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EXHIBIT 10.8
MANAGEMENT AND CONSULTING AGREEMENT
This AGREEMENT is entered into this 1st day of June, 1997, by and
between S.E.I., a Florida corporation, whose address 000 Xxxxxxxx Xxxxxx #000,
Xxxx Xxxx Xxxxx, Xxxxxxx 00000 and U.R.C., a Florida corporation whose address
is 000 X. Xxxxxxxx Xxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000.
BACKGROUND FACTS
1. U.R.C. is in the business of owing, operating, designing and
consulting with others for the creation and operation of restaurants and
restaurant concepts.
2. S.E.I. has itself developed a concept for a restaurant, Xxxxxx
which sells Italian style lunches and dinners, as well as appetizers and
desserts. In combination with a bar and disco, together S.E.I. and U.R.C.
developed My Martini an upscale American grille and bar.
3. S.E.I. desires to retain U.R.C. to manage and operate both
restaurants for one year from the date of this agreement.
TERMS AND CONDITIONS
IN CONSIDERTION of the above facts and thefollowing mutual covenants
and conditions, the sufficiency of which is hereby acknowledged, the parties
agree as follows:
1. Duties. S.E.I. hereby retains U.R.C. and U.R.C. hereby agrees to
provide the following services:
A. Determine menu and bar items, design menu, create recipes for
all menu items, test all menu items, cost out all menu items, and develop
product specifications;
B. Interview, hire and train all management for the operations and
develop employee hiring and training programs and manuals for S.E.I.'s ongoing
use;
C. Develop, implement and maintian an operations manual to cover
product purchasing, receiving, storage, menu preparation, service standards and
policies, develop operating forms as needed, oversee vendor selection, insure
cleaning schedules are in place, develop kitchen and bar forms (order forms,
inventory, daily preparation), and all other matters relating to operation of
the Restaurants;
D. Develop and implement a marketing plan with advertising and
promotional programs, ideas and formats, take a part in signage decisions, and
conduct market research as needed;
E. Supervise the ongoing operation of the Restaurants in a manner
simmilar to all U.R.C. restaurants in order to maximize sales and
profitability;
F. S.E.I. has the right to approve all management salaries,
operating budgets, and non food and beverae expenditures exceeding $1,000:
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G. U.R.C. will conduct, or cause to conduct a Repairs and Maintenance
Audit no less than quarterly, and insure all discrepancies are corrected.
2. Extent of Servicing. U.R.C. agrees that the services to be provided by
it will be under the direction of Xxxxxx Xxx and Xxxx Xxxxxxxx with primary
assistance being from Xxxx Xxxxxx or any Unique Restaurant Concepts multi unit
supervisor. Max and Xxxxxxxx will devote such time, attention, and energies
as are reasonably necessary to accomplish the purposes described in paragraph
1 above. The parties acknowledge and understand that although U.R.C. will be
involved in the operation and consulting with and for other restaurant concepts
as well as that of S.E.I., U.R.C. will use its best efforts consistent with its
obligations to its other restaurant projects to maximize the likelihood of
success fo the Restaurants.
3. Compensation. In exchange for the services rendered by U.R.C. pursuant
to this Agreement S.E.I. agrees to pay U.R.C. a management and consulting fee
relating to Xxxxxx and My Martini.
A. One percent (1%) of the next taxable sales payable monthly by 20th
day of each month end:
B. 20% of the net operating profit (defined below), be paid monthly
by the 20th day of each month. "Net operating profit" shall equal the gross
revenues of such Restaurant less all direct operating expenses of the
Restaurant but specifically not including in such direct operating expenses:
1. Any royalties, management fees or administrative charges
paid by the Restaurant to S.E.I. or its affiliates,
except for the fair market value of services actually
rendered, or goods actually received;
2. Any guaranteed return on investment or similar payments
to investors not payable out of the cash flow of the
business;
3. Any payments to the investors other than rent;
4. Any similar types of changes
5. Any principal's salaries other than Xxx Xxxxxxxx'x
present salary or any mutually agreed upon salary;
6. Any accounting or legal expenses relating to the
pending initial public offering;
7. Any owners food, beverage and gratuity expense
C. Any documents which purport to modify, affect or further grant the
above-referenced rights will be subject to the review of counsel for U.R.C.
Any changes in current "fixed" expenses must be brought to the attention of
U.R.C.
4. Expenses. All expenses incurred by U.R.C. in providing its services
required under this Agreement will be paid by U.R.C. except the following:
A. Travel expenses incurred at the request of X.X.X.
X. Out-of-pocket expenses paid to unaffiliated third parties
including but not limited to accountants, attorneys, shopping services,
auditors, consultants, as long as any fees over $1,000 are pre-approved.
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C. Long distance telephone calls not incurred in the ordinary course of
business made on behalf of S.E.I.
5. Ownership of confidential information. U.R.C. acknowledges that
although it will be materially participating in the creation of all of the
Confidential Information described above, in consideration of the fees and
perpetual management and consulting fee provided by this Agreement, that all
Confidential Information will be owned by S.E.I..
6. Termination. S.E.I. will hae the right to terminate this Agreement,
effective upon delivery of written notice of termination to U.R.C. setting
forht the basis of such termination, under the following circumstances:
A. For cause, which shall be defined as any of the following: (a) any
material misappropriation of funds or property of S.E.I. by U.R.C., Max or
Xxxxxxxx; (b) Max's or Xxxxxxxx'x engagement in conduct generally offensive to
the community in which services are being performed hereunder tending to place
Max and/or Xxxxxxxx and S.E.I. by association with Max or Xxxxxxxx, in
disrepute; U.R.C.'s failure or refusal to carry out its duties in accordance
with the instructions and directions of S.E.I. to the extent required by this
Agreement.
B. S.E.I.'s obligation and U.R.C.'s obligation to perform the duties
shall terminate immediately, without further notice or action, on the
expiration or termination of the term of this Agreement.
7. Indemnification. Each of the parties to this Agreement hereby agrees
to indemnify, defend and hold the other party harmless from and against any and
all loss; cost, damage, liability and expense (including without limitation
reasonable attorneys' fees, court costs and reasonable litigation expenses)
which the other shall suffer, sustain or incur as a result, arising from or in
connection with any failure of performance or breach of the Agreement by the
other party. S.E.I. specifically agrees to hold URC, Max and Xxxxxxxx with
regard to liability or to claims by third parties relating to the operation of
the restaurant by third parties relating to the operation of the restaurant by
third parties relating to the operation of the restaurants(s), except if
resulting from the gross negligence or willful malfeasanceof URC, Max or
Xxxxxxxx.
8. Miscellaneous.
A. Written Agreement to Govern. This Agreement sets forth the entire
understanding and supersedes all prior oral or written agreements among the
parties relating to the subjet matter contained in the Agreement.
B. Severability. If any provision of this Agreement is interpreted or
construed as being in violation of any law, rules, regulations or public
policy, the remainder of the Agreement and all other agreements between the
parties shall remain binding upon the parties and shall be modified to the
extent required in order to reflect as nearly as possible the original
intentions of the parties.
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C. Notices. All notices provided for or permitted herein shall be in
writing and shall be delivered personally, by courier, or sent by United States
certified or registered mail, postage prepaid, return receipt requested,
addressed as follows:
(i) If to SEI
Xxxxxx Enterprises, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx Xxxxx, Xx. 00000
(ii) If to URC, Max or Xxxxxxxx:
Unique Restaurant Concepts, Inc.
000 X. Xxxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xx. 33432
or at such other address as either party shall from time to time designate by
writen notice to the other party. Notice by courier or certified or registered
mail, shall be effective on the date it is officially recorded as delivered to
the intended recipient by return receipt or the date of attempted delivery where
delivery is refused by the intended recipient. All notices and communications
required, contemplated or permitted by this Agreement to be delivered in person
shall be deemed to have been delivered to and received by the addressee, and
shall be effective, on the date of personal delivery.
D. Law to Govern. The validity, construction and enforceability of this
Agreement shall be governed in all respects by the laws of the State of
Florida, without regard to its conflict of laws rules.
E. Waiver of Provisions. The terms, covenants, representations,
warranties and conditions of this Agreement may be waived only by a written
instrument executed by the party waiving compliance. No Waiver by and any
party of any condition, or breach of any provision, term, covenant,
representation or warranty contained in this Agreement, whether by conduct or
otherwise, in any one or more instances, shall be deemed to be or construed as
a further or continuing waiver of any such condition or of the breach of any
other provision, term, covenant, representation or warranty of this Agreement.
F. Publication. The parties agree that the economic terms of this
Agreement will not be disclosed to other parties, except those having a need to
know (such as accountants, attorneys, financial advisors, investors,
franchisees and other parties similarly situated), without the written consent
of the other party. However the parties each may disclose and/or publicize the
fact that they have entered into this consulting arrangement with the other
party. In that connection SEI may, at is option, indicate on its menu or other
promotional materials that the menu and/or restaurant concepts were created by
URC.
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G. Arbitration. Any dispute arising out of this Agreement shall be
sumbitted to arbitration in Palm Beach County, Florida, in accordance with the
rules of the America Arbitration Association, and any decision arising from
that arbitration shall enforceable in any court of competent jurisdiction:
provided, however, the injunction provisions of this Agreement may be sought in
any court of competent jurisdiction. In the event of litigation between the
parties, the prevailing party shall be entitled to payment of its reasonable
attorney's fees, court costs and expenses by the non-prevailing party.
THE PARTIES NOW execute this Agreement, effective as of the date
indicate on the first page of this Agreement.
Xxxxxx Enterprises, Inc.
A Florida corporation
By: /s/
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Name:
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Title: CFO
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Unique Restaurant Concepts, Inc.
A Florida Corporation
By: /s/
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Name:
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Title: Executive Vice President
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