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Exhibit 10.2
AMENDED AND RESTATED AGREEMENT
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THIS AMENDED AND RESTATED AGREEMENT, is made as of the 24th day of
March, 1998, with an effective date of June 3, 1997, by and between The
Statesman Group, Inc. (the "Group") and Regency Affiliates, Inc. (the
"Company").
W I T N E S S E T H:
WHEREAS, the Company wishes to obtain the future services of Xxxxxxx X.
Xxxxxxxx, Xx. ("Xxxxxxxx"), for the Company; and
WHEREAS, Xxxxxxxx is willing, upon the terms and conditions herein set
forth, to provide such services; and
WHEREAS, Xxxxxxxx has contracted to exclusively provide services and
labor for the Group, and WHEREAS, the Group is willing to forbear from competing
with the Company; and WHEREAS, there exists a lack of mutual understanding
between the parties to the previous agreement regarding the subject matter
hereof, which agreement was signed by the parties on June 3, 1997, and WHEREAS,
the parties desire to restate the Agreement of June 3, 1997 to more accurately
reflect their understanding and agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and intending to be legally bound hereby, the parties agree
that the Agreement entered into by them on June 3, 1997, shall be amended and
restated to provide as follows:
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1. RELEASE
The Group hereby releases Xxxxxxxx from all of his employment
obligations with the Group.
2. EMPLOYMENT OF XXXXXXXX.
Simultaneously with the execution of this Agreement, the Company
proposes to enter into an Employment Agreement with Xxxxxxxx on terms acceptable
to the Company and Xxxxxxxx. The execution of this Agreement by the Company is
conditioned upon the execution of such Employment Agreement by both the Company
and Xxxxxxxx.
3. COMPENSATION.
As an inducement for the Group to enter into this Agreement, and
release Xxxxxxxx from his conflicting obligations to the Group, the Company
shall issue 466,667 shares of its common stock to the Group upon execution of
this Agreement.
4. STOCK OPTIONS.
(a) The Group is hereby granted the option to purchase Six
Million, One Hundred Thousand (6,100,000) shares of the Company=s common stock,
$0.40 par value, as hereinafter provided. Until their date of expiration, the
options shall be exercisable at any time in whole or in part at a price equal to
the lower of (a) the closing trading price as of the most recent date on which
at least 10,000 shares of such stock were traded, or (b) the average closing
trading price of the shares during the ninety day period immediately preceding
the date of exercise. The Company agrees to reserve sufficient shares to meet
the requirements of this paragraph. The options shall become exercisable
immediately and shall remain exercisable until April 15, 2007. At the option of
the Group, payment may be
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made by the Group for exercise of the option to purchase shares of the Company
granted hereunder, in whole or in part, in the form of a promissory note
executed by the Group, secured only by a pledge of the shares purchased, which
promissory note will accrue interest for any quarter at the prime rate in effect
on the last day of the quarter at Chase Manhattan Bank, with interest and
principal payable in a balloon payment five years after the date of execution of
the note.
(b) With regard to any shares purchased by the Group as a
result of the foregoing options (such shares referred to in this subparagraph as
the "Stock"), Statesman acknowledges that the Stock is acquired for the purposes
of investment and not for distribution and will not, at the time of issuance, be
registered with the Securities and Exchange Commission (the "SEC"). Statesman
acknowledges that the shares received by it may not be resold or distributed
except in a registered offering or pursuant to an exemption under the federal
securities laws. If Regency determines to file a registration statement to
register for public offering any of its securities, it shall so notify
Statesman. At the request of Statesman, Regency shall include, to the extent
then permissible under the Securities Act of 1933, as amended (the "Act") and
the rules and regulations of the SEC, the Stock in the registration. Prior to
the effective date of each registration statement relating to any of the shares
of the Stock, Regency and Statesman shall enter into an agreement providing for
reciprocal indemnification against any losses, claims, damages, or liabilities
to which Statesman or Regency may become subject under the Act or otherwise. The
form of the reciprocal indemnification provisions shall be the form customarily
appearing in underwriting agreements used by reputable investment bankers.
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5. AGREEMENT NOT TO COMPETE.
(A) SCOPE. For so long as Xxxxxxxx shall be employed by the
Company, the Group agrees that it will not engage in any business or activity in
competition with the Company within the United States of America, either
directly or indirectly, whether for itself or a third party, without the express
written permission of the Company.
The Group promises that for a period of two (2) years
following the termination of Xxxxxxxx employment with the Company, it will not,
either directly or indirectly, whether for itself or a third party, without the
express written permission of the Company, pursue any business opportunity that
was actively pursued by the Company during Xxxxxxx Xxxxxxxx'x tenure of
employment and not abandoned by the Company.
(B) REMEDIES. The parties agree that the violation or
threatened violation by the Group of its non-compete obligation hereunder, will
cause the Company irreparable harm for which damages will be inadequate or
unascertainable. Accordingly, in such case the Company shall be entitled to
appropriate temporary and permanent injunctive relief.
6. LOAN GUARANTEES BY STATESMAN. As further consideration for the grant
of shares and options to Statesman hereunder, until such time as the options
granted in Section 4 hereof shall expire, Statesman agrees to guarantee one or
more third-party loans to Regency or its subsidiaries, in a total face amount
not to exceed at any time the aggregate sum of $300,000. Such guarantee shall be
provided by Statesman upon request by the Company and upon a showing of
reasonable need to have Statesman provide its guarantee.
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7. EFFECTIVE DATE.
This Agreement, as amended and restated, shall relate back and become
effective as of June 3, 1997.
8. NOTICES.
Any notice, request, demand or other communication required or
permitted to be given under this Agreement shall be given in writing and if
delivered personally, or sent by certified or registered mail, return receipt
requested, as follows (or to such other addressee or address as shall be set
forth in a notice given in the same manner):
If to the Group: Statesman Group, Inc.
X.X. Xxx XX00000
Xxxxxx X.X. Bahamas
If to the Company: Regency Affiliates, Inc.
00000 Xxx Xxxx Xxxx, Xxxxx #0
Xxxxx, Xxxxxxxx 00000
Any such notices shall be deemed to be given on the date personally
delivered or such return receipt is issued.
9. ARBITRATION.
It is agreed that in the event that any disagreement, dispute,
controversy or claim arises out of or in relation to or in connection with this
Agreement or breach thereof, the parties shall seek to solve the matter amicably
through discussions between parties. Each party agree to consider in good faith
any reasonable request by the other party to engage in mediation or any other
means of alternative dispute resolution short of arbitration. Only if the
parties fails to resolve such disagreement, dispute, controversy, claim or
breach by amicable agreement and compromise within 60 days, may the aggrieved
party seek arbitration as set forth herein. Any disagreement, dispute,
controversy or claim with
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respect to the validity of this Agreement or arising out of or in relation to
the construction or interpretation of this Agreement or arising out of or in
relation to the construction or interpretation of this Agreement, or breach
hereof, shall be finally settled by binding arbitration. The arbitration shall
take place in Fort Lauderdale, Florida in accordance with the rules of the
American Arbitration Association or as the parties shall otherwise agree. The
arbitration shall be brought before three (3) arbitrators, one (1) each
appointed by the respective parties and one (1) additional arbitrator selected
by the two (2) appointed arbitrators. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. The
arbitrators shall have the power, in addition to the power of determining the
merits of the arbitration, to determine the scope and limits of discovery and to
enforce the rights, remedies, including specific performance, if requested,
procedures, duties, liabilities, and obligations of discovery by the imposition
of the same terms, conditions, consequences, liabilities, sanctions, and
penalties as can be or may be imposed on the like circumstances in a civil
action by a State Court of the State of Florida under the provisions of Florida
Rules of Civil Procedure, except the power to order the arrest or imprisonment
of a person. Each party shall absorb its own costs of arbitration, including
attorney's fees, and the parties shall split equally any arbitrators' fees.
Notwithstanding the section above, the parties shall have recourse to
the courts of Florida for the purpose of obtaining any injunctive relief remedy
as permitted by the laws of the State of Florida.
10. SEVERABILITY.
Whenever possible, each provision of this Agreement will be interpreted
in such manner so effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law or
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rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or any other jurisdiction, but this Agreement
will be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
11. WAIVER OF BREACH.
The waiver by the Company or the Group of a breach of any provision of
this Agreement by the other party shall not operate, or be construed, as a
waiver of any other breach of such other party. Each of the parties to this
Agreement will be entitled to enforce its rights under this Agreement
specifically, to recover damages by reason of any breach of any provision of
this Agreement and to exercise all other rights existing in its favor.
12. AMENDMENT; ENTIRE AGREEMENT.
This Agreement may not be changed orally but only by an agreement in
writing agreed to by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought. This Agreement embodies the
entire agreement and understanding of the parties hereto in respect of the
subject matter of this Agreement, and supersedes and replaces all prior
Agreements, understandings and commitments with respect to such subject matter.
13. GOVERNING LAW.
This Agreement shall be governed by, construed, applied and enforced in
accordance with the Laws of the State of Florida, and no doctrine of choice of
law shall be used to apply to any law other than that of Florida, and no
defense, counterclaim or right of set-off given or allowed by the laws of any
other state or jurisdiction, or arising out of the enactment, modification or
repeal of any law, regulation, or ordinance or decree of any foreign
jurisdiction, shall be interposed in any action hereon.
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IN WITNESS WHEREOF, the parties hereto have set their hands as of the
day and year first above written.
STATESMAN GROUP, INC. REGENCY AFFILIATES, INC.
BY: /s/ Xxxxxx Xxxxxxx BY: /s/ Xxxxxx X. Xxxxxx
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ITS: Vice President ITS: Secretary
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