EXHIBIT 10.22
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AGREEMENT FOR PURCHASE AND SALE
OF PARTNERSHIP INTERESTS
THIS AGREEMENT FOR PURCHASE AND SALE OF PARTNERSHIP INTERESTS (the
"Agreement"), effective as of this 5th day of August, 1999 (the "Effective
Date"), among Unique SEI Holdings, Inc., a Florida corporation ("Holdings"),
Max's Beach Grill, Inc., a Florida corporation, Unique Brickell, Inc., a Florida
corporation, Unique Weston, Inc., a Florida corporation (collectively, the
"General Partners" and collectively, with Holdings, referred to as "Sellers"),
and Xxxxxx Enterprises Inc., a Florida corporation ("Buyer").
WITNESSETH:
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WHEREAS, Holdings is the owner of 48% limited partnership interests and
the General Partners are the owners of a 1% general partnership interest
(collectively, the "Partnership Interests") in each of Max's Beach Grill, Ltd.,
Unique Brickell, Ltd. and Unique Weston, Ltd., limited partnerships organized
under the laws of the State of Florida (the "Partnerships"); and
WHEREAS, Buyer desires to purchase from Sellers, and Sellers desire to
sell to Buyer the Partnership Interests on the terms and subject to the
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and other good and valuable consideration, the receipt and
adequacy are hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
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Sale and Purchase of the Partnership Interests
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and Purchase Price
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1.1 Sale of Partnership Interests. Upon the terms and subject to the
conditions of this Agreement, Sellers hereby sell, assign, transfer, convey and
deliver to Buyer or to wholly-owned subsidiaries of Buyer listed in Section 1.2
below (collectively, "Purchasers"), and Purchasers hereby purchase and acquire
the Partnership Interests, effective as of the date hereof. Sellers have each
executed and delivered to Purchasers, respectively, Assignments of Partnership
Interest, receipt of which is hereby acknowledged.
1.2 Purchase Price and Method of Payment. In consideration for the
purchase by Buyer of the Partnership Interests, Buyer hereby pays to Sellers a
purchase price of One Hundred Sixty Thousand and No/100 Dollars ($160,000.00)
and certain stock options (the "Purchase Price"), as set forth below, the cash
purchase price to be allocated as follows:
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Purchasers
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Max's Beach Grill, Ltd.
Limited Partnership Interest $52,333.33 Buyer
General Partnership Interest $1,000.00 Beach Place GP, Inc.
Unique Brickell, Ltd.
Limited Partnership Interest $52,333.33 Buyer
General Partnership Interest $1,000.00 Brickell GP, Inc.
Unique Weston, Ltd.
Limited Partnership Interest $52,333.33 Buyer
General Partnership Interest $1,000.00 Xxxxxx XX, Inc.
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Total $160,000.00
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(a) Buyer has transmitted to Sellers One Hundred Sixty
Thousand and No/100 Dollars ($160,000.00) by bank wire transfer of immediately
available funds to such bank accounts as have been designated in writing by
Sellers, receipt of which funds is acknowledged by Sellers.
(b) Buyer has granted to Sellers an option to purchase up to
20,000 shares of Buyer's common stock, in the form attached hereto as Exhibit A
(the "Options"). The Options shall be exercisable at $2.50 per share.
1.3 Further Assurances. The parties shall, on request, on or after the
Effective Date, cooperate with each other by furnishing any additional
information, executing and delivering any additional documents and/or
instruments and doing any and all such other things as may be reasonably
required by the parties or their counsel to consummate or otherwise implement
the transactions contemplated by this Agreement or to respond to the
satisfaction of the Sellers to any activity by any federal or state agency,
department or board.
ARTICLE II
Representations and Warranties of Sellers
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2.1 Representations and Warranties of Sellers. Sellers represent and
warrant to Buyer as follows:
(a) Due Organization. Each of the Sellers is duly organized
and validly existing as a corporation under the laws of the State of Florida.
The Sellers have all necessary governmental approvals and permits and required
corporate power and lawful authority to own their properties and to conduct the
businesses in which they are currently engaged.
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(b) Authorization. The Board of Directors of Holdings and the
shareholders of the General Partners have approved this Agreement and the
transactions contemplated hereby, and have authorized the execution of this
Agreement by its respective officers. This Agreement and the transactions
contemplated hereby have been authorized by all necessary corporate action of
Holdings. Holdings has delivered to Buyer a copy of the approving resolutions of
its shareholders, certified by its Secretary.
(c) Power and Authority. Sellers have the right, power, legal
capacity, and authority to enter into and perform their obligations under this
Agreement and to consummate the transactions contemplated hereby to be
consummated by Sellers. Except as provided in this Agreement, no consent,
approval or authority of any nature, or other action, by any person or entity,
or any agency, bureau or department of any government, is required in connection
with the execution and delivery of this Agreement by any of the Sellers, and the
consummation by any of the Sellers of the transactions provided for herein.
Assuming all appropriate action has been taken by the Board of Directors of each
of the General Partners, as to which Sellers make no representation, this
Agreement constitutes, and each document or instrument to be executed by
Sellers, pursuant to the terms hereof, upon its execution and delivery will have
been duly executed and delivered and will constitute, the valid and legally
binding respective obligations of each of the persons executing each of such
documents and instruments, enforceable in accordance with their respective
terms.
(d) Title to Partnership Interests. Sellers own beneficially
and of record the Partnership Interests, free and clear of all liens, claims,
restrictions and encumbrances whatsoever except those set forth in the
Partnership Agreements and, upon payment by Buyer of the Purchase Price to
Sellers, Buyer will acquire good title to the Partnership Interests, free and
clear of all liens, charges, claims, options, pledges, restrictions and
encumbrances whatsoever except those set forth in the Partnership Agreement.
(e) Accuracy. All information, certificates, documents and
instruments furnished by Sellers to Buyer in connection with this Agreement, or
any other transaction contemplated by this Agreement, are or will be true and
complete in all material respects as of the Effective Date, and neither this
Agreement nor any information, certificate, document or instrument furnished by
Sellers to Buyer in connection with this Agreement, or any other transaction
contemplated by this Agreement, contains or will as of the Effective Date
contain any untrue statement of a material fact or omits or will as of the
Effective Date omit to state a material fact necessary in order to make the
statements included herein or therein not misleading in light of the
circumstances under which they were made.
2.2 Representations and Warranties of General Partners and Holdings.
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The General Partners represent and warrant to Buyer as follows, and
Holdings represents and warrants to the best of its knowledge as follows:
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(a) Due Organization. Each of the Partnerships is duly
organized and validly existing as a limited partnership under the laws of the
State of Florida. Each Partnership has all necessary governmental approvals and
permits and required power and authority to own its properties and to conduct
the business in which it is currently engaged.
(b) Violations. The execution and delivery of this Agreement
and the consummation of the transactions contemplated by this Agreement, will
not result in or constitute any of the following: (i) a default, breach,
violation, termination, failure of condition, or an event that, with notice or
lapse of time or both, would be a default, breach, violation, termination, or
failure of condition of any provision of the Articles of Incorporation or
By-Laws of any of the Sellers, or any provision of any agreement, instrument, or
arrangement to which any of Sellers is a party, or by which any of their
property (including the Partnership Interests) is bound, except the
Partnerships' leases of their respective restaurant premises and the Max's Beach
Grill, Ltd. equipment lease of April 7, 1997 (the "Leases"); (ii) an event that
would accelerate the maturity of any indebtedness or other obligation of any of
the Partnerships or any of Sellers, other than the Leases; (iii) the creation or
imposition of any lien, pledge, option, security agreement, equity, claim,
charge, encumbrance or other restriction or limitation on any of the Partnership
Interests, or on any of the properties or other interests of any of the
Partnerships or any of the Sellers; or (iv) a violation of any provision of
applicable law, except with respect to any permits or licenses of their
respective restaurants.
(c) Compliance with Law. The Partnerships are each in material
compliance with all applicable statutes, ordinances, administrative
interpretations, rulings and regulations. Without limiting the foregoing, the
Partnerships have all required licenses, permits, certificates and
authorizations needed for the conduct of their business as now being conducted
and copies are attached hereto as Exhibit B. None of the Partnerships have
received any notice, not heretofore complied with, from any governmental
authority that any of its properties, equipment or business procedures or
practices fails to comply with any applicable law or regulation, except that the
restaurant operated by Unique Brickell, Ltd. has been notified by the Department
of Business and Professional Regulation - Division of Alcoholic Beverage &
Tobacco ("AB&T") that the outside walkway being used by Riverwalk customers may
have the effect of destroying the contiguity of the restaurant's outside area in
violation of its alcoholic beverage license, which problem is in the process of
being resolved among AB&T, the landlord and Unique Brickell, Ltd.
(d) Litigation. Except as provided in Section 2.2(c), there
are no actions, suits or proceedings pending, and there are no investigations
pending, or threatened to which any of the Partnerships are or will be a party,
or which relate, directly or indirectly, to the operations, properties,
prospects or condition of the business of the Partnerships, before or by any
federal, state, municipal or other governmental department or commission or
court or arbitrator, except for Houdini v. Max's Beach Grill, Ltd., a slip and
fall case being defended by an insurance carrier. Sellers do not know or have
reasonable grounds to know of any basis for any such action, proceeding or
investigation in the future, other than possible claims by lessors under the
Leases with respect to the transactions provided for herein, the item disclosed
in Section 2.2(c) and any failure of Buyer to obtain necessary approvals for the
transfer of any permits or licenses to Buyer, including approval
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from AB&T for transfer of the existing alcoholic beverage license, and routine,
non-material incident reports.
(e) Taxes. All tax returns and reports of the Partnerships
required by law to be filed have been duly filed, and all taxes, assessments,
fees and other governmental charges which are assessable with respect thereto
and due and payable have been paid.
(f) Title to Properties. The Partnerships have good,
marketable and valid title to the properties and assets reflected on the balance
sheet as of May 23, 1999 and all such properties and assets are free and clear
of mortgages, pledges, security interests, liens, charges and other
encumbrances, except liens for current taxes not due and equipment lease
obligations.
ARTICLE III
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Representations and Warranties of Buyer
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Buyer hereby represents and warrants to Sellers as follows:
3.1 Due Organization. Purchasers are each duly organized and validly
existing as corporations under the laws of the State of Florida.
3.2 Power and Authority. Purchasers have the right, power, legal
capacity and authority to enter into and perform their obligations under this
Agreement, and to consummate the transactions contemplated hereby to be
consummated by Purchasers. No consent, approval or authority of any nature, or
other action, by any person or entity, or any agency, bureau or department or
any government or any subdivision thereof, is required in connection with the
execution and delivery of this Agreement by Purchasers, and the consummation by
Purchasers of the transactions provided for herein. This Agreement constitutes,
and each document or instrument to be executed by Buyer, pursuant to the terms
hereof upon its execution and delivery, will have been duly executed and
delivered and will constitute, the valid and legally binding respective
obligations of the person executing each of such documents and instruments,
enforceable in accordance with its terms. The execution and delivery of this
Agreement by Buyer has been duly authorized by all necessary corporate action of
Purchasers, respectively.
ARTICLE IV
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Other Agreements and Releases
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4.1 Other Agreements. Sellers acknowledge that simultaneously with the
closing of this Agreement, Buyer and the Partnerships are entering into
agreements with Unique Restaurant
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Concepts, Inc. ("Unique"), an affiliate of certain of Sellers, (a) terminating
the Management Agreement of December 30, 1997 between Unique and the
Partnerships relating to the restaurants owned by the Partnerships, and (b)
amending and restating the License Agreements of December 30, 1997 between
Unique and the Partnerships in part to provide for certain license fees to be
payable to Unique with regard to certain of the restaurants now owned by the
Partnerships.
4.2 Release.
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(a) Release by Buyer. As of the Effective Date, the Purchasers
hereby releases the Sellers and all of their shareholders, directors, officers,
agents, affiliates, successors and assigns (collectively, the "Seller Group"),
from all liabilities, actions, causes of actions, claims, counterclaims,
defenses, offsets, charges, obligations and demands whatsoever (whether known or
unknown, direct or indirect, contingent or noncontingent) at law, in equity or
otherwise (collectively, the "Claims"), which the Buyer ever had, now has or may
hereafter have against any members of the Seller Group by reason of any matter,
cause or thing whatsoever arising under with respect to or relating to the
partnership agreements of the Partnerships, except for (i) any provision of such
partnership agreements that expressly survive termination, and (ii) the
provisions of this Agreement.
(b) Release by Sellers. As of the Effective Date, the Sellers
hereby release the Purchasers and the Partnerships and all of their partners,
agents, affiliates, successors and assigns (the "Partnership Group") from all
Claims which the Sellers ever had, now have or may hereafter have against any
member of the Partnership Group by reason of any matter, cause or thing
whatsoever arising under, with respect to or relating to the partnership
agreements of the Partnerships except for (i) any provision of such partnership
agreement that expressly survives termination, and (ii) the provisions of this
Agreement.
4.3 Purchasers' Acknowledgments. Buyer agrees and acknowledges
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the following:
(a) Since December 30, 1997, Buyer has appointed the majority
of the members of the Board of Directors of the General Partners that serve as
the sole general partner of each of the Partnerships and, accordingly, Buyer has
been in control of the Partnerships;
(b) As a result of its position as the majority owner of each
of the Partnerships and the party controlling the Board of Directors of each of
the Partnerships, Buyer has had full access to all material transactions
affecting the Partnerships.
(c) Purchasers hereby assume all risk of any defaults under
the Leases as a result of this transaction and any claims by any of the lessors
resulting from same and hereby agree to indemnify and hold harmless the Seller
Group from any such lessor claims including, without limitation, the costs and
expenses of any negotiations prior to litigation, any litigation or appeals
therefrom.
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(d) Purchasers understand that the sale of the Partnership
Interests by Sellers is intended to be exempt from registration under the
Securities Act of 1933, as amended (the "Act"), by virtue of the private
placement exemption under the Act. In connection therewith, Purchasers represent
and warrant to Sellers that:
(i) Purchasers are aware that there is substantial
risk in purchasing the Partnership Interests, including risk of Purchasers' loss
of their entire investment therein, and Purchasers have sufficient liquidity and
assets to absorb such loss;
(ii) Purchasers are acquiring the Partnership
Interests for their own account, for investment, and not with a view to resale
or distribution, in whole or in part, in violation of the Act;
(iii) Purchasers have such knowledge and experience
in financial and business matters to be capable of evaluating the merits and
risks of its investment in the Partnership Interests;
(iv) In deciding to acquire the Partnership
Interests, Purchasers have relied solely upon their knowledge of the
Partnerships and their existing businesses and their investigation of same and
Purchasers have not acted upon the basis of any other representations and
warranties; and
(v) Purchasers understand that the Partnership
Interests cannot be sold, transferred or assigned, unless they first are
registered under the Act or an exemption from registration is available (and
then may be sold only in compliance with all applicable state securities laws).
ARTICLE V
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Miscellaneous
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5.1 Partnership Agreement. The parties agree that the copies of the
Limited Partnership Agreement of each of the Partnerships and any amendments
thereto, attached hereto as Exhibit C, are true and complete and in effect on
the date hereof.
5.2 Partners. The parties agree that attached hereto as Exhibit D is a
true and correct list of all partners of the Partnerships and the percentage
interest held by each.
5.3 Brokers. Each of the parties represents and warrants that such
party has dealt with no broker or finder in connection with any of the
transactions contemplated by this Agreement, and, insofar as such party knows,
no broker or other person is entitled to any commission or finder's fee in
connection with any of these transactions. The parties each agree to indemnify
and hold harmless one another against any loss, liability, damage, cost, claim
or expense incurred by reason of any
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brokerage commission or finder's fee alleged to be payable because of any act,
omission or statement of the indemnifying party.
5.4 Transaction Costs. Each party hereto shall pay all of its
respective costs and expenses (including attorneys' fees and other legal costs
and expenses and accountants' fees and other accounting costs and expenses)
incurred in connection with the formation, execution and delivery of this
Agreement.
5.5 Entire Agreement. This Agreement and all exhibits and schedules
attached to this Agreement, if any, represent the entire understanding and
agreement between the parties with respect to the subject matter of this
Agreement, and supersedes all other negotiations, understandings and
representations (if any) made by and between such parties.
5.6 Tax Liabilities. Sellers shall pay and be responsible for all taxes
with respect to income attributable to the Partnership Interests and its share
of the Partnerships' business and operations in the period ending on the
Effective Date, and all prior years, and pay when due all taxes due and owing
with respect thereto. The parties agree that as of the Effective Date, Buyer is
appointed the tax matters partner of the Partnerships pursuant to Section
6231(a)(7) of the Internal Revenue Code of 1986, as amended, and shall cause to
be prepared all federal and any required state and local income tax returns of
the Partnerships for all periods and subsequent to December 31, 1998 and, in
connection therewith, to make any available or necessary federal income tax
elections. The books of the Partnership shall be closed on the Effective Date
for income tax purposes.
5.7 Amendments. The provisions of this Agreement may not be amended,
supplemented, waived or changed orally, but only by a writing signed by the
party as to whom enforcement of any such amendment, supplement, waiver or
modification is sought and making specific reference to this Agreement.
5.8 Assignments. No party shall assign his or its rights or obligations
under this Agreement without the prior written consent of each other party to
this Agreement.
5.9 Further Assurances. The parties hereby agree from time to time to
execute and deliver such further and other transfers, assignments and documents
and do all matters and things which may be convenient or necessary to more
effectively and completely carry out the intentions of this Agreement.
5.10 Binding Effect. All of the terms and provisions of this Agreement
shall be binding upon, inure to the benefit of, and be enforceable by the
parties and their respective administrators, executors, other legal
representatives, heirs and permitted assigns, whether so expressed or not. Any
rights given or duties imposed upon the estate of a deceased shareholder shall
inure to the benefit of and be binding upon the fiduciary of such decedent's
estate in his fiduciary capacity.
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5.11 Headings. The headings contained in this Agreement are for
convenience of reference only, are not to be considered a part of the Agreement
and shall not limit or otherwise affect in any way the meaning or interpretation
of this Agreement.
5.12 Press Release. The disclosure of this transaction shall initially
be made by press release in the form reviewed by the parties. Except as
otherwise required by law, all future disclosure shall be consistent with the
press release and neither party shall make disparaging remarks about the other.
5.13 Severability. If any provision of this Agreement or any other
agreement entered into pursuant to this Agreement is contrary to, prohibited by
or deemed invalid under applicable law or regulation, such provision shall be
inapplicable and deemed omitted to the extent so contrary, prohibited or
invalid, but the remainder of this Agreement shall not be invalidated thereby
and shall be given full force and effect so far as possible. If any provision of
this Agreement may be construed in two or more ways, one of which would render
the provision invalid or otherwise voidable or unenforceable and another of
which would render the provision valid and enforceable, such provision shall
have the meaning which renders it valid and enforceable.
5.14 Waivers. The failure or delay of any party at any time to require
performance by another party of any provision of this Agreement, even if known,
shall not affect the right of such party to require performance of that
provision or to exercise any right, power or remedy under this Agreement. Any
waiver by any party of any breach of any provision of this Agreement should not
be construed as a waiver of any continuing or succeeding breach of such
provision, a waiver of the provision itself, or a waiver of any right, power or
remedy under this Agreement. No notice to or demand on any party in any
circumstance shall, of itself, entitle such party to any other or further notice
or demand in similar or other circumstances.
5.15 Third Parties. Unless expressly stated in this Agreement to the
contrary, nothing in this Agreement, whether express or implied, is intended to
confer any rights or remedies under or by reason of this Agreement on any
persons other than the parties to this Agreement and their respective legal
representatives, successors and permitted assigns. Nothing in this Agreement is
intended to relieve or discharge the obligation or liability of any third
persons to any party to this Agreement, nor shall any provision give any third
persons any right of subrogation or action over or against any party to this
Agreement.
5.16 Remedies Cumulative. Except as otherwise expressly provided in
this Agreement, no remedy in this Agreement conferred upon any party is intended
to be exclusive of any other remedy, and each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute or
otherwise. No single or partial exercise by any party of any right, power or
remedy under this Agreement shall preclude any other or further exercise
thereof.
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5.17 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument. Confirmation of execution
by electronic transmission of a facsimile signature page shall be binding upon
any party so confirming.
5.18 Governing Law. This Agreement and all transactions contemplated by
this Agreement shall be governed by, and construed and enforced in accordance
with, the internal laws of the State of Florida without regard to principles of
conflicts of laws.
5.19 Preparation of Agreement. This Agreement shall not be construed
more strongly against any party regardless of who is responsible for its
preparation. The parties acknowledge each contributed and is equally responsible
for its preparation.
5.20 Survival. All covenants, agreements, representations and
warranties made in this Agreement or otherwise made in writing by any party
pursuant to this Agreement shall survive the execution and delivery of this
Agreement and the consummation of the transactions contemplated by this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
SELLERS:
UNIQUE SEI HOLDINGS, INC.
By: /s/ Xxxxxx Xxx
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Xxxxxx Xxx, President
MAX'S BEACH GRILL, INC.
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
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Xxxxxx X. Xxxxxxxx, Xx., President
UNIQUE BRICKELL, INC.
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
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Xxxxxx X. Xxxxxxxx, Xx., President
UNIQUE WESTON, INC.
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
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Xxxxxx X. Xxxxxxxx, Xx., President
BUYER:
XXXXXX ENTERPRISES INC.
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
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Xxxxxx X. Xxxxxxxx, Xx., President
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EXHIBITS
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EXHIBIT A Form of Option to Purchase Common Stock
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EXHIBIT B Licenses, Permits, Certificates and Authorizations of the
--------- Partnerships
EXHIBIT C Limited Partnership Agreements
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EXHIBIT D Partners
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(Exhibits Omitted)
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