Exhibit 2.1
PARTNERSHIP INTEREST SUBSCRIPTION AGREEMENT
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THIS PARTNERSHIP INTEREST SUBSCRIPTION AGREEMENT ("Agreement") is entered
into as of the 30th day of December, 1997, by and among ▇▇▇▇▇▇ ENTERPRISES,
INC., a Florida corporation ("Purchaser"), MAX'S BEACH GRILL, LTD., a Florida
limited partnership ("Beach Place"), UNIQUE BRICKELL, LTD., a Florida limited
partnership ("Las Olas"), UNIQUE WESTON, LTD., a Florida limited partnership
("Weston") and UNIQUE TBA, LTD., a Florida limited partnership ("TBA"). Beach
Place, Las Olas, Weston and TBA are sometimes referred to herein individually as
a "Partnership" and collectively as the "Partnerships."
W I T N E S S E T H:
WHEREAS, subject to the terms and conditions hereinafter set forth, each
Partnership desires to sell and issue to Purchaser, and Purchaser desires to
subscribe for and purchase from each Partnership, a Partnership Interest (as
hereinafter defined) comprising a fifty-one percent (51%) Partnership Percentage
(as hereinafter defined) in that Partnership. This Agreement is entered into
pursuant to the Funding Agreement dated July 1, 1997, as amended, among
Purchaser, Beach Place, Las Olas, ▇▇▇▇▇▇, ▇▇▇▇▇▇ Max, Unique Restaurant
Concepts, Inc. and Unique Restaurant Concepts, Ltd. ("Funding Agreement").
NOW, THEREFORE, in consideration of TEN DOLLARS ($10) in hand paid and the
mutual promises herein exchanged, together with other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
RECITALS
The foregoing recitals are true and correct and are incorporated herein by
reference.
ARTICLE II
PURCHASE AND SALE OF PARTNERSHIP INTEREST
2.1 Purchase and Sale. Subject to the terms and conditions hereof, each
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Partnership hereby agrees to issue and sell to Purchaser at Closing (as
hereinafter defined), and Purchaser hereby agrees to purchase from each
Partnership at Closing, a Partnership Interest comprising a fifty-one percent
(51%) Partnership Percentage in that Partnership (collectively, the "Purchased
Interests"). At Closing, Purchaser shall be admitted to each Partnership as a
limited partner.
The terms "Partnership Interest" and "Partnership Percentage" as used
with respect to any Partnership shall have the meaning given in the
Partnership Agreement (as hereinafter defined) for that Partnership. Copies
of the Partnership Agreement for each Partnership that will be
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in effect upon Closing are attached as Exhibits A, B, C and D hereto and are
hereinafter referred to individually as "Partnership Agreement" and collectively
as "Partnership Agreements."
2.2 Purchase Price. The total purchase price ("Purchase Price') to be
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paid by Purchaser to the Partnerships for the Purchased Interests shall be
Three Million Dollars ($3,000,000). The Purchase Price shall be paid in full by
wire transfer at Closing and shall be allocated among the Partnerships as
follows:
(a) An initial allocation of the Purchase Price shall be made among
the Partnerships in the following approximate amounts:
Beach Place $936,000
Las Olas $800,000
Weston $650,000
TBA $614,000
(b) The Purchase Price will be used by each Partnership to fund its
expenses of construction and opening of its restaurant and its repayments of all
loans and advances it has received to fund such expenses including but not
limited to any such loan from BankAtlantic and First Union National Bank, as
well as inter-company debt between any of the Partnerships and related parties
(collectively, "Pre-Opening Expenses").
(c) If the amount of the Purchase Price allocated to any Partnership
("Over-Funded Partnership") exceeds the amount of the Pre-Opening Expenses, as
determined by such Partnership's General Partner, the amount of such excess
("Over-Funded Amount") shall be real located, and paid by the Over-Funded
Partnership, as follows:
(i) First, if any Partnership's Pre-Opening Expenses exceed
the amount of its Purchase Price allocation (as determined by such Partnership's
General Partner), then the Over-Funded Amount shall be reallocated to such
Partnership up to the amount of such excess ("Funding Deficiency"). If more than
one Partnership has a Funding Deficiency, but the Over-Funded Amount is
insufficient to pay all such Funding Deficiencies, then the Over-Funded Amount
shall be allocated among such Partnerships pro rata based upon their respective
Funding Deficiencies; and
(ii) Then, any remaining Over-Funded Amount shall be allocated
among the Partnerships in equal amounts.
(d) If a Funding Deficiency exists with respect to Las Olas or
Weston that cannot be satisfied by application of any Over-Funded Amount as
provided in subparagraph (c) immediately above, then such Funding Deficiency
shall be satisfied from the portion of the Purchase Price allocated to TBA,
which entity the parties hereto recognize shall be the last to develop its
Restaurant. Notwithstanding anything to the contrary set forth in any of the
Partnership Agreements, the parties agree that, with respect to TBA, in the
event there is any Funding Deficiency, the same shall be
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satisfied as follows: (i) up to the first $175,000 required to satisfy a Funding
Deficiency shall be borrowed by TBA ("Deficiency Loan") from either unaffiliated
third party lenders or, with the consent of all Partners in TBA, from a Partner
or Affiliate of a Partner of TBA. To the extent required to obtain same, a
Deficiency Loan shall provide for satisfaction, in full, of the Deficiency Loan
prior to any distributions being made to the Partners of TBA and shall be
secured by all or any part of the assets of TBA; and (ii) any Funding Deficiency
incurred by TBA in excess of $175,000 shall be funded by Unique Restaurant
Concepts, Ltd. or any of its Affiliates and, to the extent Unique Restaurant
Concepts, Ltd. elects to raise the funds to satisfy its Funding Deficiency
obligation by selling all or any part of its Partnership Interest in TBA, TBA
hereby authorizes Unique Restaurant Concepts, Ltd. to make such a transfer of
its Partnership Interest without further consent from TBA or its General Partner
and to admit any such transferees as Limited Partners in TBA.
(e) Purchaser recognizes and acknowledges that Beach Place will have
an obligation under a lease relating to certain equipment in the approximate
amount of $270,000.
2.3 Closing. The closing of the transactions provided for herein
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("Closing") shall take place at 1:30 p.m. on the 30th day of December, 1997 at
the offices of ▇▇▇▇▇, McClosky, Smith, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other date and
time as the parties shall mutually agree ("Closing Date").
2.4 Partnership Agreements. At Closing, the Purchaser shall execute and
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deliver to the Partnerships the Partnership Agreements.
2.5 Max's Grille Concept. The parties agree that each of the restaurants
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owned by each of Brickell, Weston and TBA shall be built and operated in a size
and style similar to the Max's Grille concept originated by Unique Restaurant
Concepts, Inc. and used in the Max's Grille restaurant located in ▇▇▇▇▇▇ Park,
Boca Raton, Florida.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARTNERSHIPS
As a material inducement to Purchaser to enter into and to consummate this
Agreement, each Partnership hereby makes the following representations and
warranties to Purchaser, each of which it represents to be true and correct on
the date hereof, and, except as such Partnership may notify Purchaser in writing
prior to the Closing, shall be deemed made again as of the Closing Date and
represented by such Partnership to be true and correct on the Closing Date.
3.1 Organization. It is duly organized, validly existing and in good
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standing under the laws of the State of Florida and is not required to be
qualified or licensed as a foreign limited partnership in any other
jurisdiction. It has the full power and authority to own all of its assets and
to continue conducting its business as and where such business is presently
conducted.
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3.2 Authority and Approval of Agreement.
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(a) It has the power and authority to execute and deliver this
Agreement and to perform all of its obligations hereunder. Its execution and
delivery of this Agreement and the performance of all its obligations hereunder
have been duly authorized and approved by all required partnership action on
its part pursuant to applicable law.
(b) This Agreement constitutes its valid and legally binding
agreement of such Partnership enforceable against it in accordance with its
terms, except that: (i) enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws of general application
affecting the enforcement of the rights and remedies of creditors; and (ii) the
availability of equitable remedies may be limited by equitable principles.
3.3 No Violations. Its execution, delivery and performance of this
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Agreement, and the consummation of the transactions contemplated hereby, do not
and will not: (i) constitute a violation of or default under (either
immediately, upon notice or upon lapse of time) its Partnership Agreement, any
provision of any contract or agreement to which it or any of its assets may be
bound, any applicable judgment, decree, order, statute, rule or regulation to
which it or its as sets may be bound; or (ii) result in the creation or
imposition of any liens, security interests, encumbrances and claims of others
upon, or give to any third person any interest in or right to, any of its
assets; or (iii) result in the loss or adverse modification of, or the
imposition of any fine or penalty with respect to, any license, permit or
franchise granted or issued to it or otherwise held by or for its use.
3.4 Litigation. It is not a party to or the subject of any pending
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litigation, suit or similar proceeding and to its knowledge, no person has made
any claim or threatened it with any litigation, suit or similar proceeding.
3.5 Broker's Fees. The Partnerships have not retained any broker, finder
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or agent or agreed to pay any brokerage fees, finders' fees or commissions with
respect to the transactions contemplated by this Agreement.
3.6 Solvency. It is solvent, as that term is defined in the U.S.
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Bankruptcy Code, 11 U.S.C. (S)1, et seq.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As a material inducement to each Partnership to enter into and to
consummate this Agreement, Purchaser hereby makes the following representations
and warranties to the Partnerships, each of which the Purchaser represents to be
true and correct on the date hereof, and, except as the Purchaser may notify
each Partnership in writing prior to the Closing, shall be deemed
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made again as of the Closing Date and represented by the Purchaser to be
true and correct on the Closing Date.
4.1 Organization. The Purchaser is duly organized, validly existing and
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in good standing under the laws of the State of Florida and is not required to
be qualified or licensed as a foreign corporation in any other jurisdiction. The
Purchaser has the full power and authority to own all of its assets and to
continue conducting its business as and where such business is presently
conducted.
4.2 No Violations. The execution, delivery and performance of this
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Agreement by the Purchaser, and the consummation of the transactions
contemplated hereby, do not and will not: (i) constitute a violation of or
default under (either immediately, upon notice or upon lapse of time) the
Articles of Incorporation or Bylaws of the Purchaser, any provision of any
contract or agreement to which the Purchaser or any of its assets may be bound,
any applicable judgment, decree, order, statute, rule or regulation to which the
Purchaser or its assets may be bound; or (ii) result in the creation or
imposition of any liens, security interests, encumbrances and claims of others
upon, or give to any third person any interest in or right to, any of its
assets; or (iii) result in the loss or adverse modification of, or the
imposition of any fine or penalty with respect to, any license, permit or
franchise granted or issued to, or otherwise held by or for the use of,
Purchaser.
4.3 Litigation. The Purchaser is not a party to or the subject of any
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pending litigation, suit or similar proceeding and, to its knowledge, no person
has made any claim or threatened it with any litigation, suit or similar
proceeding.
4.4 Broker's Fees. The Purchaser has not retained any broker, finder or
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agent or agreed to pay any brokerage fees, finders' fees or commissions with
respect to the transactions contemplated by this Agreement.
4.5 Acknowledgment of High Risk and Restrictions on Transfer. The
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Purchaser is aware that: (a) the Purchased Interests are speculative
investments which involve a high degree of risk of loss of the Purchaser's
entire investment therein; and (b) there are substantial restrictions on the
transferability of the Purchased Interests under the Securities Laws, under the
Partnership Agreements and for other reasons, and the Purchaser may be
required to bear the financial risks of the Purchased Interests for an
indefinite period of time. The Purchaser has adequate means of providing for
its own individual current needs and possible contingencies and has no need for
liquidity of the Purchased Interests. The Purchaser further acknowledges that
there is no trading market for the Partnership Interests and it is unlikely that
any will develop or that Partnership Interests will become eligible for resale
under Rule 144 of the Securities Act.
The Purchaser understands that an investment in the Purchased Interests
involves significant legal and tax consequences, and acknowledges that it has
been advised to seek independent professional legal and tax advice to carefully
analyze the consequences, risks and merits of the Purchased Interests.
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4.6 Suitability.
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(a) Sophistication. The Purchaser is an "accredited investor" as
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defined under Rule 501(a) promulgated under the Securities Act. The Purchaser
is capable of evaluating the merits and risks of investment in the Purchased
Interests. The Purchaser is a sophisticated investor by virtue of its
management's numerous prior investments and experience in investments similar in
nature to the Purchased Interests (including investments in unlisted and
unregistered securities) and the knowledge and experience in financial and
business matters in general of the Purchaser's management.
(b) Direct Negotiations. The terms and conditions of the issuance of
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the Pur chased Interests were determined through substantial negotiations
between the Partnerships and the Purchaser, in the course of which the Purchaser
exercised sufficient economic leverage to assert and protect its interests.
4.7 Access to Information. The Purchaser has been given complete access
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to all documents, records, contracts and books of each Partnership, all
documents, records, contracts and books relating to the Purchased Interests, and
it has engaged in a complete examination of all such documents, records,
contracts and books to the extent deemed necessary by the Purchaser in reaching
the decision to invest in the Partnership. The Purchaser has had an opportunity
to ask questions of and receive answers from the executive officers of the
general partners of each of the Partnerships (collective, the "General
Partners") concerning the Purchased Interests, the Partnerships, their affairs
and related matters, and with respect to any other matter the Purchaser has
deemed relevant, and all such inquiries have been completed to the Purchaser's
satisfaction.
4.8 No Advertising or Representations. The Purchaser is not acquiring
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the Purchased Interests as a result of any advertisement, article, notice or
other communication published in any newspaper, magazine or similar media, any
seminar or any solicitation by a person not previously known to the Purchaser.
In reading its decision to acquire the Purchased Interests, the Purchaser has
not relied upon any representation or warranty made to the Purchaser by the Part
nerships, the General Partners, ▇▇▇▇▇▇ ▇▇▇, Patti Max, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇ or any other officer, director, shareholder, employee, agent or
affiliate of any of the foregoing as to the Partnerships or the Purchased
Interests (except as set forth in Article III hereof) or as to the future
financial performance of any of the Partnerships or any other business or
entity.
4.9 No Intent to Resell. The Purchaser is acquiring the Purchased
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Interests solely for its own account and not for distribution or resale to
others. The Purchaser shall not resell or offer to resell the Purchased
Interests except in strict compliance with all applicable Securities Laws.
4.10 Purchaser Control; Consolidation. Purchaser acknowledges that,
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notwithstanding that the Purchased Interests are limited partnership interests,
Purchaser shall control the General Partners of each of the Partnerships by
virtue of its right, under the Funding Agreement, to designate a majority of
the members of the Board of Directors of each of the General Partners.
Purchaser further
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acknowledges that as a result of the control position, it intends
to consolidate the financial operations of the Partnerships as part of the
consolidated financial statements of Purchaser.
4.11 Other Business Interests. The Purchaser understands and agrees that
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certain of the officers, directors and shareholders of the General Partners and
their affiliates have and will have business interests ("Business Interests") in
the restaurant industry that will require their time and attention and may be
competitive with the businesses of the Partnerships . Purchaser acknowledges
and agrees that, except as otherwise expressly agreed in writing executed
subsequent to the date hereof, neither the Purchaser nor any of the Partnerships
will have any right, title or interest in or to the Business Interests.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Purchaser's Conditions Precedent. Purchaser's obligations to
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consummate the transactions contemplated by this Agreement shall be subject to
the satisfaction of each of the conditions set forth in this Section 5.1, except
to the extent that such satisfaction is waived in writing by Purchaser.
(a) Representations and Warranties of the Partnerships. All
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representations and warranties made by the Partnerships in this Agreement shall
have been true and correct in all respects on the date hereof, and shall be true
and correct in all respects on the Closing Date as though such representations
and warranties were again made, without exception or deviation, on the Closing
Date.
(b) Performance of this Agreement. The Partnership shall have duly
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performed or complied with all of its covenants and obligations under this
Agreement to be per formed or complied with by the Partnership on or prior to
the Closing Date.
(c) Absence of Proceedings. No Proceeding shall have been instituted
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or threatened on or before the Closing Date by any Person, the result of which
did or could prevent or make illegal the consummation of all or any of the
transactions contemplated by this Agreement, or which had or could have a
material adverse effect on the Partnerships or their respective businesses.
(d) Material Adverse Change. There shall have not occurred any
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material ad verse change, actual or threatened, for whatever reason, in the
Partnerships, their respective businesses or their financial condition or
otherwise, or in the results of operations of the Partnerships, including, but
not limited to any material casualty loss, whether or not covered by insurance.
5.2 Partnerships' Conditions Precedent. Each Partnership's obligation to
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consummate the transactions contemplated by this Agreement shall be subject to
the satisfaction of each of the
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conditions set forth in this Section 5.2, except to the extent that such
satisfaction is waived by each Partnership in writing.
(a) Representations and Warranties of Purchaser. All representations
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and warranties of Purchaser contained in this Agreement shall have been true and
correct in all respects on the date hereof, and shall be true and correct in
all respects on the Closing Date as though such representations and warranties
were again made, without exception or deviation, on the Closing Date.
(b) Performance of this Agreement. The Purchaser shall have duly
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performed or complied with all of the covenants and obligations under this
Agreement to be performed or complied with by them on or prior to the Closing
Date.
(c) Absence of Proceedings. No Proceeding shall have been instituted
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or threatened on or before the Closing Date by any Person against the Purchaser
the result of which did or could prevent or make illegal the consummation of all
or any of the transactions contemplated by this Agreement.
(d) Material Adverse Change. There shall have not occurred any
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material adverse change, actual or threatened, for whatever reason, in the
Purchaser, its businesses, its financial condition, its management or
otherwise, or in the results of operations of the Purchaser, including, but
not limited to any material casualty loss, whether or not covered by insurance.
(e) I.P.O.Closing. The I.P.O. Closing shall have occurred.
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ARTICLE VI
MISCELLANEOUS
6.1 Notices. Any notice, demand or communication required or permitted to
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be given by any provision of this Agreement shall be given: (i) when deposited
in United States Postal Service Depository, postage prepaid, registered or
certified mail return receipt requested; (ii) when sent by courier; (iii) when
hand delivered; or (iv) when transmitted by facsimile, if such facsimile is
followed by a hard copy of the facsimile communication, in each case when
addressed to the parties as set forth below, or such other address as shall be
specified by written notice delivered to the parties.
To Purchaser: ▇▇▇▇▇▇ Enterprises, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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With a copy to: ▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇▇, Esquire
De Martino, Finkelstein, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
To Partnerships: Max's Beach Grill, Ltd.
c/o Unique Restaurant Concepts, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Unique Brickell, Ltd.
c/o Unique Restaurant Concepts, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Unique Weston, Ltd.
c/o Unique Restaurant Concepts, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Unique TBA, Ltd.
c/o Unique Restaurant Concepts, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esquire
▇▇▇▇▇, McClosky, Smith, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
All notices, demands and communications shall be effective when sent.
However, the time period in which to respond to any such notice, demand or
communication shall commence to run from the date of receipt on the return
receipt of the notice, demand or communication by the addressee thereof or the
date of actual receipt in the case of delivery by other means. If a notice,
demand or communication is sent but not actually received by a party as a result
of that party's rejection or other refusal to accept delivery or the inability
of the other party to deliver because of a change of address as to which no
notice was given, such intended recipient shall be deemed to be in receipt of
the notice, demand or request once sent.
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6.2 Entire Agreement. This Agreement sets forth all the promises,
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covenants, agreements, conditions and understandings between the parties hereto
with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements, understandings, inducements or conditions,
expressed or implied, oral or written, except as herein contained. No changes
of or modifications or additions to this Agreement shall be valid unless the
same shall be in writing and signed by the parties hereto.
6.3 Private Placement. The Purchaser has been notified and understands
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that the Purchased Interests have not been registered under the Securities Act
of 1933, as amended ("Securities Act"), or the securities laws of any state, and
the Purchased Interests are being sold in reliance on exemptions from the
registration requirements of the Securities Act and such laws (collectively,
"Securities Laws"); the Purchased Interests have not been approved or
disapproved by the Securities and Exchange Commission, any state securities
commission, or any other regulatory authority, nor have any of the foregoing
authorities passed upon or endorsed the merits of the Purchased Interests or
the accuracy or adequacy of any information provided to the Purchasers. Any
representation to the contrary is unlawful.
6.4 Binding Effect; Assignment. This Agreement shall be binding upon the
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parties hereto, their beneficiaries, heirs and administrators. No party may
assign or transfer its interests herein, or delegate its duties hereunder,
without the written consent of the other parties.
6.5 Amendment. The parties hereby irrevocably agree that no attempted
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amendment, modification, or change of this Agreement shall be valid and
effective, unless the parties shall unanimously agree in writing to such
amendment, modification or change.
6.6 No Waiver. No waiver of any provision of this Agreement shall be
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effective, unless it is in writing and signed by the party against whom it is
asserted, and any such written waiver shall only be applicable to the specific
instance to which it relates and shall not be deemed to be a continuing or
future waiver.
6.7 Gender and Use of Singular and Plural. All pronouns shall be deemed
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to refer to the masculine, feminine, neuter, singular or plural, as the identity
of the party or parties or their personal representatives, successors and
assigns may require.
6.8 Counterparts. This Agreement and any amendments may be executed in
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one or more counterparts, each of which shall be deemed an original and all of
which together will constitute one and the same instrument.
6.9 Headings. The article and section headings contained in this
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Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of the Agreement.
6.10 Governing Law. This Agreement shall be construed in accordance with
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the laws of the State of Florida and any proceeding arising between the parties
in any manner pertaining or
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related to this Agreement shall, to the extent permitted by law, be held in Palm
Beach County, Florida.
6.11 Further Assurances. The parties hereby agree that they will execute
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and deliver such further instruments, agreements and documents and do such
further acts and things as may be reasonably required to carry out the intent
and purposes of this Agreement.
6.12 Litigation. If any party hereto is required to engage in litigation
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against any other party hereto, either as plaintiff or as defendant, in order to
enforce or defend any of its or his rights under this Agreement, and such
litigation results in a final judgment in favor of such party ("Prevailing
Party"), then the party or parties against whom said final judgment is obtained
shall reimburse the Prevailing Party for all direct, indirect or incidental
expenses incurred by the Prevailing Party in so enforcing or defending its or
his rights hereunder, including, but not limited to, all attorneys' fees and
paralegals' fees, and all court costs and other expenses incurred throughout all
negotiations, trials or appeals undertaken in order to enforce the Prevailing
Party's rights hereunder.
6.13 Construction and Interpretation. Should any provision of this
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Agreement require judicial interpretation, the parties hereto agree that the
court interpreting on construing the same shall not apply a presumption that the
terms hereof shall be more strictly construed against one party by reason of the
rule of construction that a document is to be more strictly construed against
the party that itself or through its agent prepared the same.
6.14 Purchaser hereby indemnifies and holds the Partnerships, Unique
Restaurant Concepts, Ltd., Unique Restaurant Concepts, Inc. and its officers,
directors and shareholders, and the corporate general partners of the
Partnership (collectively, "Indemnified Parties") harmless from any and all
claims, loss, costs, liabilities or expenses, including reasonable attorney's
fees and paralegal's fees, arising from or in connection with Purchaser's
initial public offering of its common stock and any misrepresentations or
omissions of material fact made in connection there with or arising from or in
connection with Purchaser's use of the proceeds therefrom to invest in the
Partnerships pursuant hereto and pursuant to the Partnership's respective
Agreements of Limited Partnership, the Management Agreement between the
Partnerships and Unique Restaurant Concepts, Inc. entered into on even date
herewith and the License Agreement between Unique Restaurant Concepts, Ltd. and
the Partnerships entered into of even date herewith; provided, however, that
Purchaser shall have no indemnification obligation with respect to: (i) claims
arising from information provided to Purchaser by any of the Indemnified
Parties and included in Purchaser's registration statement filed with the
Securities Exchange Commission; or (ii) claims based upon allegations of conduct
or verbal or written misrepresentations made by an Indemnified Party to an
investor in Purchaser's initial public offering (i.e., not through the
registration statement).
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
PURCHASER:
▇▇▇▇▇▇ ENTERPRISES, INC., a Florida
corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Printed Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title: President
------------------------------------------
PARTNERSHIPS:
MAX'S BEACH GRILL, LTD., a Florida
limited partnership
By: MAX'S BEACH GRILL, INC., a Florida
corporation, General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇
---------------------------------------------
Printed Name: ▇▇▇▇▇▇ ▇▇▇
-----------------------------------
Title: President
------------------------------------------
UNIQUE BRICKELL LTD., a Florida
limited partnership
By: UNIQUE BRICKELL, INC., a Florida
corporation, General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇
---------------------------------------------
Printed Name: ▇▇▇▇▇▇ ▇▇▇
-----------------------------------
Title: President
------------------------------------------
12
UNIQUE WESTON LTD., a Florida
limited partnership
By: UNIQUE WESTON, INC., a Florida
corporation, General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇
---------------------------------------------
Printed Name: ▇▇▇▇▇▇ ▇▇▇
-----------------------------------
Title: President
------------------------------------------
UNIQUE TBA, LTD., a Florida limited partnership
By: UNIQUE TBA, INC., a Florida
corporation, General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇
---------------------------------------------
Printed Name: ▇▇▇▇▇▇ ▇▇▇
-----------------------------------
Title: President
------------------------------------------
13
Exhibit A
Exhibit B
Exhibit C
Exhibit D
(Partnership Agreements)
14