STOCK PURCHASE AND ASSET ACQUISITION AGREEMENT
February 28, 1997
by and among
INSIGNIA/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ CO., INC.,
a Delaware corporation
and a wholly owned subsidiary of
INSIGNIA COMMERCIAL GROUP, INC.,
a Delaware corporation,
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ COMPANY, INC.,
a New York corporation,
for the purpose of agreeing upon the sale
of all of the issued and outstanding stock
of ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ MANAGEMENT CORP.,
a New York corporation,
and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
INDEX TO
STOCK PURCHASE AND ASSET ACQUISITION AGREEMENT
ARTICLE I
SALE OF THE STOCK AND ASSETS......................................... 2
1.1 Sale of the Stock............................. 2
1.2 Sale of Certain Assets................... .. 2
1.3 Purchase Price................................ 3
1.4 Allocation of Purchase Price.................. 4
ARTICLE II
CLOSING AND TRANSITION............................................... 4
2.1 Closing....................................... 4
2.2 Receivables and Liabilities......... ......... 4
2.3 Work in Process............................... 5
2.4 Prospective Employees......................... 6
2.5 Closing Costs................................. 8
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS AND RDC..................... 8
3.1 Organization and Standing..................... 8
3.2 Title to Stock and Assets..................... 8
3.3 Authority..................................... 9
3.4 Financial Statements.......................... 9
3.5 Current Financial Statements.................. 9
3.6 Absence of Certain Changes.................... 10
3.7 Contracts..................................... 10
3.8 Leases and Other Agreements................... 10
3.9 Bonds, Insurance, and Letters of Credit....... 11
3.10 Liabilities................................... 11
3.11 Real Estate................................... 11
3.12 Personal Property............................. 11
3.13 Compliance.................................... 11
3.14 Computer Software [Intentionally Omitted]..... 12
3.15 Tax Matters................................... 12
3.16 Employees..................................... 12
3.17 Employee Benefit Plans........................ 12
3.18 Collective Bargaining Agreements.............. 13
3.19 Employee Claims and Disputes.................. 13
i
3.20 Workers' Compensation....... .............. 13
3.21 Employee Agreements........................... 13
3.22 Restrictive Agreements........................ 14
3.23 Brokers and Finders........................... 14
3.24 No General Partner Status..................... 14
3.25 Survival of Representations and Warranties.... 14
3.26 Knowledge.................................. .. 14
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER............................... 14
4.1 Due Formation.................................. 14
4.2 Binding Obligations............................ 15
4.3 Brokers and Finders............................ 15
4.4 Regulation D................................... 15
4.5 Tax Matters.................................... 15
4.6 Survival of Representations and Warranties..... 15
ARTICLE V
COVENANTS; LIMITATION OF LIABILITY.................................... 16
5.1 Tax Matters.................................... 16
5.2 Indemnification by Sellers..................... 16
5.3 Indemnification by Buyer..................... . 17
5.4 Enforcement of Indemnification Provisions...... 18
5.5 Limitation on Liability........................ 19
ARTICLE VI
ADDITIONAL AGREEMENTS................................................. 19
6.1 Non-Compete Agreements......................... 19
6.2 Contingent Payments............................ 22
6.3 Employment and Tenure of Rostenberg and ▇▇▇▇▇.. 25
6.4 Press Releases................................. 26
6.5 RDC Change of Name............................. 26
6.6 Cooperation Regarding Licensing............... 26
6.7 Insurance Proceeds............................. 26
6.8 RDC Employment Agreements...................... 27
ii
ARTICLE VII
DOCUMENTS AT CLOSING; POST-CLOSING.................................... 27
7.1 Delivery of Documents by Buyer................. 27
7.2 Delivery of Documents by Sellers and the
Corporations........................................ 28
7.3 Oncor Stock.................................... 28
7.4 Further Assurances............................. 29
ARTICLE VIII
MISCELLANEOUS......................................................... 29
8.1 Notices....................................... 29
8.2 Risk of Loss.................................. 31
8.3 Survival of Agreement......................... 31
8.4 Headings...................................... 31
8.5 Governing Law................................. 31
8.6 Assignment.................................... 31
8.7 No Third Party Beneficiaries.................. 31
8.8 Counterparts.................................. 32
8.9 Modification........................ ......... 32
8.10 Severability.................................. 32
8.11 Construction and Interpretation............... 32
8.12 Exhibits...................................... 32
8.13 Limited Purpose............................... 32
iii
STOCK PURCHASE AND ASSET ACQUISITION AGREEMENT
THIS STOCK PURCHASE AND ASSET ACQUISITION AGREEMENT
("Agreement") is made and entered into as of the 28th day of
February, 1997 (the "Contract Date"), by and among INSIGNIA/▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ CO., INC., a Delaware corporation and a wholly owned
subsidiary of INSIGNIA COMMERCIAL GROUP, INC., a Delaware
corporation (including its assigns permitted hereunder, "Buyer"),
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇▇"), ▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇")
(▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ are hereinafter referred to collectively, as
"Sellers," and individually referred to either by name or in
context as a "Seller"), ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ COMPANY, INC., a New York
corporation ("RDC"), for the purpose of agreeing upon the sale of
all of the issued and outstanding stock of ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇
MANAGEMENT CORP., a New York corporation ("RDMC"), and
substantially all of the assets of RDC all as set forth herein, and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇"), ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇. ("▇▇▇▇▇") for the purposes set forth in Section 8.13
below. RDMC and RDC may hereinafter be referred to collectively as
the "Corporations," and separately, in context, as a "Corporation."
R E C I T A L S :
WHEREAS, Sellers own all of the issued and outstanding shares
of capital stock in RDMC (the "Stock"); and,
WHEREAS, RDC owns certain assets, more particularly described
herein; and,
WHEREAS, Sellers desire to sell, and Buyer desires to
purchase, all of the Stock; and,
WHEREAS, RDC desires to sell, and Buyer desires to purchase
substantially all of the assets of RDC; and,
WHEREAS, Buyer desires to enhance and maintain the performance
of the Corporations through the employment of both Rostenberg and
▇▇▇▇▇ following acquisition of the Stock by Buyer; and,
WHEREAS, the employment of both Rostenberg and ▇▇▇▇▇ by Buyer
has served as a material inducement to the sale of the Stock;
NOW, THEREFORE, in consideration of the premises, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
SALE OF THE STOCK AND ASSETS
1.1 Sale of the Stock. Upon execution and delivery of this
Agreement, and for the consideration specified in Section 1.3,
Sellers shall sell, assign, convey, and deliver to Buyer free and
clear of all liens, claims, and encumbrances, and Buyer shall
purchase, acquire and accept, all of the Stock in accordance with
the terms of this Agreement.
1.2 Sale of Certain Assets. (a) Upon execution and delivery
of this Agreement, and for the consideration specified in Section
1.3, RDC shall sell, assign, convey, and deliver to Buyer free and
clear of all liens, claims and encumbrances other than those
disclosed on Exhibit "1.2," and Buyer shall purchase, all of the
right, title and interest of RDC in and to all of the assets,
wherever located, tangible or intangible, real, personal or mixed,
used in the operation of the business of RDC of providing
commercial real estate management, construction, leasing,
brokerage, landlord and tenant representation, consulting and other
real estate related services (hereinafter, the "Assets"),
including, without limitation, (i) those items of personal property
set forth on Exhibit "3.12" attached hereto as being owned by RDC,
(ii) those Contracts (defined in Section 3.7) to which RDC is a
party, and (iii) the Leases and Other Agreements (as defined in
Section 3.8) to which RDC is a party; provided, however, that RDC
shall not be required to sell, assign, convey, and deliver to
Buyer, and Buyer shall not purchase, the following (hereinafter
"Excluded Assets"):
(i) The Receivables (as defined in Section 2.2),
all cash on hand and immediately available funds at the close of
business on the Closing Date, including funds in bank accounts,
money market funds, or other cash management accounts, except cash
or funds held for third parties, and payments or deposits for
future work or services to be rendered by Buyer or RDMC from and
after Closing pursuant to the Contracts;
(ii) All rights and claims for refunds of taxes and
other governmental charges for periods ending on the Closing Date;
(iii) All claims or rights against third parties
relating to Work in Process (as defined in Section 2.3),
Receivables or to liabilities or obligations which are not assumed
by Buyer hereunder;
(iv) All rights and proceeds payable for claims
under insurance policies pertaining to either, or both, of the
Corporations, for claims made or events occurring, on or prior to
the Closing Date;
(v) Fees and revenues constituting Work in Process;
(vi) Leases and Other Agreements which are shown on
Exhibit "3.8(a)," as being Excluded Assets;
(vii) Personal property shown on Exhibit "3.12(a)" as
being Excluded Assets; and
(viii) Items shown on Exhibit "7.3," which items shall
be subject to Section 7.3.
(b) Upon execution and delivery of this Agreement, and
for the consideration specified in Section 1.3, RDC and Sellers
shall sell, assign, convey and deliver to Buyer free and clear of
all liens, claims and encumbrances, and Buyer shall purchase, the
nonexclusive rights of RDC and Sellers to use the names
"Rostenberg," "▇▇▇▇▇," and all names derivative therefrom or
substantially similar thereto as a matter of law in connection with
the operation of a business or venture in the States of New York,
New Jersey and/or Connecticut providing commercial real estate
management, construction, leasing, brokerage, landlord and tenant
representation, consulting and/or other real estate related
services (the "Tradenames"), or in connection with a use authorized
by, sponsored by, endorsed by or affiliated with any such business
or venture, including promotional uses not directly related to such
business or venture but inuring to the benefit of the goodwill and
good reputation of such business or venture, it being understood
that Sellers reserve all rights to use the Tradenames for all other
purposes (including, without limitation, the collection of
Receivables and Work in Process and the performance of Sellers'
obligations under this agreement), and all rights not conveyed to
Buyer are hereby retained by Sellers. Notwithstanding the
foregoing, each Seller shall retain the right to use his name to
identify himself as an employee of a business in which he may be
employed so long as none of the Tradenames are part of the name of
such business.
1.3 Purchase Price. The purchase price for the Stock and
Assets ("Purchase Price") shall be up to Three Million Two Hundred
Fifty Thousand and No/100 Dollars ($3,250,000.00), Two Million and
No/100 Dollars ($2,000,000.00) of which shall be paid at Closing by
federal wire transfer to account #0000319295 at Fleet Bank, N.A.,
Hartford, Connecticut, to be apportioned among, and distributed to,
the Sellers and RDC as they may agree among themselves, and the
remainder of which will be evidenced by the obligations of Buyer to
make certain contingent payments of up to One Million Two Hundred
Fifty Thousand and No/100 Dollars ($1,250,000.00) in accordance
with and as described in Section 6.2 hereof.
1.4 Allocation of Purchase Price. The Purchase Price shall
be allocated to the acquisition of the Stock, the Tradename, and
the Assets as set forth in Exhibit "1.4" attached hereto.
ARTICLE II
CLOSING AND TRANSITION
2.1 Closing. The closing of the transactions contemplated
hereby (the "Closing") shall occur on or before February 28, 1997
(the "Closing Date"). The transaction contemplated by this
Agreement shall be effective as of the Closing Date.
2.2 Receivables and Liabilities. (a) Any receivables,
reimbursements, refunds or revenues identified on Exhibit "2.2"
hereto (collectively, "Receivables"), shall inure to the benefit of
the Sellers and RDC, as the case may be, and Sellers, and RDC, as
the case may be, shall bear the burden and responsibility for
payment of all expense, obligation and claims relating to such
Receivables. Notwithstanding the foregoing, (i) any of the
Receivables which are leasing commissions shall cease to be
Receivables and shall be the sole property of Buyer on the date on
which the lease agreement giving rise to such leasing commission
revenues is amended in any material manner, or by amendment which
requires any material effort on the part of Buyer or RDMC, (ii)
Sellers and RDC will in no case be entitled to receive any revenue
arising out of any expansion, renewal, extension or option
exercised under any lease, and (iii) those portions of a leasing
commission which is payable only if a right of cancellation is not
exercised by a party to the lease which gave rise to the leasing
commission shall not constitute Receivables and shall be the sole
property of Buyer. Notwithstanding anything seemingly to the
contrary contained herein, Sellers will retain, or assume,
responsibility for the payment of all outstanding accounts payable
and other liabilities of either or both Corporations relating to
the Excluded Assets or existing as of, accrued during, or otherwise
attributable to the period ending on the Closing Date, including,
without limitation, refund or return of Receivables or Work in
Process paid by mistake or in excessive amounts, taxes, employee
bonuses, accrued vacation pay, sick leave pay, severance
obligations, and 401(k) or other employee benefit plan
contributions; provided, however, that after the expiration of six
(6) months after the Closing Date, Buyer shall become liable for
all severance obligations with respect to any Prospective Employees
(as hereinafter defined) that become employees of Buyer, but only
to the extent such obligations are disclosed on Exhibit "3.21"
attached hereto.
(b) Subject to Subsection 2.2(a), reimbursements,
receivables, refunds or revenue earned or accrued by RDMC after the
Closing Date shall inure to the benefit of the Buyer. Buyer will
assume responsibility for the payment of all accounts payable and
other liabilities of RDMC and liabilities relating to the Assets
and Tradenames arising from Buyer's use of the Assets and
Tradenames, and operation of RDMC's business and/or the performance
by RDMC or Buyer under the Contracts and the Leases and Other
Agreements which accrue on, or are otherwise attributable to, the
period beginning on the day following the Closing Date. Items of
expense paid on or prior to the Closing Date shall not be prorated.
(c) Receivables and other Excluded Assets collected on
or after the Closing Date shall be accounted for by Buyer, Sellers
and RDC to each other. Buyer, Sellers and RDC shall cooperate
reasonably with each other in the collection of the Receivables.
Receivables and other Excluded Assets shall be collected by Sellers
and RDC, as appropriate, but Buyer, Sellers and RDC acknowledge
that some Receivables and/or other Excluded Assets may be received,
following Closing, by Buyer. In the event that Buyer receives or
collects any of such items, then they shall be held by Buyer in
trust for the benefit of Sellers, and shall be promptly delivered
to Sellers with all accompanying documentation. Buyer shall
promptly forward to Sellers bills, statements, or invoices received
by Buyer for which Sellers and RDC, as appropriate, have
responsibility for payment pursuant to Section 2.2(a).
(d) At or prior to Closing, Sellers shall cause RDMC to
assign to Sellers, or to RDC, subject to the terms of this Section
2.2, any of the Receivables which are the property of RDMC,
together with all cash on hand and immediately available funds at
the close of business on the Closing Date, including funds in bank
accounts, money market funds, or other cash management accounts,
except cash or funds held for third parties, and payments or
deposits for future work or services to be rendered by Buyer or
RDMC from and after Closing pursuant to the Contracts.
2.3 Work in Process. (a) Exhibit "2.3" attached hereto
lists all sales transactions and the one leasing transaction which
may result in Work in Process (as hereinafter defined).
Transactions not listed on Exhibit "2.3" shall not constitute Work
in Process. "Work in Process" shall mean:
(i) One-half (1/2) of the fees, commissions, and
revenues paid as a result of the sales transactions listed on
Exhibit "2.3" (net of third party expenses and/or collection costs
and amounts payable to in-house brokers), but only with respect to
such sales transactions that are subject to a written contract
signed on or before the Closing Date and which close prior to the
first anniversary of the Closing Date according to the terms of
such contract without material amendment, with title to the
property to be sold thereunder having passed and commissions paid
within such time period; and
(ii) The Appropriate Percentage (as hereinafter
defined) of fees, commissions, and revenues which are generated by
and result from the "Nine West" lease transaction listed on Exhibit
"2.3" (net of third party expenses and/or collection costs and
amounts payable to in-house brokers). The "Appropriate Percentage"
shall mean, if the "Nine West" lease transaction is signed by all
parties, with no contingencies:
(A) on or before thirty (30) days following
the Closing Date, one hundred percent (100%);
(B) after thirty (30) days following the
Closing Date, but on or before sixty (60) days following the
Closing Date, eighty percent (80%);
(C) after sixty (60) days following the
Closing Date, but on or before ninety (90) days following the
Closing Date, sixty percent (60%);
(D) after ninety (90) days following the
Closing Date, but on or before one hundred twenty (120) days
following the Closing Date, forty percent (40%);
(E) anytime after one hundred twenty (120)
days following the Closing Date, zero percent (0%).
The Appropriate Percentage of fees, commissions, and revenues
generated by the "Nine West" lease transaction shall be adjusted
according to Subsections 2.3(a)(ii)(A) through (E) above on and as
of any date on which the agreement giving rise to such fees,
commissions, and revenues is amended in any material manner or by
amendment which requires any material effort on the part of Buyer
or RDMC. Sellers and RDC will in no case be entitled to receive
any revenue arising out of any expansion, renewal, extension or
option exercised under the "Nine West" lease.
(b) The collection of and accounting for Work in Process
shall be governed by the terms of Section 2.2(c) hereof.
2.4 Prospective Employees. (a) Exhibit "2.4" attached hereto
is a schedule identifying those employees of either Corporation to
whom Buyer intends to offer employment with Buyer, or an affiliate
of Buyer (individually, a "Prospective Employee"). The inclusion
of one or more of such employees on any Prospective Employee list
prepared and delivered prior to the Closing Date shall not
constitute an offer of employment to, or evidence of an intent to
hire, any of such employees by Buyer or an affiliate of Buyer, and
no rights, or claims of rights, shall inure to any of such
employees by reason of their inclusion into such list.
(b) Subject to the provisions of this Section 2.4(b),
Prospective Employees who become employees of Buyer or its
affiliated employers will become eligible to participate in
employee benefit plans sponsored by affiliated employers of Buyer
subject to the terms of each benefit plan.
(i) Buyer and its affiliated employers will provide
past service credits for purposes of meeting eligibility
requirements and, for each specific preexisting condition that is
currently covered under the group insurance plans of either
Corporation, will waive preexisting condition limitations under the
group medical plan sponsored by Buyer or its affiliated employers
that covers the Prospective Employees who become employees of Buyer
or its affiliated employers.
(ii) Any Prospective Employee who (1) is a
participant in the ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ Company, Inc. 401(k) Savings
Plan ("RDC 401(k) Plan"), and (2) becomes employed by Buyer or an
affiliated employer, shall be granted past service credit based
upon his or her employment with Corporations for purposes of
eligibility and participation in the 401(k) plan sponsored by Buyer
or its affiliated employers ("Buyer's 401(k) Plan"). Past service
credits shall not be granted for purposes of vesting under the
Buyer's 401(k) Plan.
(iii) Any Prospective Employee who is hired by Buyer
or an affiliated employer and who is a broker or otherwise
compensated on a commissioned basis shall not be eligible for
matching contributions under Buyer's 401(k) Plan based upon
deferrals from compensation earned as commission income.
(iv) Prior to Closing, the Corporations shall
terminate the RDC 401(k) Plan and will pay all costs and expenses
associated therewith. Corporations will cause the RDC 401(k) Plan
to distribute account balances of participants in accordance with
Section 401(a)(31) of the Internal Revenue Code. Buyer's 401(k)
Plan will accept eligible rollover distributions from participants
in the RDC 401(k) Plan who (1) become employees of Buyer or its
affiliated employers, and (2) elect to transfer such eligible
rollover distribution to Buyer's 401(k) Plan.
(v) At Closing, Sellers shall deliver to Buyer cash
in the aggregate amount of accrued vacation benefits of all
Prospective Employees who are hired by Buyer or an affiliated
employer at, or effective as of, Closing, and shall provide to
Buyer, contemporaneously therewith, a schedule which supports the
calculation of the amount so delivered. Buyer shall honor the
accrued vacation benefits of Prospective Employees who are hired by
Buyer or an affiliated employer to the extent of the benefits shown
by the documentation delivered, and the payment made, pursuant to
this Subsection 2.4(v).
2.5 Closing Costs. Sellers and Buyer shall each pay all of
the costs incurred by them, respectively, in connection with this
Agreement and the Closing of the transactions contemplated herein.
Transfer, sales and use taxes attributable to the sale of the
Stock, the Assets, and the Tradename shall be paid by Sellers.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF SELLERS AND RDC
As an inducement to Buyer to enter into this Agreement, and to
complete the transactions contemplated hereby, the Sellers and RDC
represent and warrant to Buyer, as of the Closing Date, as follows:
3.1 Organization and Standing. Each Corporation is duly
organized, validly existing and in good standing under the laws of
the State of New York, and is qualified to do business in, and is
in good standing under the laws of, each state in which it is
required to qualify in order to do business. Each Corporation has
all requisite corporate power and authority to own, operate, and
lease its properties and to carry on its businesses in the manner
now being conducted.
3.2 Title to Stock and Assets. (a) Sellers have good,
absolute, and marketable title to the Stock free and clear of all
"adverse claims" (as defined in Section 8-302 of the Uniform
Commercial Code as currently in effect in the State of New York),
and all covenants and restrictions (except for applicable
securities laws restrictions) of every kind, and except for
applicable securities laws restrictions has the complete and
unrestricted right and authority to sell and assign the Stock to
Buyer in accordance with the terms of this Agreement. The Stock
constitutes one hundred (100%) percent of the securities issued by
RDMC and outstanding. All of the Stock has been validly issued,
fully paid, and is nonassessable. In reliance upon Buyer's
representations and warranties set forth in Section 4.4, Sellers
represent that the sale of the Stock to Buyer is exempt from
registration under applicable securities laws. Except as
contemplated by this Agreement and as may be set forth on Exhibit
"3.2(a)," there are no outstanding subscriptions, options, or
rights on the part of any party to acquire any of the Stock.
Except as set forth on Exhibit "3.2(a)", the sale of the Stock will
not violate the terms of any contract (excluding Contracts) to
which either Sellers or RDMC are subject, and assuming the accuracy
of Buyer's representation in Section 4.4 below, will not violate
the terms of any applicable law or regulation. Sellers will
transfer the Stock to Buyer free and clear of any "adverse claims."
(b) Except as otherwise set forth on Exhibit "3.2(b)"
attached hereto, RDC owns the Assets free and clear of all liens,
encumbrances, and claims, and RDC will transfer to Buyer all right,
title and interest in and to the Assets free and clear of any
liens, encumbrances, claims, or restrictions (other than
restrictions specifically contained within the Contracts or in the
Leases and Other Agreements to be assigned and in software
licensing agreements) including, without limitation, claims or
restrictions pertaining to applicable bulk sales, or bulk transfer,
laws.
3.3 Authority. This Agreement has been duly executed and
delivered to Buyer by each Seller and RDC and constitutes the
legal, valid, and binding obligation of each, enforceable against
each Seller and RDC in accordance with its terms. Except as
otherwise set out in Exhibit "3.7(a)" attached hereto, (i) the
consummation of the transactions contemplated in this Agreement
will not cause or result in a breach under any of the Contracts
(defined in Section 3.7), (ii) any and all consents required for
the execution and performance of this Agreement by each Seller and
the Corporations have been obtained; and (iii) no filing with, and
no permit, authorization, consent or approval of any third party is
necessary for the consummation of the transactions contemplated by
this Agreement. Neither the execution and delivery of this
Agreement by Sellers and RDC, nor consummation by them of the
transactions contemplated herein, nor compliance by them with any
of the provisions hereof will (x) conflict with or result in any
breach of any provision of the organizational documents of RDC; (y)
except as otherwise set out in Exhibit "3.7(a)" attached hereto,
result in a violation or breach of, or constitute a default under,
any of the terms, conditions or provisions of any contract,
agreement or other instrument or obligation to which any Seller or
RDC is a party or by which any of them is bound; or (z) violate any
order, writ, injunction, decree, statute, rule or regulation
applicable to either Seller or to RDC.
3.4 Financial Statements. Attached to this Agreement as
collective Exhibit "3.4," are copies of balance sheets and
unaudited profit and loss statements for RDC as of December 31,
1995, 1994, and 1993 and for RDMC as of December 31, 1996 and 1995
(the "Corporation Financial Statements"). Except as set forth in
collective Exhibit "3.4,", the Corporation Financial Statements
have been prepared from and are in accordance with the books and
records of each Corporation, present fairly the financial position,
results of operations and changes in financial position of each
Corporation as of the dates and for the periods indicated, in each
case in accordance with accounting principles consistently applied.
3.5 Current Financial Statements. Attached to this Agreement
as collective Exhibit "3.5" are copies of the balance sheets and
profit and loss statements of the respective Corporations dated
November 30, 1996 (the "Current Statements"). The Current
Statements have been prepared in accordance with accounting
principles consistently applied through the periods indicated. The
Current Statements present fairly the financial condition, assets,
liabilities, and results of operations of the Corporations as of
the their respective dates and for the periods then ended.
3.6 Absence of Certain Changes. Except as disclosed herein,
since the date of the Current Statements there has not been any
change in, or effect upon, the business of either Corporation that
is, or would be, materially adverse to the business, financial
condition, or property of either Corporation.
3.7 Contracts. Attached to this Agreement as collective
Exhibit "3.7" are copies of the documents which evidence all
contractual obligations of the Corporations as of the Contract Date
which call for the performance of work or service by either RDC or
RDMC, the performance of which has not been completed, and all
other agreements or understandings pursuant to which either
Corporation expects to receive revenue (other than Receivables
which are not leasing commissions) following the Closing Date or,
in the case or oral agreements, descriptions thereof (collectively,
the "Contracts"). The work or services to be performed under the
Contracts generally consists of management, leasing, construction,
brokerage, landlord or tenant representation, consulting or
supervisory or other real estate related services to be rendered in
connection with certain commercial and/or industrial real estate
projects (collectively, the "Properties" and individually, a
"Property"). The copies of the documents comprising collective
Exhibit "3.7" are true, correct, and complete in all respects, and
no Contract has been amended or modified except as shown on said
Exhibit. No Corporation has received any notice of default by any
party under any of the Contracts. Neither Corporation is in
default under any of the Contracts. Except as otherwise shown on
Exhibit "3.7(a)" neither the Sellers nor either of the Corporations
has received any indication that any party to any of the Contracts
intends to modify, cancel, or terminate any of the Contracts in a
manner adverse to Sellers, RDC, or RDMC. RDMC has on hand
equipment, supplies and sufficient personnel to perform fully, all
of its obligations required to be performed as of the Closing Date
under each of the Contracts to which RDMC is a party.
3.8 Leases and Other Agreements. Attached to this Agreement
as collective Exhibit "3.8" and Exhibit "3.8(a)" are copies of the
documents which evidence all lease contracts, purchase contracts,
utility contracts, and all other contracts and agreements of any
nature or kind (other than the Contracts described above and any
contracts entered into by RDMC in its capacity as agent or manager
for a third party pursuant to any of the Contracts) or, in the case
of oral agreements, descriptions thereof, which require payments to
be made by either Corporation after Closing and to which either
Corporation is a party, or by which either Corporation is bound
(collectively, the "Leases and Other Agreements"). The copies of
the documents comprising collective Exhibit "3.8" are true,
correct, and complete in all material respects, and no Lease or
Other Agreement has been amended or modified except as shown in
said Exhibit. Exhibit "3.8(a)" are Excluded Assets not to be
transferred to Buyer.
3.9 Bonds, Insurance, and Letters of Credit. Unless
otherwise shown on Exhibit "3.9," all insurance contracts which
cover either Corporation are fully paid to the Contract Date and in
full force and effect. Each of these insurance contracts shall be
cancelled insofar as they cover RDMC (but not as to other insured
parties) on the Closing Date, and refunds of unearned premiums with
regard thereto shall become Receivables. There are no bonds
(including, without limitation, construction, fidelity,
performance, and surety bonds) which cover either Corporation which
will not be canceled by the Closing.
3.10 Liabilities. Exhibit "3.10," attached hereto is, to the
best knowledge of Sellers, a listing of each Corporation's material
liabilities or obligations of any nature, whether absolute,
accrued, contingent, or otherwise.
3.11 Real Estate. RDMC owns no real property, in fee.
3.12 Personal Property. Except as otherwise shown on Exhibit
"3.12" attached hereto, each Corporation has good and marketable
title to, or rights as lessee under lease or rental agreements to
(i) all equipment, computer hardware, supplies, motor vehicles,
furniture, fixtures, and equipment, furnishings, architectural
plans, designs and drawings, advertising and/or promotional
materials and other tangible assets owned or used in connection
with the operation of the Corporations as of the date hereof
("Tangible Personal Property") and (ii) all contract rights, trade
marks, service marks, logos, and intangible property used or held
in connection with the operation of the Corporations as of the date
hereof, including, without limitation, computer software, contract
rights, and other intangible personal property owned or used in
connection with the operation of the Corporations (collectively,
the "Intangible Personal Property"). No warranties are made as to
the ownership or enforceability or non-infringement of the
Tradenames. Notwithstanding the foregoing, the Corporations have
only non-exclusive rights to the use of computer software owned by
the Corporations. The Tangible Personal Property and the
Intangible Personal Property include, without limitation, all
property set forth on Exhibit "3.12" attached hereto. Exhibit
"3.12(a)" are Excluded Assets not to be transferred to Buyer.
3.13 Compliance. To the best knowledge of each Seller, each
Corporation has complied in all material respects with all laws,
regulations, and orders applicable to its operations. Except as
shown on Exhibit "3.13" attached hereto, there are no pending (or
to each Seller's best knowledge, threatened) actions, suits,
proceedings, investigations, or prosecutions against either
Corporation. Without limiting the foregoing, no notices have been
received by any Seller or by either Corporation from any public or
private entities regarding the violation of any environmental laws
or regulations or the existence or release of any restricted
materials, substances, or waste upon or from any of the Properties.
Neither Sellers nor either Corporation has received any
environmental assessment or other notice that any potential
violations of existing environmental laws might exist on or near
any of the Properties, or are otherwise aware of any environmental
violations pertaining to the Properties which might give rise to
claims of third parties against either Corporation.
3.14 Computer Software. [Intentionally Omitted]
3.15 Tax Matters. All federal, state, local, and foreign tax
returns required to be filed by or on behalf of each Corporation
have been timely filed, and all taxes shown on such returns have
been paid. To the best knowledge of each Seller, there is no
audit, examination, deficiency, refund litigation, or matter in
controversy with respect to any taxes that might result in a
determination adverse to either Corporation except as adequately
reserved for on the Current Statements. Sellers shall pay all
taxes arising from the sale of the Stock and/or Assets. Buyer
shall cooperate, reasonably, with Sellers and permit them access to
documents and records in Buyer's possession or control which are
necessary for the preparation and filing of such tax returns.
Nothing herein shall be construed to prohibit Sellers from
contesting any assessments of taxes, interest, additions or
penalties, provided such contest is timely prosecuted and
diligently pursued, without interruption, to its conclusion, and
provided further that adequate reserve is made for the payment of
such taxes, interest, additions or penalties (and any additional
amounts which may become due during the period of the pendency of
such contest).
3.16 Employees. To Sellers' knowledge, none of the present
officers of RDMC has terminated or threatened to terminate his or
her respective relationship with RDMC, either as a result of the
transactions contemplated by this Agreement, or otherwise.
3.17 Employee Benefit Plans. No employee benefit plan of any
kind is sponsored by the Corporations except as set forth on
Exhibit "3.17" attached hereto. The Corporations or Sellers have
not incurred any material liability or taken any action which would
result in material liability with respect to any pension, profit
sharing or other qualified retirement plan sponsored by
Corporations. No reportable event or prohibited transaction has
occurred with respect to any such plan under the Employee
Retirement Income Security Act of 1974, as amended, excluding
transactions effected pursuant to a statutory or administrative
exemption. The Corporations shall terminate the RDC 401(k) Plan
prior to the Closing Date. The Corporations have undertaken or
will undertake all required action with regard to the Prospective
Employees' right to continued or converted coverage under any
welfare benefit plan sponsored by the Corporations.
3.18 Collective Bargaining Agreements. Except as set forth
on Exhibit "3.18" attached hereto, RDMC is not a party to any
collective bargaining agreement or any other similar type of
agreement which determines the terms and conditions of employment
of any employees (including, without limitation, Sellers) of RDMC.
To the best knowledge of each Seller, there is no actual,
threatened, or pending labor dispute, organizational effort,
certification of similar proceeding, strike, or organizational work
stoppage involving RDMC. No notice of a proposed union
certification or recognition election with respect to RDMC has been
given to, or received by, Sellers or RDMC.
3.19 Employee Claims and Disputes. RDMC has received no
notice or claim from or by any governmental, or quasi-governmental,
authority, nor, to Sellers' knowledge, has there been any claim
asserted before any governmental, or quasi-governmental, authority,
against RDMC under any law, any employment agreement, or otherwise,
on account of or for (i) overtime pay, (ii) wages or salary, (iii)
vacation, time off, or pay in lieu of vacation or time off, (iv)
severance pay, or (v) any violation of any law relating to minimum
wages, maximum hours of work, discrimination in employment or
employment practice, occupational safety or health standards, or
other labor conditions, regulations or laws.
3.20 Workers' Compensation. RDMC is either a self-insurer or
is adequately insured as required by law, under the workers'
compensation or similar laws of all jurisdictions which apply to
any officers or employees of RDMC.
3.21 Employee Agreements. Except as set forth on Exhibit
"3.21" attached hereto, there are no contracts or agreements,
whether written or oral, existing between RDMC and any of its
employees, officers, and directors. Except as set forth on Exhibit
"3.21," there are no written or oral representations or promises
made by, or on behalf of, RDMC to any present or former director,
officer, employee, or other agent of RDMC concerning his or her
terms, conditions, or benefits of employment, including, without
limitation, the tenure of any such employment or the conditions
under which such employment may be terminated by RDMC which will be
binding upon, or enforceable against, RDMC on or after the Closing
Date.
3.22 Restrictive Agreements. There are no contracts,
agreements, or other arrangements, whether written or oral
(including, without limitation, non-compete agreements), by which
either of the Corporations, or any of the employees of either
Corporation are bound which, following Closing, will restrict the
ability of Buyer and/or RDMC to continue the business of providing
commercial real estate management, construction, leasing,
brokerage, landlord and tenant representation, consulting and other
real estate related services.
3.23 Brokers and Finders. Neither Sellers nor the
Corporations have employed any broker or finder or incurred any
liability for any financial advisory fees, brokerage fees,
commissions, finder's fees, or like compensation in connection with
this Agreement or the transactions contemplated hereby.
3.24 No General Partner Status. RDMC neither presently
serves, nor has served, as either a general partner of a limited
partnership, as a general partner of a general partnership, or as
a member of a limited liability company.
3.25 Survival of Representations and Warranties. The
representations and warranties contained in Sections 3.2, 3.21 and
3.22 hereof shall survive the consummation of the transactions
contemplated herein, forever. All other representations and
warranties contained in this Article III shall survive the
consummation of the transactions contemplated herein until July 31,
1999, after which date no claim may be made for breach of such
representations and warranties.
3.26 Knowledge. With respect to the representations and
warranties contained in this Article III, the knowledge of each of
Klein, Hallock, and Cuddy shall be imputed to Sellers.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
As an inducement to the Sellers and to the Corporations to
enter into this Agreement, and to complete the transactions
contemplated hereby, Buyer represents and warrants as follows:
4.1 Due Formation. Buyer is a corporation duly formed,
validly existing, and in good standing under the laws of the State
of Delaware, with all requisite power and authority, corporate and
otherwise, to carry on its business as it is being presently
conducted. Buyer is duly qualified to do business in and is in
good standing as a foreign corporation doing business in the States
of Connecticut and New York.
4.2 Binding Obligations. The execution, delivery and
performance of this Agreement has been duly authorized by all
necessary corporate action on the part of Buyer. This Agreement
has been duly executed and delivered by Buyer and constitutes a
valid and binding obligation of Buyer enforceable against Buyer in
accordance with its terms. No filing with, and no permit,
authorization, consent or approval of any third party is necessary
for the consummation of the transactions contemplated by this
Agreement. Neither the execution and delivery of this Agreement by
Buyer nor the consummation by Buyer of the transactions
contemplated herein nor compliance by Buyer with any of the
provisions hereof will (i) conflict with or result in any breach of
any provision of the organizational documents of Buyer; (ii) result
in a violation or breach of, or constitute a default under, any of
the terms, conditions or provisions of any contract, agreement or
other instrument or obligation to which Buyer is a party or which
Buyer is bound; or (iii) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Buyer.
4.3 Brokers and Finders. Buyer has not employed any broker
or finder or incurred any liability for any financial advisory
fees, brokerage fees, commissions, or finder's fees, or like
compensation in connection with the Agreement or the transactions
contemplated hereby.
4.4 Regulation D. Buyer will acquire the Stock solely for
its own account as an investment, and not with a view to the
distribution thereof, and has no present or contemplated agreement
or commitment providing for or which is likely to compel the
disposition of the Stock. Buyer is an accredited investor, as
defined in rules applicable to Regulation D promulgated by the
United States Securities and Exchange Commission. Buyer
acknowledges and understands that the shares of Stock have not been
registered pursuant to either applicable state or federal
securities laws, but were issued in reliance upon private placement
exemptions contained therein. Buyer has had the opportunity to
review such documents and ask such questions of the Sellers as
Buyer has deemed pertinent to its decision to invest in the Stock.
4.5 Tax Matters. Buyer will cause RDMC to file its tax
returns and pay any state and/or federal taxes due with respect to
the period commencing the day following the Closing Date.
4.6 Survival of Representations and Warranties. The
representations and warranties of the Buyer contained in this
Article IV shall survive the consummation of the transactions
contemplated herein until July 31, 1999, after which no claim may
be made for breach of such representations and warranties.
ARTICLE V
COVENANTS; LIMITATION OF LIABILITY
5.1 Tax Matters. Sellers shall cause the Corporations to
file their respective tax returns and pay any state and/or federal
taxes due with respect to the period ending on the Closing Date.
Sellers shall pay all taxes arising from the sale of the Stock
and/or Assets. Buyer shall cooperate, reasonably, with Sellers and
permit them access to documents and records in Buyer's possession
or control which are necessary for the preparation and filing of
such tax returns. Sellers shall indemnify Buyer and reimburse
Buyer upon demand for any such taxes, interest, additions or
penalties which accrue, or are related to periods prior to, and
including, the Closing Date, or which arise from or are related to
the sale of the Stock and/or the Assets, and not paid by Sellers
when due. Buyer shall indemnify Sellers and reimburse Sellers upon
demand for any such taxes, interest, additions or penalties which
accrue, or are related to periods following the Closing Date, and
not paid by Buyer when due. Nothing herein shall be construed to
prohibit Sellers from contesting any assessments of taxes,
interest, additions or penalties, provided such contest is timely
prosecuted and diligently pursued, without interruption, to its
conclusion, and provided further that adequate reserve is made for
the payment of such taxes, interest, additions or penalties (and
any additional amounts which may become due during the period of
the pendency of such contest).
5.2 Indemnification by Sellers. (a) Sellers and RDC hereby
agree, jointly and severally, to indemnify and hold harmless Buyer
and its affiliates from and against any and all loss, cost,
damages, claims and expenses (including reasonable attorneys' fees
and court costs) ("Damages") which it may sustain by reason of (i)
the inaccuracy of any of the warranties or representations of
Sellers or the Corporations contained in this Agreement, or in any
agreement or document delivered pursuant to Sections 7.2(a) and
7.2(b) hereof, and (ii) failure to comply with any of the covenants
or agreements of Sellers or the Corporations contained in this
Agreement, or in any agreement or document delivered pursuant to
Section 7.2(a) and 7.2(b) hereof; provided, however, that
notwithstanding anything contained herein to the contrary, in no
event shall Rostenberg or RDC be obligated to indemnify Buyer or
any affiliate hereunder with respect to a breach of Section 6.1
hereof by ▇▇▇▇▇, and in no event shall ▇▇▇▇▇ or RDC be obligated to
indemnify Buyer or any affiliate hereunder with respect to a breach
of Section 6.1 hereof by Rostenberg.
(b) Sellers agree to indemnify and hold Buyer and RDMC
harmless against any labor or employment liabilities, actions, or
charges arising on or before the Closing Date, including, but not
limited to, pending or threatened unfair labor practice charges,
grievances, arbitrations, civil actions related to labor or
employment issues in state or federal court, claims for employee
benefits (except as otherwise provided in Section 2.2(a)), and
discrimination charges.
(c) Sellers agree to indemnify and hold Buyer and RDMC
harmless against any violations by either Corporation of any
copyright laws, user agreements, or other similar laws or
agreements which pertain to any software or computer program
formerly or currently used by either Corporation in connection with
its business operations.
(d) The provisions of this Section 5.2 may be enforced,
without limitation, by way of setoff against sums payable under
Section 6.2 hereof.
(e) Notwithstanding anything contained herein to the
contrary, (i) Sellers' obligations of indemnity pursuant to this
Section 5.2 may not be enforced by Buyer and its affiliates until
the aggregate Damages exceed Twenty Thousand and No/100 Dollars
($20,000.00), after which the obligations of Sellers and RDC shall
be retroactive to the first dollar of Damages; (ii) the maximum
aggregate obligation of Sellers and RDC pursuant to this Section
5.2 shall be equal to the Purchase Price as finally determined;
provided, however, that this limitation shall not apply to, or
include, (x) liabilities assumed or retained by Sellers pursuant to
Section 2.2(a) above of which any Seller or RDC had knowledge as of
the Closing Date, or which relate to, or are attributable to,
either the Receivables or Work in Process, or (y) Damages resulting
from fraud on the part of either, or both, of Sellers; and (iii)
there shall be no limitation on the duration of the obligations of
Sellers and RDC under this Section 5.2 other than the limitation on
the survival of certain representations and warranties provided in
Section 3.25. Clause (i) above shall not apply to Damages which
arise from alleged improper or unauthorized use by Sellers, RDC or
RDMC, prior to Closing, of Microsoft Office.
(f) Prior to making any claim for indemnification
hereunder, Buyer will apply insurance proceeds collected as set
forth in Section 6.7 hereof.
5.3 Indemnification by Buyer. Buyer agrees to protect,
defend, indemnify and hold harmless Sellers, Klein, Hallock, Cuddy,
and RDC against and in respect of any and all loss, damage,
obligation, liability, claim, action or cause of action,
encumbrance, cost or expense (including, without limitation,
reasonable attorneys' fees and court costs) caused by (i) any
untruth, inaccuracy, breach or nonfulfillment or failure of any
representation, warranty, covenant or agreement of Buyer contained
in this Agreement or in any agreement or document delivered
pursuant to Section(s) 7.1 hereof; or (ii) the performance and
operation of the obligations of RDMC under the Contracts and the
Leases and Other Agreements after the Closing Date whether they be
performed by Buyer or RDMC, it being understood that Buyer's
obligation to protect, defend, indemnify and hold harmless under
this subsection (ii) shall include, without limitation, the
obligation to do so in connection with the performance of the Lease
Agreement by and between RDMC and Sanwa Leasing Corporation, dated
March 9, 1995 (which Lease Agreement is a Contract). Buyer's
obligations under this Section 5.3 shall include, without
limitation, the obligation to indemnify, protect and defend
Sellers, Klein, Hallock, Cuddy and RDC with respect to losses,
damages, obligations, liabilities, claims, actions, causes of
action, encumbrances, costs or expenses (including, without
limitation, reasonable attorneys' fees and court costs) in
connection with any allegation by any Plaintiff (as hereinafter
defined) that a Contract or Lease and Other Agreement was violated
by RDC, RDMC, Sellers, Klein, ▇▇▇▇▇▇▇ or ▇▇▇▇▇ by reason of the
failure of such parties to obtain the consent or approval of
Plaintiffs prior to the assignment of the Contract or Lease and
Other Agreement to Buyer or prior to the transfer of the Stock to
Buyer (a "Consent Allegation"), provided that the Consent
Allegation is joined with an allegation by such Plaintiff against
such indemnified party(ies) with respect to the performance or
nonperformance or other breach by Buyer, RDMC or their affiliates
of such Contract or Lease and Other Agreement that occurred after
the Closing (a "Breach Allegation") and results in a final, non-
appealable judgment entered against RDMC and/or Buyer. Buyer shall
not have an obligation to indemnify, protect or defend such parties
as aforesaid in connection with any Consent Allegation unless the
Consent Allegation is joined with a Breach Allegation.
Notwithstanding the foregoing, the obligation of Buyer to protect,
defend, indemnify and hold harmless, in any case under clause (ii)
of this Section 5.3 in which the actions, or inactions, of Sellers
give rise to the claim for indemnity, Sellers shall be limited to
the extent that the certificate of incorporation and by-laws of
RDMC and/or applicable state law, as they existed on December 15,
1996, limit RDMC's obligation to indemnify Sellers.
5.4 Enforcement of Indemnification Provisions. (a) If any
party hereto believes itself to be entitled to receive
indemnification from any other party hereto pursuant to Sections
5.2 and 5.3 hereof, then the party claiming the right of
indemnification (the "Indemnified Party") shall notify the party,
or parties, from whom indemnification is sought (the "Indemnifying
Party" or "Indemnifying Parties"), in writing, of the matter as to
which the Indemnified Party seeks indemnification; provided,
however, that no delay on the part of the Indemnified Party in
notifying any Indemnifying Party shall relieve the Indemnifying
Party from any obligation hereunder unless, and then solely to the
extent, the Indemnifying Party is prejudiced thereby.
(b) If the matter for which indemnification is sought is
a claim made against the Indemnified Party by a third party (a
"Third Party Claim"), then the Indemnifying Party shall have the
right to defend the Indemnified Party against the Third Party Claim
with counsel of its choice reasonably satisfactory to the
Indemnified Party so long as the Indemnifying Party notifies the
Indemnified Party in writing within thirty (30) days after receipt
by the Indemnifying Party of notice from the Indemnified Party of
the Third Party Claim that the Indemnifying Party will assume the
defense of the Third Party Claim. The Indemnifying Party shall
conduct the defense of the Third Party Claim actively and
diligently with a law firm selected by the Indemnifying Party and
reasonably acceptable to the Indemnified Party. In the case of a
claim for injunctive or other equitable relief, the Indemnified
Party shall have the right to defend that claim with one law firm
of its choice, at the expense of the Indemnifying Party.
(c) The Indemnified Party will not consent to the entry
of any judgment or enter into any settlement with respect to the
Third Party Claim without the prior written consent of the
Indemnifying Party, not to be withheld unreasonably, and the
Indemnifying Party will not consent to the entry of any judgment or
enter into any settlement with respect to the Third Party Claim
without the prior written consent of the Indemnified Party, not to
be withheld unreasonably.
5.5 Limitation on Liability. IN NO EVENT WILL ANY PARTY
HERETO OR ANY DIRECT OR INDIRECT PARTNER, SHAREHOLDER, OWNER, OR
AFFILIATE THEREOF, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF ANY
OF THE FOREGOING OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF BE
LIABLE TO ANY OTHER PARTY OR ANY PARTY ENTITLED TO BE INDEMNIFIED
HEREUNDER IN CONTRACT, TORT OR OTHERWISE WITH RESPECT TO ANY
CONSEQUENTIAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR
ANY AGREEMENT EXECUTED AND DELIVERED PURSUANT TO SECTIONS 7.1 AND
7.2 HEREOF.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Non-Compete Agreements. (a) As a material inducement to
the execution of this Agreement by Buyer, each Seller severally
agrees that in New York, New Jersey and Connecticut:
(i) For a period of five (5) years from the Closing
Date he shall be precluded from, and shall refrain from, directly
or indirectly soliciting third party property management, leasing,
construction, consulting, or brokerage services business from the
clients of either Seller or the Corporations existing as of the
Closing Date or from any other party to which either the Sellers or
either Corporation provided such services at any time during the
twelve (12) month period prior to the Closing Date;
(ii) For a period of five (5) years from the Closing
Date, he shall be precluded from, and shall refrain from, directly
or indirectly seeking to acquire entities, enterprises, or
companies, or the assets of any of them, consisting of service
contracts of companies primarily engaged in third party fee real
estate management or brokerage business other than in providing
such services in connection with property owned by Sellers or in
which Sellers have a controlling ownership interest;
(iii) For a period of five (5) years from the Closing
Date he shall refrain from directly or indirectly employing or
offering or soliciting the employment (or prospective employment)
of any person, or persons employed by either Corporation as of the
Closing Date, or any person employed by either Corporation, or by
the Sellers, at any time within twelve (12) months following the
Closing Date; and
(iv) He shall not, at any time, interfere with the
business of RDMC and/or the Buyer in the performance of the
Contracts, seek to influence the owner of any Property (or their
respective representatives, managers, or agents) in a manner which
could be detrimental to the continued business relationship between
RDMC and/or Buyer and such owner under any of the Contracts, and
any renewals or extensions thereof, or from soliciting for the
benefit of any party other than RDMC or Buyer the business
represented by the Contracts.
(b) Each of ▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ severally agrees
that in Westchester, Rockland, Orange, Putnam and Duchess Counties
of the State of New York, and in Fairfield and New Haven Counties
in the State of Connecticut;
(i) for a period of two (2) years from the Closing
Date (except as set forth below) he shall be precluded from, and
shall refrain from, directly or indirectly soliciting third party
property management, leasing, construction, consulting or other
brokerage services business from the clients of either the Sellers,
the Corporations existing as of the Closing Date or from any other
party to which either the Sellers or either Corporation provided
such services at any time during the twelve (12) month period prior
to the Closing Date; provided; however, that (except as set forth
below) this Subsection (i) shall not apply to ▇▇▇▇▇, ▇▇▇▇▇ or
▇▇▇▇▇▇▇, as applicable, if he is terminated by Buyer or an
affiliate of Buyer (the "Employer") for any reason other than (A)
willful misconduct in the performance of his obligations as an
employee of the Employer, (B) being charged by the applicable
district attorney with a crime involving fraud, dishonesty or moral
turpitude, (C) gross negligence in the performance of his duties as
an employee of the Employer after at least thirty (30) days prior
notice thereof with an opportunity to cure, (D) a material failure
to perform the duties of his employment with the Employer which
duties have been explained to him by an officer of the Employer at
the level of senior vice president or higher after at least ten
(10) days notice of such failure with the opportunity to cure or
(E) material breach of the provisions of either this subsection (i)
or subsection (ii) of this Section 6.1(b) (the conditions described
in (A) through (E) shall be referred to as "Cause"); and
(ii) for a period of five (5) years from the Closing
Date, he shall refrain from directly or indirectly employing or
offering or soliciting the employment (or prospective employment)
or any person, or persons employed by either Corporation or by
Buyer or an affiliate of Buyer at any time within twelve (12)
months following the Closing Date.
If the employment of Cuddy or ▇▇▇▇▇▇▇ is terminated by the Employer
for Cause, then the restrictions set forth in Subsection 6.1(b)(i)
shall apply to such terminated employee only for a period of ninety
(90) days from the date of his termination, and the restrictions
set forth in Subsection 6.1(b)(ii) shall apply to such terminated
employee only for a period of six (6) months from the date of his
termination, provided, however, that in no case shall the
restrictions of Subsections 6.1(b)(i) and 6.1(b)(ii) extend beyond
the time periods stated therein.
(c) Notwithstanding the foregoing, nothing contained in
this Section 6.1 shall restrict Sellers, Klein, Cuddy and/or
▇▇▇▇▇▇▇ from performing activities on behalf of, or for the benefit
of, Insignia Financial Group, Inc., and/or its affiliates, pursuant
to a written agreement, or from owning up to four and 90/100
percent (4.90%) of the capital stock of a public company, or from
entering into and performing that certain Share Sale and Consulting
Agreement dated as of February 28, 1997, among RDC, Sellers, Klein,
▇▇▇▇▇▇▇ and Cuddy.
(d) Sellers, Klein, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ each agree that
the foregoing non-competition covenants are fair and reasonable in
both type and duration, and that such covenants are reasonably
necessary for the protection of Buyer (and its affiliates), and the
business to be conducted following acquisition of the stock.
Should any provision of this Section 6.1 be held to be
unenforceable, the remaining provisions of this Section 6.1 shall
remain enforceable, and the unenforceable provision shall be given
the broadest application which would be legally enforceable.
Sellers, Klein, ▇▇▇▇▇▇▇ and Cuddy each acknowledge that the breach,
or threatened or attempted breach, by Sellers, Klein, ▇▇▇▇▇▇▇ and
▇▇▇▇▇ each of any provision of this Section 6.1 would cause
irreparable harm to Buyer, not completely compensable in monetary
damages, and that Buyer shall be entitled, in addition to all other
applicable remedies, to injunctive relief (both temporary and
permanent), and to a decree for specific performance of the terms
of this Section 6.1, without being required to provide, or prove,
damages, or to furnish any bond or other security. The individual
against whom enforcement of this Section 6.1 is obtained shall
reimburse Buyer for all reasonable expenses incurred, including,
without limitation, reasonable attorneys' fees, incurred in
connection with that enforcement.
(e) The restrictions of this Section 6.1 are not
intended to modify or replace any other or similar restriction
placed upon any party under any other agreement including, without
limitation, employment agreements described in this agreement, and
all such restrictions are intended to be construed according to the
documents in which they are contained, without reference to other
or similar agreements.
6.2 Contingent Payments. (a) As part of the Purchase Price,
for each of the three (3) anniversary years based upon the Closing
Date (each of which may be referred to as a "Contingent Payment
Year," or collectively as "Contingent Payment Years"), Buyer will
make contingent payments to Sellers as set forth below based upon
the amount of Qualified Revenue (as hereinafter defined) received
by Buyer or other affiliates of Buyer in each of such years. For
the purposes of this Agreement, the term "Qualified Revenue" for
each Contingent Payment Year shall mean the sum of:
(i) Sixty percent (60%) of fees earned as
determined in accordance with generally accepted accounting
principles in a Contingent Payment Year by Buyer or by an affiliate
of Buyer (including, but not limited to RDMC) and allocated to the
Stamford, Connecticut, office from agency leasing, property
management, tenant representation, brokerage activity, and any
other consulting or similar services provided with respect to
commercial real estate in (x) Westchester, Rockland, Orange, Putnum
and Duchess Counties in the State of New York, and/or (y)
Fairfield, Hartford, Litchfield, Middlesex and New Haven Counties
in the State of Connecticut and/or (z) any national account
business allocated to the Stamford, Connecticut, office reasonably
and consistently in accordance with Buyer's business practices (as
they may change from time to time), whether or not combined with
Buyer or its affiliates; but
(ii) Qualified Revenue shall not include, and shall
be reduced by, (x) allocated direct reimbursement of actual costs
and expenses associated with, and paid pursuant to, property
management or leasing agreements, and (y) payments to third party
brokers, in each case, in connection with generating such revenue.
(b) Notwithstanding the foregoing, any revenue received
by Buyer, or by any of its affiliates (including but not limited to
RDMC) as a result of the acquisition of another company (wherever
located) or from properties in which Buyer or any of its affiliates
have an ownership interest, or in connection with a transaction
with a third party providing economic consideration to such third
party in exchange for, or in connection with, the receipt of
property management revenue, including, but not limited to, "fee
split" arrangements, will be excluded from Qualified Revenue.
(c) Buyer shall operate RDMC business in a commercially
reasonable manner attempting to maximize Qualified Revenue and
making good faith efforts to collect Qualified Revenue and to cause
its affiliates to do so. Notwithstanding anything seemingly to the
contrary contained in this Agreement, Buyer and its affiliates,
including but not limited to RDMC, shall have the right to decline
or reject any business made available to any of such entities
provided those entities act in good faith in any such decision,
such decision is based upon reasonably prudent business standards
not inconsistent with Buyer's corporate plans and strategies, and
such decision is not based upon an attempt to reduce Qualified
Revenue.
(d) For any Contingent Payment Year in which Qualified
Revenue equals, or exceeds, Three Million One Hundred Thousand and
No/100 Dollars ($3,100,000.00) (the "Qualifying Amount"), Buyer
will pay to Sellers, allocated among them as they shall direct
Buyer in writing, the aggregate sum of Forty-Seven Thousand Six
Hundred Nineteen and No/100 Dollars ($47,619.00) for each One
Hundred Thousand and No/100 Dollar ($100,000.00) unit of Qualified
Revenue in excess of Three Million One Hundred Thousand and No/100
Dollars ($3,100,000.00) upon receipt of the Qualified Revenue;
provided, however, that the maximum amount payable to Sellers with
regard to any Contingent Payment Year shall in no event exceed
Three Hundred Thirty-Three Thousand Three Hundred Thirty-Three and
33/100 Dollars ($333,333.33) (the "Maximum Annual Contingent
Payment"). With respect to amounts of Qualified Revenue that are
less than One Hundred Thousand and No/100 Dollars ($100,000.00),
the amount to be paid to Sellers, allocated among them as they
shall direct Buyer in writing, will be the amount of Forty-Seven
Thousand Six Hundred Nineteen and No/100 Dollars ($47,619.00)
prorated in accordance with the percentage of One Hundred Thousand
and No/100 Dollars ($100,000.00) earned. In the event that
Qualified Revenue with respect to a Contingent Payment Year does
not equal at least the Qualifying Amount, then there shall be no
obligation to make, nor right to receive, payments pursuant to this
Section 6.2 as to that Contingent Payment Year, except as set forth
herein.
(e) Notwithstanding the foregoing, in the event that in
a Contingent Payment Year, Qualified Revenue exceeds Three Million
Eight Hundred Thousand and No/100 Dollars ($3,800,000.00), then any
portion of the amount by which Qualified Revenue exceeds Three
Million Eight Hundred Thousand and No/100 Dollars ($3,800,000.00)
may be added, retroactively, to Qualified Revenue for any preceding
Contingent Payment Year, and the payment due Sellers pursuant to
this Section 6.2 with respect to such Contingent Payment Year shall
be recalculated and any additional payment required shall be paid
to Sellers in accordance with such recalculation. In addition,
Qualified Revenue in excess of Three Million Eight Hundred Thousand
and No/100 Dollars for a Contingent Payment Year which is not
"carried back" as provided in the preceding sentence may be carried
forward to the next succeeding Contingent Payment Year for the
purposes of calculating the amount of the payment due under this
Section 6.2 to Sellers in such subsequent Contingent Payment Year,
if, and only if, the amount of Qualified Revenue in the year to
which any excess is proposed to be carried forward is not less than
the Qualifying Amount (without regard to any amount carried forward
or back to such year). In no other event may any amount of
Qualified Revenue be carried forward.
(f) Any Contingent Payment due Sellers pursuant to this
Section 6.2 shall be made by May 15 of the year following the
Contingent Payment Year for which such payment is calculated, but
only to the extent that all Qualified Revenue has been actually
received by Buyer. To the extent that any portion of the Qualified
Revenue has not been received by such date, a prorata portion of
the Contingent Payment will be withheld and paid promptly following
receipt by Buyer of the remaining portion of Qualified Revenue;
provided, that "late received" portions of Qualified Revenue shall
be aggregated and distributed to Sellers not more frequently than
the end of each calendar quarter.
(g) The aggregate maximum Contingent Payments for all
three (3) Contingent Payment Years shall not exceed One Million and
No/100 Dollars ($1,000,000.00). Notwithstanding the foregoing
sentence, if the average Qualified Revenue over the three (3)
Contingent Payment Years is at least Four Million and No/100
Dollars ($4,000,000.00) per year, then Sellers shall receive an
additional one (1) time contingent payment of Two Hundred Fifty
Thousand and No/100 Dollars ($250,000.00) on May 15 of the year
following the final Contingent Payment Year.
(h) Buyer will establish and maintain records which will
account for the components of Qualified Revenue and the sums (if
any) payable under the provisions of this Section 6.2. Buyer shall
make the calculations of these amounts, and shall provide such
information to Sellers, on a quarterly basis (i.e., within thirty
[30] days after the end of each calendar quarter of each applicable
Contingent Payment Year) together with sufficient documentation to
support the calculations. All such calculations and documentation
shall be maintained and provided by Buyer in good faith but the
parties hereto shall not be bound by them, and each party hereto
reserves the right to contest, or to correct, such calculations and
documentation. Upon Sellers' request, both Sellers and their
representatives shall be given access to, and an opportunity to
review (and, at their expense, copy), all of the books and records
maintained by Buyer and its affiliates, and used in the calculation
of Qualified Revenue. In the event any dispute arises among
Sellers and Buyer regarding the calculation of Qualified Revenue,
then such dispute shall be submitted to arbitration in accordance
with the rules and procedures of the American Arbitration
Association. Any party may demand such arbitration in writing,
which demand shall also include the name of the arbitrator chosen
by the party demanding arbitration, together with a statement of
the matter in controversy. Within fifteen (15) days after such
demand, the other party shall choose its arbitrator, and the two
arbitrators so selected shall name a third arbitrator within
fifteen (15) days. The arbitration hearing shall be held at a
location in New York, New York, chosen by the three arbitrators on
not less than twenty-one (21) days' notice to all parties. The
arbitration rules and procedures of the American Arbitration
Association shall be utilized in the arbitration hearing and the
law of evidence of the state in which the hearing is conducted
shall govern the presentation of evidence at such hearing. Both
the hearing and any award resulting therefrom shall be made with
dispatch. An award rendered by a majority of the arbitrators
appointed in accordance with this Section 6.2(i) shall be binding
and final upon all parties to the proceeding, and judgment on such
award may be entered by either party in any appropriate court
having jurisdiction. The party against whom the award is made
shall bear all cost and expense of the arbitration, including,
without limitation, the reasonable expenses incurred by the
parties.
6.3 Employment and Tenure of Rostenberg and ▇▇▇▇▇. (a) On
the Closing Date, each of Rostenberg and ▇▇▇▇▇ shall become an
employee of Buyer pursuant to an employment agreement (the
"Rostenberg Employment Agreement" and the "▇▇▇▇▇ Employment
Agreement") in form and substance mutually satisfactory to
Rostenberg, or ▇▇▇▇▇, as the case may be, and Buyer. ▇▇▇▇▇ shall be
an employee of Buyer, but an employment agreement between ▇▇▇▇▇ and
Buyer shall not be required. If either Rostenberg or ▇▇▇▇▇ is
employed by RDMC, then on the Closing Date, the employment of both
Rostenberg and ▇▇▇▇▇ with RDMC shall be terminated without
liability to RDMC.
(b) In recognition of the value of both Rostenberg and
▇▇▇▇▇ to the transactions contemplated by this Agreement, if, prior
to January 1, 1998, (i) either Rostenberg or ▇▇▇▇▇ voluntarily
terminates his employment with Buyer, or (ii) Buyer terminates the
employment of either Rostenberg or ▇▇▇▇▇ for "cause," then the
terminated party shall pay to Buyer the sum of Two Hundred Thousand
and No/100 Dollars ($200,000.00) within thirty (30) days after the
effective date of such termination. For the purposes of this
Section 6.3(b) only, the term "cause" shall mean (x) in the case of
Rostenberg, "Cause" under the Rostenberg Employment Agreement, and
(y) in the case of ▇▇▇▇▇, Cause, as defined in Subsection
6.1(b)(i). In addition, if, prior to January 1, 1999, either
Rostenberg voluntarily terminates his employment with Buyer, or
Buyer terminates Rostenberg's employment for "cause," then
Rostenberg shall pay to Buyer the sum of One Hundred Thousand and
No/100 Dollars ($100,000.00) within thirty (30) days after the
effective date of such termination.
6.4 Press Releases. (a) No party to this Agreement other
than Buyer will issue or cause publication of any press release or
other announcement or public communication with respect to this
Agreement or the transactions contemplated hereby, including,
without limitation, a general announcement to such party's
employees, without the prior consent of the other parties, which
consent will not be unreasonably withheld; provided, however, that
nothing herein will prohibit any party from issuing or causing
publication of any such press release, announcement, or public
communication to the extent that such party reasonably determines
such action to be required by law, or by the rules of any national
stock exchange or association applicable to it, in which case the
party making such determination will use reasonable efforts to
allow the other parties reasonable time to comment upon such
release or announcement in advance of its issuance or to make any
disclosure necessary to obtain any consents required or deemed
appropriate by the disclosing party. Buyer will provide to each
Seller a copy of any press release, other announcement, or public
communication, at or before its issuance.
(b) The terms of the Confidentiality Letter dated
November 12, 1996, executed by Insignia Financial Group, Inc. and
the Corporations shall not remain in effect following Closing,
unless and until otherwise agreed to by the parties thereto.
6.5 RDC Change of Name. No later than ten (10) business days
following the Closing Date, RDC shall change its corporate name to
exclude the names "Rostenberg," "▇▇▇▇▇," and any and all names
derivative therefrom or substantially similar thereto as a matter
of law.
6.6 Cooperation Regarding Licensing. In the event Buyer
shall not have received on or before the Closing Date all real
estate brokerage licenses necessary to conduct the business of RDMC
and the performance of the Contracts and Leases and Other
Agreements, then RDC and Sellers shall cooperate with Buyer
following the Closing to act as co-brokers without further
compensation to facilitate the conduct of such business by Buyer.
6.7 Insurance Proceeds. Buyer will collect all insurance
proceeds payable with respect to pre-Closing liabilities and will
apply such proceeds (less ordinary and necessary costs of
collection) prior to making claims under Section 5.2.
6.8 RDC Employment Agreements. At or before the Closing, RDC
will terminate any employment agreements with Rostenberg, Klein,
and any Prospective Employees hired by Buyer or an affiliated
employer.
ARTICLE VII
DOCUMENTS AT CLOSING; POST-CLOSING
7.1 Delivery of Documents by Buyer. At the Closing, Buyer
shall deliver such documents as are necessary or appropriate in
connection with the consummation of the transactions, including,
without limitation, the following:
(a) The cash portion of the Purchase Price, as provided
for in Section 1.2;
(b) The Employment Agreements of both Rostenberg and
▇▇▇▇▇ (if not previously delivered) executed by Buyer and Insignia
Financial Group, Inc.;
(c) An opinion of counsel to Buyer addressing such
matters as Sellers shall reasonably request;
(d) Current good standing or other similar certificate
for Buyer issued by the Secretary of State of Delaware and evidence
of qualification to do business and good standing in the States of
Connecticut and New York;
(e) Evidence in form and substance reasonably
satisfactory to Sellers that Buyer has the power and authority to
execute and enter into this Agreement and to consummate the
transactions contemplated hereby, and that any and all actions
required to authorize and approve the execution of and entry into
this Agreement by Buyer, the performance by Buyer of all of Buyer's
duties and obligations under the Agreement, and the execution and
delivery by Buyer and Insignia Financial Group, Inc. of all
documents and other items to be executed and delivered to Sellers
at Closing, have been accomplished;
(f) All other agreements, instruments and documents
required by this Agreement to be delivered by Buyer; and
(g) Such other agreements, instruments and documents as
are reasonably requested by Sellers and/or either Corporation to
effectuate the terms of this Agreement.
7.2 Delivery of Documents by Sellers and the Corporations.
At the Closing, Sellers and the Corporations shall deliver to Buyer
such documents as are necessary or appropriate in connection with
the consummation of the transactions contemplated by this
Agreement, including, without limitation, the following:
(a) All certificates evidencing the Stock, duly endorsed
in accordance with the terms of this Agreement or accompanied by
valid executed stock powers or other executed and enforceable
documents of transfer in favor of Buyer;
(b) A ▇▇▇▇ of sale and assignment documents, as
appropriate, in form acceptable to Buyer and Sellers, transferring
title to, or otherwise assigning, the Assets and the Tradenames to
Buyer;
(c) An opinion of counsel to each of the Sellers and to
each Corporation addressing such matters as Buyer shall reasonably
request;
(d) Current good standing or similar certificates for
RDMC and RDC from the Secretary of State of New York;
(e) Evidence in form and substance reasonably
satisfactory to Buyer that Sellers and RDC, each has the power and
authority to execute and enter into this Agreement and to
consummate the transactions contemplated hereby, and that any and
all actions required to authorize and approve the execution of and
entry into this Agreement by the Sellers and RDC the performance by
Sellers and RDC of their respective duties and obligations under
this Agreement, and the execution and delivery by Sellers, RDMC and
RDC of documents and other items to be executed and delivered to
Buyer at Closing, have been accomplished;
(f) The Employment Agreements (if not previously
delivered) executed by Rostenberg and by ▇▇▇▇▇, as appropriate;
(g) All other agreements, instruments and documents
required by this Agreement to be delivered either by either
Corporation, or by any Seller; and
(h) Such other agreements, instruments and documents as
are reasonably requested by Buyer in order effectively to sell,
transfer, assign, deliver and vest in Buyer title to and possession
of the Stock and the Assets, and/or to effectuate the terms of this
Agreement.
7.3 Oncor Stock. Promptly following the Closing, RDC shall
attempt to transfer The Office Network, Inc. Certificate Number 47
representing one thousand (1,000) shares of common stock in The
Office Network, Inc. (the "Oncor Stock") to Buyer in accordance
with the documents which regulate that transfer. If the issuer of
the Oncor Stock exercises its purchase rights with respect to the
Oncor Stock, then Buyer shall receive the purchase price paid.
Pending transfer of the Oncor Stock, RDC shall abstain from voting
the Oncor Stock on any matter unless abstention would cause RDC to
be in breach of contract or in violation of applicable law. If the
issuer of Oncor Stock does not exercise its purchase rights, then
RDC and Buyer will cooperate with each other and with issuer to the
extent necessary to effect the purchase by Buyer of the Oncor Stock
and the assumption by Buyer of the prospective obligations under
the Stockholder Agreement and the Operating Agreement attached
hereto as part of Exhibit "7.3."
7.4 Further Assurances. Subsequent to the Closing, Sellers
shall, at Buyer's request but without further cost or expense to
Sellers, execute and deliver to Buyer such other agreements,
instruments and documents, and take such other actions as Buyer may
reasonably request to carry out and effectuate the terms and
intentions of this Agreement. Sellers and Buyer shall each
cooperate reasonably with Buyer in an effort to effect a pleasant
and efficient transfer of the obligations of RDMC under the
Contracts. After the Closing, Buyer shall, at Sellers' request but
without further cost or expense to Buyer, execute and deliver to
Sellers such other agreements, instruments and documents, and take
such other actions as Sellers may reasonably request to carry out
and effectuate their respective obligations under the terms of this
Agreement.
ARTICLE VIII
MISCELLANEOUS
8.1 Notices. Any notice or other communication required or
permitted to be given hereunder shall be deemed to have been
properly given upon personal delivery; upon completed electronic
facsimile transmission; three (3) days after deposit when deposited
in the United States mails if mailed by certified mail, postage
prepaid; or one (1) day after deposit with an overnight courier or
delivery service for next day delivery provided that the sending
party has a receipt of such deposit, addressed as follows (or to
such other addresses as the parties may specify by due notice to
the others):
TO BUYER: INSIGNIA/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ CO., INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: INSIGNIA FINANCIAL GROUP, INC.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and a copy to: WHITE & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
TO SELLERS AND
THE CORPORATIONS: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To RDC: ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ Company, Inc.
c/o ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: BATTLE ▇▇▇▇▇▇
Park Avenue Tower
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
To ▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
To ▇▇▇▇▇▇▇: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
To Cuddy: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
8.2 Risk of Loss. All risk of condemnation and risk of loss,
damage or destruction of the Assets, by fire or otherwise, prior to
the Closing shall be on Sellers and RDC.
8.3 Survival of Agreement. All covenants, agreements,
representations, warranties and conditions of Closing contained in
this Agreement shall survive the Closing to the extent provided in
accordance with their terms.
8.4 Headings. The headings in this Agreement are intended
solely for convenience and reference and shall be given no effect
in the construction or interpretation of this Agreement.
8.5 Governing Law. This Agreement shall be governed by the
laws of the State of New York. The parties hereby consent to the
jurisdiction of the courts of the State of New York and the United
States District Courts for the State of New York, as well as to the
jurisdiction of all courts from which an appeal may be made from
such courts, for the purpose of any suit, action or other
proceeding arising out of any parties' obligations arising under
this Agreement or any other agreement, instrument, or document
delivered pursuant hereto or at Closing, and with respect to the
transactions contemplated hereby, and expressly waive any and all
objections which the parties, or any of them, may have as to the
venue in any of such courts.
8.6 Assignment. This Agreement shall inure to the benefit of
and be binding upon the heirs, assigns, successors and legal
representatives of each of the parties. No interest under this
Agreement may be assigned by any Seller or either Corporation
without the written consent of Buyer. No interest of Buyer under
this Agreement may be assigned by Buyer without the written consent
of Sellers. Notwithstanding the foregoing, Buyer may assign its
rights hereunder, in whole or in part, to a wholly owned subsidiary
of Buyer or of Insignia Financial Group, Inc. No such assignment
shall release Buyer from its obligations hereunder, and Buyer shall
remain primarily responsible for the performance of its obligations
hereunder notwithstanding such assignment.
8.7 No Third Party Beneficiaries. The provisions of this
Agreement are intended to be solely for the benefit of the parties
hereto and, subject to the provisions of Section 8.6, their
successors and assigns. Other than the affiliates of Buyer (and
under Sections 5.2 and 5.3, ▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇), there are
no, nor shall there be any, third party beneficiaries, intended or
otherwise, to or of the parties, and other than the affiliates of
Buyer (and under Sections 5.2 and 5.3, ▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇),
no person or entity not a party to this Agreement shall be entitled
to seek to enforce any of the provisions of this Agreement.
8.8 Counterparts. This Agreement may be executed in one or
more counterparts, all of which will be considered one and the same
agreement, and may not be amended or terminated except by an
instrument in writing signed by the parties. A facsimile
transmission of an original signature of any party hereto shall be
effective to bind that party hereunder.
8.9 Modification. This Agreement may not be amended,
modified, waived, discharged or terminated except by an instrument
in writing signed by the parties.
8.10 Severability. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other
provisions hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provisions were
omitted. Furthermore, in lieu of such illegal, invalid, or
unenforceable provision, there shall be added automatically as a
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.
8.11 Construction and Interpretation. Should any provision
of this Agreement require judicial interpretation, the parties
hereto agree that the court interpreting or construing the same
shall not apply a presumption that the terms hereof shall be more
strictly construed against one party by reason of the rule of
construction that a document is to be more strictly construed
against the party that itself, or through its agent, prepared the
same, and it is expressly agreed and acknowledged that RDC, RDMC,
Rostenberg, Doern, Klein, Hallock, Cuddy, and Buyer and their
respective representatives have participated in the preparation
hereof.
8.12 Exhibits. The Exhibits annexed hereto form an integral
part of this Agreement and are hereby incorporated into this
Agreement wherever reference is made to them to the same extent as
if they were set out in full at the point at which such reference
is made.
8.13 Limited Purpose. The execution of this Agreement by
▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ is only for the purpose of (i)
acknowledging that the knowledge of each of them is imputed to
Sellers pursuant to Section 3.26 hereof, and (ii) entering into the
agreements contained in Section 6.1.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ MANAGEMENT,
CORP., Inc., a New York
corporation
By : ____________________ __________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: ____________________
_________________
▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ COMPANY, INC., ▇▇▇▇▇ ▇. ▇▇▇▇▇
a New York corporation
_________________
By: _______________________ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: ____________________
_________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
See Additional Signature Page
Signature Page for
Stock Purchase and Asset Acquisition Agreement
among Insignia/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Co., Inc.,
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, et al
INSIGNIA/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
CO., INC., a Delaware
corporation
By: _________________________
Title: ______________________