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AGREEMENT FOR THE PURCHASE AND SALE OF ASSETS

Asset Purchase Agreement

AGREEMENT FOR THE PURCHASE AND SALE OF ASSETS | Document Parties: VCG HOLDING CORP | REGALE, INC |  RALEIGH RESTAURANT CONCEPTS, INC. You are currently viewing:
This Asset Purchase Agreement involves

VCG HOLDING CORP | REGALE, INC | RALEIGH RESTAURANT CONCEPTS, INC.

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Title: AGREEMENT FOR THE PURCHASE AND SALE OF ASSETS
Governing Law: North Carolina     Date: 4/20/2007
Industry: Recreational Activities     Law Firm: SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.; DRAPER, RUBIN & SHULMAN, P.L.C.    

AGREEMENT FOR THE PURCHASE AND SALE OF ASSETS, Parties: vcg holding corp , regale  inc ,  raleigh restaurant concepts  inc.
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Exhibit 10.48

EXECUTION VERSION

AGREEMENT FOR THE PURCHASE AND SALE OF ASSETS

By And Among

REGALE, INC.,

a North Carolina Corporation

VCG HOLDING CO.

a Colorado Corporation

and

RALEIGH RESTAURANT CONCEPTS, INC.

a North Carolina Corporation

Dated: March 23, 2007


TABLE OF CONTENTS

 

 

 

 

 

 

1.

  

ASSETS BEING ACQUIRED; LIABILITIES BEING ASSUMED.

  

1

 

 

 

2.

  

PURCHASE PRICE AND PAYMENT THEREOF.

  

4

 

 

 

3.

  

ALLOCATION OF PURCHASE PRICE.

  

5

 

 

 

4.

  

TAXES.

  

6

 

 

 

5.

  

REPRESENTATIONS AND WARRANTIES OF SELLER.

  

6

 

 

 

6.

  

REPRESENTATIONS AND WARRANTIES OF BUYER GROUP.

  

10

 

 

 

7.

  

CONDITIONS PRECEDENT.

  

12

 

 

 

8.

  

LEASE.

  

14

 

 

 

9.

  

BULK SALES.

  

14

 

 

 

10.

  

TIME AND PLACE OF CLOSING.

  

15

 

 

 

11.

  

ITEMS TO BE DELIVERED AT CLOSING.

  

15

 

 

 

12.

  

OPERATION OF BUSINESS BY SELLER.

  

16

 

 

 

13.

  

NON-COMPETITION; NON-SOLICITATION.

  

17

 

 

 

14.

  

CONFIDENTIALITY.

  

17

 

 

 

15.

  

ADDITIONAL DOCUMENTS AFTER CLOSING.

  

18

 

 

 

16.

  

PAYMENT OF EXPENSES; BROKERS.

  

19

 

 

 

17.

  

LIABILITIES NOT ASSUMED.

  

20

 

 

 

18.

  

EMPLOYEES AND EMPLOYEE BENEFITS.

  

20

 

 

 

19.

  

SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.

  

21

 

 

 

20.

  

TERMINATION OF AGREEMENT.

  

23

 

 

 

21.

  

STOCK TRANSFER RESTRICTIONS.

  

23

 

 

 

22.

  

REGISTRATION RIGHTS.

  

24

 

 

 

23.

  

MISCELLANEOUS.

  

24

 

ii


EXHIBITS

 

 

 

 

 

 

Exhibit A

  

Bill of Sale

  

 

 

 

 

Exhibit B

  

Indemnification Agreement

  

 

 

 

 

Exhibit C

  

Sublease

  

 

 

 

 

Exhibit D

  

Parking Lot Lease

  

 

 

iii


DISCLOSURE SCHEDULES

 

 

 

 

 

 

Schedule 1.2

  

Certain Excluded Assets

  

 

 

 

 

Schedule 1.4

  

Excluded Liabilities

  

 

 

 

 

Schedule 5.3

  

Violations

  

 

 

 

 

Schedule 5.4

  

Rights to Acquire Shares

  

 

 

 

 

Schedule 5.5

  

Leased Assets

  

 

 

 

 

Schedule 5.6

  

Taxes

  

 

 

 

 

Schedule 5.7

  

Litigation

  

 

 

 

 

Schedule 5.9

  

Liabilities of the Business

  

 

 

iv


AGREEMENT FOR THE PURCHASE AND SALE OF ASSETS

THIS AGREEMENT (this “ Agreement ”) is made and entered into this 23rd day of March, 2007 (the “ Agreement Date ”), by and among Regale, Inc., a North Carolina corporation (“ Seller ”), VCG Holding Co., a Colorado corporation (“ Parent ”) and Raleigh Restaurant Concepts, Inc., a North Carolina corporation (“ Buyer ,” and together with Parent, “ Buyer Group ”).

WHEREAS , Seller wishes to sell substantially all of the assets related to its Business (defined below) located at 3210 Yonkers Road, Raleigh, Wake County, North Carolina, as more fully described in this Agreement; and

WHEREAS , Buyer wishes to purchase such assets from Seller;

NOW THEREFORE , in consideration of the mutual promises, covenants and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, it has been and is hereby agreed as follows:

 

 

1.

ASSETS BEING ACQUIRED; LIABILITIES BEING ASSUMED .

1.1 At the closing (the “ Closing ”), and subject to the terms and conditions hereinafter set forth (including Section 1.2, which lists certain assets of Seller that Buyer is not purchasing), Seller agrees to sell to Buyer and Buyer agrees to purchase from Seller substantially all of Seller’s assets necessary to operate the adult nightclub presently known as Thee Dollhouse, located at 3210 Yonkers Road, Raleigh, North Carolina 27604 (the “ Business ”), including: all fixtures and personal property located on the Business premises; all food and beverage supplies; all contracts and contract rights, except as specifically excluded in this Agreement; all improvements on the premises; all patents, software and software license agreements; computers


and other equipment (whether owned or leased); all licenses, including (to the extent transferable) all liquor licenses and permits from the City of Raleigh, the County of Wake or the State of North Carolina or any other relevant authorities (the “ Governmental Authorities ”) necessary to operate the Business (the “ Required Licenses ”); and any other asset of Seller that is not an Excluded Asset (as defined in Section 1.2), free and clear of all liens, security interests, and encumbrances, except as noted herein (collectively, the “ Assets ”).

1.2 The Assets to be conveyed to Buyer shall not include: the Agreement (licensing the use of a trademark), dated as of June 15, 1992, between Seller and Thee Dollhouse Productions N.C., Inc., a Florida corporation, and any written or oral amendments thereto, or any other written or oral understandings, agreements or arrangements under which the parties to the Agreement currently operate, including without limitation any right to use the trademark (collectively, the “ Production Contract ”); any motor vehicles owned or leased by Seller or its affiliates; furniture and other personal property not used in the Business (as set forth on Schedule 1.2 ); Seller’s rights under any real property lease with respect to the Business premises; cash, cash equivalents and short-term investments; any of Seller’s organizational documents, minute books, stock records, corporate seals and other corporate records; the shares of capital stock of Seller held in treasury, if any; all insurance policies and rights thereunder, including all claims, refunds, and credits from insurance policies due or to become due with respect to such policies; all Tax credits and claims for refund of Taxes or other governmental charges of whatever nature pertaining to the Business or the Assets that are attributable to the pre-Closing tax period; all rights relating to deposits and prepaid expenses and claims for refunds and rights to offset in respect thereof listed on Schedule 1.2 ; all rights of Seller under this Agreement or the Bill of Sale, including all rights to the Purchase Price consideration; and such other assets of Seller that

 

2


are set forth on Schedule 1.2 (collectively, the “ Excluded Assets ”). The Assets to be acquired by Buyer under this Agreement will be effected by delivery by Seller to Buyer Group at Closing of a duly executed bill of sale in the form attached hereto as Exhibit A (the “ Bill of Sale ”); and the leased Assets to be assigned by Seller will be effected by delivery to Buyer Group at Closing of duly executed instruments of assignments, as needed.

1.3 To the extent permitted by the applicable Governmental Authorities, Seller hereby consents to the transfer of any of its Required Licenses to Buyer, subject in all respects to the prior approvals of the applicable Governmental Authorities. Buyer Group hereby agrees to use its best efforts to obtain the Required Licenses as promptly as possible following the Agreement Date.

1.4 On the Agreement Date, Buyer Group will deliver to Seller an instrument of indemnification in the form attached hereto as Exhibit B (the “ Indemnification Agreement ”), whereby Buyer Group fully and unconditionally will indemnify, defend and hold Seller, its affiliates and shareholders (including without limitation S. Barry Sandman and Barry L. Green) and all of their respective officers, directors, employees and agents, harmless from, any and all claims, liabilities and obligations (including any reasonable attorneys fees related thereto) of such parties, including without limitation any and all claims, liabilities and obligations, whether known or unknown, accrued or unaccrued, absolute or contingent as set forth in the Indemnification Agreement. In the event the Closing does not occur under this Agreement, the Indemnification Agreement shall be deemed null and void, except as set forth in Section 19.5 hereof or in the Indemnification Agreement. Notwithstanding the foregoing, Buyer Group will assume all liabilities and obligations of Seller and the Business (i) that arise from and after the Effective Time and (ii) that are not Excluded Liabilities (as defined below) (collectively, the

 

3


Assumed Liabilities ”). Buyer Group will not undertake, assume or agree to fully or partially perform, pay and discharge when due any debts, liabilities and obligations (i) to the extent arising under the Excluded Assets, (ii) that are expressly retained by Seller as set forth on Schedule 1.4 , (iii) except as set forth in the Indemnification Agreement, that arise, accrue or are incurred by Seller prior to the Effective Time (as defined in Section 10 below), or (iv) in connection with Taxes accrued or incurred prior to Closing (as more fully described in Section 4.1 of this Agreement) (collectively, the “ Excluded Liabilities ”). Seller is responsible for performing, paying and discharging the Excluded Liabilities.

 

 

2.

PURCHASE PRICE AND PAYMENT THEREOF .

The purchase price (the “ Purchase Price ”) to be paid by Buyer to Seller for the Assets shall be a total of Ten Million Two Hundred Thousand Dollars ($10,200,000) in cash and common stock of Parent. The Purchase Price shall be payable as follows:

2.1 Cash in the amount of One Hundred Thousand Dollars ($100,000) (the “ Earnest Money ”), to be delivered on the Agreement Date. The delivery of the Earnest Money shall be via wire transfer of immediately available funds to an account designated in writing by Seller prior to the Agreement Date, or alternatively such delivery may be in the form of a cashier’s check, in either case on the Agreement Date; provided, that the Earnest Money shall be returned promptly (within five business days) upon written demand of Buyer in the sole event that this Agreement is terminated pursuant to Section 20(b) of this Agreement, provided that any refund of Earnest Money in such event shall be returned to Buyer net of Seller’s reasonable costs and expenses (including reasonable attorney’s fees) incurred or accrued as of the termination date.

 

4


2.2 Cash in the amount of Ten Million Dollars ($10,000,000), payable at Closing via wire transfer of immediately available funds to an account or accounts designated in writing by Seller prior to the date of Closing (the “ Closing Date ”), or alternatively such delivery may be in the form of a cashier’s check, in either case at the Closing.

2.3 One Hundred Thousand Dollars ($100,000) in shares of Parent common stock (the “ Shares ”), valued at the average per share closing price of Parent common stock on the American Stock Exchange (traded under the symbol: PTT) for the ten (10) trading day period prior to the Agreement Date. The issuance of the Shares to Seller at Closing will be subject to the provisions set forth in Section 22 hereof.

 

 

3.

ALLOCATION OF PURCHASE PRICE .

The Purchase Price provided for in Section 2 hereof shall be allocated to the Assets as follows:

 

 

 

 

 

 

 

A.

  

All Furniture Fixtures and Equipment

  

$

250,000

 

 

 

B.

  

Leasehold

  

 

3,750,000

 

 

 

C.

  

Goodwill

  

 

6,150,000

 

 

 

D.

  

Inventory

  

 

50,000

 

  

 

  

 

 

 

  

TOTAL

  

$

10,200,000

After the Closing, the parties shall make consistent use of the allocation specified above for all tax purposes and in all filings, declarations and reports with the Internal Revenue Service (“ IRS ”) in respect thereof, including the reports required to be filed under Section 1060 of the Internal Revenue Code of 1986 and the rules and regulations promulgated thereunder, as amended (the “ Code ”). Buyer Group shall prepare and deliver IRS Form 8594 to Seller within forty-five (45) days after the Closing Date to be filed with the IRS. In any proceeding related to the determination of any Tax (as defined in Section 4.1), neither Seller nor Buyer Group shall contend or represent that such allocation is not a correct allocation.

 

5


 

4.

TAXES .

The parties agree as follows:

4.1 Except as provided in Section 4.2, Seller is responsible for paying any and all taxes of the Business, including but not limited to, state and local sales and use taxes, unemployment taxes, workmen’s compensation, state and federal withholding taxes, and income taxes (“ Taxes ”) which accrue up to the Effective Time, but not thereafter. Seller hereby agrees to hold Buyer Group harmless from any Taxes which may be due and owing by Seller and not assumed by Buyer under this Agreement arising from any time that Seller operated the Business, up to and including the Effective Time, but not thereafter.

4.2 Buyer will pay when due any and all Taxes which may become payable as a result of the transactions contemplated by this Agreement, including all sales and use Taxes, levies, fees and charges of any kind without contribution from Seller.

4.3 Buyer shall be responsible for any and all Taxes or charges of any nature relating to the Assets and the operation of the Business which accrue after the Effective Time. In addition, Buyer Group hereby agrees to hold Seller harmless from any Taxes which may be due and owing by Buyer or Parent.

 

 

5.

REPRESENTATIONS AND WARRANTIES OF SELLER .

As an inducement to Buyer Group to enter into this Agreement, Seller represents and warrants to Buyer Group as follows:

5.1 Organization and Good Standing . Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of North Carolina.

 

6


5.2 Authority and Enforceability . Seller has the corporate power to own its properties and Assets, and to carry on its Business as now being conducted by it with respect to the Assets. Seller has the corporate power and authority to enter into and deliver this Agreement and the other transaction documents contemplated hereby to which it is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby, including assigning and transferring to Buyer at Closing all of the Assets specified in this Agreement. Seller’s execution, delivery and performance of this Agreement and the other transaction documents contemplated hereby to which it is a party and its consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all corporate action required of Seller by applicable law or its Articles of Incorporation or By Laws.

5.3 No Violation . Except as set forth on Schedule 5.3 , the execution and delivery of this Agreement does not and the consummation of the transactions contemplated hereby will not violate any material provision of the documents controlling the operation of the Business, nor violate any provision of Seller’s Articles of Incorporation or By Laws, or any material mortgage, lease, lien, agreement, instrument, order, judgment or decree to which Seller is a party, or whereby it or the Business is bound, and, to the knowledge of Seller, will not violate any other restriction of any other kind or character to which Seller or the Business is subject. Seller has taken or will take all action required by law, its Articles of Incorporation and By Laws, or otherwise, to authorize execution and delivery of this Agreement and the consummation of the transactions described herein.

For purposes of this Agreement, “knowledge of Seller” shall mean the actual knowledge of S. Barry Sandman, without any further inquiry, and “knowledge of Buyer Group” shall mean the actual knowledge of the senior officers of Parent, without any further inquiry.

 

7


5.4 Rights to Acquire Shares . Except as set forth on Schedule 5.4 , there are no outstanding rights to acquire shares of Seller, which rights would require the holders thereof to approve the execution of this Agreement or the consummation of the transactions contemplated hereby.

5.5 Title . Seller has, or will have by the Closing Date, good and marketable title to own all of the Assets, free and clear of all liens and encumbrances, and Seller does not lease any of its property or Assets relating to the Business, except as set forth on Schedule 5.5 .

5.6 Taxes . Seller has filed or will cause to be filed all material returns for federal, state and local Taxes that it was required to file on a timely basis. Seller has paid, or made provisions for the payment of, all Taxes shown as owing on Seller’s tax returns for the years ended December 31, 2005 and 2004 (all of which have been made available to Buyer Group) or any assessment received by Seller from any taxing authority, except such Taxes, if any, listed on Schedule 5.6 that are being contested in good faith and as to which adequate reserves have been provided in the most recent balance sheet of the Business. Except as set forth on Schedule 5.6 , Seller is not currently the beneficiary of any extension of time within which to file any Tax return. To the knowledge of Seller, there are no assessments or additional Taxes threatened against Seller or any of its properties. Seller is not delinquent in the payment of any Tax assessment or governmental charge, does not have any Tax deficiencies imposed or assessed against it and has not executed any waiver of the statute of limitations on the assessment or collection of any Taxes, where such delinquency, deficiency or waiver would have a material adverse affect on Seller’s title to any of the Assets to be transferred to Buyer at Closing.

5.7 Litigation . Except as set forth on Schedule 5.7 , there are no actions, suits, or proceedings pending, or to its knowledge, threatened against Seller, the Business or any of its

 

8


properties or Assets, in law or in equity, which might result in any judgment, order, injunction or decree having a material adverse affect upon the operations, properties, assets or financial condition of the Business.

5.8 Condition of Assets . The equipment and other tangible Assets of Seller used in the operation of the Business are in good operating condition and repair in all material respects.

5.9 Absence of Undisclosed Liabilities . Except for: (a) liabilities and obligations reflected in Seller’s tax returns made available to Buyer Group; (b) liabilities and obligations reflected on Schedule 5.9 ; (c) liabilities and obligations incurred in the ordinary course of business since December 31, 2006; (d) liabilities or obligations arising out of or under material contracts of the Business; (e) liabilities or obligations incurred in connection with this Agreement; and (f) other liabilities or obligations which, individually or in the aggregate, would not have a material adverse effect on Business, Seller has no material liabilities or obligations of any nature, whether direct, indirect, accrued, contingent or otherwise, of the type required to be disclosed on a balance sheet prepared in accordance with GAAP.

5.10 Employees and Independent Contractors . There is no collective bargaining or similar agreement with any labor unions or associations representing employees of the Business. To the knowledge of Seller, since January 1, 2006 there have been no claims of discrimination or harassment that have been made against Seller, the Business or an employee of the Business before a governmental or regulatory authority regarding actions or omissions of a Business employee during the course of his or her employment with Seller. To the knowledge of Seller, at all times while engaged by the Business, all independent contractors and consultants of the Business were independent contractors to, and not employees of, Seller or the Business for

 

9


purposes of all applicable federal and state laws relating to wages and hours, all applicable federal and state income tax withholding requirements, and any other law implicating the relationship between Seller or the Business and any independent contractor or consultant.

 

 

6.

REPRESENTATIONS AND WARRANTIES OF BUYER GROUP .

As an inducement to Seller to enter into this Agreement, Buyer Group represents and warrants to Seller as follows:

6.1 Organization and Good Standing . Parent is a corporation duly organized, validly existing and in good standing under the laws of the State of Colorado. Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of North Carolina.

6.2 Authority and Enforceability . Each of Parent and Buyer has the requisite power to own its properties and to carry on its business as now being conducted. Each of Parent and Buyer has all requisite power and authority to enter into and deliver this Agreement and the other transaction documents contemplated hereby to which it is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. Each of Parent and Buyer’s execution, delivery and performance of this Agreement and the other transaction documents contemplated hereby to which it is a party and each party’s consummation of the transactions contemplated hereby and thereby have bee


 
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