EXHIBIT 10.2
AGREEMENT REGARDING
STOCK PURCHASE AND STOCK OPTIONS
THIS AGREEMENT REGARDING STOCK PURCHASE AND STOCK OPTIONS (this
"Agreement"), is dated as of June 27, 2001 by and between The Enstar Group,
Inc., a Georgia corporation ("Enstar"), and Xxxx Xxxx, an individual resident of
the State of New Jersey ("Executive").
W I T N E S S E T H:
WHEREAS, Executive is the President and Chief Operating Officer of
Enstar;
WHEREAS, Enstar has determined that it is in the best interest of
Enstar and its shareholders that Enstar sell to Executive (from Enstar's
treasury stock) 100,000 shares of Enstar common stock, par value $.01 per share
(the "Common Stock"), and that Enstar grant Executive a nonqualified option to
acquire 100,000 shares of Enstar Common Stock, subject to the terms and
conditions herein contained;
NOW, THEREFORE, in consideration of the premises and the promises and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
Section 1. Agreement to Sell Shares and Grant Options. Enstar agrees to
sell (from Enstar's treasury stock) 100,000 shares of Enstar Common Stock to
Executive and to grant Executive a non-qualified option to acquire 100,000
shares of Enstar Common Stock, subject to the following terms and conditions:
(a) On the terms and conditions herein below, Enstar
shall (i) sell 50,000 shares of Enstar Common Stock to Executive and
(ii) grant Executive a nonqualified option to acquire 50,000 shares of
Enstar Common Stock (the "River Thames Option") on the condition that
Enstar shall have closed the River Thames transaction on or before
December 31, 2001 substantially in accordance with the terms thereof as
previously presented to and approved by the Board of Directors of
Enstar. The purchase price for each of the 50,000 shares of Enstar
Common Stock to be sold pursuant to this Section 1(a) and the exercise
price of each share of Enstar Common Stock that may be acquired
pursuant to the River Thames Option shall be the price of Enstar's
Common Stock as of the close of business on the day preceding date of
the public announcement by Enstar of the execution of a letter of
intent or definitive agreement for the River Thames transaction (the
"River Thames Announcement Date"). The effective date of the grant of
the River Thames Option shall be
the day preceding the River Thames Announcement Date; however, the
grant of the River Thames Option is subject to the satisfaction of the
condition subsequent that the River Thames transaction be closed as
provided herein and satisfaction of the condition subsequent that
Executive purchase 50,000 shares of Enstar Common Stock in accordance
with the terms of Sections 1(a), 2(a) and 3(a) of this Agreement.
(b) On the terms and conditions herein below, Enstar shall (i)
sell 50,000 shares of Enstar Common Stock to Executive and (ii) grant Executive
a nonqualified option to acquire 50,000 shares of Enstar Common Stock (the
"Castlewood Option") on the condition that Enstar shall have closed the
Castlewood transaction on or before December 31, 2001 substantially in
accordance with the terms thereof as previously presented to and approved by the
Board of Directors of Enstar. The purchase price for each of the 50,000 shares
of Enstar Common Stock to be sold pursuant to this Section 1(b) and the exercise
price of each share of Enstar Common Stock that may be acquired pursuant to the
Castlewood Option shall be the price of Enstar's Common Stock as of the close of
business on the day preceding the date of the public announcement by Enstar of
the execution of a letter of intent or definitive agreement for the Castlewood
transaction (the "Castlewood Announcement Date"). The effective date of the
grant of the Castlewood Option shall be the date preceding the Castlewood
Announcement Date; however, the grant of the Castlewood Option is subject to
satisfaction of the condition subsequent that the Castlewood transaction be
closed as provided herein and satisfaction of the condition subsequent that
Executive purchase 50,000 shares of Enstar Common Stock in accordance with the
terms of Sections 1(b), 2(b) and 3(b) of this Agreement.
The 100,000 shares of Enstar Common Stock which may be purchased by Executive
under this Section 1 are sometimes referred to herein collectively as the
"Purchased Stock". Executive agrees to purchase the Purchased Stock and to
accept the River Thames Option and the Castlewood Option, subject to the terms
and conditions hereof.
Section 2. Closing.
(a) The closing of the purchase and sale of the 50,000
shares of Enstar Common Stock and the delivery of the River Thames
Option pursuant to Section 1(a) above shall take place at the offices
of Enstar no later than the 5th business day following the closing of
the River Thames transaction, or on such other date and at such other
time or place as the parties may agree.
(b) The closing of the purchase and sale of the 50,000
shares of Enstar Common Stock and the delivery of the Castlewood Option
pursuant to Section 1(b) above shall take place at the offices of
Enstar no later than the 5th business day following the closing of the
Castlewood transaction, or on such other date and at such other time or
place as the parties may agree.
Section 3. Deliveries by Buyer and Seller.
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(a) At the closing of the transactions contemplated in
Section 2(a) above:
Enstar shall deliver or cause to be delivered to Executive the
following:
(i) the stock certificate or certificates
representing 50,000 shares of Enstar Common
Stock registered in Executive's name;
(ii) a nonqualified stock option agreement
substantially in the form of the Exhibit "A"
attached hereto and made a part hereof (with
all banks therein appropriately completed),
duly executed by Enstar, representing the
River Thames Option;
and Executive shall deliver or cause to be delivered to Enstar
the following:
(i) the aforesaid stock option agreement
representing the River Thames Option, duly
executed by Executive; and
(ii) the full purchase price, in immediately
available funds, for the 50,000 shares of
Enstar Common Stock being purchased by
Executive.
(b) At the closing of the transactions contemplated in
Section 2(b) above:
Enstar will deliver or cause to be delivered to Executive the
following:
(i) the stock certificate or certificates
representing 50,000 shares of Enstar Common
Stock registered in Executive's name;
(ii) a nonqualified stock option agreement
substantially in the form of Exhibit "A"
attached hereto and made a part hereof (with
all blanks therein appropriately completed),
duly executed by Enstar, representing the
Castlewood Option;
and Executive shall deliver or cause to be delivered to
Enstar the following:
(i) the aforesaid stock option agreement
representing the Castlewood Option, duly
executed by Executive; and
(ii) the full purchase price, in immediately
available funds, for the 50,000 shares of
Enstar Common Stock being purchased by
Executive.
Section 4. Securities Laws Matters. The provisions of this
Section 4 relate to any Purchased Stock that Executive purchases under this
Agreement:
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(a) Executive represents and warrants that Executive is
acquiring the Purchased Stock for Executive's own account, to hold for
investment, with no present intention of dividing Executive's
participation with others or reselling or otherwise participating,
directly or indirectly, in a distribution of the Purchased Stock and
that Executive shall not make any sale of the Purchased Stock in
violation of any state securities laws, or in violation of the
Securities Act of 1933, as amended (the "Securities Act"), or the rules
and regulations promulgated thereunder by the United States Securities
and Exchange Commission.
(b) Executive has been advised that the Purchased Stock
is not being registered under any state securities laws, and are not
being registered under the Securities Act in reliance upon certain
exemptive provisions of said Acts.
(c) Executive agrees that the Enstar may refuse to permit
Executive to sell, transfer or dispose of the Purchased Stock unless
there is in effect a registration statement under the Securities Act
and any applicable state securities laws or Executive furnishes an
opinion of counsel, satisfactory to counsel for the Enstar, to the
effect that such registration is not required.
(d) Executive understands and agrees that there may be
placed on the stock certificates representing such Purchased Stock a
legend stating in substance:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ISSUED AND SOLD
WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE, IN RELIANCE
UPON CERTAIN EXEMPTIVE PROVISIONS OF SAID ACTS. SAID SHARES CANNOT BE
SOLD OR TRANSFERRED EXCEPT IF SUCH SALE OR TRANSFER WOULD BE: (1)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION; AND (2) IN A
TRANSACTION WHICH IS EXEMPT UNDER APPLICABLE STATE SECURITIES LAWS, OR
PURSUANT TO EFFECTIVE REGISTRATION STATEMENTS UNDER SUCH LAWS, OR IN A
TRANSACTION WHICH IS OTHERWISE IN COMPLIANCE WITH SUCH LAWS.
Executive understands and agrees that other legends required under applicable
securities laws also may be placed on such certificates.
(e) Executive is an "accredited investor" as defined by
Rule 501(a) of Regulation D promulgated under the Securities Act in
that Executive is both an executive officer of Enstar and has a net
worth in excess of $1,000,000.
(f) Executive has received no general or public
solicitation or any advertisement concerning an offer to sell the
Purchased Stock.
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Section 5. Mutual Covenants. The parties mutually represent and
warrant to each other that the sale of the 50,000 shares of Enstar Common Stock
and delivery of the River Thames Option pursuant to Section 1(a) hereof are
interrelated and each aspect of such transaction is conditioned upon the
consummation of both transactions - that is, Enstar shall not be obligated to
deliver the River Thames Option to Executive if Executive should, for any
reason, default in his obligations to purchase the 50,000 shares of Enstar
Common Stock pursuant to Section 1(a) hereof. Likewise, the parties mutually
represent and warrant to each other that the sale of the 50,000 shares of Enstar
Common Stock and the delivery of Castlewood Option pursuant to Section 1(b)
hereof are interrelated and each aspect of such transaction is conditioned upon
the consummation of both transactions - that is, Enstar shall not be obligated
to deliver the Castlewood Option to Executive if Executive should, for any
reason, default in his obligations to purchase the 50,000 shares of Enstar
Common Stock pursuant to Section 1(b) hereof.
Section 6. Miscellaneous.
(a) Each Party shall pay bear its own fees, costs and
expenses incurred in connection with the negotiation of this Agreement
and the matters contemplated hereby.
(b) This Agreement shall be binding upon, and shall inure
to the benefit of, the parties hereto and their respective successors
and permitted assigns. Neither this Agreement, nor any of the rights,
interest or obligations hereunder, shall be assigned, directly or
indirectly, including, without limitation, by operation of law, by any
party hereto without their prior written consent of the other party
hereto.
(c) The provisions this Agreement shall be construed in
accordance with and governed by the laws of the State of Georgia
(regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws).
(d) This Agreement, and the other documents referred to
herein or delivered pursuant hereto which form a part hereof,
constitute the entire agreement between the parties with respect to the
subject matter hereof and supercede all other prior agreements and
understanding, both written and oral, between the parties with respect
to the subject matter hereof.
(e) This Agreement may be amended, modified, or
supplemented at any time by written agreement of Enstar and Executive.
(f) This Agreement may be executed in several
counterparts, each of which when fully executed shall be an original,
and all such counterparts taken together shall be deemed to constitute
one and the same agreement. Delivery of any signature page via telecopy
or other electronic facsimile transmission shall be deemed equivalent
to physical delivery of the original signature page. Any signature page
of any counterpart hereof, whether bearing an
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original signature or an electronic facsimile transmission of a
signature, may be appended to any other counterpart hereof to form a
completely executed counterpart hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
The Enstar Group, Inc.: Executive:
By:
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Title: Xxxx Xxxx
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