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Exhibit 10.2
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT is made and entered into effective May
31, 2001 (the "Effective Date"), by and between:
Famous Dave's Ribs-U, Inc., a Minnesota corporation (the "Member");
and
FUMUME, LLC, a Delaware limited liability company that shall become a
party hereto as and when it is formed under the laws of the State of
Delaware (the "Company').
INTRODUCTION
A. The Member is willing to contribute to the Company's subsidiary FUMUME
II, LLC a lease for Chicago Facility (as defined herein);
B. The Member is willing to contribute to the Company cash in the amount
of $825,507;
C. The Member is willing to contribute to the Company its obligations
under a service xxxx license agreement, as described below;
D. The Member and the Company wish to set forth herein their mutual
understanding regarding the capital contribution described above.
NOW, THEREFORE, in consideration of the foregoing premises, which are
hereby made a part of this Agreement, and of the mutual covenants and agreements
set forth below, the parties agree as follows:
AGREEMENT
1. Contributions to the Company's Capital. Subject to the conditions
set forth in Section 3, the Member agrees to contribute to the capital of the
Company (the "Capital Contribution") the following:
a. an Assignment and Assumption of Lease and Landlord Consent
(the "Assignment"), substantially in the form attached hereto
AS EXHIBIT A and hereby made a part of this Agreement, under
which Assignment the Member shall assign to the FUMUME II,
LLC, a wholly owned subsidiary of the Company, the rights to
lease that certain facility located at 000-000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx, as described within the Assignment
(the "Chicago Facility"); and all necessary consents related
to the Assignment;
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b. cash in the amount of $825,507 pursuant to the schedule
attached hereto as EXHIBIT B;
c. any and all obligations of the Member under the service xxxx
license agreement, substantially in the form attached hereto
as EXHIBIT C (the "License Agreement"), under which the Member
agrees to allow the Company to use, on a non-exclusive basis,
the Member's food items and sauces as set forth in the License
Agreement; and
2. Membership Interest. In consideration of this Contribution
Agreement, and upon the Member's execution and delivery of the Company's limited
liability company agreement in the form attached hereto as EXHIBIT D (the
"Operating Agreement"), the Company shall record in its records that the Member
is entitled to FORTY THOUSAND (40,000) Units of Membership Interest described in
the Schedule of Members attached to the Operating Agreement as Schedule A (the
"Schedule of Members").
3. Formation of the Company and Other Conditions. The Member's
obligation to make the Capital Contribution under Section 1 shall be subject to
satisfaction of the following conditions:
a. the Certificate of Formation in the form attached
hereto as EXHIBIT E shall have been filed under the
laws of the State of Delaware;
b. Contribution Agreements in the form attached hereto
as EXHIBIT F, providing for the capital contributions
set forth in the Schedule of Members, shall have been
executed and delivered by the Company and all of the
other prospective members of the Company named in
that Schedule; and
c. each of the other prospective members of the Company
named in the Schedule of Members shall have executed
and delivered the Operating Agreement.
4. Company Name. The name of the Company shall be "FUMUME, LLC" or such
other name as may be agreed upon by the Members.
5. Company Purposes. The Company shall be organized and operated for
the purposes set forth in Article 4 of the Operating Agreement. All monetary
amounts specified by this Agreement shall be payable in U.S. dollars.
6. Termination. Neither the Company nor the Member may terminate this
Agreement without the written consent of the other party.
7. Member Representations. The Member represents and warrants that: (a)
the execution, delivery, and performance of this Agreement by the Member does
not conflict with any other agreement, law, or regulation binding upon the
Member; (b) this Agreement is a valid and binding agreement of the Member
enforceable in accordance with its terms; and (c) no third party has any right,
interest, or valid claim against the Member or the Company for any compensation
as
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a finder or broker, or in any similar capacity, in connection with the
transactions contemplated by this Agreement by reason of any action by the
Member. The Member shall indemnify and hold the Company harmless against any and
all liability with respect to any breach of any of the foregoing representations
or warranties by the Member.
8. Confidential Information. The Member agrees that the Member will not
disclose to any unauthorized persons, use for the Member's own account except in
connection with the joint venture contemplated by the Operating Agreement (the
"Project"), or use for the benefit of any third party any confidential
information relating to the Project or the Company that the Member obtains
pursuant to this Agreement, the Operating Agreement, or any documents or
agreements related thereto. The parties acknowledge that all information
developed pursuant to this Agreement is the property of the Company or, prior to
the formation of the Company, the party that developed such information. In the
event of a termination of this Agreement, but continuation of the Company, the
Member shall turn over to the Company all memoranda, plans, reports, and other
documentation (and copies thereof) relating to the Project that the Member may
then possess or have under the Member's control. The covenants made in this
Section shall be construed as an agreement independent of any other provision of
this Agreement, and shall survive the termination of this Agreement.
9. Governing Law: Venue. This Agreement shall be governed by, and
construed in accordance with the laws of the State of Delaware, without regard
to its law concerning conflicts of law. Any judicial proceeding for the breach
of or enforcement at law or equity of this Agreement or any provision hereof
shall be instituted only in a federal or state court of competent jurisdiction
in the city of Minneapolis and State of Minnesota, and each party consents to
the jurisdiction of such court, and waives the right to challenge the
jurisdiction of such court on grounds of lack of personal jurisdiction or to
seek a change of venue.
10. Assignment. Except as expressly provided herein, no party hereto
may assign, pledge or transfer this Agreement or any interest herein without the
prior written consent of the other party.
11. Binding Effect. This Agreement inures to the benefit of, and shall
be binding upon, the parties and their respective successors and assigns
permitted under the terms of the Operating Agreement.
12. Amendment and Waiver. No amendment or waiver of any provision of
this Agreement is valid unless it is in writing and signed by the person against
whom it is charged.
13. Notice: Agent for Service. Any notice required or permitted to be
given hereunder or pursuant hereto must be in writing addressed to the person at
the address specified in the operating Agreement, or at an address changed in
the manner set forth therein, and shall be effective when received by the other
party.
14. Entire Agreement. This Agreement and the Exhibits attached hereto
constitute the entire agreement among the parties with respect to the subject
matter hereof.
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15. No Equitable Relief. In the event of a breach hereof, the
non-breaching party shall not be entitled to any equitable remedies under this
Agreement or applicable law.
16. Investment Interest. The Member agrees that the Member's Capital
Contribution to the Company shall be for investment purposes only and not for
resale. The Member represents that the Member has the sophistication to evaluate
the risks and merits of the purchase of the Company interests summarized herein.
The Member represents that the Member is an "Accredited Investor" under federal
securities laws.
17. Designation of Power of Attorney. Pursuant to Section 18.16 of the
Operating Agreement, the undersigned does hereby irrevocably and coupled with an
interest appoint the Chief Executive Officer of the Company or his duly
appointed designee to act as my lawful attorney-in-fact with full power of
substitution, for me and in my name, place, and xxxxx for my use and benefit to
sign, acknowledge, file, and record the Operating Agreement, and any and all
instruments, documents, and agreements as detailed more fully in Section 18.16
of the Operating Agreement.
INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the Member has executed this Agreement effective as
of the Effective Date, and the Company shall have executed this Agreement upon
its formation and, by so doing, accepted the Capital Contribution that the
Member promises to make hereunder upon written action by the board of directors
of the Company.
FAMOUS DAVE'S RIBS-U, INC.
a Minnesota corporation
By: /s/ Xxxxxx X'Xxxx
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Name: Xxxxxx X'Xxxx
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Title: Pres/CEO
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Address:
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Tax ID No.:
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ACCEPTANCE
This Contribution Agreement and the Capital Contribution described
herein are accepted by FUMUME, LLC, as a capital contribution under the Delaware
Limited Liability Company Act, as of the Effective Date, pursuant to the
authorization of its Board.
FUMUME, LLC
a Delaware limited liability company
Lifestyle Ventures, LLC, Member
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
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Title: President and Chief Manager
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