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U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended December 31, 1995
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
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Commission file number: 0-08718
LONESTAR HOSPITALITY CORPORATION
(Exact name of small business issuer
as specified in its charter)
DELAWARE 75-2242792
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3131 TURTLE CREEK BLVD., DALLAS, TX 75219
(Address of principal executive offices)
(214) 520-9292
(Issuer's telephone number)
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(Former name, former address and former fiscal year,
if changed since last report)
Check whether the issuer (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Exchange Act during the past 12 months (or
for such shorter period 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
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State the number of shares outstanding of each of the issuer's classes
of common equity, as of the latest practicable date.
Common Stock, par value $.01 8,811,181*
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Outstanding at February 15, 1996
Reflects one-for-two stock dividend
paid on February 2, 1996
Transitional Small Business Disclosure Format Yes [ ] No [X]
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Unless otherwise indicated, share and per share information contained in
this Report reflects the Company's one-for-five reverse stock split, effective
as of December 11, 1995 and the one-for-two stock dividend paid on February 2,
1996
ITEM 1. FINANCIAL STATEMENTS
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The Financial Statements of the Registrant and its Subsidiary are found
after the signature page.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS
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RESULTS OF OPERATIONS
THREE MONTHS ENDED DECEMBER 31, 1995 AS COMPARED WITH THREE MONTHS ENDED
DECEMBER 31, 1994.
During the three months ended December 31, 1995, the Company earned all
revenues and incurred the majority of its expenses in connection with the
operations of its Miami Subs Grill restaurants. The Company had five Miami Subs
Grill in operation during the quarter.
During the three months ended December 31, 1995, the Company had restaurant
revenues of $1,160,809, a decrease of $218,332, or 15.8%, from restaurant
revenues of $1,379,131 generated during the three months ended December 31,
1994; approximately $124,000 of this decrease is attributable to sales at the
Company's Houston restaurant, which the Company sold in November 1994. The
Company has also experienced decreases in revenues at all of its remaining
restaurants that were in operation during both periods. These decreases were
offset by sales of $214,867 at a new restaurant opened in September 1995. The
Company believes that the factors that gave rise to, and adverse publicity
connected with, the recently settled litigation described in Item 1 of Part II
this Report, have adversely affected the sales at all of its restaurants, all of
which are located in the Dallas, Texas area.
The costs and expenses incurred in connection with restaurant operations-
food and beverage expenses, restaurant, labor expenses, operating expenses and
depreciation of amortization on restaurant equipment were $1,175,985 during the
three months ended December 31, 1995, a decrease of $149,928 or approximately
11.4%, from the $1,318,913 incurred during the three months ended December 31,
1994. Approximately $102,000 of this decrease is attributable to expenses
incurred at the Company's Houston restaurant during the quarter ended December
31, 1994. The following table shows the percentage of restaurant operating
expenses to restaurant sales during the quarters ended December 31 of 1995 and
1994:
1995 1994
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Percentage Percentage
Amount of sales Amount of sales
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Food and beverage.............. $401,664 34.6 $530,568 38.5
Restaurant labor............... 379,157 32.7 467,469 33.9
Restaurant operating expense... 330,919 28.5 242,213 17.6
Depreciation and amortization.. 64,245 5.5 78,663 5.7
Food and beverage and labor expenses declined as a percentage of sales due to
better cost controls.
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The restaurant operating loss (i.e. the revenues less the expenses incurred
with restaurant operations) was $15,176 during the three months ended December
31, 1995, as compared to the restaurant operating profits of $60,218 during the
three months ended December 31, 1994.
The Company is not producing the "SportsWaves!" broadcast during the
current fiscal year, primarily because of uncertainties raised in the Company's
litigation with the landlord of the Southwestern Boulevard Restaurant. During
the quarter ended December 31, 1994, the Company had revenues from broadcast
operations of $295,368 and total expenses of $267,597. Management believes that
the inability to broadcast the SportsWaves! program during the current fiscal
year and the corresponding loss of broadcast media exposure and promotion has
had a material adverse impact on restaurant operations.
General and administrative expenses for the three months ended December 31,
1995 were $200,883, an increase of $33,697, or approximately 20.2% from general
and administrative expenses of $167,186 during the three months ended December
31, 1994. Such expenses increased primarily because of legal expenses incurred
in connection with the recently settled litigation described in Item 1 of Part
II of this Report.
The Company experienced a one-time gain of $10,903 in connection with the
forgiveness of indebtedness owed by the Company to several of its suppliers.
The Company has reached settlements with such vendors which involve, in part,
the issuance of Company common stock in exchange for such debt.
NINE MONTHS ENDED DECEMBER 31, 1995 AS COMPARED WITH NINE MONTHS ENDED
DECEMBER 31, 1994.
During the nine months ended December 31, 1995, the Company earned all
revenues and incurred the majority of its expenses in connection with the
operations of its Miami Subs Grill restaurants. The Company had four Miami Subs
Grill in operation during the entire period and opened a new restaurant on
September 25, 1995. During this nine month period, the Company was involved in
negotiations with Stephens Diversified Leasing, Inc., dba/Stephens Franchise
Finance ("Stephens") to obtain financing that would permit the completion of the
restaurant then under construction and to convert a substantial portion of the
Company's short term indebtedness to long term debt. See "Liquidity and Capital
Resources," below.
During the nine months ended December 31, 1995, the Company had restaurant
revenues of $3,284,026, a decrease of $1,435,086, or approximately 30.4%, from
restaurant revenues of $4,719,112 generated during the nine months ended
December 31, 1994. Approximately $695,627 of this decrease is attributable to
sales at the Company's Houston restaurant during the nine months ended December
31, 1994; the Company sold this restaurant in November 1994. This decrease was
partially offset by revenues of $238,805 at the Company's new restaurant located
in Mesquite, Texas that opened in September 1995. The Company has also
experienced decreases in revenues at all of its restaurants that were in
operation during both periods; the Company believes that the factors that gave
rise to the recently settled litigation, described in Part II, Item 1 of this
Report, and adverse publicity connected with such litigation, have adversely
affected the sales at all of its restaurants, all of which are located in the
Dallas, Texas area. See Part II, Item 1--"Legal Proceedings."
The costs and expenses incurred in connection with restaurant operations -
food and beverage expenses, restaurant, labor expenses, operating expenses and
depreciation of amortization on restaurant equipment - were $3,280,384 during
the nine months ended December 31, 1995, a decrease of $1,349,783 or
approximately 29.2%, from the $4,630,167 incurred during the nine months ended
December 31, 1994. Approximately $653,098 of this decrease is attributable to
expenses incurred at the Company's Houston
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restaurant during the nine months ended December 31, 1994 (net of insurance
proceeds of approximately $86,781 received during such nine-month period). The
following table shows the percentage of restaurant operating expenses to sales
during the nine month periods ended December 31, 1995 and 1994:
1995 1994
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Percentage Percentage
Amount of sales Amount of sales
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Food and beverage.............. $1,131,794 34.5 $1,755,828 36.9
Restaurant labor............... 1,046,009 31.9 1,557,241 33.6
Restaurant operating expense... 928,039 28.3 1,079,807 23.3
Depreciation and amortization.. 174,542 5.3 237,291 5.1
Food and beverage and labor expenses declined as a percentage of sales due to
better cost controls. Restaurant operating expenses increased as a percentage of
sales primarily because of the effect of reduced sales and because of the
aforementioned insurance settlement in the approximate amount of $86,781
received in 1994.
The restaurant operating profits (i.e. the revenues less the expenses
incurred with restaurant operations) was $3,642 during the nine months ended
December 31, 1995, as compared to the restaurant operating profits of $88,945
during the nine months ended December 31, 1994.
General and administrative expenses for the nine months ended December 31,
1995 were $575,478, an increase of $35,812, or approximately 6.6% from general
and administrative expenses of $539,936 during the nine months ended December
31, 1994. The increase occurred primarily because of expenses incurred in
connection with the Company's refinancing efforts, its efforts to raise
additional capital, legal fees incurred in litigation relating to the
Southwestern Boulevard Restaurant and arising as a result of the Company's cash
flow difficulties.
The Company experienced a one time a gain of $473,981 in connection with
the forgiveness of indebtedness it owed to several of its suppliers. The
Company has reached settlements with such vendors which involve, in part, the
issuance of Company common stock in exchange for such debt.
LIQUIDITY AND CAPITAL RESOURCES
The Company's cash and cash equivalents at December 31, 1995 were $100,398.
Cash flows from operations were a negative $1,414,254 for the nine months ended
December 31, 1995 compared to a positive $315,671 during the same period in
1994. The increase in cash used in operating activities was due principally to
the use of the proceeds of the loan from Stephens to reduce accounts payable.
Cash used in investing activities was $352,887 in the nine months ended
December 31, 1995 as compared to cash used of $1,241,447 during this same period
in 1994. The decrease in cash used reflected the reduced purchase of property
and equipment during this period.
Cash flows from financing activities were $1,802,845 during the nine month
period ended December 31, 1995 compared to $389,998 during this same period in
1994. This increase reflected the proceeds of the loan (the "Stephens Loan")
from Stephens Diversified Leasing, Inc. ("Stephens") and proceeds from the sale
of an aggregate of $424,000 of common stock of the Company sold as a condition
of receiving the Stephens Loan, both of which are described below. The Company
also negotiated reduction in certain accounts payable and settlement of
litigation arising from such accounts payable in the
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form of reductions in payment and/or issuance of common stock of the Company in
exchange for all or a portion of such indebtedness. At various times during the
nine month period, the president of the Company advanced funds to the Company to
meet various short term obligations..
At a meeting held June 27, 1995, the Board of Directors of the Company
voted to issue to each member of the Board of Directors options to purchase
45,000 shares of common stock of the Company (an aggregate of 315,000 shares) at
an exercise price of $.16 2/3 per share until August 26, 1995 and to lower the
exercise price of outstanding options previously issued to directors to $.16 2/3
per share until the same date, after which the exercise price would revert to
the original exercise price. In a unanimous consent of the Board of Directors
dated October 13, 1995, the exercise period for both the new option s and for
the reduced exercise price of the existing options was subsequently extended
until October 15, 1995. Options exercisable for a total of 108,921 shares were
exercised on or before October 15.
At its June 27, 1995 meeting, the Board of Directors also agreed to reduce
the exercise price of outstanding warrants from $16.67 per share to $.16 2/3 per
share and to extend the exercise period of such warrants to December 31, 1995.
The Board also agreed to grant each warrant holder an additional warrant to
purchase an equal number of shares on or before December 31, 1995 at $.16 2/3
per share. A total of 395,002 warrants were exercised during their exercise term
at the reduced option exercise price.
Mr. Solomon's employment agreement with the Company, dated as of June 28,
1995, grants to Mr. Solomon an option to purchase 300,000 shares of common stock
at $.23 1/3 per share. Subsequent to December 31, Mr. Solomon exercised this
option.
The Company experienced a one time a gain of $473,981 in connection with
the forgiveness of indebtedness it owed to several of its suppliers. The
Company has reached settlements with such vendors which involve, in part, the
issuance of Company common stock in exchange for such debt.
The Company has granted to holders of its warrants and to the holders of
certain of its shares certain piggyback registration rights that generally are
at the Company's expense.
Stephens Loan Agreement. As of June 30, 1995, the Company entered into the
Loan Agreement with Stephens pursuant to which the Company has borrowed a total
or $1,500,000 from Stephens. As a condition of the Loan Agreement, the Company
was required to raise at least $400,000 of additional equity capital; the
Company sold an aggregate total of 2,544,000 shares of its common stock at a
price of $.16 2/3, for a total of $424,000. The Stephens Loan is secured by a
lien against substantially all of the Company's assets. As of December 31,
1995, Stephens had advanced the Company a total of $1,500,000. Outstanding
borrowings accrue interest at 13.40% until October 31, 2000; from November 1,
2000 to October 31, 2002, outstanding amounts will bear interest at Stephens'
then outstanding rate. The proceeds of the Loan Agreement and the additional
capital were used to repay outstanding accounts receivable and to fund the
completion of the Town East Restaurant.
The Stephens Loan is guaranteed by Miami Subs pursuant to the terms of the
Forbearance and Restructuring Agreement (the "Forbearance Agreement"). Under
this agreement, Miami Subs also agreed to forbear from the exercise of its
default rights that had arisen from the Company's past-due franchise fees and
other payments due (the "Miami Subs Debt") under the area development agreement
between the Company and Miami Subs (the "Area Development Agreement") and the
franchise agreements pursuant to which the Company operates the restaurants (the
"Franchise Agreement"). The Forbearance Agreement contains financial covenants
that require the Company to maintain a ratio of current assets to current
liabilities of at least 1.0 to 1.0 at the end of each fiscal quarter, beginning
December 31, 1995, maintain working capital of at least $100,000 at the end of
each fiscal quarter, beginning December 31, 1995, and
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have a ratio of cash flow from operations as derived from the Company's year end
audited statement of cash flows (including net proceeds from the sales stock) to
required debt service payments (including payments on capital leases) for each
fiscal year of at least 1.1 to 1.0. Miami Subs waived the Company's compliance
with the financial covenants until March 31, 1996. Under the Forbearance
Agreement, upon the occurrence of an event of default Miami Subs may accelerate
the Miami Subs Debt, terminate the forbearance of its exercise of its default
rights under the area development agreement between the Company and Miami Subs
USA and the franchise agreements relating to the Company's restaurants, and
exercise its current default rights and any and all other rights pursuant to the
area development agreement between the Company and Miami Subs (the "Area
Development Agreement"), the franchise agreements. It is expected that, upon the
completion of the proposed sale of the Company's Miami Subs Grill restaurants to
Miami Subs, the Forbearance Agreement would be terminated. See Item 5-Other
Information-Proposed Sale of Restaurants.
The Loan Agreement and the Forbearance Agreement do not permit the Company
to pay or declare any cash or property dividends or otherwise make any
distribution of capital.
If the proposed sale of the restaurants is not consummated, the Company
believes that it will need substantial additional funds to build and open new
Miami Subs Grill restaurants and to meet the development schedules set out in
the Area Development Agreement and for working capital to fund the operation of
the restaurants, to the extent such restaurants are not profitable. In such
event, the Company may also have to seek to renegotiate the development
schedules and the financial covenants under the Forbearance Agreement, although
there is no assurance that it could do so. The Company anticipates that it
would need to seek additional funds, either through borrowing, through sales of
its securities, or a combination of both, in order to secure such funds.
Future Financings. The Company is conducting private offerings in which it
is seeking to raise up to $2,000,000 for the purpose of obtaining working
capital and for the purpose of providing funds to Citadel Computer Systems, Inc.
("Citadel") in connection with the proposed merger of the Company with Citadel.
See "Item 5-Other Information-Proposed Acquisition of Citadel Computer Systems,
Inc." The offering consists of debentures and warrants. The debentures will
bear interest at 12% per annum, and will mature 120 days from the date of
issuance, unless extended for an additional 30 day period by the Company. The
warrants will be exercisable, in the aggregate, for up to 600,000 shares of
common stock. In addition, up to 50,000 additional warrants may be issued to
brokers as compensation. There is no assurance that the Company will be
successful in raising the amount sought in this private offering.
The Company is preparing to conduct an offering pursuant to Regulation S
promulgated under the Securities Act of 1933 to overseas purchasers. This
overseas offering will seek to raise up to $1,500,000 for working capital
purposes. The offering will consist of units consisting of convertible
debentures and warrants. The debentures will bear interest at 12% per annum,
will mature 120 days from the date of issuance (unless extended for up to an
additional 30 days by the Company) and will be convertible into shares of the
Company's common stock at a conversion price equal to 80% of the average closing
prices per share of the Company's common stock for 10 consecutive trading days
preceding the conversion date. The warrants will be exercisable, in the
aggregate, for up to 600,000 shares of common stock of the Company.
The Company expects to engage in additional capital raising efforts
following the completion of the Citadel merger. The Company and Citadel are
engaged in discussions with investment banking firms about such efforts, but
have not entered into any letter of intent with an investment banking firm or
determined the structure or amount of any such efforts. There is no assurance
that the Company will be
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successful in identifying or engaging an investment banking firm or that, if it
does so, it will be successful in raising capital in any such offering.
Proposed Sale of Restaurants to Miami Subs USA, Inc. The Company has
reached an agreement in principal to sell its five operating restaurants and its
franchise rights to Miami Subs. This agreement in principal provides that the
Company will receive 1,325,000 shares of Miami Subs stock in exchange for the
restaurants and franchise, with an estimated value of $2,650,000, and that Miami
Subs will assume the Stephens Loan and that the Company will issue a new note to
Miami Sub in an amount approximately equal to the outstanding principal and
accrued interest under the Stephens Loan. This sale is subject to several
conditions, including the completion of due diligence by Miami Subs, the
approval of Miami Subs' board of directors and of the lessors of the
restaurants' premises and equipment. In addition, if the Citadel acquisition is
not consummated, the Company anticipates that it will elect not to proceed with
the sale of the restaurants. Accordingly, there is no assurance that the sale
of the restaurants will occur. It is expected that the Company would realize a
loss of approximately $1,600,000 on the sale of the restaurants. See "Item 5-
Proposed Sale of Restaurants."
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
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The Company has settled the lawsuit suit styled LS Holdings, Inc. a/k/a
LoneStar Hospitality Corporation v. Three-Way Partnership, Cause No. 95-02899-G,
in the 134th District Court of Dallas County, Texas.
The Company is involved in routine litigation from time to time. Such
litigation, including other litigation in which the Company is currently
involved, is not material to the Company's consolidated financial condition or
results of operations.
ITEM 2. CHANGES IN SECURITIES
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On December 11,1995, the Company filed with the Secretary of State of
Delaware a Certificate of Amendment that (i) effected a one-for-five reverse
split of its common stock and (ii) reduced the par value of its common stock
from $.04 to $.01 per share. Under the terms of the Certificate of Amendment,
all fractional shares resulting from the reverse stock split were rounded to the
nearest whole share.
Subsequent to December 31, 1995, the Company has paid a stock dividend of
one share of its common stock, par value $.01, to the holders of every two
shares of common stock. The record date for the stock dividend was January 2,
1996, and the payment date was February 2, 1996. Fractional shares paid
pursuant to this common stock dividend were rounded to the nearest whole share.
ITEM 3. DEFAULTS ON SENIOR SECURITIES
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None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
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During the quarter ended December 31, 1995, the Company's Board of
Directors approved the amendment of the Company's Certificate of Amendment to
undertake a one-for-five (1:5) reverse stock split and to lower the par value of
the Company's common stock from $.04 to $.01. The Company
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submitted the amendment to the holders of a majority of the Company's
outstanding common stock for approval by written consent.
ITEM 5. OTHER INFORMATION
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CERTAIN TRANSACTIONS
As of November 13, 1995, the Company issued to Steven B. Solomon, the
President of the Company, 900,000 shares of common stock in exchange for the
cancellation of indebtedness totalling, in the aggregate, $150,000, or $.16 2/3
per share. The Company had agreed in June 1995 to issue this stock in exchange
for the cancellation of indebtedness to Mr. Solomon in connection with the loan
from Stephens. The Company had also issued 75,000 shares of common stock to the
prior holder of this indebtedness; such shares are held by Axel Sawallich, a
director of the Company, in his capacity as a trustee for such prior holder.
In October 1995, Messrs. Sawallich and Solomon exercised options to
acquire an aggregate of 63,921 shares and 45,000 shares of common stock of the
Company, respectively, at an exercise price of $.16 2/3 per share.
In June 1995, the Company issued to each member of the Board of Directors
options to purchase 45,000 shares of Company common stock at $.16 2/3 per share
until August 26, 1995 and to lower the exercise price of outstanding options
previously issued to directors to $.16 2/3 per share until the same date, after
which the exercise price would revert to the original exercise price. The
exercise period for both the new option s and for the reduced exercise price of
the existing options was subsequently extended until October 15, 1995.
Employment Agreement between Stephen B. Solomon and the Company. In
December 1995 the Board approved an employment agreement between the Company and
Mr. Solomon dated as of June 28, 1995 and expiring on May 31, 2000. The
employment agreement provides for an annual base salary or $120,000 during the
period from June 28, 1995 through May 31, 1996; $132,000 during the period from
June 1, 1996 through May 31, 1997; and $144,000 thereafter. Mr. Solomon agreed
to defer receipt of his base salary payable during the period from June 28, 1995
through May 31, 1996 until the earlier of the date the Company (i) has a
positive cash flow, including general and administrative expenses and debt
service requirements, or (ii) has raised at least $1,000,000 in capital
(including both debt and equity), or (iii) has received at least $1,000,000 of
value in acquisition or merger for stock or substantially all the assets of the
Company. In addition, upon the occurrence of the events described in (ii) or
(iii) above, Mr. Solomon may elect to receive a one-time bonus of $100,000.
The Company shall provide life insurance in the amount of $1,000,000 on Mr.
Solomon's life, in addition to any key man life insurance maintained by the
Company for its benefit. The Company shall provide Mr. Solomon with an
automobile allowance of $950 per month and automobile liability insurance.
Mr. Solomon's employment agreement provides Mr. Solomon an option to
acquire 300,000 shares of common stock of the Company at an exercise price of
$.23 1/3 per share. Subsequent to December 31, 1995, Mr. Solomon has exercised
this option.
If the Company terminates Mr. Solomon's employment agreement for cause,
death or disability, Mr. Solomon will be entitled to any unpaid salary, bonus
and vacation pay. If he is terminated otherwise than for cause, Mr. Solomon
will be entitled to a severance payment equal to the sum of any unpaid salary,
bonus and vacation pay, and the greater of (i) the remaining payments that would
have been made during the term of the employment agreement or any extension
thereof, discounted to present value using an
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interest rate of 6%, or (ii) an amount determined by multiplying his base salary
for the most recently completed full month of employment by 24. All severance
payments would be payable in a lump sum within 30 days after the effective date
of the termination of employment, and any options to purchase shares that would
be exercisable during the term of the employment agreement or any extension
thereof would become fully exercisable upon its termination.
PROPOSED ACQUISITION OF CITADEL COMPUTER SYSTEMS, INC.
On January 31, 1996, Citadel Computer Systems, Inc, a Delaware corporation
("Citadel"), the Company and LSHC Acquisition, Inc., a wholly-owned Delaware
subsidiary of the Company ("Acquisition"), entered into an Agreement and Plan of
Merger (the "Merger Agreement"), whereby Citadel agreed, subject to certain
conditions, to merge into Acquisition (the "Merger"). Pursuant to the terms of
the Merger Agreement, each stockholder of Citadel will receive 4.5 shares of
common stock of the Company for each share of common stock of Citadel held by
such stockholder. In addition, each outstanding option and warrant to purchase
capital stock of Citadel will become an option or warrant to purchase a number
of shares of Common Stock of the Company equal to four and one-half (4.5) times
the number of shares subject to the Citadel options and warrants at the same
aggregate exercise price of the Citadel options and warrants.
Upon consummation of the Merger, the former stockholders of Citadel will
own approximately 75% of the issued and outstanding common stock of Company, and
current Company stockholders will own the remaining 25%, each on a fully diluted
basis, and each prior to the issuance of Common Stock in connection with the
acquisition of certain software products from Circuit Master, as described
below. As a result, a change of control in the Company will have occurred.
In addition, the Merger Agreement provides that Gilbert Gertner and George
Sharp will become directors of the Company and that, upon the expiration of 10
days from the date of an Information Statement Pursuant to Section 14(f) of the
Securities Exchange Act of 1934 and Rule 14f-1 thereunder, the sole directors of
the Company will be Messrs. Gertner, Sharp and Solomon. During such 10 day
period, the Merger Agreement provides that the board of directors of the Company
will not take any action without the written consent of Messrs. Gertner and
Sharp. It is expected that the Company will change its name to Citadel Computer
Systems, Inc. after the Merger.
The Merger is subject to a number of conditions, and there is no assurance
that it will occur. One such condition is that the Company must sell or enter
into an agreement to sell all of its restaurant assets owned by LS on terms
reasonably satisfactory to Citadel. The Company and Miami Subs USA, Inc.
("Miami Subs") have entered into an agreement in principle regarding such sale,
as described below. In addition, a condition to the Merger is that the Company
advance to Citadel $500,000 as an unsecured loan for a term of one year, bearing
interest at 12% per annum.
Proposed Acquisition by Citadel. Prior to consummation of the Merger,
Citadel reached an agreement with Circuit Master Software ("Circuit Master"), a
company that makes computer software, pursuant to which Citadel agreed to
purchase certain software products that complement Citadel's products. Upon
consummation of the Merger, the Company will assume Citadel's obligations under
this agreement with Circuit master, which will require the Company to issue
common stock of the Company to Circuit Master valued at $2,000,000 based on the
average closing trading price of the Company's common stock for the thirty (30)
trading days following the effective date of the Merger.
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PROPOSED SALE OF RESTAURANTS
The Company has reached an agreement in principle to sell its five Miami
Subs Grill restaurants in the Dallas, Texas area to Miami Subs Corporation, of
Fort Lauderdale, Florida ("Miami Subs"). In addition, Miami Subs will also
acquire LoneStar's right to develop additional Miami Subs Grill restaurants in
the Dallas/Fort Worth area and will assume LoneStar's indebtedness of $1,500,000
to Stephens Diversified Leasing, Inc. ("Stephens") Miami Subs is also the
franchisor of the Miami Subs Grill restaurants.
Under the proposed agreement, LoneStar will receive 1,325,000 shares of
Miami Subs common stock (the "Miami Subs Stock"), and Miami Subs will file a
registration statement with the Securities and Exchange Commission covering the
Miami Subs Stock within 60 days after the closing. During the six months
following the closing, LoneStar will be not be able to sell any of the Miami
Subs Stock, except with the consent of Miami Subs, and Miami Subs will have the
right to acquire the Miami Subs Stock for $2.50 per share. Thereafter, LoneStar
will be able to sell the Miami Subs Stock in private transactions, or in open
market transactions not to exceed 240,000 shares per calendar quarter or 20,000
shares per week. All sales by LoneStar will be subject to a right of first
refusal by Miami Subs.
Miami Subs will assume no liabilities of LoneStar, except for LoneStar's
loan from Stephens. LoneStar will also issue to Miami Subs a promissory note in
the principal amount of up to $1,500,000, to be secured by the Miami Subs Stock.
The note will not bear interest and will be due on or before April 30, 1996.
The maturity date of the note will be extended to June 30, 1996 if LoneStar
makes a principal payment of $50,000 on or before April 30, 1996.
This sale is subject to several conditions, including the negotiation and
execution of a definitive sale agreement, the completion of due diligence on
restaurant operations and other matters, review of contracts to be assumed by
Miami Subs and approval by Miami Subs' board of directors. It is expected that,
if the Merger does not occur, the Company would elect not to proceed with the
sale of the restaurants. There is no assurance that the sale will be
consummated.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
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(A) EXHIBITS.
10. Agreement and Plan of Merger By and Among LoneStar Hospitality
Corporation and LSHC Acquisition, Inc. and Citadel Computer
Systems, Inc. dated January 31, 1996.
(B) REPORTS ON FORM 8-K.
On December 14, 1995, the Company filed a Form 8-K pursuant to which
it reported the proposed acquisition of Citadel and reported the terms
of an employment agreement between the Company and Steven B. Solomon.
9
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
LONESTAR HOSPITALITY CORPORATION
(REGISTRANT)
Date: February 22, 1996 By: /s/ Steven B. Solomon
-- ----------------------------------------------
Steven B. Solomon, President,
Chief Executive, Financial and Accounting Officer
<PAGE>
LONESTAR HOSPITALITY CORPORATION AND SUBSIDIARY
FINANCIAL STATEMENTS
DECEMBER 31, 1995
<PAGE>
LONESTAR HOSPITALITY CORPORATION AND SUBSIDIARY
CONSOLIDATED BALANCE SHEET
<TABLE>
<CAPTION>
DECEMBER 31, 1995 MARCH 31, 1995
----------------- --------------
ASSETS
<S> <C> <C>
CURRENT ASSETS
CASH AND CASH EQUIVALENTS $ 100,398 $ 52,494
ACCOUNTS RECEIVABLE 103,063 141,155
INVENTORIES 47,920 47,770
PREPAID EXPENSES AND OTHER CURRENT ASSETS 108,507 85,663
---------- ----------
TOTAL CURRENT ASSETS 359,888 327,082
PROPERTY AND EQUIPMENT-NET 3,575,311 3,396,966
OTHER ASSETS-NET 820,773 500,350
---------- ----------
$4,755,972 $4,224,398
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
ACCOUNTS PAYABLE AND ACCRUED EXPENSES $ 970,560 $2,261,401
CURRENT MATURITIES OF LONG-TERM DEBT 141,811 -
NOTES PAYABLE 96,251 397,125
---------- ----------
TOTAL CURRENT LIABILITIES 1,208,622 2,658,526
LONG-TERM DEBT 1,336,338 -
STOCKHOLDERS' EQUITY
COMMON STOCK 82,998 475,609
ADDITIONAL CONTRIBUTED CAPITAL 5,322,295 4,161,089
ACCUMULATED DEFICIT (3,194,281) (3,070,826)
---------- ----------
2,211,012 1,565,872
---------- ----------
$4,755,972 $4,224,398
========== ==========
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS.
<PAGE>
LONESTAR HOSPITALITY CORPORATION AND SUBSIDIARY
CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE THREE MONTHS ENDED DECEMBER 31,
(UNAUDITED)
<TABLE>
<CAPTION>
1995 1994
--------- ----------
<S> <C> <C>
SALES
RESTAURANT SALES $1,160,809 $1,379,131
BROADCAST SALES - 295,368
---------- ----------
TOTAL SALES 1,160,809 1,674,499
COST OF SALES
FOOD AND BEVERAGES 401,664 530,568
RESTAURANT LABOR 379,157 467,469
RESTAURANT OPERATING EXPENSES 330,919 242,213
BROADCAST OPERATING EXPENSES - 267,597
BROADCAST DEVELOPMENT COSTS - -
DEPRECIATION AND AMORTIZATION 64,245 78,663
---------- ----------
1,175,985 1,586,510
---------- ----------
GROSS PROFIT (LOSS) ( 15,176) 87,989
GENERAL AND ADMINISTRATIVE 211,786 167,186
PROVISION FOR LOSS ON SALE OF ASSETS - 8,192
---------- ----------
211,786 175,378
---------- ----------
( 226,962) ( 87,389)
OTHER ( 50,097) -
---------- ----------
NET LOSS ( 277,059) ( 87,389)
========== ==========
PER SHARE DATA
NET LOSS $( .03) $( .03)
========== ==========
WEIGHTED AVERAGE SHARES OUTSTANDING 8,117,161 3,117,501
========== ==========
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS.
<PAGE>
LONESTAR HOSPITALITY CORPORATION AND SUBSIDIARY
CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE NINE MONTHS ENDED DECEMBER 31,
(UNAUDITED)
<TABLE>
<CAPTION>
1995 1994
---------- ------------
<S> <C> <C>
SALES
RESTAURANT SALES $3,284,026 $ 4,719,112
BROADCAST SALES - 407,190
---------- ------------
TOTAL SALES 3,284,026 5,126,302
COST OF SALES
FOOD AND BEVERAGES 1,131,794 1,755,828
RESTAURANT LABOR 1,046,009 1,557,241
RESTAURANT OPERATING EXPENSES 928,039 1,079,807
BROADCAST OPERATING EXPENSES - 421,714
BROADCAST DEVELOPMENT COSTS - 296,024
DEPRECIATION AND AMORTIZATION 174,542 237,291
---------- ------------
3,280,384 5,347,905
---------- ------------
GROSS PROFIT (LOSS) 3,642 ( 221,603)
GENERAL AND ADMINISTRATIVE 586,381 539,936
PROVISION FOR LOSS ON SALE OF ASSETS - 286,945
---------- ------------
586,381 826,881
---------- ------------
( 582,739) ( 1,048,484)
OTHER ( 25,600) -
---------- ------------
NET LOSS BEFORE EXTRAORDINARY CREDIT ( 608,339) ( 1,048,484)
EXTRAORDINARY INCOME FROM DEBT FORGIVENESS 484,884 -
---------- ------------
NET LOSS $( 123,455) $( 1,048,484)
========== ============
PER SHARE DATA
BEFORE EXTRAORDINARY CREDIT $( .10) $( .35)
EXTRAORDINARY CREDIT .08 -
---------- ------------
NET LOSS $( .02) ($ .35)
========== ============
WEIGHTED AVERAGE SHARES OUTSTANDING 6,195,188 3,020,040
========== ============
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS.
<PAGE>
LONESTAR HOSPITALITY CORPORATION AND SUBSIDIARY
CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE NINE MONTHS ENDED DECEMBER 31,
<TABLE>
<CAPTION>
1995 1994
---------- -----------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
NET (INCOME) LOSS $( 123,455) $(1,048,484)
ADJUSTMENTS TO RECONCILE NET LOSS TO NET CASH
PROVIDED BY (USED IN) OPERATING ACTIVITIES
DEPRECIATION AND AMORTIZATION 174,542 237,291
EXTRAORDINARY CREDIT ( 473,981) -
PROVISION FOR LOSS ON SALES OF ASSETS - 286,945
NONCASH COMPENSATION - 156,750
CHANGE IN OPERATING ASSETS AND LIABILITIES
INVENTORIES ( 150) ( 7,437)
PREPAID EXPENSES AND OTHER CURRENT ASSETS 15,248 ( 514,888)
ACCOUNTS PAYABLE AND ACCRUED EXPENSES ( 673,835) 1,342,169
DEPOSITS AND OTHER ASSETS ( 332,623) ( 136,675)
---------- -----------
NET CASH PROVIDED BY (1,414,254) 315,671
(USED IN) OPERATING ACTIVITIES
CASH FLOWS FROM INVESTING ACTIVITIES
PURCHASE OF PROPERTY AND EQUIPMENT ( 352,887) (1,241,447)
---------- -----------
NET CASH USED IN INVESTING ACTIVITIES ( 352,887) (1,241,447)
CASH FLOWS FROM FINANCING ACTIVITIES
PROCEEDS FROM SALE OF COMMON STOCK 475,570 69,375
DEBT PAYMENTS ( 328,349) ( 95,673)
NEW BORROWINGS 1,655,624 367,415
---------- -----------
NET CASH PROVIDED BY FINANCING ACTIVITIES 1,802,845 341,117
---------- -----------
NET INCREASE (DECREASE) IN CASH 35,704 ( 584,659)
CASH AT BEGINNING OF PERIOD 52,494 649,583
---------- -----------
CASH AT END OF PERIOD $ 88,198 $ 64,924
========== ===========
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS.
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE A - BASIS OF PRESENTATION
THE FINANCIAL INFORMATION PRESENTED HEREIN SHOULD BE READ IN CONJUNCTION WITH
THE FINANCIAL STATEMENTS AND FOOTNOTES INCLUDED IN THE COMPANY'S ANNUAL REPORT
ON FORM 10-K FOR THE YEAR ENDED MARCH 31, 1995. THE BALANCE SHEET AS OF MARCH
31, 1995 HAS BEEN DERIVED FROM THE AUDITED FINANCIAL STATEMENTS AT THAT DATE.
THE ACCOMPANYING UNAUDITED FINANCIAL STATEMENTS HAVE BEEN PREPARED IN ACCORDANCE
WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES FOR INTERIM FINANCIAL INFORMATION.
ACCORDINGLY, THEY DO NOT INCLUDE ALL OF THE INFORMATION AND FOOTNOTES REQUIRED
BY GENERALLY ACCEPTED ACCOUNTING PRINCIPLES FOR COMPLETE FINANCIAL STATEMENTS.
IN THE OPINION OF MANAGEMENT, ALL ADJUSTMENTS CONSIDERED NECESSARY FOR A FAIR
PRESENTATION, CONSISTING OF THOSE OF A NORMAL RECURRING NATURE, ARE REFLECTED IN
THE ACCOMPANYING FINANCIAL STATEMENTS.
NOTE B - RESTRUCTURED DEBT
EFFECTIVE JUNE 30, 1995, THE COMPANY ENTERED INTO A LOAN AGREEMENT TO OBTAIN
FINANCING OF $1,500,000. THIS LOAN BEARS INTEREST AT 13.4% THROUGH OCTOBER 1,
2000, AND AT A LENDER STANDARD RATE THEREAFTER. PAYMENT OF INTEREST ONLY IS
REQUIRED ON OCTOBER 1, 1995 FOLLOWED BY SIXTY MONTHLY INSTALLMENTS OF $27,615
WITH THE BALANCE DUE IN TWENTY FOUR ADDITIONAL MONTHLY INSTALLMENTS TO BE
DETERMINED ON NOVEMBER 1, 2000. THE ENTIRE BALANCE IS DUE ON OCTOBER 1, 2002.
THIS LOAN IS SECURED BY SUBSTANTIALLY ALL ASSETS OF THE COMPANY.
THE LOAN WAS GUARANTEED BY THE FRANCHISOR WHO ENTERED INTO A FORBEARANCE AND
RESTRUCTURING AGREEMENT WITH THE COMPANY. THIS AGREEMENT CONTAINS SEVERAL
COVENANTS AND CONDITIONS WHICH, AMONG OTHER THINGS, REQUIRE THE COMPANY TO
MAINTAIN WORKING CAPITAL OF $100,000, A CURRENT RATIO OF 1.0 TO 1.0 AND CASH
FLOW OF 1.1 TIMES DEBT SERVICE. WORKING CAPITAL CONVENTS ARE EFFECTIVE
SEPTEMBER 30, 1995 AND THE CASH FLOW COVENANTS ARE EFFECTIVE FOR THE YEAR ENDING
MARCH 31, 1996. (SEE NOTE C)
AS A CONDITION OF THE LOAN, THE COMPANY RENEGOTIATED AMOUNTS DUE TO CREDITORS
RESULTING IN EXTRAORDINARY INCOME OF $473,981 THROUGH DECEMBER 31, 1995.
NOTE C - PROPOSED SALE OF RESTAURANTS
THE COMPANY HAS REACHED AN AGREEMENT IN PRINCIPLE TO SELL ITS FIVE OPERATING
RESTAURANTS AS WELL AS ITS FRANCHISE RIGHTS TO ITS FRANCHISOR, MIAMI SUBS
GRILL, FOR APPROXIMATELY $2,650,000 OF COMMON STOCK OF THE FRANCHISOR. HOWEVER,
THE SALE IS SUBJECT TO A NUMBER OF CONDITIONS AS WELL AS THE EXECUTION OF A
DEFINITIVE SALE AGREEMENT. SHOULD THIS TRANSACTION BE CONSUMMATED, A LOSS OF
APPROXIMATELY $1,600,000 WILL BE REALIZED.
NOTE D - STOCK SPLIT AND STOCK DIVIDEND
ON DECEMBER 11, 1995 THE COMPANY EFFECTED A ONE-FOR-FIVE REVERSE STOCK SPLIT OF
ITS COMMON STOCK AND REDUCED ITS PAR VALUE FROM $.04 PER SHARE TO $.01 PER
SHARE. SUBSEQUENT TO DECEMBER 31, 1995 THE COMPANY DECLARED A STOCK DIVIDEND OF
ONE SHARE FOR EACH TWO SHARES OUTSTANDING FOR SHAREHOLDERS OF RECORD ON FEBRUARY
2, 1996. AVERAGE SHARES OUTSTANDING AND PER SHARE AMOUNTS REFLECT THE SPLIT AND
THE DIVIDEND FOR ALL PERIODS PRESENTED.
<PAGE>
EXHIBIT 10
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
LONESTAR HOSPITALITY CORPORATION
AND
LSHC ACQUISITION, INC.
AND
CITADEL COMPUTER SYSTEMS, INC.
* * * * *
DATED: JANUARY 31, 1996
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
Recitals..................................................................... 1
Agreement.................................................................... 1
1. Definitions........................................................
2. The Merger......................................................... 4
2.1 The Merger................................................... 4
2.2 Effective Time............................................... 4
2.3 The Certificate of Incorporation............................. 4
2.4 The Bylaws................................................... 4
2.5 Officers and Directors....................................... 4
2.6 Conversion or Cancellation of Citadel Common Stock........... 4
2.7 Exchange of Certificates..................................... 5
2.8 Appraisal Rights............................................. 5
2.9 Approval of the Stockholders................................. 6
2.10 Reporting of Merger.......................................... 6
3. The Closing........................................................ 6
3.1 Time and Place of Closing.................................... 6
3.2 Obligations of Citadel at or Prior to the Closing............ 6
3.3 Obligations of LoneStar and Acquisition at or Prior to the
Closing.................................................... 7
4. Representations, Warranties and Covenants of Citadel............... 7
4.1 Corporate Organization....................................... 7
4.2 Capitalization............................................... 8
4.3 Authority; No Violation...................................... 8
4.4 Consents and Approvals....................................... 8
4.5 Violation of Laws, Permits, etc. ............................ 8
4.6 Citadel Financial Statements................................. 9
4.7 No Undisclosed Liabilities, etc. ............................ 9
4.8 Absence of Certain Changes................................... 9
4.9 Title to Property; Encumbrances.............................. 10
4.10 Litigation................................................... 10
4.11 Taxes........................................................ 10
4.12 Insurance.................................................... 11
4.13 Contracts.................................................... 11
4.14 Compensation and Employee Plans.............................. 12
4.15 Brokers, Finders and Advisors................................ 12
4.16 Labor Force.................................................. 13
4.17 Books and Records............................................ 13
4.18 Payments..................................................... 13
4.19 Disclosure................................................... 13
4.20 Joint Ventures............................................... 13
4.21 Subsidiaries................................................. 13
4.22 Approval of Stockholders..................................... 13
4.23 Intellectual Property........................................ 13
5. Representations, Warranties and Covenants of LoneStar and
Acquisition...................................................... 14
5.1 Corporate Organization....................................... 14
5.2 Capitalization............................................... 14
5.3 Authority.................................................... 14
5.4 Consents and Approvals....................................... 15
i
<PAGE>
5.5 Violation of Laws, Permits, etc. ........................... 15
5.6 LoneStar and Acquisition Financial Statements............... 15
5.7 No Undisclosed Liabilities, etc. ........................... 15
5.8 Absence of Certain Changes.................................. 15
5.9 Title to Property; Encumbrances............................. 16
5.10 Litigation.................................................. 16
5.11 Taxes....................................................... 16
5.12 Insurance................................................... 17
5.13 Contracts................................................... 18
5.14 Compensation and Employee Plans............................. 19
5.15 Brokers, Finders and Advisors............................... 19
5.16 Labor Force................................................. 19
5.17 Books and Records........................................... 19
5.18 Payments.................................................... 19
5.19 Disclosure.................................................. 19
5.20 Joint Ventures.............................................. 20
5.21 Subsidiaries................................................ 20
5.22 Approval of Merger.......................................... 20
5.23 Intellectual Property....................................... 20
5.24 SEC Filings................................................. 20
6. Actions of Citadel Prior to the Closing Date...................... 20
6.1 Affirmative Covenants....................................... 20
6.2 Negative Covenants.......................................... 20
6.3 Consents.................................................... 21
6.4 Advice of Changes........................................... 21
6.5 Best Efforts................................................ 21
6.6 Access to Properties and Records............................ 21
6.7 Supply Documents, Reports, etc. ............................ 21
6.8 Stockholder Approval........................................ 21
7. Actions of LoneStar and Acquisition Prior to the Closing Date..... 21
7.1 Affirmative Covenants....................................... 21
7.2 Negative Covenants.......................................... 22
7.3 Consents.................................................... 22
7.4 Advice of Changes........................................... 22
7.5 OTC Bulletin Board.......................................... 22
7.6 Best Efforts................................................ 22
8. Conditions to LoneStar's and Acquisition's Obligations............ 23
9. Conditions to Citadel's Obligations............................... 24
10. Additional Agreements............................................. 25
10.1 Confidentiality............................................. 25
10.2 Further Assurances.......................................... 26
11. Termination, Waiver and Amendment................................. 26
11.1 Termination................................................. 26
11.2 Manner of Exercise.......................................... 26
11.3 Effect of Termination....................................... 26
11.4 Waiver...................................................... 26
11.5 Amendment................................................... 26
12. Miscellaneous..................................................... 26
12.1 Expenses.................................................... 26
12.2 Press Releases.............................................. 27
12.3 Binding Effect.............................................. 27
12.4 Severability................................................ 27
ii
<PAGE>
12.5 Notices............................................................ 27
12.6 Entire Agreement................................................... 27
12.7 Amendments; Waivers................................................ 28
12.8 Headings........................................................... 28
12.9 Counterparts....................................................... 28
12.10 Specific Performance............................................... 28
12.11 GOVERNING LAW...................................................... 28
12.12 Time of Essence.................................................... 28
12.13 Best Efforts....................................................... 28
iii
<PAGE>
AGREEMENT AND PLAN OF MERGER
----------------------------
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is entered into as
of January __, 1996, by and among LONESTAR HOSPITALITY CORPORATION, a Delaware
corporation ("LoneStar"), LSHC ACQUISITION, INC., a Delaware corporation
("Acquisition"), and CITADEL COMPUTER SYSTEMS, INC. ("Citadel"), a Delaware
corporation.
RECITALS
--------
Acquisition and Citadel desire to merge, subject to the terms,
provisions and conditions of this Agreement, and LoneStar consents thereto.
AGREEMENT
---------
NOW, THEREFORE, for and in consideration of the premises and the mutual
agreements hereinafter set forth, in accordance with the provisions of
applicable law, the parties hereby agree as follows:
1. DEFINITIONS. As used in this Agreement and documents delivered
-----------
pursuant to this Agreement, the following terms shall have the following
meanings:
ACQUISITION. "Acquisition" means LSHC Acquisition, Inc., which is
a wholly-owned subsidiary of LoneStar.
ACQUISITION COMMON STOCK. "Acquisition Common Stock" means
Acquisition's common stock, par value $.01 per share.
ACQUISITION FINANCIAL STATEMENTS. "Acquisition Financial
Statements" are the unaudited Financial Statements of Acquisition for the year
ended December 31, 1995.
AFFILIATE. "Affiliate" means an "affiliate" or "associate" as those
terms are defined in Rule 12b-2 promulgated by the Commission under the Exchange
Act.
CERTIFICATE OF MERGER. "Certificate of Merger" is as defined in
SECTION 2.2.
CITADEL. "Citadel" means Citadel Computer Systems, Inc.
CITADEL COMMON STOCK. "Citadel Common Stock" means Citadel's
common stock, par value $.01 per share.
CITADEL DISCLOSURE SCHEDULE. The "Citadel Disclosure Schedule" is
the disclosure schedule delivered by Citadel to LoneStar contemporaneously with
the execution of this Agreement. Each heading in the Citadel Disclosure Schedule
shall refer to the applicable section of this Agreement.
CITADEL FINANCIAL STATEMENTS. "Citadel Financial Statements" are,
collectively, the audited Financial Statements of Citadel as of and for the year
ended December 31, 1994 and the unaudited Financial Statements of Citadel as of
and for year ended December 31, 1993 and the nine months ended September 30,
1995.
CITADEL WARRANT HOLDERS. "Citadel Warrant Holders" means the
warrant holders referred to in SECTION 3.2(K).
CLOSING. "Closing" means the closing referred to in SECTION 3.1.
1
<PAGE>
CLOSING DATE. The "Closing Date" shall be such date as shall be set
by the parties in writing following satisfaction (or waiver) of the conditions
to the Closing set forth in SECTIONS 8 and 9 hereof.
CODE. "Code" means the Internal Revenue Code of 1986, as amended,
or any successor statute.
COMMISSION. "Commission" means the Securities and Exchange
Commission and/or any other Governmental Entity that administers either the
Securities Act or the Exchange Act.
DGCL. "DGCL" means the Delaware General Corporation Law, as
amended, or any successor statute.
EFFECTIVE DATE. "Effective Date" is as defined in SECTION 2.2.
EFFECTIVE TIME. "Effective Time" is as defined in SECTION 2.2.
ENCUMBRANCE. An "Encumbrance" is any option, pledge, security
interest, lien, charge, encumbrance, or restriction (whether on voting, sale,
transfer, disposition or otherwise), whether imposed by agreement,
understanding, law or otherwise, except those arising under applicable federal
or state securities laws.
ERISA. "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended, or any successor statute.
EXCHANGE ACT. "Exchange Act" means the Securities Exchange Act of
1934, as amended, or any successor statute.
GAAP. "GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants, in statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
GOVERNMENTAL ENTITY. A "Governmental Entity" is any federal, state,
municipal, domestic or foreign court, tribunal, administrative agency,
department, commission, board, bureau or other governmental authority or
instrumentality.
INTELLECTUAL PROPERTY. "Intellectual Property" is as defined in
SECTION 4.23.
JOINT VENTURE AND JOINT VENTURES. "Joint Venture" or "Joint
Ventures" means any partnership or joint venture with third parties in which
Citadel is a partner, venturer or participant.
LONESTAR. "LoneStar" means LoneStar Hospitality Corporation and any
Subsidiary of LoneStar, except for Acquisition.
LONESTAR AND ACQUISITION DISCLOSURE SCHEDULE. "LoneStar and
Acquisition Disclosure Schedule" is the disclosure schedule delivered by
LoneStar and Acquisition to Citadel contemporaneously with the execution of this
Agreement. Each heading in the LoneStar and Acquisition Disclosure Schedule
shall refer to the applicable section of this Agreement.
LONESTAR COMMON STOCK. "LoneStar Common Stock" means LoneStar's
common stock, par value $0.01 per share.
2
<PAGE>
LONESTAR FINANCIAL STATEMENTS. "LoneStar Financial Statements" are
collectively, the audited Financial Statements of LoneStar as of the year ended
March 31, 1994 and 1995, and the unaudited Financial Statements of LoneStar for
the six months ended September 30, 1995.
LONESTAR SEC DOCUMENTS. "LoneStar SEC Documents" are collectively
LoneStar's Form 10-KSB for the year ended March 31, 1995, as amended, Form 10-
QSB for the quarterly period ended September 30, 1995 and Form 8-K dated
December 4, 1995.
LONESTAR SHARES. "LoneStar Shares" mean the LoneStar Common Stock
to be issued to Citadel in connection with the Merger.
MATERIAL EFFECT. "Material Effect" means a material adverse effect
in the business, operations, properties, assets, liabilities, prospects or
condition (financial or otherwise) of Citadel, LoneStar or Acquisition, as the
context requires.
MERGER. "Merger" means the merger of Citadel with and into
Acquisition as described in SECTION 2.1.
NASDAQ. "NASDAQ" means the National Association of Securities
Dealers Automated Quotations.
PLAN. "Plan" is as defined in SECTION 4.14.
RESTAURANT ASSETS. "Restaurant Assets" mean assets used in or in
connection with the operation of restaurants by LoneStar.
SECURITIES ACT. "Securities Act" means the Securities Act of 1933,
as amended, or any successor statute.
SPECIAL MEETING. "Special Meeting" means the Special Meeting of
Citadel Stockholders to be held in 1996 to consider the Merger.
STOCKHOLDERS. "Stockholders" means the stockholders of Citadel on
the record date with respect to the Special Meeting as set forth in the Proxy
Statement.
SUBSIDIARY AND SUBSIDIARIES. "Subsidiary" or "Subsidiaries" means
any corporation with more than 50 percent of its voting power owned directly or
indirectly by Citadel, Acquisition, LoneStar or other relevant person, as the
context requires.
SURVIVING CORPORATION. "Surviving Corporation" is as defined in
SECTION 2.1.
TAXES. "Taxes" is as defined in SECTION 4.11.
TAX RETURN. "Tax Return" is as defined in SECTION 4.11.
TRANSFER AGENT. "Transfer Agent" means the American Securities
Transfer, Inc.
3
<PAGE>
2. THE MERGER.
----------
2.1 THE MERGER. Subject to the terms and conditions of this
----------
Agreement, at the Effective Time, Citadel shall be merged with and into
Acquisition and the separate corporate existence of Citadel shall cease (the
"Merger"). Acquisition shall be the surviving corporation in the Merger
(sometimes referred to as the "Surviving Corporation") and shall continue to be
governed by the laws of the State of Delaware, and the separate corporate
existence of Acquisition with all its rights, privileges, immunities, powers
and franchises shall continue unaffected by the Merger, except as set forth
below in this ARTICLE 2. The Merger shall have the effects specified in the
DGCL.
2.2 EFFECTIVE TIME. The Merger will become effective upon the
--------------
proper filing of a Certificate of Merger with the Secretary of State of the
State of Delaware in accordance with Sections 251 and 103 of the DGCL (the time
of such filing referred to as the "Effective Time" and the date of such filing
referred to as the "Effective Date"). The Certificate of Merger will be
delivered to the Secretary of State of the State of Delaware as soon as
practicable after approval of this Agreement by the Stockholders and
satisfaction or waiver of the other conditions precedent to consummation of the
Merger. It is presently expected that the Merger will become effective on the
date of the Special Meeting. The stock transfer books relating to the Citadel
Common Stock will be closed as of the close of business on the Effective Date,
and thereafter no transfers of record of certificates theretofore representing
shares of Citadel Common Stock will be made.
2.3 THE CERTIFICATE OF INCORPORATION. The Certificate of
--------------------------------
Incorporation of the Surviving Corporation will be the Certificate of
Incorporation of Acquisition following the Effective Date unless and until it is
duly amended in accordance with the terms thereof and the DGCL, except that the
Certificate of Merger shall further amend the Certificate of Incorporation (i)
to change the name of LoneStar to "Citadel Computer Systems, Inc." and (ii) to
restate the Certificate of Incorporation.
2.4 THE BYLAWS. The Bylaws of Acquisition in effect at the
----------
Effective Time shall be the Bylaws of the Surviving Corporation, until duly
amended in accordance with the terms thereof and the DGCL.
2.5 OFFICERS AND DIRECTORS. The officers of LoneStar and
----------------------
Acquisition at the Effective Time shall be Gil Gertner as Chairman of the Board,
George Sharp as President, Chief Executive Officer and Secretary and Steve
Solomon as Chief Operating Officer and Assistant Secretary, and the directors of
LoneStar and Acquisition shall be Gil Gertner, George Sharp and Steve Solomon,
until such officer's and director's successor has been duly elected or appointed
and qualified or until such officer's and director's earlier death, resignation
or removal in accordance with LoneStar's and Acquisition's Certificate of
Incorporation and Bylaws and the DGCL. Additional officers and directors may be
added from time to time in accordance with Acquisition's and LoneStar's
Certificates of Incorporation and Bylaws and the DGCL and shall be added if
necessary to comply with applicable law and the rules and regulations of NASDAQ.
2.6 CONVERSION OR CANCELLATION OF CITADEL COMMON STOCK. The
--------------------------------------------------
Citadel Common Stock shall be converted or canceled in the Merger as follows:
Subject to SECTION 2.8, each certificate that prior to the Effective
Date represented outstanding shares of Citadel Common Stock will, after such
time, be deemed for all purposes to evidence only the right to receive four and
one-half (4.5) shares of LoneStar Common Stock. No interest will accrue or be
payable with respect to the amounts payable upon exchange of certificates. Any
shares of Citadel Common Stock held in the treasury of Citadel will be canceled
upon consummation of the Merger, and no consideration will be delivered in
exchange for those shares. No share of Acquisition Common Stock shall be
affected in any manner by the consummation of the Merger.
No fraction of a share of LoneStar Common Stock will be issued upon such
exchange of shares of Citadel Common Stock, but any holder of shares of Citadel
Common Stock who would otherwise be entitled to a
4
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fraction of a shares of LoneStar Common Stock will instead receive a cash
payment in lieu of and with respect to said fraction of a share to which such
holder would be so entitled determined by multiplying (i) the value of a share
of LoneStar Common Stock (calculated as hereinafter provided) times (ii) the
fractional share interest to which such holder would otherwise be entitled,
which product shall be rounded to the nearest whole cent. For purposes of
computing such cash payment, the value of a share of LoneStar Common Stock shall
be the average of the closing bid prices of LoneStar Common Stock on the OTC
Bulletin Board for the last five trading days prior to the Effective Time. Such
cash payment shall be paid in U.S. dollars at the time of presentation for
surrender to the Transfer Agent of the certificate representing shares of
Citadel Common Stock. The right to receive such cash payment shall, if the
holder thereof shall not prior thereto so present such certificate, terminate on
the second anniversary date of the Effective Time.
At the Effective Time, each outstanding option and warrant to purchase
capital stock of Citadel, listed in SECTION 2.6 of the Citadel Disclosure
Schedule and outstanding immediately prior to the Effective Time, shall become
an option or warrant after the Effective Time to purchase a number of shares of
LoneStar Common Stock equal to four and one-half (4.5) times the number of
shares subject to the Citadel options and warrants set forth in SECTION 2.6 of
the Citadel Disclosure Schedule at the same aggregate exercise price as set
forth on Schedule 2.6 of the Citadel Disclosure Schedule, which is 22.2% of the
per share exercise price set forth in SECTION 2.6 of the Citadel Disclosure
Schedule; provided, however, that this provision shall not apply to the
outstanding contingent rights held by certain Citadel noteholders and set forth
in SECTION 2.6 of the Citadel Disclosure Schedule to acquire warrants to
purchase LoneStar Common Stock following the Merger.
2.7 EXCHANGE OF CERTIFICATES. Promptly after the Effective Time,
------------------------
LoneStar shall cause the Transfer Agent to mail to each record holder, as of the
Effective time, of an outstanding certificate or certificates that immediately
prior to the Effective Time represented issued and outstanding shares of Citadel
Common Stock, a form letter of transmittal (which shall specify that delivery
shall be effected, and risk of loss and title to the certificates shall pass,
only upon proper delivery of the certificates to the Transfer Agent) and
instructions for use in effecting the surrender of the certificates. Upon
surrender to the Transfer Agent of such certificate, together with such letter
of transmittal duly executed, each holder of such certificates formerly
representing shares of Citadel Common Stock shall be entitled to receive in
exchange therefor a certificate representing the whole number of shares of
LoneStar Common Stock into which such shares of Citadel Common Stock shall have
been converted as set forth herein and such certificates of Citadel Common Stock
shall then be canceled.
2.8 APPRAISAL RIGHTS.
----------------
(a) Notwithstanding any other provision of this Agreement to the
contrary, shares of Citadel Common Stock issued and outstanding
immediately prior to the Effective Time and which are held by
shareholders who object to the Merger and comply with all of the
relevant provisions of the DGCL ("Dissenting Shares") shall not be
converted into or represent a right to receive LoneStar Common Stock
hereunder or pursuant to the Articles of Merger at or after the
Effective Time, but instead shall be entitled to receive payment of the
appraised value of such shares in accordance with the provisions of the
DGCL, unless and until the holder thereof shall have failed to perfect,
or shall have effectively withdrawn or lost, such rights to appraisal
and payment under the DGCL. If a holder of Dissenting Shares shall have
so failed to perfect or shall have effectively withdrawn or lost such
right to appraisal and payment, then as of the Effective Time or the
occurrence of such event, whichever last occurs, such holder's
Dissenting Shares shall be converted into and solely represent the right
to receive shares of LoneStar Common Stock, as provided herein. Citadel
shall give LoneStar prompt notice upon receipt by Citadel of any written
objection to the plan of merger set forth herein (any shareholder duly
making such objection being hereinafter called a "Dissenting
Shareholder"). Citadel agrees that prior to the Effective Time, it will
not, without the prior written consent of LoneStar, voluntarily make or
agree to make any payment with respect to, or settle or offer to settle,
any such objection.
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(b) Each Dissenting Shareholder who becomes entitled, pursuant to
the provisions of the DGCL, to payment for his Dissenting Shares shall
receive payment therefor after the Effective Time from the Surviving
Corporation (but only after the amount thereof shall have been agreed
upon or finally determined pursuant to such provisions) and such shares
shall be canceled.
2.9 APPROVAL OF THE STOCKHOLDERS. As soon as reasonably
----------------------------
practicable after the date of this Agreement, Citadel will, in compliance with
all applicable state and federal laws, obtain the approval of the Stockholders
to the Merger. The materials sent by Citadel, in connection with the approval
of Stockholders, will not include any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
2.10 REPORTING OF MERGER. For federal, state and local income tax
-------------------
return reporting purposes, all parties agree to treat the Merger as a forward
subsidiary merger under section 368(a)(2)(D).
3. THE CLOSING.
-----------
3.1 TIME AND PLACE OF CLOSING. The closing of the Merger (the
-------------------------
"Closing"), shall, unless otherwise agreed to in writing by the parties, take
place at the offices of Looper, Reed, Mark & McGraw, 9 Greenway Plaza, Suite
1717, Houston, Texas at 10:00 a.m., local time, on the Closing Date.
3.2 OBLIGATIONS OF CITADEL AT OR PRIOR TO THE CLOSING. At or
-------------------------------------------------
prior to Closing, and subject to the satisfaction by Lonestar and Acquisition of
their respective obligations hereunder, Citadel shall deliver to LoneStar the
following:
(a) A copy of the charter of Citadel certified as of a date within
thirty days of the Closing Date by the Secretary of State of the state of
incorporation and certified by Citadel's corporate secretary as to the absence
of any amendments between the date of certification by the Secretary of State
and the Closing Date;
(b) A certificate from the appropriate governmental officials of
the state of incorporation as to the existence and good standing of Citadel and
the payment of Taxes by Citadel as of a date within thirty days of the Closing
Date, and a telegram or other verification from such officials as to the same
matters dated the business day before the Closing Date;
(c) A certificate from the appropriate governmental officials of
the Other Citadel States (as defined in SECTION 4.1 below) as to the good
standing of Citadel and the payment of Taxes by Citadel as of a date within
thirty days of the Closing Date, and a telegram or other verification from such
officials as to the same matters dated the business day before the Closing Date;
(d) A certificate of the corporate secretary of Citadel attaching
thereto a true and correct copy of the bylaws of Citadel and the corporate
resolutions duly adopted by the board of directors and stockholders of Citadel
authorizing the consummation of the transactions contemplated hereby;
(e) The Certificate of Merger duly executed on behalf of Citadel;
(f) The certificate of Citadel referred to in SECTION 8(A);
(g) All consents or approvals of any third party or any
Governmental Entity that are required under SECTION 8(B);
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(h) The warrant agreement to purchase LoneStar Shares (the "Warrant
Agreement") in substantially the same form as the warrant agreement to purchase
shares of Citadel Common Stock, executed by all Citadel Warrant Holders, as
listed in SECTION 2.6 of the Citadel Disclosure Schedule; and
(i) Such other documents as are required pursuant to this Agreement
or as may reasonably be requested from Citadel by LoneStar or its counsel.
3.3 OBLIGATIONS OF LONESTAR AND ACQUISITION AT OR PRIOR TO THE
----------------------------------------------------------
CLOSING. At or prior to the Closing, and subject to the satisfaction by Citadel
- -------
of its obligations hereunder, LoneStar and Acquisition, as the context requires,
shall deliver to Citadel the following:
(a) A copy of the charter of LoneStar and Acquisition certified as
of a date within thirty days of the Closing Date by the Secretary of State of
the state of incorporation and certified by the respective corporate secretary
of LoneStar and Acquisition as to the absence of any amendments between the date
of certification by the respective Secretary of State and the Closing Date.
(b) A certificate from the appropriate governmental officials of
the respective Secretary of State as to the existence and good standing of
LoneStar and Acquisition and the payment of Taxes by LoneStar and Acquisition as
of a date within thirty days of the Closing Date, and a telegram or other
verification from such officials as to the same matters dated the business day
before the Closing Date;
(c) A certificate from the appropriate governmental officials of
the Other LoneStar States (as defined in SECTION 5.1 below) as to the good
standing of LoneStar and the payment of Taxes by LoneStar as of a date within
thirty days of the Closing Date, and a telegram of other verification from such
officials as to the same matters dated the business day before the Closing Date;
(d) A certificate of the corporate secretary of LoneStar and
Acquisition attaching thereto a true and correct copies of the bylaws of
LoneStar and Acquisition and the corporate resolutions duly adopted by the board
of directors of LoneStar and the board of directors and stockholders of
Acquisition authorizing the consummation of the transactions contemplated
hereby;
(e) The Certificate of Merger duly executed on behalf of LoneStar
and Acquisition;
(f) The certificate of LoneStar and Acquisition referred to in
SECTION 9(A);
(g) All consents or approvals from any third parties or any
Governmental Entity that are required under SECTION 9(B); and
(h) Such other documents as are required pursuant to this Agreement
or as may reasonably be requested from LoneStar or Acquisition by Citadel or its
counsel.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF CITADEL. Except as
----------------------------------------------------
expressly set forth and specifically identified by the section number of this
Agreement in the Citadel Disclosure Schedule, Citadel represents, warrants and
covenants to each of LoneStar and Acquisition, on the date hereof and as of the
Closing Date, as follows:
4.1 CORPORATE ORGANIZATION. Citadel is a corporation duly
----------------------
incorporated and validly existing as a corporation and in good standing under
the laws of its jurisdiction of incorporation. Citadel has the requisite
corporate power and authority to carry on its business as now being conducted
and to own, lease and operate its property and assets, and Citadel is duly
qualified or licensed to do business and is in good standing in every
jurisdiction (the "Other Citadel States") in which the failure to be so
qualified and licensed could have a
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Material Effect. SECTION 4.1 of the Citadel Disclosure Schedule sets forth the
name and state of incorporation of Citadel and each state in which it is
qualified or licensed to do business.
4.2 CAPITALIZATION.
--------------
(a) The authorized, issued and outstanding capital stock of
Citadel, all outstanding securities convertible into or exchangeable or
exercisable for shares of capital stock of Citadel and all rights, agreements or
other commitments of Citadel to issue, transfer or sell its capital stock is as
set forth in SECTION 4.2 of the Citadel Disclosure Schedule. All of the issued
and outstanding shares of capital stock of Citadel are validly issued, fully
paid and nonassessable, and none of such shares have been issued in violation of
the preemptive rights of any person.
(b) Citadel does not own or hold any equity, debt or other interest
in any entity or business or any option to acquire any such interest, except for
accounts receivable that have arisen in the ordinary course of business.
4.3 AUTHORITY; NO VIOLATION.
-----------------------
(a) The execution and performance of this Agreement by Citadel has
been duly and validly authorized by the board of directors of Citadel, and no
other corporate action is necessary to authorize the execution, delivery and
performance of this Agreement by Citadel, except for approval of the Merger by
the stockholders of Citadel. Citadel has the corporate power and authority to
execute and perform this Agreement and to carry out the transactions
contemplated hereby. This Agreement has been duly and validly executed by
Citadel and is a valid and binding obligation of Citadel, enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, moratorium, reorganization, receivership or similar laws affecting
the rights of creditors generally.
(b) None of the execution, delivery or performance of this
Agreement does or will: (i) result in any violation of or be in conflict with or
constitute a default under any term or provision of the Certificate of
Incorporation or Bylaws of Citadel or any term or provision of any judgment,
decree, order, statute, injunction, rule or regulation applicable to Citadel, or
of any material note, bond, mortgage, indenture, lease, license, franchise,
agreement or other instrument or obligation to which Citadel is bound; (ii)
result in the creation of any material Encumbrance upon any of the properties or
assets of Citadel or Acquisition pursuant to any such term or provision; or
(iii) constitute a default under, terminate, accelerate, amend or modify, or
give any party the right to terminate, accelerate, amend, modify, abandon or
refuse to perform or comply with, any material contract, agreement, arrangement,
commitment or plan to which Citadel is a party, or by which Citadel or any of
its properties or assets may be subject or bound.
4.4 CONSENTS AND APPROVALS. No federal, state or other regulatory
----------------------
approvals are required to be obtained, nor any regulatory requirements complied
with, by Citadel in connection with the Merger.
4.5 VIOLATION OF LAWS, PERMITS, ETC.
-------------------------------
(a) Citadel is not in violation of any term or provision of its
Certificate of Incorporation or Bylaws, or of any material term or provision of
any judgment, decree, order, statute, law, injunction, rule, ordinance or
governmental regulation that is applicable to it and where the failure to comply
with which would have a Material Effect.
(b) Citadel has maintained in full force and effect all
certificates, licenses and permits material to the conduct of its business, and
has not received any notification that any revocation or limitation thereof is
threatened or pending.
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4.6 CITADEL FINANCIAL STATEMENTS. The Citadel Financial Statements
----------------------------
fairly present the assets, liabilities and financial position of Citadel
purported to be covered thereby as of the dates thereof and the results of their
operations for the respective periods ended on such dates, all in conformity
with GAAP consistently applied.
4.7 NO UNDISCLOSED LIABILITIES, ETC. Citadel does not have any
--------------------------------
material liabilities or obligations, whether direct, indirect, absolute or
contingent (including, without limitation, liabilities as guarantor or otherwise
with respect to obligations of others), except (a) liabilities that are fully
reflected on or reserved against on the latest balance sheet included in the
Citadel Financial Statements, (b) liabilities incurred in the ordinary course of
business since the date of the latest balance sheet included in the Citadel
Financial Statements that are consistent with past practice and are included in
the latest Citadel Financial Statements, or (c) as specifically disclosed in the
Citadel Financial Statements.
4.8 ABSENCE OF CERTAIN CHANGES. Since the date of the latest
--------------------------
Financial Statement, except as specifically disclosed in the latest Citadel
Financial Statements, Citadel has not:
(a) Suffered any change that would be likely to result in a
Material Effect;
(b) Adopted or made any change in any pension, retirement, profit
sharing or other employee benefit plan or arrangement;
(c) Borrowed or agreed to borrow any money or incurred, assumed or
become subject to, whether directly or by way of guarantee or otherwise, any
other obligation or liability for borrowed money, whether absolute, contingent,
known, unknown, or otherwise, except in the ordinary course of business and
consistent with past practice;
(d) (i) Issued, purchased or redeemed any of its capital securities
or any option, warrant or right to purchase any of the same; (ii) authorized,
declared or paid stock dividends; (iii) authorized, declared or paid any
dividends, distributions of earnings or capital on, or splits or any other
reclassification of, its equity securities;
(e) Mortgaged, pledged or subjected to any Encumbrance any material
portion of its assets, tangible or intangible;
(f) Acquired or disposed of, or entered into any agreement to
acquire or dispose of, any material assets or properties, other than in the
ordinary course of business;
(g) Increased the salaries, compensation, pension or other benefits
payable to its officers and directors or their Affiliates;
(h) Forgiven or cancelled any debts or claims or waived any rights
against Citadel or its Affiliates or forgiven or cancelled any material debts or
claims or waived any material rights against any other person;
(i) Entered into, terminated or received notice of the termination
of any commitment, contract, agreement or transaction that is material to
Citadel; or
(j) Agreed, either in writing or otherwise, to take any action
described in this SECTION 4.8.
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(k) Made any capital expenditure or commitment, except capital
expenditures that individually or in the aggregate do not exceed $50,000, as
Citadel may, in its discretion, deem appropriate.
4.9 TITLE TO PROPERTY; ENCUMBRANCES. Citadel has good and
-------------------------------
indefeasible title to and other legal right to use all properties and assets,
real, personal and mixed, tangible and intangible, reflected as owned on the
latest balance sheet included in the Citadel Financial Statements or acquired
after the date of such balance sheet, except for properties and assets disposed
of in accordance with customary practice in the business or disposed of for full
and fair value since the date of such balance sheet in the ordinary course of
business consistent with past practice and except for matters that would not
have a Material Effect.
4.10 LITIGATION.
----------
(a) There is no action, proceeding, investigation or inquiry
pending or, to the best of Citadel's knowledge, threatened (i) against or
affecting any of Citadel's assets or business that, if determined adversely to
Citadel, would result in a Material Effect or (ii) that questions this Agreement
or any action contemplated by this Agreement or in connection with the Merger.
(b) There are no citations, fines or penalties heretofore asserted
against Citadel or its assets under any federal, state or local law relating to
air, noise or water pollution or other environmental protection matters, or
relating to occupational health or safety, of which Citadel has received notice
and that remain unpaid or that could otherwise bind the assets of Citadel and
that would result in a Material Effect.
(c) Citadel has no knowledge of any state of facts or of the
occurrence or nonoccurrence of any event or group of related events, that should
reasonably cause Citadel to determine that there exists any basis for any
material claim against Citadel for any of the matters described in paragraphs
(a) or (b) above.
4.11 TAXES.
-----
(a) Citadel has duly filed all required separate, consolidated,
combined or unitary tax returns (including any estimated tax returns), reports,
elections, information returns, declarations, statements or other filings
(including any amendments thereto) required to be filed with any relevant taxing
authority ("Tax Returns"). All taxes, imposts, duties, fees, levies,
withholdings or other like assessments or charges, including, without
limitation, income, gross receipts, capital, transfer, excise, occupancy, real
and personal property, sales, use, employment franchise, ad valorem, social
-- -------
security, payroll, unemployment compensation, stamp, net worth, surplus,
environmental, privilege, windfall profits, value-added, customs or other taxes
of any sort, imposed by the United States, or any state, local or foreign
government or subdivision or agency thereof, including any interest, penalties
and additions to tax attributable thereto ("Taxes") owed by Citadel have been
paid in all material respects. Citadel has caused to be duly filed all required
Tax Returns for any partnerships as to which it is the general partner. All
such Tax Returns described are complete and accurate in all material respects
and there is no basis for any material assessment of any addition to the Tax
shown thereon and (i) none of such Tax Returns has been audited by the Internal
Revenue Service or any state, local or other taxing authority, (ii) Citadel has
no proposed or outstanding Tax deficiency or assessment (except as disclosed in
the Citadel Financial Statements) nor has Citadel been notified of any Tax
Return examination applicable to the business or assets of Citadel (or of any
examination of any consolidated, combined or unitary Tax Returns of any
affiliated group within the meaning of Section 1504 of the Code (or any similar
group defined under comparable provisions of state, local or foreign law) (an
"Affiliated Group") of which Citadel was a member and which relate in part to
Citadel), (iii) no waiver of any statute of limitations relating to such Tax
Returns (or to Taxes payable by or chargeable as a lien upon the assets of
Citadel) has been given or requested, and (iv) no extension of the period for
assessment or collection of any such Taxes has been agreed, (v) there are no Tax
liens on any of the assets or properties of Citadel other than liens for current
Taxes not yet due and payable, and (vi) Citadel has no deferred gain or loss (y)
arising from deferred intercompany transactions (as described in Treasury
Regulations Section 1.1502-13) or (z) with respect to the stock or obligations
of any other corporation (as described in Treasury Regulations Section 1.1502-
14). All Taxes payable by, or
10
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chargeable as a lien upon the assets of Citadel as of the Closing have been duly
paid, and the latest balance sheet reflects an adequate reserve for all Taxes
payable or asserted to be payable by or chargeable as a lien upon the assets of
Citadel for all taxable periods or portions thereof through the date thereof.
Any tax sharing agreements or arrangements between Citadel on the one hand and
any other corporation on the other and any obligations to make payments under
any such agreement or arrangement shall be or has been cancelled without any
liability of any party to such agreement or arrangement, or affiliates thereof
as of the Closing.
(b) No consent has been filed under Section 341(f) of the Code with
respect to Citadel.
(c) Citadel is not a "United States real property holding
corporation" (as defined in Section 897(c)(2) of the Code).
(d) Citadel has not made any material payments, is not obligated to
make any material payments, and is not a party to any agreement that under
certain circumstances could obligate it to make any material payments that will
not be deductible under Section 280G of the Code.
(e) Citadel has no liability for the Taxes of any person other than
Citadel (1) under Treasury Regulations Section 1.1502-6 (or any similar
provision of state, local, or foreign law), (2) as a transferee or successor,
(1) by contract or (2) otherwise.
(f) Citadel has delivered to LoneStar correct and complete copies
of all federal, state and local Tax Returns, examination reports, and statements
of deficiencies assessed against or agreed to by Citadel since its first fiscal
year.
(g) The Citadel Disclosure Schedule sets forth the following
information with respect to Citadel (or, in the case of clause (2) below, with
respect to each of the Subsidiaries) as of the most recent practicable date (as
well as on an estimated pro forma basis as of the Closing giving effect to the
consummation of the transactions contemplated hereby): (1) the adjusted tax
basis of Citadel in its assets; (2) the adjusted tax basis of the stockholder(s)
of each Subsidiary in its stock (or the amount of any Excess Loss Account as
defined in Treas. Reg. (S)1.1502-32(e)(1) or Treas. Reg. (S)1.1502-32(a)(3)(ii),
as the case may be; (3) the amount of any net operating loss carryforward, net
capital loss, unused investment or other credit, unused foreign tax, or excess
charitable contribution allocable to Citadel; and (4) the amount of any deferred
gain or loss allocable to Citadel out of any deferred intercompany transaction.
4.12 INSURANCE. The policies of fire, casualty and extended
---------
coverage, public liability, products liability, worker's compensation and other
forms of insurance owned or held by or for the benefit of Citadel are sufficient
for compliance with all requirements of law and all agreements to which Citadel
is a party, are valid and enforceable policies, and will not in any way be
affected by, or terminate or lapse by reason of, the transactions contemplated
by this Agreement. All premiums due under such policies have been paid and
Citadel has complied in all material respects with such policies.
4.13 CONTRACTS.
---------
(a) SECTION 4.13 of the Citadel Disclosure Schedule contains a
complete and correct list as of the date hereof of all material agreements,
contracts and commitments of the following types (and all amendments thereto),
written or oral, to which Citadel is a party or by which any of its properties
is bound:
(i) notes, agreements, mortgages, indentures, security
agreements and other instruments relating to the borrowing of money
or evidence of credit or the deferred purchase price of property,
or the direct or indirect guarantee by such entities of any such
indebtedness or deferred purchase price;
11
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(ii) leases of real property and material personal property
(other than Leases);
(iii) Joint Venture agreements;
(iv) management, employment and consulting agreements or other
contracts for personal services that are not terminable by any of
such entities on not more than one month's notice without penalty;
(v) any agreements providing for liability for severance pay,
collective bargaining agreements, labor contracts, or labor or
personnel policies;
(vi) material surety, performance and maintenance bonds;
(vii) any plan, contract or arrangement providing for
bonuses, pensions, deferred compensation, retirement plan payments,
profit sharing, incentive pay, or for any other employee benefit
plan;
(viii) brokerage or finder's agreements;
(ix) any agreement that (a) restricts the right of such
entities to engage in any place in any line of business, other than
in the ordinary course of business or (b) would restrict the right
of Acquisition or any subsidiary of Acquisition to engage in any
line of business after the Closing Date, other than in the ordinary
course of business; and
(x) any contract, commitment or agreement that individually or
in the aggregate is material to Citadel, except contemplated by
this Agreement or in the ordinary course of business and consistent
with past practice.
(b) Citadel has made available to LoneStar complete and correct
copies of all material written agreements, contracts and commitments, together
with all amendments thereto, and accurate (in all material respects)
descriptions of all material oral agreements. Such agreements, contracts and
commitments are in full force and effect, and all of such entities and, to the
best of Citadel's knowledge, all other parties to such agreements, contracts and
commitments have performed all obligations required to be performed by them to
date thereunder in all material respects and are not in default thereunder in
any material respect.
4.14 COMPENSATION AND EMPLOYEE PLANS.
-------------------------------
(a) For all purposes of this Section, "Plan" means (i) any employee
benefit plan as defined in Section 3(3) of the ERISA, that is (a) maintained by
Citadel, or (b) to which Citadel is making or accruing an obligation to make
contributions, or (ii) any other formal or informal obligation to, arrangement
with, or plan or program for the benefit of, employees of Citadel, including,
but not limited to, stock options, stock bonuses, stock purchase agreements,
bonuses, incentive compensation, deferred compensation, supplemental pensions,
vacations, severance pay, insurance or any other benefit, program or practice.
SECTION 4.14 of the Citadel Disclosure Schedule sets forth the name of each Plan
and lists all documents evidencing any Plan.
(b) Each Plan is now, and has been from its inception, administered
in compliance in all material respects with the provisions of all applicable
laws and regulations, including ERISA, the Code and the Age Discrimination in
Employment Act, as amended, insofar as such statutes are applicable to such
Plan.
4.15 BROKERS, FINDERS AND ADVISORS. Citadel has not employed any
-----------------------------
broker, finder, or investment advisor on its behalf, or incurred any liability
for any brokerage or finder's fees or commissions, in connection with the
transaction contemplated hereby.
12
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4.16 LABOR FORCE.
-----------
(a) Citadel is in compliance in all material respects with all
applicable laws (including, without limitation, federal income tax laws),
ordinances, regulations, statutes, rules and restrictions of any Governmental
Entity respecting employment and employment practices and terms and conditions
of employment.
(b) No union representation question exists respecting the
employees of Citadel and, to Citadel's knowledge, no union organizing activities
are taking place.
4.17 BOOKS AND RECORDS. The books and records of Citadel
-----------------
(including, without limitation, the books of account, minute books and stock
record books) are complete and correct in all material respects and have been
maintained in accordance with sound business practices. The minute books of
Citadel contain accurate and complete records in all material respects of all
meetings held of, and corporate action taken by, the stockholders and the Boards
of Directors of the respective entities, and no meetings of or actions by such
stockholders or any such Boards of Directors have been held or taken for which
minutes have not been prepared and are not contained in such minute books. None
of the records and written documents furnished or made available by Citadel or
its agents to LoneStar's representatives or agents, when considered in context
and together with any relevant or related documents also so furnished or made
available, contain any untrue statement of material fact or omit a material fact
necessary to make any statement therein not misleading.
4.18 PAYMENTS. Citadel has not, directly or indirectly, paid or
--------
delivered any fee, commission or other sum of money or item of property however
characterized to any finder, agent, government official or other party, in the
United States or any other country, in any manner related to its business or
operations, that Citadel knows or has reason to believe to have been illegal
under any federal, state or local laws of the United States or any other country
or territory having jurisdiction over such entity, and has not participated,
directly or indirectly, in any boycotts or similar practices.
4.19 DISCLOSURE. No representation or warranty made by Citadel in
----------
this Agreement (including, without limitation, in the Citadel Disclosure
Schedule) contains any untrue statement of material fact or omits to state any
material fact necessary to make the statements herein or therein not misleading
in light of the circumstances under which made.
4.20 JOINT VENTURES. Citadel is not a member of any partnership,
--------------
joint venture or other business entity.
4.21 SUBSIDIARIES. Citadel does not own any subsidiaries.
------------
4.22 APPROVAL OF STOCKHOLDERS. The board of directors of Citadel
------------------------
have recommended approval of the Merger by the Stockholders, without reservation
or qualification. Gilbert Gertner and George Sharp have executed concurrently
herewith the Voting Agreement substantially in the form of EXHIBIT I.
4.23 INTELLECTUAL PROPERTY. Citadel owns and has the right to use
---------------------
all right, title and interest in and to all patents, trademarks, tradenames,
logos, commercial symbols, service marks, copyrights, software, trade secrets
and know-how used in its businesses (the "Intellectual Property"). All such
Intellectual Property is owned by Citadel, and Citadel has the full right to use
such Intellectual Property, free and clear of all liens, security interests,
charges, encumbrances, equities and other adverse claims. No such item of
Intellectual Property (a) is infringed or has been challenged or threatened in
any material respect; (b) infringes or has been alleged to infringe any similar
property right of any third party; or (c) has been or is now involved in any
opposition, invalidation or cancellation proceeding (nor is any such action
threatened with respect to any such item). Citadel is not aware of any
potentially infringing patent, trademark, copyright or application therefor of
any third party.
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5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF LONESTAR AND
---------------------------------------------------------
ACQUISITION. Except as expressly set forth and specifically identified by the
- -----------
section number of this Agreement in the LoneStar and Acquisition Disclosure
Schedule, LoneStar and Acquisition hereby represent, warrant and covenant to
Citadel, on the date hereof and as of the Closing Date, as follows:
5.1 CORPORATE ORGANIZATION. LoneStar and Acquisition each are a
-----------------------
corporation duly incorporated and validly existing as a corporation and in good
standing under the laws of their respective jurisdictions of incorporation.
LoneStar and Acquisition each have the requisite corporate power and authority
to carry on their respective business as now being conducted and to own, lease
and operate their respective property and assets, and LoneStar and Acquisition
is each duly qualified or licensed to do business and is in good standing in
every jurisdiction (the "Other LoneStar States") in which the failure to be so
qualified and licensed could have a Material Effect. SECTION 5.1 of the
LoneStar and Acquisition Disclosure Schedule sets forth the name and state of
incorporation of LoneStar and each state in which it is qualified or licensed to
do business.
5.2 CAPITALIZATION.
--------------
(a) The authorized, issued and outstanding capital stock of
LoneStar and Acquisition, all outstanding securities convertible into or
exchangeable or exercisable for shares of capital stock of LoneStar or
Acquisition and all rights agreements or other commitments of LoneStar or
Acquisition to issue, transfer or sell their capital stock is as set forth in
SECTION 5.2 of the LoneStar and Acquisition Disclosure Schedule. All of the
issued shares of LoneStar and Acquisition are validly issued, fully paid and
nonassessable, and none of such shares have been issued in violation of the
preemptive rights of any person.
(b) The LoneStar Shares shall be validly issued, fully paid and
nonassessable.
(c) LoneStar and Acquisition do not own or hold any equity, debt or
other interest in any entity or business on any option to acquire any such
interest, except for LoneStar's interest in Acquisition and accounts receivable
that have arisen in the ordinary course of business.
5.3 AUTHORITY.
---------
(a) The execution and performance of this Agreement have been duly
and validly authorized by the board of directors of LoneStar and the board of
directors and stockholder of Acquisition, and no other corporate action by
LoneStar or Acquisition is necessary to authorize the execution, delivery and
performance of this Agreement. LoneStar and Acquisition have the corporate power
and authority to execute and perform this Agreement and to carry out the
transactions contemplated hereby. This Agreement has been duly and validly
executed on behalf of LoneStar and Acquisition and is a valid and binding
obligation of LoneStar and Acquisition, enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy, moratorium,
reorganization, receivership or similar laws affecting the rights of creditors
generally.
(b) None of the execution, delivery or performance of this
Agreement does or will, after the giving of notice, lapse of time or otherwise,
(i) result in any violation of or be in conflict with or constitute a default
under any term or provision of the Certificate of Incorporation or Bylaws of
LoneStar or Acquisition or any term or provision of any instrument, judgment,
decree, order, statute, injunction, rule or regulation applicable to LoneStar or
Acquisition or of any material note, bond, mortgage, indenture, lease, license,
franchise, agreement or other instrument or obligation to which LoneStar or
Acquisition is bound; or (ii) result in the creation of any material lien upon
any of the properties or assets of LoneStar or Acquisition pursuant to any such
term or provision; or (iii) constitute a default under, terminate, accelerate,
amend or modify, or give any party the right to terminate, accelerate, amend,
modify, abandon or refuse to perform or comply with any material contract,
agreement, arrangement, commitment or plan to which LoneStar or Acquisition is a
party, or by which LoneStar or Acquisition or any of the rights, properties or
assets of LoneStar or Acquisition may be subject or bound.
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5.4 CONSENTS AND APPROVALS. No federal, state or other regulatory
----------------------
approvals are required to be obtained, nor any regulatory requirements complied
with, by LoneStar or Acquisition in connection with the Merger.
5.5 VIOLATION OF LAWS, PERMITS, ETC.
-------------------------------
(a) Neither LoneStar nor Acquisition is in violation of any term or
provision of their respective Certificates of Incorporation or Bylaws, or in any
material respect of any term or provision of any judgment, decree, order,
statute, injunction, rule, ordinance or governmental regulation applicable to
them and where the failure to comply with which would have a Material Effect.
(b) LoneStar and Acquisition have maintained in full force and
effect all certificates, licenses and permits material to the conduct of their
respective business, and have not received any notification that any revocation
or limitation thereof is threatened or pending.
5.6 LONESTAR AND ACQUISITION FINANCIAL STATEMENTS. The LoneStar
---------------------------------------------
Financial Statements and Acquisition Financial Statements fairly present the
assets, liabilities and financial position of such entity as of the dates
thereof and the results of its operations for the respective periods ended on
such dates, all in conformity with GAAP consistently applied.
5.7 NO UNDISCLOSED LIABILITIES, ETC. Neither LoneStar nor
-------------------------------
Acquisition have any material liabilities or obligations, whether direct,
indirect, absolute or contingent (including, without limitation, liabilities as
guarantor or otherwise with respect to obligations of others), except (a)
liabilities that are fully reflected on or reserved against on the latest
balance sheet included in the LoneStar Financial Statements and the Acquisition
Financial Statements, (b) liabilities incurred in the ordinary course of
business since the date of the latest balance sheet included in the LoneStar
Financial Statements or the Acquisition Financial Statements that are consistent
with past practice and are included in the latest LoneStar Financial Statements
or the Acquisition Financial Statements, or (c) as specifically disclosed in the
LoneStar Financial Statements or the Acquisition Financial Statements.
5.8 ABSENCE OF CERTAIN CHANGES. Since the date of the latest
--------------------------
LoneStar Financial Statement, except as specifically disclosed in the latest
Financial Statements for LoneStar, neither LoneStar nor Acquisition have:
(a) Suffered any change that would be likely to result in a
Material Effect;
(b) Adopted or made any change in any pension, retirement, profit
sharing or other employee benefit plan or arrangement;
(c) Borrowed or agreed to borrow any money or incurred, assumed or
become subject to, whether directly or by way of guarantee or otherwise, any
other obligation or liability for borrowed money, whether absolute, contingent,
known, unknown, or otherwise, except in the ordinary course of business and
consistent with past practice;
(d) (i) Issued, purchased or redeemed any of its capital securities
or any option, warrant or right to purchase any of the same; (ii) authorized,
declared or paid stock dividends; (iii) authorized, declared or paid any
dividends, distributions of earnings or capital on, or splits or any other
reclassification of, its equity securities;
(e) Mortgaged, pledged or subjected to any Encumbrance any material
portion of its assets, tangible or intangible;
15
<PAGE>
(f) Acquired or disposed of, or entered into any agreement to
acquire or dispose of, any material assets or properties, other than in the
ordinary course of business;
(g) Increased the salaries, compensation, pension or other benefits
payable to its officers and directors or their Affiliates;
(h) Forgiven or cancelled any debts or claims or waived any rights
against LoneStar or Acquisition or their Affiliates or forgiven or cancelled any
material debts or claims or waived any material rights against any other person;
(i) Entered into, terminated or received notice of the termination
of any commitment, contract, agreement or transaction that is material to
LoneStar or Acquisition; or
(j) Agreed, either in writing or otherwise, to take any action
described in this SECTION 5.8.
(k) Made any capital expenditure or commitment, except capital
expenditures that individually or in the aggregate do not exceed $50,000, as
LoneStar or Acquisition may, in its discretion, deem appropriate.
5.9 TITLE TO PROPERTY; ENCUMBRANCES. LoneStar and Acquisition,
-------------------------------
either directly or indirectly, have good and indefeasible title to and other
legal right to use all properties and assets, real, personal and mixed, tangible
and intangible, reflected as owned on their latest balance sheets included in
the LoneStar or Acquisition Financial Statements or acquired after the date of
such balance sheet, except for properties and assets disposed of in accordance
with customary practice in the business or disposed of for full and fair value
since the date of such balance sheet in the ordinary course of business
consistent with past practice and except for matters that would not have a
Material Effect.
5.10 LITIGATION.
----------
(a) There is no action, proceeding, investigation or inquiry
pending or, to the best of LoneStar's or Acquisition's knowledge, threatened (i)
against or affecting any of LoneStar's or Acquisition's assets or business that,
if determined adversely to LoneStar or Acquisition, would result in a Material
Effect or (ii) that questions this Agreement or any action contemplated by this
Agreement or in connection with the Merger.
(b) There are no citations, fines or penalties heretofore asserted
against LoneStar or Acquisition or their assets under any federal, state or
local law relating to air, noise or water pollution or other environmental
protection matters, or relating to occupational health or safety, of which
LoneStar or Acquisition have received notice and that remain unpaid or that
could otherwise bind the assets of LoneStar or Acquisition and that would result
in a Material Effect.
(c) Neither LoneStar nor Acquisition have knowledge of any state of
facts or of the occurrence or nonoccurrence of any event or group of related
events, that should reasonably cause LoneStar or Acquisition to determine that
there exists any basis for any material claim against LoneStar or Acquisition
for any of the matters described in paragraphs (a) or (b) above.
5.11 TAXES.
-----
(a) LoneStar and Acquisition have duly filed all required Tax
Returns. All Taxes owed by LoneStar and Acquisition have been paid in all
material respects, except as disclosed in the LoneStar Financial Statements.
LoneStar and Acquisition have caused to be timely and duly filed all required
Tax Returns for any partnerships as to which either is the general partner. All
such Tax Returns described are complete and accurate
16
<PAGE>
in all material respects and there is no basis for any material assessment of
any addition to the Tax shown thereon and (i) none of such Tax Returns has been
audited by the Internal Revenue Service or any state, local or other taxing
authority, (ii) LoneStar and Acquisition have no proposed or outstanding Tax
deficiency (except as disclosed in the LoneStar Financial Statements) or
assessment nor have they been notified of any Tax Return examination applicable
to the business or assets of LoneStar or Acquisition (or of any examination of
any consolidated, combined or unitary Tax Returns of any Affiliated Group of
which LoneStar or Acquisition was a member and which relate in part to LoneStar
or Acquisition, (iii) no waiver of any statute of limitations relating to such
Tax Returns (or to Taxes payable by or chargeable as a lien upon the assets of
LoneStar or Acquisition) has been given or requested, (iv) no extension of the
period for assessment or collection of any such Taxes has been agreed, (v) there
are no Tax liens on any of the assets or properties of LoneStar or Acquisition
other than liens for current Taxes not yet due and payable, and (vi) LoneStar
and Acquisition have no deferred gain or loss (y) arising from deferred
intercompany transactions (as described in Treasury Regulations Section 1.1502-
13) or (z) with respect to the stock or obligations of any other corporation (as
described in Treasury Regulations Section 1.1502-14). All Taxes payable by, or
chargeable as a lien upon the assets of LoneStar or Acquisition as of the
Closing have been duly paid, and the balance sheet in the latest LoneStar
Financial Statement reflects an adequate reserve for all Taxes payable or
asserted to be payable by or chargeable as a lien upon the assets of LoneStar or
Acquisition for all taxable periods or portions thereof through the date
thereof. Any tax sharing agreements or arrangements between LoneStar or
Acquisition on the one hand and any other corporation on the other and any
obligations to make payments under any such agreement or arrangement shall be or
has been cancelled without any liability of any party to such agreement or
arrangement, or affiliates thereof as of the Closing.
(b) No consent has been filed under Section 341(f) of the Code with
respect to LoneStar or Acquisition.
(c) Neither LoneStar nor Acquisition is a "United States real
property holding corporation" (as defined in Section 897(c)(2) of the Code).
(d) Neither LoneStar nor Acquisition has made any material
payments, is not obligated to make any material payments, and is not a party to
any agreement that under certain circumstances could obligate it to make any
material payments that will not be deductible under Section 280G of the Code.
(e) Neither LoneStar nor Acquisition has any material liability for
the Taxes of any person other than LoneStar and Acquisition (1) under Treasury
Regulations Section 1.1502-6 (or any similar provision of state, local, or
foreign law), (2) as a transferee or successor, (3) by contract or (4)
otherwise.
(f) LoneStar has delivered to Citadel correct and complete copies
of all federal, state and local Tax Returns, examination reports, and statements
of deficiencies assessed against or agreed to by LoneStar since its first fiscal
year.
(g) The LoneStar and Acquisition Disclosure Schedule sets forth the
following information with respect to LoneStar and Acquisition (or, in the case
of clause (2) below, with respect to each of the Subsidiaries) as of the most
recent practicable date (as well as on an estimated pro forma basis as of the
Closing giving effect to the consummation of the transactions contemplated
hereby): (1) the adjusted tax basis of LoneStar and Acquisition and their
assets; (2) the adjusted tax basis of the stockholder(s) of each Subsidiary in
its stock (or the amount of any Excess Loss Account as defined in Treas. Reg.
(S)1.1502-32(e)(1) or Treas. Reg. (S)1.1502-32(a)(3)(ii), as the case may be;
(3) the amount of any net operating loss carryforward, net capital loss, unused
investment or other credit, unused foreign tax, or excess charitable
contribution allocable to LoneStar or Acquisition and (4) the amount of any
deferred gain or loss allocable to LoneStar or Acquisition out of any deferred
intercompany transaction.
5.12 INSURANCE. The policies of fire, casualty and extended
---------
coverage, public liability, products liability, worker's compensation and other
forms of insurance owned or held by or for the benefit of
17
<PAGE>
LoneStar and Acquisition are sufficient for compliance with all requirements of
law and all agreements to which LoneStar or Acquisition are a party, are valid
and enforceable policies, and will not in any way be affected by, or terminate
or lapse by reason of, the transactions contemplated by this Agreement. All
premiums due under such policies have been paid and LoneStar and Acquisition
have complied in all material respects with such policies.
5.13 CONTRACTS.
---------
(a) SECTION 5.13 of LoneStar and Acquisition Disclosure Schedule
contains a complete and correct list as of the date hereof of all material
agreements, contracts and commitments of the following types (and all amendments
thereto), written or oral, to which LoneStar or Acquisition are a party or by
which any of its properties is bound:
(i) notes, agreements, mortgages, indentures, security
agreements and other instruments relating to the borrowing of money
or evidence of credit or the deferred purchase price of property,
or the direct or indirect guarantee by such entities of any such
indebtedness or deferred purchase price;
(ii) leases of real property and material personal property
(other than Leases);
(iii) Joint Venture agreements;
(iv) management, employment and consulting agreements or other
contracts for personal services that are not terminable by any of
such entities on not more than one month's notice without penalty;
(v) any agreements providing for liability for severance pay,
collective bargaining agreements, labor contracts, or labor or
personnel policies;
(vi) material surety, performance and maintenance bonds;
(vii) any plan, contract or arrangement providing for
bonuses, pensions, deferred compensation, retirement plan payments,
profit sharing, incentive pay, or for any other employee benefit
plan;
(viii) brokerage or finder's agreements;
(ix) any agreement that (a) restricts the right of such
entities to engage in any place in any line of business, other than
in the ordinary course of business or (b) would restrict the right
of LoneStar or any subsidiary of LoneStar to engage in any line of
business after the Closing Date, other than in the ordinary course
of business; and
(x) any contract, commitment or agreement that individually or
in the aggregate is material to LoneStar and Acquisition, except
contemplated by this Agreement or in the ordinary course of
business and consistent with past practice.
(b) LoneStar and Acquisition have made available to Citadel
complete and correct copies of all material written agreements, contracts and
commitments, together with all amendments thereto, and accurate (in all material
respects) descriptions of all material oral agreements. Such agreements,
contracts and commitments are in full force and effect, and all of such entities
and, to the best of LoneStar's and Acquisition's knowledge, all other parties to
such agreements, contracts and commitments have performed all obligations
required to be performed by them to date thereunder in all material respects and
are not in default thereunder in any material respect.
18
<PAGE>
5.14 COMPENSATION AND EMPLOYEE PLANS.
-------------------------------
(a) For all purposes of this Section, "Plan" means (i) any employee
benefit plan as defined in Section 3(3) of the ERISA, that is (a) maintained by
LoneStar or Acquisition, or (b) to which LoneStar or Acquisition is making or
accruing an obligation to make contributions, or (ii) any other formal or
informal obligation to, arrangement with, or plan or program for the benefit of,
employees of LoneStar or Acquisition, including, but not limited to, stock
options, stock bonuses, stock purchase agreements, bonuses, incentive
compensation, deferred compensation, supplemental pensions, vacations, severance
pay, insurance or any other benefit, program or practice. SECTION 5.14 of the
LoneStar and Acquisition Disclosure Schedule sets forth the name of each Plan
and lists all documents evidencing any Plan.
(b) Each Plan is now, and has been from its inception, administered
in compliance in all material respects with the provisions of all applicable
laws and regulations, including ERISA, the Code and the Age Discrimination in
Employment Act, as amended, insofar as such statutes are applicable to such
Plan.
5.15 BROKERS, FINDERS AND ADVISORS. Neither LoneStar nor
-----------------------------
Acquisition has employed any broker, finder, or investment advisor on its
behalf, or incurred any liability for any brokerage or finder's fees or
commissions, in connection with the transaction contemplated hereby.
5.16 LABOR FORCE.
-----------
(a) LoneStar and Acquisition are in compliance in all material
respects with all applicable laws (including, without limitation, federal income
tax laws), ordinances, regulations, statutes, rules and restrictions of any
Governmental Entity respecting employment and employment practices and terms and
conditions of employment.
(b) No union representation question exists respecting the
employees of LoneStar and Acquisition and, to LoneStar's and Acquisition's
knowledge, no union organizing activities are taking place.
5.17 BOOKS AND RECORDS. The books and records of LoneStar and
-----------------
Acquisition (including, without limitation, the books of account, minute books
and stock record books) are complete and correct in all material respects and
have been maintained in accordance with sound business practices. The minute
books of LoneStar and Acquisition contain accurate and complete records in all
material respects of all meetings held of, and corporate action taken by, the
stockholders and the Boards of Directors of the respective entities, and no
meetings of or actions by such stockholders or any such Boards of Directors have
been held or taken for which minutes have not been prepared and are not
contained in such minute books. None of the records and written documents
furnished or made available by LoneStar and Acquisition or their agents to
Citadel's representatives or agents, when considered in context and together
with any relevant or related documents also so furnished or made available,
contain any untrue statement of material fact or omit a material fact necessary
to make any statement therein not misleading.
5.18 PAYMENTS. Neither LoneStar nor Acquisition has, directly or
--------
indirectly, paid or delivered any fee, commission or other sum of money or item
of property however characterized to any finder, agent, government official or
other party, in the United States or any other country, in any manner related to
its business or operations, that LoneStar or Acquisition knows or has reason to
believe to have been illegal under any federal, state or local laws of the
United States or any other country or territory having jurisdiction over such
entity, and has not participated, directly or indirectly, in any boycotts or
similar practices.
5.19 DISCLOSURE. No representation or warranty made by LoneStar or
----------
Acquisition in this Agreement (including, without limitation, in the LoneStar
and Acquisition Disclosure Schedule) contains any untrue statement of material
fact or omits to state any material fact necessary to make the statements herein
or therein not misleading in light of the circumstances under which made.
19
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5.20 JOINT VENTURES. Neither LoneStar or Acquisition is a member of
--------------
any partnership, joint venture or other business entity.
5.21 SUBSIDIARIES. Neither LoneStar or Acquisition own any
------------
subsidiaries except for LoneStar's ownership of Acquisition.
5.22 APPROVAL OF MERGER. The board of directors of LoneStar and
------------------
Acquisition have approved the Merger without reservation or qualification.
5.23 INTELLECTUAL PROPERTY. LoneStar and Acquisition own and have
---------------------
the right to use all right, title and interest in and to Intellectual Property
used in their business. All such Intellectual Property is owned by LoneStar or
Acquisition and LoneStar or Acquisition have the full right to use such
Intellectual Property, free and clear of all liens, security interests, charges,
encumbrances, equities and other adverse claims. No such item of Intellectual
Property (a) is infringed or has been challenged or threatened in any material
respect; (b) infringes or has been alleged to infringe any similar property
right of any third party; or (c) has been or is now involved in any opposition,
invalidation or cancellation proceeding (nor is any such action threatened with
respect to any such item). Neither LoneStar nor Acquisition is aware of any
potentially infringing patent, trademark, copyright or application therefor of
any third party.
5.24 SEC FILINGS. LoneStar has filed all forms, reports and
-----------
documents required to be filed with the Commission. All of such filings were
prepared in accordance with the requirements of all applicable laws in all
material respects, and did not at the time they were filed contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
6. ACTIONS OF CITADEL PRIOR TO THE CLOSING DATE.
--------------------------------------------
6.1 AFFIRMATIVE COVENANTS. Prior to the Closing Date, Citadel
---------------------
covenants that, unless the prior written consent of LoneStar is first obtained,
which consent shall not be unreasonably withheld, Citadel will:
(a) During the period from the date of this Agreement to the
Effective Time, Citadel will conducts its operations according to its ordinary
and usual course of business and consistent with past practice, and Citadel will
use its best efforts to preserve intact its business organization, to keep
available the services of its officers and employees and to maintain
satisfactory relationships with licensors, licensees, suppliers, contractors,
distributors, customers and others having business relationships with Citadel.
(b) Duly comply with all laws applicable to them and their
respective properties, operations, business and employees that if not complied
with would result in a Material Effect.
(c) Provide each Citadel Warrant Holder with notice as required
pursuant to such Citadel Warrant Holder's agreement with Citadel.
(d) Execute and deliver to LoneStar the note containing the terms
set forth in SECTION 7.1(C) hereof and in a form that is mutually agreeable to
LoneStar and Citadel (the "Note"), upon LoneStar commencing the funding of the
loan referred to in SECTION 7.1(C) hereof.
(e) Furnish to LoneStar and Acquisition the Citadel Disclosure
Schedule within three business days of the date hereof.
6.2 NEGATIVE COVENANTS. Prior to the Closing Date, except with the
------------------
prior written consent of LoneStar, which consent shall not be unreasonably
withheld, Citadel will not:
20
<PAGE>
(a) Do any of the restricted acts set forth in SECTION 4.8 hereof,
or enter into any agreement of a nature set forth in SECTION 4.13 hereof;
(b) Enter into any transaction other than in the ordinary course of
business; or
(c) Amend the respective organizational or governing documents of
Citadel.
6.3 CONSENTS. Citadel will use best efforts to obtain all consents
from third parties, including, without limitation, Governmental Entities
necessary or appropriate to effectuate the transactions contemplated by this
Agreement.
6.4 ADVICE OF CHANGES. Citadel will promptly advise LoneStar in
-----------------
writing from time to time prior to the Closing Date with respect to any matter
hereafter arising and known to them that, if existing or occurring at the date
of this Agreement, would have been required to be set forth or described in the
Citadel Disclosure Schedule or would have resulted in any representation of
Citadel in this Agreement being untrue.
6.5 BEST EFFORTS. Citadel will use best efforts to cause to be
------------
fulfilled those of the conditions to LoneStar's and/or Acquisition's obligations
to consummate the transactions contemplated by this Agreement that are dependent
upon Citadel's actions and to execute and deliver such instruments and take such
other actions as necessary or appropriate in order to carry out the intent of
this Agreement.
6.6 ACCESS TO PROPERTIES AND RECORDS. From and after the date of
--------------------------------
this Agreement through the earlier of the Closing or the termination of this
Agreement, Citadel shall (a) provide LoneStar an identification of and access to
all books, records and documents, including contracts, agreements, consents,
settlements, revenue and expense information, and (b) afford to LoneStar and its
officers, attorneys, accountants and other authorized representatives free and
full access during normal business hours to the offices, properties, books and
records of Citadel.
6.7 SUPPLY DOCUMENTS, REPORTS, ETC.
-------------------------------
(a) Citadel shall furnish or make available to LoneStar all
documents, reports and other information and data (including financial
statements) concerning Citadel as LoneStar may reasonably require in connection
with any statement, application, or document required to be filed with
applicable Governmental Entities in connection with the transaction contemplated
by this Agreement or furnished to any other person, firm, corporation or
Governmental Entity in connection with this Agreement, including, but not
limited to the Commission.
(b) Citadel represents and warrants that all such information shall
be true, correct, and complete in all material respects and shall not omit any
material fact required to be stated to make such information not misleading in
light of the circumstances under which made.
6.8 STOCKHOLDER APPROVAL. Citadel will use its best efforts to
--------------------
submit this Agreement to the Stockholders for approval at the Special Meeting to
be held at the earliest practicable date for the purpose, among other things, of
considering and voting upon a proposal to approve and adopt this Agreement.
7. ACTIONS OF LONESTAR AND ACQUISITION PRIOR TO THE CLOSING DATE.
-------------------------------------------------------------
7.1 AFFIRMATIVE COVENANTS. Prior to the Closing Date, LoneStar and
---------------------
Acquisition covenant that, unless the prior written consent of Citadel is first
obtained, each (except with respect to subparagraph (c) below that applies
solely to LoneStar) will:
21
<PAGE>
(a) During the period from the date of this Agreement to the
Effective Time, conduct their operations according to their ordinary and usual
course of business and consistent with past practice, and will use their best
efforts to preserve intact their business organizations, to keep available the
services of their officers and employees and to maintain satisfactory
relationships with licensors, licensees, suppliers, contractors, distributors,
customers and others having business relationships with LoneStar or Acquisition.
(b) Duly comply with all laws applicable to them and their
respective properties, operations, business and employees that if not complied
with would result in a Material Effect.
(c) Within two business days of the date hereof, LoneStar shall
advance to Citadel $100,000 as an unsecured loan and upon any financing of debt
or equity by LoneStar after the date hereof, LoneStar shall, within two business
days of LoneStar's receipt of such proceeds, fund to Citadel such proceeds until
Citadel has received an unsecured loan to Citadel in an additional principal
amount of $400,000, pursuant to the Note to be executed by Citadel. The Note
shall be for a term of one year, shall bear interest at 12% per annum, shall be
an unsecured obligation and shall be in a form that is mutually agreeable to
LoneStar and Citadel.
(d) Furnish to Citadel the LoneStar and Acquisition Disclosure
Schedule within three business days of the date hereof.
7.2 NEGATIVE COVENANTS. Prior to the Closing Date without the prior
------------------
written consent of Citadel, LoneStar and Acquisition will not:
(a) Do any of the restricted acts set forth in SECTION 5.8 hereof,
or enter into any agreement of a nature set forth in SECTION 5.13 hereof;
(b) Enter into any transaction other than in the ordinary course of
business; or
(c) Amend their respective organizational or governing documents of
LoneStar and Acquisition.
7.3 CONSENTS. LoneStar and Acquisition will use best efforts to
--------
obtain all consents from third parties, including, without limitation,
Governmental Entities necessary or appropriate to effectuate the transactions
contemplated by this Agreement.
7.4 ADVICE OF CHANGES. LoneStar will promptly advise Citadel in
-----------------
writing from time to time prior to the Closing Date with respect to any matter
hereafter arising and known to it that, if existing or occurring at the date of
this Agreement, would have been required to be set forth or described in the
LoneStar and Acquisition Disclosure Schedule or would have resulted in any
representation of LoneStar or Acquisition in this Agreement being untrue in any
material respect.
7.5 OTC BULLETIN BOARD. LoneStar will use its best efforts to
------------------
maintain the listing on the OTC Bulletin Board of the LoneStar Common Stock.
7.6 BEST EFFORTS. LoneStar and Acquisition will use their best
------------
efforts to cause to be fulfilled those of the conditions to Citadel's
obligations to consummate the transactions contemplated by this Agreement that
are dependent upon LoneStar's or Acquisition's actions and to execute and
deliver such instruments and take such other actions as necessary or appropriate
in order to carry out the intent of this Agreement.
7.7 ACCESS TO PROPERTIES AND RECORDS. From and after the date of
--------------------------------
this Agreement through the earlier of the Closing or the termination of this
Agreement, LoneStar and Acquisition shall (a) provide Citadel an identification
of and access to all books, records and documents, including contracts,
agreements, consents, settlements, revenue and expense information, and (b)
afford to Citadel and its officers, attorneys,
22
<PAGE>
accounts and other authorized representatives free and full access during normal
business hours to the offices, properties, books and records of LoneStar and
Acquisition.
7.8 SUPPLY DOCUMENTS, REPORTS, ETC.
------------------------------
(a) LoneStar and Acquisition shall furnish or make available to
Citadel all documents, reports and other information and data (including
financial statements) concerning LoneStar and Acquisition as Citadel may
reasonably require in connection with any statement, application, or document
required to be filed with applicable Government Entities in connection with the
transaction contemplated by this Agreement or furnished to any other person,
firm, corporation or Governmental Entity in connection with this Agreement,
including, but not limited to the Commission.
(b) LoneStar and Acquisition represent and warrant that all such
information shall be true, correct, and complete in all material respects and
shall not omit any material fact required to be stated to make such information
not misleading in light of the circumstances under which made.
8. CONDITIONS TO LONESTAR'S AND ACQUISITION'S OBLIGATIONS. Each and
------------------------------------------------------
every obligation of LoneStar and Acquisition under this Agreement (other than
the obligation to make the loan referenced in SECTION 7.1(C) hereof) to be
performed on or before the Closing Date is, at the option of LoneStar or
Acquisition, subject to the satisfaction on or before the Closing Date of each
of the following conditions:
(a) (i) All of the terms, covenants and conditions of this
Agreement to be complied with or performed by Citadel at or before the Closing
Date shall have been duly complied with and performed in all material respects,
(ii) the representations and warranties of Citadel set forth in ARTICLE 4, as
modified by the statements contained in the Citadel Disclosure Schedule, shall
be true in all material respects on and as of the Closing Date with the same
force and effect as if such representations and warranties had been made on and
as of the Closing Date and (iii) LoneStar shall have received a certificate to
such effect from the President of Citadel.
(b) All consents, waivers, approvals, licenses, authorizations of,
or filings or declarations with third parties or Governmental Entities required
to be obtained by Citadel in order to permit the transactions contemplated by
this Agreement to be consummated in accordance with agreements and court orders
applicable to Citadel and applicable governmental laws, rules, regulations and
agreements shall have been obtained and any waiting period thereunder shall have
expired or been terminated and LoneStar shall have received a certificate to
such effect from the President of Citadel.
(c) LoneStar shall have received from each Stockholder an
investment letter executed by such Stockholder reasonably acceptable to LoneStar
pursuant to which, among other things, such Stockholder acknowledges that the
LoneStar Shares are restricted securities under the Securities Act and
represents that such Stockholder is acquiring the LoneStar Shares without a view
to distribution.
(d) LoneStar shall have received the written opinion of Endeavour
Capital Corporation as to the fairness to LoneStar's Stockholders of the Merger.
(e) LoneStar shall have received a Voting Agreement substantially
in the form of EXHIBIT I executed by Gil Gertner and George Sharp.
(f) All actions, proceedings, instruments and documents in
connection with the consummation of the transactions contemplated by this
Agreement, including the forms of all documents, legal matters, opinions and
procedures in connection therewith, shall have been approved in form and
substance by counsel for LoneStar, which approval shall not be unreasonably
withheld.
23
<PAGE>
(g) Citadel shall have furnished such certificates to evidence
compliance with the conditions set forth in this Article, as may be reasonably
requested by LoneStar or its counsel.
(h) Citadel shall not have suffered any Material Effect.
(i) No material information or data provided or made available to
LoneStar or Acquisition by or on behalf of Citadel shall be incorrect in any
material respect.
(j) No investigation and no suit, action or proceeding before any
court or any governmental or regulatory authority shall be pending or threatened
by any state or federal governmental or regulatory authority, against Citadel or
any of its affiliates, associates, officers or directors seeking to restrain,
prevent or change in any material respect the transactions contemplated hereby
or seeking damages in connection with such transactions that are material to
Citadel.
(k) The Placement Agency Agreement, dated November 14, 1995, by and
between Citadel and Jannsen-Meyers Associates, L.P. shall have been terminated
by Citadel without any liability except as provided for in Section 12 thereof.
(l) The Warrant Agreement shall have been executed and delivered by
all Citadel Warrant Holders.
(m) Holders of no more than 15% of the issued and outstanding
shares of the capital stock of Citadel shall have exercised appraisal rights
under the DGCL.
(n) An Employment Agreement shall have been executed and delivered
by Steven B. Solomon in substantially the same form as the employment agreements
executed by Messrs. Gertner and Sharp referred to in subparagraph (e) above.
9. CONDITIONS TO CITADEL'S OBLIGATIONS. Except as set forth below,
-----------------------------------
each and every obligation of Citadel under this Agreement to be performed on the
Closing Date is, at the option of Citadel, subject to the satisfaction on or
before the Closing Date, of each of the following conditions:
(a) (i) All of the terms, covenants and conditions of this
Agreement to be complied with or performed by LoneStar and Acquisition at or
before the Closing Date shall have been duly complied with and performed in all
material respects, (ii) the representations and warranties of Acquisition set
forth in ARTICLE 5 shall be true in all material respects on and as of the
Closing Date with the same force and effect as if such representations and
warranties had been made on and as of the Closing Date, and (iii) Citadel shall
have received a certificate from an officer of LoneStar and an officer of
Acquisition at Closing to such effect.
(b) All consents, waivers, approvals, licenses, authorizations of,
or filings or declarations with third parties or Governmental Entities required
to be obtained by LoneStar and Acquisition in order to permit the transactions
contemplated by this Agreement to be consummated in accordance with agreements
and court orders applicable to LoneStar and Acquisition and applicable
governmental laws, rules, regulations and agreements shall have been obtained
and any waiting period thereunder shall have expired or been terminated and
Citadel shall have received a certificate from an officer of LoneStar and an
officer of Acquisition at Closing to such effect.
(c) All actions, proceedings, instruments and documents in
connection with the consummation of the transactions contemplated by this
Agreement, including the forms of all documents, legal matters, opinions and
procedures in connection therewith, shall have been approved in form and
substance by counsel for Citadel, which approval shall not be unreasonably
withheld.
24
<PAGE>
(d) LoneStar shall have furnished such certificates of its officers
and others to evidence compliance with the conditions set forth in this Article,
as may be reasonably requested by Citadel or their counsel.
(e) Neither LoneStar nor Acquisition shall have suffered any
Material Effect.
(f) No material information or data provided or made available to
Citadel by or on behalf of LoneStar or Acquisition shall be incorrect in any
material respect.
(g) No investigation and no suit, action or proceeding before any
court or any governmental or regulatory authority shall be pending or threatened
by any state or federal governmental or regulatory authority, against LoneStar
or Acquisition or any of their affiliates, associates, officers or directors
seeking to restrain, prevent or change in any material respect the transactions
contemplated hereby or seeking damages in connection with such transactions that
are material to LoneStar or Acquisition.
(h) Citadel shall be reasonably satisfied that LoneStar's cash flow
from the Restaurant Assets is positive as of the Closing Date; provided,
however, that for this purpose, expenses not directly related to restaurant
operations, including, but not limited to, general and administrative expenses;
legal and other expenses in connection with financing activities, the
transactions contemplated by this Agreement, and other acquisition and/or
dispositions of assets not in the ordinary course of business; and litigation
expenses, including judgments, settlements and legal fees and expenses, shall
not be included in the calculation of cash flow.
(i) The Placement Agency Agreement, dated November 14, 1995, by and
between Citadel and Jannsen-Meyers Associates, L.P. shall have been terminated
by Citadel without any liability except as provided for in Section 12 thereof.
(j) The Warrant Agreement shall have been executed and delivered by
all Citadel Warrant Holders.
(k) Employment Agreements shall have been executed and delivered by
Gilbert Gertner and George Sharp in a form reasonably satisfactory to LoneStar
and Citadel.
(l) LoneStar shall have sold the Restaurant Assets or shall have
entered into a definitive agreement to sell the Restaurant Assets on terms and
conditions no less favorable to LoneStar than as set forth on EXHIBIT III or if
the Restaurant Assets have not been sold on such terms or such definitive
agreement has not been entered into, Citadel shall be reasonably satisfied with
LoneStar's progress in selling the Restaurant Assets.
(m) Lone Star has made the loan to Citadel described in SECTION
7(C)(I) by February 15, 1996.
Notwithstanding the foregoing, if LoneStar shall have sold the
Restaurant Assets as provided in (l) above and has made the loan as described in
(m) above, all other conditions set forth in SECTION 9 shall have been deemed to
be satisfied.
10. ADDITIONAL AGREEMENTS.
---------------------
10.1 CONFIDENTIALITY. The parties hereto will, and will cause their
---------------
officers, directors, employees and authorized representatives to, hold in
confidence all, and not to use or to disclose to others any, nonpublic
information received by them from another party hereto in connection with the
transactions contemplated by this Agreement; provided, however, the foregoing
shall not restrict necessary disclosures in compliance with requirements of any
law, governmental order or regulation.
25
<PAGE>
10.2 FURTHER ASSURANCES. After Closing, the parties shall execute,
------------------
acknowledge and deliver or cause to be executed, acknowledged and delivered such
instruments and take such other action including payment of monies as may be
necessary or advisable to carry out their obligations under this Agreement and
under any document, certificate or other instrument delivered pursuant hereto or
required by law. If at any time subsequent to the Closing, any party comes into
possession of money or property belonging to another party, such money or
property shall be promptly turned over to the party entitled thereto.
11. TERMINATION, WAIVER AND AMENDMENT.
---------------------------------
11.1 TERMINATION. This Agreement may be terminated prior to the
-----------
Effective Date before or after approval by the Stockholders by: (i) mutual
consent of the board of directors of LoneStar, Acquisition and Citadel for any
reason; (ii) LoneStar or Acquisition, if Citadel has failed to comply in any
material respect with any of its covenants or agreements under this Agreement
that are required to be complied with prior to the date of such termination;
(iii) Citadel, if LoneStar or Acquisition has failed to comply in any material
respect with any of their covenants or agreements under this Agreement that are
required to be complied with prior to the date of such termination; (iv) either
LoneStar, Acquisition or Citadel, if the Closing does not take place prior to
February 28, 1996, except that such date may be extended until March 31, 1996,
by LoneStar, Acquisition or Citadel if such delay is attributable to actions by
a Governmental Entity; (v) either LoneStar, Acquisition or Citadel, if a
Governmental Entity has permanently enjoined or prohibited consummation of the
Merger and such court or government action is final and nonappealable; or (vi)
Citadel, if LoneStar has not advanced at least $500,000 as an unsecured loan to
Citadel as provided in SECTION 7.1(C) by February 15, 1996.
11.2 MANNER OF EXERCISE. In the event of termination and
------------------
abandonment by LoneStar, Acquisition or Citadel, pursuant to SECTION 11.1,
written notice thereof shall forthwith be given to the other parties, and this
Agreement shall terminate and the transactions contemplated hereunder shall be
abandoned without further action by the parties.
11.3 EFFECT OF TERMINATION. In the event of the termination and
---------------------
abandonment pursuant to SECTION 11.1, this Agreement shall become void and have
no effect, without any liability on the part of any of the parties or their
directors or officers or stockholders in respect of this Agreement and the
transactions contemplated hereby except that a party that breaches this
Agreement may have liability to the other parties hereto arising out of such
breach. Except as allowed under this Agreement, if the Merger is not
consummated, each party to this Agreement will bear its own costs and expenses
in connection therewith and the transactions contemplated thereby.
11.4 WAIVER. The respective obligations of LoneStar, Acquisition
------
and Citadel to effect the Merger are subject to written waiver thereof.
11.5 AMENDMENT. LoneStar, Acquisition and Citadel may amend this
---------
Agreement before or after approval by the stockholders of the companies, but no
amendment may be made after such approval if the amendment would change the
exchange ratio provided in SECTION 2.6 hereof or if any such amendment would
materially adversely affect the rights of any such stockholder, except with the
further approval of the stockholders so adversely affected. The parties to this
Agreement may, at any time prior to the Effective Date, extend the time for
performance of any of the other parties' obligations under this Agreement and
waive any inaccuracies in the representations and warranties contained herein
and waive compliance with any of the agreements or conditions contained herein
that may be legally waived.
12. MISCELLANEOUS.
-------------
12.1 EXPENSES. Except as otherwise provided herein, each party
--------
shall pay all expenses and costs in connection with this Agreement and the
transactions contemplated hereby.
26
<PAGE>
12.2 PRESS RELEASES. No party shall make any public announcement or
--------------
press release with respect to this transaction without written consent of the
others (which shall not be unreasonably withheld), except as required by law.
12.3 BINDING EFFECT. This Agreement and all of the provisions
--------------
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns. Neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned by any
party without the prior written consent of the others. Nothing contained herein,
express or implied, is intended to confer on any person other than the parties
hereto or their respective successors and permitted assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
12.4 SEVERABILITY. Any provision of this Agreement that is
------------
prohibited or unenforceable in any jurisdiction shall, in such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12.5 NOTICES. Any notice, request, instructions or other document
-------
to be given hereunder to any party shall be in writing, sent by facsimile
transmission or delivered personally or by courier or sent by certified mail,
postage prepaid, as follows:
If to Citadel:
Citadel Computer Systems, Inc.
2950 North Loop West
Suite 1800
Houston, Texas 77092
Attention: George Sharp, President
If to LoneStar or Acquisition:
LoneStar Hospitality Corporation
3131 Turtle Creek
Suite 1301
Dallas, Texas 75219
Attention: Steven B. Solomon, President
Any party may change its address for purposes of this Section by giving written
notice of such change of address to the other parties in the manner herein
provided for giving notice. Any notice or communication hereunder shall be
deemed to have been given when (i) deposited in the United States mail, if by
certified mail, and (ii) received, if delivered personally or by courier or
facsimile transmission.
12.6 ENTIRE AGREEMENT. This Agreement (including the instruments
----------------
between the parties referred to herein and any waivers delivered pursuant
hereto) constitutes the entire agreement among the parties and supersedes all
other prior agreements and understandings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof. The
Exhibits and Schedules are a part of this Agreement as if fully set forth
herein. All references to articles, sections, subsections, paragraphs, clauses,
exhibits and schedules shall be deemed references to such part of this
Agreement, unless the context shall otherwise require.
27
<PAGE>
12.7 AMENDMENTS; WAIVERS. No supplement, modification, or amendment
-------------------
of this Agreement or waiver of any provision of this Agreement will be binding
unless executed in writing by, or on behalf of, all parties to this Agreement.
No waiver of any of the provisions of this Agreement will be deemed or will
constitute a waiver of any other provision of this Agreement (regardless of
whether similar), nor will any such waiver constitute a continuing waiver unless
otherwise expressly provided.
12.8 HEADINGS. Descriptive headings contained herein are for
--------
convenience of reference only and shall not affect the meaning or interpretation
hereof.
12.9 COUNTERPARTS. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute but one agreement.
12.10 SPECIFIC PERFORMANCE. The parties hereto agree that
--------------------
irreparable damage would occur if any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provision hereof in any court of the United States of
America or any state having jurisdiction, in addition to any other remedy to
which they are entitled at law or in equity.
12.11 GOVERNING LAW. THIS AGREEMENT AND THE LEGAL RELATIONS BETWEEN
-------------
THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF TEXAS APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED IN THAT STATE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
12.12 TIME OF ESSENCE. Time is of the essence of the parties'
---------------
obligation to consummate the transactions contemplated by this Agreement on the
Closing Date.
12.13 BEST EFFORTS. No provision of this Agreement calling for a
------------
party to use its best efforts or reasonable efforts shall be construed so as to
require such party to incur out-of-pocket expenditures other than expenditures
normally incurred in transactions similar to the Merger or to take any step that
would not be commercially reasonable, in light of all of the circumstances.
28
<PAGE>
EXECUTED as of the day and year first above written.
LONESTAR HOSPITALITY CORPORATION
By:_________________________
Name:_______________________
Title:______________________
LSHC ACQUISITION, INC.
By:_________________________
Name:_______________________
Title:______________________
CITADEL COMPUTER SYSTEMS, INC.
By:_________________________
Name:_______________________
Title:______________________
29
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM LONESTAR
HOSPITALITY CORPORATION AND SUBSIDIARY FINANCIAL STATEMENTS AS OF DECEMBER 31,
1995 AND MARCH 31, 1995 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<S> <C> <C>
<PERIOD-TYPE> 9-MOS 12-MOS
<FISCAL-YEAR-END> MAR-31-1995 MAR-31-1995
<PERIOD-START> APR-01-1995 APR-01-1994
<PERIOD-END> DEC-31-1995 MAR-31-1995
<CASH> 100,398 52,494
<SECURITIES> 0 0
<RECEIVABLES> 103,063 141,155
<ALLOWANCES> 0 0
<INVENTORY> 47,920 47,770
<CURRENT-ASSETS> 359,888 327,082
<PP&E> 4,065,270 3,714,256
<DEPRECIATION> 489,960 317,290
<TOTAL-ASSETS> 4,755,972 4,224,398
<CURRENT-LIABILITIES> 1,208,622 2,658,526
<BONDS> 0 0
0 0
0 0
<COMMON> 82,998 475,609
<OTHER-SE> 2,128,014 1,090,263
<TOTAL-LIABILITY-AND-EQUITY> 4,755,972 4,755,972
<SALES> 3,284,026 5,897,527
<TOTAL-REVENUES> 3,284,026 6,388,457
<CGS> 1,131,794 2,143,719
<TOTAL-COSTS> 3,280,384 6,744,396
<OTHER-EXPENSES> 586,381 1,217,098
<LOSS-PROVISION> 0 285,707
<INTEREST-EXPENSE> 0 8,748
<INCOME-PRETAX> 0 (1,867,492)
<INCOME-TAX> 0 0
<INCOME-CONTINUING> (608,339) (1,867,492)
<DISCONTINUED> 0 0
<EXTRAORDINARY> 484,884 0
<CHANGES> 0 0
<NET-INCOME> (123,455) (1,867,492)
<EPS-PRIMARY> (.10) (.17)
<EPS-DILUTED> 0 0
</TABLE>
