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KOESTLER,INC. DEFENDANT
COMPLAINT
Plaintiffs Mark J. Shapley, Mary B. Shapley, and Shapley's, Inc. (collectively, the
"Plaintiffs") files this Complaint against Defendant Koestler, Inc. ("Koestler"), alleging as
follows:
Introduction
1. Mark and Mary Shapley (the "Shapleys") opened Shapley's Restaurant, also
known as Shapley's, in Ridgeland, Mississippi in 1985, and immediately became known for
providing the highest quality steaks and seafood in the state. Thirteen years later, in 1998,
Plaintiff Shapley's, Inc. entered into an Asset Purchase Agreement with Defendant, and, as part
of that agreement, Shapley Development, LLC ("Shapley Development') leased the building
where the restaurant was located (868 Centre Street, Ridgeland, Mississippi) to Defendant for an
initial term of ten years, with the option of renewal through June of 2018. In the Asset Purchase
Agreement, Plaintiff Shapley's, Inc. sold Defendant its furniture, fixtures, equipment, and
inventory, as well "the exclusive right to use the name `Shapley's' or `Shapley's Restaurant'
within a 50 mile radius of Jackson, Mississippi for a term be inning on the date of fthe]
A~reen:ient and ending on the date the Lease is terminated" or if Koestler "defaults on ... the
Lease and such default is not cured[.]" Ex. A, APA at p. 1 (emphasis added).
2. Plaintiffs own the "Shapley's" service mark, and Defendant does not have any
right to use the mark following the expiration of the Lease. Nonetheless, Defendant fraudulently
and inappropriately obtained a federal registration for the mark and, upon information and belief,
fully intends to continue to use the name beyond the term of the Lease. The term of the Lease
ends on June 30, 2018, and Defendant's right to use the name terminates with it. Upon
information and belief, Defendant intends to open a restaurant in the space at Renaissance at
Colony Park in Ridgeland, Mississippi that currently houses Ruth's Chris Steak House on or
around May 1, 2018 and plans to call it "Shapley's." Accordingly, Plaintiffs seek declaratory and
injunctive relief regarding use of the "Shapley's" mark, as well as an order cancelling or
The Parties
Mississippi.
Mississippi, with its principal place of business at 125 Woodmont Way, in Ridgeland,
Mississippi.
Mississippi, with its principal place of business at 868 Centre Street in Ridgeland, Mississippi,
and may be served with process on its registered agent Scott Koestler at that address.
2
Jurisdiction and Venue
7. This Court has subject matter jurisdiction under Section 39 ofthe Lanham Act, 15
U.S.C. § 1121, and under 28 U.S.C. §§ 1331 and 1338. This Court has jurisdiction over
Plaintiffs' related state and common law claims pursuant to 28 U.S.C. §§ 1338 and 1367.
the events or omissions giving rise to the claims occurred in this District and as Defendant
9. This Court has authority to issue permanent injunctions and other equitable and
declaratory relief pursuant to 28 U.S.C. §§ 2201,2202, 15 U.S.C. § 1116, and Mississippi law.
The Origins ofthe Restaurant and the 1998 Asset Purchase Agreement
10. In 1985, the Shapleys opened the steak and seafood restaurant Shapley's in
Ridgeland, Mississippi, providing restaurant and bar services under the "Shapley's" service mark
{the "Mark"). Shapley's, Inc. was incorporated three years later, in 1988, with the Shapleys as
the sole shareholders, and Plaintiffs continued providing restaurant and bar services under the
Mark.
11. In August 1997, the Shapleys formed Shapley Development, LLC. Shapley
Development owns the Ridgeland, Mississippi property and building at 868 Centre Street,
12. In 7uly 1998, Shapley's, Inc. and Defendant entered into an Asset Purchase
Agreement (the "APA") because "[Shapley's, Inc.] desired] to sell to [Defendant], and
[Defendant] desired] to purchase from [Shapley's, Inc.] the Purchased Assets (as defined below)
according to the terms and conditions ofth[e] Agreement." Ex. A,APA at p. 1 (emphasis added).
3
13. The "Basic Transaction" section ofthe APA states, in part:
See Ex. A, APA at § II.A., p. 2 (highlights added). In other words, Shapley's, Inc. sold and
Defendant purchased "only the Purchased Assets." Id. "No other assets of the Seller ... [were]
14. The APA defines "Purchased Assets" as "the assets described in Schedule 1.L.
hereof." See Ex. A, APA at § I.L. Schedule 1.L. identifies the following "Purchased Assets":
Schedule ]. X..
The equipment sloall include„ but ahaU not be limioedto, theitems descn'hed on Scb~edole 1.
L. - A.
~7~ TISC CXGIU9IYC T~' IL f0 tlhC BAG11BID0 n ~3n 01• ~~S~~C}~D RG4~i8tt~ WIt~I,B
S.O;aall.~ ra+d{us, a£ Ja~ou!°MtesCss~pp~ a t~ ~ the dstie o~ t~s: and
end~►B oa;tba:dafe:t}i~.L;~BBe~:i&1e ;excluding Shapley's Gavrmet Foods, a direct sale food
bus'raes~ owned by Sh~ueholdets. '1'tnis exclusiveright shill also terminate if Bayer defanlb on tho
Promissory I`Tobc or the Isase and such default is not eiaodder the terns of sorb agreements.
See Ex. A, APA at Schedule 1.L. (highlights added). In sum, the Purchased Assets included: (1)
furniture; (2) fixtures; (3) equipment; (4) inventory; (5) and the exclusive right to use the Mark
within a 50 mile radius of Jackson, Mississippi "for a term beginning on the date of [the]
Agreement and ending on the date the Lease is terminated." Id. (emphasis added).
4
15. "Purchased Assets," as defined and used throughout the APA, refers to the assets
described in Schedule 1.L. The parties did not list the Mark as a "Purchased Asset." Instead, the
APA describes the "Purchased Asset" as "the exclusive right to use" the Mark in a limited area
for a limited time. See Ex. A, APA at Schedule l.L. The term of the Lease ends on June 30,
2018, and Defendant's exclusive, limited right to use the Mark ends with it. See Ex. B, Lease at
¶2; Ex. C, First Amendment at ¶ A. If Defendant purchased the Mark in its entirety, as it
contends, Defendant would not need to also purchase the exclusive right to use the name within a
50 mile radius of Jackson for a term beginning on the date of the APA and ending when the
Lease terminates; Defendant would have the absolute right to use the Mazk whenever and
16. The APA states that "[t]he Purchase Price shall be allocated among,the Purchased
Assets as set forth on Schedule 2.0 of this Agreement." See Ex. A, APA at § II.C, p. 2(emphasis
added). Schedule 2.C. to the APA, an Allocation Agreement, concerns the allocation of the
purchase price for tax purposes. The Allocation Agreement acknowledges that the parties entered
into the APA "whereby Buyer agreed to purchase certain assets from Seller upon the terms and
conditions set forth therein[.]" See Ex. A, APA at Schedule 2.0 at 2 (emphasis added). The
Allocation Agreement states that as to the "certain assets" purchased under the APA,"the Parties
c~oaw~ii~ si,aiz,~oo.00
Equipm~nt 228,300.00
Inventory ~n.nan.00
TOTAL 4'!_ 691 000.00
5
1'1'he term "Go~awill" includes the fc,llowi.rg: the value of khe
Noncompete Agreement of even date herAwith executed by Mark 5hapley
and Mary shapley; the going concern value of 5hapley's Restaurant;
and the value of any and all other "amortizable section 197
irt~ngiblc~" as defined in ~ 197 of the InL- ern~~l. Revenue Cocle of
1386, us amended.
Id. at 3, n. 1. Section 197 of the Internal Revenue Code states that "section 197 intangible"
means, in part: goodwill; going concern value; or "any franchise, trademark, or trade name." 26
17. The allocation set forth in the Allocation Agreement is subject to and dependent
upon the definition of"Purchased Assets;" it does not define "Purchased Assets." Therefore, the
Noncompete Agreement," "the going concern value," and the "amortizable section 197
intangibles"—would only relate to the Shapleys' noncompete obligation and the "Purchased
Assets" identified on Schedule 1.L., including: "[t]he exclusive right to use the name `Shapley's'
or `Shapley's Restaurant' within a 50 mile radius ofJackson, Mississippi for a term beginning on
the date of this Agreement and ending on the date the Lease is terminated[.]" See APA at
Schedule 1.L. Thus, when the "Purchased Assets" provision and the Allocation Agreement are
read together, they provide that, for tax purposes, the goodwill allocation included, among other
things, the intangible assets associated with Defendant's right to use the Mark within SO miles of
Jackson for the term of the Lease. Section 197 cannot be read in a way that would expand the
Purchased Assets to include the sale of the Mark in its entirety. To do so would render the
18. For these reasons, it is clear that the "Purchased Asset" was the exclusive right to
,:~
The Lease ofthe Property at 8b$ Centre Street. Ridgeland. Mississ~ni
19. Under the APA,Defendant received an exclusive license to use the Mark within a
50 mile radius of Jackson, Mississippi "for a term beginning on the date of[the] Agreement and
ending on the date the Lease is terminated." See Ex. A, APA at Schedule 1.L.(emphasis added).
20. Regarding the Lease of the restaurant property at 868 Centre Street, Ridgeland,
21. The Lease executed by Shepley Development and Defendant pursuant to the APA
states:
2. ~.The primary test ofthis Lease sbe]l comme~ace on July d 1,1998 and shall
expire on Jane 30,200& Tenant shalt have the riglst to renew this Lease for one add~nional
wnsecutive teem oftan yeazs beginning on July 1,?A08 and expiring on Jame 30,2018 by giving
notice as provided begin to Laztdlord before December 31,2007,(The pxiaoaty~ tee and
22. Effective February 1, 2008, Shepley Development and Defendant entered into a
First Amendment to Lease. See Ex. C, First Amendment. The First Amendment states, in part:
7
A Section 2.ofthe Lease is hereby deleted isits~a nd x~plac~ed with the
fnl~,pwiag:
See id. at ¶A. Therefore, pursuant to the First Amendment to Lease, the Lease will terminate on
June 30, 2018, and Defendant's exclusive, limited right to use the Shapley name terminates with
it. ld.
23. Shortly after the execution of the First Amendment, Defendant instituted plans to
24. Notwithstanding the Plaintiffs' prior and rightful ownership of the Mark,
Defendant filed a federal trademark application to register "Shapley's" for "restaurant and bar
services" on August 5, 2008 (Application Serial No. 77/539,217)(the "Application"). See Ex. D,
Application. Without providing any notice and without seeking Plaintiffs' permission,
Defendant's President, Scott Koestler, signed a declaration with the Application, declaring
Defendant was the sole owner ofthe Mark. Specifically, the Declaration stated:
The undersigned, being hereby warned that willful false statements and
the like so made are punishable by fine or imprisonment, or both, under 18
U.S.C. Section IOOI, and that such willful false statements, and the like,
may jeopardize the validity ofthe application or any resulting registration,
declares that he/she is properly authorized to execute this application on
behalf of the applicant; he/she believes the applicant to be the owner of
the trademark/service mark sought to be registered, or, if the
application is being filed under 15 U.S.C. Section 1051(b), he/she believes
applicant to be entitled to use such mazk in commerce; to the best of
his/her knowledge and belief no other person, firm, corporation, or
association bas the right to use the mark in commerce;either in the
identical form thereof or in such near resemblance thereto as to be likely,
when used on or in connection with the goods/services of such other
person, to cause confusion, or to cause mistake, or to deceive; and that all
statements made of his/her own knowledge are true; and that all
statements made on information and belief are believed to be true.
25. The United States Patent and Trademark Office ("USPTO") refused registration
of the Application based on the fact that "Shapley's" is primazily a surname. See Ex. E, USPTO
Refusal to Register. To overcome the USPTO's refusal to register, Defendant filed a response
(the "Response") contending "Shapley's" had acquired distinctiveness, i.e. had become
distinctive of the services through Defendant's substantially exclusive and continuous use of
"Shapley's" in commerce for at least the five years immediately before December 1, 2008 (the
date of Defendant's response). See Ex. F, USPTO Response. The Response included the same
Declaration quoted above, which was also signed by Mr. Koestler. ld.
26. Defendant obtained a registration for the Mark on March 31, 2009 (Registration
27. On August 29, 2014, Defendant filed a Declaration of Use andlor Excusable
Nonuse of Mark in Commerce under Section 8. See Ex. G, Maintenance Declaration. That
The owner, Koestler, Inc. ... is filing a Declaration of Use and/or Excusable
Nonuse of Mark in Commerce under Section 8.
The owner is submitting one(oT more) specimens) showing the mark as used in
commerce on or in connection with any item in this class, consisting of a(n)
business card and menu and product label bearing the mark.
G~
Id.(emphasis added).
28. On September 11, 2017, Mark Shapley filed a Petition to Cancel the Registration
before the Trademark Trial and Appeal Board ("TTAB") of the USPTO. On November 1, 2017,
Plaintiffs filed an Amended Petition to Cancel the Registration arguing that the Registration
should be cancelled because Defendant obtained the Registration by fraud and because the
Registration falsely suggests a connection with Plaintiffs and consists of the names of living
individuals without their consent. Defendant filed a motion to dismiss, which is pending before
the TTAB.
29. As stated above, the Lease —and Defendant's right to use the Mark —will
terminate on June 30, 2018, as will a Noncompete Agreement signed by Mark and Mary
30. In the summer and fall of 2017, Plaintiffs began hearing rumors that instead of
attempting to renegotiate or extend the Lease, Defendant intends to open a restaurant in another
31. On or about November 1, 2017, Mark Shapley sent a letter to Scott Koestler
expressing an interest in discussing the possibility of a new lease and use agreement and also
pointing out that the parts of the APA that provided for anon-compete and provided an exclusive
license to Defendant to use the name "Shapley's" or "Shapley's Restaurant" within a 50 mile
radius of Jackson, Mississippi, will expire upon the expiration ofthe Lease. Mr. Koestler did not
respond.
10
32. On or about January 26, 2018, Mr. Shapley sent Mr. Koestler a notice to vacate
the leased property by June 30, 2018 and to carefully and thoroughly adhere to all the
components and conditions ofthe Lease. Mr. Koestler did not respond.
33. Upon information and belief, Defendant intends to open a restaurant on or around
May 1, 2Q18 in the space at Renaissance at Colony Park in Ridgeland, Mississippi that currently
34. Plaintiffs seek declaratory and injunctive relief, as well as an order cancelling or
declaratory judgment that, under the APA,(1) Plaintiffs own the "Shapley's" Mark and (2)
Defendant does not have any right to use the "Shapley's" Mark following the expiration of the
Lease. Plaintiffs further seek an order enjoining Defendant from using the "Shapley's" mark
following the expiration of the Lease. Alternatively, Plaintiffs seek a declaratory judgment that
they have the right to use their own last name in the name of any new restaurant they may open.
36. Shapley's, Inc. and Defendant entered into the APA because "[Shaptey's, Inc.]
desired] to sell to [Defendant], and [Defendant] desired) to purchase from [Shapley's, Inc.] the
Purchased Assets (as defined below) according to the terms and conditions of th[e] Agreement."
Ex. A, APA at p. 1 (emphasis added). The "Basic Transaction" section ofthe APA states, in part:
A Sala and Parahase o Assets. At tI~e Closlag, effec~ve as of the Purchase Date,
Seller will sell sad comrey to Buyer,and Buyer will purclsase and acceptfrom Se11ec,
theP~ur~ssed Assets. ~vrya]~as aid to ~u~abege a~uiBoller has:agreeclto yell,'
o~+ly~e Puxali~a~edAsseus. ;No oth~c a~ets;pf'~e,Srel~er,~noludmg butnot limited
to c~sb►, bank accvuuts~ other cash cgtnvaleats, securities, real estate, or interests in
:eal esmte sli~llbopu~hasedby'°Auyer.o~tsolii:6y, Sethi:
11
See Ex. A, APA at § II.A., p. 2 (highlights added). Thus, Shapley's, Inc. sold and Defendant
purchased "only the Purchased Assets[,]" and "[n]o other assets of -the Seller ... [were]
37. "Purchased Assets" are defined as "the assets described in Schedule 1.L. hereof."
See Ex. A, APA at § I.L., p. 2. Schedule 1.L. identifies the following "Purchased Assets":
ssheaa181.X,.
' Yhe equipment sloall include, bntshall aot be limited w,the items described on Schedule 1.
L.- A,
.. ,.,
ertditlg'Ontlt~ `tip Lease[stud,excluding Shapley's Ciourtttet Baods,a ditcet sate food
business awned by Sherehuldors. TYas oxrlusive tight slxall alsn tenninaba ifBvy~er defanlb an tho
Pmmiasnry Note or the Lcase and such default is not outed undothe tc:ms ofsnrh egrcaimenis.
38. The Mark itself was not identified as a "Purchased Asset." Rather, the "Purchased
Asset" was "the exclusive right to use" the Mark "for a term beginning on the date of [the]
Agreement and ending on the date the Lease is terminated." See Ex. A, APA at Schedule 1.L.
That exclusive, limited right terminates with the Lease on June 30, 2018. See Ex. B,Lease at ¶2;
39. Accordingly, Plaintiffs seek and are entitled to a declaratory judgment holding(1)
Plaintiffs own the "Shapley's" Mark; and (2) Koestler does not have any right to use the
12
40. Alternatively, Plaintiffs seek a declaratory judgment holding that on the date the
Lease is terminated, the limitation on Plaintiffs' use of the Mark within a 50 mile radius of
Jackson is lifted and Plaintiffs have the right to use their own last name in the name of any new
42. Defendant's use or proposed use of the Mark following the expiration of the
Lease is likely to cause substantial injury to Plaintiffs, and Plaintiffs are entitled to injunctive
44. Despite the Plaintiffs' prior and rightful ownership of the Mark, Defendant filed
the Application to register the mark "Shapley's" for "restaurant and bar services" on August 5,
45. Without providing any notice and without seeking Plaintiffs' permission,
Defendant's President, Scott Koestler, signed a declaration with the Application, declaring
Defendant was the sole owner ofthe Mark. Specifically, the Declaration stated:
The undersigned, being hereby warned that willful false statements and
the like so made are punishable by fine or imprisonment, or both, under 18
U.S.C. Section 1001, and that such willful false statements, and the like,
may jeopardize the validity of the application or any resulting registration,
declares that he/she is properly authorized to execute this application on
behalf of the applicant; he/she believes the applicant to be the owner of
the trademark/service mark sought to be registered, or, if the
application is being filed under 15 U.S.C. Section 1051(b), he/she believes
applicant to be entitled to use such mazk in commerce; to the best of
his/her knowledge and belief no other person, firm, corporation, or
association has the right to use the mark in commerce, either in the
13
identical form thereof or in such near resemblance thereto as. to be likely,
when used on or in connection with the goods/services of such other
person, to cause confusion, or to cause mistake, or to deceive; and that all
statements made of his/her own knowledge are true; and that all
statements made on information and belief are believed to be true.
46. The USPTO refused registration of the Application based on the fact that
47. To overcome the USPTO's refusal to register, Defendant filed its Response
contending "Shapley's" had acquired distinctiveness, i.e. had become distinctive of the services
through Defendant's substantially exclusive and continuous use of"Shapley's" in commerce for
at least the five years immediately before December 1, 2008 (the date of Defendant's response).
See Ex. F, USPTO Response. The Response included the same Declaration quoted above, which
48. Defendant obtained a registration for the Mark on March 31, 20Q9 (Registration
49. On August 29, 2014, Defendant filed a Declaration of Use and/or Excusable
Nonuse of Mark in Commerce under Section 8 signed by Mr. Koestler. See Ex. G, Maintenance
The owner, Koestler, Inc. ... is filing a Declaration of Use and/or Excusable
Nonuse of Mark in Commerce under Section 8.
The owner is submitting one(or more) specimens} showing the mark as used in
commerce on or in connection with any item in this c}ass, consisting of a(n)
business card and menu and product label bearing the mark.
14
Id.(emphasis added).
50. Defendant knew at the times the Application and the Response were filed that
that the facts in the Application and the Response were txue. The identification ofthe owner was
53. The Application would have been refused registration but for Defendant's false
assertions.
54. The Registration also falsely suggests a connection with Plaintiffs. It is the same
as Plaintiffs Mark and Mary Shapley's names and would be recognized as such. Plaintiffs own
the Mark, but are not connected with Defendant beyond the trademark license and Lease.
Plaintiffs' names are of sufficient fame that when the Registration is used, a connection with
55. Also, because, in the Application, Defendant sought to register a mark comprised
of the names of particular living individuals, Trademark Act Section 2(c)(15 U.S.C. §1052(c))
required Plaintiffs Mark and Mary Shapley's written consent to registration of the mark as a pre-
condition to such registration. No such consent was provided by Plaintiffs Mark or Mary
Shapley. Plaintiffs Mark and Mary Shapley's surname is associated with the Registration as
being used in connection with bar and restaurant services. Moreover, Plaintiffs Mark and Mary
Shapley are so well known, the public reasonably assumes the connection, and Plaintiffs Mark
15
and Mary Shapley have been publicly connected with the business in which the Mark is being
used by Defendant.
56. By virtue of the foregoing, Plaintiffs have been, and will be, damaged by the
WHEREFORE, Plaintiffs pray that judgment be granted in their favor and against
Koestler as follows:
1. That Phis Court enter a declaratory judgment finding (1) Plaintiffs awn the
"Shapley's" Mark and (2) Defendant does not have any right to use the "Shapley's" Mark
2. Or alternatively, that this Court enter a declaratory judgment finding that on the
date the Lease is terminated, the limitation on Plaintiffs' use of the Mark within a 50 mile radius
of Jackson is lifted and Plaintiffs have the right to use their own last name in the name of any
'Under 15 U.S.C. § 1120,"[a]ny person who shall procure registration in the Patent and Trademark Office
shall be
of a mark by a false or fraudulent declaration or representation, oral or in writing, or by any false means,
liable in a civil action by any person injured thereby for any damages sustained in consequence thereof."
16
4. That the Registration for SHAI'I,L;Y'S (Registration No. 35 7904) be cancelled
or that owriershi~ of tl~e Registration Lie tra~asferred to Plaintiffs, and that Clue Co~trl direct the
USPTO to tike all steps and actions necessary to el'1'ectunte said cancellation ar h•ansfer;
5. That alternatively, if the Court does not grant the declaratory relief requested
above, this Court enter a declaratory judgment finding that Plai»tii~fs have die right to use their
own last name in the name of any uew restaur~ni they may a~en.
6. That llei~e»dant be required to coal~pei~sate Plaintiffs for their actual damages, the
7. That the Co~u~t award such oilier a~ad fi~i•tiler relief as sl~~ll be just i►ncier tt~e
Cll'C11111St1t1C~S.
17
" ~ ~ ~
/''+ ~`.
._ •~,.
This AssetFwrd~ase Agreement(`Agreement°)~s made and entered i~v as ofthe 10th day
ofJuly,1998,emotive aq oftb~e 11th day of7u~y,1998 by and between Shspley's,Ync.("Seller',
a Missiasigpi corporaham,aid Koestler,Ina (°Bnyer'~,a Misdssippi a~ipvration. Mark Shepley
a~ad Mary Shap~ey (colleetivery, °5bareholders'~, axe parries to those pazts ofthis Ag~teemeat
where appl~cabl~. -
Seller desires to sell to Buyer,rmd Bu~►cr desires to puacbase $om Seller; the Pumhssed
Assets (es definedbelow) acxardiug tp the temps and conditio~as of this Agreement.
A. `~usmeas° m~aas tkte business conducted by the Seller on and Odor to the data of
this Ag~reameat as arest~uant
B. "Cash Pwrchase Price° means Oxte Million Thee I~undred Thousand Dollaa
($1,300,000).
D. °C108~OgDate° met~S JUIy 10,1498, but effective as of the Phase Datay or such
other date as may herea~er ba mutually agreed to by tine Buye,rand Seller.
E. deferred Pnrc~a9e Pr~ee" means 7~ree Hundred I~TineLy One ?honsand }7ollars
A
. ^ ~
X. ~romissoz~►Note° mews tl~e Promissory Note in the foam of Schedule 1.I. hereof
m be ex~utied az~d de~ive~cd by the Buyer tc the Seller at the Closing pursuant to
Section A.B hereof
J. pPa~rchase Date" means the Sellea~s close ofbusiness on July ~1, X998.
K "Pnr~hsse Price° means One M~7tion Six HundredNmety One Thousand Dollazs
($1,691,400). •-
M. °$eeuxxty A~reeement" means the Security A,,~eament in the ~'o~ of Schedule 1.M,
he:eo~
B. ~~~se_pric~ At the Closing, Buyer will pay to Seller the purchase Price.
Payment of the Pm~cHase ~rlce shall bemade as follows: (1) the CashParchase Price
shall be paid by wile tiaa~er of immed~ataty ava~able fiords to ~ accost
designated at least three (3} business dags p¢ior to the Closing Date by 8elle~ oz' as
otherwise ag~r~ed by BugeS and Seller; and (2) the De~en~ed Purchase mice svali be
~d by delivexy of and pursuant to the Promissory Note.
Page 2
• ~ /'1
r-. r,
~.
reflect that the Puinhased assets are comveyed in their °as its° condition, aid Shall
oth~wlse be in form and subs~zce commonlq used in the State of~~iand
reasonably acceptable to Buyex,SeIte~ and weir counsel
A. Ems. At tl~e Closing,Buyer wild exeauta ~d deliver, and Seller wall eacecuta or
cause~e owners ofthe Rent Property w execute and deliver,the Y.,easa'
B, Noncom~ete A~gr_ee~nentx. A,t the Clost~g,$te Shareholders and $uyea will execttbe
ead 8eliver the Nonco~aapete.A.gree,~oaent.
D. - ie~cow greemen~. At the Closing,$uyea'and Seller will ex,~t~e aad deliver the
Escrow Agreement
E. O~~na Coarse, Pending the Clog,Sellear ~hatl cury on the Business in the
ordinary and regular cowcse,and in the same matuaer a9 heretofore condnabed,and
Seller shall not engage in a~+ iransaaaon or activity, or eater Ito airy a eat or
make any commitment,except in the ordinary and regular coua~se ofbusiness.
F. Best.E~3forts tto Close. Both Seller aad Buyer shall talae all actions within their
reasonable capabs~ities too render at~rat~ on and as of the Closing Date their
zes~ective zepz+esea~tions and wauar~es confined is tads e~►gree~aaent Seller aped
Buyer shall use their best efforhs to perf~oa~n all of tb~eir covena~ conffiinedherein
and td satisfy all the cond#ions 'eo the constunmation of the transactions
contemplated hereby, provided, that Seller aad Buyer s1~ll not be required to wai~►e
any o£their respective rifts h~reu~. pia the event that eitl~eoc Sallee' or Buyer
teams that any xepz~esentations or waasaties co~aitied be~rem may not be true iu all
material iespecCs, or leaves that and► covenants contained herein may aot be able to
be pe~furmed or that any of the conditions to Closing may mot be able to be met, such
party shalt iutiamediately notify the other of such developments,
G. . Seller will use its hest efforts to obtain, potior to the Closing all consents,
approvals, a~od otf►es agreements which may be required for the due and punctual
consvmAaation of the transaction co~rtetnplated by this Agreement
H, ~'r ervat~on of Bu~in~ss. Pending the Closing, Seller will use its normal best
efforts ( into account the c~cvmstances of the pending sale under this
Agceernern) to pxeserve its relationships withits vendors, suPP~, and onstomers,
and Seller w~[ promptly notify Buyer of arty matsxtal adverse change is its
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relatio~asbap wwath any suoh person proaaptly aRez Seller receives ac~al l~owledge
ofthe mauladr~erae cage. Seller will notf~aa~iaate anq ofits emplo~ye~s pnivr
to the Closa~ except fer cause ead Seller w~l promptly aotif~► Buyer of the
resi~ationprior to Closing of any of Seller's e~mploy~ses.
J. A,d '~$lorem Taxes. $nye~t s]~all be se5ponsi'ble for paying the cuaeut yeaz ad
valorem ta7ces,
K Warehouse, Seller grants Buyea~ the right to use the co~2er located in, the warehouse
at 854 Centre Str~e~ Ridbleland, ~iaslPpi,provided tl~t $uyer paps all zeut and
utclities on such waxehouse.
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C. No 'Violation. Neither the execution sad delivery of this Agreement aor the
constmomationby the Seller aad/or the 5baneholflexs of the ~ansactions oot~eamplatad
hexeby wI]I {1) cause anp deft i~a or bs~each of azry provision of the Articles of
Iuooxporation~ or Bylaws of the Seder or aqy iadenfiu+~ lease or ot}rer material
cou~aat to which the Seller or aap 56ereholder is bound, and none of such actions
wig result in acceleration, 'or any sim~laz right of anp P~Y~ ~~ ~Y material
a~reemcnt do which Seller or a 3hereholder is aparty, or (2) zesult in the creation of
azry enc~mb~ces upon any of ~e Pur~hssed Assets or otf~ assets of the Se11er a~
any Shareholder. Neither 9ie exeartion nor delivery of this Agreeanant nor the
consummationby Seller orthe Shareholders of the traneactlons co~emplated hereby
wAl constitute a violation of any judgment, decree, order, regn~ation ar rule o~ aacy
court or govemmeatal autha~ity or any statute ar law
j7, ~.kc~~±ce of Ge]~~~ I: ab~`~itti~~ ~eCe,~t for C1la~! ye8t' 8d Y810I~ ~CCS riot yc;t
due and papable, Seller has no Nab s rnr obligations, whether aarued, absolute,
cantinge~t ar othetw~se, due ox to become due,iu~cluding without l~tationliabilities
for federal, stems, local or fnrei~ga t~s that following consummation of the
hansaations costte,mplabed by this A~eement, would be hindiag upon Buyer or the
Purchased Assets.
fi. 'i~tle to P~ropg~y: Encambran~. Sells t has good sad valid fee simple title t~ all.
of ffie Purchased Assets, s►:bJr.~t ~o no liaus or otlxer restrictions except as disclosed
on Schedule 4.E. All such liens sad ~ictiona will be sallsfied by Seller at or
before the Closing, to the end that Sellez will convey m Buyer good and valid fee
simple title to the Piachesed Assets free of as~y lien or other encumbrance
whatsoever.
Page S
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~ G. Ta= Retun s aid Liabilities. Seller}~2s $led all tax reRurns for all taxes requited
to be 51ed with all appropriate gavemmental authorl8es. All traces due aad payable
by Seller(or claimed bo be due and pacyable)have been paid(regardless~v9~ether ta~c
returns relad~ to such taxeslave been duly and timely Sled or if51ed,r~~rrdless
whether such tax returns ~e deficieirt). except such amon~ts as axe being coa6est~eed
di~geut~►andin good faitb~ and are not ~a tine ag~regabemabedal aad for which Seller
has adequately disclosed to Buyer. There aze no pealing tax audits, claims or
P~~~~~~S to Seller. the P~achased Assets, or the ~nsiness or tha income
therefrom, feller has not a~+eed m anq waiver or extension of ~► s tote of
~ limita~ons zelati~g to aay tao~.
i' H, own rsh of Seller's Stock Each of the Shaieholdas is the beneficial ownex of
I~ the number of shales o~the isaded and ouf~nding capital stack of the SeIlez set forth
on Sc~,edule 4.H.
y, RRpRF4~:NTATi~N~ ~Ng WAR,~R Ni?~~ OFBLS?- Bayer hereby ~p~eseats cad
i wazrants to Seller as fnitows:
1 A. COi~DOlrite ~tp's~»atlQns ('~.eoa $t9ndI11L. 8113►8I75 A. GOIg0IAt10n ~}►OIg8~11~
validly aastin~, cad inn good smadingunder the ]aws of flze State ofl~~ississippi; and
~ Buyer lass the corporate power to enter irno tills Agecmeat and to cagy out the
i transactions contemplated hereby.
i
B. A~+thor➢ty aid 3~~n ink .feat, The exe~utian, delivery and perfoanence of this
A~eement,the Pramdssary Note,the Securit9 Agreement,the Escrow A,g~ne~nt,
• the Lease, and the other documents contemplated hereby to be atecuLed by Buyer
have been duly authorized by all aeo~y corporate action on the part ofBuyer.
i 'I1~is meathas been,2mid thaPromissoay Note,Securii~+ A,~mant,the Fs~row
agreement, ,ease, acct other documents t,~ be executed by Buyer pursuant to this
pgx+eeme~,ut~l be,dul3► and vandiy ~cu6ed and deliveredby Buyer and cortsti~ts
and wi11 constitute, as the case maybe, the valid and bmdmg obligsaaa of Buyer,
enforceable against Buyer in accordance withtheir respective teems.
C, ~q, Violation. Neither the execution and delivery of this Agreement nor tha
consummationby Buyer of the transactions co~cenaplatad hereby will (1) cause azry
default is ar breach of any provision of the Articles ofIncorporation ar Bylaws of
Buyer, or any indenture, lease or other material contract to which Buyer' is bound,
and cone of such actions will result in aax~lea~a#ion, or azry sinailaz right of any party
Page b
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.
.
under any loan or other agr~xment to which Buyer is a party, or(2)result in the
creation ofarty encumbrances upon ate► o~tha properties or assets o~B~►er. Neither
the execu~om aaa~ delivery of tfds Agreement nor the coonby Buyez of the
traasa~tiona condtemplatedhereby will oonsfitate a vio~n of eay judgm~~n~ decree►
or~r,regulation or rule of any coint or gove~e~dal auH~ority or eay st~vma or law
No cat~ent, approval or a~hori~ation of aaq thi~zd paitp is required in coaneation
with the eac~cutioa, delivery and g~nnance of tWs A,greeme~by Buyer.
B. NQ'~1 ate~sl Adverse Change. There aball mot have oc~ctmed any ma~eclal adverse
change su~oe ~e date of this A~eat mthe cAondsdon of the Piachased Assets, or
the Basiness, and the Seller shall have deliveredm Bnyet a ce~ttifrcabe, signed by the
President of Seller, and dated the Closes D2~be, Lo snob e$~ect.
D, o can and Agpr~ls. All COnSents and appt+ovsls rnquw[ed by priva0e parses of
goveomme~sl authorities with respect fio the transactions cancDe~m~plated by this
Agreement shall have been obtained
E. The Lease sha[1have been eacecuted by allpares thereto other than Buyer
and delivernd to Buyer.
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B. ~nxci~ase Pe~lc~ Buyer shall gave paidthe Cash ~ircb~+se Prlce in a~coozdance with
Section A.B hereof
C. ea Buyer shall have executed Bad delivered the I.easse and paid nay rent them
due.
Page 8
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or noAperformaaoe shall not have been cured or eliminated(or by its nature cannot
be clued pre]in,inAt~l~ by Bayer oI10I before the C1o8ii~ Date.
B. Heading. 'fie headings used iaa this Agreetuent are for convenience only, shall not
be deemed to constitute e dart hereof and shall not be deemed to limit, characterize
or in any way affect the provisions of this paragraph.
F. Exl~;bits. The exhibits and schedules are part of this Agreement as if fully set Forth
Page 9
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r ~
hez~~in.
C3. Seve
Y ,itity.
~ab Yfany provision ofthis Agreement is invalid, those portions ofthis
i Agc~eement thad are not ~avalid sbali n~veutheless be ea£orced, tmless such
enforcomeat would a~eriai~y after @ierelative tights and obligation ofthe parties.
Ifto Seller.
Mark Shapley
i 174 Batter Drive
Ridgelaad,MS 39157
Ioseph L. vainer,III .
Bxumui,C3~aibam,C~Cower dt Hewes,PLLC
1400 Z'iustmerk BaiIcting(39201)
Post Office Draw~t 119
Jaalcson,N~ississippi 39205-01~9
Ifto Seller:
Scott Raestier
c 404 Shadowood Drive
gxdgelead, Nlisslssippi 39157
L.Carl Hagwood
J.Chadwick Mas1t
Campbell,DeLon~g,Hagwood 8c Wade,LLP
9Z3 Washington Avenue
~ C3reenville, MS 38701
Either party may change its address puasuant to notice given by sacb party in
! acxordance with the provisions ofthis section.
I. tether Aa~sa~nees. Each party agzees, at any time and fibm time to time,without
Page 10
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further considet~ion, to tike all sash actions and execute aad deliver all such
documents as may be necessarq to egecmate the pcuposes ofthis Agreement Each
party further agrees M ccagm'ate ;fit connection with any Internal R,~veaue Service
audio relating to the ~ra~gs$ctions aontetmp~abed hereby.
J, Annoy~eexae~xts. Neither Se11er nor Buye,~ without the express written consent of
theoffer.will make any public ennounc~mentar9ssus a~%pressrelease„ or make auy
recording is any public record, in respect o:f tbds ~greemert ar the ~ra~nsactions
conMmplated hereby tmtilfollowing tote Closing.
]
1~. ~R g~eific Pe~ri'ox~axan~ce, Each party hereto a~ees that az~q► remedy at law for nay
b~eac~ of the provisions coa~sinedis this Agreemern~ shallbe imxdequate and 8~at the
other parses hereto mall be enhtlad to specific perfo~aace artd anq other
aPPxol ~imetive reliefiu additionto any other remedies such party might have
under this AgcEemant or at law or is equity.
N. ~a~i ,ens. Neither Buyer nor Seller may assi~ his Agreement, in whole or in
Patt, wat~,out the prior written consent of the other whichshall not be um~asonably
with~elsi. This Agreement endailof theprovisionsheaeof shallbe binding upon, sad
iniu+e t~ flieb~a~ Buyer andits respective successors and t#ed as~zgns and
Seller and its xespe~ve successors and permit0ed assigns.
Page I1
':
. ~ I"~t
n, ~
areholdcrs~ 5
ley'a, c.
Buyer
IC~oestlex' I s
~S.
Scott KoesBe~, ident
~a$e 12
L • ~! /~\
( 1~
7 1 ~~1
+~C~1C[Y11~8 ~. Lir'.
t
~ (~'°~
I .~ r,
~~~
rte,
WFffREAS, the Asset Purchase A,gi~eemeat requires ~St Sbareholder execerte aad deliver
this Agreement as a condition precedepd to the obkgatioas of Buyer under the Asset purchase
Agreeaaent
5. ~ensraL
(A) This A~reeme~tshall be binding uponthe parfies hereto and.shell iniu+e to the
hanefit oftheir affiliates and successors,
(H) The rights and remedies ofthe pasties to this Agxeeme~t are cumulative aid
mot al~emative. Ne~tker the failure nnr any delay by ~Y FAY ~ ~x~is'i~8
ate► rl~t,lower, or pntvtlege ~md~r this Agreement will operate as a waiver
of sack right, power or pdvileg~ and no single or partial wceccase of any
suchright power, or privilege w~l pieclnde any other ar further exercise o£
such cigi~ power, or privilege or the exercise of airy other ntgbs, power or
priv~ege, To the maximum went permittedby applicable Iaw, (i) ao claim
or right azising out of this Agceemeat can be discharged by ona party, in
whole or inparty, by a waiver or reau~zatia~ of the claim ar right unless is
writing signed by the other partied Cn~ ~o waiv~ar that may be given bq a
panty wUlbe applicable except inthe specific instance for wi~ichit is given;
dad (rii~ no notice to or demand on one party wIII be deemed to be a waiver
o£any oblig~on of such pa~fy ar of the tight o£the gattp giving such notice
or demandto1alo~ firmer action without notice cn demand as ~tovided m this
Agreement
(C) This Agreement shall be gorr~neci by the laws.of the Sffite of Mississippi
without r~gatd to ccu~icts o£laws principles.
(A) Whenevez possible. each provision amid term of this Agreeanent shall he
inter~etedin a manner to ~e effective anti vat~id,but if any provision or term
o~ this Agreemaat is held to he prole'bated by law or invalid, then such
provision oz tarm shall he ine~ctive only to the eact~ent of suchprohibition
or invalidity. without invalid~g On' affiecting in any maa~ter wbatsoe~ver tke
remainder of suchprovision or tezm or the rema~o►ing pmviszams or ten~as of
this Ag~c~eement If aay o£ the covenants set forth in Section 3 of this
A~am~oat is held to be invalidor uneufoxceable due to its scope, breadth or
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{G) Tlris Ag~reemeat and the Asset Putc~aase Agre~oae~t oonstitnte the satire
agreement between the patties with inspect to the subject mater of this
A~ame~ct and supersede all prior vv~iuen sud oral agreements and
understaadiu~s with respect to the subject matoer ofthis went This
A,g~emant may not be amended except by a written agce~ment eacecuted by
tine parties.
YN WITNESS YJfIFs~iEQF,the pies hereto have dulp executed tb~is Ag~eeme~at as o£the
day and year first above written.
OLD
~ S~Z ~
Mary hgp
i ~C0~5TL~R,JNC.
mil.
. cott Koestler,
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i o .~i.f. • e .~ . ~ e Y..
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Schedule I.X..
PLTR_ A.~ED Ag~'~TS
The ec~nipnaeat shall include, but s1~aII not Ue limited toy tlae items descn'bed on Sc~ednle I.
L.- A,.
(b) The exclusive right to use the name "Shapley's" or "Shapley's Restai~n~'within a
SU miles radius of Jackson, Mississippi for a term beginning on the dabs ofthis A~reememd and
encling on the date tt~a Lease is te~in~ated,excluding Sl~pley's C~oumaet Foods,a direct sale food
business owned by Sh~eholdets. Ttus ex~huive right sba~l also ~e~eifB~►er d an true
PromissaaS►Note or 8~e Lease and such de~sodt is not om~ed under the terms of such agreements.
~ ~.
Schedule 2. C.
AT T oCaTi[~N OF PURCHASEPRICE
i
~, ~..:
_~
agreed to purchase certain assets from Seller upon the terms and
to be purchased by Buyer.
parties as set forth in the Contzact, the Parties agree that the
follows:
19-81056.19
~ ~.
Goodwilll $1.412700.00
Equipment 228,300.00
Inventory 54~OQo.00
TOTAL 51.691,000.Oq
$HAP~Y~ S, INC., a
Miami sippi co~por¢tion, Seller
By
J. ~Pl~f.
SY ~ s.
Scott D. FSoest er,
Pres3deat
Ia aonsideretion of the mutual covenants and agreame+uts coutaiaed heaezn, Landlord and
1. ~. Ou the terms of this Lease, Landlord leases and demises to Teaser the land
descabed 9n ExUibit A hereto, together with aU im~rovament~. additiozLs and appcuteaaances aad
fixtures coltecSvelY CFre~nises~- The e~chai~st hood and fi¢~e sysrtem (a/k!a Vent~Hood) is a
2. sme . 'The pzlmary lean of this Lease shall comme~ace on July 11,1998 sad shall
expire on Jame 30, 2008. Tenant shall b~va the right to renew this Lease for one additional
wnsecutive lean of tea years beginning oa July 1,2008 sad expiring oa June 30, 2018 by gluing
notice as gmvided herein to Landlord before Deoe~mber 3I, 2007. (13e px~mary tee and
3. $fit. Dining the PrimaiY gym, Tenant sheu pay to Laodiord rental at the faced
rate of $10,000 per month. No rental shall be due for the period beginning on the e$ectiv~e date
of this Lease and ending on July 31,1498. The 5tst rectal payment will be due on August 1,
1998. 'Iha rectal during the renewal lane shall be aR the faced rate of $10,000 per month plus an
increase equal to the percenmge increase 1a the Buzeau of T..ahor Standa~'s Consumer Price
Index for al! Urban Cons~nmers (CPI-CJ) from the ~gme for April 1998 of 162.E to November.
2Q~7. For example, if the CPY-U increases from 16ZS to 178.75 for November 2007, an increase
of ten percent, the monthly rental during the renewal teen also will increase by tea percent, from
$1Q,000 per month to $11,000. If the Bureau of Labor Standards n~places the CPI-U With
i ^ ~„1
another measure ofinflation the parrties will use this replacement measia~ ofinflation. Ifthe
Bureau ofLabor Standards no longer exists yr ceases to publish GPI-U or any replacement
measure,then E.aadlord maY lick another reasonable measure ofinflation. (The rent dur7ng tlse
prinaarY tezm and the rem dwring the renewal term are sometimes hereafter collectively "Rent°).
Tenant covenants notto amtany couaterclainn in an action £ca~ Rest ea~cept compnls4ry
counterclaims as deSmed by the Mi~issippi Aides of GYvil Procedtue. ,All mswllmants oaf Ytent
shall be due is8dv~ce on the first day ofevery month duang the Teen. Landlord's obligations
under this Lease ara not conditions W Tenant's obligffiion to pay Rent TenantsJaall not be
entitled to setoff'any obligatio~as ofLandlord do Tenant agaimst the pent. Ifany installment of
React shall be more than fifteen days late, Landlord shall be entitled to(a)collect a 1aRe payment
fee of X400.00 for each late installment, which late paymentfen shall be immediately due and
payable and/or(b)coIIect interest at the rate offitteea geacent on the late irctalim -n ~m~
time the in~t~*r+~t is due until paid. This late paymentfee and a1I accrued interestsha11 ba due
upon damand by Landlord,but i~Landlord does got make damamd,shell be due upon th8fucst
day oftha neat month. All Rent and any late payment or interest shall he payable tv Landlord at
the address provided herein for notice. This late pay~neutfee and iateiest am the parses' best
estimate ofthe amount neces~ry to compensate Landlord for the lass canised by Tenant's faihue
i to make timely Payment ofReat and are not penalties or liquidated damage,. Ifthe?arm
commcaces on a day ofa month other than the 5tst day,or ifit tem~ina~s an a day other than the
last day ofa month,,the Lent for that moth shall be pro~tted.
4. Use ofPr~xnises. Tenant ahatl corttiune the cturent use oftie PrBmises only as a
restaurant and shall not usa the Premises for any other purpose without Landlord's cnnsen~
Page -2-
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Tenant shall not allow the Premises to be used for any nude,semi-nude or exotic da~ooing or
other adult emtertaiame~n~t. Tentaat has been provided with a copy ofa beclaration ofReciprocal
Easements aad Use Resnrictions carded is Book 409 at Page 1, which ins~ument a$ects the
5. Condition ofPt+~mis~. Teaaut has inspected the ~rnmises and accepts the
premises nos is°. Landlord has not made nay represeatactions or wan~ties to Tenant aboutthe
condition ofr the Premises. Tenant discla~xns reliance on any representations or vvarracrties of
6. Utiti~. Tenant shall he xesponsiible for providing and paying far all elecbacity,
watery gas, cable television,sanitary sewer and any other utilities t~ Premises..~eae~t shall
contract for all udlities is its own name and provide its own deposit or bond as required by the
respective utilities. Laudlard shall be entitled to a refimd on its existing deposits or bonds put up
by I.endlord. Landlord shall cooperate with Tenantin transferring the a~d,stiag ut~ities m
Tenant's name. T~aant is familiar with the type and volume ofutilities nec~ssaz3► to operate the
premises as cuaendy operated. Tenant's fails to have alI utilities necessary to operate the
Preauses for the use pe~mn~tted herein shah not be a defense to ~'enaat's failure to pay Rent
7. Taxes• Landlord will pay all ad valorem taxes and nny special assessments
I assessed w the Premises. Tent s1~aU pay to Landlord on~half of the aznouut of ~y increase is
the amount of ad valorem taxes and specie! assessments asses to the Premises over the taxes
assessed w the premises for the calendar year 1997. For example, if the taxes assessed Por 1998
are $1,000 more the the takes for 1997, Tenant shall pay to Landlord $500 as Tenant's ono
-half
I share of this increase. If the t~ces for 1999 are ~1,500 more ti~an the maces for 1997, Tenant s~sall
page -3-
,''~ ~9
pay to Landlord $750 as Tenant's one halfshare ofthis;ncrease. Tenant's ona-halfshare ofthe
increase shall be due upon demand b~ J.,a~adlord. Tenant shall be e~tled to reasonable
documentation ofthe amo~mt ofthe taxes. T.,aadlord may pay the taxes in installments as
provided in Section 27-41-1 o£the Mississippi Code Annotated. Landlord sb~l not be
responsible far any other t~ces assessed to the Pxemises or to'Tenant,including but not limited to
~ sales tax. Tenant will pay ad valorem taxa5 assessed to Tenant's progeny located on the
Premises.
the Premises without Lanffiord's grior consent,which conse~ shall not be unreasonably
j withheld,except that Tenant may make any altezations required by law or by any gav~muanental
authority without Landlord's permission. All alterations shall be in compliance with alt
applicable local ordinances,including the Bui.tding Code and zoning ondinamces o~~tZdgelaad,
Mississippi. Any review by Landlord cfauy proposed alterations shall befor Landlord's tsareft
only asd true parties disclaim auy duty ofLandlord to review pioposed alterations forthe benefit
g. ~`ompii n P wi h w. Tenant shall at all times comply vv~th all applicable laws
in its use ofthe Premises. Tenant shall not tolerate any illegal acfiviaes on the Pxe~mises,
' includuag but not limited to the sale ofillegal chugs. ~f anY alterations must be made to the
Premises to comply with changes in the Iaw a$er the date ofexecution ofChits Lease,Tennant shall
have the responsibility far matting the change. Without limiting the foregoing,Tenant will
I
comply with all applicable environmental and waste disposal laws(~Bnvironmeatsl Laws"),
including but not limited to the Comprehensive Environuier►tal lZesPonse, Compensation and
Page -4-
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Liability Act,42 U.S.C. § 9Q61,ct seq.,the Resource Coxiseavatioa and Recovery Act,42
Amn.§ 17-
U.S.C.§ 6901,ek seq., aad the Mississippi So~td Waste Disposal Law,Miss. Coda
used
17-1,et. seq. Teaaat sha1~1 be responsible for disposing ofall waste aid.garbage,including
cooling grease,fxom the premises in a manner that complies with all Favironme~tal Laws.
notice by the
Landlord and Tenant shall motify the oti~et as soon as reasonably possible ofany
ofany
Depardment of~nvimnmental Quality or any other federal,state ox local authority
or
possible violation ofany environmental Laws or the pzeseace ofan y bazar~dous,toxic otb~ex
►,
harm~'i~ wastes on the premises other tiaan those pesmit~ed by law. Tenant wiU iadamnif~
defend andhold haualess Landlord fmm amp loss, damage or cost of any nat~ae wising out of or
related to any violation by Tenant or Tenant's co~iractors of any Eavirommems~l Laws. Tenant's
10. ~,c:enses. Tenant shall be responsible for obtaiai~ alllicenses and permit
required to opezate the Premises, includingbut not ~it~ed to alicense fmm the lvrssissipgi
geu~onits or obtaining new permits. T~ua~nt is knowledgeable about the permits sndlicenses
needed to operate the ~~eusises as it is cvurendy opez~ated. Tenant's faz~ure to obtain or maiataitt
the licea~ses or permits necessary for the use permitted herein stall not he a defense to Tenant's
11. ~,aint~niance. Tenant shall keep the P~+etuises clean aidfree from trash and sha11
provide cleaning aidjanitorial services to tine buulduog located on the Premises (°Building').
Tenant's obligarion shell include cl~augiag all light bulbs. shampooing the carpet and polishing
wood floors. 'Tenant shat! pay £ar maintaining the existing landscaping sad for installing and
Page -S-
maintaining aay uaw landscaping. At the end ofthe Tenn,Te~uant shall sn~ender the Premises
tear e~ccepted.
~ 12. $~gj~. ~.andlord shall make all 9t~uct~nal repairs to the premises that cost in
excess of$50.00,inalnding repairs tti the ~ouadation,wills,rood parkiiag lat sud Iigt~t~xtutes on
the outside ofthe building, provided tit such repairs are not made necessary by ~e negligence
its reasonable best efforts and shah coope~ste wig Tenantto minm3ize the dis~tion to Tenant's
b~iness wb~t~e making such regai~xs. Landlord's obligation m repair shall not include repdaciag
light fi~chues,Plumbing fixttu~es and ether movably parts on the inside ofthe Building that need
~ replacement because ofnormal wear amd tear,the obligation to replace these futures being
~ Tenant's obligation. Tenant shat!replace such 8xtzues with fi~cdu~es ofsimilar quality or better.
I
?anent shall bava the obligation ofrepairing and replacing all fiuAisbings and all bar and ldtehen
repair,replace and maintain the plumbing system and any blockage ofthe plumbing system from
the meter. Landlord shall xapa~r,replace sad maintain the plumbing system from the meter to the
i public sanitazy sewer lines. Tenant shall have the obligation ofunstopping clogged commodes.
i
Tenant shall have tie obligadon ofreplacing or repairing any broken glass,including windows
sad nai~tzors. Tenant shall be responsible for the ordinary mainteanaitce ofthe VedaHood.
provided that such repairs are not made necessary by TeaanYs failure to mainfiaia oz the
negligence ofthe Tenant or Tenants employees, Tenant shall pay the fast $1,000 per calendar
i year ofrepairs to the Vesta-Hood and Landlord shall pay any amount in excess of$1,000.
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SZ 'd 006 'ON Wd~S~~ 840Z'b '934
~~ n ~
.-., ~.
Landlord shs11 pay the cost ofreplacing tha VenterHood,provided thatreplacement is trot due to
Tenanfs failure to msintaon or tha neglige~ace of Tea~~aat or Te~osnt's employees. Landlord shall
maintain nerd repair tke sign for the restawraa~t on Cen~e Street IfLandlord's obligation to repair
requires Landlord to make repaurs in the last six months ofthe primary or renewal term that in
13. Air Condidomng~}►stem. 'Ihe air contlitioniug, heating and ventilation system
(HVAG~ is part of the Pretenses. Tenant shall have the cesg~nsibiGty £oz regular maintenance of
. the ~iVAC system, which respaoasibility inciudes bat is not limited m replacing the filters on a
regular basis aq recommended by the manufacturer aadhaviag the HVAC system ~"7 AminCd 8IIa
If the HVAC system ueesls repairs beyondregular mai~eaancc, and if Tenant has met its
zesponsible only for the fast $500 of each repair with as annual cap fox all repairs of $2,000 at~d
Landlord shall he responsible for the cost of such ~paus in excess of 5500 peer repair nerd $2,000
annually. If Teaaui has not met its obligation of regtilar n~eine~naace of the HVAC system as
provided herein, then Tenant shall bear ali of the costs of repairing the HVAC systenn.
14. ~ tion. If the Premises are damaged or destroyed by fire or other casualty
Landlord shall repair or rebuuld the PreAaises to-the same or better condition as existed
immediately prior to such fire or casualty. Y.eadlord shall commence restoration of the Premises
as soon as reasonably possible and thereafter proceed with diligence to complete such restoration
t
~ Page -7_
.
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as soon thereafter as is practical. 't'enana shall oonomue to pay Rent during tha restoration ofthe
Premises. Ifdaring the last two yeazs ofthe Team the Premuses are damaged by fire or other
casualty Bach that the cost ofrepairing or rebuilding the Pzamises because ofdamage by ire or
i reasonable judgment, then Landlord may trauninace the Lease and neither party shall have any
finRher obligation m the other. Landlord's liability under ti~is paragraph shall be limited to the
insurance insutxng the Premnises against loss by fire ar other casualties in ffinouats customary for
~ commen~isl property of this tape. Tenant eS~all obtain business iaoeauptioa in~uance in an
amount s~cient to pay the Rent m Landlord dieing any rebuilding ar restoration. Such
proPert}' iastaaa~ce shall be on general wmmer~ial Tomas and shaIl be with companies tit are
rated A or better is the most current issue of Be 's luau ce Reports. Landlord shall furaiah
Tenant certificates of such insurance within ben days after ~cequest by Truant If Leadtord shall
not complq with the provisions of aria par~dph, then T~naut, in addition to arty other remedies
it may t►ave, sbali have the right to obtain the insutamce zegnired by this paragraph, and;n soc.~►
event, ~.andlord agrees to pay the pm.ffiium for such insurance plea, at Tenant's option, a fee to
• Tenant o~ ten percenot of the preffium to reimburse Tenant for the time and expense of obtaining
this iasuranco.
16. iabili Tnsu;ante. Tenant shall keep in force thtoughoui the Teas one or more
policies of commercial general liablliry insurance with wverages of not less than Two Million
Dotlacs ($2.000.000.00) per occwaence. Tenant's liability insurance policy wi.il contain coverage
~ Page -8-
.-'~ ~-~r
ofliquor liability with limits ofnot less than Oue N~iIIipn Dollars($1,000,000.00)ger
occurrence. This ]iabiliiy insurance policy sball ba endorsed to show L,Andlord as as additional
that are rated A- or better in the most auz~ent issue o~~~t's ins~n~nce Rego~ts.and shah prcvida
that it cszmot be canceled or the policy ]snits substantially reduced witb►out at least t'hii~y days
17. Transfer 9 Landlord's~nterest. The tenon "Landlord° shall mesa only the owner
of the Premises at the time of this Lease. In the event of transfer of ownership by such own~cr of
its interest in the Premises sad the assumptionby the new owner of Landlord's obligations ~mdeQ
tha Lease, tha ozigi~al owner shall be automatically released and discharged from nay obligations
hereunder. No such tiransfat and release shall be e~ecbve as to Tenantn~ notice is given to
18, Waiver of Suhtn lion Landlord and Tenant hereby release each other and their
msPe~tive agents, officers and employees from any and all liabilitty or r~ponsi~ibity to the other
or any person claiming tltmugh or vuder them by waY of subrogation ar otherwise for aqy lass or
damage oo property caused by Sre, acts of God or any ot~ perils or risks insured against (or
required to be iastued against herein) by any policies of insurance coveting the Premixes. L,essoz
sad Lessee each Shall nofifj► their pr~seat and fuwte instuets t]~at it has waived subrogation
against the other. Eec~ party's waiver is subject to the consent of the other party's insurer.
9. Waste. Tenant shall not commit waste to tha Premises nor cause a nuisance to any
neighbors of the Pzemises. Tenant shall not desert the Promises nor vacaze the Premises for mare
than twenty consecutive days unless Tec►aat or Landlord is remodeling or repairing the Piemisos.
Page 9-
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20. IIl~~IIit~Y. Tenaat shall indemnify,defand and hold hananless Landlord from and
against any and all suits, claims,actions, damages,liability aad eocgense CmcIuding attorney's
£ees)in conaeotion with loss oflife,persoaal injury aad/or damageto ~uoperiy a~3sing from or
out ofthe occupancy or the use by Teaant ofthe Preamises or caused is whole or is part by the
21. ~G Teneatshall have the obligation to pmvida secuaty at the Premises and
~ 22. ~~nmerrt and 5u61ettin~. Tenant mqy not assign or sublease all or any sett of
I~ the premises to a~aother party a~thoutLaindlord's written consent,which consent shall not be
! Teaaat from the owners on the effective dens oftbas Lease,or the merger ofTenant into aaothet
corporatiort or other entity in which Tenant is not the siuviving e~,y,shall be deemed to be an
assignment o~this Lease for wlrich Landlord's coa~eat is required. 'Ihe Yaadloid's consent to e~
assignme~ot or sublease is a caadi6on to the validity ofaqy assigamaat for which Landlord's
wnsent is required. Without Landlord's permission,?errant may assign this lease to another
I entity wholly owned by Tenant,provided that Tenant ~r+tn~ liable for iis obligations hereunder,
and such assignment shall not be effective as co Landlord ua~il ~aotice is given m I.andlard.
Imo.Landlord or its agents may enter the Premises during Tenant's nomnal
i 23.
i business hours and aRer reasonable nodoe Lo Tenant to inspect the Premises. Landlord and its
agerns wil! use their reasonable best efforts w avoid any disruption ofTenant's business.
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6Z 'd 006 'ON Wd55~E 8002 'Z '~30
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mortgages Tenant,et Landlord's request, will cozaplete any reasonable estoppel cezuficate
25. ~.~emr+ jon Ifany pact ofthe Preaoaises is condemned or taken by emiae~rt
steal and adverse e~'ect on Tenant's basiaess st the Premises,the Tenant may electto
be~ominate this lease as ofthe dale ofvesting oftide uu the coadem~ing airthorit~►. If Tenant elects
to t~rmuaate, I,endlord shall be entitled to tha condemna~on award except the part (if eay)
attributable to T'enant's tang~~ble property. If T~aant does not elect to teamiaaDe this Lease. then
Landlord shall restore the Premises as soon as reasonably pos~t`ble aad'Y'en~t shall pay to
Landlord Tenant's share of the condemnation award (if any) m be applied to tl~e cost ofrestoring
the Premises.
26. . Neither party shall have the power tv subject the other's intsiast iu the
Premises to the liens of mechatics or matetialmea. Both Landlozd and Tenant sh~l have the
obligation to remove nay such liens Sled againsK th+e Premises or to provide the other wit3~ a bond
against any such lienis form and amount reasonably satisfactory to the othez.
(a) Tenant shall fail to pay any installment of Rent and such failure shall cocrtinue for
(b) Tenant shall £ail to comply with any term of this Tease, other than payment of
Rant, and shall not cure such failure within thirty days after written notice thereof by Landlord,
except that if such failure to comply is not, by its nat~ capable of being cured within thirty
Page -11-
days,Tenant shall not be in default if Tenant commences rum promptly and pursues cure
diligently to completion;
(c) TenantshaA file a petition for banIocaptcy or au i~nvoluntazy petition shall be filed
against Tenant and mot dismissed within sixty days after filing;
(d) Tenant shall be in default ender the tezms ofthe promissory note refeaenced in the
Asset Purchase A,g~ceem outofeven date hereavith between Tenant aad Shapley's,Ina;
(e) Tenant shall default under the te~ans ofany $nancing secuued by acry paxt of
Tenant's equipment located on the Premises yr Tenant's leasehold infierest in the Premises,
(fl The execution upon or seizure ender authority ofany leg~I prooeediag ofail of
substanRially all o~the personal property ofTeaauat rued in the operation ofthe remises;
i
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(g) The appointment ofa receiver or master £or ail or subsramtiaily all ofTenant's
i ~~~
(h) The institution offorfeit~u~e proceedings against Tenant's interestin the Premises
i
i because ofthe sales ofiIIegal drugs or other illegal activities ~the Premises ox ~aaul6ple aaests at
the Premises that make the institution ofsuch ~roceediags,is Landlord's reasonablejudgment,
i
s
~~y.
~ 28, $ems. Upon the occ~urenYce ofan eventofdefault, Landlord shall have the
i
~ option to pwsue one Qr more ofthe following remedies without the necessity for nay additional
~ (a) Terminate ttus Lease,va which event Tenant shall immediately surrender
~ the Premises to Landlord,and if Tenant fails to do so,~.aadlord may enter upon aad take
possessions o~the ~remdses and expel and remove Tent and change the locks, without being
Page -12-
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liable for prosecution car aqy claun for damages therefar,and Tenant agrees m pay to Landlord
on demand the amauat ofall foss and damage which Landlord may suer by reason ofsuch
terminaflon,including loss ofRentfor ttze reaasinder ofthe Term. At Landlord's option the
balance ofthe Rents for the remainder o~the Teem sha11 become immediatelq due cad payable.
IfLandlord elects to reset the Premises and receive the rent therefor than Teaant ag~+ee's to day
Landlord on demand any deficie~acy that mey arise $om suah raletting,including reasonable
costs o~reletti~,
change the lxks,and relet the Freao~ises. Landlord shall not be liable foot pmsecution or aqy
claim for damages or trespass therefor. Tenant shall continua w be liable to pay the Rentin
inscallm~e~ds as provided heaein but shall be entitled to a cssdit for any taut that Landlord zec~ives
from relett~ng the Preu~ises,net at all ofLandlord's reasonable including cleaaiag sad
Pr~parin~ the Premisesfor reletga~ and pay any broom commission w locate anoth~c tenen~
Landlord shall have the obligarion to e~tercisa good faith i~t trying to fund a nplac~ment ~enat~t,
but shall have no tl~rther obligation m mdtigatie its damages. Ia ao event shall'th+e leasehold estate
(c) Enter upon the Premises'without beang liable far prosecution or any claim for
damages or trespass the~t~efor acd without Uerminating the Leaser and do whatever Tenant is
obligated to do under the terms ofthis Lease. Tenant agrees to reimbuase Landlord on demand
for any reasonable expenses which Landlord may incur in thus effecting compliance witl►
Tenant's obligations.
Pwrsuit of nay of the foregoing remedies shall not preclude pursuit of any of the other
Page -13-
~ .-.
remedies herein provided yr any other remedies available to LanaTlord by law or a eat,nor
shall,pursuit ofeay remedy herein provided co~ostitut~ a forfeiture or waiver ofany Rent due to
Laadlord herewader or any other damages occurring to r sudlord by wagon ofthe violation ofaay
ofthe terms, pzvvisions and covenants contained herein. Landlord's acoeptaztce ofR~itfollowing
asevent ofdefantt hereunder shall not ba conshv~ed as a waiver by Landlord cfthe de~'ault
Y,aadtasd sball not1~ required to exercise its remedies wndet this .ease a5 a condition to the
' A~reemeat ofeven date he:+ewith between Tena~ut and Shaple~►'s, Ina Forbea~anca by Landlord
to exercise one or more of the xe~medies herein provided shall not be construed to be a waiver of
i
default Teeani shall be liable to Landlord for all reasonable acpeases and loss,of auy nature to
Landlord resvlW~ from Teia~ant's default, iacludngg but not limited to T..andlord's reasonable
attorneys' fees.
29. let Ln~q,~t Upon compliance weth the terms of ti~is Lease, Tenant may
peaceably and quietly have, hold and enjoy the Premises during the Term.
30. Rieb~t of ~'ust Refusal. Tenant sJ~all lave the right of first refusal to puirl~ase amy
part of the Premises: Z~ at nay time dua~ing the Term Landlord shall decide to sell all or auy part
~ of the 'remises, Landlord shell first offer said panel to Teua~at at the same price and oa the sazne
tames and conditions as Landlord will offer to sell ~e parcel to a third party. Landlrncd shall
notify Tenant in writing of its decision to sell and of its price and other terms and conditions of
sale by written notice to Tena~at at the adckess for notice specified hezein. 7enaat skull have tea
. days fiau~ the written notice to agree to ~uc+ct~ase the parcel on tie specified teems. If Ten~aat
! dces not ap~Cee Lo pwrr~ase on the specified terms or does net reply within said ten-day period,
r^~. ,-~
Landlord then may sell the parcel to a bona fide third party withoutfurEher ob2i~ation to Teaan~
possession to Landlord. In the event ofaqy holding over,Tenant shall be considemd a tenant at
will andthehold-over tenancy may ba terminated at any time by Landlord upon five days aotica,.
Duringthehold-over period alI ofthe terms ofthis Lease shall apply, e~cceptthat the rent will be
$20,000.00 per month. No holding over will operrate to extend this Lease.
32. ~ e~,. ~. This Lease wes brought about by direst nego~ations between I.Radlvzd
and Tenant and no bmoker wa4involved oris entitled to az~q ~m;Q~+~*+ as a result ofthis Lease.
33. ~,pglicab e Law The laa►s of Mississippi will gove,~ this Lease without regard to
Mississippi's choice of law rules. The pre~veiling party in any litigation shall he entitled to
34. .Am~dm~t This lease represeNs the en~,re a~eeeme~t ofthe parties with regard
to iL~ subject matoer andmay not be amended except by an i~astivmenct in writing signed by
35. This Lease shall be binding upon sad inure to the benefit
certified mail to the addresses below and shall be deemed to harve been given when mailed.
Either gamy may specify another address fvr notice by giving notice as provided herei~u.
Page-15-
ICOFs~IeT~ ~0.
404 ShadOwcad Drive
Ridgelaad,M5 39157
With a copy for informational purposes to:
J. Chadwick Mask
Campbell.Dalong,Hagwood &Wade
Post Office Box 1856
GreenvIIle~ MS 38701
In wi~►ess whereof, Landlord and Tenant, acting by and through their duty aatborized
represe~atitves, have executed this Lease on the dates below theior respective sig~a~es, and
BYE
Mark Shapley~ its President
Koestler,Inc.
gy:
i Scott Koestaer, its President
i
Pale -16-
r~ .~
~ parr a
raga 1 of 2
,~. .-.
A parcel oflead waCaiait~g 0.8921 yes,maQe or less, ly►i~g andb~ dtuatedinLot 3 ofBiook
34 sndinLot 6 ofBlo~c 3Z of 8~gbland Colony. a subdividon, 8iemsp ar ptatbfaihichis racordod
~n tie G~mcery Records of Madisa~ Comt~yi at C'a~aton. ppi, in Section 31, To~was~up 7
Nom.Range 2Fast, mvd bragmoxopa~alady dewedbymdGa a~o~dbonds as fbilows, to-wib
Commencc aiffie So~ufhwest comer ofI.ot 3 of8look 34 of the saidblandColon► ar~dgun thence
Nub 40 degrees 18 31 secom~ds Bast ibr a distance of 660.87 t~et tv theI~a~~onrl~ht of
wey lino of G~ecitr~' Stk~ fl~Aca Sou~~9 degc~ees S7 ~4 ~oonds Fast For $ di~Dasce of
40.20 fast alaa,~ tho saidNa~thaar~ht of w~yq ties of Centro' Street tl~sace rue X4.95 het ala~ug'
the arc of a 480.6 foot radius a~trva to the fight along @se saidIlorthem s3~it of w~y►1me, s td era
baying a 54.9 mot oh~sd whtaL boaffi SoutY 86 deg~nes41mino~es 08 seconds Bash t~eace r+m
102.70 feet along'the sac ode480.O,Soot r aRacve to 8~erxgbt along the saidNordrmnright of
way ]ins, saide't+ahavinga102.50 Eoo~t al~d ~airl~#o~tbra~s South7'Tdegrees 16 m~nates 37 seaonda
Fast to theP4IIyT OF e~~GII~TG for 8~e pa:cei hecei~. domed; thenceNorth 47 da~recs 11
miriates 5g seconds 'Vilest £ar a dis~nce of 33.36 feat along aright of w$y Haze; ~aceNor~~"
degc+ees 25 mi~u~es 3a ~eoaads East fist a dace o~267.89 poet atoag~o e~asteanright of way ~e
of NilsonDti~►e; ~emce leave said eastem~ dgttt ofw~y lute stdtea South, 86 degees 49 m~o~utes
1T seoot~ds F.~t for adistance of I3$.ZO ~enoe South Qi da~rea 34 Wi~mtes 51 ascends West
for a tHst~co of 367.40 £e~,theaco ~oud~ 0'i d~~Oes 4Z mtaoates 23 sooa~ds west Rua dtstenco of
89.11 Thence Son& 26.de~ 'S4 seconds West fiar a disfana o~6~42•£eec to the . .
saidnomrimofway ltae of Cam' S ~~sae tm~ 96.6? feet along the etc of a 480.0 ~Oot
i~d'ius carve to thaIaB alongthe saidnoct~anztght ofa~Y Ike,std am h~vi~g a?!6.58 foot chord
winch bears North 66 dagroes ~4 munstas 19 seconds Wet to diePOII~iT O~ ~~3INN1Nt~.
~ ~
i
I ~
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~zsxT ~
Page2of2
c~ ~a o06 ~oN ~d85~E acct ~i •~3a
" DEC. 2.2008 4:02PM N0.901 P. 2
A. 3ectioa 2. of~e Lease is hereby deleted inits entire2Y and replaced with she
followi~:
B. Section 3. oaf the Lease is hemby deleted inits e~'st~' and replaced with the
followiu~
~ -
i
• 'DEC. 2.2408 4:02PM N0. 901 P. 3
._ - ~"~ ~1
C. Laa~ord a~ad Tenant reproseat and wan~ant to each other as of the fiffieccive Date
that aea~er oftip has lonmwledge of anp breach of the Leaga by the other party,
or say alai~oa for damages. Except as specifically Provided in this Fttst
Ameadme~~ tits temps and t~nc3ition~s of ~e Lease shell remain tmchsnged and
continue in full force and e~ac~
~~L ~~
a~ ~~ ~
~ ~ ,s ~~a
Tr•ademark/Service Mark Application, Frincipal Register-
Serial Number: 77539217
Filing Da~tc: 08/051200$
R1ARK INEORMA'1'ION
~ AtARK S)IAPI~t.I~
RCGISTER Princiral
.APPLICANT IN~OR117f1T[ON
~S7'nTG Mississippi
(Required for U.S. applicants)
SPECIMEN ~ 1\IICRSU.~'P(N2"1~3\IR~IACiL:0U13
r11.EtvnniE~s~ x,775\392\775;9217`,xmll\nP P0003..IP(:~
D
SPECrMEN DESCRIPTION shoving mark as used in connection with providing the
services
ATTORNEY WFORMATION j
EMaILnDDRESS psykes@bradleyarant.com
CORRESPONDENCE INFORMATION I
-- -- -- ~
j NAME Paul M. Sykes
STn'rE Alabama ~
FnX 2054886766
EMAlLADDRESS psykes@bradleyarant.com
FEE INFORMATION
NUMBER OF CLASSES 1
SIGNATURE INFORMATION
SIGNATURE /Scott Koestled
Igor specific ding basis information for each item, ~~ou must view the displ;iv within the Input 7'ablc.
IntcrnalionF~l Class X43: Restaurnnl tend bar scrciccs
lfse in Commerce: ~I'hc aprlicant is using the mark in c~~mmerec. or the applicant's related eomp~in~~ or licensee is using the mark in commerce, or
the applicanCs ~~redcccssor in interest uscil the mirk in commerce, oi~ or in connection ~~~ith the id~ntilicd goods Ind/or scr~~ices. 15 U.S.C.
Section Il)~ 1(a). tis amended.
In Intcrnatioi~al Class 0=l3. the_ m~~rk ~~~as lust used at lest as e<u~l~ pis QOlO(1fl9fij. and lust used in conunercr at least t~s carl~~ as OU/00/1985. and
is nog+~ iu use in such commerce. `fhe a~~plieant is submitting one specimens) sho~~~ing the mark as used in commerce on or in connecucm ~4~ith
am' item in the cltist of listed ?~ oods tind!or scr~~ices. coexisting of a(nj photograph ol~co~~er ol~ mcnti and cover page oi~ ~viii~ list shot~~ing mark ~~s
used in connection ~~~ith pro~~iding the scr~~iccs.
S~~ccimcn I~'il~l
l'hc applicant hereby appoints Haul N1. S~~k~s and Th1d Long. I,in<I<~ 1=ricdman. ~4ik~ Denniston. Nathan Johnson_ Circg ('cterson. C'r~°st~il
Wilkerson. Nick Landau of f3r~dle~~ Ar~~nl Rose ck 1~'hite LLY
1S19 F'i[ih A~~cnuc North
13irminaham. nlabama 320;-21(14
lAiiled Sltilcs
in submit this a~~plication on bchaN'of the applicant.
Ct~rrespondence Information: Paul tit. S~~hes
1819 Fifth jlrenue i~brth
t3irmin~ht~m. i'11ab~ma 35?03-2104
20~521R7.6G(nhone)
20548£3G7G6(fttx)
psykcs~r'i'brndleyarant.com (fiuthorired)
~1 ('ez p,~>~ment in die ~~~iowit 01'$325 h is been submitted ~~itl~ the ~lpplic~lion. re~iresentins pad=meet Ibr 1 class(es).
Declaration
I'hc imdersignecl. being hereby ~v,~rncd th~~t ~+~illful ti~lsc sl~~tcments and the like so inadc arc punishable by fine or imprisonment, or both, under
K U.S.C. Section 10(11. and that such willful false statements. rind [he like, may j~orardiz.e the ~~<~lidit~' of the application or and resulting
res;isu•ation. ~lcclares that he!she is properly authorized to execute this applicati<m on behalf of tl~e applicant; hclshe bclic~~e~ the applicant to be
the o~rner of the tradem~irlJservice mark sought to be re~ister~d. or. if the ap~~lication is being f filed unilcr 1 ~ U.S.C. Sccuon 1051(b). I~elshe
believes applicant tai be entitled to use such mark in commerce: to the best of hislher knowledge and belief no other person. fim~. corptxalion. <ir
association h1s the right to use the mFtrk iii commerce. either in the identical lurm thzreof or in such near resemblance thereto ~s to he likcl~~.
~ti~hen used on or in cunncction with the goods/services c>1'such other person. to cause confusion, or to c~wse misleke. car to deceive: and th~it all
statements made of his/her o~vn knowledge are true; and that all statements made on information and belief are believed to be true.
Attachments: /~ttachinent -
n11HC~1111C'IlT - ~
l~ifflC~11111I1T - i
l~~l~1C~1111~I1C -
1~Tl.1Cf1111C'Ill - 5
Att~ichmc~lt - G
A u~tichmcn~ - 7
l~tlachment - 8
Attachment - 9
Attachment - 1O
fllCfiC~lill~Ili - ~ 1
,'~lfilG~lI11LI11 -
Attachment - 13
n~r~~~i,~„~~,~- ~=~
/~ttachmcnl - 1 ~
nit<+chmei7t - 16
Alt~chmcnt - 17
Y1ARK: SFIAPLI~Y'S
*77539217*
CORRC~.SI'O\DENT ADDR[;SS:
PAUI, M.SYKLS RESPOND'I'O THIS ACTION:
I3RADLL-'Y ARnNt'IZOSL & 1~'I Ifl'L LLP h ttn;//~rww.usf~to,;,~<rsltcas/cTEASpa~!eD.htm
1 819 5"fH AVG N
BIRMINGIiAM. AL 352(13-21?0 GI~.'~F,RAL 1~R;11')Ii;11ARK 111FOR.~IA'I~IOi~:
httn:Nw~+'~r.usnto.~!ov/msiin/trademai9cs.htm
CORRI;SPO~DT\T'S RF.~I?RI?VCE/l)OCKF.~I' ~O
N/A
CORRI~SI'O~ DINT' E-~1AIL ~~DD12f~SS:
psykcs!irhradlcyarant.com
OFFICE ACTION
TO AVOID A}3ANllONM1:N"1'. 'I~IiL: OFFICE 1~4US7' RGCEIVF, A PRC)Y[:R I21;S1'OTv`Sl "1'O "1~f~11S OFF1C~ ACTION W!"I~]-11N 6 MONTHS
OF "I'HG ISSUE/MnILING DATL.
"Il~c undersigned exfiminin~ attorney has revicwccl the abuv~-referenced application, in accordance ~ti~ith section 2.61 of the "fr~~dcmark Rules of
Practice, 37 C.I.R. ~~' 2.G1 (~Q08), antl has determined the following:
E
NO CONFLICTING MARKS
The Office records have been searched and no similar registered or pending mark has been found that would bar registration under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d)(2003). Trademark Manual of Examination Procedures § 704.02(5th ed. 2007).
Applicant filed a use-based application under Section 1(a) oC the Trademark Act,. 15 U.S.C. § 1051(a), to register the designation
"SHAPLEY'S" for use in the sale and advertising of services classified in International Class 43, to wit, "restaurant and bar services," on
August 5, 2008. Applicant submitted the date of December 31, 1985, as the date it first used the asserted mark and the date of first use of the
asserted mark in commerce in connection with the identified services.
Registration is refused, pursuant to Section 2(e)(4) of the Trademark Act, because the proposed mark, SHAPLEY'S, is primarily merely a
surname, albeit in possessive form. 1 S U.S.C. § 1052(e)(4); TMEP § 1211.
The determination of whether the primary significance of the designation ai issue is that of a surname to the relevant public is based on the facts
made of record. In re Yeley, $S U.S.P.Q.2d 1150,(TTAB 2007); see, e.g., In re Elabltssements Darry et Frls, 759 F.2d 15, ]7-18,22S U.S.P.Q.
652,653(Fed. Cir. 1985); see TMEP §~ 1211, 1211.01.
It is well established by our reviewing authority that "the addition of an apostrophe `s' to the [surname] does nothing to change the surname
character of the term." /n re Woo(ley's Petite Suites. 18 U.S.P.Q.2d 1810, 1812 (7'TAB 1991); see, e.g., !n re Lewis Cigar Mfg. Co., 98
U.S.P.Q. 265, 266(C.C.P.A. 1953); see TMEP § l211.01(b)(v).
In /n re Benthin Management GmbH, 37 U.S.P.Q.2d 1332(TTAB 1995), the Trademark Trial and Appeal Board ("Board") identified five
factors to consider in determining whether a mark is primarily merely a surname:
Id. at 1333-34; see TMEP § 1211.01. The fifth factor is not relevant when the mark is in standard character form.
There is no per se rule as to the kind or amount of evidence necessary to make out a prima facie showing that a term is primarily merely a
surname. This question must be resolved on a casea£`byaE`c~sis. See. e.g., In re Monotype Corp. PI,C, 14 U.S.P.Q.2d 1070(T7'AB 1989); In
re Pohang Iron &Steel Co., Ltd., 230 U.S.P.Q. 79(TTAB 1986). The entire record is examined to determine the surname significance of a
term. The following are examples of evidence that is generally considered to be relevant: telephone directory listings; excerpted articles from
computerized research databases; evidence in the record that the term is a surname; the manner of use on specimens; dictionary definitions ofthe
term and evidence from dictionaries showing no definition of the term. TMEP § 1211.02(a).
In the instant case, Applicant has applied to register the mark,"SHAPLEY'S," comprised entirely in standard characters without design, for
"restaurant and bar services."
Substantial evidence, attached and excerpted below, demonstrates that the primary significance of SHAPLEY is primarily merely a surname to
the general and purchasing public. Said evidence establishes the surname significance of SHAPLEY, as the name is listed 335 times as a
surname in a nationwide directory of names t'rom current credit reporting agencies. See evidence excerpted below, randomly selected from
LexisNexisTM,Public Records Library, Surname Search. In addition, there is evidence that general public has been sufficiently exposed to the
term SHAPLEY to view it as primarily merely a surname. See attached ]nternet evidence and evidence Trom LexisNexisT"'~Iexis Library, US
Newspapers and Wires File.
Consequently, since the primarily significance of Applicant's mark to the purchasing public is primarily merely that of a surname, the mark is
refused registration on the Principal Register.
Although the examining attorney has refused registration on the Principal Register absent the amendments noted below, Applicant may respond
to the refusal to register by submitting evidence and arguments in support of registration.
The record indicates that Applicant has continuously used the proposed mark in commerce since at least December 31, 1985; therefore,
Applicant may seek registration on the Principal Register under Section 2(n based on acquired distinctiveness. To amend the application to
Section 2(~ based on more than five years of continuous use, Applicant should also submit the following written statement claiming acquired
distinctiveness, if accurate:
T'hc mark has bccomc distincUvc of the services through Ap~~licsint's substantially cxclusi~~c and continuous use in commerce for
at Icast the fi~~c nears invnedi~itch~ before the date of this st~itcmcnt.
Applictini must verify this st~itement with an affidavit or a signed dcclar~tion under Rule 2.20 or 2.33. 37 C.F.R. ~ 2.41(b): see 'I'MIiP
y 1212.05(4).
~lpplic~int must respond timol~~ and completely to the issues raised in this Ol7ice Action. IS U.S.C. p 10G2(b); 37 C.I'.R. §,~~' 2.62. 2.(i5(a); ~I'MI?P
~~' ~ 7 1 1. 718.03.
Sincerel~~_
/Judy Hclfman!
J udith M. Ilcifman
nttorncv at Law
USP'I'0 - "trademarks
Lai Office 114
(571} 272-5892 direct line
RrSI'Oi~D TO THIS ACTON: Applicant should file a response to this Office action online using the form pit
h up:l%~~~~~~~~~.uspto.go~~iteas/e~fl~:t\Spti~cD.hun. ~a~aiting 48-72 hours if Applicant received notification cif the Office action viu c-n»il. I~or
l~zclmic•al assistance with the form, please e-mail TGASrii uspto.Lo~'. Por questions about the OfTice ~iclion ilsell; p]case contact the assigned
examining attorney. Do not respond to this Office action by e-mail; khe L'SI'1'O does not accept e-moiled responses.
If responding by paper mail, please include the fc~llo~vi~~g information: the application serial number, the mark. the filing date and the name,
title/position, telephone number and c-mail address of the parson signing the response. Please use the ('ollowing address: Commissioner for
Tradcm~irks, P.O. l3ox 14 1. Alexandria. V~ 22313-14 1.
S"fA'TUS CHECK: Check the status oCthc application at least once e~~en~ six months From the initial lilin~ date using the I~SY-I~O `l'radcuiark
A pplications and Registrtitions Retrieval ('I~ARR) online system al htt~~:t:'tarr.uspto.~_o~. When conducting an online status check, print and
maintain a cope of~ the complete ~I~ARR scrc~i~. If the status of ~~our applicati~~n has not changed for more than six months. please contact the
assigned examining attorney.
I~cscarcl~ Information:
CoprrigM 2~8 LcdsNcxu.a dkisionof Rted Flsa~ie~ Ina All Rigtus Resan-ctl.
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He vras born on a farm in I lzst~~~illa. F,t,ssou^ and 4ropped out of >chool svi~h only the cquh>alent ct a fifth-grade oom ,. .- a>=,5
£2elat~d cleng~5 BdUcation A(~~~ stutl~+ing at home anJ fo':enng rri0lp stories es a nei<.~spopei re~;ottBr Shapley r?turned to compiele a ~`-- "~` `'= 0"
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;Je~ea~ Rye six~year high scfwal program in only t.~ao yeixs graduating as class ~.aie~ic~onan
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a~ea:ng of the 5thool o.,loumaGsm had h en ncstponad foi a °yeas. he decided to study the ~usi suh~ect he came Across
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He ma«led fdartha Seta. in Fpnl 191J She assisted her husLand in astianomical research both 2t (dowri Nilson and at Harvard Of+sep;dlary
numerous arliGes on eclipsing stars and other astronomical objects Ihey tied f,~ur stns and one ~auc~hter
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References
1 '~'~laneti?s of Belief iRediew o1 SCrerre Fencers R27~grUr~) by Fnmuntl F~.iller. Dec 1&. 1A50, nlar;l'~rM: l"imes
C:~[egones iZ85 births 1 7372 deati~; ~ people from Badon ~~ounty f~lissouri ~ Uni~;eB~E;~ ~f i~"isscun-Columbia alumni I Anie~rican astror.omer< I ReliUian and
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FAo.~ed en in i437 to the nev;ly farmed b:YU Canter fur hJeG~ral Sr_ienc= 4vhere I ha~:e studied the
visual cortex and ~;e~cvption ~:cur ultimate gnat is lu ~elale the neuronal actn~lg in the :~su21
cortex Io ulsuel perce~,llon and to use Vi as a model system ihzt reeals iundamenla!
processes of the cerebra! caRe>: Bwtdin9 reehst,c models of the conEx is an imprrtant goal
This is iha path that h,?ath Pralessors DasSd Iv~cLauyhlin and IJlichael Shellef from ine IdYU
; Duran[ institute and I fia~,e folla.~red. to construct realistic neural neD,=pork models o` the ~,isual
annex 11~e mode' n(the+.9sua! cortex s~re bare de~reloped is a recurrent axcdatory end inhibilory~
nehaork The modJ needs strong torilcal i~fhibition tc~ explain many phenomena in>.isual
cortex. for instance iha existence of pimple and enm~lex cells orientation seledbi~~, and other
(eatme selecli•;Cie; anJ sp-=_ctral peaks in the conical local field patentlat
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A SSOCIATION
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Eart, Gliri,'~aa an,i L~szant,~~e art ;dialer ~.ha i ,t ,F t vepa•~n~-n' ~;i F,rt 'Ini,ess~l~ a~ Clucaaa '>~~9.~ Sna,.._t v;as hom on ib=iami~y~ (amp
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5e3lch F ~t__..r~.nai i 3d; o(ar, hutur ens a z.l p~efess ~nai aii sts Nis ~h C= from .h.. tJim e i., k en~a. ~., ccni rrd ri 1 19 the lolrovir~ ;ear 3
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marngJ an ~~h i J.~h.3r~~~, ~f tvi~ssou'~ alum ann att hisi~7nan F3tr~ R~.i5k ~G r ', in ia10 Sha~;leq =aught ac Bros:ri ~nt~l 1324 t,=_ ~<aa the 5tlitor
fi s;u ley_ ~-1 r,..ar~~=iali uf; Art Bt-1let~n f els e?r 1921 an:~ 1,3d ~ N~cl~ ii? cii~Fo:t?a (ro.~~ f:is , "cna' financws d;~i irig the hard years ~° ~~~?
L _pression h3 1-i2.i hz ~~tinri=.h;. a:id:t at [I~r iur>: Un.;arsit}- z~s Sau~ur F F tslorse pwie ssor ','~h~le ~n "~YU prcf?ssor. Shapiay heada~
~;r~~~~t f.inded by the C~nieq:c Corpora;uar. di,nating boos ors sit history- ~o r,~.v~ 2,~0 high scr:cois and calleaes i~ the Uoi!ea States an9 Grea
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DATELINE: Cllympia
BODY:
There are san~a things cfia state cannoE ~.ut because [I~ey're prokected 6y state or federal mandates, si,ich as spandi~tig for puhlirt shoals_
Slate Geparlmerit o(Sociai and Health Services spokesman Ylt•J~iC.tZi+ur~'~said that ~r, ag6eipation of Eh e. bad raverue ne•.a-a, the aoencY has begin crunchlno
numbers far months.
In Cerms of vrh2re to possihiy cut, Shapley said ch~~r~ arr basically three CF1GI4?5: FEdUCE rates paid [0 4oc[or, and ocher concrac[nrs who provide ser~~~ices:
-M1fy Loxis'" ~ Search `Research To,ks 1 Get3O6Cument 1 Shepard's' t Alerts t Ibtai Utlgalor 1 iran56euofldf aatnSM i
9ource~ h ,~r ~ris~> Cgm~iJnac Sources > US Newspapers end Wires _~s
Torms shopiny and dol0 peq (17f22720D6) (F i15ea~~ h ~ ~unrk St Ten~SF fur 7d= ~,~a,~h;
iSeled fm FOCUS"" m DeG,ury
r
.Another mammoth bone found TrrGtV Herald (6vashmGto~~) rlovember 2U, 2003 Thursday
DOpY:
°For me, it's just exciting to have another anlrnal there. I['s ;~ ime m a million lfnd},' said , a graduate student at CenCral WashnigSc+n Vnlversity and
ce-IeaAr.,r of [he May diq.
the
Shrpley and students from Central and Kazivakin High School m Kr_~nn~rnck are. planning an excavatron a[ [he site SaNrday. Graups from [hose ,drools wNre ~t
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htln~//w.v~v leis cum/researtlilre~rieve~ rn=S'~ ~~77f1caaecaaaR~fla?drF4[1t~nPwSlarlCiie-1 &cmCh-ORcrnCt-0..LCAS
FSRdc~cnum 15& tmtstrVMPJIt"k stanrinr-iCwch~dGLzVI: ~SkAAA md5-c10c~9b46ba7~,h23bc3974d4c94R1M&focBudTPrmS=th
~qgy&tocBud~gl=all 1112~R008 ~ 5321 PM
M1?yLoxis~ SoaronT Resoarch Taek~ ~ Got a Oowmant ~SHopat'd's~.~,Alu[ts ~1°olalLitfgetof:-7 Transoctlonm Adtasor ACounsel Selector
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Sotuce- h~errs ~ E3u~iness > G ,nhinaGqurce, > US Ifewspapers and lMres `'
Terra>. sha~ley and tlate geq(11722006) iFd, r! Saari I Svooe S~ Terms' ~'
[fODY:
TNe 6!:s Cour had one message a6uve all else: Obama VsnY ready to assume the highest office of !i~z free :vorld, said`~.~~b county caardinator for
Khe MCCa,n camp.
"tdavr rs not the time to i.e ~~xperimen[ing with [he prQsidercy,' he said.
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{ ~ ooc~ °~Y ~i~a~ ► ~ term ~ r~ of: ► —
Ta: Koestler,Inc.(i~svk~s(a)Gratllcvarant.cc~m)
:Attachments:
IMPORTANT' NOTICE
USPTO OFI'ICE ACI'IQN IIAS ISSUCD UN 11/22/2008 FOR
Plcasc follo~~~ thr instructions below to continue the prosccuti~>n cif your a~iplicatiim:
YLGASC NO'T'E: ~I he Office action may not be immediately arailablc but ~~~ill be vie~~•able ~~ithin 24 hours of this notification
RESPONSE MAY HE RF,QUIRED: You should carefull~~ re~~iew the O(lice ~iclion to determine (I) it a response i~ required; (2) how to
respond; and (3) the applicable response tiiiic I~criod. Your response dcacilinc will be calculated from 1 I/221200t3.
Du NOT I~il "Reply" to this c-mail nokif7cation, or otherwise attempt to e-mail your response, ~s the USYTO does NO'f ficcept c-mailed
responses. Instesid, the USP7'U recommends that you respond online using the Trademark Electronic Applicsitinn S,ystcm response form
nt http:ll~~~~~~~~ upio.eo~~he~i~%c'(1:ASpa~~D.hun.
HELP: I~or ~eclviicn! assistance in accessing tl~e Office action. pl~<~se e-mail
TDR~'n a>pto.~ov. Please contact the assigned examining at~urncy ~+~itl~ questions about the Office action.
WARNING:
1. 7'hc USP"CO will '~C?~I~ send a separate e-mail with the Office acli~m ~+uachcd.
2. Failure to ~Ic any required response by the applicable deadline »ill result in the n13nNDC)NMI N'I~ of your
a pplication.
Response to Office Action
SIGNATURE SECTION
llICLARA'f10\ SIGNA'i'l?RE !Scpll KoCSllcr%
DATF,SIGNI:D _ J2iQl;?(108
ADll1TIONAL 5TA'I'LI~~IENTS
Scctiora 2(i), based on Use
"1'hc mark has bccotnc distinctive of the foods/svn°ices Ihroueh the u~~plicant's subslantiali~~ cxolusivc and continuous use in commerce liar al least
the five years immediately before the date of this statement.
SIGNATURES)
Declaration Signature
if the applicant is seeking registration under Section I(b} and/or Section 44 of the Trademark Act. the applicant had a bona tide intention to use
or use through the applicant's related company or licensee the mark in commerce on or in connection with the identified goods and/or services as
of the tiling date of the application. 37 C.F.R. Secs. 2.34(a)(2)(i); 2.34 (a)(3)(i); and 2.34(a)(4)(ii). Ifthe applicant is seeking registration under
Section I(a) of the Trademark Act, the mark was in use in commerce on or in connection with the goods or services listed in the application as of
the application filing date. 37 C.F.R. Secs. 2.34(a)(1 }(i). The undersigned. being hereby warned that willful false statements and the like so made
are punishable by fine or imprisonment, or both, under 18 U.S.C. §1001, and that such willful false statements mAy jeopardize the validih~ ofthe
application or any resulting registration. declares that he/she is properly authorized to execute this application on behalf ofthe applicant; he/she
believes the applicant to be the owner of the trademark/service mark sought to be registered, or, if the application is being filed under IS U.S.C.
§ 1051(b), he/she believes applicant to be entitled to use such mark in commerce: to the best of his/her kno«~ledge and belief no other person,
firm, corporation, or association has the right to use the mark in commerce. either in the identical form thereof or in such near resemblance
thereto as to be likely, ~►~hen used on or in connection with the goods/services of'such other person, to cause confusion, or to cause mistake. or to
deceive: that if the original application was submitted unsigned. that all statements in the original application and this submission made of the
declaration signer's knowledge are true; and all statements in the original application and this submission made on information and belief are
believed to be true.
Response Signature
Signature:lc~~~ilkerson/ Date: 12/02/2008
Signatory's Name: Cq~stal G. Wilkerson
Signatory's Position: Attorney for Applicant
The signatory has confirmed that he/she is an attorney ~vho is a member in good standing of the bar of the highest court of a U.S. state, which
includes the District of Columbia.Puerto Rico, and other federal territories and possessions; and he/she is~currently the applicant's attorney or an
associate thereof; and to the best of his/her knowledge, if prior to his/her appointment another U.S. attorney or a Canadian attorney/agent not
currently associated with his/her company/firm previously represented the applicant in this matter: (1) the applicant has filed or is concurrently
filing a signed revocation of or substitute power of attorney with the USPTO; (2) the USPTO has granted the request of the prior representative to
withdraw; (3) the applicant has filed a power of ariorney appointing him/her in this matter: or (4) the applicant's appointed U.S. attorney or
Canadian attorney/agent has filed a power of attorney appointing him/her as an associate attorney in this matter.
R7ARK SrC'f'ION
~1ARK SIi~PI,IY'S
C17'1' [31RY11NG11iA~1
S'fA'11: r~lab~ma
PIIONL 205218766
rn x z~sasx~~~~,
EDIAIL ps~~kes'abradle~~arant.cum
c'I'1'1' Ridgcland
S'fA'I'[~, i~~lississip~~i
P05"fAL('ODF: 39157
United Stales
SPEC1;111~:1 DESCRIPTION business card and menu and product label bcarine the mark
G
AuscLl,LnNrous s'rn'rF,n7KNT Frcc tc~t not entered b~~ the ap~lict~nt.
':'1'ICRS`~[~XPOI~'I'If~AI~lAG60U`l~ IG\77~i392\77~.~9217\xtt11 1\
Sb3U003..IPG
57.1"CL. n-~~s5~~~~i~n~
ZIY/YOS"PA L COI)1~. 39157
SICNATURG SECTION
SI(:NA'PUItL•' /Scott Kocsticr!
s~cnAroav~s v:~n~aF: Scott lioestler
$IGrATORIr'S 1'OS17'10\ President
lle•rrs s~c~rn 08/29%?01=1
s~cr~n~roHv~s ra~o~~; Ni;n~~Lu (GO1)9>7-373
rn~°~~r;n~r n~L~~~~~oll cc
FILING INI~OR;11A'fION
SUB~11T DA'fF. f~ri ~1ue 29 I~l:01:~191.:D"1~201d
11SPT0/S[:C"1-03-XX.XX X.XXX.?~
X-201 X4082914O(X19355157-35
97904-5003080aIc3b375329d
7'@AS 57~1D7P 2i`17a5~'~a(i3~t~1d(i17~8d6e3Gf
9ae2375de4d2ce33d88a13-CC
-1280-2014082913245108996
Declaration of Use and/or F..xcusahle Nonuse of Marlc in Commerce under Section 8
To the Commissioner for Trademarks:
I~4ARK: SI1nPL,[Y'S
I'or International Class 043. Ih~ mark is in use in cotnmercc on or in connecticm ~~~ith :►II goodslscrvices. or to indicate tt~cn~ibership in the
collecti~~e membership organizati~~n. listed in the existing registration for this specilic cl~iss: Restaurant end b~ir ser~~ices : or. the o~~Tner is making
tl~e listed ~xcusablc nonuse cl~irm.
I~he owner is submitting une(or more) specimens) sh~~~~ing the mark ~~s used in commerce on or in connection with <im~ item in this class.
consisting ~f a(n) business cord <uid menu and product label bearing the mark.
Speciincn I~ilel
11'1ISCI?LI.r1NEOU5 STA'1"L:MI:N'I'S
I'rec text not enterzcl by the applicant.
:ti4isccllt~neous 1=ilei
l~he registrant's current Coirespundence Inlormation: NAlrl. M. S1'KF,S of BRADLI~Y ARA\l' ROS1 & l~~lil'fl~. LI.Y
1 819 SI'II AVfi N
131RMINGI IAM. ~~labema (~I,) 35203-2120
t_!nitrd 5tatcs
~1 lee pa~~nient in tltc: antaw~t of ~ 100 ~+ill be submitted ~~~ilh the li~rm. representing p~~r~mcnt (i~r 1 class(es). ~~lus aii~~ additional Brace period fee.
i f nccrssarr. y
Declaration
1:irlc~s•.s the owner has speciJic~r/lr cinimed e.~casa(~le noi~~rsi~, the I71C11'I~ IS N7 1lSP in conrinerce nn or in cameclion u~il/t the L~ooc/sa•ervicer
icleritr/ied Whore. as evftlef~ced ~r 1he ulrnched s~,~erin~eii(s•I .chou~ing dre utnrk as used i~r canrmer•cc.
~I'hc sicnator~~ being ~+~arned that ~~~illl'ul false statements and tl~e like urc punisht~blc b~• iii~c ur imprisonment. or both, under lY U.S.C. Section
1OOLand that such ~~~illful false statements and the like mad° .jeo~iarc'lize the v<ilidit~~ of this submission. decl~res That all statements made of
hislhcr o~~~n kno~~•lcd~e tirc u~ue ~~nd all staitements made on inl'ormatiun and belief arc believed to be true.
Signature: /Scots Koestler/ Date: 08/29/2014
Signatory's Name: Scott Koestler
Signatoq~'s Position: President
Signatory's Phone Number:(601)957-3753
Note: Process in ~ecordance ~~~ith Post Registration Standard Operating Procedure (SnP)