the Subsidiaries do not require the rights to any intellectual property
other than the Purchased Assets, except for commonly available intellectual
property licensed by the Subsidiaries in the ordinary course of business.
Except as set forth in DISCLOSURE SCHEDULE ITEM 4.7, to the knowledge of the BG
Principals, Seller and the Subsidiaries are not infringing and have not
infringed any intellectual property of another in the operation of the Bonefish
Grill restaurants nor is any other person infringing the intellectual property
of Seller and the Subsidiaries. Except as disclosed on DISCLOSURE SCHEDULE 4.7,
the BG Persons have not granted any license or made any assignment of its
rights in any intellectual property. The BG Persons do not pay any royalties or
other consideration for the right to use any intellectual property of others,
except for commonly available intellectual property licensed by the
Subsidiaries in the ordinary course of business. There is no Litigation pending
or threatened to challenge Seller's right, title and interest with respect to
its continued use of any intellectual property or any of the Purchased Assets.
All Purchased Assets of Seller which constitute intellectual property are
valid, enforceable and in good standing, and there are no equitable defenses to
enforcement based on any act or omission of Seller.
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4.8 Assets Necessary to Business. The Purchased Assets include
all intellectual property comprising the Bonefish Grill restaurant operating
system, except for commonly available intellectual property licensed by the
Subsidiaries in the ordinary course of business.
4.9 No Brokers or Finders. No BG Person nor any of their
respective managers, officers, employees, members or agents have retained,
employed or used any broker or finder in connection with the transaction
provided for herein or in connection with the negotiation thereof.
4.10 Disclosure. No representation or warranty by the BG Persons
in this Agreement, nor any statement, certificate, schedule, document or
exhibit hereto furnished or to be furnished by or on behalf of the BG Persons
pursuant to this Agreement or in connection with the transactions contemplated
hereby, contains or shall contain (when considered in light of the entirety of
all information provided by the BG Persons to Buyer) any misstatement of any
material fact or omits any material fact necessary to make the statements
contained therein not misleading. The BG Persons shall not be deemed to have
made to Buyer any representation or warranty other than those expressly set
forth in SECTION 4.1 through SECTION 4.13 above.
5. REPRESENTATIONS AND WARRANTIES OF BG PRINCIPALS
In addition to the representations and warranties contained in SECTION
4, each BG Principal represents and warrants to Buyer as follows:
5.1 Authority and Validity. He has the capacity and authority to
execute, deliver and perform this Agreement and all other agreements and
documents he is executing or will execute in connection herewith or therewith.
5.2 Binding Effect. This Agreement and the other documents
executed or to be executed by him in connection with this Agreement have been
or will have been duly executed and delivered by him and are or will be, when
executed and delivered, his legal, valid and binding obligations enforceable in
accordance with their terms except that:
5.2(a) enforceability may be limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights; and
5.2(b) the availability of equitable remedies may be
limited by equitable principles of general applicability.
5.3 Ownership. The BG Principals are the sole record and
beneficial shareholders of BGH and no other person has any rights (in any form)
to acquire any capital stock of BGH.
5.4 Voting. Each BG Principal acknowledges that in his individual
capacity as shareholder and director of BGH, he has voted in favor of the
execution and delivery of this Agreement.
5.5 Compliance with Other Instruments. Neither the execution and
delivery by him of this Agreement, nor the consummation by him of the
transactions contemplated hereby and thereby will violate, breach, be in
conflict with or constitute a default under or permit the termination or the
acceleration of maturity of or result in the imposition of any lien, claim or
encumbrance upon any material property or asset of any BG Principal pursuant to
any note, bond, indenture, mortgage, deed of trust, evidence of indebtedness,
loan or lease agreement, other agreement or instrument (including with
customers), judgment order, injunction or decree by which any BG Principal is
bound, to which he is a party or to which he is subject.
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6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER
Buyer represents and warrants to the BG Persons that each of the
following is true and correct in all material respects as of the Closing Date.
6.1. Corporate.
6.1(a) Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Florida.
6.1(b) Corporate Power. Buyer has all requisite corporate
power to enter into this Agreement and the other documents and
instruments to be executed and delivered by Buyer and to carry out the
transactions contemplated hereby and thereby.
6.2 Authority. The execution and delivery of this Agreement and
the other documents and instruments to be executed and delivered by Buyer
pursuant hereto and the consummation of the transactions contemplated hereby
and thereby have been duly authorized by the Board of Directors of Buyer. No
other corporate act or proceeding on the part of Buyer or its shareholders is
necessary to authorize this Agreement or the other documents and instruments to
be executed and delivered by Buyer pursuant hereto or the consummation of the
transactions contemplated hereby and thereby. This Agreement constitutes, and
when executed and delivered, the other documents and instruments to be executed
and delivered by Buyer pursuant hereto will constitute, valid and binding
agreements of Buyer, enforceable in accordance with their respective terms,
except as such may be limited by bankruptcy, insolvency, reorganization or
other laws affecting creditors' rights generally, and by general equitable
principles.
6.3 No Brokers or Finders. Neither Buyer nor any of its
directors, officers, employees or agents have retained, employed or used any
broker or finder in connection with the transaction provided for herein or in
connection with the negotiation thereof.
6.4 Disclosure. No representation or warranty by Buyer in this
Agreement, nor any statement, certificate, schedule, document or exhibit hereto
furnished or to be furnished by or on behalf of Buyer pursuant to this
Agreement or in connection with transactions contemplated hereby, contains or
shall contain any untrue statement of material fact or omits or shall omit a
material fact necessary to make the statements contained therein not
misleading.
6.5. Buyer's Cooperation. Buyer shall use its best efforts to
cooperate with the BG Persons in obtaining the consents referred to in SECTION
8.3 hereof.
6.6 Other Action. The Buyer shall use its best efforts to cause
the fulfillment at the earliest practicable date of all the conditions to the
parties' obligations to consummate the transactions contemplated in this
Agreement.
7. COVENANTS OF BG PERSONS
7.1 Noncompetition. During all times in which any Royalty is
payable under SECTION 3 of this Agreement, and for a two (2) year period
commencing on termination of the Royalty, Seller, BGH, each BGH Principal and
their respective Affiliates shall not, individually or jointly with others,
directly or indirectly, whether for his, her or its own account or for that of
any other person or entity, engage in or own or hold any ownership interest in,
have any interest in or lend any assistance to, any seafood restaurant or any
person or entity engaged in a business owning, operating, franchising or
controlling a seafood restaurant business, regardless of the geographic
location of such person, entity or business, and neither Seller, BGH, and BGH
Principal or their respective Affiliates shall act as an officer, director,
employee, partner,
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independent contractor, consultant, principal, agent, proprietor, or in any
other capacity for, nor lend any assistance (financial or otherwise) or
cooperation to, any such person, or entity; PROVIDED, HOWEVER, that it shall
not be a violation of this SECTION 7.1 for Seller, BGH, each BGH Principal or
their respective Affiliates to own a one percent (1%) or smaller interest in
any corporation required to file periodic reports with the Securities and
Exchange Commission under the Securities Exchange Act of 1934, or successor
statute. For purposes of this SECTION 7, the term "seafood restaurant" shall
mean any restaurant for which: (i) the word "seafood" or any item of seafood or
any word connotating seafood, or any type of body of water, is used in its
name; or (ii) the sale of seafood is regularly featured in its advertising or
marketing efforts, or (iii) the sale of seafood constitutes thirty percent
(30%) or more of its entree sales, computed on a dollar basis. For purposes of
this Agreement, the term "seafood" shall mean and include all marine life
forms, whether or not edible, and any part of any marine life form (for
example, "shells", "fins", "claws").
7.2 Confidentiality.
7.2(a) Definition. For the purpose of this Agreement,
"Proprietary Information" shall include that part of the Purchased
Assets that consists of all information which reasonably would be
considered proprietary or confidential to the business of operating
Bonefish Grill restaurants including but not limited to suppliers,
customers, trade or industrial practices, marketing and technical
plans, technology, personnel, organization or internal affairs, plans
for products and ideas, recipes, menus, wine lists and proprietary
techniques and other trade secrets. Notwithstanding the foregoing,
"Proprietary Information" shall not include information which has
entered the public domain.
7.2(b) No Disclosure, Use, or Circumvention. The BG Persons
and their respective members and Affiliates shall not disclose any
Proprietary Information to any third parties. Except in connection
with their employment with Buyer or Buyer's Affiliates, or in their
capacities as Members or Managers of OSS/BG, LLC, a Delaware limited
liability company, or its Affiliates, the BG Persons will not use any
Proprietary Information in the BG Persons' business or any affiliated
business without the prior written consent of the Buyer and then only
to the extent specified in that consent. Consent may be granted or
withheld at the sole discretion of the Buyer.
7.2(c) Maintenance of Confidentiality. The BG Persons shall
take all steps reasonably necessary or appropriate to maintain the
confidentiality of the Proprietary Information in accordance with this
Agreement.
7.3 Non-Solicitation. During all times in which any Royalty is
payable under SECTION 3 of this Agreement, and for a two-year period commencing
on termination of the Royalty, Seller, BGH, each BGH Principal and their
respective Affiliates shall not offer employment to any employee of the Buyer
or its Affiliates or otherwise solicit or induce any employee of the Buyer or
its Affiliates to terminate his or her employment, nor shall Seller, BGH, any
BGH Principal or any of their respective Affiliates act as partner, consultant,
agent, owner or part owner, for any person or entity which solicits or
otherwise induces any employee of the Buyer or its Affiliates to terminate his
or her employment with the Buyer, except for non-management personnel recruited
through general solicitations in print or other media.
7.4 Reasonableness of Restrictions; Reformation; Enforcement. The
parties hereto recognize and acknowledge that the geographical and time
limitations contained in SECTIONS 7.1, 7.2 and 7.3 hereof are reasonable and
properly required for the adequate protection of the Buyer's interests. It is
agreed by the parties hereto that if any portion of the restrictions contained
in SECTIONS 7.1, 7.2 or 7.3 are held to be unreasonable, arbitrary, or against
public policy, then the restrictions shall be considered divisible, both as to
the time and to the geographical area, with each month of the specified period
being deemed a separate period of time and each radius mile of the restricted
territory being deemed a separate geographical area, so that the lesser period
of time or geographical area shall remain effective so long as the same is not
unreasonable, arbitrary, or against public policy. The parties hereto agree
that in the event any court of competent jurisdiction
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determines the specified period or the specified geographical area of the
restricted territory to be unreasonable, arbitrary, or against public policy, a
lesser time period or geographical area that is determined to be reasonable,
nonarbitrary, and not against public policy may be enforced. If any of the
covenants contained herein are violated and if any court action is instituted
by the Buyer to prevent or enjoin such violation, then the period of time
during which the business activities shall be restricted, as provided in this
Agreement, shall be lengthened by a period of time equal to the period between
the date of the breach of the terms or covenants contained in this Agreement
and the date on which the decree of the court disposing of the issues upon the
merits shall become final and not subject to further appeal.
7.5 Specific Performance. The parties agree that a breach of any
of the covenants contained in SECTIONS 7.1, 7.2 and 7.3 hereof will cause
irreparable injury to the Buyer for which the remedy at law will be inadequate
and would be difficult to ascertain and therefore, in the event of the breach
or threatened breach of any such covenants, the Buyer shall be entitled, in
addition to any other rights and remedies it may have at law or in equity, to
obtain an injunction to restrain any threatened or actual activities in
violation of any such covenants. The parties hereby consent and agree that
temporary and permanent injunctive relief may be granted in any proceedings
that might be brought to enforce any such covenants without the necessity of
proof of actual damages, and in the event the Buyer does apply for such an
injunction, that the Buyer has an adequate remedy at law shall not be raised as
a defense.
8. FURTHER COVENANTS OF BG PERSONS
The BG Persons covenant and agree as follows:
8.1 Access to Information and Records. Prior to the Closing Date,
the BG Persons shall give Buyer, its counsel, accountants and other
representatives (i) access during normal business hours to all of the
properties, books, records, contracts and documents of the Seller relating to
the Purchased Assets for the purpose of such inspection, investigation and
testing as Buyer deems appropriate (and Seller shall furnish or cause to be
furnished to Buyer and its representatives all information with respect to the
business and affairs of Seller as Buyer may request); (ii) access to employees,
agents and representatives for the purposes of such meetings and communications
as Buyer reasonably desires; and (iii) access to vendors, customers,
manufacturers of its machinery and equipment, and others having business
dealings with Seller. Through the Closing Date, the Buyer and its Affiliates
shall not disclose any Proprietary Information obtained pursuant to this
paragraph to any third parties and until the Closing Date will not use any such
Proprietary Information in the Buyer's business or any affiliated business
without the prior written consent of the Seller and then only to the extent
specified in that consent. Consent may be granted or withheld at the sole
discretion of the Seller. The Buyer shall not contact any suppliers, customers,
employees, affiliates or associates to circumvent the purposes of this
provision. The Buyer shall take all steps reasonably necessary or appropriate
to maintain the strict confidentiality of the Proprietary Information through
the Closing Date.
8.2 Conduct of Business Pending the Closing. From the date hereof
until the Closing Date, except as otherwise approved in writing by Buyer, which
approval shall not be unreasonably withheld:
8.2(a) No Changes. Seller will cause the Subsidiaries, in
all material respects, to carry on their business diligently and in
the same manner as heretofore and will not make or institute any
material changes in its methods of purchase, sale, management,
accounting or operation.
8.2(b) Maintain Organization. The Seller will take such
action as may be necessary to maintain, preserve, renew and keep in
favor the material rights and franchises of the Subsidiaries and will
use its commercially reasonable best efforts, to the extent material
hereto, to preserve the business organization of the Subsidiaries
intact, to keep available to Buyer the present officers and employees,
and to preserve for Buyer its present relationships with suppliers and
customers and others having business relationships with the
Subsidiaries.
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8.2(c) No Breach. The BG Persons will not do or omit any act,
or permit any omission to act, which would reasonably be expected to
cause a breach of any material contract, commitment or obligation, or
any breach of any representation, warranty, covenant or agreement made
by the BG Persons herein.
8.2(d) No Material Contracts. No contract or commitment will
be entered into, by or on behalf of the BG Persons, except contracts,
commitments, purchases or sales which are in the ordinary course of
business and consistent with past practice, are not material to the BG
Persons (individually or in the aggregate) and would not have been
required to be disclosed in the Disclosure Schedule had they been in
existence on the date of this Agreement.
8.2(e) No Organizational Changes. Seller shall not
materially amend its Operating Agreement or make any changes in
ownership percentages.
8.2(f) Maintenance of Insurance. Seller shall cause the
Subsidiaries to maintain all of the insurance in effect as of the date
hereof.
8.2(g) No Negotiations. The BG Persons will not directly or
indirectly (through a representative or otherwise) solicit or furnish
any information to any prospective buyer, commence, or conduct
presently ongoing, negotiations with any other party or enter into any
agreement with any other party concerning the sale of the Purchased
Assets, Seller's or any Subsidiary's assets or business or any part
thereof or any membership interest in Seller or any Subsidiary (an
"acquisition proposal"), and the BG Persons shall immediately advise
Buyer of the receipt of any acquisition proposal.
8.3 Consents. The BG Persons will use commercially reasonable
efforts to obtain all consents necessary for the consummation of the
transactions contemplated hereby prior to the Closing Date.
8.4 Other Action. The BG Persons shall use commercially
reasonable efforts to cause the fulfillment at the earliest practicable date of
all of the conditions to the parties' obligations to consummate the
transactions contemplated in this Agreement.
8.5 Disclosure. Through the Closing Date, the BG Persons shall
have a continuing obligation to promptly notify Buyer in writing with respect
to any matter hereafter arising or discovered which, if existing or known at
the date of this Agreement, would have been required to be set forth or
described in the Disclosure Schedule, but no such disclosure shall cure any
breach of any representation or warranty which is inaccurate.
8.6 Name Change. Within thirty (30) days after the Closing Date,
Seller and BGH shall change their names to names that do not include the word
"Bonefish". From and after the Closing Date, no BG Person shall have the right
to use the word "Bonefish" in their entity name.
8.7 Termination of AmSouth Loan. The BG Persons covenant that no
amounts are outstanding and no amounts will be borrowed under that certain
Master Note for Business and Commercial Loan dated July 18, 2001 in the maximum
principal amount of One Million Dollars ($1,000,000) (the AmSouth Loan")
between AmSouth Bank, as lender, BGH, as borrower, and St. Pete and Safety
Harbor, as guarantors. The BG Persons further covenant and agree that the
AmSouth Loan will be terminated and cancelled in its entirety within five (5)
business days from the Closing Date.
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9. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS
Each and every obligation of Buyer to be performed on the Closing Date
shall be subject to the satisfaction prior to or on the Closing Date of each of
the following conditions:
9.1 Representations and Warranties True on the Closing Date. Each
of the representations and warranties made by the BG Persons in this Agreement,
and the statements contained in the Disclosure Schedule or in any instrument,
list, certificate or writing delivered by the BG Persons pursuant to this
Agreement, shall be true and correct in all material respects as of the Closing
Date, except for any changes permitted by the terms of this Agreement or
consented to in writing by Buyer.
9.2 Compliance With Agreement. The BG Entities shall have
performed and complied with all of their agreements and obligations under this
Agreement which are to be performed or complied with by it prior to or on the
Closing Date.
9.3 Absence of Litigation. No Litigation shall have been
commenced or threatened, and no material investigation by any Government Entity
shall have been commenced, against Buyer, the BG Persons or any of the
Affiliates, officers, directors or managers of any of them, with respect to the
transactions contemplated hereby.
9.4 Consents and Approvals. Except as otherwise specifically
provided in this Agreement, all approvals, consents and waivers that are
required to effect the transactions contemplated hereby shall have been
received, and copies thereof shall have been delivered to Buyer on or prior to
the Closing Date.
9.5 Delivery of Closing Documents. The BG Persons shall have
delivered the closing documents specified in SECTION 12.3.
9.6 Additional Agreements. That certain Limited Liability Company
Agreement of OSS/BG, LLC, a Delaware limited liability company, by and among
Seller and Buyer ("Company Agreement"), that certain Contribution Agreement
attached to the Company Agreement as Exhibit A, and Employment Agreements by
and among the Buyer, OS Restaurant Services, Inc. and each of the BG Principals
shall have been executed and delivered.
10. CONDITIONS PRECEDENT TO BG PERSONS' OBLIGATIONS
Each and every obligation of the BG Persons to be performed on the
Closing Date shall be subject to the satisfaction prior to or on the Closing
Date of the following conditions:
10.1 Representations and Warranties True on the Closing Date. Each
of the representations and warranties made by Buyer in this Agreement shall be
true and correct in all material respects as of the Closing Date.
10.2 Compliance With Agreement. Buyer shall have in all material
respects performed and complied with all of Buyer's agreements and obligations
under this Agreement which are to be performed or complied with by Buyer prior
to or on the Closing Date, including the delivery of the closing documents
specified in SECTION 12.4.
10.3 Absence of Litigation. No material Litigation shall have been
commenced or threatened, and no material investigation by any Government Entity
shall have been commenced, against Buyer, or the BG Persons or any of the
affiliates, officers, managers, directors or shareholders of either of them,
with respect to the transactions contemplated hereby.
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10.4 Additional Agreements. That certain Limited Liability Company
Agreement of OSS/BG, LLC, a Delaware limited liability company, by and among
Seller and Buyer ("Company Agreement"), that certain Contribution Agreement
attached to the Company Agreement as Exhibit A, and Employment Agreements by
and among the Buyer, OS Restaurant Services, Inc. and each of the BG Principals
shall have been executed and delivered.
11. INDEMNIFICATION
11.1 By the BG Persons. Subject to the terms and conditions of
this SECTION 11, the BG Persons jointly and severally, hereby agree to
indemnify, defend and hold harmless Buyer, and its directors, officers,
employees and Affiliates (hereinafter "Buyer's Indemnitees"), from and against
all Claims asserted against, resulting to, imposed upon, or incurred by Buyer's
Indemnitees or the Purchased Assets transferred to Buyer pursuant to this
Agreement, directly or indirectly, by reason of, arising out of or resulting
from (a) the inaccuracy or breach of any representation or warranty of any of
the BG Persons contained in or made pursuant to this Agreement; (b) the breach
of any covenant of any of the BG Persons contained in this Agreement; provided,
however, the BG Person's liability under this SECTION 11.1 shall in no event
exceed One Million Five Hundred Thousand Dollars (U.S. $1,500,000), in the
aggregate, and the BG Persons shall have no liability under this SECTION 11.1
with respect to any liability or obligation to the extent arising from any
action taken or omitted to be taken by Buyer (or its officers or directors)
following the Closing. As used in this SECTION 11, the term "Claim" shall
include (i) all Liabilities; (ii) all losses, damages, judgments, awards,
settlements approved by the BG Persons (such approval shall not be unreasonably
withheld or delayed), costs and expenses (including, without limitation,
interest (including prejudgment interest in any litigated matter), penalties,
court costs and reasonable attorneys' fees and expenses); and (iii) all
demands, claims, suits, actions, costs of investigation, causes of action,
proceedings and assessments, whether or not ultimately determined to be valid.
11.2 By Buyer. Subject to the terms and conditions of this SECTION
11, Buyer hereby agrees to indemnify, defend and hold harmless the BG Persons
and their directors, officers, employees and Affiliates from and against all
Claims asserted against, resulting to, imposed upon or incurred by any such
person, directly or indirectly, by reason of or resulting from (a) the
inaccuracy or breach of any representation or warranty of Buyer contained in or
made pursuant to this Agreement (regardless of whether such breach is deemed
"material"); (b) the breach of any covenant of Buyer contained in this
Agreement (regardless of whether such breach is deemed "material").
11.3 Indemnification of Third-Party Claims. The obligations and
liabilities of any party to indemnify any other under this SECTION 11 with
respect to Claims relating to third parties shall be subject to the following
terms and conditions:
11.3(a) Notice and Defense. The party or parties to be
indemnified (whether one or more, the "Indemnified Party") will give
the party from whom indemnification is sought (the "Indemnifying
Party") written notice of any such Claim, and the Indemnifying Party
will undertake the defense thereof by representatives chosen by it.
Failure to give such notice shall not affect the Indemnifying Party's
duty or obligations under this SECTION 11, except to the extent the
Indemnifying Party is prejudiced thereby. So long as the Indemnifying
Party is defending any such Claim actively and in good faith, the
Indemnified Party shall not settle such Claim. The Indemnified Party
shall make available to the Indemnifying Party or its representatives
all records and other materials required by them and in the possession
or under the control of the Indemnified Party, for the use of the
Indemnifying Party and its representatives in defending any such
Claim, and shall in other respects give reasonable cooperation in such
defense.
11.3(b) Failure to Defend. If the Indemnifying Party, within
a reasonable time after notice of any such Claim, fails to defend such
Claim actively and in good faith, the Indemnified Party will (upon
further notice) have the right to undertake the defense, compromise or
settlement of such Claim or
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consent to the entry of a judgment with respect to such Claim, on
behalf of and for the account and risk of the Indemnifying Party, and
the Indemnifying Party shall thereafter have no right to challenge the
Indemnified Party's defense, compromise, settlement or consent to
judgment.
11.3(c) Indemnified Party's Rights. Anything in this SECTION
11 to the contrary notwithstanding, (i) if there is a reasonable
probability that a Claim may materially and adversely affect the
Indemnified Party other than as a result of money damages or other
money payments, the Indemnified Party shall have the right to defend,
compromise or settle such Claim, and (ii) the Indemnifying Party shall
not, without the written consent of the Indemnified Party, settle or
compromise any Claim or consent to the entry of any judgment which
does not include as an unconditional term thereof the giving by the
claimant or the plaintiff to the Indemnified Party of a release from
all Liability in respect of such Claim.
11.4 Payment. The Indemnifying Party shall promptly pay the
Indemnified Party any amount due under this SECTION 11, which payment may be
accomplished in whole or in part, at the option of the Indemnified Party, by
the Indemnified Party setting off any amount owed to the Indemnifying Party by
the Indemnified Party. To the extent set-off is made by an Indemnified Party in
satisfaction or partial satisfaction of an indemnity obligation under this
SECTION 11 that is disputed by the Indemnifying Party, upon a subsequent
determination by final judgment not subject to appeal that all or a portion of
such indemnity obligation was not owed to the Indemnified Party, the
Indemnified Party shall pay the Indemnifying Party the amount which was set off
and not owed together with interest from the date of set-off until the date of
such payment at an annual rate equal to the average annual rate in effect as of
the date of the set-off, on those three maturities of United States Treasury
obligations having a remaining life, as of such date, closest to the period
from the date of the set-off to the date of such judgment. Upon judgment,
determination, settlement or compromise of any third party Claim, the
Indemnifying Party shall pay promptly on behalf of the Indemnified Party,
and/or to the Indemnified Party in reimbursement of any amount theretofore
required to be paid by it, the amount so determined by judgment, determination,
settlement or compromise and all other Claims of the Indemnified Party with
respect thereto, unless in the case of a judgment an appeal is made from the
judgment. If the Indemnifying Party desires to appeal from an adverse judgment,
then the Indemnifying Party shall post and pay the cost of the security or bond
to stay execution of the judgment pending appeal. Upon the payment in full by
the Indemnifying Party of such amounts, the Indemnifying Party shall succeed to
the rights of such Indemnified Party, to the extent not waived in settlement,
against the third party who made such third party Claim.
11.5 No Waiver. The closing of the transactions contemplated by
this Agreement shall not constitute a waiver by any party of its rights to
indemnification hereunder, regardless of whether the party seeking
indemnification has knowledge of the breach, violation or failure of condition
constituting the basis of the Claim at or before the closing, and regardless of
whether such breach, violation or failure is deemed to be "material".
11.6 Survival of Indemnification. The indemnification obligations
of the parties contained in this SECTION 11 shall survive the date of this
Agreement and the Closing Date for all Claims brought or demands for
indemnification made prior to the expiration of eighteen months from the
Closing Date.
11.7 Determination of Losses. In determining an Indemnifying
Party's obligations under this SECTION 11 appropriate adjustment shall be made
for any insurance coverage paid to or on behalf of the Indemnified Party. An
Indemnifying Party shall not be liable to an Indemnified Party for any special,
consequential or similar damages with respect to any Loss subject to
indemnification under this SECTION 11, provided, however, that this sentence
shall not limit the amount payable by an Indemnifying Party to an Indemnified
Party for reimbursement of amounts paid or payable to a third party.
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12. CLOSING
12.1 Closing Date. The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place ten (10) days after the
satisfaction of all conditions precedent required by this Agreement or upon
such other date as Buyer and Seller may agree (the "Closing Date").
12.2 Place of Closing. The Closing shall take place at Buyer's
corporate office or at such other place as the parties hereto shall agree upon.
12.3 Documents to be Delivered by the BG Persons. On the Closing
Date, the BG Persons shall deliver to Buyer the following documents, in each
case duly executed or otherwise in proper form:
12.3(a) Bills of Sale. Bills of sale and such other
instruments of assignment, transfer, conveyance and endorsement as
will be sufficient in the opinion of Buyer and its counsel to
transfer, assign, convey and deliver to Buyer the Purchased Assets as
contemplated hereby.
12.3(b) Compliance Certificate. A certificate signed by each
of the BG Persons that each of the representations and warranties made
by the BG Persons in this Agreement is true and correct in all
material respects on and as of the Closing Date (except for any
changes permitted by the terms of this Agreement or consented to in
writing by Buyer), and that the BG Persons have performed and complied
with all of the BG Persons' obligations under this Agreement which are
to be performed or complied with on or prior to the Closing Date.
12.3(c) Certified Resolutions. A certified copy of the
resolutions of the shareholders, directors, managers and members of
the BG Persons, as appropriate, authorizing and approving this
Agreement and the consummation of the transactions contemplated by
this Agreement.
12.3(d) Incumbency Certificate. Incumbency certificates
relating to each person executing any document executed and delivered
to Buyer pursuant to the terms hereof.
12.3(e) Other Documents. All other documents, instruments or
writings required to be delivered to Buyer on or prior to the Closing
Date pursuant to this Agreement and such other certificates of
authority and documents as Buyer may reasonably request.
12.4 Documents to be Delivered by Buyer. At the Closing, Buyer
shall deliver to the Seller the following documents, in each case duly executed
or otherwise in proper form:
12.4(a) Purchase Price. A certified or bank cashier's check
(or wire transfer) as required by SECTION 1.
12.4(b) Compliance Certificate. A certificate signed by the
president of Buyer that the representations and warranties made by
Buyer in this Agreement are true and correct on and as of the Closing
Date (except for any changes permitted by the terms of this Agreement
or consented to in writing by the BG Persons), and that Buyer has
performed and complied with all of Buyer's obligations under this
Agreement which are to be performed or complied with on or prior to
the Closing Date.
12.4(c) Certified Resolutions. A certified copy of the
resolutions of the Board of Directors of Buyer authorizing and
approving this Agreement and the consummation of the transactions
contemplated by this Agreement.
12.4(d) Incumbency Certificate. Incumbency certificates
relating to each person executing any document executed and delivered
to the Seller by Buyer pursuant to the terms hereof.
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12.4(e) Other Documents. All other documents, instruments or
writings required to be delivered to the BG Persons on or prior to the
Closing Date pursuant to this Agreement and such other certificates of
authority and documents as the BG Persons may reasonably request.
13. TERMINATION
13.1 Right of Termination Without Breach.
13.1(a) Mutual Agreement. This Agreement may be terminated
without further liability of either party at any time prior to the
closing by mutual written agreement of Buyer and the Seller.
13.1(b) By Either Party. This Agreement may be terminated
without further liability of any party, by either Buyer or the Seller
if the Closing Date of the transaction contemplated in SECTION 1.1
shall not have occurred on or before December 31, 2001, provided the
terminating party has not, through breach of a representation,
warranty or covenant, prevented such closing from occurring on or
before such date.
13.2 Termination for Breach.
13.2(a) Termination by Buyer. This Agreement may be
terminated by Buyer if (i) there has been a material violation or
breach by any of the BG Persons of any of the agreements,
representations or warranties contained in this Agreement which has
not been waived in writing by Buyer, or (ii) there has been a failure
of satisfaction of a condition to the obligations of Buyer which has
not been so waived.
13.2(b) Termination by the Seller. The Seller may terminate
this Agreement if (i) there has been a material violation or breach by
Buyer of any of the agreements, representations or warranties
contained in this Agreement which has not been waived in writing by
the Seller, or (ii) there has been a failure of satisfaction of a
condition to the obligations of the BG Persons which has not been so
waived.
13.2(c) Effect of Termination. Termination of this Agreement
pursuant to this SECTION 13.2 shall not in any way terminate, limit or
restrict the rights and remedies of any party hereto against any other
party which has violated, breached or failed to satisfy any of the
representations, warranties, covenants, agreements, conditions or
other provisions of this Agreement prior to termination hereof.
14. MISCELLANEOUS
14.1 Disclosure Schedules. The representations and warranties of
Seller set forth in this Agreement are made and given subject to the
disclosures contained in the Disclosure Schedule. Seller shall not be or be
deemed to be in breach of any such representations and warranties (and no claim
shall lie in respect thereof) in respect of any such matter so disclosed in the
Disclosure Schedule. Where brief particulars only of a matter are set out or
referred to in the Disclosure Schedule, or a reference is made to a particular
part only of a disclosed document, full particulars of the matter and the full
contents of the document are deemed to be disclosed. The specific disclosures
set forth in the Disclosure Schedule have been organized by Seller to
correspond to section references in this Agreement to which the disclosure may
be most likely to relate, but such disclosure shall apply to and shall be
deemed to be disclosed for the purposes of this Agreement generally, and shall
be deemed to be exceptions to or modifications or qualifications of all of the
representations and warranties contained herein to the extent applicable. Buyer
shall be deemed to be aware of and there are deemed to have been disclosed to
Buyer as if herein set forth (a) all matters fairly disclosed or referred to or
contained in this Agreement and in all documents specifically referred to
therein; and (b) the contents of and all matters referred to in the documents
specifically listed in the Disclosure Schedule. In the event that there is any
inconsistency
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between this Agreement and matters disclosed in the Disclosure Schedule,
information contained in the Disclosure Schedule shall prevail and shall be
deemed to be the relevant disclosure.
14.2 Further Assurance. From time to time, upon request and
without further consideration, the parties will execute and deliver such
documents and take such other action as may be reasonably requested in order to
consummate more effectively the transactions contemplated hereby, including,
but not limited to, vesting in Buyer good and valid title to the business and
assets being transferred hereunder.
14.3 Disclosures and Announcements. Both the timing and the
content of all disclosure to third parties and public announcements concerning
the transactions provided for in this Agreement by the Buyer or Seller shall be
subject to the approval of the other in all essential respects, except that
Seller's approval shall not be required as to any statements and other
information which Buyer may submit to the Securities and Exchange Commission,
NYSE or the stockholders of Buyer or Buyer's Affiliates, or be required to make
pursuant to any rule or regulation of the Securities and Exchange Commission or
NYSE, or otherwise required by law.
14.4 Assignment; Parties in Interest.
14.4(a) Assignment. Except as expressly provided herein, the
rights and obligations of a party hereunder may not be assigned,
transferred or encumbered without the prior written consent of the
other parties. Notwithstanding the foregoing, Buyer may, without
consent of any other party, cause one or more subsidiaries or
Affiliates of Buyer to carry out all or part of the transactions
contemplated hereby; provided, however, that Buyer shall,
nevertheless, remain liable for all of its obligations, and those of
any such subsidiary, to the BG Persons hereunder.
14.4(b) Parties in Interest. This Agreement shall be binding
upon, inure to the benefit of, and be enforceable by the respective
successors and permitted assigns of the parties hereto. Nothing
contained herein shall be deemed to confer upon any other person any
right or remedy under or by reason of this Agreement.
14.5 Governing Law. The validity, interpretation, and performance
of this Agreement shall be governed by the laws of the State of Florida without
giving effect to the principles of comity or conflicts of laws thereof.
14.6 Consent to Personal Jurisdiction and Venue; Waiver of Jury
Trial; Attorney's Fees. Seller, Buyer and the BG Principals hereby consent to
personal jurisdiction and venue, for any action arising out of a breach or
threatened breach of this Agreement or out of the relationship established by
this Agreement, exclusively in the United States District Court for the Middle
District of Florida, Tampa Division, or in the Circuit Court in and for
Hillsborough County, Florida. Seller, Buyer and the BG Principals hereby agree
that any action brought by such person or entity, alone or in combination with
others, whether arising out of this Agreement or otherwise, shall be brought
exclusively in the United States District Court for the Middle District of
Florida, Tampa Division, or in the Circuit Court in and for Hillsborough
County, Florida. Seller, Buyer and the BG Principals hereby agree that any
controversy that may arise of this Agreement would involve complicated and
difficult factual and legal issues and that, as a result, any action shall be
determined by a judge and not a jury. In the event of any legal proceeding
arising, directly or indirectly, from this Agreement, the prevailing party in
such legal proceedings shall be entitled to attorney's fees and costs from the
non-prevailing party.
14.7 Amendment and Modification. Buyer and the BG Persons may
amend, modify and supplement this Agreement in such manner as may be agreed
upon by them in writing.
14.8 Notice. All notices, requests, demands and other
communications hereunder shall be given in
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writing and shall be: (a) personally delivered; or (b) sent to the parties at
their respective addresses indicated herein by registered or certified U.S.
mail, return receipt requested and postage prepaid, or by private overnight
mail courier service. The respective addresses to be used for all such notices,
demands or requests are as follows:
(a) If to Buyer, to:
OS Sea, Inc.
2202 North West Shore Boulevard, Suite 500
Tampa, Florida 33607
Attention: Robert D. Basham, President
(with a copy to)
Joseph J. Kadow, Vice President and General Counsel
Outback Steakhouse, Inc.
2202 North West Shore Boulevard, Suite 500
Tampa, Florida 33607
or to such other person or address as Buyer shall furnish to the BG Persons in
writing.
(b) If to any BG Person, to:
Bonefish Grill, LLC
c/o Timothy V. Curci
2946 Hadleigh Court
Clearwater, Florida 33621
(with a copy to)
Fowler, White, Boggs, Banker, P.A.
501 East Kennedy Boulevard
Suite 1700
Tampa, Florida 33602
Attention: R. Alan Higbee, Esquire
or to such other person or address as Seller shall furnish to Buyer in writing.
If personally delivered, such communication shall be deemed delivered
upon actual receipt; if sent by overnight courier pursuant to this paragraph,
such communication shall be deemed delivered upon receipt; and if sent by U.S.
mail pursuant to this paragraph, such communication shall be deemed delivered
as of the date of delivery indicated on the receipt issued by the relevant
postal service, or, if the addressee fails or refuses to accept delivery, as of
the date of such failure or refusal. Any party to this Agreement may change its
address for the purposes of this Agreement by giving notice thereof in
accordance with this Section. Notices sent by facsimile or other electronic
means shall not constitute notice under this Agreement.
14.9 Expenses. Regardless of whether or not the transactions
contemplated hereby are consummated:
14.9(a) Expenses to be Shared Equally by the Parties. Buyer
and Seller shall equally share the cost of the following:
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(i) Taxes Arising from Transaction. Any taxes
applicable to, imposed upon or arising out of the sale or
transfer of the Purchased Assets to Buyer and the other
transactions contemplated by this Agreement, including but
not limited to any transfer, use, gross receipts or
documentary stamp taxes
(ii) Other Expenses. Except as otherwise
provided herein, all other costs and expenses of third
parties engaged jointly by Buyer and Seller in connection
with the consummation of the transactions contemplated
hereby, normally shared by the parties in similar
transactions.
14.9(b) Other. Except as otherwise provided herein, each of
the parties shall bear its own expenses and the expenses of its
counsel, accountants, and other agents in connection with the
transactions contemplated hereby.
14.9(c) Costs of Litigation. The parties agree that the
prevailing party in any action brought with respect to or to enforce
any right or remedy under this Agreement shall be entitled to recover
from the other party or parties all reasonable costs and expenses of
any nature whatsoever incurred by the prevailing party in connection
with such action, including without limitation reasonable attorneys'
fees and prejudgment interest.
14.10 Entire Agreement. This instrument and the agreements referred
to herein embody the entire agreement between the parties hereto with respect
to the transactions contemplated herein, and there have been and are no
agreements, representations or warranties between the parties other than those
set forth or provided for herein.
14.11 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14.12 Headings. The headings of Sections in this Agreement are
provided for convenience only and will not affect its construction or
interpretation. All references to "Section" or "Sections" refer to the
corresponding Section or Sections of this Agreement. All words used in this
Agreement will be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or terms.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first above written.
ATTEST: "BUYER"
OS SEA, INC.,
a Florida corporation
/s/ Robert S. Merritt By: /s/ John W. Cooper
-------------------------------------- -------------------------------
Robert S. Merritt, Assistant Secretary John W. Cooper, President
ATTEST: "SELLER"
BONEFISH GRILL, LLC, a Florida
limited liability company
BONEFISH GRILL HOLDINGS, INC.
a Florida corporation its
member-manager
/s/ Timothy V. Curci By: /s/ Timothy V. Curci
-------------------------------------- -------------------------------
Timothy V. Curci, Secretary Timothy V. Curci, President
ATTEST: "BGH"
BONEFISH GRILL HOLDINGS, INC. a
Florida corporation
/s/ Timothy V. Curci By: /s/ Timothy V. Curci
-------------------------------------- -------------------------------
Timothy V. Curci, Secretary Timothy V. Curci, President
"BG PRINCIPALS"
/s/ Timothy V. Curci
----------------------------------
TIMOTHY V. CURCI, individually
/s/ Christopher L. Parker
----------------------------------
CHRISTOPHER L. PARKER, individually
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