<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[x] Quarterly report pursuant to Section 13 or 15(d) of the Securities and
Exchange Act of 1934
For the quarterly period ended September 28, 1996
-------------------
or
[ ] Transition report pursuant to Section 13 or 15(d) of the Securities and
Exchange Act of 1934
For the transition period from to
----------- ---------
Commission File No. 0-11271
-------
WALL STREET DELI, INC.
(Exact name of registrant as specified in its Charter)
DELAWARE 63-0514240
(State of Incorporation) (IRS Employer I.D. No.)
400 Century Park South, Suite 116
Birmingham, Alabama 35226
(Address of principal executive offices)
(205) 822-3960
(Registrant's telephone number)
------------------------------
Indicate by check mark whether the registrant has (1) filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 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
--- ---
Indicate the number of shares outstanding of the registrant's class of
common stock, as of the latest practicable date.
Class Outstanding at November 5, 1996
- ------------------------------- -------------------------------
Common Stock, $.05 Par Value 3,411,743
<PAGE> 2
INDEX
<TABLE>
<CAPTION>
Page No.
--------
<S> <C> <C>
PART I: FINANCIAL INFORMATION
ITEM 1: Financial Statements . . . . . . . . . . . . . . . . . . . . . 1
Consolidated Balance Sheets . . . . . . . . . . . . . . . . 2
Consolidated Statements of Income . . . . . . . . . . . . . 4
Consolidated Statements of Cash Flows . . . . . . . . . . . 5
Notes to Consolidated Financial Statements . . . . . . . . . . . 6
ITEM 2: Management's Discussion and Analysis of Financial
Condition and Results of Operations . . . . . . . . . . . . . . 7
PART II: OTHER INFORMATION
ITEM 6: Exhibits and Reports on Form 8-K . . . . . . . . . . . . . . . 13
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
EXHIBITS:
Exhibit 10.10: Asset Purchase Agreement dated
October 27, 1996 relating to
Sale of Memphis Division . . . . . . . . . . . . . 15
Exhibit 11: Computation of Earnings
Per Common Share . . . . . . . . . . . . . . . . . 29
</TABLE>
<PAGE> 3
PART I: FINANCIAL INFORMATION
ITEM I: FINANCIAL STATEMENTS
The financial statements listed below are included on the following
pages of this Report on Form 10-Q:
Consolidated Balance Sheets at September 28, 1996 (unaudited)
and June 29, 1996.
Consolidated Statements of Income (unaudited) for the three
months ended September 28, 1996 and September 30, 1995.
Consolidated Statements of Cash Flows (unaudited) for the
three months ended September 28, 1996 and September 30, 1995.
Notes to Consolidated Financial Statements (unaudited).
1
<PAGE> 4
WALL STREET DELI, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
(Unaudited)
September 28, 1996 June 29, 1996
------------------ -------------
<S> <C> <C>
ASSETS
Current:
Cash and equivalents $ 935,498 $ 1,882,844
Accounts and notes receivable 1,332,025 1,636,230
Inventories (Note 3) 726,857 686,809
Prepaid expenses and other 335,813 278,732
Refundable income taxes 239,670 239,670
Deferred tax benefit 1,008,000 1,043,000
------------ ------------
Total current assets 4,577,863 5,767,285
------------ ------------
Equipment and improvements:
Equipment and fixtures 18,378,598 18,114,226
Leasehold improvements 15,328,739 14,672,885
------------ ------------
33,707,337 32,787,111
Less accumulated depreciation and
amortization
(17,070,260) (16,190,946)
------------ ------------
Net equipment and improvements 16,637,077 16,596,165
------------ ------------
Other:
Long-term portion of notes receivable 626,360 743,103
Cash surrender value of officers'
life insurance 625,611 607,341
Deferred tax benefit 1,895,000 1,955,000
------------ ------------
Total other assets 3,146,971 3,305,444
------------ ------------
$ 24,361,911 $ 25,668,894
============ ============
</TABLE>
See accompanying notes to consolidated financial statements (Unaudited).
2
<PAGE> 5
WALL STREET DELI, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
(Unaudited)
September 28, 1996 June 29, 1996
------------------ -------------
<S> <C> <C>
LIABILITIES AND STOCKHOLDERS'
EQUITY
Current liabilities:
Notes payable $ 1,329,628 $ 2,500,000
Accounts payable 1,116,264 1,718,621
Accruals 3,452,944 3,220,683
------------ --------
Total current liabilities 5,898,836 7,439,304
------------ ----------
Stockholders' equity:
Common stock, $.05 par value,
shares authorized 20,000,000; issued
3,411,743 and 3,411,043 170,587 170,552
Additional paid-in capital 10,771,833 10,766,896
Retained earnings 7,531,203 7,302,690
------------ ----------
18,473,623 18,240,138
Less treasury stock, at cost (10,548) (10,548)
------------ -----------
Total stockholders' equity 18,463,075 18,229,590
------------ -----------
$ 24,361,911 $ 25,668,894
============ ============
</TABLE>
See accompanying notes to consolidated financial statements (Unaudited).
3
<PAGE> 6
WALL STREET DELI, INC.
CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
<TABLE>
<CAPTION>
For the Three Months Ended
September 28, 1996 September 30, 1995
------------------ ------------------
<S> <C> <C>
Net sales $17,327,832 $17,548,919
Costs and expenses (income):
Costs of sales 15,432,961 15,991,786
Administrative and general expense 1,495,218 1,558,301
Interest expense - net 19,110 55,778
Income related to units
sold or closed -- (74,400)
----------- -----------
Total costs and expenses: 16,947,289 17,531,465
----------- -----------
Income before taxes on income 380,543 17,454
Taxes on income 152,200 --
----------- -----------
Net income $ 228,343 $ 17,454
=========== ===========
Earnings per share (Note 5) $ .07 $ .01
=========== ===========
Weighted average number of common and
common equivalent shares outstanding
(Note 5) 3,413,779 3,473,709
=========== ===========
</TABLE>
See accompanying notes to consolidated financial statements (Unaudited).
4
<PAGE> 7
WALL STREET DELI, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
For the Three Months Ended
September 28, 1996 September 30, 1995
------------------ ------------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 228,343 $ 17,454
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation 860,292 961,714
Gain on sale of equipment and improvements -- (74,400)
Deferred income taxes 95,000 --
Decrease (increase) in assets:
Accounts receivable 295,553 39,536
Inventories (40,048) (83,293)
Prepaid expenses and other (57,081) 705,450
Increase (decrease) in liabilities:
Accounts payable (602,357) (173,803)
Accruals 232,261 (278,703)
---------- ----------
Net cash provided by operating activities 1,011,963 1,113,955
---------- ----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Payments for purchase of equipment and improvements (920,226) (998,368)
Proceeds from sale of equipment and improvements -- 94,206
Payments received on notes receivable 108,047 109,206
Increase in cash surrender value of life insurance on officers lives 18,270 --
---------- ----------
Net cash used by investing activities (793,909) (794,956)
---------- ----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net payments under line of credit (1,170,372) --
Purchase of treasury stock -- (2,131)
Exercise of employee stock options 4,972 16,729
---------- ----------
Net cash (used) provided by financing activities (1,165,400) 14,598
---------- ----------
NET INCREASE (DECREASE) IN CASH FOR THE PERIOD (947,346) 333,597
CASH, beginning of period 1,882,844 921,616
---------- ----------
CASH, end of period $ 935,498 $1,255,213
========== ==========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid during the period for:
Interest $ 39,322 $ 69,185
Income taxes $ 26,000 $ 70,050
</TABLE>
See accompanying notes to consolidated financial statements (Unaudited).
5
<PAGE> 8
WALL STREET DELI, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. In the opinion of the Company, the accompanying unaudited consolidated
financial statements contain all adjustments (consisting of only
normal recurring accruals) necessary to present fairly the financial
position as of September 28, 1996 and the results of operations and
cash flows for the three month periods ended September 28, 1996 and
September 30, 1995. The preparation of financial statements in
conformity with generally accepted accounting principles requires
management to make estimates and assumptions that affect the reported
amounts of assets and liabilities and disclosure of contingent assets
and liabilities at the date of the financial statements. Estimates
also affect the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
2. The results of operations for the three month periods ended September
28, 1996 and September 30, 1995 are not necessarily indicative of the
results to be expected for the full year.
3. Inventories are valued at the lower of cost (first-in, first-out) or
market.
4. The Company assesses at each balance sheet date whether there has been
an impairment of Long-Lived Assets by determining whether projected
undiscounted future cash flow from operations for each store, as
defined in Statement of Financial Accounting Standards No. 121,
"Accounting for the Impairment of Long-Lived Assets and for Long-Lived
Assets to be Disposed Of," exceeds its net book value as of the
assessment date.
5. Earnings per common share and common share equivalent have been
computed based upon the weighted average number of shares outstanding
during the respective periods. Equivalent shares are those issuable
upon assumed exercise of stock options granted, net of shares which
could have been purchased from the proceeds based on the average
market price. The computation of earnings per common share assuming
full dilution results in less than 3% dilution during the period.
----------------------------
6
<PAGE> 9
ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The following is management's discussion and analysis of certain
significant factors that have affected the Company's financial condition and
earnings during the periods included in the accompanying consolidated balance
sheets and statements of income.
RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated, the
percentages of net sales represented by certain items in the Company's
consolidated statements of income.
<TABLE>
<CAPTION>
Three months ended
------------------
September 28, 1996 September 30, 1995
------------------ ------------------
<S> <C> <C>
Net sales 100.0% 100.0%
Cost of sales 89.1 91.1
----- -----
Gross profit 10.9 8.9
Administrative and general 8.6 8.9
----- -----
Operating income 2.3 .0
Other income (expense),net (.1) .1
----- -----
Income before taxes on income 2.2 .1
Taxes on income .9 --
----- -----
Net income 1.3% .1%
===== =====
NET SALES
</TABLE>
Net sales decreased during the quarter ended September 28, 1996 by
$221,087 or 1.3% from the corresponding three months last year. Same store
sales decreased 4.9% from the first quarter last year. One Wall Street Deli
flagship unit was opened and one R.C. Cooper's unit was converted to a Wall
Street Deli flagship store during this first quarter of fiscal 1997.
Significant components of the Company's net sales and the percent of
total sales for the three months ended September 28, 1996 and September 30,
1995 are presented in the following schedule:
<TABLE>
<CAPTION>
September 28, 1996 September 30, 1995
------------------ -------------------
Net Sales % of Total Net Sales % of Total
----------- ---------- ------------ ----------
<S> <C> <C> <C> <C>
Wall Street Deli $15,704,857 90.6% $14,505,200 82.7%
R.C. Coopers 882,795 5.1% 2,059,433 11.7%
Catering 740,180 4.3% 984,286 5.6%
----------- ----- ----------- -----
Total $17,327,832 100.0% $17,548,919 100.0%
=========== ===== =========== =====
</TABLE>
7
<PAGE> 10
The Company expects the Wall Street Deli component of its sales to
continue growing, both in absolute terms and as a percentage of the Company's
total sales. Management plans to open only Wall Street Delis in the immediate
future and to continue either disposing of the R.C. Cooper units or converting
them to Wall Street Delis. The Company presently separates its sales records
for the Wall Street Deli concepts into two sub-concepts: "flagship" and
"other." The Company's average sales per unit by concept and the same store
sales comparisons for the three months ended September 28, 1996 and September
30, 1995 are as follows:
<TABLE>
<CAPTION>
Same Store Sales
Average Sales Per Unit* Change from Prior Year
---------------------- ---------------------
1996 1995 1996 1995
-------- -------- ------ ------
<S> <C> <C> <C> <C>
Wall Street Deli Flagships $156,924 $161,903 (5.4)% (7.5)%
Wall Street Deli Other 85,221 97,361 (2.9)% (8.2)%
R.C. Coopers 63,057 62,151 (2.0)% (2.2)%
All Units $133,026 $130,833 (4.9)% (6.6)%
</TABLE>
* Average sales per unit are computed retroactively on the basis of current
grouping, reflecting in some instances conversion of R.C. Cooper's units to
Wall Street Deli units.
Overall same store sales decreased 4.9% for the quarter, versus a 6.6%
decrease for the first quarter last year. Management believes both economic
uncertainty and aggressive expansion and marketing by competitors had a
negative impact on same store sales.
The Company's business, particularly the sales component, is dependent
on general economic conditions. Local and national economic uncertainties, as
well as actual downturns, have in the past adversely affected sales and/or
profitability, and should be expected to have similar effects in the future.
COST OF SALES
Cost of sales as a percentage of net sales decreased to 89.1% during
the three months ended September 28, 1996 from 91.1% in the corresponding three
months in the previous year.
8
<PAGE> 11
Cost of sales consists of the following significant components:
<TABLE>
<CAPTION>
For the Three Months Ended
September 28, 1996 September 30, 1995
------------------ ------------------
Amount % of Sales Amount % of Sales % of Dollar Change
<S> <C> <C> <C> <C> <C>
Food/Paper $6,326,143 36.5% $6,416,463 36.6% (1.4)
Commissary Expenses
-- -- 315,527 1.8% (100.0)
--------- ---- ---------- ----
Food/Paper &
Commissary Expenses 6,326,143 36.5% 6,731,990 38.4% (6.0)
Labor 3,975,811 22.9% 4,186,545 23.8% (5.0)
Store Expenses 5,131,007 29.6% 5,073,251 28.9% 1.1
--------- ---- ---------- ----
$15,432,961 89.1% $15,991,786 91.1% (3.5)
=========== ==== =========== ==== =====
</TABLE>
The Company completed the process of phasing out its commissaries
during fiscal 1996 and a single source vendor system was fully implemented. The
decrease in food/paper and commissary expenses of 1.9 percentage points is the
result of these changes. Labor costs decreased .9 percentage points. Shortly
before the end of fiscal 1995 management changed the compensation structure for
store managers by raising the base pay and lowering certain incentive pay
plans. This has made the Company more competitive in hiring managers and these
managers have helped reduce labor costs from the same quarter last year. As
discussed below under the caption "Impact of Inflation," the federal minimum
wage increase will affect the wages paid certain of the Company's employees
subsequent to October 1, 1996. Store expenses as a percentage of sales
increased .7 percentage points from the same quarter last year. This increase
was due in part to the fact that many store expenses are fixed, and the
percentages are thus adversely affected by a decrease in sales.
ADMINISTRATIVE AND GENERAL EXPENSES
Administrative and general expenses for the three month period ended
September 28, 1996 decreased to $1,495,218, a decrease of $63,083 or 4% less
than the corresponding three months last year. This decrease was due primarily
to a decrease in divisional administrative and general expenses but offset by a
small increase in catering sales and office expenses.
9
<PAGE> 12
FACILITIES CLOSING COSTS
During the fourth quarter of 1995, the Company adopted a plan designed
to dispose of its remaining commissary locations and eleven non-performing
stores. In connection therewith, a provision of $1,147,950 was recorded related
to the anticipated lease cancellation payments and severance payments to
employees.
As of June 29, 1996, the Company had closed all of the commissary
locations and had either closed or sold five of the eleven non-performing
stores. Of the remaining six stores, management closed one store in October
1996, has been negotiating lease cancellation terms on three of the properties,
and has entered into negotiations to sell the remaining two stores. Payments of
$90,864 and $201,648 were charged against this provision in the three months
ended September 28, 1996 and September 30, 1995, respectively. It is presently
planned that all the remaining stores will either be closed or sold during
fiscal 1997.
IMPAIRMENT OF LONG-LIVED ASSETS
In March 1995, the Financial Accounting Standards Board issued SFAS
No. 121, "Accounting for the Impairment of Long-Lived Assets and for Long-Lived
Assets to be Disposed Of," which requires the evaluation of assets based on
estimated future cash flows. The Company elected to adopt SFAS No. 121 in the
fourth quarter of 1996.
Adoption of SFAS No. 121 required that the Company group assets at a
lower level for evaluation and measurement of impairment than under its
previous accounting policy and resulted in noncash charge of $4,712,562 in the
fourth quarter of 1996. As a result of the adoption of SFAS No. 121, the
Company now evaluates and measures for impairment on an individual store basis.
The charge in 1996 reduced the carrying amount of impaired assets associated
with individual restaurant properties to their estimated fair market values
based on the Company's experience in disposing of similar under-performing
properties.
Depreciation and amortization expense for the first quarter of 1997
decreased by approximately $150,000 as a result of the reduced carrying value
of impaired assets. A decrease of approximately $600,000 is expected for fiscal
1997 depreciation and amortization expense.
SUBSEQUENT EVENT - SALE OF MEMPHIS DIVISION
The Company announced in September an agreement to sell the operating
assets of its Memphis division to a newly formed company. The transaction was
closed as of October 27, 1996, subsequent to the close of the first quarter.
The assets included in the sale were ten sandwich shops in Memphis, three
operating under the Wall Street Deli trade name, seven operating as R.C.
Cooper's Delis, and the Memphis catering operation now conducted under the
trade name Executive Chef Catering. The sale price totaled approximately
$1,017,000, which was payable $810,305 in cash and short term notes payable,
plus 25,000 shares of Wall Street Deli stock, with the balance of $68,739
payable in two years, with interest at the prime rate, paid quarterly. The book
value of the assets sold was approximately $860,000.
10
<PAGE> 13
The purchasers of the Memphis Division are Judy M. Gupton, the present
manager of the Memphis division, and Robert G. Barrow, president and chief
executive officer of the Company. Ms. Gupton will serve as president and chief
executive officer of the purchasing company. Mr. Barrow is an investor in the
purchasing company and will continue to serve as president and chief executive
officer of Wall Street Deli, Inc. In fiscal 1996, the ten Memphis sandwich
shops had average annual sales of approximately $178,000 each, and the catering
operation had sales of approximately $2.9 million. Memphis Division operating
income was approximately $268,000 in fiscal 1996. The Board's decision to sell
the Memphis operation was based on a number of considerations including the
small size of the existing store units and the lack of compatibility of the
catering business with the Company's recently installed store-level management
information system and transition to a single source vendor system for food and
restaurant supplies. Prior to this time, the catering business operated as part
of the Company's commissary in Memphis. In fiscal 1996, Wall Street Deli closed
all of its regional commissaries and transitioned to a single source vendor
system. By divesting this operation, the Company believes it will be able to
further streamline its operations and focus on its primary restaurant concept,
Wall Street Deli.
TAXES ON INCOME
The effective tax rate for the first quarter ended September 28, 1996
was 40 per cent.
INTEREST EXPENSE, NET
Interest expense, net, during the quarter ended September 28, 1996
decreased $36,668 or 65.7% from the corresponding three months in the previous
year. Interest expense for the quarter ended September 28, 1996 was $33,149
compared to interest expense of $55,778 for the three month period ended
September 30, 1995.
The Company has a $7,500,000 unsecured bank line of credit, bearing
interest at the banks cost of funds plus 175 basis points, which was 7.0% at
September 28, 1996. Borrowings under this line were approximately $1,329,628
and $3,150,000 for the three months ended September 28, 1996 and September 30,
1995, respectively.
IMPACT OF INFLATION
Many of the Company's employees are paid hourly rates related to the
federal minimum wage. Accordingly, inflation-related annual increases in the
minimum wage have historically increased the Company's labor costs. In August
1996, legislation was enacted to increase the minimum wage from $4.25 per hour
to $4.75 on October 1, 1996, and further to $5.15 effective September 1, 1997.
Approximately 30 employees were affected by the October 1 increase. The Company
presently has approximately 160 employees who are paid less than $5.15 per
hour.
Construction costs have also increased to developers who lease space
to the Company. They, in turn, have and may continue to increase rents for
Company restaurants. In addition, most of the leases for Company restaurants
contain rental escalation clauses based upon the cost increases incurred by
lessors. In most cases, the Company has been able to increase prices
sufficiently to match increases in its operating costs, but there is no
assurance that it will be able to do so in the future.
11
<PAGE> 14
LIQUIDITY AND CAPITAL RESOURCES
The Company's ability to obtain the cash required for the conduct of
its business depends upon cash flow from operations and, to a lesser extent,
bank borrowings. In general, cash flow from operations and periodic bank
borrowings have been sufficient to finance the expansion of the Company's
business. The Company does not have significant receivables or inventory and it
receives trade credit in purchasing food and supplies. Since funds are
available from cash sales, but are not required immediately to pay for food and
supplies or to finance receivables or inventory, such funds may be used for
non-current capital expenditures. In the process of refining the Company's
production units, stores not meeting the Company's performance criteria are
closed and the furniture and equipment sold. The terms of some such sales
require the Company to take back notes, which are contained in the notes
receivable, for all or a portion of the sale price.
The Company's principal capital requirement is for new equipment and
leasehold improvements for new and existing restaurants. The Company currently
has in place a line of credit which provides for borrowings up to $7,500,000
from AmSouth Bank of Alabama pursuant to the terms of a Credit Agreement dated
June 19, 1996 (the "Credit Agreement"). The Credit Agreement contains certain
covenants that require, among other things, the Company maintain a certain
tangible net worth, to limit the annual capital expenditures of the Company and
certain other covenants. The Company is in compliance with these covenants. It
is presently anticipated that the Company's capital expenditures for fiscal
1997 will be approximately $3,000,000. As mentioned in the discussion under
"Interest Expense, Net," the borrowings under the Credit Agreement were reduced
to $1,329,628 for the three months ended September 28, 1996.
The Company expects its future capital needs will be met primarily by
internally generated funds and supplemented, as needed, by additional bank
borrowings. The Company's present plans call for opening six to eight new
flagship Wall Street Deli units during fiscal 1997. Capital expenditures for
the three month period ended September 28, 1996 totaled $920,266, compared to
$977,344 for the corresponding three months of the prior year. Cash generated
from operations for the three month period ended September 28, 1996 totalled
$1,011,963 compared to $1,113,955 for the corresponding three months of the
prior year.
----------------------
12
<PAGE> 15
PART II: OTHER INFORMATION
ITEM 6: EXHIBITS AND REPORTS ON FORM 8-K
<TABLE>
<S> <C> <C>
(a) Exhibits
Exhibit 10.10 - Asset Purchase Agreement relating to sale of
Memphis Division . . . . . . . . . . . . . . . . . . . . . . . . 15
Exhibit 11 - Computation of Earnings Per Common Share . . . . . . 29
Exhibit 27 - Financial Data Schedule (for SEC use only) . . . . .
(b) Reports on Form 8-K:
There were no reports on Form 8-K filed during the quarter
ended September 28, 1996.
</TABLE>
13
<PAGE> 16
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
DATE: WALL STREET DELI, INC.
November 8, 1996 /s/ Robert G. Barrow
-------------------------------------
ROBERT G. BARROW
President and Chief Executive Officer
November 8, 1996 /s/ Arnold McGruder
-------------------------------------
ARNOLD MCGRUDER
Treasurer
(Principal Financial Officer)
14
<PAGE> 1
EXHIBIT (10.10)
ASSET PURCHASE AGREEMENT
by and among
WALL STREET DELI, INC.
DOWNTOWN FOOD SERVICE, INC.
EXECUTIVE CHEF CATERING, LLC
ROBERT G. BARROW
and
JUDY GUPTON
15
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
SECTION I GLOSSARY OF TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION II PURCHASE AND SALE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Agreement to Purchase and Sell; Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Amount of Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 Assumed Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.4 Payment of Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.5 Option by Barrow and/or Gupton for Satisfaction of Note with Wall Street Deli, Inc. Stock . . . . . 5
2.6 Allocations of Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.7 Closing Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION III CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.1 Acts of Seller at Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.2 Acts of Buyer at Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.3 Other Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION IV REPRESENTATIONS AND WARRANTIES OF SELLER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.1 Organization, Standing and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.2 Title to Purchased Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.3 Violations of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.4 Binding Effect; No Violation; Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.5 Purchased Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION V REPRESENTATIONS AND WARRANTIES OF BUYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.1 Organization, Standing and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.2 Binding Effect; No Violation, Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.3 Third Party Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION VI CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.1 Conditions to the Obligations of Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.2 Conditions to the Obligations of Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION VII INDEMNITIES; SURVIVAL OF REPRESENTATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.1 Indemnity by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.2 Indemnity by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7.3 Survival of Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION VIII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
8.1 Expenses, Attorney Fees, Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
8.2 Law Governing; Interpretation; Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8.3 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8.4 Modifications; Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8.5 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
</TABLE>
16 ()
<PAGE> 3
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated as of the 27th day of October, 1996,
by and among the following
Wall Street Deli, Inc. ("WSD"), a Delaware corporation, with offices
at 5683 S. Rex Road, Memphis, Tennessee 38119; and
Downtown Food Service, Inc. ("DFS"), a Tennessee corporation, with
offices at 5683 S. Rex Road, Memphis, Tennessee 38119 (WSD and DFS
being collectively referred to herein as "Seller"); and
Executive Chef Catering, LLC ("ECC") , a Tennessee limited liability
company, with offices at 2310 Airport Interchange, Memphis, Tennessee
38132; and
Judy Gupton ("Gupton"), an individual, whose address is 1912
Grovecrest Road, Germantown, Tennessee 38139; and
Robert G. Barrow ("Barrow"), an individual, whose address is 8306
Dogwood Road, Germantown, Tennessee 38139 (ECC, Gupton and Barrow
sometimes being collectively referred to herein as "Buyer").
W I T N E S S E T H:
WHEREAS, Seller is engaged in the business of owning and operating a
chain of delicatessen-style sandwich shops in 18 cities throughout the United
States.
WHEREAS, Seller owns ten sandwich shops in Memphis, Tennessee, with
three operating under the Wall Street Deli trade name and seven operating under
as R. C. Cooper's Deli's. The Seller is also engaged in the catering business
in the Memphis, Tennessee area (herein "Seller's Memphis Division").
WHEREAS, the Seller has elected to sell the Memphis Division due to
the small size of the existing shops and the lack of compatibility of the
catering business with Seller's recently installed store-level management
information system and transition to a single source vendor for food and
restaurant supplies.
WHEREAS, Seller desires to sell, and Buyer desires to purchase, the
Purchased Assets (as hereinafter defined) and the ongoing business represented
thereby of Seller relating to the Seller's Memphis Division.
NOW, THEREFORE, the parties hereto, intending to be legally bound,
agree as follows:
SECTION I GLOSSARY OF TERMS
As used in this Agreement, the following terms shall have the
following meanings:
1. "Affiliate"--(1) any Person that directly or indirectly
controls or is controlled by or is under common control with the specified
Person; (2) any Person that is an officer of, partner in or trustee of, or
serves in a similar capacity with respect to, the specified Person or of which
the specified Person is an officer, partner or trustee, or with respect to
which the specified Person serves in a similar capacity; (3) any member of the
family of the specified Person; and (4) any Person that, directly or
indirectly, is the beneficial owner of five percent (5%) or more of any class
of equity securities of the specified Person or of which the specified Person
is directly or indirectly the owner of five percent (5%) or more of any class
of equity securities.
17 (1)
<PAGE> 4
2. "Agreement"--this Asset Purchase Agreement, as amended from
time to time, together with all Exhibits and Schedules provided for herein.
3. "Assumed Obligations"--those obligations of Seller identified
in Section 2.3(a) of this Agreement.
4. "Benefit Plan"--any profit sharing, deferred compensation,
bonus, or other incentive compensation plan, program, practice, arrangement or
agreement, including without limitation any thereof providing stock options,
stock appreciation rights or stock purchase rights for any Person as a
consequence of his/her employment or past employment by the Seller or any
Affiliate; any medical, hospitalization, life, vision, dental, disability or
other insurance plan (whether partially or fully self-insured or partially or
fully insured through a third-party insurance provider); any "retirement,"
"pension," or "welfare" benefit plans (as defined in Section 3(1) and 3(2) of
the Employee Retirement Income Security Act of 1974, as amended ["ERISA"]); and
any of the foregoing, whether group or individual, whether single or
multi-employer, and whether mandated by law or otherwise.
5. "Closing"--the consummation of the transactions provided for
in this Agreement.
6. "Closing Date"-- the Closing of this Agreement shall be held
on a date and at a time and place acceptable to the parties hereto, but no
later than as of October 27, 1996, unless the parties all agree to a later
date.
7. "Excluded Assets"-- with respect to the Memphis Division (1)
all Benefit Plans maintained by Seller; (2) any contracts of employment and
other agreements entered into by Seller with any Person listed on SCHEDULE 1.7;
(3) Seller's rights arising out of this Agreement; and (4) all other assets,
rights and properties of Seller identified on SCHEDULE 1.7 hereto.
8. "Leased Premises"--the Deli Stores locations and the Catering
locations identified on SCHEDULE 1.8 hereto.
9. "Material Contracts"-- as defined in Section 4.5(b).
10. "Person"--any individual, partnership, joint venture,
corporation, trust or other entity.
11. "Purchase Price"--as defined in Section II of this Agreement.
12. "Purchased Assets"--all of the assets, properties, goodwill
and rights of the Seller (as a going concern) relating to, benefitting, or
held, used or intended for use in, the Seller's Memphis Division of every
nature, kind and description, tangible and intangible, real, personal or mixed,
wheresoever located, whether or not reflected on the books and records of
Seller, excluding the Excluded Assets, but including, but not limited to, all
of the following:
(i) Real Property-- those leasehold improvements listed
on SCHEDULE 4.5(e).
(ii) Tangible Personal Property--all tools, kitchen
utensils, steam tables, ovens, fixtures, furniture, furnishings, machinery,
equipment, supplies and other tangible personal property owned by Seller on the
date of this Agreement and on the Closing Date with respect to the Memphis
Division as detailed on SCHEDULE 1.12(ii), except as disposed of in the
ordinary course of business.
(iii) Intangibles-- all trademarks, service marks, trade
names and slogans related to the name "Executive Chef Catering", the rights to
use the names "Wall Street Deli" and "R.C. Cooper's" solely in Shelby County,
Tennessee, and goodwill, technical information and know-how, customer lists,
licenses and other non-tangible rights or properties owned and used, or
intended to be used, in connection with, or otherwise benefitting, the conduct
of Seller's Memphis Division and to the extent transferrable, the right and
benefit of Seller to state tax accounts ratings reflecting employer experience
and wage tables paid to the Closing Date in any state, but excluding the
Excluded Assets.
(iv) Records--all books and records of Seller relating to
Seller's Memphis Division, or to Persons employed in respect thereto, or
relating to any of the Purchased Assets or Assumed Obligations, and including,
without limitation, all purchase orders, invoices, items of payment,
correspondence, internal memoranda, forecasts, price lists, sales records,
18 (2)
<PAGE> 5
personnel records, customer lists, (excluding any stock ledgers, minute books
or similar documents not material to the operations of the Seller) and copies
of financial records and other written or printed materials relating to the
operation of Seller's Memphis Division, customer accounts, warehousing costs
and the cost of operations.
(v) Contract Rights--all rights of Seller arising under
or pursuant to any of the Material Contracts (hereinafter defined) as
identified on Schedule 4.5(b). For the purposes hereof, Material Contracts
include: (1) any leases in which Seller is the lessee of office, warehouse and
retail store premises or tangible personal property with respect to Seller's
Memphis Division ("Lease Contracts"); or (2) any maintenance, supply,
servicing, security, or any other agreements or contracts under which Seller is
entitled to any rights with respect to any of the Purchased Assets or Assumed
Obligations relating to Seller's Memphis Division, including warranties
benefitting Seller ("General Contracts"); or (3) any purchase orders issued by
Seller for the purchase by it of goods or services, other than those goods or
services delivered or provided to Seller prior to Closing, in the ordinary
course of Seller's Memphis Division and in amounts consistent with the existing
and prospective level of business conducted by Seller with respect to the
Memphis Division ("Purchase Orders").
(vi) Prepayments--any and all prepaid obligations and
expenses, utility deposits, rebates, and other items of property of a similar
nature benefitting Seller and reflected on the October 27, 1996 Balance Sheet,
excluding any prepaid insurance which Seller shall terminate at the Closing
(any refund relating thereto being treated as cash or a cash equivalent and
payable to ECC, but only to the extent reflected on the October 27, 1996
Balance Sheet) or prepaid items the benefits of which are fully received by
Seller prior to the Closing Date to the extent so received by Seller.
(vii) Inventory--all goods and merchandise held by Seller
for sale in the ordinary conduct of Seller's Memphis Division, including but
not limited to packaging materials relating thereto. Such Inventory shall not
exceed a ninety day supply.
(viii) Current Assets--all cash on hand, stipulated to be
One Hundred Fifty Thousand Dollars ($150,000) at the Closing Date, and the
accounts receivable held by the Seller relating to sales by Seller's Memphis
Division at the Closing Date less a twelve and one-half percent (12 1/2%)
allowance for uncollectible accounts. Additionally, the Seller acknowledges
that it is holding advance payments on future events which will be performed by
ECC after the Closing Date as shown on SCHEDULE 1.12(viii). The total advance
payments will be remitted to the Buyer at Closing in addition to the cash on
hand.
13. "October 27, 1996 Balance Sheet"--The balance sheet of the
Seller's Memphis Division for the period ending as of October 27, 1996 attached
on SCHEDULE 2.6.
SECTION II PURCHASE AND SALE
1. Agreement to Purchase and Sell; Elections. In reliance on the
representations, warranties, agreements and covenants contained herein or made
hereunder, and on the terms and subject to the conditions of this Agreement,
Seller agrees that at the Closing, effective as of the Closing Date, it will
sell, convey, transfer, assign and deliver to Buyer all of the Purchased Assets
for the Purchase Price herein provided; and Buyer agrees that at the Closing,
effective as of the Closing Date, it will purchase the Purchased Assets for the
Purchase Price herein provided. Good, indefeasible and marketable title to the
Purchased Assets will be conveyed to Buyer at Closing (provided, as to
Intangibles, Seller shall warrant only ownership, and that the same are valid
and not in default), effective as of the Closing Date, free and clear of all
security interests, liens, charges, claims, restrictions and other burdens and
encumbrances of every nature ("Liens"), except for the Assumed Obligations and
Liens described on SCHEDULE 2.1 attached hereto ("Accepted Liens"). Barrow and
Gupton shall purchase those Purchased Assets specifically set forth and
described on SCHEDULE 2.6; ECC shall purchase the remaining Purchased Assets
and shall assume all Assumed Obligations and Liens described on SCHEDULE 2.1.
2. Amount of Purchase Price. In full consideration of and payment
for the Purchased Assets, ECC, Barrow and Gupton will (i) pay, perform and
comply with, as and when due, all of the Assumed Obligations undertaken herein
by ECC to be paid, performed and complied with following the Closing Date, and
(ii) collectively, pay to Seller a Purchase Price which is equal to the sum of
One Million Seventeen Thousand Seven Hundred Ninety Four Dollars ($1,017,794).
19 (3)
<PAGE> 6
3. Assumed Obligations. Subject to the provisions of this
Agreement, and except as provided in Section 2.3(b) of this Agreement:
(a) Inclusions. ECC shall assume as of the Closing Date,
and agree to thereafter pay, perform or discharge when due all of the
indebtedness, liabilities and obligations of Seller solely to the extent
described immediately below (the "Assumed Obligations"), namely:
(i) Liabilities. Liabilities or any other type of
obligation which are specifically listed on SCHEDULE 2.3(a).
(ii) Material Contracts. Any obligations, solely
to the extent that they accrue or are applicable to a period of time after the
Closing Date, pursuant to the terms and provisions of any Material Contract
(defined in Section 4.5(b)).
(iii) Leases. ECC shall assume all Lease Contract
obligations of Seller. Prior to Closing, Seller and Buyer shall obtain consents
from the respective Lessors in each Lease Contract for the assignment of each
Lease Contract to Buyer, which consents shall release Seller from all further
obligations under the applicable Lease Contract. If a particular release cannot
be obtained, Barrow and Gupton shall personally agree to indemnify Seller for
any claim made by Lessor against Seller, pursuant to a Lease Indemnity
Agreement, the form of which is attached hereto as SCHEDULE 2.3(a)(iii).
(b) Exclusions. Notwithstanding any provision to the
contrary set forth in Section 2.3(a) of this Agreement, or elsewhere in this
Agreement, Seller acknowledges and agrees that ECC will not be obligated, and
does not agree, to assume, pay or discharge any obligations not specifically
assumed by ECC pursuant to Section 2.3(a) of this Agreement, including without
limitation any of the following described debts, liabilities or obligations of
Seller or its Affiliates, all of which shall be promptly paid, satisfied,
performed, disposed or discharged when due by Seller:
(i) Any federal and state income taxes, sales
taxes, gross receipts taxes or other taxes based on or measured by the Purchase
Price or the operating profits of Seller for any period, or imposed by reason
of the sale and transfer by Seller of the Purchased Assets;
(ii) Any obligations which conflict with or are
contrary to the representations and warranties of Seller set forth in this
Agreement, or which are covered by Seller's indemnity provided for in Section
VII of this Agreement;
(iii) Any fiduciary or other obligations at any
time existing in respect to any Benefit Plans or other obligations for
benefits, compensation, severance or otherwise relating to Seller's employees
accruing prior to the Closing Date, including without limitation obligations
arising out of the Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA") relating to employees terminated by Seller prior to the Closing Date;
(iv) Any environmental liability arising or
accruing prior to the Closing Date; and
(v) Any undisclosed liability, indebtedness or
obligation existing in respect to any Material Contract which, though
comprising a part of the Assumed Obligations pursuant to Section 2.3(a) of this
Agreement, is not revealed in the Material Contracts or the Schedules to this
Agreement or otherwise disclosed with specificity in writing to ECC, including,
but not limited to any worker's compensation claim, general liability claim or
other claim or liability which arises or accrues prior to the Closing Date.
4. Payment of Purchase Price. On the Closing Date, Buyer shall
pay to Seller a sum equal to the Purchase Price as follows:
(a) Closing Payment by ECC. On the Closing Date, ECC
shall pay to Seller in United States Dollars or by certified or bank check or
wire transfer a sum that shall be equal to Six Hundred Thousand Dollars
($600,000).
(b) Deferred Payment by ECC. On the Closing Date, ECC
shall execute and deliver to Seller a non-negotiable Promissory Note payable to
the order of Seller in a principal amount equal to the accounts receivable
owned by Seller in the amount of Two Hundred Ten Thousand Three Hundred Five
Dollars ($210,305) payable in full in ninety (90) days
20 (4)
<PAGE> 7
after the Closing Date. See EXHIBIT A attached.
(c) Deferred Payment by Gupton. On the Closing Date,
Gupton shall execute and deliver to Seller a Promissory Note payable to the
order of Seller in a principal amount equal to Twenty Thousand Seven Hundred
Forty Nine Dollars ($20,749), as adjusted as Closing, and bearing interest at
the rate of the prime rate of interest quoted by The Wall Street Journal per
annum. Interest only shall be payable at the beginning of each calendar quarter
after the Closing Date with principal being paid in full within twenty four
months after the Closing Date. See EXHIBIT B attached.
(d) Closing Payment by Barrow. On the Closing Date,
Barrow shall remit to Seller 25,000 shares of Wall Street Deli, Inc. common
stock. The value of the stock received by Seller shall be the average of the
bid/ask price for Wall Street Deli, Inc. common stock on NASDAQ at the close of
business on the day which occurs 72 hours after the Seller's next quarterly
earnings release, such price being $5.55 per share as calculated in SCHEDULE
2.4(d) attached hereto.
(e) Deferred Payment by Barrow. On the Closing Date,
Barrow shall execute and deliver to Seller a Promissory Note payable to the
order of Seller in a principal amount equal to remainder of the Purchase Price,
Forty Seven Thousand Nine Hundred Ninety Dollars ($47,990), and bearing
interest at the rate of the prime rate of interest quoted by The Wall Street
Journal per annum. Interest only shall be payable at the beginning of each
calendar quarter after the Closing Date with principal being paid in full
within twenty four months after the Closing Date. See EXHIBIT C attached.
5. Option by Barrow and/or Gupton for Satisfaction of Note with
Wall Street Deli, Inc. Stock. If permitted by applicable federal and state
securities laws, Barrow and/or Gupton shall have the option of satisfying all
or part of the obligations set forth in Sections 2.4(e) and 2.4(c) of this
Agreement with Wall Street Deli, Inc. stock in lieu of cash consideration
payable under the notes. The number of shares to be delivered by Barrow and/or
Gupton in lieu of cash consideration shall be equal to (a) the amount of the
note balance being paid divided by (b) the average of the bid/ask price for
Wall Street Deli, Inc. common stock on NASDAQ for the day such option is
exercised.
6. Allocations of Purchase Price. The Buyer and Seller agree that
the Purchase Price and the applicable Buyer shall be allocated in accordance
with Schedule 2.6. The parties hereto agree that they will not take a position
inconsistent with this Section for Federal income tax purposes.
7. Closing Costs.
(i) Personal Property--Seller will pay for Seller's
attorneys' fee; ECC, Barrow and Gupton will pay for any recording fees, lien
searches or other expenses.
(ii) Other Costs--Each of the parties will be responsible
for their own expenses, including attorney's fees.
SECTION III CLOSING
1. Acts of Seller at Closing. At the Closing, Seller shall
execute and/or deliver, or cause to be executed and/or delivered, the
following:
(a) Transfer Documents. Seller will execute, acknowledge
and deliver to Buyer such bills of sale, assignments of leases and trademarks,
title certificates, and other documents of transfer which are reasonably
necessary or desirable in order to effect the transfer to Buyer of the
Purchased Assets, as provided herein.
(b) Third Party Consents. Except to the extent waived in
writing by Buyer, Seller will deliver, or cause to be delivered, to Buyer (i)
such written consents to the assignment of Seller's interest in Lease Contracts
and any other Material Contracts to Buyer as are required by the terms of such
Lease Contracts or Material Contracts, (ii) the assignment of Seller's interest
in Material Contracts to Buyer as are required by the terms of such Material
Contracts, and (iii) Seller will use its best efforts to procure the consent of
customers to the assignment of Material Contracts, together with a release of
Seller from any obligations or liabilities therewith.
21 (5)
<PAGE> 8
(c) Records. Seller will deliver to Buyer Records related
to the Seller's Memphis Division.
(d) Seller's Certificate: Seller shall execute and
deliver to Buyer, for the benefit of Buyer, a certificate dated the Closing
Date, signed by Seller and to the effect that the representations and
warranties of Seller contained in this Agreement are true and correct in all
material respects as if made as of the Closing Date and all undertakings of
Seller to be performed, satisfied or observed on its part prior to the Closing
Date have been performed, satisfied or observed in all material respects.
(e) Authorizations. Seller shall cause to be delivered to
Buyer certified copies of resolutions adopted by the Board of Directors of
Seller authorizing the making, execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby; and naming the Person or
Persons authorized to act on behalf of Seller with respect hereto.
(f) Access to Equipment and Premises. Seller shall
deliver to ECC all keys or other means of access existing in respect to
Purchased Assets, including the properties (including all leaseholds) of Seller
comprising any part of the Purchased Assets.
(g) Schedules. Seller shall deliver to Buyer information
and materials required in order that the Schedules hereto and all information,
materials or documentation given to Buyer relating to the Schedules shall, as
of the Closing Date, be true, accurate and complete in all material respects.
(h) Legal Opinion. Seller's counsel shall provide Buyer a
legal opinion in the form of SCHEDULE 3.1(h).
2. Acts of Buyer at Closing. At the Closing, Buyer shall execute
and/or deliver, or cause to be executed and/or delivered, the following:
(a) Buyer's Certificate. Buyer shall execute and deliver
to Seller, for the benefit of Seller, a certificate dated the Closing Date,
signed by Buyer and to the effect that:
(i) The representations and warranties of Buyer
contained in this Agreement are true and correct in all material respects as if
made as of the Closing Date and all undertakings of Buyer to be performed,
satisfied or observed on its part prior to the Closing Date have been
performed, satisfied or observed in all material respects;
(ii) Neither ECC, Barrow or Gupton nor any of
their assets are the subject of any insolvency, reorganization or bankruptcy
proceeding under any law or statute, state or federal; and
(iii) No proceeding is pending against ECC, Barrow
or Gupton which, if adversely determined, would materially adversely affect the
right, power or authority of it to consummate the transactions provided for
herein, or would make any such transactions effected hereunder subject to
collateral attack by any Person.
(b) Authorizations. ECC shall cause to be delivered to
Seller certified copies of resolutions adopted by the Members of ECC
authorizing the making, execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby; and naming the Person or
Persons authorized to act on its behalf with respect hereto.
(c) Payment. Buyer will pay the Purchase Price as
provided for in this Agreement.
(d) Legal Opinion. Buyer's counsel shall provide Seller a
legal opinion in the form of SCHEDULE 3.2(d).
3. Other Assurances. In addition to those matters set forth in
Section 3.1 and 3.2 of this Agreement, in connection with the Closing, Seller
shall, at the request of Buyer, and Buyer shall, at the request of Seller, take
all such further action as may be reasonably necessary to give full effect to
the transactions provided for herein and to permit the requesting party to
confirm its rights hereunder and to enjoy the full benefits intended to be
conveyed hereby.
22 (6)
<PAGE> 9
SECTION IV REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer, and agrees with Buyer, as
follows:
1. Organization, Standing and Authority.
(a) DFS is a corporation duly organized, validly existing
and in both corporate and tax good standing under the laws of the State of
Tennessee. DFS has full power and lawful authority to enter into this
Agreement, and as of the date of this Agreement has, and as of the Closing Date
will have, full power and lawful authority to perform its obligations hereunder
and to consummate the transactions contemplated hereunder and to sell the
Purchased Assets owned by it, to carry on Seller's Memphis Division as now
conducted and to lease or own and operate the Purchased Assets owned or leased
by it.
(b) WSD is a corporation duly organized, validly existing
and in both corporate and tax good standing under the laws of the State of
Delaware. WSD has full power and lawful authority to enter into this
Agreement, and as of the date of this Agreement has, and as of the Closing Date
will have, full power and lawful authority to perform its obligations hereunder
and to consummate the transactions contemplated hereunder and to sell the
Purchased Assets owned by it, to carry on Seller's Memphis Division as now
conducted and to lease or own and operate the Purchased Assets owned or leased
by it.
2. Title to Purchased Assets. DFS and WSD, collectively, own
outright or have valid leasehold interests in all the Purchased Assets. All
such properties and assets are free and clear of all Liens, except for the
terms, provisions and conditions of any agreement comprising any part of the
Assumed Obligations and Accepted Liens described on SCHEDULE 2.1.
3. Violations of Law. Except as set forth in SCHEDULE 4.3 hereto,
Seller has no knowledge or notice of any facts or circumstances which result
in, or would reasonably be expected to result in, (i) the ownership or
operation of the Purchased Assets by Seller being in violation of any Law (as
defined hereinbelow); (ii) the maintenance of Seller's Records being in
violation of the requirements of any Law; or (iii) the conduct of Seller's
Memphis Division, as presently conducted, being in violation of any Law
relating thereto. As used herein, the term "Law" means any Federal, state or
municipal ordinance, code, statute, executive order or regulation.
4. Binding Effect; No Violation; Consents. This Agreement
constitutes a valid and legally binding obligation of each of DFS and WSD,
enforceable in accordance with its terms, and the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby (i) are permissible under the Certificate of Incorporation
and Bylaws of each of DFS and WSD; and (ii) have been duly and validly
authorized by all necessary and appropriate action of each of DFS and WSD.
5. Purchased Assets
(a) Intangibles. All trademarks, service marks, trade
names and related slogans, and all governmental licenses and permits (federal,
state and local) included within the Intangibles of Seller are identified on
SCHEDULE 4.5(a) hereto and represent all of such Intangibles that Seller
currently is using and has determined necessary, in the exercise of reasonable
business judgement, in the Seller's Memphis Division.
(b) Material Contracts. The Material Contracts of
Sellers relating to the Seller's Memphis Division are disclosed on SCHEDULE
4.5(b) hereto.
(c) Prepayments. The Prepayments intended to be
assigned and conveyed hereby are identified on SCHEDULE 4.5(c) hereto. Such
Schedule includes (a) the name and address of the Person to whom such
Prepayment has been made; (b) a description of the purpose or purposes for
which such Prepayment was made; and (c) the amount of the Prepayment.
(d) Lease Contracts. All Lease Contracts comprising a
part of the Purchased Assets, are reflected on SCHEDULE 1.8 hereto: (i) except
for the 2310 Airport Interchange Lease, neither Seller nor any Affiliate is the
lessor or landlord in any such Lease Contract; (ii) each Lease Contract is in
full force and effect; (iii) all rents due to date under each Lease Contract
23 (7)
<PAGE> 10
have been paid and will be paid through the Closing Date; (iv) Seller is in
open, sole and peaceable possession as the exclusive tenant and occupant of the
property covered thereby; and (v) neither such leasehold interests, nor any
leasehold improvements pertaining thereto and reflected on Seller's October 27,
1996 Balance Sheet, have been abandoned nor has Seller's right to their use
been impaired.
(e) Leasehold Improvements. Seller represents that all
leasehold improvements shown on SCHEDULE 4.5(e) shall be owned by Seller free
and clear of any Liens, except for the Accepted Liens.
(f) Tangible Personal Property. Seller represents and
agrees with Buyer that, as of the date of this Agreement and the Closing Date,
all Tangible Personal Property shall be leased or owned by Seller free and
clear of any Liens, except for the Accepted Liens and Tangible Personal
Property that is leased and shown on SCHEDULE 4.5(f), and shall be in good
working order, ordinary wear and tear excepted.
(g) Inventory. Seller represents and agrees with Buyer
that, as of the date of this Agreement and the Closing Date, all Inventory
shall be owned by Seller free and clear of any Liens, except for Assumed
Obligations and the Accepted Liens. The price of the Inventory purchased on the
Closing Date shall be the lower of cost or market and shall not exceed a ninety
day supply.
(h) Current Assets. Seller represents and agrees with
Buyer that, as of the date of this Agreement and the Closing Date, all Current
Assets shall be owned by Seller free and clear of any Liens, except for Assumed
Obligations and the Accepted Liens.
SECTION V REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller, and agrees with Seller, as
follows:
1. Organization, Standing and Authority. ECC is a limited
liability company, duly organized, validly existing and in good standing under
the laws of the State of Tennessee. ECC has full power and lawful authority to
enter into this Agreement, perform its obligations hereunder and to consummate
the transactions contemplated hereunder and to acquire the Purchased Assets as
provided for in this Agreement.
2. Binding Effect; No Violation, Consents. This Agreement
constitutes a valid and legally binding obligation of ECC enforceable in
accordance with its terms and the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby, (i) are
permissible under the Articles of Organization or Operating Agreement of ECC;
(ii) have been duly and validly authorized by all legally necessary and
appropriate action of ECC; (iii) does not and will not conflict with or with or
without the giving of notice or the lapse of time, or both, result in a
material breach or default under the terms agreement affecting ECC; and (iv)
will not violate any judgment, decree or order of any federal, state, local or
foreign court, regulatory authority or other governmental body, or any statute,
rule or regulation applicable to ECC, which would have a material adverse
effect on its financial condition, assets, liabilities or business. No consent,
approval, authorization, order, registration or qualification of or with any
court, regulatory authority or other governmental body is required for the
consummation by ECC of the transactions contemplated by this Agreement.
3. Third Party Consents. Buyer shall cooperate with Seller in
seeking to obtain all third party consents contemplated hereunder.
SECTION VI CONDITIONS PRECEDENT
1. Conditions to the Obligations of Buyer. The obligations of
Buyer to consummate the transactions contemplated by this Agreement are subject
to the satisfaction of the following conditions (any of which may, at the
election of Buyer, be waived prior to Closing hereunder) on or before Closing
Date:
24 (8)
<PAGE> 11
(i) Order, Decree or Judgment. There being no order,
decree or judgment of any court, regulatory authority or other governmental
body having competent jurisdiction enjoining or otherwise affecting the
consummation of the transactions contemplated by this Agreement.
(ii) Third Party Approvals. Unless otherwise waived by
Buyer, Buyer shall have received, in form and content reasonably satisfactory
to it, consent to the transfers in this Agreement provided for from any
landlord or other Person with whom there shall exist a Material Contract
necessitating such consent.
(iii) Compliance by Seller. All the terms, covenants and
conditions of this Agreement required to be complied with and satisfied by the
Seller at or prior to the Closing Date will have been duly complied with and
satisfied in all material respects, and the representations and warranties made
by the Seller will be true and correct in all material respects at and as of
the Closing Date, except for those specifically relating to a time or times
other than the Closing Date (which will be true and correct in all material
respects as of such time) and except for changes permitted by this Agreement,
with the same force and effect as if made at and as of the Closing Date.
(iv) Financing. ECC shall have received, on or before
Closing Date, a financing commitment from an institutional lender, in an amount
and upon terms and conditions satisfactory to ECC.
(v) Employees. Prior to Closing Seller and ECC shall
mutually agree which of Seller's employees are to become employees of ECC and
such employees shall enter into suitable agreements with ECC to become the
employee of ECC.
2. Conditions to the Obligations of Seller. The obligations of
Seller to consummate the transactions contemplated by this Agreement are
subject to the satisfaction of the following conditions (any of which may, at
the option of Seller, be waived by it or to Closing hereunder):
(i) Order, Decree or Judgment. There being no order,
decree or judgment of any court, regulatory authority or other governmental
body having competent jurisdiction enjoining or otherwise affecting the
consummation of the transactions contemplated by this Agreement.
(ii) Compliance by Buyer. All the terms, covenants and
conditions of this Agreement required to be complied with and satisfied by
Buyer at or prior to the Closing Date will have been duly complied with and
satisfied, and the representations and warranties made by Buyer will be true
and correct in all material respects at and as of the Closing Date, except for
those specifically relating to a time or times other than the Closing Date
(which will be true and correct in all material respects at such time or times)
and except for changes permitted by this Agreement, with the same force and
effect as if made at and as of the Closing Date.
(iii) Director Approval. On or before Closing Date, the
Seller's board of directors shall have approved of this transaction.
SECTION VII INDEMNITIES; SURVIVAL OF REPRESENTATIONS
1. Indemnity by Seller. Notwithstanding the Closing or the
delivery of instruments of conveyance, and regardless of any liquidation
(whether complete or partial), dissolution, merger or transfer of assets of
Seller, Seller (herein called "Seller Indemnitor") indemnifies and agrees to
defend against, indemnify, and hold harmless Buyer, its officers, directors,
stockholders, agents, successors, and assigns (herein "Buyer Indemnitee") from,
and to reimburse Buyer Indemnitee for, any damage, loss, fees, liability, cost
or expense (including, without limitation, the reasonable fees and expenses of
counsel and others) resulting or arising from, or incurred in connection with
or based upon (collectively "Losses"):
(i) The breach of any representation or warranty of the
Seller Indemnitor which is contained in this Agreement (including the Schedules
or Exhibits attached hereto) or the Seller's Certificate required under this
Agreement (the "Ancillary Documents");
25 (9)
<PAGE> 12
(ii) Except for any Assumed Obligations, any claim by a
third party arising from any alleged default, act or breach by Seller
Indemnitor or its Affiliates of any obligation, contract or commitment, or
resulting from any act or omission of Seller Indemnitor or its Affiliates;
(iii) Except for any Assumed Obligations, any Federal,
state, local or other tax or governmental imposition of any nature arising out
of any event or state of facts occurring or existing prior to the Closing, or
any tax imposed upon or based upon receipt of the Purchase Price or the sale
transaction contemplated hereby;
(iv) Any liabilities of Seller or which may be assessed or
asserted against the Seller Indemnitor or Buyer Indemnitee relating to
activities or events occurring prior to the Closing Date and which are not
enumerated as an Assumed Obligation;
The amount of any Losses for which indemnification is provided under
this Section 7.1 for any particular matter shall be net of any amounts actually
recovered by Buyer Indemnitee under insurance policies with respect to such
matter. The amount of indemnification provided under this Section 7.1, shall
not, in the aggregate, exceed the Purchase Price.
2. Indemnity by Buyer. Buyer (herein "Buyer Indemnitor")
indemnifies and agrees to defend against, hold harmless Seller, its officers,
directors, stockholders, agents, successors, and assigns (herein collectively
"Seller Indemnitees") from, and to reimburse such Seller Indemnitees for, any
damage, loss, fees, liability, cost or expense (including, without limitation,
the reasonable fees and expenses of counsel and others) resulting or arising
from, or incurred in connection with or based upon:
(i) The breach of any representation or warranty of the
Buyer Indemnitor which is contained in or made pursuant to this Agreement or
any Ancillary Document;
(ii) Buyer Indemnitor's breach of or failure to perform,
comply with or fulfill any covenant or agreement of the Buyer Indemnitor
contained in or made pursuant to this Agreement or any Ancillary Document;
(iii) Any Assumed Obligation;
(iv) Any Federal, state, local or other tax or
governmental imposition of any nature arising out of any event or state of
facts occurring or existing on after the Closing Date; and
(v) Any liabilities of Buyer or which may be assessed or
asserted against the Buyer Indemnitor or Seller Indemnitee relating to
activities or events occurring on or after the Closing Date.
3. Survival of Representations. All covenants, agreements,
representations and warranties made by any party hereto pursuant to the terms
of this Agreement or any Ancillary Document, shall survive the Closing and
delivery of any instruments of conveyance for a period of two (2) years after
the Closing Date (during which time any claim must be asserted), except with
respect to matters of fraud or intentional misrepresentation. The foregoing
limitations shall not apply to the Assumed Obligations, Purchase Price (and
adjustments thereto), or liabilities to third parties for environmental or tax
matters.
SECTION VIII MISCELLANEOUS
1. Expenses, Attorney Fees, Arbitration. Buyer and Seller shall
each pay their own expenses incurred by or on behalf of them in connection with
the negotiation and execution of this Agreement and consummation of the
transactions contemplated hereby. Any controversy or claim between or among the
parties hereto, whether arising out of this Agreement or any Ancillary Document
executed in connection with the transaction contemplated hereby, shall be
determined by binding arbitration in Shelby County, Tennessee pursuant to the
rules of the American Arbitration Association. Any arbitration award shall
include reasonable attorneys' fees and costs to the prevailing party.
26 (10)
<PAGE> 13
2. Law Governing; Interpretation; Merger. This Agreement shall be
governed by, interpreted, and construed and enforced in accordance with the
domestic laws of the State of Tennessee without reference to principles of
conflict of law. The Section headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement. This Agreement sets forth the entire
agreement and understanding of the parties in respect of the transactions
contemplated hereby and supersedes all prior agreements, arrangements and
undertakings relating to the subject matter of this Agreement. No
representation, promise, inducement or statement of intention has been made by
Seller or Buyer which is not embodied in this Agreement, or in the Exhibits or
Schedules, attached hereto, or the Ancillary Documents delivered pursuant to
this Agreement; and neither Seller nor Buyer shall be bound by or liable for
any alleged representation, promise, inducement or statement of intention not
so set forth.
3. Binding Effect. All the terms, agreements, covenants,
representations, warranties and conditions of this Agreement shall be binding
upon, and inure to the benefit of and be enforceable by, the parties hereto and
their respective successors and assigns, but this Agreement and the rights and
obligations hereunder shall not be assignable by Seller. The provisions of this
Agreement shall not entitle any person not a signatory to this Agreement to any
rights as a third party beneficiary, or otherwise, it being the specific
intention of the parties hereto to preclude any and all non-signatory parties
from any such third party beneficiary rights, or any other rights whatsoever.
4. Modifications; Waivers. This Agreement may be amended,
modified, superseded or canceled only in writing executed by each of the
parties hereto; and the terms, agreements, covenants, representations,
warranties or conditions of this Agreement may be waived only in a writing
signed by the party to be charged with such waiver. The failure of any party at
any time or times to require performance of any provision of this Agreement
shall in no manner affect the right at a later time to enforce the same. No
waiver by any party of any condition, or of the breach of any term, agreement,
covenant, representation or warranty contained in this Agreement, whether by
conduct or otherwise, in any one or more instances, shall be deemed to be or
construed as a further or continuing waiver of any such condition or breach or
a waiver of any other condition or of the breach of any other term, agreement,
covenant, representation or warranty of this Agreement.
5. Severability. The invalidity or unenforceability of all or any
part of any provision of this Agreement shall not render invalid the remainder
of such provision or of any other provision of this Agreement.
6. Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SIGNATURES APPEAR ON THE FOLLOWING PAGE
27 (11)
<PAGE> 14
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
<TABLE>
<S> <C>
BUYER: SELLER:
Wall Street Deli, Inc. Executive Chef Catering, LLC
By: /s/ Jake L. Netterville By: /s/ Robert G. Barrow
---------------------------- ---------------------------
Title: Authorized Board Representative Robert G. Barrow, Chief Manager
/s/ Robert G. Barrow
------------------------
Robert G. Barrow
Downtown Food Service, Inc.
By: /s/ Alan V. Kaufman
----------------------
Title: Chairman /s/ Judy Gupton
-------------------------
Judy Gupton
</TABLE>
28 (12)
<PAGE> 1
Exhibit (11)
WALL STREET DELI, INC.
COMPUTATION OF EARNINGS PER COMMON SHARE
(Unaudited)
<TABLE>
<CAPTION>
For the Three Months Ended
September 28, 1996 September 30, 1995
------------------ ------------------
<S> <C> <C>
SHARES:
Weighted average number of common shares
outstanding 3,410,368 3,468,745
Effect of shares issuable under stock option
plan as determined by the treasury stock
method 3,411 4,964
--------- ----------
Weighted average number of common and
common equivalent share outstanding 3,413,779 3,473,709
PER COMMON SHARE COMPUTATIONS:
Net income $ 228,343 $ 17,454
========== ==========
Earnings per share $ . 07 $ . 01
========== ==========
</TABLE>
29
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF WALL STREET DELI, INC. FOR THE THREE MONTHS ENDED
SEPTEMBER 28, 1996, AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JUN-28-1997
<PERIOD-START> JUN-30-1996
<PERIOD-END> SEP-28-1996
<CASH> 935,498
<SECURITIES> 0
<RECEIVABLES> 1,507,567
<ALLOWANCES> 175,542
<INVENTORY> 726,857
<CURRENT-ASSETS> 4,577,863
<PP&E> 33,707,337
<DEPRECIATION> 17,070,260
<TOTAL-ASSETS> 24,361,911
<CURRENT-LIABILITIES> 5,898,836
<BONDS> 0
0
0
<COMMON> 170,587
<OTHER-SE> 18,292,488
<TOTAL-LIABILITY-AND-EQUITY> 24,361,911
<SALES> 17,327,832
<TOTAL-REVENUES> 17,327,832
<CGS> 15,432,961
<TOTAL-COSTS> 15,432,961
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 17,319
<INTEREST-EXPENSE> 33,149
<INCOME-PRETAX> 380,543
<INCOME-TAX> 152,200
<INCOME-CONTINUING> 228,343
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 228,343
<EPS-PRIMARY> .07
<EPS-DILUTED> .07
</TABLE>
