Attached files
file | filename |
---|---|
8-K - 8-K - Diversified Restaurant Holdings, Inc. | c95768e8vk.htm |
EX-99.01 - EXHIBIT 99.01 - Diversified Restaurant Holdings, Inc. | c95768exv99w01.htm |
Exhibit 2.01
AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is made between AMC Wings, Inc. (hereinafter referred to as Buyer),
T. Michael Ansley, Thomas Dwight Ansley, and Steven A. Menker (hereinafter referred to collectively
as Selling Shareholders and individually as Selling Shareholder), and TMA Enterprises of Novi,
Inc. (hereinafter referred to as the Corporation).
WHEREAS, Selling Shareholders, Buyer and Corporation entered into a Stock Purchase Agreement dated
October 13, 2009, which is hereby amended and restated in its entirety;
WHEREAS, the Buyer desires to purchase all of the shares of common stock of the Corporation from
Selling Shareholders at a price and upon the terms as set forth herein;
NOW THEREFORE, the parties agree as follows:
1. | Purchase of Stock: Buyer shall purchase: |
40 shares of the Corporations stock from T. Michael Ansley ($245,347.00); 35 shares of the Corporations stock from Thomas Dwight Ansley ($214,678.00); and 25 shares of the Corporations stock from Steven A. Menker ($153,342.00). Collectively, the Shares will be purchased by Buyer for a purchase price as determined by the following formula: a multiple of two (2) times the average of the Companys earnings before interest, taxes, depreciation and amortization (EBITDA) for the previous three (3) fiscal years (2007, 2008 and 2009) less long term debt of the Corporation calculated on a per share basis and multiplied by the number of shares each Selling Shareholder has (Purchase Price), which Purchase Price shall be determined as soon as practicable after the end of the 2009 fiscal year. The Purchase Price as determined by the above referenced formula is $6,133.66 per share and $613,366.00 for the Shares. The Purchase Price shall be paid as follows: |
a. | Promissory Notes in the amount of the calculated Purchase Price for each
Selling Shareholder, copies of which are attached hereto as Exhibit A. |
2. | Waiver of Right of First Refusal: The Corporation and Selling Shareholders
hereby waive their respective rights of first refusal, if any, to the Shares being
purchased. This waiver is pursuant to the Cross Purchase Agreement between the Corporation
and Selling Shareholders dated March 14, 2006. |
3. | Consent to Sale: Each Selling Shareholder of the Corporation hereby consents
to the sale of the Shares by the other Selling Shareholders to the Buyer, pursuant to the
terms and conditions set forth above. |
4. | Warranty: Each Selling Shareholder warrants that he has good and marketable
title to the Shares of the Corporation to be transferred, that the Shares are fully paid
and nonassessable, and that the Shares are free and clear of any liens or encumbrances. Each Selling Shareholder also warrants that there is no agreement to sell, exchange, or
transfer the Shares of the Corporation to any individual, partnership, corporation, or
other entity, except pursuant to this Agreement. Further, each Selling Shareholder
warrants that there are no existing options, warrants, calls or commitments of any
character which are issued and outstanding which encumber or restrict the Shares being
sold hereunder except as set forth in paragraph 2 above. |
5. | Transfer of Shares: On the date of closing, the Shares which are being
purchased by Buyer shall be transferred to the Buyer, by each Selling Shareholder executing
a stock assignment separate from the stock certificate and delivering the stock assignment
and certificate to Buyer in accordance with this Agreement. |
6. | Date of Closing: The closing of the proposed transaction set forth herein
shall take place on February 1, 2010, at a time and place fixed by the mutual consent of
the parties hereto. |
7. | Survival: The representations and warranties of all parties set forth herein
will be effective on the date hereof, on the closing date, and shall survive the closing. |
8. | Contingency: The parties agree that after the execution of this Agreement,
they shall jointly apply for the approval of the Michigan Liquor Control Commission and all
local governmental bodies for the transfer of Selling Shareholders interest in said liquor
license to Buyer. At that time, both parties agree to take, in a diligent and expeditious
manner, whatever steps shall be necessary to obtain the transfer of said liquor license
from Selling Shareholders to Buyer. Buyer shall pay all fees required in connection with
the transfer of said liquor license, including but not limited to inspection fees, Sunday
sales fees, fees for other permits (such as, by way of example and not by way of
limitation, outdoor service permits) and any other fees for any permits included in such
liquor license. Selling Shareholders or Corporation shall pay all fees that may have
accrued prior to the Date of Closing, including without limitation, all escrow fees and any
licensing fees that accrued prior to the Date of Closing. This Agreement and all transfers
contemplated by this Agreement are expressly contingent upon the approval of the transfer
of said liquor license to Buyer by the Michigan Liquor Control Commission and the local
unit of government (Governmental Approvals) in which the license will be operated. If
the Governmental Approvals are not obtained on or before the February 1, 2010, the Date of
Closing will be extended until such Governmental Approvals are obtained. |
||
9. | Miscellaneous. |
a. | Applicable Law. This Agreement shall be governed by the laws
of the State of Michigan, excluding any conflict of laws rules. |
b. | Assignment. This Agreement and the rights and duties hereunder
may not be assigned by either party without the written consent of the other
parties to this Agreement. |
2
c. | Benefit. This Agreement shall be binding upon and inure to the
benefit of the respective legal representatives, successors and assigns of the
parties. |
d. | Alteration. Except as otherwise provided for herein, this
Agreement cannot be amended, altered or any of its provisions waived on behalf of
either party, except in writing by a duly authorized agent of either party. |
e. | Entire Agreement. This Agreement is and shall be deemed the
complete and final expression of the agreement between the parties as to matters
herein contained and relative thereto, and supersedes all previous agreements
between the parties pertaining to such matters. It is clearly understood that no
promise or representation not contained herein was an inducement to either party or
was relied on by either party in entering into this Agreement. |
f. | Performance. Any failure of either party to insist upon strict
compliance with any provisions of this Agreement shall not constitute a waiver
thereof and all provisions herein shall remain in full force and effect. |
g. | Headings. The paragraph headings used in this Agreement are
included solely for convenience and shall not affect or be used in connection with
the interpretation of this Agreement. |
h. | Counterparts. This Agreement may be executed in several
counterparts, each of which will be deemed an original but all of which constitute
one and the same. |
Signature Page to Follow
3
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed hereto as of
the dates written below.
BUYER: | ||||
AMC WINGS, INC. | ||||
BY:
|
/s/ T. Michael Ansley
|
Dated: February 1, 2010 | ||
T. Michael Ansley, President | ||||
SELLING SHAREHOLDERS: | ||||
/s/ T. Michael Ansley
|
Dated: February 1, 2010 | |||
T. Michael Ansley | ||||
/s/ Thomas D. Ansley
|
Dated: February 1, 2010 | |||
/s/ Steven A. Menker
|
Dated: February 1, 2010 | |||
CORPORATION: | ||||
TMA ENTERPRISES OF NOVI, INC. | ||||
BY:
|
/s/ T. Michael Ansley
|
Dated: February 1, 2010 |
4
AMENDED AND RESTATED MEMBERSHIP INTEREST PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT is made effective the 1st day of February, 2010 between T. Michael
Ansley, Thomas D. Ansley, Steven A. Menker, and Jason T. Curtis (collectively, the Selling
Members and individually, the Seller or Selling Member), AMC Wings, Inc. (the Buyer), and
TMA Enterprises of Ferndale, LLC, a Michigan limited liability company (hereinafter referred to as
Company).
WITNESSETH:
WHEREAS, Selling Members, Buyer and the Company entered into a Membership Purchase Agreement
on October 13, 2009, which is hereby amended and restated in its entirety;
WHEREAS, Buyer desires to purchase from each Seller all of each Sellers membership interest
in the Company upon the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the mutual promises herein set forth, the parties agree as
follows:
1. Purchase of Membership Interest. The Buyer does hereby purchase from each Seller
all of the membership interest in the Company owned by each Seller for a purchase price as
determined by the following formula: a multiple of two (2) times the average of the Companys
earnings before interest, taxes, depreciation and amortization (EBITDA) for the previous three
(3) fiscal years (2007, 2008 and 2009), less long term debt of the Company, multiplied by each
Sellers sharing ratios (Purchase Price) as determined as soon as practicable after the end of
the 2009 fiscal year. The Purchase Price for the Membership Interests of the Company shall be
$658,663.00, or $6,586.63 per 1% Membership Interest. The Purchase Price Per Member shall be as
follows:
T. Michael Ansley (40%) |
$ | 263,465.00 | ||
Thomas D. Ansley (25%) |
$ | 164,666.00 | ||
Steven A. Menker(25%) |
$ | 164,666.00 | ||
Jason T. Curtis (10%) |
$ | 65,866.00 |
2. Payment of Purchase Price. The full purchase price as specified under paragraph 1
of this Agreement shall be paid to each Seller by the Buyer, in the form of a Promissory Note
attached as Exhibit A.
3. Transfer of Membership Interest. On the date this Agreement is executed, each
Seller shall transfer to the Buyer all right, title and interest in and to all of each Sellers
membership interest in the Company, and the Company shall show such change in ownership on the
books of the Company.
1
4. Operating Agreement. With the execution of this Agreement, the Buyer agrees to
become a party to the Operating Agreement dated January 20, 2006 and enter into by and between the
Company and the members of the Company, a copy of which is attached hereto as Exhibit B. Further,
Buyer shall execute any and all documents necessary to become a party to said Operating Agreement.
5. Warranty. Each Selling Member warrants that the Selling Member has good and
marketable title to the Membership Interest to be transferred, that the Membership Interest
represents all of the Selling Members membership interest in the Company, that the
Membership Interest is fully paid and nonassessable, and that the Membership Interest is free and
clear of any liens or encumbrances. Each Selling Member also warrants that there is no agreement
to sell, exchange, or transfer the Membership Interest to any individual, partnership, corporation,
limited liability company, or other entity, except pursuant to this Agreement. Further, each
Selling Member warrants that each Selling Member has no other options, warranties, calls or rights
of any character to purchase or acquire any membership interest in the Company and there are no
existing options, warrants, calls or commitments of any character which are issued and outstanding
which encumber or restrict the Membership Interest being sold pursuant to this Agreement. The
Selling Members warrant that there are no other members in the Company and the sale of the Selling
Members membership interests in the Company to Buyer represents one hundred percent (100%) of the
membership interests in the Company.
6. Contingency. The parties agree that after the execution of this Agreement, they
shall jointly apply for the approval of the Michigan Liquor Control Commission and all local
governmental bodies for the transfer of Selling Members interest in said liquor license to Buyer.
At that time, both parties agree to take, in a diligent and expeditious manner, whatever steps
shall be necessary to obtain the transfer of said liquor license from Selling Members to Buyer.
Buyer shall pay all fees required in connection with the transfer of said liquor license, including
but not limited to inspection fees, Sunday sales fees, fees for other permits (such as, by way of
example and not by way of limitation, outdoor service permits) and any other fees for any permits
included in such liquor license. Selling Members or Company shall pay all fees that may have
accrued prior to the Date of Closing, including without limitation, all escrow fees and any
licensing fees that accrued prior to the Date of Closing. This Agreement and all transfers
contemplated by this Agreement are expressly contingent upon the approval of the transfer of said
liquor license to Buyer by the Michigan Liquor Control Commission and the local unit of government
(Governmental Approvals) in which the license will be operated. If the Governmental Approvals
are not obtained on or before the February 1, 2010, the Date of Closing will be extended until such
Governmental Approvals are obtained.
2
7. Miscellaneous.
(a) Applicable Law. This Agreement shall be governed by the laws of the State of
Michigan, excluding any conflict of laws rules.
(b) Assignment. This Agreement and the rights and duties hereunder may not be
assigned by either party without the written consent of the other party which shall not be
unreasonably withheld.
(c) Benefit. This Agreement shall be binding upon and inure to the benefit of the
respective legal representatives, successors and assigns of the parties.
(d) Alteration. Except as otherwise provided for herein, this Agreement cannot be
amended, altered or any of its provisions waived on behalf of either party, except in writing by a
duly authorized agent of either party.
(e) Entire Agreement. This Agreement is and shall be deemed the complete and final
expression of the agreement between the parties as to matters herein contained and relative
thereto, and supersedes all previous agreements between the parties pertaining to such matters. It
is clearly understood that no promise or representation not contained herein was an inducement to
either party or was relied on by either party in entering into this Agreement.
(f) Performance. Any failure of either party to insist upon strict compliance with
any provisions of this Agreement shall not constitute a waiver thereof and all provisions herein
shall remain in full force and effect.
(g) Headings. The paragraph headings used in this Agreement are included solely for
convenience and shall not affect or be used in connection with the interpretation of this
Agreement.
(h) Date of Closing. The Date of Closing shall be February 1, 2010, provided that all
Contingencies have been satisfied at a time and place as mutually agreed by the parties.
(i) Counterparts. This Agreement may be executed in several counterparts, each of
which will be deemed an original but all of which constitute one and the same.
Signature Page to Follow
3
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed hereto
as of the dates written below.
SELLING MEMBERS: | ||||
Dated: February 1, 2010
|
/s/ T. Michael Ansley | |||
T. Michael Ansley | ||||
Dated: February 1, 2010
|
/s/ Thomas D. Ansley | |||
Thomas D. Ansley | ||||
Dated: February 1, 2010
|
/s/ Steven A. Menker | |||
Steven A. Menker | ||||
Dated: February 1, 2010
|
/s/ Jason T. Curtis | |||
Jason T. Curtis | ||||
BUYER: | ||||
AMC WINGS, INC. | ||||
Dated: February 1, 2010
|
By: | /s/ T. Michael Ansley | ||
T. Michael Ansley, President | ||||
COMPANY: | ||||
TMA ENTERPRISES OF FERNDALE, LLC | ||||
Dated: February 1, 2010
|
By: | /s/ T. Michael Ansley | ||
T. Michael Ansley, Manager |
4
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is made between AMC Wings, Inc. (hereinafter referred to as Buyer),
T. Michael Ansley, Thomas D. Ansley, Mark C. Ansley, Steven A. Menker and Jason T. Curtis
(hereinafter referred to collectively as Selling Shareholders and individually as Selling
Shareholder), and MCA Enterprises Brandon, Inc. (hereinafter referred to as the Corporation).
WHEREAS, Selling Shareholders, Buyer and Corporation entered into a Stock Purchase Agreement dated
October 13, 2009, which is hereby amended and restated in its entirety;
WHEREAS, the Buyer desires to purchase all of the shares of common stock of the Corporation from
Selling Shareholders at a price and upon the terms as set forth herein;
NOW THEREFORE, the parties agree as follows:
1. | Purchase of Stock: Buyer shall purchase : |
30 shares of the Corporations stock from T. Michael Ansley ($29,408.00); 25 shares of the Corporations stock from Thomas D. Ansley ($24,506.00); 25 shares of the Corporations stock from Mark C. Ansley ($24,506.00); 10 shares of the Corporations stock from Steven A. Menker ($9,803.00); and 10 shares of the Corporations stock from Jason T. Curtis (9,803.00). Collectively, the Shares will be purchased by Buyer for a purchase price as determined by the following formula: a multiple of two (2) times the average of the Companys earnings before interest, taxes, depreciation and amortization (EBITDA) for the previous three (3) fiscal years (2007, 2008 and 2009) less long term debt of the Corporation calculated on a per share basis and multiplied by the number of shares each Selling Shareholder has (Purchase Price), which Purchase Price shall be determined as soon as practicable after the end of the 2009 fiscal year. The Purchase Price as determined by the above referenced formula is $980.25 per share and $98025.00 for the Shares. The Purchase Price shall be paid as follows: |
a. | Promissory Note in the amount of the calculated Purchase Price for each Selling
Shareholder, a copy of which is attached hereto as Exhibit A. |
2. | Waiver of Right of First Refusal: The Corporation and Selling Shareholders
hereby waive their respective rights of first refusal, if any, to the Shares being
purchased. This waiver is pursuant to the Cross Purchase Agreement between the Corporation
and Selling Shareholders dated March 14, 2006. |
3. | Consent to Sale: Each Selling Shareholder of the Corporation hereby consents
to the sale of the Shares by the other Selling Shareholders to the Buyer, pursuant to the
terms and conditions set forth above. |
1
4. | Warranty: Each Selling Shareholder warrants that he has good and marketable
title to the Shares of the Corporation to be transferred, that the Shares are fully paid
and nonassessable, and that the Shares are free and clear of any liens or encumbrances.
Each Selling Shareholder also warrants that there is no agreement to sell, exchange, or
transfer the Shares of the Corporation to any individual, partnership, corporation, or
other entity, except pursuant to this Agreement. Further, each Selling Shareholder
warrants that there are no existing options, warrants, calls or commitments of any
character which are issued and outstanding which encumber or restrict the Shares being sold
hereunder except as set forth in paragraph 2 above. |
5. | Transfer of Shares: On the date of closing, the Shares which are being
purchased by Buyer shall be transferred to the Buyer, by each Selling Shareholder executing
a stock assignment separate from the stock certificate and delivering the stock assignment
and certificate to Buyer in accordance with this Agreement. |
6. | Date of Closing: The closing of the proposed transaction set forth herein
shall take place on February 1, 2010, at a time and place fixed by the mutual consent of
the parties hereto. |
7. | Survival: The representations and warranties of all parties set forth herein
will be effective on the date hereof, on the closing date, and shall survive the closing. |
8. | Contingency: The parties agree that after the execution of this Agreement,
they shall jointly apply for the approval of the state liquor commission and all local
governmental bodies, if necessary, for the transfer of Selling Shareholders interest in
said liquor license to Buyer. At that time, both parties agree to take, in a diligent and
expeditious manner, whatever steps shall be necessary to obtain the transfer of said liquor
license from Selling Shareholders to Buyer. Buyer shall pay all fees required in
connection with the transfer of said liquor license, including but not limited to
inspection fees, Sunday sales fees, fees for other permits (such as, by way of example and
not by way of limitation, outdoor service permits) and any other fees for any permits
included in such liquor license. Selling Shareholders or Corporation shall pay all fees
that may have accrued prior to the Date of Closing, including without limitation, all
escrow fees and any licensing fees that accrued prior to the Date of Closing. This
Agreement and all transfers contemplated by this Agreement are expressly contingent upon
the approval of the transfer of said liquor license to Buyer by the state liquor commission
and the local unit of government, if any, (Governmental Approvals) in which the license
will be operated. If the Governmental Approvals are not obtained on or before the December
31, 2009, the Date of Closing will be extended until such Governmental Approvals are
obtained. |
2
9. | Miscellaneous. |
a. | Applicable Law. This Agreement shall be governed by the laws
of the State of Michigan, excluding any conflict of laws rules. |
b. | Assignment. This Agreement and the rights and duties hereunder
may not be assigned by either party without the written consent of the other
parties to this Agreement. |
c. | Benefit. This Agreement shall be binding upon and inure to the
benefit of the respective legal representatives, successors and assigns of the
parties. |
d. | Alteration. Except as otherwise provided for herein, this
Agreement cannot be amended, altered or any of its provisions waived on behalf of
either party, except in writing by a duly authorized agent of either party. |
e. | Entire Agreement. This Agreement is and shall be deemed the
complete and final expression of the agreement between the parties as to matters
herein contained and relative thereto, and supersedes all previous agreements
between the parties pertaining to such matters. It is clearly understood that no
promise or representation not contained herein was an inducement to either party or
was relied on by either party in entering into this Agreement. |
f. | Performance. Any failure of either party to insist upon strict
compliance with any provisions of this Agreement shall not constitute a waiver
thereof and all provisions herein shall remain in full force and effect. |
g. | Headings. The paragraph headings used in this Agreement are
included solely for convenience and shall not affect or be used in connection with
the interpretation of this Agreement. |
h. | Counterparts. This Agreement may be executed in any number of
counterparts each of which when so executed shall be an original, but all of which
together shall constitute one (1) and the same instrument. |
Signature Page to Follow
3
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed hereto as of
the dates written below.
BUYER: AMC WINGS, INC. | ||||
BY:
|
/s/ T. Michael Ansley
|
Dated: February 1, 2010 | ||
SELLING SHAREHOLDERS: | ||||
/s/ T. Michael Ansley
|
Dated: February 1, 2010 | |||
/s/ Thomas D. Ansley
|
Dated: February 1, 2010 | |||
/s/ Mark C. Ansley
|
Dated: February 1, 2010 | |||
/s/ Steven A. Menker
|
Dated: February 1, 2010 | |||
/s/ Jason T. Curtis
|
Dated: February 1, 2010 | |||
CORPORATION: | ||||
MCA ENTERPRISES BRANDON, INC. | ||||
BY:
|
/s/ T. Michael Ansley
|
Dated: February 1, 2010 |
4
AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is made between AMC Wings, Inc. (hereinafter referred to as Buyer),
T. Michael Ansley, Thomas Dwight Ansley, and Steven A. Menker (hereinafter referred to collectively
as Selling Shareholders and individually as Selling Shareholder), and Flyer Enterprises, Inc.
(hereinafter referred to as the Corporation).
WHEREAS, Selling Shareholders, Buyer and Corporation entered into a Stock Purchase Agreement dated
October 13, 2009, which is hereby amended and restated in its entirety;
WHEREAS, the Buyer desires to purchase all of the shares of common stock of the Corporation from
Selling Shareholders at a price and upon the terms as set forth herein;
NOW THEREFORE, the parties agree as follows:
1. | Purchase of Stock: Buyer shall purchase: |
1,500 shares of the Corporations stock from T. Michael Ansley ($135,292.00); 3,000 shares of the Corporations stock from Thomas Dwight Ansley ($270,584.00); and 1,500 shares of the Corporations stock from Steven A. Menker ($135,292.00). Collectively, the Shares will be purchased by Buyer for a purchase price as determined by the following formula: a multiple of two (2) times the average of the Companys earnings before interest, taxes, depreciation and amortization (EBITDA) for the previous three (3) fiscal years (2007, 2008 and 2009) less long term debt of the Corporation calculated on a per share basis and multiplied by the number of shares each Selling Shareholder has (Purchase Price), which Purchase Price shall be determined as soon as practicable after the end of the 2009 fiscal year. The Purchase Price as determined by the above reference formula is $90.1945 per share or a total Purchase Price for the Shares of $541,167.00. The Purchase Price shall be paid as follows: |
a. | Promissory Notes in the amount of the calculated Purchase Price for each
Selling Shareholder, copies of which are attached hereto as Exhibit A. |
2. | Waiver of Right of First Refusal: The Corporation and Selling Shareholders
hereby waive their respective rights of first refusal, if any, to the Shares being
purchased. This waiver is pursuant to the Cross Purchase Agreement between the Corporation
and Selling Shareholders dated March 14, 2006. |
3. | Consent to Sale: Each Selling Shareholder of the Corporation hereby consents
to the sale of the Shares by the other Selling Shareholders to the Buyer, pursuant to the
terms and conditions set forth above. |
4. | Warranty: Each Selling Shareholder warrants that he has good and marketable
title to the Shares of the Corporation to be transferred, that the Shares are fully paid
and nonassessable, and that the Shares are free and clear of any liens or encumbrances.
Each Selling Shareholder also warrants that there is no agreement to sell, exchange, or
transfer the Shares of the Corporation to any individual, partnership, corporation, or
other entity, except pursuant to this Agreement. Further, each Selling Shareholder
warrants that there are no existing options, warrants, calls or commitments of any
character which are issued and outstanding which encumber or restrict the Shares being
sold hereunder except as set forth in paragraph 2 above. |
1
5. | Transfer of Shares: On the date of closing, the Shares which are being
purchased by Buyer shall be transferred to the Buyer, by each Selling Shareholder executing
a stock assignment separate from the stock certificate and delivering the stock assignment
and certificate to Buyer in accordance with this Agreement. |
6. | Date of Closing: The closing of the proposed transaction set forth herein
shall take place on February 1, 2010, at a time and place fixed by the mutual consent of
the parties hereto. |
7. | Survival: The representations and warranties of all parties set forth herein
will be effective on the date hereof, on the closing date, and shall survive the closing. |
8. | Contingency: The parties agree that after the execution of this Agreement,
they shall jointly apply for the approval of the Michigan Liquor Control Commission and all
local governmental bodies for the transfer of Selling Shareholders interest in said liquor
license to Buyer. At that time, both parties agree to take, in a diligent and expeditious
manner, whatever steps shall be necessary to obtain the transfer of said liquor license
from Selling Shareholders to Buyer. Buyer shall pay all fees required in connection with
the transfer of said liquor license, including but not limited to inspection fees, Sunday
sales fees, fees for other permits (such as, by way of example and not by way of
limitation, outdoor service permits) and any other fees for any permits included in such
liquor license. Selling Shareholders or Corporation shall pay all fees that may have
accrued prior to the Date of Closing, including without limitation, all escrow fees and any
licensing fees that accrued prior to the Date of Closing. This Agreement and all transfers
contemplated by this Agreement are expressly contingent upon the approval of the transfer
of said liquor license to Buyer by the Michigan Liquor Control Commission and the local
unit of government (Governmental Approvals) in which the license will be operated. If
the Governmental Approvals are not obtained on or before the February 1, 2010, the Date of
Closing will be extended until such Governmental Approvals are obtained. |
2
9. | Miscellaneous. |
a. | Applicable Law. This Agreement shall be governed by the laws
of the State of Michigan, excluding any conflict of laws rules. |
b. | Assignment. This Agreement and the rights and duties hereunder
may not be assigned by either party without the written consent of the other
parties to this Agreement. |
c. | Benefit. This Agreement shall be binding upon and inure to the
benefit of the respective legal representatives, successors and assigns of the
parties. |
d. | Alteration. Except as otherwise provided for herein, this
Agreement cannot be amended, altered or any of its provisions waived on behalf of
either party, except in writing by a duly authorized agent of either party. |
e. | Entire Agreement. This Agreement is and shall be deemed the
complete and final expression of the agreement between the parties as to matters
herein contained and relative thereto, and supersedes all previous agreements
between the parties pertaining to such matters. It is clearly understood that no
promise or representation not contained herein was an inducement to either party or
was relied on by either party in entering into this Agreement. |
f. | Performance. Any failure of either party to insist upon strict
compliance with any provisions of this Agreement shall not constitute a waiver
thereof and all provisions herein shall remain in full force and effect. |
g. | Headings. The paragraph headings used in this Agreement are
included solely for convenience and shall not affect or be used in connection with
the interpretation of this Agreement. |
h. | Counterparts. This Agreement may be executed in several
counterparts, each of which will be deemed an original but all of which constitute
one and the same. |
Signature Page to Follow
3
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed hereto as of
the dates written below.
BUYER: | ||||
AMC WINGS, INC. | ||||
BY:
|
/s/ T. Michael Ansley
|
Dated: February 1, 2010 | ||
SELLING SHAREHOLDERS: | ||||
/s/ T. Michael Ansley
|
Dated: February 1, 2010 | |||
T. Michael Ansley | ||||
/s/ Thomas D. Ansley
|
Dated: February 1, 2010 | |||
/s/ Steven A. Menker
|
Dated: February 1, 2010 | |||
CORPORATION: | ||||
FLYER ENTERPRISES, INC. | ||||
BY:
|
/s/ T. Michael Ansley
|
Dated: February 1, 2010 |
4
MEMBERSHIP INTEREST PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT is made effective the 1st day of February, 2010 between T.
Michael Ansley, Thomas D. Ansley, Mark C. Ansley, Steven A. Menker, and Jason T. Curtis
(collectively, the Selling Members and individually, the Seller or Selling Member), AMC
Wings, Inc. (the Buyer), and Buckeye Group, LLC, a Michigan limited liability company
(hereinafter referred to as Company).
WITNESSETH:
WHEREAS, Selling Members, Buyer and the Company entered into a Membership Purchase Agreement
on October 13, 2009, which is hereby amended and restated in its entirety;
WHEREAS, Buyer desires to purchase from each Seller all of each Sellers membership interest
in the Company upon the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the mutual promises herein set forth, the parties agree as
follows:
1. Purchase of Membership Interest. The Buyer does hereby purchase from each Seller
all of the membership interest in the Company owned by each Seller for a purchase price of $1.00
per percent ownership of membership interest.
2. Payment of Purchase Price. The full purchase price as specified under paragraph 1
of this Agreement shall be paid to each Seller by the Buyer, in cash at closing.
T. Michael Ansley |
$ | 30.00 | ||
Thomas D. Ansley |
$ | 25.00 | ||
Mark C. Ansley |
$ | 25.00 | ||
Jason T. Curtis |
$ | 10.00 | ||
Steven A. Menker |
$ | 10.00 |
3. Transfer of Membership Interest. On the date this Agreement is executed, each
Seller shall transfer to the Buyer all right, title and interest in and to all of each Sellers
membership interest in the Company, and the Company shall show such change in ownership on the
books of the Company.
4. Operating Agreement. With the execution of this Agreement, the Buyer agrees to
become a party to the First Amended and Restated Operating Agreement dated August 11, 2005 and
enter into by and between the Company and the members of the Company, a copy of which is attached
hereto as Exhibit B. Further, Buyer shall execute any and all documents necessary to become a
party to said Operating Agreement.
1
5. Warranty: Each Selling Member warrants that the Selling Member has good and
marketable title to the Membership Interest to be transferred, that the Membership Interest
represents all of the Selling Member=s membership interest in the Company, that the
Membership Interest is fully paid and nonassessable, and that the Membership Interest is free and
clear of any liens or encumbrances. Each Selling Member also warrants that there is no agreement
to sell, exchange, or transfer the Membership Interest to any individual, partnership, corporation,
limited liability company, or other entity, except pursuant to this Agreement. Further, each
Selling Member warrants that each Selling Member has no other options, warranties, calls or rights
of any character to purchase or acquire any membership interest in the Company and there are no
existing options, warrants, calls or commitments of any character which are issued and outstanding
which encumber or restrict the Membership Interest being sold pursuant to this Agreement. The
Selling Members warrant that there are no other members in the Company and the sale of the Selling
Members membership interests in the Company to Buyer represents one hundred percent (100%) of the
membership interests in the Company.
6. Contingency. The parties agree that after the execution of this Agreement, they
shall jointly apply for the approval of the state and all local governmental bodies for the
transfer of Selling Members interest in said liquor license to Buyer, if necessary. At that time,
both parties agree to take, in a diligent and expeditious manner, whatever steps shall be necessary
to obtain the transfer of said liquor license from Selling Members to Buyer. Buyer shall pay all
fees required in connection with the transfer of said liquor license, including but not limited to
inspection fees, Sunday sales fees, fees for other permits (such as, by way of example and not by
way of limitation, outdoor service permits) and any other fees for any permits included in such
liquor license. Selling Members or Company shall pay all fees that may have accrued prior to the
Date of Closing, including without limitation, all escrow fees and any licensing fees that accrued
prior to the Date of Closing. This Agreement and all transfers contemplated by this Agreement are
expressly contingent upon the approval of the transfer of said liquor license to Buyer by the state
and the local unit of government (Governmental Approvals) in which the license will be operated.
If the Governmental Approvals are not obtained on or before the February 1, 2010, the Date of
Closing will be extended until such Governmental Approvals are obtained.
2
7. Miscellaneous.
(a) Applicable Law. This Agreement shall be governed by the laws of the State of
Michigan, excluding any conflict of laws rules.
(b) Assignment. This Agreement and the rights and duties hereunder may not be
assigned by either party without the written consent of the other party which shall not be
unreasonably withheld.
(c) Benefit. This Agreement shall be binding upon and inure to the benefit of the
respective legal representatives, successors and assigns of the parties.
(d) Alteration. Except as otherwise provided for herein, this Agreement cannot be
amended, altered or any of its provisions waived on behalf of either party, except in writing by a
duly authorized agent of either party.
(e) Entire Agreement. This Agreement is and shall be deemed the complete and final
expression of the agreement between the parties as to matters herein contained and relative
thereto, and supersedes all previous agreements between the parties pertaining to such matters. It
is clearly understood that no promise or representation not contained herein was an inducement to
either party or was relied on by either party in entering into this Agreement.
(f) Performance. Any failure of either party to insist upon strict compliance with
any provisions of this Agreement shall not constitute a waiver thereof and all provisions herein
shall remain in full force and effect.
(g) Headings. The paragraph headings used in this Agreement are included solely for
convenience and shall not affect or be used in connection with the interpretation of this
Agreement.
(h) Counterparts. This Agreement may be executed in any number of counterparts each of
which when so executed shall be an original, but all of which together shall constitute one (1) and
the same instrument.
Signature Page to Follow
3
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed hereto
as of the dates written below.
SELLING MEMBERS: |
||||
Dated: February 1, 2010 | /s/ T. Michael Ansley | |||
T. Michael Ansley | ||||
Dated: February 1, 2010 | /s/ Thomas D. Ansley | |||
Thomas D. Ansley | ||||
Dated: February 1, 2010 | /s/ Mark C. Ansley | |||
Mark C. Ansley | ||||
Dated: February 1, 2010 | /s/ Steven A. Menker | |||
Steven A. Menker | ||||
Dated: February 1, 2010 | /s/ Jason T. Curtis | |||
Jason T. Curtis | ||||
BUYER: AMC WINGS, INC. |
||||
Dated: February 1, 2010 | By: | /s/ T. Michael Ansley | ||
T. Michael Ansley, President | ||||
COMPANY: BUCKEYE GROUP, LLC |
||||
Dated: February 1, 2010 | By: | /s/ T. Michael Ansley | ||
T. Michael Ansley, Manager |
4
MEMBERSHIP INTEREST PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT is made effective the 1st day of February, 2010 between T.
Michael Ansley, Thomas D. Ansley, Mark C. Ansley, Steven A. Menker, and Jason T. Curtis
(collectively, the Selling Members and individually, the Seller or Selling Member), AMC
Wings, Inc. (the Buyer), and Buckeye Group II, LLC, a Michigan limited liability company
(hereinafter referred to as Company).
WITNESSETH:
WHEREAS, Selling Members, Buyer and the Company entered into a Membership Purchase Agreement
on October 13, 2009, which is hereby amended and restated in its entirety;
WHEREAS, Buyer desires to purchase from each Seller all of each Sellers membership interest
in the Company upon the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the mutual promises herein set forth, the parties agree as
follows:
1. Purchase of Membership Interest. The Buyer does hereby purchase from each Seller
all of the membership interest in the Company owned by each Seller for a purchase price of $1.00
per percent ownership of membership interest.
2. Payment of Purchase Price. The full purchase price as specified under paragraph 1
of this Agreement shall be paid to each Seller by the Buyer, in cash at closing.
T. Michael Ansley |
$ | 30.00 | ||
Thomas D. Ansley |
$ | 25.00 | ||
Mark C. Ansley |
$ | 25.00 | ||
Jason T. Curtis |
$ | 10.00 | ||
Steven A. Menker |
$ | 10.00 |
3. Transfer of Membership Interest. On the date this Agreement is executed, each
Seller shall transfer to the Buyer all right, title and interest in and to all of each Sellers
membership interest in the Company, and the Company shall show such change in ownership on the
books of the Company.
4. Operating Agreement. With the execution of this Agreement, the Buyer agrees to
become a party to the First Amended and Restated Operating Agreement dated August 11, 2005 and
enter into by and between the Company and the members of the Company, a copy of which is attached
hereto as Exhibit B. Further, Buyer shall execute any and all documents necessary to become a
party to said Operating Agreement.
1
5. Warranty: Each Selling Member warrants that the Selling Member has good and
marketable title to the Membership Interest to be transferred, that the Membership Interest
represents all of the Selling Member=s membership interest in the Company, that the
Membership Interest is fully paid and nonassessable, and that the Membership Interest is free and
clear of any liens or encumbrances. Each Selling Member also warrants that there is no agreement
to sell, exchange, or transfer the Membership Interest to any individual, partnership, corporation,
limited liability company, or other entity, except pursuant to this Agreement. Further, each
Selling Member warrants that each Selling Member has no other options, warranties, calls or rights
of any character to purchase or acquire any membership interest in the Company and there are no
existing options, warrants, calls or commitments of any character which are issued and outstanding
which encumber or restrict the Membership Interest being sold pursuant to this Agreement. The
Selling Members warrant that there are no other members in the Company and the sale of the Selling
Members membership interests in the Company to Buyer represents one hundred percent (100%) of the
membership interests in the Company.
6. Contingency. The parties agree that after the execution of this Agreement, they
shall jointly apply for the approval of the state and all local governmental bodies for the
transfer of Selling Members interest in said liquor license to Buyer, if necessary. At that time,
both parties agree to take, in a diligent and expeditious manner, whatever steps shall be necessary
to obtain the transfer of said liquor license from Selling Members to Buyer. Buyer shall pay all
fees required in connection with the transfer of said liquor license, including but not limited to
inspection fees, Sunday sales fees, fees for other permits (such as, by way of example and not by
way of limitation, outdoor service permits) and any other fees for any permits included in such
liquor license. Selling Members or Company shall pay all fees that may have accrued prior to the
Date of Closing, including without limitation, all escrow fees and any licensing fees that accrued
prior to the Date of Closing. This Agreement and all transfers contemplated by this Agreement are
expressly contingent upon the approval of the transfer of said liquor license to Buyer by the state
and the local unit of government (Governmental Approvals) in which the license will be operated.
If the Governmental Approvals are not obtained on or before the February 1, 2010, the Date of
Closing will be extended until such Governmental Approvals are obtained.
2
7. Miscellaneous.
(a) Applicable Law. This Agreement shall be governed by the laws of the State of
Michigan, excluding any conflict of laws rules.
(b) Assignment. This Agreement and the rights and duties hereunder may not be
assigned by either party without the written consent of the other party which shall not be
unreasonably withheld.
(c) Benefit. This Agreement shall be binding upon and inure to the benefit of the
respective legal representatives, successors and assigns of the parties.
(d) Alteration. Except as otherwise provided for herein, this Agreement cannot be
amended, altered or any of its provisions waived on behalf of either party, except in writing by a
duly authorized agent of either party.
(e) Entire Agreement. This Agreement is and shall be deemed the complete and final
expression of the agreement between the parties as to matters herein contained and relative
thereto, and supersedes all previous agreements between the parties pertaining to such matters. It
is clearly understood that no promise or representation not contained herein was an inducement to
either party or was relied on by either party in entering into this Agreement.
(f) Performance. Any failure of either party to insist upon strict compliance with
any provisions of this Agreement shall not constitute a waiver thereof and all provisions herein
shall remain in full force and effect.
(g) Headings. The paragraph headings used in this Agreement are included solely for
convenience and shall not affect or be used in connection with the interpretation of this
Agreement.
(h) Counterparts. This Agreement may be executed in any number of counterparts each of
which when so executed shall be an original, but all of which together shall constitute one (1) and
the same instrument.
Signature Page to Follow
3
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed hereto
as of the dates written below.
SELLING MEMBERS: |
||||
Dated: February 1, 2010 | /s/ T. Michael Ansley | |||
T. Michael Ansley | ||||
Dated: February 1,2010 | /s/ Thomas D. Ansley | |||
Thomas D. Ansley | ||||
Dated: February 1, 2010 | /s/ Mark C. Ansley | |||
Mark C. Ansley | ||||
Dated: February 1, 2010 | /s/ Steven A. Menker | |||
Steven A. Menker | ||||
Dated: February 1, 2010 | /s/ Jason T. Curtis | |||
Jason T. Curtis | ||||
BUYER: AMC WINGS, INC. |
||||
Dated: February 1, 2010 | By: | /s/ T. Michael Ansley | ||
T. Michael Ansley, President | ||||
COMPANY: BUCKEYE GROUP II, LLC |
||||
Dated: February 1, 2010 | By: | /s/ T. Michael Ansley | ||
T. Michael Ansley, Manager |
4
AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is made between AMC Wings, Inc. (hereinafter referred to as Buyer),
T. Michael Ansley, Jason T. Curtis, and Steven A. Menker (hereinafter referred to collectively as
Selling Shareholders and individually as Selling Shareholder), and Bearcat Enterprises, Inc.
(hereinafter referred to as the Corporation).
WHEREAS, Selling Shareholders, Buyer and Corporation entered into a Stock Purchase Agreement dated
October 13, 2009, which is hereby amended and restated in its entirety;
WHEREAS, the Buyer desires to purchase all of the shares of common stock of the Corporation from
Selling Shareholders at a price and upon the terms as set forth herein;
NOW THEREFORE, the parties agree as follows:
1. | Purchase of Stock: Buyer shall purchase: |
55 shares of the Corporations stock from T. Michael Ansley ($209,650.00);
20 shares of the Corporations stock from Jason T. Curtis ($76,236.00); and
25 shares of the Corporations stock from Steven A. Menker ($95,296.00).
Collectively, the Shares will be purchased by Buyer for a purchase price as determined
by the following formula: a multiple of two (2) times the average of the Companys
earnings before interest, taxes, depreciation and amortization (EBITDA) for the
previous three (3) fiscal years (2007, 2008 and 2009) less long term debt of the
Corporation calculated on a per share basis and multiplied by the number of shares each
Selling Shareholder has (Purchase Price), which Purchase Price shall be determined as
soon as practicable after the end of the 2009 fiscal year. The Purchase Price as
determined by the above referenced formula is $3,811.82 per share and $381,182.00 for
the Shares. The Purchase Price shall be paid as follows:
a. | Promissory Notes in the amount of the calculated Purchase Price for each
Selling Shareholder, copies of which are attached hereto as Exhibit A. |
2. | Waiver of Right of First Refusal: The Corporation and Selling Shareholders
hereby waive their respective rights of first refusal, if any, to the Shares being
purchased. This waiver is pursuant to the Cross Purchase Agreement between the Corporation
and Selling Shareholders dated March 14, 2006. |
3. | Consent to Sale: Each Selling Shareholder of the Corporation hereby consents
to the sale of the Shares by the other Selling Shareholders to the Buyer, pursuant to the
terms and conditions set forth above. |
1
4. | Warranty: Each Selling Shareholder warrants that he has good and marketable
title to the Shares of the Corporation to be transferred, that the Shares are fully paid
and nonassessable, and that the Shares are free and clear of any liens or encumbrances.
Each Selling Shareholder also warrants that there is no agreement to sell, exchange,
or transfer the Shares of the Corporation to any individual, partnership, corporation,
or other entity, except pursuant to this Agreement. Further, each Selling Shareholder
warrants that there are no existing options, warrants, calls or commitments of any
character which are issued and outstanding which encumber or restrict the Shares being
sold hereunder except as set forth in paragraph 2 above. |
5. | Transfer of Shares: On the date of closing, the Shares which are being
purchased by Buyer shall be transferred to the Buyer, by each Selling Shareholder executing
a stock assignment separate from the stock certificate and delivering the stock assignment
and certificate to Buyer in accordance with this Agreement. |
6. | Date of Closing: The closing of the proposed transaction set forth herein
shall take place on February 1, 2010, at a time and place fixed by the mutual consent of
the parties hereto. |
7. | Survival: The representations and warranties of all parties set forth herein
will be effective on the date hereof, on the closing date, and shall survive the closing. |
8. | Contingency: The parties agree that after the execution of this Agreement,
they shall jointly apply for the approval of the Michigan Liquor Control Commission and all
local governmental bodies for the transfer of Selling Shareholders interest in said liquor
license to Buyer. At that time, both parties agree to take, in a diligent and expeditious
manner, whatever steps shall be necessary to obtain the transfer of said liquor license
from Selling Shareholders to Buyer. Buyer shall pay all fees required in connection with
the transfer of said liquor license, including but not limited to inspection fees, Sunday
sales fees, fees for other permits (such as, by way of example and not by way of
limitation, outdoor service permits) and any other fees for any permits included in such
liquor license. Selling Shareholders or Corporation shall pay all fees that may have
accrued prior to the Date of Closing, including without limitation, all escrow fees and any
licensing fees that accrued prior to the Date of Closing. This Agreement and all transfers
contemplated by this Agreement are expressly contingent upon the approval of the transfer
of said liquor license to Buyer by the Michigan Liquor Control Commission and the local
unit of government (Governmental Approvals) in which the license will be operated. If
the Governmental Approvals are not obtained on or before the February 1, 2010, the Date of
Closing will be extended until such Governmental Approvals are obtained. |
9. | Miscellaneous. |
a. | Applicable Law. This Agreement shall be governed by the laws
of the State of Michigan, excluding any conflict of laws rules. |
b. | Assignment. This Agreement and the rights and duties hereunder
may not be assigned by either party without the written consent of the other
parties to this Agreement. |
2
c. | Benefit. This Agreement shall be binding upon and inure to the
benefit of the respective legal representatives, successors and assigns of the
parties. |
d. | Alteration. Except as otherwise provided for herein, this
Agreement cannot be amended, altered or any of its provisions waived on behalf of
either party, except in writing by a duly authorized agent of either party. |
e. | Entire Agreement. This Agreement is and shall be deemed the
complete and final expression of the agreement between the parties as to matters
herein contained and relative thereto, and supersedes all previous agreements
between the parties pertaining to such matters. It is clearly understood that no
promise or representation not contained herein was an inducement to either party or
was relied on by either party in entering into this Agreement. |
f. | Performance. Any failure of either party to insist upon strict
compliance with any provisions of this Agreement shall not constitute a waiver
thereof and all provisions herein shall remain in full force and effect. |
g. | Headings. The paragraph headings used in this Agreement are
included solely for convenience and shall not affect or be used in connection with
the interpretation of this Agreement. |
h. | Counterparts. This Agreement may be executed in several
counterparts, each of which will be deemed an original but all of which constitute
one and the same. |
Signature Page to Follow
3
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed hereto as of
the dates written below.
BUYER: | ||||
AMC WINGS, INC. | ||||
BY:
|
/s/ T. Michael Ansley
|
Dated: February 1, 2010 | ||
SELLING SHAREHOLDERS: | ||||
BY:
|
/s/ T. Michael Ansley | Dated: February 1, 2010 | ||
T. Michael Ansley | ||||
BY:
|
/s/ Jason T. Curtis | Dated: February 1, 2010 | ||
Jason T. Curtis | ||||
BY:
|
/s/ Steven A. Menker | Dated: February 1, 2010 | ||
Steven A. Menker | ||||
CORPORATION: | ||||
BEARCAT ENTERPRISES, INC. | ||||
BY:
|
/s/ T. Michael Ansley | Dated: February 1, 2010 | ||
T. Michael Ansley, President |
4
AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is made between AMC Wings, Inc. (hereinafter referred to as Buyer),
T. Michael Ansley, Thomas Dwight Ansley, and Steven A. Menker (hereinafter referred to collectively
as Selling Shareholders and individually as Selling Shareholder), and Anker, Inc. (hereinafter
referred to as the Corporation).
WHEREAS, Selling Shareholders, Buyer and Corporation entered into a Stock Purchase Agreement dated
October 13, 2009, which is hereby amended and restated in its entirety;
WHEREAS, the Buyer desires to purchase all of the shares of common stock of the Corporation from
Selling Shareholders at a price and upon the terms as set forth herein;
NOW THEREFORE, the parties agree as follows:
1. | Purchase of Stock: Buyer shall purchase: |
50 shares of the Corporations stock from T. Michael Ansley ($146,481.00);
25 shares of the Corporations stock from Thomas Dwight Ansley ($73,240.00); and
25 shares of the Corporations stock from Steven A. Menker ($73,240.00).
Collectively, the Shares will be purchased by Buyer for a Purchase Price as determined
by the following formula: a multiple of two (2) times the average of the Companys
earnings before interest, taxes, depreciation and amortization (EBITDA) for the
previous three (3) fiscal years (2007, 2008 and 2009) less long term debt of the
Corporation calculated on a per share basis and multiplied by the number of shares each
Selling Shareholder has (Purchase Price), which Purchase Price shall be determined as
soon as practicable after the end of the 2009 fiscal year. The Purchase Price as
determined by the above-referenced formula is $2,929.61 per share or a total Purchase
Price for the Shares of $292,961.00. The Purchase Price shall be paid as follows:
a. | Promissory Notes in the amount of the calculated Purchase Price for each
Selling Shareholder, copies of which are attached hereto as Exhibit A. |
2. | Waiver of Right of First Refusal: The Corporation and Selling Shareholders
hereby waive their respective rights of first refusal, if any, to the Shares being
purchased. This waiver is pursuant to the Cross Purchase Agreement between the Corporation
and Selling Shareholders dated March 14, 2006. |
3. | Consent to Sale: Each Selling Shareholder of the Corporation hereby consents
to the sale of the Shares by the other Selling Shareholders to the Buyer, pursuant to the
terms and conditions set forth above. |
1
4. | Warranty: Each Selling Shareholder warrants that he has good and marketable
title to the Shares of the Corporation to be transferred, that the Shares are fully paid
and nonassessable, and that the Shares are free and clear of any liens or encumbrances.
Each Selling Shareholder also warrants that there is no agreement to sell, exchange, or
transfer the Shares of the Corporation to any individual, partnership, corporation, or
other entity, except pursuant to this Agreement. Further, each Selling Shareholder
warrants that there are no existing options, warrants, calls or commitments of any
character which are issued and outstanding which encumber or restrict the Shares being
sold hereunder except as set forth in paragraph 2 above. |
5. | Transfer of Shares: On the date of closing, the Shares which are being
purchased by Buyer shall be transferred to the Buyer, by each Selling Shareholder executing
a stock assignment separate from the stock certificate and delivering the stock assignment
and certificate to Buyer in accordance with this Agreement. |
6. | Date of Closing: The closing of the proposed transaction set forth herein
shall take place on February 1, 2010, at a time and place fixed by the mutual consent of
the parties hereto. |
7. | Survival: The representations and warranties of all parties set forth herein
will be effective on the date hereof, on the closing date, and shall survive the closing. |
8. | Contingency: The parties agree that after the execution of this Agreement,
they shall jointly apply for the approval of the Michigan Liquor Control Commission and all
local governmental bodies for the transfer of Selling Shareholders interest in said liquor
license to Buyer. At that time, both parties agree to take, in a diligent and expeditious
manner, whatever steps shall be necessary to obtain the transfer of said liquor license
from Selling Shareholders to Buyer. Buyer shall pay all fees required in connection with
the transfer of said liquor license, including but not limited to inspection fees, Sunday
sales fees, fees for other permits (such as, by way of example and not by way of
limitation, outdoor service permits) and any other fees for any permits included in such
liquor license. Selling Shareholders or Corporation shall pay all fees that may have
accrued prior to the Date of Closing, including without limitation, all escrow fees and any
licensing fees that accrued prior to the Date of Closing. This Agreement and all transfers
contemplated by this Agreement are expressly contingent upon the approval of the transfer
of said liquor license to Buyer by the Michigan Liquor Control Commission and the local
unit of government (Governmental Approvals) in which the license will be operated. If
the Governmental Approvals are not obtained on or before the February 1, 2010, the Date of
Closing will be extended until such Governmental Approvals are obtained. |
9. | Miscellaneous. |
a. | Applicable Law. This Agreement shall be governed by the laws
of the State of Michigan, excluding any conflict of laws rules. |
b. | Assignment. This Agreement and the rights and duties hereunder
may not be assigned by either party without the written consent of the other
parties to this Agreement. |
2
c. | Benefit. This Agreement shall be binding upon and inure to the
benefit of the respective legal representatives, successors and assigns of the
parties. |
d. | Alteration. Except as otherwise provided for herein, this
Agreement cannot be amended, altered or any of its provisions waived on behalf of
either party, except in writing by a duly authorized agent of either party. |
e. | Entire Agreement. This Agreement is and shall be deemed the
complete and final expression of the agreement between the parties as to matters
herein contained and relative thereto, and supersedes all previous agreements
between the parties pertaining to such matters. It is clearly understood that no
promise or representation not contained herein was an inducement to either party or
was relied on by either party in entering into this Agreement. |
f. | Performance. Any failure of either party to insist upon strict
compliance with any provisions of this Agreement shall not constitute a waiver
thereof and all provisions herein shall remain in full force and effect. |
g. | Headings. The paragraph headings used in this Agreement are
included solely for convenience and shall not affect or be used in connection with
the interpretation of this Agreement. |
h. | Counterparts. This Agreement may be executed in several
counterparts, each of which will be deemed an original but all of which constitute
one and the same. |
Signature Page to Follow
3
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed hereto as of
the dates written below.
BUYER:
AMC WINGS, INC.
By:
|
/s/ T. Michael Ansley
|
Dated: February 1, 2010 | ||
SELLING SHAREHOLDERS: | ||||
By:
|
/s/ T. Michael Ansley
|
Dated: February 1, 2010 | ||
By:
|
/s/ Thomas Dwight Ansley
|
Dated: February 1, 2010 | ||
By:
|
/s/ Steven A. Menker
|
Dated: February 1, 2010 | ||
CORPORATION: | ||||
ANKER, INC. | ||||
By:
|
/s/ T. Michael Ansley
|
Dated: February 1, 2010 |
4
AMENDED AND RESTATED MEMBERSHIP INTEREST PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT is made effective the 1st day of February, 2010 between T.
Michael Ansley, Steven A. Menker, Jason T. Curtis and Michael R. Lichocki (collectively, the
Selling Members and individually, the Seller or Selling Member), AMC Wings, Inc. (the
Buyer), and AMC Warren, LLC, a Michigan limited liability company (hereinafter referred to as
Company).
WITNESSETH:
WHEREAS, Selling Members, Buyer and the Company entered into a Membership Purchase Agreement
on October 13, 2009, which is hereby amended and restated in its entirety;
WHEREAS, Buyer desires to purchase from each Seller all of each Sellers membership interest
in the Company upon the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the mutual promises herein set forth, the parties agree as
follows:
1. Purchase of Membership Interest. The Buyer does hereby purchase from each Seller
all of the membership interest in the Company owned by each Seller for a purchase price as
determined by the following formula: a multiple of two (2) times the average of the Companys
earnings before interest, taxes, depreciation and amortization (EBITDA) for the previous three
(3) fiscal years (2007, 2008 and 2009), less long term debt of the Company, multiplied by each
Sellers sharing ratios (Purchase Price) as determined as soon as practicable after the end of
the 2009 fiscal year. The Purchase Price for the Membership Interests of the Company shall be
$549,225.00, or $5,492.25 per 1% Membership Interest. The Purchase Price Per Member shall be as
follows:
T. Michael Ansley (55%) |
$ | 302,074.00 | ||
Steven A. Menker(25%) |
$ | 137,306.00 | ||
Jason T. Curtis (10%) |
$ | 54,923.00 | ||
Michael Lichocki (10%) |
$ | 54,923.00 |
2. Payment of Purchase Price. The full purchase price as specified under paragraph 1
of this Agreement shall be paid to each Seller by the Buyer, in the form of a Promissory Note
attached as Exhibit A.
3. Transfer of Membership Interest. On the date this Agreement is executed, each
Seller shall transfer to the Buyer all right, title and interest in and to all of each Sellers
membership interest in the Company, and the Company shall show such change in ownership on the
books of the Company.
1
4. Operating Agreement. With the execution of this Agreement, the Buyer agrees to
become a party to the First Amended and Restated Operating Agreement dated August 11, 2005 and
enter into by and between the Company and the members of the Company, a copy of which is attached
hereto as Exhibit B. Further, Buyer shall execute any and all documents necessary to become a
party to said Operating Agreement.
5. Warranty. Each Selling Member warrants that the Selling Member has good and
marketable title to the Membership Interest to be transferred, that the Membership Interest
represents all of the Selling Member=s membership interest in the Company, that the
Membership Interest is fully paid and nonassessable, and that the Membership Interest is free and
clear of any liens or encumbrances. Each Selling Member also warrants that there is no agreement
to sell, exchange, or transfer the Membership Interest to any individual, partnership, corporation,
limited liability company, or other entity, except pursuant to this Agreement. Further, each
Selling Member warrants that each Selling Member has no other options, warranties, calls or rights
of any character to purchase or acquire any membership interest in the Company and there are no
existing options, warrants, calls or commitments of any character which are issued and outstanding
which encumber or restrict the Membership Interest being sold pursuant to this Agreement. The
Selling Members warrant that there are no other members in the Company and the sale of the Selling
Members membership interests in the Company to Buyer represents one hundred percent (100%) of the
membership interests in the Company.
6. Contingency. The parties agree that after the execution of this Agreement, they
shall jointly apply for the approval of the Michigan Liquor Control Commission and all local
governmental bodies for the transfer of Selling Members interest in said liquor license to Buyer.
At that time, both parties agree to take, in a diligent and expeditious manner, whatever steps
shall be necessary to obtain the transfer of said liquor license from Selling Members to Buyer.
Buyer shall pay all fees required in connection with the transfer of said liquor license, including
but not limited to inspection fees, Sunday sales fees, fees for other permits (such as, by way of
example and not by way of limitation, outdoor service permits) and any other fees for any permits
included in such liquor license. Selling Members or Company shall pay all fees that may have
accrued prior to the Date of Closing, including without limitation, all escrow fees and any
licensing fees that accrued prior to the Date of Closing. This Agreement and all transfers
contemplated by this Agreement are expressly contingent upon the approval of the transfer of said
liquor license to Buyer by the Michigan Liquor Control Commission and the local unit of government
(Governmental Approvals) in which the license will be operated. If the Governmental Approvals
are not obtained on or before the February 1, 2010, the Date of Closing will be extended until such
Governmental Approvals are obtained.
2
7. Miscellaneous.
(a) Applicable Law. This Agreement shall be governed by the laws of the State of
Michigan, excluding any conflict of laws rules.
(b) Assignment. This Agreement and the rights and duties hereunder may not be
assigned by either party without the written consent of the other party which shall not be
unreasonably withheld.
(c) Benefit. This Agreement shall be binding upon and inure to the benefit of the
respective legal representatives, successors and assigns of the parties.
(d) Alteration. Except as otherwise provided for herein, this Agreement cannot be
amended, altered or any of its provisions waived on behalf of either party, except in writing by a
duly authorized agent of either party.
(e) Entire Agreement. This Agreement is and shall be deemed the complete and final
expression of the agreement between the parties as to matters herein contained and relative
thereto, and supersedes all previous agreements between the parties pertaining to such matters. It
is clearly understood that no promise or representation not contained herein was an inducement to
either party or was relied on by either party in entering into this Agreement.
(f) Performance. Any failure of either party to insist upon strict compliance with
any provisions of this Agreement shall not constitute a waiver thereof and all provisions herein
shall remain in full force and effect.
(g) Headings. The paragraph headings used in this Agreement are included solely for
convenience and shall not affect or be used in connection with the interpretation of this
Agreement.
(h) Date of Closing. The Date of Closing shall be February 1, 2010, provided that all
Contingencies have been satisfied at a time and place as mutually agreed by the parties.
(i) Counterparts. This Agreement may be executed in several counterparts, each of
which will be deemed an original but all of which constitute one and the same.
Signature Page to Follow
3
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed hereto
as of the dates written below.
SELLING MEMBERS: | ||||||
Dated: February 1, 2010
|
/s/ T. Michael Ansley
|
|||||
Dated: February 1, 2010
|
/s/ Steven A. Menker
|
|||||
Dated: February 1, 2010
|
/s/ Jason T. Curtis
|
|||||
Dated: February 1, 2010
|
/s/ Michael R. Lichocki
|
|||||
BUYER: | ||||||
AMC WINGS, INC. | ||||||
Dated: February 1, 2010
|
By: | /s/ T. Michael Ansley
|
||||
COMPANY: | ||||||
AMC WARREN, LLC | ||||||
Dated: February 1, 2010
|
By: | /s/ T. Michael Ansley
|
4