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EXHIBIT 10.51
CONTINGENT STOCK ISSUANCE AGREEMENT
by and between
NHP INCORPORATED
and
PROPERTY RESOURCES CORPORATION
January 6, 1987
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CONTINGENT STOCK ISSUANCE AGREEMENT
TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS 1
ARTICLE II
ISSUANCE OF SHARES 4
2.1 ISSUANCE OF SHARES 4
2.2 SELECTION BY SELECTION AGENT 4
2.3 PERFORMANCE EVALUATION 4
ARTICLE III
REPRESENTATIONS AND WARRANTIES CONCERNING SELECTION AGENT 5
3.1 ORGANIZATION; STANDING AND POWER 5
3.2 AUTHORITY; NONCONTRAVENTION 5
3.3 LITIGATION 6
ARTICLE IV
REPRESENTATIONS AND WARRANTIESCONCERNING ISSUER 6
4.1 DELIVERY OF GOOD TITLE 6
4.2 ORGANIZATION; STANDING AND POWER 6
4.3 AUTHORITY; NONCONTRAVENTION 7
4.4 APPROVALS 7
4.5 LITIGATION 7
ARTICLE V
CONDITIONS TO THE OBLIGATIONS OF ISSUER 7
5.1 ATTAINING PERFORMANCE GOALS 7
5.2 RESTRAINTS OR PROHIBITIONS 8
5.3 COMPLIANCE WITH COVENANTS 8
5.4 APPROVALS 8
5.5 ABSENCE OF DEFAULT 8
5.6 ISSUANCE TO VESTED EMPLOYEES 8
5.7 APPROVALS 8
5.8 INVESTMENT 8
5.9 EXPERIENCE 8
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PAGE
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ARTICLE VI
OTHER COVENANTS 9
6.1 REASONABLE EFFORTS AND CERTAIN OBLIGATIONS 9
6.2 SECURITIES AND EXCHANGE COMMISSION REPORTS 9
6.3 OTHER COVENANTS 9
6.4 RESERVATION 9
6.5 INTERPLEADER OF NHPI SHARES 9
ARTICLE VII
REPRESENTATIONS AND WARRANTIES 10
7.1 REPRESENTATIONS AND WARRANTIES 10
7.2 SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS
AND AGREEMENTS 10
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER 10
8.1 TERMINATION 10
8.2 EFFECT OF TERMINATION 10
ARTICLE IX
REGISTRATION RIGHTS 10
9.1 INCIDENTAL REGISTRATION 10
9.2 CERTAIN PROCEDURES 11
9.3 SPECIFIC PERFORMANCE 12
ARTICLE X
MISCELLANEOUS 12
10.1 EXPENSES 12
10.2 SUCCESSORS AND ASSIGNS 12
10.3 NOTICES 12
10.4 BROKERS 13
10.5 ENTIRE AGREEMENT 13
10.6 AMENDMENTS AND WAIVERS 13
10.7 NO THIRD PARTY BENEFICIARIES 14
10.8 COUNTERPARTS 14
10.9 HEADINGS 14
10.10 SEVERABILITY 14
10.11 GOVERNING LAW; JURISDICTION 14
10.12 ARBITRATION 14
10.13 RECITALS, SCHEDULES AND ANNEXES 15
10.14 CONSTRUCTION 15
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CONTINGENT STOCK ISSUANCE AGREEMENT
THIS CONTINGENT STOCK ISSUANCE AGREEMENT (this "Agreement") is made and
entered into as of January 6, 1987 by and between NHP INCORPORATED, a Delaware
corporation (the "Issuer"), and PROPERTY RESOURCES CORPORATION, a New York
corporation (the "Selection Agent").
RECITALS
WHEREAS, Selection Agent and Issuer have entered into the "Joint Ventures"
(as hereinafter defined), in accordance with the terms of certain operating
agreements executed by both affiliates of Issuer and Selection Agent; and
WHEREAS, Issuer, in order to induce the optimal financial performance of
the Joint Ventures has agreed that upon the Joint Ventures meeting certain
"Performance Goals" (as hereinafter defined), Issuer will make an "Issuance" (as
hereinafter defined) to certain "Recipients" designated by the Selection Agent
upon and subject to the terms hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the representations,
warranties and agreements herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged and
agreed to, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in and for all purposes of this Agreement, unless otherwise
indicated, each of the following terms shall have the respective meanings set
forth below.
"Approvals" shall mean any approvals, authorizations, qualifications,
designations, declarations, consents, licenses, franchises, orders and other
permits of, notices to, and registrations or filings with, legal, judicial,
governmental, quasi-governmental or regulatory authorities, agencies or other
entities, whether federal, state or local, domestic or foreign or any other
Person.
"Common Stock" shall mean the Issuer's Common Stock, par value $.01 per
share or any securities issued in exchange or substitution for such common
stock.
"EBITDA" shall mean for any period, the excess of (a) the sum of (i) net
income, and (ii) to the extent included in net income, depreciation,
amortization, interest expense, and taxes, over (b) to the extent included in
net income, interest income, it being understood and agreed that the components
of EBITDA, shall be calculated in accordance with "GAAP" (as hereinafter
defined).
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"Expenses" shall mean the fees, costs and other expenses, including
attorney's, auditor's, broker's, or finder's fees and commissions, incurred by a
party hereto in connection with the transactions contemplated hereby, whether or
not such transactions are actually consummated.
"Fair Market Value" shall mean, on any date specified herein the price
obtained by taking the arithmetic mean over a period of twenty (20) consecutive
"Trading Days" (hereinafter defined) of the closing price on each such Trading
Day, or if no sale took place during a Trading Day, the average of the closing
bid and closing asked prices during such Trading Day, ending the second Trading
Day prior to such date: (a) if the NHPI Shares are listed or admitted to
trading on any national securities exchange, as officially reported on all
national securities exchanges on which such class of securities are then listed
or admitted to trading, (b) if the NHPI Shares are not then listed or admitted
to trading on any national securities exchange, as shown by the NASDAQ National
Market System, or (c) if the NHPI Shares are not then quoted in such system, as
published by the National Quotation Bureau, Incorporated or any similar
successor organization, then, as reported by any member firm of the New York
Stock Exchange selected by Issuer. If the NHPI Shares are not then listed or
admitted to trading on any national securities exchange and if no closing bid
and asked prices thereof are then so quoted or published in the over-the-counter
market, "Fair Market Value" shall mean the fair value per share of NHPI Shares,
as determined on a fully diluted basis in good faith by an independent
securities brokerage firm or Standard & Poor's Corporation (as selected by
Issuer), as of a date which is fifteen (15) days preceding the date as of which
the determination is to be made and in such an event, any and all costs of such
valuation shall be equally shared by Issuer and Recipients (with the Recipients'
share of the costs being deducted from the Issuance).
"GAAP" shall mean generally accepted accounting principles as in effect in
the United States of America, applied on a consistent basis.
"Issuance" shall have the meaning set forth in Section 2.1.
"Issuer" shall mean NHP Incorporated, a Delaware corporation.
"Issuing Date" shall mean thirty (30) days after receipt of the audited
financial reports of the Joint Ventures by the Issuer in each of the second and
the fourth full calendar years after the execution date hereof .
"Joint Ventures" shall mean Aptek Maintenance Services LLC, the
maintenance joint venture entered into by and between an affiliate of Issuer and
Selection Agent, and Aptek Management Company LLC, the third-party management
joint venture entered into by and between an affiliate of Issuer and Selection
Agent.
"Legal Requirements" shall mean any federal, state, county, local or
foreign statute, law, rule, regulation, ordinance, code, handbook, written
policy, rule of common law, order, decree, judgment or other legal, judicial,
regulatory, governmental or quasi-governmental requirement.
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"Liabilities" shall mean any liabilities or obligations, direct or
indirect, whether accrued, absolute, contingent or otherwise.
"Lien" shall mean all liens (including judgment and mechanics' liens,
regardless of whether liquidated), mortgages, assessments, security interests,
easements, claims, pledges, trusts (constructive or other), deeds of trust,
options or other charges, encumbrances or restrictions.
"NHPI Shares" shall mean the number of shares of Common Stock of Issuer,
as set forth on Schedule A, attached hereto and incorporated herein, issuable to
Recipient in accordance with this Agreement, subject to adjustment as may be
provided herein.
"Person" shall mean all natural persons, corporations, business trusts,
associations, companies, partnerships, joint ventures, governmental entities and
any other entities or third parties.
"Prime Rate" shall mean the prime rate of interest published in the "Money
Rates" section of the WALL STREET JOURNAL as the base rate of interest on
corporate loans posted by the nation's largest banks; which rate shall be
adjusted as and when any changes in the WALL STREET JOURNAL's prime rate occurs,
or if such rate is no longer published, then the prime rate or an equivalent
announced from time to time by the Bank of Boston (or its successors).
"Recipient" shall mean the individuals selected by the "Selection Agent"
(hereinafter defined), in accordance with Section 2.2 hereof, to receive the
NHPI Shares, subject to Article V hereof.
"Representations and Warranties" shall mean the representations and
warranties set forth in Articles III and IV hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Selection Agent" shall mean Property Resources Corporation, a New York
corporation.
"Trading Day" shall mean any day on which the principal national
securities exchange or market on which shares of the Issuer's Common Stock are
listed or admitted to trading is open for the transaction of business.
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ARTICLE II
ISSUANCE OF SHARES
2.1 ISSUANCE OF SHARES. Upon the terms and subject to the conditions
of this Agreement, in the event that the actual, aggregate performance of the
Joint Ventures reaches the earning goals more specifically set forth on SCHEDULE
A, attached hereto and incorporated herein (the "Performance Goals"), Issuer
will, in Issuer's sole and absolute discretion, on the Issuing Date, either (a)
issue to the Recipients the corresponding number of duly authorized, validly
issued, fully paid and nonassessable NHPI Shares for each of the Performance
Goals, also set forth on SCHEDULE A, free and clear of all Liens, other than
restrictions on transfer of a general nature arising under federal and state
securities laws, together with a registration rights agreement with each of the
Recipients, the sole material contents of which shall be the contents of Article
IX or as otherwise may be required by any applicable Legal Requirements; or (b)
pay Recipients the Fair Market Value of such NHPI Shares as of such date (an
"Issuance"). Issuer will make election of either option (a) or (b) above no
later than ten (10) days after Issuer's receipt of the applicable audited
financial reports of the Joint Ventures. In the event that Issuer elects to
exercise option (b), Issuer shall make such payment(s) to Recipient within
twenty (20) days of Issuer's receipt of the applicable audited financial
reports.
2.2 SELECTION BY SELECTION AGENT. Prior to each Issuing Date,
Selection Agent shall select senior level employees of the Joint Ventures or the
Selection Agent (provided that any such employees of Selection Agent have or
have had material involvement in and responsibilities for the Joint Ventures) to
be eligible to receive all or a portion of the Issuance issuable on such Issuing
Date; provided, however, that ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ shall not be selected
to receive more than fifty percent (50%) of any Issuance, and provided further
that no such employees shall be deemed to be third-party beneficiaries under
this Agreement.
2.3 PERFORMANCE EVALUATION.
(a) As soon as reasonably practical after the end of each of the
calendar years ending December 31, 1998 and December 31, 2000, but in no event
more than ninety (90) days after the end of each such year, Issuer shall prepare
and deliver to Selection Agent (i) a computation of EBITDA (computed in
accordance with the definition of EBITDA as set forth herein), for such year and
the amount thereof attributable to the Issuer's ownership of membership
interests in each of the Joint Ventures; and (ii) a statement setting forth the
Issuance, if any, to be made in accordance with this Section 2.1 (collectively,
the "EBITDA Computation"). The EBITDA Computation shall be accompanied by a
certificate of an officer of Issuer certifying that such EBITDA Computation is
true and correct and has been prepared in accordance with the terms of this
Agreement.
(b) Within thirty (30) Business Days after receipt of the EBITDA
Computation, Selection Agent may deliver written notice of its objection, if any
(the "Objection Notice"),
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to Issuer: (i) objecting in good faith to the contents thereof, (ii) setting
forth the items being disputed and the reasons therefor, and (iii) specifying
Selection Agent's calculations thereof.
(c) For thirty (30) days after delivery of the Objection Notice,
Selection Agent and Issuer shall use their commercially reasonable efforts to
resolve all disputes between them regarding the EBITDA Computation and number of
NHPI Shares to be issued to the Recipients. If Selection Agent and Issuer
cannot resolve all such disputes within such thirty (30) day period, the matters
in dispute shall be determined by a nationally recognized independent public
accounting firm (the "Arbiter") mutually satisfactory to Selection Agent and
Issuer. Should Selection Agent and Issuer fail to agree on the identity of the
Arbiter within an additional ten (10) day period, the Arbiter shall be selected
by Issuer's independent public accountants and Selection Agent's independent
public accountants, and such Arbiter shall be a nationally recognized accounting
firm with no material relationship with Selection Agent, Issuer or their
respective affiliates, or a partner or member of such a firm. Promptly, but not
later than thirty (30) days after the acceptance of its appointment, the Arbiter
shall determine (based solely on presentations by Issuer and Selection Agent to
the Arbiter and not by independent review) only those items in dispute and shall
render a report as to its resolution of such items and the resulting calculation
of the number of NHPI Shares to be issued to the Recipients, if any. In
resolving any disputed item, the Arbiter may not assign a value to such item
greater than the greatest value for such item claimed by either party or less
than the lowest value for such item claimed by either party. Selection Agent
and Issuer shall cooperate with the Arbiter in making its determination and such
determination shall be conclusive and binding upon Selection Agent and Issuer.
(d) The party against whom the Arbiter finds shall pay all the
fees and expenses of the Arbiter, except as otherwise determined by the Arbiter.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
CONCERNING SELECTION AGENT
Selection Agent hereby represents and warrants to Issuer as follows:
3.1 ORGANIZATION; STANDING AND POWER. Selection Agent is a corporation
duly organized, validly existing and in good standing under the laws of the
State of New York. Selection Agent has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted and to execute, deliver and perform its obligations under
this Agreement.
3.2 AUTHORITY; NONCONTRAVENTION. The execution, delivery, and
performance by Selection Agent of this Agreement, and the consummation by
Selection Agent of the transactions
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contemplated hereby, have been duly authorized by all necessary corporate
action. This Agreement has been duly executed and delivered by Selection Agent
and constitutes a legal, valid and binding obligation of Selection Agent,
enforceable in accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws of
general application that may affect the enforcement of creditors' rights
generally and by general equitable principles. The execution, delivery, and
performance of this Agreement, and the consummation of the transactions
contemplated hereby, will not violate any Legal Requirements applicable to
Selection Agent and will not conflict with or result in any breach of any of the
terms, conditions, or provisions of, or violate or constitute a default under
(with or without notice or passage of time or both) or otherwise give any Person
a basis for accelerated or increased rights of termination or nonperformance
under, or require a consent or waiver under, its Certificate of Incorporation or
By-Laws (each as amended to date and presently in effect) or any material
indenture, lease, agreement, Lien or other instrument or arrangement to which
Selection Agent is a party or by which it or any of its properties is bound or
affected.
3.3 LITIGATION. There is no action, suit, arbitration or proceeding,
or judicial, governmental or regulatory inquiry or investigation pending, or, to
the best knowledge of Selection Agent, after diligent inquiry, any basis
therefor or threat thereof, against Selection Agent, that questions the validity
of this Agreement or which may otherwise prevent or delay the consummation of
the transactions contemplated hereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
CONCERNING ISSUER
Issuer represents and warrants to Selection Agent as follows:
4.1 DELIVERY OF GOOD TITLE. Upon delivery of the NHPI Shares to be
issued by Issuer hereunder upon satisfaction of the Performance Goals and the
other conditions set forth in this Agreement, Recipient will have good and
marketable title to such NHPI Shares at Issuance, free and clear of all Liens,
other than restrictions on transfer of a general nature arising under federal
and state securities laws. Upon such Issuance, such NHPI Shares shall be duly
authorized, validly issued, fully paid and nonassessable, with no Liability
attaching to the ownership thereof.
4.2 ORGANIZATION; STANDING AND POWER. Issuer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Issuer has all requisite power and authority to own, lease and
operate its properties and to carry on its business as now being conducted, and
to execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby.
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4.3 AUTHORITY; NONCONTRAVENTION. The execution, delivery, and
performance by Issuer of this Agreement, and the consummation by Issuer of the
transactions contemplated hereby, have been duly authorized by all necessary
corporate action. This Agreement has been duly executed and delivered by Issuer
and constitutes a legal, valid and binding obligation of Issuer, enforceable in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws of general
application that may affect the enforcement of creditors' rights generally and
by general equitable principles. The execution and performance of the
transactions contemplated by this Agreement and compliance with their provisions
by Issuer will not violate any Legal Requirement applicable to Issuer and will
not conflict with or result in any breach of any of the terms, conditions, or
provisions of, or violate or constitute a default under (with or without notice
or passage of time or both) or otherwise give any Person a basis for accelerated
or increased rights of termination or nonperformance under, or require a consent
or waiver under, its Certificate of Incorporation or By- Laws (each as amended
to date and presently in effect) or any material indenture, lease, agreement,
Lien or other instrument or arrangement to which Issuer is a party or by which
it or any of its properties is bound or affected.
4.4 APPROVALS. No Approval is required on the part of Issuer in
connection with the execution and delivery of this Agreement, or the Issuance of
the NHPI Shares, except such as are required under applicable federal and state
securities laws which, if necessary, will be obtained by Issuer prior to the
Issuance.
4.5 LITIGATION. There is no action, suit, or proceeding, or, to the
best of Issuer's knowledge, governmental inquiry or investigation, pending, or
any basis therefor or threat thereof, against Issuer, that questions the
validity of this Agreement or the right of Issuer to enter into or perform its
obligations under this Agreement in any material respect, nor, to the best of
Issuer's knowledge, is there any litigation pending, or any basis therefor or
threat thereof, against Issuer by reason of the past employment relationships of
any of Issuer's employees, the proposed activities of Issuer, or negotiations by
Issuer with possible investors in Issuer which questions the validity of this
Agreement or the right of Issuer to enter into or perform its obligations
hereunder in any material respect. There is no outstanding judgment, order,
decree, stipulation, or injunction of any governmental entity against or
materially affecting Issuer or its assets or its business or any of its
officers, directors, or employees with respect to Issuer's business.
ARTICLE V
CONDITIONS TO THE OBLIGATIONS OF ISSUER
The obligations of Issuer to consummate any Issuance are subject to the
fulfillment, or the waiver by Issuer, of each of the following conditions on or
before each Issuing Date:
5.1 ATTAINING PERFORMANCE GOALS. The Joint Ventures shall have met or
exceeded the Performance Goals as set forth herein and within the time periods
set forth herein.
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5.2 RESTRAINTS OR PROHIBITIONS. There shall not be instituted and
pending or, in the reasonable judgment of Issuer threatened any action or
proceeding by or before any judicial, governmental or regulatory entity
challenging the Issuance or otherwise seeking to restrain or prohibit the
consummation of the transactions contemplated hereby.
5.3 COMPLIANCE WITH COVENANTS. The Recipient satisfies the
qualifications set forth in Section 2.2 hereof.
5.4 APPROVALS. All Approvals required to be obtained by Recipient
necessary for the consummation of the Issuance and the other transactions
contemplated hereby, shall have been obtained and shall be in full force and
effect.
5.5 ABSENCE OF DEFAULT. Recipient shall not be in material default
under any obligations to Issuer (or any affiliate or subsidiary of Issuer),
subject to any applicable grace or cure period.
5.6 ISSUANCE TO VESTED EMPLOYEES. Notwithstanding anything to the
contrary set forth in this Article V, in the event that any employee of
Recipient, OTHER THAN ▇▇▇▇ ▇▇▇▇▇▇▇ and/or ▇▇▇▇▇ ▇▇▇▇▇, has been a Recipient with
respect to all or a portion of Recipient's rights to receive an Issuance of
Common Stock for a period of six (6) months or more (a "Vested Employee"), such
Vested Employee shall not be denied any rights such Vested Employee would
otherwise have been entitled to concerning an Issuance hereunder as a result of
the occurrence of a default, as set forth in Section 5.5 hereof.
5.7 APPROVALS. No Approval is required on the part of the specific
Recipient in connection with the execution, delivery and performance of this
Agreement, or the receipt of the NHPI Shares.
5.8 INVESTMENT. Recipient shall represent and warrant to NHP that:
Recipient understands that the Issuance of the NHPI Shares is intended to be
exempt from registration under the Securities Act pursuant to Section 4(2)
thereof and, accordingly, that the NHPI Shares shall be or have been issued
without registration under the Securities Act or the securities laws of any
jurisdiction; that the resale or transfer of such NHPI Shares are restricted by
federal and state securities laws; and Recipient is acquiring the NHPI Shares
for its own account for investment and not with a view to, or for sale in
connection with, any distribution thereof, nor with any present intention of
distributing the same in violation of federal or state securities laws, unless
the Issuance of such NHPI Shares is subsequently registered under the Securities
Act and all applicable securities laws of the states of the United States of
America or an exemption from such registration is available and that Recipient
shall bear the economic risk of the investment in the NHPI Shares.
5.9 EXPERIENCE. Recipient shall represent and warrant to NHP that
Recipient has carefully reviewed the representations concerning Issuer
contained in this Agreement and has made detailed inquiry concerning Issuer, its
business, and its personnel. Recipient shall acknowledge that, to the extent
permitted by applicable Legal Requirements, the officers of Issuer have made
available
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to Recipient any and all written information that Recipient has reasonably
requested and have answered to Recipient's satisfaction all inquiries made by
Recipient.
ARTICLE VI
OTHER COVENANTS
6.1 REASONABLE EFFORTS AND CERTAIN OBLIGATIONS. Subject to the terms
and conditions herein provided, each of the parties hereto agrees to use its
reasonable efforts to take, or cause to be taken, all action, and to do, or
cause to be done, all things necessary, proper, or advisable under applicable
Legal Requirements to fulfill its obligations under this Agreement, to cause the
fulfillment of the conditions set forth in Sections 5.2 - 5.8, excluding only
with respect to Recipients other than ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇, Sections
5.4, 5.5 and 5.8 and to cause the consummation of the transactions contemplated
hereby in accordance with the terms and conditions hereof.
6.2 SECURITIES AND EXCHANGE COMMISSION REPORTS. The Issuer shall
furnish Selection Agent, upon Selection Agent's reasonable, specific request,
with a copy of any Form 10Ks, 8Ks, 10Qs, and any successor forms made by Issuer
with the United States Securities and Exchange Commission within a reasonable
period of time after the filing of such report, unless such report is accorded
confidential treatment pursuant to applicable Legal Requirements.
6.3 OTHER COVENANTS. The Issuer will be liable to Selection Agent to
the extent to which any amendment of its certificate of incorporation or any
consolidation, merger, reorganization, transfer of assets, dissolution, issue or
sale of securities or any other voluntary action, avoids the observance or
performance of any of the material terms of this Agreement for actual, but not
consequential, damages. For purposes of enforcing this Agreement, and computing
damages hereunder, Selection Agent shall be deemed to be the Recipient. Without
limiting the generality of the foregoing, Issuer (i) will comply with the anti-
dilution provisions of Schedule B hereto, and (ii) will take all such action as
may be necessary or appropriate in order that Issuer may validly and legally
issue fully paid and nonassessable NHPI Shares upon an Issuance.
6.4 RESERVATION. The Issuer shall at all times reserve and keep
available out of its authorized but unissued Common Stock the full number of
shares of Common Stock deliverable upon an Issuance.
6.5 INTERPLEADER OF NHPI SHARES. If the Issuer does not make an
Issuance due to any instituted and pending or threatened action or proceeding by
or before any judicial governmental or regulatory entity challenging the
issuance of the NHPI Shares or otherwise seeking to restrain or prohibit the
Issuance or solely pursuant to the failure of the conditions set forth in
Section 5.2, the Issuer may deposit such Issuance (or portion thereof) into any
court having jurisdiction in Fairfax County, Virginia, over an appropriate
interpleader proceeding instituted by the Issuer, whereupon the Issuer shall,
unless the court otherwise directs, have no further obligations with respect
thereto.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1 REPRESENTATIONS AND WARRANTIES. Each of the Representations and
Warranties of the parties hereto shall be deemed to have been made as of the
date hereof and other than those set forth in Sections 3.3 and 4.5, as of the
date of each Issuance.
7.2 SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS.
The representations, warranties, covenants and agreements of the parties hereto
contained in this Agreement, or in any document delivered pursuant to the
provisions of, or in connection with, this Agreement shall survive the making of
this Agreement, any examination made by or on behalf of the parties hereto and
the Issuance hereunder.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
8.1 TERMINATION. This Agreement may be terminated at any time by
mutual consent of Issuer and Selection Agent.
8.2 EFFECT OF TERMINATION. Upon termination of this Agreement as
provided in Section 8.1, this Agreement shall forthwith become void and there
shall be no liability or obligation on the part of any party hereto or their
respective directors, officers, employees, agents or other representatives.
ARTICLE IX
REGISTRATION RIGHTS
9.1 INCIDENTAL REGISTRATION.
(a) If at any time or times after the Issuance until the expiration
of two years after the Issuance, Issuer intends to file a registration statement
on Form ▇-▇, ▇-▇ or S-3 (or other appropriate form) for the registration of an
offering of Common Stock, Issuer shall notify each of the holders of record of
NHPI Shares at least thirty (30) days prior to each such filing of Issuer's
intention to file such a registration statement, such notice shall state the
number of shares of Common Stock proposed to be registered thereby. If any
holder of NHPI Shares notifies Issuer within ten (10) days after receipt of such
notice from Issuer of its desire to have included in such registration statement
any of its Common Stock (collectively, the "Registrable Securities"), then,
subject to this Article IX, Issuer shall include such shares in such
registration statement. Issuer shall
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pay all expenses required to be disclosed in Item 13 of Part II of the Form S-1
registration statement, or in a comparable section of any similar form
permitting an underwritten public offering, excluding (i) the expenses of
underwriters customarily reimbursed by selling stockholders and the fees and
expenses of counsel and any stockholders, (ii) the fees and expenses of counsel
and any other advisor retained by holders of Registrable Securities not to
exceed Fifteen Thousand Dollars ($15,000) for all registration statements, and
(iii) all underwriting fees, discounts and commissions and transfer taxes.
(b) If Issuer may in its discretion withdraw or suspend the
effectiveness of any registration statement without liability to the holders of
Registrable Securities.
(c) In the event that the managing underwriter for any such
offering notifies Issuer that, in good faith, it is able to proceed with the
proposed offering only with respect to a smaller number (the "Maximum Number")
of securities and Registrable Securities than the total number of Registrable
Securities proposed to be offered by such holders and securities proposed to be
offered by Issuer and all others entitled to registration rights under such
registration statement, Issuer shall include in such registration (i) first, the
securities the Issuer proposes to sell (except in the case of an underwritten
secondary registration) and, if such registration includes an underwritten
secondary registration on behalf of holders of Issuer's securities exercising
demand registration rights, the securities requested to be included therein by
such holders requesting such registration, in such proportions as Issuer shall
determine, and (ii) second, the number (if any) of other securities of Issuer
(including, without limitation, Registrable Securities) entitled to registration
rights under such registration statement (excluding in the case of an
underwritten secondary registration, securities proposed to be registered by
Issuer) (and if the inclusion of such securities would exceed the Maximum
Number, all holders of Common Stock entitled to registration rights under such
registration statement shall share pro rata in the number of shares of Common
Stock included in such underwritten public offering on the basis of the number
of shares of Common Stock entitled to be included therein).
9.2 CERTAIN PROCEDURES.
(a) Each holder of Registrable Securities wishing to have its
Registrable Securities included in a registration statement shall execute and
deliver with underwriters for the offering covered by any such registration
statement, an underwriting agreement in form and substance customarily executed
for public offerings of common stock. Issuer and each holder of Registrable
Securities having its Registrable Securities included in a registration
statement shall execute and deliver an indemnification agreement in form and
substance customarily executed for public offerings of common stock.
(b) To the extent requested by the managing underwriter in respect
of an offering of securities of Issuer described in this Article IX, each holder
of Registrable Securities and Issuer shall agree to refrain from selling or
offering to sell any securities of Issuer within 120 days after the effective
date of any registration statement whether or not Registrable Securities are
included therein.
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9.3 SPECIFIC PERFORMANCE. Without limited or waiving in any respect
any rights or remedies of the parties hereto under this Agreement now or
hereinafter existing at law or in equity or by statute, Issuer agrees that
damages for breach are an inadequate remedy for loss suffered by reason of
breach of this Article IX and that the Selection Agent shall be entitled to seek
specific performance of the obligations to be performed by the Issuer in
accordance with the provisions of this Article IX.
ARTICLE X
MISCELLANEOUS
10.1 EXPENSES. Each party hereto shall pay its own Expenses, including,
but not limited to legal and accounting Expenses.
10.2 SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by
Issuer or Selection Agent without the prior written consent of the other party
hereto. The provisions of this Agreement shall be binding upon, and inure to
the benefit of, the respective successors, permitted assigns and legal
representatives of the parties hereto.
10.3 NOTICES. All notices and other communications hereunder shall be
in writing (including telex or similar writing) and shall be deemed given (a)
when delivered personally to the recipient, (b) when sent to the recipient by
telecopy (with receipt electronically confirmed by sender's machine) if prior
to 6 p.m. (Eastern Time) on a Business Day, otherwise on the next Business Day,
or (c) one (1) Business Day after the date sent to the recipient by reputable
express courier service (charges prepaid) to the parties at the following
addresses or telecopier numbers (or at such other address, or telecopy number
for a party as shall be specified by like notice):
(a) if to Selection Agent, to:
Property Resources Corporation
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
One Citicorp Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to Issuer, to:
NHP Incorporated
Fairfax Square
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Executive Vice
President
and a copy to ▇▇▇▇ ▇▇▇▇▇▇, Esquire, General
Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ & Berlin, Chartered
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esquire
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
10.4 BROKERS. Each of Selection Agent and Issuer (i) represents and
warrants to the other party hereto that it has retained no finder or broker in
connection with the transactions contemplated by this Agreement for which the
other will be liable to pay a fee or commission, and (ii) will indemnify and
save the other party harmless from and against any and all claims, liabilities
or obligations with respect to brokerage or finders' fees or commissions, or
consulting fees in connection with the transactions contemplated by this
Agreement asserted by any Person on the basis of any statement or representation
alleged to have been made by such indemnifying party.
10.5 ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior or contemporaneous agreements and
understandings, written or oral, relating to such subject matter.
10.6 AMENDMENTS AND WAIVERS. Except as otherwise expressly set forth in
this Agreement, any term of this Agreement may only be amended and the
observance of any term of this Agreement may only be waived (either generally or
in a particular instance and either retroactively or
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prospectively), with the express prior written consent of Selection Agent and
Issuer. No failure to exercise and no delay in exercising any right, power or
privilege shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege preclude the exercise of any other
right, power or privilege. No waiver of any breach of any covenant or agreement
hereunder shall be deemed a waiver of any preceding or subsequent breach of the
same or any other covenant or agreement. The rights and remedies of each party
under this Agreement are in addition to all other rights and remedies, at law or
in equity, that such party may have against the other parties.
10.7 NO THIRD PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies on any Person other than the parties hereto and their
respective successors and permitted assigns.
10.8 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.9 HEADINGS. The headings of the sections, subsections, and
paragraphs of this Agreement have been added for convenience only and shall not
be deemed to be a part of this Agreement.
10.10 SEVERABILITY. If any one or more of the provisions herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect, and of the
remaining provisions, shall not be in any way impaired or affected. In such
event, there shall be added as part of this Agreement a provision as similar in
terms to such illegal, invalid or unenforceable provision as may be possible and
be legal, valid and enforceable. The effective date of the added provision
shall be the date as of which the prior provision was held to be invalid,
illegal or unenforceable.
10.11 GOVERNING LAW; JURISDICTION. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, excluding
that body of laws pertaining to conflicts of laws.
10.12 ARBITRATION. Except to the extent this Agreement provides
otherwise, any dispute arising under this Agreement shall be resolved by
arbitration as hereinafter provided. The party desiring arbitration shall give
written notice to that effect to the other party and to such party's counsel, as
provided for in Section 10.3 hereof. The party initiating the arbitration shall
send a copy of the notice initiating the arbitration to the American Arbitration
Association (or its successor) and shall request that the American Arbitration
Association select within 10 days thereafter an individual who meets the
following criteria to act as the arbitrator. The arbitrator must be (i)
"independent," I.E., not having at that time or at any time within the
immediately preceding five (5) years a substantial relationship with either
party to the arbitration, any Affiliate of either such party, or any officer or
director of any such party or Affiliate, (ii) an attorney having at least ten
(10) years experience, and (iii) knowledgeable in the area of corporate finance.
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No party to the arbitration shall have any right to object to the individual
named as the arbitrator except upon the ground that the named individual does
not meet the aforesaid criteria. If more than one arbitration is conducted
pursuant to this Agreement, the parties agree to use the same arbitrator,
subject to his or her availability. The arbitration shall be conducted in the
City of New York and, to the extent consistent with this Paragraph, in
accordance with the expedited procedures set forth in and otherwise in
accordance with the then Commercial Arbitration Rules of the American
Arbitration Association (or any organization successor thereto). The arbitrator
shall be instructed to proceed with all reasonable diligence to resolve the
dispute by no later than 30 days after the date on which the American
Arbitration Association received the request to initiate the arbitration, to
render his decision in writing and to deliver counterpart copies thereof to each
of the parties. The arbitrator may issue a default award against a party that
fails to appear at any meeting or hearing scheduled by the arbitrator or which
attempts to delay the arbitration. Such decision shall be binding, final and
conclusive on the parties. Judgment may be had on the decision so rendered in
any court of competent jurisdiction, federal or state, and may be enforced in
accordance with the laws of the State of New York. The fees of the arbitrator,
the fees of expenses of respective counsel engaged by the parties, the fees and
expenses of expert witnesses and other witnesses called by the parties and the
cost of transcripts shall be paid by the party against which the dispute is
resolved, unless otherwise specified by the arbitrator.
10.13 RECITALS, SCHEDULES AND ANNEXES. The recitals, schedules, exhibits
and annexes to this Agreement are incorporated herein and, by this reference,
made a part hereof as if fully set forth at length herein.
10.14 CONSTRUCTION.
(a) As used in this Agreement, the masculine, feminine or neuter
gender, and the singular or plural, shall be deemed to include the others
whenever and wherever the context so requires.
(b) For the purposes of this Agreement, unless the context clearly
requires, "or" is not exclusive.
(c) An accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP.
(d) This Agreement has been negotiated and prepared by Issuer and
Selection Agent, and if any provision of this Agreement requires judicial
interpretation, or interpretation by an arbitrator, the court or arbitrator
interpreting or construing the provision shall not apply the rule of
construction that a document is to be construed more strictly against the party
who prepared the document.
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IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the
day and year first above written.
NHP INCORPORATED, a Delaware corporation
By:
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Executive Vice
President
PROPERTY RESOURCES CORPORATION, a New York
corporation
By:
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
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SCHEDULE A TO CONTINGENT STOCK ISSUANCE AGREEMENT
Calendar Year Aggregate Performance Goal (Based on the Number of
contribution to Issuer's EBITDA for the NHPI Shares
related calendar year to the extent that (total for
it is in excess of the Issuer's unreturned year)
cash investment in the Joint Ventures,
if any)*
1998 a) less than $440,000 0
b) $440,000 up to and including $880,000 5,000 c) more
than $880,000 10,0002000 a) less than
$880,000 0 b) $880,000 up to and
including $1,760,000 5,000 c) more than $1,760,000
10,000
* For the purposes of this provision, it shall be assumed that the
first Two Hundred Fifty Thousand Dollars ($250,000.00) of cash investment by the
Issuer to the Joint Ventures (the "Threshold") shall not be deemed to bear any
interest. Any cash investment in excess of the Threshold shall be deemed to
bear interest at the Prime Rate plus two percent (2%). Any debt shall have a
return as set forth in the terms of any such debt.
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SCHEDULE B TO CONTINGENT STOCK ISSUANCE AGREEMENT
ANTI-DILUTION PROVISIONS
The number of NHPI Shares issuable pursuant to Schedule A shall be subject
to adjustment as provided in this Schedule B.
B.1. STOCK DIVIDENDS, SPLITS, ETC. In case Issuer shall (A) pay a
dividend in shares of Common Stock or make a distribution in shares of Common
Stock, (B) subdivide its outstanding Common Stock, (C) combine its outstanding
Common Stock into a smaller number of shares of Common Stock or (D) issue by
reclassification of its Common Stock other securities of Issuer, the number of
NHPI Shares set forth on Schedule A (as previously adjusted pursuant to this
Schedule B) immediately prior thereto shall be adjusted so that the Recipient
shall be entitled to receive, upon the Issuance, the kind and number of NHPI
Shares or other securities of Issuer which it would have owned or would have
been entitled to receive after the happening of any of the events described
above had the Issuance of NHPI Shares occurred immediately prior to the
happening of such event or any record date with respect thereto. Any adjustment
made pursuant to this paragraph B.1 shall become effective immediately after the
effective date of such event and such adjustment shall be retroactive to the
record date, if any, for such event.
B.2. OTHER DIVIDENDS. Except in respect of transactions described in
paragraph B.1. above, in case Issuer shall declare, order, pay or make a
dividend or other distribution (including, without limitation, any distribution
of cash, other or additional stock or other securities or property or options),
by way of dividend or spin-off, reclassification, recapitalization or similar
corporate rearrangement or otherwise, but excluding regular quarterly dividends,
then in each case the number of NHPI Shares thereafter set forth on Schedule A
shall be determined by multiplying (A) the number of NHPI Shares set forth on
Schedule A (as previously adjusted pursuant to this Schedule B) by (B) a
fraction, of which the numerator shall be the then Fair Market Value on the day
before record date for the determination of shareholders entitled to receive
such dividend or other distribution, and of which the denominator shall be such
Fair Market Value on such date minus the amount of such dividend or distribution
applicable to one share of Common Stock. The Board of Directors of Issuer shall
determine the amount of such dividend or distribution allocable to one share of
Common Stock and such determination, if reasonable and based upon the Board of
Directors' good faith business judgment, shall be binding upon the Recipient.
Such adjustment shall be made whenever any such distribution is made and shall
become effective on the date of distribution retroactive to the day before
record date for the determination of shareholders entitled to receive such
distribution.
B.3. OTHER SECURITIES. In the event that at any time, as a result of
an adjustment made pursuant to this Schedule B, the Recipient shall become
entitled to receive upon an Issuance any securities of Issuer other than Common
Stock, Issuer shall duly reserve such securities for issuance
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and thereafter the number of such other securities set forth on Schedule A shall
be subject to the adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the NHPI
Shares contained in this Schedule B.
B.4. PRESERVATION OF PURCHASE RIGHTS UPON RECLASSIFICATION,
CONSOLIDATION, ETC. In case of any consolidation or merger of Issuer with or
into another entity as a result of which the holders of Common Stock become
holders of other shares or securities of Issuer or of another Person, or such
holders receive cash or other assets, or in case of any sale or conveyance to
another Person of the Property, assets or business of Issuer as an entirety or
substantially as an entirety, Issuer or such successor or purchasing entity or
person, as the case may be, shall execute with the Selection Agent an agreement
that (i) the Recipient shall have the right upon the occurrence of the Issuance
to receive the kind and amount of shares and other securities and property which
the Recipient would have owned or have been entitled to receive after the
happening of such consolidation, merger, sale or conveyance had the Issuance of
NHPI Shares occurred in accordance with this Agreement immediately prior to such
action and (ii) that this Agreement shall continue in full force and effect
notwithstanding the consummation of such transaction and that such Person or
entity shall assume the obligations of Issuer hereunder. The provisions of this
Section B.4. shall similarly apply to successive consolidations, mergers, sales
or conveyances.
B.5. STATEMENT ON SCHEDULE A. No amendment to Schedule A shall be
required in the event of any adjustment under this Schedule B.
B.6. NOTICE OF ADJUSTMENT. Upon any event requiring any adjustment of
Schedule A, Issuer shall promptly provide the Selection Agent a report,
certified by an authorized chief financial officer, controller, treasurer or
assistant treasurer of Issuer, setting forth the number of NHPI Shares issuable
upon an Issuance, setting forth in reasonable detail the method of calculation
and the facts upon which such calculation is based, including a statement of (i)
any dividend or distribution made with respect to shares of Common Stock, (ii)
the number of shares of Common Stock outstanding or deemed to be outstanding,
and (iii) the Schedule A in effect immediately prior to such issue or sale and
as adjusted and readjusted (if required by this Schedule B) on account thereof.
The Issuer will, at any time, but in no event more frequently than quarterly,
upon the written request of the Selection Agent, furnish to Selection Agent, a
similar report setting forth the Schedule A in effect at the time and showing in
reasonable detail how it was calculated. The Issuer will also keep copies of
all such reports at its principal executive office and will cause the same to be
available for inspection at such office during normal business hours by
Selection Agent.
B.7. FRACTIONAL INTERESTS. The Issuer shall not be required to issue
fractional NHPI Shares upon an Issuance. If any fraction of a NHPI Share would,
except for the provisions of this Section B.7, be issuable, Issuer shall pay an
amount in cash equal to the Fair Market Value of such fractional NHPI Share.
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