EXHIBIT 10.2
AGREEMENT
This Agreement (the "Agreement") is entered into as of the 29th day of
June, 2001, by and between Floridino's International Holdings, Inc., a Florida
corporation (herein "Company") and Xxxxxxx Xxxxxxxxx (herein "Floridino"). The
Company and Floridino are sometimes collectively referred to herein as the
"parties".
WHEREAS, Floridino had previously transferred certain assets to the
Company in exchange for shares of the Company's common stock; and
WHEREAS, the Company desires to return certain of the assets (as
described below) to Floridino in exchange for the return of a portion of the
shares of common stock held by Floridino and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
each of the parties,
NOW, THEREFORE, the parties agree as follows:
1. TRANSFER AND DISTRIBUTION OF SHARES. On the closing date as
set forth herein:
(a) Floridino shall transfer, execute, and deliver to the
Company's stock transfer agent, Manhattan Stock Transfer, Inc. (the "Transfer
Agent"), a certificate or certificates representing 524,500 shares of common
stock of the Company presently owned by Floridino.
(b) The Company shall re-issue to Floridino 174,500
shares of common stock of the Company, all of which except 15,000 shares are
subject to the Lock-up agreement as described herein.
(c) The Company shall execute a promissory note in the
form set forth in Exhibit A, attached hereto.
(d) The Company shall issue to Floridino a xxxx of sale
for all personalty described on Exhibit B, attached hereto.
(e) The Company and Floridino shall execute any further
documents as are necessary to effect this Agreement between the parties and with
third parties as proper and necessary.
2. EXPENSES, COSTS, AND FEES. The Company shall pay for all
expenses associated with the transfer of common stock, the transfer of
personalty, the transfer of interest in
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real property, and the transfer of right, title and interest to intellectual
property including, but not limited to, trade marks, trade names, recipes,
logos, graphics, images and themes associated with or stemming from the business
name of "Floridino's". Each party shall pay their own attorney's fees and costs
associated with drafting, reviewing, modifying, and negotiating this Agreement
and any addendum thereto, the General Release, and the Promissory note.
3. CONSIDERATION FOR TRANSFER OF SHARES FROM FLORIDINO TO THE
COMPANY. In consideration for the net transfer of 350,000 shares of the
Company's common stock to the Company and for the re-issue of the 174,500 shares
of common stock of the Company to Floridino, all of which except 15,000 shares
are subject to the Lock-up agreement as described herein, the parties shall:
(a) The Company assigns to Floridino the exclusive right,
title, and interest to the name "Floridino's". Floridino will permit the use of
the name "Floridino's" at no charge by the Company and its subsidiaries for a
period not to exceed six (6) months from the date of this Agreement. After the
expiration of the six-month (6-month) period, the Company shall not use or
permit any of its subsidiaries, assigns or successors, or any of its officers,
directors, or employees to use the name "Floridino's" or any derivative thereof.
Violation of this covenant and restriction of the use of the name "Floridino's",
or any derivative thereof, as a trade name shall be considered a breach of this
Agreement. It is understood and agreed by the parties that 50,000 shares of the
net total 350,000 shares transferred by Floridino to the Company are designated
specifically for the consideration of the right of Floridino to have the
exclusive use of its trade name and all derivatives thereof.
(b) The Company transfers to Floridino all right, title,
and interest to the restaurant known as the "Lake Wales Restaurant" located in
Lake Wales, Florida. Said transfer is intended to be a complete transfer of
interest including, but not limited to, all equipment, furniture, and fixtures
associated with the Lake Wales Restaurant including, but not limited to, the
restaurant build out, decor, and equipment set forth in Exhibit B, attached
hereto. The Company warrants that there are no liens, claims, costs, fees or
obligations encumbering the furniture, fixtures and equipment described herein.
All preconditions to the transfer of the Lake Wales Restaurant to Floridino, as
described herein, shall be fulfilled by the Company prior to the closing date
described herein. The Company warrants that all rent, taxes, levees, fees, dues
and
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payables shall be paid by the Company for the lease, and the business of the
Lake Wales Restaurant through June 30, 2001. Thereafter, all such costs of doing
business shall be the responsibility of Floridino.
(c) The Company assigns to Floridino all right, title,
and interest to all recipes, a brief description of each is included as Exhibit
C, attached hereto. Floridino shall permit the Company to use the U.S.D.A.
recipe for calzones, without charge, for a period of six (6) months from the
date of this Agreement. Thereafter, the Company, its subsidiaries, assigns, and
successors shall not use this recipe for any reason whatsoever without a license
from Floridino which shall be in Floridino's sole discretion to grant.
(d) The Company assigns to Floridino all right, title and
interest in any and all franchise agreements which the Company is a party. The
Company warrants that there are no obligations, costs, or claims by any
franchisee against the Company which have not been disclosed to Floridino prior
to execution of this Agreement. Floridino is entitled to all accounts receivable
from said agreements, owed as of the date of execution of this Agreement
forward. Particularly, but not by way of limitation, Floridino is authorized to
negotiate, compromise and settle with one or more of the franchisees, a portion
or all of any amount owed by the franchisees to the Company. The settlement
amount of said settlement(s) shall be applied to the interest first and then to
the principal of the Promissory Note made by the Company to Floridino described
below.
(e) The Company assigns and transfers all right, title,
and interest to all restaurant equipment located in the 5,000 square foot
storage building owned by the Company located on Xxxxx Xxxx 00 Xxxxx next to the
U.S.D.A. food plant. The Company warrants that there are no liens, claims,
costs, fees, or obligations encumbering the furniture, fixtures and equipment
described herein.
Further description of said equipment shall be inventoried by
Floridino within ten (10) days of the signing of this Agreement and such
inventory shall be verified by the Company and made a part hereof to this
Agreement.
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(f) The Company shall make in favor of Floridino, a
promissory note in form and substance attached hereto as Exhibit A in the sum of
$27,000 representing the Company's repayment of loans from Floridino to the
Company.
(g) The assets and other items to be transferred and/or
assigned by the Company to Floridino in section (a) through (f) shall be
referred to as "assets" for the purpose of this assignment, subject to any
offsets as described in subparagraph 3 (d) herein.
4. NON-COMPETE. The parties acknowledge that the Company owns and
operates one retail restaurant in New York City and manufactures and sells
calzones, pizzas and other Italian food products ("Products") for sale to
customers in the United States. The Company agrees that except for the ownership
and operation of its New York restaurant and the sale of Products to customers
in the United States, it will not directly compete with the restaurant business
owned by Floridino at any time for a period of three (3) years from the date of
this Agreement. It will not directly compete in the following states of the
United States: Florida, Arizona, Iowa, Oklahoma, Texas. It is understood and
agreed by the parties that 50,000 shares of the net total 350,000 shares
transferred by Floridino to the Company are designated specifically for the
consideration for this non-compete agreement.
5. LOCK-UP. Floridino agrees that the 174,500 shares to be issued
by the Company's Transfer Agent in his name, less 15,000 shares to be sold by
him in a private transaction, shall remain subject to and bound by all of the
terms and conditions of that certain "Lock-Up" Agreement dated August 15,2000
between Floridino and the Company, which "Lock-Up" Agreement shall remain in
effect until August 15,2003. Such lock-up shall be reflected in the books and
records of the Transfer Agent and shall be indicated on each restricted
certificate issued to Floridino. The 15,000 shares described above may be
transferred without restriction. These non-restricted shares shall not have any
restrictive language on the certificates except for standard language evidencing
restrictions imposed by Rule 144 of the Securities Act of 1933, as amended.
6. AUTHORITY. All corporate action on the part of the Company and
its Board of Directors necessary for the authorization, execution, and delivery
of this Agreement, and the performance of all obligations of the Company
hereunder have been obtained. This Agreement
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constitutes a valid and legally binding obligation of the parties enforceable
against the other in accordance with its terms (except as such enforce-ability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other laws of general application relating to or affecting enforcement of
creditors rights).
7. GENERAL RELEASE. The parties shall sign at closing a Mutual
General Release in the form and substance as attached hereto as Exhibit "E".
8. CONFIDENTIALITY. All parties agree to keep this Agreement
confidential unless required to disclose the terms hereof pursuant to any
applicable state or federal securities laws.
9. GOVERNING LAW. This Agreement will be governed and construed
in accordance with laws of the State of Florida.
10. ARBITRATION. Any dispute or claim arising under or with
respect to this Agreement will be resolved by arbitration in accordance with the
Rules for Commercial Arbitration of the American Arbitration Association before
a single arbitrator. The decision or award of the arbitrator shall be final and
binding upon the parties. Any award may be entered as a judgment or order in any
court of competent jurisdiction.
11. MODIFICATION. This Agreement may be modified or amended only
by an instrument in writing signed by all the parties.
12. WAIVER. No party waives any rights or obligations of another
party or any provisions of this Agreement except by an instrument in writing
signed by that party.
13. CLOSING DATE/LOCATION. The closing date is June 29,2001 and
shall be held at the offices of Xxxxxxxx Xxxxxxx Xxxx, P. A.., 000 Xxxxxxxxx
Xxxxx Xxxxxx, xxxxx 000, Xx. Xxxxxxxxxx, Xxxxxxx 00000-0000.
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14. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties with respect to the subject matter of the Agreement
and it supercedes all prior understandings and agreements, whether written or
oral, and all prior dealings of the parties with respect to the subject matter
hereof.
WHEREFORE, the parties have freely executed this Agreement on the date
set forth above.
FLORIDINO'S INTERNATIONAL HOLDINGS, INC.
By: /s/ Xxxx Xxxxxxxxx /s/ Xxxxxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx, Chairman Xxxxxxx Xxxxxxxxx
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