Exhibit 10.2
This Asset Purchase Agreement (this “Agreement”), dated as of March 12, 2019, is entered into between Team R n’ B Wisconsin, LLC, a Wisconsin limited liability company (the “Seller”) and Famous Dave’s RIBS, Inc., a Minnesota corporation (“Buyer”).
WHEREAS, Seller wishes to sell to Buyer, and Buyer wishes to purchase from Seller, the rights of Seller to the Purchased Assets (as defined herein), subject to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Buyer shall pay Seller the other elements of the Purchase Price as of Closing. The Buyer reserves the right to withhold any amount of the Purchase Price to satisfy any amounts outstanding from the Seller to the Buyer or Buyer’s Parent, as defined below, prior to Closing. |
Section 1.06 Prorations. Rent paid by Seller, pursuant to the Leases being assigned by this Agreement, for the month in which the Closing occurs shall be prorated and Seller shall be entitled to reimbursement of that portion of the month following at Closing. |
(iii) an Interim Management Agreement in form and substance satisfactory to Buyer (the “Interim Management Agreement”) and duly executed by the Seller, if required for the transfer of the Transferred Permits as referred to in Section 3.024 to the Buyer; |
(v) a certificate pursuant to Treasury Regulations Section 1.1445-2(b) that Seller is not a foreign person within the meaning of Section 1445 of the Internal Revenue Code duly executed by Seller; |
(viii) such other customary instruments of transfer, assumption, filings or documents, in form and substance reasonably satisfactory to Buyer, as may be required to give effect to this Agreement. |
(i) the amount of the Purchase Price payable at Closing by wire of immediately available funds to an account designated by the Seller minus (1) any amounts which will be delivered to vendors of the Seller or to the Seller for any amounts due or necessary to carry on the business between the date of this Agreement and the Closing as set forth in Section 1.03 or; (2) any amounts the Seller owes to the Buyer. |
(ii) if available at the time of Closing, the Assignment and Assumption of Lease or lease for the Madison Site duly executed by Buyer; |
(iii) Leases executed by the Buyer; |
(iv) the Interim Management Agreement duly executed by the Buyer, if required for the transfer of the Transferred Permits as referred to in Section 3.024 to the Buyer; |
(v) the Franchise Amendment executed by the Buyer’s Parent; |
(vi) a release of any liability or obligations under the franchise agreements entered into between Famous Dave’s of America, Inc., the (“Buyer’s Parent”), and Seller; |
(vii) a release executed by the Buyer’s Parent permitting the Seller to cease operations of its restaurant located in Pleasant Prairie, Wisconsin; |
(viii) copies of all consents and authorizations referred to in Section 4.02 of the Disclosure Schedules; and |
(ix) such other customary instruments of transfer, assumption, filings or documents, in form and substance reasonably satisfactory to Seller, as may be required to give effect to this Agreement. |
Seller represents and warrants to Buyer that the statements contained in this ARTICLE III are true and correct as of the date hereof. For purposes of this ARTICLE III, “Seller’s knowledge,” “knowledge of Seller” and any similar phrases shall mean the actual or constructive knowledge of any member of Seller, after due inquiry.
any violation of, or default under, or give rise to a right of termination, acceleration or modification of any obligation or loss of any benefit under any contract or other instrument to which Seller is a party or to which any of the Purchased Assets are subject; or (d) result in the creation or imposition of any Encumbrance on the Purchased Assets. No consent, approval, waiver or authorization is required to be obtained by Seller from any person or entity (including any governmental authority) in connection with the execution, delivery and performance by Seller of this Agreement and the consummation of the transactions contemplated hereby. |
Section 3.05 Non-foreign Status. Seller is not a “foreign person” as that term is used in Treasury Regulations Section 1.1445-2. |
Section 3.06 Compliance With Laws Seller has complied, and is now complying, with all applicable federal, state and local laws and regulations applicable to ownership and use of the Purchased Assets. |
Section 3.10 General Release and Covenant Not to Sue. |
(a) The Seller, their successors and the current and former owners, shareholders, directors, officers, employees, agents, attorneys, representatives, and insurers of said corporations, firms, associations, partnerships, and entities, and their guardians, successors, assigns, heirs, executors, and administrators hereby IRREVOCABLY AND UNCONDITIONALLY RELEASES, ACQUITS, AND FOREVER DISCHARGES Famous Dave’s of America, Inc. and the Buyer from any and all claims, complaints, grievances, liabilities, obligations, promises, agreements, damages, causes of action, rights, debts, demands, controversies, costs, losses, and expenses(including attorneys' fees and expenses) whatsoever other than any arising under this Agreement or Famous Dave’s of America, Inc. under the respective franchise agreements, under any municipal, local, state, or federal law, common or statutory, including, but in no way limited to, claims arising under the Agreement or the franchise agreements for any actions or omissions whatsoever, whether known or unknown and whether connected with the franchise agreements or which existed or may have existed prior to, or contemporaneously with, the execution of this Agreement. |
(b) Buyer’s Parent, their successors and the current and former owners, shareholders, directors, officers, employees, agents, attorneys, representatives, and insurers of said corporations, firms, associations, partnerships, and entities, and their guardians, successors, assigns, heirs, executors, and administrators hereby IRREVOCABLY AND UNCONDITIONALLY RELEASES, ACQUITS, AND FOREVER DISCHARGES the Seller from any and all claims, complaints, grievances, liabilities, obligations, promises, agreements, damages, causes of action, rights, debts, demands, controversies, costs, losses, and expenses(including attorneys' fees and expenses) that arise under the respective franchise agreements. |
Buyer represents and warrants to Seller that the statements contained in this ARTICLE IV are true and correct as of the date hereof. For purposes of this ARTICLE IV, “Buyer’s knowledge,” “knowledge of Buyer” and any similar phrases shall mean the actual knowledge of any officer of Buyer, with no duty of inquiry.
connection with this Agreement and the documents to be delivered hereunder shall be borne and paid by Seller when due, with the exception of any sales or transfer taxes related to the sale and purchase of vehicles which tax shall be borne by the Buyer. Seller shall, at its own expense, timely file any tax return or other document with respect to such taxes or fees (Buyer shall file any required forms regarding the transfer of the title of vehicles and shall cooperate with respect thereto as necessary). |
(a) Following the Closing, each of the parties hereto shall execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement and the documents to be delivered hereunder. |
(b) On the date on which Buyer receives a liquor license for the sale of intoxicating beverages at each of the Sites, which is anticipated to be [March 25, 2019], Seller shall deliver to Buyer a Bill of Sale for all inventory of Liquor Inventory located at or intended to be used at such premises, and as of the date of conveyance, the Liquor Inventory shall be considered Purchased Assets hereunder. The parties to this Agreement acknowledge that due to the eclectic requirements of various liquor licensing authorities each Site may have varying closing dates. The parties to this Agreement will document same in amendments to this Agreement when known and as required. |
Section 5.05 Non-Compete with Buyer. As consideration for entering into this Agreement, Seller shall agree to enter into a restrictive covenants in a form acceptable to Buyer, agreeing not to: (i) compete with Famous Dave’s© Restaurant for a period of three years after the closing within five miles of any current Famous Dave’s© Restaurant, on their own account or as an employee, principal, agent, independent contractor, consultant, affiliate, licensee, partner officer, director or owner of any other person, firm, Entity, partnership or corporation, own, operate, lease, franchise, conduct, engage in, be connected with, have any interest in or assist any person or entity engaged in any full or quick service Barbecue-Style Restaurant which is located within five miles of the Sellers, within five miles of any other Famous Dave's© Restaurant, or within any exclusive area granted by Famous Dave's or any affiliate of Famous Dave's pursuant to a Development Agreement or other territorial agreement following the closing by not opening a restaurant that resembles a barbeque themed restaurant with offerings that include, but not limited to, smoked pork ribs, smoked brisket, corn muffins and barbeque beans, and (ii) hire or solicit any employee of the Business or encourage any such employee to leave such employment for a period of one year following the closing. |
Section 5.06 Mutual Non-Disparagement. Subject to applicable law, each of the parties covenants and agrees that neither it nor any of its respective agents, subsidiaries, affiliates, successors, assigns, officers, key employees or directors, will in any way publicly disparage, call into disrepute, defame, slander or otherwise criticize the other parties or such other parties' subsidiaries, affiliates, successors, assigns, officers (including any current officer of a party or a parties' subsidiaries who no longer serves in such capacity following the execution of this Agreement), directors (including any current director of a party or a parties' subsidiaries who |
no longer serves in such capacity following the execution of this Agreement), employees, shareholders, agents, attorneys or representatives, or any of their products or services, in any manner that would damage the business or reputation of such other parties, their products or services or their subsidiaries, affiliates, successors, assigns, officers (or former officers), directors (or former directors), employees, shareholders, agents, attorneys or representatives. |
(a) any inaccuracy in or breach of any of the representations or warranties of Seller contained in this Agreement or any document to be delivered hereunder; |
(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller pursuant to this Agreement or any document to be delivered hereunder; or |
(a) any inaccuracy in or breach of any of the representations or warranties of Buyer contained in this Agreement or any document to be delivered hereunder; |
(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Buyer pursuant to this Agreement or any document to be delivered hereunder; |
(c) the Assumed Liability; or |
(d) ownership or use of the Purchased Assets by the Buyer arising after the Closing. |
addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 7.02): |
If to Seller: | Team R n’ B Wisconsin LLC Attn: Tom Purdy 6600 N Ballard Road Appleton, WI 54913
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If to Buyer: | FAMOUS DAVE’S RIBS, INC. 12701 Whitewater Drive, Suite 190 Minnetonka, MN 55343 Facsimile:(952) 294-1301 Attention:Corporate Counsel |
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Section 7.03 Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. |
Section 7.08 Amendment and Modification. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. |
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
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| TEAM R N’ B WISCONSIN LLC
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By: | /s/ Thomas Purdy |
Name: | Thomas Purdy |
Title: | Managing Member |
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FAMOUS DAVE’S RIBS, INC. |
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By: | /s/ Paul M. Malazita |
Name: | Paul M. Malazita |
Title: | Chief Financial Officer |
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