exv10w1






Exhibit 10.1




AMENDED AND RESTATED ASSET PURCHASE AGREEMENT




     This Amended and Restated Asset Purchase Agreement (the “Agreement”) shall be
effective as of February 26, 2010 (the “Effective Date”), by and between Famous Dave’s of America,
Inc., a Minnesota corporation, or its designee (“Purchaser”), and North Country BBQ Ventures, Inc.,
a Delaware corporation (“NC BBQ”), North Country BBQ Ventures (Smithtown), LLC, a Delaware limited
liability company (“Smithtown”), North Country BBQ Ventures (Westbury), LLC, a Delaware limited
liability company (“Westbury”), North Country BBQ Ventures (Mountainside), LLC, a Delaware limited
liability company (“Mountainside”), North Country BBQ Ventures (Brick), LLC, a Delaware limited
liability company (“Brick”), North Country B.B.Q. Ventures (Hamilton), LLC, a Delaware limited
liability company (“Hamilton”), North Country BBQ Ventures (New Brunswick), LLC, a Delaware limited
liability company (“New Brunswick”), North Country BBQ Ventures (Woodbridge), LLC, a Delaware
limited liability company (“Woodbridge”), (NC BBQ, Smithtown, Westbury, Mountainside, Brick,
Hamilton, New Brunswick and Woodbridge are hereinafter each referred to individually as a “Seller”
and collectively as the “Sellers”).



     This Agreement completely amends, restates and supersedes that certain Asset Purchase
Agreement dated as of December 17, 2009, by and among Purchaser, Sellers, North Country BBQ
Ventures (Manchester), LLC, a Delaware limited liability company (“Manchester”), and North Country
BBQ Ventures (Hillsborough), LLC, a Delaware limited liability company (“Hillsborough”), as amended
by Amendment No. 1 to Asset Purchase Agreement dated as of December 23, 2009 (collectively, the
“Prior Agreement”).



RECITALS




     A. Sellers conduct the business of the ownership and operation of seven restaurants that
utilize the “Famous Dave’s” system and trademarks at the locations identified below (each referred
to individually as a “Restaurant” and collectively as the “Restaurants”; the operation of the
Restaurants, is referred to herein as the “Business”). In connection with the Business, Purchaser
and each of the Sellers identified below are parties to those certain Franchise Agreements of
various dates identified below (as amended from time to time, each referred to individually as a
“Franchise Agreement” and collectively as the “Franchise Agreements”):



	 	 	 	 	 
	Restaurant Location	 	Party to Agreement	 	Date of Agreement
	 
	 	 	 	 
	720 Smithtown Bypass, Smithtown, New York

	 	Smithtown
	 	June 17, 2004
	1050 Corporate Drive, Westbury, New York

	 	Westbury
	 	December 17, 2004
	1443 Route 22 East, Mountainside, New Jersey
(hereinafter referred to as the “Mountainside Location”)

	 	Mountainside
	 	August 16, 2001
	950 Cedar Bridge Avenue, Brick Township, New Jersey

	 	Brick
	 	November 20, 2002
	4215 Black Horse Pike, Hamilton (Mays Landing), New Jersey

	 	Hamilton
	 	October 10, 2003
	23 U.S. Highway, Route 1 South, New Brunswick, New Jersey

	 	New Brunswick
	 	October 10, 2003
	53 Lafayette Avenue, Metuchen, New Jersey
(hereinafter referred to as the “Woodbridge Location”)

	 	Woodbridge
	 	June 29, 2006






     B. On or about December 18, 2009, each of the Sellers filed a voluntary petition for
relief under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the United
States



 









 







Bankruptcy Court, District of New Jersey (the “Bankruptcy Court”). The chapter 11 cases
filed by Sellers, as well as those of certain non-Seller affiliates (the “Bankruptcy Cases”) are
jointly administered under NC BBQ’s bankruptcy case for administrative purposes only. Sellers
continue to operate the Businesses and manage their properties as debtors in possession pursuant to
sections 1107(a) and 1108 of the Bankruptcy Code.



     C. Sellers desire to sell, and Purchaser desires to purchase, substantially all of the assets
of Sellers used in the operation of the Restaurants in accordance with the terms and subject to the
conditions set forth herein.



AGREEMENT




     Now, Therefore, in consideration of the foregoing premises which are hereby
incorporated by reference and made a part of this Agreement, the mutual covenants and conditions
contained herein, and for other consideration the receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:



Article 1

Definitions




     In addition to capitalized terms otherwise defined herein, the following terms shall have the
meanings specified below.



     “Assigned Contracts” means the Contracts listed on Schedule 2.1(b) to be
assumed by Sellers and assigned to Purchaser or its designee under Section 365 of the Bankruptcy
Code, as such schedule may be amended from time to time prior to the Closing Date pursuant to
Section 2.5.



     “Assignment and Assumption Agreement” means the Assignment and Assumption Agreement in
substantially the form attached hereto as Exhibit B.



     “Assumed Liabilities” has the meaning set forth in Section 2.4.



     “Avoidance Claims” means any and all claims or causes of action under Chapter 5 of the
Bankruptcy Code.



     “Auction” means the auction contemplated by the Sale Procedures Order.



     “Bankruptcy Cases” has the meaning set forth in the Recitals.



     “Bankruptcy Code” has the meaning set forth in the Recitals.



     “Bankruptcy Court” has the meaning set forth in the Recitals.



     “Bill of Sale” means the Bill of Sale in substantially the form attached hereto as
Exhibit A.



     “Books and Records” means the books and records held for use in the conduct of the
Business including, but not limited to, all personnel records, but excluding Sellers’ corporate
records and any documents not related to any of the Purchased Assets.



     “Business” has the meaning set forth in the Recitals.



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     “Business Day” means any day of the year on which national banking institutions in the
State of New Jersey are open to the public for conducting business and are not required or
authorized to close.



     “Closing” has the meaning set forth in Section 4.1.



     “Closing Date” has the meaning set forth in Section 4.1.



     “Closing Deadline” has the meaning set forth in Section 4.4.



     “Code” means the Internal Revenue Code of 1986, as amended.



     “Contemplated Transactions” has the meaning set forth in Section 4.1.



     “Contract” means any agreement, contract obligation, promise, or undertaking, whether
written or oral, to which any Seller is a party or otherwise bound.



     “Cure Amount” or “Cure Amounts” means, as to each Assigned Contract, the
amount required to be paid pursuant to Section 365(b) of the Bankruptcy Code in connection with the
assumption by Sellers of such Assigned Contract as reported on a schedule filed with the Bankruptcy
Court at least three (3) Business Days prior to the hearing for the approval of the Sale Order,
which schedule was determined by the mutual agreement of the parties hereto and/or by agreement of
the contract counterparties, in all such cases as determined by Final Order of the Bankruptcy
Court.



     “Effective Date” has the meaning set forth in the preamble.



     “Encumbrance” means any lien, mortgage, pledge, security interest, easement,
encumbrance, third party interest, or other restriction or limitation of any kind.



     “Environmental Law” has the meaning set forth in Section 5.15.



     “Excluded Assets” has the meaning set forth in Section 2.2.



     “Excluded Restaurant” means collectively the Restaurant located at 1707 S. Willow
Street, Manchester, New Hampshire and operated by Manchester, and the Restaurant located at 315
Route 206, Hillsborough, New Jersey and operated by Hillsborough.



     “Final Order” means an order of the Bankruptcy Court which is not subject to any stay
of its effectiveness or motion for reargument or rehearing and (i) as to which the time to appeal
or petition for certiorari has expired and as to which no timely appeal, or petition for certiorari
shall then be pending; or (ii) if a timely appeal or writ of certiorari thereof has been sought,
the order shall have been affirmed by the highest court to which such order was appealed, or
certiorari shall have been denied or reargument or rehearing on remand shall have been denied or
resulted in no modification of such order, and the time to take any further appeal, petition for
certiorari, or move for modification of such order, or move for reargument or rehearing shall have
expired.



     “Franchise Agreement” or “Franchise Agreements” has the meaning set forth in
the Recitals.



     “Governmental Authority” means any federal, state or local government, governmental
authority, or regulatory or administrative authority or any court, tribunal, or judicial body
having jurisdiction.



     “Governmental Authorization” means any approval, consent, license, permit, waiver, or
other authorization issued or granted by or under the authority of any Governmental Authority.



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     “Law” means any federal, state, local, municipal, or foreign law, ordinance, rule,
regulation, statute or treaty.



     “Lease Amendment” has the meaning set forth in Section 8.3.



     “Mountainside Location” has the meaning set fort in the Recitals.



     “Order” means any award, writ, injunction, judgment, order, or decree entered, issued,
made or rendered by any Governmental Authority.



     “Organizational Documents” means (i) the articles or certificate of incorporation and
the bylaws of a corporation; (ii) the operating agreement or limited liability company agreement
and the articles of organization or certificate of formation of a limited liability company; and
(iii) any amendment to any of the foregoing.



     “Person” means any individual, partnership, corporation, limited liability company,
joint stock company, joint venture, estate, trust, association, unincorporated organization,
Governmental Authority, or other entity.



     “Purchase Consideration” has the meaning set forth in Section 3.1.



     “Purchased Assets” has the meaning set forth in Section 2.1.



     “Purchaser” has the meaning set forth in the preamble.



     “Real Estate Lease” or “Real Estate Leases” means the lease agreements for the
real property on which the Restaurants are located.



     “Restaurant” or “Restaurants” has the meaning set forth in the Recitals.



     “Seller Employment Obligations” has the meaning set forth in Section 8.4.



     “Sale Order” has the meaning set forth in Section 7.5.



     “Sale Procedures Order” means that certain Amended Order Approving Bidding and Auction
Procedures and Scheduling Matters in Connection Therewith dated as of January 13, 2010 and
appearing on the docket in the Bankruptcy Cases.



     “Seller” or “Sellers” have the meaning set forth in the preamble.



     “Tax” or “Taxes” means (i) any federal, state, provincial, local, foreign or
other income, alternative, minimum, add-on minimum, accumulated earnings, personal holding company,
franchise, capital stock, net worth, capital, profits, intangibles, windfall profits, gross
receipts, value added, sales, use, goods and services, excise, customs duties, transfer,
conveyance, mortgage, registration, stamp, documentary, recording, premium, severance,
environmental (including taxes under Section 59A of the Code), natural resources, real property,
personal property, ad valorem, intangibles, rent, occupancy, license, occupational, employment,
unemployment insurance, social security, disability, workers’ compensation, payroll, health care,
withholding, estimated, or other similar tax, duty, levy, or other governmental charge or
assessment or deficiency thereof (including all interest and penalties thereon and
additions thereto whether disputed or not) and (ii) any transferee liability in respect of any
items described in clause (i) above.



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     “Transaction Documents” means any agreements, instruments, or documents entered into,
delivered or required to be delivered pursuant to this Agreement.



     “Transfer Taxes” has the meaning set forth in Section 8.5.



     “Treasury Regulations” means the regulations promulgated by the U.S. Treasury
Department pursuant to the Code.



     “Woodbridge Location” has the meaning set fort in the Recitals.



Article 2

Purchase and Sale of Assets




     2.1 Purchased Assets. On the terms and conditions of this Agreement, Sellers hereby
agree to sell, transfer, convey and deliver to Purchaser, and Purchaser hereby agrees to purchase
from Sellers, on and as of the Closing Date, all property and assets of Sellers, of every kind and
description, real or personal, tangible or intangible, used in the operation of the Business, not
including the Excluded Assets (the “Purchased Assets”). The Purchased Assets shall include,
without limitation, the following:




     (a) all furniture, fixtures, equipment, smallwares, machinery, computers, point of sale
hardware and software, décor items, memorabilia and other tangible personal property used or
held in the Business including, but not limited to, all of the personal property described
in Schedule 2.1(a);




     (b) all right, title and interest of Sellers in and to all Real Estate Leases, all
Franchise Agreements and all other Assigned Contracts identified on Schedule 2.1(b);
provided, however, that Purchaser or its designee shall be permitted to exclude the Real
Estate Lease and the Franchise Agreement for the Woodbridge Location at any time prior to
the Closing, and, if so excluded, the Woodbridge Location shall be an Excluded Restaurant;




     (c) all inventory, raw materials and supplies of the Business, wherever located,
including but not limited to all rights of Sellers as to all suppliers associated with the
Business, together with all uniforms, paper goods and promotional items used by Sellers in
the operation of the Business;




     (d) unlimited access to during reasonable business hours and Purchaser’s ability to
make copies of the Books and Records for up to six (6) months after the Closing Date;




     (e) all rights of Sellers under any warranty or guarantee by any manufacturer, supplier
or other transferor of the Purchased Assets for the Business;




     (f) all of the intangible rights and property used in Sellers’ conduct of the Business,
including without limitation, Sellers’ intellectual property rights to technology, licenses,
construction or plans, drawings, memos, blueprints, and other work product of consultants or
architects, telephone numbers, telecopy numbers and e-mail addresses and listings relating
to the Business;




     (g) to the extent legally transferable, all permits, licenses and approvals received
from any governmental entity for the Business; provided however, that to the extent a liquor
license is not held by Mountainside (in which case, such license shall not be a Purchased
Asset), the Sellers



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shall cause North Country BBQ Ventures, LLC to transfer any liquor
license it may hold to Purchaser as soon as reasonably practicable;




     (h) all leasehold improvements, signage and prepaid deposits in the possession of the
applicable non-Seller counterparties for the Business;




     (i) all rights, claims and causes of action of Sellers against third parties relative
to the Purchased Assets and the proceeds thereof, excluding Avoidance Claims, tort claims
against Sellers’ current and former officers and directors, rights, claims and causes of
action relating to any Excluded Restaurant, credit card payments that are in process and
that originate from sales occurring prior to and including the Closing Date, and claims
giving rise to Sellers’ rights of set off with respect to its creditors; and




     (j) any and all other properties, assets and rights of Sellers which are used in
Sellers’ conduct of the Business and are not expressly listed or referred to in Section 2.2
below or otherwise is not an Excluded Asset per the terms of this Agreement.



     Effective as of the Closing Date, Sellers will transfer the Purchased Assets to Purchaser in
accordance with this Agreement by delivering the Transaction Documents together with all required
consents of any and all third parties, free and clear of all Taxes, Encumbrances or any other
adverse claims of any kind.



     2.2 Excluded Assets. The following property and assets of Sellers are excluded from the
sale to Purchaser (the “Excluded Assets”):




     (a) Sellers’ rights arising under this Agreement;




     (b) Sellers’ corporate records and any documents not related to any of the Purchased
Assets;




     (c) cash and any cash equivalents;




     (d) accounts receivable resulting from retail sales by Sellers in the ordinary course
of business prior to the Closing Date;




     (e) any Contracts not specifically identified on Schedule 2.1(b) or not
otherwise designated an Assigned Contract pursuant to the procedures described herein;




     (f) all assets (including without limitation assets of the nature identified in Section
2.1) that are used exclusively in the operation of a Restaurant that is an Excluded
Restaurant;




     (g) rights, claims and causes of action relating to any Excluded Restaurant, Avoidance
Actions, tort claims against Sellers’ current and former officers and directors, credit card
payments that are in process and that originate from sales occurring prior to and including
the Closing Date, and claims giving rise to Sellers’ rights of set off with respect to its
creditors, and




     (h) all assets of Sellers not related to the Business.



     2.3 Proration of Income and Expenses. To the extent assumed by Purchaser and except
as otherwise provided herein, all deposits, reserves, income and expenses relating to the conduct
of the business and operations of Sellers shall be prorated between Purchaser and Sellers in
accordance with



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generally accepted accounting principles as of 11:59 p.m. prevailing Eastern time,
on the date immediately preceding the Closing Date. Such prorations shall include, without
limitation, all utility expenses, insurance premiums, amounts due or to become due under all lease
payments, real estate taxes (if any) and similar prepaid and deferred items.



     2.4 Assumed Liabilities. Except as otherwise provided herein, Purchaser shall not and
does not assume any liabilities or obligations of Sellers. Sellers shall be solely liable for all
Taxes, liabilities and obligations arising from ownership of the Purchased Assets, operation of the
Business and incidents and occurrences prior to the Closing Date, whether or not reflected in
Sellers’ books and records and whether or not such incidents or occurrences first became known
following the Closing Date. Purchaser shall be solely liable for (i) all liability associated with
any gift cards issued by Sellers, Hillsborough, and Manchester that are outstanding on the Closing
Date and (ii) all Taxes, liabilities and obligations arising from ownership of the Purchased
Assets, operation of the Business and incidents and occurrences beginning on the first day
following the Closing Date and thereafter (the “Assumed Liabilities”).



     2.5 Contract Matters.




     (a) From the date hereof through the Closing Date, Purchaser or its designee shall have
the right in its sole discretion to remove the Real Estate Lease and the Franchise Agreement
for the Woodbridge Location from Schedule 2.1(b), in which case Schedule
2.1(b) shall be amended to remove such Contracts as Assigned Contracts. Any Contract
removed from Schedule 2.1(b) shall become an Excluded Asset and shall not be an
Assigned Contract for all purposes of this Agreement and all liabilities and obligations
under such Contract shall constitute Excluded Liabilities for all purposes.




     (b) Sellers may in their sole and absolute discretion, subject to applicable Law,
assume, assign, or reject any Contract other than an Assigned Contract at any time,
provided, however, that in the event Sellers intend to do so prior to the Closing Date,
Sellers shall notify Purchaser of such intent and Purchaser shall have two (2) Business Days
to agree to treat said Contract as an Assigned Contract. In the event Purchaser does not
agree in writing to treat said Contract as an Assigned Contract within said period, Sellers
may assume, assign, or reject such Contract in their sole and absolute discretion at any
time.




     (c) Except as otherwise provided in Section 3.1 below, on the Closing Date or as soon
thereafter as reasonably practicable, Sellers shall pay, from the Purchase Consideration,
the appropriate Cure Amount to each counterparty to an Assigned Contract.



     2.6 Assignment of Purchased Assets. To the maximum extent permitted by the
Bankruptcy Code, the Purchased Assets that constitute Assigned Contracts shall be assumed and
assigned to Purchaser pursuant to Section 365 of the Bankruptcy Code as of the Closing Date or such
other date as specified in the Sale Order or in this Agreement, as applicable.



     2.7 Further Assurances. Sellers and Purchaser shall use commercially reasonable
efforts to take, or cause to be taken, all appropriate action, including executing and delivering
such documents and other papers, as may be required to consummate the transactions contemplated by
this Agreement; provided, however, that nothing in this Section 2.7 shall prohibit any Seller from ceasing
operations or winding up its affairs following the Closing Date.



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Article 3

Purchase Consideration




     3.1 Purchase Consideration. The aggregate consideration for the Purchased Assets
shall be $7,435,000.00 (the “Purchase Consideration”). The Purchase Consideration shall be
payable on the Closing Date as follows:




     (a) $564,402.95 constituting (i) the estimated Cure Amount through and including
January 2010 and seventy-five percent of the estimated Cure Amount for February 2010 owing
in connection with Sellers’ assumption and assignment to Purchaser of the Franchise
Agreements for the Business (excluding the Business for the Woodbridge Location) and (ii)
the post-petition franchise fees for December 2009 and January 2010 and seventy-five percent
of the estimated franchise fees for February 2010 arising from the franchise agreements
between (x) Purchaser and Manchester; (y) Purchaser and Hillsborough; and (z) Purchaser and
Woodbridge, shall be credited to and retained by Purchaser;




     (b) If and only if Purchaser or its designee does not elect to treat the Woodbridge
Location as an Excluded Restaurant, $48,349.94 constituting the estimated pre-petition Cure
Amount owing in connection with Sellers’ assumption and assignment to Purchaser of the
Franchise Agreement for the Business for the Woodbridge Location shall be credited to and
retained by shall be credited to and retained by Purchaser;




     (c) $35,652.78, constituting the maximum, potential (i) additional Cure Amounts owing
to Purchaser in connection with Sellers’ assumption and assignment to Purchaser of the
Franchise Agreements for the Business (including the Business for the Woodbridge Location to
the extent applicable) and (ii) post-petition franchise fees arising from the franchise
agreements between Purchaser and Manchester and Purchaser and Hillsborough (and, to the
extent applicable, between Purchaser and Woodbridge), shall be deposited into a segregated
account until the earlier of (x) Purchaser and Sellers entering into a written agreement
regarding the allocation of such funds to each; or (y) the entry of a Final Order by the
Bankruptcy Court resolving any dispute between Purchaser and Sellers regarding the
allocation of such funds to each;




     (d) The Cure Amounts, if any, owing in connection with Sellers’ assumption and
assignment to Purchaser of the Real Estate Leases shall be paid (i) from the Purchase
Consideration for that portion of the Cure Amounts attributable to the pre-Closing time
period (the “Seller Cure Amounts”), and (ii) directly and independently by the
Purchaser for that portion of the Cure Amounts arising from and after the Closing (the
“Purchaser Cure Amounts”), which breakdown of Cure Amounts shall be set forth on
Schedule 3.1(d) (to be finalized by mutual agreement of the Sellers and Purchaser
prior to Closing) and be paid to each landlord under the Real Estate Leases (excluding the
Cure Amount owing under the Real Estate Lease for the Woodbridge Location in the event that
Purchaser elects to treat the Woodbridge Location as an Excluded Restaurant); and




     (e) Purchaser shall pay the balance of the Purchase Consideration (the “Cash
Consideration”) to Sellers or Sellers’ designee(s) pursuant to instructions to be provided
by Sellers to Purchaser on or prior to the Closing Date, or otherwise in accordance with any
Final Order entered by the Bankruptcy Court.



     3.2 Disputed Cure Amounts. If, on the Closing Date, any Cure Amount referred to in
Section 3.1(d) is in dispute, Purchaser shall deposit the maximum amount of the alleged Seller Cure
Amount



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(which amount as a percentage of the aggregate maximum alleged Cure Amount shall be
determined with reference to Schedule 3.1(d)) into a segregated account pending the entry of a
Final Order by the Bankruptcy Court resolving such dispute. Within five (5) Business Days
following delivery by Sellers to Purchaser of a Final Order from the Bankruptcy Court approving
resolution of any dispute over the actual or claimed Cure Amount, any amount deemed to be a Cure
Amount shall be credited to and retained by Purchaser or paid directly to each landlord in
accordance with Section 3.1(d) or Order of the Bankruptcy Court and the balance shall be paid to
Sellers or Sellers’ designee(s) in cash pursuant to instructions to be provided by Sellers to
Purchaser.



     3.3 [Intentionally Omitted].



     3.4 Allocation. The Purchase Consideration shall be allocated among the Restaurants
that are not Excluded Restaurants in accordance with Schedule 3.4 attached hereto. Within 30 days
after the Closing Date, Purchaser shall deliver to Sellers a further allocation, taking into
account the per-Restaurant allocations reflected on Schedule 3.4, of the Purchased Assets for tax
purposes, which further allocation shall be subject to the consent of the Sellers (such consent not
to be unreasonably withheld or delayed). Each party agrees that it will adopt and utilize such
allocation for purposes of completing and filing Form 8594 for Federal income tax purposes and no
party hereto will voluntarily take any position inconsistent therewith upon examination of their
respective Federal tax return, in any claim, litigation or otherwise with respect to such tax
return.



Article 4

Closing




     4.1 Closing. The closing (“Closing”) of the transactions contemplated by this
Agreement (the “Contemplated Transactions”) shall take place at such place, date and time as the
parties may mutually agree no later than one (1) Business Day following the date on which the
conditions set forth in Article 9 hereof have been satisfied or waived (other than the conditions
which by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver
of such conditions). The date or time at which the Closing actually occurs is hereinafter referred
to as the “Closing Date”; provided, however, that for purposes of this Agreement, the Closing shall
be effective as of 12:01 a.m. on the Closing Date.



     4.2 Closing Deliveries. At the Closing, and subject to the terms and conditions set
forth in this Agreement, including without limitation the satisfaction or (if permissible) waiver
of the conditions set forth in Article 9 hereof, the parties agree to consummate the transactions
described below:




     (a) Sellers shall deliver to Purchaser a certified copy of the Sale Order;




     (b) Sellers will assign and transfer to Purchaser good and valid title in and to the
Purchased Assets, free and clear of all Taxes and Encumbrances by delivering to Purchaser a
bill of sale in substantially the form attached as Exhibit A (the “Bill of Sale”),
and Purchaser will assume the Assumed Liabilities by delivering to Sellers an assignment and
assumption agreement in substantially the form attached as Exhibit B (the
“Assignment and Assumption Agreement”);




     (c) Sellers shall deliver a certificate of an authorized officer attaching, for each
Seller, true and correct copies of all Organizational Documents and resolutions of the
directors authorizing the execution and delivery of the Transaction Documents and the
entering into and performance of the Contemplated Transactions;



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     (d) Sellers shall deliver such other assignments, certificates or instruments as may
reasonably be required by Purchaser to effectuate the Contemplated Transactions and to
convey to Purchaser all right, title and interest in and to the Purchased Assets;




     (e) Purchaser will pay the Cash Consideration to Sellers or Sellers’ designee(s) in
accordance with Article 3; and




     (f) Purchaser will pay the Purchaser Cure Amounts to applicable non-Debtor parties in
accordance with Article 3.



     4.3 Transfer of Operations. Purchaser shall be entitled to immediate possession of,
and to exercise all rights arising under, the Purchased Assets from and after the time that the
Business opens for business at 12:01 a.m. on the first day following the Closing Date, and
operation of the Business shall transfer at such time. Except as provided hereby, all profits,
losses, liabilities, claims, or injuries arising before such transfer shall be solely to the
benefit or the risk of Sellers. All such occurrences after transfer shall be solely to the benefit
or the risk of Purchaser. The risk of loss or damage by fire, storm, flood, theft, or other
casualty or cause shall be in all respects upon Sellers prior to such transfer and upon Purchaser
thereafter.



     4.4 Termination. This Agreement may be terminated as follows:




     (a) by mutual consent of Purchaser and Sellers;




     (b) by either Sellers or Purchaser if Purchaser is not approved by the Bankruptcy Court
as the purchaser of the Purchased Assets; or




     (c) by Sellers or Purchaser, respectively, if, prior to the Closing, any condition set
forth herein for the benefit of Sellers or Purchaser, respectively, that cannot be cured
shall not have been timely satisfied or waived by the party that it benefits; or




     (d) by either Sellers or Purchaser if the Closing has not occurred on or prior to March
8, 2010 (the “Closing Deadline”), for any reason other than the delay or nonperformance of
the party or parties seeking such termination; provided, however, that the unavailability of
or the scheduling of a later date by the Bankruptcy Court shall extend the Closing Deadline
to March 15, 2010;


In the event of termination of this Agreement, each party will return to the other all documents
and materials obtained from the other in connection with the Contemplated Transactions, and will
not use and will keep confidential all confidential information about the other party obtained
pursuant to this Agreement. Termination of this Agreement shall not in any way terminate, limit or
restrict the rights and remedies of the non-breaching party against the party who has violated,
breached or failed to satisfy any of the agreements, covenants, representations, warranties,
conditions or other provisions of this Agreement prior to the termination hereof. Termination of
this Agreement shall terminate all obligations of the parties hereunder, except for the obligations
under this Section, Sections 8.1, 8.8, 10.5 and Section 10.10, and such termination shall not
constitute a waiver of any rights of any agreement or covenant in this Agreement occurring prior to
such termination. Notwithstanding anything contained in this Section 4.4 or otherwise provided
herein, in the event Purchaser breaches its obligation to close, Seller shall have all of its
remedies at law and equity, including the right to seek damages.




Article 5

Representations and Warranties of Sellers






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     Sellers hereby represent and warrant to Purchaser, as of the Effective Date and as of the
Closing Date, as follows:



     5.1 Organization; Good Standing, Etc. NC BBQ is a corporation, and each of the
remaining Sellers is a limited liability company, in each case duly organized, and each Seller is
validly existing and in good standing under the Laws of the State of Delaware, and, subject to any
necessary approval of the Bankruptcy Court, each has the requisite corporate or limited liability
company power and authority to carry on its business as it is now being conducted and as it is
proposed to be conducted after the transactions contemplated by this Agreement.



     5.2 Business Activities; Subsidiaries. Sellers have performed all acts necessary to
operate the Business under applicable Law.



     5.3 Authority. Subject to entry of the Sale Order, the Transaction Documents to which
each Seller is a party have been (or shall be as of the Closing Date) duly authorized by all
necessary action of the board of directors of the Sellers, are duly executed and delivered by
authorized individuals or officers, as applicable, are valid and binding agreements on the part of
Sellers and are enforceable against Sellers in accordance with their respective terms.



     5.4 Restrictive Covenants. Except for the Franchise Agreements and the credit
agreement with Wells Fargo Bank, N.A., no Seller is a party to, nor are the Purchased Assets bound
or affected by, any agreement or document containing any covenant limiting any Seller’s freedom to
compete in any line of business or which materially or adversely affects the business practices,
operations or conditions of the Business or the continued operation of the Business after the
Closing Date on substantially the same basis and on substantially the same terms and conditions as
the Business is presently carried on.



     5.5 Actions, Suits and Proceedings. Other than the Bankruptcy Cases and all claims
asserted therein, or as otherwise set forth on Schedule 5.5, there are no actions, suits or
proceedings pending or threatened against Sellers or any of the Purchased Assets in any court or
before any federal, state, municipal or other governmental agency or before any other private or
public tribunal or quasi-tribunal which, (a) if decided adversely to Sellers, would have a
materially adverse effect upon the Business or Assets, (b) seek to restrain or prohibit the
Contemplated Transactions or obtain any damages in connection therewith, or (c) in any way call
into question the validity of this Agreement or the other Transaction Documents to be executed and
delivered by Sellers. Except as set forth on Schedule 5.5, no Seller is in default with
respect to any order of any court or governmental agency entered against it in respect of the
Business or the Purchased Assets.



     5.6 No Material Violations. Except as set forth in Schedule 5.6 hereto, no
Seller is in violation of any applicable Law, rule or regulation relating to the Business that
would reasonably be expected to have a material adverse effect on the Business, and, to the
knowledge of Sellers, there are no requests, claims, notices, investigations, demands,
administrative proceedings, hearings or other governmental claims against any Seller alleging the
existence of any such violation. Sellers have maintained all governmental licenses and permits
necessary to operate the Business and is in material compliance with all such licenses and permits.



     5.7 Title; Encumbrances. Except as set forth in Schedule 5.7, Sellers have
good and marketable title to all property included in the Purchased Assets. Subject to the Sale
Order, immediately after the Closing Date, Purchaser will own all of the rights, title and interest
in and to the Purchased Assets, free and clear of all Taxes and Encumbrances.



11









 





     5.8 Inventory Level. Sellers shall maintain an inventory level sufficient to run the
Business in the ordinary course.



     5.9 Assigned Contracts. Except as set forth on Schedule 5.9 hereto, Sellers
and, to the knowledge of Sellers, each other party thereto, has performed all obligations required
to be performed under the Assigned Contracts to date, and are not in default under any Assigned
Contract. The Assigned Contracts are each in full force and effect and are assignable to Purchaser
without the consent of third parties (other than the Bankruptcy Court), and Sellers have not waived
or assigned to any other person any of its rights thereunder. True, correct and complete copies of
all Assigned Contracts, including all amendments or supplements thereto, have been delivered to
Purchaser. All amounts due up through and including the Effective Date under each of the Assigned
Contracts have been paid or will be paid pursuant to the Sale Order, and all amounts due up through
the Closing Date under each of the Assigned Contracts have been timely paid by Sellers as of the
Closing Date or will be paid pursuant to the Sale Order. No Assigned Contract shall prohibit or
limit the ability of Purchaser to engage in any business activity or compete with any person in
connection with the Business and/or other activities of the Purchaser.



     5.10 Taxes. Except as set forth in Sellers’ schedules filed in the Bankruptcy Cases,
Sellers have paid all Taxes, including federal, state and local income, profits, franchise, sales,
use, property, excise, payroll, withholding, unemployment and other taxes and assessments
(including interest and penalties) relating to or for Sellers, the Purchased Assets or the
Business, in each case to the extent that such have become due and are not being contested in good
faith. No audits, suits, actions, claims, investigations, inquiries, or proceedings are pending
with respect to any tax liabilities of Sellers. All applicable sales and use Taxes shall be paid
out of the proceeds of the sale as an allowed administrative claim in the Bankruptcy Cases,
pursuant to Sections 503(b) and 507(a)(2) of the Bankruptcy Code.



     5.11 Labor and Employment Agreements. Sellers represent and warrant that no Seller is
a party to any collectively bargained agreements with any union, collective bargaining agent or
other entity regarding Sellers’ Employment Obligations and/or Sellers’ employees. Additionally, no
Seller is a party to any other material written or oral agreement with any person that would
provide one or more of Sellers’ employees with rights to employment, severance pay, profit sharing,
deferred compensation, bonuses, stock options, stock-purchase rights, pensions, retainers,
consulting rights or payments, retirement plans, health care rights (including without limitation,
dental care), vacation benefits, sick leave benefits, incentive pay, holiday leave, salary
continuation for any reason, and/or other rights or benefits of employment. Further, Sellers
represent and warrant that no Seller is a party to any other plan, agreement, arrangement or
commitment to provide benefits of any type to any of Sellers’ employees or independent contractors.
Specifically, but without limiting the breadth of the foregoing representations and warranties,
Sellers represent and warrant that:




     (a) Except as set forth in Sellers’ schedules filed in their Bankruptcy Cases, Sellers
have complied in all material respects with all applicable Laws, rules and regulations
relating to the employment of their employees, the Sellers’ Employment Obligations and the
termination of any of Sellers’ employees, including but not limited to those relating to
wages, hours, and the payment and withholding of taxes and other sums as required by
appropriate governmental authorities;




     (b) No trade union, council of trade unions, affiliated bargaining agency, employee
bargaining agency or labor organization has bargaining rights, or has claimed to have
bargaining rights, on behalf of any of Sellers’ present or former employees;




     (c) Seller is not aware of any person who has asserted any charge, complaint, claims or
demands against any Seller related to that person’s present or former employment with such



12









 







Seller, including without limitation any claims for discrimination, harassment,
retaliation, breach of any contract, breach of any duty of good faith and fair dealing,
breach of any duty allegedly owed by such Seller, invasion of privacy, interference with
contract or with prospective business advantage, or any other state, local or federal common
Law claim or cause of action; and




     (d) No Seller is aware of any present or former employee who is or has within the past
three years violated any covenant not to compete with any Seller, any agreement to maintain
the confidentiality of Sellers’ Business information, and/or any violation of any duty owed
by the present or former employee to any Seller.



     5.12 Pension and Welfare Plans.




     (a) Sellers represent and warrant that there are no employee-benefit plans, as defined
in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), including without limitation each group insurance and self-insured health plan,
severance-pay plan, non-qualified deferred-compensation plan and retirement plan intended to
be qualified under Code Section 401(a), and that is maintained or contributed to by Sellers
for their employees engaged in the operation of the Business, former employees of the
Business and/or dependents and beneficiaries of such employees and/or former employees
(collectively, the “ERISA Plans”); and each trust fund maintained by the Sellers or any
subsidiary in connection with any such ERISA Plan; and




     (b) Except as described in Schedule 5.12, no Seller maintains any group life
insurance or health-benefit coverage for former employees or directors of Sellers, other
than group life insurance or health-benefit coverage mandated by applicable Law. Sellers
have timely complied with all of its “COBRA” obligations under ERISA Section 602, Code
Section 4980B and applicable state insurance Laws.



     5.13 Environmental Matters. To the best of Sellers’ knowledge, Sellers are, and at
all times have been, in full compliance with, and have not been in violation of or liable under,
any Environmental Law (as defined below) such that non-compliance or violation would reasonably be
expected to have a materially adverse effect on the Business or the Purchased Assets. Sellers have
no basis to expect, nor has any Seller received, any actual or threatened order, notice or other
communication from any governmental agency, office or body, or any private citizen, acting in the
public interest, or the current or prior owner or operator of any building in which Sellers conduct
the Business, of any actual or potential violations or failure to comply with any Environmental
Law. Sellers hold all Environmental Permits (as defined below) necessary for operating the
Business and Sellers are in material compliance with all applicable Environmental Permits. All
Hazardous Materials and Solid Waste (as each is defined below) on or in the Business have been
properly removed and disposed of, and to Sellers’ knowledge no past or present disposal, discharge,
spill, or other release of, or treatment, transportation, or other handling of Hazardous Materials
or Solid Waste on, in, or off-site from the Business will subject Purchaser, or any subsequent
owner, occupant, or operator of the Business, to corrective or compliance action or any other
liability. For purposes of this Agreement, the term “Environmental Law” shall mean any legal
requirement that requires or relates to: (a) advising appropriate authorities, employees and/or
the public of intended or actual releases of pollutants or hazardous substances or materials,
violations of discharge limits or other prohibitions, and the commencement of activities, such as
resource extraction or construction, that could have a significant impact on the environment; (b)
preventing or reducing to acceptable levels the release or existence of pollutants or hazardous
materials or substances in the environment; (c) reducing the quantities, preventing the release or
minimizing the hazardous characteristics of wastes that are generated; (d) assuring that products
are designed, formulated, packaged and used so that they do not present unreasonable risks to human
health or the environment when used or



13









 




disposed of; (e) protecting resources, species or ecological amenities; (f) reducing to
acceptable levels the risks inherent in the transportation of hazardous substances, pollutants or
other potentially harmful substances; (g) cleaning up pollutants that have been released,
preventing the threat of release, or paying the costs of such clean up or prevention; or (h) making
responsible parties pay private parties or groups of private parties for damages done to their
health or the environment, or permitting self-appointed representatives of the public interest to
recover for injuries done to public property or assets. “Environmental Permits” shall mean all
permits, licenses, certificates, approvals, authorizations, regulatory plans or compliance
schedules required by applicable Environmental Laws, or issued by a governmental entity pursuant to
applicable Environmental Laws, or entered into by agreement of the party to be bound, relating to
activities that affect the environment, including without limitation, permits, licenses,
certificates, approvals, authorizations, regulatory plans and compliance schedules for air
emissions, water discharges, pesticide and herbicide or other agricultural chemical storage, use or
application, and Hazardous Material or Solid Waste generation, use, storage, treatment and
disposal. “Hazardous Material” shall mean all substances and materials designated as hazardous or
toxic as of the date hereof pursuant to any applicable Environmental Law. “Solid Waste” shall mean
any garbage, refuse, sludge from a waste treatment plant, water supply treatment plan, or air
pollution control facility, and other discarded material, including solid, liquid, semisolid, or
contained gaseous material resulting from industrial, commercial, mining, and agricultural
operations, and from community activities.




     5.14 Insurance Coverage. Sellers have policies of fire, liability, workers
compensation, health and other forms of insurance presently in effect with respect to the Business
and the Purchased Assets. All such policies are valid, outstanding and enforceable policies and
provide insurance coverage for the properties, assets and operations of Sellers, of the kinds, in
the amounts and against the risks provided for in such policies (which amounts and risks covered
are reasonable for Sellers’ business); and no such policy provides for or is subject to any
currently enforceable retroactive rate or premium adjustment, loss sharing arranging or other
actual or contingent liability arising wholly or partially out of events arising prior to the date
hereof. No notice of cancellation or termination has been received with respect to any such
policy, and no Seller has knowledge of any act or omission of any Seller which could result in
cancellation of any such policy prior to its scheduled expiration date. No Seller has been refused
any insurance with respect to any aspect of the operations of the Business nor has any such
coverage been limited by any insurance carrier to which it has applied for insurance or with which
it has carried insurance during the last three years. Sellers have duly and timely made all claims
it has been entitled to make under each policy of insurance. Copies of such policies and any and
all information with respect to such policies requested by Purchaser shall be made available to
Purchaser upon Purchaser’s request. All such policies provide “occurrence” as opposed to “claims
made” coverage, and provide that they will remain in full force and effect through the Closing
Date.



     5.15 Disclosure. The representations and warranties contained in this Article 5 do
not contain any untrue or misleading statement of a material fact or omit to state any material
fact necessary in order to make the statements and information contained in this Article 5 not
misleading.



     5.16 Warranties Exclusive. The Purchaser acknowledges that the representations and
warranties contained in Article 5 are the only representations and warrants given by Sellers and
that all other express and implied warranties are disclaimed. Without limiting the foregoing and
except as otherwise provided in this Agreement and without waiving any defenses to liability under
any Law, Purchaser acknowledges that the Purchased Assets are conveyed “AS IS”, “WHERE IS” and
“WITH ALL FAULTS” and that all warranties of merchantability or fitness for a particular purpose
are disclaimed. WITHOUT LIMITING THE FOREGOING, THE PURCHASER ACKNOWLEDGES THAT THE SELLERS HAVE
MADE NO REPRESENTATION OR WARRANTY CONCERNING (A) ANY USE TO WHICH THE PURCHASED ASSETS MAY BE PUT,
(B) ANY FUTURE REVENUES, COSTS, EXPENDITURES, CASH FLOW, RESULTS OF OPERATIONS, FINANCIAL CONDITION



14









 




OR PROSPECTS THAT MAY RESULT FROM THE OWNERSHIP, USE OR SALE OF THE PURCHASED ASSETS OR THE
ASSUMPTION OF THE ASSUMED LIABILITIES, (C) ANY OTHER INFORMATION OR DOCUMENTS MADE AVAILABLE TO THE
PURCHASER (OR RELATED PERSONS), OR (D) EXCEPT AS EXPRESSLY SET FORTH IN ARTICLE 5, THE CONDITION OF
THE PURCHASED ASSETS, INCLUDING, WITHOUT LIMITATION, COMPLIANCE WITH ANY ENVIRONMENTAL LAWS OR
OTHER LAWS. “Related Person” means, with respect to the parties hereto, any officer, director,
employee, agent, shareholder, representative, successor or assign of such party.




Article 6

Representations and Warranties of Purchaser




     Purchaser represents and warrants to Sellers as follows:



     6.1 Organization. Purchaser is a corporation validly existing, and in good standing
under the Laws of the State of Minnesota. Purchaser has the requisite power and authority to own
or lease and to operate and use its properties and to carry on its business as now conducted.



     6.2 Authority; Validity. Purchaser has the requisite power and authority necessary to
enter into and perform its obligations under this Agreement and the Transaction Documents to which
Purchaser is a party and to consummate the transactions contemplated hereby and thereby. The
execution, delivery and performance by Purchaser of this Agreement and the Transaction Documents to
which it is a party have been duly and validly authorized by all requisite action on the part of
Purchaser. This Agreement has been duly and validly executed and delivered by Purchaser and each
Transaction Document to which Purchaser is a party will be duly and validly executed and delivered
by Purchaser. This Agreement constitutes, and upon execution and delivery by Purchaser, each
Transaction Document to which Purchaser is a party will constitute, the legal, valid, and binding
obligations of Purchaser, enforceable against Purchaser in accordance with their respective terms,
except in each case as such enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium, or similar Laws now or hereafter in effect relating to creditors’ rights generally or
general principles of equity.



     6.3 Consents. Purchaser is not required to give any notice to, make any filing with,
or obtain any consent from any Person in connection with the execution and delivery of this
Agreement and the Transaction Documents or the consummation or performance of any of the
transactions contemplated hereby and thereby.



     6.4 No Conflict. The execution and delivery of this Agreement and the Transaction
Documents by Purchaser and the consummation of the transactions contemplated hereby and thereby
will not breach any of the terms of, or constitute a default under, or conflict with, or cause any
acceleration of any obligation of Purchaser under (a) the Organizational Documents of Purchaser,
(b) any contract or agreement with respect to which Purchaser is a party or otherwise bound, (c)
any Order applicable to Purchaser, or (d) any Law.



     6.5 Availability of Funds. Purchaser has sufficient cash in immediately available
funds to satisfy all of its obligations hereunder so as to permit Purchaser to consummate the
Contemplated Transactions contemplated by this Agreement and the Transaction Documents.



     6.6 Litigation. There are no proceedings pending or, to the knowledge of Purchaser,
threatened that would affect Purchaser’s ability to perform its obligations under this Agreement or
any Transaction Documents or to consummate the transactions contemplated hereby or thereby.



15









 





     6.7 Brokers or Finders. Neither Purchaser nor any Person acting on behalf of
Purchaser has paid or become obligated to pay any free or commission to any broker, finder,
investment banker, agent or intermediary for or on account of the transactions contemplated by this
Agreement for which Sellers are or will become liable.



     6.8 Assigned Contracts. Purchaser is and will be capable of satisfying the conditions
contained in Section 365(f)(2)(B) of the Bankruptcy Code with respect to the Assigned Contracts and
shall, consistent with Section 9.2, cooperate with Sellers to provide proof of such capability as
is necessary to satisfy counterparties to such Assigned Contracts or to satisfy the Bankruptcy
Court.



Article 7

Actions Prior to the Closing Date




     7.1 Operations Prior to the Closing Date. From and after the Effective Date through
the Closing, except as expressly contemplated by this Agreement or with the prior written consent
of Purchaser (which consent shall not be unreasonably withheld or delayed), or as otherwise
required by Law:




     (a) Sellers shall, subject to Sellers’ obligations and duties as debtors in possession
and except as may be necessary or required in connection with the Bankruptcy Cases:




     (i) use reasonable efforts to carry on the Business in the ordinary course
(provided that nothing herein shall prohibit Sellers from closing any Restaurant
that has been designated an Excluded Restaurant pursuant to this Agreement);




     (ii) use reasonable efforts to retain employees necessary to conduct the
Business as it is currently being conducted; provided, however, notices required
under applicable federal and state law may be given to employees;




     (iii) use reasonable efforts to comply in all material respects with all Laws
with respect to the conduct of the Business; and




     (iv) use reasonable efforts to comply in all material respects with contractual
obligations under the Assigned Contracts (excluding only the monetary obligations
under the Franchise Agreements which, except for any Franchise Agreement for an
Excluded Restaurant, shall be paid or escrowed from the sale proceeds as the Cure
Amount for such Franchise Agreement being assumed and assigned at Closing in
accordance with the terms hereof).




     (b) Sellers shall not:




     (i) other than sales in the ordinary course of business and other than the
incurrence of Encumbrances permitted to any debtor-in-possession financing of
Sellers or Order of the Bankruptcy Court authorizing Sellers’ use of cash
collateral, sell, lease, transfer or otherwise dispose of, or mortgage or pledge, or
voluntarily impose or suffer to be imposed, any Encumbrance on any of the Purchased
Assets;




     (ii) amend any of the Assigned Contracts other than non-material amendments
made in the ordinary course or amendments accepted by Purchaser in writing; or



16









 






     (iii) enter into any agreement or commit to any action prohibited by this
Section 7.1.



     7.2 Reasonable Efforts.




     (a) Each of Sellers and Purchaser shall use their respective commercially reasonable
efforts to take, or cause to be taken, all actions and do, or cause to be done, and to
assist and cooperate with the other in the doing all things necessary, proper, or advisable
to consummate, in the most expeditious manner practicable, the Contemplated Transactions,
including, without limitation, using commercially reasonable efforts to: (i) cause the
conditions precedent set forth in Article 9 to be satisfied; and (ii) obtain Bankruptcy
Court approval of the Sale Order.




     (b) Subject to any restrictions under applicable Laws, Sellers and Purchaser (i) shall
promptly inform each other of any communication from any Governmental Authority concerning
this Agreement, the transactions contemplated hereby, and any filing, notification, or
request for approval and (ii) shall permit the other to review in advance any proposed
written or material oral communication or information submitted to any such Governmental
Authority in response thereto.



     7.3 Access Rights Prior to Closing. From the date that a Sale Order is entered by the
Bankruptcy Court through the Closing, Purchaser shall have all access to the Business reasonably
necessary to accomplish the transition of management, including, but not limited to, access to the
Premises, the right to observe operations, and the right to communicate with employees.



     7.4 Bankruptcy Court Approval. Sellers and Purchaser acknowledge that this Agreement
and the consummation of the transactions contemplated hereby are subject to Bankruptcy Court
approval. Sellers and Purchaser acknowledge that (i) each must comply with the Sale Procedures
Order, and (ii) Purchaser must provide adequate assurance of future performance within the meaning
of Section 365(f)(2)(B) of the Bankruptcy Code with respect to the Assigned Contracts. With
respect to each Assigned Contract, Purchaser shall provide adequate assurance as required under the
Bankruptcy Code of the future performance by Purchaser of each Assigned Contract. Purchaser agrees
that it will promptly take all actions reasonably required to assist in obtaining a Bankruptcy
Court finding that there has been an adequate demonstration of adequate assurance of future
performance under the Assigned Contracts, such as furnishing timely requested and factually
accurate affidavits, non-confidential financial information, and other documents or information for
filing with the Bankruptcy Court.



     7.5 Sale Order. Sellers will use their commercially reasonable efforts to consummate
the transactions contemplated hereby by seeking, with one or more appropriate motion or motions and
the entry of appropriate Orders of the Bankruptcy Court (all such motions and Orders being in form
and substance reasonably satisfactory to Purchaser), such Orders, among other things approving this
Agreement and the purchase of the Purchased Assets by Purchaser, free and clear of all Taxes and
Encumbrances, and the assumption of the Assumed Liabilities pursuant to Section 363(b), (f), (l),
and (m) and Section 365 of the Bankruptcy Code (the “Sale Order”). The Sale Order will be in a
form and of a substance agreeable to Sellers and Purchaser in their reasonable respective
discretion.



     7.6 [Intentionally Omitted].



     7.7 Notice of Developments. Sellers shall give prompt written notice to Purchaser
upon obtaining knowledge (i) of any development constituting a material adverse effect on the
Business, (ii) that any representation or warranty made by Sellers herein was untrue or inaccurate
as of the date hereof, (iii) of any matter or event first arising or occurring after the date
hereof that must be disclosed or



17









 




described in the schedules to this Agreement in order for the representations and warranties
made by Sellers to be true and correct, (iv) of any development materially and adversely affecting
the ability of any Seller to consummate the transactions contemplated by this Agreement, and (v) of
any written notice or other written communication from any Governmental Authority (other than the
Bankruptcy Court) in connection with the transactions contemplated by this Agreement.




     7.8 Communications with Suppliers. Upon request of Purchaser, as soon as reasonably
practicable after the date of the Auction or the date that a motion is filed for a Sale Order,
Sellers will use their reasonable efforts to arrange for discussions between representatives of
Purchaser and material vendors of the Business including, but not limited to, the material vendors
listed on Schedule 7.8.



Article 8

Additional Covenants and Agreements




     8.1 Confidential Information. The parties, including each of the Sellers (whether or
not such Seller is a signatory thereto), hereby agrees to be bound by the terms of that certain
Confidentiality Agreement between Purchaser and NC BBQ dated as of November 20, 2009, which shall
remain in full force in effect and is incorporated herein by reference. Notwithstanding the
preceding sentence, following the Effective Date of this Agreement, Purchaser and Sellers shall be
permitted to issue any press release or report required by applicable law or, with respect to
Purchaser, required or permitted by the rules of the stock exchange on which Purchaser’s securities
are listed for trading, and to provide any notice required under applicable bankruptcy laws.



     8.2 [Intentionally Omitted]



     8.3 Real Estate Lease Amendment. From and after the Effective Date, Sellers shall
cooperate with Purchaser and use their respective commercially reasonable efforts to negotiate and
amend, on terms acceptable to Purchaser in its sole discretion, the Real Estate Lease for the
Restaurant located at the Woodbridge Location (such amendment, in a form reasonably acceptable to
Purchaser in its sole discretion, is referred to herein as the “Lease Amendment”).



     8.4 Labor and Employment Matters. Except as otherwise specifically provided in this
Agreement, Purchaser is not assuming, and shall not assume, any obligations that have or will
accrue to Sellers arising out of Sellers’ employment or retention of any person at any time
(regardless of whether the person was classified as an employee or independent contractor),
including without limitation any wage or salary payment obligations, any obligations arising under
any past or present pension plan, profit-sharing plan, deferred-compensation plan, severance plan,
employee welfare plan, sick leave plan or policy, vacation plan or policy (or any existing
obligation to pay or provide any vacation benefits, wage or other employee-benefit plan or policy,
and/or any obligations arising our of any other formal or informal procedure, policy or practice of
Sellers (“Seller Employment Obligations”) regardless of whether the Seller Employment Obligations
are disclosed by Sellers or otherwise mentioned in this Agreement. Sellers covenant that they will
pay or otherwise satisfy, at or prior to the Closing, all accrued and unpaid (or unsatisfied)
Seller Employment Obligations. Sellers will further comply with all state, federal or local
employee notification Laws or rules, including without limitation the federal Worker Adjustment and
Retraining Notification Act (WARN). Sellers will terminate the employment of all of Sellers’
employees relating to the Business, effective as of 11:59 E.D.T. on the date immediately preceding
the Closing Date. Purchaser may, in its sole and absolute discretion, offer employment to any of
Sellers’ employees or independent contractors immediately at or prior to the Closing, pursuant to
terms determined solely by Purchaser. Upon reasonable prior notice, Sellers will permit Purchaser
to have contact with Sellers’ employees and/or independent contractors. To the extent permitted by
Law, Sellers also agree to provide Purchaser with information in Sellers’ files and records (as
Purchaser may



18









 




reasonably request) regarding Sellers’ employees and/or independent contractors. To the
extent Purchaser retains and employs any of Sellers’ managerial employees, Purchaser shall honor
the accrued vacation benefits for such employees accruing from January 1, 2010 through the Closing
Date.




     8.5 Taxes.




     (a) Any sales Tax, use Tax, or similar Tax attributable to the sale or transfer of the
Purchased Assets and not exempted under applicable Law (“Transfer Taxes”) shall be borne by
Sellers. Sellers and Purchasers shall use commercially reasonable efforts and cooperate to
exempt the sale and transfer of the Purchased Assets from any Transfer Taxes.




     (b) Subject to Section 9.4(a) hereof, Purchaser shall be liable for the payment of any
and all personal property Taxes with respect to the Purchased Assets for any Tax period
during which the Closing Date falls and shall be entitled to a credit against the Cash
Consideration for the portion of such Taxes accruing prior to the Closing Date, which shall
be pro rated using the amount of the property Tax assessment for such Purchased Asset for
such Tax period, if available, or if otherwise based on the property Taxes paid with respect
to such Purchased Asset during the preceding Tax year. With respect to any Taxes that are
delinquent as of the Closing Date, the amount of which is known and not subject to dispute,
Purchaser shall pay the delinquent amount of such Taxes directly to the applicable
Governmental Authority at the Closing.




     (c) Purchaser and Sellers agree to furnish or cause to be furnished to each other, upon
request, as promptly as practicable, such information and assistance relating to the
Business and the Purchased Assets as is reasonably necessary for the filing of all tax
returns, the making of any election relating to Taxes, the preparation for any audit by an
taxing authority, the prosecution or defense of any claims, suit or proceeding relating to
any Tax.



     8.6 Casualty. If, prior to the Closing, all or any material portion of the Purchased
Assets is destroyed by fire or other casualty, Purchaser may elect to:




     (a) terminate this Agreement, whereupon no party shall have any further obligation to
any other hereunder; or




     (b) purchase the Purchased Assets notwithstanding any such destruction and reduce the
consideration payable by Purchaser hereunder in an amount equal to all costs necessary to
restore the Purchased Assets to their original condition prior to the casualty.



     Sellers shall be entitled to retain all insurance proceeds, awards, and other amounts paid or
payable to Sellers by any insurance company, Governmental Authority, or other Person by reason of
the destruction of the Purchased Assets.



     8.7 Sellers’ Payroll Obligations. As of the Closing Date, Sellers shall have paid all
payroll obligations owing to all employees of the Restaurants (except for the Excluded Restaurants)
up to and including the Closing Date. To the extent any such payroll obligations remain unpaid as
of the Closing Date, Sellers agree to pay such obligations from the proceeds of the sale as an
allowed administrative claim in the Bankruptcy Cases, pursuant to Sections 503(b) and 507(a)(2) of
the Bankruptcy Code.



     8.8 Gift Cards. Purchaser agrees that it will not assert any claim against any of the
Sellers, Hillsborough or Manchester in their Bankruptcy Cases in connection with or arising out of
gift cards issued by any of the Sellers, Manchester or Hillsborough and redeemed by any Person
after the Closing Date.



19









 





     8.9 Satisfaction of Claims. Purchaser agrees that, upon payment of the Purchase
Consideration in accordance with Section 3.1, Sellers, Manchester, and Hillsborough will be deemed
to have satisfied in full any claims Purchaser may hold against such entities as of the Closing
Date (except any claims solely arising from and in connection with this Agreement), and Purchaser
agrees that it will not file or otherwise assert (i) any claims against the Sellers (including
Woodbridge, if Purchaser does not elect to treat the Woodbridge Location as an Excluded Restaurant)
and (ii) any claims arising on or before the Closing Date against Manchester and Hillsborough (and
Woodbridge, if the Woodbridge Location is or becomes an Excluded Restaurant) in the Bankruptcy
Cases.



Article 9

Conditions to Closing




     Purchaser’s obligations to consummate the Contemplated Transactions are subject to the
satisfaction of each of the following conditions prior to or at the Closing, unless specifically
waived in writing by Purchaser in advance:



     9.1 Representations and Covenants. The representations and warranties of Sellers
contained in this Agreement shall be true and correct in all material respects as of the date of
this Agreement, and as of the Closing Date as though the Closing Date had been substituted for the
date of this Agreement throughout such representations and warranties (except that any
representation or warranty made as of a specified date other than the date hereof need only be true
as of such date), and Sellers shall have delivered to Purchaser a certificate of an officer of each
Seller, as contemplated by Section 4.2(c), to such effect. Sellers shall have duly performed and
complied with all covenants and agreements and satisfied all conditions required by this Agreement
to be performed, complied with or satisfied by Sellers prior to or at the Closing.



     9.2 Approval of the Bankruptcy Court. Sellers shall have obtained entry of the Sale
Order, the effectiveness of which has not been stayed by the Bankruptcy Court.



     9.3 Third Party Consents and Approvals. Sellers shall have obtained all third-party
consents necessary to consummate the Contemplated Transactions, excluding only liquor licenses.



     9.4 Operation of Business. Sellers shall have, through the Closing Date, operated the
Business in the ordinary course of business in conformity with its past practices and in compliance
with the terms and conditions of the Franchise Agreements; and



     9.5 Optional Lease Amendment. With respect to the Woodbridge Location and only in the
event that Sellers have entered into a Lease Amendment with the landlord for the Woodbridge
Location, Sellers shall have delivered to Purchaser this Lease Amendment.



Article 10

General Provisions




     10.1 Assignment. Purchaser may assign any or all of its rights under this Agreement
to any affiliate of Purchaser upon written notice to Sellers of such assignment. Other than an
assignment by Purchaser to an affiliate, neither Purchaser nor any Seller may assign any of their
respective rights under this Agreement without the prior written consent of the other party. The
terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto, their successors and permitted assigns, and no person, firm or corporation other
than the parties, their successors and assigns, shall acquire or have any rights under or by virtue
of this Agreement.



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     10.2 Further Assurances. Notwithstanding any provision herein to the contrary,
without further consideration, Sellers, as authorized by the Bankruptcy Court, shall execute and
deliver to Purchaser such further instruments of sale, transfer, conveyance, assignment and
confirmation, as shall be helpful, necessary, and/or appropriate to effectuate the terms of this
Agreement, including the transfer of the Purchased Assets, regardless of whether or not such
documents are prepared as of the Closing Date. 



     10.3 Non-Survival. No representation or warranty contained herein or in the
Transaction Documents shall survive the execution and delivery of this Agreement and the
consummation of the Contemplated Transactions.



     10.4 Entire Agreement. This Agreement, the exhibits and schedules attached hereto and
the agreements and instruments referred to hereby, constitute the entire agreement and
understanding among Sellers and Purchaser with respect to the sale and purchase of the Purchased
Assets and the other Contemplated Transactions. The parties hereby agree that all prior
representations, understandings and agreements between the parties with respect to the sale and
purchase of the Purchased Assets, and the other Contemplated Transactions, are superseded by the
terms of this Agreement.



     10.5 Choice of Law; Venue. This Agreement shall be construed and interpreted in
accordance with the Laws of the State of New York, without regard to its conflicts-of-law
provisions, as though all acts and omissions related to this Agreement occurred in the State of New
York. All disputes related to or arising under this Agreement including, but not limited to, any
disputes relating to claims arising under section 365 of the Bankruptcy Code, shall be subject to
the exclusive jurisdiction of the Bankruptcy Court. Each party hereby (i) waives any objection
which it might have now or hereafter to the foregoing venue of any such litigation, action or
proceeding, (ii) irrevocably submits to the exclusive jurisdiction of any such court set forth
above in any such litigation, action or proceeding, and (iii) waives any claim or defense of
inconvenient forum. Each party hereby consents to service of process by registered mail, return
receipt requested, at such party’s address set forth in this Agreement (as modified by written
notice of a party from time to time) and hereby expressly waives the benefit of any contrary
provision of Law.



     10.6 Injunctive Relief. The parties hereto acknowledge and agree that the other
parties would be damaged irreparably in the event any of the provisions of this Agreement are not
performed substantially in accordance with their specific terms. Accordingly, each of the parties
agrees that the other parties shall be entitled to injunctive relief to prevent breaches of this
Agreement and to enforce specifically the substantial performance of this Agreement.



     10.7 No Consequential Damages. Except as prohibited by Law, Purchaser waives any
right it may have to claim or recover any special, exemplary, punitive or consequential (including
business interruption) damages, or any damages other than, or in addition to, actual damages.



     10.8 Waiver. At any time prior to Closing, Purchaser and Sellers may (a) extend the
time for the performance of any of the obligations or other acts of the other party hereto, (b)
waive any inaccuracies in the representations and warranties of the other party contained herein or
in any document delivered pursuant hereto, and (c) waive compliance with any of the obligations of
the other party or any conditions to its own obligations contained herein to the extent permitted
by Law. Any agreement on the part of Purchaser, on the one hand, and Sellers, on the other hand,
to any such extension or any waiver shall be valid only if set forth in an instrument in writing
signed on behalf of the party against which it is to be enforced. The failure of a party to
exercise any right or remedy shall not be deemed or constitute a waiver of such right or remedy in
the future. No waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other similar or dissimilar provision hereof, nor shall any such waiver
constitute a continuing waiver unless otherwise expressly provided.



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     10.9 Severability. The provisions of this Agreement shall, where possible, be
interpreted so as to sustain their legality and enforceability, and for that purpose the provisions
of this Agreement shall be read as if they cover only the specific situation to which they are
being applied. The invalidity or unenforceability of any provision of this Agreement in a specific
situation shall not affect the validity or enforceability of that provision in other situations or
of other provisions of this Agreement.



     10.10 Expenses. Except as otherwise expressly provided in this Agreement, each Seller
and Purchaser shall each pay their own respective costs and expenses in connection with this
Agreement and the Contemplated Transactions, including without limitation any finder’s fees,
brokerage, legal, tax, and advisory fees and expenses, or other commission arising by reason of any
services rendered or alleged to have been rendered to such party in connection with this Agreement
or the Contemplated Transactions.



     10.11 Counterparts. This Agreement may be executed in counterparts, each of which
shall be considered an original, and signatures for this Agreement may be delivered by facsimile or
other means of electronic transmission, and any such signature shall be considered valid and
binding to the same extent as delivered original signatures.



     10.12 Notices. All notices given pursuant to this Agreement shall be delivered in
writing by overnight courier or sent by United States registered mail, postage prepaid, addressed
as set forth below:



	 	 	 
	If to Purchaser:

	 	Famous Dave’s of America, Inc.

Attn: Chief Financial Officer

12701 Whitewater Drive, Suite 200

Minnetonka, MN 55343
	 
	 	 
	with a copy to:

	 	Maslon Edelman Borman & Brand, LLP

c/o William M. Mower, Esq.

90 South Seventh Street, Suite 3300

Minneapolis, MN 55402
	 
	 	 
	If to Sellers:

	 	North Country BBQ Ventures, Inc.

c/o David Reilly

571 Central Avenue

New Providence, NJ 07974
	 
	 	 
	with a Copy to:

	 	Crowell & Moring LLP

c/o Mark S. Lichtenstein, Esq.

590 Madison Avenue, 20th Floor

New York, NY 10022





All notices shall be deemed to have been duly given (a) if and when delivered in person, (b) four
(4) days after being mailed by United States registered mail, postage prepaid, or (c) one (1)
Business Day after deposit with an overnight courier and sent prepaid for next Business Day
delivery, in each case to each other party hereto at the addresses set forth above (or to such
other addresses as any such party may designate in writing in accordance with this Section 10.12).




     10.13 Schedules and Exhibits. Sellers and Purchaser acknowledge and agree that the
form of the Schedules and Exhibits attached hereto are in final form; provided, however, that at
anytime prior to the Closing, Purchaser may in its sole discretion make any modifications
reasonably necessary for purposes of excluding the Franchise Agreement and the Real Estate Lease
for the Woodbridge Location from the list of contracts to be assumed and assigned to Purchaser or
its designee pursuant to the Sale



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Order and this Agreement. In the event Purchaser or its designee makes such election, neither
Purchaser nor its designee shall be responsible for any obligations of Sellers owing under the
Franchise Agreement or the Real Estate Lease for the Woodbridge Location at anytime.




Signature Page Follows






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     In Witness Whereof, the parties have caused this Amended and Restated Asset Purchase
Agreement to be executed and delivered by their duly authorized officers effective as of the date
first above written.



	 	 	 	 	 
	 	SELLERS:



North Country BBQ Ventures, Inc.,

a Delaware corporation

 	 
	 	By:  	/s/ David A. Reilly
 	 
	 	 	David A. Reilly 	 
	 	 	Its Chief Financial Officer 	 
	 
	 	North Country BBQ Ventures (Smithtown), LLC

a Delaware limited liability company

By North Country BBQ Ventures, Inc.,

its Managing Member

 	 
	 	By:  	/s/ David A. Reilly
 	 
	 	 	David A. Reilly 	 
	 	 	Its Chief Financial Officer 	 
	 
	 	North Country BBQ Ventures (Westbury), LLC

a Delaware limited liability company

By North Country BBQ Ventures, Inc.,

its Managing Member

 	 
	 	By:  	/s/ David A. Reilly
 	 
	 	 	David A. Reilly 	 
	 	 	Its Chief Financial Officer 	 
	 
	 	North Country BBQ Ventures (Mountainside), LLC

a Delaware limited liability company

By North Country BBQ Ventures, Inc.,

its Managing Member

 	 
	 	By:  	/s/ David A. Reilly
 	 
	 	 	David A. Reilly 	 
	 	 	Its Chief Financial Officer 	 
	 



Signature Page — Amended and Restated Asset Purchase Agreement dated effective February 26, 2010






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	 	North Country BBQ Ventures (Brick), LLC

a Delaware limited liability company


By North Country BBQ Ventures, Inc.,

its Managing Member

 	 
	 	By:  	/s/ David A. Reilly
 	 
	 	 	David A. Reilly 	 
	 	 	Its Chief Financial Officer 	 
	 
	 	North Country B.B.Q. Ventures (Hamilton), LLC

a Delaware limited liability company



By North Country BBQ Ventures, Inc.,

its Managing Member

 	 
	 	By:  	/s/ David A. Reilly
 	 
	 	 	David A. Reilly 	 
	 	 	Its Chief Financial Officer 	 
	 
	 	North Country BBQ Ventures (New Brunswick), LLC

a Delaware limited liability company



By North Country BBQ Ventures, Inc.,

its Managing Member

 	 
	 	By:  	/s/ David A. Reilly
 	 
	 	 	David A. Reilly 	 
	 	 	Its Chief Financial Officer 	 
	 
	 	North Country BBQ Ventures (Woodbridge), LLC

a Delaware limited liability company



By North Country BBQ Ventures, Inc.,

its Managing Member

 	 
	 	By:  	/s/ David A. Reilly
 	 
	 	 	David A. Reilly 	 
	 	 	Its Chief Financial Officer 	 
	 



Signature Page — Amended and Restated Asset Purchase Agreement dated effective February 26, 2010







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	 	PURCHASER:



FAMOUS DAVE’S OF AMERICA, INC.

a Minnesota corporation

 	 
	 	By:  	/s/ Diana G. Purcel
 	 
	 	 	Diana G. Purcel 	 
	 	 	Its Chief Financial Officer 	 
	 



Signature Page — Amended and Restated Asset Purchase Agreement dated effective February 26, 2010





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