<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM 10-Q
(Mark One)
/ X / QUARTERLY REPORT under SECTION 13 OR 15(d) of the SECURITIES EXCHANGE
ACT OF 1934
For the quarter ended June 15, 1997
OR
/__/ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ______________ to ______________.
Commission file number 0-20792
FRESH CHOICE, INC.
------------------
(Exact name of registrant as specified in its charter)
DELAWARE 77-0130849
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(State or other jurisdiction of (I.R.S. Employee
incorporation or organization) Identification No.)
2901 TASMAN DRIVE - SUITE 109, SANTA CLARA, CALIFORNIA 95054
(Address of principal executives offices) (Zip Code)
Registrant's telephone number, including area code: (408) 986-8661
- --------------------------------------------------------------------------------
Former name, former address and former fiscal year, ifchanged since
last report.
Indicate by check whether the registrant (1) has filed all reports required to
be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
X Yes No
------ -----
APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGSDURING THE
PRECEDING FIVE YEARS:
Indicate by check mark whether the registrant has filed all documents and
reports required to be filed by Section 12, 13 or 15(d) of the Securities
Exchange Act of 1934 subsequent to the distribution of securities under a plan
confirmed by a court. _____ Yes _____No
APPLICABLE ONLY TO CORPORATE ISSUERS:
The number of shares of Common Stock, $.001 par value, outstanding as of July
13, 1997 was 5,668,625.
<PAGE> 2
FRESH CHOICE, INC.
INDEX
<TABLE>
<S> <C> <C>
PART I - FINANCIAL INFORMATION
Item 1 - Financial Statements
Condensed Consolidated Balance Sheets at June 15, 1997
and December 29, 1996............................................................................3
Condensed Consolidated Statements of Operations for the Twelve and
Twenty-Four Weeks ended June 15, 1997 and June 16, 1996 .........................................4
Condensed Consolidated Statements of Cash Flow for the Twenty-Four Weeks
ended June 15, 1997 and June 16, 1996............................................................5
Notes to Unaudited Condensed Consolidated Financial Statements...................................6
Item 2 - Management's Discussion and Analysis of Financial Condition
and Results of Operations.......................................................................10
PART II - OTHER INFORMATION
Item 1 - Legal Proceedings..........................................................................21
Item 2 - Changes in Securities......................................................................21
Item 3 - Defaults Upon Senior Securities............................................................21
Item 4 - Submission of Matters to a Vote of Security Holders........................................21
Item 5 - Other Information..........................................................................22
Item 6 - Exhibits and Reports on Form 8-K...........................................................22
SIGNATURES...............................................................................................23
INDEX TO FORM 10-Q
EXHIBITS.................................................................................................24
</TABLE>
2
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PART I. FINANCIAL INFORMATION
ITEM 1 - FINANCIAL STATEMENTS
FRESH CHOICE, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(Dollars in thousands)
<TABLE>
<CAPTION>
June 15, December 29,
1997 1996
------- -------
(Unaudited)
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ 5,717 $ 5,647
Receivables 141 218
Inventories 459 432
Pre-Opening costs -- 23
Prepaid expenses and other current assets 396 513
------- -------
Total current assets 6,713 6,833
PROPERTY AND EQUIPMENT, net 30,622 29,509
LEASE ACQUISITION COSTS, net 521 556
DEPOSITS AND OTHER ASSETS 486 268
------- -------
TOTAL $38,342 $37,166
======= =======
LIABILITIES AND STOCKHOLDERS EQUITY
CURRENT LIABILITIES:
Accounts payable $ 3,357 $ 2,077
Accrued salaries and wages 1,427 1,445
Sales tax payable 841 462
Other accrued expenses 3,303 2,790
Restructuring reserve 2,373 2,696
Current portion of capital lease obligations 31 89
------- -------
Total current liabilities 11,332 9,559
OTHER LONG TERM LIABILITIES 1,465 1,691
------- -------
Total Liabilities 12,797 11,250
------- -------
STOCKHOLDERS' EQUITY
Convertible preferred stock, $.001 par value; 3.5 million shares
authorized; shares outstanding: ;1997 and 1996 -- 1,187,906 5,175 5,175
Common stock, $.001 par value; 15 million shares authorized;
shares outstanding: ;1997 -- 5,668,625; 1996 -- 5,660,826 42,115 42,070
Accumulated deficit (21,745) (21,329)
------- -------
Total stockholders equity 25,545 25,916
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TOTAL $38,342 $37,166
======= =======
</TABLE>
See accompanying notes to unaudited condensed consolidated financial statements.
3
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FRESH CHOICE, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
Twelve Weeks Ended Twenty-Four Weeks Ended
------------------- -----------------------
June 15, June 16, June 15, June 16,
1997 1996 1997 1996
-------- -------- -------- --------
<S> <C> <C> <C> <C>
NET SALES $17,379 $18,793 $33,485 $36,854
COST AND EXPENSES:
Cost of sales 4,716 5,050 9,105 10,103
Restaurant operating expenses:
Labor 5,319 5,931 10,376 11,837
Occupancy and other 5,003 5,247 10,252 10,531
Depreciation and amortization 697 772 1,398 1,589
General and administrative expense 1,444 1,635 2,850 3,431
------- ------- ------- -------
Total costs and expenses 17,179 18,635 33,981 37,491
------- ------- ------- -------
OPERATING INCOME (LOSS) 200 158 (496) (637)
------- ------- ------- -------
Interest income 37 1 89 1
Interest expense (4) (64) (9) (135)
------- ------- ------- -------
Interest income (expense), net 33 (63) 80 (134)
------- ------- ------- -------
INCOME (LOSS) BEFORE INCOME TAXES 233 95 (416) (771)
Provision for (benefit from) income taxes - - - -
------- ------- ------- -------
NET INCOME (LOSS) $ 233 $ 95 $ (416) $ (771)
======= ======= ======= =======
Net income (loss) per common share $ 0.03 $ 0.02 $ (0.07) $ (0.14)
======= ======= ======= =======
Shares used in computing per share amounts 6,854 5,686 5,662 5,605
======= ======= ======= =======
</TABLE>
See accompanying notes to unaudited condensed consolidated financial statements
4
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FRESH CHOICE, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOW
(Dollars in thousands)
(Unaudited)
<TABLE>
<CAPTION>
Twenty-Four Weeks
--------------------
June 15, June 16,
1997 1996
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<S> <C> <C>
OPERATING ACTIVITIES:
Net loss $ (416) $ (771)
Adjustments to reconcile net loss to
net cash used in operations:
Depreciation and amortization 1,502 1,700
Issuance of common stock for consulting services - 325
Loss on disposal of property 33 20
Deferred rent (217) (115)
Changes in operating assets and liabilities:
Receivables 77 (26)
Inventories (27) 18
Prepaid expenses and other current assets 117 (52)
Preopening costs - 134
Income taxes refundable - 1,557
Accounts payable 1,280 (1,115)
Accrued salaries and wages (18) 447
Other accrued expenses 292 (173)
Restructuring reserve (323) (1,140)
------- -------
Net cash provided by operating activities 2,300 809
------- -------
INVESTING ACTIVITIES:
Capital expenditures (1,998) (1,081)
Deposits and other assets (218) (248)
------- -------
Net cash used in investing activities (2,216) (1,329)
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FINANCING ACTIVITIES:
Common stock sales 45 75
Notes payable and line of credit borrowings, net (1) -
Capital lease obligations - repayments (58) (236)
------- -------
Net cash used in financing activities (14) (161)
------- -------
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 70 (681)
CASH AND CASH EQUIVALENTS:
Beginning of period 5,647 1,294
------- -------
End of period $ 5,717 $ 613
======= =======
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid during the period for interest $ 10 $ 37
======= =======
SUPPLEMENTAL DISCLOSURE OF NONCASH INVESTING
AND FINANCING ACTIVITIES:
Acquisition payable related to purchase of restaurants $ 600 $ -
======= =======
</TABLE>
See accompanying notes to unaudited condensed consolidated financial statements
5
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FRESH CHOICE, INC.
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS For the Twelve
and Twenty-Four Weeks Ended June 15, 1997 and June 16, 1996
1. CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
The accompanying condensed consolidated financial statements
have been prepared by the Company without audit and reflect all adjustments,
consisting of normal recurring adjustments and accruals, which are, in the
opinion of management, necessary to a fair statement of financial position and
the results of operations for the interim periods. The statements have been
prepared in accordance with the regulations of the Securities and Exchange
Commission, but omit certain information and footnote disclosures necessary to
present the statements in accordance with generally accepted accounting
principles. For further information, refer to the financial statements and notes
thereto included in the Company's Annual Report on Form 10-K for the fiscal year
ended December 29, 1996.
2. EARNINGS PER SHARE
Earnings per common and equivalent share is based on the
weighted average number of common and dilutive common equivalent shares
outstanding during the period. Common share equivalents, which are common stock
options and warrants assumed converted using the treasury stock method and
preferred stock using the if-converted method, have been excluded from the
earnings per share computation for the twenty-four weeks ended June 15, 1997 and
June 16, 1996 as they would be anti-dilutive.
3. INCOME TAXES
The Company recorded no tax benefit from its operating loss
during the twenty-four weeks ended June 15, 1997 and June 16, 1996. The Company
has provided valuation allowances against its net deferred tax assets which
consist primarily of the tax benefit related to operating loss carryforwards and
non-deductible asset write-downs and restructuring accruals. The Company will
continue to provide a valuation allowance for its deferred tax assets until it
becomes more likely than not, in management's assessment, that the Company's
deferred tax assets will be realized.
4. BANK LINE OF CREDIT
On July 9, 1997, the Company amended its bank line of credit
agreement, increasing the available amount to $5,000,000 and extending the term
until May 27, 1998. Borrowings under the line of credit bear interest at the
prime rate (8.5% at June 15, 1997) plus 1% and are secured by the Company's
personal property and by executed Deeds of Trust on certain Company-owned real
estate. Borrowings under the line of credit are limited to $3,500,000 until the
bank records Deeds of Trust and receives appraisals indicating minimum values on
certain Company-owned real estate (which the Company anticipates receiving in
the third quarter) and are further limited to a multiple of the Company's
earnings before interest, taxes, depreciation and amortization ($4,404,000 at
June 15, 1997). The agreement also provides an option for the Company to convert
borrowings, up to $3,500,000, to a 48-month term loan at any time prior to the
maturity date of May 27, 1998. Borrowings under the term loan bear interest at
the prime rate plus 1.75%.
6
<PAGE> 7
The agreement requires the Company to achieve a minimum earnings
before interest, taxes, depreciation and amortization for the 1997 fiscal year,
to maintain a minimum tangible net worth, to not exceed a maximum debt to net
tangible worth ratio and, for the term loan, to maintain a minimum debt service
coverage ratio. The agreement also contains a maximum fixed asset acquisition
limit. The Company was in compliance with these covenants at June 15, 1997. The
Company had no borrowing under line of credit arrangements at June 15, 1997.
4. RESTRUCTURING RESERVE
The following table sets forth the Company's restructuring
reserves and their respective balances at December 31, 1995, December 29, 1996
and June 15, 1997.
<TABLE>
<CAPTION>
Balance Provided Balance Utilized Balance
December 31, (Reserved) Utilized Reclassified December 29, to date June 15,
(In thousands) 1995 in 1996 in 1996 in 1996 1996 in 1997 1997
------------ --------- -------- ------------ ------------ -------- --------
<S> <C> <C> <C> <C> <C> <C>
1995 Restructuring Reserve
Restaurant closures:
Non-cash write-down of
restaurant assets to estimated
fair value and other related
costs $ 308 $ (250) $ - $ - $ 58 $ (11) $ 47
Estimated cash costs associated
with restaurant closures and
settlement of lease obligations 4,450 (1,442) (1,243) - 1,765 (230) 1,535
Impaired restaurants:
Non-cash write-down of assets
to estimated fair value at
other restaurants and other
related costs 326 (326) - - - -
Other costs, primarily consulting
and professional fees related to
the restructuring plan:
Cash costs 26 (51) (109) 134 - -
Non-cash costs 156 - (22) (134) - -
------ ------- ------- ----- ------ ----- ------
1995 restructuring reserve 5,266 (2,069) (1,374) - 1,823 (241) 1,582
------ ------- ------- ----- ------ ----- ------
1996 Restructuring Reserve
Restaurant closures:
Non-cash write-down of
restaurant assets to estimated
fair value and other related
costs - 650 (622) - 28 28
Estimated cash costs associated
with restaurant closures and
settlement of lease obligations - 968 (123) - 845 (82) 763
------ ------- ------- ----- ------ ----- ------
1996 restructuring reserve - 1,618 (745) - 873 (82) 791
------ ------- ------- ----- ------ ----- ------
Total restructuring reserve $5,266 $ (451) $(2,119) $ - $2,696 $(323) $2,373
====== ======= ======= ===== ====== ===== ======
</TABLE>
7
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In December 1995, the Company finalized and announced a
restructuring plan which called for closing as many as ten of the Company's
restaurants, of which seven restaurants were included in a reserve for closures,
and a partial write-down of assets to estimated fair value for thirteen other
restaurants. The Company recorded a $23,932,000 restructuring charge in 1995 in
connection with the plan.
By the end of 1996, the Company had closed six of the seven
restaurants identified for closure and had decided not to close the seventh
restaurant based on its improved operating performance. The Company's decision
not to close one restaurant resulted in a $451,000 reversal of previously
recorded restructuring expense. The Company reversed an additional $1,618,000 of
previously recorded restructuring expense due to lower than estimated cash
payments to settle lease obligations at five closed restaurants. At June 15,
1997, the 1995 restructuring reserve balance consisted of the estimated cash
costs to settle the lease obligation at one restaurant.
During 1996, the Company identified and closed or sold five
additional restaurants for a total of eleven closed restaurants. The Company
recorded an additional $1,618,000 restructuring charge for two of the
restaurants. A third closed restaurant, which was included in the 1995 asset
impairment reserve, did not require a cash settlement with the landlord for
lease obligations, and the Company charged its remaining net assets to
operations at the time the restaurant closed in 1996. The Company sold two
restaurants in the Washington D.C. market at the end of 1996 for $750,000 and
recorded a gain of $446,000. At June 15, 1997, the 1996 restructuring reserve
balance consisted of the estimated cash costs to settle the lease obligation at
one restaurant.
The Company has identified no other restaurants for closure as
of July 13, 1997, and believes the balances at June 15, 1997 are adequate to
cover the remaining estimated costs to be incurred under the plans.
5. PURCHASE OF ZOOPA RESTAURANTS
On May 1, 1997, the Company completed the purchase of three
Zoopa restaurants in Bellevue, Tacoma and Tukwila, Washington. The three
restaurants, which will continue to operate under the Zoopa name, offer a
self-service format similar to Fresh Choice restaurants including salads, hot
pasta dishes, soups, bakery goods and desserts. The Company paid $1,250,000 upon
closing of the purchase and agreed to make an additional payment one year after
closing of between $550,000 and $950,000 depending on the achievement of
restaurant sales levels. The Company has recorded a $600,000 acquisition payable
in other accrued liabilities and will record an additional liability when the
amount, if any, is determinable.
6. RECENTLY ISSUED ACCOUNTING STANDARD
In February 1997, the Financial Accounting Standards Board
issued Statement of Financial Accounting Standards No. 128, "Earnings per Share"
(SFAS 128). The Company is required to adopt SFAS 128 in the fourth quarter of
fiscal 1997 and will restate at that time earnings per share (EPS) data for
prior periods to conform with SFAS 128.
Earlier application is not permitted.
SFAS 128 replaces current EPS reporting requirements and
requires a dual presentation of basic and diluted EPS. Basic EPS excludes
dilution and is computed by dividing net income by the weighted average of
common shares outstanding for the period. Diluted EPS reflects the potential
dilution that could occur if securities or other contracts to issue common stock
were exercised or converted into common stock.
8
<PAGE> 9
Pro forma amounts for basic and diluted EPS assuming SFAS 128
had been in effect for the twelve and twenty-four weeks ended June 15, 1997 and
June 16, 1996 are as follows. The Company has excluded potential common shares,
which are common stock options and warrants assumed converted using the treasury
stock method and preferred stock assumed converted using the if-converted
method, from the computation of diluted net loss per common share for the
twenty-four weeks ended June 15, 1997 and June 16, 1996 as they would be
anti-dilutive.
<TABLE>
<CAPTION>
Twelve Weeks Ended Twenty-Four Weeks Ended
------------------- -----------------------
Pro Forma June 15, June 16, June 15, June 16,
EPS 1997 1996 1997 1996
- ---------- ------------------- -----------------------
<S> <C> <C> <C> <C>
Basic $0.04 $0.02 $(0.07) $(0.14)
Diluted $0.03 $0.02 $(0.07) $(0.14)
</TABLE>
9
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ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following discussion is intended to highlight significant
changes in the Company's financial position and results of operations for the
twelve and twenty-four weeks ended June 15, 1997 as compared to the twelve and
twenty-four weeks ended June 16, 1996. The interim Financial Statements and this
Management's Discussion and Analysis of Financial Condition and Results of
Operations should be read in conjunction with the Consolidated Financial
Statements and Notes thereto for the fiscal year ended December 29, 1996 and the
related Management's Discussion and Analysis of Financial Condition and Results
of Operations, both of which are contained in the Company's Annual Report on
Form 10-K for the fiscal year ended December 29, 1996.
This Discussion and Analysis of Financial Condition and Results
of Operations contains forward-looking statements within the meaning of Section
27A of the Securities Act of 1933, and Section 21E of the Securities Exchange
Act of 1934, including statements about the ability of the Company to improve
restaurant sales and its overall profitability; the ability of the Company to
obtain funds to pursue its future plans; the ability of the Company to implement
its growth plans; competitive pressures in the food-service marketplace; the
changing tastes of consumers; the effect of general economic conditions;
fluctuations in quarterly results; planned new restaurant openings and future
expansion; availability of suitable lease sites; customer receptiveness to new
products, the new restaurant interior design and the new Zoopa format;
improvements in unit economics; and the ability of the Company to secure and
retain the services of experienced personnel. Actual results could differ
materially from those projected in the forward-looking statements as a result of
the risk factors set forth herein.
Liquidity and Capital Resources
The Company's primary capital requirement has been for the
expansion of its restaurant operations which the Company has traditionally
financed with funds from equity offerings, cash flow from operations, landlord
allowances and short-term bank debt. The Company does not have significant
receivables or inventory and receives trade credit based upon negotiated terms
in purchasing food and supplies.
On May 1, 1997, the Company purchased the three Zoopa
restaurants for $1,250,000 and an additional payment one year later of between
$550,000 and $950,000 depending on the achievement of restaurant sales levels.
The Company has recorded a $600,000 acquisition payable in other accrued
liabilities and will record an additional liability when the amount, if any, is
determinable. The three restaurants, which will continue to operate under the
Zoopa name, offer a self-service format similar to Fresh Choice restaurants
including salads, hot pasta dishes, soups, bakery goods and desserts.
For the twenty-four weeks ended June 15, 1997, the Company
invested $2,598,000 in property and equipment including the purchase of the
three Zoopa restaurants in Bellevue, Tacoma and Tukwila, Washington, spending on
remodels which are typically required every five to seven years and spending on
replacement fixtures and equipment. These investments were funded from both
existing cash balances and the short term liability related to the purchase of
the Zoopa restaurants.
As of June 15, 1997, the Company had incurred aggregate cash
costs of $2,298,000 in connection with restaurant closures and the related
settlements of lease obligations in connection with a restructuring program
begun in December 1995. Cash costs incurred during the twenty-four weeks ended
June 15, 1997 totaled $312,000. The Company has identified no other restaurants
for closure, and believes the restructuring reserve balances totaling $2,373,000
at June 15, 1997 are adequate to cover the remaining estimated costs to be
incurred under the program.
10
<PAGE> 11
During the twenty-fours weeks ended June 16, 1997, operating
activities provided $2,300,000, including a $1,280,000 increase in accounts
payable related to the timing of payments to a major vendor.
On July 9, 1997, the Company amended its bank line of credit
agreement, increasing the available amount to $5,000,000 and extending the term
until May 27, 1998. Borrowings under the line of credit bear interest at the
prime rate (8.5% at June 15, 1997) plus 1% and are secured by the Company's
personal property and by executed Deeds of Trust on certain Company-owned real
estate. Borrowings under the line of credit are limited to $3,500,000 until the
bank records Deeds of Trust and receives appraisals indicating minimum values on
certain Company-owned real estate (which the Company anticipates receiving in
the third quarter) and are further limited to a multiple of the Company's
earnings before interest, taxes, depreciation and amortization ($4,404,000 at
June 15, 1997). The agreement also provides an option for the Company to convert
borrowings, up to $3,500,000, to a 48-month term loan at any time prior to the
maturity date on May 27, 1998. Borrowings under the term loan bear interest at
the prime rate plus 1.75%.
The agreement requires the Company to achieve a minimum earnings
before interest, taxes, depreciation and amortization, to maintain a minimum
tangible net worth, to not exceed a maximum debt to net tangible worth ratio
and, for the term loan, to maintain a minimum debt service coverage ratio. The
agreement also contains a maximum fixed asset acquisition limit. The Company was
in compliance with these covenants at June 15, 1997. The Company had no
borrowing under line of credit arrangements at June 15, 1997.
The Company's outstanding Series B non-voting preferred stock is
currently held by one entity and is convertible, at the holders' option, into
Series A voting convertible preferred stock on a one-for-one basis. Although no
Series A preferred stock is currently outstanding, any holders of Series A
preferred stock would be entitled to vote with common stockholders on all
matters submitted to a vote of stockholders. When and if issued, the holders of
a majority of the outstanding Series A preferred stock will have a separate
right to approve certain corporate actions. In the event of a failure by the
Company to achieve earnings targets (before interest, taxes, depreciation and
amortization) of at least $3,500,000 in 1997 and $5,500,000 in 1998 (subject to
adjustment under certain circumstances by the Company's board of directors), any
Series A preferred stockholders could elect a majority of the Company's board of
Directors. Upon achievement of certain per-share market price test, the Company
may force a mandatory conversion of the Series A preferred stock to common
stock. No shares of Series C preferred stock are currently outstanding, but an
option to purchase such shares is outstanding. The Series A, Series B and Series
C preferred stock are convertible, at the holders' option, into Common Stock on
a one-for-one basis. All shares of Series A, Series B and Series C preferred
stock are senior to the Company's common stock with respect to dividends and
with respect to distribution on liquidation.
The Company's continued growth depends to a significant degree
on its ability to open new restaurants and to operate such restaurants
profitably. In addition to the three Zoopa restaurants purchased in the greater
Seattle, Washington market during the 12 weeks ended June 15, 1997, the Company
has signed leases for two new restaurants in Houston and San Antonio, Texas with
openings scheduled for the fourth quarter of 1977. The Company intends to
continue its restaurant expansion, assuming its financial performance continues
to improve and additional financing can be obtained. The Company's ability to
implement an expansion strategy will depend upon a variety of factors, including
the continued success of efforts to restore profitability and the Company's
ability to obtain funds. See "Business Risks" included herein. The Company
believes its operating cash requirements and near-term capital requirements for
restaurant remodeling and expansion can be met through existing cash balances,
cash provided by operations and its recently amended line of credit and term
loan
11
<PAGE> 12
agreement. The Company may continue to seek additional debt or equity
financing to provide greater flexibility toward improving its operating
performance and continuing expansion.
Long-term debt at June 15, 1997 consists of a $118,000 note
for site construction costs which is included in other long-term liabilities on
the balance sheet.
Impact of Inflation
Many of the Company's employees are paid hourly rates related to
the federal and state minimum wage laws. Accordingly, increases in the minimum
wage could materially increase the Company's labor costs. Currently, there are
further scheduled increases in the federal and State of California minimum wage.
In addition, the cost of food commodities utilized by the Company are subject to
market supply and demand pressures. Shifts in these costs may have a significant
impact on the Company's food costs. The Company anticipates that increases in
these costs can be offset through pricing and other cost control efforts;
however, there is no assurance that the Company would be able to pass such costs
on to its guests or that even if it were able to do so, it could do so in a
short period of time.
Business Risks
Certain characteristics and dynamics of the Company's business
and of financial markets in general create risks to the Company's long-term
success and to predictable financial results. These risks include:
Recent Operating Losses and Declines in Comparable Real Store
Sales. The Company's profitability began to decline in the second half of 1994.
In the fourth quarter of 1994, the Company reported its first operating loss,
and reported additional operating losses in each subsequent quarter ending with
the first quarter of 1996. Although the Company reported operating profits in
the second and third quarters of 1996, it returned to an operating loss for the
fourth quarter and reported a loss for the full year 1996. In 1997, the Company
reported an operating loss in its first quarter and a profit in the second
quarter but continued to report an operating loss for the first half of the
year.
Beginning late in the third quarter of fiscal 1994, the Company
began reporting significant comparable real store sales declines. Comparable
real store sales continued to decline in each quarter of 1995 compared to the
respective quarters in the prior year, although the magnitude of these declines
lessened in the third and fourth quarters of 1995. The Company reported a 0.3%
decline in comparable real store sales in the first quarter of 1996. Beginning
in the second quarter of 1996, the magnitude of the declines in comparable real
store sales increased until the current quarter. Following the introduction of a
one-price system and termination of discount programs, the Company reported an
8.6%, 17.0% and 14.5% decline in comparable real store sales in the second,
third and fourth quarters of 1996, respectively, and a 10.4% and 4.5% decline in
the first and second quarters, respectively, of 1997. There can be no assurance
that comparable real store sales will improve or that the Company will return to
long-term profitability.
Expansion. The Company experienced substantial growth prior to
mid-1995, having opened 14 restaurants in 1993, 15 restaurants in 1994, and
seven in 1995. In 1995, the Company suspended its expansion plans after opening
seven restaurants, reviewed the operating performance of all of its restaurants,
and identified certain restaurants which did not meet its expectations for
operating performance. As a result, in December 1995 the Company announced a
restructuring plan to close as many as ten restaurants. The Company has closed
or sold 11 restaurants to date, including three at the end of 1995, and eight in
1996. The Company has identified no
12
<PAGE> 13
further restaurants for closure, although it continues to review the performance
of each of its restaurants. The Company opened one restaurant in 1996, and in
the second quarter of 1997, the Company purchased three Zoopa restaurants in
Bellevue, Tacoma and Tukwila, Washington which will continue to operate under
the Zoopa name and store model. These three restaurants offer a self-service
format similar to Fresh Choice restaurants with similar menu offerings. The
Company believes its growth depends to a significant degree on its ability to
open new restaurants and to operate such restaurants profitably. During the
second quarter of 1997, the Company signed leases for two new restaurants in
Houston and San Antonio, Texas with openings scheduled for the fourth quarter.
The Company intends to utilize the Zoopa name and restaurant format in these new
restaurants. While the Company intends to continue its expansion, assuming its
financial performance continues to improve and additional funding can be
obtained, there can be no assurance as to whether the Company will continue its
expansion. The Company's ability to implement successfully its expansion
strategy depends on a variety of factors, including the selection and
availability of affordable sites, the selection and availability of capital to
finance restaurant expansion and equipment costs, the success of the Zoopa store
model, the ability to hire and train qualified management and personnel, the
ability to control food and other operating costs, and other factors, many of
which are beyond the Company's control.
On a long-term basis, the Company intends to expand its
operations in additional markets outside of California, assuming its financial
performance improves. The Company's expansion plans include entering new
geographic regions in which the Company has no previous operating experience.
The Company opened five restaurants in Texas, three restaurants in the state of
Washington and three restaurants in the Washington, D.C. metropolitan area
during fiscal years 1993, 1994 and 1995. Of the eleven restaurants closed or
sold by the Company, two were in Texas, one was in the state of Washington, five
were in California, and three were in the Washington, D.C. metropolitan area
(where the Company no longer operates). The Company may expand using either the
Fresh Choice or Zoopa formats but there can be no assurance these concepts or
any future formats will be successful.
Geographic Concentration. As of June 15, 1997, 43 of the
Company's 51 restaurants are located in California, primarily in the San
Francisco Bay Area. Accordingly, the Company is susceptible to fluctuations in
its business caused by adverse economic conditions in this region. In addition,
net sales at certain of the Company's restaurants have been adversely affected
when a new Company restaurant has been opened in relatively close geographic
proximity, and such pressure may continue to depress annual comparable real
store sales. The Company expects additional sales pressure may be experienced at
the individual restaurants if it continues to expand within existing market
areas. There can be no assurance that such continued expansion within existing
or future geographic markets will not adversely affect the individual financial
performance of Company restaurants in such markets or the Company's overall
results of operations. In addition, given the Company's present geographic
concentration in Northern California, adverse weather conditions in the region
or negative publicity relating to an individual Company restaurant could have a
more pronounced adverse affect on net sales than if the Company's restaurants
were more broadly dispersed.
Volatility of Stock Price. The market price of the Company's
Common Stock has fluctuated substantially since the initial public offering of
the Common Stock in December 1992. Changes in general conditions in the economy,
the financial markets or the restaurant industry, natural disasters or other
developments affecting the Company or its competitors could cause the market
price of the Company's Common Stock to fluctuate substantially. In addition, in
recent years the stock market has experienced extreme price and volume
fluctuations. This volatility has had significant effect on the market prices of
securities issued by many companies, including the Company, for reasons
sometimes unrelated to the operating performance of these companies. Any
shortfall in the Company's net sales or earnings from levels expected by
securities analysts could have an immediate and significant adverse effect on
the trading price of the Company's Common Stock in any given period.
Additionally, such shortfalls may not become apparent until late in the fiscal
quarter, which
13
<PAGE> 14
could result in an even more immediate and significant adverse effect on the
trading price of the Company's Common Stock.
Seasonality and Quarterly Fluctuations. The Company's restaurants
have typically experienced seasonal fluctuations, as a disproportionate amount
of net sales and net income are generally realized in the second and third
fiscal quarters. In addition, the Company's quarterly results of operations have
been, and may continue to be, materially impacted by the timing of new
restaurant openings and restaurant closings. The fourth quarter normally
includes 16 weeks of operations as compared with 12 weeks for each of the three
prior quarters. However, in 1995, the fourth quarter included 17 weeks to
accommodate the Company's fiscal year-end date, the last Sunday in December,
which fell on December 31, 1995. As a result of these factors, net sales and net
income in the fourth quarter are not comparable to results in each of the first
three fiscal quarters, and net sales and net income can be expected to decline
in the first quarter of each fiscal year in comparison to the fourth quarter of
the prior fiscal year. Comparable real store sales, which have been negative in
11 of the last 12 quarters, may continue to be negative.
Dependence on Key Personnel. The success of the Company depends
on the efforts of key management personnel. The Company's success will depend on
its ability to motivate and retain its key employees and to attract qualified
personnel, particularly general managers, for its restaurants. In recent years,
several senior corporate office employees left the Company. The Company is
currently assessing its management needs, and has hired personnel to fill those
positions which it believes are necessary to provide continuity of direction for
the Company and to execute the Company's business plan. There can be no
assurance that these new employees will be able to perform effectively, or that
significant management turnover will not continue in the future.
Restaurant Industry. The restaurant industry is affected by
changes in consumer tastes, as well as national, regional and local economic
conditions and demographic trends. The performance of individual restaurants,
including the Company's restaurants, may be affected by factors such as traffic
patterns, demographic considerations, and the type, number and location of
competing restaurants. In addition, factors such as inflation, increased food,
labor and employee benefit costs, and the availability of experienced management
and hourly employees may also adversely affect the restaurant industry in
general and the Company's restaurants in particular. Restaurant operating costs
are affected by increases in the minimum hourly wage, unemployment tax rates,
and various federal, state and local governmental regulations, including those
relating to the sale of food and alcoholic beverages. There can be no assurance
that the restaurant industry in general, and the Company in particular, will be
successful.
Competition. The Company's restaurants compete with the rapidly
growing mid-price, full-service casual dining segment; with traditional
self-service buffet, soup, and salad restaurants; and, increasingly, with
quick-service outlets. The Company's competitors include national and regional
chains, as well as local owner-operated restaurants. Key competitive factors in
the industry are the quality and value of the food products offered, quality and
speed of service, price, dining experience, restaurant location and the ambiance
of facilities. Many of the Company's competitors have been in existence longer
than the Company, have a more established market presence, and have
substantially greater financial, marketing and other resources than the Company,
which may give them certain competitive advantages. The Company believes that
its ability to compete effectively will continue to depend in large measure upon
its ability to offer a diverse selection of high-quality, fresh food products
with an attractive price/value relationship.
Ability to Obtain Additional Financing. The Company intends to
continue restaurant expansion, assuming its financial performance continues to
improve. The Company's ability to implement an expansion strategy will depend
upon a variety of factors, including its success in restoring profitability and
its ability to
14
<PAGE> 15
continue to obtain funds. The Company believes its near-term capital
requirements can be met through its existing cash balances, cash provided by
operations, and its available bank line of credit including the the option to
convert up to $3,500,000 into a 48-month term loan any time prior to the
maturity date of the line of credit in May 1998. However, the Company may seek
additional financing to provide greater flexibility toward improving its
operating performance. There can be no assurance that the Company will be able
to obtain additional financing when needed on acceptable terms or at all.
15
<PAGE> 16
RESULTS OF OPERATIONS
The following table sets forth items in the Company's statement
of operations as a percentage of sales and certain operating data for the
periods indicated:
<TABLE>
<CAPTION>
Twelve Weeks Ended, Twenty-four Weeks Ended
--------------------------------------------------------------------------
(Dollars in thousands) June 15, 1997 June 16, 1996 June 15, 1997 June 16, 1996
--------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
NET SALES $17,379 100.0 % $18,793 100.0 % $33,485 100.0 % $36,854 100.0 %
COST AND EXPENSES:
Cost of sales 4,716 27.1 % 5,050 26.9 % 9,105 27.2 % 10,103 27.4 %
Restaurant operating expenses:
Labor 5,319 30.6 % 5,931 31.6 % 10,376 31.0 % 11,837 32.1 %
Occupancy and other 5,003 28.8 % 5,247 27.9 % 10,252 30.6 % 10,531 28.6 %
Depreciation and amortization 697 4.0 % 772 4.1 % 1,398 4.2 % 1,589 4.3 %
General and administrative expenses 1,444 8.3 % 1,635 8.7 % 2,850 8.5 % 3,431 9.3 %
--------------- --------------- --------------- ---------------
Total costs and expenses 17,179 98.8 % 18,635 99.2 % 33,981 101.5 % 37,491 101.7 %
--------------- --------------- --------------- ---------------
OPERATING INCOME (LOSS) 200 1.2 % 158 0.8 % (496) (1.5)% (637) (1.7)%
Interest income 37 0.2 % 1 -- % 89 0.3 % 1 -- %
Interest expense (4) (0.0)% (64) (0.3)% (9) (0.0)% (135) (0.4)%
--------------- --------------- --------------- ---------------
Interest income (expense) net 33 0.1 % (63) (0.3)% 80 0.3 % (134) (0.4)%
--------------- --------------- --------------- ---------------
INCOME LOSS BEFORE INCOME TAXES 233 1.3 % 95 0.5 % (416) 1.2 % (771) (2.1)%
Provision for (benefit from) income taxes -- -- % -- -- % -- -- % -- -- %
--------------- --------------- --------------- ---------------
NET INCOME (LOSS) $ 233 1.3 % $ 95 0.5 % $ (416) (1.2)% $ (771) (2.1)%
=============== =============== =============== ===============
Number of restaurants:
Open at beginning of period 48 54 48 55
======= ======= ======= =======
Open at end of period 51 53 51 53
======= ======= ======= =======
</TABLE>
The following table presents the components of average operating
income on a per restaurant basis, based on the average number of restaurants
open during the period:
<TABLE>
<CAPTION>
Twelve Weeks Ended, Twenty-four Weeks Ended
------------------------------------------------------------------------
(Dollars in thousands) June 15, 1997 June 16, 1996 June 15, 1997 June 16, 1996
--------------- --------------- --------------- ----------------
<S> <C> <C> <C> <C>
NET SALES $ 350 100.0% $ 350 100.0% $ 686 100.0 % $ 681 100.0 %
COST AND EXPENSES:
Cost of sales 95 27.1% 94 26.9% 187 27.2 % 187 27.4 %
Restaurant operating expenses:
Labor 107 30.6% 111 31.6% 213 31.0 % 219 32.1 %
Occupancy and other 101 28.8% 98 27.9% 210 30.6 % 195 28.6 %
Depreciation and amortization 14 4.0% 14 4.1% 29 4.2 % 29 4.3 %
General and administrative expenses 29 8.3% 30 8.7% 58 8.5 % 63 9.3 %
------- ----- ------- ----- ------- ------ ------- -----
Total costs and expenses 346 98.8% 347 99.2% 697 101.5 % 693 101.7 %
------- ----- ------- ----- ------- ------ ------- -----
OPERATING INCOME (LOSS) $ 4 1.2% $ 3 0.8% $ (11) (1.5)% $ (12) (1.7)%
============== ============== =============== ===============
Average restaurants open during the period 49.61 53.65 48.80 54.12
======= ======= ======= =======
</TABLE>
16
<PAGE> 17
Results of Operations: Twelve Weeks Ended June 15, 1997
Compared to Twelve Weeks Ended June 16, 1996
Net Sales. Net sales for the second quarter ended June 15, 1997
were $17,379,000, a decrease of $1,414,000, or 7.5%, from sales of $18,793,000
for the second quarter ended June 16, 1996. The primary components of the net
decrease in sales were:
<TABLE>
<S> <C>
The absence of sales from eight restaurants closed in 1996 $(1,728,000)
Incremental sales from new or acquired restaurants 828,000
Decline in sales for the 47 restaurants opened prior to
the second quarter of 1997 (514,000)
-----------
$(1,414,000)
===========
</TABLE>
Comparable store sales declined 2.6% in the second quarter of
1997 compared to the second quarter of 1996. Comparable store customer counts,
which include only restaurants open and operated by the Company at least 18
months, declined 4.5%. The comparable store average check was $6.82 in the
second quarter, an increase of 2.0% versus the prior year quarter.
Net sales per restaurant averaged $350,000 in the both the second
quarter of 1997 and the second quarter of 1996.
Costs and Expenses. Cost of sales (food and beverage costs) was
27.1% of sales in the second quarter of 1997 compared to 26.9% in the second
quarter of 1996. At the beginning of the second quarter of 1997, the Company
offered a special Spring promotional menu which featured higher quality and
higher cost products, including artichokes and asparagas, which primarily
accounted for the small increase in food costs.
Restaurant operating expenses were 59.4% of net sales in the
second quarter of 1997 compared to 59.5% in the second quarter of 1996. Labor
costs were approximately 1.0% of sales below the prior year primarily due to
reduced restaurant level bonus payouts resulting from a new bonus plan
introduced in 1997 which ties bonus payouts to achieving planned profit
performance. This savings offset operating cost increases of approximately 0.9%
of sales resulting primarily from additional marketing and promotional programs
implemented in 1997.
Depreciation and amortization decreased $75,000 in the second
quarter of 1997 compared to the second quarter of 1996. Curtailment of
restaurant expansion resulted in lower start-up cost amortization and the sale
or closure of restaurants in 1996 not previously impaired in connection with the
Company's 1995 restructuring plan resulted in lower depreciation.
General and administrative expenses were $1,444,000 for second
quarter of 1997, a decrease of $191,000 from the second quarter of 1996 due to
continued cost management in staffing levels and expenses.
Interest Income. In the second quarter of 1997, the Company
invested the balance of the proceeds from its September 1996 sales of Series B
preferred stock to Crescent Real Estate Equities Limited Partnership in money
market funds and earned $37,000 in interest income. The Company had no invested
cash balances and no interest income from invested cash balances during the
second quarter of 1996.
Interest Expense. Interest expense was $4,000 in the second
quarter of 1997 compared to $64,000 in the second quarter of 1996. In 1997,
interest expense consisted of interest on the Company's remaining
17
<PAGE> 18
capital lease obligations and a site construction note included in other
long-term liabilities. In the prior year quarter, interest expense included
interest related to short-term line of credit borrowings to finance the
construction of one restaurant in addition to capital lease obligations and the
site construction note.
Income Taxes. The Company recorded no tax expense in the second
quarters ended June 15, 1997 and June 16, 1996. The Company has provided
valuation allowances against its net deferred tax assets which consist primarily
of the tax benefit related to operating loss carryforwards and non-deductible
asset write-downs and restructuring accruals. The Company will continue to
provide a valuation allowance for its deferred tax assets until it becomes more
likely than not, in management's assessment, that the Company's deferred tax
assets will be realized.
Results of Operations: Twenty-Four Weeks Ended June 15, 1997
Compared to Twenty-Four Weeks Ended June 16, 1996
Net Sales. Net sales for the twenty-four weeks ended June 15,
1997 were $33,485,000, a decrease of $3,369,000, or 9.1%, from sales of
$36,854,000 for the comparable period of the prior year. The primary components
of the net decrease in sales were:
<TABLE>
<S> <C>
The absence of sales from eight restaurants closed in 1996 $(3,537,000)
Incremental sales from new or acquired restaurants 1,191,000
Decline in sales for the 47 restaurants opened prior to 1996 (1,023,000)
-----------
$(3,369,000)
===========
</TABLE>
Comparable store sales declined 2.3% in the first half of 1997
compared to the first half of 1996. Comparable store customer counts, which
include only restaurants open and operated by the Company at least 18 months,
declined 7.5%. The comparable store average check was $6.78 in the first half of
1997, an increase of 5.7% versus the same period in the prior year.
In the prior year, the Company introduced its current one-price
system at the end of the first quarter, replacing its former two-tier pricing
system, and terminated certain discount programs during the second quarter.
These pricing changes contributed to the Company's higher average check
beginning with the second quarter of 1996.
Net sales per restaurant averaged $686,000 in the first half of
1997 compared to $681,000 in the first half of 1996, an increase of 0.7%.
Costs and Expenses. Cost of sales (food and beverage costs) was
27.2% of sales in the first half of 1997 compared to 27.4% in the first half of
1996. During the first quarter of the prior year, the Company had launched the
roll-out of a major food program that introduced new recipes and upgraded
existing ones based on market research and consumer trends. The program upgraded
the quality of the Company's product and resulted in increasing food costs per
customer throughout the remainder of 1996 and also in higher food costs per
customer in 1997. At the end of the prior year first quarter, the Company
introduced its current one-price system and, during the second quarter last
year, terminated certain discount programs. These pricing decisions produced a
higher average customer check that continued through the first half of 1997 and
kept food costs as a percentage of sales substantially even compared to the
prior year.
18
<PAGE> 19
Restaurant operating expenses were 61.6% of net sales in the
first half of 1997 compared to 60.7% in the first half of 1996. Labor savings of
approximately 1.1% of sales resulted from reduced restaurant level bonus payouts
resulting from a new bonus plan introduced in 1997 which ties bonus payouts to
achieving planned profit performance. Operating cost increases of approximately
2.0% of sales resulted primarily from the Company's first quarter 1997
investment in advertising, which included television support, and, to a lesser
extent, other marketing and promotion programs during the first half of 1997.
The absence of fixed costs on the eight restaurants closed or sold in the prior
year in connection with the Company's restructuring plan provided a partial
offset to the increase in operating costs.
Depreciation and amortization decreased $191,000 in the first
half of 1997 compared to the first half of 1996. Curtailment of restaurant
expansion resulted in lower start-up cost amortization and the sale or closure
of restaurants not previously impaired in connection with the Company's 1995
restructuring plan resulted in lower depreciation.
General and administrative expenses were $2,850,000 for first
half of 1997, a decrease of $581,000 compared to expenses of $3,431,000 for the
second quarter of 1996. In the prior year, general and administrative expenses
included consulting fees paid to assist the Company in the development of its
strategic plan and other matters. General and administrative expenses were also
lower due to the Company's continued cost management in staffing levels and
expenses.
Interest Income. During the first half of 1997, the Company
invested the balance of the proceeds from its September 1996 sales of Series B
preferred stock to Crescent Real Estate Equities Limited Partnership in money
market funds and earned $89,000 in interest income. The Company had no invested
cash balances and no interest income from invested cash balances during the
first half of 1996.
Interest Expense. Interest expense was $9,000 in the first half
of 1997 compared to $135,000 in the first half of 1996. In 1997, interest
expense consisted solely of interest on the Company's remaining capital lease
obligations and a site construction note included in other long-term
liabilities. In the prior year, interest expense included interest and fees
related to short-term line of credit borrowings to finance the construction of
one restaurant in addition to capital lease obligations and the site
construction note.
Income Taxes. The Company recorded no tax benefit from its
operating loss during the first half of 1997 and 1996. The Company has provided
valuation allowances against its net deferred tax assets which consist primarily
of the tax benefit related to operating loss carryforwards and non-deductible
asset write-downs and restructuring accruals. The Company will continue to
provide a valuation allowance for its deferred tax assets until it becomes more
likely than not, in management's assessment, that the Company's deferred tax
assets will be realized.
19
<PAGE> 20
ITEM 3 - QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not applicable.
20
<PAGE> 21
PART II. OTHER INFORMATION
ITEM 1 - LEGAL PROCEEDINGS
On January 9, 1995, a class action lawsuit was filed in the
United States District Court for the Northern District of California, San Jose
division, naming the Company, certain of its directors, and current and former
officers as defendants. The lawsuit alleged that the defendants misrepresented
or failed to disclose material facts about the Company's operations and
financial results, which the plaintiffs contend resulted in an artificial
inflation of the price of the Company's stock. The suit was purportedly brought
on behalf of a class of purchasers of the Company's stock during the period from
July 15, 1993 to December 15, 1994. On March 20, 1995 the plaintiffs filed an
amended complaint, which added as defendants the co-lead underwriters of the
Company's initial and secondary public offerings and three securities analysts
employed by the underwriters. The amended complaint also expanded the alleged
class period to include purchasers of the Company's stock during the period from
December 8, 1992 to February 9, 1995. On December 7, 1995, the Court dismissed
the amended complaint, with leave for further amendment. Plaintiffs filed a
Second Amended Complaint on February 27, 1996. This complaint alleges that Fresh
Choice and certain of its current and former officers and directors
misrepresented or failed to disclose material facts about the Company's
operations and financial results during the period from February 15, 1994
through February 9, 1995, in violation of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934.
After the Company filed a motion to dismiss the Second Amended
complaint, the parties reached an agreement in principle to settle the lawsuit
in its entirety. The Court has issued an order preliminarily approving the
settlement and setting a hearing date for final approval. The settlement will be
funded by insurance proceeds. The Company continues to deny all allegations in
the lawsuit.
ITEM 2 - CHANGES IN SECURITIES Not Applicable.
ITEM 3 - DEFAULTS UPON SENIOR SECURITIES Not Applicable.
ITEM 4 - SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Company held its Annual Meeting of Stockholders on May 22,
1997. The stockholders voted on proposals on:
(1) The election of two Class II directors to hold office for a
three-year term and until their respective successors are elected and qualified.
The proposal was approved by the following vote:
<TABLE>
<CAPTION>
Nominee For Withheld
------- --- --------
<S> <C> <C>
Carl R. Hays 4,908,005 35,554
Charles A. Lynch 4,906,320 37,239
</TABLE>
(2) The appointment of Deliotte & Touche LLP as the Company's
independent accountants for the fiscal year ending December 28, 1997. The
proposal was approved by the following vote:
<TABLE>
<CAPTION>
For Against Abstain
--- ------- -------
<S> <C> <C>
4,909,673 14,183 19,703
</TABLE>
21
<PAGE> 22
ITEM 5 - OTHER INFORMATION Not Applicable.
ITEM 6 - EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits. The exhibits listed in the accompanying index to Form 10-Q
Exhibits are filed or incorporated by reference as part of this report.
(b) Reports on Form 8-K. No reports on Form 8-K were filed during the quarter
ended June 15, 1997.
22
<PAGE> 23
SIGNATURES
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, thereunto duly authorized.
FRESH CHOICE, INC.
(Registrant)
/S/ Charles A. Lynch
-------------------------------------------
Charles A. Lynch
Chairman of the Board and Director
(Principal Executive Officer)
/S/ David E. Pertl
-------------------------------------------
David E. Pertl
Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
Dated: July 30, 1997
23
<PAGE> 24
INDEX TO FORM 10-Q EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------------------------------------------------------------------------------------------------------
<S> <C> <C>
3.1 (1) Restated Certificate of Incorporation of Fresh Choice, Inc.
3.2 (8) Amended By-Laws of Fresh Choice, Inc. dated April 11, 1996
3.3 (10) Certificate of Amendment of Restated Certificate of Incorporation
of Fresh Choice, Inc.
3.4 (10) Certificate of Designation of Series A Voting Participating
Convertible Preferred Stock of Fresh Choice, Inc.
3.5 (10) Certificate of Designation of Series B Non-Voting Participating
Convertible Preferred Stock of Fresh Choice, Inc.
3.6 (10) Certificate of Designation of Series C Non-Voting Participating
Convertible Preferred Stock of Fresh Choice, Inc.
4.1 (10) Registration Rights Agreement dated September 13, 1996 between
Fresh Choice, Inc. and Crescent Real Estate Equities Limited Partnership
10.1 (1) Form of Indemnity Agreement for directors and officers
10.2 (2) (3) Second Amended and Restated 1988 Stock Option Plan
10.3 (2) (3) 1992 Employee Stock Purchase Plan
10.4 (1) Series A Preferred Stock Purchase Agreement dated August 10, 1988
10.5 (1) Series B Preferred Stock Purchase Agreement dated July 21, 1989
10.6 (1) Series C Preferred Stock Purchase Agreement dated January 15, 1990
10.7 (1) Master Lease and Warrant Agreement with Equitec Leasing Company
and Warrant dated January 18, 1990
10.8 (8) Preferred Stock Purchase Agreement with Crescent Real Estate
Equities Limited Partnership dated April 26, 1996
10.9 (1) Series D Preferred Stock Purchase Agreement dated April 17, 1991
10.10 (5) Amendment No. 1 dated September 3, 1993 to the Business Loan
Agreement dated September 3, 1993.
10.11 (5) Amendment No. 2 dated November 15, 1993 to the Business Loan
Agreement dated September 3, 1993.
10.12 (1) Amendment dated December 1, 1992 to Preferred Stock Purchase
Agreements
10.13 (4) Business Loan Agreement dated September 3, 1993 with Bank of
America National Trust and Savings Association
10.14 (5) Amendment No. 4 dated March 31, 1995 to the Business Loan
Agreement dated September 3, 1993
</TABLE>
24
<PAGE> 25
INDEX TO FORM 10-Q EXHIBITS continued
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- --------------------------------------------------------------------------------------------------
<S> <C> <C>
10.15 (5) Amendment No. 3 dated April 27, 1994 to the Business Loan
Agreement dated September 3, 1993
10.16 (6) Loan and Security Agreement dated December 20, 1995 with Silicon
Valley Bank
10.17 (6) Third Party Security agreement dated December 20, 1995 between
Silicon Valley Bank and Moffett Design Corporation
10.18 (6) Warrant to Purchase up to 75,000 Shares of the Company's Common
Stock issued to Silicon Valley Bank on December 20, 1995
10.19 (6) Common Stock Purchase Warrant to Purchase 100,000 Shares of the
Company's Common Stock issued to Bain & Company,
dated December 15, 1995
10.20 (6) (3) Employment Offer Letter to Robert Ferngren dated November 9, 1995
10.21 (9) (3) Amendment dated July 29, 1996 to Employment Offer Letter to
Robert Ferngren
10.22 (10) (3) Severance Agreement with Charles A. Lynch dated July 18, 1996
10.23 (10) (3) Severance Agreement with David Anderson dated July 18, 1996
10.24 (10) (3) Severance Agreement with Tim G. O'Shea dated July 18, 1996
10.25 (10) (3) Severance Agreement with Joan M. Miller dated July 18, 1996
10.26 (11) (3) Employment Offer Letter to David E. Pertl dated January 24, 1997
10.27 (11) (3) Employment Offer Letter to Everett F. Jefferson dated January 30, 1997
10.28 (11) (3) Amendment to Employment Offer Letter to Everett F. Jefferson dated
February 10, 1997
10.29 (11) Loan Modification Agreement dated November 27, 1996 with Silicon
Valley Bank
10.30 (11) (3) Severance Agreement with Tina Freedman dated March 13, 1997
10.31 Agreement of Sale and Purchase dated April 2, 1997 with RUI One Corp.
10.32 Amendment to Loan and Security Agreement dated July 9, 1997 with
Silicon Valley Bank
11.1 Computation of Net Loss per Share
27 (7) Financial Data Schedule
</TABLE>
- -------------------------
25
<PAGE> 26
(1) Incorporated by reference from the Exhibits with corresponding numbers
filed with the Company's Registration Statement on Form S-1 (No. 33-53904)
filed October 29, 1992, as amended by Amendment No. 1 to Form S-1 (No.
33-53904) filed December 7, 1992, except that Exhibit 3.1 is incorporated
by reference from Exhibit 3.1C and Exhibit 3.2 is incorporated by reference
from Exhibit 3.2B.
(2) Incorporated by reference from the Exhibits with corresponding numbers
filed with the Company's Quarterly Report on Form 10-Q for the quarter
ended September 4, 1994.
(3) Agreements or compensatory plans covering executive officers and directors
of Fresh Choice, Inc.
(4) Incorporated by reference from the Company's Annual Report on Form 10-K for
the period ended December 26, 1993.
(5) Incorporated by reference from the Exhibits with corresponding numbers
filed with the Company's Quarterly Report on Form 10-Q for the quarter
ended March 19, 1995.
(6) Incorporated by reference from the Exhibits with corresponding numbers
filed with the Company's Annual Report on Form 10-K for the year ended
December 31, 1995.
(7) Included in EDGAR filing only.
(8) Incorporated by reference from the Exhibits with corresponding numbers
filed with the Company's Quarterly Report on Form 10-Q for the quarter
ended March 24, 1996.
(9) Incorporated by reference from the Exhibits with corresponding numbers
filed with the Company's Quarterly Report on Form 10-Q for the quarter
ended June 16, 1996.
(10) Incorporated by reference from the Exhibits with corresponding numbers
filed with the Company's Quarterly Report on Form 10-Q for the quarter
ended September 8, 1996.
(11) Incorporated by reference from the Exhibits with corresponding numbers
filed with the Company's Annual Report on Form 10-K for the year ended
December 29, 1996.
26
<PAGE> 1
Exhibit 10.31
AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE, entered into this 2nd day of April,
1997 (the "Effective Date"), by and between FRESH CHOICE, INC., a Delaware
corporation (hereinafter referred to as "Buyer"), and RUI ONE CORP., a
Washington corporation (hereinafter referred to as "Seller").
RECITALS
Seller is engaged in the business of owning and operating restaurants,
including those restaurants operating under the name "Zoopa", located at
Southcenter Plaza Shopping Center, 393 Strander Boulevard, Tukwila, Washington,
("Tukwila"), Bellevue Square, Bellevue, Washington, ("Bellevue"), and Tacoma
Place, Tacoma, Washington ("Tacoma") (each a "Restaurant" and referred to
collectively as the "Restaurants").
Seller is interested in selling certain assets including, but not limited
to, the Restaurants, all tangible and intangible assets directly related to the
assets, and certain related matters, and Buyer is interested in purchasing the
same pursuant to the terms, conditions and provisions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, agreements and provisions herein contained, the parties do hereby
agree as follows:
1. Purchase and Sale of Assets.
1.1 Seller does hereby agree to sell and assign to Buyer, and
Buyer does hereby agree to purchase from Seller, upon the terms and conditions
hereinafter stated, Seller's entire right, title and interest in the leasehold
interests of Seller in the Leases (as hereinafter defined) for the Restaurants
and all tangible and intangible assets directly related to the Restaurants (the
"Purchased Assets"), including all of the existing furniture, fixtures,
equipment, smallwares, inventory, petty cash left overnight in each Restaurant
on the Closing Date, leasehold improvements and supplies except as listed on
Schedule 1.1 (the "Tangible Assets") and, to the extent assignable by their
terms or at law, all of Seller's right, title and interest to the intangible
assets associated with the Restaurants, including: (a) all recipes, logos, and
market research conducted in developing the Restaurants and Zoopa, any marketing
and promotional materials developed in operating the Restaurants and the
registered trademark, service mark and trade name Zoopa, (b) customer lists,
information and goodwill, (c) permits, approvals, contracts, arrangements,
equipment leases, supply agreements, purchase orders and all rights thereunder,
(d) the registered trademark, service mark and trade name "Zoopa", (e) any other
general
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intangibles not otherwise covered, and (f) all applications for any of the
foregoing (the "Intangible Assets").
1.2 The parties acknowledge and agree that Seller shall retain
all of those assets not associated with the Restaurants and such assets
associated with the Restaurants which are listed on Schedule 1.1 attached to
this Agreement and incorporated by reference which are specifically excluded
from the Purchased Assets.
1.3 All of Seller's right, title and interest in and to all
leases for real property and equipment associated with the Restaurants (which
are enumerated in Schedule 1.3 attached hereto) (each referred to herein as a
"Lease" and collectively as the "Leases") shall be assigned to the Buyer subject
to the terms and conditions set forth in Section 14 herein and shall be
considered as part of the Purchased Assets hereunder.
1.4 The parties agree that Buyer by this Agreement does not
and will not be assuming any of the obligations and liabilities of Seller other
than those contracts to be assumed by Buyer as described on Schedule 1.4
attached hereto and incorporated by reference herein (the "Liabilities"). Buyer
does not assume or agree to pay any liability, obligation or expense of Seller
relating to the employees at the Restaurants, including, but not limited to,
accrued vacation, sick leave and deferred compensation benefits for Seller's
employees which arose prior to the Closing. Effective upon the Closing, Buyer
hereby assumes and agrees to perform, pay and discharge the Liabilities. Subject
to the terms of Section 15 herein, Seller shall indemnify Buyer against all
losses, claims or damages for unassumed liabilities and Buyer shall indemnify
Seller for all losses, claims or damages related to the Liabilities
2. Purchase Price.
2.1 The purchase price (the "Purchase Price") for the
Purchased Assets shall consist of (a) the sum of One Million Two Hundred Fifty
Thousand Dollars ($1,250,000), which sum shall be payable by Buyer to Seller
with immediately available funds at the Closing (as defined in Section 3
herein), plus payment for all food, paper and supplies inventory at cost (as
determined and paid pursuant to Section 2.2 hereof), and (b) an additional
payment, calculated below. The Purchase Price shall be allocated in accordance
with Schedule 2, which shall be prepared to the reasonable mutual satisfaction
of the parties prior to the Closing and incorporated by reference herein. Seller
and Buyer shall report the allocation on IRS Form 8023 in a manner consistent
with Schedule 2.
2.2 At the close of business on the Closing Date, Buyer and
Seller shall inspect and record the food, paper and supplies inventory and petty
cash held in the Restaurants as of that time, and shall make payment to Seller
for all such inventory and petty cash at cost within ten (10) business days
after the Closing Date.
2.3 Buyer shall pay to Seller forty-five (45) days after the
first anniversary of the Closing Date, Seven Hundred Fifty Thousand Dollars
($750,000) (the "Additional Payment"); provided, however, that if the gross
sales (as defined in Section 2.5 below) (the
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"Gross Sales') for the Restaurants for the one-year period commencing at Closing
is less than, in the aggregate, Six Million Eight Hundred Thousand Dollars
($6,800,000) (the "Aggregate Gross Sales Target"), as adjusted by Section 2.4
below, the Additional Payment shall be reduced by an amount equal to 15% of the
difference between the Aggregate Gross Sales Target and the actual aggregate
gross sales, up to a maximum aggregate reduction of Two Hundred Thousand Dollars
($200,000); and, provided further that if the actual aggregate gross sales
exceed the Aggregate Gross Sales Target, the Additional Payment shall be
increased by an amount equal to 15% of the difference between the actual
aggregate gross sales and the Aggregate Gross Sales Target, up to a maximum
aggregate increase of Two Hundred Thousand Dollars ($200,000).
2.4 For purposes of this Agreement, the gross sales target for
each Restaurant for the one-year period from the Closing Date until the first
anniversary of the Closing Date shall be as follows: for Tukwila, Two Million
Eight Hundred Fifty Thousand Dollars ($2,850,000), for Bellevue, Two Million Two
Hundred Fifty Thousand Dollars ($2,250,000) and for Tacoma, One Million Seven
Hundred Thousand Dollars ($1,700,000). Should Buyer sell, transfer, or assign
the leasehold for any particular Restaurant, or close any particular Restaurant,
prior to the first anniversary of the Closing Date, the Aggregate Gross Sales
Target shall be decreased by an amount equal to the difference between (a) the
initial gross sales target for that Restaurant and (b) an adjusted gross sales
target for that Restaurant. Such adjusted gross sales target shall be calculated
by multiplying the initial gross sales target by a ratio equal to the number of
days such Restaurant was operated under the Zoopa name by Buyer, divided by 365.
2.5 For purposes of this Agreement, gross sales shall be
defined as the revenue from the selling price of all merchandise or services
sold in or from the Restaurants by Buyer during such period of time that the
Restaurants are operated by buyer and included in the calculation of the
Aggregate Gross Sales Target pursuant to Section 2.4 above, whether for cash or
for credit, excluding, however, the following: (i) the sales price of all
merchandise returned and accepted for full credit or the amount of the cash
refund or allowance made thereon; (ii) the sums and credits received in
settlement of claims for loss or damage to merchandise; (iii) the consideration
received in connection with a sale of inventory which occurs other than in the
ordinary course of Buyer's business, including, but not limited to, a sale in
bulk or to a jobber, liquidator or assignee; (iv) sales taxes, so-called luxury
taxes, excise taxes, gross receipt taxes (other than Washington State business
and occupation taxes), and other taxes now or hereafter imposed upon the sale or
value of merchandise or services, whether added separately to the selling price
of the merchandise or services and collected from customers or included in the
retail selling price; (v) receipts from public telephones and vending machines;
(vi) bankcard discounts (e.g., Visa, MasterCard, etc.), interest, carrying
charges, or other finance charges in respect of sales made on credit; (vii)
sales of fixtures, trade fixtures, or personal property that are not merchandise
held for sale at retail; (viii) the amount of any discount applied in sales to
employees and senior citizens at discount; (ix) Buyer's accounts receivable, not
to exceed two percent (2%) of Gross Sales, which have been determined to be
uncollectible for federal income tax purposes during the one-year period from
the Closing Date until the first anniversary of the Closing Date; (x) rents,
subrents or other consideration received in connection with an assignment,
sublease, license, concession or other transfer of any portion of any of the
Restaurants, and (xi) amounts received for merchandise transferred to a place of
business of
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Buyer other than any of the Restaurants, or to any business organization
affiliated with Buyer wherever located, provided such merchandise is not used to
fill a sale made in any of the Restaurants.
2.6 Buyer shall maintain accurate records showing a statements
of income for the Restaurants. Within 30 days after the end of each calendar
quarter, Buyer shall deliver to Seller a complete and accurate statement in
writing, duly certified to be correct by an officer of Buyer relating to the
preceding calendar quarter which will state the Gross Sales during the preceding
calendar quarter. Within forty-five (45) days after the end of the one-year
period, Buyer shall provide a statement of Gross Sales for any period included
in the one-year period for purposes of the Additional Payment but not included
in the previous quarter and a summary of Gross Sales for the entire one-year
period. Seller may, after the end of the one-year period commencing at Closing,
examine the books and records of Buyer at Buyer's corporate headquarters during
normal business hours and at reasonable times through Seller's own employees or
representative(s) to obtain or verify the foregoing information.
2.7 At Closing, Buyer agrees to grant to Seller a valid and
perfected security interest, subject to the filing of necessary financing
statements and subject to any encumbrance or imperfection created by Seller, in
the Tangible Assets, the Intangible Assets and, to the extent permitted by the
respective lessors, the Leases (collectively, the "Security Interests"). Such
Security Interests will secure up to the first $750,000 of the Additional
Payment owing to Seller. Buyer agrees to execute such security agreements,
financing statements and any other documents or instruments as Seller shall
reasonably require to perfect the Security Interests.
2.8 The items listed below shall be apportioned between Seller
and Buyer, Seller being fully responsible for all expenses, and entitled to all
income, attributable to periods before and including the day of the Closing, and
Buyer being responsible for all expenses and entitled to all income attributable
to periods after the Closing:
(a) prepaid rent (including any percentage rent and
Seller's share of common area maintenance expenses and operating expenses);
(b) the amount of all security and other tenant
deposits and interest due thereon, if any, shall be credited to Buyer;
(c) accrued general real estate, personal property
and ad valorem taxes and assessments for the current year shall be prorated on
the basis of bills, if available prior to the Closing; and
(d) other prepaid contracts, prepaid expenses and
items typically apportioned in transactions of the type contemplated hereby.
To the extent any of the items in this Section 2.8 or
Section 9.5 are not paid or received, or any closing adjustment cannot be
definitively made by the Closing, Buyer and Seller shall make appropriate
adjustments as set forth herein after Closing, and such
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obligations shall survive the Closing for the maximum period permitted by law.
The parties shall cooperate with each other as appropriate to complete such
adjustments and prorations.
3. Closing; Effective Time. The Closing on the sale of the Purchased
Assets shall take place on or before April 15, 1997 (the "Closing Date"), at the
offices of Ogden Murphy & Wallace, P.L.L.C., 2100 Westlake Center Tower, 1601
Fifth Avenue, Seattle, Washington. The parties may, by mutual consent, schedule
the Closing at an earlier date and/or at another location. This agreement shall
become effective at the close of business on the Closing Date (the "Effective
Time").
4. Title. Seller shall at Closing execute a Bill of Sale (the "Bill of
Sale") and an Assignment and Assumption of Lease applicable to each Lease
substantially in the form of Exhibit A attached hereto (the "Lease Assignments")
conveying to Buyer, its successors and assigns, good, merchantable, unencumbered
and unqualified title, and the right to the sole and undisputed possession of
the Purchased Assets sold hereunder. Seller shall pay all payroll taxes, sales
taxes, personal property taxes, and other taxes and public charges, fees, debts,
obligations and all other charges attributable to the operation of the
Restaurants accrued prior to the Effective Time and shall file with every
federal, state and local government agency all reports and documents required up
to the Effective Time. Seller shall indemnify and save Buyer harmless from all
loss, cost, liability or expense whatsoever which may be incurred by Buyer due
to the failure of Seller to file any such report or document within the time
required by law, except to the extent that such failure is due to the fault of
Buyer. Buyer shall pay all payroll taxes, sales taxes, personal property taxes,
and other taxes and public charges, fees, debts, obligations and all other
charges attributable to the operation of the Restaurants accrued after the
Effective Time and shall file with every federal, state and local government
agency all reports and documents required after the Effective Time. Buyer shall
indemnify and save Seller harmless from all loss, cost, liability or expense
whatsoever which may be incurred by Seller due to the failure of Buyer to file
any such report or document within the time required by law, except to the
extent that such failure is due to the fault of Seller.
5. Gateway Restaurant. Seller currently operates a restaurant under the
name Zoopa, located at Montlake Terrace, Washington (the "Gateway Restaurant").
The parties hereby agree to the following covenants and conditions regarding the
operation of the Gateway Restaurant after the closing:
5.1 Buyer shall grant to Seller, at Seller's option, for no
additional consideration, a license, in the form attached hereto as Exhibit B to
use certain of the Purchased Assets in the operation of the Gateway Restaurant
(the "Gateway License").
5.2 If Seller has not sold or transferred the Gateway
Restaurant by the one-year anniversary of the Closing Date, Buyer, in its sole
discretion, shall have the option to:
(a) purchase the Gateway Restaurant for a price to be
negotiated by the parties;
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(b) terminate the Gateway License, at which time
Seller will immediately cease use of any of the Purchased Assets licensed to it
under the Gateway License; or
(c) extend the Gateway License for a period of up to
one year for a fee equal to 2% of the gross sales of the Gateway Restaurant
during such year, payable quarterly in arrears, at the end of which time Buyer
may again either purchase the Gateway Restaurant, terminate the Gateway License
or extend the Gateway License for an additional year on the same terms, pursuant
to subsections (a), (b) and (c) hereof.
5.3 If Seller sells or transfers its interest in the leasehold
interest for the Gateway Restaurant to BUCA Inc., or any affiliate, parent or
subsidiary thereof, Buyer shall receive ten percent (10%) of all consideration
(except any assumed liabilities) paid to Seller, or to any affiliate, parent or
subsidiary thereof, pursuant to such transaction, to be paid at the earlier of
(i) the Closing of such sale or transfer, or (ii) the date on which the Buyer or
transferee first occupies the Gateway Restaurant.
6. Representations and Warranties of Seller. Subject to and except for
the information which is set forth on a list of exceptions, identified by the
Section of this Section 6 to which they pertain and contained in the Disclosure
Schedule attached as Schedule 6 hereto, Seller hereby represents and warrants to
Buyer, as of the date of this Agreement or, with respect to any particular
subsection of this Section 6, such other date as specified in that subsection,
as follows:
6.1 Seller is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Washington. Seller
is duly qualified or licensed to do business as a foreign corporation in each
state of the United States or other jurisdiction in which it is required to be
so qualified or licensed, except in states and other jurisdictions in which the
failure to qualify, in the aggregate, would not have a material adverse effect
on the Purchased Assets.
6.2 Seller does not own any equity interest, directly or
indirectly, in any corporation, partnership, limited liability company, joint
venture, business, trust or other entity, whether or not incorporated, which is
engaged in any aspect of the operation of the Restaurants.
6.3 This Agreement, and all other documents to be executed and
delivered hereunder (the "Ancillary Documents") to which Seller is or will be a
party have been, or upon their execution and delivery hereunder will have been,
duly and validly executed and delivered by Seller, have been duly and validly
approved by the Board of Directors, and, if necessary, the shareholders of
Seller, and constitute, or will constitute, valid and binding agreements of
Seller, enforceable against Seller in accordance with their respective terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
or by general equitable principles or the exercise of judicial discretion in
accordance with such principles. Seller has all requisite power and authority to
execute and deliver this Agreement and, at the time of the Closing, will have
all requisite power and authority
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to carry out the transactions contemplated by this Agreement and the Ancillary
Documents. All necessary corporate action on the part of the Seller has been
taken to authorize the execution and delivery of this Agreement and the
Ancillary Documents.
6.4 The execution and the delivery of this Agreement and the
Ancillary Documents by Seller do not, and the consummation of the transactions
contemplated hereby and compliance with the provisions hereof will not, conflict
with, result in a breach of, constitute a default (with or without notice or
lapse of time, or both) under or violation of, or result in the creation of any
lien, charge or encumbrance pursuant to, (i) any provision of the Articles of
Incorporation or Bylaws of Seller, (ii) any judgment, order, decree, rule, law
or regulation of any court or governmental authority, foreign or domestic, or
(iii) any provision of any agreement, instrument or understanding to which
Seller is a party or by which Seller or any of its properties or assets is bound
or affected, nor will such actions give to any other person or entity any
interests or rights of any kind, including rights of termination, acceleration
or cancellation, in or with respect to any of the Purchased Assets. No consent
of any third party or any governmental authority is required to be obtained on
the part of Seller to permit the consummation of the transactions contemplated
by this Agreement or the Ancillary Documents.
6.5 The Tangible Assets are, and at the Effective Time will
be, in operating condition and good repair, ordinary wear and tear and routine
maintenance excepted.
6.6 The Inventory will constitute all of the inventory used,
or held for use, in connection with the operation of the Restaurants as of the
Effective Time. The Inventory was acquired and has been maintained in the
ordinary course of business; is of good and merchantable quality; is of a
quality, quantity and condition usable or salable in the ordinary course of
business; and is not subject to any write-down or write-off under Seller's
accounting policies which are in accordance with generally accepted accounting
principles ("GAAP"). Seller is not under any liability or obligation with
respect to the return of inventory in the possession of wholesalers, retailers
or other customers.
6.7 There are no claims, actions, suits, proceedings or
investigations in progress or pending before any court or governmental agency,
against or relating to the operation of the Restaurants or any of the Purchased
Assets, nor, to the best of Seller's knowledge, any threat thereof. Seller is
not a party to any decree, order or arbitration award (or agreement entered into
in any administrative, judicial or arbitration proceeding with any governmental
authority) with respect to the operation of the Restaurants or any of the
Purchased Assets.
6.8 To the best of Seller's knowledge, Seller is in compliance
in all material respects with all statutes, laws, rules and regulations with
respect to or affecting the operation of the Restaurants or the Purchased Assets
or which could affect Buyer's operation of the Restaurants or its use and
enjoyment of the Purchased Assets from and after the Closing, including, without
limitation, laws, rules and regulations relating to anticompetitive or unfair
pricing or trade practices, false advertising, consumer protection, export or
import controls, occupational health and safety, equal employment opportunities,
fair employment practices, and sex, race, religious and age discrimination.
Seller is not subject to any order, injunction or decree
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issued by any governmental body, agency, authority or court which could impair
the ability of Seller to consummate the transactions contemplated hereby or
which could adversely affect Buyer's operation of the Restaurants or its use and
enjoyment of the Purchased Assets from and after the Closing. Seller possesses
all licenses, permits and governmental or other regulatory approvals and
authorizations which are required in order for Seller to operate the Restaurants
as presently conducted, and is in compliance in all material respects with all
such licenses, permits, approvals and authorizations.
6.9 Seller has timely filed within the time period for filing
or any extension granted with respect thereto all federal, state, local and
other returns and reports relating to any and all taxes or any other
governmental charges, obligations or fees for taxes and any related interest or
penalties ("Tax" or "Taxes") required to be filed by it with respect to the
operation of the Restaurants and the Purchased Assets, and all such returns and
reports are true and correct. Seller has paid all Taxes, if any, shown to be due
and payable on said returns and reports and has withheld with respect to
employees all federal and state income Taxes and other Taxes required to be
withheld and has timely paid all sales, use and similar Taxes. No income, sales,
use or similar Tax return or report of Seller has been audited by the Internal
Revenue Service or any state taxing authority. There are no pending or, to the
best of Seller's knowledge, threatened audits, assessments, asserted
deficiencies or claims for additional Taxes. There are (and as of immediately
following the Closing there will be) no encumbrances relating to or attributable
to Taxes on any of the Purchased Assets.
6.10 Schedule 6.10 contains a list of all employees of Seller
directly engaged in the operation of the Restaurants (the "Zoopa Employees").
Such list correctly reflects, in all material respects, such employees' salaries
or wages, other compensation, dates of employment, positions and birth dates. To
the best of Seller's knowledge, Seller is not engaged in any unfair labor
practice and is not in violation of any applicable laws respecting employment
and employment practices, or terms and conditions of employment. There is no
unfair labor practice complaint against Seller pending or, to the best of
Seller's knowledge, threatened before the National Labor Relations Board. There
is no strike, labor dispute, slowdown, or stoppage pending or, to the best of
Seller's knowledge, threatened against Seller. No union representation question
exists respecting the employees of Seller and, to the best of Seller's
knowledge, Seller is not now and has never been subject to any union organizing
activities. Seller is not and has never been subject to any collective
bargaining or union agreement, obligation or commitment, written or oral, with
respect to any of its employees and is not subject to any other agreement,
obligation or commitment, written or oral, with any trade or labor union,
employees' association or similar organization. Seller has not experienced any
work stoppage or other labor difficulty.
6.11 To the best of Seller's knowledge, Seller has obtained
all permits, licenses and other authorizations required under federal, state and
local laws relating to pollution or protection of the environment, including
laws or provisions relating to emissions, discharges, releases or threatened
releases of pollutants, contaminants, or hazardous or toxic materials,
substances or wastes into air, surface water, groundwater, or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of pollutants, contaminants or hazardous or
toxic materials, substances or wastes. To the best of
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Seller's knowledge, Seller is in compliance in all material respects with all
terms and conditions of all such permits, licenses and authorizations. To the
best of Seller's knowledge, there are no conditions, circumstances, activities,
practices, incidents, or actions that may form the basis of any claim, action,
suit, proceeding, hearing, or investigation, based on or related to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling, or the emission, discharge, release or threatened
release into the environment, of any pollutant, contaminant, or hazardous or
toxic substance, material or waste.
6.12 No representation, warranty or covenant of Seller
contained in this Agreement or in any written statement delivered pursuant
hereto or in materials delivered to Buyer in connection with the transactions
contemplated hereby contains or shall contain any untrue statement of a material
fact or omits to state material facts necessary in order to make the statements
contained therein not misleading. Seller has delivered to Buyer complete and
accurate copies of each contract, agreement, license, lease and similar document
(or, if oral, summaries of same) referred to in any Schedule hereto or included
in the Purchased Assets.
6.13 Seller has delivered to Buyer copies of unaudited
statements of income and cash flows for the Restaurants for the three month
period ended February 28, 1997 and its unaudited monthly statements of income
for each of the Restaurants for the three years ended February 28, 1997 (the
"Seller Financial Statements"). The Seller Financial Statements have been
prepared in accordance with GAAP, and present fairly the financial position of
the Restaurants as of their respective dates and the results of operations,
equity transactions and changes in financial position of the Restaurants for the
periods indicated, except that the Seller Financial Statements do not contain
all footnotes and other information required by GAAP. All debts, liabilities,
and obligations incurred after February 28, 1997 were incurred in the ordinary
course of business, and are usual and normal in amount both individually and in
the aggregate.
6.14 Since December 31, 1996, Seller has operated the
Restaurants in the ordinary and usual course and, without limiting the
generality of the foregoing, has not:
(a) suffered any material adverse change in its
financial condition, assets, business or operations;
(b) suffered any damage, destruction or loss, whether
covered by insurance or not, materially and adversely affecting the Purchased
Assets or the operation of the Restaurants;
(c) granted any increase in the compensation payable
or to become payable by Seller to any Zoopa Employees, except those occurring in
the ordinary course of business;
(d) made any change in the accounting methods or
practices it follows, whether for general financial or tax purposes, or any
change in depreciation or amortization policies or rates adopted therein;
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(e) sold, assigned, transferred, licensed or
otherwise disposed of any patent, trademark, trade name, brand name, copyright
(or pending application for any patent, trademark or copyright) invention,
process, know-how, formula or trade secret or interest thereunder or other
intangible asset except in the ordinary course of its business;
(f) incurred any liabilities except in the ordinary
course of business and consistent with past practice which would be required to
be disclosed in financial statements prepared in accordance with GAAP;
(g) permitted or allowed any of its property or
assets to be subjected to any encumbrance of any kind, other than any purchase
money security interests incurred in the ordinary course of business;
(h) made any material amendment to or terminated any
contract or any other agreement which is listed on any Schedule to this
Agreement; or
(i) agreed to take any action described in this
Section 6.14 or outside of its ordinary course of business or which would
constitute a breach of any of the representations or warranties of Seller
contained in this Agreement.
6.15 Seller owns all right, title and interest in and to all
of the Intangible Assets, free and clear of all claims and encumbrances
(including without limitation distribution rights). All of Seller's trademark or
tradename registrations related to the operation of the Restaurants and all of
Seller's copyrights in any of the Intangible Assets are valid and in full force
and effect; and consummation of the transactions contemplated hereby will not
alter or impair any such rights.
6.16 No claims have been asserted against Seller (and Seller
is not aware of any claims that are likely to be asserted against Seller or
which have been asserted against others) by any person challenging Seller's use
or distribution of any patents, trademarks, trade names, copyrights, trade
secrets, software, technology, know-how or processes utilized by Seller or
challenging or questioning the validity or effectiveness of any license or
agreement relating thereto. To the best of Seller's knowledge, there is no valid
basis for any claim of the type specified in the immediately preceding sentence
that could in any material way relate to or interfere with the continued
enhancement and exploitation by Buyer of any of the Intangible Assets.
6.17 The use of the Intangible Assets by Seller in the
operation of the Restaurants does not infringe on the rights of, constitute
misappropriation of, or involve unfair competition with respect to, any
proprietary information or intangible property right of any third person or
entity, including without limitation any patent, trade secret, copyright,
trademark or trade name.
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6.18 Seller has not granted any third party any right to
reproduce, distribute, market or exploit any of the Intangible Assets or any
adaptations, translations, or derivative works based on the Intangible Assets or
any portion thereof.
6.19 All of the Intangible Assets were written, developed and
created solely and exclusively by employees of Seller without the assistance of
any third party, or were created by third parties who assigned ownership of
their rights to Seller in valid and enforceable agreements, which are included
in the contracts to be assigned and transferred to Buyer hereunder. Seller has
at all times used commercially reasonable efforts to protect its trade secrets
and has not disclosed or otherwise dealt with such items in such a manner as to
cause the loss of such trade secrets by release thereof into the public domain.
Seller has at all times used commercially reasonable efforts to protect the
confidentiality of all of its other confidential and proprietary information and
that of third parties which is or has been in its possession.
6.20 To Seller's knowledge, no Zoopa Employee is in violation
of any term of any employment contract, patent disclosure agreement or any other
contract or agreement relating to the relationship of any such person with
Seller or, to the best of Seller's knowledge, any other party because of the
nature of the business conducted by Seller or proposed to be conducted by
Seller.
6.21 Each Zoopa Employee that has or had access to
confidential information of Seller has executed a confidentiality and
non-disclosure agreement in the form previously provided to counsel for Buyer.
Such confidentiality and non-disclosure agreements constitute valid and binding
obligations of Seller and such person, enforceable in accordance with their
respective terms, except as enforceability may be limited by general equitable
principles, case law restricting enforcement of such covenants or the exercise
of judicial discretion in accordance with such principles. To the best of
Seller's knowledge, neither the execution or delivery of such agreements, nor
the operation of the Restaurants as employees by such persons, nor the conduct
of the operation of the Restaurants, as currently conducted, from and after the
Effective Time, will conflict with or result in a breach of the terms,
conditions or provisions of or constitute a default under any contract, covenant
or instrument under which any of such persons is obligated.
6.22 With respect solely to the Zoopa Employees:
(a) Seller is not a party to, does not participate in
and is not obligated to contribute to any "employee welfare benefit plan" as
such term is defined in Section 3(1) of ERISA. Seller is not a party to, does
not participate in and is not obligated to contribute to any employee pension
benefit plan ("Pension/Profit Sharing Plan") as such term is defined in Section
3(2) of ERISA, including any pension, profit-sharing, retirement, savings,
bonus, thrift or stock bonus plan. In addition, Seller is not a party to, does
not participate in and is not obligated to contribute to any other deferred
compensation, incentive, vacation, severance pay, group insurance, stock option
or other stock-related employee benefit, or other plan (whether or not written)
or arrangement or understanding of any kind whatsoever providing employee
benefits for any or all of the current or former Zoopa Employees.
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(b) There are no "employee pension benefit plans", as
defined in Section 3(2) of ERISA, (i) in respect of which Seller is an
"employer" or a "substantial employer", as defined in Sections 3(5) and
4001(a)(2), respectively, of ERISA, (ii) with respect to which Seller is a
"party in interest" within the meaning of Section 3(14) of ERISA, or (iii) in
respect to which Seller is assuming any liability or will be liable to make
contributions to or for the payment of benefits. Seller is not a party to, and
none of its operations is or has ever been covered by, (i) any "multi-employer
plan" as such term is defined in Section 3(37) or Section 4001(a)(3) of ERISA,
or (ii) other pension or retirement payment arrangement, whether or not written,
involving a past or unfunded future cost to Seller, whether or not such plan or
arrangement is covered by ERISA.
(c) Except as listed on Schedule 6.22(c) hereto, (i)
none of the Zoopa Employees has become eligible for a one-month sabbatical
pursuant to the sabbatical plan of Seller (the "Sabbatical Plan"), and, (ii)
under the terms of the Sabbatical Plan and under all applicable statutes and
case law, no Zoopa Employee is entitled to receive any benefits of any kind
pursuant to the Sabbatical Plan or upon its termination.
6.23 Except for the contracts listed on Schedule 6.23 hereto
(each a "Contract" and collectively the "Contracts"), Seller is not a party to
or otherwise bound by the terms of any contract, agreement or obligation
(whether written or oral) in any material way affecting the operation of the
Restaurants or the Purchased Assets. Each of the Contracts is valid, binding and
in full force and effect and enforceable by Seller in accordance with its terms,
except as enforcement may be limited by general equitable principles and the
exercise of judicial discretion in accordance with such principles. Neither
Seller nor, to the best of Seller's knowledge, any other party is in default
under any Contract, and there are no existing disputes or claims of default
relating thereto, or any facts or conditions known to Seller which, if
continued, will result in a default or claim of default thereunder, which
default could reasonably be expected to have a material adverse effect on the
operation of the Restaurants. There is no Contract which Seller can reasonably
foresee will result in any material loss upon the performance thereof by Buyer
from and after the Effective Time. To the best of Seller's knowledge, no party
to any Contract relating to the operation of the Restaurants or the Purchased
Assets intends to cancel, withdraw, modify or amend such Contract.
6.24 There are no material unresolved claims or problems
between Seller and any of the principal vendors, suppliers, distributors,
representatives or customers of the Restaurants, and none of such persons has
advised Seller of its intention to cease doing business with Seller, or with
Buyer following the Effective Time, whether as a result of the transactions
contemplated hereunder or otherwise.
6.25 Each agreement, contract or commitment for the purchase
of supplies included in the Contracts was made in the ordinary course of the
operation of the Restaurants.
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6.26 Seller is the owner of and has good and merchantable
title to all of the Purchased Assets and warrants that, except as listed on
Schedule 6.26 hereto, no such other person or entity has any right, title or
interest in these assets. Except as listed on Schedule 6.26 hereto, all
Purchased Assets are free and clear of all restrictions on transfer or
assignment and of all encumbrances of whatsoever nature including, but not
limited to, mortgages, security agreements, financing statements, pledges,
charges, tax assessments and tax liens.
6.27 Except as set forth on Schedule 6.27 hereto, Seller
warrants that it has no indebtedness of any kind or nature with respect to the
Purchased Assets, and no person has asserted a claim against Seller or any such
assets which will not be paid within ten (10) days from the Closing.
7. Representations and Warranties Of Buyer. Buyer hereby represents and
warrants to Seller, as of the date of this Agreement or, with respect to any
particular subsection of this Section 7, such other date as specified in that
subsection, as follows:
7.1 Buyer is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware. Buyer is duly
qualified or licensed to do business as a foreign corporation in each state of
the United States or other jurisdiction in which it is required to be so
qualified or licensed, except in states and other jurisdictions in which the
failure to qualify, in the aggregate, would not have a material adverse effect
on its ability to perform its obligations under this Agreement and the Ancillary
Documents.
7.2 This Agreement and all of the Ancillary Documents to which
Buyer is or will be a party have been, or upon their execution and delivery
hereunder will have been, duly and validly executed by Buyer, have been duly and
validly approved by Buyer's Board of Directors, and constitute, or will
constitute, valid and binding agreements of Buyer, enforceable against Buyer in
accordance with their respective terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally or by general equitable principles or the exercise
of judicial discretion in accordance with such principles. Buyer has all
requisite power and authority to execute and deliver this Agreement and, at the
time of the Closing, will have all requisite power and authority to carry out
the transactions contemplated by this Agreement and the Ancillary Documents. All
necessary corporate action on the part of Buyer has been taken to authorize the
execution and delivery of the Agreement and the Ancillary Documents.
7.3 The execution and delivery of this Agreement and the
Ancillary Documents by Buyer do not, and the consummation of the transactions
contemplated hereby and compliance with the provisions hereof will not, conflict
with, result in a breach of, constitute a default (with or without notice or
lapse of time, or both) under or violation of, or result in the creation of any
lien, charge or encumbrance pursuant to, (i) any provision of the Certificate of
Incorporation or Bylaws of Buyer, (ii) any judgment, order, rule, law or
regulation of any court or governmental authority, foreign or domestic, or (iii)
any provision of any agreement, instrument or understanding to which Buyer is a
party or by which Buyer or any of its properties
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or assets is bound or affected, nor will such actions give to any other person
or entity any interests or rights of any kind, including rights of termination,
acceleration or cancellation, in or with respect to any of the Purchased Assets.
No consent of any third party or any governmental authority is required to be
obtained on the part of Buyer to permit the consummation of the transactions
contemplated by this Agreement or the Ancillary Documents.
7.4 There are no claims, actions, suits, proceedings or
investigations in progress or pending before any court or governmental agency,
against or relating to Buyer, nor, to the best of Buyer's knowledge, any threat
thereof, which, if determined adversely to Buyer, would be likely to have a
material adverse effect upon Buyer's financial condition or materially impair
its ability to carry out and perform its obligations hereunder.
7.5 No representation, warranty or covenant of Buyer contained
in this Agreement or in any written statement delivered pursuant hereto or in
materials delivered to Seller in connection with the transactions contemplated
hereby contains or shall contain any untrue statement of a material fact or
omits to state material facts necessary in order to make the statements
contained therein not misleading.
8. Covenants of Seller.
8.1 Seller will promptly notify Buyer in writing of (i) any
event occurring subsequent to the date of this Agreement that would render any
representation or warranty of Seller contained in this Agreement, if made on or
as of the date of that event or the Closing Date, untrue or inaccurate in any
material respect, and (ii) any material adverse change in the financial
condition, results of operations, business or prospects of the Restaurants.
Further, Seller shall have seven (7) days from the date hereof in which to
update and supplement all Schedules hereto. Any such disclosure after the date
hereof and prior to the Closing Date shall be deemed to amend the Disclosure
Schedule. To the extent that any act or event which is the subject of such
disclosure would, but for the following sentence, constitute or result in a
breach of any representation or warranty of Seller contained in Section 6
hereof, Buyer shall have the election to proceed with the Closing, or to
terminate this Agreement. Such disclosure prior to the Closing Date shall not
constitute a breach of the representations and warranties contained in
Section 6.
8.2 During the period on and from the date of this Agreement
to the Closing, Seller will use its best efforts to maintain and preserve intact
(i) the business organization, rights and privileges pertinent to the operation
of the Restaurants, and (ii) Seller's relationships with its employees,
consultants, independent contractors, licensors, suppliers, distributors and
other customers and all others with whom it deals, all in accordance with the
ordinary and usual course of the operation of the Restaurants. During the period
on and from the date of this Agreement to the Closing, Seller will not without
the prior written consent of Buyer, which consent shall not be unreasonably
withheld:
(a) encumber or permit to be encumbered any of the
Purchased Assets;
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(b) dispose of any of the Purchased Assets, except
Inventory in the ordinary course of the operation of the Restaurants;
(c) fail to maintain its equipment and other Tangible
Assets in operating condition and good repair, ordinary wear and tear and
routine maintenance excepted.
(d) fail to pay and discharge any accounts payable
related to inventory and Tangible Assets promptly as they become due;
(e) enter into any agreement or arrangement to pay
any bonus, increased salary, or special remuneration to any Zoopa Employee
(other than amounts not in excess of normal payments made on a regular basis and
amounts paid to Zoopa Employees who, at the time of such agreement or
arrangement, are not expected to become employees of Buyer;
(f) change accounting methods;
(g) enter into, assume, become bound under or
obligated by an agreement, contract or commitment relating to the operation of
the Restaurants or enter into any extension or amendment of any contract
relating to the operation of the Restaurants which involves: (i) the payment of
greater than $5,000 per year, (ii) a contract term of more than one year or an
extension of the term of any contract for more than one year, or (iii) payment
or other obligation to any affiliate of Seller other than in the ordinary course
of business.
(h) waive or release any right or claim relating to
any Purchased Assets, except in the ordinary course of the operation of the
Restaurants; or
(i) agree to do any of the things described in the
preceding clauses of this Section 8.2.
8.3 Until the Closing, all risk of loss, damage or destruction
to the Purchased Assets shall be borne by Seller.
8.4 Until the Closing, Seller will allow Buyer and its agents
free access upon reasonable notice and during normal working hours to its files,
books, records, and offices relating to the Purchased Assets and all aspects of
the operation of the Restaurants and its financial and legal affairs. Until the
Closing, Seller shall cause its accountants to cooperate with Buyer and its
agents in making available all financial information requested with regard to
the Restaurants and the Purchased Assets, including without limitation the right
to examine all working papers pertaining to all financial statements prepared or
audited by such accountants.
8.5 Seller hereby grants Buyer the right to inspect and
approve the physical condition and use of the Restaurants, including without
limitation, the physical condition of all tenant improvements, the availability
of access, utility services, zoning, environmental risks, engineering and soil
conditions. For the purpose of Buyer's physical inspections, Seller agrees to
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provide Buyer and its authorized agents reasonable access to the Restaurants
during normal business hours during the period starting on the date of this
Agreement and ending April 10, 1997, upon at least twelve (12) hours' prior
notice to Seller, and Buyer shall use reasonable good faith efforts to avoid
disruption of the operation of the Restaurants. If the Closing does not occur
(other than as the result of a breach hereof by Seller) Buyer promptly shall
repair any damage caused to the Restaurants by reason of Buyer's entry on or
investigation of the Restaurants. Buyer shall indemnify and save Seller harmless
from all loss, cost, liability or expense whatsoever which may be incurred by
Seller due to personal injury caused to any of Buyer's employees, consultants or
other representatives during the course of the physical inspection contemplated
by this subsection, except to the extent such injury is the fault of Seller.
8.6 Prior to the Closing, Seller will execute and file, or
join in the execution and filing, of any application or other document that may
be necessary in order to obtain the authorization, approval or consent of any
governmental entity that may be reasonably required, or that Buyer may
reasonably request, in connection with the consummation of the transactions
contemplated by this Agreement. Seller will use its best efforts to obtain all
such authorizations, approvals and consents. All costs of such applications or
other documents will be borne by Buyer.
8.7 Seller will utilize best efforts to coordinate all aspects
of the transition of Buyer's ownership and management of the Restaurants to
ensure a smooth transition in management and control of these Restaurants. Such
efforts on the part of Seller shall include but not be limited to the
announcement of the transaction to the Zoopa Employees and Seller's best efforts
to retain all such employees and transfer such employees' employment contracts
or other arrangements to Buyer. Seller makes no assurance regarding the
acceptance of employment offered by Buyer to any of the Zoopa Employees.
8.8 Seller will use its best efforts to satisfy or cause to be
satisfied all the conditions precedent to the Closing hereunder, and to cause
the transactions contemplated hereby to be consummated, and, without limiting
the generality of the foregoing, to obtain all consents and authorizations of
third parties and to make all filings with, and give all notices to, third
parties which may be necessary or reasonably required on its part in order to
effect the transactions contemplated hereby on or before April 15, 1997.
8.9 Between the date hereof and the Effective Time (or the
earlier termination of this Agreement pursuant to Section 12 hereof), Seller
will not, directly or indirectly, through any officer, director, employee, agent
or otherwise, take any action to solicit, initiate, seek, encourage or support
any inquiry, proposal or offer from, furnish any information to, or participate
in any negotiations with, any corporation, partnership, person or other entity
or group (other than Buyer) regarding any acquisition of the Restaurants and the
Purchased Assets (any such transaction being referred to herein as an
"Acquisition Proposal"). If an Acquisition Proposal is received by, or such
information is requested from Seller, Seller shall promptly notify Buyer of such
fact and specify the information requested and the name of the person making
such proposal and/or requesting such information.
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8.10 Seller will deliver to Buyer an unaudited statement of
income for the Restaurants for the month ended March 31, 1997 on or before the
Closing Date.
8.11 Any Seller Employee who, as of the Closing Date, has
become eligible for a one-month sabbatical pursuant to the Sabbatical Plan
shall, by the date of Closing, be paid one month's salary by Seller in full
satisfaction of all obligations of Seller under the Sabbatical Plan.
8.12 Seller will maintain medical and dental insurance
coverage for all of the Zoopa Employees currently covered up to and including
April 30, 1997.
9. Covenants of Buyer.
9.1 Buyer will promptly notify Seller in writing of any event
occurring subsequent to the date of this Agreement that would render any
representation or warranty of Buyer contained in this Agreement, if made on or
as of the date of that event or the Closing Date, untrue or inaccurate in any
material respect. To the extent that any act or event which is the subject of
such disclosure constitutes or results in a breach of any representation or
warranty of Buyer contained in Section 7 hereof, Seller's election to proceed
with the Closing, following receipt of such disclosure, shall constitute a
waiver of such breach.
9.2 Prior to the Closing, Buyer will execute and file, or join
in the execution and filing, of any application or other document that may be
necessary in order to obtain the authorization, approval or consent of any
governmental entity that may be reasonably required in connection with the
consummation of the transactions contemplated by this Agreement. Buyer will use
its best efforts to obtain all such authorizations, approvals and consents.
9.3 Buyer will use its best efforts to satisfy or cause to be
satisfied all the conditions precedent to the Closing hereunder, and to cause
the transactions contemplated hereby to be consummated, and, without limiting
the generality of the foregoing, to obtain all consents and authorizations of
third parties and to make all filings with, and give all notices to, third
parties which may be necessary or reasonably required on its part in order to
effect the transaction contemplated hereby on or before April 15, 1997, and to
complete its review of the financial and legal affairs of the Restaurants and
the Purchased Assets on or before April 13, 1997.
9.4 Subject to and upon the terms and conditions of this
Agreement, Buyer shall pay, perform and discharge the Liabilities, according to
their terms.
9.5 Buyer shall, on or before Closing, reimburse Seller for
the security deposits and prepaid rent under the Leases (as defined in Section
14), in the amounts set forth on Schedule 14.5(c).
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10. Mutual Covenants.
10.1 Each party acknowledges that in the course of the
performance of this Agreement, it may obtain the confidential information of the
other party including, but not limited to, trade secrets, know-how, inventions,
techniques, processes, schematics, designs, recipes, theories of operation,
contracts, customer lists, financial information, sales and marketing plans and
business information ("Confidential Information"). The party receiving such
Confidential Information (the "Receiving Party") from the party disclosing such
Confidential Information (the "Disclosing Party") shall, at all times, both
during the term of this Agreement and thereafter, keep in confidence and trust
all of the Disclosing Party's Confidential Information received by it. The
Receiving Party shall not use the Confidential Information of the Disclosing
Party other than as expressly permitted under the terms of this Agreement or by
a separate written agreement. The Receiving Party shall take all reasonable
steps to prevent unauthorized disclosure or use of the Disclosing Party's
Confidential Information and to prevent it from falling into the public domain
or into the possession of unauthorized persons. The Receiving Party shall not
disclose Confidential Information of the Disclosing Party to any person or
entity other than its officers or employees (or outside legal, financial or
accounting advisors) who need access to such Confidential Information in order
to effect the intent of this Agreement and who have entered into confidentiality
agreements with such person's employer or who are subject to ethical
restrictions on disclosure which protects the Confidential Information of the
Disclosing Party. The Receiving Party shall immediately give notice to the
Disclosing Party of any unauthorized use or disclosure of Disclosing Party's
Confidential Information. The Receiving Party agrees to assist the Disclosing
Party to remedy such unauthorized use or disclosure of its Confidential
Information. These obligations shall not apply to the extent that Confidential
Information includes information which:
(a) is already known to the Receiving Party at the
time of disclosure, which knowledge the Receiving Party shall have the burden of
proving by reference to written or electronic records in existence at the time
of disclosure;
(b) is, or through no act or failure to act of the
Receiving Party becomes, publicly known;
(c) is received by the Receiving Party from a third
party without restriction on disclosure (although this exception shall not apply
if such third party is itself violating a confidentiality obligation by making
such disclosure);
(d) is independently developed by the Receiving Party
without reference to the Confidential Information of the Disclosing Party, which
independent development the Receiving Party will have the burden of proving;
(e) is approved for release by written authorization
of the Disclosing Party; or
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(f) is required to be disclosed to a governmental
entity to further the objectives of this Agreement or by a proper order of a
court of competent jurisdiction; provided however, that the Receiving Party will
use its best efforts to minimize such disclosure and will consult with and
assist the Disclosing Party in obtaining a protective order prior to such
disclosure.
10.2 Neither Buyer nor Seller shall issue any press release or
other public announcement or communication regarding the transactions
contemplated by this Agreement without the prior written approval of the other
as to the content thereof, which approval shall not be unreasonably withheld or
delayed; provided however, that the foregoing shall not be deemed to prohibit
any disclosure which, in the opinion of counsel to the disclosing party, is
required by any applicable law or by any governmental entity and the disclosing
party advises the other party of such disclosure, and furnishes copies of any
such disclosure that is in written form to the other party prior to or
concurrently with its delivery pursuant to such law or to such governmental
entity.
11. Conditions Precedent to Buyer's Obligations. All obligations of
Buyer hereunder are subject to the fulfillment of each of the following
conditions on or before the Closing Date and Seller and Buyer shall exert their
best efforts to insure that each such condition is fulfilled.
11.1 All representations and warranties of Seller contained
herein and in any document delivered pursuant hereto shall be true and correct
in all material respects when made and as of the Closing Date.
11.2 Seller shall have performed and complied with all
covenants, agreements, obligations and conditions required by this Agreement to
be performed or complied with by Seller on or before the Closing Date.
11.3 During the period from the date of the execution of this
Agreement through the Closing Date, there shall not have occurred any material
adverse change in the operation of the Restaurants or the Purchased Assets.
11.4 Seller shall have good and marketable title to all of the
Purchased Assets and the Purchased Assets shall be subject to no mortgage,
pledge, lien, encumbrance, restriction, security interest, claim or charge. Upon
Buyer's reasonable request, Seller shall deliver to Buyer at Closing evidence
satisfactory to Buyer of Seller's ownership of the Purchased Assets free and
clear of any security interest, lien, claim, restriction, encumbrance,
assessment, tax or other imposition, other than the lien of taxes not yet due
and payable.
11.5 There shall not have come to Buyer's attention as a
result of the completion of its review of the Purchased Assets and the financial
and legal affairs thereof, any material adverse information not disclosed herein
or in the Schedules hereto as of the date of this Agreement.
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11.6 Buyer shall have reviewed and approved of the matters
shown on the Title Report (as defined in Section 14 below), and the Title
Company (as defined in Section 14 below) shall issue to Buyer, at Buyer's
expense, a policy of title insurance insuring Buyer's leasehold interest in each
of the Leased Premises (as defined in Section 14 below) subject only to
Permitted Exceptions (as defined in Section 14 below).
11.7 Seller shall provide to Buyer resolutions of Seller's
Board of Directors authorizing the transactions contemplated by this Agreement,
duly certified by Seller's secretary as true, complete and in effect as of the
day of Closing.
11.8 All approvals of Seller's shareholders necessary for
performance of the transactions contemplated hereby shall have been obtained.
11.9 The Lease Assignments applicable to each Lease shall have
been executed by Seller, Buyer and the respective lessors of the Leases for
Tukwila, Bellevue and Tacoma.
11.10 The Estoppel Certificates (as defined in Section 14
below) shall have been executed by the respective lessors of Tukwila, Bellevue
and Tacoma.
11.11 Delivery or transfer by Seller of the consents to the
assignment listed on the schedule attached hereto as Schedule 11.11.
11.12 Seller shall deliver to Buyer a certificate dated the
Closing Date and signed by the President and Chief Financial Officer of Seller
certifying that the conditions set forth in Sections 11.1, 11.2, 11.3, 11.7 and
11.8 have been satisfied.
11.13 Seller shall execute and deliver to Buyer a
Non-Solicitation and Non-Competition Agreement in the form attached hereto as
Exhibit C.
11.14 Buyer shall have received from Ogden Murphy Wallace,
P.L.L.C., counsel to Seller, an opinion addressed to Buyer substantially in the
form attached hereto as Exhibit D.
11.15 Buyer shall have received from Seller an unaudited
statement of income for the Restaurants for the month ended March 31, 1997.
11.16 Seller shall deliver to Buyer written documentation
showing that it has fulfilled its obligations under Section 8.11 hereof.
11.17 Buyer and Seller shall have prepared Schedule 2 setting
forth a mutually agreed allocation of the Purchase Price.
12. Conditions Precedent to Seller's Obligations. All obligations of
Seller hereunder are subject to the fulfillment of each of the following
conditions on or before the Closing Date and Seller and Buyer shall exert their
best efforts to insure that each such condition is fulfilled:
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12.1 All representations and warranties of Buyer contained
herein and in any document delivered pursuant hereto shall be true and correct
when made and as of the Closing Date.
12.2 The Lease Assignments shall have been executed by Buyer,
and the respective lessors under the Leases shall have consented in writing
thereto.
12.3 Buyer shall execute and deliver all documents necessary
for it to assume the Liabilities.
12.4 Buyer shall provide to Seller resolutions of Buyer's
Board of Directors authorizing the transactions contemplated by this Agreement,
duly certified by Buyer's Secretary as true, complete and in effect as of the
day of Closing.
12.5 Buyer shall deliver to Seller a certificate dated the
Closing Date and signed by the President and Chief Financial Officer of Buyer
certifying that the conditions set forth in Sections 12.1, 12.2 and 12.5 have
been satisfied.
12.6 Seller shall have received from Gray Cary Ware &
Freidenrich, A Professional Corporation, counsel to Buyer, an opinion addressed
to Buyer substantially in the form attached hereto as Exhibit F.
12.7 Buyer and Seller shall have prepared Schedule 2 setting
forth a mutually agreed allocation of the Purchase Price.
13. Termination. This Agreement may be terminated at any time prior to
the Closing Date by written notice by the terminating party to the other party:
13.1 by mutual written consent of Seller and Buyer;
13.2 by either Seller or Buyer if the Closing shall not have
occurred by April 30, 1997;
13.3 by Seller if any of the conditions to Seller's
obligations to effect the Closing which are specified in Section 12 have not
been met or waived by Seller at such time as such condition is no longer
reasonably capable of satisfaction (provided the failure of such condition is
not the result of Seller's material breach of any representation, warranty,
covenant or agreement under this Agreement); or
13.4 by Buyer if any of the conditions to Buyer's obligations
to effect the Closing which are specified in Section 11 have not been met or
waived by Buyer at such time as such condition is no longer reasonably capable
of satisfaction (provided the failure of such condition is not the result of
Buyer's material breach of any representation, warranty, covenant or agreement
under this Agreement).
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14. Leases.
14.1 Seller shall prepare and deliver to the lessor (and any
sublessor if the Seller's interest under any Lease is a sublease interest) of
each Lease, and it shall be a condition precedent of Buyer's obligation to
close, that each Lessor execute and deliver to Buyer prior to the Closing a
Landlord's Estoppel Certificate (each an "Estoppel Certificate" and collectively
the "Estoppel Certificates") in substantially the form of Exhibit E attached
hereto., as modified for each Lease to the reasonable mutual satisfaction of the
parties.
14.2 On the Closing Date, Seller and Buyer shall execute and
deliver the Lease Assignments pursuant to which Seller shall assign and Buyer
shall assume Seller's entire right and interest in the Leases currently in
effect for Tukwila, Bellevue and Tacoma (the "Leases"), together with all
applicable tenant and/or leasehold improvements and fixtures. Under each
Assignment (and subject to obtaining the respective landlord's consent thereto),
Buyer shall be entitled to occupy the respective premises throughout the
respective terms of the Leases, together with any renewals or extensions thereof
subject to rents, covenants and conditions contained therein.
14.3 From and after the Closing, Buyer shall assume
responsibility for the performance of all of the obligations and conditions on
the part of the tenant to be performed under the Leases for periods from and
after the Closing (the "Buyer's Assumed Lease Obligations"). Buyer shall at all
times thereafter indemnify, defend (with counsel reasonably satisfactory to
Seller) and hold the Seller harmless from any and all claims, demands, suits,
liabilities, damages, expenses, actions or judgments, whether asserted by the
landlords or by any other party, governmental authority or administrative
agency, arising out of Buyer's performance of the Buyer's Assumed Lease
Obligations.
14.4 Seller hereby warrants and represents, that the terms and
provisions of the Leases on the part of the tenant to be performed prior to the
Effective Time have been fulfilled in all respects, that all rentals and other
monetary and non-monetary obligations are current, and that there are no pending
claims or demands being asserted by the landlords or by any other party,
governmental authority, or agency, by reason of the occupancy by Seller of the
premises covered by the Leases. Further, Seller agrees to continue to perform
all of its obligations as tenant under each Lease until the Effective Time.
Seller hereby agrees to and shall at all times hereafter indemnify and hold the
Buyer harmless from and against any and all claims, demands, actions, or
judgments, at law or in equity, whether asserted by landlord or by any other
party, governmental authority, or administrative agency, occurring prior to the
Effective Time in connection with Seller's breach of any obligations or
performance, warranties and/or representations set forth herein and any breach
or default in the performance of the obligations on the part of tenant to be
performed under the Leases, other than the Buyer's Assumed Lease Obligations.
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<PAGE> 23
14.5 Seller hereby represents and warrants to Buyer, as of the
date of this Agreement, as follows:
(a) Seller has delivered to Buyer true and complete
copies of the Leases, including all amendments, modifications and supplements
thereto. Except for the Leases, there are no agreements, written or oral,
affecting or relating to Seller's lease of the premises of the Restaurants.
(b) All base rent and additional rent, including
prepaid rent and security deposits, under the Leases have been paid current
through April 30, 1997, and all percentage rent (if applicable) under the Leases
have been paid current through February 23, 1997.
(c) The amount of security deposit(s) and prepaid
rent for each of the Leases is as specified in Schedule 14.5(c) hereto.
(d) Seller took possession of each Restaurant as of
the date specified in Schedule 14.5(d) hereto.
(e) All work to be performed by the lessor or Seller,
as the tenant, under the Leases has been completed.
(f) The Leases (i) are in full force and effect; (ii)
free from default and from any event that with the passage of time, the giving
of notice, or both, otherwise would constitute a default or breach thereunder;
(iii) Seller has no claims against the lessors or offsets or defenses against
rent; (iv) the lessors of the Leases are in full compliance with their
obligations under the Leases and there exists no dispute with the lessors
relative to the Leases; and (v) there exists no dispute between Seller and any
other tenant or merchants' association of the center or project in which the
Leased Premises are located relating to any Lease.
(g) Seller has received no notice from the lessors of
the Leases of any prior sale, transfer, assignment, hypothecation or pledge of
the Leases or the rents payable thereunder, except as otherwise specified in
Schedule 14.5(g).
(h) Seller has full possession of the Leased
Premises, has not assigned the Leases or sublet any part of the Leased Premises,
and does not hold the Leased Premises under an assignment or sublease, except as
set forth in Schedule 1.3.
(i) To the best of Seller's knowledge, the Leased
Premises (including the roof and roof membrane, exterior and structural walls,
foundations, and other load-bearing components of the Leased Premises) are in
good condition and repair. To the best of Seller's knowledge, all elevators,
heating, ventilation and air conditioning systems ("HVAC"), plumbing,
electrical, wiring, life safety, and other equipment, appurtenances, systems and
improvements are in good condition and repair and fully operational and
functional. To the best of Seller's knowledge, all parking areas and other paved
surfaces appurtenant to the Leased Premises are
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<PAGE> 24
water-tight and in good condition and repair. To the best of Seller's knowledge,
the improvements for the Leased Premises have been constructed in accordance
with the plans and specifications prepared therefor. To the best of Seller's
knowledge, all water, sewer, gas, electricity, telephone and drainage
facilities, and all other utilities required by law and by the normal operation
of the Leased Premises, are fully installed, function properly and are adequate
to service the Leased Premises as they currently are being used. To the best of
Seller's knowledge, the Leased Premises comply with all applicable laws, codes
and regulations applicable to the construction, use and occupancy of the Leased
Premises. To the best of Seller's knowledge, Seller has all zoning, use permits
and other permits and approvals required for the conduct of the Business from
the Leased Premises.
14.6 Within seven (7) days of the date of this
Agreement Seller shall cause a nationally recognized title insurance company
(the "Title Company") to prepare and deliver to Buyer a preliminary title report
(the "Title Report") with respect to the Leased Premises (with copies of all
instruments listed as exceptions to title). Buyer shall have a period of five
(5) days from receipt of the Title Report within which to examine the Title
Report. If Buyer objects to any matters disclosed in the Title Report, Buyer
shall, within said period, notify Seller in writing, specifying the
objectionable matters. Seller may elect to cure any such matters at or prior to
the Closing provided that within three (3) days after receiving Buyer's notice,
Seller shall notify Buyer in writing whether Seller intends to effectuate such
cure at or prior to the Closing. All items shown on the Title Report or any
survey obtained by Buyer, other than those to which Buyer has timely objected in
writing and which Seller has agreed in writing to cure, shall be deemed to be
"Permitted Exceptions" unless Buyer elects to terminate this Agreement.
14.7 Seller is the payee on that Promissory Note
dated October 23, 1995 and executed by Tacoma Place, Inc., the landlord for the
Tacoma Restaurant (the "Tacoma Note"). The Tacoma Note calls for satisfaction of
payment obligation by the offset of Minimum Rent (as defined in the Lease)
otherwise payable under the Lease for the Tacoma Restaurant. The right to offset
rent will continue until December 11, 1998, at which time the outstanding
balance on the Tacoma Note shall become due and payable in full. As an
administrative accommodation to Seller, for so long as Buyer shall be entitled
to offset Minimum Rent under the Tacoma Restaurant Lease and further subject to
the conditions specified below, Buyer agrees that it shall remit to Seller the
amounts that Seller is entitled to offset from Minimum Rent payable to the
lessor of the Tacoma Restaurant as monthly installments under the Tacoma Note,
provided Buyer, Seller, and the lessor of the Tacoma Restaurant shall have
entered into a written agreement satisfactory to Buyer (the "Offset Agreement")
pursuant to which the following shall be agreed: (i) Buyer shall be entitled to
deduct from the monthly Minimum Rent payable under the Tacoma Restaurant lease
an amount equal to the payments for which Seller is entitled to an offset under
the terms of the Tacoma Note (the "Offset Amount"), (ii) the Offset Amount shall
be a fixed sum and, if such amount varies from month to month, such amount shall
be set forth in a schedule attached to such agreement; (iii) the Offset
Agreement shall provide that if Buyer has received written notice of any claim
or dispute between Seller and the lessor, Buyer shall continue to make monthly
payments of the Offset Amount as set forth in the Offset Agreement, and Seller
and the landlord shall indemnify Buyer for all actions taken in accordance with
the Offset Agreement; and (iv) Seller and the lessor shall indemnify, defend,
hold harmless and
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<PAGE> 25
protect Buyer from any losses, costs, expenses (including attorneys' fees),
liabilities, claims, disputes, and demands relating to the Tacoma Note, the
Offset Amount and the Offset Agreement.
15. Indemnification.
15.1 Seller shall defend, indemnify and hold harmless Buyer
from and against any damages, liabilities, losses and expenses (including, but
not limited to, interest penalties and reasonable attorney's fees) of any kind
or nature whatsoever which may be sustained or suffered by Buyer as a result of
(i) within six months of the Closing Date, any misrepresentation by Seller or
breach of any warranty by Seller in this Agreement or in any ancillary document
which is not cured within thirty (30) days after written notice thereof from
Buyer (ii) any breach or default in performance by Seller of any covenant to be
performed by Seller hereunder which is not cured within thirty (30) days after
written notice thereof by Buyer (except that, with the exception of the
covenants of Seller under Section 1.4 hereof, Seller's liability under this
Section 15.1(ii) is limited to the time period within six months of the Closing
Date) (iii) the ownership or operation of the Restaurants prior to the Effective
Time; or (iv) any liability pertaining to the Purchased Assets not assumed by
Buyer.
15.2 Buyer shall defend, indemnify and hold harmless Seller
from and against any damages, liabilities, losses and expenses (including, but
not limited to, interest penalties and reasonable attorney's fees) of any kind
or nature whatsoever which may be sustained or suffered by Seller as a result of
(i) within six months of the Closing Date, any misrepresentation by Buyer or
breach of any warranty by Buyer in this Agreement (except the warranties made in
Sections 7.2 and 7.3 hereof) or in any ancillary document which is not cured
within thirty (30) days after written notice thereof from Seller; (ii) within
fifteen months of Closing Date, any breach by Buyer of the warranties made in
Sections 7.2 or 7.3 hereof; (iii) any breach or default in performance by Buyer
of any covenant to be performed by Buyer hereunder which is not cured within
thirty (30) days after written notice thereof from Seller; (iv) the ownership or
operation of the Restaurants and the Business after the Effective Time; or (v)
the Liabilities.
15.3 Upon the assertion by any third party of any claim
against an indemnitee that may give rise to the liability of Buyer or Seller
under this Section 15 herein, the indemnitee shall promptly notify Seller in the
first instance or Buyer in the second instance of the existence of such claim
and the basis upon which indemnity is claimed and shall give the indemnitor
reasonable opportunity to defend and/or settle such claim at his own expense and
with counsel of his own selection (with such counsel to be reasonably
satisfactory to the indemnified party); provided that the indemnitee shall at
all times have the right to participate fully in such defense at his own
expense. If a claim is being asserted by Buyer under Sections 15.1(i) or
15.1(ii) hereof,
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<PAGE> 26
or by Seller under Section 15.2(i) hereof, such notice must be delivered within
30 days of the end of six months from the Closing Date. If a claim is being
asserted by Seller under Section 15.2(ii) hereof, such notice must be delivered
within 30 days of the end of fifteen months from the Closing Date. If the
indemnitor shall within ten (10) days after such notice fail to defend, the
indemnitee shall have the right but not the obligation to undertake the defense,
compromise or settlement of such claim on behalf of, for the account of and at
the risk of the indemnitor. The indemnitee shall make available all information
and reasonable assistance as may be reasonably requested by the indemnitor.
15.4 Seller shall not be required to make any indemnification
payment pursuant to this Section 15 until such time as the total amount of
damages that have been suffered or incurred by Buyer, or to which Buyer has
otherwise become subject, exceed $2,500 on any individual claim, or exceed, in
the aggregate for all claims, $25,000, and then only to the extent the damages
exceed such amount.
16. Risk of Loss. Seller assumes all risk of destruction, loss or
damage to the Purchased Assets due to fire or other casualty up to Closing. In
the event any material loss, damage or destruction occurs more than one week
prior to Closing or in the event that the Restaurants, or any of them, is closed
or interrupted by reason of any event not in the ordinary course of business for
a period of more than one (1) week, Buyer shall have the right to terminate this
Agreement upon written notice to Seller and upon such determination, there shall
be no further liability on the part of Seller or Buyer hereunder and any amounts
paid by Buyer in accordance with the provisions of this contract shall be
promptly returned to Buyer. Buyer shall also have the right to require Seller
to, at Buyer's option, either (i) restore the Purchased Assets and the premises
at Seller's expense and postpone the Closing Date until such repair and
restoration are completed (ii) assign Seller's insurance proceeds from the
damage to the Purchased Assets to Buyer. Such right must be exercised by Buyer
by the earlier of (i) April 15, 1997 and (ii) ten (10) days after such material
loss, damage or destruction of a Location. Upon the Closing of the transactions
contemplated hereunder, Buyer shall no longer have the remedies provided for
under this Section 16, except that, if it provides Seller notice of its intent
to do so prior to Closing, it may require Seller to assign Seller's insurance
proceeds from the damage to the Purchased Assets to Buyer.
17. Arbitration. Any disputes between Buyer and Seller with respect to
this Agreement shall be settled by binding, final arbitration in accordance with
the commercial arbitration rules of the American Arbitration Association then in
effect (the "AAA Rules"). Any arbitration proceeding instituted by Buyer shall
be conducted in Seattle, Washington, and any arbitration proceeding instituted
by Seller shall be conducted in Santa Clara County, California. However, in all
events, the following arbitration provisions shall govern over any conflicting
rules which may now or hereafter be contained in the AAA Rules. Any judgment
upon the award rendered by the arbitrator may be entered in any court having
jurisdiction over the subject matter thereof. The arbitrator shall have the
authority to grant any equitable and legal remedies that would be available.
26
<PAGE> 27
(a) Any such arbitration shall be conducted before a
single arbitrator who shall be compensated for his or her services at a rate to
be determined by the parties or by the American Arbitration Association, but
based upon reasonable hourly or daily consulting rates for the arbitrator in the
event the parties are not able to agree upon his or her rate of compensation.
(b) The AAA Rules for the selection of the arbitrator
shall be followed.
(c) Buyer and Seller shall each advance fifty percent
(50%) of the initial compensation to be paid to the arbitrator in any such
arbitration and fifty percent (50%) of the costs of transcripts and other normal
and regular expenses of the arbitration proceedings; provided, however, that the
arbitrator shall have the discretion to grant to the prevailing party in any
arbitration an award of attorneys' fees and costs, and all costs of arbitration.
(d) The parties shall be entitled to conduct
discovery proceedings in accordance with the provisions of the Federal Rules of
Civil Procedure, subject to any limitation imposed by the arbitrator.
(e) For any claim submitted to arbitration, the
burden of proof shall be as it would be if the claim were litigated in a
judicial proceedings.
(f) Upon the conclusion of any arbitration proceeding
hereunder, the arbitrator shall render findings of fact and conclusions of law
and a written opinion setting forth the basis and reasons for any decision
reached by him or her and shall deliver such documents to each party to this
Agreement along with a signed copy of the award.
(g) The arbitrator chosen in accordance with these
provisions shall not have the power to alter, amend or otherwise affect the
terms of these arbitration provisions or the provisions of this Agreement.
(h) The parties acknowledge that, except as
specifically provided in this Agreement, no other action need be taken by either
party before proceeding directly in accordance with the provisions of this
Section.
(i) The arbitration provisions set forth in this
Section 17 are intended by the parties to be exclusive for all purposes and
applicable to each and every controversy, dispute and/or claim in any manner
arising out of or relating to this Agreement, the meaning, application and/or
interpretation of this Agreement, any breach hereof and/or any voluntary or
involuntary termination of this Agreement with or without cause, including,
without limitation, any such controversy, dispute and/or claim which, if pursued
through any state or federal court or administrative agency, would arise at law,
in equity and/or pursuant to statutory, regulatory and/or common law rules,
regardless of whether any such dispute, controversy and/or claim would arise in
and/or from contract, tort or any other legal and/or equitable theory or basis.
27
<PAGE> 28
Notwithstanding the foregoing, the parties shall at all times have and retain
the full, complete and unrestricted right to seek injunctive relief for any
breach or threatened breach of any term, provision or covenant of the
Non-Solicitation and Non-Competition Agreement (except as may be otherwise set
forth therein) or of Section 10 of this Agreement. The prevailing party in any
action instituted pursuant to this Section 17, or in any appeal from any
arbitration conducted pursuant to this Section 17, shall be entitled to recover
from the other party its reasonable attorneys' fees and other expenses incurred
in such litigation.
18. Attorney's Fees, Costs and Taxes.
18.1 Each party shall pay its own legal, accounting fees and
other out-of-pocket expenses incurred incident to the negotiation, preparation
and carrying out of this Agreement, and the transactions contemplated herein,
whether or not such transactions are consummated.
18.2 Buyer shall not be responsible for any cost that may be
incurred by Seller pertaining to the leases and/or any other agreements
currently in effect at the Restaurants, including, but not limited to, any
assignment, transfer and/or sublease fees, that may be assessed Seller under the
terms of Seller's leases with its landlords or any other agreements with any
third parties.
18.3 The parties hereto agree that the costs of any sales,
excise or use taxes incurred in connection with this transaction shall be borne
equally by Buyer and Seller; provided that Seller's liability under this Section
18.3 shall be limited to $35,000; any additional amounts shall be borne solely
by Buyer.
18.4 Attorneys' Fees. Should suit or arbitration be brought to
enforce or interpret any part of this Agreement, the prevailing party shall be
entitled to recover, as an element of the costs of suit or arbitration and not
as damages, reasonable attorneys' fees to be fixed by the court (including
without limitation, costs, expenses and fees on any appeal). The prevailing
party shall be the party entitled to recover its costs of suit or arbitration,
regardless of whether such suit or arbitration proceeds to final judgment. A
party not entitled to recover its costs shall not be entitled to recover
attorneys' fees. No sum for attorneys' fees shall be counted in calculating the
amount of judgment for purposes of determining if a party is entitled to recover
costs or attorneys' fees.
18.5 Seller will pay all federal, state and local taxes
incurred through the Effective Time in its operations of the Restaurants
existing as of the Effective Time.
19. Knowledge. As used in this agreement, the term "knowledge" as
applied to Seller, shall mean the actual knowledge of Seller's directors,
officers holding offices named in Seller's Bylaws, and of the managers and
assistant managers employed at the Restaurants.
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20. Survival. The covenants and agreements made in Sections 1.4, 2, 4,
5, 9.4, 10, 14, 15, and 17-30 hereof shall survive the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby, and
remain in full force and effect thereafter.
21. Notices. Notice shall be deemed to have been duly given upon actual
receipt or refusal of delivery. Any notice or other communication pursuant to
this Agreement shall be in writing and shall be delivered personally, by United
States certified mail, return receipt requested, postage prepaid or by overnight
carrier to the following addresses:
If to Buyer:
Fresh Choice, Inc.
2901 Tasman Drive, Suite 109
Santa Clara, California 95054-1169
Attention: Everett F. Jefferson, President and Chief
Executive Officer
with a copy to:
Gray Cary Ware & Freidenrich
400 Hamilton Avenue
Palo Alto, California 94301-1825
Attention: Eric J. Lapp, Esq.
If to Buyer:
RUI One Corp.
1818 N. Northlake Way
Seattle, WA 98103
Attention: James M. Welch
with a copy to:
Ogden, Murphy & Wallace
2100 Westlake Circle Tower
1601 Fifth Avenue
Seattle, WA 98101
Attention: David Ellenhorn, Esq.
or such address as each party may specify in writing to the other.
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<PAGE> 30
22. Further Assistance. The parties, for themselves and their
respective personal representatives, successors and assigns, do mutually agree
to join in and execute any instruments and to do any other act or thing that may
be necessary or proper to carry into effect any part of this Agreement.
23. Binding Effect. This Agreement shall be binding on and shall inure
to the benefit of the parties, their personal representatives, successors and
assigns.
24. Waiver. The waiver by any party of a breach of any provisions of
this Agreement or by any other party shall not operate or construe to be a
waiver of any subsequent breach by the breaching party.
25. Entire Agreement. This Agreement, its exhibits and other documents
incorporation by reference herein, contain the entire agreement of the parties.
It may not be changed orally, but only by an agreement in writing signed by the
party against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
26. Modification. This Agreement can be modified and amended at any
time upon the mutual written consent of both parties.
27. Perfection of Title. Upon request by Buyer, Seller shall perform
all acts and execute and deliver all documents which may be necessary or
desirable in the reasonable opinion of counsel for Buyer to perfect or record
the title of Buyer or any successor thereof to any of the Purchased Assets or to
aid the prosecution, defense or other litigation of any rights arising
therefrom, all without further consideration but at the expense of Buyer unless
arising out of the default of Seller or otherwise provided for herein.
28. Enumeration and Headings. The enumeration and headings of the
sections of this Agreement are merely for convenience of reference and do not
constitute representations or warranties, do not impose any obligations
whatsoever, and have no substantive significance.
29. Gender. Whenever in this Agreement any party is referred to in any
one gender, such reference shall as appropriate be construed to refer to any
other gender.
30. Governing Law. This Agreement shall be governed, interpreted and
construed in accordance with the laws of the state of Washington.
31. Counterparts. This Agreement may be executed in counterparts, all
of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals the
day and year first above written.
FRESH CHOICE, INC.
/s/ David E. Pertl
---------------------------------------
By: David E. Pertl, Vice-President and
Chief Financial Officer
RUI ONE CORP.
/s/ James M. Welch
---------------------------------------
By: James M. Welch,
Executive Vice President
31
<PAGE> 32
LIST OF EXHIBITS
EXHIBIT A Form of Assignment & Assumption
Agreement
EXHIBIT B Form of License Agreement
EXHIBIT C Form of Non-Solicitation &
Non-Competition Agreement
EXHIBIT D Form of Ogden, Murphy & Wallace,
Legal Opinion
EXHIBIT E Form of Estoppel Certificate
EXHIBIT F Form of Gray, Cary, Ware &
Freidenrich, Opinion
The Company will furnish supplementally a copy of any above omitted exhibit to
the Commission upon request.
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LIST OF SCHEDULES
Schedule 1.1 Excluded Assets
Schedule 1.3 Leases
Schedule 1.4 Assumed Liabilities
Schedule 2 Purchase Price Allocation
Schedule 6 Disclosure Schedules
Schedule 11.11 Third-Party Consents
Schedule 14.5(c) Security Deposits
Schedule 14.5(d) Date of Possession of Restaurants
Schedule 14.5(g) Lessor Notices
The Company will furnish supplementally a copy of any above omitted schedule to
the Commission upon request.
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<PAGE> 1
Exhibit 10.32
AMENDMENT
TO
LOAN AND SECURITY AGREEMENT
This Amendment to Loan and Security Agreement is entered into as of
the ninth (9th) day of July, 1997, by and between SILICON VALLEY BANK
("Bank") and FRESH CHOICE, INC. ("Borrower").
RECITALS
Borrower and Bank are parties to that certain Loan and Security
Agreement dated as of December 20, 1995, as amended (the "Agreement"). The
parties desire to amend the Agreement in accordance with the terms of this
Amendment.
NOW, THEREFORE, the parties agree as follows:
The following definitions under Section 1.1 are amended to read
as follows:
"Committed Line" means Five Million Dollars ($5,000,000),
provided the Committed Line shall be Three Million Five Hundred Thousand
Dollars ($3,500,000) until Bank records deeds of trust acceptable to Bank on
certain real property in Texas, receives title insurance on such deeds of
trust in a form and amount acceptable to Bank, reviews and approves an
appraisal on each such property evidencing an aggregate value of at least
$3,000,000, and reviews satisfactory environmental reports on each such
property.
"Debt Service Coverage" means, as measured as of the last day of
Borrower's 1997 fiscal year, as determined in accordance with GAAP, (a) the
EBITDA for the 1997 fiscal year divided by (b) the sum of (i) interest
expense for the 1997 fiscal year plus (ii) the current portion of all term
debt for the twelve (12) month period following the end of 1997 fiscal year,
plus (iii) projected interest and principal payments for the twelve (12)
month period following the end of the 1997 fiscal year on the amount of the
Term Loan elected by Borrower pursuant to Section 2.1.2. "Debt Service
Coverage" means, as measured as of the last day of each fiscal quarter,
commencing with the first fiscal quarter of 1998, as determined in accordance
with GAAP, (a) the EBITDA for the previous four (4) fiscal quarters of
Borrower, divided by (b) the current portion of all term debt for the twelve
(12) month period following the end of such fiscal quarter, plus interest
expense for such fiscal quarter, annualized, plus projected interest and
principal payments for the twelve (12) month period following the end of the
such fiscal year on the amount of the Term Loan elected by Borrower pursuant
to Section 2.1.2.
"Maturity Date" means May 27, 1998, provided any portion of the
Revolving Facility that is termed out pursuant to Section 2.1.2 shall be due
in accordance with that Section.
2. The first paragraph of Section 2.1 is amended to read as follows,
and the first two paragraphs 2.1.1 are deleted:
2.1 Revolving Advances. Subject to and upon the terms and
conditions of this Agreement, Bank agrees to make Advances to Borrower in an
aggregate amount not to exceed the Committed Line or the Borrowing Base. For
purposes of this Agreement, "Borrowing Base" shall mean an amount equal to
three (3.0) times Borrower's earnings before taxes, interest, depreciation
and amortization, measured on a trailing four quarter basis. Subject to the
terms and conditions of this Agreement, amounts borrowed pursuant to this
Section 2.1 may be repaid and reborrowed at any time prior to the Maturity
Date.
1
<PAGE> 2
3. Section 2.1.2 is added to the Agreement, as follows:
2.1.2 Term Option.
(a) At any time prior to the Maturity Date, Borrower may
convert up to Three Million Five Hundred Thousand Dollars ($3,500,000)
of the Revolving Facility into a term loan (the "Term Loan"). Borrower
may elect such term option to be effective on a date (the "Conversion
Date") that is two Business Days after Bank's receipt of a written
notice to Bank in a form reasonably satisfactory to Bank specifying the
amount of the Term Loan. The Term Loan shall bear interest at a
floating rate equal to One and Three Quarters Percent (1.75%) plus the
Prime Rate. The Term Loan will be payable in forty-eight (48) equal
monthly installments of principal, plus accrued interest, on the
twenty-seventh day of each month, beginning the month following the
Conversion Date. The entire principal balance and all accrued but
unpaid interest on the Term Loan shall be due and payable on the fourth
anniversary of the Term Loan. Availability under the Revolving
Facility shall be reduced on the Conversion Date by the principal
amount of the Term Loan.
(b) As a condition to exercising the term option,
Borrower shall pay Bank a fee equal to 0.5% of the Term Loan, and
Borrower shall meet, on a pro forma basis, as of the last day of
Borrower's 1997 fiscal year, a Debt Service Coverage of at least 1.75
to 1.00. From and after the Conversion Date, Borrower shall maintain
as of the last day of each fiscal quarter a Debt Service Coverage of at
least 1.75 to 1.00.
4. Item (b) of Section 6.3 is amended from ninety (90) days to one
hundred (100) days.
5. Section 6.9 is amended to read as follows:
6.9 Tangible Net Worth. Borrower shall maintain, as of the
last day of each fiscal quarter, a Tangible Net Worth of not less than Twenty
Four Million, Five Hundred Thousand Dollars ($24,500,000).
6. A new Section 6.13 is added, as follows:
6.13 EBITDA. Borrower shall achieve, as of the last day of its
1997 fiscal year, a minimum EBITDA of Three Million Five Hundred
Thousand Dollars ($3,500,000).
7. A new Section 6.14 is added, as follows:
6.14 Zoopa Restaurants. Borrower shall grant Bank a first
priority security interest in all of the personal property in the Zoopa
restaurants by June 30, 1998.
8. Section 7.11 is amended to read as follows:
7.11 Fixed Asset Acquisition. Acquire fixed assets during the
period from May 28, 1997 to May 27, 1998 with a cumulative cost in excess of
Seven Million Dollars ($7,000,000).
9. A new Section 8.10 is added, as follows:
8.10 Crescent Default. An Event of Default occurs under any
agreement between Bank or any other financial institution and Crescent Real
Estate Limited Partnership.
10. The Compliance Certificate to be delivered after the date of this
Amendment shall be in substantially the form of Exhibit D hereto.
2
<PAGE> 3
11. Unless otherwise defined, all capitalized terms in this Amendment
shall be as defined in the Agreement. Except as amended, the Agreement
remains in full force and effect.
12. Borrower represents and warrants that the Representations and
Warranties contained in the Agreement are true and correct as of the date of
this Amendment, and that no Event of Default has occurred and is continuing.
13. This Amendment may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one instrument.
14. As a condition to the effectiveness of this Amendment, Borrower
shall have paid a Facility Fee in an amount equal to Twenty Five Thousand
Dollars ($25,000), plus all Bank Expenses incurred in connection with the
preparation of this Amendment.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the first date above written.
FRESH CHOICE, INC.
By: /s/ Dave E. Pertl
-------------------------------------------
Title: Vice President & Chief Financial Officer
----------------------------------------
SILICON VALLEY BANK
By: /s/ Julie Schneider
-------------------------------------------
Title: Assistant Vice President
----------------------------------------
3
<PAGE> 1
EXHIBIT 11.1
FRESH CHOICE, INC.
COMPUTATIONS OF NET INCOME PER COMMON AND EQUIVALENT SHARE
(In thousands, except per share amounts)
<TABLE>
<CAPTION>
Twelve Weeks Ended Twenty-Four Weeks Ended
-------------------- -----------------------
June 15, June 16, June 15, June 16,
1997 1996 1997 1996
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Net income (loss) $ 233 $ 95 $ (416) $ (771)
===== ===== ====== ======
Weighted average common
shares outstanding 5,663 5,646 5,662 5,605
Common share equivalents(1) 1,191 40 - -
----- ----- ------ ------
Shares used in computation 6,854 5,686 5,662 5,605
===== ===== ====== ======
Net loss per common and
equivalent share $0.03 $0.02 $(0.07) $(0.14)
===== ===== ====== ======
</TABLE>
(1) Common share equivalents relating to stock options, warrants and
convertible preferred shares have been excluded from the computations for
the twenty-four weeks ended June 15, 1997 and June 16, 1996 as they would
be anti-dilutive.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM FRESH CHOICE
INC'S REPORT ON FORM 10-Q FOR THE QUARTER ENDED JUNE 15, 1997 AND IS QUALIFIED
IN ITS ENTIRETY BY REFERENCE TO SUCH REPORT ON FORM 10-Q.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-28-1997
<PERIOD-START> MAR-24-1997
<PERIOD-END> JUN-15-1997
<CASH> 5,717
<SECURITIES> 0
<RECEIVABLES> 141
<ALLOWANCES> 0
<INVENTORY> 459
<CURRENT-ASSETS> 6,713
<PP&E> 43,079
<DEPRECIATION> 12,417
<TOTAL-ASSETS> 38,342
<CURRENT-LIABILITIES> 11,332
<BONDS> 0
0
5,175
<COMMON> 42,115
<OTHER-SE> (21,745)
<TOTAL-LIABILITY-AND-EQUITY> 38,342
<SALES> 17,379
<TOTAL-REVENUES> 17,379
<CGS> 4,716
<TOTAL-COSTS> 12,463
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (33)
<INCOME-PRETAX> 233
<INCOME-TAX> 0
<INCOME-CONTINUING> 233
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 233
<EPS-PRIMARY> .03
<EPS-DILUTED> .03
</TABLE>
