<PAGE>
This Document is a copy of the
Form 8-K Current Report filed
on May 14, 1996 Pursuant to a
Rule 201 Temporary Hardship
Exemption.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT MAY 10, 1996
(DATE OF EARLIEST EVENT REPORTED)
AUSTIN'S INTERNATIONAL, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF INCORPORATION)
33-47357-A 65-0322000
(COMMISSION FILE NUMBER) (IRS EMPLOYER IDENTIFICATION NO.)
2400 E. COMMERCIAL BOULEVARD, SUITE 800, FT. LAUDERDALE, FLORIDA 33308
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE (954) 772-0980
<PAGE>
ITEM 5. OTHER EVENTS.
------------
On May 10, 1996, the Registrant issued $500,000 principal amount of its
Two-Year 8% Convertible Notes (the "New Convertible Notes"), which entitle the
holders thereof to convert such notes into newly-issued shares of common stock,
par value $.01 per share, of the Registrant at the stated conversion price of
$.50 per share, subject to certain adjustments. Copies of the form of New
Convertible Note and related Subscription Agreement are filed with this Report
as Exhibit 4.1 and Exhibit 4.2, respectively. The New Convertible Notes were
----------- -----------
issued in the following principal amounts to the following persons: Good Hope
Development S.A. ($50,000); Voleon Shipping S.A. ($150,000); and Miyako
Management Pacific Corp. ($300,000).
Also effective May 10, 1996, holders of $1,645,000 aggregate principal
amount of the Company's outstanding convertible notes (including the New
Convertible Notes) converted such notes into a total of 3,290,000 newly-issued
shares of common stock of the Registrant, at the stated conversion price of $.50
per share.
Included as Exhibit 99.1 and Exhibit 99.2, respectively, to this Report
------------ ------------
are: (a) the Registrant's unaudited consolidated balance sheet, and pro forma
consolidated balance sheet, as of March 31, 1996; and (b) the Registrant's
unaudited consolidated statements of operations, and pro forma consolidated
statements of operations, for the three months and twelve months ended March 31,
1996. The pro forma consolidated balance sheet assumes that the above
transactions took place on March 31, 1996. The pro forma consolidated
statements of operations assume that the above transactions took place on
January 1, 1996 and April 1, 1995, respectively, for the three-month and twelve-
month periods ending March 31, 1996. The pro forma consolidated balance sheet
and pro forma consolidated statements of operations should be read in
conjunction with the Notes thereto, which are included as Exhibit 99.3 to this
------------
Report.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
---------------------------------
(c) Exhibits
4.1 Form of Two-Year 8% Convertible Notes.
4.2 Form of Subscription Agreement for the Two-Year 8%
Convertible Notes.
99.1 Austin's International, Inc. Consolidated Balance Sheet as of
March 31, 1996 (unaudited), and Pro Forma Consolidated Balance
Sheet as of March 31, 1996.
2
<PAGE>
99.2 Austin's International, Inc. Consolidated Statements of
Operations for the three months and twelve months ended March
31, 1996 (unaudited), and Pro Forma Consolidated Statements of
Operations for the three months and twelve months ended March
31, 1996.
99.3 Notes to Pro Forma Financial Statements
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AUSTIN'S INTERNATIONAL, INC.
-----------------------------
(Registrant)
Date: May 13, 1996 By: /s/ Larry R. Graybill
--------------------------------
Larry E. Graybill
C.F.O.
3
<PAGE>
EXHIBIT 4.1
DATED:_______________
NO.___________________ $______________
AUSTIN'S INTERNATIONAL, INC.
TWO-YEAR 8% CONVERTIBLE NOTE
NEITHER THIS NOTE, NOR ANY SHARES OF COMMON STOCK ISSUED UPON CONVERSION OF
THIS NOTE, WILL BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR UNDER ANY OTHER APPLICABLE FEDERAL OR STATE SECURITIES LAWS. THE HOLDER
OF THIS NOTE OR ANY CERTIFICATE FOR COMMON STOCK ISSUED UPON CONVERSION OF
THIS NOTE, MAY NOT SELL OR TRANSFER THIS NOTE OR SUCH CERTIFICATE UNLESS
REGISTERED PURSUANT TO SUCH LAWS OR UNLESS EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF SUCH LAWS ARE APPLICABLE TO SUCH SALE OR TRANSFER.
--------------------------------------
FOR VALUE RECEIVED, AUSTIN'S INTERNATIONAL, INC., a Delaware corporation
("Maker"), with its principal office at 2400 East Commercial Boulevard, Suite
800, Fort Lauderdale, Florida 33308 (the "Office"), for value received, hereby
promises to pay to the order of ______________________________________________
____________________________ at ______________________________________________
______________________________________________________________________________
(the "Holder"), the principal sum of $______________ (the "Principal Sum"),
together with simple interest on the Principal Sum at the rate of 8% per annum.
Interest shall be payable semi-annually in arrears to the Holder without
presentment or demand, and the Principal Sum, together with all unpaid interest
thereon, shall be payable on _____________, 1998 upon presentation and surrender
of this Note at the Maker's Office, in such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts. This Note is callable by the Company at any
time after six (6) months from the issuance date, upon written request by the
Company. This note is an unsecured obligation of the Company and will be issued
in registered form. Interest and the Principal Sum will be paid to the person or
persons in whose name this Note is registered.
<PAGE>
1. CONVERSION.
(a) The Maker is presently authorized to issue 50,000,000 shares of
common stock, par value $.01 per share, of the Maker ("Common Stock"), of which
6,713,550 shares are presently issued and outstanding. The Holder shall have
the right (the "Conversion Right"), at its option, to convert the entire
Principal Sum (or any portion of the Principal Sum thereof which is an integral
multiple of $1,000.00) into fully paid and nonassessable shares of the Common
Stock at a conversion price (the "Conversion Price") of $.50 per share, which is
equal to ______% of the market price on April ____, 1996, of the Common Stock as
quoted on the National Association of Securities Dealers Automated Quotation
System, by surrendering this Note at the Maker's Office, together with a written
notice of conversion (the "Conversion Notice") and a written instrument of
transfer in form and substance satisfactory to the Maker and duly executed by
the Holder. In case this Note shall be surrendered for conversion of only a
portion of the Principal Sum thereof, the Company shall execute and deliver to
the Holder, at the expense of the Company, a new Note in a principal sum equal
to the unconverted portion of the Note so surrendered.
(b) As promptly as practicable after the surrender, as hereinabove
provided, of this Note for conversion, the Company shall deliver or cause to be
delivered to the Holder, in the name and at the address stated on the Conversion
Notice, a certificate or certificates representing the number of fully paid and
nonassessable shares of Common Stock into which such Note, or portion thereof,
shall have been converted. Subject to the following provisions of this section
and of subsection (d) below, such conversion shall be deemed to have been made
immediately prior to the close of business on the date that such Note shall have
been surrendered for conversion, so that the rights of the holder of such Note
(or the portion thereof being converted) as a Holder shall cease at such time,
and the person or persons entitled to receive the shares of Common Stock upon
conversion of such Note shall be treated for all purposes as having become the
record holder or holders of such shares of Common Stock at such time; provided,
however, that no such surrender on any date when the stock transfer books of the
Company shall be closed shall be effective to constitute the person or persons
entitled to receive the shares of Common Stock upon such conversion as the
record holder or holders of such shares of Common Stock on such date, but such
surrender shall be effective to constitute the person or persons entitled to
receive such shares of Common Stock as the record holder or holders thereof for
all purposes at the time immediately prior to the close of business on the next
succeeding day on which such stock transfer books are open. The Holder will be
paid any interest accrued on the Note through the date the Note is properly
surrendered for conversion.
2
<PAGE>
(c) No adjustments in respect of accrued interest or dividends shall
be made upon the conversion on this Note or portion thereof.
(d) The Conversion Price from time to time in effect shall be subject
to adjustment as follows:
(i) In case the Company shall pay a dividend in shares of its
Common Stock, subdivide its outstanding shares of Common Stock, combine its
outstanding shares of Common Stock into a smaller number of shares, or issue by
reclassification of its shares of Common Stock any new securities of the
Company, the Conversion Price in effect immediately prior thereto shall be
adjusted retroactively as provided below so that the Holder of this Note
thereafter surrendered for conversion shall be entitled to receive the number of
securities of the Company which he would have owned or would have been entitled
to receive after the happening of any of the events described above, had this
Note been converted immediately prior to the happening of such event. An
adjustment made pursuant to this subsection shall become effective immediately
upon the effective date of any such dividend, subdivision, combination or
reclassification.
(ii) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at least 1% in
such Conversion Price; provided, however, that any adjustments which by reason
of this subsection are not required to be made shall be carried toward
cumulatively and taken into account in any subsequent adjustment which
(including such carry-forward) requires an increase or decrease of at least 1%.
All calculations shall be made to the nearest cent or to the nearest one-
thousandth of a share, as the case may be.
(e) No fractional shares of Common Stock or script representing
fractional shares of Common Stock shall be issued upon the conversion of this
Note. If more than one Note shall be surrendered for conversion at one time by
the same Holder, the number of full shares issuable upon conversion thereof
shall be computed on the basis of the aggregate Principal Amount of the Notes so
surrendered for conversion. If the conversion of this Note results in a Common
Stock fraction, the Company shall pay to such Holder, in lieu of a fractional
share of Common Stock, an amount in cash equal to such fraction multiplied by
the Conversion Price.
(f) In case of any consolidation of the Company with, or merger of the
Company into, another corporation, the Holder of each Note then outstanding
shall have the right thereafter to convert such Note into such kind and amount
of shares of Common Stock, other securities and property received upon such
consolidation or merger, based on the number of shares of Common Stock of the
Company into which such Note might have been converted immediately
3
<PAGE>
prior to such consolidation or merger. In the alternative, the corporation
resulting from such consolidation or merger shall be obligated to deliver to the
Holder a new note which shall give the Holder substantially the same rights and
obligations in the resulting corporation as the Holder has under this Note.
2. HOLDER DEEMED OWNER. Only the Holder of this Note, determined in
accordance with the provisions hereof, shall be deemed and treated s the owner
of this Note for all purposes, including for the purpose of receiving any
payment or payments of the Principal Sum or any interest thereon, or the right
to exercise the Conversion Right.
3. CORPORATE OBLIGATION. No recourse under or upon any obligation,
liability, covenant or agreement contained in this Note, or for any claim based
hereon or otherwise in respect hereof, except any claim based upon fraud or
misrepresentation in connection with the purchase, making, execution or delivery
of this Note, shall be had against any promoter, incorporator, shareholder,
officer or director, as such and whether past, present or future, of the Maker
or of any predecessor or successor corporation, either directly or through the
Maker or any predecessor or successor corporation or through any trustee,
receiver or any other person, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that this Note and the right to receive shares of
Common Stock issuable upon exercise of the Conversion Right are solely corporate
obligations of the Maker, and that any and all such personal liability, either
at common law or in equity or by constitution or statute, of and any and all
such rights and claims against, every such promoter, incorporator, shareholder,
officer or director, as such, except any claim based upon fraud or
misrepresentation in connection with the purchase, making, execution or delivery
of this Note, are hereby expressly waived and released by every Holder by the
acceptance of this Note and as part of the consideration for the issue hereof.
4. AUTHENTICATION. This Note shall not become valid or obligatory for
any purpose until duly executed and delivered by the duly authorized officer of
the Maker and the corporate seal of the Maker affixed hereto.
5. MUTILATED, DESTROYED, LOST AND STOLEN NOTES. In case this Note shall
become mutilated or be destroyed, lost, or stolen, the Company in the case of a
mutilated Note shall, and in the case of a destroyed, lost or stolen Note in its
sole discretion, may, execute, authenticate and deliver, a new note bearing a
number not contemporaneously outstanding, in exchange and substitution for the
mutilated Note, or in lieu of and substitution for the Note so destroyed, lost,
or stolen. In every case the applicant for a substituted Note shall furnish to
the Company such reasonable security or indemnity as may be required to save it
harmless, and,
4
<PAGE>
in every case of destruction, loss, or theft, the applicant shall also furnish
to the Company evidence to its satisfaction of the destruction, loss, or theft
of such Note and of the ownership thereof. Upon the issue of any substituted
Note, the Company may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any
other expenses connected therewith. In case any Note which has matured or is
about to mature shall become mutilated or be destroyed, lost, or stolen, the
Company may, instead of issuing a substitute Note, pay the same (without
surrender thereof except in the case of a mutilated Note) if the applicant for
such payment shall furnish to the Company such reasonable security or indemnity
as may be required to save the Company harmless, and, in case of destruction,
loss, or theft, evidence to the satisfaction of the Company of the destruction,
loss, or theft of such Note and of the ownership thereof.
Every substituted Note issued pursuant to this section shall constitute an
additional contractual obligation of the Company and the Holder shall be
entitled to all the benefits of this Note. All Notes shall be held and owned
upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost, or stolen
Notes, and shall preclude any and all other rights or remedies, notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities without
their surrender.
6. NOTICES. Any notice, demand or other communication required or
permitted pursuant to this Note (a "Notice") shall be in writing, shall be hand
delivered or delivered by registered or certified mail (return receipt requested
and with all postal charges prepaid) or by private overnight courier, shall be
effective upon receipt and shall be delivered to the Maker at its Office and to
the Holder at the last address of the Holder of which the Maker has received
Notice, either by Notice or upon a transfer of this Note by the transfer
documents. Until the Maker receives Notice of another address, the address of
the first Holder shall be that which is set forth in the first paragraph of this
Note.
7. SUBSCRIPTION AGREEMENT. The initial Holder of this Note has executed
a Subscription Agreement which contains provisions restricting the
transferability of this Note and relating to other material matters affecting
this Note. Such restrictions and other provisions are incorporated herein by
reference and any subsequent Holder shall be bound by such restrictions and
terms.
8. GENERAL.
(a) Amendment; Waiver. No amendment, modification, termination or
-----------------
waiver of any provision of this Note shall be effective unless the same shall be
in writing and signed by the
5
<PAGE>
Maker and the then Holder, or in the case of a waiver by the party against whom
such waiver is sought to be enforced.
(b) Governing Law. This Note shall be governed by and interpreted and
-------------
enforced in accordance with the laws of the United States and the State of
Florida.
(c) Jurisdiction. Any suit, action or legal proceeding arising out of
------------
or relating to this Note shall be brought in the court of record of the State of
Florida in Broward County or in the District Court of the United States for the
Southern District of Florida, and by its acceptance of this Note each Holder
consents to the jurisdiction of each such court in any suit, action or legal
proceeding and waives any objection which it may have to the laying of venue of
any such suit, action or legal proceeding in any of such courts.
(d) Headings; Gender. The headings in this Note are intended to be
----------------
for convenience of reference only, and shall not define or limit the scope,
extent or intent or otherwise affect the meaning of any portion hereof. All
personal pronouns used in this Note, whether masculine or feminine or neuter
gender, shall include the plural and the plural the singular.
(e) Entire Agreement; Integration. This Note, together with the
-----------------------------
Subscription Agreement, embodies the entire agreement and understanding between
the Maker and each of the Holders with respect to the subject matter hereof, and
supersedes all prior agreements, understandings, restrictions or representations
between the Maker and the first Holder with respect to such subject Matter.
IN WITNESS WHEREOF, the Maker has caused this Note to be signed on its
behalf by its Chief Financial Officer, as of the date first above stated.
AUSTIN'S INTERNATIONAL, INC.
By: /s/ Larry E. Graybill
---------------------------------
Larry E. Graybill
Chief Financial Officer
[CORPORATE SEAL]
6
<PAGE>
EXHIBIT 4.2
AUSTIN'S INTERNATIONAL, INC.
TWO-YEAR 8% CONVERTIBLE NOTES
SUBSCRIPTION AGREEMENT
1. SUBSCRIPTION. I hereby agree to purchase $_________ principal amount
of Two-Year 8% Convertible Notes Due ____________________________, 1998 (the
"Notes" or a "Note") of Austin's International, Inc., a Delaware corporation
(the "Company"). In fulfillment of the obligation to make such purchase, I
hereby tender the full subscription amount in the form of a personal check,
cashier's check or money order payable to AUSTIN'S INTERNATIONAL, INC.
2. CONDITIONS TO RECEIPT AND ACCEPTANCE. This Agreement will be deemed
accepted by the Company upon the issuance and delivery of the Note. This
subscription will terminate on June 30, 1996, unless extended by the Company.
3. RECEIPT OF AND ACCESS TO INFORMATION. I acknowledge that prior to the
execution of this Subscription Agreement, I have examined the provisions of the
form of Note, which is attached as Exhibit A hereto. I understand and agree to
---------
all of the terms, conditions, and provisions contained therein. In addition, I
have previously received all such information as I deem necessary and
appropriate to enable me to evaluate the merits and risks inherent in this
investment, and I acknowledge that I have received satisfactory and complete
information concerning the business and financial affairs of the Company.
4. EXEMPTION FROM REGISTRATION. I understand that the Note or Notes and
the shares of common stock of the Company issuable on conversion of the Notes
(the "Stock") are being offered and sold under one or more exemptions provided
in the Securities Act of 1933, as amended, or in the rules and regulations
promulgated thereunder (the "Securities Act") from the registration requirements
of the Securities Act and under exemptions from the registration requirements of
the securities laws of the states or jurisdictions where such securities are
offered for sale (the "Blue Sky Laws"). I am making this investment solely for
my own account (or in a fiduciary capacity for the account and benefit of a
person or entity) for investment and without any present intention of selling,
offering to sell, or otherwise disposing of, or distributing my interest in,
such securities, and I do not presently have any reason to anticipate any
changes in my circumstances or any particular occasion or event which would
cause me to transfer, or dispose of such securities.
<PAGE>
I understand that the transfer of the securities covered by this Agreement
is restricted as provided herein. I therefore covenant and agree that if,
because of a change in circumstances, I hereafter desire to dispose of my rights
in any of the securities, I will not sell, assign, transfer, or otherwise
dispose of, or encumber, any such securities in a manner which would constitute
a violation of any of the provisions of the Securities Act or the Blue Sky Laws.
5. REPRESENTATIONS AND WARRANTIES. I hereby represent and warrant that:
(a) I have read and am familiar with and fully understand the terms of this
Agreement and the Note or Notes.
(b) I have such knowledge and experience in business and financial matters,
or have received such competent professional advice concerning the Company, that
I am capable of evaluating the merits and risks of my investment in the Company.
(c) I am an "Accredited Investor," in that I meet the requirements of at
least one of the subparagraphs listed below [PLEASE CHECK EACH APPLICABLE
PARAGRAPH]:
_____ (i) a bank or savings and loan association defined in the
Securities Act;
_____ (ii) a broker or dealer registered pursuant to the
Securities Exchange Act of 1934;
_____ (iii) an investment company or business development company
as defined in the Investment Company Act of 1940;
_____ (iv) a private business development company as defined in
Section 202(a)(22) of the Investment Advisers Act of
1940;
_____ (v) a corporation, partnership, business trust, employee
benefit plan, charitable organization or trust, with
assets in excess of $5,000,000 and which was not
formed for the specific purpose of acquiring the
securities offered;
_____ (vi) a director or executive officer of the Company;
_____ (vii) a natural person whose individual net worth, or joint
net worth with my spouse, at the time of my
subscription, exceeds $1,000,000;
2
<PAGE>
_____ (viii) a natural person who had an individual annual gross
income in excess of $200,000 (or joint income with my
spouse of $300,000) in each of the two most recent
years and who reasonably expects all income in excess
of $200,000 (or joint income with the person's spouse
of $300,000) in the current year; or
_____ (ix) an entity in which all of the equity owners are
accredited investors (i.e., can satisfy one or more
of the requirements in (i) -- (viii) above).
(d) I have sufficient net worth and annual income to be able to bear the
substantial economic risks of this investment, including the complete loss of my
investment. I have adequate means of providing for my current needs and
personal contingencies and have no need for liquidity in this investment.
(e) I have had an opportunity to question representatives of the Company as
to all matters which I deem material and relevant in my decision to make an
investment in the Company and have had the opportunity to obtain any and all
additional information necessary to verify the accuracy of the information
received or any other supplemental information which I deem relevant to make an
informed investment decision.
(f) I have been advised and am aware that neither the Note or Notes to
which I have subscribed, nor the Stock issuable upon conversion of such Note or
Notes, will be registered under the Securities Act or any Blue Sky Laws on the
grounds that the issuance of such Note or Notes and Stock is exempt from the
registration provisions of those laws.
(g) I have been advised and understand that I must continue to bear the
economic risks of ownership of the Note or Notes and, upon conversion, the
Stock, for an indefinite period of time because they have not been registered
under the Securities Act or any Blue Sky Laws and, accordingly, cannot be sold
unless they are so registered or an exemption from registration is available.
(h) I will not offer for sale, sell or otherwise dispose of the Note or
Notes or, upon conversion, the Stock, without registration under the Securities
Act and/or applicable Blue Sky Laws, or unless exemptions from the registration
requirements of such laws are applicable to such offer, sale or other
disposition and I have furnished to the Company an opinion of counsel,
satisfactory to the Company and its counsel, to the effect that such proposed
sale or other disposition may be lawfully made without such registration and the
reasons therefor.
3
<PAGE>
(i) I am purchasing the Notes and, upon conversion, the Stock for my own
account for investment only and, unless specified herein, not as a nominee for
others, and with no intention of, or a view towards, resale, transfer or
distribution thereof.
(j) I am duly authorized and empowered legally to represent and bind the
principal, person, trust, corporation or other entity, if any, named below as
the subscriber for the Note or Notes.
(k) If a corporation or other entity, the subscriber was not formed for the
specific purpose of making this investment.
(l) I am a resident of the State of ___________________ or the Country of
________________.
6. TRANSFERABILITY. I understand that I may transfer the Note or Notes
only subject to the following terms and conditions:
(a) THE NOTE OR NOTES, OR ANY CERTIFICATE FOR COMMON STOCK ISSUED UPON THE
CONVERSION THEREOF, MAY NOT BE SOLD OR TRANSFERRED UNLESS SUCH NOTE OR NOTES OR
SUCH STOCK IS REGISTERED PURSUANT TO THE SECURITIES ACT OR APPLICABLE STATE
SECURITIES LAWS OR UNLESS EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND SUCH LAWS ARE APPLICABLE TO COVER SUCH SALE OR TRANSFER.
(b) The transfer shall be evidenced by a written instrument, in form and
substance acceptable to the Company and its counsel, delivered to the Company
together with the Note or Notes as evidence of the validity of the transfer. I
will also deliver to the Company an opinion of counsel, satisfactory to the
Company and its counsel, to the effect that the proposed sale or other
disposition may be lawfully made without registration under the Securities Act
and/or applicable Blue Sky Laws of any state or other jurisdiction because an
exemption from the registration requirements of such laws is applicable to such
sale. Upon receipt, and acceptance thereof, the Company shall enter the
transferee as the Holder on the Company's books and records and deliver the Note
to the new Holder.
(c) The transfer shall be in strict conformity to the terms, conditions,
representations, warranties and agreements contained herein.
(d) No transfer shall release or relieve the transferor of any duties,
obligations, liabilities, representations, warranties or agreements that have
not been fully satisfied or discharged prior to the effectiveness of the
transfer.
(e) Any transfer or attempted transfer that is not in strict conformity
with the provisions of this Section 6 shall be
4
<PAGE>
null and void and of no effect, and the Company shall not be required to
recognize the transfer or the transferee as a Holder.
(f) That certificates representing the Stock received upon conversion of
the Note or Notes (unless the Stock is registered under all applicable
securities laws) shall bear the following restrictive legend thereon:
THE CORPORATION HAS NOT REGISTERED THE SHARES REPRESENTED BY THIS
CERTIFICATE UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED, OR THE APPLICABLE BLUE SKY OR SIMILAR LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER JURISDICTION. THE HOLDER OF THE SHARES
REPRESENTED BY THIS CERTIFICATE MAY NOT SELL OR TRANSFER THESE SHARES
UNLESS THEY ARE REGISTERED PURSUANT TO SUCH LAWS OR UNLESS EXEMPTIONS
FROM THE REGISTRATION REQUIREMENTS OF SUCH LAWS ARE APPLICABLE TO THE
SALE OR TRANSFER.
7. REVOCATION. Except as herein provided, I agree that I may not cancel,
terminate, or revoke this Agreement or any agreement hereunder made by me, and
that this Agreement shall survive my death or disability and shall be binding
upon my heirs, executors, administrators, successors and assigns.
8. MISCELLANEOUS.
(a) All notices or other communications given or made hereunder shall
be in writing and shall be delivered or mailed by registered or certified mail,
return receipt requested, postage prepaid, to the undersigned at the address set
forth below or to the Company at its principal office, at 2400 E. Commercial
Blvd., Suite 800, Ft. Lauderdale, FL 33308, attention Larry E. Graybill, Chief
Financial Officer.
(b) This Agreement and the Note or Notes shall be governed by and
interpreted and enforced in accordance with the laws of the United States and
the State of Florida.
(c) Any suit, action or legal proceeding out of or relating to this
Agreement or the Note or Notes shall be brought in the courts of record of the
State of Florida in Broward County or in the District Court of the United States
for the Southern District of Florida, and by acceptance of any Note or Notes
each holder thereof consents to the jurisdiction of each such court in any suit,
action or legal proceeding and waives any objection which it may have to the
laying of venue of any suit, action or legal proceeding in any of such courts.
5
<PAGE>
(d) This Subscription Agreement, together with the Note or Notes,
constitutes the entire agreement among the parties hereto with respect to the
subject matter hereof and may be amended only by writing executed by such
parties.
9. INDEMNIFICATION. I acknowledge that I understand the meaning and
legal consequences of the representations and warranties herein, and I hereby
agree to indemnify and hold harmless the Company and its directors, officers,
employees, agents and advisors from any and against any and all loss, damage or
liability due to or arising out of a breach of any representation, warranty or
acknowledgment of the undersigned contained in this Subscription Agreement and
the Note or Notes.
IN WITNESS WHEREOF, I have executed this Agreement on the __ day of
________________, 1996.
How Units are to be held:
------------------------------------
Print Subscriber's Name
( ) Individual
( ) Corporation
( ) Partnership
( ) Trust
( ) Uniform Gifts to Minors Act
( ) Retirement Plan
( ) Tenants in Common
( ) Joint Tenants with Rights
of Survivorship
( ) Other (Specify)
- -------------------------------- -------------------------------------
Social Security or Federal Signature of Subscriber
Employer Identification
Number of Subscriber
-------------------------------------
Print Other Subscriber's Name
if more than one
- -------------------------------- -------------------------------------
Social Security or Federal Signature of Other Subscriber
Employer Identification if more than one
Number of Other Subscriber
------------------------------------
------------------------------------
Mailing Address
6
<PAGE>
AUSTIN'S CONSOLIDATED BALANCE SHEET / PROFORMA
<TABLE>
<CAPTION>
PRO-FORMA
FISCAL YEAR PROFORMA FISCAL
ENDED ADJUSTMENT YEAR ENDED
3/31/96 (MEMO) 3/31/96
********************************************************************************
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C>
ASSETS
CURRENT ASSETS:
CASH AND EQUIVALENTS $ 421,590 $ 500,000 $ 921,590
MARKETABLE SECURITIES $ 908 $ 908
ACCOUNTS RECEIVABLE $ 75,939 $ 75,939
INVENTORIES $ 137,789 $ 137,789
OTHER CURRENT ASSETS $ 196,413 $ 196,413
------------ ---------- -----------
TOTAL CURRENT ASSETS $ 832,639 $ 500,000 $ 1,332,639
PROPERTY AND EQUIP
LEASEHOLD IMPROVEMENTS & BUILDING $ 2,867,874 $ 2,867,874
RESTAURANT EQUIP $ 1,047,447 $ 1,047,447
OTHER EQUIPMENT $ 112,162 $ 112,162
------------ ---------- -----------
$ 4,027,483 $ 4,027,483
LESS ACCUM DEPR & AMORT $(1,111,175) ($1,111,175)
------------ ---------- -----------
TOTAL PROPERTY & EQUIP AFTER DEPR $ 2,916,308 $ 2,916,308
SECURITY DEPOSITS $ 33,465 $ 33,465
PRE-OPENING EXPENSES, NET OF AMORTIZ $ 2,073 $ 2,073
------------ ---------- -----------
TOTAL ASSETS $ 3,784,485 $ 500,000 $ 4,284,485
LIABILITIES AND EQUITY
CURRENT LIABILITIES:
ACCOUNTS PAYABLE $ 356,745 $ 356,745
NOTES PAYABLE $ 0 $ 0
ACCRUED EXPENSES $ 169,880 $ 169,880
INTEREST PAYABLE $ 37,941 $ 37,941
------------ ---------- -----------
TOTAL CURRENT LIABILITIES $ 564,566 $ 564,566
OTHER NON-CURRENT LIABILITIES $ 148,240 $ 148,240
NOTES PAYABLE (NON-CURRENT) $ 2,013,000 $(1,145,000) $ 868,000
------------ ----------- -----------
TOTAL LIABILITIES $ 2,725,806 $(1,145,000) $ 1,580,806
SHAREHOLDERS' EQUITY:
COMMON STOCK, $.01 PAR, 50,000,000 $ 67,136 $ 32,900 $ 100,036
ADDITIONAL PAID-IN CAPITAL $ 6,859,452 $1,612,100 $ 8,471,552
ACCUMULATED DEFICIT $(5,867,909) ($5,867,909)
------------ ---------- ------------
TOTAL SHAREHOLDERS' EQUITY $ 1,058,679 $1,645,000 $2,703,679
------------ ---------- -----------
TOTAL LIABILITIES AND EQUITY $ 3,784,485 $ 500,000 $ 4,284,485
</TABLE>
<PAGE>
EXHIBIT 99.2
AUSTIN'S CONSOLIDATED STATEMENT OF OPERATIONS - PROFORMA
<TABLE>
<CAPTION>
PROFORMA PROFORMA PROFORMA PROFORMA
3 MO ENDED ADJUSTMENTS 3 MO ENDED 12 MO ENDED ADJUSTMENTS 12 MO ENDED
03/31/96 (MEMO) 03/31/96 03/31/96 (MEMO) 03/31/96
***************************************************************************************************************
(UNAUDITED) (UNAUDITED) (UNAUDITED) (UNAUDITED)
REVENUES:
<S> <C> <C> <C> <C> <C> <C>
NET SALES $2,217,268 $2,217,268 $7,438,029 $7,438,029
OTHER REVENUES $ 5,684 $ 5,684 $ 17,958 $ 17,958
INTEREST $ 2,193 $ 2,193 $ 8,991 $ 8,991
---------- ---------- ---------- ----------
TOTAL REVENUES $2,225,145 $2,225,145 $7,464,978 $7,464,978
COSTS AND EXPENSES:
FOOD AND BEVERAGE COSTS $ 787,861 $ 787,861 $2,779,573 $2,779,573
PAYROLL AND RELATED COSTS $ 667,422 $ 667,422 $2,361,257 $2,361,257
OTHER RESTAURANT OPERATING EXP $ 628,948 $ 628,948 $2,358,849 $2,358,849
GENERAL AND ADMIN EXPENSES $ 132,421 $ 132,421 $ 486,267 $ 486,267
DEPRECIATION AND AMORTIZATION $ 91,794 $ 91,794 $ 361,176 $ 361,176
INTEREST EXPENSE $ 43,910 $ (26,550) $ 17,360 $ 156,016 $ (86,576) $ 69,440
---------- ---------- ---------- ----------
TOTAL EXPENSES $2,352,356 $2,325,806 $8,503,138 $8,416,562
---------- ---------- ---------- ----------
NET LOSS (127,211) (100,661) (1,038,160) (951,584)
NET LOSS PER SHARE ($0.021) ($0.011) ($0.160) ($0.097)
WEIGHTED AVE SHARES OUTSTANDING 6,013,550 3,290,000 9,303,550 6,496,883 3,290,000 9,786,883
</TABLE>
<PAGE>
EXHIBIT 99.3
NOTES TO PRO FORMA FINANCIAL STATEMENTS
1. The pro forma consolidated balance sheet as of March 31, 1996 (included
as part of Exhibit 99.1 to this Report) is based on the Registrant's historical
------------
unaudited consolidated balance sheet as of March 31, 1996 (also included as part
of Exhibit 99.1) and assumes that on March 31, 1996, the Company issued $500,000
------------
aggregate principal amount of its Two-Year 8% Convertible Notes and that on the
same date holders of $1,645,000 aggregate principal amount of the Registrant's
outstanding convertible notes (including the $500,000 newly-issued notes)
converted such notes into a total of 3,290,000 newly-issued shares of common
stock of the Registrant at the stated conversion price of $.50 per share.
2. The pro forma consolidated statements of operations for the three-month
and twelve-month periods ending March 31, 1996 (included as part of Exhibit
-------
99.2) are based on the historical consolidated statements of operations (also
included on Exhibit 99.2) for the periods presented therein, which are unaudited
------------
but which in the opinion of Registrant's management include all adjustments,
consisting only of normal recurring accruals, necessary for the fair
presentation of the Registrant's results of operations for the periods
indicated. The pro forma consolidated statements of operations for the three-
month period ended March 31, 1996 assume that the above transactions took place
on January 1, 1996, and the pro forma consolidated statements of operations for
the twelve-month period ending March 31, 1996 assume that such transactions took
place on April 1, 1995.
3. The pro forma consolidated financial statements may not be indicative
of what would have occurred had the issuance of additional convertible notes and
the conversion of such notes and other outstanding convertible notes into common
stock been made as of the dates indicated, or of results which may occur in the
future.
4. The consolidated pro forma financial statements should be read in
connection with the historical unaudited consolidated financial statements of
the Registrant included as part of Exhibit 99.1 and Exhibit 99.2.
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