Exhibit 10-30 Bonefish Asset Purchase


Exhibit 10.30

 



FIRST
AMENDMENT TO ASSET PURCHASE AGREEMENT




THIS
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT made and
entered into this   day of
December 2004, by and between BONEFISH
GRILL, INC.,
formerly OS Sea, Inc., a Florida corporation with its principal place of
business located at 2202 N. West Shore Boulevard, 5th Floor,
Tampa, Florida 33607 (“Buyer”);
GRAY
GHOST, LLC,
formerly Bonefish Grill, LLC, a Florida limited liability company with its
principal place of business located at 5901 Fourth Street North, St. Petersburg,
Florida 33703 (“Seller”);GRAY
GHOST HOLDINGS, INC.,
formerly Bonefish Grill Holdings, Inc., a Florida corporation with its principal
place of business located at 5901 Fourth Street North, St. Petersburg, Florida
33703 (“BGH”);
TIMOTHY
V. CURCI, an
individual residing in the State of Florida with an address at 5901 Fourth
Street North, St. Petersburg, Florida 33703 (“Curci”); and
WILLIAM
LEWIS PARKER, PERSONAL REPRESENTATIVE OF THE ESTATE
OF CHRISTOPHER L. PARKER, DECEASED,
Pinellas County Circuit Court, Probate Division, as successor in interest to
Christopher L. Parker, with an address at 5829 106th Terrace
N., Pinellas park, FL 33782 (“Parker”)
(collectively, the “Parties”).




WHEREAS,
Christopher L. Parker died on January 25, 2004;




WHEREAS, the
cessation of Parker’s Employment with OS Restaurant Services, Inc., a Delaware
corporation and Affiliate of Buyer was an event that triggered Buyer’s right
pursuant to Section 3.2 of that certain Asset Purchase Agreement dated October
5, 2001 by and among Buyer, Seller, BGH, Curci and Christopher L. Parker (the
“Asset
Purchase Agreement”), to
terminate that certain Royalty created under the provisions of Section 3.1 of
the Asset Purchase Agreement;




WHEREAS, Buyer
and the other Parties have agreed that the Royalty shall not terminate but
instead Sections 3.1 and 3.2 of the Asset Purchase Agreement shall be amended as
set forth hereinafter in this First Amendment to Asset Purchase
Agreement;




WHEREAS, Seller
desires to transfer and assign to Buyer the right to receive one-half of the
Royalty provided for in the Asset Purchase Agreement;




NOW,
THEREFORE, in
consideration of the premises, which are not mere recitals hereto, but by this
reference are incorporated into this Agreement as a part hereof and of the
mutual
promises and covenants contained herein and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
each of the Parties respectively, the Parties agree as follows:




A. Seller
hereby transfers, assigns and conveys to Buyer, effective March 1, 2004, the
right to receive fifty percent (50%) of all payments of the Royalty pursuant to
Section 3.1 of the Asset Purchase Agreement commencing on and after March 1,
2004.




B. Sections
3.1 and 3.2 of the Asset Purchase Agreement are hereby amended by deleting in
their entirety the original language of Sections 3.1 and 3.2 and substituting in
place thereof the language of Sections 3.1 and 3.2 as set forth below:





3. ROYALTY




3.1 Royalty. The
parties acknowledge that an Affiliate of Buyer employs Curci pursuant to a
separate Employment Agreement dated October 5, 2001. During the employment of
Curci with Buyer or any Affiliate of Buyer, each “OSS Restaurant”
shall

 




















 

pay: (i)
to Seller a royalty from each “OSS Restaurant” in an amount equal to one-half of
one percent (.5%) of Adjusted Gross Sales (“Seller Royalty”) and (ii) to Buyer a
royalty from each “OSS Restaurant” in an amount equal to one-half of one percent
(.5%) of Adjusted Gross Sales (“Buyer Royalty”). For purposes of this Agreement
an “OSS Restaurant” shall mean any Bonefish Grill restaurant in which none of
(i) Seller, BGH, or any BG Principal; or (ii) any entity in which Seller, BGH or
any BG Principal or any immediate family member of a BG Principal owns an
ownership or beneficial interest, directly or indirectly through one or more
subsidiary entities; own, directly or indirectly through one or more subsidiary
entities, any equity interest (other than ownership of capital stock of Outback
Steakhouse, Inc., a Delaware corporation and Affiliate of Buyer). For purposes
of this Agreement “Adjusted Gross Sales” shall mean gross sales reduced by (i)
discounts and complimentary food and beverages, (ii) sales and other taxes and
surcharges collected for transmittal to taxing authorities, (iii) revenues
received from the sale of gift certificates until redeemed, and (iv) revenue
from catering activities done for charitable, marketing or community involvement
purposes. The Seller Royalty and Buyer Royalty shall be payable no less
frequently than quarterly.




3.2 Acquisition
of Seller Royalty. Upon
termination of Curci’s employment with Buyer (or any Affiliate of Buyer), for
whatever reason other than a wrongful termination by the employer, Buyer shall
have the option to acquire the Seller Royalty, such acquisition to be effective
immediately upon the termination of Curci’s employment with Buyer or Buyer’s
Affiliate, and Buyer shall pay to Seller, within forty-five (45) days of such
termination, a Seller Royalty acquisition fee in an amount equal to five (5)
times the amount of the Seller Royalty payable to Seller during the twelve full
calendar months immediately preceding the month of termination of Curci’s
employment with Buyer (or any Affiliate of Buyer). In the event Curci’s
employment with Buyer or an Affiliate of Buyer terminates prior to January 1,
2007, then solely for purposes of calculating the Seller Royalty acquisition fee
the Royalty paid by any OSS Restaurant that is open to the public for business
on the date of termination of Curci’s employment but was not open to the public
for business for the twelve full calendar months immediately preceding the month
of termination of Curci’s employment shall be annualized in an equitable manner
determined by Buyer in its reasonable discretion. 




No form
of exercise of the option to acquire the Seller Royalty shall be required other
than payment of the Seller Royalty acquisition fee, as calculated by Buyer,
within forty five (45) days of the termination of Curci’s employment with Buyer
or Buyer’s Affiliate. So long as the Seller Royalty acquisition fee as
calculated by Buyer is paid to or made available to Seller within such time
period, the acquisition of the Seller Royalty shall for all purposes be
effective as of the date of termination of Curci’s employment with Buyer or
Buyer’s Affiliate and Curci shall have no right to receive any of the Seller
Royalty for any period after the date of termination of Curci’s employment.





C. The
foregoing amendment and restatement of Sections 3.1 and 3.2 of the Asset
Purchase Agreement shall be effective for all purposes as of March 1,
2004.























D. Except as
set forth above, the Asset Purchase Agreement shall
remain unaffected, unchanged, unimpaired and in full force and effect as amended
herein.




IN
WITNESS WHEREOF the
Parties have signed and sealed this First Amendment to Asset Purchase Agreement
the day and year first above-written.

 



	
      WITNESSES:
	 	
      BONEFISH
      GRILL, INC.,
      a Florida corporation
	 
				
		 	 	 
	
       _________________________________
	 	
      By: _________________________________
	 
	 	 	
          
      Robert S. Merritt, Senior Vice President
	 
				
	
       _________________________________ 
	 	 	 
				
	
       
	 	 	 
				
	 	 	
      GRAY
      GHOST, LLC,
	 
	 	 	
      a
      Florida limited liability company
	 
				
				
	 	 	
      By:
      GRAY
      GHOST HOLDINGS, INC.
	 
	 	 	
      Its
      member-manager
	 
				
				
	
      
       _________________________________ 

	 	
      By: _________________________________
	 
	 	 	
          
      Timothy V. Curci, President
	 
	
      
       _________________________________ 

	 	 	 
	 	 	 	 
	 	 	
      GRAY
      GHOST HOLDINGS, INC., a
      Florida corporation
	 
	 	 	 	 
	
      
       _________________________________ 

	 	
      By: _________________________________
	 
	 	 	
          
      Timothy V. Curci, President
	 
	
      
       _________________________________ 

	 	 	 
	 	 	 	 
	
      
       _________________________________ 

	 	
      
       _________________________________

	 
	 	 	
          
      Timothy V. Curci, Individually
	 
	
      
       _________________________________ 

	 	 	 
	 	 	 	 
	
      
       _________________________________ 

	 	
      
       _________________________________

	 
	 	 	
      William
      Lewis Parker, Personal Representative of
	 
	 	 	
      the
      Estate of Christopher L. Parker, deceased, 
	 
	
      
       _________________________________ 

	 	
      Pinellas
      County Circuit Court, Probate Division, as 
	 
	 	 	
      successor
      in interest to Christopher L. Parker,