23 0189532.01
MERGER AGREEMENT
This MERGER AGREEMENT (this 'Agreement') is made as of
the 18th day of February, 1999 by and between ELMER'S
RESTAURANTS, INC., an Oregon corporation (the 'Surviving
Corporation'), CBW INC., an Oregon corporation (the 'Merging
Corporation'), and each shareholder of the Merging
Corporation listed on the attached Exhibit A (individually,
a 'shareholder of the Merging Corporation' and collectively,
the 'shareholders of the Merging Corporation').
Recitals:
A. The Merging Corporation, directly or indirectly,
owns 705,000 shares of the common stock of the Surviving
Corporation representing 53.8% of the Surviving
Corporation's issued and outstanding common stock.
B. The Surviving Corporation and the Merging
Corporation desire to consummate a merger on the terms and
conditions contained in this Agreement.
Agreements:
NOW, THEREFORE, in consideration of the foregoing, and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties
hereby agree as follows:
1. Merger. The Merging Corporation shall be merged into
the Surviving Corporation, effective as of the filing of
Articles of Merger with the Oregon Secretary of State (the
'Effective Time'). At the Effective Time, the separate
existence of the Merging Corporation shall cease, and both
the Merging Corporation and the Surviving Corporation shall
be a single corporation, which shall be the Surviving
Corporation.
2. Manner and Basis of Converting Shares. For each share
of the Merging Corporation owned by a shareholder of the
Merging Corporation, the shareholder of the Merging
Corporation shall receive 144.4507 shares of the Surviving
Corporation. Upon the Effective Time, the shareholders of
the Merging Corporation shall transfer all of the shares in
the Merging Corporation to the Surviving Corporation, and
the Surviving Corporation shall issue to each such
shareholder a stock certificate representing shares of the
Surviving Corporation in accordance with the preceding
sentence.
3. Closing. The Surviving Corporation shall designate a
date (the 'Closing Date') that is no later than three months
following the date of this Agreement. On the Closing Date,
the following actions shall occur at the offices of the
Surviving Corporation in Portland, Oregon (or at such other
location as the parties may designate):
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3.1
The Merging Corporation shall deliver to the
Surviving Corporation resolutions of the Board of Directors
and shareholders of the Merging Corporation approving the
transactions contemplated by this Agreement.
3.2 The Surviving Corporation shall deliver to the Merging
Corporation resolutions of the Board of Directors of the
Surviving Corporation approving the transactions
contemplated by this Agreement.
3.3 The Surviving Corporation and the shareholders of the
Merging Corporation shall each execute and deliver a
certificate confirming to the other that their
representations and warranties contained in this Agreement
are true and correct as if made on and as of the Closing
Date.
3.4 The Surviving Corporation shall cause Articles of
Merger and a Plan of Merger substantially in the form of the
attached Exhibits B and C to be filed with the Secretary of
State for the State of Oregon.
3.5 Certificates evidencing shares of the Merging
Corporation shall be surrendered, and certificates
evidencing shares of the Surviving Corporation shall be
delivered, in accordance with Section 2 above.
3.6 The parties shall execute and deliver a Registration
Rights Agreement in the form of the attached Exhibit D.
3.7 The parties shall execute and deliver an Escrow
Agreement in the form of the attached Exhibit E (the 'Escrow
Agreement'), and the shareholders of the Merging Corporation
shall deposit in escrow certain of the shares of the
Surviving Corporation received by them pursuant to Section
3.5.
3.8 The parties shall take such other actions and execute
and deliver such other documents as may be reasonably
required in order to close the transactions contemplated by
this Agreement, including, without limitation, execution by
the shareholders of the Merging Corporation of investor
questionnaires or similar instruments relating to the fact
that the shares of the Surviving Corporation to be issued to
the shareholders of the Merging Corporation will not be
registered under applicable securities laws.
4. Actions Prior to Closing Date. During the period prior
to the Closing Date, the Merging Corporation agrees to take
the following actions:
4.1 To own and operate its assets and properties in the
ordinary course of business in accordance with past
practice;
4.2 To maintain all licenses and permits applicable to its
assets and properties in full force and effect and to comply
will all laws, rules, regulations, and ordinances applicable
to its assets and properties;
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4.3
To refrain from transferring, encumbering,
pledging, assigning, or otherwise disposing of its assets
and properties (or engaging in negotiations or discussions
regarding the same) or entering into additional contracts or
commitments except in the ordinary course of business in
accordance with past practice (provided that it may dispose
of items of equipment which are replaced with items of
comparable value);
4.4 To provide such financial information relating to the
performance of its assets and properties as the Surviving
Corporation may reasonably request from time to time and to
grant reasonable access to its assets and properties and the
minute book, stock ledger, and corporate books and records
of the Merging Corporation to representatives of the
Surviving Corporation from time to time;
4.5 During the period beginning on the date of this
Agreement and ending on the Closing Date, to refrain,
directly or indirectly, from entering into transactions with
the shareholders of the Merging Corporation or its
affiliates or from paying dividends or distributions to
shareholders of the Merging Corporation or increasing or
enhancing the compensation of directors, officers, or
employees of or consultants to the Merging Corporation,
except in accordance with plans previously disclosed to the
Surviving Corporation; and
4.6 To maintain a net worth of no less than $480,000 and
total indebtedness no greater than $4,300,000 and to refrain
from incurring additional indebtedness other than trade
payables incurred in the ordinary course of business. In
the event the Merging Corporation's net worth is less than
$480,000 or total indebtedness is greater than $4,300,000 on
the Closing Date, the Surviving Corporation and the Merging
Corporation agree to act reasonably and in good faith to
adjust the conversion basis set forth in Section 2 above.
5. Representations and Warranties of the Merging
Corporation. As a material inducement to the Surviving
Corporation to enter into this Agreement, each of the
shareholders of the Merging Corporation, severally but not
jointly, hereby represents and warrants to, and covenants
and agrees with, the Surviving Corporation as follows:
5.1 The Merging Corporation is a corporation duly
organized, validly existing, and in good standing under the
laws of the State of Oregon. Other than its wholly-owned
subsidiary, CBW Food Company L.L.C. (the 'Subsidiary'), the
Merging Corporation does not own, directly or indirectly,
any interest or investment (whether equity or debt) in any
corporation, partnership, business, trust, or other entity.
The Subsidiary is a limited liability company duly
organized, validly existing, and in good standing under the
laws of the State of Oregon. The Merging Corporation and
the Subsidiary have full corporate power and authority and
all governmental licenses, authorizations, consents, and
approvals required to carry on the businesses they now
conduct and to own the assets and properties they now own.
Neither the ownership of their properties nor the nature of
their businesses require the Merging Corporation or the
Subsidiary to be qualified in any jurisdiction other than
the state of their incorporation.
5.2 The authorized capital stock of the Merging Corporation
consists of 10,000 shares of common stock, of which 5,334
shares are outstanding. The outstanding shares of the
Merging Corporation (the 'CBW Shares') are duly authorized
and validly issued and are
Page 3 of 12
fully paid, nonassessable, and without par value. The
Merging Corporation has not authorized or issued, or
committed to issue (a) any capital stock or other securities
not set forth in this Section 5.2 or (b) any options,
warrants, or other rights to acquire or convert any
obligations into, any shares of capital stock or other
securities of the Merging Corporation.
5.3 The CBW Shares are pledged and assigned to Eagle's View
Management Company, Inc. This pledge shall terminate on the
Closing Date. On the Closing Date, the shareholders of the
Merging Corporation identified on Exhibit A shall have good
and marketable title to the CBW Shares in the amounts set
forth opposite their names, free and clear of liens, claims,
encumbrances, restrictions, options, and security interests
of any kind (collectively, 'Liens').
5.4 The Merging Corporation and each of the shareholders of
the Merging Corporation has full right, power, and
authority, without the consent or authorization of any third
party (other than those identified on Schedule 5.4), to
execute, deliver, and perform its obligations under this
Agreement, which constitutes its legal, valid and binding
obligation, enforceable in accordance with its terms, except
that (a) such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium, or other similar
laws now or hereafter in effect relating to creditors'
rights and (b) injunctive and other forms of equitable
relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding may be
brought. Neither the Merging Corporation nor its agents or
representatives have engaged any broker or finder in
connection with the transactions contemplated by this
Agreement.
5.5 All taxes, licensing fees, and other governmental fees,
assessments, and charges pertaining to the ownership and
operation of the assets and properties of the Merging
Corporation and the Subsidiary have been paid in full. The
assets and properties of the Merging Corporation and the
Subsidiary have been owned and operated in compliance in all
material respects with all applicable laws, rules,
regulations, ordinances, and governmental authorizations and
permits. There is no action, suit, inquiry, proceeding, or
investigation by or before any court or governmental or
other regulatory or administrative agency or commission
pending or, to the best knowledge of the Merging
Corporation, threatened, against or involving or arising in
connection with the Merging Corporation or the Subsidiary or
their assets or properties, other than those that are
reasonably expected by the Merging Corporation or the
Subsidiary to be resolved without a material adverse effect
on the Merging Corporation or the Subsidiary. To the best
knowledge of the Merging Corporation, it is not aware of any
facts which would form the basis for any material claim
against it or the Subsidiary.
5.6 There are no contracts, agreements, leases, or other
commitments relating to the ownership and operation of the
assets and properties of the Merging Corporation or the
Subsidiary other than those identified on Schedule 5.6 (the
'Contracts'). Except to the extent described on
Schedule 5.6, the Contracts that will not be retained by the
Subsidiary are freely assignable to the Surviving
Corporation. The Merging Corporation has previously
provided the Surviving Corporation with true and correct
copies of the Contracts, all of which are unamended and in
full force and effect and none of which is in default by
either party. The execution, delivery, and performance by
the Merging Corporation of this Agreement does not
(a) conflict
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with, result in a breach of violation of, or constitute a
default under, the Contracts, (b) constitute a violation of
any judgment, order, or decree applicable to the Merging
Corporation or the Subsidiary or any of their assets or
properties, or (c) result in the creation of any Lien on any
of its assets or properties.
5.7 The Merging Corporation has not received written
notification from any governmental authority stating that
any real property owned or leased by the Merging Corporation
or the Subsidiary (the 'Real Property') or any part thereof
is (a) targeted for clean-up or remediation of Hazardous
Substances (hereinafter defined) or (b) not otherwise in
compliance with applicable Environmental Laws (hereinafter
defined). To the best knowledge of the Merging Corporation,
there are no Hazardous Substances on, in, or under the Real
Property or any part thereof which are in violation of
applicable Environmental Laws, and there are no underground
storage tanks on or under the Real Property. Neither the
Merging Corporation nor the Subsidiary has used the Property
to store or dispose of any Hazardous Substances. The
Merging Corporation and the Subsidiary, and, to the best
knowledge of the Merging Corporation, all previous owners
and operators of the Real Property, have owned and operated
the Real Property in compliance with all applicable
Environmental Laws. The term 'Hazardous Substance' means
any substance or material defined or designated as hazardous
or toxic (or by any similar term) under any Environmental
Law, including petroleum products and friable materials
containing more than one percent (1%) asbestos by weight.
The term 'Environmental Law' means any federal, state, or
local law, ordinance, rule, or regulation relating to
pollution or protection of the environment or actual or
threatened releases, discharges, or emissions, into the
environment, including the so-called Comprehensive
Environmental Response, Compensation, and Liability Act;
Resource Conservation and Recovery Act; the Superfund
Amendments and Reauthorization Act; Federal Water Pollution
Control Act; Clean Air Act; and all comparable state
statutes.
5.8 The statements of December 31, 1998 provided by the
Merging Corporation to the Surviving Corporation for the
period ending December 31, 1998 attached hereto as Schedule
5.8 (the 'Financial Statements') fairly present in all
material respects the financial position of the Merging
Corporation on the dates of the Financial Statements and the
results of its operations for the periods covered thereby
and have been prepared in accordance with generally accepted
accounting principles consistently applied. There are no
attachments, executions, assignments for the benefits of
creditors, or proceedings in bankruptcy, or under any other
debtor relief laws contemplated by or pending or, to the
best knowledge of the Merging Corporation, threatened
against the Merging Corporation or the Subsidiary. Except
as and to the extent reflected or reserved against in the
latest balance sheet for the Merging Corporation included in
the Financial Statements, and except for liabilities arising
in the ordinary course of its business since the date of
such balance sheet, the Merging Corporation does not have
any accrued or contingent liability arising out of any
transaction or state of facts existing prior to the date
hereof (or the Closing Date, as applicable) that, either
alone or in the aggregate, could reasonably be expected to
require the Merging Corporation or the Subsidiary to pay
more than $25,000. Since December 31, 1998, there has not
been any change in the financial condition or operations of
the Merging Corporation or the Subsidiary, except changes in
the ordinary course of business which, individually or in
the aggregate, have not been materially adverse.
Page 5 of 12
5.9
Within the times and in the manner prescribed by
law, the Merging Corporation and the Subsidiary have filed
all federal, state, and local tax returns required by law
and have paid all taxes, assessments, and penalties due and
payable. There are no present disputes about taxes of any
nature payable by the Merging Corporation or the Subsidiary
and no federal or other tax return has been audited.
5.10 The Merging Corporation and the Subsidiary have good
and marketable title to all of their respective assets free
and clear of all liens, charges, and encumbrances, claims,
easements, rights of way, covenants, conditions, or
restrictions, except for (a) those disclosed in the Merging
Corporation's balance sheet as of December 31, 1998 and (b)
possible minor matters that, in the aggregate, do not
materially detract from or interfere with the present or
intended use of any of these assets or materially detract
from or interfere with the Merging Corporation's business
operations. All real property and tangible personal
property of the Merging Corporation and the Subsidiary that
is necessary to the operation of their businesses is in good
operating condition and repair in all material respects,
ordinary wear and tear excepted. No shareholder of the
Merging Corporation; nor any officer, director, or employee
of the Merging Corporation or the Subsidiary; nor any
spouse, child, or other relative of any of these persons,
owns or has any interest, directly or indirectly, in any of
the real or personal property owned or leased to the Merging
Corporation or the Subsidiary.
5.11 Schedule 5.11 is a complete and accurate list of all
real property owned by or leased to the Merging Corporation
or the Subsidiary. The zoning of each parcel of property
described in Schedule 5.11 permits the presently existing
improvements and the continuation of the business presently
being conducted on such parcel. The Merging Corporation has
not commenced, nor received notice of the commencement of,
any proceeding that would affect the present zoning
classification of any such parcel.
5.12 The books and records of the Merging Corporation and
the Subsidiary contain a materially complete and accurate
description and specify the location of all material items
of equipment, furniture, supplies, and all other tangible
personal property owned or used by the Merging Corporation
or the Subsidiary in connection with their respective
businesses. The tangible personal property reflected in
those books and records constitutes all such tangible
personal property necessary for the conduct by the Merging
Corporation and the Subsidiary of their respective
businesses as now conducted.
5.13 Schedule 5.13 is a schedule of all trade names,
trademarks, and service marks and their registrations, owned
by the Merging Corporation or the Subsidiary or in which
either of them has any rights or licenses, together with a
brief description of each. To the best knowledge of the
Merging Corporation, there is no infringement or alleged
infringement by others of any trade name, trademark, service
▇▇▇▇, or copyright, and the Merging Corporation and the
Subsidiary have not infringed, and are not now infringing,
on any trade name, trademark, service ▇▇▇▇, or copyright
belonging to any other person.
5.14 The Merging Corporation and the Subsidiary hold all
necessary licenses or other rights necessary for the
operation of their respective businesses as now conducted by
them,
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including, without limitation, licenses from the Oregon
State Lottery Commission and the Oregon Liquor Control
Commission, and that each such license or right is presently
valid and effective and is not in danger of revocation or
non-renewal.
5.15 No representation or warranty made or given by the
shareholders of the Merging Corporation to the Surviving
Corporation in connection with the transactions contemplated
by this Agreement contains any untrue statement of material
fact or omits to state any material fact necessary, in light
of the circumstances under which it was made, in order to
make the statements herein or therein not misleading.
6. Representations and Warranties of the Surviving
Corporation. The Surviving Corporation hereby represents
and warrants to the Merging Corporation and the shareholders
of the Merging Corporation as follows:
6.1 The Surviving Corporation has full right, power, and
authority, without the consent or authorization of any third
party (other than those identified on Schedule 6.1), to
execute, deliver, and perform its obligations under this
Agreement, which constitutes the legal, valid, and binding
obligation of the Surviving Corporation, enforceable in
accordance with its terms, except that (a) such enforcement
may be subject to bankruptcy, insolvency, reorganization,
moratorium, or other similar laws now or hereafter in effect
relating to creditors' rights and (b) injunctive and other
forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any
proceeding may be brought. The Surviving Corporation is a
corporation duly organized, validly existing, and in good
standing under the laws of the State of Oregon. Neither the
Surviving Corporation nor any of its agents or
representatives has engaged any broker or finder in
connection with the transactions contemplated by this
Agreement, other than Veber Partners, LLC, who was engaged
by the Board of Directors of the Surviving Corporation to
provide an opinion as to the fairness from a financial point
of view to the stockholders of the Surviving Corporation of
the consideration to be paid by the Surviving Corporation in
connection with the proposed transactions contemplated by
this Agreement.
6.2 The execution, delivery, and performance by the
Surviving Corporation of this Agreement does not constitute
a violation of, or constitute a default under, any
agreement, instrument, or commitment to which the Surviving
Corporation is a party or by which the Surviving Corporation
is bound.
6.3 Upon the issuance thereof, the shares to be delivered
to the shareholders of the Merging Corporation pursuant to
Section 2 above shall duly be authorized, validly issued,
and fully paid.
7. Conditions to Obligations of Surviving Corporation.
The obligations of the Surviving Corporation to consummate
the transactions contemplated by this Agreement are subject
to satisfaction of or compliance with each of the following
conditions:
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7.1
No suit, action, investigation, inquiry, or other
proceeding by any governmental authority or other person or
entity shall have been instituted which questions or
challenges the validity or legality of the transactions
contemplated by this Agreement.
7.2 All approvals, consents, and authorizations shown on
Schedule 6.1 shall have been obtained.
7.3 Subject to any changes that have been waived in writing
by the Surviving Corporation, (a) the representations and
warranties of the shareholders of the Merging Corporation
set forth in this Agreement shall have been and shall be
true and correct in all material respects on the Closing
Date as though made on and as of the Closing Date and
(b) neither the Merging Corporation nor its shareholders
shall have violated in any material respect any covenant or
agreement by them in this Agreement and shall have performed
in all material respects all obligations to be performed by
them under this Agreement prior to or as of the Closing
Date.
8. Conditions to Obligations of Merging Corporation. The
obligations of the Merging Corporation and its shareholders
to consummate the transactions contemplated by this
Agreement are subject to satisfaction of or compliance with
each of the following conditions:
8.1 No suit, action, investigation, inquiry, or other
proceeding by any governmental authority or other person or
entity shall have been instituted which questions or
challenges the validity or legality of the transactions
contemplated by this Agreement.
8.2 All approvals, consents, and authorizations shown on
Schedule 5.4 shall have been obtained.
8.3 Subject to any changes that have been waived in writing
by the Merging Corporation, (a) the representations and
warranties of the Surviving Corporation set forth in this
Agreement shall have been and shall be true and correct in
all material respects on the Closing Date as though made on
and as of the Closing Date and (b) the Surviving Corporation
shall not have violated in any material respect any covenant
or agreement by it in this Agreement and shall have
performed in all material respects all obligations to be
performed by it under this Agreement prior to or as of the
Closing Date.
9. Right to Termination. This Agreement may be terminated
and the proposed transactions abandoned:
9.1 At any time, by mutual consent of the parties;
9.2 At the option of the Surviving Corporation and by
notice to the Merging Corporation stating the reasons for
such action, (a) in the event the closing of the
transactions contemplated by this Agreement shall not have
occurred on the date designated in Section 3 (or any other
date that the parties may designate by mutual agreement) by
reason of the failure of any of the conditions set forth in
Section 7 or (b) at any time prior to the closing of the
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transactions contemplated by this Agreement, in the event of
a material breach of any of the representations, warranties
or covenants of the Merging Corporation or its shareholders;
or
9.3 At the option of the Merging Corporation and by notice
to the Surviving Corporation stating the reasons for such
action, (a) in the event the closing of the transactions
contemplated by this Agreement shall not have occurred on
the date designated in Section 3 (or any other date that the
parties may designate by mutual agreement) by reason of the
failure of any of the conditions set forth in Section 8 or
(b) at any time prior to the closing of the transactions
contemplated by this Agreement, in the event of a material
breach of any of the representations, warranties or
covenants of the Surviving Corporation set forth in this
Agreement.
9.4 Termination by a party pursuant to Section 9.2 or 9.3
shall not adversely affect such party's other available
rights and remedies. The rights and remedies of the party
terminating this Agreement pursuant to Section 9.2 or 9.3,
whether contained in this Agreement or conferred pursuant to
applicable law or in equity, shall be cumulative and
concurrent and may be pursued singly, successively, or
together, at the discretion of the holder thereof.
10. Indemnification. Each of the Surviving Corporation, on
the one hand, and the shareholders of the Merging
Corporation, on the other, shall indemnify the other and the
other's employees, agents, officers, directors, heirs,
personal representatives, administrators, successors,
permitted assigns, and affiliates from and against any and
all costs, damages, expenses, and liabilities (including
reasonable attorneys' fees) incurred or sustained in
connection with or resulting from (a) any breach of the
representations and warranties of such party in this
Agreement or (b) the nonfulfillment or breach of any
covenant made by such party in this Agreement; provided,
however, that the maximum liability of the Surviving
Corporation, on the one hand, and the shareholders of the
Merging Corporation, on the other, under this Section 10
shall not exceed $1,000,000 in the aggregate for the
Surviving Corporation, on the one hand, and the shareholders
of the Merging Corporation, on the other hand; and provided
further, that the remedies of the Surviving Corporation with
respect to any such breach or nonfulfillment by the
shareholders of the Surviving Corporation or any of them
shall be limited to, and only to, recovery of the shares of
the Surviving Corporation held in accordance with the terms
of the Escrow Agreement pursuant to the provisions thereof.
The limitations on maximum liability and on remedies
contained in the preceding sentence shall not apply in the
case of a willful and material breach of a representation or
warranty made by a shareholder of the Merging Corporation
with the intent to defraud the Surviving Corporation; in the
case of such a breach, the Surviving Corporation shall have
all rights and remedies permitted under applicable law or in
equity against, and only against, the shareholder making
such representation or warranty.
11. General Provisions:
11.1 Binding Effect. This Agreement may not be assigned by
either of the parties without the written consent of the
other party. Subject to the foregoing restrictions, this
Agreement shall be binding upon and inure to the benefit of
the parties and their respective heirs, personal
representatives, administrators, successors, and permitted
assigns.
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11.2
Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of
Oregon.
11.3 Entire Agreement. This Agreement, including the
schedules and exhibits hereto (which are incorporated herein
by reference), contains the entire agreement between the
Surviving Corporation and the Merging Corporation with
respect to the transactions contemplated by this Agreement
and supersedes all prior and contemporaneous agreements
between them with respect to such transactions. The parties
agree that the terms of this Agreement are confidential and
will not be disclosed, other than to each party's officers,
directors, shareholders, accountants, attorneys, and
lenders, without the consent of the other, except to the
extent required under applicable law and regulations.
11.4 Amendment. This Agreement may not be modified or
amended except by the written agreement of the party
entitled to the benefit of the provision against whom
enforcement is sought.
11.5 Severability. If any term or provision of this
Agreement shall to any extent be invalid or unenforceable,
the remainder of this Agreement shall not be affected
thereby, and each term or provision of this Agreement shall
be valid and enforceable to the fullest extent permitted by
law.
11.6 Survival. All representations and warranties herein,
and all covenants herein (the full performance of which is
not required to or at the Closing Date), shall survive the
Closing Date and be fully enforceable thereafter for a
period of one year following the Closing Date.
11.7 Notices. Notices under this Agreement shall be in
writing and shall be effective when actually delivered or
three business days after deposit in the United States
Mails, certified, return receipt requested, directed to the
other party at the address set forth below, or to such other
address and/or person as the party may indicate by written
notice to the other party:
Page 10 of 12
If to the Merging CBW Inc.
Corporation: ▇▇▇ ▇. ▇▇▇ ▇▇▇., #▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
If to the Surviving Elmer's Restaurants,
Corporation Inc..
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
11.8 Waiver. Failure of any party at any time to require
performance of any provision of this Agreement shall not
limit such party's right to enforce such provision, nor
shall any waiver of any breach of any provision of this
Agreement constitute a waiver of any succeeding breach of
such provision or a waiver of such provision itself.
11.9 Attorney's Fees. If a suit, action, or other
proceeding of any nature whatsoever (including any
proceeding under the U.S. Bankruptcy Code) is instituted to
enforce or interpret any provision of this Agreement or in
connection with any dispute hereunder, the prevailing party
shall be entitled to recover such amount as the court may
adjudge reasonable as attorney's fees and all other fees,
costs, and expenses of litigation at trial or any appeal or
review, in addition to all other amounts provided by law.
11.10 Remedies. In the event of a default under this
Agreement, the non-defaulting party shall have all rights
and remedies available under this Agreement, to the fullest
extent of applicable law and equitable principles, subject
to the limitations set forth in Section 10.
11.11 Counterparts. This Agreement may be executed in
any number of counterparts, all of which together shall
constitute one and the same agreement.
11.12 Further Assurances. From time to time, upon
request of either party, the other party shall execute,
acknowledge, and deliver such documents and undertake such
actions as may be reasonably requested in order to fulfill
the transactions contemplated by this Agreement.
11.13 Expenses. Each party shall bear all costs and
expenses incurred by such party in connection with this
transaction, including, without limitation, legal expenses.
11.14 Knowledge of Merging Corporation. All
representations and warranties of the shareholders of the
Merging Corporation in this Agreement that are made 'to the
best knowledge of the Merging Corporation' shall be made
only to the extent of the knowledge, after due inquiry, of
▇▇▇▇▇ ▇. ▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇. Service.
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IN WITNESS WHEREOF, the parties have entered into this
Merger Agreement as of the date first set forth above.
The Merging Corporation: CBW Inc., an Oregon
corporation
By:___/s/__Bruce Davis___
Title: President
The Surviving Corporation: Elmer's Restaurants,
Inc., an Oregon
corporation
By:__/s/_William Service_
Title: C.E.O.
The Shareholders of the Merging Corporation:
__/s/__Ken N. Boettcher__
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
__/s/__Linda E. Bolton___
▇▇▇▇▇ ▇▇▇▇▇▇
__/s/__Karen K. Brooks___
▇▇▇▇▇ ▇▇▇▇▇▇
__/s/__Thomas C. Connor__
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
__/s/__Bruce N. Davis____
▇▇▇▇▇ ▇. ▇▇▇▇▇
__/s/__Cordy Jensen______
▇▇▇▇▇ ▇▇▇▇▇▇
__/s/__William W. Service
▇▇▇▇▇▇▇ ▇. Service
__/s/__Gregory Wendt_____
▇▇▇▇▇▇▇ ▇▇▇▇▇
__/s/__Donald Woolley____
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Schedules Omitted
Page 12 of 12