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EXHIBIT 10.14
CAPITAL CONTRIBUTION AGREEMENT
This Capital Contribution Agreement (this "Agreement") between Back
yard Burgers, Inc., a Delaware corporation whose principal office is located at
0000 xxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxxxx 00000 ("Burgers"), and BYB
Properties, Inc., a Delaware corporation whose sole office is located at suite
200, 000 Xxxxx Xxxx, Xxxxxxxxxx, XX 00000 ("BYB Properties"), as amended, and is
to be effective on this 10th day of October, 1997.
Whereas, BYB properties is a wholly-owned subsidiary of Burgers.
AND WHEREAS, pursuant to the terms and conditions set forth below, BYB
Properties and Burgers desire to enter into a transaction in which Burgers
contributes the following property as an additional contribution to the capital
of BYB Properties:
(I) An amount of cash or cash equivalents to be agreed upon between
the parties (the "Cash");
(ii) All right, title and interest in and to those certain trade
names, trademarks, and service marks, and all registrations and
applications for registration of the same, all of which are more
particularly identified on Exhibit A attached to this Agreement
and incorporated as a part hereof as if fully set forth herein
(the "Trademarks"), together with the goodwill of the business
symbolized by the Trademarks.
The cash and the Trademarks shall be referred to collectively
hereinafter as the "Additional Capital."
NOW THEREFORE, in consideration of the above premises and the promises
contained in this Agreement, and intending to be legally bound, Burgers and BYB
Properties agree as follows:
ss.1. Transfer of Additional Capital to BYB Properties.
Burgers hereby agrees to transfer and contribute the Additional
Capital to BYB Properties.
ss.2. Acceptance of Additional Capital and Covenant by BYB Properties.
BYB Properties hereby agrees to accept the contributions of the
Additional Capital described in ss.1 above, and covenants to allocate the entire
value of the Additional Capital to surplus.
ss.3. Agreement as to Consideration for Additional Capital.
BYB Properties and Burgers each agree that the Additional Capital
is not being transferred by Burgers to BYB Properties in exchange for goods or
services rendered.
ss.4. Appointment of BYB Properties as Attorney of Burgers with Respect
to the Additional Capital.
Burgers hereby appoints BYB Properties as Burgers' true and
lawful attorney, with full power of substitution, for Burgers, in the name and
stead of Burgers or otherwise, but on behalf and for the benefit of BYB
Properties, to demand and receive all right, title and interest in and to the
Additional Capital hereunder transferred to BYB Properties, or intended so to
be; to give receipts, releases and acquittances for or in respect of the
Additional Capital or any part thereof; to collect, assert or enforce any claim,
title, right, debt; or account hereby granted or transferred, or intended so to
be, and to endorse with the name of Burgers any checks received in respect to
the foregoing; to institute (or cause to be instituted) and prosecute (or cause
to be prosecuted) in the name of Burgers, but on behalf and for the benefit of
BYB Properties (or its delegate), any proceeding at law or in equity, or
otherwise, that BYB Properties may deem proper with respect to the Additional
Capital; and to defend and compromise any and all actions, suits or proceedings
in respect of the Additional Capital that BYB Properties may deem advisable.
ss.5. Warranties of BYB Properties.
ss.5.1 BYB Properties is a duly organized and validly existing
corporation under the laws of the State of Delaware,
with its sole office located in Wilmington, Delaware.
ss.5.2 To the best of the knowledge of its undersigned
officer, BYB Properties (I)is in good corporate
standing in Delaware, (ii) operates in no other states,
and (iii) has made no material foreign, federal, state
or local tax liabilities which are past due.
CAPITAL CONTRIBUTION AGREEMENT
BYB PROPERTIES, INC.
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ss.5.3 To the best of the knowledge of the undersigned officer
of BYB Properties, there is no legal action or
proceeding pending against BYB Properties which would
inhibit the transaction of BYB properties' ordinary
business or prevent BYB Properties from validly
entering into this Agreement.
ss.5.4 BYB Properties has the corporate power to enter into
this Agreement and the officer executing this Agreement
on behalf of BYB Properties has been duly authorized to
do so.
ss.5.5 To the best of the knowledge of the undersigned officer
of BYB Properties, the execution and performance of the
obligations contained in this Agreement do not
constitute a violation, breach or default under any
other agreement by which BYB Properties is bound.
ss.6. Warranties of Burgers.
ss.6.1 Burgers is a duly organized and validly existing
corporation under the laws of the State of Delaware,
with its principal office located in Memphis,
Tennessee.
ss.6.2 to the best of the knowledge of its undersigned
officer, burgers (I) is in good corporate standing in
Delaware, Tennessee, and in every other jurisdiction
where its ownership, lease or operation of property or
the conduct of its business requires qualification as a
foreign corporation except to the extent that the
failure to so qualify as a foreign corporation would
not have a material adverse effect on burgers, and (ii)
has no material foreign national, provincial or local,
nor any material U.S. federal, state or local tax
liabilities which are past due.
ss.6.3 To the best of the knowledge of the undersigned officer
of Burgers, there is no legal action or proceeding
pending against Burgers which would inhibit the
transaction of Burgers' ordinary business or prevent
burgers from validly entering into this Agreement.
ss.6.4 Burgers has the corporate power to enter into this
Agreement, and the undersigned officer executing this
Agreement on behalf of burgers has been duly authorized
to do so.
ss.6.5 To the best of the knowledge of the undersigned officer
of Burgers, the execution and performance of the
obligations contained in this Agreement do not
constitute a violation, breach or default under any
other agreement by which Burgers is bound.
ss.6.6 At the time of the transfer described in ss.1 above,
Burgers owns all right, title and interest in and to
the Trademarks.
ss.7. Mutuality of Consent.
BYB Properties and burgers each acknowledge that this Agreement,
and every agreement made in connection with this Agreement, represent the mutual
and voluntary consent and understanding of the parties hereto.
ss.8. Each Party Familiar with Operations of other Party.
BYB Properties and burgers acknowledge that they (I) are familiar
with the operations of the other party, (ii) have been provided access to all
necessary financial records, statements, accounts or other materials of the
other party, which such party requested, and (iii) are competent to evaluate the
risks associated with the performance of their respective obligations under this
Agreement.
ss.9. Execution and Delivery of other Documents.
BYB Properties and Burgers covenant to perform all acts necessary
or proper to effectuate the intent and purposes of this Agreement, including the
execution and delivery of all other required or proper documents.
CAPITAL CONTRIBUTION AGREEMENT
BYB PROPERTIES, INC.
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ss.10. Governing Law.
This Agreement has been executed and delivered by Burgers and
BYB properties (and will be deemed to be made) in the State of Delaware. This
Agreement will be interpreted and the rights and liabilities of the parties
hereto determined in accordance with the laws of the State of Delaware. Each of
Burgers and BYB properties hereby submits to the jurisdiction of any state or
federal court located within New Castle County, Delaware, and consents that all
service of process be made by certified mail directed to the relevant party at
its address set forth above.
ss.11. Successors; Non-assignability.
This Agreement shall be binding upon and inure to the benefit
of BYB properties and Burgers and their respective successors and assigns;
provided, however, that this Agreement, or any portion thereof, may not be
assigned without the written consent of the non-assigning party, which consent
shall not be unreasonably withheld.
ss.12. Severability.
If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable, such invalidity or
unenforceability shall not affect the remaining provisions of this Agreement.
ss.13. Entire Agreement.
This Agreement constitutes the entire understanding of the
parties with respect to the subject matter hereof and supersedes all prior
contracts, understandings and agreements between the parties.
ss.14. Amendment.
This Agreement may not be amended or modified without the
written consent of each party hereto.
ss.15 Expenses.
Each party agrees to pay its respective expenses incurred with
respect to this Agreement and the consummation of the transactions contemplated
thereby.
ss.16. Counterparts.
This Agreement may be executed in counterparts, each of which
when so executed and delivered shall constitute a complete and original
instrument but all of which together shall constitute one and the same
agreement, and it shall not be necessary when making proof of this Agreement or
any counterpart thereof to account for any other counterpart.
IN WITNESS WHEREOF, the undersigned have duly executed this Capital
Contribution Agreement to be effective on this 10th day of October, 1997.
BYB PROPERTIES, INC. BACK YARD BURGERS, INC.
BY: BY:
------------------------------- -----------------------------------
Name: Name:
Title: Title:
CAPITAL CONTRIBUTION AGREEMENT
BYB PROPERTIES, INC.
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EXHIBIT A
TO
CAPITAL CONTRIBUTION AGREEMENT
IDENTIFICATION OF TRADEMARKS ASSIGNED TO BYB PROPERTIES
U.S. TRADEMARKS
Xxxx Registration Number Issue Date
---- ------------------- ----------
Great Little Burger 1,744,113 December 29, 1992
Stylized Cooking Grill
w/Flames Emanating
From the Grill 1,679,739 March 17, 1992
Back Yard Burgers 1,679,702 March 17, 1992
BYBurgers 1,518,494 December 27, 1988
CAPITAL CONTRIBUTION AGREEMENT
BYB PROPERTIES, INC.
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