EXHIBIT 10.2
AGREEMENT
This Agreement is made and entered into as of January 1, 1998, by and
among ATLANTIS PLASTICS, INC., a Florida corporation (the "COMPANY"), TRIVEST
II, INC., a Florida Corporation ("TRIVEST II"), XXXX X. XXXXXX ("XXXXXX") and
XXXXXXX X. XXXXXX, M.D. ("XXXXXX").
PRELIMINARY STATEMENTS:
A. Trivest II's affiliate, Trivest, Inc., a Delaware corporation
("TRIVEST"), and the Company were parties to that certain Fourth Amended and
Restated Management Agreement, dated as of October 19, 1992 (the "PRIOR
MANAGEMENT AGREEMENT").
B. The Prior Agreement terminated on December 31, 1997 and, in
connection with the transactions contemplated hereby, the Company and Trivest
have agreed to enter into that certain Management Agreement, of even date
herewith (the "NEW MANAGEMENT AGREEMENT"), pursuant to which the Company shall
continue to engage the services of Trivest on the terms and subject to the
conditions contained therein.
C. The Company and Xxxxxx were parties to a Second Amended and Restated
Employment Agreement, dated as of January 1, 1990, as amended, pursuant to which
Xxxxxx served as the Chairman of the Board of the Company (the "XXXXXX
EMPLOYMENT AGREEMENT").
D. The Company and Xxxxxx were parties to an Employment Agreement,
dated as of January 1, 1990, as amended, pursuant to which Xxxxxx served as the
Chairman of the Executive Committee of the Board of Directors of the Company
(the "XXXXXX EMPLOYMENT AGREEMENT").
E. The Xxxxxx Employment Agreement and the Xxxxxx Agreement terminated
on December 31, 1997.
F. The Company is a party to that certain Office Lease (commencement
date as of September 1, 1993), between the Company and SPP Real Estate (Grand
Bay), Inc. (the "LANDLORD") (as successor to Colony GBP Partners, L.P. and Grand
Bay Plaza Joint Venture), as amended (the "MIAMI LEASE"), pursuant to which the
Company is the lessee of office space presently occupied by Trivest II and its
affiliates (the "TRIVEST MIAMI OFFICE").
G. The Company is a party to that certain Sublease Agreement, dated as
of August 17, 1995, between the Company and Concept One International, Inc. (the
"SUBLEASE"), pursuant to which the Company has subleased a portion of the
Trivest Miami Office to Concept One International, Inc.
H. The Company has certain liabilities on its books related to the
Miami Lease, which liabilities aggregate, as of December 31, 1997, the sum of
$170,239 (the "BALANCE SHEET LEASE LIABILITIES").
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In consideration of the premises and the respective mutual agreements,
covenants, representations and warranties contained in this Agreement, the
parties agree as follows:
AGREEMENT:
1. ASSIGNMENT AND ASSUMPTION OF MIAMI LEASE. Effective as of January 1,
1998 (but subject in all respects to the consent of the Landlord), the Company
hereby assigns to Trivest II and Trivest II hereby assumes and agrees to perform
all of the terms, conditions, covenants and provisions contained in the Miami
Lease to be performed by the Company. Such assignment shall include, without
limitation, all of the Company's right, title and interest in and to all claims,
deposits, prepayments, refunds and other prepaid items relating to the Miami
Lease. Trivest II shall use reasonable commercial efforts to cause the Landlord
to enter into a consent to such assignment. If, in connection with any such
consent, the Landlord shall not consent to the unconditional discharge and
release of the Company from all of its obligations under the Miami Lease,
Trivest II hereby agrees to indemnify the Company from and against any
liability, loss, cost, actual or punitive damage, deficiency, demand, claim,
suit, action or cause of action, fine, penalty, cost or expense of any kind
whatsoever (including reasonable attorney's fees and costs) (collectively,
"Losses" and individually, a "Loss") the Company shall suffer as a result of any
breach of the terms or provisions of the Miami Lease by Trivest II arising after
the effective date of such consent to assignment (the "ASSIGNMENT EFFECTIVE
DATE").
2. ASSIGNMENT AND ASSUMPTION OF SUBLEASE. Effective as of January 1,
1998 (but subject in all respects to the consent of the Landlord to the
assignment of the Sublease as contemplated by Section 1 above), the Company
hereby assigns to Trivest II and Trivest II hereby assumes and agrees to perform
all of the terms, conditions, covenants and provisions contained in the Sublease
to be performed by the Company. Such assignment shall include, without
limitation, all of the Company's right, title and interest in and to all claims,
deposits, prepayments, refunds and other prepaid items relating to the Sublease.
If, in connection with any consent of the Landlord referred to in the
penultimate sentence of Section 1 above, the Landlord shall not consent to the
unconditional discharge and release of the Company from all of its obligations
under the Miami Lease, Trivest II hereby agrees to indemnify the Company from
and against any Losses the Company shall suffer as a result of any breach of the
terms or provisions of the Sublease by Trivest II arising after the Assignment
Effective Date.
3. TRANSFER OF FIXED ASSETS LOCATED AT TRIVEST MIAMI OFFICE; ASSUMPTION
OF BALANCE SHEET LEASE LIABILITIES. In consideration of the undertakings of
Trivest II set forth in Sections 1 and 2 above, the assumption by Trivest of the
Balance Sheet Lease Liabilities and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company hereby
sells, conveys, assigns, transfers, sets over and delivers to Trivest II,
effective as of January 1, 1998, all of its right, title and interest in and to
all supplies, equipment, furniture, fixtures, leasehold improvements, office
equipment, signs, artwork and all other tangible personal property located at
the Trivest Miami Office. Trivest hereby assumes the Balance Sheet Lease
Liabilities.
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4. CONTINUATION OF CERTAIN BENEFITS. The Company shall continue to
provide to Xxxxxx and to Xxxxxx the use of the leased automobiles provided by
the Company to them as of December 31, 1997, together with the operating
expenses thereof (e.g., insurance, license, repairs, fuel and oil), until the
leases of such automobiles expire.
5. FURTHER ASSURANCES. In the event that at any time after the date
hereof any further action is necessary to carry out the purposes of this
Agreement, each of the parties will take such further action (including the
execution and delivery of such further instruments and documents) as any other
party may reasonably request, all at the sole cost and expense of the requesting
party.
6. NO EXPANSION OF REMEDIES. Trivest II's assumption of any liabilities
and obligations under Sections 1 or 2 above shall in no way expand the rights or
remedies of third parties against Trivest II as compared to the rights and
remedies which such parties would have had against the Company had the
transactions contemplated by this Agreement not been consummated.
7. MISCELLANEOUS.
(a) NO THIRD-PARTY BENEFICIARIES. This Agreement shall not
confer any rights or remedies upon any person other than the parties and their
respective successors and assigns.
(b) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties and supersedes any prior understandings, agreements,
or representations by or among the parties, written or oral, to the extent they
related in any way to the subject matter hereof.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties named herein and their respective
successors and assigns.
(d) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(e) HEADINGS. The section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) NOTICES. All notices, requests, demands, claims and other
communications hereunder will be in writing. Any notice, request, demand, claim
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
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If to the Company:
Atlantis Plastics, Inc.
0000 Xxx Xxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: President
If to Trivest II, Xxxxxx or Xxxxxx:
Trivest, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Any party hereto may send any notice, request, demand, claim or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail or electronic mail), but no such notice,
request, demand, claim or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
party hereto may change the address to which notices, requests, demands, claims
and other communications hereunder are to be delivered by giving the other party
notice in the manner herein set forth.
(g) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Florida without
giving effect to any choice or conflict of law provision or rule (whether of the
State of Florida or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Florida.
(h) AMENDMENTS AND WAIVERS. No amendment of any provision of
this Agreement shall be valid unless the same shall be in writing and signed by
each of the parties hereto. No waiver by any party of any default hereunder,
whether intentional or not, shall be deemed to extend to any prior or subsequent
default hereunder or affect in any way any rights arising by virtue of any prior
or subsequent such occurrence.
(i) SEVERABILITY. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly exercised by their authorized representatives as of the date first above
written.
ATLANTIS PLASTICS, INC.
By: ____________________________
Xxxxxxx X. Xxxx
President and Chief Executive Officer
TRIVEST II, INC.
By: ____________________________
Xxxx X. Xxxxxx
President and Chief Executive Officer
__________________________________
XXXX X. XXXXXX
__________________________________
XXXXXXX X. XXXXXX, M.D.
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