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EXHIBIT 10.3
CREMONINI S.p.A.
AND
ROADHOUSE GRILL, INC.
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JOINT VENTURE AGREEMENT
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ROADHOUSE GRILL EUROPE
AGNOLI BERNARDI ZINI
BRITEN BURKHARDT MITTL & WEGENER
MOQUEST BORDE & ASSOCIES
MEYER LUSTENBERGER
PROFESSIONAL CORPORATION
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INDEX
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<CAPTION>
Clauses No. Page No.
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1. Definitions And Interpretation....................................................5
2. Purpose, Initial Scope And Territory Of The Joint Venture.........................9
3. The Joint Venture Company.........................................................10
4. Shareholders' Agreement...........................................................11
5. Business Plan.....................................................................11
6. Pre-Closing Conditions And Covenants..............................................11
7. Option To Subscribe Shares And Post-Closing Covenants.............................13
8. Foreign Corrupt Practices Act.....................................................15
9. Exclusivity-Right Of First Refusal, Non-Competition, Notification.................16
10. Execution.........................................................................17
11. Representations And Warranties Of The Parties.....................................17
12. Duration..........................................................................19
13. Termination.......................................................................20
14. Survival..........................................................................24
15. Confidentiality...................................................................24
16. Miscellaneous.....................................................................26
17. Notices And Communications.......................................................28
18. Governing Law And Arbitration.....................................................30
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ANNEXES
1. Business Plan
2. Master Development Agreement
3. Franchise Agreement
4. Shareholders' Agreement
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THIS JOINT VENTURE AGREEMENT is entered into on the 6th day of July, 2000 BY and
BETWEEN
1. CREMONINI SPA, a company incorporated in Italy, with its principal office at
Via Modena 53, Castelvetro (Modena), Italy, ("Cremonini");
2. ROADHOUSE GRILL, INC., a Florida corporation, with its principal office at
2703-A Gateway Drive, Pompano Beach, Florida 33069, ("Roadhouse").
(Cremonini and Roadhouse are hereinafter jointly referred to as the "PARTIES"
and each individually as a "PARTY").
WHEREAS
(A) Roadhouse is the owner or exclusive licensee of certain trademarks,
service marks and trade dress, including "Roadhouse Grill" and
associated logo, and may hereafter adopt, use and license additional
trademarks, service marks and trade dress, including an EU application,
whose filing information will be delivered as promptly as possible
(collectively, the "Marks") in conjunction with the operation of
Roadhouse Grill Restaurant (the "Restaurants") and is in the business
of operating and granting franchises to operate Restaurants, which
feature steaks, chicken, pork, seafood, vegetables, salads and certain
other food products (the "Products") for consumer consumption through
on-premises and carry-out sales.
(B) Cremonini is one of the Italian leading specialist integrated food
groups, with operations focused on meat processing, food service
distribution, catering and restaurant activity. Cremonini currently
operates, and will operate and develop in the future, restaurants other
than steak houses in the Territory (as hereinafter defined) under
several trademarks, which also feature, as part of their menu, the
Products;
(C) Cremonini desires to acquire franchises to operate Roadhouse Grill
Restaurants in Europe and, in connection with this, Roadhouse Grill
Europe, the designated name of the Joint Venture Company to be
incorporated pursuant to this Agreement ("JVCO"), and Roadhouse will
execute and deliver, upon incorporation of the JVCO, a Master
Development Agreement (attached hereto as Annex 2) setting forth the
terms and conditions of the development and opening of Restaurants by
the JVCO in various countries (the "Territory" as hereinafter better
defined below), and a Franchise Agreement constituting an attachment to
the Master Development Agreement regulating the franchise for
individual Restaurants;
(D) In connection with such development program as set forth in the Master
Development Agreement, the Parties intend to set up JVCO to be used as
their vehicle for pursuing the opportunities to develop and open the
Restaurants in the Territory as more fully described herein;
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(E) Each of the Parties wishes to pursue such development strategy in the
Territory with a leading partner to enhance the range, quality and
efficiency of their activity and have been selected because of their,
or their respective Affiliates', specific characteristics, experience,
know-how, technology, resources and infrastructures;
(F) This Agreement sets out the terms and conditions pursuant to which the
Parties have agreed to establish the JVCO, the manner in which the JVCO
shall conduct its business and the rights and obligations between each
of the Parties and the JVCO;
(G) Attached as Annexes to this Agreement are, (i) the Shareholders'
Agreement governing and regulating, together with the constitutional
documents of the JVCO, INTER ALIA, the legal relationships within the
various governing bodies of the JVCO and the rights and obligations of
the Parties as Shareholders of the JVCO: (ii) the By-Laws of the JVCO;
and (iii) the Ancillary Agreements regulating, INTER ALIA, the
commercial relationships among the JVCO and each of the Parties: and
(H) The aforementioned Shareholders' Agreement, the By-Laws, and Ancillary
Agreements will be executed upon incorporation of the JVCO.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATIONS
DEFINITIONS
1.1. Terms defined in the Master Development Agreement shall have the same
meaning in this Agreement, unless otherwise stated. In addition, the
following words and expressions shall have the following meanings:
"ACTIVE MANAGEMENT PARTICIPATION" means the ability to, at the
management, Board or equivalent level, actively participate in the
management decision making process and thereby have an effective
influence on operational decisions of the relevant entity before they
are taken.
"AFFILIATE" means, with respect to a specified Party, any Person that,
directly or indirectly through one or more intermediaries, Controls, or
is Controlled by, or is under common Control with the specified Party.
"AGREEMENT" means this joint venture agreement, including the Whereas
Clauses and all its Schedules and Annexes, as it may be amended from
time to time.
"ANCILLARY AGREEMENTS" means the agreements referred to in Clause 6 and
7.6.
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"AUDITORS" means the auditor of the financial statements of the JVCO
(but does not include the Statutory Auditors).
"BOARD OF DIRECTORS" or "BOARD" means the board of directors of the
JVCO.
"BUDGET" means the budget of the JVCO, drawn up for the first year of
the Business Plan to which it relates.
"BUSINESS" means the purpose of the JVCO as defined in Clause 2.
"BUSINESS DAY" means any day (other than a Saturday or Sunday) when
banks in Milan and Modena, Italy, and Pompano Beach (Florida, U.S.A.)
and New York (New York, U.S.A.) are open for the transaction of normal
business.
"BUSINESS PLAN" means the initial business, strategic and operating
plan and budget for the JVCO in the form set out in Annex 1 and any
subsequent business plan that may be approved or adopted in accordance
with this Agreement and Shareholders' Agreement, in each case as the
same may be modified or amended in accordance with this Agreement
"BY-LAWS/ARTICLES OF ASSOCIATION OF JVCO" means the By-laws/Articles of
Association of the JVCO in the form set out in Clause 2.2 and as
amended from time to time.
"CLOSING DATE" means the date agreed to by and between the Parties
within five (5) days from the satisfaction or waiver of all the
Pre-Closing Conditions and Covenants set forth in Clause 6.1 which in
any event shall not be later than August 31, 2000.
"CONTROL", "CONTROLLING", and "CONTROLLED" refer to the power of one
Person or group of Persons acting together or in concert, to control
directly or indirectly another Person through:
(i) any right entitling the controlling Person to a number of
votes sufficient to exercise a dominant influence in ordinary
shareholders' meetings; or
(ii) any right entitling the controlling Person to exercise the
majority of the votes that can be cast in ordinary
shareholders' meetings;
(iii) the exercise of a dominant influence by virtue of particular
contractual links with such Person.
For the purpose of (i), (ii) and (iii) above, the votes belonging to
controlled Persons, fiduciary companies, or fiduciary individuals shall
be taken into account. Votes that can be cast on behalf of third
persons shall not be taken into account.
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"CREMONINI GROUP" means the group comprised of all companies, whether
Italian or foreign, which are owned or controlled, directly or
indirectly, by Cremonini.
"DIRECT COMPETITOR" means a company operating in the Territory (as
hereinafter defined below) in the following businesses: (i) beef
sector; (ii) food service distribution; (iii) catering; or (iv) any
type of commercial restaurant activity.
"ENCUMBRANCE" means mortgages, charges, pledges, liens, options,
restrictions, rights of first refusal rights of pre-emption, third
party rights or interests, other encumbrances or security interests of
any kind, or any other type of preferential arrangements (including,
without limitation, a title transfer or retention arrangement) having
similar effect under the laws of any jurisdiction.
"EXECUTION DATE" means the date of this Agreement.
"EURO" and "EUROS" mean the single currency of the participating Member
States of the European Union.
"FRANCHISE AGREEMENT" means the Franchise Agreement to be executed by
the JVCO and Roadhouse in a form substantially pursuant to the text
attached hereto as Annex 3.
"GAAP" means generally accepted accounting principles as such
principles are in effect from time to time, and consistently applied in
the applicable jurisdiction of incorporation of the JVCO or such other
jurisdictions, where Restaurants will be opened and operated.
"GROSS REVENUES" means the aggregate sales of Restaurants opened and
operated under the Master Development Agreement after deduction of any
sales tax or VAT applicable to such sales.
"JVCO SHARE" means a Share of par value to be determined upon
incorporation in the capital of the JVCO as it will be determined by
the parties at incorporation.
"JVCO" means the company to be incorporated under the laws of the
jurisdiction in the territory of the European Union, as it will be
jointly agreed to by and between the parties in accordance with the
appropriate tax and corporate structure, which will be jointly verified
by the Parties, under the name of Roadhouse Grill Europe. The JVCO
shall be incorporated by Cremonini pursuant to Clause 3 as (i) the
joint venture company referred to in this Agreement and (ii) the
Franchise Owner under the Master Development Agreement.
"LIT," "ITL" "LIRAS" or "LIRE" means Italian Lire.
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"MASTER DEVELOPMENT AGREEMENT," means the Master Development Agreement
executed by the Parties as of the date hereof and pursuant to which the
JVCO as Franchise Owner will acquire a franchise to develop and operate
Restaurants pursuant to the terms and conditions of the Franchise
Agreement to be executed with Roadhouse; for each Restaurant to be
established.
"NET DEBT" means the total amount of short term and long term financing
of the JVCO minus the amount of available cash and available cash
deposits and any present and future indebtedness represented by notes,
debentures, loan stock, or other security which are for the time being,
or are capable of being quoted, listed, or ordinarily dealt in on any
stock exchange, over-the-counter market or other securities market,
provided further that "financing" shall not include any indebtedness
the terms of which permit the JVCO, at the JVCO's option, to satisfy
such indebtedness by the issue of equity shares or other securities
convertible at the option of the JVCO into equity shares.
"PARTIES" means Cremonini and Roadhouse, and "PARTY" means any one of
them.
"PERSON" includes any individual, corporation, limited liability
company, company, partnership, joint venture, association, business
trust, joint-stock company, trust, unincorporated organization or
government or agency or political subdivision thereof.
"RELEVANT EQUITY INTEREST" means: (i) 25% or more of the issued and
outstanding share capital of the relevant private entity or (ii) 5% or
more of the issued and outstanding share capital of the relevant public
entity.
"RESTAURANTS" means the Roadhouse Grill restaurants.
"ROADHOUSE GROUP" means Roadhouse Grill, Inc. and its subsidiaries.
"SHARE" or "SHARES" means any issued share in the capital of the JVCO.
"SHAREHOLDERS" means a Party to this Agreement.
"TERRITORY" means the territory as defined in Clause 2.3,
"US$" or "$" means United States Dollars.
"WARRANTY" means, with respect to a Party, a statement (including
representations, warranties, and covenants) contained in Clause 11 and
made or deemed to be made by such Party and "Warranties" means all such
statements.
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INTERPRETATION
1.2. Headings are inserted for convenience only and shall not affect the
interpretation of this Agreement.
1.3. A Person includes a reference to that Person's legal personal
representatives or successors.
1.4. The singular includes the plural and vice versa.
1.5. A Clause or Annex, unless the context otherwise requires, is a
reference to a Clause of or Annex to this Agreement.
1.6. The Annexes form an integral part of this Agreement and shall have the
same force and effect as if set out in the body of this Agreement.
1.7. A reference to a Party's knowledge, information or belief or to a Party
being aware of a fact, matter or circumstances means, in the case of
Cremonini, the knowledge, information or belief of Cremonini and its
subsidiaries or Affiliates and, in the case of Roadhouse, knowledge,
information or belief of Roadhouse and its subsidiaries or Affiliates
1.8. In this Agreement, a reference to "ownership" or a Person "owning" an
asset of any description or any similar formulation shall mean that the
Person described as having ownership of or owning the asset has all
rights, title and interest in and to the relevant asset.
2. PURPOSE, INITIAL SCOPE AND TERRITORY OF THE JOINT VENTURE
PURPOSE
2.1. The purpose of the JVCO will be to develop, open, own, and operate
Roadhouse Grill Restaurants, which feature the Products, in the
Territory and in accordance with the Development Schedule as set forth
in the Business Plan attached hereto as Annex 1.
Such development, opening and operation of the restaurants shall be
conditional upon (i) successful completion of the registration process
currently taking place, by Roadhouse in the Territory of the "Roadhouse
Grill" trademark.
2.2. The Business shall be carried out by JVCO in the Territory. The
By-laws/Articles of Association of the JVCO shall be in a form to be
prepared by BBLP Pavia e Ansaldo consistently with this Agreement and
the Shareholders' Agreement upon determination of the appropriate
jurisdiction.
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TERRITORY
2.3. Subject to the provisions of the Master Development Agreement, the
territorial Scope of the JVCO shall be limited to Europe, as
geographically and politically defined.
3. THE JOINT VENTURE COMPANY
THE JOINT VENTURE COMPANY
3.1. JVCO shall be incorporated by Cremonini under the name of Road House
Grill Europe in the most appropriate jurisdiction as set forth in the
definition of JVCO.
BY-LAWS/ARTICLES OF ASSOCIATION
3.2. Upon incorporation of the JVCO, Cremonini as sole Shareholder shall:
3.2.1 adopt the By-laws/Articles of Association of the JVCO in the
appropriate form for the corporate type and jurisdiction
agreed to by and between the parties and in a text containing
to the extent possible the term and conditions set forth in
the Agreement and in the Shareholders' Agreement. The Parties
hereby agrees that duration of the JVCO shall be perpetual; it
being understood and agreed that, if a perpetual duration is
not permissible under applicable law, then the duration of the
JVCO shall be automatically reduced to the maximum duration
permitted under such applicable law; and
3.2.2 fix the fiscal year of the JVCO to end on December 31 of each
year.
AUTHORIZED SHARE CAPITAL
3.3. The initial authorized capital of the JVCO shall be the equivalent of
Lit 5,000,000,000 (five billion) divided into a certain number of
Shares based on the par value as determined upon incorporation.
VOTING SHARES
3.4. The Shares shall be common shares entitling the owner thereof to one
vote per Share.
OWNERSHIP OF THE JVCO
3.5. The JVCO shall initially be owned 100% by Cremonini. Roadhouse will
subscribe and acquire annually shares of the JVCO, starting from the
year 2000, in accordance with the provisions set forth in Clause 7.
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3.6 The Board of Directors of the JVCO shall be composed of 3 members.
Roadhouse shall have the right to designate one member. The
Shareholders' Agreement shall provide for additional corporate
governance rights infavor of Roadhouse starting from the subscription
of the Shares pursuant to Clause 7.
4. SHAREHOLDERS' AGREEMENT
4.1. Upon incorporation of the JVCO, the Parties and the JVCO shall execute
and deliver the Shareholders' Agreement in the text attached hereto as
Annex 4 setting forth the terms and conditions that regulate their
rights, duties and obligations INTER SE as regards the internal
structure of the JVCO.
5. BUSINESS PLAN
5.1. The Business of the JVCO shall be conducted in accordance with the
Business Plan and the development plan per country (as hereinafter
defined). The Business Plan for the years 2000/2004 is attached hereto
as Annex 1. The Business Plan shall determine the development schedule
for the opening of the Restaurants in the various countries of the
Territory (the Development Plan per Country).
5.2. The Business Plan shall cover five (5) fiscal years including the year
2000. Each new Business Plan shall be annual with a three (3) year
projection in accordance with the Shareholders' Agreement.
6. PRE-CLOSING CONDITIONS AND COVENANTS
PRE-CLOSING CONDITIONS
6.1. The Parties agree that all their obligations set forth in this
Agreement, including those to be entered into under the Ancillary
Agreements, are to be terminated in accordance with Clause 13, unless
the following conditions shall have been satisfied or (where permitted)
waived in writing on or before August 31, 2000:
6.1.1 all of the obligations and covenants to be fulfilled by either
Party on or prior to the Closing Date shall have been
fulfilled to the satisfaction of the other Party;
6.1.2 the registration by Roadhouse of the Marks having been filed
in the European Union and relevant documentation shall have
been delivered to Cremonini; such registration shall have to
be successfully completed within twelve (12) months from
execution of this Agreement, other than as set forth in the
Master Development Agreement;
6.1.3 the execution between Roadhouse and the JVCO of the Ancillary
Agreements referred to in Clause 7.6;
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6.1.4 Cremonini not becoming aware of any third parties' intention
to raise any claims against or in respect of or otherwise
challenge the validity or enforceability of this Agreement
and/or of the rights of Roadhouse to own or use, or to permit
third Parties to use or have access to the Marks;
6.1.5 the Warranties of the Parties hereunder being and remaining
true and accurate and not having been breached in any material
respect;
6.1.6 Roadhouse having provided to the JVCO, as required by
applicable law, and to Cremonini at least ten (10) days prior
to the Closing Date an updated version of the Uniform
Franchise Offering Circular which shall include, among other
things, information on Europe, as appropriate;
6.1.7 neither Party having served a Termination Notice under Clause
13 when entitled to do so for any reason; and
6.1.8 the JVCO's Articles of Incorporation and By-Laws/Articles of
Association having been filed with the relevant Court and/or
other entity and with the pertinent Registrar of Companies as
required under applicable law.
PRE-CLOSING COVENANTS
CREMONINI'S OBLIGATIONS
6.2. It shall be the obligation of Cremonini to:
6.2.1 Procure, to the extent possible as applicable to Cremonini,
the satisfaction of the conditions set out in Clauses 6.1.
Roadhouse may waive in writing satisfaction of any of those
conditions and the conditions set out in Clause 6.1. Roadhouse
may postpone the date for satisfaction of any of the
conditions (which postponement does not prejudice the right of
Roadhouse to exercise its right of termination if a condition
has not been satisfied by such later date) but in any event
not later than October 1, 2000.
ROADHOUSE'S OBLIGATIONS
6.3. It shall be the obligation of Roadhouse to:
6.3.1 Procure, to the extent possible as applicable to Roadhouse,
the satisfaction of the conditions set out in Clauses 6.1.4
and 6.1.5. Cremonini may waive in writing satisfaction of any
of those conditions and the conditions set out in Clause 6.1.
Cremonini may postpone the date for satisfaction of any of the
conditions (which postponement does not prejudice the right of
Cremonini to exercise its
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right of termination if a condition has not been satisfied by
such later date) but in any event not later than October 1,
2000.
THE PARTIES OBLIGATIONS
6.4. If a Party become aware of a fact or circumstance that might prevent a
condition referred to above from being satisfied, it shall immediately
inform the other Party. Each Party shall continue to respond to all
reasonable requests from the other Party for information on the
progress of satisfaction of the conditions identified in Clause 6.1.
7. OPTION TO SUBSCRIBE SHARES AND POST-CLOSING COVENANTS
SHARES SUBSCRIPTION
7.1. Each year, and starting from the year 2001 until year 2004 included,
Roadhouse shall have the option to subscribe/acquire Shares of the JVCO
in a subscription amount equal to 2% (two percent) of the share capital
of the JVCO.
With reference to the year 2002 only, the option to subscribe shares
shall be for a subscription amount equal to 2.5% (two point five
percent).
The value of the shares to be subscribed shall be determined by
multiplying 7 (seven) times the JVCO EBITDA, deducted a sum equal to
the total Net Debt of the JVCO, as resulting from the last audited
financial statements. Each year Roadhouse shall exercise its option by
sending a written notice to Cremonini and the JVCO pursuant to Clause
17.1. If Roadhouse will not exercise the option within 90 (ninety) days
from the receipt of the yearly audited financial statements of the
JVCO, the option set forth in this Clause 7.1 shall be considered
automatically terminated for that relevant year, without any further
right, effect, obligation, or indemnity upon any of the parties. In the
event that the figure resulting by multiplying 7 (seven) times the JVCO
EBITDA, deducted the total Net Debt, as resulting from the last audited
financial statements, is negative, Roadhouse shall acquire/subscribe
shares at par value.
YEAR 2000 SUBSCRIPTION
7.2. Only during the year 2000, Cremonini will transfer to Roadhouse, at par
value, shares of the JVCO in an amount equal to 1.5% (one point five
percent) of the JVCO share capital.
NET DEBT GEARING RATIO
7.3. Subject to the condition precedent that the Net Debt of the JVCO
remains below the figure expressed in the 2000/2004 Business Plan
(gearing ratio
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Bx), and subject to the provision set forth in Clause 4.2 of the
Shareholders' Agreement,. Cremonini warrants to Roadhouse that the
participation of Roadhouse in the JVCO share capital shall not be
diluted by any reason, except by written consent by Roadhouse.
7.4. POST-CLOSING COVENANTS
7.4.1 Each party shall notify the other party in the event of
default and/or potential event of default of any of its
covenants or should any of its representation and warrants
become, in whole or in part, untrue, incorrect or misleading.
7.4.2 Each party shall inform the other party of the name of any
investor acquiring a participation in excess of 5% (five
percent) of the corporate capital.
7.4.3 Each party shall deliver to the other party a copy of its
quarterly semiannual and annual financial statements;
PROVIDED, HOWEVER, that if either party ceases to be a
reporting company under applicable stock exchange regulations,
only annual financial statements will be provided pursuant to
this Clause 7.4.3.
PARTIES' FINANCING
7.5. The Parties may provide additional financing to the JVCO in accordance
with terms and conditions to be mutually agreed to.
ANCILLARY AGREEMENTS
7.6. Subject o Clause 6.1.6 above, upon incorporation of the JVCO, the
parties hereto, their relevant Affiliates, the JVCO shall
simultaneously enter into the Shareholders' Agreement, the Master
Development Agreement, and the Franchise Agreement attached hereto.
7.7. The Ancillary Agreements will become effective pursuant to the terms
thereof, it being understood and agreed that, in the event of any
conflict or discrepancy between the Uniform Franchise Offering Circular
referred to in Clause 6.1.6 above and:
(i) any of the provisions and/or representations by Roadhouse
contained in any of the Ancillary Agreements; or
(ii) any of the provisions and/or representations by Roadhouse
contained in this Agreement,
the provisions and representations by Roadhouse contained in the
Ancillary Agreements and in this Agreement will prevail.
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SALES AND MARKETING OF SERVICES IN THE TERRITORY
7.8. After the Closing Date, the JVCO will conduct its Business, consisting
of development and opening of new Restaurants, under the Roadhouse
Grill Trademark in the Territory.
JVCO EMPLOYEES
7.9. After the Closing Date, Cremonini and Roadhouse shall determine the
adequacy of the staffing of the JVCO in light of the budget and
Business Plan. In this regard the Parties agree to use their reasonable
endeavors:
7.9.1 in accommodating requests of the JVCO for the services of
employees with specific know-how or other expertise, by hiring
or transferring employees on a permanent or temporary basis,
as described in the Master Development Agreement;
7.9.2 in meeting the JVCO's needs in respect of restaurant activity
expertise; and
7.9.3 in meeting the JVCO's needs in respect of management and other
expert human resources.
8. FOREIGN CORRUPT PRACTICES ACT
8.1. Each of the Parties hereby acknowledges and agrees that certain laws of
the United States, including the Foreign Corrupt Practices Act, 15
U.S.C. Article 78dd-1 et seq., prohibit any person subject to the
jurisdiction of the United States from making or promising to make any
payments of money or anything of value, directly or indirectly, to any
government official, political party, or candidate for political office
for the purpose of obtaining or retaining business. Each of the Parties
hereby represents and warrants that, in the consummation of the
transaction contemplated hereby, it has not made, and will not make,
any such proscribed payment.
8.2. In the event that any Party, in its performance of its obligation under
this Agreement or otherwise in connection with the business of
Cremonini and/or Roadhouse, believes that it will be necessary and
lawful to make or promise a payment to any governmental official,
political party or candidate for political office for the furtherance
of this Agreement or the transactions contemplated hereby, that Party
shall first discuss the proposed payment with the other Party. If the
other Party determines that such payment will not violate the Foreign
Corrupt Practices Act, the other Party shall approve the payment in
writing; if, on the other hand, the other Party determines that such
payment could conflict with the Foreign Corrupt Practices Act, the
other Party shall decline to approve the payment. No Party shall make
or promise any payment to a governmental official, political party or
candidate for political office for the furtherance of this Agreement
without first obtaining
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the prior written approval of the other Party and no Party shall make
or promise any payment which the other Party had declined to approve.
8.3. In the event of a breach of its obligations hereunder, the breaching
party shall fully indemnify and hold harmless the non-breaching party
and its Affiliates, officers, directors, agents and employees against
any and all claims, losses and liabilities attributable to such breach.
8.4. Roadhouse understands that the European Union Jurisdictions have
equivalent laws; any and all obligations referred to U.S. Laws set
forth in this Clause 8 should be deemed to apply also to any EU laws.
9. EXCLUSIVITY, RIGHT OF FIRST REFUSAL, NON-COMPETITION, NOTIFICATION
EXCLUSIVITY-RIGHT OF FIRST REFUSAL
9.1. Cremonini, Roadhouse and their respective Affiliates shall only engage
in the Business in the Territory through the JVCO pursuant and subject
to the terms of the Master Development Agreement.
NON-COMPETITION
9.2. In view of the Parties exclusive commitment to doing Business through
the JVCO, the substantial risks and costs involved in establishing the
JVCO, the Parties hereby covenant not to compete, and cause their
respective Affiliates not to compete, with the JVCO (the "Exclusivity
Requirement") except as otherwise provided herein and as provided in
the Master Development Agreement.
9.3. Neither Cremonini, Roadhouse nor any of their respective Affiliates,
directly or indirectly, as principal or agent, shall engage, except
through the JVCO, in any of the following activities, or acquire or
hold a Relevant Equity Interest or take Active Management Participation
in an entity which engages, within the Territory, in any of the
following activities:
9.3.1 engaging (as a shareholder owning, directly or indirectly,
more than ten percent (10%) of the outstanding shares or
otherwise) in a business similar to the Business; PROVIDED,
HOWEVER, that Cremonini will continue to operate and develop
restaurants in the Territory, other than steak houses, under
several trademarks, which also feature, as part of their menu,
the Products;
9.3.2 making statements or performing any acts which are harmful to
the reputation of the JVCO or which may lead any person to
cease to deal with JVCO, whether at all or on substantially
equivalent terms to those previously offered; or
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9.3.3 soliciting the employees of the JVCO, Roadhouse and Cremonini.
NOTIFICATION
9.4. Each of the Parties shall notify the other of any acquisition of any
material interest in an entity that owns a competing business in the
Territory.
10. EXECUTION
DATE AND PLACE OF EXECUTION
10.1. The Parties shall execute this Agreement at the offices of BBLP Agnoli
Bernard Zini et al., P.C. offices at 460 Park Avenue, New York, New
York, or may execute and exchange by facsimile counterparts of this
Agreement, on July 6, 2000 or such other date as may prove necessary to
obtain the requisite regulatory approvals. Should this Agreement be
executed and exchanged by facsimile, the Parties shall also execute
original counterparts as deemed necessary or advisable.
SUBMISSION BY THE PARTIES
10.2. At the Execution Date, the Parties shall deliver to each other:
10.2.1 all the requisite internal corporate approvals for the
consummation of the transaction hereunder; and
10.2.2 the requisite powers of attorney.
11. REPRESENTATIONS AND WARRANTIES OF THE PARTIES - INDEMNIFICATION
11.1. Each Party, on behalf of itself and each of its Affiliates, represents
and warrants to the other Party, and as from Execution Date also to the
JVCO that:
11.1.1 it is a corporation duly organized and validly existing under
the laws of the jurisdiction in which it was incorporated:
11.1.2 it has the requisite power and authority (corporate and other)
to own its property and to carry on its business as currently
conducted and that it is lawfully empowered to execute and
delivery this Agreement and any other agreements contemplated
herein to which it is a party and to consummate the
transactions contemplated herein;
11.1.3 the execution and delivery of this Agreement and the
agreements contemplated herein have been duly authorized by
all requisite corporate action;
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11.1.4 this Agreement and all other agreements or obligations
undertaken in connection with the transactions contemplated
herein constitute or will constitute, following the execution
and delivery thereof, the valid and legally binding
obligations of such Party or its Affiliates, enforceable
against it or its Affiliates in accordance with their
respective terms, subject as to enforcement of remedies to
applicable bankruptcy, insolvency, reorganization and other
laws affecting generally the enforcement of the rights of
creditors and subject to the discretionary authority of a
court of competent jurisdiction with respect to the granting
of a decree ordering specific performance or other equitable
remedies;
11.1.5 the execution, delivery and performance by each Party to this
Agreement and the agreements contemplated herein shall not to
the best knowledge of such Party and its Affiliates.
(a) violate the provisions of any applicable law,
respective articles of incorporation, certificate of
incorporation or by-laws/articles of association or
other similar documents (each as amended from time to
time), or any resolution of its management board or
other corporate governing body or of its
shareholders, or violate any judgment, decree, order
or award of any court, governmental agency or
arbitrator applicable to such Party; or
(b) conflict with or result in the breach or termination
of any material term or provision of, or constitute a
default under, or cause any acceleration under, any
license (including operating licenses, permits,
concessions, franchises, indentures, mortgages,
leases, equipment leases, contracts, deeds of trust)
or other instruments or agreements by which such
Party is or may be bound; and
11.1.6 such Party is not precluded by the terms of any contract,
agreement or other instrument by which it is bound from
entering into this Agreement, or any agreement contemplated
herein or from the consummation by such Party of the
transactions contemplated herein;
11.1.7 no consent, approval, order or authorization of, or
registration, declaration or filing with, any person or entity
is required in connection with the execution, delivery and
consummation of this Agreement by such Party, or the
agreements contemplated herein, except for the consent or
approvals;
11.1.8 to the best knowledge of such Party, there are no actions,
suits, investigations or other proceedings pending or
threatened against such Party, no order, judgment or decree of
any court or governmental
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agency applicable to such Party or its properties and no facts
or circumstances which could reasonably be expected to give
rise to a claim, action, suit or proceeding which could
materially and adversely affect the JVCO or the transactions
contemplated herein; and
11.1.9 each party shall have fully fulfilled its obligations
hereunder.
11.2. Roadhouse specifically represents and warrants that it owns or will own
all rights concerning the Marks, including without limitation, the
trademark and service mark applications already submitted in Europe.
Roadhouse also represents and warrants that the use of the Marks by the
JVCO will not infringe or violate or allegedly infringe or violate the
intellectual property rights of any person or entity. The Parties
hereby agree that, should any of the registrations of the Marks in
Europe be denied by the competent authority or should the validity of
the Marks be successfully challenged by any third party, then they will
promptly convene in order to agree on amendments or modification of the
Marks so as to render them valid and enforceable under the pertinent
jurisdiction. Neither Roadhouse nor any subsidiary of the same owns or
uses any intellectual property rights pursuant to any license agreement
or has granted any person or entity any rights, pursuant to any license
agreement or otherwise, to use the Marks. Roadhouse further represents
and warrants that the announced lender offer and/or any pending
negotiation with any third party equity Investor does not or will not
affect the validity, execution and implementation of this Agreement and
any Ancillary Agreement.
11.3. A Party must notify the other Party promptly in writing of any fact,
matter or circumstances of which it becomes aware and which causes a
Warranty given by it to be untrue, misleading or breached. A Party may
terminate this Agreement in the manner and with the consequences set
out in Clause 13 as appropriate, if on or before the Closing Date, it
becomes aware that a Warranty given or deemed to be given by the other
Party is breached or becomes misleading or untrue in each case in any
material respect.
11.4. Each party shall indemnify and hold harmless the other party from any
and all liability, losses, damages (excluding consequent or indirect
damages and loss of profits) costs and expenses (including reasonable
counsels' fees and costs of Investigation) in the event of breach of
any of its representations and warranties and in the event of default
of any of its covenants.
12. DURATION
12.1. This Agreement shall commence on the Execution Date and shall continue
in force for the entire duration of the JVCO, unless terminated
pursuant to Clause 13 herein, or unless either Party provides a
Transfer Notice to the Other Party, in which case such other Party will
have the right, but not the
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obligation, to purchase the notifying Party's interest in the JVCO at a
price with the mechanism as set forth in Clause 13.
13. TERMINATION
13.1. A Party (the "Non-Defaulting Party") may give notice in writing (a
"Termination Notice", the effect of which is set out below) to the
other Party (the "Defaulting Party"), where an event specified below
applies to that other Party, or where specified, to an Affiliate of
such Party when:
13.1.1 If the Non-Defaulting Party is Cremonini:
(a) Roadhouse commits a material breach of its
obligations hereunder and, if the breach is capable
of remedy, fails to remedy the breach within sixty
(60) days of being specifically required in writing
to do so by Cremonini; or
(b) Roadhouse or one of its Affiliate makes an assignment
for the benefit of its creditors generally or fails
or is unable to pay its debts generally as they
become due but in the case of an Affiliate only if
such assignment or failure or inability to pay debts
when due might also reasonably be expected to have a
material adverse effect on the JVCO; or
(c) any distress, execution, sequestration or other
similar process is levied or enforced upon or against
any property of Roadhouse or an Affiliate of it and
which is not discharged or revoked within sixty (60)
days and which might also reasonably be expected to
have a material adverse effect on the JVCO; or
(d) an order is made by a court of competent jurisdiction
or a resolution is passed for the winding-up,
bankruptcy, reorganization or other similar
proceedings of Roadhouse or an Affiliate of it, but,
in the case of an Affiliate, only if the matters
contemplated by this Clause 13 might also reasonably
be expected to have a material adverse effect on the
JVCO; or
(e) Roadhouse or one of its Affiliates commits a material
breach of its obligations under the Master
Development Agreement and, if the breach is capable
of remedy, fails to remedy the breach within sixty
(60) days of being specifically required to do so by
Cremonini or the JVCO; or
(f) a competitor of Cremonini becomes the relevant direct
or indirect controlling shareholder of Roadhouse
("Controlled Party"). For the purposes of this
paragraph, competitor means a company operating in
Europe at the time of the merger in the
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following businesses: (i) the beef sector; (ii) food
service distribution; (iii) catering; and (iv) any
type of commercial restaurant activity.
13.1.2 If the Non-Defaulting Party is Roadhouse:
(a) Cremonini commits a material breach of its
obligations hereunder and, if the breach is capable
of remedy, fails to remedy the breach within sixty
(60) days of being specifically required in writing
to do so by Roadhouse; or
(b) Cremonini or one of its Affiliates makes an
assignment for the benefit of its creditors generally
or fails or is unable to pay its debts generally as
they become due, but in the case of an Affiliate,
only if such assignment or failure or inability to
pay debts when due might also reasonably be expected
to have a material adverse effect on the JVCO; or
(c) Cremonini or one of its Affiliates commits a material
breach of its obligations under the Master
Development Agreement and, if the breach is capable
of remedy, fails to remedy the breach within sixty
(60) days of being specifically required to do so by
Roadhouse or the JVCO.
(d) Any distress, execution, sequestration or other
similar process is levied or enforced upon or against
any property of Cremonini or one of its Affiliates
and which is not discharged or revoked within sixty
(60) days and which might also reasonably be expected
to have a material adverse effect on the JVCO; or
(e) An order is made by a court of competent jurisdiction
or a resolution is passed for the winding-up,
bankruptcy, reorganization or other similar
proceedings of Cremonini or one of its Affiliates,
but in the case of an Affiliate, only if the matters
contemplated by this Clause 13 might also reasonably
be expected to have a material adverse effect on the
JVCO.
(f) a competitor of Roadhouse becomes the relevant direct
or indirect controlling shareholder of Cremonini
("Controlled Party"). For the purposes of this
paragraph, a competitor means a company operating in
Europe at the time of the merger in the following
businesses of: (i) the beef sector; (ii) food service
distribution; (iii) catering; and (iv) any type of
commercial restaurant activity.
13.2. The service of a Termination Notice shall give the Non-Defaulting Party
serving the Termination Notice the following rights:
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13.2.1 if Roadhouse is the Defaulting Party and Cremonini serves a
Termination Notice, Cremonini shall have the option to buy all
of Roadhouse's Shares and it shall be the obligation of
Roadhouse to sell such shares to Cremonini. If required to do
so by Cremonini in accordance with this Clause 13; or
13.2.2 if Cremonini is the Defaulting Party and Roadhouse serves a
Termination Notice, Roadhouse shall have the option to buy all
of Cremonini's Shares and it shall be the obligation of
Cremonini to sell such shares to Roadhouse, if required to do
so by Roadhouse in accordance with this Clause 13.
(in either case, these Shares are referred to as the "Sale
Shares").
13.3. The Price for the Sale Shares shall be equal to a percentage of the
JVCO's capital represented by the Sale Share of an amount resulting by
multiplying 22 times the EBIT of the JVCO for the year preceding the
year in which the Notice of Termination is served.
13.4. Within ninety (90) days of the determination of fair value of the Sale
Shares as per Clause 13.3 above, the Non-Defaulting Party who serves
the Termination Notice shall elect by written notice to the other Party
whether to respectively exercise its option pursuant to Clause 13.2.1
or 13.2.2, as the case may be, to buy the Sale Shares. If no election
is made within the stipulated 90 (ninety) days, then the rights arising
under the Termination Notice pursuant to Clause 13.2.1 or 13.2.2, as
the case may be, shall lapse in relation to that Termination Notice.
13.5. Once an election is made to exercise the option in accordance with
Clause 13.4, the Defaulting Party shall be bound to transfer the Sale
Shares against tender of the price determined in accordance with Clause
13.3. The date on which such an election is made is the "Binding Date."
13.6. Within [30 (thirty)] days of the Binding Date, the Defaulting Party
shall (i) execute the necessary instruments of transfer of the Sale
Shares in favor of the Non-Defaulting Party and pay to the Defaulting
Party the purchase price for the Sale Shares, determined in accordance
with Clause 13.3. The instruments of transfer shall be executed against
payment in full of the price for all of the Sale Shares and the Parties
shall procure that the CEO will enter the Non-Defaulting Party's name
in the register of members of the JVCO as the new holder of the Sale
Shares.
13.7. Unless terminated earlier pursuant to Clause 13, the JVCO shall not
otherwise be terminable by either Party and any judicial right of
dissolution or similar right with respect to the JVCO shall be waived
to the fullest extent permissible under applicable law.
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PUT AND CALL OPTION - RIGHT TO RE-PURCHASE
13.8. Subject to the condition precedent set forth in Clause 13.10 below,
Roadhouse and Cremonini grant, respectively, to each other a right of
put and call option on the 8% (eight percent) participation acquired by
Roadhouse in the JVCO share capital at the end of year 2004. Within
thirty (30) days from the approval, by the Board of Directors of the
JVCO of the annual financial statements as of December 31, 2004 (which
will occur, approximately, by April 30, 2005), Roadhouse and Cremonini
shall have the right to respectively exercise the put and call option
related to the transfer to Cremonini of the eight % (eight percent) of
the share capital of the JVCO owned by Roadhouse, by sending to the
other party a written notice pursuant to Clause 17.1 below. The
exercise price shall be determined by multiplying 7 (seven) times the
EBITDA of the JVCO, deducted the total Net Debts as evidenced in the
audited financial statements as of December 31, 2004. Transfer shall
occur within ninety (90) days from the receipt by the other party of
the notice of exercise of the option.
13.9. Subject to the condition precedent set forth in Clause 13.10 below,
Cremonini shall have an obligation to re-purchase the shareholding,
equal to 2% (two percent) of the JVCO share capital, subscribed by
Roadhouse in the course of the year 2004 pursuant to Clause 7 above.
Cremonini shall send a written notice in that respect to Roadhouse,
pursuant to Clause 17.1 below, within fifteen (15) days from the
approval of the financial statements as of December 31, 2005 (which
will occur approximately by April 30, 2006). The price of the shares
shall be calculated by multiplying 7 (seven) times the EBITDA of the
JVCO, deducted Net Debts, as evidenced in the audited financial
statements as at December 31, 2005. Transfer shall occur within ninety
(90) days from the receipt, by the other party, of the notice of
exercise of the option.
13.10. The exercise of the put and call options referred to in Clause 13.8 and
the obligation of Cremonini to repurchase the 2% (two percent)
participation of Roadhouse, as set forth in Clause 13.9 above, are
subject to the condition precedent of the achievement by the JVCO of an
EBITDA equal to at least ITL 35,000,000,000 (Thirty-Five Billion) (the
"Threshold").
In the event that such figure is reached by the JVCO before the year
2004, the parties shall have the right to exercise the put and call
options referred to in Clause 13.8 above starting from April 30, 2005.
The right of Cremonini to repurchase two percent (2%) of the JVCO share
capital, as referred to in Clause 13.9 above, shall be exercised
starting as of April 30, 2006.
In the event that the figure 35,000,000,000 (Thirty-Five Billion)
EBITDA is not reached in the year 2004, the exercise of the put and
call options and
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the right to repurchase shall be postponed until the approval of a year
and audited financial statement of the JVCO evidencing such figure.
13.11. It is further agreed that, if the Threshold is not achieved by January
1, 2007, Cremonini, at Roadhouse's request, shall be obligated to
repurchase Roadhouse's Shares at its costs for the same. Should
Roadhouse elect not to put its Shares to Cremonini pursuant to this
Clause 13.11, such Shares shall continue to be subject to the put and
call option set forth in Clauses 13.8 and 13.9 above, it being
understood and agreed that reference to financial statements in Clauses
13.8 and 13.9 above shall be deemed to be the most recent annual
financial statements preceding the year of exercise of such put and
call option.
14. SURVIVAL
14.1. The obligations contained herein that would by their nature or the
context in which they are used herein continue beyond the termination
of this Agreement (including without limitation all accrued and unpaid
obligations arising hereunder), shall survive termination of this
Agreement and/or the dissolution of the JVCO, and shall continue to
apply to any Party, the JVCO and their respective Affiliates after they
cease to be a party to this Agreement or any agreements contemplated
herein.
14.2. Notwithstanding anything to the contrary contained in this Agreement,
all of the representations and warranties set forth in Clause 11 shall
survive the execution and performance of this Agreement and the
relevant Ancillary Agreements for a period of five (5) years.
15. CONFIDENTIALITY
15.1. During the term of this Agreement and after termination or expiration
of this Agreement for any reason whatsoever the Receiving Party (as
defined in Clause 15.5 below) shall:
15.1.1 keep the Confidential Information (as defined in Clause 15.5
below) confidential and make every effort to prevent the use
or disclosure of Confidential Information;
15.1.2 not disclose the Confidential Information to any other Person
other than with the prior written consent of the Disclosing
Party or in accordance with this Agreement; and
15.1.3 not use the Confidential Information for any purpose other
than for the purposes of its own reporting requirements or the
performance of its obligations hereunder.
15.2. The Receiving Party may disclose the Confidential Information to its
directors, other officers, employees, lawyers and accountants and those
of its
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Affiliates (the "Recipient") to the extent that it is necessary for the
purposes of this Agreement and its own or their own reporting
requirements.
15.3. The Receiving Party shall ensure that each Recipient is made aware of
and complies with all the Receiving Party's obligations of
confidentiality hereunder as if the Recipient was a Party to this
Agreement.
15.4. The obligations contained in Clauses 15.1, 15.2 and 15.3 shall not
apply to any Confidential Information which:
15.4.1 at the date of this Agreement or at any time after the date of
this Agreement comes into the public domain other than through
breach of this Agreement by the Receiving Party or any
Recipient; or
15.4.2 can be shown by the Receiving Party to the reasonable
satisfaction of the Disclosing Party to have been known to the
Receiving Party prior to it being disclosed by the Disclosing
Party to the Receiving Party other than through breach of this
Agreement by the Receiving Party or any Recipient; or
15.4.3 is required to be disclosed by law, by a rule or regulation of
a stock exchange or by a governmental or regulatory authority.
15.5. For purposes of the above provisions of this Clause 15, "Confidential
Information" means all information disclosed (whether in writing,
verbally or by any other means and whether directly or indirectly) by
one of the Parties of the JVCO (each a "Disclosing Party") to any other
Party (the "Receiving Party") whether before or after the date of this
Agreement including, without limitation, information relating to the
Disclosing Party's operations, processes, plans or intentions, product
information, know-how, design rights, trade secrets, market
opportunities and business affairs.
15.6. If a Party is permitted to sell or offer its Shares to a third-party in
accordance with the terms of this Agreement, such Party may request
that the Board permit such disclosure of confidential information of
the JVCO as is reasonable for a third-party to evaluate the purchase of
the Shares, subject to the terms of a confidentiality agreement to be
entered into by the third-party. The Board shall respond favorably to
reasonable requests, but any disclosure shall be made by the JVCO on
the authority of the Board.
15.7. This Clause 15 survives termination of this Agreement and shall bind a
Party after it has ceased to be treated as a Party to this Agreement.
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16. MISCELLANEOUS
PUBLIC RELATION
16.1. Under no circumstances whatsoever will the JVCO be entitled to present
itself as an authorized representative of either Party. The JVCO will
address public relations issues reflective of its specific Business.
ASSIGNMENT AND SUBCONTRACTING
16.2. Except as expressly permitted herein, a Party may not assign or
transfer or purport to assign or transfer a right or obligation
hereunder without having first obtained the other Party's written
consent, which consent may be given or withheld in the absolute
discretion of the Party required to give such consent. Any purported
assignment or transfer not made in accordance with this Clause 16.2
shall be void. Notwithstanding the foregoing, each party shall have the
right to assign or transfer any or all parts of its rights and
obligations under this Agreement, without any prior consent of the
other party, provided that the assignment or transfer is done to the
benefit of other party, provided that the assignment or transfer is
done to the benefit of other company belonging to the same group, or to
any company which is formed as a result of a merger, amalgamation or
consolidation, provided that it is not a Direct Competitor.
16.3. Except as expressly permitted herein, a Party may not subcontract the
performance of any of its obligations hereunder.
WAIVER OF RIGHTS/COMPROMISE
16.4. The failure to exercise or delay in exercising a right or remedy
provided by this Agreement or by law does not constitute a waiver of
the right or remedy or a waiver of any other rights or remedies. No
single or partial exercise of any right or remedy provided by this
Agreement or by law prevents further exercise of the right or remedy or
the exercise of any other right or remedy.
16.5. Save as provided in this Agreement the rights and remedies contained in
this Agreement are cumulative and not exclusive of any rights or
remedies provided by law.
FURTHER ASSURANCES
16.6. Each Party shall exercise all voting rights and other powers of control
available to it in relation to the JVCO so as to cause (to the extent
possible) that at all times during the term of the Agreement the
provisions of this Agreement to be duly and promptly observed and given
full force and effect accordingly to its spirit and intention.
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16.7. If there is any conflict or inconsistency between the provisions of
this Agreement and the By-Laws/Articles of Association, this Agreement
shall prevail as between the Parties and they shall, whenever
necessary, exercise all voting and other rights and powers available to
them to procure the amendment of the By-Laws/Articles of Association to
the extent necessary to permit the JVCO and its affairs to be
administered as provided in this Agreement.
ENTIRE AGREEMENT
16.8. This Agreement (together with all agreements and documents referred to
in this Agreement including the Shareholder's Agreement) constitutes
the entire agreement, and supersedes any previous agreement or
understanding between the Parties relating to the subject matter of
this Agreement.
16.9. Each of the Parties acknowledges that it is not relying on any
statements, warranties or representations given or made by any of them
in relation to the subject matter hereof, save those expressly set out
in this Agreement (together with all agreements and documents referred
to in this Agreement), and that it shall have no rights or remedies
with respect to such subject matter other than under this Agreement
(together with all agreements and documents referred to in this
Agreement) save to the extent that they arise out of the fraud or
fraudulent misrepresentation of any Party.
16.10. The invalidity, illegality or unenforceability of a provision of this
Agreement does not affect or impair the continuation in force of the
remainder of this Agreement.
AMENDMENTS
16.11. A variation of this Agreement is valid only if it is in writing and
signed by or on behalf of both Parties.
NO PARTNERSHIP
16.12. No provision of this Agreement creates a partnership between the
Parties or any of them or (save as expressly provided in this
Agreement) makes a Party the agent of another Party for any purpose.
Subject to any express provisions of this Agreement, a Party has no
authority or power to bind, to contract in the name of, or to create a
liability for any other Party in any ay or for any purpose.
COSTS
16.13. Except as otherwise expressly provided in this Agreement each Party
shall pay it sown costs and expenses of and incidental to the
negotiation, preparation, execution and implementation by it of this
Agreement and of all other documents referred to in it. For the
avoidance of doubt, this Clause
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16.13 survives termination of this Agreement and shall bind a Party
after it has ceased to be or to be treated as a Party to this
Agreement.
COUNTERPARTS
16.14. This Agreement may be executed in any number of counterparts each of
which when executed and delivered shall be an original, but all the
counterparts together shall constitute one and the same document.
ANNOUNCEMENTS
16.15. Subject except as expressly contemplated in this Agreement or any other
agreement between the Parties, no Party shall, and each Party shall
ensure that no Affiliate of it shall, make or send a public
announcement, communication or circular concerning the transactions
referred to in this Agreement unless it has first obtained the other
Party's written consent (which consent shall not be unreasonably
withheld or delayed).
16.16. Clause 16.15 does not apply to a public announcement, communication or
circular if it is required by law, a regulation or the rules of a stock
exchange or any other regulatory authority.
16.17. For the avoidance of doubt, Clauses 16.15 and 16.16 survive the
termination of this Agreement and shall bind a Party after it has
ceased to be or to be treated as a Party to this Agreement.
BENEFIT OF THIS AGREEMENT
16.18. This Agreement shall be binding upon and inure to the benefit of each
Party hereto and its or any subsequent successors, permitted
transferees and permitted assigns.
ANCILLARY AGREEMENTS
16.19. The Parties agree that the agreed form Ancillary Agreements incorporate
by reference several provisions of this Agreement without setting them
out fully in the text of this Agreement. The Parties agree that, before
they are signed, the Ancillary Agreements shall include so far as
practicable the provisions of this Agreement as so incorporated by
reference in a manner that the JVCO will not need to record this
Agreement among its deeds.
17. NOTICES AND COMMUNICATION
17.1. All notices and other communications provided for hereunder shall,
unless otherwise stated herein, be given in writing (including where
sent by overnight mail, or facsimile or telex transmission or
delivered) to each Party at its address or facsimile or telex number
set out under its name on the execution pages of this Agreement or at
such other address as may be
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designated by such Party in a written notice to the other Party and
confirmed by registered mail. All such notices and communications will
be effective when received in the case of hand or overnight delivery or
registered mail or, in the case of notice by facsimile transmission
when telexed against receipt of answerback, or in the case of notice by
facsimile transmission when a satisfactory transmission receipt is
received by the sender and an acknowledgement of receipt is received by
the sender from the recipient.
If to Cremonini:
Cremonini S p.A.
Via Modena, 53
Castelvetro di Modena (Modena)
Fax: +39-059-754-899
Attn: Mr. Valentino Fabbian
Director, Head of Restaurant Division
With a copy to:
BBLP Pavia e Ansaldo et al.
460 Park Avenue
21st Floor
New York, New York 10022
Fax: 001-212-980-1453
+39-02-6338-2807
Attn: Gian Paolo Zini, Esq.
Simonetta Andrioli, Esq.
Gianluigi Esposito, Esq.
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If to Roadhouse:
Roadhouse Grill, Inc.,
2703-A Gateway Drive
33069 Pompano Beach
Florida USA
Fax: +1-954-957-2503
Attn: Ayman Sabi
President and CEO
If to the JVCO:
Roadhouse Grill Europe at the address to be
subsequently provided
With a copy to:
BBLP Pavia e Ansaldo
Via dell'Annunciata 7
20121 Milano (Italy)
Fax: +39-02-6338-2807
Attn: Gian Paolo Zini, Esq.
Simonetta Andrioli, Esq.
Gianluigi Esposito, Esq.
Failure to send coy of any notice to the counsels of the Parties shall
invalidate such notice.
18. GOVERNING LAW AND ARBITRATION
18.1. This Agreement is governed by, and shall be construed in accordance
with the laws of Italy.
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18.2. Any dispute arising between the parties in connection with the
validity, termination, interpretation or implementation of this
Agreement which cannot be resolved by amicable settlement shall be
submitted to the decision of a Panel of three (3) Arbitrators, which
shall decide pursuant to the Rules of Conciliation and Arbitration of
the International Chamber of Commerce.
18.3. The party wishing to submit to arbitration shall appoint its Arbitrator
and notify the other party of this appointment.
18.4. Within fifteen (15) days of receipt of this notice, the other party
shall appoint its Arbitrator and shall notify the first party of its
appointment.
18.5. Within fifteen (15) days of the appointment of the second Arbitrator,
the two Arbitrators so appointed shall agree, within the following
twenty (20) days, upon the appointment of a third Arbitrator.
18.6. if no agreement can be reached, the Arbitrator shall be appointed, upon
application made by the most diligent Party, according to the Rules of
the International Chamber of Commerce.
18.7. Similarly, if the party to whom the appointment of an Arbitrator has
been notified does not, in turn, appoint its Arbitrator, said
Arbitrator shall be appointed together with the third Arbitrator in
accordance with the Rules of the International Chamber of Commerce that
shall be applied for the substitution of any Arbitrator who dies or
resigns who will also provide for the substitution of any Arbitrator
who dies or resigns.
Arbitration shall be conducted in the English language and shall take
place in Milan, Italy.
[Signatures on following page]
31
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement in
counterparts on the first day and year above written.
CREMONINI S. P. A. ROADHOUSE GRILL, INC.
By: /s/ Valentino Fabbian By: /s/ Ayman Sabi
--------------------------------- --------------------------------
Name: Valentino Fabbian Name: Ayman Sabi
Title: Director, head of Restaurant Title: President and CEO
Division
Date: July 6, 2000 Date: July 6, 2000
32
