As filed with the Securities and Exchange Commission on June 14, 1996.
REGISTRATION NO. 333-03699
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MIAMI SUBS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
FLORIDA 65-0249329
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
6300 N.W. 31ST AVENUE, FORT LAUDERDALE, FLORIDA 33309 (954) 973-0000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
FRANK M. PUTHOFF, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
MIAMI SUBS CORPORATION
6300 N.W. 31ST AVENUE, FORT LAUDERDALE, FLORIDA 33309 (954) 973-0000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering: [ ]
If delivery of the Prospectus is expected to be made pursuant to Rule
434, please check the following box: [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933, OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
Page 1
<PAGE>
CROSS REFERENCE SHEET
<TABLE>
<CAPTION>
FORM S-3 ITEM NUMBER AND CAPTION LOCATION IN PROSPECTUS
<S> <C> <C>
Facing Page; Cross Reference Sheet;
1. Forepart of Registration Statement and Outside Front Outside Front Cover Page of
Cover Page of Prospectus Prospectus
2. Inside Front and Outside Back Cover Pages of Prospectus Inside Cover Page of Prospectus;
Outside Back Cover Page of Prospectus
3. Summary Information, Risk Factors and Ratio of
Earnings to Fixed Charges Prospectus Summary; Risk Factors
4. Use of Proceeds Prospectus Summary; Use of Proceeds
5. Determination of Offering Price *
6. Dilution *
7. Selling Security-Holders Selling Shareholders
8. Plan of Distribution Outside Front Cover Page of
Prospectus; Plan of Distribution
9. Description of Securities to be Registered *
10. Interests of Named Experts and Counsel *
11. Material Changes *
12. Disclosure of Commission Position on Indemnification for
Securities Act Liabilities *
</TABLE>
- -----------------------
* Not applicable
Page 2
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JUNE 14, 1996
PROSPECTUS
2,575,000 SHARES OF COMMON STOCK
MIAMI SUBS CORPORATION
COMMON STOCK
This Prospectus covers 2,575,000 shares (the "Shares") of Miami Subs
Corporation (the "Company" or "Miami Subs") Common Stock, par value $.01 per
share ("Common Stock"), consisting of: (i) 2,325,000 Shares beneficially owned
by the shareholders of the Company named herein and (ii) 250,000 Shares to be
issued by the Company upon the exercise by holders named herein of options and
warrants to acquire Common Stock of the Company (the "Selling Shareholders").
All of the shares offered hereby were, or when issued upon exercise of options
and warrants will be, acquired by the Selling Shareholders directly from the
Company in private transactions pursuant to applicable exemptions from the
registration provisions of the Securities Act of 1933, as amended. The Shares
were issued in connection with the Company's acquisition of restaurants, area
development rights or equipment. The Company will receive no proceeds from the
sale of Common Stock by the Selling Shareholders. See "Selling Shareholders."
The sale of Shares by the Selling Shareholders hereunder may be
effected from time to time through the NASDAQ National Market System, at prices
and terms then prevailing, through customary brokerage channels, in private
transactions or otherwise, either through broker-dealers acting as agents or
brokers for the seller, or through broker-dealers acting as agents or
principals, who may then resell the Shares through the NASDAQ National Market
System, at private sale or otherwise, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at negotiated
prices. If an underwriter is involved in the offering of any Shares, the
underwriter's discount will be set forth in a Prospectus Supplement. In the
event of distribution of these securities, the persons effecting such resales
and the Selling Shareholders might be deemed to be underwriters within the
meaning of the Securities Act of 1933, as amended. See "Plan of Distribution."
The Company has agreed to pay the expenses of registering the Shares,
including filing, accounting, legal and miscellaneous expenses in connection
with the registration. Additional expenses may be incurred at the time of
issuance or sale of the Shares. The Selling Shareholders will pay or assume
brokerage commissions or other charges incurred in effecting any sale by them of
the Shares.
The Company's Common Stock is traded on the NASDAQ National Market
System under the symbol "SUBS." On June 10, 1996, the closing price for the
Company's Common Stock on the NASDAQ National Market System was $1.6875.
-------------------
The securities offered hereby represent a significant degree of risk.
Investors should carefully consider certain risks and other considerations
relating to the Common Stock and the Company. See "Risk Factors" commencing on
page 7.
-------------------
THE SHARES OF THE COMPANY'S COMMON STOCK OFFERED PURSUANT TO THIS
PROSPECTUS HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
THIS PROSPECTUS IS DATED JUNE , 1996.
Page 3
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and in accordance
therewith files periodic reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). The Registration
Statement of which this Prospectus is a part and the Company's reports, proxy
statements and other information may be inspected and copied, at the prescribed
rates, at the public reference facilities maintained by the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington, D.C, and at the
Commission's regional offices at 7 World Trade Center, New York, New York,
10048, and at CitiCorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois, 60661- 2511. Such reports, proxy statements and other information may
also be inspected at the offices of The National Association of Securities
Dealers, 1735 K Street, N.W., Washington, D.C 20006.
The Company has filed with the Commission a Registration Statement on
Form S-3 (herein referred to, together with all amendments and exhibits thereto,
as the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the offering of the Shares made hereby.
This Prospectus does not contain all of the information contained in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. Statements contained in this
Prospectus as to the contents of any contract or other document are summaries
which are not necessarily complete and in each instance reference is made to the
copy of such contract or other document filed as an exhibit to the Registration
Statement, each such statement herein being qualified in all respects by such
reference. Copies of the Registration Statement and the exhibits may be
inspected, without charge, at the offices of the Commission, or obtained at
prescribed rates from the Public Reference Section of the Commission at the
address set forth above.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed with the Commission by the Company (File
No. 0-19623) pursuant to the Exchange Act are incorporated by reference in this
Prospectus:
1. Annual Report on Form 10-K for the fiscal year ended May 31,
1995;
2. Proxy Statement for Annual Meeting of Shareholders held on
October 26, 1995;
3. Quarterly Report on Form 10-Q for the quarterly period ended
August 31, 1995;
4. Quarterly Report on Form 10-Q for the quarterly period ended
November 30, 1995;
5. Quarterly Report on Form 10-Q for the quarterly period ended
February 29, 1996;
6. Current Report on Form 8-K dated January 4, 1995;
7. Current Report on Form 8-K/A dated March 3, 1995;
8. Current Report on Form 8-K dated February 15, 1995;
9. Current Report on Form 8-K/A dated April 14, 1995;
10. Current Report on Form 8-K dated March 14, 1996;
11. Current Report on Form 8-K/A dated May 10, 1996;
12. The description of the Company's Common Stock, par value $ .01
per share, contained in the Company's Registration Statement
filed under Section 12 of the Securities Exchange Act of 1934,
as amended, including all amendments and reports updating such
description.
Page 4
<PAGE>
All reports and other documents filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof and prior to the termination of the offering described herein shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the dates of the filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or superseded such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus. The Company will provide without charge to each person to
whom this Prospectus is delivered, upon written or oral request of such person,
a copy (without certain exhibits) of any or all documents incorporated by
reference in this Prospectus. Request for such copies should be directed to
Investor Relations, Miami Subs Corporation, 6300 N.W. 31st Avenue, Fort
Lauderdale, Florida 33309, (954) 973-0000.
PROSPECTUS SUMMARY
THE COMPANY
Miami Subs Corporation develops, owns, operates and franchises
restaurants under the name "Miami Subs" and "Miami Subs Grill" (the
"Restaurants"). The Restaurants are designed to offer fresh quality food with
speed and moderate prices found at fast food restaurants such as McDonald's and
Burger King, and the quality, freshness and variety found at casual dining
restaurants such as TGI Friday's and Chili's. The Restaurants feature fresh food
prepared and cooked to order including hot and cold submarine sandwiches,
various ethnic foods such as gyros, pita sandwiches and greek salads, flame
grilled hamburgers and chicken breasts, chicken wings, fresh salads, ice cream
and other desserts. The diverse, moderately priced menu is designed to attract a
broad customer base and to encourage frequent visits. The Restaurants feature a
distinctive exterior highlighted with pink and blue neon and an interior
decorated in tropical motif. The Restaurant appearance is intended to create
strong guest appeal and serve as a marketing tool.
As of May 31, 1996, there were 177 Restaurants in the system,
consisting of 37 Company operated Restaurants and 140 franchised Restaurants.
Nineteen of the Company operated Restaurants and 106 of the franchised
Restaurants are located in Florida, 50 Company and franchised Restaurants are
located in 13 other states, and two franchised Restaurants are located in
Ecuador.
Miami Subs Corporation was incorporated in the State of Florida by Mr.
Gus Boulis ("Boulis") during August 1990 for the purpose of acquiring the
worldwide rights to develop, own, operate and franchise Miami Subs restaurants.
Through a series of transactions, these rights were acquired by the Company from
Boulis, the founder of the concept, and from privately-owned companies owned by
or affiliated with him. The remaining rights were acquired during 1991 through a
merger with QSR, Inc.
The Company's principal executive offices are located at 6300 N.W. 31st
Avenue, Fort Lauderdale, Florida 33309. The Company's telephone number is (954)
973-0000.
Page 5
<PAGE>
THE OFFERING
Common Stock offered by
Selling Shareholders 2,575,000 shares
Common Stock to be outstanding
after this offering 27,238,840 shares(1)
Use of Proceeds The Company will not receive any proceeds
from the sale of Common Stock offered hereby
by the Selling Shareholders.
Risk Factors The securities offered hereby involve a high
degree of risk. See "Risk Factors."
NASDAQ National Market Symbol "SUBS"
(1) Excludes (i) 6,046,700 shares of Common Stock underlying outstanding
options granted to directors, executive officers and employees of the
Company pursuant to the Company's 1990 Executive Stock Option Plan and
(ii) 300,000 shares of Common Stock underlying outstanding options and
warrants granted to other persons.
Page 6
<PAGE>
RISK FACTORS
THE FAST FOOD RESTAURANT INDUSTRY; COMPETITION
The fast food restaurant industry is highly competitive and can be
significantly affected by many factors, including changes in local, regional or
national economic conditions, changes in consumer tastes, consumer concerns
about the nutritional quality of quick-service food and increases in the number
of, and particular locations of, competing quick-service restaurants. Factors
such as inflation, increases in food, labor and energy costs, the availability
and cost of suitable sites, fluctuating interest and insurance rates, state and
local regulations and licensing requirements and the availability of an adequate
number of hourly paid employees can also adversely affect the fast food
restaurant industry. Multi-unit food service chains like the Company can also be
substantially adversely affected by publicity resulting from food quality,
illness, injury, or other health concerns. Major chains, which have
substantially greater financial resources and longer operating histories than
the Company, dominate the fast food restaurant industry. The Company competes
primarily on the basis of location, food quality, price and menu diversity. A
change in pricing or other marketing strategies by one or more of these
competitors could have an adverse impact on the Company's sales, earnings and
growth. In response to intense industry competition and aggressive price
discounting and marketing by larger national chains, and in an attempt to reduce
or eliminate samestore-sales declines that the Miami Subs Grill system has been
experiencing, the Company has recently intensified its marketing efforts and has
adopted value pricing and price discounting strategies. There can be no
assurance that these strategies will be successful or that the Company will be
able to compete effectively against its competitors. In addition, with respect
to the sale of franchises, the Company competes with many franchisors of
restaurants and other business concepts for qualified and financially capable
franchisees.
OPERATING HISTORY
The Company has incurred net losses in four of its last five fiscal
years, and at fiscal year end May 31, 1995, the Company had an accumulated
deficit of $7,647,000. The Company's ability to achieve and maintain
profitability will, among other factors, be dependent on the successful opening
and operation of new Company and franchised restaurants on a profitable basis,
improvement of sales and operating margins in existing Company and franchised
restaurants, expansion of its franchise base, and its ability to control future
operating costs. There can be no assurance that the Company will not continue to
incur losses in the future. For the nine months ended February 29, 1996, the
Company achieved net income of $233,000, as compared to a loss of $363,000 for
year earlier period. However, there can be no assurance that the Company's
recent interim results will be indicative of its future results or that the
Company will not incur losses in the future.
GROWTH
The Company's success is dependent upon its ability to attract
qualified and financially capable franchisees, to open and operate new
restaurants on a profitable basis, particularly in markets outside of Florida,
to manage effectively the resulting larger business, and to hire, train and
integrate quality employees into its operations. The Company's ability to expand
successfully and in a controlled manner will depend on a number of factors
including the availability and cost of suitable locations, the hiring, training
and retaining of skilled management and other restaurant personnel, the
availability of adequate financing (including financing for franchisees), the
continued development and implementation of management information systems, the
selection and acceptability of franchisees, the competitive environment and
other factors, some of which are beyond management's control. Restaurants in the
Miami Subs system have historically been developed primarily through conversions
of existing properties. This strategy enabled the chain to expand more quickly
and economically than would have been possible if each Restaurant had been
developed on a vacant site. Although the Company still believes that the
strategy of converting existing properties will continue, competition for closed
and under-performing restaurant properties has increased significantly in recent
years, and fewer sites suitable for conversion are available. Accordingly,
future growth will require more costly traditional unit development, including
the acquisition of raw land and construction of buildings. There can be no
assurance that the Company will be able to attract qualified and financially
capable franchisees or that the Company or its franchisees will be able to
locate, acquire and finance attractive restaurant sites for future growth,
attract and retain competent personnel, open and operate new restaurants on a
timely, cost efficient and profitable basis, or successfully control and manage
the resulting larger business on a profitable basis.
Page 7
<PAGE>
GEOGRAPHIC CONCENTRATION; EXPANSION TO OTHER GEOGRAPHIC REGIONS
As of May 31, 1996, 125 of the restaurants in the system were located
in Florida, 50 restaurants were located in 13 other states, and two restaurants
were located in Ecuador. As a result of the concentration of restaurants in
Florida, the Company and its franchisees could be more severely affected by any
adverse economic conditions in Florida than would a more geographically
diversified restaurant company. Generally, the operating performance of Miami
Subs restaurants located outside of Florida has not been as successful as the
performance of restaurants currently operating in Florida. To date, 15 Miami
Subs Grill restaurants located outside of Florida have closed. There can be no
assurance that the concept will be able to maintain its success in Florida,
achieve success in existing markets outside of Florida or be able to be expanded
in other regions of the United States or internationally.
FRANCHISING
Franchisees currently operate 140 of the 177 restaurants in the system.
The Company receives royalty and advertising fees from its franchised
restaurants, and also receives lease/sub-lease rental income from certain of
these franchised restaurants. In addition, the Company has also guaranteed
certain third party equipment and real estate leases to certain franchisees and
from time to time has financed the sale of restaurants to franchisees.
Accordingly, the Company's success and future profitability will be
substantially dependent on the management skills and success of its existing
franchisees. In addition, expansion of the chain will be dependent on the
Company's ability to attract qualified franchisees who will be able to
successfully develop and operate restaurants. The lack of success by its
franchisees could have a material adverse effect on the Company's financial
condition and results of operations.
LIQUIDITY AND CAPITAL REQUIREMENTS
The Company has used existing cash plus new borrowings to acquire
existing restaurants from franchisees, and recently to develop three new Company
restaurants. Such use of cash has decreased the Company's cash position to
approximately $1.7 million (which includes unexpended marketing funds of
$463,000) and has increased the Company's working capital deficit to
approximately $2.0 million at February 29, 1996. Given this cash position, the
Company would be required to seek additional capital in order to fund additional
acquisitions or to develop additional new restaurants. There can no assurance
that sufficient additional capital will be available on terms acceptable to the
Company.
DEPENDENCE UPON SENIOR MANAGEMENT
The Company's success is highly dependent upon the services of its
senior management, including Thomas J. Russo, Chairman, President and Chief
Executive Officer. Mr. Russo has an employment agreement with the Company which
expires in January 1997. The loss of services of Mr. Russo or other key members
of senior management could have a material adverse effect on the Company's
financial condition and results of operations.
CONTROL BY MAJOR STOCKHOLDER
As of May 31, 1996, Gus Boulis, founder and member of the Board of
Directors of the Company, had voting control over approximately 31% of the
Company's outstanding voting shares. As a result, Mr. Boulis has the ability to
significantly influence the election of Directors and thereby to direct or
substantially influence the management, policies and business operations of the
Company. Mr. Boulis' voting power also enables him to significantly influence
the outcome of any other matters submitted to a vote of shareholders, including
potential acquisitions and amendments to the Company's Articles of
Incorporation.
Page 8
<PAGE>
LITIGATION AND OTHER CONTINGENCIES
The Company is a party to certain on going legal actions arising in the
ordinary course of business which include material claims for compensatory or
punitive damages. One of these actions was tried in April 1995, and in July 1995
the court issued its ruling in favor of the Company on virtually all counts,
except that the court awarded the plaintiff damages and attorney fees of
approximately $300,000. The Company and the plaintiff have appealed the courts
decision. Although the Company is vigorously contesting this matter and the
other pending legal actions, there can be no assurance that the existence or
continuation of such litigation, its ultimate outcome, or the costs of defense
will not have a material adverse effect on the Company.
The Company's federal income tax returns for fiscal years 1992 through
1994 are currently under examination by the Internal Revenue Service. There can
be no assurance that the outcome of such examination will not result in
adjustment to its current tax liabilities or the amount of its net operating
loss carry forward.
GOVERNMENT REGULATION
The restaurant business is subject to extensive federal, state and
local regulations relating to the development and operation of restaurants,
including regulations relating to building and zoning requirements, preparation
and sale of food and alcoholic beverages and laws governing the Company's
relationship with its employees, including minimum wage requirements, overtime
and working conditions and citizenship requirements. The failure to obtain or
retain food licenses, or a substantial increase in the minimum wage rate, could
adversely effect the operations of the Company's restaurants. The Company is
also subject to federal regulation and certain state laws which regulate the
offer and sale of franchises.
IMPACT OF NEW ACCOUNTING STANDARD
The Financial Accounting Standards Board issued Statement of Financial
Accounting Standards No. 121, "Accounting for the Impairment of Long-Lived
Assets and for Long-Lived Assets to Be Disposed Of" ("SFAS 121") in March 1995.
SFAS 121 is effective for the Company's fiscal year beginning after May 31,
1996, however earlier application is permitted. SFAS 121 establishes accounting
standards for the impairment of long-lived assets, certain identifiable
intangibles and goodwill related to those assets to be held and used and for
long-lived assets and certain identifiable intangibles to be disposed of. The
Company is currently reviewing the adoption and impact of SFAS 121. There can be
no assurance that the adoption of SFAS 121 will not have a material adverse
effect on the Company's results of operation or its financial position.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of any of the
Shares by the Selling Shareholders.
Page 9
<PAGE>
SELLING SHAREHOLDERS
The following table identifies the Selling Shareholders and indicates
(i) the nature of any position, office or other material relationship that such
Selling Shareholders have had within the past three years with the Company (or
any of its predecessors or affiliates) and (ii) the number of shares of Common
Stock owned by the Selling Shareholders prior to the offering, the number of
shares to be offered for the Selling Shareholder's account and the number of
shares and percentage of outstanding shares to be owned by the Selling
Shareholders after completion of the offering.
<TABLE>
<CAPTION>
Shares and
Percentage of
Shares Owned Class Owned
Name and Position with or Before the Shares Sold in After the
Relationship to the Company(1) Offering the Offering Offering(2)
<S> <C> <C> <C>
Manuel A. Garcia III 1,100,000(3) 1,100,000 -0-
LoneStar Hospitality Corp. 1,325,000 1,325,000 -0-
Pick Investments, LLC 50,000(4) 50,000 -0-
Jacqueline Stern 3,333(4) 3,333 -0-
Gary D. Stern and Martha M. Martin 13,334(4) 13,334 -0-
David T. Nederlander Irrevocable
Trust, Betty Nederlander, Trustee 66,667(4) 66,667 -0-
Gary Prindible 16,666(4) 16,666 -0-
</TABLE>
(1) Each of the named Selling Shareholders was either a franchisee or
affiliated with a company that was a franchisee of Miami Subs USA,
Inc., a wholly-owned subsidiary of Miami Subs Corporation.
(2) Assumes sale of all shares of Common Stock registered hereunder.
(3) Includes 100,000 shares of Common Stock that may be acquired through
the exercise of a warrant exercisable at $6.00 per share. This warrant
was issued on December 21, 1994 in connection with the Company's
acquisition of an entity owned by Mr. Garcia which operated certain
Miami Subs restaurants. This warrant is exercisable, in whole or in
part, until December 21, 1999.
(4) Consists of shares of Common Stock that may be acquired through the
exercise of options exercisable at $2.00 per share. These options were
issued on March 15, 1996 in connection with a transaction pursuant to
which the Company acquired certain furniture, fixtures and restaurant
equipment. These options are exercisable, in whole or in part, until
March 15, 2006.
PLAN OF DISTRIBUTION
The Selling Shareholders may choose to sell the Shares offered hereby
at any time in the future. The Company intends to maintain the effectiveness of
its registration of the Shares for two years following the effective date of
this Prospectus, during which time the Selling Shareholders may choose to sell
the Shares by use of one or more of the distribution methods discussed below.
Page 10
<PAGE>
The distribution of the Shares by the Selling Shareholders is not
subject to any underwriting agreement. The Selling Shareholders may sell the
Shares covered by this Prospectus through the NASDAQ National Market System, at
prices and terms then prevailing, through customary brokerage channels, in
private transactions or otherwise, either through broker-dealers acting as
agents or brokers for the seller, or through broker-dealers acting as agents or
principals, who may then resell the Shares through the NASDAQ National Market
System, at private sale or otherwise, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at negotiated
prices. Such broker-dealers may receive compensation in the form of underwriting
discounts, concessions or commissions from the Selling Shareholders and/or the
purchasers of the Shares for whom they may act as agent, which compensation may
be in excess of customary commissions. The Selling Shareholders and any
broker-dealers that participate with the Selling Shareholders in the
distribution of the Shares may be deemed to be underwriters and any commissions
received by them and any profit on the resale of the Shares positioned by them
might be deemed to be underwriting discounts and commissions under the
Securities Act. In addition, any shares covered by this Prospectus which qualify
for sale pursuant to Rule 144 under the Securities Act ("Rule 144") may be sold
under Rule 144 rather than pursuant to this Prospectus.
The Selling Shareholders are not restricted as to the price or prices
at which they may sell their Shares. Sales of such Shares at less than the
market prices thereof may depress the market price of the Company's Common
Stock. Although there are certain restrictions as to the number of Shares which
certain of the named Selling Shareholders may sell at any one time, it is
possible that a significant number of Shares could be sold at the same time
which may also have a depressive effect on the market price of the Company's
Common Stock.
The sale of shares of Common Stock offered by two of the Selling
Shareholders is limited or, in some instances, prohibited. Manuel A. Garcia III
received the 1,000,000 shares of Common Stock proposed to be sold by him
pursuant to this Prospectus (the "Garcia Shares") in a transaction in which the
Company acquired an entity owned by Mr. Garcia which operated certain Miami Subs
restaurants. Under the terms of the various agreements underlying this
transaction, and subject to certain limited exceptions, (i) Mr. Garcia is
prohibited from selling the Garcia Shares until June 22, 1996, (ii) after June
22, 1996, Mr. Garcia can sell a maximum of 150,000 shares of Common Stock per
quarter or 12,500 per week, and (iii) the Company has a right of first refusal
to purchase any of the Garcia Shares proposed to be sold.
LoneStar Hospitality Corp. received the 1,325,000 shares of Common
Stock proposed to be sold by it pursuant to this Prospectus (the "LoneStar
Shares") in a transaction with Miami Subs USA, Inc., a wholly-owned subsidiary
of the Company ("Subs USA"), in which the Company acquired certain franchised
Miami Subs restaurants. Under the terms of this transaction, the LoneStar Shares
are pledged as collateral for the repayment of a $1,500,000 Promissory Note
issued to Subs USA. The LoneStar Shares cannot be transferred or sold until the
Promissory Note is paid in full. The remaining balance under the Promissory Note
is due on July 1, 1996 (the "Maturity Date"). If the Promissory Note is not
satisfied by the Maturity Date, Subs USA has the right to foreclose upon and
retain the LoneStar Shares. Pursuant to the terms of the various agreements
underlying this transaction (i) LoneStar is prohibited from selling the
LoneStar Shares until September 2, 1996, without the Company's consent, (ii) the
Company has the right, until September 2, 1996, to repurchase all or any portion
of the LoneStar Shares, (iii) subject to certain limited exceptions, after
September 2, 1996 LoneStar can sell a maximum of 240,000 shares of Common Stock
per quarter or 20,000 per week, and (iv) until March 2, 1999 the Company has a
right of first refusal to purchase any of the LoneStar Shares proposed to be
sold.
The Company will pay the expenses, estimated to be approximately
$7,000, in connection with this offering, other than transfer taxes, discounts,
commissions, fees or expenses of underwriters, selling brokers, dealer managers
or similar securities industry professionals relating to the distribution of the
Shares, other transaction costs, or legal expenses of any person other than the
Company.
The Company has advised the Selling Shareholders that during such time
as they may be engaged in a distribution of Shares included herein, they are
required to comply with Rules 10b-6 and 10b-7 (as those Rules are described in
more detail below) under the 1934 Act and in connection therewith, that they may
not engage in any stabilization activity in connection with the Company's
securities, are required to furnish to each broker-dealer, through which Shares
included herein may be offered, copies of this Prospectus, and may not bid for
or purchase any of the Company's securities except as permitted under the 1934
Act. The Selling Shareholders have agreed to inform the Company when the
distribution of the Shares is completed.
Rule 10b-6 under the 1934 Act prohibits, with certain exceptions,
participants in a distribution from bidding for or purchasing for an account in
which the participant has a beneficial interest in any of the securities that
are the subject of the distribution. Rule 10b-7 governs bids and purchases made
in order to stabilize the price of a security in connection with a distribution
of the security.
LEGAL MATTERS
Certain legal matters with respect to the validity of the shares of
Common Stock offered hereby will be passed upon for the Company by Holland &
Knight, Fort Lauderdale, Florida.
EXPERTS
The consolidated financial statements and schedule of the Company as of
May 31, 1994 and 1995 and for each of the three years in the period ended May
31, 1995 have been incorporated herein by reference in reliance upon the report
of KPMG Peat Marwick LLP, independent certified public accountants, which report
is incorporated herein by reference, and upon the authority of said firm as
experts in accounting and auditing.
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NO PERSON HAS BEEN AUTHORIZED IN CONNECTION WITH THIS OFFERING TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL ANY SECURITIES OTHER THAN
THE REGISTERED SECURITIES TO WHICH IT RELATES, OR AN OFFER TO SELL OR A
SOLICITATION OF ANY OFFER TO BUY BY ANY PERSON IN ANY JURISDICTION WHERE SUCH AN
OFFER OR SOLICITATION WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS
NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION
THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
THE DATE HEREOF.
TABLE OF CONTENTS
Page
Available Information 4
Incorporation of Certain Information by Reference 4
Prospectus Summary 5
Risk Factors 7
Use of Proceeds 9
Selling Shareholders 10
Plan of Distribution 10
Legal Matters 11
Experts 11
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Following is an estimate of the expenses to be incurred in connection
with the offering and sale of the securities being registered, other than
selling commissions:
Commission registration fee $1,471
Legal and accounting fees 5,000
Miscellaneous 529
------
Total $7,000
======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 607.0850 of the Florida Statutes provides as follows:
607.0850 INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS
(1) A corporation shall have power to indemnify any person who
was or is a party to any proceeding (other than an action by, or in the
right of, the corporation), by reason of the fact that he is or was a
director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise against liability incurred in connection
with such proceeding, including any appeal thereof, if he acted in good
faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any proceeding by judgment,
order, settlement, or conviction or upon a plea of nolo contendere or
its equivalent shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which he reasonably
believed to be in, or not opposed to, the best interests of the
corporation or, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(2) A corporation shall have power to indemnify any person,
who was or is a party to any proceeding by or in the right of the
corporation to procure a judgment in its favor by reason of the fact
that he is or was a director, officer, employee, or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against
expenses and amounts paid in settlement not exceeding, in the judgment
of the board of directors, the estimated expense of litigating the
proceeding to conclusion, actually and reasonably incurred in
connection with the defense or settlement of such proceeding, including
any appeal thereof. Such indemnification shall be authorized if such
person acted in good faith and in a manner he reasonably believed to be
in, or not opposed to, the best interests of the corporation, except
that no indemnification shall be made under this subsection in respect
of any claim, issue, or matter as to which such person shall have been
adjudged to be liable unless, and only to the extent that, the court in
which such proceeding was brought, or any other court of competent
jurisdiction, shall determine upon application that, despite the
adjudication of liability but in view of all circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
(3) To the extent that a director, officer, employee, or agent
of a corporation has been successful on the merits or otherwise in
defense of any proceeding referred to in subsection (1) or subsection
(2), or in defense of any claim, issue, or matter therein, he shall be
indemnified against expenses
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actually and reasonably incurred by him in connection therewith.
(4) Any indemnification under subsection (1) or subsection
(2), unless pursuant to a determination by a court, shall be made by
the corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee,
or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsection (1) or
subsection (2). Such determination shall be made:
(a) By the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such proceeding;
(b) If such a quorum is not obtainable or, even if obtainable,
by majority vote of a committee duly designated by the board of
directors (in which directors who are parties may participate)
consisting solely of two or more directors not at the time parties to
the proceeding;
(c) By independent legal counsel:
1. Selected by the board of directors prescribed in
paragraph (a) or the committee prescribed in
paragraph (b); or
2. If a quorum of the directors cannot be obtained for
paragraph (a) and the committee cannot be designated
under paragraph (b), selected by majority vote of the
full board of directors (in which directors who are
parties may participate); or
(d) By the shareholders by a majority vote of a quorum
consisting of shareholders who were not parties to such proceeding or,
if no such quorum is obtainable, by a majority vote of shareholders who
were not parties to such proceeding.
(5) Evaluation of the reasonableness of expenses and
authorization of indemnification shall be made in the same manner as
the determination that indemnification is permissible. However, if the
determination of permissibility is made by independent legal counsel,
persons specified by paragraph (4)(c) shall evaluate the reasonableness
of expenses and may authorize indemnification.
(6) Expenses incurred by an officer or director in defending a
civil or criminal proceeding may be paid by the corporation in advance
of the final disposition of such proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if he is ultimately found not to be entitled to indemnification
by the corporation pursuant to this section. Expenses incurred by other
employees and agents may be paid in advance upon such terms or
conditions that the board of directors deems appropriate.
(7) The indemnification and advancement of expenses provided
pursuant to this section are not exclusive, and a corporation may make
any other or further indemnification or advancement of expenses of any
of its directors, officers, employees, or agents, under any bylaw,
agreement, vote of shareholders or disinterested directors, or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office. However, indemnification
or advancement of expenses shall not be made to or on behalf of any
director, officer, employee, or agent if a judgment or other final
adjudication establishes that his actions, or omissions to act, were
material to the cause of action so adjudicated and constitute:
(a) A violation of the criminal law, unless the director,
officer, employee, or agent had reasonable cause to believe his conduct
was lawful or had no reasonable cause to believe his conduct was
unlawful;
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(b) A transaction from which the director, officer, employee,
or agent derived an improper personal benefit;
(c) In the case of a director, a circumstance under which the
liability provisions of s. 607.0834 are applicable; or
(d) Willful misconduct or a conscious disregard for the best
interests of the corporation in a proceeding by or in the right of the
corporation to procure a judgment in its favor or in a proceeding by or
in the right of a shareholder.
(8) Indemnification and advancement of expenses as provided in
this section shall continue as, unless otherwise provided when
authorized or ratified, to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the
heirs, executors, and administrators of such a person, unless otherwise
provided when authorized or ratified.
(9) Unless the corporation's articles of incorporation provide
otherwise, notwithstanding the failure of a corporation to provide
indemnification, and despite any contrary determination of the board or
of the shareholders in the specific case, a director, officer,
employee, or agent of the corporation who is or was a party to a
proceeding may apply for indemnification or advancement of expenses, or
both, to the court conducting the proceeding, to the circuit court, or
to another court of competent jurisdiction. On receipt of an
application, the court, after giving any notice that it considers
necessary, may order indemnification and advancement of expenses,
including expenses incurred in seeking court-ordered indemnification or
advancement of expenses, if it determines that:
(a) The director, officer, employee, or agent is entitled to
mandatory indemnification under subsection (3), in which case the court
shall also order the corporation to pay the director reasonable
expenses incurred in obtaining court-ordered indemnification or
advancement of expenses;
(b) The director, officer, employee, or agent is entitled to
indemnification or advancement of expenses, or both, by virtue of the
exercise by the corporation of its power pursuant to subsection (7); or
(c) The director, officer, employee, or agent is fairly and
reasonably entitled to indemnification or advancement of expenses, or
both, in view of all the relevant circumstances, regardless of whether
such person met the standard of conduct set forth in subsection (1),
subsection (2), or subsection (7).
(10) For purposes of this section, the term "corporation"
includes, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or was a director,
officer, employee, or agent of a constituent corporation, or is or was
serving at the request of a constituent corporation as a director,
officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise, is in the same position under this
section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
(11) For purposes of this section:
(a) The term "other enterprises" includes employee benefit
plans;
(b) The term "expenses" includes counsel fees, including those
for appeal;
(c) The term "liability" includes obligations to pay a
judgment, settlement, penalty, fine (including an excise tax assessed
with respect to any employee benefit plan), and expenses actually and
reasonably incurred with respect to a proceeding;
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(d) The term "proceeding" includes any threatened, pending, or
completed action, suit, or other type of proceeding, whether civil,
criminal, administrative, or investigative and whether formal or
informal;
(e) The term "agent" includes a volunteer;
(f) The term "serving at the request of the corporation"
includes any service as a director, officer, employee, or agent of the
corporation that imposes duties on such persons, including duties
relating to an employee benefit plan and its participants or
beneficiaries; and
(g) The term "not opposed to the best interest of the
corporation" describes the actions of a person who acts in good faith
and in a manner he reasonably believes to be in the best interests of
the participants and beneficiaries of an employee benefit plan.
(12) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee, or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee, or agent
of another corporation, partnership, joint venture, trust, or other
enterprise against any liability asserted against him and incurred by
him in any such capacity or arising out of his status as such, whether
or not the corporation would have the power to indemnify him against
such liability under the provisions of this section.
Article 9 of the By-laws of the Company provides as follows:
Article 9. - Indemnification
The corporation shall indemnify each and every one of its officers and
directors and its former officers and directors to the fullest extent permitted
by law. The corporation may purchase and maintain insurance for the benefit of
any of its officers, directors, employees or agents against any liability
incurred by him in his capacity as such director, officer, employee or agent of
the corporation or another body corporate, where he acts or acted in that
capacity at the corporation's request, except where the liability relates to
failure to act honestly and in good faith with a view to the best interest of
the corporation or such other body corporate, as the case may be. The Company
also has in place a Directors and Officers Liability insurance policy. The
Company also has entered into indemnification agreements with each director.
ITEM 16. EXHIBITS.
The following exhibits are filed or incorporated by reference as part
of this Registration Statement as follows:
Exhibit No. Description
*5 Opinion of Holland & Knight as to legality of Common Stock
23.1 Consent of KPMG Peat Marwick LLP
*23.2 Consent of Holland & Knight (included in and incorporated by
reference as Exhibit 5 hereto)
**99(c) Warrant to purchase Common Stock of the Company issued to Manuel
Garcia
99.1 Option to purchase Common Stock of the Company issued to Pick
Investments, LLC
99.2 Option to purchase Common Stock of the Company issued to
Jacqueline Stern
99.3 Option to purchase Common Stock of the Company issued to Gary D.
Stern and Martha M. Martin
99.4 Option to purchase Common Stock of the Company issued to David T.
Nederlander Irrevocable Trust, Betty Nederlander, Trustee
99.5 Option to purchase Common Stock of the Company issued to Gary
Prindible
- ----------
* Previously filed.
** Incorporated by reference to exhibit of the same number filed with the
Company's Form 8-K filed January 5, 1995.
ITEM 17. UNDERTAKINGS.
The undersigned Company hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(a) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
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(b) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(c) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement; provided, however, that paragraphs (a)
and (b) do not apply if the registration statement is on Form
S-3, Form S-8 or Form F-3, and the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
4. That, for the purpose of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual
report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the
securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Fort Lauderdale, Florida,
on June 10, 1996.
MIAMI SUBS CORPORATION
Dated: June 10, 1996 By: /s/ Thomas J. Russo
THOMAS J. RUSSO, President and
Chief Executive Officer
Pursuant to the requirements of the Securities and Exchange Act of 1933, this
Registration Statement has been signed below by the following persons on behalf
of the Registrant and in the capacities and on the dates indicated.
By: /s/ Thomas J. Russo Dated: June 10, 1996
THOMAS J. RUSSO, Chairman of the Board,
President and Chief Executive Officer
(Principal Executive Officer)
By: /s/ Gus Boulis Dated: June 10, 1996
GUS BOULIS, Director
By: /s/ Richard U. Jelinek Dated: June 10, 1996
RICHARD U. JELINEK, Director
By: /s/ Francis P. Lucier Dated: June 10, 1996
FRANCIS P. LUCIER, Director
By: /s/ William L. Paternotte Dated: June 10, 1996
WILLIAM L. PATERNOTTE, Director
By: /s/ Joseph Zappala Dated: June 10, 1996
JOSEPH ZAPPALA, Director
By: /s/ Jerry W. Woda Dated: June 10, 1996
JERRY W. WODA, Senior Vice President and
Chief Financial Officer
(Principal Financial and Accounting Officer)
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EXHIBIT INDEX
Exhibit Description Sequential
No. Page No.
23.1 Consent of KPMG Peat Marwick LLP
99.1 Option to purchase Common Stock of the Company issued to Pick
Investments, LLC
99.2 Option to purchase Common Stock of the Company issued to
Jacqueline Stern
99.3 Option to purchase Common Stock of the Company issued to Gary D.
Stern and Martha M. Martin
99.4 Option to purchase Common Stock of the Company issued to David T.
Nederlander Irrevocable Trust, Betty Nederlander, Trustee
99.5 Option to purchase Common Stock of the Company issued to Gary
Prindible
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ACCOUNTANTS' CONSENT
The Board of Directors and Stockholders
Miami Subs Corporation:
We consent to incorporation by reference in the Registration Statement on Form
S-3 of Miami Subs Corporation of our report dated July 14, 1995, relating to the
consolidated balance sheets of Miami Subs Corporation and subsidiaries as of May
31, 1995 and 1994, and the related consolidated statements of operations,
stockholders' equity, and cash flows for each of the years in the three-year
period ended May 31, 1995, and related schedule which report appears in the May
31, 1995 annual report on Form 10-K of Miami Subs Corporation. We also consent
to the reference to our firm under the heading "Experts" in the prospectus.
KPMG PEAT MARWICK LLP
June 11, 1996
THIS OPTION AND THE SHARES OF COMMON STOCK OF MIAMI SUBS CORPORATION
(THE "COMPANY") INTO WHICH THIS OPTION IS CONVERTIBLE, HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE
SECURITIES ACT"), NOR UNDER ANY STATE SECURITIES LAW AND MAY NOT BE
PLEDGED, SOLD, ASSIGNED OR TRANSFERRED UNTIL (i) A REGISTRATION
STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAW OR (ii) THE COMPANY RECEIVES AN OPINION
OF COUNSEL TO THE HOLDER OF THIS OPTION OR OF SUCH COMMON STOCK, WHICH
COUNSEL IS SATISFACTORY TO THE COMPANY, THAT THE OPTION OR SHARES MAY
BE PLEDGED, SOLD, ASSIGNED OR TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR APPLICABLE STATE SECURITIES
LAW.
OPTION TO PURCHASE 50,000
SHARES OF COMMON STOCK
OPTION TO PURCHASE COMMON STOCK OF
MIAMI SUBS CORPORATION
This certifies that, for good and valuable consideration, Pick
Investments LLC (the "Optionholder"), is entitled to purchase from Miami Subs
Corporation, a corporation incorporated under the laws of the State of Florida
(the "Company"), subject to the terms and conditions hereof, at any time and
from time to time after the date of issuance hereof and, continuing through
March 15, 2006 (the "Expiration Date"), the number of fully paid and
non-assessable shares of common stock of the Company, par value $. 01 per share
(the "Common Stock") stated above at the exercise price of $2.00 per share (the
"Exercise Price").
ARTICLE 1. DURATION AND EXERCISE OF OPTION
Section 1.01 DURATION OF OPTION. The Optionholder may exercise this
Option in whole at any time or in part from time to time for a term of ten (l0)
years after March 15, l996 and before 5:00 P.M., Eastern Standard Time, on the
Expiration Date on March 15, 2006 (or, if such day is a Saturday, Sunday or
other day on which banks in the State of Florida are authorized by law to remain
closed, at or before 5:00 P.M., Eastern Standard Time, on the next following
business day). The Option may not be exercised after the Expiration Date.
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Section 1.02 EXERCISE OF OPTION.
(a) The Optionholder may exercise this Option in whole at any time or
in part from time to time by presentation and surrender of this Option to the
Company at its corporate office at 6300 N.W. 31st Avenue, Florida with the
Subscription Form annexed hereto duly executed and accompanied by payment of the
full Exercise Price for the aggregate number of shares of Common Stock as to
which the Option is being exercised (the "Option Shares").
(b) Upon receipt of this Option with the Subscription Form duly
executed and accompanied by payment of the aggregate Exercise Price for the
Option Shares, the Company shall cause to be issued certificates for the total
number of whole shares of Common Stock for which this Option is being exercised
in such denominations as are requested for delivery to the Optionholder, and the
Company shall thereupon deliver such certificates to the Optionholder. The
Optionholder shall be deemed to be the holder of record of the shares of Common
Stock issuable upon such exercise, notwithstanding that the stock transfer books
of the Company shall then be closed or that certificates representing such
shares of Common Stock shall not then be actually delivered to the Optionholder.
If the Option should be exercised in part only, the Company shall, upon
surrender of the Option for cancellation, execute and deliver a new Option
evidencing the rights of the Holder thereof to purchase the balance of the
shares of Common Stock purchasable thereunder.
(c) Unless issued pursuant to a Registration Statement as set forth in
Section 2.03 below, the Company may require the Optionholder to make such
investment intent representations, and to provide the Company with an opinion of
counsel (which may be counsel for the Company), and may place such legends on
certificates representing the Option Shares, as may be reasonably required in
the opinion of counsel to the Company to permit the Option Shares to be issued
without registration under the Securities Act.
(d) Payment of the Exercise Price may be made at the option of the
holder hereof in United States currency by certified check, bank cashier's check
or money order payable to the order of the Company.
Section 1.03 RESERVATION OF SHARES. The Company hereby agrees that at
all times there shall be reserved for issuance and delivery upon exercise of
this Option a total of 50,000 shares.
Section 1.04 FRACTIONAL SHARES. The Company shall not be required to
issue any fraction of a share of its capital stock in connection with the
exercise of this Option, and in any case where the Optionholder would, except
for the provisions of this Section 1.04, be entitled under the terms of this
Option to receive a fraction of a share upon the exercise of this Option, the
Company shall, upon the exercise of this Option and receipt of the Exercise
Price, issue only the largest number of whole shares purchasable upon exercise
of this Option. The Company shall not be required to make any cash or other
adjustment in respect of such fraction of a share to which the Optionholder
would otherwise be entitled, but shall return to the Optionholder that portion
of the Exercise Price that represents such fraction of a share.
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Section 1.05 DIVIDENDS IN STOCK OR PROPERTY, RECLASSIFICATIONS. In case
at any time or from time to time the holders of the Common Stock of the Company
(or any other shares of stock or other securities at that time receivable upon
exercise of this Option) shall have received other additional or less stock or
other securities or property (other than cash) without consideration therefor
(whether through a dividend in stock of any class of stock of the Company or any
other corporation, or a dividend in any securities or property other than cash,
or through stock split, spin-off, split-off, reclassification, combination of
shares or otherwise), then and in each such case the holder of this Option, upon
the exercise hereof, in whole or in part, shall be entitled to receive, in lieu
of the shares otherwise issuable pursuant hereto, the stock or other securities
or property which such holder would hold on the date of such exercise if, from
the date hereof to and including such date, he had been the holder of record of
the number of shares of the Common Stock of the Company called for on the face
of this Option or, in the case of a partial exercise, such lesser number of
shares as would have been issuable based on the amount paid pursuant to partial
exercise, and had retained such shares and all such other or additional or less
stock and other securities and property receivable in respect of such shares.
Section 1.06 REORGANIZATIONS, CONSOLIDATIONS, MERGERS. In case of any
reorganization of the Company, or any other corporation the stock or. securities
of which are at the time deliverable on the exercise of this Option, or in the
case the Company or such other corporation shall consolidate with or merge into
another corporation, or convey all or substantially all of its assets to another
corporation, the holder of this Option, upon the exercise hereof, in whole or in
part, shall be entitled to receive, in lieu of the shares otherwise issuable
pursuant hereto, the stock or other securities or property to which such holder
would have been entitled upon the consummation of such reorganization,
consolidation, merger or conveyance if he had purchased the shares otherwise
issuable pursuant hereto immediately prior thereto; and in such case, the
provisions of this Option shall be applicable to the shares of stock or other
securities or property thereafter deliverable upon the exercise of this Option.
ARTICLE II. OTHER PROVISIONS RELATING TO RIGHTS OF OPTIONHOLDER
Section 2.01 NO RIGHTS AS SHAREHOLDERS, NOTICE TO OPTIONHOLDER. Nothing
contained in this Option shall be construed as conferring upon the Optionholder
or his transferees the right to vote or to receive dividends or to consent or to
receive notice as a shareholder in respect of any meeting of shareholders for
the election of directors of the Company or of any other matter, or any rights
whatsoever as shareholders of the Company.
Section 2.02 LOST, STOLEN, MUTILATED OR DESTROYED OPTIONS. If this
Option is lost, stolen, mutilated or destroyed, the Company may, on such terms
as to indemnity or otherwise as it may in its discretion impose (which shall, in
the case of a mutilated Option, include the surrender thereof), issue a new
Option of like denomination and tenor as, and in substitution for, this Option.
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<PAGE>
Section 2.03 RESTRICTED SECURITIES AND REGISTRATION RIGHTS. It is
understood and agreed by the Parties hereto that the issuance of any shares by
MSC pursuant to the option granted in this Agreement will not be registered
shares under the Securities Act of l933, as amended (unless the Shares are
registered as provided below), and that the shares will be "restricted
securities" as that term is defined under Rule l44 of the Securities Act of
l933, as amended, and any stock certificate issued pursuant to an exercise of an
option hereunder shall bear a restrictive legend in substantially the following
form:
These shares have not been registered under the Securities Act
of l933, as amended, or under any state securities laws and
may be offered, sold or transferred only if registered
pursuant to the provisions of such laws, or if in the opinion
of counsel satisfactory to the Company, an exemption from such
registration is available.
On or before April 30, l996, MSC shall file with the Securities and Exchange
Commission a shelf Registration Statement on Form S-3, S-2 or other appropriate
short form, relating to the Shares subject to the Option granted herein; use its
best efforts to cause the effectiveness of such Registration Statement; and, to
the extent required, register or qualify the Shares subject to the Option under
the securities laws of those states that the Optionholders may designate. Upon
effectiveness of such Registration Statement, MSC shall keep such registration
open for a period that shall expire on the later of the date that is twenty-four
(24) months after the effective date of the registration statement, such other
period as allowed under then applicable securities regulations, or the time at
which the Optionees shall exercise their Option and have sold or disposed of all
of the Shares granted by the Option. MSC shall bear all expenses of any such
Registration Statement. In addition, in the event that such shelf registration
has expired within twenty-four (24) months of the effective date of the
Registration Statement, and any Optionee has not exercised his Option and sold
or disposed of all of the Shares subject to such Option, and if, during the term
of this Option there is a change of control of MSC wherein any person (as such
term is used in Sections 13(d) and 14(d)(2) of the Securities and Exchange Act
of l934), either singularly or collectively, is or becomes the beneficial owner,
directly or indirectly, of securities of MSC representing all or substantially
all of the combined voting power of MSC's then outstanding securities, or there
is a sale of all or substantially all of the assets of the Company, then MSC or
its successors or assigns agree that, upon the written request of all of those
Optionholders collectively, who still hold an Option it will file one-time only
with the Securities and Exchange Commission a shelf Registration Statement on
Form S-3, S-2, or other appropriate short form relating to the sale of the
Shares subject to the Option granted herein; use its best efforts to cause the
effectiveness of such Registration Statement; and, to the extent required,
register or qualify the Shares subject to the Option under the securities laws
of those states that the Optionholders may designate. Upon effectiveness of such
Registration Statement, MSC shall keep such registration open for the duration
of the Option until the time at which the Optionees shall exercise their Options
and have sold or disposed of all of the Shares granted by the Option. MSC shall
bear all expenses of such Registration Statement.
4
<PAGE>
In the event that any of the above shelf registrations have expired and any
Optionee has not exercised his Option and sold or disposed of all the Shares
subject to the Option, then, upon the written request of all of those
Optionholders collectively who still hold an Option, MSC agrees that it will
file with the Securities and Exchange Commission a shelf registration statement
on Form S-3, or S-2, or other appropriate short form relating to the Shares
subject to the Option granted herein; use its best efforts to cause the
effectiveness of such Registration Statement; and, to the extent required,
register or qualify the Shares subject to the Options under the securities laws
of those states that the Optionholders may designate. Upon effectiveness of such
registration statement, MSC shall keep such registration open for a period that
shall expire on the later of the date that is twenty-four (24) months after the
effective date of the shelf registration statement, such other period as allowed
under then applicable securities regulations, or the time at which the Optionees
shall exercise their Options and have sold or disposed of all of the Shares
granted by the Options. Optionholders who still hold an Option may collectively
exercise this registration right as many times during the remaining term of the
Option Period as they wish, however, such Optionholders shall bear all expenses
relating to any and all such registration statements.
ARTICLE III. OTHER MATTERS
Section 3.01 AMENDMENTS AND WAIVERS. The provisions of this Option,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waiver or consents to departures from the provisions hereof
may not be given, unless such amendment, modification or supplement is expressly
set forth in a written agreement between the Company and the Optionholder.
Section 3.02 GOVERNING LAW. This Option shall be governed by and
construed in accordance with the laws of the State of Florida, notwithstanding
principles of conflicts of laws.
Section 3.03 NOTICE. Any notices or certificates by the Company to the
Holder and by the Holder to the Company shall be deemed delivered if in writing
and delivered in person or by registered mail (return receipt requested) to the
Holder addressed to him at the address which Holder has designated in writing to
the Company, and if to the Company, addressed to it at:
Company: Miami Subs Corporation
6300 NW 31st Ave.
Fort Lauderdale, FL 33309
Attention: General Counsel
Holder: Pick Investments LLC
2210 Millridge Road
Owing Mills, MD 21117
The Company may change its address by written notice to the Holder and the
Holder may change its address by written notice to the Company.
5
<PAGE>
Section 3.04 TRANSFERS. The option granted hereunder is not
transferable by Optionee, in whole or in part, otherwise than by operation of
law, by will or by the laws of descent and distribution and is exercisable
during optionee's lifetime only by him. No assignment or transfer of the Option
granted hereunder, or of the rights represented thereby, whether voluntary or
involuntary, by operation of law or otherwise (except by will or the laws of
descent and distribution), shall vest in the assignee or transferee any interest
or right therein whatsoever, but immediately upon any such assignment or
transfer the option shall terminate and become of no further effect.
Section 3.05 EXECUTORS AND ADMINISTRATORS. Upon the death, disability
or retirement of the optionee, his/her executors, administrators or the person
or persons to whom the Option has been transferred by operation of law, by will
or by the laws of descent and distribution shall have six (6) months after the
optionee's retirement to exercise the option. This Agreement shall be binding
upon the successors and assigns of Company.
Section 3.06 RECEIPT OF FORM 10-K AND 10-Q. Optionee acknowledges
receipt of the Company's fiscal year l995 Form l0-K and First Quarter and Second
Quarter l996 l0-Q.
IN WITNESS WHEREOF, this Option has been duly executed by the Company as
of the 15th day of March, 1996.
Attest: MIAMI SUBS CORPORATION
By: /s/ [illegible] By: /s/ [illegible]
------------------------- --------------------------
Its: Secretary Its: President
6
<PAGE>
SUBSCRIPTION FORM
(To be executed upon exercise of Option)
MIAMI SUBS CORPORATION:
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Option for, and to purchase thereunder,
________ shares of Common Stock, as provided for therein ("Option Shares"), and
tenders herewith payment of the purchase price in full in the form of cash or a
certified check, bank cashier's check, or money order in the amount of
$___________________.
Please issue a certificate or certificates for such Common Stock in the
name of, and pay cash for any fractional share to:
Name________________________________________________
(Please print Name, Address and Social Security No.)
Signature_______________________________________
And if the number of shares being purchased is not all of the Option Shares
purchasable under the within Option, a new Option shall be issued in the name of
the undersigned for the balance remaining of the Option Shares represented by
the Option.
7
THIS OPTION AND THE SHARES OF COMMON STOCK OF MIAMI SUBS CORPORATION
(THE "COMPANY") INTO WHICH THIS OPTION IS CONVERTIBLE, HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE
SECURITIES ACT"), NOR UNDER ANY STATE SECURITIES LAW AND MAY NOT BE
PLEDGED, SOLD, ASSIGNED OR TRANSFERRED UNTIL (i) A REGISTRATION
STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAW OR (ii) THE COMPANY RECEIVES AN OPINION
OF COUNSEL TO THE HOLDER OF THIS OPTION OR OF SUCH COMMON STOCK, WHICH
COUNSEL IS SATISFACTORY TO THE COMPANY, THAT THE OPTION OR SHARES MAY
BE PLEDGED, SOLD, ASSIGNED OR TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR APPLICABLE STATE SECURITIES
LAW.
OPTION TO PURCHASE 3,333
SHARES OF COMMON STOCK
OPTION TO PURCHASE COMMON STOCK OF
MIAMI SUBS CORPORATION
This certifies that, for good and valuable consideration, Jacqueline
Stern (the "Optionholder"), is entitled to purchase from Miami Subs Corporation,
a corporation incorporated under the laws of the State of Florida (the
"Company"), subject to the terms and conditions hereof, at any time and from
time to time after the date of issuance hereof and, continuing through March 15,
2006 (the "Expiration Date"), the number of fully paid and non-assessable shares
of common stock of the Company, par value $. 01 per share (the "Common Stock")
stated above at the exercise price of $2.00 per share (the "Exercise Price").
ARTICLE 1. DURATION AND EXERCISE OF OPTION
Section 1.01 DURATION OF OPTION. The Optionholder may exercise this
Option in whole at any time or in part from time to time for a term of ten (l0)
years after March 15, l996 and before 5:00 P.M., Eastern Standard Time, on the
Expiration Date on March 15, 2006 (or, if such day is a Saturday, Sunday or
other day on which banks in the State of Florida are authorized by law to remain
closed, at or before 5:00 P.M., Eastern Standard Time, on the next following
business day). The Option may not be exercised after the Expiration Date.
1
<PAGE>
Section 1.02 EXERCISE OF OPTION.
(a) The Optionholder may exercise this Option in whole at any time or
in part from time to time by presentation and surrender of this Option to the
Company at its corporate office at 6300 N.W. 31st Avenue, Florida with the
Subscription Form annexed hereto duly executed and accompanied by payment of the
full Exercise Price for the aggregate number of shares of Common Stock as to
which the Option is being exercised (the "Option Shares").
(b) Upon receipt of this Option with the Subscription Form duly
executed and accompanied by payment of the aggregate Exercise Price for the
Option Shares, the Company shall cause to be issued certificates for the total
number of whole shares of Common Stock for which this Option is being exercised
in such denominations as are requested for delivery to the Optionholder, and the
Company shall thereupon deliver such certificates to the Optionholder. The
Optionholder shall be deemed to be the holder of record of the shares of Common
Stock issuable upon such exercise, notwithstanding that the stock transfer books
of the Company shall then be closed or that certificates representing such
shares of Common Stock shall not then be actually delivered to the Optionholder.
If the Option should be exercised in part only, the Company shall, upon
surrender of the Option for cancellation, execute and deliver a new Option
evidencing the rights of the Holder thereof to purchase the balance of the
shares of Common Stock purchasable thereunder.
(c) Unless issued pursuant to a Registration Statement as set forth in
Section 2.03 below, the Company may require the Optionholder to make such
investment intent representations, and to provide the Company with an opinion of
counsel (which may be counsel for the Company), and may place such legends on
certificates representing the Option Shares, as may be reasonably required in
the opinion of counsel to the Company to permit the Option Shares to be issued
without registration under the Securities Act.
(d) Payment of the Exercise Price may be made at the option of the
holder hereof in United States currency by certified check, bank cashier's check
or money order payable to the order of the Company.
Section 1.03 RESERVATION OF SHARES. The Company hereby agrees that at
all times there shall be reserved for issuance and delivery upon exercise of
this Option a total of 3,333 shares.
Section 1.04 FRACTIONAL SHARES. The Company shall not be required to
issue any fraction of a share of its capital stock in connection with the
exercise of this Option, and in any case where the Optionholder would, except
for the provisions of this Section 1.04, be entitled under the terms of this
Option to receive a fraction of a share upon the exercise of this Option, the
Company shall, upon the exercise of this Option and receipt of the Exercise
Price, issue only the largest number of whole shares purchasable upon exercise
of this Option. The Company shall not be required to make any cash or other
adjustment in respect of such fraction of a share to which the Optionholder
would otherwise be entitled, but shall return to the Optionholder that portion
of the Exercise Price that represents such fraction of a share.
2
<PAGE>
Section 1.05 DIVIDENDS IN STOCK OR PROPERTY, RECLASSIFICATIONS. In case
at any time or from time to time the holders of the Common Stock of the Company
(or any other shares of stock or other securities at that time receivable upon
exercise of this Option) shall have received other additional or less stock or
other securities or property (other than cash) without consideration therefor
(whether through a dividend in stock of any class of stock of the Company or any
other corporation, or a dividend in any securities or property other than cash,
or through stock split, spin-off, split-off, reclassification, combination of
shares or otherwise), then and in each such case the holder of this Option, upon
the exercise hereof, in whole or in part, shall be entitled to receive, in lieu
of the shares otherwise issuable pursuant hereto, the stock or other securities
or property which such holder would hold on the date of such exercise if, from
the date hereof to and including such date, he had been the holder of record of
the number of shares of the Common Stock of the Company called for on the face
of this Option or, in the case of a partial exercise, such lesser number of
shares as would have been issuable based on the amount paid pursuant to partial
exercise, and had retained such shares and all such other or additional or less
stock and other securities and property receivable in respect of such shares.
Section 1.06 REORGANIZATIONS, CONSOLIDATIONS, MERGERS. In case of any
reorganization of the Company, or any other corporation the stock or. securities
of which are at the time deliverable on the exercise of this Option, or in the
case the Company or such other corporation shall consolidate with or merge into
another corporation, or convey all or substantially all of its assets to another
corporation, the holder of this Option, upon the exercise hereof, in whole or in
part, shall be entitled to receive, in lieu of the shares otherwise issuable
pursuant hereto, the stock or other securities or property to which such holder
would have been entitled upon the consummation of such reorganization,
consolidation, merger or conveyance if he had purchased the shares otherwise
issuable pursuant hereto immediately prior thereto; and in such case, the
provisions of this Option shall be applicable to the shares of stock or other
securities or property thereafter deliverable upon the exercise of this Option.
ARTICLE II. OTHER PROVISIONS RELATING TO RIGHTS OF OPTIONHOLDER
Section 2.01 NO RIGHTS AS SHAREHOLDERS, NOTICE TO OPTIONHOLDER. Nothing
contained in this Option shall be construed as conferring upon the Optionholder
or his transferees the right to vote or to receive dividends or to consent or to
receive notice as a shareholder in respect of any meeting of shareholders for
the election of directors of the Company or of any other matter, or any rights
whatsoever as shareholders of the Company.
Section 2.02 LOST, STOLEN, MUTILATED OR DESTROYED OPTIONS. If this
Option is lost, stolen, mutilated or destroyed, the Company may, on such terms
as to indemnity or otherwise as it may in its discretion impose (which shall, in
the case of a mutilated Option, include the surrender thereof), issue a new
Option of like denomination and tenor as, and in substitution for, this Option.
3
<PAGE>
Section 2.03 RESTRICTED SECURITIES AND REGISTRATION RIGHTS. It is
understood and agreed by the Parties hereto that the issuance of any shares by
MSC pursuant to the option granted in this Agreement will not be registered
shares under the Securities Act of l933, as amended (unless the Shares are
registered as provided below), and that the shares will be "restricted
securities" as that term is defined under Rule l44 of the Securities Act of
l933, as amended, and any stock certificate issued pursuant to an exercise of an
option hereunder shall bear a restrictive legend in substantially the following
form:
These shares have not been registered under the Securities Act
of l933, as amended, or under any state securities laws and
may be offered, sold or transferred only if registered
pursuant to the provisions of such laws, or if in the opinion
of counsel satisfactory to the Company, an exemption from such
registration is available.
On or before April 30, l996, MSC shall file with the Securities and Exchange
Commission a shelf Registration Statement on Form S-3, S-2 or other appropriate
short form, relating to the Shares subject to the Option granted herein; use its
best efforts to cause the effectiveness of such Registration Statement; and, to
the extent required, register or qualify the Shares subject to the Option under
the securities laws of those states that the Optionholders may designate. Upon
effectiveness of such Registration Statement, MSC shall keep such registration
open for a period that shall expire on the later of the date that is twenty-four
(24) months after the effective date of the registration statement, such other
period as allowed under then applicable securities regulations, or the time at
which the Optionees shall exercise their Option and have sold or disposed of all
of the Shares granted by the Option. MSC shall bear all expenses of any such
Registration Statement. In addition, in the event that such shelf registration
has expired within twenty-four (24) months of the effective date of the
Registration Statement, and any Optionee has not exercised his Option and sold
or disposed of all of the Shares subject to such Option, and if, during the term
of this Option there is a change of control of MSC wherein any person (as such
term is used in Sections 13(d) and 14(d)(2) of the Securities and Exchange Act
of l934), either singularly or collectively, is or becomes the beneficial owner,
directly or indirectly, of securities of MSC representing all or substantially
all of the combined voting power of MSC's then outstanding securities, or there
is a sale of all or substantially all of the assets of the Company, then MSC or
its successors or assigns agree that, upon the written request of all of those
Optionholders collectively, who still hold an Option it will file one-time only
with the Securities and Exchange Commission a shelf Registration Statement on
Form S-3, S-2, or other appropriate short form relating to the sale of the
Shares subject to the Option granted herein; use its best efforts to cause the
effectiveness of such Registration Statement; and, to the extent required,
register or qualify the Shares subject to the Option under the securities laws
of those states that the Optionholders may designate. Upon effectiveness of such
Registration Statement, MSC shall keep such registration open for the duration
of the Option until the time at which the Optionees shall exercise their Options
and have sold or disposed of all of the Shares granted by the Option. MSC shall
bear all expenses of such Registration Statement.
4
<PAGE>
In the event that any of the above shelf registrations have expired and any
Optionee has not exercised his Option and sold or disposed of all the Shares
subject to the Option, then, upon the written request of all of those
Optionholders collectively who still hold an Option, MSC agrees that it will
file with the Securities and Exchange Commission a shelf registration statement
on Form S-3, or S-2, or other appropriate short form relating to the Shares
subject to the Option granted herein; use its best efforts to cause the
effectiveness of such Registration Statement; and, to the extent required,
register or qualify the Shares subject to the Options under the securities laws
of those states that the Optionholders may designate. Upon effectiveness of such
registration statement, MSC shall keep such registration open for a period that
shall expire on the later of the date that is twenty-four (24) months after the
effective date of the shelf registration statement, such other period as allowed
under then applicable securities regulations, or the time at which the Optionees
shall exercise their Options and have sold or disposed of all of the Shares
granted by the Options. Optionholders who still hold an Option may collectively
exercise this registration right as many times during the remaining term of the
Option Period as they wish, however, such Optionholders shall bear all expenses
relating to any and all such registration statements.
ARTICLE III. OTHER MATTERS
Section 3.01 AMENDMENTS AND WAIVERS. The provisions of this Option,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waiver or consents to departures from the provisions hereof
may not be given, unless such amendment, modification or supplement is expressly
set forth in a written agreement between the Company and the Optionholder.
Section 3.02 GOVERNING LAW. This Option shall be governed by and
construed in accordance with the laws of the State of Florida, notwithstanding
principles of conflicts of laws.
Section 3.03 NOTICE. Any notices or certificates by the Company to the
Holder and by the Holder to the Company shall be deemed delivered if in writing
and delivered in person or by registered mail (return receipt requested) to the
Holder addressed to him at the address which Holder has designated in writing to
the Company, and if to the Company, addressed to it at:
Company: Miami Subs Corporation
6300 NW 31st Ave.
Fort Lauderdale, FL 33309
Attention: General Counsel
Holder: Jacqueline Stern
3211 South Ocean Boulevard #802
Highland Beach, FL 33487
The Company may change its address by written notice to the Holder and the
Holder may change its address by written notice to the Company.
5
<PAGE>
Section 3.04 TRANSFERS. The option granted hereunder is not
transferable by Optionee, in whole or in part, otherwise than by operation of
law, by will or by the laws of descent and distribution and is exercisable
during optionee's lifetime only by him. No assignment or transfer of the Option
granted hereunder, or of the rights represented thereby, whether voluntary or
involuntary, by operation of law or otherwise (except by will or the laws of
descent and distribution), shall vest in the assignee or transferee any interest
or right therein whatsoever, but immediately upon any such assignment or
transfer the option shall terminate and become of no further effect.
Section 3.05 EXECUTORS AND ADMINISTRATORS. Upon the death, disability
or retirement of the optionee, his/her executors, administrators or the person
or persons to whom the Option has been transferred by operation of law, by will
or by the laws of descent and distribution shall have six (6) months after the
optionee's retirement to exercise the option. This Agreement shall be binding
upon the successors and assigns of Company.
Section 3.06 RECEIPT OF FORM 10-K AND 10-Q. Optionee acknowledges
receipt of the Company's fiscal year l995 Form l0-K and First Quarter and Second
Quarter l996 l0-Q.
IN WITNESS WHEREOF, this Option has been duly executed by the Company as
of the 15th day of March, 1996.
Attest: MIAMI SUBS CORPORATION
By: /s/ [illegible] By: /s/ [illegible]
------------------------- ---------------------------
Its: Secretary Its: President
6
<PAGE>
SUBSCRIPTION FORM
(To be executed upon exercise of Option)
MIAMI SUBS CORPORATION:
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Option for, and to purchase thereunder,
________ shares of Common Stock, as provided for therein ("Option Shares"), and
tenders herewith payment of the purchase price in full in the form of cash or a
certified check, bank cashier's check, or money order in the amount of
$___________________.
Please issue a certificate or certificates for such Common Stock in the
name of, and pay cash for any fractional share to:
Name________________________________________________
(Please print Name, Address and Social Security No.)
Signature_______________________________________
And if the number of shares being purchased is not all of the Option Shares
purchasable under the within Option, a new Option shall be issued in the name of
the undersigned for the balance remaining of the Option Shares represented by
the Option.
7
THIS OPTION AND THE SHARES OF COMMON STOCK OF MIAMI SUBS CORPORATION
(THE "COMPANY") INTO WHICH THIS OPTION IS CONVERTIBLE, HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE
SECURITIES ACT"), NOR UNDER ANY STATE SECURITIES LAW AND MAY NOT BE
PLEDGED, SOLD, ASSIGNED OR TRANSFERRED UNTIL (i) A REGISTRATION
STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAW OR (ii) THE COMPANY RECEIVES AN OPINION
OF COUNSEL TO THE HOLDER OF THIS OPTION OR OF SUCH COMMON STOCK, WHICH
COUNSEL IS SATISFACTORY TO THE COMPANY, THAT THE OPTION OR SHARES MAY
BE PLEDGED, SOLD, ASSIGNED OR TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR APPLICABLE STATE SECURITIES
LAW.
OPTION TO PURCHASE 13,334
SHARES OF COMMON STOCK
OPTION TO PURCHASE COMMON STOCK OF
MIAMI SUBS CORPORATION
This certifies that, for good and valuable consideration, Gary D. Stern
and Martha M. Martin, Joint Tenants with Rights of Survivorship, (the
"Optionholder"), are entitled to purchase from Miami Subs Corporation, a
corporation incorporated under the laws of the State of Florida (the "Company"),
subject to the terms and conditions hereof, at any time and from time to time
after the date of issuance hereof and, continuing through March 15, 2006 (the
"Expiration Date"), the number of fully paid and non-assessable shares of common
stock of the Company, par value $. 01 per share (the "Common Stock") stated
above at the exercise price of $2.00 per share (the "Exercise Price").
ARTICLE 1. DURATION AND EXERCISE OF OPTION
Section 1.01 DURATION OF OPTION. The Optionholder may exercise this
Option in whole at any time or in part from time to time for a term of ten (l0)
years after March 15, l996 and before 5:00 P.M., Eastern Standard Time, on the
Expiration Date on March 15, 2006 (or, if such day is a Saturday, Sunday or
other day on which banks in the State of Florida are authorized by law to remain
closed, at or before 5:00 P.M., Eastern Standard Time, on the next following
business day). The Option may not be exercised after the Expiration Date.
1
<PAGE>
Section 1.02 EXERCISE OF OPTION.
(a) The Optionholder may exercise this Option in whole at any time or
in part from time to time by presentation and surrender of this Option to the
Company at its corporate office at 6300 N.W. 31st Avenue, Florida with the
Subscription Form annexed hereto duly executed and accompanied by payment of the
full Exercise Price for the aggregate number of shares of Common Stock as to
which the Option is being exercised (the "Option Shares").
(b) Upon receipt of this Option with the Subscription Form duly
executed and accompanied by payment of the aggregate Exercise Price for the
Option Shares, the Company shall cause to be issued certificates for the total
number of whole shares of Common Stock for which this Option is being exercised
in such denominations as are requested for delivery to the Optionholder, and the
Company shall thereupon deliver such certificates to the Optionholder. The
Optionholder shall be deemed to be the holder of record of the shares of Common
Stock issuable upon such exercise, notwithstanding that the stock transfer books
of the Company shall then be closed or that certificates representing such
shares of Common Stock shall not then be actually delivered to the Optionholder.
If the Option should be exercised in part only, the Company shall, upon
surrender of the Option for cancellation, execute and deliver a new Option
evidencing the rights of the Holder thereof to purchase the balance of the
shares of Common Stock purchasable thereunder.
(c) Unless issued pursuant to a Registration Statement as set forth in
Section 2.03 below, the Company may require the Optionholder to make such
investment intent representations, and to provide the Company with an opinion of
counsel (which may be counsel for the Company), and may place such legends on
certificates representing the Option Shares, as may be reasonably required in
the opinion of counsel to the Company to permit the Option Shares to be issued
without registration under the Securities Act.
(d) Payment of the Exercise Price may be made at the option of the
holder hereof in United States currency by certified check, bank cashier's check
or money order payable to the order of the Company.
Section 1.03 RESERVATION OF SHARES. The Company hereby agrees that at
all times there shall be reserved for issuance and delivery upon exercise of
this Option a total of 13,334 shares.
Section 1.04 FRACTIONAL SHARES. The Company shall not be required to
issue any fraction of a share of its capital stock in connection with the
exercise of this Option, and in any case where the Optionholder would, except
for the provisions of this Section 1.04, be entitled under the terms of this
Option to receive a fraction of a share upon the exercise of this Option, the
Company shall, upon the exercise of this Option and receipt of the Exercise
Price, issue only the largest number of whole shares purchasable upon exercise
of this Option. The Company shall not be required to make any cash or other
adjustment in respect of such fraction of a share to which the Optionholder
would otherwise be entitled, but shall return to the Optionholder that portion
of the Exercise Price that represents such fraction of a share.
2
<PAGE>
Section 1.05 DIVIDENDS IN STOCK OR PROPERTY, RECLASSIFICATIONS. In case
at any time or from time to time the holders of the Common Stock of the Company
(or any other shares of stock or other securities at that time receivable upon
exercise of this Option) shall have received other additional or less stock or
other securities or property (other than cash) without consideration therefor
(whether through a dividend in stock of any class of stock of the Company or any
other corporation, or a dividend in any securities or property other than cash,
or through stock split, spin-off, split-off, reclassification, combination of
shares or otherwise), then and in each such case the holder of this Option, upon
the exercise hereof, in whole or in part, shall be entitled to receive, in lieu
of the shares otherwise issuable pursuant hereto, the stock or other securities
or property which such holder would hold on the date of such exercise if, from
the date hereof to and including such date, he had been the holder of record of
the number of shares of the Common Stock of the Company called for on the face
of this Option or, in the case of a partial exercise, such lesser number of
shares as would have been issuable based on the amount paid pursuant to partial
exercise, and had retained such shares and all such other or additional or less
stock and other securities and property receivable in respect of such shares.
Section 1.06 REORGANIZATIONS, CONSOLIDATIONS, MERGERS. In case of any
reorganization of the Company, or any other corporation the stock or. securities
of which are at the time deliverable on the exercise of this Option, or in the
case the Company or such other corporation shall consolidate with or merge into
another corporation, or convey all or substantially all of its assets to another
corporation, the holder of this Option, upon the exercise hereof, in whole or in
part, shall be entitled to receive, in lieu of the shares otherwise issuable
pursuant hereto, the stock or other securities or property to which such holder
would have been entitled upon the consummation of such reorganization,
consolidation, merger or conveyance if he had purchased the shares otherwise
issuable pursuant hereto immediately prior thereto; and in such case, the
provisions of this Option shall be applicable to the shares of stock or other
securities or property thereafter deliverable upon the exercise of this Option.
ARTICLE II. OTHER PROVISIONS RELATING TO RIGHTS OF OPTIONHOLDER
Section 2.01 NO RIGHTS AS SHAREHOLDERS, NOTICE TO OPTIONHOLDER. Nothing
contained in this Option shall be construed as conferring upon the Optionholder
or his transferees the right to vote or to receive dividends or to consent or to
receive notice as a shareholder in respect of any meeting of shareholders for
the election of directors of the Company or of any other matter, or any rights
whatsoever as shareholders of the Company.
Section 2.02 LOST, STOLEN, MUTILATED OR DESTROYED OPTIONS. If this
Option is lost, stolen, mutilated or destroyed, the Company may, on such terms
as to indemnity or otherwise as it may in its discretion impose (which shall, in
the case of a mutilated Option, include the surrender thereof), issue a new
Option of like denomination and tenor as, and in substitution for, this Option.
3
<PAGE>
Section 2.03 RESTRICTED SECURITIES AND REGISTRATION RIGHTS. It is
understood and agreed by the Parties hereto that the issuance of any shares by
MSC pursuant to the option granted in this Agreement will not be registered
shares under the Securities Act of l933, as amended (unless the Shares are
registered as provided below), and that the shares will be "restricted
securities" as that term is defined under Rule l44 of the Securities Act of
l933, as amended, and any stock certificate issued pursuant to an exercise of an
option hereunder shall bear a restrictive legend in substantially the following
form:
These shares have not been registered under the Securities Act
of l933, as amended, or under any state securities laws and
may be offered, sold or transferred only if registered
pursuant to the provisions of such laws, or if in the opinion
of counsel satisfactory to the Company, an exemption from such
registration is available.
On or before April 30, l996, MSC shall file with the Securities and Exchange
Commission a shelf Registration Statement on Form S-3, S-2 or other appropriate
short form, relating to the Shares subject to the Option granted herein; use its
best efforts to cause the effectiveness of such Registration Statement; and, to
the extent required, register or qualify the Shares subject to the Option under
the securities laws of those states that the Optionholders may designate. Upon
effectiveness of such Registration Statement, MSC shall keep such registration
open for a period that shall expire on the later of the date that is twenty-four
(24) months after the effective date of the registration statement, such other
period as allowed under then applicable securities regulations, or the time at
which the Optionees shall exercise their Option and have sold or disposed of all
of the Shares granted by the Option. MSC shall bear all expenses of any such
Registration Statement. In addition, in the event that such shelf registration
has expired within twenty-four (24) months of the effective date of the
Registration Statement, and any Optionee has not exercised his Option and sold
or disposed of all of the Shares subject to such Option, and if, during the term
of this Option there is a change of control of MSC wherein any person (as such
term is used in Sections 13(d) and 14(d)(2) of the Securities and Exchange Act
of l934), either singularly or collectively, is or becomes the beneficial owner,
directly or indirectly, of securities of MSC representing all or substantially
all of the combined voting power of MSC's then outstanding securities, or there
is a sale of all or substantially all of the assets of the Company, then MSC or
its successors or assigns agree that, upon the written request of all of those
Optionholders collectively, who still hold an Option it will file one-time only
with the Securities and Exchange Commission a shelf Registration Statement on
Form S-3, S-2, or other appropriate short form relating to the sale of the
Shares subject to the Option granted herein; use its best efforts to cause the
effectiveness of such Registration Statement; and, to the extent required,
register or qualify the Shares subject to the Option under the securities laws
of those states that the Optionholders may designate. Upon effectiveness of such
Registration Statement, MSC shall keep such registration open for the duration
of the Option until the time at which the Optionees shall exercise their Options
and have sold or disposed of all of the Shares granted by the Option. MSC shall
bear all expenses of such Registration Statement.
4
<PAGE>
In the event that any of the above shelf registrations have expired and any
Optionee has not exercised his Option and sold or disposed of all the Shares
subject to the Option, then, upon the written request of all of those
Optionholders collectively who still hold an Option, MSC agrees that it will
file with the Securities and Exchange Commission a shelf registration statement
on Form S-3, or S-2, or other appropriate short form relating to the Shares
subject to the Option granted herein; use its best efforts to cause the
effectiveness of such Registration Statement; and, to the extent required,
register or qualify the Shares subject to the Options under the securities laws
of those states that the Optionholders may designate. Upon effectiveness of such
registration statement, MSC shall keep such registration open for a period that
shall expire on the later of the date that is twenty-four (24) months after the
effective date of the shelf registration statement, such other period as allowed
under then applicable securities regulations, or the time at which the Optionees
shall exercise their Options and have sold or disposed of all of the Shares
granted by the Options. Optionholders who still hold an Option may collectively
exercise this registration right as many times during the remaining term of the
Option Period as they wish, however, such Optionholders shall bear all expenses
relating to any and all such registration statements.
ARTICLE III. OTHER MATTERS
Section 3.01 AMENDMENTS AND WAIVERS. The provisions of this Option,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waiver or consents to departures from the provisions hereof
may not be given, unless such amendment, modification or supplement is expressly
set forth in a written agreement between the Company and the Optionholder.
Section 3.02 GOVERNING LAW. This Option shall be governed by and
construed in accordance with the laws of the State of Florida, notwithstanding
principles of conflicts of laws.
Section 3.03 NOTICE. Any notices or certificates by the Company to the
Holder and by the Holder to the Company shall be deemed delivered if in writing
and delivered in person or by registered mail (return receipt requested) to the
Holder addressed to him at the address which Holder has designated in writing to
the Company, and if to the Company, addressed to it at:
Company: Miami Subs Corporation
6300 NW 31st Ave.
Fort Lauderdale, FL 33309
Attention: General Counsel
Holder: Gary D. Stern & Martha M. Martin
JTWROS
216 East Camino Real
Boca Raton, FL 33432
5
<PAGE>
The Company may change its address by written notice to the Holder and the
Holder may change its address by written notice to the Company.
Section 3.04 TRANSFERS. The option granted hereunder is not
transferable by Optionee, in whole or in part, otherwise than by operation of
law, by will or by the laws of descent and distribution and is exercisable
during optionee's lifetime only by him. No assignment or transfer of the Option
granted hereunder, or of the rights represented thereby, whether voluntary or
involuntary, by operation of law or otherwise (except by will or the laws of
descent and distribution), shall vest in the assignee or transferee any interest
or right therein whatsoever, but immediately upon any such assignment or
transfer the option shall terminate and become of no further effect.
Section 3.05 EXECUTORS AND ADMINISTRATORS. Upon the death, disability
or retirement of the optionee, his/her executors, administrators or the person
or persons to whom the Option has been transferred by operation of law, by will
or by the laws of descent and distribution shall have six (6) months after the
optionee's retirement to exercise the option. This Agreement shall be binding
upon the successors and assigns of Company.
Section 3.06 RECEIPT OF FORM 10-K AND 10-Q. Optionee acknowledges
receipt of the Company's fiscal year l995 Form l0-K and First Quarter and Second
Quarter l996 l0-Q.
IN WITNESS WHEREOF, this Option has been duly executed by the Company as
of the 15th day of March, 1996.
Attest: MIAMI SUBS CORPORATION
By: /s/ [illegible] By: /s/ [illegible]
------------------------- ---------------------------
Its: Secretary Its: President
6
<PAGE>
SUBSCRIPTION FORM
(To be executed upon exercise of Option)
MIAMI SUBS CORPORATION:
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Option for, and to purchase thereunder,
________ shares of Common Stock, as provided for therein ("Option Shares"), and
tenders herewith payment of the purchase price in full in the form of cash or a
certified check, bank cashier's check, or money order in the amount of
$___________________.
Please issue a certificate or certificates for such Common Stock in the
name of, and pay cash for any fractional share to:
Name________________________________________________
(Please print Name, Address and Social Security No.)
Signature_______________________________________
And if the number of shares being purchased is not all of the Option Shares
purchasable under the within Option, a new Option shall be issued in the name of
the undersigned for the balance remaining of the Option Shares represented by
the Option.
7
THIS OPTION AND THE SHARES OF COMMON STOCK OF MIAMI SUBS CORPORATION
(THE "COMPANY") INTO WHICH THIS OPTION IS CONVERTIBLE, HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE
SECURITIES ACT"), NOR UNDER ANY STATE SECURITIES LAW AND MAY NOT BE
PLEDGED, SOLD, ASSIGNED OR TRANSFERRED UNTIL (i) A REGISTRATION
STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAW OR (ii) THE COMPANY RECEIVES AN OPINION
OF COUNSEL TO THE HOLDER OF THIS OPTION OR OF SUCH COMMON STOCK, WHICH
COUNSEL IS SATISFACTORY TO THE COMPANY, THAT THE OPTION OR SHARES MAY
BE PLEDGED, SOLD, ASSIGNED OR TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR APPLICABLE STATE SECURITIES
LAW.
OPTION TO PURCHASE 66,667
SHARES OF COMMON STOCK
OPTION TO PURCHASE COMMON STOCK OF
MIAMI SUBS CORPORATION
This certifies that, for good and valuable consideration, David T.
Nederlander Irrevocable Trust, Betty Nederlander, Trustee (the "Optionholder"),
is entitled to purchase from Miami Subs Corporation, a corporation incorporated
under the laws of the State of Florida (the "Company"), subject to the terms and
conditions hereof, at any time and from time to time after the date of issuance
hereof and, continuing through March 15, 2006 (the "Expiration Date"), the
number of fully paid and non-assessable shares of common stock of the Company,
par value $. 01 per share (the "Common Stock") stated above at the exercise
price of $2.00 per share (the "Exercise Price").
ARTICLE 1. DURATION AND EXERCISE OF OPTION
Section 1.01 DURATION OF OPTION. The Optionholder may exercise this
Option in whole at any time or in part from time to time for a term of ten (l0)
years after March 15, l996 and before 5:00 P.M., Eastern Standard Time, on the
Expiration Date on March 15, 2006 (or, if such day is a Saturday, Sunday or
other day on which banks in the State of Florida are authorized by law to remain
closed, at or before 5:00 P.M., Eastern Standard Time, on the next following
business day). The Option may not be exercised after the Expiration Date.
1
<PAGE>
Section 1.02 EXERCISE OF OPTION.
(a) The Optionholder may exercise this Option in whole at any time or
in part from time to time by presentation and surrender of this Option to the
Company at its corporate office at 6300 N.W. 31st Avenue, Florida with the
Subscription Form annexed hereto duly executed and accompanied by payment of the
full Exercise Price for the aggregate number of shares of Common Stock as to
which the Option is being exercised (the "Option Shares").
(b) Upon receipt of this Option with the Subscription Form duly
executed and accompanied by payment of the aggregate Exercise Price for the
Option Shares, the Company shall cause to be issued certificates for the total
number of whole shares of Common Stock for which this Option is being exercised
in such denominations as are requested for delivery to the Optionholder, and the
Company shall thereupon deliver such certificates to the Optionholder. The
Optionholder shall be deemed to be the holder of record of the shares of Common
Stock issuable upon such exercise, notwithstanding that the stock transfer books
of the Company shall then be closed or that certificates representing such
shares of Common Stock shall not then be actually delivered to the Optionholder.
If the Option should be exercised in part only, the Company shall, upon
surrender of the Option for cancellation, execute and deliver a new Option
evidencing the rights of the Holder thereof to purchase the balance of the
shares of Common Stock purchasable thereunder.
(c) Unless issued pursuant to a Registration Statement as set forth in
Section 2.03 below, the Company may require the Optionholder to make such
investment intent representations, and to provide the Company with an opinion of
counsel (which may be counsel for the Company), and may place such legends on
certificates representing the Option Shares, as may be reasonably required in
the opinion of counsel to the Company to permit the Option Shares to be issued
without registration under the Securities Act.
(d) Payment of the Exercise Price may be made at the option of the
holder hereof in United States currency by certified check, bank cashier's check
or money order payable to the order of the Company.
Section 1.03 RESERVATION OF SHARES. The Company hereby agrees that at
all times there shall be reserved for issuance and delivery upon exercise of
this Option a total of 66,667 shares.
Section 1.04 FRACTIONAL SHARES. The Company shall not be required to
issue any fraction of a share of its capital stock in connection with the
exercise of this Option, and in any case where the Optionholder would, except
for the provisions of this Section 1.04, be entitled under the terms of this
Option to receive a fraction of a share upon the exercise of this Option, the
Company shall, upon the exercise of this Option and receipt of the Exercise
Price, issue only the largest number of whole shares purchasable upon exercise
of this Option. The Company shall not be required to make any cash or other
adjustment in respect of such fraction of a share to which the Optionholder
would otherwise be entitled, but shall return to the Optionholder that portion
of the Exercise Price that represents such fraction of a share.
2
<PAGE>
Section 1.05 DIVIDENDS IN STOCK OR PROPERTY, RECLASSIFICATIONS. In case
at any time or from time to time the holders of the Common Stock of the Company
(or any other shares of stock or other securities at that time receivable upon
exercise of this Option) shall have received other additional or less stock or
other securities or property (other than cash) without consideration therefor
(whether through a dividend in stock of any class of stock of the Company or any
other corporation, or a dividend in any securities or property other than cash,
or through stock split, spin-off, split-off, reclassification, combination of
shares or otherwise), then and in each such case the holder of this Option, upon
the exercise hereof, in whole or in part, shall be entitled to receive, in lieu
of the shares otherwise issuable pursuant hereto, the stock or other securities
or property which such holder would hold on the date of such exercise if, from
the date hereof to and including such date, he had been the holder of record of
the number of shares of the Common Stock of the Company called for on the face
of this Option or, in the case of a partial exercise, such lesser number of
shares as would have been issuable based on the amount paid pursuant to partial
exercise, and had retained such shares and all such other or additional or less
stock and other securities and property receivable in respect of such shares.
Section 1.06 REORGANIZATIONS, CONSOLIDATIONS, MERGERS. In case of any
reorganization of the Company, or any other corporation the stock or. securities
of which are at the time deliverable on the exercise of this Option, or in the
case the Company or such other corporation shall consolidate with or merge into
another corporation, or convey all or substantially all of its assets to another
corporation, the holder of this Option, upon the exercise hereof, in whole or in
part, shall be entitled to receive, in lieu of the shares otherwise issuable
pursuant hereto, the stock or other securities or property to which such holder
would have been entitled upon the consummation of such reorganization,
consolidation, merger or conveyance if he had purchased the shares otherwise
issuable pursuant hereto immediately prior thereto; and in such case, the
provisions of this Option shall be applicable to the shares of stock or other
securities or property thereafter deliverable upon the exercise of this Option.
ARTICLE II. OTHER PROVISIONS RELATING TO RIGHTS OF OPTIONHOLDER
Section 2.01 NO RIGHTS AS SHAREHOLDERS, NOTICE TO OPTIONHOLDER. Nothing
contained in this Option shall be construed as conferring upon the Optionholder
or his transferees the right to vote or to receive dividends or to consent or to
receive notice as a shareholder in respect of any meeting of shareholders for
the election of directors of the Company or of any other matter, or any rights
whatsoever as shareholders of the Company.
Section 2.02 LOST, STOLEN, MUTILATED OR DESTROYED OPTIONS. If this
Option is lost, stolen, mutilated or destroyed, the Company may, on such terms
as to indemnity or otherwise as it may in its discretion impose (which shall, in
the case of a mutilated Option, include the surrender thereof), issue a new
Option of like denomination and tenor as, and in substitution for, this Option.
3
<PAGE>
Section 2.03 RESTRICTED SECURITIES AND REGISTRATION RIGHTS. It is
understood and agreed by the Parties hereto that the issuance of any shares by
MSC pursuant to the option granted in this Agreement will not be registered
shares under the Securities Act of l933, as amended (unless the Shares are
registered as provided below), and that the shares will be "restricted
securities" as that term is defined under Rule l44 of the Securities Act of
l933, as amended, and any stock certificate issued pursuant to an exercise of an
option hereunder shall bear a restrictive legend in substantially the following
form:
These shares have not been registered under the Securities Act
of l933, as amended, or under any state securities laws and
may be offered, sold or transferred only if registered
pursuant to the provisions of such laws, or if in the opinion
of counsel satisfactory to the Company, an exemption from such
registration is available.
On or before April 30, l996, MSC shall file with the Securities and Exchange
Commission a shelf Registration Statement on Form S-3, S-2 or other appropriate
short form, relating to the Shares subject to the Option granted herein; use its
best efforts to cause the effectiveness of such Registration Statement; and, to
the extent required, register or qualify the Shares subject to the Option under
the securities laws of those states that the Optionholders may designate. Upon
effectiveness of such Registration Statement, MSC shall keep such registration
open for a period that shall expire on the later of the date that is twenty-four
(24) months after the effective date of the registration statement, such other
period as allowed under then applicable securities regulations, or the time at
which the Optionees shall exercise their Option and have sold or disposed of all
of the Shares granted by the Option. MSC shall bear all expenses of any such
Registration Statement. In addition, in the event that such shelf registration
has expired within twenty-four (24) months of the effective date of the
Registration Statement, and any Optionee has not exercised his Option and sold
or disposed of all of the Shares subject to such Option, and if, during the term
of this Option there is a change of control of MSC wherein any person (as such
term is used in Sections 13(d) and 14(d)(2) of the Securities and Exchange Act
of l934), either singularly or collectively, is or becomes the beneficial owner,
directly or indirectly, of securities of MSC representing all or substantially
all of the combined voting power of MSC's then outstanding securities, or there
is a sale of all or substantially all of the assets of the Company, then MSC or
its successors or assigns agree that, upon the written request of all of those
Optionholders collectively, who still hold an Option it will file one-time only
with the Securities and Exchange Commission a shelf Registration Statement on
Form S-3, S-2, or other appropriate short form relating to the sale of the
Shares subject to the Option granted herein; use its best efforts to cause the
effectiveness of such Registration Statement; and, to the extent required,
register or qualify the Shares subject to the Option under the securities laws
of those states that the Optionholders may designate. Upon effectiveness of such
Registration Statement, MSC shall keep such registration open for the duration
of the Option until the time at which the Optionees shall exercise their Options
and have sold or disposed of all of the Shares granted by the Option. MSC shall
bear all expenses of such Registration Statement.
4
<PAGE>
In the event that any of the above shelf registrations have expired and any
Optionee has not exercised his Option and sold or disposed of all the Shares
subject to the Option, then, upon the written request of all of those
Optionholders collectively who still hold an Option, MSC agrees that it will
file with the Securities and Exchange Commission a shelf registration statement
on Form S-3, or S-2, or other appropriate short form relating to the Shares
subject to the Option granted herein; use its best efforts to cause the
effectiveness of such Registration Statement; and, to the extent required,
register or qualify the Shares subject to the Options under the securities laws
of those states that the Optionholders may designate. Upon effectiveness of such
registration statement, MSC shall keep such registration open for a period that
shall expire on the later of the date that is twenty-four (24) months after the
effective date of the shelf registration statement, such other period as allowed
under then applicable securities regulations, or the time at which the Optionees
shall exercise their Options and have sold or disposed of all of the Shares
granted by the Options. Optionholders who still hold an Option may collectively
exercise this registration right as many times during the remaining term of the
Option Period as they wish, however, such Optionholders shall bear all expenses
relating to any and all such registration statements.
ARTICLE III. OTHER MATTERS
Section 3.01 AMENDMENTS AND WAIVERS. The provisions of this Option,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waiver or consents to departures from the provisions hereof
may not be given, unless such amendment, modification or supplement is expressly
set forth in a written agreement between the Company and the Optionholder.
Section 3.02 GOVERNING LAW. This Option shall be governed by and
construed in accordance with the laws of the State of Florida, notwithstanding
principles of conflicts of laws.
Section 3.03 NOTICE. Any notices or certificates by the Company to the
Holder and by the Holder to the Company shall be deemed delivered if in writing
and delivered in person or by registered mail (return receipt requested) to the
Holder addressed to him at the address which Holder has designated in writing to
the Company, and if to the Company, addressed to it at:
Company: Miami Subs Corporation
6300 NW 31st Ave.
Fort Lauderdale, FL 33309
Attention: General Counsel
Holder: David T. Nederlander Irrevocable Trust
Betty Nederlander, Trustee
Post Office Box 250548
Franklin, MI 48025
5
<PAGE>
The Company may change its address by written notice to the Holder and the
Holder may change its address by written notice to the Company.
Section 3.04 TRANSFERS. The option granted hereunder is not
transferable by Optionee, in whole or in part, otherwise than by operation of
law, by will or by the laws of descent and distribution and is exercisable
during optionee's lifetime only by him. No assignment or transfer of the Option
granted hereunder, or of the rights represented thereby, whether voluntary or
involuntary, by operation of law or otherwise (except by will or the laws of
descent and distribution), shall vest in the assignee or transferee any interest
or right therein whatsoever, but immediately upon any such assignment or
transfer the option shall terminate and become of no further effect.
Section 3.05 EXECUTORS AND ADMINISTRATORS. Upon the death, disability
or retirement of the optionee, his/her executors, administrators or the person
or persons to whom the Option has been transferred by operation of law, by will
or by the laws of descent and distribution shall have six (6) months after the
optionee's retirement to exercise the option. This Agreement shall be binding
upon the successors and assigns of Company.
Section 3.06 RECEIPT OF FORM 10-K AND 10-Q. Optionee acknowledges
receipt of the Company's fiscal year l995 Form l0-K and First Quarter and Second
Quarter l996 l0-Q.
IN WITNESS WHEREOF, this Option has been duly executed by the Company as
of the 15th day of March, 1996.
Attest: MIAMI SUBS CORPORATION
By: /s/ [illegible] By: /s/ [illegible]
------------------------- ---------------------------
Its: Secretary Its: President
6
<PAGE>
SUBSCRIPTION FORM
(To be executed upon exercise of Option)
MIAMI SUBS CORPORATION:
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Option for, and to purchase thereunder,
________ shares of Common Stock, as provided for therein ("Option Shares"), and
tenders herewith payment of the purchase price in full in the form of cash or a
certified check, bank cashier's check, or money order in the amount of
$___________________.
Please issue a certificate or certificates for such Common Stock in the
name of, and pay cash for any fractional share to:
Name________________________________________________
(Please print Name, Address and Social Security No.)
Signature_______________________________________
And if the number of shares being purchased is not all of the Option Shares
purchasable under the within Option, a new Option shall be issued in the name of
the undersigned for the balance remaining of the Option Shares represented by
the Option.
7
THIS OPTION AND THE SHARES OF COMMON STOCK OF MIAMI SUBS CORPORATION
(THE "COMPANY") INTO WHICH THIS OPTION IS CONVERTIBLE, HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE
SECURITIES ACT"), NOR UNDER ANY STATE SECURITIES LAW AND MAY NOT BE
PLEDGED, SOLD, ASSIGNED OR TRANSFERRED UNTIL (i) A REGISTRATION
STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAW OR (ii) THE COMPANY RECEIVES AN OPINION
OF COUNSEL TO THE HOLDER OF THIS OPTION OR OF SUCH COMMON STOCK, WHICH
COUNSEL IS SATISFACTORY TO THE COMPANY, THAT THE OPTION OR SHARES MAY
BE PLEDGED, SOLD, ASSIGNED OR TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR APPLICABLE STATE SECURITIES
LAW.
OPTION TO PURCHASE 16,666
SHARES OF COMMON STOCK
OPTION TO PURCHASE COMMON STOCK OF
MIAMI SUBS CORPORATION
This certifies that, for good and valuable consideration, Gary Prindible
(the "Optionholder"), is entitled to purchase from Miami Subs Corporation, a
corporation incorporated under the laws of the State of Florida (the "Company"),
subject to the terms and conditions hereof, at any time and from time to time
after the date of issuance hereof and, continuing through March 15, 2006 (the
"Expiration Date"), the number of fully paid and non-assessable shares of common
stock of the Company, par value $. 01 per share (the "Common Stock") stated
above at the exercise price of $2.00 per share (the "Exercise Price").
ARTICLE 1. DURATION AND EXERCISE OF OPTION
Section 1.01 DURATION OF OPTION. The Optionholder may exercise this
Option in whole at any time or in part from time to time for a term of ten (l0)
years after March 15, l996 and before 5:00 P.M., Eastern Standard Time, on the
Expiration Date on March 15, 2006 (or, if such day is a Saturday, Sunday or
other day on which banks in the State of Florida are authorized by law to remain
closed, at or before 5:00 P.M., Eastern Standard Time, on the next following
business day). The Option may not be exercised after the Expiration Date.
1
<PAGE>
Section 1.02 EXERCISE OF OPTION.
(a) The Optionholder may exercise this Option in whole at any time or
in part from time to time by presentation and surrender of this Option to the
Company at its corporate office at 6300 N.W. 31st Avenue, Florida with the
Subscription Form annexed hereto duly executed and accompanied by payment of the
full Exercise Price for the aggregate number of shares of Common Stock as to
which the Option is being exercised (the "Option Shares").
(b) Upon receipt of this Option with the Subscription Form duly
executed and accompanied by payment of the aggregate Exercise Price for the
Option Shares, the Company shall cause to be issued certificates for the total
number of whole shares of Common Stock for which this Option is being exercised
in such denominations as are requested for delivery to the Optionholder, and the
Company shall thereupon deliver such certificates to the Optionholder. The
Optionholder shall be deemed to be the holder of record of the shares of Common
Stock issuable upon such exercise, notwithstanding that the stock transfer books
of the Company shall then be closed or that certificates representing such
shares of Common Stock shall not then be actually delivered to the Optionholder.
If the Option should be exercised in part only, the Company shall, upon
surrender of the Option for cancellation, execute and deliver a new Option
evidencing the rights of the Holder thereof to purchase the balance of the
shares of Common Stock purchasable thereunder.
(c) Unless issued pursuant to a Registration Statement as set forth in
Section 2.03 below, the Company may require the Optionholder to make such
investment intent representations, and to provide the Company with an opinion of
counsel (which may be counsel for the Company), and may place such legends on
certificates representing the Option Shares, as may be reasonably required in
the opinion of counsel to the Company to permit the Option Shares to be issued
without registration under the Securities Act.
(d) Payment of the Exercise Price may be made at the option of the
holder hereof in United States currency by certified check, bank cashier's check
or money order payable to the order of the Company.
Section 1.03 RESERVATION OF SHARES. The Company hereby agrees that at
all times there shall be reserved for issuance and delivery upon exercise of
this Option a total of 16,666 shares.
Section 1.04 FRACTIONAL SHARES. The Company shall not be required to
issue any fraction of a share of its capital stock in connection with the
exercise of this Option, and in any case where the Optionholder would, except
for the provisions of this Section 1.04, be entitled under the terms of this
Option to receive a fraction of a share upon the exercise of this Option, the
Company shall, upon the exercise of this Option and receipt of the Exercise
Price, issue only the largest number of whole shares purchasable upon exercise
of this Option. The Company shall not be required to make any cash or other
adjustment in respect of such fraction of a share to which the Optionholder
would otherwise be entitled, but shall return to the Optionholder that portion
of the Exercise Price that represents such fraction of a share.
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Section 1.05 DIVIDENDS IN STOCK OR PROPERTY, RECLASSIFICATIONS. In case
at any time or from time to time the holders of the Common Stock of the Company
(or any other shares of stock or other securities at that time receivable upon
exercise of this Option) shall have received other additional or less stock or
other securities or property (other than cash) without consideration therefor
(whether through a dividend in stock of any class of stock of the Company or any
other corporation, or a dividend in any securities or property other than cash,
or through stock split, spin-off, split-off, reclassification, combination of
shares or otherwise), then and in each such case the holder of this Option, upon
the exercise hereof, in whole or in part, shall be entitled to receive, in lieu
of the shares otherwise issuable pursuant hereto, the stock or other securities
or property which such holder would hold on the date of such exercise if, from
the date hereof to and including such date, he had been the holder of record of
the number of shares of the Common Stock of the Company called for on the face
of this Option or, in the case of a partial exercise, such lesser number of
shares as would have been issuable based on the amount paid pursuant to partial
exercise, and had retained such shares and all such other or additional or less
stock and other securities and property receivable in respect of such shares.
Section 1.06 REORGANIZATIONS, CONSOLIDATIONS, MERGERS. In case of any
reorganization of the Company, or any other corporation the stock or. securities
of which are at the time deliverable on the exercise of this Option, or in the
case the Company or such other corporation shall consolidate with or merge into
another corporation, or convey all or substantially all of its assets to another
corporation, the holder of this Option, upon the exercise hereof, in whole or in
part, shall be entitled to receive, in lieu of the shares otherwise issuable
pursuant hereto, the stock or other securities or property to which such holder
would have been entitled upon the consummation of such reorganization,
consolidation, merger or conveyance if he had purchased the shares otherwise
issuable pursuant hereto immediately prior thereto; and in such case, the
provisions of this Option shall be applicable to the shares of stock or other
securities or property thereafter deliverable upon the exercise of this Option.
ARTICLE II. OTHER PROVISIONS RELATING TO RIGHTS OF OPTIONHOLDER
Section 2.01 NO RIGHTS AS SHAREHOLDERS, NOTICE TO OPTIONHOLDER. Nothing
contained in this Option shall be construed as conferring upon the Optionholder
or his transferees the right to vote or to receive dividends or to consent or to
receive notice as a shareholder in respect of any meeting of shareholders for
the election of directors of the Company or of any other matter, or any rights
whatsoever as shareholders of the Company.
Section 2.02 LOST, STOLEN, MUTILATED OR DESTROYED OPTIONS. If this
Option is lost, stolen, mutilated or destroyed, the Company may, on such terms
as to indemnity or otherwise as it may in its discretion impose (which shall, in
the case of a mutilated Option, include the surrender thereof), issue a new
Option of like denomination and tenor as, and in substitution for, this Option.
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Section 2.03 RESTRICTED SECURITIES AND REGISTRATION RIGHTS. It is
understood and agreed by the Parties hereto that the issuance of any shares by
MSC pursuant to the option granted in this Agreement will not be registered
shares under the Securities Act of l933, as amended (unless the Shares are
registered as provided below), and that the shares will be "restricted
securities" as that term is defined under Rule l44 of the Securities Act of
l933, as amended, and any stock certificate issued pursuant to an exercise of an
option hereunder shall bear a restrictive legend in substantially the following
form:
These shares have not been registered under the Securities Act
of l933, as amended, or under any state securities laws and
may be offered, sold or transferred only if registered
pursuant to the provisions of such laws, or if in the opinion
of counsel satisfactory to the Company, an exemption from such
registration is available.
On or before April 30, l996, MSC shall file with the Securities and Exchange
Commission a shelf Registration Statement on Form S-3, S-2 or other appropriate
short form, relating to the Shares subject to the Option granted herein; use its
best efforts to cause the effectiveness of such Registration Statement; and, to
the extent required, register or qualify the Shares subject to the Option under
the securities laws of those states that the Optionholders may designate. Upon
effectiveness of such Registration Statement, MSC shall keep such registration
open for a period that shall expire on the later of the date that is twenty-four
(24) months after the effective date of the registration statement, such other
period as allowed under then applicable securities regulations, or the time at
which the Optionees shall exercise their Option and have sold or disposed of all
of the Shares granted by the Option. MSC shall bear all expenses of any such
Registration Statement. In addition, in the event that such shelf registration
has expired within twenty-four (24) months of the effective date of the
Registration Statement, and any Optionee has not exercised his Option and sold
or disposed of all of the Shares subject to such Option, and if, during the term
of this Option there is a change of control of MSC wherein any person (as such
term is used in Sections 13(d) and 14(d)(2) of the Securities and Exchange Act
of l934), either singularly or collectively, is or becomes the beneficial owner,
directly or indirectly, of securities of MSC representing all or substantially
all of the combined voting power of MSC's then outstanding securities, or there
is a sale of all or substantially all of the assets of the Company, then MSC or
its successors or assigns agree that, upon the written request of all of those
Optionholders collectively, who still hold an Option it will file one-time only
with the Securities and Exchange Commission a shelf Registration Statement on
Form S-3, S-2, or other appropriate short form relating to the sale of the
Shares subject to the Option granted herein; use its best efforts to cause the
effectiveness of such Registration Statement; and, to the extent required,
register or qualify the Shares subject to the Option under the securities laws
of those states that the Optionholders may designate. Upon effectiveness of such
Registration Statement, MSC shall keep such registration open for the duration
of the Option until the time at which the Optionees shall exercise their Options
and have sold or disposed of all of the Shares granted by the Option. MSC shall
bear all expenses of such Registration Statement.
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In the event that any of the above shelf registrations have expired and any
Optionee has not exercised his Option and sold or disposed of all the Shares
subject to the Option, then, upon the written request of all of those
Optionholders collectively who still hold an Option, MSC agrees that it will
file with the Securities and Exchange Commission a shelf registration statement
on Form S-3, or S-2, or other appropriate short form relating to the Shares
subject to the Option granted herein; use its best efforts to cause the
effectiveness of such Registration Statement; and, to the extent required,
register or qualify the Shares subject to the Options under the securities laws
of those states that the Optionholders may designate. Upon effectiveness of such
registration statement, MSC shall keep such registration open for a period that
shall expire on the later of the date that is twenty-four (24) months after the
effective date of the shelf registration statement, such other period as allowed
under then applicable securities regulations, or the time at which the Optionees
shall exercise their Options and have sold or disposed of all of the Shares
granted by the Options. Optionholders who still hold an Option may collectively
exercise this registration right as many times during the remaining term of the
Option Period as they wish, however, such Optionholders shall bear all expenses
relating to any and all such registration statements.
ARTICLE III. OTHER MATTERS
Section 3.01 AMENDMENTS AND WAIVERS. The provisions of this Option,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waiver or consents to departures from the provisions hereof
may not be given, unless such amendment, modification or supplement is expressly
set forth in a written agreement between the Company and the Optionholder.
Section 3.02 GOVERNING LAW. This Option shall be governed by and
construed in accordance with the laws of the State of Florida, notwithstanding
principles of conflicts of laws.
Section 3.03 NOTICE. Any notices or certificates by the Company to the
Holder and by the Holder to the Company shall be deemed delivered if in writing
and delivered in person or by registered mail (return receipt requested) to the
Holder addressed to him at the address which Holder has designated in writing to
the Company, and if to the Company, addressed to it at:
Company: Miami Subs Corporation
6300 NW 31st Ave.
Fort Lauderdale, FL 33309
Attention: General Counsel
Holder: Gary Prindible
8l8 S.E. 7th Street
Fort Lauderdale, FL 33301
The Company may change its address by written notice to the Holder and the
Holder may change its address by written notice to the Company.
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Section 3.04 TRANSFERS. The option granted hereunder is not
transferable by Optionee, in whole or in part, otherwise than by operation of
law, by will or by the laws of descent and distribution and is exercisable
during optionee's lifetime only by him. No assignment or transfer of the Option
granted hereunder, or of the rights represented thereby, whether voluntary or
involuntary, by operation of law or otherwise (except by will or the laws of
descent and distribution), shall vest in the assignee or transferee any interest
or right therein whatsoever, but immediately upon any such assignment or
transfer the option shall terminate and become of no further effect.
Section 3.05 EXECUTORS AND ADMINISTRATORS. Upon the death, disability
or retirement of the optionee, his/her executors, administrators or the person
or persons to whom the Option has been transferred by operation of law, by will
or by the laws of descent and distribution shall have six (6) months after the
optionee's retirement to exercise the option. This Agreement shall be binding
upon the successors and assigns of Company.
Section 3.06 RECEIPT OF FORM 10-K AND 10-Q. Optionee acknowledges
receipt of the Company's fiscal year l995 Form l0-K and First Quarter and Second
Quarter l996 l0-Q.
IN WITNESS WHEREOF, this Option has been duly executed by the Company as
of the 15th day of March, 1996.
Attest: MIAMI SUBS CORPORATION
By: /s/ [illegible] By: /s/ [illegible]
------------------------- ---------------------------
Its: Secretary Its: President
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SUBSCRIPTION FORM
(To be executed upon exercise of Option)
MIAMI SUBS CORPORATION:
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Option for, and to purchase thereunder,
________ shares of Common Stock, as provided for therein ("Option Shares"), and
tenders herewith payment of the purchase price in full in the form of cash or a
certified check, bank cashier's check, or money order in the amount of
$___________________.
Please issue a certificate or certificates for such Common Stock in the
name of, and pay cash for any fractional share to:
Name________________________________________________
(Please print Name, Address and Social Security No.)
Signature_______________________________________
And if the number of shares being purchased is not all of the Option Shares
purchasable under the within Option, a new Option shall be issued in the name of
the undersigned for the balance remaining of the Option Shares represented by
the Option.
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