Exhibit 4.2
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is dated this 24th day of
January, 1997, by and between ▇▇▇▇▇ & ▇▇▇▇▇ Company, a Delaware corporation (the
"Company"), and Archon Group. L.P., a Delaware limited partnership (the
"Purchaser").
RECITAL:
The Company desires to sell to the Purchaser 2,500,000 shares of the
Company's Common Stock, $0.01 par value per share (the "Purchased Shares"), for
a purchase price of $4.50 per Purchased Share and an aggregate consideration of
$11,250,000, on the terms and subject to the conditions set forth herein.
In consideration of the foregoing, the Purchaser and the Company agree as
follows:
I. PURCHASE OF PURCHASED SHARES
At the Closing (as described in Section VII(A) of this Agreement), and
subject to the conditions set forth in Section VII(B) and VII(C) of this
Agreement, the Purchaser shall purchase the Purchased Shares for the Company at
a purchase price of $4.50 per Purchased Share. Such purchase price shall be
paid by wire transfer in immediately available funds to a bank account
designated by the Company.
II. PURCHASER ACKNOWLEDGMENTS
A. Purchaser understands and acknowledges that: (i) no federal or state
agency had made any finding or determination as to the fairness of this offering
for investment, nor any recommendation or endorsement of the Purchased Shares;
(ii) the Purchased Shares have not been registered under the Securities Act of
1933, as amended (the "Securities Act") or, any applicable state securities
laws, are being offered and sold to the Purchaser pursuant to an exemption from
such registration laws, and the Purchased Shares cannot be sold by the Purchaser
unless subsequently registered under the Securities Act and such state laws or,
in the opinion of counsel for the Company, an exemption for such registration is
available; (iii) except as set forth in the Registration Rights Agreement
described in Section VII(B)(viii) below, such registration under the Securities
Act and such state laws is unlikely at any time in the future; and (iv) except
pursuant to the Registration Rights Agreement described in Section VII(B)(viii)
below, the Company is not obligated to file a registration statement under the
Securities Act.
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B. Purchaser (i) is acquiring the Purchased Shares for investment for
its own account and not with a view to distribution or resale, (ii) has not
subdivided the Purchased Shares with, nor is it holding all or any portion of
the Purchased Shares, for any other person, (iii) does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to the
Purchased Shares, (iv) agrees not to sell, hypothecate or otherwise dispose of
all or any of the Purchased Shares unless the Purchased Shares have been
registered under the Securities Act and applicable state securities laws or, in
the opinion of counsel to the Purchaser (which opinion shall be provided to the
Company), an exemption from the registration requirements of the Securities Act
and such state laws is available, and (v) does not currently own any Common
Stock of the Company.
C. The Company has made available to the Purchaser and/or its
professional advisers all documents that they have requested relating to an
investment in the Company and has provided satisfactory answers to all of their
questions concerning the business, management and financial affairs of the
Company, the offering and an investment in the Company. The Purchaser
understands that such discussions, as well as written information issued by the
Company, were intended to describe certain aspects of the Company's business and
prospects but were not a thorough or exhaustive description. Representatives of
the Purchaser have visited, or have had the opportunity to visit, the Company's
facilities.
D. Purchaser recognizes that an investment in the Company involves a
high degree of risk, and it has taken full cognizance of and understands all of
the risk factors related to an investment in the Purchased Shares. Purchaser
understands that it may lose its entire investment in the Purchased Shares.
E. Purchaser understands and acknowledges that the Company is relying
on representations, warranties and agreements made by the Purchaser to the
Company herein and, thus, Purchaser hereby agrees to indemnify and hold harmless
each of the Company, its affiliates and its present or future directors,
officers, shareholders, partners, affiliates, agents, attorneys and employees
(collectively, the "Company Indemnified Parties") from and against any and all
losses, claims, damages, liabilities or expenses, including reasonable
attorneys' fees (collectively, the "Losses"), which they or any of them may
suffer, sustain or incur by reason of or in connection with any
misrepresentation or breach of warranty or agreement made by the Purchaser under
this Stock Purchase Agreement.
F. Purchaser and the Company agree that, to the extent permitted by
law, (i) the obligations imposed on Purchaser and the Company in this Agreement
are special, unique and of an extraordinary character, and that in the event of
a breach of this Stock Purchase Agreement by Purchaser or the Company, damages
alone would
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not be an adequate remedy; and (ii) if Purchaser or the Company breach this
contract, the non-breaching party shall be entitled to specific performance and
injunctive and other equitable relief in addition to any other remedy to which
it may be entitled at law or in equity, without posting any bond.
G. Purchaser acknowledges that the Purchased Shares must be held
indefinitely unless subsequently registered under the Securities Act or unless
an exemption from such registration is available. Purchaser is aware of the
provisions of Rule 144 promulgated under the Securities Act which permit limited
resale of shares purchased in a private placement without registration under the
Securities Act subject to the satisfaction of certain conditions, including,
among other things, the existence of a public market for the shares, the
availability of certain current public information about the Company, and the
resale occurring not less than two years after a party had purchased and paid
for the securities to be sold.
H. Purchaser hereby represents and warrants to the Company as of the
date hereof and as of the date of Closing, as follows: Purchaser:
(i) is a limited partnership duly organized, validly existing,
authorized to exercise all its partnership powers, rights, and privileges, and
is in good standing in the State of Delaware;
(ii) has all requisite partnership power and authority to own,
lease and operate it properties and to carry on its business as now conducted
and possesses all business licenses, franchises, rights and privileges material
to the conduct of its business; and
(iii) is registered to do business and is in good standing in all
jurisdictions in which such registration is required, except where the failure
to be so registered or in good standing would not have a material adverse effect
on the Purchaser and its subsidiaries taken as a whole.
I. The foregoing acknowledgments and the Purchaser's due diligence
investigation are not intended, and shall not be construed, to limit or qualify
the representations and warranties of the Company set forth herein.
III. ACCREDITATION
A. Purchaser hereby acknowledges that it is an "accredited investor" as
that term is defined in Rule 501 promulgated pursuant to the Securities Act in
that Purchaser is a corporation NOT formed for the specific purpose of investing
in the Company, with total assets in excess of $5,000,000.
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B. Purchaser further represents that (i) its overall commitment to
investments which are not readily marketable is not disproportionate to its net
worth, and its investment in the Purchased Shares will not cause such overall
commitment to become excessive; (ii) it has adequate net worth and means of
providing for its current needs and to sustain a complete loss of investment in
the Purchased Shares, and it has no need for liquidity in its investment in the
Purchased Shares, (iii) it has such knowledge and experience in financial and
business matters in general and in particular with respect to this type of
investment that it is capable of evaluating the merits and risks of an
investment in the Company, and (iv) it has evaluated and understands the risks
and terms of investment in the Purchased Shares.
C. The execution, delivery and performance by Purchaser of this
Purchase Agreement will not result in any violation of and will not conflict
with, or result in a breach of any of the terms of or constitute a default
under, any provision of federal or state law to which Purchaser is subject, or
any mortgage, indenture, agreement, instrument, judgment, decree, order, rule or
regulation or other restriction to which Purchaser is a party or by which it is
bound.
IV. COVENANTS.
A. BOARD REPRESENTATION. If and so long as the Purchaser owns at least
1,500,000 shares of the Company's Common Stock outstanding, (i) the Company
shall use its reasonable efforts (subject to the fiduciary obligations of the
Board of Directors of the Company to the Company's stockholders) to cause the
Purchaser Nominee to be included in the slate of nominees recommended by such
Board to the Company's stockholders for election as directors at each annual
meeting of the stockholders of the Company and shall use its reasonable efforts
to cause the election of such Purchaser Nominee, including soliciting proxies in
favor of the election of such persons and (ii) in the event that any Purchaser
Nominee elected to the Company's Board of Directors shall cease to serve as a
director for any reason, the vacancy resulting therefrom shall be filled by such
Board with a substitute Purchaser Nominee. As used in this section, the term
"Purchaser Nominee" shall mean ▇▇▇▇ ▇▇▇▇▇▇▇▇ or any other person nominated by
the Purchaser who is employed by the Purchaser or ▇▇▇▇▇▇▇, Sachs & Co.
B. FEES AND EXPENSES. All fees and expenses incurred in connection
with the preparation of this Agreement and the transactions contemplated hereby
will be paid by the party incurring the same.
C. PUBLICITY. The Company will seek the approval of the Purchaser
before making any public announcement respecting the nature of the relationship
between the Company and the Purchaser, which approval will not be unreasonably
withheld, subject to the Company's obligations under applicable law and stock
exchange policy.
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D. FURTHER ASSURANCES. The Company and the Purchaser agree that, from
time to time after the Closing Date, each of them will execute and deliver or
cause the execution and delivery of such further instruments of conveyance and
transfer and take such other action as may be reasonably necessary to carry out
the purposes and intents of this Agreement.
V. COMPANY REPRESENTATIONS
The Company hereby represents and warrants to the Purchaser as of the
date hereof and as of the date of the Closing as follows:
A. Corporate Organization and Authority. The Company:
(i) is a corporation duly organized, validly existing,
authorized to exercise all its corporate powers, rights and privileges, and in
good standing in the State of Delaware;
(ii) has all requisite corporate power and corporate authority to
own, lease and operate it properties and to carry on its business as now
conducted and possesses all business licenses, franchises, rights and privileges
material to the conduct of its business;
(iii) is qualified as a foreign corporation and is in good
standing in all jurisdictions in which such qualification is required, except
where the failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a whole;
and
(iv) has made available or delivered to the Purchaser a true,
complete and correct copy of its Certificate of Incorporation and By-laws and
any shareholder agreements of which the Company is aware, each as amended to
date, and each of which so delivered is in full force and effect.
B. Capitalization
(i) As of January 15, 1997, the authorized and outstanding
capital stock of the Company consists solely of:
(a) Preferred Stock. 1,000,000 shares of Preferred Stock
authorized, of which none are issued or outstanding.
(b) Common Stock. 25,000,000 shares of Common Stock authorized,
of which 16,949,019 shares are issued and outstanding. All such issued and
outstanding shares of Common Stock have been duly authorized and validly
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issued (including, without limitation, issued in compliance with all applicable
federal and state securities laws), have been approved for listing on the New
York Stock Exchange and are fully paid and nonassessable.
(ii) Other Securities. In addition to the Common Stock, as of
January 15, 1997, the Company had outstanding warrants, options and stock
appreciation rights to purchase 3,197,099 shares of the Company's Common Stock.
All such issued and outstanding warrants and options have been duly authorized
and validly issued (including, without limitation, issued in compliance with all
applicable federal and state securities laws). Other than as set forth in this
paragraph (ii), there are no shares of capital stock or other securities of the
Company (i) reserved for issuance (other than shares issuable under employee or
director benefit plans) or (ii) subject to preemptive rights or any outstanding
subscriptions, options, warrants, calls, rights, convertible securities or other
agreements or other instruments outstanding or in effect giving any Person the
right to acquire any shares of capital stock or other securities of the Company
or any commitments of any character relating to the issued or unissued capital
stock or other securities of the Company. The Company does not have outstanding
any bonds, debentures, notes or other obligations the holders of which have the
right to vote (or any other securities that are convertible into or exercisable
for securities having the right to vote) with the stockholders of the Company on
any matter. For purposes of this Agreement, the term "PERSON" shall mean any
individual, corporation (including any non-profit corporation), general or
limited partnership, limited liability company, Governmental Entity (as defined
below), joint venture, estate, trust, association, organization or other entity
of any kind or nature.
(iii) The Company shall on the Closing Date convey to the
Purchaser all of the legal and beneficial ownership in and to the Purchased
Shares, free and clear of all liens, encumbrances or third party rights.
C. Authorization. All corporate action on the part of the Company, its
officers, directors and stockholders necessary for the authorization, execution,
delivery and performance of all obligations under this Agreement, and for the
issuance and delivery of the Purchased Shares has been taken, and this Agreement
constitutes a legally binding, valid obligation of the Company enforceable in
accordance with its terms.
D. Validity of the Securities. The Purchased Shares, when issued, sold
and delivered in accordance with the terms and for the consideration expressed
in this Agreement, shall be duly authorized and validly issued (including,
without limitation, issued in compliance with applicable federal and state
securities laws assuming the accuracy of the Purchaser's representations
herein), fully-paid, nonassessable, and
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neither the Company nor the holder thereof shall be subject to any preemptive or
similar right with respect thereto.
E. No Conflict with other Instruments. The execution, delivery and
performance of this Agreement will not contravene, result in any violation of,
be in conflict with, constitute or result in a breach or default under, result
in the acceleration of the Company's obligations or in the creation of any lien
under, or cause or require the cancellation, termination or modification of
(with or without the passage of time or the giving of notice or both): (i) any
provision of the Company's certificate of incorporation or by-laws; (ii) any
provision of any judgment, decree or order to which the Company is a party or by
which it or any of its assets is or may be bound; (iii) any lease, instrument,
mortgage, indenture, contract, license, permit, note or other obligation or
commitment to which the Company is a party or by which it is or may be bound; or
(iv) any law, statute, rule or governmental regulation applicable to the
Company, except in the case of clauses (ii), (iii) and (iv) for any such
violation, conflict or default which would neither, individually or in the
aggregate, have a material adverse effect on the Company and its subsidiaries
taken as a whole nor prevent the Company from performing its obligations under
this Agreement in any material respect.
F. Securities Act. Subject to the accuracy of the Purchaser's
representations herein, the offer, sale and issuance of the Purchased Shares
constitute transactions exempt from the registration requirements of Section 5
of the Securities Act.
G. Registration Rights. Except for the registration rights set forth
in the Registration Rights Agreement defined in Section VII(B)(viii), and in the
Registration Rights Agreement among Warburg, ▇▇▇▇▇▇ Investors, L.P. ("Warburg"),
▇▇▇ ▇. ▇▇▇▇▇▇▇, C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(collectively, the "Kojaians"), and the Company, dated December 11, 1996, and
except for the Company's obligation to register securities on Form S-8, at the
Closing the Company will be under no contractual obligation to register under
the Securities Act any of its presently outstanding securities.
H. Consents and Approvals. Except for any filings required to be made
with the SEC, state securities regulators or the stock exchanges on which the
Company's Common Stock is listed, no notices, reports or other filings are
required to be made by the Company with, nor are any consents, registrations,
approvals, declarations, permits, expiration of any applicable waiting periods
or authorizations required to be obtained by the Company from any Governmental
Entity in connection with the execution or delivery of this Agreement by the
Company, the performance by the Company of its obligations hereunder or the
consummation by the Company of the transactions contemplated herein. As used in
this Agreement, the term
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"GOVERNMENTAL ENTITY" shall mean any foreign, federal, state, local, municipal,
county or other governmental, quasi-governmental, administrative or regulatory
authority, body, agency, court, tribunal, commission or other similar entity
(including any branch, department or official thereof).
I. No Subsidiaries. The Company has no subsidiaries other than those
listed in Exhibit A.
J. SEC Reports. The Company has filed all proxy statements, reports
and other documents required to be filed by it under the Exchange Act after
December 31, 1995 (collectively, the "SEC Reports"); and the Company has
furnished Purchaser copies of its Annual Report on Form 10-K for the fiscal year
ended June 30, 1996, and all proxy statements and reports under Section 13 of
the Exchange Act filed by the Company after such date, each as filed with the
Commission. Each SEC Report at the time of filing was in compliance in all
material respects with the requirements of its respective report form and did
not on the date of filing contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
K. Financial Statements. The financial statements (including any
related schedules and/or notes) included in the SEC Reports have been prepared
in accordance with generally accepted accounting principles ("GAAP")
consistently followed (except as indicated in the notes thereto) throughout the
periods involved and fairly present in all material respects the consolidated
financial condition, results of operations and changes in the financial position
of the Company and its subsidiaries as of the dates thereof and for the periods
ended on such dates (in each case subject, as to interim statements, to changes
resulting from year-end adjustments (none of which will be material in amount or
effect)), and, to the best of the Company's knowledge, the Company has no
material liabilities, contingent or otherwise (whether or not such liabilities
are required to be disclosed in accordance with GAAP) not reflected in the
balance sheet as of September 30, 1996, included in the SEC Reports or otherwise
disclosed to the Purchaser in writing prior to the execution by the Purchaser of
this Agreement, other than any such liabilities incurred in the ordinary course
of business since September 30, 1996. To the best of the Company's knowledge,
there has been no material adverse change in the business, condition or
operations (financial or otherwise) of the Company and its subsidiaries taken as
a whole from that set forth in the balance sheet as of September 30, 1996,
included in the SEC Reports other than changes referred to in the SEC Reports or
otherwise disclosed to Purchaser in writing prior to the execution by Purchaser
of this Agreement.
L. Disclosure. There is no fact known to the Company which the Company
has intentionally not disclosed to the Purchaser in writing which materially
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affects adversely or, so far as the Company can now reasonably foresee, will
materially affect adversely the properties, business, or financial condition of
the Company and its subsidiaries taken as a whole or the ability of the Company
to perform this Agreement, the Registration Rights Agreement or its obligations
in respect of the Purchaser.
VI. SURVIVAL AND INDEMNIFICATION
6.1. Survival of Representations and Warranties. No action or
claim resulting from breaches of the representations and warranties of any of
the parties hereto shall be brought or made unless, prior to August 15, 1998,
the action or claim shall have been the subject of a good faith written notice
from either party hereto to the other party which notice specifies in reasonable
detail the nature of the claim and identifies the representation or warranty
alleged to have been breached.
6.2. Indemnification by the Company. From and after the Closing
Date, the Company agrees to indemnify and hold harmless the Purchaser, its
affiliates and each of its present and former directors, officers, shareholders,
partners, affiliates, attorneys, employees and agents (collectively, the
"PURCHASER INDEMNIFIED PARTIES") from and against any and all Losses, which they
or any of them may suffer, sustain or incur by reason of or in connection with
any misrepresentation or breach of warranty or agreement made by the Company
under this Stock Purchase Agreement.
6.3. Third Party Claims. If a third party claim is made against a
Company Indemnified Party or a Purchaser Indemnified Party (the "INDEMNIFIED
PARTY"), and if such Indemnified Party intends to seek indemnity with respect
thereto under this Section VI or Section II(E), such Indemnified Party must
promptly notify Purchaser or the Company, as the case may be (an "INDEMNIFYING
PARTY") of such claim, but any failure to give such notice shall not relieve the
Indemnifying Party from any liability it may have to such Indemnified Party
under this Agreement. The Indemnifying Party shall have 30 days after receipt
of such notice to undertake, conduct and control, through counsel of its own
choosing and at its own expense, the settlement or defense thereof, and the
Indemnified Party shall cooperate with it in connection therewith; PROVIDED that
the Indemnifying Party shall permit the Indemnified Party to participate in such
settlement or defense through counsel chosen by such Indemnified Party, provided
that the fees and expenses of such counsel shall be borne by such Indemnified
Party. The Indemnified Party shall not pay or settle any such claim without the
prior written consent of the Indemnifying Party, which consent shall not be
unreasonably withheld. Notwithstanding the foregoing, the Indemnified Party
shall have the right to pay or settle any such claim, provided that in such
event it shall waive any right to indemnity therefor by the Indemnifying Party
for such claim. If the Indemnifying Party does not notify the Indemnified Party
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within 30 days after the receipt of the Indemnified Party's notice of a claim of
indemnity hereunder that it elects to undertake the defense thereof, the
Indemnified Party shall have the right to contest, settle or compromise the
claim but shall not thereby waive any right to indemnity therefor pursuant to
this Agreement. The Indemnifying Party shall not, except with the consent of
the Indemnified Party, enter into any settlement that does not include as an
unconditional term thereof the giving by the Person or Persons asserting such
claim to such Indemnified Party of an unconditional release from all liabilities
with respect to such claim.
VII. CLOSING AND CONDITIONS TO CLOSING
A. The closing of the purchase and sale of the Purchased Shares shall
take place at the offices of ▇▇▇▇▇ & ▇▇▇▇▇ Company, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, on January 24, 1997 at 4:00 p.m. or at such other place
and time as the Company and the Purchaser mutually agree (which date, time and
place are designated the "Closing"). At the Closing, the Purchaser shall pay
the purchase price as specified in Article I and the Company shall thereafter
promptly issue to the Purchaser a certificate registered in the Purchaser's name
representing the Purchased Shares, which will contain appropriate restrictive
legends. From time to time following the closing, the Company will remove such
restrictive legends upon request of Purchaser, provided that the restrictions
described in such legends are no longer applicable and the Purchaser has
provided the Company with an opinion of counsel satisfactory to the Company that
the conditions to the termination of such restrictions have been met.
B. The Purchaser's obligation to purchase the Purchased Shares shall be
subject to the occurrence of the following at or prior to the Closing:
(i) A Purchaser Nominee shall have been elected to the Board of
Directors of the Company to a term expiring at the next annual meeting of
Stockholders of the Company.
(ii) The representations and warranties of the Company contained
in Article V shall be true in all material respects on and as of the Closing
with the same effect as if made on and as of the Closing.
(iii) The Company shall have complied with all state securities or
Blue Sky laws applicable to the offer and sale of the Purchased Shares to the
Purchaser.
(iv) All corporate and legal proceedings taken by the Company in
connection with the transactions contemplated by this Agreement and all
documents
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relating to such transactions shall be reasonably satisfactory to the Purchaser
and its counsel. The Company shall have delivered to the Purchaser a
certificate dated as of the Closing, signed by the Company's President,
certifying that the conditions set forth in Article VII(B) have been satisfied.
(v) Purchaser shall have received the following:
(a) Copies of resolutions of the Board of Directors of the
Company, certified by the Secretary of the Company, authorizing and approving
the execution, delivery and performance of this Agreement and the other
documents and instruments to be delivered pursuant hereto; and
(b) Such additional supporting documentation and other
information with respect to the transactions contemplated hereby as the
Purchaser or its counsel may reasonably request.
(vi) Purchaser shall receive a copy of the opinions of counsel
for the Company, which are delivered to the New York Stock Exchange in
connection with this transaction, which Purchaser may rely on.
(vii) Warburg, the Kojaians shall have executed and delivered an
agreement in favor of the Purchaser in the form attached herewith as Exhibit B.
(viii) The Company and the Purchaser shall have entered into a
Registration Rights Agreement substantially in the form of Exhibit C hereto.
C. The Company's obligation to sell the Purchased Shares to the
Purchaser shall be subject to the occurrence of the following at or prior to the
Closing:
(i) The representations and warranties of the Purchaser
contained in this Agreement shall be true in all material respects on and as of
the Closing with the same effect as if made on and as of the Closing.
(ii) Purchaser shall have complied with all state securities or
Blue Sky laws applicable to the offer an sale of the Purchased Shares to the
Purchaser.
(iii) All individual and legal proceedings taken by the Purchaser
in connection with the transactions contemplated by this Agreement and all
documents relating to such transactions shall be reasonably satisfactory to the
Company and its counsel. The Purchaser shall have delivered to the Company a
certificate dated as of the Closing, certifying that the conditions set forth in
Article VII(C) have been satisfied.
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(iv) The Company shall have received such additional supporting
documentation and other information with respect to the transactions
contemplated hereby as the Company or its counsel may reasonably request.
VIII. MISCELLANEOUS
A. The provisions of this Agreement shall survive the issuance of the
Purchased Shares and continue in full force and effect.
B. This Agreement shall be enforced, governed and construed in all
respects in accordance with the laws of this State of Delaware without regard to
its conflicts of laws provisions. This Agreement and the rights, powers and
duties set forth herein shall be binding upon the Purchaser and its respective
successors and assigns and shall inure to the benefit of the Company, and its
successors and assigns. In the event that any provision of this Agreement is
invalid or unenforceable under any applicable statute or rule of law, then such
provision shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform with such statute or rule of
law. Any provision hereof which may prove invalid or unenforceable under any
law shall not affect the validity or enforceability of any other provision
hereof. The unsuccessful party in any dispute arising out of or related to this
Agreement shall pay the costs, expenses and reasonable attorneys' fees of the
successful party.
C. Neither the Company nor the Purchaser has engaged any brokers,
finders or agents, and neither party will incur, directly or indirectly, any
liability for brokerage or finders' fees or agents' commissions or any similar
charges in connection with this Agreement and the transactions contemplated
hereby.
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D. Notices. All notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service
or by facsimile with electronic confirmation, as follows:
(a) If to the Company:
▇▇▇▇▇ & ▇▇▇▇▇ Company
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Purchaser:
Archon Group, L.P.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Archon Group, L.P.
c/o Goldman, Sachs & Co.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or attention of such other person as either party shall
advise the other party in writing. All notices and other communications given
pursuant to this Agreement shall be deemed to have been given on the date of
receipt.
-13-
E. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but which together shall constitute one and
the same instrument.
-14-
IN WITNESS WHEREOF, the undersigned have executed this Agreement this
24th day of January, 1997.
ARCHON GROUP, L.P., ▇▇▇▇▇ & ▇▇▇▇▇ COMPANY,
a Delaware limited partnership a Delaware corporation
By: Archon Gen-Par, Inc., By: /s/ ▇▇▇▇ ▇▇▇▇▇
a Delaware corporation, --------------------------------
its General Partner ▇▇▇▇ ▇▇▇▇▇
President and CEO
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President
-15-
EXHIBIT A
STATE OF
NAME AND TRADE NAMES (IF ANY) INCORPORATION
▇▇▇▇▇-▇▇▇▇▇ Company Georgia
Axiom Real Estate Management, Inc. Delaware
Collective Services, Inc. Pennsylvania
▇▇▇▇▇ & ▇▇▇▇▇ Affiliates, Inc. Delaware
▇▇▇▇▇ & ▇▇▇▇▇ Asset Services Company Delaware
▇▇▇▇▇ & ▇▇▇▇▇ Colorado, Inc. California
TRADE NAME: ▇▇▇▇▇ & ▇▇▇▇▇ Company
▇▇▇▇▇ & ▇▇▇▇▇ Europe, Inc. California
▇▇▇▇▇ & ▇▇▇▇▇ Mortgage Group, Inc. California
▇▇▇▇▇ & ▇▇▇▇▇ Mortgage Services, Inc. California
TRADE NAME: GEMS
▇▇▇▇▇ & ▇▇▇▇▇ New York, Inc. New York
TRADE NAMES: ▇▇▇▇▇ Felt Realty Services
Wm. ▇. ▇▇▇▇▇/▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇ Institutional Properties, Inc. California
▇▇▇▇▇ & ▇▇▇▇▇ of Nevada, Inc. Nevada
▇▇▇▇▇ & ▇▇▇▇▇ of Oregon, Inc. Washington
▇▇▇▇▇ & ▇▇▇▇▇ Realty Advisers, Inc. California
▇▇▇▇▇ & ▇▇▇▇▇ Services Corporation Florida
▇▇▇▇▇ & ▇▇▇▇▇ Southeast Partners, Inc. California
G&E Investor Properties I, Inc. California
G&E Investor Properties III, Inc. California
G&E Investor Properties IV, Inc. California
HSM Inc. Texas
Leggat ▇▇▇▇▇▇/▇▇▇▇▇ & ▇▇▇▇▇, Inc. Massachusetts
Montclair Insurance Company Ltd. Bermuda
▇▇▇▇▇▇ Realty, Inc. Delaware
The ▇▇▇▇▇▇ Commercial Brokerage Company Colorado
-16-
STATE OF
NAME AND TRADE NAMES (IF ANY) INCORPORATION
Wm. ▇. ▇▇▇▇▇/▇▇▇▇▇ & ▇▇▇▇▇ Inc. New York
Wm. ▇. ▇▇▇▇▇/▇▇▇▇▇▇▇ East Inc. New York
Axiom Real Estate Management of Colorado, Inc. Colorado
SUBSIDIARIES OF HSM INC.
STATE OF
NAME AND TRADE NAMES (IF ANY) INCORPORATION
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Financial Corporation Texas
HSM Condominium Corporation Texas
HSM Real Estate Securities Corporation Texas
▇▇▇▇▇▇ Capital Corporation Texas
▇▇▇▇▇▇ Real Estate Services Corporation Texas
-17-
EXHIBIT B
January 24, 1997
[LETTERHEAD OF ARCHON GROUP L.P.]
[Inside Address of WPI
and the Kojaians]
Re: ▇▇▇▇▇ & ▇▇▇▇▇ - Voting Agreement
Gentlemen:
This letter shall confirm our understanding that, in connection with
the $11,250,000 investment in ▇▇▇▇▇ & ▇▇▇▇▇ Company (the "Company") by Archon
Group L.P. ("Archon"), ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(collectively, "the Kojaian Shareholders") and Warburg, ▇▇▇▇▇▇ Investors, L.P.
("WPI") and Archon (collectively, the "Shareholders") hereby agree to (i) vote
all of the shares of common stock of the Company owned by such Shareholder, and
(ii) cause directors nominated by such Shareholder to vote to nominate
directors, as follows:
(i) if and so long as the Kojaian Shareholders, or any transferee
owned or controlled by them that agrees to be bound by the terms of this letter
agreement, beneficially owns 1,250,000 shares of the Company's common stock, for
a director nominee selected by a majority of the Kojaian Shareholders, who shall
be a Kojaian Shareholder or an officer or partner of any entity owned or
controlled by any of the Kojaian Shareholders, to be nominated and elected to
the Company's Board of Directors;
(ii) if and so long as WPI beneficially owns 5,059,169 shares of the
Company's common stock, for those nominees designated by WPI, who shall be
officers of WPI or any of its venture banking affiliates, to be nominated and
elected to the Company's Board of Directors; and
(iii) if and so long as Archon beneficially owns 1,250,000 shares of
the Company's common stock, for a director nominee designated by Archon who
shall be an employee of Archon, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. or an affiliate thereof, to
be nominated and elected to the Company's Board of Directors.
-18-
None of the Shareholders shall enter into any other voting
arrangement or proxy whereby its voting rights would be vested in any other
party, except if such party agrees to be bound by the above.
In the event that all directors nominated by any of WPI, the Kojaian
Shareholders, or Archon either resign or decline to be nominated for reelection
and no other nominees are nominated by such Shareholder or such Shareholder
fails to nominate any director or directors for election (a "Terminated
Shareholder"), then (i) the rights and obligations of such Terminated
Shareholder under this Agreement shall terminate with respect to such Terminated
Shareholder and (ii) each remaining Shareholder shall have no obligation
hereunder toward or with respect to such Terminated Shareholder or its nominees.
This Agreement may only be varied by an instrument in writing, and
shall be governed under the laws of the State of Delaware.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but which together shall constitute one and
the same instrument.
-19-
Please countersign one copy indicating your agreement to the above.
Sincerely,
▇▇▇▇ ▇▇▇▇▇▇▇▇
Archon Gen-Par, Inc.
ACCEPTED AND AGREED
WARBURG, ▇▇▇▇▇▇ INVESTORS, L.P.:
------------------
Warburg, ▇▇▇▇▇▇ & Co.
By:
Name:
Title:
KOJAIAN SHAREHOLDERS:
------------------
By: ▇▇▇▇ ▇▇▇▇▇▇▇
------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------
By: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-20-
EXHIBIT C
-21-