Asset Purchase Agreement - Outback/Hawaii-I LP, Roy's Aussie Steakhouse LP and Roy's Aussie Steakhouse Number Two LLC
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
OUTBACK/HAWAII-I, LIMITED PARTNERSHIP
ROY'S AUSSIE STEAKHOUSE, L.P.
AND
ROY'S AUSSIE STEAKHOUSE NUMBER TWO, LLC
DATED AS OF JANUARY 1, 2000
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ASSET PURCHASE AGREEMENT
TABLE OF CONTENTS
1. PURCHASE AND SALE OF ASSETS........................................ 1
1.1. Assets to be Transferred.................................... 1
1.2. Excluded Assets............................................. 3
2. ASSUMPTION OF LIABILITIES.......................................... 3
2.1. Liabilities to be Assumed................................... 3
2.2. Liabilities Not to be Assumed............................... 4
3. PURCHASE PRICE - PAYMENT........................................... 5
3.1. Purchase Price.............................................. 5
3.2. Payment of Purchase Price................................... 5
3.3. Prorations................................................... 6
3.4. Other Payments and Adjustments............................... 6
3.5. Allocation of Purchase Price................................. 7
4. REPRESENTATIONS AND WARRANTIES OF RAS1, RAS2 and RYE................ 7
4.1. Organization................................................. 7
4.2. Authority.................................................... 7
4.3. No Violation................................................. 8
4.4. Financial Statements......................................... 8
4.5. Tax Matters.................................................. 8
4.6. Accounts Receivable.......................................... 9
4.7. Inventory.................................................... 9
4.8. Absence of Certain Changes................................... 9
4.9. Absence of Undisclosed Liabilities.......................... 10
4.10. No Litigation............................................... 10
4.11. Compliance With Laws and Orders............................. 11
4.12. Title to and Condition of Properties........................ 12
4.13. Insurance................................................... 13
4.14. Contracts and Commitments................................... 13
4.15. Labor Matters............................................... 14
4.16. Employee Benefit Plans...................................... 14
4.17. Employment Compensation..................................... 15
4.18. Trade Rights................................................ 15
4.19. Major Suppliers............................................. 15
4.20. Affiliates' Relationships to Company........................ 15
4.21. Partner List.................................................16
4.22. Member List................................................. 16
4.23. Assets Necessary to Business................................ 16
4.24. No Brokers or Finders....................................... 16
4.25. Disclosure.................................................. 16
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5. REPRESENTATIONS AND WARRANTIES OF BUYER............................ 16
5.1. Organization................................................ 16
5.2. Authority................................................... 16
5.3. No Brokers or Finders....................................... 17
5.4. Disclosure.................................................. 17
6. EMPLOYEES - EMPLOYEE BENEFITS...................................... 17
6.1. Affected Employees.......................................... 17
6.2. Retained Responsibilities................................... 17
6.3. Payroll Tax................................................. 17
6.4. Termination Benefits........................................ 17
6.5. No Third Party Rights....................................... 18
7. OTHER MATTERS...................................................... 18
7.1. Pre-Effective Date Revenue & Expenses....................... 18
7.2. Post-Effective Date Revenue & Expenses...................... 18
7.3. Noncompetition; Confidentiality............................. 18
7.4. Use of Name................................................. 19
7.5. Sales Tax Matters........................................... 20
7.6. Unemployment Compensation....................................20
7.7. Bulk Sales Compliance....................................... 20
8. FURTHER COVENANTS OF RAS1, RAS2 AND RYE............................ 20
8.1. Access to Information and Records........................... 20
8.2. Conduct of Business Pending the Closing..................... 20
8.3. Consents.................................................... 21
8.4. Other Action................................................ 21
8.5. Disclosure.................................................. 21
9. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS........................ 21
9.1. Representations and Warranties True on the Closing Date..... 22
9.2. Compliance With Agreement................................... 22
9.3. Absence of Litigation....................................... 22
9.4. Consents and Approvals...................................... 22
9.5. Estoppel Certificates....................................... 22
9.6. Hart-Scott-Rodino Waiting Period............................ 22
10. CONDITIONS PRECEDENT TO RAS1'S AND RAS2'S OBLIGATIONS.............. 22
10.1. Representations and Warranties True on the Closing Date.... 22
10.2. Compliance With Agreement................................... 23
10.3. Absence of Litigation....................................... 23
10.4. Hart-Scott-Rodino Waiting Period............................ 23
11. INDEMNIFICATION.................................................... 23
11.1. By RAS1, RAS2 and RYE....................................... 23
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11.2. By Buyer.................................................... 23
11.3. Indemnification of Third-Party Claims....................... 24
11.4. Payment..................................................... 24
11.5. No Waiver................................................... 24
11.6. Survival of Indemnification..................................24
12. CLOSING.............................................................25
12.1. Documents to be Delivered by RAS1, RAS2 and RYE..............25
12.2. Documents to be Delivered by Buyer.......................... 26
13. TERMINATION........................................................ 26
13.1. Right of Termination Without Breach......................... 26
13.2. Termination for Breach...................................... 26
14. MISCELLANEOUS...................................................... 27
14.1. Disclosure Schedules........................................ 27
14.2. Further Assurance........................................... 27
14.3. Disclosures and Announcements............................... 27
14.4. Assignment; Parties in Interest............................. 27
14.5. Law Governing Agreement..................................... 28
14.6. Amendment and Modification.................................. 28
14.7. Notice...................................................... 28
14.8. Expenses.................................................... 29
14.9. Entire Agreement............................................ 30
14.10. Counterparts................................................ 30
14.11. Headings.................................................... 30
14.12. Affiliate................................................... 30
DISCLOSURE SCHEDULES
Schedule 1.1.(a) - Real Property Leases
Schedule 1.1.(d) - Personal Property Leases
Schedule 4.4 - Financial Statements
Schedule 4.8 - Change in Business Conditions
Schedule 4.10 - Litigation Matters
Schedule 4.11.(b) - Licenses and Permits
Schedule 4.17 - Employees With Annual Compensation in Excess
of $20,000
Schedule 4.19 - Five Largest Suppliers
Schedule 4.20.(a) - Contracts with Affiliates
Schedule 4.20.(c) - Affiliate Obligations
Schedule 4.21 - List of Partners
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") dated as of January
1, 2000, is entered into by and among OUTBACK/HAWAII-I, LIMITED PARTNERSHIP, a
Florida limited partnership ("Buyer"); ROY'S AUSSIE STEAKHOUSE, L.P., a
Delaware limited partnership ("RAS1"); ROY'S AUSSIE STEAKHOUSE NUMBER TWO, LLC,
a Delaware limited liability company ("RAS2"); and ROY YAMAGUCHI ENTERPRISES,
INC., a Hawaii corporation, general partner of RAS1 and manager of RAS2
(hereafter referred to as "RYE").
RECITALS
WHEREAS, RAS1 owns and operates the Outback Steakhouse(R) restaurant
located in Waikiki, Honolulu, Hawaii (the "Waikiki Restaurant"); and
WHEREAS, RAS2 owns and operates the Outback Steakhouse(R) restaurant
located in Kahana, Maui, Hawaii (the "Kahana Restaurant") (the Waikiki
Restaurant and the Kahana Restaurant, are sometimes hereafter collectively
referred to as the "Restaurants"); and
WHEREAS, Buyer was formed to own, operate and franchise Outback
Steakhouse(R) restaurants outside of the continental United States; and
WHEREAS, Buyer desires to purchase from RAS1 and RAS2, RAS1 and RAS2
desire to sell to Buyer, and RYE desires to cause RAS1 and RAS2 to sell to
Buyer the business and substantially all of the assets of RAS1 and RAS2,
including the Restaurants.
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 AND SALE OF ASSETS
1.1. Assets to be Transferred. Subject to the terms and conditions
of this Agreement, as of January 1, 2000 (the "Effective Date") RAS1 and RAS2
shall, and RYE shall cause RAS1 and RAS2 to, sell, transfer, convey, assign and
deliver to Buyer (or upon Buyer's request, to a parent of or to one or more
majority-owned subsidiaries of Buyer as designated by Buyer), and Buyer shall
purchase and accept all of the business, rights, claims and assets (of every
kind, nature, character and description, whether real, personal or mixed,
whether tangible or intangible, whether accrued, contingent or otherwise, and
wherever situated) of RAS1 and RAS2, together with all rights and privileges
associated with such assets and with the business of RAS1 and RAS2, including
the Restaurants, other than the Excluded Assets (as hereinafter defined)
(collectively the "Purchased Assets") free and clear of any debts, liabilities,
claims, encumbrances or obligations other than the Assumed Liabilities, as
hereafter defined. The Purchased Assets shall include, but not be limited to,
the following:
1.1.(a) Leased Real Property. All of the leases of real
property with respect to real property leased by RAS1 and RAS2,
including the leases (the "Real Property Leases") described on
SCHEDULE 1.1.(A) with respect to the real property described thereon
(the "Leased Real Property").
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1.1.(b) Personal Property. All machinery, equipment,
smallwares, glassware, utensils, vehicles, tools, supplies, parts,
furniture, fixtures, leasehold improvements and all other personal
property owned, utilized or held for use by RAS1 and RAS2 on the
Effective Date.
1.1.(c) Inventory. All inventories of food and/or beverages
purchased by RAS1 or RAS2 and held at the Restaurants on the Effective
Date (collectively the "Inventory").
1.1.(d) Personal Property Leases. All leases of machinery,
equipment, vehicles, furniture and other personal property leased by
RAS1 and RAS2 described in SCHEDULE 1.1.(D) (the "Personal Property
Leases").
1.1.(e) Trade Rights. RAS1's and RAS2's license to use the
Trade Rights associated with the Outback Steakhouse(R) concept and
operating system in the operation of the Restaurants. It is
contemplated that the subject Outback Steakhouse(R) franchise
agreements between RAS1 and RAS2, as franchisee, and Buyer, as
franchisor, will be assigned to Buyer, and RAS1 and RAS2 shall be
released from all rights, obligations and liabilities thereunder for
any periods after midnight, December 31, 1999. As used herein, the
term "Trade Rights" shall mean and include any and all: (i) trademark
or service mark licenses or rights, business identifiers, trade dress,
service marks, trade names, and brand names, all license agreements
and/or registrations thereof and any applications therefor and all
goodwill associated with the foregoing; (ii) copyrights, copyright
registrations and copyright applications, and all other rights
associated with the foregoing and the underlying works of authorship;
(iii) contracts or agreements granting any right, title, license or
privilege under the intellectual property rights of any third party;
(iv) inventions, know-how, discoveries, improvements, designs, trade
secrets, royalty rights, employee covenants and agreements respecting
intellectual property and non-competition and all other types of
intellectual property; and (v) claims for infringement or breach of
any of the foregoing.
1.1.(f) Contracts. Except as otherwise specifically provided
herein, all of RAS1's and RAS2's rights in, to and under all contracts
and purchase orders (hereinafter "Contracts") of RAS1 and RAS2. To the
extent that any Contract for which assignment to Buyer is provided
herein is not assignable without the consent of another party, this
Agreement shall not constitute an assignment or an attempted
assignment thereof if such assignment or attempted assignment would
constitute a breach thereof. RYE, RAS1, RAS2 and Buyer agree to use
their reasonable best efforts (without any requirement on the part of
Buyer to pay any money or, on the part of Buyer to agree to any change
in the terms of any such Contract) to obtain the consent of such other
party to the assignment of any such Contract to Buyer in all cases in
which such consent is or may be required for such assignment. If any
such consent shall not be obtained, RYE, RAS1 and RAS2 agree to
cooperate with Buyer in any reasonable arrangement designed to provide
for Buyer the benefits intended to be assigned to Buyer under the
relevant Contract, including enforcement at the cost and for the
account of Buyer of any and all rights of RAS1 and RAS2 against the
other party thereto arising out of the breach or cancellation thereof
by such other party or otherwise. If and to the extent that such
arrangement cannot be made, Buyer, upon notice to RAS1 and RAS2, shall
have no obligation pursuant to SECTION 2.1 or otherwise with respect
to any such Contract and any such Contract shall not be deemed to be a
Purchased Asset hereunder.
1.1.(g) Computer Software. All computer source codes,
programs and other software of RAS1 and RAS2, including all machine
readable code, printed listings of code, documentation and related
property and information of RAS1 and RAS2.
1.1.(h) Literature. All menus, sales literature, promotional
literature and similar materials of RAS1 and RAS2.
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1.1.(i) Records and Files. All records, files, invoices,
customer lists, blueprints, specifications, designs, drawings,
accounting records, business records, operating data and other data of
RAS1 and RAS2.
1.1.(j) Licenses; Permits. All licenses, permits and
approvals of RAS1 and RAS2 to the extent the same may be assigned to
Buyer.
1.1.(k) General Intangibles. All prepaid items, all causes
of action arising out of occurrences before or after the Effective
Date, and all other intangible rights and assets of RAS1 and RAS2.
1.2. Excluded Assets. The provisions of SECTION 1.1
notwithstanding, RAS1 and RAS2 shall not sell, transfer, assign, convey or
deliver to Buyer, and Buyer will not purchase or accept the following assets of
RAS1, RAS2 or the Restaurants (collectively the "Excluded Assets"):
1.2.(a) Cash and Cash Equivalents. All cash and cash
equivalents (which shall be deemed to include accounts receivable),
other than petty cash balances at the Restaurants on the Effective
Date.
1.2.(b) Consideration. The consideration delivered by Buyer
to RAS1 and RAS2 pursuant to this Agreement.
1.2.(c) Tax Credits and Records. Federal, state and local
income and franchise tax credits and tax refund claims and associated
returns and records. Buyer shall have reasonable access to such
returns and records and may make excerpts therefrom and copies
thereof.
1.2.(d) Partnership Rights. RAS1's franchise to be a limited
partnership, its certificate of limited partnership, seal, and other
partnership records having exclusively to do with the limited
partnership organization and capitalization of RAS1. Buyer shall have
reasonable access to such books and records and may make excerpts
therefrom and copies thereof.
1.2.(e) Limited Liability Company Rights. RAS2's franchise
to be a limited liability company, its certificate of formation, seal,
and other limited liability company records having exclusively to do
with the limited liability company organization and capitalization of
RAS2. Buyer shall have reasonable access to such books and records and
may make excerpts therefrom and copies thereof.
2. ASSUMPTION OF LIABILITIES
2.1. Liabilities 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, expense,
obligation or responsibility, fixed or unfixed, known or unknown, asserted or
unasserted, liquidated or unliquidated, secured or unsecured. Subject to the
terms and conditions of this Agreement, as of the Effective Date, Buyer shall
assume and agree to perform and discharge the following, and only the following
Liabilities of RAS1, RAS2 and the Restaurants (collectively the "Assumed
Liabilities"):
2.1.(a) Contractual Liabilities. RAS1's and RAS2's
Liabilities arising from and after the Effective Date under and
pursuant to the following Contracts:
(i) All Real Property Leases described on
SCHEDULE 1.1.(A);
(ii) All Personal Property Leases described in
SCHEDULE 1.1.(D);
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(iii) Every Contract entered into by RAS1 or RAS2
in the ordinary course of its business which does not involve
consideration or other expenditure by RAS1 or RAS2 payable or
performable on or after the Effective Date in excess of
$5,000 or performance over a period of more than 12 months;
(iv) The obligation to repay the $50,000 capital
contribution of Bruce L. Uitto contributed by him for a 9%
ownership interest in the Restaurants pursuant to the terms
of the Limited Partnership Agreement of RAS1, provided that
Mr. Uitto enters into an Employment Agreement and Partnership
Agreement with Buyer containing substantially similar terms
as contained in his Employment Agreement with RAS1; and
(v) The obligation to repay the $25,000 capital
contributions of James Wagner and Stephen Long contributed by
them for a 10% ownership interest in their respective
Restaurants pursuant to the terms of the Limited Partnership
Agreement of RAS1 and Operating Agreement of RAS2, provided
that they each enter into an Employment Agreement and
Partnership Agreement with Buyer.
The Contracts described in subsections 2.1.(b)(i), (ii), (iii), (iv)
and (v) above are hereinafter collectively described as the "Assumed
Contracts."
2.1.(b) Liabilities Under Permits and Licenses. RAS1's and
RAS2's Liabilities arising from and after the Effective Date under any
permits or licenses listed in SCHEDULE 4.11(B) and assigned to Buyer
as of the Effective Date (except that the liquor licenses shall be
assigned to Buyer only upon approval of the Honolulu Liquor Commission
and the Maui Liquor Control Commission).
2.2. Liabilities Not to be Assumed. Except as and to the extent
specifically set forth in SECTION 2.1, Buyer is not assuming any Liabilities of
RAS1, RAS2 or the Restaurants and all such Liabilities shall be and remain the
responsibility of RAS1 and RAS2. Notwithstanding the provisions of SECTION 2.1,
Buyer is not assuming and RAS1 and RAS2 shall not be deemed to have transferred
to Buyer the following Liabilities of RAS1 and RAS2:
2.2.(a) Certain Contracts. The Liabilities or Contracts of
RAS1, RAS2 or the Restaurants which are not specifically named as
Assumed Contracts pursuant to SECTION 2.1.(A).
2.2.(b) Taxes Arising from Transaction. Except as otherwise
agreed in SECTION 14.8.(B)(I), 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 income, transfer, sales, use, gross
receipts or documentary stamp taxes.
2.2.(c) Income and Franchise Taxes. Any Liability of RAS1 or
RAS2 for Federal income taxes and any state or local income, profit or
franchise taxes (and any penalties or interest due on account
thereof).
2.2.(d) Insured Claims. Any Liability of RAS1 or RAS2 insured
against, to the extent such Liability is or will be paid by an
insurer.
2.2.(e) Litigation Matters. Any Liability with respect to any
action, suit, proceeding, arbitration, investigation or inquiry,
whether civil, criminal or administrative ("Litigation"), whether or
not described in SCHEDULE 4.10.
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2.2.(f) Infringements. Any Liability to a third party for
infringement of such third party's Trade Rights.
2.2.(g) Transaction Expenses. All Liabilities incurred by
RAS1 or RAS2 in connection with this Agreement and the transactions
contemplated herein.
2.2.(h) Liability For Breach. Liabilities of RAS1 or RAS2
for any breach or failure to perform any of RAS1's or RAS2's covenants
and agreements contained in, or made pursuant to, this Agreement, or,
prior to the Effective Date, any other contract, whether or not
assumed hereunder, including breach arising from assignment of
contracts hereunder without consent of third parties.
2.2.(i) Liabilities to Affiliates. Liabilities of RAS1 or
RAS2 to its present or former Affiliates, except obligations for
compensation for services rendered as an employee pursuant to plans or
practices disclosed pursuant to SECTION 4.16.
2.2.(j) Violation of Laws or Orders. Liabilities of RAS1 or
RAS2 for any violation of or failure to comply with any statute, law,
ordinance, rule or regulation (collectively, "Laws") or any order,
writ, injunction, judgment, plan or decree (collectively, "Orders") of
any court, arbitrator, department, commission, board, bureau, agency,
authority, instrumentality or other body, whether federal, state,
municipal, foreign or other (collectively, "Government Entities"),
except for any violations caused or explicitly permitted by Buyer, in
which case liability is to be assumed by Buyer.
3. PURCHASE PRICE - PAYMENT
3.1. Purchase Price. The purchase price (the "Purchase Price") for
the Purchased Assets shall be (i) the assumption of the Assumed Liabilities,
(ii) Three Million Dollars ($3,000,000), (iii) the actual cost to RAS1 and RAS2
of the Inventory at the Restaurants and transferred to Buyer as of the
Effective Date, (iv) any prorations specified in SECTION 3.3 and (v) adjusted
by any other payments and adjustments specified in SECTION 3.4.
3.2. Payment of Purchase Price. The Purchase Price shall be paid
by Buyer as follows:
3.2.(a) Assumption of Liabilities. At the Closing, Buyer
shall deliver to RAS1 and RAS2 such documents and instruments as are
reasonably required to evidence the assumption of the Assumed
Liabilities.
3.2.(b) Cash to RAS1 and RAS2. At the Closing, Buyer shall
deliver to RAS1 and RAS2 the Purchase Price in immediately available
funds.
3.2.(c) Method of Payment. All payments under this SECTION
3.2 shall be made in the form of certified or bank cashier's check
payable to the order of the recipient or, at the Buyer's option, by
wire transfer of immediately available funds to an account designated
by RAS1 and RAS2.
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3.3. Prorations. The following prorations relating to the
Restaurants and the Purchased Assets will be made as of the Effective Date,
with RAS1 and RAS2 liable to the extent such items relate to any time period up
to the Effective Date and Buyer liable to the extent such items relate to
periods on or after the Effective Date. Except as otherwise specifically
provided herein, the net amount of all such prorations, to the extent not
already paid by Buyer, will be settled and paid on the Closing Date:
3.3.(a) Personal property taxes and other taxes, if any, on
or with respect to the Purchased Assets; provided that special
assessments for work actually commenced or levied prior to the
Effective Date shall be paid by RAS1 and RAS2.
3.3.(b) Rents, additional rents, taxes and other items
payable by RAS1 and RAS2 under any lease, license, permit, contract or
other agreement or arrangement to be assigned to or assumed by Buyer.
3.3.(c) The amount of rents, taxes and charges for sewer,
water, fuel, telephone, electricity and other utilities; provided that
if practicable, meter readings shall be taken on the Effective Date
and the respective obligations of the parties determined in accordance
with such readings.
3.3.(d) All other items normally adjusted in connection with
similar transactions, including gross sales receipts and usual and
customary operating expenses arising from the operations of the
Restaurants.
If the actual receipts or expenses of any of the above items for the
billing period within which the Effective Date falls is not known on the
Closing Date, the proration shall be settled and paid as soon as is reasonably
practicable after the Closing Date. RAS1 and RAS2 agree to furnish Buyer with
such documents and other records as shall be reasonably requested in order to
confirm all proration calculations.
3.4. Other Payments and Adjustments.
3.4.(a) Employment Compensation. The amount of wages and
other remuneration due in respect of periods prior to the Effective
Date to employees of RAS1 and RAS2 and the amount of bonuses due to
such employees for all such periods will be paid by RAS1 and RAS2
directly to such employees. Buyer shall receive a credit on the
Closing Date in an amount equal to all vacation, holiday and sick pay
unpaid by RAS1 and RAS2 as of the Effective Date attributable to any
period or partial period of employment by RAS1 or RAS2 prior to the
Effective Date, plus employee payroll taxes applicable thereto due or
to become due, for those employees of RAS1 or RAS2 who were employed
by Buyer after the Effective Date and who have not as of the Effective
Date taken vacation, holiday or sick time earned prior to the
Effective Date.
3.4.(b) Security Deposits and Prepaid Expenses. The Purchase
Price to be paid to RAS1 and RAS2 on the Closing Date pursuant to
SECTION 3.2 shall be increased by any security deposits paid by RAS1
and RAS2 pursuant to any Real Property Leases transferred to the Buyer
in accordance with the terms of this Agreement and prepaid expenses
paid by RAS1 or RAS2 with respect to the Restaurants and for which the
benefit is transferred to Buyer hereunder.
3.4.(c) Gift Certificates. The Purchase Price to be paid to
RAS1 and RAS2 on the Closing Date pursuant to SECTION 3.2 shall be
increased by a total of Twenty Eight Thousand Four Hundred Twenty
Seven Dollars ($28,427) for gift certificates of the Buyer, or its
affiliates, which were redeemed at the Restaurants prior to the
Effective Date.
3.4.(d) Lease Negotiation Expenses. The Purchase Price to be
paid to RAS1 and RAS2 on the
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Closing Date pursuant to SECTION 3.2 shall be increased by the actual
out-of-pocket expenses incurred by RAS1 and/or RAS2 in negotiating
with Safeway, Inc. for a lease of real property in the Piilani Village
Shopping Center, Kihei, Maui, Hawaii; provided however, that such
expenses shall not exceed Ten Thousand Dollars ($10,000).
3.4.(e) Invoice. In lieu of the adjustments provided for in
SECTIONS 3.4.(A) through 3.4.(D), either party may, subsequent to the
Closing Date, invoice the other party for any item for which such
party would be entitled to credit under SECTIONS 3.4.(A) through
3.4.(D) and the other party shall pay the undisputed amount within
thirty (30) days of receipt of the invoice.
3.5. Allocation of Purchase Price. The aggregate Purchase Price
(including the assumption by Buyer of the Assumed Liabilities) 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
(the "Code") and the regulations thereunder. RAS1, RAS2 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, RAS1 and RAS2 will disclose such reports to the other
prior to filing with the IRS.
4. REPRESENTATIONS AND WARRANTIES OF RAS1, RAS2 AND RYE
RAS1, RAS2 and RYE, jointly and severally, make the following
representations and warranties to Buyer, each of which is true and correct on
the date hereof, shall remain true and correct to and including the Closing
Date, shall be unaffected by any investigation heretofore or hereafter made by
Buyer, or any knowledge of Buyer other than as specifically disclosed in the
Disclosure Schedule delivered to Buyer at the time of the execution of this
Agreement, and shall survive the Closing of the transactions provided for
herein for a period of two (2) years from the Closing Date, except for those
representations and warranties relating to tax matters which shall survive for
a period equal to the statute of limitations with respect to such matters.
4.1. Organization.
4.1.(a) Organization. RAS1 is a limited partnership duly
organized, validly existing and in good standing under the laws of the
State of Delaware. RAS2 is a limited liability company duly organized
and in good standing under the laws of the State of Delaware.
4.1.(b) Power. RAS1 and RAS2 have all requisite partnership
and limited liability company power and authority to own, operate and
lease their properties, to carry on their business as and where such
is now being conducted, to enter into this Agreement and the other
documents and instruments to be executed and delivered by them
pursuant hereto and to carry out the transactions contemplated hereby
and thereby.
4.1.(c) Qualification. RAS1 and RAS2 are duly licensed or
qualified to do business as a foreign partnership and limited
liability company, respectively, and are in good standing in Hawaii
and in each jurisdiction wherein the character of the properties owned
or leased by them, or the nature of their business, makes such
licensing or qualification necessary.
4.1.(d) No Subsidiaries. Neither RAS1 nor RAS2 own any
interest in any corporation, partnership or other entity.
4.2. Authority. The execution and delivery of this Agreement and
the other documents and
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instruments to be executed and delivered by RAS1 and RAS2 pursuant hereto and
the consummation of the transactions contemplated hereby and thereby have been
duly authorized by the general partners of RAS1 and the management and members
of RAS2. No other or further partnership or limited liability company act or
proceeding on the part of RAS1 or RAS2 is necessary to authorize this Agreement
or the other documents and instruments to be executed and delivered by RAS1 or
RAS2 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
RAS1 and RAS2 pursuant hereto will constitute, valid binding agreements of RAS1
and RAS2, 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.
4.3. No Violation. Neither the execution and delivery of this
Agreement or the other documents and instruments to be executed and delivered
by RAS1 or RAS2 pursuant hereto, nor the consummation by RAS1 or RAS2 of the
transactions contemplated hereby and thereby (a) will violate any applicable
Law or Order, (b) except for applicable requirements of the Hart-Scott-Rodino
Antitrust Improvements Act of 1976 (the "HSR Act"), will require any
authorization, consent, approval, exemption or other action by or notice to any
Government Entity, (c) will violate or conflict with, or constitute a default
(or an event which, with notice or lapse of time, or both, would constitute a
default) 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 4.12.(A)) upon any of the assets of RAS1 or RAS2 under, any term or
provision of the organizational documents of RAS1 or RAS2 or of any contract,
commitment, understanding, arrangement, agreement or restriction of any kind or
character to which RAS1 or RAS2 is a party or by which RAS1 or RAS2 or any of
their assets or properties may be bound or affected.
4.4. Financial Statements. Included as SCHEDULE 4.4 are true and
complete copies of the financial statements of RAS1 and RAS2 consisting of
balance sheets of RAS1 and RAS2 as of December 31, 1999, and the related
statements of income and cash flows for the year then ended (including the
notes contained therein or annexed thereto), (the "Financials"). All of such
financial statements (including all notes and schedules contained therein or
annexed thereto) are true, complete and accurate, have been prepared in
accordance with generally accepted accounting principles (except, in the case
of unaudited statements, for the absence of footnote disclosure) applied on a
consistent basis, have been prepared in accordance with the books and records
of RAS1 or RAS2, and fairly present, in accordance with generally accepted
accounting principles, the assets, liabilities and financial position, the
results of operations and cash flows of RAS1 and RAS2 as of the dates and for
the years and periods indicated.
4.5. Tax Matters.
4.5.(a) Provision For Taxes. The provision made for taxes on
the Financials is sufficient for the payment of all federal, state,
foreign, county, local and other income, ad valorem, excise, profits,
franchise, occupation, property, payroll, sales, use, gross receipts
and other taxes (and any interest and penalties) and assessments,
whether or not disputed at the date of the Financials, and for all
years and periods prior thereto. Since the date of the Financials,
RAS1 and RAS2 have not incurred any taxes other than taxes incurred in
the ordinary course of business consistent in type and amount with
past practices of RAS1 and RAS2.
4.5.(b) Tax Returns Filed. All federal, state, foreign,
county, local and other tax returns required to be filed by or on
behalf of RAS1 and RAS2 have been timely filed and when filed were
true and correct in all material respects, and the taxes shown as due
thereon were paid or adequately accrued. RAS1 and RAS2 have duly
withheld and paid all taxes which it is required to withhold and pay
relating to salaries and other compensation heretofore paid to the
employees of RAS1 and RAS2.
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4.5.(c) Tax Audits. The federal and state income tax returns
of RAS1 and RAS2 have not been audited by the Internal Revenue Service
and appropriate state taxing authorities, and RAS1 and RAS2 have not
received from the Internal Revenue Service or from the tax authorities
of any state, county, local or other jurisdiction any notice of
underpayment of taxes or other deficiency which has not been paid nor
any objection to any return or report filed by RAS1 and RAS2. There
are outstanding no agreements or waivers extending the statutory
period of limitations applicable to any tax return or report.
4.5.(d) Consolidated Group. Neither RAS1 nor RAS2 has been a
member of an affiliated group of corporations that filed a
consolidated tax return on which the statute of limitations does not
bar a federal tax assessment, and each corporation that has been part
of such group.
4.5.(e) Other. Neither RAS1 nor RAS2 has (i) filed any
consent or agreement under Section 341(f) of the Code, (ii) applied
for any tax ruling, (iii) entered into a closing agreement with any
taxing authority, (iv) filed an election under Section 338(g) or
Section 338(h)(10) of the Code (nor has a deemed election under
Section 338(e) of the Code occurred), (v) made any payments, or been a
party to an agreement (including this Agreement) that under any
circumstances could obligate it to make payments that will not be
deductible because of Section 280G of the Code, or (vi) been a party
to any tax allocation or tax sharing agreement.
4.6. Accounts Receivable. All accounts receivable of RAS1 and RAS2
reflected on the Financials, and as incurred in the normal course of business
since the date thereof, which are approximately $40,222 for the Waikiki
Restaurant and $16,885 for the Kahana Restaurant, represent arm's length
transactions actually made in the ordinary course of business; are collectible
(net of the reserves shown on the Financials for doubtful accounts) in the
ordinary course of business without the necessity of commencing legal
proceedings; are subject to no counterclaim or setoff; and are not in dispute.
4.7. Inventory. All inventory of RAS1 and RAS2 reflected on the
Financials consists of a quality and quantity usable and saleable in the
ordinary course of business, had a commercial value at least equal to the value
shown on such balance sheet and is valued in accordance with generally accepted
accounting principles at the lower of cost (on a FIFO basis) or market value.
All current inventory consists of a quality and quantity usable and saleable in
the ordinary course of business. All inventory of RAS1 and RAS2 is located on
premises owned or leased by RAS1 and RAS2 as reflected in this Agreement.
4.8. Absence of Certain Changes. Except as and to the extent set
forth in SCHEDULE 4.8, since the date of the Financials there has not been:
4.8.(a) No Adverse Change. Any material adverse change in the
financial condition, assets, Liabilities, business, prospects or
operations of RAS1 or RAS2;
4.8.(b) No Damage. Any material loss, damage or destruction,
whether covered by insurance or not, affecting RAS1's or RAS2's
business or properties;
4.8.(c) No Increase in Compensation. Other than such thereof
as has occurred in the ordinary course of business, any increase in
the compensation, salaries or wages payable or to become payable to
any employee or agent of RAS1 or RAS2 (including, without limitation,
any increase or change pursuant to any bonus, pension, profit sharing,
retirement or other plan or commitment), or any bonus or other
employee benefit granted, made or accrued;
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4.8.(d) No Labor Disputes. Any labor dispute or disturbance,
other than routine individual grievances which are not material to the
business, financial condition or results of operations of RAS1 or
RAS2;
4.8.(e) No Commitments. Any material commitment or
transaction by RAS1 or RAS2 (including, without limitation, any
borrowing or capital expenditure) other than in the ordinary course of
business consistent with past practice;
4.8.(f) No Disposition of Property. Any sale, lease or other
transfer or disposition of any properties or assets of RAS1 or RAS2,
except in the ordinary course of business;
4.8.(g) No Indebtedness. Any indebtedness for borrowed money
incurred, assumed or guaranteed by RAS1 or RAS2;
4.8.(h) No Liens. Any Lien made on any of the properties or
assets of RAS1 or RAS2 other than liens for taxes not yet due and
payable;
4.8.(i) No Amendment of Contracts. Any entering into,
amendment or termination by RAS1 or RAS2 of any contract, or any
waiver of material rights thereunder, other than in the ordinary
course of business;
4.8.(j) Loans and Advances. Any loan or advance (other than
advances to employees in he ordinary course of business for travel and
entertainment in accordance with past practice) to any person
including, but not limited to, any officer, director, manager or
employee of RAS1 or RAS2, or any member, partner or Affiliate, except
for loans to James Wagner and Allison Catugal, employees of the
company in the amounts of _________________________and
____________________, respectively, which are being repaid through
payroll deductions pursuant to written authorization and which Buyer
agrees to continue to deduct and remit to RAS2 so long as the
respective employee is employed by Buyer and the written
authorizations remain in full force and effect, until such time as the
loans are repaid in full; or
4.8.(k) No Unusual Events. Any other event or condition not
in the ordinary course of business of RAS1 or RAS2.
4.9. Absence of Undisclosed Liabilities. Except as and to the
extent specifically disclosed in the Financials, or in SCHEDULE 4.10
(Litigation Matters), neither RAS1 nor RAS2 have any Liabilities other than
commercial liabilities and obligations incurred since the date of the
Financials in the ordinary course of business and consistent with past practice
and none of which has or will have a material adverse effect on the business,
financial condition or results of operations of RAS1 or RAS2. Except as and to
the extent described in the Financials or in SCHEDULE 4.10 (Litigation
Matters), neither RAS1 nor RAS2 nor any partner or member has knowledge of any
basis for the assertion against RAS1 or RAS2 of any Liability and there are no
circumstances, conditions, happenings, events or arrangements, contractual or
otherwise, which may give rise to Liabilities, except commercial liabilities
and obligations incurred in the ordinary course of RAS1's and RAS2's business
and consistent with past practice.
4.10. No Litigation. Except as set forth in SCHEDULE 4.10 there is
no Litigation pending or threatened against RAS1 or RAS2 (in such capacity),
their business, the Restaurants or any of their assets, nor does RAS1 or RAS2
or any member, manager or partner know, or have grounds to know, of any basis
for any Litigation.
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Except as set forth in SCHEDULE 4.10, neither RAS1 nor RAS2 nor their business
or assets or the Restaurants is subject to any Order of any Government Entity.
4.11. Compliance With Laws and Orders.
4.11.(a) Compliance. RAS1 and RAS2 (including the Restaurants
and each and all of their operations, practices, properties and
assets) are in material compliance with all applicable Laws and
Orders, including, without limitation, those applicable to
discrimination in employment, occupational safety and health, trade
practices, competition and pricing, product warranties, zoning,
building and sanitation, employment, retirement and labor relations,
product advertising and the Environmental Laws as hereinafter defined.
Neither RAS1 nor RAS2 has received notice of any violation or alleged
violation of, and is subject to no Liability for past or continuing
violation of, any Laws or Orders. All reports and returns required to
be filed by RAS1 and RAS2 with any Government Entity have been filed,
and were accurate and complete when filed. Without limiting the
generality of the foregoing:
(i) The operation of RAS1's and RAS2's
businesses as they are now conducted do not, nor does any
condition existing at any of the Restaurants, in any manner
constitute a nuisance or other tortious interference with the
rights of any person or persons in such a manner as to give
rise to or constitute the grounds for a suit, action, claim
or demand by any such person or persons seeking compensation
or damages or seeking to restrain, enjoin or otherwise
prohibit any aspect of the conduct of such business or the
manner in which it is now conducted.
(ii) RAS1 and RAS2 have made all required
payments to their unemployment compensation reserve accounts
with the appropriate governmental departments of the states
where they are required to maintain such accounts, and each
of such accounts has a positive balance.
(iii) RAS1 and RAS2 have delivered to Buyer
copies of any reports of RAS1 and RAS2 for the past five (5)
years required under all applicable health and safety laws
and regulations. The deficiencies, if any, noted on such
reports have been corrected.
4.11.(b) Licenses and Permits. RAS1 and RAS2 have, or will
have on the Closing Date, all licenses, permits, approvals,
authorizations and consents of all Government Entities and all
certification organizations required for the conduct of the business
(as presently conducted and as proposed to be conducted) and operation
of the Restaurants. All such licenses, permits, approvals,
authorizations and consents are described in SCHEDULE 4.11.(B), are in
full force and effect and are assignable to Buyer in accordance with
the terms hereof. Except as set forth in SCHEDULE 4.11.(B), RAS1 and
RAS2 (including their operations, properties and assets) are and have
been in compliance with all such permits and licenses, approvals,
authorizations and consents.
4.11.(c) Environmental Matters. The applicable Laws relating
to pollution or protection of the environment, including Laws relating
to emissions, discharges, generation, storage, releases or threatened
releases of pollutants, contaminants, chemicals or industrial, toxic,
hazardous or petroleum or petroleum-based substances or wastes
("Waste") into the environment (including, without limitation, ambient
air, surface water, ground water, land surface or subsurface strata)
or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Waste
including, without limitation, the Clean Water Act, the Clean Air Act,
the Resource Conservation and Recovery Act, the Toxic Substances
Control Act and the Comprehensive Environmental Response Compensation
Liability Act ("CERCLA"), as amended, and their state and local
counterparts are herein collectively
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referred to as the "Environmental Laws". Without limiting the
generality of the foregoing provisions of this SECTION 4.11, RAS1 and
RAS2 are in full compliance with all limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in the Environmental Laws or
contained in any regulations, code, plan, order, decree, judgment,
injunction, notice or demand letter issued, entered, promulgated or
approved thereunder. There is no Litigation nor any demand, claim,
hearing or notice of violation pending or threatened against RAS1 and
RAS2 relating in any way to the Environmental Laws or any Order
issued, entered, promulgated or approved thereunder. There are no past
or present (or, to the best of RAS1's, RAS2's, and RYE's knowledge,
future) events, conditions, circumstances, activities, practices,
incidents, actions, omissions or plans which may interfere with or
prevent compliance or continued compliance with the Environmental Laws
or with any Order issued, entered, promulgated or approved thereunder,
or which may give rise to any Liability, including, without
limitation, Liability under CERCLA or similar state or local Laws, or
otherwise form the basis of any Litigation, hearing, notice of
violation, study or investigation, based on or related to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling, or the emission, discharge, release
or threatened release into the environment, of any Waste.
4.12. Title to and Condition of Properties.
4.12.(a) Marketable Title. RAS1 and RAS2 have good and
marketable 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, easements, covenants, reservations, restrictions,
rights-of-way, exceptions, limitations, charges or encumbrances of any
nature whatsoever (collectively, "Liens") other than liens for taxes
not yet due and payable and the interests of the lessors under Real
Property Leases and Personal Property Leases ("Permitted Real Property
Liens"). None of the Purchased Assets are subject to any restrictions
with respect to the transferability thereof. RAS1 and RAS2 have
complete and unrestricted power and right to sell, assign, convey and
deliver the Purchased Assets to Buyer as contemplated hereby. At
Closing, Buyer will receive good and marketable title to all the
Purchased Assets, free and clear of all Liens of any nature
whatsoever.
4.12.(b) Condition. All tangible assets (real and personal)
constituting Purchased Assets hereunder are in good operating
condition and repair, free from any defects (except such minor defects
as do not interfere with the use thereof in the conduct of the normal
operations of RAS1 and RAS2), have been maintained consistent with the
standards generally followed in the industry and are sufficient to
carry on the business of RAS1 and RAS2, including the operation of the
Restaurants, as conducted during the preceding twelve (12) months. All
buildings and other structures owned or otherwise utilized by RAS1 and
RAS2 are in good condition and repair and have no structural defects
or defects affecting the plumbing, electrical, sewerage, or heating,
ventilating or air conditioning systems.
4.12.(c) No Condemnation or Expropriation. Neither the whole
nor any portion of the property or any other assets of RAS1 or RAS2 is
subject to any Order to be sold or is being condemned, expropriated or
otherwise taken by any Government Entity with or without payment of
compensation therefor, nor to the best of RAS1's, RAS2's and RYE's
knowledge has any such condemnation, expropriation or taking been
proposed.
4.12.(d) No Certified Survey Map Required. No certified
survey map or other state, municipal, or other governmental approval
regarding the division, platting, or mapping of real estate is
required as a prerequisite to the conveyance by RAS1 or RAS2 to Buyer
(or as a prerequisite to the recording of any conveyance document) of
any Leased Real Property pursuant to the terms hereof.
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4.13. Insurance. True and correct copies of all policies of fire,
liability, product liability, workers compensation, health and other forms of
insurance presently in effect with respect to the business and properties of
RAS1 and RAS2, have heretofore been delivered to Buyer. No notice of
cancellation or termination has been received with respect to any such policy
and neither RAS1, RAS2 nor RYE has knowledge of any act or omission that could
result in cancellation of any such policy prior to the Closing Date. Effective
as of the Closing Date, Buyer will procure its own insurance policies and RAS1
and RAS2 will cancel its policies.
4.14. Contracts and Commitments.
4.14.(a) Real Property Leases. Except as set forth in
SCHEDULE 1.1.(A), neither RAS1 nor RAS2 has leases of real property.
The Real Property Leases are in full force and effect, neither RAS1,
RAS2 nor RYE is in default of any term, covenant or obligation under
any of the Real Property Leases, and no condition exists which, with
the passage of time or giving of notice, would constitute a default
under any term, covenant or obligation of RAS1, RAS2, RYE or the
Restaurants.
4.14.(b) Personal Property Leases. Except as set forth in
SCHEDULE 1.1.(D), neither RAS1 nor RAS2 has leases of personal
property involving consideration or other expenditure in excess of
$1,000 or involving performance over a period of more than twelve (12)
months.
4.14.(c) Purchase Commitments. Neither RAS1 nor RAS2 has any
purchase commitments for inventory items or supplies that, together
with amounts on hand, constitute in excess of two (2) months normal
usage, or which are at an excessive price.
4.14.(d) Contracts With Affiliates and Certain Others.
Neither RAS1 nor RAS2 has any agreement, understanding, contract or
commitment (written or oral) with any Affiliate or any other officer,
employee, agent, consultant, distributor, dealer or franchisee that is
not cancelable by RAS1 or RAS2 on notice of not longer than thirty
(30) days without liability, penalty or premium of any nature or kind
whatsoever.
4.14.(e) Collective Bargaining Agreements. Neither RAS1 nor
RAS2 is a party to any collective bargaining agreement with any
unions, guilds, shop committees or other collective bargaining groups.
Copies of all such agreements have heretofore been delivered to Buyer.
4.14.(f) Loan Agreements. Neither RAS1 nor RAS2 is obligated
under any loan agreement, promissory note, letter of credit, or other
evidence of indebtedness as a signatory, guarantor or otherwise.
4.14.(g) Guarantees. Neither RAS1 nor RAS2 has guaranteed
the payment or performance of any person, firm or corporation, agreed
to indemnify any person or act as a surety, or otherwise agreed to be
contingently or secondarily liable for the obligations of any person.
4.14.(h) Burdensome or Restrictive Agreements. Neither RAS1
nor RAS2 is a party to nor is either bound by any agreement, deed,
lease or other instrument which is so burdensome as to materially and
adversely affect or impair the operation of RAS1 or RAS2. Without
limiting the generality of the foregoing, neither RAS1 nor RAS2 is a
party to nor is it bound by any agreement requiring RAS1 or RAS2 to
assign any interest in any trade secret or proprietary information, or
prohibiting or restricting RAS1 or RAS2 from competing in any business
or geographical area or soliciting customers or otherwise restricting
it from carrying on its business anywhere in the world.
4.14.(i) Other Material Contracts. Neither RAS1 nor RAS2 has
any lease, license, contract or
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commitment of any nature involving consideration or other expenditure
in excess of $1,000, or involving performance over a period of more
than 12 months, or which is otherwise individually material to the
operations of RAS1 or RAS2, except as explicitly described in any
Schedule.
4.14.(j) No Default. To their knowledge, neither RAS1 nor
RAS2 is in default under any lease, 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 RAS1's or RAS2's obligations or
result in the creation of any Lien on any of the assets owned, used or
occupied by RAS1, RAS2 or the Restaurants. To the knowledge of RAS1
and RAS2, no third party is in default under any lease, contract or
commitment to which RAS1 or RAS2 is a party, 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 give rise to
an automatic termination, or the right of discretionary termination,
thereof.
4.15. Labor Matters. Neither RAS1 nor RAS2 has experienced any
labor disputes, union organization attempts or any work stoppage due to labor
disagreements in connection with its business. RAS1 and RAS2 are in compliance
with all applicable laws respecting employment and employment practices, terms
and conditions of employment and wages and hours, and are not engaged in any
unfair labor practice; (b) there is no unfair labor practice charge or
complaint against RAS1 or RAS2 pending or threatened; (c) there is no labor
strike, dispute, request for representation, slowdown or stoppage actually
pending or threatened against or affecting RAS1 or RAS2 nor any secondary
boycott with respect to products of RAS1 or RAS2; (d) no question concerning
representation has been raised or is threatened respecting the employees of
RAS1 or RAS2; (e) no grievance which might have a material adverse effect on
RAS1 or RAS2, nor any arbitration proceeding arising out of or under collective
bargaining agreements, is pending and no such claim therefor exists; and (f)
there are no administrative charges or court complaints against RAS1 or RAS2
concerning alleged employment discrimination or other employment related
matters pending or threatened before the U.S. Equal Employment Opportunity
Commission or any Government Entity, except as disclosed on SCHEDULE 4.10.
4.16. Employee Benefit Plans. RAS1 and RAS2 have provided and/or
identified each "employee benefit plan," as defined in Section 3(3) of ERISA
which (i) is subject to any provision of ERISA and (ii) is or was at any time
during the last five (5) years maintained, administered or contributed to by
RAS1 and RAS2 or any affiliate (as defined in Section 407(d)(7) of ERISA) and
covers any employee or former employee of RAS1 or RAS2 or any affiliate or
under which RAS1 or RAS2 or any affiliate has any liability. Such plans are
referred to collectively herein as the "Employee Plans." None of the Employee
Plans would, individually or collectively, constitute an "employee pension
benefit plan" as defined in Section 3(2) of ERISA, including, without
limitation, a "multiemployer plan," as defined in Section 3(37) of ERISA, or a
"defined benefit plan," as defined in Section 3(35) and subject to Title IV of
ERISA, and no Employee Plan is maintained in connection with any trust
described in Section 501(c)(9) of the Code. It is understood and agreed that
Buyer is not assuming any Employee Plans or liabilities associated therewith,
and that RAS1 and RAS2 shall retain all such Employee Plans, including all
obligations deriving directly or indirectly from sponsoring or participating in
such Employee Plans.
Each Employee Plan has been maintained in compliance with its terms
and the requirements prescribed by any and all statutes, orders, rules and
regulations, including but not limited to, ERISA and the Code, which are
applicable to such Plan. No assets of RAS1 or RAS2 are or could be subject,
directly or indirectly, to any liability or lien by reason of any action or
inaction taken with respect to any Employee Plan maintained by RAS1 or RAS2.
RAS1 and RAS2 have no liability in respect of post-retirement health
and medical benefits for retired employees of RAS1 or RAS2 or any Affiliate,
determined using assumptions that are reasonable in the aggregate,
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over the fair market value of any fund, reserve or other assets segregated for
the purpose of satisfying such liability (including for such purposes any fund
established pursuant to Section 401(h) of the Code). RAS1 and RAS2 have
reserved their rights to amend or terminate any Employee Plan or other benefit
arrangement providing health or medical benefits in respect of any active
employee of RAS1 and RAS2 under the terms of any such plan and descriptions
thereof given to employees. With respect to any Employee Plans which are "group
health plans" under Section 4980B of the Code and Section 607(l) of ERISA,
there has been timely compliance in all material respects with all requirements
imposed thereunder, and under Parts 6 and 7 of Title I of ERISA generally, so
that RAS1 and RAS2 and any affiliate have no (and will not incur any) loss,
assessment, tax penalty or other sanction with respect to any such plan.
There has been no amendment to, written interpretation or announcement
(whether or not written) by RAS1, RAS2 or any affiliate relating to, or change
in employee participation or coverage under, any Employee Plan which would
increase the expense of maintaining such Employee Plan above the level of the
expense incurred in respect thereof for the fiscal year ended immediately prior
to the Closing Date.
4.17. Employment Compensation. SCHEDULE 4.17 contains a true and
correct list of all employees to whom RAS1 or RAS2 is paying compensation,
including bonuses and incentives, at an annual rate in excess of Twenty
Thousand Dollars ($20,000) for services rendered or otherwise; and in the case
of salaried employees such list identifies the current annual rate of
compensation for each employee and in the case of hourly or commission
employees identifies certain reasonable ranges of rates and the number of
employees falling within each such range.
4.18. Trade Rights. In order to conduct the business of RAS1, RAS2
and the Restaurants as such is currently being conducted or proposed to be
conducted, neither RAS1 nor RAS2 requires any Trade Rights that it does not
already have. Neither RAS1 nor RAS2 is infringing and has not infringed any
Trade Rights of another in the operation of the business of RAS1 and RAS2, nor
is any other person infringing the Trade Rights of RAS1 or RAS2. Neither RAS1
nor RAS2 has granted any license or made any assignment of any Trade Right, and
no other person has any right to use any Trade Right owned or held by RAS1 and
RAS2, except for other operators of Outback Steakhouse(R) restaurants. Neither
RAS1 nor RAS2 pays any royalties or other consideration for the right to use
any Trade Rights of others, except for the payments to Buyer. There is no
Litigation pending or threatened to challenge RAS1's or RAS2's right, title and
interest with respect to its continued use and right to preclude others from
using any Trade Rights of RAS1 and RAS2. All Trade Rights of RAS1 and RAS2 are
valid, enforceable and in good standing, and there are no equitable defenses to
enforcement based on any act or omission of RAS1 or RAS2.
4.19. Major Suppliers. SCHEDULE 4.19. contains a list of the five
(5) largest suppliers to RAS1 and RAS2 for each of the two (2) most recent
fiscal years (determined on the basis of the total dollar amount of purchases)
showing the total dollar amount of purchases from each such supplier during
each such year. Neither RAS1, RAS2 nor RYE has any knowledge or information of
any facts indicating, nor any other reason to believe, that any of the
suppliers listed on SCHEDULE 4.19. will not continue to be suppliers to the
business of RAS1 and RAS2 after the Closing and will not continue to supply the
Restaurants with substantially the same quantity and quality of goods at
competitive prices.
4.20. Affiliates' Relationships to Company.
4.20.(a) Contracts With Affiliates. All leases, contracts,
agreements or other arrangements between RAS1 or RAS2 and any
Affiliate are described on SCHEDULE 4.20.(A).
4.20.(b) No Adverse Interests. Other than RY-8, Inc. (as a
joint venture partner with OS Pacific,
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Inc. in that certain joint venture known as "Roy's/Outback Joint
Venture"), no Affiliate has any direct or indirect interest in (i) any
entity which does business with RAS1 or RAS2 or is competitive with
RAS1's or RAS2's business, or (ii) any property, asset or right which
is used by RAS1 or RAS2 in the conduct of its business or the
operation of the Restaurants.
4.20.(c) Obligations. All obligations of any Affiliate to
RAS1 or RAS2, and all obligations of RAS1 or RAS2 to any Affiliate,
are listed on SCHEDULE 4.20.(C).
4.21. Partner List. SCHEDULE 4.21 sets forth a complete list of all
of the partners in RAS1 on the date hereof.
4.22. Member List. RAS1 is the sole member and manager of RAS2.
4.23. Assets Necessary to Business. The Purchased Assets include
all property and assets (except for the Excluded Assets), tangible and
intangible, and all leases, licenses and other agreements, which are necessary
to permit Buyer to carry on, or currently used or held for use in, the business
of RAS1 and RAS2 as presently conducted.
4.24. No Brokers or Finders. Neither RAS1 nor RAS2 nor any of their
directors, officers, employees, managers, partners, 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.
4.25. Disclosure. No representation or warranty by RAS1, RAS2
and/or RYE in this Agreement, nor any statement, certificate, schedule,
document or exhibit hereto furnished or to be furnished by or on behalf of
RAS1, RAS2 or RYE 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. All statements and information contained in
any certificate, instrument, Disclosure Schedule or document delivered by or on
behalf of RAS1, RAS2 or RYE shall be deemed representations and warranties by
RAS1, RAS2 and RYE.
5. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer makes the following representations and warranties to RAS1, RAS2
and RYE, each of which is true and correct on the date hereof, shall remain
true and correct to and including the Closing Date, shall be unaffected by any
investigation heretofore or hereafter made by RAS1 or RAS2 or any notice to
RAS1 or RAS2, and shall survive the Closing of the transactions provided for
herein for a period of two (2) years from the Closing Date.
5.1. Organization.
5.1.(a) Organization. Buyer is a limited partnership duly
organized, validly existing and in good standing under the laws of the
State of Florida.
5.1.(b) Power. Buyer has all requisite limited partnership
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.
5.2. 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
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contemplated hereby and thereby have been duly authorized by the general
partner of Buyer. No other partnership act or proceeding on the part of Buyer
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.
5.3. No Brokers or Finders. Neither Buyer nor any of its partners,
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.
5.4. 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. EMPLOYEES - EMPLOYEE BENEFITS
6.1. Affected Employees. "Affected Employees" shall mean employees
of the RAS1 and RAS2 who are employed by Buyer immediately after the Closing.
6.2. Retained Responsibilities. RAS1 and RAS2 agree to satisfy, or
cause their insurance carriers to satisfy, all claims for benefits, whether
insured or otherwise (including, but not limited to, workers' compensation,
life insurance, medical and disability programs), under RAS1's or RAS2's
employee benefit programs brought by, or in respect of, Affected Employees and
other employees and former employees of the RAS1 and RAS2, which claims arise
out of events occurring on or prior to the Closing Date, in accordance with the
terms and conditions of such programs or applicable workers' compensation
statutes without interruption as a result of the employment by Buyer of any
such employees after the Closing Date.
6.3. Payroll Tax. RAS1 and RAS2 have made a clean cut-off of
payroll and payroll tax reporting with respect to the Affected Employees paying
over to the federal, state and city governments those amounts respectively
withheld or required to be withheld for periods ending on or prior to the
Effective Date. RAS1 and RAS2 also have issued, by the date prescribed by IRS
Regulations, Forms W-2 for wages paid through the Effective Date. Except as set
forth in this Agreement, Buyer shall be responsible for all payroll and payroll
tax obligations after the Effective Date for Affected Employees.
6.4. Termination Benefits. Buyer shall be solely responsible for,
and shall pay or cause to be paid, severance payments and other termination
benefits, if any, to Affected Employees who may become entitled to such
benefits by reason of any events occurring after the Effective Date. If any
action on the part of RAS1 or RAS2 prior to the Closing, or if the sale to
Buyer of the business and assets of RAS1 or RAS2 pursuant to this Agreement or
the transactions contemplated hereby, or if the failure by Buyer to hire as a
permanent employee of Buyer any employee of RAS1 or RAS2, shall directly or
indirectly result in any Liability (i) for severance payments or termination
benefits or (ii) by virtue of any state, federal or local law, such Liability
shall be the sole responsibility of RAS1, RAS2 and RYE, and RAS1, RAS2 and RYE
shall, jointly and severally, indemnify and hold harmless Buyer against such
Liability.
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6.5. No Third-Party Rights. Nothing in this Agreement, express or
implied, is intended to confer upon any of RAS1's or RAS2's employees, former
employees, collective bargaining representatives, job applicants, any
association or group of such persons or any Affected Employees, any rights or
remedies of any nature or kind whatsoever under or by reason of this Agreement,
including, without limitation, any rights of employment.
7. OTHER MATTERS
7.1. Pre-Effective Date Revenue and Expenses. RAS1 and RAS2 shall
be responsible for all expenses, debts and other Liabilities of RAS1, RAS2 and
the Restaurants arising out of or relating to periods prior to the Effective
Date.
7.2 Post-Effective Date Revenue and Expenses. The Buyer shall be
responsible for all expenses, debts and other Liabilities of the Restaurants
arising out of or relating to periods as of and subsequent to the Effective
Date.
7.3 Noncompetition; Confidentiality. Subject to the Closing, and
as an inducement to Buyer to execute this Agreement and complete the
transactions contemplated hereby, and in order to preserve the goodwill
associated with the Restaurants and the business of RAS1 and RAS2 being
acquired pursuant to this Agreement, and in addition to and not in limitation
of any covenants contained in any agreement executed and delivered pursuant to
SECTION 7.3 hereof, RAS1, RAS2 and RYE hereby covenant and agree as follows:
7.3(a) Noncompetition. For a two (2) year period commencing
on the Closing Date, neither RAS1, RAS2 nor RYE shall, individually or
jointly with others, directly or indirectly, whether for their own
account or for that of any other person or entity, engage in or own or
hold any ownership interest in any person or entity engaged in a
restaurant business with a theme, decor or principal food the same as
or similar to that of any restaurant business of the Buyer or its
Affiliates (including, but not limited to, Italian or steakhouse
restaurants), and which is located or intended to be located anywhere
within a radius of thirty (30) miles of any restaurant owned or
operated by the Buyer or its Affiliates or any proposed restaurant to
be owned or operated by any of the foregoing, and neither RAS1, RAS2
nor RYE shall act as a partner, consultant, principal, agent, 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 7.3(A) for
RAS1, RAS2 or RYE to own a one percent (1%) or smaller interest in any
corporation required to file periodic reports with the Securities and
Exchange Commission. For purposes of this SECTION 7.3(A), restaurants
owned or operated by the Buyer shall include restaurants operated or
owned by an Affiliate of the Buyer, any successor entity to the Buyer,
and any entity in which the Buyer has an interest, including but not
limited to, an interest as franchisor. The term "proposed restaurant"
shall include all locations for which the Buyer or its Affiliates is
conducting active, bona fide negotiations to secure a fee or leasehold
interest with the intention of establishing a restaurant thereon.
7.3.(b) Nondisclosure; Nonsolicitation. At no time prior to
or subsequent to Closing, shall RAS1, RAS2 or RYE, for the benefit of
RAS1, RAS2, RYE or any third party, publish, disclose, use, or
authorize anyone else to publish, disclose, or use, any secret or
confidential material or information relating to any aspect of the
business or operations of the Buyer, its Affiliates or the
Restaurants, including, without limitation, any secret or confidential
information relating to the business, customers, trade or industrial
practices, trade secrets, technology, recipes or know-how of any of
the Buyer or its Affiliates. Moreover, for a period of two (2) years
from the Closing, neither RAS1, RAS2 nor RYE shall offer employment to
any employee of the Buyer or its Affiliates, or otherwise solicit or
induce any employee of either of the Buyer or its Affiliates to
terminate their employment, nor shall RAS1, RAS2 or
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RYE act as a partner, consultant, principal, agent, owner or part
owner, or in any other capacity, for any person or entity which
solicits or otherwise induces any employee of the Buyer or its
Affiliates to terminate their employment.
7.3.(c) Reasonableness of Restrictions; Reformation;
Enforcement. The parties hereto recognize and acknowledge that the
geographical and time limitations contained in SECTION 7.3(A) AND (B)
hereof are reasonable and properly required for the adequate
protection of the Buyer's interests. RAS1, RAS2 and RYE acknowledge
that all rights of RAS1, RAS2 and RYE to the Outback Steakhouse(R)
trademarks and restaurant operating system have been transferred to
Buyer (or terminated) pursuant to this Agreement in reliance on the
covenants contained in SECTION 7.3 hereof. It is agreed by the parties
hereto that if any portion of the restrictions contained in SECTION
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 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 which is determined to be reasonable,
nonarbitrary, and not against public policy may be enforced against
RAS1, RAS2 and RYE. If RAS1, RAS2 or RYE shall violate any of the
covenants contained herein and if any court action is instituted by
the Buyer to prevent or enjoin such violation, then the period of time
during which the against RAS1's, RAS2's or RYE's 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 RAS1, RAS2 or RYE's 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.
In the event it is necessary for the Buyer to initiate legal
proceedings to enforce, interpret or construe any of the covenants
contained in SECTION 7.3 hereof, the prevailing party in such
proceedings shall be entitled to receive from the non-prevailing party,
in addition to all other remedies, all costs, including reasonable
attorneys' fees, of such proceedings including appellate proceedings.
7.3.(d) Specific Performance. RAS1, RAS2 and RYE agree that
a breach of any of the covenants contained in SECTION 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 RAS1, RAS2 and RYE from any threatened or actual activities
in violation of any such covenants. RAS1, RAS2 and RYE hereby consent
and agree that temporary and permanent injunctive relief may be
granted in any proceedings which 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, neither RAS1, RAS2
nor RYE shall raise as a defense thereto that the Buyer has an
adequate remedy at law.
7.4. Use of Name. Following the Closing, neither RAS1 nor RAS2 nor
any Affiliate of them shall, without the prior written consent of Buyer, make
any use of the name "Outback" or any other name confusingly similar thereto,
except in connection with the Roy's/Outback Joint Venture and as may be
necessary for RAS1 or RAS2 to pay its liabilities, prepare tax returns and
other reports, and to otherwise wind up and conclude its business.
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7.5. Sales Tax Matters. At or prior to the Closing, RAS1 and RAS2
shall obtain a sales tax clearance certificate from the Hawaii Department of
Taxation.
7.6. Unemployment Compensation. RAS1 and RAS2 shall, upon the
request of Buyer, cooperate with Buyer in any efforts by Buyer to obtain the
transfer of RAS1's and RAS2's portion of the Hawaii unemployment compensation
fund, if any, or rating applicable to Affected Employees, to the extent Buyer
elects to transfer and assume such amounts or rating. In connection therewith,
RAS1 and RAS2 will execute such documents as Buyer may reasonably request in
order to effectuate such transfer.
7.7. Bulk Sales Compliance. Following the execution of this
Agreement, unless compliance with this SECTION 7.7 is waived by Buyer, Buyer,
RAS1, RAS2 and RYE shall cooperate in complying with all provisions of the bulk
sales or bulk transfer statutes of all states having jurisdiction, in such a
way as to provide Buyer the greatest measure of protection against the
creditors of RAS1 and RAS2 allowable under all such statutes.
8. FURTHER COVENANTS OF RAS1, RAS2 AND RYE
RAS1, RAS2, and RYE covenant and agree as follows:
8.1. Access to Information and Records. During the period prior to
the Closing, RAS1 and RAS2 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 RAS1 and RAS2 for the
purpose of such inspection, investigation and testing as Buyer deems
appropriate (and RAS1 and RAS2 shall furnish or cause to be furnished to Buyer
and its representatives all information with respect to the business and
affairs of RAS1 and RAS2 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) with the prior consent of RAS1 and RAS2
in each instance (which consent shall not be unreasonably withheld), access to
vendors, customers, manufacturers of its machinery and equipment, and others
having business dealings with RAS1 and RAS2.
8.2. Conduct of Business Pending the Closing. From the date hereof
until the Closing, except as otherwise approved in writing by the Buyer:
8.2.(a) No Changes. RAS1 and RAS2 will carry on their
business diligently and in the same manner as heretofore and will not
make or institute any changes in its methods of purchase, sale,
management, accounting or operation.
8.2.(b) Maintain Organization. RAS1 and RAS2 will take such
action as may be necessary to maintain, preserve, renew and keep in
favor and effect the existence, rights and franchises of RAS1 and RAS2
and will use its best efforts to preserve the business organization of
RAS1 and RAS2 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 RAS1 and RAS2.
8.2.(c) No Breach. RAS1, RAS2 and RYE will not do or omit
any act, or permit any omission to act, which may cause a breach of
any material contract, commitment or obligation, or any breach of any
representation, warranty, covenant or agreement made by RAS1, RAS2
and/or RYE herein, or which would have required disclosure on SCHEDULE
4.8 had it occurred after the date of the Financials and prior to the
date of this Agreement.
8.2.(d) No Material Contracts. No contract or commitment
will be entered into, and no purchase of raw materials or supplies and
no
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sale of goods or services (real, personal, or mixed, tangible or
intangible) will be made, by or on behalf of RAS1 or RAS2, except
contracts, commitments, purchases or sales which are in the ordinary
course of business and consistent with past practice, are not material
to the RAS1 or RAS2 (individually or in the aggregate) and would not
have been required to be disclosed in the Disclosure Schedules had
they been in existence on the date of this Agreement.
8.2.(e) No Organizational Changes.
(i) RAS1 shall not amend its Certificate of
Limited Partnership or Partnership Agreement or admit any
additional partners.
(ii) RAS2 shall not amend its Articles of
Organization or Operating Agreement or admit any additional
members.
8.2.(f) Maintenance of Insurance. RAS1 and RAS2 shall
maintain all of the insurance in effect as of December 31, 1999 and
shall procure such additional insurance as shall be reasonably
requested by Buyer.
8.2.(g) Maintenance of Property. RAS1 and RAS2 shall use,
operate, maintain and repair all property of RAS1 or RAS2 in a normal
business manner.
8.2.(h) Interim Financials. RAS1 and RAS2 will provide Buyer
with interim monthly financial statements and other management reports
as and when they are available.
8.2.(i) No Negotiations. Neither RAS1, RAS2 nor RYE will
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 RAS1 or
RAS2, the Restaurants, RAS1's or RAS2's assets or business or any part
thereof or any ownership interests in RAS1 or RAS2 (an "acquisition
proposal"), and RAS1, RAS2 and RYE shall immediately advise Buyer of
the receipt of any acquisition proposal.
8.3. Consents. RAS1, RAS2 and RYE will use their best efforts
prior to Closing to obtain all consents necessary for the consummation of the
transactions contemplated hereby. Buyer agrees to reasonably cooperate with
RAS1 and RAS2 in securing such consents.
8.4. Other Action. RAS1, RAS2 and RYE shall use their best 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. RAS1, RAS2 and RYE 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.
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 at the Closing of each of the
following conditions:
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9.1. Representations and Warranties True on the Closing Date. Each
of the representations and warranties made by RAS1, RAS2 and RYE in this
Agreement, and the statements contained in the Disclosure Schedules or in any
instrument, list, certificate or writing delivered by RAS1 or RAS2 pursuant to
this Agreement, shall be true and correct in all material respects when made
and shall be true and correct in all material respects at and as of the Closing
Date as though such representations and warranties were made or given 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.
9.2. Compliance With Agreement. RAS1, RAS2 and RYE shall have in
all material respects performed and complied with all of their agreements and
obligations under this Agreement which are to be performed or complied with by
them prior to or on the Closing Date, including the delivery of the closing
documents specified in SECTION 12.1.
9.3. Absence of Litigation. No Litigation shall have been
commenced or threatened, and no investigation by any Government Entity shall
have been commenced, against Buyer, RAS1 or RAS2 or any of the Affiliates,
officers, managers, general partners or directors of any of them, with respect
to the transactions contemplated hereby.
9.4. Consents and Approvals. All approvals, consents and waivers
that are required to effect the transactions contemplated hereby shall have
been received, and executed counterparts thereof shall have been delivered to
Buyer not less than two business days prior to the Closing. Notwithstanding the
foregoing, receipt of the consent of any third party to the assignment of a
Contract which is not (and is not required to be) disclosed in the Disclosure
Schedules shall not be a condition to Buyer's obligation to close, provided
that the aggregate of all such Contracts does not represent a material portion
of the Restaurants', RAS1's and RAS2's sales or expenditures. After the
Closing, RAS1, RAS2 and RYE will continue to use their best effects to obtain
any such consents or approvals, and neither RAS1, RAS2 nor RYE shall hereby be
relieved of any liability hereunder for failure to perform any of their
respective covenants or for the inaccuracy of any representation or warranty.
9.5. Estoppel Certificates. RAS1 and RAS2 shall have delivered to
Buyer on or prior to the Closing Date an estoppel certificate or status letter
from the landlord under each lease of real property which estoppel certificate
or status letter will certify (i) the lease is valid and in full force and
effect; (ii) the amounts payable by RAS1 and RAS2 under the lease and the date
to which the same have been paid; (iii) whether there are, to the knowledge of
said landlord, any defaults thereunder, and, if so, specifying the nature
thereof; and (iv) that the transactions contemplated by this Agreement will not
constitute default under the lease and that the landlord consents to the
assignment of the lease to Buyer.
9.6. Hart-Scott-Rodino Waiting Period. All applicable waiting
periods related to the HSR Act shall have expired.
10. CONDITIONS PRECEDENT TO RAS1'S AND RAS2'S OBLIGATIONS
Each and every obligation of RAS1, RAS2 and RYE to be performed on the
Closing Date shall be subject to the satisfaction (or waiver by RAS1 or RAS2)
prior to or at the Closing 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 when made and shall be true and
correct in all material respects at and as of the Closing Date as though such
representations and warranties were made or given on and as of the Closing
Date.
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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 12.2.
10.3. Absence of Litigation. No Litigation shall have been
commenced or threatened, and no investigation by any Government Entity shall
have been commenced, against Buyer, RAS1 or RAS2 or any of their Affiliates,
officers or directors of any of them, with respect to the transactions
contemplated hereby; provided that the obligations of RAS1 and RAS2 shall not
be affected unless there is a reasonable likelihood that as a result of such
action, suit, proceeding or investigation RAS1 and RAS2 will be unable to
retain substantially all the consideration to which it is entitled under this
Agreement.
10.4. Hart-Scott-Rodino Waiting Period. All applicable waiting
periods related to the HSR Act shall have expired.
11. INDEMNIFICATION
11.1. By RAS1, RAS2 and RYE. Subject to the terms and conditions of
this ARTICLE 11, RAS1, RAS2 and RYE, jointly and severally, hereby agree to
indemnify, defend and hold harmless Buyer, and its directors, officers,
partners, employees and controlled and controlling persons (hereinafter
"Buyer's Affiliates"), from and against all Claims asserted against, resulting
to, imposed upon, or incurred by Buyer, Buyer's Affiliates or the business and
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 RAS1, RAS2 or RYE contained in or made
pursuant to this Agreement (regardless of whether such breach is deemed
"material"); (b) the breach of any covenant of RAS1, RAS2 or RYE contained in
this Agreement (regardless of whether such breach is deemed "material"); or (c)
any Claim of or against RAS1 or RAS2, the Purchased Assets, the Restaurants or
the business of RAS1 or RAS2 not specifically assumed by Buyer pursuant hereto.
As used in this ARTICLE 11, the term "Claim" shall include (i) all Liabilities;
(ii) all losses, damages (including, without limitation, consequential
damages), judgments, awards, settlements, costs and expenses (including,
without limitation, interest (including prejudgment interest in any litigated
matter), penalties, court costs and 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 ARTICLE
11, Buyer hereby agrees to indemnify, defend and hold harmless RAS1, RAS2, RYE
and their partners, managers, directors, officers, employees and controlling
persons, 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"); (c) all Claims asserted against RAS1, RAS2 or RYE resulting from
one or more occurrences in the Restaurants on or after the Effective Date, to
the extent not covered by RAS1's, RAS2's or RYE's insurance, which are not the
result of any action, inaction or negligence of RAS1, RAS2 or RYE; or (d) all
Claims of or against RAS1 or RAS2 specifically assumed by Buyer pursuant
hereto.
11.3. Indemnification of Third-Party Claims. The obligations and
liabilities of any party to indemnify any other under this ARTICLE 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
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"Indemnified Party") will give the party from whom indemnification is
sought (the "Indemnifying Party") prompt 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 ARTICLE
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 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 ARTICLE
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 ARTICLE 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
ARTICLE 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 eight percent (8%). 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
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Article 11 shall survive the date of this Agreement and the Closing Date for a
period of three (3) years following the Closing Date, except that the
indemnification obligations relating to the representations and warranties
regarding tax obligations shall survive until one (1) year after the expiration
of the applicable statute of limitations for such tax obligations.
12. CLOSING
The closing of this transaction (the "Closing") shall take place on
________ _____, 2000, or at such other time and place as the parties hereto
shall agree upon. Such date is referred to in this Agreement as the "Closing
Date".
12.1. Documents to be Delivered by RAS1, RAS2 and RYE. At the
Closing, RAS1, RAS2 and RYE, as applicable, shall deliver to Buyer the
following documents, in each case duly executed or otherwise in proper form:
12.1.(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.
12.1.(b) Compliance Certificate. A certificate signed by RYE,
the general partner of RAS1 and the manager of RAS2 that each of the
representations and warranties made by RAS1, RAS2 and RYE in this
Agreement is true and correct in all material respects on and as of
the Closing Date with the same effect as though such representations
and warranties had been made or given 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 RAS1, RAS2 and RYE have
performed and complied with all of RAS1's, RAS2's and RYE's
obligations under this Agreement which are to be performed or complied
with on or prior to the Closing Date.
12.1.(c) Employment and Noncompetition Agreements. The
Employment and Partnership Agreements referred to in SECTION
2.1.(A)(IV) AND (V), duly executed by the persons referred to in such
Section.
12.1.(d) Certified Resolutions. A certified copy of the
resolutions of the General Partner of RAS1 and the Manager of RAS2
authorizing and approving this Agreement and the consummation of the
transactions contemplated by this Agreement.
12.1.(e) Incumbency Certificate. Incumbency certificates
relating to each person executing any document executed and delivered
to Buyer pursuant to the terms hereof.
12.1.(f) Payroll Deduction Authorizations. The payroll
deduction authorizations referenced in SECTION 4.8.(J) and signed by
James Wagner and Allison Catugal.
12.1.(g) Lease Assignment Documents. An Assignment of Lease
executed by RAS1 and RAS2, as applicable, for each of the Real
Property Leases, and a Consent to each such assignment executed by the
landlord of such property.
12.1.(h) Franchise Assignments. Assignments of the Franchise
Agreements for the Restaurants, executed by RAS1 and RAS2.
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12.1.(i) Other Documents. All other documents, instruments or
writings required to be delivered to Buyer at or prior to the Closing
pursuant to this Agreement and such other certificates of authority
and documents as Buyer may reasonably request.
12.2. Documents to be Delivered by Buyer. At the Closing, Buyer
shall deliver to RAS1 and RAS2 the following documents, in each case duly
executed or otherwise in proper form:
12.2.(a) Cash Purchase Price. A certified or bank cashier's
check (or wire transfer) as required by SECTION 3.2.(C) hereof.
12.2.(b) Assumption of Liabilities. Such undertakings and
instruments of assumption as will be reasonably sufficient in the
opinion of RAS1 and RAS2 and its counsel to evidence the assumption of
RAS1's and RAS2's Liabilities as provided for in ARTICLE 2.
12.2.(c) Compliance Certificate. A certificate signed by the
general partner of Buyer that the representations and warranties made
by Buyer in this Agreement are true and correct on and as of the
Closing Date with the same effect as though such representations and
warranties had been made or given on and as of the Closing Date
(except for any changes permitted by the terms of this Agreement or
consented to in writing by RAS1 and RAS2), 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.
12.2.(d) Certified Resolutions. A certified copy of the
resolutions of the general partner of Buyer authorizing and approving
this Agreement and the consummation of the transactions contemplated
by this Agreement.
12.2.(e) Incumbency Certificate. Incumbency certificates
relating to each person executing any document executed and delivered
to RAS1 and RAS2 by Buyer pursuant to the terms hereof.
12.2.(f) Other Documents. All other documents, instruments or
writings required to be delivered to RAS1 and RAS2 at or prior to the
Closing pursuant to this Agreement and such other certificates of
authority and documents as RAS1 and RAS2 may reasonably request.
13. TERMINATION
13.1. Right of Termination Without Breach. This Agreement may be
terminated without further liability of any party at any time prior to
the Closing:
13.1.(a) by mutual written agreement of Buyer, RAS1 and RAS2,
or
13.1.(b) by either Buyer or RAS1 and RAS2 if the Closing
shall not have occurred on or before December 31, 2000, provided the
terminating party has not, through breach of a representation,
warranty or covenant, prevented the Closing from occurring on or
before such date.
13.2. Termination for Breach.
13.2.(a) Termination by Buyer. If (i) there has been a
material violation or breach by RAS1,
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RAS2 or RYE 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, or (iii)
RAS1 or RAS2 shall have attempted to terminate this Agreement under
this ARTICLE 13 or otherwise without grounds to do so, then Buyer may,
by written notice to RAS1 or RAS2 at any time prior to the Closing
that such violation, breach, failure or wrongful termination attempt
is continuing, terminate this Agreement with the effect set forth in
SECTION 13.2.(C) hereof.
13.2.(b) Termination by RAS1 and RAS2. 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 RAS1 and RAS2, or (ii) there has been a
failure of satisfaction of a condition to the obligations of RAS1 and
RAS2 which has not been so waived, or (iii) Buyer shall have attempted
to terminate this Agreement under this ARTICLE 13 or otherwise without
grounds to do so, then RAS1 and RAS2 may, by written notice to Buyer
at any time prior to the Closing that such violation, breach, failure
or wrongful termination attempt is continuing, terminate this
Agreement with the effect set forth in SECTION 13.2.(c) hereof.
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.
Subject to the foregoing, the parties' obligations under ARTICLE 11,
SECTIONS 7.3. AND 14.5. of this Agreement shall survive termination.
14. MISCELLANEOUS
14.1. Disclosure Schedules. Information set forth in the disclosure
schedules ("Disclosure Schedules") specifically refer to the article and
section of this Agreement to which such information is responsive and such
information shall not be deemed to have been disclosed with respect to any
other article or section of this Agreement or for any other purpose. The
Disclosure Schedules shall not vary, change or alter the language of the
representations and warranties contained in this Agreement.
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, valid and marketable 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 either RAS1 and RAS2 or
Buyer or its Affiliates shall be subject to the approval of the other in all
essential respects, except that RAS1's and RAS2's approval shall not be
required as to any statements and other information which Buyer may submit to
the Securities and Exchange Commission or the NASDAQ National Market System or
be required to make pursuant to any rule or regulation of the Securities and
Exchange Commission or NASDAQ.
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
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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 RAS1 and RAS2 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. Law Governing Agreement. This Agreement may not be modified
or terminated orally, and shall be construed and interpreted according to the
internal laws of the State of Delaware, excluding any choice of law rules that
may direct the application of the laws of another jurisdiction.
14.6. Amendment and Modification. Buyer, RAS1 and RAS2 may amend,
modify and supplement this Agreement in such manner as may be agreed upon by
them in writing.
14.7. Notice. All notices, requests, demands and other
communications hereunder shall be given in 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:
Outback/Hawaii-I, Limited Partnership
c/o Outback International
Lenox Center
3355 Lenox Road, Suite 600
Atlanta, GA 30326
Attention:Greg Walther
Facsimile:404-231-4329
(with a copy to)
Joseph J. Kadow
Outback Steakhouse, Inc.
2202 North Westshore Blvd.
5th Floor
Tampa, FL 33607
Facsimile:813-281-2114
or to such other person or address as Buyer shall furnish to RAS1 and RAS2 in
writing.
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(b) If to RAS1, RAS2 or RYE, to:
Roy Yamaguchi Enterprises, Inc.
6600 Kalanianaole Highway
Honolulu, HI 96825
Attention: Roy Yamaguchi, President
Facsimile: (808) 396-8706
(with a copy to)
Terrence M. Lee, Esquire
745 Fort Street, Suite 600
Honolulu, HI 96813
Facsimile: 808-538-8705
or to such other person or address as RAS1 and RAS2 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.
14.8. Expenses. Regardless of whether or not the transactions
contemplated hereby are consummated:
14.8.(a) Brokerage. RAS1, RAS2, RYE and Buyer each represent
and warrant to each other that there is no broker involved or in any
way connected with the transfer provided for herein. Buyer agrees to
hold RAS1, RAS2 and RYE harmless from and against all claims for
brokerage commissions or finder's fees incurred through any act of
Buyer in connection with the execution of this Agreement or the
transactions provided for herein. RAS1, RAS2 and RYE, jointly and
severally, agree to hold Buyer harmless from and against all claims
for brokerage commissions or finder's fees incurred through any act of
either RAS1 or RAS2 or RYE in connection with the execution of this
Agreement or the transactions provided for herein.
14.8.(b) Expenses to be Shared Equally. The parties shall
equally share the cost of the following:
(i) Transfer Taxes. Any sales, use, excise,
transfer or other similar tax imposed with respect to the
transactions provided for in this Agreement, and any interest
or penalties related thereto.
(ii) Professional Fees. All fees of RAS1's and
RAS2's legal counsel, Terrence M. Lee, in connection with the
transactions contemplated hereby, except that they Buyer
shall be solely responsible for all fees and expenses related
to liquor license transfers for the Restaurants.
14.8.(c) Other. Except as otherwise provided herein, each of
the parties shall bear its own expenses and the expenses of its
counsel and other agents in connection with the transactions
contemplated hereby.
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14.8.(d) Costs of Litigation. The parties agree that (subject
to the discretion, in an arbitration proceeding, of the arbitrator as
set forth in SECTION 14.4) 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 attorneys' fees and prejudgment interest.
14.9. Entire Agreement. This instrument embodies 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. Without limiting the generality of the foregoing, this Agreement
supersedes that certain binding letter of intent between the parties dated
January 26, 2000.
14.10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14.11. Headings. The headings in this Agreement are inserted for
convenience only and shall not constitute a part hereof.
14.12. Affiliate. For purposes of this Agreement, the term
"Affiliate" shall mean any individual or entity (hereafter a "Person"),
directly or indirectly, through one or more intermediaries, controlling,
controlled by, or under common control with such Person, as applicable. The
term "control" as used in the immediately preceding sentence, shall mean with
respect to a corporation or limited liability company the right to exercise,
directly or indirectly, more than fifty percent (50%) of the voting rights
attributable to the controlled corporation or limited liability company, and,
with respect to any individual, partnership, trust, other entity or
association, the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of the controlled entity.
IN WITNESS WHEREOF, the parties have executed this Agreement on
_______________, 2000, effective as of the date and year first above written.
"BUYER"
OUTBACK/HAWAII-I, LIMITED PARTNERSHIP,
A FLORIDA LIMITED PARTNERSHIP
By: OUTBACK STEAKHOUSE INTERNATIONAL, L.P.,
a Georgia limited partnership,
its sole general partner
By: CONNERTY INTERNATIONAL, INC.,
a Florida corporation,
its sole general partner
By
----------------------------------------
Greg L. Walther, Chief Financial Officer
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"RAS1"
ROY'S AUSSIE STEAKHOUSE, L.P.,
A DELAWARE LIMITED PARTNERSHIP
By Its General Partners:
ROY YAMAGUCHI ENTERPRISES, INC.,
a Hawaii corporation
By:
---------------------------------
Roy Yamaguchi, President
---------------------------------
BRUCE L. UITTO
"RAS2"
ROY'S AUSSIE STEAKHOUSE NUMBER TWO, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By its Manager:
ROY'S AUSSIE STEAKHOUSE, L.P.
By Its General Partners:
ROY YAMAGUCHI ENTERPRISES, INC.,
a Hawaii corporation
By:
------------------------------
Roy Yamaguchi, President
and
------------------------------
BRUCE L. UITTO
"RYE"
ROY YAMAGUCHI ENTERPRISES, INC.,
A HAWAII CORPORATION
By:
---------------------------------
Roy Yamaguchi, President
31