MEMBERSHIP UNIT PURCHASE AND SALE AGREEMENT

Exhibit 10.1

THIS MEMBERSHIP UNIT PURCHASE AND SALE AGREEMENT, made and entered into as of August 31, 2011, by and among Xxxxx Xxxxxxxx’x Holdings, Inc., a Florida corporation, (“Xxxxx Xxxxxxxx’x”), Xxxxx X’x Pizza, Inc. and Bout Time Marketing, LLC (the “Selling Members”) the holders of all outstanding Membership Units of Xxxxx X’x Original Westshore Pizza, LLC, a Florida limited liability company, (“Xxxxx X’x”), and Xxxxx X’x for the purpose of its representations, warranties and deliverables set forth herein.

W I T N E S S E T H :

WHEREAS, Xxxxx Xxxxxxxx’x is registered under the Securities Act of 1933 (“1933 Act), files reports pursuant to the Securities Exchange Act of 1934 (“1934 Act”) and its common stock traded in the public securities markets under the “ticker symbol” “BTHR”;

WHEREAS, Xxxxx Xxxxxxxx’x is a manufacturer (through a co-packer) and distributor of tomato based and other pasta and pizza sauces; and

WHEREAS, Xxxxx X’x operates one pizza restaurant in Tampa, Florida; and

WHEREAS, Xxxxx Xxxxxxxx’x desires to acquire Xxxxx X’x as a going concern by the means of payment in the form of a promissory note (“Xxxxx Xxxxxxxx’x Notes”) for all of the outstanding Membership Units, being all of its equity securities, of Xxxxx X’x (“Xxxxx X’x Securities”) and thereafter to operate Xxxxx X’x as a wholly owned subsidiary; and

WHEREAS, the Selling Members desire to sell all of Xxxxx X’x Securities that they own for Xxxxx Xxxxxxxx’x Notes and for Xxxxx X’x to be acquired by Xxxxx Xxxxxxxx’x, as contemplated by this Agreement; and

NOW, THEREFORE, in consideration of the premises herein before set forth, in reliance hereon and the mutual promises and respective representations and warranties of the parties, one to another made herein, and the reliance of each party upon the other(s) based hereon and other good and valuable consideration, the receipt and sufficiency of which the parties respectively acknowledge, the parties agree, for purposes of consummating the transaction(s) contemplated herein, as follows:

ARTICLE I

PRELIMINARY MATTERS

Section 1.01. Recitals. The parties acknowledge the recitals herein above set forth in the preamble are correct, and are, by this reference, incorporated herein and are made a part of this Agreement.

Section 1.02. Exhibits and Schedules. Exhibits (which are documents to be executed and delivered at the Closing by the party identified therein or in the provision requiring such delivery) and Schedules (which are attachments setting forth information about a party identified therein or in the provision requiring such attachment) referred to herein and annexed hereto are, by this reference, incorporated herein and made a part of this Agreement, as if set forth fully herein.

Section 1.03. Use of words and phrases. Natural persons may be identified by last name, with such additional descriptors as may be desirable. The words “herein,” “hereby,” “hereunder,” “hereof,” “herein before,” “hereinafter” and any other equivalent words refer to this Agreement as a whole and not to any particular Article, Section or other subdivision hereof. The words, terms and phrases defined herein and any pronoun used herein shall include the singular, plural and all genders. The word “and” shall be construed as a coordinating conjunction unless the context clearly indicates that it should be construed as a copulative conjunction.

Section 1.04. Accounting terms. All accounting terms not otherwise defined herein shall have the meanings assigned to them under generally accepted accounting principles unless specifically referenced to regulatory accounting principles. GAAP means generally accepted accounting principles in effect in the United States and as applicable to companies subject to the reporting requirements of the 1934 Act.

Section 1.05. Calculation of time lapse or passage; Action required on holidays. When a provision of this Agreement requires or provides for the calculation of the lapse or passage of a time period, such period shall be calculated by treating the day on which the event which starts the lapse or passage occurs as zero; provided, that this provision shall not apply to any provision which specifies a certain day for action or payment, e.g. the first day of each calendar month. Unless otherwise provided, the term “month” shall mean a period of thirty days and the term “year” shall mean a period of 360 days, except that the terms “calendar month” and “calendar year” shall mean the actual calendar period indicated. If any day on which action is required to be taken or payment is required to be made under this Agreement is not a Business Day (Business Day being a day on which national banks are open for business where the actor or payor is located), then such action or payment shall be taken or made on the next succeeding Business Day.

Section 1.06. Use of titles, headings and captions. The titles, headings and captions of articles, sections, paragraphs and other subdivisions contained herein are for the purpose of convenience only and are not intended to define or limit the contents of said articles, sections, paragraphs and other subdivisions.

ARTICLE II

TERMS OF THE TRANSACTIONS

Section 2.01. Purchase and sale transaction. In accordance with the terms of this Agreement, on the Closing Date, Xxxxx Xxxxxxxx’x shall issue and deliver to the Selling Members Xxxxx Xxxxxxxx’x Notes as set forth in Section 2.02 and the Selling Members shall deliver to Xxxxx Xxxxxxxx’x all of Xxxxx X’x Securities, in form sufficient for the transfer thereof to Xxxxx Xxxxxxxx’x and its designation as the sole member of Xxxxx X’x. Upon receipt by Xxxxx X’x Pizza, Inc. of all sums due to it under the Xxxxx Xxxxxxxx’x Note delivered to it at Closing, Xxxxx X’x Pizza, Inc. shall satisfy, in full, all obligations of Xxxxx X’x to The Original Westshore Pizza, Inc. (“Maduca”) arising out of a certain Promissory Note dated September 1, 2008 in the original principal amount of $540,000.00.

Section 2.02. Terms of Xxxxx Xxxxxxxx’x Notes. Xxxxx Xxxxxxxx’x Notes shall be composed of one installment purchase money promissory note for each Selling Member (i) in a principal amount which together with accrued interest from the Closing to October 31, 2011 at a simple annual rate of two percent shall equal $553,151.10, (ii) bearing simple interest at two percent per annum, (iii) having a maturity date of October 31, 2011, (iv) both extendible at the election of Xxxxx X’x Pizza, Inc. to December 31, 2011 and to Xxxxxx 00, 0000 , (x) secured by Xxxxx X’x Securities pursuant to certain Pledge Agreements between the Selling Members and Xxxxx Xxxxxxxx’x of even date herewith, which by this reference are made integral parts hereof (the “Pledge Agreements”).

Section 2.03. Federal income tax treatment. At or before the Closing Date, the parties shall agree on the value of each of the assets of Xxxxx X’x for federal income tax purposes and for GAAP purposes, if required for federal income tax purposes and for GAAP purposes.

Section 2.04. Transaction costs. Each party shall pay all costs and expenses which it or he incurs in connection with this Agreement and the transactions contemplated hereby.

Section 2.05. Press releases. No party will issue a press release regarding the subject matter of this Agreement and the transactions contemplated hereby, either before or after Closing, without the prior approval thereof by the other parties and their counsel.

ARTICLE III

CLOSING OF THE TRANSACTION

Section 3.01. Location, date and time of the Closing. The Closing of the transaction contemplated by this Agreement shall take place on the date, at the time and concurrent with the execution and delivery of this Agreement and similar agreements between the parties for the purchase and sale of Philly Westshore Franchising Enterprises, Inc. and Xxxxxxxx Real Estate Holdings, LLC, provided, that the closing of the transaction for Xxxxxxxx Real Estate Holdings, LLC (the “Closing Date”) shall be deferred until October 31, 2011 subject to extension in the event that the Xxxxx Xxxxxxxx’x Notes are extended as set forth in Section 2.02 hereof. The Closing shall take place at a location agreed to by the parties. The acts and deliveries which occur on the Closing Date for the purpose of consummating the transactions contemplated by this Agreement and the event itself is referred to herein as the “Closing”.

Section 3.02. The Selling Members’ deliveries at the Closing. At the Closing, the Selling Members will deliver to Xxxxx Xxxxxxxx’x:

(a)	Documents legally sufficient for the transfer of Xxxxx X’x Securities and establishing Xxxxx Xxxxxxxx’x as the sole member;

Section 3.03. Xxxxx X’x deliveries at the Closing. At the Closing, Xxxxx X’x will deliver to Xxxxx Xxxxxxxx’x:

(a)	Certificate of good standing in Xxxxx X’x state of organization;

(b)	Managing Members Certificates of Xxxxx X’x in the form set forth in Exhibits “A” and “B”, respectively;

(c)	An Employment Agreement acceptable to Xxxxxx Xxxxxxxx, Xx. and signed on behalf of Xxxxx X’x by Xxxx X. Xxxxxxx, Xx. employing Xx. Xxxxxxxx as the chief operating officer of Xxxxx X’x for a term of seven years;

(d)	An Agreement Not to Compete under which Xx. Xxxxxxxx will not engage in any manner in any business which competes within two and one half (2.5) miles of a Xxxxx X’x location for a term of five years following termination of the Employment Agreement for any cause;

(e)	The original of Xxxxx X’x record book or equivalent and related documents.

(f)	The Pledge Agreements; and

(g)	The Escrow Agreement of even date hereof.

Section 3.04. Xxxxx Xxxxxxxx’x deliveries at the Closing. At the Closing, Xxxxx Xxxxxxxx’x will deliver to the Selling Members:

(a)	Xxxxx Xxxxxxxx’x Notes, as provided in Section 2.02; and

(b)	Action by Xxxxx Xxxxxxxx’x board of directors approving the transactions contemplated by this Agreement and related agreements;

(c)	Officers’ and Secretary’s Certificates of Xxxxx Xxxxxxxx’x in the form set forth in Exhibits “A” and “B”, respectively;

(d)	The Pledge Agreements; and

(e)	The Escrow Agreement of even date hereof.

Section 3.05. Closing Memorandum and receipts. As evidence that all parties deem the Closing to have been completed and the transactions contemplated by this Agreement to have been consummated, the parties jointly will execute and deliver a Closing Memorandum, in the form of Exhibit “C”, acknowledging such completion and consummation.

Section 3.06. Waiver of conditions. Notwithstanding Section 10.03, any condition to the Closing which is to the benefit of any party and which is not satisfied prior to or at the Closing, excluding nevertheless any provision of this Agreement which by its terms is to be performed in the future, will be deemed to be waived by the benefited party or otherwise satisfied and waived by virtue of that party executing the Closing Memorandum, except to the extent any such unsatisfied or unperformed condition is expressly preserved by listing it in the Closing Memorandum for satisfaction or performance after the Closing.

Section 3.07. Further assurances. At any time and from time to time after the Closing, at the reasonable request of any party and without further consideration, any other party shall execute and deliver such other instruments and documents reasonably desirable or necessary to complete and confirm the transactions contemplated by this Agreement, at no cost to the party so requested.

Section 3.08. Conditions precedent to Xxxxx Xxxxxxxx’x obligation to Close. All obligations of Xxxxx Xxxxxxxx’x hereunder are subject, at the option of Xxxxx Xxxxxxxx’x, to the fulfillment of each of the following conditions at or prior to the Closing, and the Selling Members and Xxxxx X’x shall exert commercially reasonable efforts to cause each such conditions to be so fulfilled:

(a) All representations and warranties of the Selling Members and Xxxxx X’x contained herein and in any document delivered pursuant hereto shall be true and correct in all material respects when made and shall be deemed to have been made again and given at and as of the date of the Closing of the transactions contemplated by this Agreement, and shall then be true and correct in all material respects, except for changes in the ordinary course of business after the date hereof in conformity with the representations, covenants and agreements contained herein.

(b) All covenants, agreements and obligations required by the terms of this Agreement to be performed by the Selling Members and Xxxxx X’x at or before the Closing shall have been duly and properly performed in all material respects to Xxxxx Xxxxxxxx’x reasonable satisfaction.

(c) Since the date of this Agreement there shall not have occurred any material adverse change in the business, financial condition or performance or prospects of Xxxxx X’x. The term “material adverse change” shall mean any adverse change in Xxxxx X’x operations, results of operations, assets or prospects representing a decline or reduction or an expectable decline or reduction of ten percent or more.

(d) All documents required to be delivered to Xxxxx Xxxxxxxx’x at or prior to the Closing shall have been so delivered.

(e) Xxxxx Xxxxxxxx’x shall have received financial statements of Xxxxx X’x for December 31, 2009 and 2010 and unaudited financial statements for each of the interim monthly periods ended subsequent thereto, which interim monthly period shall not show any materially adverse change in operation when compared to 2010, the financial condition and performance of Xxxxx X’x disclosed in such financial statements being to the reasonable satisfaction of Xxxxx Xxxxxxxx’x in relation to financial statements delivered prior to execution and delivery of this Agreement.

Section 3.09. Conditions precedent to the Selling Members’ and Xxxxx X’x obligation to Close. All obligations of the Selling Members and Xxxxx X’x at the Closing are subject, at the option of the Selling Members, to the fulfillment of each of the following conditions at or prior to the Closing, and Xxxxx Xxxxxxxx’x shall exert commercially reasonable efforts to cause each such condition to be so fulfilled.

(a) All representations and warranties of Xxxxx Xxxxxxxx’x contained herein or in any document delivered pursuant hereto shall be true and correct in all material respects when made and shall be deemed to have been made again and given at and as of the date of the Closing of the transactions contemplated by this Agreement, and shall then be true and correct in all material respects, except for changes in the ordinary course of business after the date hereof in conformity with the representations, covenants and agreements contained herein.

(b) All covenants, agreements and obligations required by the terms of this Agreement to be performed by Xxxxx Xxxxxxxx’x at or before the Closing shall have been duly and properly performed in all material respects to the Selling Members’ reasonable satisfaction.

(c) All documents required to be delivered to the Selling Members at or prior to the Closing shall have been so delivered.

(d) Since the date of this Agreement, there shall not have occurred any material adverse change in the business, financial condition or performance or prospects of Xxxxx Xxxxxxxx’x. The term “material adverse change” shall mean any adverse change in Xxxxx Xxxxxxxx’x operations, results of operations, assets or prospects representing a decline or reduction or an expectable decline or reduction of ten percent or more.

(e) The transaction contemplated by this Agreement and related agreements shall have been approved in writing by Xxxxx Xxxxxxxx’x board of directors.

(f) The Selling Members shall have received a certificate of good standing for Xxxxx Xxxxxxxx’x issued by the secretary of state of Florida and of each state in which it is qualified or required to be qualified to do business as a foreign corporation.

(g) The Selling Members shall have had an opportunity to ask questions of Xxxxx Xxxxxxxx’x management regarding the reports it has filed with the U.S. Securities and Exchange Commission and its prospects, financial and otherwise, and received answers satisfactory to them, subject to the confidentiality requirements of Regulation FD.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE PARTIES

Section 4.01. Representations and warranties of the Selling Members and Xxxxx X’x. Each of the Selling Members and Xxxxx X’x represents and warrants, jointly and severally, to Xxxxx Xxxxxxxx’x, as follows:

(a) Xxxxx X’x is a duly organized and an existing entity in good standing under the laws of its state of incorporation and has full corporate power to execute, deliver and perform this Agreement.

(b) Xxxxx X’x is qualified to do business and in good standing in each state and jurisdiction in which the nature of its activities and ownership of property require it to be qualified as a foreign corporation.

(c) All licenses required for the conduct of Xxxxx X’x business in intra and interstate commerce are in full force and effect; and, there is no proceeding of any nature pending or, to the best knowledge of the Selling Members and Xxxxx X’x, threatened which if determined adversely to Xxxxx X’x would result in a revocation, cancellation of or material limitation or restriction on Xxxxx X’x and the conduct of its or any subsidiary’s business as it is presently conducted.

(d) To the best knowledge of Selling Members and Xxxxx X’x, Xxxxx X’x is in compliance with all federal and state laws and regulations applicable to it governing the offer, sale and operations of franchises.

(e) This Agreement has been duly and validly authorized, executed and delivered by Xxxxx X’x and constitutes the legal, valid and binding obligation of Xxxxx X’x enforceable against it, in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization and other laws of, relating to or affecting stockholders and creditors rights generally and to general equitable principles.

(f) To the best knowledge of the Selling Members and Xxxxx X’x, the execution of this Agreement and consummation of the transactions contemplated hereby does not conflict with and will not result in any adverse consequences to or material breach of any agreement (financing or otherwise), mortgage, instrument, judgment, decree, law or governmental regulation, license, permit or authorization by Xxxxx X’x or in the loss, forfeiture or waiver of any rights, license, authorization or franchise owned by Xxxxx X’x, from which Xxxxx X’x benefits or which is desirable in the conduct of Xxxxx X’x business.

(g) To the best knowledge of the Selling Members and Xxxxx X’x, except for such actions as may have been taken, no further action by or before any governmental body or authority of the United States of America or any state or subdivision thereof to which Xxxxx X’x is subject is required in connection with the execution and delivery of this Agreement by Xxxxx X’x and the consummation of the transactions contemplated hereby by the Selling Members.

(h) The information Xxxxx X’x has delivered to Xxxxx Xxxxxxxx’x relating to Xxxxx X’x was, to the best knowledge of the Selling Members and Xxxxx X’x, on the date reflected in each such item of information accurate in all material respects and, to the best knowledge of the Selling Members and Xxxxx X’x, such information at the date hereof taken as a whole provides full and fair disclosure of all material information relating to Xxxxx X’x and does not, to the best knowledge of the Selling Members and Xxxxx X’x, omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

(i) Xxxxx X’x has conducted its business substantially consistent with prior practice for the last three years or since inception, whichever is less.

(j) Neither Xxxxx X’x nor any employee, to the Selling Members and Xxxxx X’x best knowledge, has since inception given or agreed to give any gift or similar benefit valued at more than $25 annually to any customer, supplier, governmental employee or other person who is or may be or have been in a position to help or hinder Xxxxx X’x business, or a gift or similar benefit in any amount or value which might subject Xxxxx X’x to damage or penalty in civil, criminal or governmental litigation or proceedings.

(k) Xxxxx X’x financial statements delivered to Xxxxx Xxxxxxxx’x, fairly present the financial condition of Xxxxx X’x in all material respects at the dates and the results of operations for the periods indicated. Xxxxx X’x financial records are maintained in accordance with good business practice.

(l) Xxxxx X’x has good title to all of its properties and assets, including intangible assets, if any, which it owns or uses in its business or purports to own, including, without limitation, those reflected in its books and records and in the balance sheet, both tangible and intangible None of the properties and assets are subject to any mortgage, pledge, lien, charge, security interest, encumbrance, restriction, lease, license, easement, liability or adverse claim of any nature whatsoever, direct or indirect, whether accrued, absolute, contingent or otherwise, except for a security interest in certain assets in favor of Maduca, or as expressly set forth in the notes to Xxxxx X’x financial statements as securing specific liabilities or subject to specific capital leases and have arisen only in the ordinary course of business.

(m) All of the material contracts, agreements, leases, licenses and commitments of Xxxxx X’x (other than those which have been fully performed), copies of all of which have been delivered to Xxxxx Xxxxxxxx’x, are, to the best knowledge of the Selling Members and Xxxxx X’x valid and binding, enforceable in accordance with their respective terms, in full force and effect and there is not there under with respect to any party thereto any existing default or event, which after the giving of notice or lapse of time or both, would constitute a default or result in a right to accelerate or loss of rights and none of such contracts, agreements, leases, licenses and commitments is, either when considered singly or in the aggregate with others, unduly burdensome, onerous or materially adverse to Xxxxx X’x business, properties, assets, earnings or prospects, either before or after the Closing.

(n) There is no claim, legal action, suit, arbitration, governmental investigation, or other legal or administrative proceeding, nor any order, decree, judgment or judgment in progress, pending or in effect or to the Selling Members and Xxxxx X’x knowledge threatened, against or relating to Xxxxx X’x, its directors, officers or employees with respect to Xxxxx X’x or its business or for which Xxxxx X’x may have an indemnity obligation, it properties, assets or business or the transaction contemplated by this Agreement and the Selling Members and Xxxxx X’x do not know or have any reason to be aware of any basis for the same, including any basis for a claim of sexual harassment or racial or age discrimination.

(o) To the best knowledge of the Selling Members and Xxxxx X’x, all Xxxxx X’x taxes, including without limitation, income, property, special assessments, sales, use, franchise, intangibles, employees’ income withholding and social security taxes, including employer’s contribution, other than those for which a return or deposit is not yet due and have been disclosed to Xxxxx Xxxxxxxx’x, imposed by the United States or any state, municipality, subdivision, authority, which are due and payable, and all interest and penalties thereon, unless disputed in good faith in proper proceedings and reserved for or set aside, have been paid in full and all tax returns required to be filed in connection therewith have been accurately prepared and timely filed and all deposits required by law to be made by Xxxxx X’x with respect to employees’ withholding and social security taxes have been made. Xxxxx X’x is not subject of an audit by any taxing authority. There is not now in force any extension of time with respect to the date when tax return was or is due to be filed, or any waiver or agreement by Xxxxx X’x for the extension of time for the assessment of any tax and Xxxxx X’x is not a “consenting corporation” within the meaning of Section 341(f)(1) of the Tax Code.

(p) Xxxxx X’x does not have any employee benefit, pension or profit sharing plans subject to ERISA and no such plans to which Xxxxx X’x is obligated or required to make contributions.

(q) None of Xxxxx X’x employees are represented by a collective bargaining agent or subject to a collective bargaining agreement and Xxxxx X’x considers its relations with its employees as a whole to be good. Xxxxx X’x has disclosed to Xxxxx Xxxxxxxx’x all employee salary, compensation and benefit agreements and no employee, other than Xx. Xxxxxxxx, has a written employment agreement.

(r) No person has guaranteed any obligation of Xxxxx X’x, and Xxxxx X’x has not guaranteed the obligation of any other person.

(s) Xxxxx X’x and its Selling Members have no knowledge of any event or events which will result in a material adverse effect on Xxxxx X’x.

(t) No broker, finder or other person is entitled to any compensation, fees or other payments in connection with the transactions contemplated by this Agreement.

Section 4.02. Xxxxx Xxxxxxxx’x representations and warranties. Xxxxx Xxxxxxxx’x represents and warrants to the Selling Members that:

(a) Xxxxx Xxxxxxxx’x is a duly incorporated and existing corporation in good standing under the laws of its state of incorporation and has full corporate power to execute and deliver this Agreement.

(b) Xxxxx Xxxxxxxx’x is qualified to do business and in good standing in each state and jurisdiction in which the nature of its activities and ownership of property require it to be qualified as a foreign corporation.

(c) All licenses required for the conduct of Xxxxx Xxxxxxxx’x business in intra and interstate commerce are in full force and effect; and, there is no proceeding of any nature pending or, to the best knowledge of Xxxxx Xxxxxxxx’x, threatened which if determined adversely to Xxxxx Xxxxxxxx’x would result in a revocation, cancellation of or material limitation or restriction on Xxxxx Xxxxxxxx’x and the conduct of its or any subsidiary’s business as it is presently conducted.

(d) To the best knowledge of Xxxxx Xxxxxxxx’x, Xxxxx Xxxxxxxx’x is in compliance with all federal and state laws and regulations applicable to it governing the offer, sale and operations of franchises.

(e) This Agreement has been duly and validly authorized, executed and delivered by Xxxxx Xxxxxxxx’x and constitutes the legal, valid and binding obligation of Xxxxx Xxxxxxxx’x, enforceable against Xxxxx Xxxxxxxx’x in accordance with its terms subject, as to enforceability, to bankruptcy, insolvency, reorganization and other laws of, relating to or affecting shareholders and creditors rights generally and to general equitable principles.

(f) To the best knowledge of Xxxxx Xxxxxxxx’x, the execution of this Agreement and consummation of the transactions contemplated hereby does not conflict with and will not result in any adverse consequences to or material breach of any agreement (financing or otherwise), mortgage, instrument, judgment, decree, law or governmental regulation, license, permit or authorization by Xxxxx Xxxxxxxx’x or in the loss, forfeiture or waiver of any rights, license, authorization or franchise owned by Xxxxx Xxxxxxxx’x, from which Xxxxx Xxxxxxxx’x benefits or which is desirable in the conduct of Xxxxx Xxxxxxxx’x business.

(g) Except for such actions as may have already been taken, no further action by or before any governmental body or authority of the United States of America or any state thereof is required in connection with the execution, delivery and performance of this Agreement by Xxxxx Xxxxxxxx’x and the consummation of the transactions contemplated hereby.

(h) The information Xxxxx Xxxxxxxx’x have delivered to the Selling Members was on the date reflected in each such item of information accurate in all material respects and such information at the date hereof as a whole did not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

(i) The information and financial statements Xxxxx Xxxxxxxx’x has filed under the 1934 Act and has delivered to the Selling Members, on the date reflected in each report and element of information and financial statements, are accurate in all material respects and, to the knowledge of Xxxxx Xxxxxxxx’x, such information at the date hereof taken as a whole provides, to the best knowledge of Xxxxx Xxxxxxxx’x, full and fair disclosure of all material information relating to Xxxxx Xxxxxxxx’x and does not, to the knowledge of Xxxxx Xxxxxxxx’x omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

(j) No broker, finder or other person is entitled to any compensation, fees or other payments in connection with the transactions contemplated by this Agreement.

(k) Xxxxx Xxxxxxxx’x has good title to all of its properties and assets, including intangible assets, if any, which it owns or uses in its business or purports to own, including, without limitation, those reflected in its books and records and in the balance sheet, both tangible and intangible None of the properties and assets are subject to any mortgage, pledge, lien, charge, security interest, encumbrance, restriction, lease, license, easement, liability or adverse claim of any nature whatsoever, direct or indirect, whether accrued, absolute, contingent or otherwise, except as expressly set forth in the notes to Xxxxx Xxxxxxxx’x financial statements as securing specific liabilities or subject to specific capital leases and have arisen only in the ordinary course of business.

(m) All of the material contracts, agreements, leases, licenses and commitments of Xxxxx Xxxxxxxx’x (other than those which have been fully performed), copies of all of which have been delivered to Xxxxx X’x are, to the best knowledge of Xxxxx Xxxxxxxx’x, valid and binding, enforceable in accordance with their respective terms, in full force and effect and there is not there under with respect to any party thereto any existing default or event, which after the giving of notice or lapse of time or both, would constitute a default or result in a right to accelerate or loss of rights and none of such contracts, agreements, leases, licenses and commitments is, either when considered singly or in the aggregate with others, unduly burdensome, onerous or materially adverse to Xxxxx Xxxxxxxx’x business, properties, assets, earnings or prospects, either before or after the Closing.

(n) There is no claim, legal action, suit, arbitration, governmental investigation, or other legal or administrative proceeding, nor any order, decree, judgment or judgment in progress, pending or in effect or to Xxxxx Xxxxxxxx’x knowledge threatened, against or relating to Xxxxx Xxxxxxxx’x, its directors, officers or employees with respect to Xxxxx Xxxxxxxx’x or its business or for which Xxxxx Xxxxxxxx’x may have an indemnity obligation, its properties, assets or business or the transaction contemplated by this Agreement and the Xxxxx Xxxxxxxx’x does not know or have any reason to be aware of any basis for the same, including any basis for a claim of sexual harassment or racial or age discrimination.

(o) To the best knowledge of Xxxxx Xxxxxxxx’x, all taxes, including without limitation, income, property, special assessments, sales, use, franchise, intangibles, employees’ income withholding and social security taxes, including employer’s contribution, other than those for which a return or deposit is not yet due and have been disclosed to Xxxxx X’x, imposed by the United States or any state, municipality, subdivision, authority, which are due and payable, and all interest and penalties thereon, unless disputed in good faith in proper proceedings and reserved for or set aside, have been paid in full and all tax returns required to be filed in connection therewith have been accurately prepared and timely filed and all deposits required by law to be made by Xxxxx Xxxxxxxx’x with respect to employees’ withholding and social security taxes have been made. Xxxxx Xxxxxxxx’x is not subject of an audit by any taxing authority. There is not now in force any extension of time with respect to the date when tax return was or is due to be filed, or any waiver or agreement by Xxxxx Xxxxxxxx’x for the extension of time for the assessment of any tax and Xxxxx Xxxxxxxx’x is not a “consenting corporation” within the meaning of Section 341(f)(1) of the Tax Code.

(p) None of Xxxxx Xxxxxxxx’x employees are represented by a collective bargaining agent or subject to a collective bargaining agreement and Xxxxx Xxxxxxxx’x considers its relations with its employees as a whole to be good.

Section 4.03. Nature and survival of representation and warranties; Remedies. For purposes of this Section 4.03 and Section 9.01 only, any party or other person seeking to enforce, or claiming the benefit of, any representation and warranty under this Agreement is called a Claimant, and any party or other person against whom a right is claimed is called a Defendant. All representations and warranties of the parties shall survive the Closing; provided, however, that all representations and warranties shall terminate and expire, and be without further force and effect whatever from and after one calendar year from the Closing, and neither the Selling Members, Xxxxx X’x nor Xxxxx Xxxxxxxx’x shall have any liability whatsoever on account of any inaccurate representation or warranty or for any breach of warranty, unless a Claimant shall, on or prior to the expiration of such one calendar year period, serve written notice on a Defendant, with a copy to the Defendant’s counsel, setting forth in reasonable detail the breach and any direct, incidental or consequential damages (including amounts) the Claimant may have suffered as a result of such breach.

ARTICLE V

COVENANTS OF THE PARTIES

Section 5.01. Conduct of business prior to Closing.

(a) From the date hereof to the Closing, Xxxxx X’x will conduct its business and affairs only in the ordinary course and consistent with its prior practice and shall endeavor to maintain, keep and preserve its assets and properties in good condition and repair and maintain insurance thereon in accordance with present practices, it will use its best efforts (i) to preserve its business and organization intact, (ii) to keep available to Xxxxx Xxxxxxxx’x the services of Xxxxx X’x present employees, agents and independent contractors, (iii) to preserve for the benefit of Xxxxx X’x and Xxxxx Xxxxxxxx’x the goodwill of suppliers, customers, distributors, landlords and others having business relations with it, and (iv) to cooperate and use reasonable efforts to obtain the consent of any landlord or other party to any lease or contract with Xxxxx X’x where the consent of such landlord or other party may be required by reason of the transactions contemplated hereby.

(b) From the date hereof to the Closing, Xxxxx X’x shall not outside the ordinary course of business (i) dispose of any material assets, (ii) engage in any extraordinary transactions without Xxxxx Xxxxxxxx’x prior approval, including but not limited to, directly or indirectly, soliciting, entertaining, encouraging inquiries or proposals or entering into negotiation or agreement with any third party for sale of assets by Xxxxx X’x, sale of its equity securities or merger, consolidation or combination with any company, (iii) grant any salary or compensation increase to any employee, or (iv) make any commitment for capital expenditures, other than as disclosed to Xxxxx Xxxxxxxx’x and approved by it.

Section 5.02. Notice of changes in information. From the date hereof to the Closing, each party shall give the other parties prompt written notice of any change in any of the information contained in their respective representations and warranties made in Article IV, or elsewhere in this Agreement, or the exhibits and schedules referred to herein or any written statements made or given in connection herewith which occurs prior to the Closing.

Section 5.03. Notice of extraordinary changes. From the date hereof to the Closing, Xxxxx X’x shall advise Xxxxx Xxxxxxxx’x with respect to any of the following events outside of ordinary course of business and which are materially adverse: (i) the entering into and cancellation or breach of contracts, agreements, licenses, commitments or other understandings or arrangements to which Xxxxx X’x is a party, (ii) any changes in purchasing, pricing or selling policy, or, any changes in its sales, business or employee relations in general, and (iii) the filing or commencement of any litigation or governmental or agency proceedings against Xxxxx X’x.

Section 5.04. Action to preserve Xxxxx X’x business and assets. From the date hereof to the Closing, notwithstanding anything contained in this Agreement to the contrary, Xxxxx X’x will not take or fail to take any action that in Xxxxx X’x reasonable business judgment, is likely to give rise to a substantial penalty or a claim for damages by any third party against Xxxxx X’x, or is likely to result in losses, or is otherwise likely to prejudice in any material respect or unduly interfere with the conduct of its business and operations in the ordinary course consistent with prior practice, or is likely to result in a breach by Xxxxx X’x of any of its representations, warranties or covenants contained in this Agreement (unless any such breach is first waived in writing by Xxxxx Xxxxxxxx’x).

Section 5.05. Cooperation by the parties. From the date hereof to the Closing, each party hereto shall cooperate and shall take such further action as may be reasonably requested by any other party in order to carry out the provisions and purposes of this Agreement.

Section 5.06. Conduct of Xxxxx X’x business after Closing. Xxxxx X’x will be operated as a wholly owned subsidiary of Xxxxx Xxxxxxxx’x, and as a separate corporation, and shall not be merged into Xxxxx Xxxxxxxx’x or any other subsidiary of Xxxxx Xxxxxxxx’x or any other entity whatsoever; nor shall all or any substantial part of the assets of Xxxxx X’x be sold; nor shall a lien or security interest be granted with respect to the assets of Xxxxx X’x, in all cases until Xxxxx Xxxxxxxx’x has paid the Xxxxx Xxxxxxxx’x Notes in full according to its terms. Before such payment of the Xxxxx Xxxxxxxx’x Notes, Xxxxx X’x will be operated consistent with operations immediately prior to the Closing. Xxxxx X’x and its operations and financial affairs shall be subject to the examination and inspection by Xxxxx Xxxxxxxx’x, who shall at all times have access to the books and records of Xxxxx X’x.

ARTICLE VI

FEDERAL INCOME TAX MATTERS

Section 6.01. Federal income tax treatment. Each party shall be responsible for obtaining his, her or its own tax advice with respect to and understanding the federal income tax consequences of the transactions and the federal income tax consequences thereof contemplated by this Agreement and waives any reliance with respect thereto on any other party.

ARTICLE VII

SECURITIES LAW MATTERS AND STATUS OF THE XXXXX XXXXXXXX’X SECURITIES

Section 7.01. Unregistered securities. The Xxxxx Xxxxxxxx’x Notes delivered to the Selling Members are not being registered under the 1933 Act and the securities laws of Florida or any other state of jurisdiction, and the shares are not transferable, except as permitted under various exemptions contained in the 1933 Act and applicable state securities law. The provisions contained in the following sections are intended to ensure compliance with the 1933 Act and applicable state securities law.

Section 7.02. No transfers in violation of 1933 Act. The Selling Members respectively agree not to offer, sell, assign, pledge, hypothecate, transfer or otherwise dispose of Xxxxx Xxxxxxxx’x Notes, except after full compliance with all of the applicable provisions of and regulations under the 1933 Act and applicable state securities law.

Section 7.03. Investment intent. The Selling Members respectively represent and warrant to and covenant with Xxxxx Xxxxxxxx’x that each of them is acquiring Xxxxx Xxxxxxxx’x Notes for his own account for investment and not with a view to resale or other distribution; that they currently has no intention of selling, assigning, transferring, pledging, hypothecating or otherwise disposing of all or any part thereof at any particular time, for any particular price, or on the happening of any particular event or circumstance; and respectively acknowledge that they understands Xxxxx Xxxxxxxx’x is relying on the truth and accuracy of his covenants, warranties and representations in issuing Xxxxx Xxxxxxxx’x Notes without first registering them under the 1933 Act.

Section 7.04. Investment legend on certificates. The Selling Members agree that the certificates evidencing Xxxxx Xxxxxxxx’x Notes shall contain the following legend or a legend of similar import:

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND IS A “RESTRICTED SECURITY” AS DEFINED UNDER SAID ACT. ACCORDINGLY, NEITHER THIS SECURITY NOR ANY INTEREST THEREIN MAY BE SOLD, OFFERED FOR SALE, ASSIGNED, TRANSFERRED, PLEDGED OR HYPOTHECATED, EXCEPT BY BONA FIDE GIFT OR INHERITANCE, IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THIS SECURITY UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED.

ARTICLE VIII

NOTICES

Section 8.01. Procedure for giving notices. Any and all notices or other communications required or permitted to be given under any of the provisions of this Agreement shall be in writing and shall be deemed to have been duly given when personally delivered (excluding telephone facsimile and including receipted express courier and overnight delivery service) or mailed by first class certified U.S. mail, return receipt requested showing name of recipient, addressed to the proper party.

Section 8.02. Addresses for notices. For purposes of sending notices under this Agreement, the addresses of the parties are as follows:

As to Xxxxx X’x:	Xxxxxx Xxxxxxxx, Xx., President
(prior to Closing)	Xxxxx X’x Original Westshore Pizza, LLC
	0000 Xxxx Xxx Xxxxx Xxxxxx
	Xxxxx, XX 00000
Copy to:	Xxxxx X. Xxxxxx, Esq. Xxxxxx, Xxxxxxxx & Xxxxxxxxx, P.C. 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxx 000 Xxxxxxx, Xxxxxxx 00000
As to Xxxxx X’x Pizza Inc.:	Xx. Xxxxxx Xxxxxxxx, Xx.
	X.X. Xxx 00000
	Xxxxx, XX 00000
Copy to:	Xxxxx X. Xxxxxx, Esq. Xxxxxx, Xxxxxxxx & Xxxxxxxxx, P.C. 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxx 000 Xxxxxxx, Xxxxxxx 00000
As to Bout Time Marketing, LLC:	Xx. Xxxxxxxx Xxxxxx
	X.X. Xxx 00000
	Xx. Xxxxxxxxxx, XX 00000
Copy to:	Xxxxx X. Xxxxxx, Esq. Xxxxxx, Xxxxxxxx & Xxxxxxxxx, P.C. 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxx 000 Xxxxxxx, Xxxxxxx 00000

As to Xxxxx Xxxxxxxx’x	Xxxx X. Xxxxxxx, Xx., Chief Executive Officer
and Xxxxx X’x (after Closing):	Xxxxx Xxxxxxxx’x Holdings, Inc.
	000 Xxxxx Xxxxxx Xxxxxx
	Xxxxx, XX 00000

Copy to:	Xxxxxxx X. Xxxxxx, Esq.
	0000 Xxxx Xxxxx X Xxxxxx
	Xxxxx, Xxxxxxx 00000-0000

Section 8.03. Change of address. A party may change its address for notices by sending a notice of such change to all other parties by the means provided in Section 8.01.

ARTICLE IX

LEGAL AND OTHER COSTS

Section 9.01. Party entitled to recover. In the event that any party (the “Defaulting Party”) defaults in his or its obligation under this Agreement and, as a result thereof, the other party (the “Non-Defaulting Party”) seeks to legally enforce his or its rights hereunder against the Defaulting Party (whether in an action at law, in equity or in arbitration), then, in addition to all damages and other remedies to which the Non-Defaulting Party is entitled by reason of such default, the Defaulting Party shall promptly pay to the Non-Defaulting Party an amount equal to all costs and expenses (including reasonable attorneys’ fees and expert witness fees) paid or incurred by the Non-Defaulting Party in connection with such enforcement.

Section 9.02. Interest. In the event the Non-Defaulting Party is entitled to receive an amount of money by reason of the Defaulting Party’s default hereunder, then, in addition to such amount of money, the Defaulting Party shall promptly pay to the Non-Defaulting Party a sum equal to interest on such amount of money accruing at the rate of 1.5% per month during the period between the date such payment should have been made hereunder and the date of the actual payments thereof.

ARTICLE X

MISCELLANEOUS

Section 10.01. Effective date. The effective date of this Agreement shall for all purposes be the date set forth in first paragraph hereof notwithstanding a later actual date of execution by any individual party.

Section 10.02. Entire agreement. This writing constitutes the entire agreement of the parties with respect to the subject matter hereof, superseding all prior agreements, understandings, representations and warranties; provided, that a separate Stock Purchase and Sale Agreements between Xxxxx Xxxxxxxx’x as the buyer, and on the other hand Xx. Xxxxxxxx as seller and Philly Westshore Franchising Enterprises, Inc. and on the other hand Xx. Xxxxxxxx as seller and Xxxxxxxx Real Estate Holdings, LLC, and an intellectual property buy/sell agreement between Xx. Xxxxxxxx as seller and Philly Westshore as buyer are essential and included components of the transactions of which the transactions contemplated by this Agreement are a part.

Section 10.03. Waivers. No waiver of any provision, requirement, obligation, condition, breach or default hereunder, or consent to any departure from the provisions hereof, shall be considered valid unless in writing and signed by the party giving such waiver, and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or similar nature.

Section 10.04. Amendments. This Agreement may not be modified, amended or terminated except by a written agreement specifically referring to this Agreement signed by all of the parties hereto and amendment, modification or alteration of, addition to or termination of this Agreement or any provision of this Agreement shall not be effective unless it is made in writing and signed by the parties.

Section 10.05. Construction. This Agreement has been negotiated by the parties, section by section, and no provision hereof shall be construed more strictly against one party than against the other party by reason of such party having drafted such provision. The order in which the provisions of this Agreement appear are solely for convenience of organization; and later appearing provisions shall not be construed to control earlier appearing provisions.

Section 10.06. Invalidity. It is the intent of the parties that each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If any provision hereof shall be prohibited, invalid, illegal or unenforceable, in any respect, under applicable law, such provision shall be ineffective to the extent of such prohibition, invalidity or non enforceability only, without invalidating the remainder of such provision or the remaining provisions of this Agreement; and, there shall be substituted in place of such prohibited, invalid, illegal or unenforceable provision a provision which nearly as practicable carries out the intent of the parties with respect thereto and which is not prohibited and is valid, legal and enforceable.

Section 10.07. Multiple counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original and, taken together, shall be deemed one and the same instrument. Signatures on this Agreement transmitted via facsimile or by electronic mail (email) shall be treated as an original for all purposes hereunder.

Section 10.08. Assignment, parties and binding effect. This Agreement, and the duties and obligations of any party shall not be assigned without the prior written consent of the other party(ies). This Agreement shall benefit solely the named parties and no other person shall claim, directly or indirectly, benefit hereunder, express or implied, as a third-party beneficiary, or otherwise. Wherever in this Agreement a party is named or referred to, the successors (including heirs and personal representative of individual parties) and permitted assigns of such party shall be deemed to be included, and all agreements, promises, covenants and stipulations in this Agreement shall be binding upon and inure to the benefit of their respective successors and permitted assigns.

Section 10.09. Survival of representations and warranties. The representations and warranties made herein shall survive the execution and delivery of this Agreement and full performance hereunder of the obligations of the representing and warranting party, subject to the provisions of Section 4.03.

Section 10.10. Jurisdiction and venue. Any action or proceeding for enforcement of this Agreement and the instruments and documents executed and delivered in connection herewith which is determined by a court of competent jurisdiction not, as a matter of law, which seeks injunctive relief shall be brought and enforced in the courts of the State of Florida in and for Hillsborough County, Florida, and the parties irrevocably submit to the jurisdiction of each such court in respect of any such action or proceeding.

Section 10.11. Applicable law. This Agreement and all amendments thereof shall be governed by and construed in accordance with the law of the State of Florida applicable to contracts made and to be performed therein (not including the choice of law rules thereof).

[Testimonium on following page.]

IN WITNESS WHEREOF, the parties hereto have caused this agreement to be signed by their respective officers thereunto duly authorized and their respective corporate seals to be hereunto affixed, the day and year first above written.

	Xxxxx Xxxxxxxx’x Holdings, Inc.
[Corporate Seal]
Attest:	By:	/s/ Xxxx X. Xxxxxxx, Xx.
/s/ Xxxxxxx X. Xxxxxx		Xxxx X. Xxxxxxx, Xx., Chief Executive Officer
Xxxxxxx X. Xxxxxx, Secretary
	Xxxxx X’x Original Westshore Pizza, LLC.

	By:	/s/ Xxxxxx Xxxxxxxx, Xx.
		Xxxxx X’x Pizza, Inc., Manager

	By:	/s/ Xxxxxx Xxxxxxxx, Xx.
		Xxxxxx Xxxxxxxx, Xx., President

[Corporate Seal]	Xxxxx X’x Pizza, Inc.
Attest:
	By:	/s/ Xxxxxx Xxxxxxxx, Xx.
/s/ Xxxxxx Xxxxxxxx, Xx.		Xxxxxx Xxxxxxxx, Xx., President
Secretary
	Bout Time Marketing, LLC.

	By:	/s/ Xxxxxxxx Xxxxxx
		Xxxxxxxx Xxxxxx, Manager

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Table of Contents

MEMBERSHIP UNIT PURCHASE AND SALE AGREEMENT

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