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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 10-QSB
/X/ QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934 FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 27, 1998
/ / TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE EXCHANGE ACT
COMMISSION FILE NUMBER 0-20845
BIG BUCK BREWERY & STEAKHOUSE, INC.
(Exact Name of Registrant as Specified in its Charter)
MICHIGAN 38-3196031
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
550 SOUTH WISCONSIN STREET
GAYLORD, MICHIGAN 49735
(517) 731-0401
(Address of Principal Executive Offices, including Zip Code,
and Issuer's Telephone Number, including Area Code)
Check whether the issuer: (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes X No
----- -----
As of November 12, 1998, there were outstanding 5,285,000 shares of Common
Stock, $0.01 par value, of the registrant.
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TABLE OF CONTENTS
<TABLE>
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Page
<S> <C>
PART I FINANCIAL INFORMATION. . . . . . . . . . . . . . . . . . . . . . . . . . 1
ITEM 1. Financial Statements
Balance Sheets as of September 27, 1998 and December 28, 1997 . . . . 1
Statements of Operations for the three months ended September 27,
1998 and September 28, 1997 and for the nine months ended
September 27, 1998 and September 28, 1997 . . . . . . . . . . . . . . 2
Statements of Cash Flows for the nine months ended September 27,
1998 and September 28, 1997 . . . . . . . . . . . . . . . . . . . . . 3
Condensed Notes to Financial Statements . . . . . . . . . . . . . . . 4
ITEM 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations . . . . . . . . . . . . . . . . . . . . . . 5
PART II OTHER INFORMATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ITEM 4. Submission of Matters to a Vote of Security Holders . . . . . . . . . 10
ITEM 6. Exhibits and Reports on Form 8-K. . . . . . . . . . . . . . . . . . . 10
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
EXHIBIT INDEX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
</TABLE>
<PAGE>
PART I
ITEM 1. Financial Statements
BIG BUCK BREWERY & STEAKHOUSE, INC.
BALANCE SHEETS
<TABLE>
<CAPTION>
SEPTEMBER 27, DECEMBER 28,
1998 1997
-------------- --------------
(Unaudited)
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash $ 163,764 $ 354,015
Sale and leaseback financing receivable -- 749,650
Accounts receivable 124,872 170,460
Inventories 288,940 289,805
Preopening expenses -- 348,581
Prepaids and other 291,682 171,766
------------ ------------
Total current assets 869,258 2,084,277
PROPERTY AND EQUIPMENT, net 18,332,115 18,340,043
OTHER ASSETS, net 541,116 383,301
------------ ------------
$19,742,489 $20,807,621
------------ ------------
------------ ------------
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 1,208,932 $ 843,430
Accrued expenses 498,304 735,727
Current maturities of long-term debt 245,830 249,824
------------ ------------
Total current liabilities 1,953,066 1,828,981
LONG-TERM DEBT, less current maturities 7,089,199 7,274,558
------------ ------------
Total liabilities 9,042,265 9,103,539
------------ ------------
COMMITMENTS AND CONTINGENCIES
SHAREHOLDERS' EQUITY:
Common stock, $0.01 par value, 20,000,000 shares authorized;
5,285,000 shares issued and outstanding 52,850 52,850
Warrants 153,650 153,650
Additional paid-in capital 13,240,694 13,240,694
Accumulated deficit (2,746,970) (1,743,112)
------------ ------------
Total shareholders' equity 10,700,224 11,704,082
------------ ------------
$19,742,489 $20,807,621
------------ ------------
------------ ------------
</TABLE>
The accompanying notes are an integral part of these balance sheets.
1
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BIG BUCK BREWERY & STEAKHOUSE, INC.
STATEMENTS OF OPERATIONS
(Unaudited)
<TABLE>
<CAPTION>
THREE MONTHS NINE MONTHS
ENDED ENDED
---------------------------- ----------------------------
SEPTEMBER SEPTEMBER SEPTEMBER SEPTEMBER
27, 1998 28, 1997 27, 1998 28, 1997
------------ ------------- ------------- -------------
<S> <C> <C> <C> <C>
REVENUE:
Restaurant sales $ 3,871,472 $ 1,987,086 $ 11,127,951 $ 4,664,842
Wholesale beer and gift shop sales 217,721 175,513 537,937 390,108
----------- ----------- ------------ ------------
Total revenue 4,089,193 2,162,599 11,665,888 5,054,950
COSTS AND EXPENSES:
Cost of sales 1,393,785 746,588 4,001,458 1,725,603
Restaurant salaries and benefits 1,231,984 568,062 3,463,948 1,415,131
Operating expenses 819,916 385,032 2,464,924 1,050,886
Depreciation and amortization 187,811 131,695 563,129 357,791
----------- ----------- ------------ ------------
Total costs and expenses 3,633,496 1,831,377 10,493,459 4,549,411
Restaurant operating income 455,697 331,222 1,172,429 505,539
General and administrative expenses 412,283 457,292 1,271,226 1,178,961
----------- ----------- ------------ ------------
INCOME (LOSS) FROM OPERATIONS 43,414 (126,070) (98,797) (673,422)
----------- ----------- ------------ ------------
OTHER INCOME (EXPENSE):
Interest expense (190,699) (81,938) (565,769) (232,320)
Interest income 1,868 12,026 7,319 99,770
Loss on Sale of Property -- -- -- (3,100)
----------- ----------- ------------ ------------
Total other income (expense) (188,831) (69,912) (558,450) (135,650)
----------- ----------- ------------ ------------
LOSS BEFORE CUMULATIVE EFFECT OF
CHANGE IN ACCOUNTING PRINCIPLE (145,417) (195,982) (657,247) (809,072)
CUMULATIVE EFFECT OF CHANGE IN
ACCOUNTING PRINCIPLE FOR
START-UP COSTS -- -- (346,547) --
----------- ----------- ------------ ------------
NET LOSS ($145,417) ($195,982) ($1,003,794) ($809,072)
----------- ----------- ------------ ------------
BASIC AND DILUTED NET LOSS PER
COMMON SHARE BEFORE CHANGE
IN ACCOUNTING PRINCIPLE ($0.03) ($0.04) ($0.12) ($0.15)
CUMULATIVE EFFECT OF CHANGE IN
ACCOUNTING PRINCIPLE -- -- ($0.07) --
----------- ----------- ------------ ------------
BASIC AND DILUTED NET LOSS PER
COMMON SHARE ($0.03) ($0.04) ($0.19) ($0.15)
----------- ----------- ------------ ------------
BASIC AND DILUTED WEIGHTED
AVERAGE SHARES OUTSTANDING 5,285,000 5,275,000 5,285,000 5,275,000
----------- ----------- ------------ ------------
</TABLE>
The accompanying notes are an integral part of these financial statements.
2
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BIG BUCK BREWERY & STEAKHOUSE, INC.
STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
-------------------------
SEPTEMBER SEPTEMBER
27, 1998 28, 1997
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<S> <C> <C>
OPERATING ACTIVITIES:
Net loss ($1,003,794) ($809,072)
Adjustments to reconcile net loss to cash flows used in
operating activities -
Depreciation and amortization 563,129 357,791
Loss on sale of property -- 3,100
Cumulative effect of change in accounting
for start-up costs 346,547 --
Change in operating assets and liabilities:
Accounts receivable 45,588 --
Inventories 865 (113,262)
Prepaids and other (119,916) (2,173,862)
Accounts payable 365,502 1,318,612
Accrued expenses (237,423) 259,567
------------ -----------
Net cash used in operating activities (39,502) (1,157,126)
------------ -----------
INVESTING ACTIVITIES:
Purchases of property and equipment, net (553,231) (8,461,460)
Increase in other assets (157,815) --
------------ -----------
Net cash used in investing activities (711,046) (8,461,460)
------------ -----------
FINANCING ACTIVITIES:
Payments on long-term debt (189,353) (187,859)
Proceeds from sale of short-term investments -- 4,910,000
Proceeds from capital lease obligations 749,650 5,400,000
------------ -----------
Net cash provided by financing activities 560,297 10,122,141
------------ -----------
INCREASE (DECREASE) IN CASH (190,251) 503,555
CASH, beginning of period 354,015 28,468
------------ -----------
CASH, end of period $163,764 $532,023
------------ -----------
------------ -----------
SUPPLEMENTAL CASH FLOW INFORMATION:
Interest paid $573,330 $237,036
</TABLE>
The accompanying notes are an integral part of these financial statements.
3
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BIG BUCK BREWERY & STEAKHOUSE, INC.
CONDENSED NOTES TO FINANCIAL STATEMENTS
SEPTEMBER 27, 1998
1. BASIS OF FINANCIAL STATEMENT PRESENTATION
The accompanying unaudited financial statements included herein have been
prepared by Big Buck Brewery & Steakhouse, Inc. (the Company) in accordance
with generally accepted accounting principles for interim financial
information and pursuant to the rules and regulations of the Securities and
Exchange Commission. Certain information and footnote disclosures normally
included in financial statements prepared in accordance with generally
accepted accounting principles have been condensed or omitted pursuant to
such rules and regulations, although the Company believes that the
disclosures are adequate to make the information not misleading.
The unaudited balance sheet as of September 27, 1998 and the unaudited
statements of operations and cash flows for the three and the nine months
ended September 27, 1998 and September 28, 1997 include, in the opinion of
management, all adjustments, consisting solely of normal recurring
adjustments, necessary for a fair presentation of the financial results for
the respective interim periods and are not necessarily indicative of
results of operations to be expected for the entire fiscal year ending
January 3, 1999. The accompanying interim financial statements have been
prepared under the presumption that users of the interim financial
information have either read, or have access to, the audited financial
statements and notes in the Company's Form 10-KSB for the year ended
December 28, 1997. Accordingly, footnote disclosures which would
substantially duplicate the disclosures contained in the December 28, 1997
audited financial statements have been omitted from these interim financial
statements except for the disclosures below. It is suggested that these
interim financial statements should be read in conjunction with the
financial statements and the notes thereto included in the Company's Form
10-KSB for the fiscal year ended December 28, 1997.
2. RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
The Company adopted in the fiscal year ended December 28, 1997, Statement
of Financial Accounting Standards (SFAS) No. 128 "Earnings Per Share" which
requires disclosure of basic earnings per share (EPS) and diluted EPS,
which replaces the existing primary EPS and fully diluted EPS, as defined
by APB No. 15. Basic EPS is computed by dividing net income by the
weighted average number of shares of Common Stock outstanding during the
year. Dilutive EPS is computed similarly to EPS as previously reported,
provided that, when applying the treasury stock method to common equivalent
shares, the Company must use its average share price for the period rather
than the more dilutive greater of the average share price or end-of-period
price required by APB No. 15. The adoption of SFAS No. 128 had no effect
on the Company's September 28, 1997 EPS data.
SFAS No. 130, "Reporting Comprehensive Income," effective beginning in
fiscal 1998, establishes standards of disclosure and financial statement
display for reporting total comprehensive income and the individual
components thereof. The adoption of SFAS No. 130 did not have an impact on
the Company's financial position or results of operations as comprehensive
income and net income were the same for all periods presented.
During April 1998, the Accounting Standards Executive Committee of the
America Institute of Certified Public Accountants issued Statement of
Position (SOP) 98-5, "Reporting on the Costs of Start-Up Activities." SOP
98-5 requires companies to expense as incurred all start-up and preopening
costs that
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are not otherwise capitalizable as long-lived assets. The Company has
elected early implementation of the new accounting standard retroactive
to the beginning of 1998. The effect of this accounting change was to
charge operations the unamortized balance of preopening costs as of
December 28, 1997 of $346,547.
ITEM 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
SOME OF THE INFORMATION IN THIS DOCUMENT MAY CONTAIN FORWARD-LOOKING
STATEMENTS. YOU CAN IDENTIFY SUCH STATEMENTS BY NOTING THE USE OF
FORWARD-LOOKING TERMS SUCH AS "BELIEVES," "EXPECTS," "PLANS," "ESTIMATES" AND
OTHER SIMILAR WORDS. CERTAIN RISKS, UNCERTAINTIES OR ASSUMPTIONS THAT ARE
DIFFICULT TO PREDICT MAY AFFECT SUCH STATEMENTS. THE CAUTIONS AND RISKS
DESCRIBED HEREIN, AND THOSE CONTAINED IN THE COMPANY'S ANNUAL REPORT ON FORM
10-KSB, FILED ON MARCH 23, 1998, COULD CAUSE THE COMPANY'S ACTUAL OPERATING
RESULTS TO DIFFER MATERIALLY FROM THOSE EXPRESSED IN ANY FORWARD-LOOKING
STATEMENT. THE COMPANY CAUTIONS YOU TO KEEP IN MIND SUCH RISK FACTORS AND
OTHER CAUTIONARY STATEMENTS AND TO REFRAIN FROM PLACING UNDUE RELIANCE ON ANY
FORWARD-LOOKING STATEMENTS, WHICH SPEAK ONLY AS OF THE DATE OF THIS DOCUMENT.
OVERVIEW
The Company was capitalized in 1994 to develop, own and operate
microbrewery/restaurants with the name "Big Buck Brewery & Steakhouse" (each
a "Unit"). Until May 1995, when the Company opened its first Unit in
Gaylord, Michigan, it had no operations or revenues and its activities were
devoted solely to development. The Gaylord Unit, which seats approximately
350 in the restaurant and bar combined, adjoins I-75 approximately 200 miles
north of Detroit. In March 1997, the Company opened its second Unit in Grand
Rapids, Michigan. The Grand Rapids Unit's seating capacity is approximately
250 in the restaurant and bar combined. The brewing and fermenting tanks of
this Unit front directly on 28th Street, a street with an average daily
vehicle count of approximately 52,000. In October 1997, the Company opened
its third Unit in Auburn Hills, Michigan, a suburb of Detroit. The Auburn
Hills Unit, which houses a 15-barrel brewing system, encompasses 26,372
square feet including brewery, bar and restaurant, with a total seating
capacity of approximately 650.
Future revenues and profits will depend upon various factors, including
market acceptance of Big Buck Units and general economic conditions. The
Company's present sources of revenue are the Gaylord, Grand Rapids and Auburn
Hills Units. There can be no assurance that the Company will successfully
implement its expansion plans, in which case the Company will continue to be
dependent on the revenues from the existing Units. The Company also faces
all of the risks, expenses and difficulties frequently encountered in
connection with the expansion and development of a new business.
Furthermore, to the extent that the Company's expansion strategy is
successful, it must manage the transition to multiple site, higher volume
operations, control increased overhead expenses and hire additional personnel.
The Company's sales and earnings are expected to fluctuate based on seasonal
patterns. The Company anticipates that its highest earnings will occur in the
second and third quarters. Quarterly results in the future are likely to be
substantially affected by the timing of new Unit openings. Because of the
seasonality of the Company's business and the impact of new Unit openings,
results for any quarter are not necessarily indicative of the results that may
be achieved for a full fiscal year and cannot be used to indicate financial
performance for the entire year.
5
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The following table is derived from the Company's statements of operations and
expresses the results from operations as a percent of total revenue:
<TABLE>
<CAPTION>
Three Three Nine Nine
Months Months Months Months
Ended Ended Ended Ended
September September September September
27, 1998 28, 1997 27, 1998 28, 1997
------------ ----------- ---------- ----------
<S> <C> <C> <C> <C>
REVENUE:
Restaurant sales 94.7% 91.9% 95.4% 92.3%
Wholesale beer and gift shop sales 5.3% 8.1% 4.6% 7.7%
------- ------- ------- -------
Total revenue 100.0% 100.0% 100.0% 100.0%
------- ------- ------- -------
COST AND EXPENSES:
Cost of sales 34.1% 34.5% 34.3% 34.1%
Restaurant salaries and benefits 30.1% 26.3% 29.7% 28.0%
Operating expenses 20.1% 17.8% 21.1% 20.8%
Depreciation and amortization 4.6% 6.1% 4.8% 7.1%
------- ------- ------- -------
Total costs and expenses 88.9% 84.7% 89.9% 90.0%
------- ------- ------- -------
Restaurant operating income 11.1% 15.3% 10.1% 10.0%
General and administrative expenses 10.1% 21.1% 10.9% 23.3%
------- ------- ------- -------
INCOME (LOSS) FROM OPERATIONS 1.0% (5.8%) (0.8%) (13.3%)
------- ------- ------- -------
OTHER INCOME (EXPENSE):
Interest expense (4.7%) (3.8%) (4.8%) (4.6%)
------- ------- ------- -------
Interest income 0.0% 0.6% 0.1% 2.0%
Loss on sale of property 0.0% 0.0% 0.0% (0.1%)
------- ------- ------- -------
Total other income (expense) (4.7%) (3.2%) (4.7%) (2.7%)
------- ------- ------- -------
LOSS BEFORE CUMULATIVE EFFECT
OF CHANGE IN ACCOUNTING PRINCIPLE (3.7%) (9.0%) (5.5%) (15.9%)
CUMULATIVE EFFECT OF CHANGE IN
ACCOUNTING PRINCIPLE FOR
START-UP COSTS -- -- (3.0%) --
------- ------- ------- -------
NET LOSS (3.7%) (9.0%) (8.5%) (15.9%)
------- ------- ------- -------
------- ------- ------- -------
</TABLE>
RESULTS OF OPERATIONS FOR THE THREE MONTHS AND NINE MONTHS ENDED SEPTEMBER 27,
1998 AND SEPTEMBER 28, 1997
REVENUES
Revenues increased 89% to $4,089,193 in the quarter ended September 27, 1998
from $2,162,599 in the quarter ended September 28, 1997. Revenues increased
131% to $11,665,888 for the nine months ended September 27, 1998 from $5,054,950
for the comparable period in 1997. The large increases are attributable to the
opening of the Grand Rapids Unit on March 17, 1997 and the opening of the Auburn
Hills Unit on October 1, 1997.
6
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COST OF SALES
Cost of sales, which consists of food, merchandise and brewery supplies,
increased 87% to $1,393,785 in the third quarter of 1998 compared to the third
quarter of 1997, and increased 132% to $4,001,458 for the nine months ended
September 27, 1998 compared to the same period in 1997. As a percentage of
revenues, cost of sales decreased to 34.1% for the third quarter of 1998 as
compared to 34.5% for the same period in 1997 and increased to 34.3% for the
nine months ended September 27, 1998 from 34.1% for the comparable period in
1997. The percentage decrease for the quarter is the result of an increase in
menu prices and volume purchasing during the quarter. The increase for the nine
months ended September 27, 1998 is due to higher produce costs incurred during
the first two quarters of 1998.
RESTAURANT SALARIES AND BENEFITS
Restaurant salaries and benefits, which consist of restaurant management and
hourly employee wages and benefits, payroll taxes and workers' compensation
insurance, increased 117% to $1,231,984 in the third quarter of 1998 compared to
the third quarter of 1997, and increased 145% to $3,463,948 for the nine months
ended September 27, 1998 compared to the comparable period in 1997. The large
increases are due to the opening of the Grand Rapids and Auburn Hills Units. As
a percentage of revenues, restaurant salaries and benefits increased to 30.1% in
the third quarter of 1998 compared to 26.3% in the third quarter of 1997, and
increased to 29.7% for the nine months ended September 27, 1998 compared to
28.0% for the same period in 1997. The increase for the quarter is due to the
hiring of assistant managers for the Company's Manager-In-Training program,
which will provide the Company with trained managers for its expansion plans.
The increase for the quarter as a percentage of revenues was partially offset by
the large increase in revenue during the third quarter of 1998 due to summer
tourists. The opening of the Grand Rapids and Auburn Hills Units has reduced
the impact of such seasonality on a combined basis. The increase for the nine
months ended September 27, 1998 is the result of the implementation of a
discretionary Unit-level manager incentive bonus plan and the continuation of
the Company's staff training program.
OPERATING EXPENSES
Operating expenses, which include supplies, utilities, repairs and maintenance,
advertising and occupancy costs, increased 113% to $819,916 in the third quarter
of 1998 compared to the same quarter of 1997, and increased 135% to $2,464,924
for the nine months ended September 27, 1998 compared to the comparable period
in 1997. As a percentage of revenues, operating expenses increased to 20.1% in
the third quarter of 1998 as compared to 17.8% for the same period in 1997, and
decreased to 21.1% for the nine months ended September 27, 1998 from 20.8% for
the comparable period in 1997. The increases are the result of additional
spending on advertising and promotional programs and higher credit card fees as
a percentage of revenues from higher credit card usage by customers at the Grand
Rapids and Auburn Hills Units.
DEPRECIATION AND AMORTIZATION
Depreciation and amortization expenses increased 43% to $187,811 in the third
quarter of 1998 compared to the same quarter of 1997, and increased 57% to
$563,129 for the nine months ended September 27, 1998 compared to the same
period in 1997. As a percentage of revenues, these expenses decreased to 4.6%
in the third quarter of 1998 as compared to 6.1% for the same quarter in 1997,
and decreased to 4.8% for the nine months ended September 27, 1998 from 7.1% for
the comparable period in 1997. The decreases in these expenses as a percentage
of revenues reflect the increases in total sales.
GENERAL AND ADMINISTRATIVE EXPENSES
General and administrative expenses decreased 9.8% to $412,283 in the third
quarter of 1998 compared to the same quarter in 1997, and increased 7.8% to
$1,271,226 for the nine months ended September 27, 1998 compared
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to the same period in 1997. As a percentage of revenues, these expenses
decreased to 10.1% in the third quarter of 1998 from 21.1% for the third
quarter of 1997, and decreased to 10.9% for the nine months ended September
27, 1998 from 23.3% for the comparable period in 1997. The decreased
expenses as a percentage of revenues reflect an increase in total sales. As
additional Units are opened by the Company, management believes that these
expenses will continue to decrease as a percentage of revenues.
INTEREST EXPENSE/INTEREST INCOME
Interest expense increased $108,761 to $190,699 in the third quarter of 1998
compared to third quarter of 1997, and increased $333,449 to $565,769 for the
nine months ended September 27, 1998 as compared to the same period in 1997. As
a percentage of revenues, interest expense increased to 4.7% for the third
quarter of 1998 as compared to 3.8% for the third quarter of 1997, and increased
to 4.8% for the nine months ended September 27, 1998 from 4.6% for the same
period in 1997. As additional Units are opened by the Company, management
believes that it will incur additional interest expense.
Interest income decreased $10,158 to $1,868 in the third quarter of 1998
compared to $12,026 for the third quarter of 1997 and decreased $92,451 to
$7,319 for the nine months ended September 27, 1998 from $99,770 for the same
period in 1997. The decreases are the result of the use of the initial public
offering proceeds for completion of the Grand Rapids and Auburn Hills Units.
CHANGE IN ACCOUNTING PRINCIPLE
The Company elected early adoption of Statement of Position (SOP) 98-5,
"Reporting on the Costs of Start-Up Activities." SOP 98-5 requires companies to
expense as incurred all start-up and preopening costs that are not otherwise
capitalizable as long-lived assets. The effect of this accounting change is to
charge to operations the unamortized balance of preopening costs as of December
28, 1997 of $346,547.
LIQUIDITY AND CAPITAL RESOURCES
The Company used $39,502 in cash for the nine months ended September 27, 1998,
and used $1,157,126 in cash for the nine months ended September 28, 1997, for
operating activities. At September 27, 1998, the Company had a working capital
deficit of $1,083,808. In order to fund operations in the short term, the
Company intends to use cash provided by the operations of its three existing
Units. The Company is also exploring the possible issuance of debt and equity
securities to increase its working capital.
Since inception, the Company's principal capital requirements have been the
funding of (i) Company operations and promotion of the Big Buck Brewery &
Steakhouse format and (ii) the construction of the Gaylord, Grand Rapids and
Auburn Hills Units and the acquisition of furniture, fixtures and equipment for
such Units. The total capital expenditures for the Gaylord, Grand Rapids and
Auburn Hills Units were approximately $5.8 million, $3.2 million and $9.7
million, respectively.
During the nine months ended September 27, 1998, the Company generated $560,297
in cash from the financing activities attributable to the proceeds from capital
lease obligations, partially offset by payments of long-term debt. During the
nine months ended September 27, 1998, the Company spent approximately $393,000
for final construction and equipment costs at the Auburn Hills Unit and the
Company spent approximately $318,000 in the form of deposits on new equipment
and for professional services in connection with the Company's expansion plans.
The Company has entered into a Limited Partnership Agreement with Bass Pro
Outdoor World, L.P. to construct and operate a new Unit in Grapevine, Texas, a
suburb of Dallas. Reference is made to the press release of the Company,
attached hereto as an exhibit, dated November 5, 1998. On or before November
20, 1998, the Company is obligated to make an initial capital contribution
totaling $891,000. Under the terms of the Limited Partnership
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Agreement, the Company may be required to make additional capital
contributions of up to $4,509,000 to construct the Grapevine Unit. The
Company is seeking debt and equity financing for its capital contributions.
There can be no assurance that financing will be available on terms
acceptable or favorable to the Company, or at all.
The Company plans to develop and open additional Units and will need to obtain
additional financing to fulfill such expansion plans. The amount of financing
required for expansion depends on the locations, site conditions, construction
costs and size and type of Units to be built. There can be no assurance that
financing will be available on terms acceptable or favorable to the Company, or
at all. Without additional financing, the Company's development plans will be
scaled back or eliminated.
IMPACT OF YEAR 2000 ISSUEs
The term "Year 2000" is used to describe general problems that may result
from improper processing of dates and date-sensitive calculations by
computers or other machinery as the year 2000 is approached and reached.
This problem stems from the fact that many of the world's computer hardware
and software applications have historically used only the last two digits to
refer to a year. As a result, many of these computer programs do not or will
not properly recognize a year that begins with "20" instead of the familiar
"19." If not corrected, many computer applications could fail or create
erroneous results. The following information was prepared to comply with the
guidelines for Year 2000 disclosure that the Securities and Exchange
Commission issued in an Interpretative Release, effective August 4, 1998.
To operate its business, the Company relies on many third party information
technology ("IT") systems, including its point of sale, table seating and
reservation management, inventory management, credit card processing, payroll,
accounts payable, fixed assets, banking and general ledger systems. The Company
does not maintain any proprietary IT systems and has not made any modifications
to any of the IT systems provided to it by its IT vendors. The Company plans to
request each of the vendors providing hardware and software to run these systems
to complete a Year 2000 compliance questionnaire.
The Company also relies upon suppliers of raw materials and packaging for beer,
suppliers of food and retail products and other third party product and service
providers, over which it can assert little control. The Company's ability to
conduct its business may be negatively affected if its vendors are unable to
deliver products or services as a result of Year 2000 compliance problems.
The Company has begun an assessment of its vendor relationships to determine
risk and assist in the development of contingency plans. This effort is
expected to be completed by July 1, 1999.
The Company expenses costs associated with its Year 2000 compliance efforts as
the costs are incurred. The Company has not yet incurred expenses in connection
with its Year 2000 compliance efforts and estimates that future expenditures
required to complete its Year 2000 compliance efforts will be immaterial.
9
<PAGE>
PART II
ITEM 4. Submission of Matters to a Vote of Security Holders
a. A Special Meeting of Shareholders was held on September 15, 1998.
b. Not applicable.
c. One proposal was submitted for shareholder approval, which passed
with voting results as follows:
(1) To approve an amendment to the Restated Articles of
Incorporation of the Company to increase the Company's
authorized capital stock and to authorize the issuance of
preferred stock.
For: 2,901,041 Against: 616,501
Abstain: 26,501 Non-Votes: 0
ITEM 6. Exhibits and Reports on Form 8-K
a. Exhibits
10.1 Limited Partnership Agreement by and among BBBP Management
Company, Bass Pro Outdoor World, L.P. and Big Buck Brewery &
Steakhouse, Inc., dated November 5, 1998.
10.2 Shareholders' Agreement by and among BBBP Management
Company, Bass Pro Outdoor World, L.P. and Big Buck Brewery &
Steakhouse, Inc., dated November 5, 1998.
10.3 Commercial Sublease Agreement by and between Bass Pro
Outdoor World, L.P. and Buck & Bass, L.P., dated November 5,
1998.
10.4 Common Stock Purchase Warrant issued by Big Buck Brewery &
Steakhouse, Inc. to Bass Pro Outdoor World, L.P., dated
November 5, 1998.
27.1 Financial Data Schedule.
99.1 Press Release, dated November 5, 1998.
b. Reports on Form 8-K
The Registrant filed no Current Reports on Form 8-K during the
quarter ended September 27, 1998.
10
<PAGE>
SIGNATURES
In accordance with the requirements of the Exchange Act, the Registrant
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
BIG BUCK BREWERY & STEAKHOUSE, INC.
Date: November 12, 1998 By /s/ Anthony P. Dombrowski
---------------------------------
Anthony P. Dombrowski
Chief Financial Officer
11
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- -------- -----------
<S> <C>
10.1 Limited Partnership Agreement by and among BBBP Management
Company, Bass Pro Outdoor World, L.P. and Big Buck Brewery &
Steakhouse, Inc., dated November 5, 1998.
10.2 Shareholders' Agreement by and among BBBP Management Company, Bass
Pro Outdoor World, L.P. and Big Buck Brewery & Steakhouse, Inc.,
dated November 5, 1998.
10.3 Commercial Sublease Agreement by and between Bass Pro Outdoor
World, L.P. and Buck & Bass, L.P., dated November 5, 1998.
10.4 Common Stock Purchase Warrant issued by Big Buck Brewery &
Steakhouse, Inc. to Bass Pro Outdoor World, L.P., dated November
5, 1998.
27.1 Financial Data Schedule.
99.1 Press Release, dated November 5, 1998.
</TABLE>
12
<PAGE>
EXHIBIT 10.1
LIMITED PARTNERSHIP AGREEMENT
OF
BUCK & BASS, L.P.
THE LIMITED PARTNERSHIP INTERESTS REPRESENTED BY THIS INSTRUMENT HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR UNDER ANY STATE SECURITIES LAWS. WITHOUT SUCH
REGISTRATION, SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED
OF, EXCEPT UPON DELIVERY TO THE PARTNERSHIP OF ADVANCE NOTICE OF THE INTENDED
SALE, TRANSFER OR OTHER DISPOSITION AND AN OPINION OF COUNSEL SATISFACTORY TO
THE GENERAL PARTNER AND TO COUNSEL FOR THE PARTNERSHIP THAT REGISTRATION OF SUCH
SALE, TRANSFER OR OTHER DISPOSITION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS OR ANY RULE OR REGULATION
PROMULGATED THEREUNDER.
THE LIMITED PARTNERSHIP INTERESTS REPRESENTED BY THIS INSTRUMENT ARE ALSO
SUBJECT TO RESTRICTIONS ON TRANSFERABILITY. NO SALE, TRANSFER OR OTHER
DISPOSITION OF LIMITED PARTNERSHIP INTERESTS WILL BE PERMITTED EXCEPT AS
EXPRESSLY SET FORTH IN THIS DOCUMENT. MOREOVER, CERTAIN PROPOSED SALES,
TRANSFERS OR OTHER DISPOSITIONS ARE SUBJECT TO A PURCHASE OPTION.
<PAGE>
LIMITED PARTNERSHIP AGREEMENT
OF BUCK & BASS, L.P.
This LIMITED PARTNERSHIP AGREEMENT is entered into this 5th day of
November, 1998, by and among BBBP Management Company, a Michigan corporation,
as the General Partner (the "General Partner"), Bass Pro Outdoor World, L.P.,
a Missouri limited partnership, as a Limited Partner ("BPOW"), and Big Buck
Brewery & Steakhouse, Inc., a Michigan corporation, as a Limited Partner
("MBI").
Simultaneously with the execution of this Agreement: (a) BPOW is
contributing Ninety-nine Thousand Dollars ($99,000.00) in cash to the
Partnership in exchange for a Nine and nine-tenths (9.9) percentage
partnership interest (as a limited partner); (b) MBI is contributing Eight
Hundred Ninety-one Thousand Dollars ($891,000.00) in cash to the Partnership
in exchange for an Eighty-nine and one-tenth (89.1) percentage partnership
interest (as a limited partner); and (c) the General Partner is contributing
Ten Thousand Dollars ($10,000.00) in cash in exchange for a One (1)
percentage partnership interest (as a general partner).
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the Partners wish to enter into this Partnership
Agreement and to incorporate completely the agreement of the Partners.
ARTICLE I
DEFINITIONS
In addition to the terms defined elsewhere in this Agreement, for purposes
of this Agreement, the following terms shall have the meaning ascribed to such
terms in this Article I.
1.1 ADDITIONAL MANDATORY DISTRIBUTION - With respect to BPOW, the
amount distributed to it under Section 5.3(b), not to exceed the then Maximum
Additional Mandatory Distribution Amount.
1.2 ADDITIONAL MANDATORY DISTRIBUTION AMOUNT - With respect to each
calendar year, an amount equal to (i) BPOW's allocable share of the Net Income
of the Partnership, reduced by (ii) the amount of Mandatory Distribution
distributed to BPOW pursuant to Section 5.3(a).
1.3 AFFILIATE - Any entity directly or indirectly controlled by,
controlling or under direct or indirect common control with such entity, or any
person related by blood or by marriage to the owners of any Partnership
Interest. Control for purposes of this Section 1.3 means the ability to direct
the actions of an Entity through the exercise of a majority voting power
(whether direct or indirect) or operating control over the day-to-day decisions
of such Entity.
1.4 AGREEMENT - This Limited Partnership Agreement and all amendments
hereto.
1.5 CAPITAL ACCOUNT - An account maintained for each Partner each of
which shall initially be credited with the amount of cash or the fair value of
other property contributed by such Partner.
1.6 CAPITAL CONTRIBUTION - With respect to any Partner, the amount of
money and the fair value of any property (other than money) contributed to the
Partnership as provided in this Agreement, including the Initial Capital
Contributions and the Additional Capital Contributions.
1.7 CASH AVAILABLE FOR DISTRIBUTION - At any given time, all sums of
Cash on hand from all sources not reserved as needed within the next fiscal year
in the ordinary course of business of the Partnership, calculated in accordance
with GAAP.
<PAGE>
1.8 CODE - The Internal Revenue Code of 1986, as amended, or any
successor statute or statutes constituting the United States tax laws.
1.9 COMMERCIAL SUBLEASE AGREEMENT - That instrument entitled
"Commercial Sublease Agreement" between the Partnership, as Sublessee, and BPOW,
as Sublessor, of the Restaurant Property (the "CSA").
1.10 CONSENT OF THE LIMITED PARTNERS - The consent or affirmative vote
by the then holders of all of the Limited Partnership Interests.
1.11 DISSOLUTION EVENT - Any event affecting a General Partner which
would result in the dissolution of the Partnership under the Missouri Limited
Partnership Law.
1.12 ENTITY - Any individual, corporation, partnership, association,
trust or other entity or organization.
1.13 GAAP - Generally accepted accounting principles, consistently
applied.
1.14 GENERAL PARTNER - The general partner of the Partnership, initially
BBBP Management Company.
1.15 INCOME - For each fiscal year or other period, the total net income
of the Partnership which is taxable to its Partners, as determined by use of
GAAP, for such fiscal year or other period.
1.16 IN-KIND PROPERTY - Any investments of BPOW or its Affiliates in
Restaurant or the Restaurant Property to or for the direct benefit of the
Restaurant, including, without limitation, cost of building pad and related
items, walls, ceilings and parking improvements.
1.17 INSOLVENCY EVENT - With respect to any Partner (i) the inability of
such Partner generally to pay its debts as such debts become due, or an
admission in writing by such Partner of its inability to pay its debts
generally, or a general assignment by such Partner for the benefit of creditors,
(ii) the filing of any petition or answer by such Partner seeking to adjudicate
it bankrupt or insolvent, or seeking for itself any liquidation, winding-up,
reorganization, arrangement, adjustment, protection, relief or composition of
such Partner or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking, consenting to or acquiescing in
the entry of an order for relief or the appointment of a receiver, trustee,
custodian, or other similar official for such Partner or for any substantial
part of its property, or (iii) without the consent or acquiescence of such
Partner, the entering of an order for relief or approving a petition for relief
or reorganization or any other petition seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or other similar relief
under any present or future bankruptcy, insolvency, or similar statute, law, or
regulation, or (iv) the filing of any such petition against such Partner which
petition shall not be dismissed within sixty (60) days or, without the consent
or acquiescence of such Partner, the entering of an order appointing a trustee,
custodian, receiver, or liquidator of such Partner or of all or any substantial
part of the property of such Partner which order shall not be dismissed within
sixty (60) days.
1.18 LIMITED PARTNERS - BPOW and MBI and those Entities subsequently
admitted as a Limited Partner of the Partnership in accordance with the
provisions hereof.
1.19 MAXIMUM ADDITIONAL MANDATORY DISTRIBUTION AMOUNT - At any given
point in time, the aggregate of the Additional Mandatory Distribution Amount as
to the then completed fiscal years of the Partnership, reduced by the total
amount distributed to BPOW pursuant to Section 5.3(b).
1.20 MISSOURI LIMITED PARTNERSHIP LAW - The Revised Uniform Limited
Partnership Act as adopted in the State of Missouri.
1.21 PARTNERS - The General Partner and the Limited Partners.
<PAGE>
1.22 PARTNERSHIP - Buck & Bass, L.P., a Missouri limited partnership
governed by the Agreement and the Missouri Limited Partnership Law.
1.23 PARTNERSHIP INTEREST - With respect to any Partner, the interest in
the Partnership held by such Partner, being a Limited Partnership Interest, in
the case of a Limited Partner, and a General Partnership Interest in the case of
a General Partner.
1.24 PREFERRED DISTRIBUTION ACCOUNT - An account established for each
Partner other than BPOW, which account shall be increased by each Preferred
Distribution Amount determined pursuant to Section 1.23 allocable to such
Partner, and decreased by the amount of each distribution by the Partnership to
such Partner of a Preferred Distribution Amount.
1.25 PREFERRED DISTRIBUTION AMOUNT - With respect to each Partner other
than BPOW, the amount that would have been distributed to such Partner on each
occasion in which BPOW elects to receive an Additional Mandatory Distribution
had such Partner been entitled to make and did make the same (in terms of
percentage of Net Income) election to receive an Additional Mandatory
Distribution, but without regard to the limitation of the then Cash Available
for Distribution.
1.26 PROPERTY - That property shown on the balance sheet of the
Partnership.
1.27 RESTAURANT PROPERTY - That real property identified on EXHIBIT A
labeled "Restaurant Property".
1.28 SHAREHOLDERS' AGREEMENT. That agreement between BPOW and MBI
concerning activities of the shareholders of the General Partner.
1.29 TRANSFER - The voluntary or involuntary transfer of securities or
other property in any manner whatsoever (including, but not by way of
limitation, any assignment, sale, pledge, hypothecation, disposal, gift,
transfer by any legal process, including those resulting from a merger,
consolidation, statutory share exchange, insolvency, bankruptcy, or any other
transfer) to any Entity.
ARTICLE II
ORGANIZATION, OFFICE, TERM, LIMITATION ON LIABILITY,
LIMITED PARTNER POWERS AND REGISTERED AGENT
2.1 ORGANIZATION OF THE PARTNERSHIP. The Partnership is organized as a
limited partnership under the Missouri Limited Partnership Law, and the parties
desire that the Partnership continue to qualify as a limited partnership.
Promptly after the execution of this Agreement and as otherwise required
thereafter, the General Partner, on behalf of the Partnership and each of the
Limited Partners, shall execute and file a certificate of limited partnership
and all necessary or appropriate conforming certificates and documents and
perform such other filing, recording, publishing and other acts as are necessary
or appropriate to comply with all requirements for the formation and operation
of a limited partnership in the State of Missouri and all other jurisdictions
where the Partnership desires to conduct its business. The General Partner
shall cause the Partnership to comply with all requirements for the
qualification of the Partnership as a limited partnership in any jurisdiction in
which it conducts business before the Partnership conducts business in the
jurisdiction.
2.2 NAME AND PRINCIPAL OFFICE. The name of the Partnership is "Buck &
Bass, L.P." or such other name or names as the General Partner with the Consent
of the Limited Partners shall determine; provided, however, that the name of the
Partnership shall not include the name of any holder of a limited partnership
interest. The principal office of the Partnership shall be located at 1340 East
Woodhurst, Springfield, Missouri 65804, or such other place as the General
Partner determines. The General Partner shall give the Limited Partners at
least fourteen (14) days prior written notice of any change in the principal
office of the Partnership.
<PAGE>
2.3 TERM. The existence of the Partnership shall continue until
December 31, 2048, unless terminated earlier pursuant to this Agreement.
2.4 PURPOSES. The purposes of the Partnership shall be:
(a) To: (i) acquire (directly or indirectly) the Capital
Contributions from the Partners; (ii) construct, equip and furnish a brewery and
restaurant to be constructed and operated on the Restaurant Property (the
"Restaurant"); and (iii) operate and manage the Partnership assets and other
property in the conduct of the business of the Restaurant.
(b) Subject to Section 3.4 below, and incident to the purposes
set forth in Section 2.4(a), to conduct such other activities, including,
without limitation, and any other activity as may be necessary or appropriate to
promote the purposes set forth in clause (a) above.
2.5 TITLE TO PARTNERSHIP ASSETS. Title to the Property of the
Partnership will be held in the name of the Partnership.
2.6 ADMISSION OF LIMITED PARTNERS. The Partnership hereby admits BPOW
and MBI to the Partnership as Limited Partners having the percentage interest in
the Partnership as specified in Section 3.2.
2.7 LIMITED PARTNERS.
(a) LIMITATION ON LIMITED PARTNERS' LIABILITIES. Except as
otherwise specifically provided in this Agreement or as provided in the CSA, no
Limited Partner shall be bound by or be personally liable for the expenses,
liabilities or obligations of the Partnership, the General Partner or any other
Limited Partner, and the liability of each Limited Partner shall be limited
solely to their respective Capital Contribution.
(b) NO CONTROL OF BUSINESS OR RIGHT TO ACT FOR PARTNERSHIP -
POWERS OF LIMITED PARTNERS. The Limited Partners, in their capacity as limited
partners, shall not participate in the control of the business of the
Partnership, or have any right or authority to act on behalf of the Partnership
or to sign for or bind the Partnership. The Limited Partners shall not have the
right to vote on any matters except to the extent expressly set forth herein or
with respect to any matter upon which the vote of the Limited Partners is
required by the Missouri Limited Partnership Law or other applicable law.
(c) NO PRIORITY. Except as otherwise provided herein, (i) no
Limited Partner shall be entitled to any distribution or to withdraw from the
Partnership or to demand the return of any Capital Contribution to the
Partnership, (ii) no Limited Partner shall have the right to demand or receive
Property other than cash as a distribution of income or capital, and (iii) no
Limited Partner shall have priority over any other Limited Partner either as to
the return of any Capital Contribution or as to distributions.
2.8 REGISTERED AGENT AND REGISTERED OFFICE. The initial registered
agent for the Partnership is Joe C. Greene, whose place of business, located at
1340 East Woodhurst, Springfield, Missouri 65804, shall be the registered office
of the Partnership. The General Partner shall give the Limited Partners at
least fourteen (14) days prior written notice of any change in the registered
agent of the Partnership.
ARTICLE III
CAPITAL CONTRIBUTIONS
3.1 GENERAL PARTNER CONTRIBUTIONS. The General Partner has contributed
the sum of Ten Thousand Dollars ($10,000) to the Partnership in exchange for the
entire General Partnership Interest in the Partnership. Such General
Partnership Interest shall initially constitute one percent (1%) of the total
Partnership Interests in the Partnership for purposes of allocations of profits,
gains and losses of the Partnership.
<PAGE>
3.2 LIMITED PARTNER CONTRIBUTIONS.
(a) No later than fifteen (15) calendar days after the execution of
this Agreement, MBI will contribute to the Partnership cash in the amount of
Eight Hundred Ninety-one Thousand Dollars ($891,000) and BPOW will contribute
In-Kind Property having a fair value of Ninety-nine Thousand Dollars
($99,000.00) (each such contribution being herein called an "Initial Capital
Contribution").
(b) BPOW and MBI each agree to make additional capital
contributions to the Partnership as provided in Section 3.3 below (the
"Additional Capital Contributions"). The Initial Capital Contributions and the
Additional Capital Contributions are collectively called the "Capital
Contributions".
3.3 ADDITIONAL CAPITAL CONTRIBUTIONS.
(a) Within ten (10) business days of written request of the
General Partner for contribution (accompanied by a sworn statement of a senior
officer of the General Partner and accompanied by all related documents of
substantiation) certifying that such charges have been incurred and are then due
in respect of the construction, furnishing, equipping, supplying, purchase of
inventory or pre-opening expenses of the Restaurant, the Limited Partners shall
contribute proportionately to the capital of the Partnership, in cash (except as
permitted by Section 3.3(b)), all amounts necessary to permit the Partnership to
satisfy such charges in respect of the Restaurant (the "Additional Capital
Contribution"). Any Additional Capital Contribution shall be made
simultaneously with the Additional Capital Contributions of other Partners.
Capital Contributions under this section shall be made in proportion to the
limited partnership interests of Ten percent (10%) by BPOW and Ninety percent
(90%) by MBI. The General Partner shall not be required to make any portion of
such Additional Capital Contribution, all of which shall be made by the Limited
Partners in the proportions specified in this Section 3.3(a). The Initial
Capital Contribution shall be used prior to any request of the Limited Partners
to make Additional Capital Contributions under this section. In no event shall
any Limited Partner be required to make Additional Capital Contributions greater
than its proportionate part of Six Million Dollars ($6,000,000), less its
Initial Capital Contributions.
(b) In lieu of the Additional Capital Contribution in cash being
made, BPOW may, at its option, contribute all or a portion of the Additional
Capital Contribution in the form of In-Kind Property. The value of the
capital contributions in the form of In-Kind Property shall be the fair
market value on the day of contribution. The actual cost of BPOW plus Six
per cent (6%) per annum for such In-Kind Property is presumed to be the fair
market value thereof. The capital contribution of In-Kind Property by BPOW
shall be accompanied by a sworn statement of a senior officer of BPOW
acknowledging and warranting that BPOW has incurred the costs for the In-Kind
Property, accompanied by copies of invoices and related documents of
substantiation. BPOW shall permit the Partnership and all Partners to
inspect the books of BPOW for the sole purpose of verifying the facts
necessary to establish that BPOW has, in fact, made the capital contribution
of In-Kind Property.
(c) If, as a result of Initial Capital Contributions and
Additional Capital Contributions by BPOW (whether in cash and/or by In-Kind
Property), the amount it shall have contributed shall be in excess of Ten
percent (10%) of the total amount contributed to the capital account by all
Partners (the "Excess Capital Contribution"), then, in that event, BPOW shall be
granted such additional Partnership Interest as will fairly and fully reflect
the relative contribution of capital to the Partnership as follows: The
Partnership Interest of each Limited Partner will be determined by multiplying
the amount and value (in case of In-Kind Property) of such Limited Partner's
Capital Contribution (as defined in 3.2(b)) by a fraction, expressed as a
percentage (rounded to the nearest one-tenth of one percent), the numerator of
which is the total value of the Capital Contributions by each of the Partners,
reduced by Ten Thousand Dollars ($10,000.00) (representing the Initial Capital
Contribution of the General Partner). In no event shall the Partnership
Interest of the General Partner be diluted to less than One percent (1%). To
the extent the above calculation would dilute the General Partner Partnership
Interest below One percent (1%) Partnership Interest, then the percentage
necessary to maintain the One percent (1%) Partnership Interest in the General
Partner shall be proportionately taken from the Limited Partners to the credit
of the General Partner to bring the Partnership Interest of the General Partner
to One percent (1%). As a result of the various
<PAGE>
Capital Contributions, in no event shall the Partnership Interest of MBI be
reduced below Fifty-one percent (51%) and any capital contribution by BPOW
which would result in the Fifty-one percent (51%) limitation being exceeded
will be returned to BPOW.
(d) Notwithstanding the provisions of Section 3.3(c), if BPOW
makes an Excess Capital Contribution (in cash or by In-Kind Property
contribution), BPOW may elect to waive in writing the option to receive the
additional Partnership Interest under Section 3.3(c) above, in which event the
Excess Capital Contribution shall be reimbursed to BPOW by the Partnership in
cash on demand.
3.4 PROHIBITION AGAINST BORROWING. Except as provided in this Section
3.4 or upon written Consent of the Limited Partners, (i) the Partnership shall
not borrow any money for the construction, equipping and operating of the
Restaurant and shall use only Initial Capital Contributions and Additional
Capital Contributions for those purposes, and (ii) the Partnership shall not
mortgage, pledge, assign, grant a security interest or otherwise in any way
create a lien on or encumber the assets of the Restaurant on the property except
as otherwise specifically provided in this Agreement.
(a) FF&E BORROWING. Notwithstanding the prohibition set forth
above in this Section 3.4, the Partnership may borrow up to One Million Five
Hundred Thousand Dollars ($1,500,000.00) for the sole purpose of acquiring for
the opening of the Restaurant and for use in the Restaurant, furniture, fixtures
and equipment (the "FF&E"). The Partnership may grant to the lender a security
interest in the FF&E to secure such loan(s).
3.5 CONTRIBUTION OBLIGATIONS. Except as provided in Sections 3.2 and
3.3 above, no Limited Partner, as a limited partner of the Partnership, shall be
required to contribute any capital to the Partnership other than the Capital
Contributions, except that if a Limited Partner has received the return of the
whole or part of such Limited Partner's Capital Contribution, the Limited
Partner will remain liable to the Partnership, to the extent provided under the
Missouri Limited Partnership Law, for any sums (not in excess of the Capital
Contribution so returned) necessary to discharge the Partnership's liabilities
to all creditors who extended credit or whose claims arose before such return.
3.6 NO THIRD PARTY BENEFICIARIES. The contribution obligation of the
Partners under this Article III is not intended to create any obligation to
third party beneficiaries. No creditor may rely on that obligation unless the
Partner against whom the obligation is asserted has expressly agreed in writing
that the creditor may so rely on the contribution obligation.
ARTICLE IV
ALLOCATIONS OF PROFITS, GAINS AND LOSSES
AND DISTRIBUTIONS
4.1 LOSSES. The Partnership will allocate its losses among the
Partners in accordance with their respective Partnership equity ownership
percentages.
4.2 PROFITS. The Partnership will allocate its profits among the
Partners in accordance with their respective Partnership equity ownership
percentages. This allocation may not be the same as the allocation to the
respective percentages of ownership of equity in the Partnership as is provided
in Sections 5.5 and 5.6. No distribution of property other than Cash Available
for Distribution shall be permitted except on written Consent of the Limited
Partners.
<PAGE>
ARTICLE V
RIGHTS, POWERS AND DUTIES OF GENERAL PARTNER
<PAGE>
Subject to the powers of the Limited Partners as required by law, the
following provisions shall govern the General Partner's management of the
Partnership's business:
5.1 MANAGEMENT OF PARTNERSHIP BUSINESS. The General Partner shall be
solely responsible for the management of the Partnership's business with all
rights and powers generally conferred by law or necessary, advisable or
consistent to the accomplishment of the purposes of the Partnership or as
otherwise determined by the General Partner, in its judgment, to be in the best
interests of the Partnership. All decisions regarding management of the
Partnership shall be made by the General Partner. The General Partner is
expressly authorized and directed to execute and deliver, on behalf of the
Partnership, with BPOW a sublease of the Property for use as the Restaurant.
MBI agrees to not conduct any material dealings with the Partnership except on
terms no less favorable to the Partnership than to an entity comparable to the
Partnership and then only having given written notice of such dealings to all
Limited Partners.
5.2 RIGHTS AND POWERS OF THE GENERAL PARTNER. Subject to Section 3.4,
in addition to the rights and powers possessed by general partners under law,
the General Partner shall have all specific rights and powers required for or
appropriate, in its judgment, to the management of the Partnership's business.
Such rights and powers shall include, by way of illustration but not by way of
limitation, the following rights and powers in furtherance of the business of
the Partnership:
(a) To employ the services of agents, attorneys, brokers,
managing agents, architects, contractors, subcontractors, accountants and others
to construct, equip, furnish and operate a Restaurant on the Property;
(b) To pay, collect, compromise, arbitrate, resort to or defend
legal action with respect to, or otherwise adjust, claims or demands of or
against the Partnership;
(c) To consent to the modification, renewal or extension of any
obligation of any Entity to the Partnership or any agreement to which the
Partnership is a party or of which it is a beneficiary or by which it is bound;
(d) To execute, acknowledge and deliver any and all instruments
necessary to the foregoing.
Each power specified above shall be exercised in good faith, to the extent
and in the manner consistent with and necessary for the proper management of the
business of the Partnership, in the best judgment of the General Partner.
5.3 MANDATORY DISTRIBUTIONS.
(a) To the extent of Cash Available for Distribution, the General
Partner shall distribute to the Partners, annually in respect of each calendar
year, Cash in the aggregate amount equal to at least forty-two percent (42%) of
the Net Income of the Partnership for the calendar year in question, ("Mandatory
Distribution") which Mandatory Distribution of Cash shall occur on an estimated
basis by March 15 of the ensuing calendar year, with a final adjustment
occurring by May 15 of such calendar year ("Final Distribution Date"). Such
Mandatory Distributions shall be in cash and be allocated among the Partners in
proportion to the Net Income allocable to each Partner during the period for
which distribution is earned.
(b) In addition to the Mandatory Distribution provided for in
Section 5.3(a), any Limited Partner may, at its option, by giving written notice
thereof to the General Partner, require the Partnership to distribute to each of
the Limited Partners an Additional Mandatory Distribution of up to 100% of the
Maximum
<PAGE>
Additional Mandatory Distribution Amount then available, which amount shall
be distributed to the Limited Partner to the extent of the then Cash
Available for Distribution. Nothing contained in the Section 5.3(b) shall be
construed to limit the General Partner's power and authority to make
proportionate distributions to all Limited Partners.
5.4 LIABILITY OF THE GENERAL PARTNER TO LIMITED PARTNERS AND
PARTNERSHIP; INDEMNIFICATION.
(a) The General Partner shall devote full time and attention to
the Partnership necessary to manage the affairs of the Partnership to its best
advantage and shall conduct no other business. The doing of any act or omission
to do any act by the General Partner (and its officers, directors and employees)
which may cause or result in loss or damage to the Partnership, if done in good
faith and reasonably believed by the General Partner to be within the scope of
authority conferred by this Agreement, shall not subject the General Partner to
any liability to the Partnership or to the Limited Partners. The Partnership
will indemnify and hold the General Partner (and its officers, directors and
employees) harmless from any claim, loss, expense, liability, action or damage
to it resulting from any such act or omission in the conduct of the business of
the Partnership in good faith and if reasonably believed by the General Partner
at the time of commission or omission to be within the scope of the authority
conferred by this Agreement, including, without limitation, reasonable costs and
expenses of litigation and appeal (including reasonable fees and expenses of
attorneys engaged by the General Partner in the defense or prosecution of any
action relating to such act or omission); but the General Partner (and its
officers, directors and employees) shall not be entitled to be indemnified or
held harmless from any claim, loss, expense, liability, action or damage due to
or arising from the fraud, bad faith or gross negligence of the General Partner
(or any of its officers, directors and employees).
(b) In addition to its obligations set forth in the immediately
preceding paragraph, the Partnership will indemnify and hold the Limited
Partners (and their respective officers, directors and employees) harmless
against and in respect of any and all damages, losses, deficiencies,
liabilities, costs and expenses (including, without limitation, reasonable
attorneys' fees) incurred or suffered by a Limited Partner resulting from,
relating to or arising out of: (i) the operation by the Partnership of the
business of the Partnership; (ii) any and all actions, suits, claims, or legal,
administrative, arbitration, governmental or other proceedings or investigations
against a Limited Partner or any director, officer, employee, of a Limited
Partner, that relate to the business of the Partnership, and (iii) any and all
actions, suits, claims, proceedings, investigations, demands, assessments,
audits, fines, judgments, costs and other expenses (including, without
limitation, reasonable legal fees and expenses) incident to any of the foregoing
or to the enforcement of the Partnership's obligation to indemnify the Limited
Partners set forth in this Section 5.4(b) unless, in any such event, such
Limited Partner shall be obligated to indemnify the Partnership or any of the
other Partners. The obligation of the Partnership to indemnify a Limited
Partner hereunder is limited to such party in its capacity as a Limited Partner.
5.5 TAX ALLOCATIONS: CODE SECTION 704. In accordance with Code
Section 704(c) and the Internal Revenue regulations thereunder (the
"Regulations"), income, gain, loss and deduction with respect to any property
contributed to the capital of the Partnership shall, solely for tax purposes, be
allocated among the General Partner and Limited Partners so as to take account
of any variation between the adjusted basis of such property to the Partnership
for federal income tax purposes and its fair market value at the time of
contribution.
Any elections or other decisions relating to such allocations shall be made
by the General Partner in any manner that reasonably reflects the purpose and
intention of this Agreement. Allocations pursuant to this Section 5.5 are
solely for purposes of federal, state and local taxes and shall not affect, or
in any way be taken into account in computing, any Partner's capital account or
share of profits, losses, other items or distributions pursuant to any provision
of this Agreement.
5.6 OTHER ALLOCATION RULES.
<PAGE>
(a) For purposes of determining the profits and losses allocable
to any period, profits and losses shall be determined on a daily prorata basis.
(b) Generally, all profits and losses allocated to the Partners
shall be allocated, and all distributions of cash available for distribution
shall be allocated, among the Partners in accordance with their respective
proportionate shares of ownership of the equity of the Partnership.
(c) The Partners are aware of the income tax consequences of the
allocations made by this Article V and hereby agree to be bound by the
provisions of this Article V in reporting their shares of Partnership income and
loss for income tax purposes.
5.7 CASH AVAILABLE FOR DISTRIBUTION. Except as otherwise provided
hereunder, Cash Available for Distribution, if any, shall be distributed at such
times as the General Partner may reasonably determine first, to the Partners to
the extent of their Preferred Distribution Account, on a prorata basis, if more
than one (1) Partner, based upon the total Preferred Distribution Amount, and
then to the Partners in accordance with their respective proportionate share of
ownership of the equity of the Partnership.
ARTICLE VI
BOOKS, RECORDS AND REPORTS, ACCOUNTING,
TAX ELECTIONS, ETC.
6.1 BOOKS, RECORDS AND REPORTS.
(a) The General Partner shall keep proper and complete records
and books of account in which all transactions and other matters relative to the
Partnership's business are entered. The Partnership's books and records shall
be prepared in accordance with the accrual method of accounting utilizing
generally accepted accounting principles, consistently applied. The Partnership
shall also keep (i) a list or lists containing the full name and last known
mailing address of each current and past Partner, (ii) a copy of the then
effective Agreement and certificate of limited partnership and all amendments
thereto and restatements thereof, together with executed copies of any powers of
attorney pursuant to which any certificate has been executed, (iii) copies of
the Partnership's Federal, state and local income tax returns and reports, if
any, for all years with respect to which the period for assessment of a
deficiency has not expired, and (iv) copies of any financial statements of the
Partnership for the three most recent years. Such books and records shall be
maintained at the office of the Partnership and shall be open for inspection and
copying by the Partners or their duly authorized representatives for reasonable
Partnership purposes, including the evaluation of their investment in the
Partnership.
(b) The General Partner shall cause the Partnership to provide
to each Partner periodic financial statements showing the income and expenses
of the Partnership for the applicable periods and shall have the annual
financial statements audited by the Partnership's certified public
accountants. Periodic financial statements shall be furnished to each Partner
on the following schedule: (i) monthly within ten (10) days of each fiscal
month (unaudited), (ii) quarterly within forty-five (45) days of each fiscal
quarter (with year-to-date comparisons), and (iii) unaudited annual
statements within thirty (30) days of the close of the fiscal year of the
Partnership. The General Partner will cause the completed Form K-1 (or its
successor) along with full supporting financial statements and schedules to
be delivered to each Partner within ninety (90) days of the end of the fiscal
year. The General Partner shall cause the annual audit to be delivered to
all Partners on or before ninety (90) days following the end of the
applicable fiscal year. The Partnership shall also furnish to any Partner,
upon reasonable demand, (i) true and full information regarding the state of
the business and financial condition of the Partnership, and (ii) promptly
after becoming available, a copy of the Partnership's Federal, state and
local income tax returns for each year, together with a reconciliation of
Capital Account balances and changes thereto for each Partner. The audit
<PAGE>
may be in the form of a separate segment of the annual audit of MBI so long
as the footnotes or other portions of such audit will separately show the
balance sheet, income statement, Partner's equity statement and cash flow
analysis of the Partnership.
6.2 BANK ACCOUNTS. The Partnership shall maintain its bank accounts in
such banking institutions as the General Partner determines, and withdrawals
shall be made only in the regular course of Partnership business on such
signature or signatures as the General Partner determines.
6.3 ACCOUNTANTS. The independent accountants for the Partnership will
be Arthur Andersen, L.L.P. unless changed by unanimous vote of the Board of
Directors of General Partner. Such independent accountants shall prepare the
Federal income tax returns of the Partnership, and prior to execution by the
General Partner, review all material state income tax returns of the Partnership
and shall audit and certify to all annual financial statements of the
Partnership in the manner described in Section 6.1(b) above.
6.4 TAX ELECTIONS.
(a) All elections required or permitted by the Partnership under
the Code shall be made by the General Partner in its sole and absolute
discretion.
(b) The General Partner will not be responsible for initiating
any change in accounting methods from the methods initially chosen except upon
written advice of Partnership accountants or attorneys. The General Partner
shall not incur any liability for any election made on the advice of the
Partnership's accountants or legal counsel.
(c) The General Partner and each Limited Partner agree that the
Partnership and each Partner have elected that the Partnership shall elect to be
treated as a partnership for state and federal income tax purposes. This
election to be so treated shall not be changed in the absence of written Consent
of the Limited Partners.
6.5 FISCAL YEAR. The fiscal year of the Partnership for accounting and
Federal income tax purposes shall be the 52/53 week fiscal year of MBI (the
"Fiscal Year").
6.6 TAX MATTERS PARTNER. The General Partner shall be the initial tax
matters partner (as defined in Section 6231 of the Code). The tax matters
partner shall inform the Limited Partners as to the commencement of any audit of
the Federal or any material state income tax return of the Partnership, and
shall keep the Limited Partners reasonably informed with respect to the salient
aspects of any such audit or of any controversy with tax authorities involving
the Partnership, and shall consult in good faith with the Limited Partners with
respect to any proposed settlement of a tax dispute which would or could
adversely affect any Partner.
The Tax Matters Partner shall not bind any other Partner to any settlement
of any such dispute without the consent of such Partner, which consent will not
be unreasonably withheld. The reasonable costs of the Partnership in
contesting any such tax disputes shall be borne by the Partnership. Counsel
retained by the Partnership with respect to any tax dispute shall be reasonably
acceptable to the Limited Partners.
<PAGE>
ARTICLE VII
WITHDRAWAL OR REMOVAL AND ADMISSION OF PARTNERS
AND TRANSFER OF PARTNERSHIP INTERESTS
7.1 GENERAL PARTNER.
(a) The General Partner may not voluntarily withdraw or assign
all or any part of its interest in the Partnership without the Consent of the
Limited Partners.
(b) The General Partner may be removed (i) by any Limited
Partner if the General Partner violates its fiduciary responsibilities as a
General Partner of the Partnership or (ii) upon Consent of the Limited
Partners. Upon such removal a successor general partner (the "Successor
General Partner") shall be selected by Consent of the Limited Partners and
the Successor General Partner will become entitled to the removed General
Partner's interest in the Partnership upon the Successor General Partner's
payment to the removed General Partner of the fair market value of the
General Partner's interest in the Partnership as determined by Partnership
accountants.
7.2 ADMISSION OF ADDITIONAL LIMITED PARTNERS.
(a) The Partnership shall not issue and sell any additional
limited partnership interests in the Partnership except on written Consent of
the Limited Partners.
7.3 DEATH, INCOMPETENCE, DISSOLUTION OR WITHDRAWAL OF A LIMITED
PARTNER.
(a) Upon the death, legal incapacity, bankruptcy or insolvency
of any individual Limited Partner (including an assignee who becomes a Limited
Partner), such Limited Partner's legally authorized personal representative
shall have all of the rights of a Limited Partner for the purpose of
administering and protecting such Limited Partner's estate to the full extent
possessed by the incompetent, bankrupt or insolvent Limited Partner, provided,
however, that such personal representative, in such capacity, shall not be
deemed to be a substitute Limited Partner.
(b) Upon the bankruptcy, insolvency, dissolution or other
cessation to exist as an Entity of any Limited Partner which is not an
individual, the authorized representative of such Entity shall have all the
rights of a Limited Partner for the purpose of effecting the orderly winding up
and disposition of the business of such Limited Partner, provided, however, that
such authorized representative shall not be deemed to be a substitute Limited
Partner.
7.4 ASSIGNMENT OF INTEREST OF LIMITED PARTNER.
(a) RESTRICTION ON TRANSFERS. Other than by written Consent of
the Limited Partners or as otherwise permitted by this Agreement, no Limited
Partner may Transfer all or any portion of its Limited Partnership Interest.
Any Transfer of any Partnership Interest by MBI is subject to the right of first
refusal in favor of Bass Pro as set forth in Section 8.1.
(b) PERMITTED TRANSFERS. A Limited Partner may at any time
Transfer all or any portion of its Limited Partnership Interest to (i) any other
Partner or Affiliate of another Partner, (ii) any Affiliate of the transferor
other than an individual, (iii) an estate planning trust established by the
transferor which is exclusively for the benefit of Affiliates of such
transferor, and (iv) upon the death of an individual Limited Partner, any
beneficiary under the will of such individual Limited Partner who is an
Affiliate of such individual Limited Partner,
<PAGE>
or if such Limited Partner dies intestate, any devisee taking under
applicable law of descent and distribution who is an Affiliate of such
individual. No Transfer shall relieve the transferor of any obligations
under this Agreement.
ARTICLE VIII
OPTIONS TO PURCHASE
8.1. OPTION RIGHTS OF BPOW. In the event of the occurrence of an
Insolvency Event or other material default under this Agreement by either MBI or
the General Partner or by the Partnership or Sublessee under the Sublease, which
default is not cured within twenty (20) calendar days after BPOW shall have
notified MBI, the General Partner and the Partnership of the default, BPOW shall
have the absolute, unconditional right to purchase all of the limited
partnership interest of MBI for a fair and reasonable purchase price which the
parties have agreed to in this Article VIII. Due to the "Special Circumstances"
(as defined below) and the difficulties of ascertaining value, the purchase
amount for such interests shall be Forty percent (40%) of the "Book Value" of
the interest of MBI and General Partner in the Partnership. "Book Value" means
the value of the General Partner and of the MBI capital account as shown on the
books of the Partnership for the calendar month immediately before the default.
Each share of stock of the General Partner shall be endorsed with a legend
reading as follows:
"THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY ARE SUBJECT TO THE
TERMS OF THAT CERTAIN SHAREHOLDERS' AGREEMENT DATED NOVEMBER 5, 1998 (A
COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE CORPORATION) WHICH
CONTAINS CERTAIN LIMITATIONS, RESTRICTIONS AND OBLIGATIONS WITH RESPECT TO
SUCH SHARES AND THE HOLDER THEREOF, INCLUDING, WITHOUT LIMITATION,
RESTRICTIONS UPON THE SALE OF THE SHARES REPRESENTED HEREBY."
The parties have agreed that the Restaurant to be operated by the Partnership is
an integral part of and complement to the Outdoor World store owned by BPOW
adjacent to the Restaurant and, therefore, the right of BPOW to so acquire the
interests of MBI as Limited Partner and as owner of the controlling interest in
the General Partner in the event of an uncured default is essential to the
success of the Restaurant and the adjacent Outdoor World store owned by BPOW in
the event of default by MBI and the General Partner. Failure of the Restaurant
would reflect poorly upon the adjacent store and would greatly damage the image,
goodwill and profit prospects of the Outdoor World store. These are the
"Special Circumstances" referred to above. The parties agree that if a court
should find that the purchase price is not appropriate, the parties wish to
preserve this option and right to purchase subject to the determination by the
court as to the appropriate purchase price.
8.2 RIGHT OF FIRST REFUSAL. In the event that MBI proposes to Transfer
any or all of its Partnership Interest to a third party, MBI shall give written
notice (the "Notice") to Bass Pro setting forth the complete and exact terms and
price of the proposal. During the thirty (30) calendar days immediately
following the receipt by Bass Pro of the Notice, Bass Pro shall have the right
to purchase the interest proposed to be transferred on the exact same terms and
price as set forth in the Notice by giving MBI written notice to that effect
(the "Acceptance") during that thirty (30) day period, whereupon MBI and Bass
Pro shall proceed to close the purchase and sale within fifteen (15) business
days of the giving of the Acceptance. If no timely Acceptance is given, the
Transfer may be completed to the third party (the "Third Party Transferee"), but
only upon the exact terms and price set forth in the Notice. The same right of
first refusal in favor of Bass Pro shall apply to Transfer of the Partnership
Interests in the hands of the Third Party Transferee. The Third Party
Transferee shall not be a partner except upon (i) its agreeing to the terms of
this Limited Partnership Agreement and (ii) Consent of the Limited Partners.
<PAGE>
ARTICLE IX
BPOW RIGHT TO PURCHASE
9.1 RIGHTS TO PURCHASE. BPOW is granted the irrevocable right and
option to purchase up to Fifteen percent (15%) of the limited partnership
interest of MBI at a price equal to the actual cost of MBI for such interest
being sold. The actual cost of MBI shall be the sum of all Capital
Contributions of MBI less all distributions from the Partnership to MBI which
are not distributions of Income earned by the Partnership. This right and
option by BPOW shall be exercisable at any time from the date of opening of the
Restaurant on the Property until twenty-four (24) months following the opening
of the Restaurant on the Property. The option to purchase Fifteen percent (15%)
of the interest of MBI will be reduced to the extent necessary to allow MBI to
retain and own at least Fifty-one percent (51%) Limited Partnership Interest.
9.2 MECHANICS. If BPOW shall elect to exercise its option within the
time provided, it shall give MBI written notice to that effect during the option
period specifying the percentage to be purchased. Closing shall occur on the
10th business day following notice. The purchase shall be for cash.
ARTICLE X
DISSOLUTION, LIQUIDATION AND WINDING UP
10.1 DISSOLUTION AND WINDING UP. Except as otherwise expressly
provided in this Agreement, the Partnership shall be dissolved and wound up upon
the occurrence of any of the following events:
(a) The distribution to the Partners of all Partnership Property
(provided that nothing contained in this clause (a) shall be
deemed to require or permit any action that would be
violative of or adversely affect any lease or sublease to
which the Partnership is a party);
(b) The expiration of the term provided in Section 2.3;
(c) The written consent of the General Partner and the written
Consent of the Limited Partners; or
(d) The entry of a decree of judicial dissolution by the circuit
court of the county of the principal place of business or
registered office of the Partnership.
(e) The occurrence of a Dissolution Event.
Dissolution shall be effective on the date of the event giving rise to the
dissolution of the Partnership, but the Partnership shall not terminate until
its property shall have been distributed in accordance with the provisions of
Section 10.4. Neither the death, insanity, incompetency, bankruptcy, insolvency
or similar event of dissolution or liquidation of a Limited Partner shall
dissolve the Partnership.
10.2 LIQUIDATING TRUSTEE. Upon the occurrence of an event under Section
10.1 giving rise to the dissolution and winding up of the Partnership, a person
designated by BPOW, acting in the capacity of the liquidating trustee, will
proceed diligently to wind up the affairs of the Partnership and distribute its
assets in accordance with the provisions of Section 10.4. During the interim,
the liquidating trustee will continue to exercise the rights and operate the
properties of the Partnership consistently with the liquidation thereof,
exercising in connection therewith all the power and authority of the General
Partner under this Agreement.
<PAGE>
10.3 ACCOUNTING ON DISSOLUTION. Upon the occurrence of an event under
Section 10.1 giving rise to the dissolution and winding up of the Partnership,
the liquidating trustee will cause the Partnership's accountants to make a
complete accounting of the assets, liabilities and operations of the Partnership
as of the last day of the month in which the dissolution occurs.
10.4 LIQUIDATION AND TERMINATION. As expeditiously as possible:
(a) The liquidating trustee shall pay all liabilities of the
Partnership and establish a reserve, if the trustee deems a reserve to be
necessary, for payment of future or contingent Partnership obligations.
(b) The Partnership shall allocate its estimated losses for the
year and any loss realized by the Partnership on liquidation, including any loss
or Net Income for the current year.
(c) The Partnership shall distribute the balance of the proceeds
of the liquidation after allocating gain or loss under paragraph (b) of this
Section 10.4 among the Partners' accounts in proportion to and to the extent of
their positive Capital Account balances.
(d) In the event efforts to convert assets to cash at a
reasonable price are unsuccessful, Partnership property may be distributed to
the Partners in kind, for purposes of reflecting the allocation of gain or loss
from liquidation in the Partners' capital accounts.
(e) After allocation of gain or loss from liquidation if the
General Partner has a negative balance in its Capital Account, upon notice from
the liquidating trustee, the General Partner shall restore such Capital Account
to zero promptly by paying the trustee the amount of such deficit.
(f) Unless agreed to in writing by all the Partners, the
Limited Partners shall have no right to demand and receive property other
than cash upon liquidation and the liquidating trustee, in any event, shall
have the power to sell Partnership assets for cash in order to provide for
payment of liabilities. All salable assets of the Partnership may be sold in
a commercially reasonable manner in connection with any liquidation at public
or private sale, at such price and upon such terms as the liquidating
trustee, in its, his or her sole discretion, may deem advisable. Any Partner
and any partnership, corporation or other firm in which any Partner is in any
way interested may purchase assets at such sale.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
11.1 REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE LIMITED PARTNERS.
Each Limited Partner, severally but not jointly, represents, warrants, confirms
and agrees with the other Partners as follows:
(a) Such Limited Partner has full right, power and authority to
execute and deliver this Agreement and to perform each of such Limited Partner's
obligations hereunder.
(b) This Agreement has been duly executed and delivered by or on
behalf of such Limited Partner and constitutes the legal, valid and binding
obligation of such Limited Partner in accordance with its terms.
(c) Such Limited Partner is not subject to any restriction or
agreement which prohibits or would be violated by the execution and delivery of
this Agreement or by the consummation of the transactions contemplated herein or
pursuant to which the consent of any third person, firm or corporation is
required in order to give effect to the transactions contemplated herein.
<PAGE>
(d) Such Limited Partner (i) has such knowledge of business and
financial affairs as is necessary to enable it to understand the nature of and
the risks attendant to the investment contemplated herein and to understand the
particular financial, legal and tax implications of the business to be conducted
by the Partnership; and (ii) has had access to any and all information
concerning the Partnership which the Limited Partner and the Limited Partner's
legal, tax and other advisors requested or considered necessary to make a proper
evaluation of such an investment and has received such representations and
warranties with respect thereto as deemed by such Limited Partner as necessary
and appropriate in connection with such evaluation.
(e) Such Limited Partner understands that the Limited
Partnership Interest being acquired has not been registered under the Securities
Act, on the grounds that the investment in the Partnership is exempt from
registration thereunder. Such Limited Partner further understands that the
Limited Partnership Interest being acquired by it has not been registered under
the securities laws of any other jurisdiction on the grounds that the investment
in the Partnership is likewise exempt from registration. Such Limited Partner
represents that its Limited Partnership Interest is being acquired for
investment for such Limited Partner's own account, with no present intention of
reselling or otherwise disposing of any portion of such investment and
understands that the reliance of the Partners and the Partnership upon such
exemptions is predicated upon the lack of such intention. In the event sale is
permitted under this Agreement, such Limited Partner in no event will sell,
transfer or otherwise dispose of its Limited Partnership Interest or any portion
thereof, unless and until such Limited Partner delivers to the Partnership
advance notice of the intended sale, transfer or other disposition and an
opinion of counsel reasonably satisfactory to the General Partner and to counsel
for the Partnership that registration is not required for such sale, transfer or
other disposition under, and that any such sale, transfer or other disposition
will not violate the Securities Act, or applicable state securities laws or any
rule or regulation promulgated thereunder.
(f) Such Limited Partner further acknowledges the Limited
Partner's understanding that no trading market for Limited Partnership Interests
exists.
11.2 REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE GENERAL PARTNER.
The General Partner represents and warrants to and confirms and agrees with the
other Partners that: (i) the General Partner has full right, power and
authority to execute and deliver this Agreement and to perform each of its
obligations hereunder; (ii) the General Partner has taken all corporate action
to duly execute and deliver this Agreement; (iii) this Agreement has been duly
executed and delivered and is a duly and validly binding obligation of the
General Partner in accordance with its terms; (iv) the General Partner is not
subject to any restriction or agreement which prohibits or would be violated by
the execution and delivery of this Agreement or the consummation of the
transactions contemplated herein or pursuant to which the consent of any third
person, firm or corporation is required in order to give effect to the
transactions contemplated herein; and (v) the General Partner will not take any
action that might cause the Partnership to lose its status as a partnership for
Federal income tax purposes.
ARTICLE XII
GENERAL
12.1 EXECUTIVE SERVICE FEE. In consideration of the management services
to be provided by the General Partner for and on behalf of the Partnership, the
Partnership shall pay to the General Partner an annual fee in an amount equal to
1.25% of the "Gross Sales" (as herein defined) of the Restaurant in respect of
each Fiscal Year of the Partnership. Such annual fee will be payable within
thirty (30) days following the determination thereof. No other fees shall be
paid to the General Partner. General Partner is entitled to be reimbursed for
all reasonable out-of-pocket expenses incurred on behalf of the Partnership. As
used herein, "Gross Sales" means the entire amount of the actual sales price of
all sales of food, beverages and merchandise conducted in or from the
Restaurant, and sales by any concessionaire or licensee in the Restaurant.
"Gross Sales" shall not include, however, any sums collected and paid out for
any sales, excise or gross receipts tax imposed upon the sale of any
<PAGE>
food or beverages by any duly constituted governmental authority nor shall it
include the exchange of food or beverages between MBI facilities, if any,
where such exchange of food or beverages is made for the convenient operation
of MBI's business and not for the purpose of consummating elsewhere a sale
which has theretofore been made at, in or from the Restaurant, or for the
purpose of depriving the Partnership of the benefit of a sale which otherwise
would be made at, in or from the Restaurant, nor the amount of returns to
shippers or manufacturers, nor the amount of any complimentary food,
beverages or merchandise given out at the Restaurant for promotional or other
purposes, nor the amount of any cash or credit refund made upon any sale
where the merchandise sold, or some part thereof, is thereafter returned by
the purchaser and accepted by the Partnership, nor receipts from public
telephones, stamp machines, public toilet locks or vending machines, nor
sales of furniture, equipment, property or bulk sales not in the ordinary
course of business, nor sales to employees, nor any credit card charges
payable by the Partnership.
12.2 NOTICES. All communications, notices and consents provided for
herein shall be addressed to the party at the address shown on the signature
page, shall be in writing and be given in person or by means of personal
delivery, telex, telecopy or other wire transmission (with request for assurance
of receipt in a manner typical with respect to communications of that type) or
by mail or express mail or courier, and shall become effective (i) on delivery
if given in person, (ii) on the date of transmission if sent by telex, telecopy
or other wire transmission, (iii)(a) four business days after being deposited in
the mails (addressed to the address set forth following the person's or Entity's
name on the signature page hereto), with proper postage for first class
registered or certified mail, prepaid, or (b) on the next business day in the
event of express mail or courier.
Partners may change their addresses for the purpose of this Section 12.2 by
written notice to the Partnership and all Partners.
12.3 FURTHER ASSURANCES. Each of the parties to this Agreement agrees
to execute, acknowledge, deliver, file, record and publish such further
certificates, instruments, agreements and other documents, and to take all such
further action as may be required by law or deemed by the General Partner to be
necessary in furtherance of the Partnership's purposes and the objectives and
intentions underlying this Agreement and not inconsistent with the terms of this
Agreement.
12.4 ENTIRE AGREEMENT. This instrument incorporates the entire
agreement among the parties hereto, regardless of anything to the contrary
contained in any certificate of limited partnership or other instrument or
notice purporting to summarize the terms of this Agreement, whether or not the
same shall be recorded or published.
12.5 AMENDMENTS.
(a) Except as otherwise provided in this Section 12.5, this
Agreement and any certificate of limited partnership may not be modified or
amended without first obtaining the written Consent of the Limited Partners and
the written consent of the General Partner. When any modification or amendment
of this Agreement becomes effective, all of the Partners will be bound by the
terms and conditions of this Agreement as so amended; PROVIDED, HOWEVER, that no
such amendment or modification shall affect adversely the rights or interest of
any Limited Partner without the specific written consent of such Limited
Partner.
(b) In addition to any amendment otherwise authorized herein,
the General Partner may amend this Partnership Agreement from time to time
without the consent of any of the Limited Partners:
(i) to reflect the addition or substitution of Limited
Partners or the reduction of capital accounts upon the return of capital to
the Partners; or
<PAGE>
(ii) to make all filings as may be necessary or proper to provide
that this Agreement shall constitute, for all purposes, an agreement of
limited partnership under the terms of the laws of the State of Missouri as
in effect from time to time.
12.6 GENDER AND NUMBER. Unless the context otherwise requires, when
used in the Agreement, the singular includes the plural and vice versa, and the
masculine includes the feminine and neuter and vice versa. A person is deemed
to include an individual or any other Entity.
12.7 BENEFIT. This Agreement is binding upon and inures to the benefit
of the parties to this Agreement, their heirs, legal representatives, successors
and assigns.
12.8 CAPTIONS. Captions are inserted for convenience only and shall not
be given any legal effect.
12.9 EXECUTION. This Agreement may be executed in any number of
counterparts, and each such counterpart will, for all purposes, be deemed an
original instrument, but all such counterparts together will constitute but one
and the same agreement.
12.10 NO THIRD PARTY BENEFICIARIES. This Agreement is solely for the
benefit of the parties hereto and their respective Affiliates and no provision
of this Agreement shall be deemed to confer upon third parties any remedy,
claim, liability, reimbursement, claim of action or other right in excess of
those existing without reference to this Agreement.
12.11 GOVERNING LAW AND SEVERABILITY. This Agreement shall be governed
by the laws of the State of Missouri. If any provision hereof is determined to
be invalid or unenforceable, it shall be modified or deleted, if necessary, from
this Agreement in order to prevent this Agreement as a whole from being rendered
invalid or unenforceable, and this Agreement shall be interpreted to give effect
to the intention of the Partners ascertained from this Agreement as a whole,
even if that requires taking the invalid or unenforceable provision into
consideration in ascertaining such intention (but only for that purpose).
12.12 CHOICE OF FORUM. All suits, actions or proceedings arising out of
or relating to this Partnership Agreement shall be brought either (i) in a state
court in Greene County, Missouri or in the United States District Court for the
Western District of Missouri, or (ii) in a state court in Otsego County,
Michigan or in the United States District Court for the Eastern District of
Michigan, which courts shall be the exclusive forums for all such suits, actions
or proceedings. Each of the Partners waives any objection which any of them now
or hereafter have to the laying of venue in any such court of any such suit,
action or proceeding.
12.13 CONSENT TO JURISDICTION. Each of the Partners hereby irrevocably
consents to the jurisdiction of any court set forth in Section 12.12 above.
12.14 ATTORNEY FEES AND EXPENSES. In the event of litigation between the
parties concerning breach or enforcement of this Partnership Agreement, the
parties agree that the prevailing party shall be entitled to recover from the
non-prevailing party all of its court costs and expenses, including recovery of
all reasonable attorney fees incurred.
ARTICLE XIII
OPTION FOR MBI SHARES
13.1 OPTION. As further consideration for the execution by BPOW of this
Agreement, MBI hereby irrevocably grants to BPOW the right and option to
purchase up to fifty thousand (50,000) of the shares of One
<PAGE>
Cent ($.01) par value common stock of MBI (the "Stock"), exercisable by
written notice from BPOW to MBI and tender of the purchase price. This
option may be exercised at any time within three (3) years following the
opening of the Restaurant on the Property. The purchase price for each such
share of Stock shall be equal to the closing trade price on the trading day
immediately preceding the date of the execution of this Agreement. Upon
request of BPOW, the Stock shall be registered at the expense of MBI under
all applicable state and federal securities laws. The Option Agreement shall
be in customary form, including customary anti-dilution provisions.
ARTICLE XIV
COMPETITION
14.1 BY PARTNERSHIP, MBI AND GENERAL PARTNER. For a period commencing
with the date of this Agreement until two (2) years following the earlier of (i)
MBI's and General Partner's withdrawal from the Partnership, or (ii) termination
of this Partnership, MBI and the General Partner ("Covenantors") agree that
they will not directly or indirectly, either as principal, agent, employer,
partner or in any capacity:
(a) operate a restaurant in any way similar to the Restaurant
within fifty (50) miles of any retail store now or hereafter operated by BPOW or
its Affiliates;
(b) enter into any business arrangement for construction or
operation of a restaurant in any way similar to the Restaurant with any company
in the United States which competes with BPOW or its present Affiliates (a
"Competitor") in their principal businesses including fishing, hunting, outdoor,
marine and camping products and services;
(c) solicit any employees or officers of Bass Pro to work for
MBI until more than twelve (12) months after termination of employment with Bass
Pro; or
(d) operate a restaurant within one (1) miles of the location of
a store operated by a Competitor.
By execution of this Limited Partnership Agreement, MBI agrees to cause its
officers, directors or employees to abide by the promises of MBI made in this
Article XIV.
Notwithstanding the foregoing, MBI may, without violating this Section
14.1, operate within the entire State of Michigan and within a fifty (50) mile
radius of its proposed restaurant location in Atlanta, Georgia. BPOW may, at
its option, release MBI from this Article XIV.
14.2 OTHER TERMS. Covenantors agree and recognize that BPOW and its
Affiliates will suffer irreparable harm if the Covenantors should violate the
agreements set forth herein and further agree that it would be difficult, if not
impossible, to compute the damage to BPOW or its Affiliates as a result of such
breaches and that, therefore, BPOW and its Affiliates are without adequate legal
remedy in the event of such breach and that BPOW or its Affiliates would be
entitled to injunctive relief against any existing or threatened breach. It is
further agreed and recognized by Covenantors that if any provisions of this
Covenant are held invalid, such provisions can be severed and the balance of the
Covenant shall remain valid and enforceable and that further, should any court
hold the scope of business restricted or the time and geographical limitations
of this Covenant too broad to be enforced, such court shall not disregard this
Covenant but shall instead enforce such provisions as to such scope, time and
geographical area as the court deems just and equitable.
14.3 ENFORCEMENT. It is further agreed and recognized by the
Covenantors that if BPOW or its Affiliates are forced to utilize courts for the
enforcement of this Covenant, that it shall be entitled to receive, in
<PAGE>
addition to all other relief sought, its reasonable attorney fees and court
costs associated with the successful enforcement thereof.
<PAGE>
IN WITNESS WHEREOF, this Limited Partnership Agreement has been duly sworn
to and executed as of the date first above written.
LIMITED PARTNER
BASS PRO OUTDOOR WORLD, L.P.,
a Missouri Limited Partnership
By: BASSGEC MANAGEMENT COMPANY,
Its General Partner
By: /s/ Susie Henry
--------------------------------
Its: Executive Vice President
Address: 2500 East Kearney
Springfield, MO 65898
LIMITED PARTNER
BIG BUCK BREWERY & STEAKHOUSE, INC.
By: /s/ William F. Rolinski
--------------------------------
Its: President and CEO
Address: 550 South Wisconsin St.
Gaylord, Michigan 49735
GENERAL PARTNER
BBBP MANAGEMENT COMPANY
By: /s/ William R. Rolinski
--------------------------------
Its: Sole Incorporator
Address: 550 South Wisconsin St.
Gaylord, Michigan 49735
<PAGE>
EXHIBIT 10.2
SHAREHOLDERS' AGREEMENT
THIS SHAREHOLDERS' AGREEMENT ("Agreement"), is made on this 5th day of
November, 1998, by and among BASS PRO OUTDOOR WORLD, L.P., a Missouri limited
partnership with principal offices located at 2500 East Kearney, Springfield,
Missouri 65898 ("Bass Pro"), BBBP MANAGEMENT COMPANY, a Michigan corporation
located in Gaylord, Michigan ("Corporation") and BIG BUCK BREWERY & STEAKHOUSE,
INC., a Michigan corporation located in Gaylord, Michigan ("Michigan").
RECITALS
A. The entire capital stock of Corporation consists of 60,000 shares of
common stock, having a par value of One Cent ($.01) per share (the "Common
Stock").
B. Bass Pro and Michigan (collectively, the "Shareholders") are the
Shareholders of Corporation owning 200 Shares and 800 Shares respectively of
Common Stock, (collectively, the "Shares"), having purchased each such Share
this date for the per share subscription price of Ten Dollars ($10.00) per
share.
C. The Shares constitute all of the presently issued and outstanding
shares of the Common Stock of Corporation.
D. Corporation was formed for the purpose of establishing Buck & Bass,
L.P., a Missouri limited partnership (the "Partnership"), serving as its sole
general partner and, in such capacity, conducting, managing and operating the
business of the Partnership.
E. Because of such relationship between Corporation and the Partnership
(which is engaged in a highly competitive business), and for other good reasons,
the Shareholders have determined that it is in their respective best interests
and in the best interest of the Partnership and Corporation that the Common
Stock of Corporation be closely held and not generally distributed, and that
their agreement as to the relation between the parties hereto as the
Shareholders of Corporation, including, without limitation, the governance of
Corporation, be reflected in writing.
F. In order to achieve the foregoing desires of the Shareholders and to
express the Shareholders' intentions regarding their relationship as
shareholders of Corporation, the parties have entered into this Agreement.
TERMS OF THE AGREEMENT
ARTICLE I
DEFINITIONS
In addition to the terms defined elsewhere in this Agreement, for purposes
of this Agreement, the following terms shall have the respective meanings
ascribed to them in this ARTICLE I. Terms not otherwise defined herein within
quotation marks and with the first letter of each word thereof (except for
prepositions and articles) capitalized shall have the same meaning as ascribed
to them in the Partnership Agreement.
1.1 "ARTICLES" - The Articles of Incorporation of Corporation, as from
time to time amended or restated.
<PAGE>
1.2 "AFFILIATE" - Any entity directly or indirectly controlled by,
controlling or under direct or indirect common control with such entity or any
person related by blood or marriage to any owner of the Shares. Control, for
purposes of this Section 1.2, means the ability to direct the actions of such
entity or person through the exercise of majority voting power or operating
control over day-to-day decisions of such entity.
1.3 "BOARD" - The Board of Directors of Corporation.
1.4 "BOOK VALUE" - As to Corporation, and at any specific time, the
shareholders' equity in Corporation as shown on the balance sheet of Corporation
for its then most recently completed fiscal quarter, prepared in accordance with
"GAAP," consistently applied.
1.5 "DIRECTOR" - A person duly elected or appointed to the Board.
1.6 "PARTNERSHIP AGREEMENT" - The Limited Partnership Agreement of Buck
& Bass, L.P. of even date herewith by and among Corporation, as the General
Partner thereof, and Bass Pro and Michigan as limited partners.
1.7 "TRANSFER" - The voluntary or involuntary transfer to any entity or
person by any Shareholder of any Shares or interest therein in any manner
whatsoever (including, but not by way of limitation, any assignment, sale,
pledge, hypothecation, disposal, gift, transfer by any legal process, including
those resulting from a merger, consolidation or statutory share exchange or from
an Insolvency Event, or any other transfer).
ARTICLE II
ELECTION OF DIRECTORS AND BOARD MEETINGS
2.1 The Board shall initially consist of three (3) Directors, two (2)
of whom shall be designated by Michigan and one (1) of whom shall be designated
by Bass Pro. In the event of death, resignation or other occurrence prohibiting
the person from continuing to serve, if the member was initially designated by
Bass Pro, Bass Pro shall have the right to designate the replacement, otherwise,
Michigan shall have such right to designate the replacement.
2.2 The Board shall hold regular meetings on a semi-annual basis, and
the dates upon which such regular Board meetings are to be held during each
calendar year shall be established in advance to permit such regular meetings to
be held within thirty (30) days following the distribution by the Partnership of
the semi-annual financial statements of the Partnership.
2.3 To the extent requested by a Director, the Corporation shall provide
each Director with copies of such periodic financial and operating information
and reports of or concerning the Corporation and the Partnership prepared for
the Chief Executive Officer of the Corporation and the Partnership. Such
information and reports shall be provided to the Directors promptly upon the
completion thereof.
ARTICLE III
UNANIMITY REQUIREMENTS
3.1 The Shareholders hereby acknowledge their understanding and
agreement that in addition to their agreement with respect to the election of
the members of the Board, the Articles provide that any and all other actions of
the Corporation which require the approval of or authorization by the
shareholders of the Corporation shall require the unanimous vote or consent of
all of the Shareholders of the Corporation. Without limiting the generality of
the foregoing, the Articles provide that any amendment to the Articles, the
causing of insolvency to
<PAGE>
occur by, or the liquidation or dissolution of, Corporation shall require the
unanimous vote or consent of all of the Shareholders of Corporation.
3.2 The Shareholders also acknowledge their understanding and agreement
to the provisions of the Articles requiring that certain acts by the
Corporation, as the General Partner of the Partnership, require the unanimous
vote or consent of all of the Directors. Without limiting the generality of the
foregoing, the Articles prohibit the Corporation, as the General Partner of the
Partnership, to authorize or permit the Partnership to engage in any of the
following activities without the unanimous affirmative vote or written consent
of all of the Shareholders:
(a) to incur debt on behalf of the Corporation or the Partnership
except (i) ordinary trade accounts of the Partnership payable within thirty (30)
days and (ii) up to One Million Five Hundred Thousand Dollars ($1,500,000.00)
for furniture, fixtures and equipment for the business of the Partnership as
provided in the limited partnership agreement concerning the Partnership.
(b) to mortgage, pledge, hypothecate or grant any security
interest or create any lien in any property of the Partnership.
(c) to sell a material portion of the Partnership's property.
(d) to dissolve or liquidate the Partnership.
3.3 In addition to the unanimity requirements set forth in Section 3.1
and Section 3.2, so long as such unanimity requirements are in effect, the
Shareholders hereby agree that the Corporation shall not be permitted to issue
additional shares of Common Stock, or other shares of capital stock or
securities convertible into or exercisable for shares of capital stock, unless
specifically authorized by the unanimous consent of all the Shareholders.
ARTICLE IV
TERM AND TERMINATION
4.1 This Agreement shall commence as of the date first above written and
shall continue in full force and effect until the occurrence of any one of the
following:
(a) the unanimous consent of the Shareholders to terminate; or
(b) the dissolution and completion of the winding up of the
affairs of the Partnership.
4.2 Upon the termination of this Agreement, the Shareholders shall call
a special meeting of the shareholders of Corporation for the purpose of amending
the Articles to eliminate any and all Shareholder and Director unanimity
requirements and in lieu thereof, to provide for Shareholder and Director action
to be taken by a majority vote unless otherwise required by law (the
"Amendment"). The Shareholders shall vote in favor of the Amendment and shall
take (or cause to be taken) all steps necessary to implement and effect the
Amendment. The adoption and approval of the Amendment may be effected by means
of the unanimous written consent of the Shareholders of Corporation in lieu of
such special Shareholder's meeting. The provisions of this Section 4.2 shall
survive the termination of this Agreement to the maximum extent permitted by
law.
4.3 Upon the dissolution of the Partnership and the distribution of its
assets pursuant to winding up of the Partnership's affairs, the Shareholders
shall take all action necessary to dissolve Corporation in accordance with the
General and Business Corporation Law of Missouri.
<PAGE>
ARTICLE V
TRANSFERABILITY OF SHARES
5.1 Except as provided in this Article V, no Shareholder, including any
transferee of Shares, shall voluntarily or involuntarily Transfer or attempt to
Transfer any Shares or any interest therein which are now or hereafter owned by
such Shareholder, without the prior written consent of all of the remaining
Shareholders. Unless otherwise prohibited by law, any Transfer of Shares (other
than a "Permitted Transfer" as defined below) shall be deemed null and void and
of no force and effect.
5.2 Notwithstanding anything to the contrary herein contained, Bass Pro
or Michigan may Transfer all or any portion of its Shares to any other Affiliate
of the transferor (a "Permitted Transfer"). No Transfer shall relieve the
transferor of its obligations under this Agreement.
5.3 If Bass Pro exercises its option to purchase the interests of
Michigan pursuant to Section 8.1 of the Partnership Agreement, then Bass Pro
shall have the absolute, unconditional right to purchase all of the shares owned
by Michigan (and all Affiliates of Michigan) for a fair and reasonable value
which the parties have agreed to under Article VIII of the Partnership Agreement
(e.g. 40% of the "Book Value" of the Corporation represented by such Shares),
which value was determined in consideration of "Special Circumstances"
identified in Section 8.1 of the Partnership Agreement. Bass Pro's exercise of
its option under this Section 5.3 shall be in writing and given to Corporation
within ten (10) days following Bass Pro's exercise of its option under Section
8.1 of the Partnership Agreement.
ARTICLE VI
MISCELLANEOUS
6.1 Nothing contained herein shall be deemed to imply or require that
any person serving as a Director, whether designated by Michigan or by Bass Pro,
discharge his or her duties as a Director in any manner other than in accordance
with his or her considered judgment at such time with respect to the best
interest of the Company and all of its Shareholders.
6.2 The provisions of this Agreement are severable, so that the
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or unenforceability of any other term or provision of this
Agreement, which shall remain in full force and effect.
6.3 In addition to any and all other remedies that may be available at
law or in the event of any breach of this Agreement, each party shall be
entitled to specific performance of the agreements and obligations of the other
parties hereunder and to such other injunctive or other equitable relief as may
be granted by a court of competent jurisdiction, it being acknowledged by the
parties hereto that irreparable injury will result to the non-breaching party in
the event of a breach of this Agreement by a Shareholder, and that the remedies
at law arising from such a breach are inadequate.
6.4 This Agreement shall be governed by, and construed and enforced in
accordance with, the internal laws of the State of Missouri.
6.5 Any and all notices permitted or required to be made under this
Agreement shall be in writing, signed by the party giving such notice and shall
be deemed given if delivered personally or sent by telecopy transmission,
recognized courier service, or sent by registered or certified mail, to the
Shareholders at their respective addresses shown in the Partnership Agreement.
Any party to this Agreement may change its address
<PAGE>
for delivery of any notices permitted or required to be made under this
Agreement by giving notice to that effect in accordance with the provisions
of this Section 6.5.
6.6 The Shareholders acknowledge their understanding and agreement that
each certificate evidencing Shares shall contain appropriate legends, including
the following:
"THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY ARE SUBJECT TO THE
TERMS OF THAT CERTAIN SHAREHOLDERS' AGREEMENT DATED NOVEMBER 5, 1998 (A
COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE CORPORATION) WHICH
CONTAINS CERTAIN LIMITATIONS, RESTRICTIONS AND OBLIGATIONS WITH RESPECT TO
SUCH SHARES AND THE HOLDER THEREOF, INCLUDING, WITHOUT LIMITATION,
RESTRICTIONS UPON THE SALE OR TRANSFER OF THE SHARES REPRESENTED HEREBY."
6.7 All suits, actions or proceedings arising out of or relating to this
Agreement shall be brought in either (i) a State Court in Greene County,
Missouri, or in the United States District Court for the Western District of
Missouri, or (ii) a state court in Otsego County, Michigan or in the United
States District Court for the Eastern District of Michigan, which courts shall
be the exclusive forums for all such suits, actions or proceedings. Each party
hereto hereby waives, and each subsequent Shareholder shall thereby waive, any
objections which any of them may now or hereafter have to the laying of venue in
any such court of any such suit, action or proceeding. Each party hereto hereby
irrevocably submits, and each subsequent Shareholder thereby irrevocably
submits, to the jurisdiction of the courts set forth above in any such suit,
action or proceeding.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of the day and year first above written.
BASS PRO OUTDOOR WORLD, L.P.,
a Missouri Limited Partnership
By: BASSGEC MANAGEMENT COMPANY,
Its General Partner
By: /s/ Susie Henry
-----------------------------------
Title: Executive Vice President
--------------------------------
BBBP MANAGEMENT COMPANY
By: /s/ William F. Rolinski
-----------------------------------
Title: Sole Incorporator
--------------------------------
BIG BUCK BREWERY & STEAKHOUSE, INC.
By: /s/ William F. Rolinski
-----------------------------------
Title: President and CEO
--------------------------------
<PAGE>
EXHIBIT 10.3
COMMERCIAL SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (the "Sublease") is made and effective as of the
5th day of November, 1998, by and between BASS PRO OUTDOOR WORLD, L.P., a
Missouri limited partnership ("Sublessor") and BUCK & BASS, L.P., a Missouri
limited partnership ("Sublessee"),
WITNESSETH:
The Sublessor hereby leases to the Sublessee and the Sublessee does hereby
take as Sublessee from the Sublessor a certain retail area for use as a bar and
restaurant (the "Restaurant") located on the ground level adjacent to the
Sublessor's Outdoor World location in Grapevine, Texas (the "Store"), which area
is described on Exhibit A attached hereto.
TOGETHER WITH rights of access to the property as herein described and any
easements benefiting the property and benefits in common with other users of
parking spaces (which retail area and benefits are called the "Subleased
Premises").
SUBJECT, HOWEVER, to building restrictions and zoning regulations affecting
the Subleased Premises, all covenants, restrictions, easements, rights of way
and agreements of record, rights to use all dedicated or existing roads and
parking areas in common with others, the Mills Lease and all easements or rights
of use created in favor of any public utility.
AND FURTHER SUBJECT to the terms and conditions of that certain Retail
Lease by and between Grapevine Mills Residual Limited Partnership, as Landlord,
and Bass Pro Outdoor World, L.P., as Tenant, dated September 22, 1997 (the
"Mills Lease").
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties agree as follows:
1. TERM. The term of this Sublease (the "Term") shall correspond with
the term of the Mills Lease, provided, however, that in no event shall the Term
of this Sublease extend beyond the term of the Mills Lease. The Term may be
shortened as provided in this Sublease, including as provided in Sections 15 and
16 hereof.
2. RENT. The Sublessee shall pay Sublessor a rent in an amount equal to
Five and one-half per cent (5-1/2%) of "Gross Sales" (as herein defined) made by
Sublessee from the Subleased Premises during each year of the term of this
Sublease less than Eleven Million Dollars ($11,000,000.00), and Six and one-half
per cent (6-1/2%) of Gross Sales made during each year of the term of this
Sublease in excess of Eleven Million Dollars ($11,000,000.00). In no event
shall the annual rent be less than Three Hundred Eighty-five Thousand Dollars
($385,000.00). The obligation to pay rent commences on the date that the Store
opens for business. Rent shall abate during any time after Sublessor (or its
successors or assigns) ceases to be open for business for more than five (5)
consecutive days other than due to FORCE MAJEURE.
(a) GROSS SALES DEFINED. As used herein, the term "Gross Sales"
means the entire amount of the actual sales price of all sales of food,
beverages and merchandise conducted in or from the Restaurant, and sales by
any concessionaire or licensee in the Restaurant. "Gross Sales" shall not
include, however, any sums collected and paid out for any sales, excise or
gross receipts tax imposed upon the sale of any
<PAGE>
food or beverages by any duly constituted governmental authority nor
shall it include the exchange of food or beverages between MBI
facilities, if any, where such exchange of food or beverages is made for
the convenient operation of MBI's business and not for the purpose of
consummating elsewhere a sale which has theretofore been made at, in or
from the Restaurant, or for the purpose of depriving the Partnership of
the benefit of a sale which otherwise would be made at, in or from the
Restaurant, nor the amount of returns to shippers or manufacturers, nor
the amount of any complimentary food, beverages or merchandise given out
at the Restaurant for promotional or other purposes, nor the amount of
any cash or credit refund made upon any sale where the merchandise sold,
or some part thereof, is thereafter returned by the purchaser and
accepted by the Partnership, nor receipts from public telephones, stamp
machines, public toilet locks or vending machines, nor sales of
furniture, equipment, property or bulk sales not in the ordinary course
of business, nor sales to employees, nor any credit card charges payable
by the Partnership.
(b) RENT DUE/ACCOUNTING. On or before the 10th day of each month,
Sublessee shall furnish to Sublessor a complete accounting of all Gross
Sales during the preceding calendar month along with sales tax reports and
such other evidence as Sublessor may request to verify Gross Sales and the
accuracy of the rent paid (the "Gross Sales Reports"). At any time upon
notice by Sublessor, Sublessee shall make available all books and records
pertaining to sales on or from the Subleased Premises for inspection and
audit by Sublessor or its representatives. At such time as the monthly
reports are made (and no later than the 10th day of each month), Sublessee
shall pay Sublessor the rent due Sublessor for the preceding month (i.e.,
the first month's rent and Gross Sales Report shall be due on or before the
10th day of the month immediately following the month in which the term
hereof begins). Sublessee shall be responsible for collecting sales tax
revenues generated with respect to Sublessee's business contemplated herein
and for reporting the same to the State of Texas. Sublessor and its
representatives shall have full and free access to all business records of
Sublessee (including the right to copy and take away any such records) at
all reasonable business hours for purposes of auditing and substantiating
the amount of Gross Sales. Sublessee shall keep, preserve and maintain all
records of Gross Sales for a period of forty-eight (48) months following
the month in which the Gross Sales were made. Each year within sixty (60)
days of the end of the fiscal year of Sublessee, Sublessee shall furnish,
at Sublessee's expense, a report by a public accounting firm acceptable to
Sublessor certifying to Sublessor the amount of Gross Sales during the
preceding fiscal year.
(c) In the event Sublessee understates the Gross Sales in any Gross
Sales Report by more than Two per cent (2%), then the Sublessor shall be
entitled to recover from Sublessee as liquidated damages an amount equal to
three (3) times the understatement. Sublessor may also recover (i) all
costs of audit related to any such understatement, and (ii) all reasonable
attorney fees and court costs incurred by Sublessor in investigating and
legally pursuing such understatement, including fees of expert witnesses.
3. PREPARATION OF SUBLEASED PREMISES.
(a) Sublessor shall deliver possession of the Subleased Premises to
Sublessee upon the full execution and delivery of this Sublease. Sublessee
shall, at its sole cost and expense, construct or cause to be constructed
and fully equip the Restaurant and any and all other improvements desired
by Sublessee and install all furniture, fixtures and equipment upon the
Subleased Premises in a first-class workmanlike manner and strictly in
accordance with plans and specifications prepared by or on behalf of
Sublessee and approved by Sublessor (whose approval shall not be
unreasonably withheld). Sublessee shall obtain all permits, certificates
and approvals necessary with respect to such work, and shall comply with
all legal requirements relating thereto.
<PAGE>
(b) Sublessee shall not open the Restaurant for business until all
construction has been completed and a certificate of occupancy and all
other necessary permits have been issued. Sublessee shall open the
Restaurant for full business no later than May 1, 1999. Upon the issuance
of such certificates and permits, copies thereof shall be immediately
delivered to Sublessor.
(c) The interest of Sublessor in the Subleased Premises shall not be
subject to liens for improvements made by or on behalf of Sublessee.
Sublessee shall deliver to Sublessor partial and final lien waivers from
all contractors and subcontractors who supply labor and/or materials to or
for Sublessee in connection with the completion of the Restaurant. Nothing
contained in this Sublease shall be construed as a consent on the part of
Sublessor to subject Sublessor's estate in the Subleased Premises to any
lien or liability. In the event that any mechanic's, materialman's or
other lien or any notice of claim, including without limitation, a stop
notice (a "Lien") is filed against the Subleased Premises as a result of
any work, labor, services or materials performed or furnished, or alleged
to have been performed or furnished to or for the benefit of Sublessee or
to anyone holding the Subleased Premises by, through or under Sublessee,
Sublessee, at its expense, shall cause the Lien to be discharged of record
or fully bonded to the satisfaction of Sublessor within thirty (30) days
after notice of the filing thereof. If Sublessor fails to discharge or
bond against said Lien within thirty (30) days after notice of the filing
thereof, Sublessor may, in addition to any other rights or remedies
Sublessor may have, but without obligation to do so, bond against or pay
the Lien without inquiring into the validity or merits of such Lien, and
all sums so advanced, including reasonable attorneys' fees incurred by
Sublessor in defending against such lien, procuring the bond or in the
discharge of such lien, shall be paid by Sublessee on demand as additional
rent. It shall be Sublessee's continuing obligation to keep and maintain
the Subleased Premises free from any and all liens arising out of any work
performed, materials furnished or obligations incurred by or for the
benefit of Sublessee in connection with the Subleased Premises. In
addition, Sublessee shall replace any bonds posted by Sublessor pursuant
hereto with a suitable bond of equivalent amount within twenty (20) days
after Sublessor's demand therefor.
(d) In connection with Sublessee's construction of the Restaurant,
and thereafter in the event that Sublessee makes any alterations, repairs,
additions or improvements in or to the Subleased Premises, Sublessee agrees
to carry "Builder's All Risk" insurance in an amount reasonably approved by
Sublessor covering the performance of the same and such other insurance as
Sublessor may reasonably require.
4. EXPENSES. The Sublessee shall promptly pay, before any delinquency
can occur, any and all taxes, assessments and public charges levied, assessed or
imposed upon Sublessee's business or upon Sublessee's furniture, fixtures or
equipment located on the Subleased Premises, insurance, salaries, maintenance,
repairs and all other expenses connected with the use, operation and maintenance
of the Subleased Premises as provided herein. Sublessee shall (i) pay the
allocable portion of the real estate taxes and expenses relating to all common
areas respecting the Subleased Premises (including, without limitation,
maintenance, security, etc.), and (ii) provide and pay for all utilities to the
Subleased Premises. As used herein, "allocable" means the apportionment of such
taxes and expenses between the Restaurant and the Store on the basis of relative
ground floor square footage between the Store and the Restaurant. It is
intended that the Sublessor shall have no expense of any kind whatsoever during
the term of this Sublease and that the Sublessee shall be responsible for all
other expenses. Without limiting the foregoing, the Sublessee shall be
responsible for and shall promptly pay and hold the Sublessor harmless from the
following items of expense:
(a) REPAIRS AND MAINTENANCE. Sublessee shall, at its own cost and
expense, keep and maintain in good and as though new condition all aspects
of the Subleased Premises, including, without limitation, the interior
walls, floors, doors and windows, provided, however, Sublessee is not
required to refurbish to new condition items suffering ordinary wear and
tear until such time as the condition materially detracts from the
appearance or function of the Restaurant. Sublessee shall also replace any
broken glass in doors
<PAGE>
and windows of the improvements of the area of space leased hereunder.
Sublessee shall also keep the area of space leased hereunder clean and
free from refuse.
(b) INSURANCE/INDEMNITY. At all times during the term of this
Sublease, Sublessee shall, at its sole cost and expense, keep all of
Sublessee's inventory of product, merchandise and contents and all of
Sublessee's furniture, equipment and fixtures insured against loss or
damage by fire and the hazards covered by broad-form extended coverage
clauses as well as coverage against loss of the merchandise on the
Subleased Premises due to theft or embezzlement in an amount at least equal
to the replacement value thereof. The Sublessor shall have no interest in
that portion of the insurance proceeds attributable to coverage for the
merchandise, contents or furniture owned by the Sublessee. Sublessee shall
provide, at its sole expense, a fire and extended coverage insurance policy
on the building and improvements of the Subleased Premises for the full
replacement value of all damaged property naming Sublessee as the insured
party. All insurance proceeds received under or by virtue of such policy
shall be the property of Sublessor and Sublessee shall have no interest
therein. At all times during the term of this Sublease, Sublessee shall
provide, at Sublessee's cost and expense, policies of commercial general
liability insurance insuring the Sublessor and the Sublessee against claims
for injury and wrongful death occurring upon the Subleased Premises, issued
by an insurance company acceptable to Sublessor, with minimum limits of
Three Million Dollars ($3,000,000.00) per occurrence (including contractual
and completed operations liability), and property damage insurance of a
minimum of Five Hundred Thousand Dollars ($500,000.00) showing the
Sublessor as additional insured. Sublessee will deposit copies of such
liability insurance policies with the Sublessor or furnish the Sublessor
with certificates of liability insurance prior to the occupancy of the
Subleased Premises. Sublessee shall deliver to Sublessor certificates
evidencing such insurance and each such policy shall contain a provision
providing that such policy may not be cancelled prior to the expiration
date thereof except upon not less than thirty (30) days' prior written
notice to the Sublessor. If at any time Sublessee shall fail to carry such
insurance, the Sublessor may obtain such insurance and Sublessee shall
promptly reimburse Sublessor for the cost thereof. Sublessee shall
indemnify and save Sublessor harmless from and against all liabilities,
obligations, losses, damages and claims, actions, suits and proceedings,
charges and expenses, including reasonable attorneys' fees, which may be
imposed upon or incurred by or asserted against the Sublessor in respect of
any use or condition of the Subleased Premises or attributed to
Sublessee's use, the sale of Sublessee's products or manner of the use of
the Subleased Premises, or Sublessee's operations. At all times, Sublessee
shall maintain in full force and effect full coverage worker's compensation
insurance in accordance with the laws of the state where the Subleased
Premises are located with a carrier acceptable to Sublessor and providing
such coverage to Sublessee and all of its employees, agents, servants and
contractors.
(c) OTHER. Sublessee shall pay and discharge all bills for heat, air
conditioning, light, water, sewer, service, telephone and other utility
charges to, or allocable to, the Subleased Premises. Sublessee shall not
suffer or permit any lien or encumbrance to attach to the Subleased
Premises by reason of any work done or performed or any material or
materials furnished by or to the Sublessee. Sublessee covenants to
indemnify, hold harmless and defend Sublessor from any and all such claims.
Sublessee agrees to pay to Sublessor as additional rent any amount of tax
imposed (whether upon Sublessor upon Sublessee) upon the rent payment under
this Sublease by any state, city, county or other taxing authority.
5. ABSENCE OF DUTY. Sublessee acknowledges and agrees that Sublessor has
no duty to any degree to safeguard or protect any property of Sublessee, and
Sublessee agrees to indemnify and hold Sublessor completely harmless from, and
hereby releases Sublessor from, any liability for any loss, destruction or
damage with respect thereto.
6. ASSIGNMENT AND SUB-LETTING. The Sublessee shall have no right to
assign or sub-let the Subleased Premises, or any part thereof, without first
having obtained the written consent of the Sublessor,
<PAGE>
which consent will not be unreasonably withheld. Further, Sublessee
shall not assign or otherwise transfer, or mortgage or otherwise
encumber its rights as Sublessee under this Sublease, any furniture,
fixtures and equipment located or used in respect of the Restaurant or
any of the rights or properties of Sublessee in respect to the
Restaurant of the Subleased Premises.
7. USE OF THE PREMISES. The Subleased Premises shall be used and
occupied solely for restaurant services and no other uses and at all times shall
be used by Sublessee in compliance with all applicable laws and regulations
affecting the use of, or operations upon, the Subleased Premises nor will
Sublessee conduct any activity which increases the fire and extended insurance
coverage premium payable by Sublessor. Sublessee will not suffer or permit any
nuisance or any noxious or offensive activity to be conducted or maintained upon
the Subleased Premises. Sublessee further agrees to conduct its business to the
reasonable satisfaction of Sublessor and in a manner at least equal to any
first-class national food service operation as respects quality of food,
beverage, merchandise and customer service.
8. ALTERATIONS/SIGNS/EQUIPMENT. The Sublessee agrees not to make any
material alterations, remodeling or other changes in the structure of the
Subleased Premises and not to bore into or otherwise alter any structural
component of the building, nor make any changes in the electric wiring,
plumbing, heating or air-conditioning without having first obtained the written
consent of the Sublessor. The Sublessee may erect signs advertising its
business only in such style, appearance and location as Sublessor shall consent
to in writing, in advance. Sublessee acknowledges that it is not licensed to
utilize in any form the names, trademarks or logos of Sublessor. At the
termination of the Sublease, any and all fixtures and improvements on the
Subleased Premises shall become the property of the Sublessor at Sublessor's
option, and Sublessee agrees to peacefully and quietly surrender and yield
possession of the Subleased Premises to Sublessor in as good order, state and
condition as the same was at the commencement of this Sublease, ordinary wear
and tear excepted. Notwithstanding the above, any personal property or trade
fixtures installed by the Sublessee shall remain the property of Sublessee and
may be removed by Sublessee upon termination of this Sublease, however,
Sublessee shall repair any damage caused by such installation or removal.
9. CONDUCT/TRAINING. Sublessee agrees that it will cause its employees
to (i) present a neat, clean appearance, (ii) be thoroughly trained in customer
satisfaction and service skills, and (iii) act in a manner consistent with that
ordinarily and reasonably expected in an operation of the quality, size and type
of the Restaurant. Notwithstanding the foregoing, Sublessee acknowledges and
agrees that Sublessee's employees are under Sublessee's control, supervision and
direction and are not employees, agents, servants or contractors of Sublessor.
Sublessee shall be responsible for, and shall indemnify and hold Sublessor
harmless from, any claims by Sublessee's employees to wages, benefits,
withholdings or any other matter.
10. HOURS OF OPERATION. Sublessee agrees to be open for business on the
Subleased Premises at reasonably comparable opening times and dates as that of
Sublessor in the adjacent Outdoor World store, unless otherwise agreed to in
writing by the parties.
11. DESTRUCTION OF THE PREMISES. If the improvements on the Subleased
Premises are destroyed by fire or other casualty during the term of this
Sublease so as to render the Subleased Premises untenantable and the Subleased
Premises are not repairable within a period of ninety (90) days, then Sublessee
shall, within thirty (30) calendar days of the loss, elect to either terminate
the lease or rebuild. If Sublessee elects to rebuild, Sublessee shall utilize
the fire and extended coverage insurance proceeds, if any, to restore and equip
the Restaurant to substantially the same condition on or before the loss. If
the Sublessee elects not to rebuild and to terminate, then this Sublease shall
terminate as of the date of loss and the Sublessor and Sublessee shall have the
right to the fire and extended coverage insurance proceeds as their interests
appear in the Leased Premises, except that Sublessee shall be entitled to all
insurance proceeds on furniture, fixtures, equipment and other personal property
contents belonging to Sublessee. If the improvements on the Subleased Premises
are partially destroyed
<PAGE>
or damaged by fire or other casualty so that the Subleased Premises are
rendered temporarily untenantable but are repairable within ninety (90)
days, then this Lease shall not be terminated or otherwise affected,
rent due hereunder shall not be abated, tolled, interrupted or
diminished and Sublessee shall utilize the fire and extended coverage
proceeds, if any, to rebuild and repair the improvements to
substantially the same condition as before the damage.
12. INSPECTION OF PREMISES BY SUBLESSOR. Sublessor shall have the right
to enter the Subleased Premises at all reasonable times for the purpose of
inspecting the same, or for exhibiting the Subleased Premises for purposes of
appraisal, inspection, sale, mortgage or re-letting or for repair in the event
of loss.
13. CONDEMNATION. If all of the Subleased Premises shall be taken in a
condemnation proceeding, or if a portion thereof shall be taken which materially
interferes with the use and operation of the Sublessee, this Sublease shall
terminate as of the date of such taking, and the Sublessee and the Sublessor
shall have rights to any proceeds of any condemnation award as their respective
interests appear in the leasehold improvements. If less than all of the
Subleased Premises shall be taken in a condemnation proceeding, but such taking
does not materially interfere with the use of the Subleased Premises by the
Sublessee, then this Sublease will continue and the rights under this Sublease
shall not change.
14. COVENANTS OF SUBLESSEE. Sublessee covenants and agrees with Sublessor
as follows:
(a) OPERATING COVENANT. Sublessee shall open the Restaurant for
business on the same date that Sublessor's Outdoor World store is open for
business and agrees to remain open during the Term of this Sublease during
all business days and hours and at all times to (i) maintain on duty a
fully trained service staff, and (ii) provide the high quality food of the
type and quality and customer service as is being provided in Sublessee's
Gaylord, Michigan Big Buck restaurant.
(b) PERFORMANCE COVENANT. The Sublessee covenants and agrees that
the Gross Sales for the first full calendar year immediately following the
opening of the Restaurant and for each calendar year thereafter shall
exceed $7,000,000.
(c) NO LIEN COVENANT. At no time and under no circumstances shall
Sublessee have the right, power or authority to encumber in any manner any
interest in the Subleased Premises, including, without limitation, any
leasehold improvements or any of the furniture, fixtures and equipment used
in or relating to the Restaurant.
(d) CUSTOMER SATISFACTION. No less frequently than each calendar
quarter during the Term, Sublessee shall, at its expense, conduct full and
complete customer surveys of customers of the Subleased Premises (the
"Surveys"). The Surveys shall be in form and content prepared by Sublessee
subject to the input and consent of Sublessor, which consent will not be
unreasonably withheld. The Surveys and tabulated results thereof shall be
furnished to Sublessor no later than thirty (30) days following the first
day each Survey was instituted.
15. DEFAULT. If Sublessee shall be adjudged a bankrupt, or if Sublessee
shall fail to keep, observe, comply with or perform any term, provision or
undertaking on the part of Sublessee required hereunder to be kept, observed,
complied with or performed (including, without limitation, the covenants of
Sublessee contained in Section 14 hereof), Sublessor may, at its option and upon
written notice to Sublessee, declare this Sublease to be immediately terminated
and all unpaid and reasonable calculable future rent over the balance of the
Term to be immediately due and payable to Sublessor. Sublessee is granting to
Sublessor a security interest in Sublessee's interest in the Sublease, the
Subleased Premises and all furniture, fixtures and equipment in the Restaurant
to secure payment of all of Sublessee's obligations to Sublessor under this
Sublease. At execution, Sublessee shall
<PAGE>
execute such financing statements, security agreement or other documents
Sublessee may reasonably require to obtain such security interest and for the
perfection thereof. Default for non-payment of rent shall be deemed to have
occurred if the payment is not made on the date the rental payment is due and
the Sublessee shall have no right to cure said default, it being agreed that
time is of the essence with respect to the payment of rent. In the event of
default (other than for non-payment of rent) which default is not cured
within ten (10) days of default, Sublessor shall be entitled to immediate
possession of the Subleased Premises and all leasehold improvements and all
furniture, fixtures and equipment in the Subleased Premises and all further
rights of Sublessee to retain possession shall cease, and Sublessee shall
promptly remove all of its other property from the Subleased Premises. In
the event of default, Sublessee's interest in this Sublease shall terminate
and Sublessee will be considered a tenant from month to month for purposes of
an action by Sublessor to recover rent and possession and Sublessor shall be
entitled to the benefit of the most expeditious legal remedy provided by law
to evict and expel Sublessee. In the event of any such default as specified
herein, Sublessor shall also be entitled to exercise any and all other rights
and remedies available at law or in equity or otherwise in consequence of any
such default or defaults. If Sublessor is forced to utilize the courts to
enforce this Sublease, Sublessor shall be entitled to recover from Sublessee
reasonable attorney fees and court costs, in addition to the relief sought.
16. RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies provided by
this Sublease are cumulative and the use of any one right or remedy by either
party shall not preclude or waive its right to use any or all other remedies.
Said rights and remedies are given in addition to any other rights the parties
may have by law, statute, ordinance or otherwise.
17. WAIVER OF DEFAULT. No waiver by the parties hereto of any default or
breach of any term, condition or covenant of this Sublease shall be deemed to be
waiver of the same or any other term, condition or covenant contained herein.
18. PRIOR AGREEMENTS SUPERSEDED. This Sublease constitutes the sole and
only agreement of the parties and supersedes any prior understandings or written
or oral agreements between the parties respecting the within subject matter.
19. NOTICES. All notices called for by this Sublease shall be given in
writing by certified mail, postage prepaid, as follows:
To the Sublessor:
Bass Pro Outdoor World, L.P.
Attention: Ms. Toni Miller
2500 East Kearney
Springfield, Missouri 65898
With Copy to:
Joe C. Greene
Greene & Curtis, L.L.P.
1340 East Woodhurst
Springfield, Missouri 65804
<PAGE>
To the Sublessee:
Big Buck Brewery & Steakhouse, Inc.
Attn: William F. Rolinski, Esq.
550 South Wisconsin Street
Gaylord, Michigan 49735
With Copy to:
Brett D. Anderson, Esq.
Briggs and Morgan, P.A.
2400 IDS Center
Minneapolis, Minnesota 55402
20. ENTIRE AGREEMENT. This agreement represents the entire agreement
between the parties and no other agreements, warranties or representations of
any kind are made by either party except as expressly contained herein. This
agreement can only be amended in writing by a document signed by both Sublessor
and Sublessee.
21. SUCCESSORS AND ASSIGNS. This Sublease shall be binding upon and inure
to the benefit of the parties hereto, their respective heirs, successors and
assigns.
22. MEMORANDUM OF SUBLEASE. Either Sublessee or Sublessor may record a
Memorandum of this Sublease, in standard form and content, and each party agrees
to execute and deliver to the other such Memorandum in recordable form upon
request.
23. SECURITY AGREEMENT. The parties acknowledge that Sublessee, as a
condition which has been required by Sublessor, is concurrently executing a
Security Agreement which will secure any and all obligations of Sublessee to
Sublessor, including, without limitation, the due and punctual payment of rents
and the operating covenant.
24. GUARANTY. As a condition required by Sublessor, for and in
consideration of Sublessor's execution of this Sublease and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by Sublessee and by the "Guarantor" (as herein defined), Big Buck
Brewery & Steakhouse, Inc., a Michigan corporation ("Guarantor") unconditionally
guarantees the due and punctual payment of all rents and other sums due
(including interest and penalties) and to be paid by Sublessee pursuant to this
Sublease and the performance by Sublessee of all terms, conditions, covenants
and agreements of the Sublease, and Guarantor agrees to pay all of Sublessor's
costs, expenses and reasonable attorneys' fees incurred in enforcing the
covenants and agreements of Sublessee in the Sublease or incurred by Sublessor
in enforcing this guaranty. Guarantor waives notice of presentment, protest,
notice of protest and any and all demands for performance or any and all notices
of non-performance which might otherwise be a condition precedent to the
liability of Guarantor hereunder, and Guarantor covenants and agrees that
Sublessor may proceed directly against Guarantor, without first proceeding or
making claim or exhausting any remedy against Sublessee or pursuant to any
particular remedy or remedies available to Sublessor. The provisions of this
paragraph 24 shall be binding upon the successors and assigns of the Guarantor
and inure to the benefit of the successors and assigns of the Sublessor.
25. MILLS LEASE. The parties acknowledge and agree that this Sublease is
subject and subordinate to the terms and conditions of the Mills Lease.
26. CONDITION PRECEDENT. Neither Sublessor nor Sublessee shall have any
duty to perform under this Sublease until the conditions of Section 12.1(a) of
the Mills Lease have been fully satisfied or waived in writing. Sublessor and
Sublessee agree to use all reasonable efforts to satisfy such condition
precedent.
<PAGE>
27. WARRANTIES OF SUBLESSOR. The Sublessor warrants and represents to
Sublessee that the Mills Lease furnished to Sublessee and initialed by the
Sublessor is a true copy of the Mills Lease and the same remains in full force
and effect and has not been amended and that Sublessor is in compliance with the
terms and conditions thereof.
28. INDEMNIFICATION BY SUBLESSOR. Sublessor agrees to comply with all of
its obligations under the Mills Lease, including the payment of all rent and
other monetary obligations thereunder, and agrees to indemnify and hold
Sublessee harmless from any loss or damage by reason of Sublessor's default
under the Mills Lease.
IN WITNESS WHEREOF, the parties have hereunto set their hands effective as
of the day and date first above written.
Sublessor: BASS PRO OUTDOOR WORLD, L.P.,
a Missouri Limited Partnership
By: BASSGEC MANAGEMENT COMPANY,
Its: General Partner
By: /s/ Susie Henry
--------------------------------------
Its: Executive Vice President
------------------------------------
Sublessee: BUCK & BASS, L.P., a Missouri
Limited Partnership
By: BBBP MANAGEMENT COMPANY,
Its: General Partner
By: /s/ William S. Rolinski
-------------------------------------
Its: Sole Incorporator
------------------------------------
Guarantor for purposes of
guaranteeing the obligations
of Sublessee as provided
in paragraph 24:
BIG BUCK BREWERY & STEAKHOUSE, INC.
a Michigan corporation
By: /s/ William F. Rolinski
--------------------------------------
Its: President and CEO
-------------------------------------
<PAGE>
EXHIBIT 10.4
NO SALE, OFFER TO SELL OR TRANSFER OF THESE SECURITIES SHALL BE MADE WITHOUT (i)
THE OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH SALE, OFFER, OR
TRANSFER MAY BE MADE WITHOUT REGISTRATION OR QUALIFICATION UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS OR (ii) SUCH REGISTRATION OR
QUALIFICATION.
BIG BUCK BREWERY & STEAKHOUSE, INC.
COMMON STOCK PURCHASE WARRANT
Big Buck Brewery & Steakhouse, Inc., a Michigan corporation (the
"Company"), hereby agrees that, for value received, Bass Pro Outdoor World, L.P.
or its assigns, is entitled, subject to the terms set forth below, to purchase
from the Company at any time or from time to time before 5:00 p.m., Minneapolis,
Minnesota time, on the date which is the third anniversary of the opening of the
Big Buck Brewery & Steakhouse in Grapevine, Texas, Fifty Thousand (50,000)
shares of the Company's Common Stock at an exercise price of Two Dollars and
Sixty-Two and One-Half Cents ($2.625) per share (the "Warrant Shares").
1. EXERCISE OF WARRANT. The purchase rights granted by this Warrant
shall be exercised by the holder surrendering this Warrant with the Warrant
Exercise Form attached hereto duly executed by such holder, to the Company at
its principal office, accompanied by payment, in cash, by cashier's check
payable to the order of the Company or by wire transfer to an account specified
by the Company, of the purchase price payable in respect of the Warrant Shares
being purchased. If less than all of the Warrant Shares purchasable hereunder
are purchased, the Company will, upon such exercise, execute and deliver to the
holder hereof a new Warrant evidencing the number of Warrant Shares not so
purchased. As soon as practicable after the exercise of this Warrant and
payment of the purchase price, the Company will cause to be issued in the name
of and delivered to the holder hereof, or as such holder may direct, a
certificate or certificates representing the Warrant Shares purchased upon such
exercise. The Company may require that such certificate or certificates contain
on the face thereof a legend substantially as follows:
"No sale, offer to sell or transfer of the shares represented by this
certificate shall be made without (i) the opinion of counsel
satisfactory to the Company that such sale, offer, or transfer may be
made without registration or qualification under the Securities Act
and applicable state securities laws or (ii) such registration or
qualification."
2. NEGOTIABILITY AND TRANSFER. This Warrant is issued upon the following
terms, to which each holder hereof consents and agrees:
(a) This Warrant may not be sold, transferred, assigned or
hypothecated without (i) the opinion of counsel satisfactory to the Company
that such sale, offer, or transfer may be made without registration or
qualification under the Securities Act and applicable state securities laws
or (ii) such registration or qualification.
(b) Until this Warrant is duly transferred on the books of the
Company, the Company may treat the registered holder of this Warrant as
absolute owner hereof for all purposes without being affected by any notice
to the contrary.
(c) Each successive holder of this Warrant, or of any portion of the
rights represented hereby, shall be bound by the terms and conditions set
forth herein.
<PAGE>
3. ANTIDILUTION ADJUSTMENTS. If the Company shall at any time hereafter
subdivide or combine its outstanding shares of Common Stock, or declare a
dividend payable in Common Stock, the exercise price in effect immediately prior
to the subdivision, combination, or record date for such dividend payable in
Common Stock shall forthwith be proportionately increased, in the case of
combination, or proportionately decreased, in the case of subdivision or
declaration of a dividend payable in Common Stock, and the number of Warrant
Shares purchasable upon exercise of this Warrant immediately preceding such
event, shall be changed to the number determined by dividing the then current
exercise price by the exercise price as adjusted after such subdivision,
combination, or dividend payable in Common Stock and multiplying the result of
such division against the number of Warrant Shares purchasable upon the exercise
of this Warrant immediately preceding such event, so as to achieve an exercise
price and number of Warrant Shares purchasable after such event proportional to
such exercise price and number of Warrant Shares purchasable immediately
preceding such event. All calculations hereunder shall be made to the nearest
cent or to the nearest one-hundredth of a share, as the case may be. No
fractional Warrant Shares are to be issued upon the exercise of this Warrant,
but the Company shall pay a cash adjustment in respect of any fraction of a
share which would otherwise be issuable in an amount equal to the same fraction
of the market price per share of Common Stock on the day of exercise as
determined in good faith by the Company. In case of any capital reorganization
or any reclassification of the shares of Common Stock of the Company, or in the
case of any consolidation with or merger of the Company into or with another
corporation, or the sale of all or substantially all of its assets to another
corporation, which is effected in such a manner that the holders of Common Stock
shall be entitled to receive stock, securities, or assets with respect to or in
exchange for Common Stock, then, as a part of such reorganization,
reclassification, consolidation, merger, or sale, as the case may be, lawful
provision shall be made so that the holder of the Warrant shall have the right
thereafter to receive, upon the exercise hereof, the kind and amount of shares
of stock or other securities or property which the holder would have been
entitled to receive if, immediately prior to such reorganization,
reclassification, consolidation, merger, or sale, the holder had held the number
of Warrant Shares which were then purchasable upon the exercise of the Warrant.
In any such case, appropriate adjustment (as determined in good faith by the
Board of Directors of the Company) shall be made in the application of the
provisions set forth herein with respect to the rights and interest thereafter
of the holder of the Warrant, to the end that the provisions set forth herein
(including provisions with respect to adjustments of the exercise price) shall
thereafter be applicable, as nearly as reasonably may be, in relation to any
shares of stock or other property thereafter deliverable upon the exercise of
the Warrant.
4. NOTICE OF CORPORATE ACTION. If at any time:
(1) The Company shall pay any dividend upon its Common Stock payable
in stock or make any distribution (other than a cash dividend) to the
holders of its Common Stock;
(2) The Company shall offer for subscription purposes to the holders
of its Common Stock any additional shares of stock of any class or any
other rights;
(c) There shall be any capital reorganization or reclassification of
the capital stock of the Company, or consolidation or merger of the Company
with, or sale, conveyance, lease or other transfer of all or substantially
all of its assets to, another corporation; or
(d) There shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, the Company shall give notice to the holder hereof of the date on which
(i) the books of the Company shall close or a record shall be taken for each
stock dividend, distribution or subscription rights or (ii) such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up shall take place, as the case may be. Such notice shall also specify
the date as of which the holders of the Common Stock of record shall participate
in such dividend, distribution or subscription rights or shall be entitled to
exchange their Common
<PAGE>
Stock for securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation, or
winding up, as the case may be. Such written notice shall be given at least
twenty (20) days prior to the action in question and not less than twenty
(20) days prior to the date on which the Company's transfer books are closed
in respect thereto.
5. REGISTRATION RIGHTS. Prior to making any disposition of the Warrant
or of any Warrant Shares purchased upon exercise of the Warrant, the holder will
give written notice to the Company describing briefly the manner of any such
proposed disposition. The holder will not make any such disposition until (i)
the Company has notified the holder that, in the opinion of its counsel,
registration under the Securities Act is not required with respect to such
disposition or (ii) a registration statement covering the proposed distribution
has been filed by the Company and has become effective. The Company agrees
that, upon receipt of written notice from the holder hereof with respect to such
proposed distribution, it will use its best efforts, in consultation with the
holder's counsel, to ascertain as promptly as possible whether or not
registration is required and will advise the holder promptly with respect
thereto, and the holder will cooperate in providing the Company with information
necessary to make such determination. Upon written request of the holders of a
majority of the Warrant Shares, the Company shall prepare and file with the SEC
one registration statement on Form S-3 covering the Warrant Shares for an
offering to be made by the holders. The Company shall use its best efforts to
cause the registration statement to be declared effective under the Securities
Act as promptly as possible after the filing thereof and to keep such
registration statement continuously effective under the Securities Act until the
date which is two years after the date that such registration statement is
declared effective by the SEC or such earlier date when all of the Warrant
Shares have been sold or may be sold without volume restrictions pursuant to
Rule 144(k) of the Securities Act.
6. NOTICES. All notices and other communications in connection with this
Warrant must be in writing and, except as otherwise provided herein, will be
deemed to have been duly given (i) when mailed by certified or registered mail,
postage prepaid, return receipt requested, (ii) when sent by facsimile, with
written confirmation of receipt, or (iii) when delivered to the addressee if
sent by a nationally recognized overnight delivery service (receipt requested).
Any notice required or permitted to be given to the holder of this Warrant shall
be mailed, sent or delivered to the registered holder of the Warrant at his or
her last known post office address or facsimile number appearing on the books of
the Company.
7. RESERVATION OF COMMON STOCK. The Company will at all times reserve
and keep available such number of its authorized but unissued shares of Common
Stock as will be sufficient to permit the exercise in full of this Warrant.
8. MISCELLANEOUS. Whenever reference is made herein to the issue or sale
of shares of Common Stock, the term "Common Stock" shall include any stock of
any class of the Company other than preferred stock that has a fixed limit on
dividends or a payment preference in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company. The Company will not, by
amendment of its Articles of Incorporation or through reorganization,
consolidation, merger, dissolution, or sale of assets, or by any other voluntary
act or deed, avoid or seek to avoid the observance or performance of any of the
covenants, stipulations, or conditions to be observed or performed hereunder by
the Company, but will, at all times in good faith, assist, insofar as it is
able, in the carrying out of all provisions hereof and in the taking of all
other action which may be necessary in order to protect the rights of the holder
hereof against dilution. The representations, warranties, and agreements herein
contained shall survive the exercise of this Warrant. References to the "holder
of" include the immediate holder of Warrant Shares purchased on the exercise of
this Warrant, and the word "holder" shall include the plural thereof. This
Common Stock Purchase Warrant shall be interpreted under the laws of the State
of Michigan. All Warrant Shares or other securities issued upon the exercise of
the Warrant shall be validly issued, fully paid and nonassessable.
Notwithstanding anything contained herein to the contrary, the holder of this
Warrant shall not be deemed a shareholder of the Company for any purpose
whatsoever until and unless this Warrant is duly exercised.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Warrant to be signed by
its duly authorized officer this 5th day of November, 1998.
BIG BUCK BREWERY & STEAKHOUSE, INC.
By: /s/ William F. Rolinski
------------------------------------------
William F. Rolinski
President and Chief Executive Officer
<PAGE>
WARRANT EXERCISE FORM
To be signed only upon exercise of Warrant.
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder, __________ of the Warrant Shares of Big Buck Brewery &
Steakhouse, Inc. to which such Warrant relates and herewith makes payment of
$__________ therefor in cash, by cashier's check payable to the order of the
Company or by wire transfer to an account specified by the Company, and requests
that such Warrant Shares be issued and be delivered to the address for which is
set forth below the signature of the undersigned.
Dated:______________________
---------------------------------
(Taxpayer's I.D. Number)
---------------------------------
(Signature)
---------------------------------
(Address)
<PAGE>
ASSIGNMENT FORM
To be signed only upon authorized transfer of Warrant.
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers
unto _______________________________ the right to purchase Warrant Shares of Big
Buck Brewery & Steakhouse, Inc. to which the within Warrant relates and appoints
_____________________________, attorney, to transfer said right on the books of
such corporation with full power of substitution in the premises.
Dated: _____________________________
-------------------------
(Signature)
-------------------------
(Address)
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<PAGE>
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<FISCAL-YEAR-END> JAN-03-1999
<PERIOD-END> SEP-27-1998
<CASH> 163,764
<SECURITIES> 0
<RECEIVABLES> 124,872
<ALLOWANCES> 0
<INVENTORY> 288,940
<CURRENT-ASSETS> 869,258
<PP&E> 18,332,115
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<CURRENT-LIABILITIES> 1,953,066
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0
0
<COMMON> 52,850
<OTHER-SE> 10,647,374
<TOTAL-LIABILITY-AND-EQUITY> 19,742,489
<SALES> 11,665,888
<TOTAL-REVENUES> 11,665,888
<CGS> 4,001,458
<TOTAL-COSTS> 10,493,459
<OTHER-EXPENSES> 1,271,226
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 565,769
<INCOME-PRETAX> (657,247)
<INCOME-TAX> 0
<INCOME-CONTINUING> (657,247)
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<PAGE>
EXHIBIT 99.1
CONTACT:
WILLIAM ROLINSKI, PRESIDENT
BIG BUCK BREWERY & STEAKHOUSE, INC.
517-731-0401
SHANNON BURNS
SHANDWICK
612-841-6173
FOR IMMEDIATE RELEASE
BIG BUCK BREWERY & STEAKHOUSE AND BASS PRO OUTDOOR WORLD
TEAM UP TO ENTER DALLAS MARKET
GAYLORD, Mich., November 5 - Big Buck Brewery & Steakhouse, Inc. (Nasdaq:BBUC)
today announced that it will open a Big Buck Brewery & Steakhouse in Grapevine,
Texas, a suburb of Dallas, in partnership with Bass Pro Shops, the nation's
premier retailer of outdoor sports equipment. The new microbrewery/restaurant
will be owned by Buck & Bass Limited, a joint venture of Big Buck Brewery &
Steakhouse, Inc. and Bass Pro Shops, and is expected to open late in the first
quarter of 1999.
Big Buck Brewery & Steakhouse will occupy 22,500 square feet of space and will
include dining and bar areas seating a total of 500 guests and a microbrewery
with a capacity of 15,000 barrels per year. Big Buck Brewery & Steakhouse will
be connected through a central lobby to both the 190,000 square foot Bass Pro
Shops Outdoor World superstore and a new 330-room Embassy Suites Outdoor World
hotel and convention center.
The Big Buck restaurant, Bass Pro store and hotel complex are all designed to
be a major attraction for outdoor enthusiasts. They will be located on
Highway 121, the major artery between downtown Dallas and the Dallas/Ft.
Worth airport, one mile from the airport's 60 million annual passengers. The
38-acre site is near Grapevine Mills, a 1.5 million square-foot value retail
and entertainment-oriented megamall. An Opryland hotel and convention
center, with 1,500 rooms and 350,000 square feet of convention and exhibit
space, is scheduled to open in Grapevine in 2003. The $300 million Opryland
complex will cover 77 acres and include many recreation and entertainment
facilities, attracting visitors from around the world.
"We are pleased to be associated with Bass Pro, the leading retailer of outdoor
sporting goods," said William Rolinski, president of Big Buck Brewery &
Steakhouse, Inc. "This is a natural partnership between our northwoods
restaurant theme and Bass Pro's retail concept. Visiting an Outdoor World store
is more than just shopping; it is an entertaining experience, and we want the
guests to continue the fun by coming over to Big Buck Brewery & Steakhouse.
Bass Pro expects 4.5 to 6.0 million visitors per year at this site, and we hope
to attract a significant number of first-time guests from among these shoppers.
Our experience at our other microbrewery/restaurants demonstrates that many of
these will become repeat guests."
<PAGE>
"We look forward to working with Johnny Morris and the other fine people at Bass
Pro Shops in Dallas, and we are exploring the possibility of expanding this
partnership to develop similar joint sites in Atlanta, Fort Lauderdale,
Nashville and Charlotte. The partnership gives us the opportunity to expand
much more rapidly than we would otherwise envision. By including Big Buck
Brewery & Steakhouse in Bass Pro's advertising, catalogs and videotapes, we will
be able to take advantage of Bass Pro's national marketing to gain broad
exposure for the Big Buck name as we expand our concept beyond Michigan. Bass
Pro distributes over 30 million catalogs every year to customers whose profile
is very close to Big Buck Brewery & Steakhouse's customer profile."
Johnny Morris, founder of Bass Pro Shops, stated, "We are very excited about
this new partnership because our customers are going to be very excited about
the entire Big Buck experience. We have visited other Big Buck locations and
were extremely impressed. In addition to providing great food, Big Buck offers
a very exciting atmosphere that we believe our customers will really enjoy."
Big Buck Brewery & Steakhouse, Inc., based in Gaylord, Mich., develops, owns and
operates microbrewery/restaurants. Currently, the company operates Big Buck
Brewery & Steakhouses in Gaylord, Mich., Grand Rapids, Mich., and Auburn Hills,
Mich. Big Buck Brewery & Steakhouse offers casual dining featuring a moderately
priced menu and a selection of beers ranging from light golden ale to dark
full-bodied stout, and sells its microbrewed beer off-site through wholesale
distributors.
Bass Pro Shops is a privately held corporation specializing in catalog retail
sales and outdoor- themed destination retail outlets. For more than 25 years,
Bass Pro Shops has been a major retailer and manufacturer of quality fishing
tackle, hunting equipment, and camping and other outdoor gear. Bass Pro Shops
currently operates stores in Springfield, MO; Atlanta, GA; Chicago, IL; and
Islamorada, FL. Outdoor World-Ft. Lauderdale, FL, is scheduled to open in
November 1998. Plans have also been announced for Outdoor World stores in
Houston, TX, Nashville, TN, Orlando, FL, and Detroit, MI. Sister company
Tracker Marine is the world's largest manufacturer of aluminum and fiberglass
fishing and recreational boats.
Some of the information contained in this news release is forward-looking and is
subject to certain risks as described in the company's filings with the
Securities and Exchange Commission, including the company's prospectus dated
June 13, 1996, Form 10-KSB for the fiscal year ended December 28, 1997 and Form
10-QSB for the quarters ended March 28, 1998, and June 28,1998.
