31495.01 Exhibit 99.2.1
AGREEMENT
Agreement made this 7th day of August 1997 by and among L&L Foods, Inc., a
Florida corporation having its principal place of business at 000 0xx Xxxxxx,
Xxxxx 000, Xxxx Xxxxx 00000 ("L&L Foods"); Xxxxxx X. Xxxxxx, Esq., an individual
whose principal place of business is located at 000 Xxxxx Xxxxxx Xxxx, Xxxx
Xxxxx, Xxxxxxx 00000 ("Xxxxxx"); and the law firm of Xxxx Xxxx Xxxxxxx Xxxxxx &
Xxxx, P.A., whose address is 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000
(the "Escrow Agent").
BACKGROUND INFORMATION
Xxxxxx filed a lis pendens against the shares of Shells Seafood
Restaurants, Inc. ("Shells Seafood") owned by L&L Foods in connection with the
lawsuit currently pending in the Circuit Court of the Fifteenth Judicial
Circuit, in and for Palm Beach County, Florida (the "Court"), a civil action
styled Xxxxxx X. Xxxxxx v. L&L Foods, Inc., a Florida corporation; Xxxxxx
Xxxxxx; Xxxx Xxxxxx and Xxx Xxxxxx, Case No. CL-97-005594-AO. The parties
attempted to settle the litigation by entering into a Compromise and Settlement
Agreement dated August 1, 1997, however the contingencies set forth in that
agreement were not satisfied and that agreement, by its terms, is now null and
void. While the parties are continuing their settlement negotiations, and
without waiving any of their rights in the pending litigation, L&L Foods desires
to sell a portion of the shares of Shells Seafood that it owns and Xxxxxx agrees
to permit the sale of a portion of the shares pursuant to the terms of this
Agreement. Accordingly, the parties agree as follows:
OPERATIVE AGREEMENT
1. Release of Lis Pendens. Xxxxxx hereby partially releases the lis pendens
that was filed on 129,600 shares of the common stock of Shells Seafood (the
"Shares") in order to enable L&L Foods to immediately sell the Shares in
accordance with the terms of this Agreement.
2. Conditions to Release of Lis Pendens. Xxxxxx agrees to release the lis
pendens on the Shares provided that: (a) L&L Foods causes the Shares to be
sold through Xxxxxxxxxxx & Co. Inc. ("Xxxxxxxxxxx"); and (b) L&L Foods
irrevocably instructs Xxxxxxxxxxx to deliver the proceeds from the sale of the
Shares to the Escrow Agent to be held in escrow, pending an agreement by the
parties to this Agreement as to the disposition of such proceeds or pursuant to
an order of the Court, whichever occurs first.
3. Release of Shares. L&L Foods and Xxxxxx direct that the Escrow Agent
deliver a certificate representing the Shares to Xxxxxxxxxxx with instructions
to deliver any shares represented by that certificate in excess of 129,600 to
the Escrow Agent.
4. Rights and Limitations upon Duty of the Escrow Agent.
The Escrow Agent:
a. shall be entitled to act upon any written certificate, statement,
notice, demand, request, consent, agreement or other instrument, and to
rely upon its due execution, the validity and effectiveness of its
provisions, and the accuracy and completeness of any information therein
contained, as long as the Escrow Agent shall in good faith believe the
instrument to be genuine and to have been signed or presented by an
authorized person;
b. shall be entitled to request and receive from any party hereto such
documents in addition to those provided for herein as the Escrow Agent may
deem necessary to resolve any questions of fact involved in the provisions
hereof;
c. may, at the expense of the remaining parties hereto, consult
independent counsel of its choice in respect to any question relating to
its duties or responsibilities under this Agreement, and shall not be
liable for any action taken or omitted in good faith on advice of such
counsel;
d. shall be under no obligation to advance any funds in connection
with the maintenance or administration of this Agreement, to institute or
defend any action, suit or legal proceeding in connection herewith, or to
take any other action likely to involve the Escrow Agent in expense, unless
first indemnified by the remaining parties hereto, or any of them, as the
case may be, to the Escrow Agent's satisfaction;
e. shall not be bound by any amendment to this Agreement or by any
other agreement between the remaining parties hereto except such amendment
or agreement as shall have been executed by the Escrow Agent;
f. shall have only such duties and responsibilities as are expressly
set forth in this Agreement, together with a general fiduciary duty of
reasonable diligence in the performance of its obligations hereunder;
g. may resign and be discharged from its duties hereunder at any time
by giving notice of such resignation to the remaining parties hereto
specifying a date when such resignation shall take effect (which date shall
be no fewer than 15 days after the date of mailing or other delivery of
such notice). Upon receipt of such notice, a successor escrow agent shall
be appointed by the remaining parties hereto, such successor escrow agent
to become Escrow Agent hereunder upon the resignation date specified in the
subject notice. If the remaining parties are unable to agree upon a
successor escrow agent within 15 days after the date of such notice, the
Escrow Agent shall be entitled to appoint its own successor and shall
continue to act in its fiduciary capacity until its successor accepts the
escrow by written notice delivered to the parties hereto and takes
possession of the escrowed assets. If the Escrow Agent is unable, despite
the use of its best efforts, to obtain the services of a successor, it may
petition a court of competent jurisdiction for an order effecting such an
appointment or providing another remedy, and, pending entry, may deposit
the escrowed assets in the court's registry;
h. shall be indemnified and held harmless by each of the remaining
parties hereto against any and all liabilities incurred by it hereunder,
except for those resulting from the willful misconduct or gross negligence
of the Escrow Agent;
The parties hereto, other than the Escrow Agent may at any time agree to
substitute a new escrow agent by giving notice thereof to the Escrow Agent
then acting.
5. Miscellaneous Provisions.
a. Notices:
All notices or other communications required or permitted to be given
pursuant to this Agreement shall be in writing and shall be made by: (a)
certified mail, return receipt requested; (b) Federal Express, Express
Mail, or similar overnight delivery or courier service; or (c) delivery (in
person or by facsimile or similar telecommunication transmission) to the
party to whom it is to be given, to the address appearing elsewhere in this
Agreement or to such other address as any party hereto may have designated
by written notice forwarded to the other party in accordance with the
provisions of this Section 5(a). Any notice or other communication given by
certified mail shall be deemed given at the time of certification thereof,
except for a notice changing a party's address which shall be deemed given
at the time of receipt thereof. Any notice given by other means permitted
by this Section 5(a) shall be deemed given at the time of receipt thereof.
b. Binding Agreement; Non-Assignability:
Each of the provisions and agreements herein contained shall be
binding upon and enure to the benefit of the personal representatives,
heirs, devisees, successors and assigns of the respective parties hereto;
but none of the rights or obligations attaching to any party shall be
assignable.
c. Entire Agreement:
This Agreement, and the other documents referenced herein, constitute
the entire understanding of the parties hereto with respect to the subject
matter hereof, and no amendment, modification or alteration of the terms
hereof shall be binding unless the same be in writing, dated subsequent to
the date hereof and duly approved and executed by each of the parties
hereto.
d. Severability:
Every provision of this Agreement is intended to be severable. If any
term or provision hereof is illegal or invalid for any reason whatever,
such illegality or invalidity shall not affect the validity of the
remainder of this Agreement.
e. Headings:
The headings of this Agreement are inserted for convenience and
identification only, and are in no way intended to describe, interpret,
define or limit the scope, extent or intent hereof.
f. Application of Florida Law:
This Agreement, and the application or interpretation thereof, shall
be governed exclusively by its terms and by the laws of the State of
Florida. Venue for all purposes shall be deemed to lie within Palm Beach
County, Florida.
g. Counterparts:
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
In witness whereof, the parties hereto have executed and delivered
this Agreement the day and year first written above.
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
L&L Foods, Inc.
/s/ Xxx Xxxxxx /s/ Xxx Xxxxxx
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Xxx Xxxxxx, Secretary Xxx Xxxxxx,
Vice President
Escrow Agent
XXXX XXXX XXXXXXX XXXXXX
& XXXX, P.A.
By:/s/ Xxxx X. Xxxxxxxx
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Name:Xxxx X. Xxxxxxxx
Title:Shareholder
