EXHIBIT 10.13
AMENDED AND RESTATED AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT (the "Amended and Restated
Agreement") is dated this _____ day of September, 1999, by Genesee Holdings,
Inc. ("Genesee"), successor in interest to GFL Ultra Fund, Ltd. ("Ultra"), a
British Virgin Islands corporation, on the one hand, and LS Capital Corporation
("LS"), a Delaware corporation, and Xxxx X. Xxxxxx ("Xxxxxx"), on the other
hand.
RECITALS:
WHEREAS, Ultra and LS entered into an Agreement dated June 30, 1997
(the "Original Settlement Agreement") to settle and resolve all disputes then
existing between the parties, including but not limited to, those allegations
raised in the litigation entitled GFL Ultra Fund vs. Lone Star Casino
Corporation, Cause No. H-96-1423 then pending in the United States District
Court for the Southern District of Texas, Houston Division (the "First
Lawsuit"), and to establish a procedure by which Ultra could convert the
preferred shares it then held in LS; and
WHEREAS, the Original Settlement Agreement required (among other
things) LS to pay to Ultra an aggregate amount of $75,000 in two future
installments; and
WHEREAS, LS failed to pay to Ultra an aggregate amount of $75,000 in
two future installments as provided in the Original Settlement Agreement; and
WHEREAS, Genesee has succeeded to the interests of Ultra for all
purposes hereof; and
WHEREAS, Genesee instituted the litigation entitled Genesee Holdings,
Inc., successor in interest to GFL Ultra Fund, Ltd. vs. LS Capital Corporation,
f/k/a Lone Star Casino Corporation, and Xxxx X. Xxxxxx, in the 61st Judicial
District Court, Xxxxxx County, Texas (the "Second Lawsuit") with respect to the
delinquent installments (the First Lawsuit and the Second Lawsuit are referred
to hereinafter collectively as the "Litigation"); and
WHEREAS, Genesee has the legal right to rescind the settlement provided
for in the Original Settlement Agreement by virtue of the breach by LS of the
terms thereof; and
WHEREAS, Genesee and LS desire to amend and restate the Original
Settlement Agreement in the form of this Amended and Restated Agreement in order
to settle and resolve all disputes now existing between the parties, including
but not limited to, those allegations raised in the Litigation, and to establish
a procedure to complete the conversion of Genesee's preferred shares in LS;
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of LS and Genesee to amend and restate the Original Settlement Agreement, each
of LS, Xxxxxx and Genesee hereby agrees as follows:
I. AMENDMENT AND RESTATEMENT
OF ORIGINAL SETTLEMENT AGREEMENT
Each of LS and Genesee hereby agrees that the Original Settlement
Agreement be and hereby is amended and restated in its entirety in the form of
this Amended and Restated Agreement.
II. RESCISSION OF ORIGINAL SETTLEMENT
Each of Genesee and LS hereby agrees that, by virtue of the breach by
LS of the terms of the Original Settlement Agreement and in accordance with
rights that Genesee legally has a consequence thereof, the settlement provided
for in the Original Settlement Agreement be and hereby is rescinded.
Notwithstanding the preceding rescission and in view of the provisions of
Section III. and Section IV. below, LS hereby waives its right to receive a
return of a stock certificate representing the 600,000 shares of LS common
stock, par value $.01 per shares (the "Common Stock"), and the $25,000 that (in
both cases) LS previously delivered to Genesee or Ultra. Instead, such 600,000
shares and $25,000 shall serve as credits for fulfilling LS's obligations
provided for in Section III. and Section IV. below. Moreover, notwithstanding
the preceding rescission and in view of the provisions of Section IV. below,
Genesee hereby waives its right to receive a return of a stock certificate
representing the shares of LS preferred stock that Genesee or Ultra previously
delivered to LS for conversion.
III. SETTLEMENT OF LITIGATION
LS agrees to pay $28,500 to Genesee. Genesee hereby acknowledges the
prior receipt of $25,000 (satisfactory to meet a portion of the obligation
imposed on LS by the preceding sentence) pursuant to the terms of the Original
Settlement Agreement, such $25,000 constituting one of the credits provided for
in Section II. above. The $3,500 additional cash amount required by this Section
III. shall be delivered to Genesee promptly after the execution and delivery of
this Amended and Restated Agreement.
IV. CONVERSION PROCEDURE
The parties hereby agree that at the time of the execution of this
Amended and Restated Agreement, Genesee will convert its remaining preferred
shares in return for 1,500,000 shares of common stock of LS. Genesee hereby
acknowledges the prior receipt of 600,000 (satisfactory to meet a portion of the
obligation imposed on LS by the preceding sentence) pursuant to the terms of the
Original Settlement Agreement, such 600,000 shares constituting one of the
credits provided for in Section II above. The 900,000 additional shares required
by this Section IV (the "Additional Shares") shall be delivered to Genesee
promptly after the execution and delivery of this Amended and Restated
Agreement. All Additional Shares shall be unlegended and shall not be subject to
any stop-transfer restriction. Additionally, at the sole option of Genesee and
upon written demand from Genesee to LS, LS shall deliver to Genesee an
additional 300,000 shares (the "Option Shares"), for a total of 1,800,000 shares
in the aggregate, to Genesee, care of Genesee Investments, 00000 XX 0xx Xxxxxx
#0000, Xxxxxxxx, Xxxxxxxxxx 00000-0000.
The Option Shares shall be delivered to Genesee exactly seventy-five
(75) days after the written demand is made upon LS. LS shall not deliver the
Option Shares sooner than seventy-five (75) days from the written demand by
Genesee, and Genesee shall have no ownership interest in the Option Shares until
delivery. The Option Shares shall also be unlegended and shall not be subject to
any stop-transfer restriction.
Genesee agrees not to sell in any trading week hereafter a number of
Additional Shares or Option Shares exceeding 50% of the number of shares of
common stock of LS that is bought and sold during that trading week. In
addition, Genesee agrees not to sell in any 30-day period more than 400,000
Additional Shares or Option Shares. Genesee agrees to provide with confirmations
of sales of any Additional Shares or Option Shares at least one each month.
All demands, notices or other communications required or permitted
herein, including but not limited to the demand for the Option Shares and the
confirmation of sales of any Additional Shares or Option Shares, to LS shall be
in writing and shall be sent personally, by facsimile or by certified,
registered or express mail, postage prepaid, to Mr. Xxxxx Xxxxxxx at Xxxxxxx &
Xxxxxxx, 0000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000, facsimile number (713)
739-8341, and shall be deemed delivered and given to LS when so sent personally
or by facsimile or, if by mail, two days after the date of mailing. If Mr. Xxxxx
Xxxxxxx changes addresses or facsimile numbers, or if LS desires that the
demands, notices or other communications required or permitted herein be
delivered or sent to someone other than Mr. Xxxxx Xxxxxxx, then LS must notify
Genesee in writing of the change at the following address: Genesee Holdings,
Inc., care of Genesee Investments, 00000 XX 0xx Xxxxxx #0000, Xxxxxxxx,
Xxxxxxxxxx 00000-0000. Unless LS notifies Genesee in writing as set forth above,
then all demands, notices or other communications required or permitted herein
to LS shall be deemed given and delivered to LS when sent personally or by
facsimile or, if by mail, two days after the date of mailing, addressed to Mr.
Xxxxx Xxxxxxx at the above address or facsimile number, regardless of whether
Mr. Xxxxx Xxxxxxx has changed addresses or facsimile numbers, and regardless of
whether LS still desires that Mr. Xxxxx Xxxxxxx continue to act as agent for LS
for receipt of the demands, notices or other communications required or
permitted herein.
V. EFFECT OF BANKRUPTCY FILING
The parties hereby agree that, if (within one year after the date of
this Amended and Restated Agreement) LS institutes a voluntary bankruptcy
proceeding or has instituted against it an involuntary bankruptcy proceeding
that is not dismissed within 90 day after it is filed, then upon the delivery of
all unsold Additional Shares and Option Shares, LS shall owe Genesee an amount
equal to the difference between $97,125 minus the aggregate amount of proceeds
from any prior sales of the Additional Shares and Option Shares.
VI. MUTUAL RELEASES
With the exception of the obligations undertaken in this Agreement and
in the documents necessary to effectuate the transfer of the common shares to
Genesee, Genesee and Ultra (on the one hand) and LS and Xxxxxx (on the other
hand) hereby release and discharge the other from any and all claims, judgments,
demands or suits, known or unknown, fixed or contingent, liquidated or
unliquidated, whether or not asserted in the Litigation, as of this date,
arising from or relating to events and transactions which are the subject matter
to the Litigation. This Mutual Release runs to the benefit of all attorneys,
agents, employees, officers, directors, shareholders, parents, affiliates, and
partners of the parties. Genesee acknowledges that LS is not guaranteeing that
Genesee will receive any amount for the sale of the Additional Shares or Option
Shares.
VII. MISCELLANEOUS
7.1 Each party agrees that the terms of this settlement are to be held
confidential and not be disclosed to any third party unless the other party
hereto consents in writing or unless ordered to do so by a court of competent
jurisdiction or unless otherwise required by law.
7.2 Each signatory hereto warrants and represents that he has authority
to bind the party for whom that signature purports to act and that the claims,
suits, rights/or interests which are the subject matter hereto are owned by the
party asserting the same, have not been assigned, transferred or sold, and are
free of encumbrance. Genesee warrants and represents that it has succeeded to
the ownership of all claims, suits, rights/or interests that Ultra had or might
have had against LS with regard to the subject matter hereof.
7.3 This Agreement is made and performable Xxxxxx County, Texas and
shall be construed in accordance with the laws of the State of Texas as they
presently exist.
7.4 Each signatory to this settlement has entered into the same freely
without duress, having consulted with professionals of his/her choice.
7.5 The parties agree that this Agreement is made pursuant to
section 154.071 of the Civil Practice and Remedies Code and is not subject to
revocation.
7.6 This Agreement represents the entire agreement of the parties
hereto and may not be changed orally, but only in writing.
7.7 If any provision of this Agreement is declared to be void, invalid
or illegal by a court of competent jurisdiction, then the other provisions of
this Agreement shall be severed therefrom and shall remain in full force and
effect.
7.8 This Agreement may be executed in any number of counterparts
and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the undersigned have set their hands hereunto as of
the first date written above.
LS CAPITAL CORPORATION GENESEE HOLDINGS, INC., successor
in interest to GFL ULTRA FUND, LTD.
By:_________________________________ By:_________________________________
Xxxx X. Xxxxxx, President
Name:______________________________
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Xxxx X. Xxxxxx, Individually Title:______________________________
