COMMON STOCK PURCHASE AGREEMENT
This COMMON STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of
the 12th day of December, 1997, is by and among Excel Legacy Corporation, a
Delaware corporation (the "Company"), and Xxxx X. Xxxxx, Xxxxxxx X. Xxxx, Xxxxxx
X. Xxxxxxx, Xxxxxx X. Xxxxx, Xxxxx X. Xxxx, S. Xxxx Xxxxxxx, Xxxx X. Xxxxxx,
Xxxxx XxXxxxxxx, Xxxxx Xxxxxxxx and Xxxx Xxxxxxxx (collectively, the
"Purchasers").
1. PURCHASE AND SALE OF SHARES; CLOSING DATE. The Purchasers hereby
agree to purchase from the Company, and the Company hereby agrees to issue and
sell to the Purchasers, an aggregate of 9,195,224 shares of common stock, par
value $.01 per share (the "Shares"), as set forth on Exhibit A hereto, for a
purchase price of $2.39 per Share (the "Purchase Price"). On the Closing Date
(as defined below), the Company shall deliver to each Purchaser a stock
certificate registered in such Purchaser's name representing the number of
Shares to be purchased by such Purchaser, as set forth on Exhibit A hereto, and
such Purchaser shall concurrently pay the Company the Purchase Price therefor by
delivery to the Company of (a) cash in the amount of 50% of the Purchase Price,
and (b) a promissory note in substantially the form attached hereto as Exhibit B
for the remaining 50% of the Purchase Price.
The sale and purchase of the Shares shall take place at a closing (the
"Closing") at the offices of Xxxxxx & Xxxxxxx, 000 "X" Xxxxxx, Xxxxx 0000, Xxx
Xxxxx, Xxxxxxxxxx 00000, on the earliest practicable date as of which all of the
conditions set forth in Section 4 hereof have been satisfied or duly waived (the
"Closing Date").
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to the Purchasers and, by acceptance of the Purchase
Price, reconfirms as of the Closing Date, that:
(a) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware.
(b) The Company has all requisite power and authority to enter into
and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby.
(c) The Shares have been duly and validly authorized and when sold
and paid for in accordance with this Agreement will be validly issued, fully
paid and nonassessable.
(d) The Company has taken all actions necessary to authorize it to
enter into and perform its obligations under this Agreement and to consummate
the transactions contemplated hereby. This Agreement is a legal, valid and
binding obligation of the Company, enforceable in accordance with its terms,
except for (i) the effect of bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting the rights of creditors
generally, and (ii) limitations imposed by federal or state law or equitable
principles upon the specific enforceability of any of the remedies, covenants or
other provisions of this Agreement and upon the availability of injunctive
relief or other equitable remedies.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each Purchaser
hereby represents and warrants to the Company and, by acceptance of the Shares,
reconfirms as of Closing Date, that:
(a) The Shares to be purchased by such Purchaser are being purchased
solely for such Purchaser's own account and not as nominee or agent for any
other person and not with a view to, or for offer or sale in connection with,
any distribution thereof (within the meaning of the Securities Act of
1933, as amended (the "Securities Act")) that would be in violation of the
securities laws of the United States or any state thereof.
(b) Such Purchaser is knowledgeable, sophisticated and experienced in
business and financial matters; has previously invested in securities similar to
the Shares and fully understands the limitations on transfer thereof; is able to
bear the economic risk of such Purchaser's investment in the Shares and is
presently able to afford the complete loss of such investment; and has been
afforded access to information about the Company and the Company's financial
condition, results of operations, business, property, management and prospects
sufficient to enable such Purchaser to evaluate his investment in the Shares.
(c) Such Purchaser either (i) is an "accredited investor" (as such
term is defined in Rule 501(a) of Regulation D under the Securities Act), or
(ii) has, either alone or with such Purchaser's "purchaser representative" (as
such term is defined in Rule 501(h) of Regulation D under the Securities Act),
such knowledge and experience in financial matters that he is capable of
evaluating the merits and risks of an investment in the Shares.
(d) This Agreement is a legal, valid and binding obligation of such
Purchaser, enforceable in accordance with its terms, except for (i) the effect
of bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting the rights of creditors generally, and (ii) limitations
imposed by federal or state law or equitable principles upon the specific
enforceability of any of the remedies, covenants or other provisions of this
Agreement and upon the availability of injunctive relief or other equitable
remedies.
4. CLOSING CONDITIONS. Each Purchaser's obligation to purchase and pay
for the Shares to be purchased by such Purchaser shall be subject to the
satisfaction of the following conditions on or before the Closing Date:
(a) The Company's representations and warranties contained in Section
2 hereof shall be true at and as of the Closing Date, after giving effect to the
transactions contemplated by this Agreement, as if made on and as of such date.
(b) The Company shall have performed and complied with all
agreements, covenants and conditions contained herein which are required to be
performed or complied with by the Company on or before the Closing Date.
(c) The purchase of and payment for the Shares to be purchased by
such Purchaser (i) shall not be prohibited by any applicable law or governmental
regulation, and (ii) shall not subject such Purchaser to any penalty or other
onerous condition under or pursuant to any applicable law or governmental
regulation.
(d) Simultaneously with the sale to the Purchasers of the Shares, the
Company shall have consummated the asset transfers to the Company and the
distribution of the Company's common stock to the stockholders of Excel Realty
Trust, Inc., substantially as described in or contemplated by the Private
Placement Memorandum prepared by BancBoston Securities Inc.
(e) The Company shall have received all consents, permits and other
authorizations, and made all such filings and declarations, as may be required
from any person or entity pursuant to any law, statute, regulation or rule
(federal, state, local and foreign), or pursuant to any agreement, order or
decree to which the Company is a party or to which it is subject, in connection
with the transactions
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contemplated by this Agreement.
5. EXPENSES. Whether or not the Shares are sold, the Company shall pay
or reimburse all expenses relating to this Agreement, including but not limited
to:
(a) the cost of printing and reproducing this Agreement and any other
documents contemplated hereby;
(b) the fees and other charges of Xxxxxx & Xxxxxxx, counsel to the
Company, in connection herewith;
(c) all fees and expenses (including the fees and expenses of
counsel) in connection with any registration or qualification of the Shares for
offer and sale under the securities or "blue sky" laws of any jurisdictions
requiring such registration or qualification or in connection with obtaining any
exemptions from such requirements;
(d) all out-of-pocket expenses of the Purchasers (including the fees
and expenses of counsel) relating to any amendment, or modification of, or any
waiver, or consent or preservation of rights under this Agreement and any other
documents contemplated hereby; and
(e) all other expenses, including counsel's fees, incurred by the
Company in connection with the transactions contemplated by this Agreement.
6. INDEMNIFICATION. The Company shall, without limitation as to time,
indemnify the Purchasers against, and hold them harmless from, all losses,
claims, damages, liabilities, costs (including the costs of preparation and
attorneys' fees) and expenses (collectively, "Losses") incurred by them pursuant
to any investigation or proceeding against any one or more of the Purchasers
arising out of or in connection with this Agreement (or any other document or
instrument executed herewith or pursuant hereto), whether or not the
transactions contemplated by this Agreement are consummated, which investigation
or proceeding requires the participation of, or is commenced or filed against,
one or more of the Purchasers because of this Agreement or the transactions
contemplated hereby, other than any Losses resulting from action on the part of
the Purchasers which is finally determined in such proceeding to be wrongful and
which (a) is unrelated to any wrongful act by the Company or its
representatives, and (b) was not taken by any of the Purchasers in reliance upon
any of the Company's warranties, covenants or promises herein or in any other
documents contemplated hereby. The obligations of the Company under this
Section 6 shall survive any transfer of the Shares by the Purchasers and the
termination of this Agreement.
7. CONTRIBUTION. If the indemnification provided for in Section 6 from
an indemnifying party is unavailable to any Purchasers in respect of any Losses
referred to therein, then an indemnifying party, in lieu of indemnifying such
persons, shall contribute to the amount paid or payable by such persons as a
result of such Losses in such proportion as is appropriate to reflect the
relative fault of such indemnifying parties and such persons in connection with
the actions which resulted in such Losses as well as any other relevant
equitable considerations. The amount paid or payable by a party as a result of
the Losses referred to above shall be deemed to include, subject to the
limitations set forth in Section 6, any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation, lawsuit
or legal or administrative action or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation which does not
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take account of the equitable considerations referred to in the immediately
preceding paragraph. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
8. FURTHER ACTION. During the period from the date hereof to the Closing
Date, the Company shall use all reasonable efforts and take all action
reasonably necessary or appropriate to cause its representations and warranties
contained in Section 2 hereof to be true as of the Closing Date, after giving
effect to the transactions contemplated by this Agreement, as if made on and as
of such date.
9. LEGEND. Upon original issuance thereof, and until such time as the
same is no longer required under the applicable requirements of the Securities
Act, the Shares (and all securities issued in exchange therefor or substitution
thereof) shall bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE
OF REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT."
10. AMENDMENT AND WAIVER. This Agreement may be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may be given, provided that the same are in writing and signed by each of the
parties hereto.
11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
13. SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected, it
being intended that all of your rights and privileges shall be enforceable to
the fullest extent permitted by law.
14. ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the date first written above.
THE COMPANY: Excel Legacy Corporation
By: /s/ Xxxx X. Xxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxx
-----------------------------------------------
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Title: Chairman, President and Chief Executive Officer
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PURCHASERS: /s/ Xxxx X. Xxxxx
-------------------------------------------------------
Xxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxx
-------------------------------------------------------
Xxxxxxx X. Xxxx
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxx
-------------------------------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxx
-------------------------------------------------------
Xxxxx X. Xxxx
/s/ S. Xxxx Xxxxxxx
-------------------------------------------------------
S. Xxxx Xxxxxxx
/s/ Xxxx X. Xxxxxx
-------------------------------------------------------
Xxxx X. Xxxxxx
/s/ Xxxxx XxXxxxxxx
-------------------------------------------------------
Xxxxx XxXxxxxxx
/s/ Xxxxx Xxxxxxxx
-------------------------------------------------------
Xxxxx Xxxxxxxx
/s/ Xxxx Xxxxxxxx
-------------------------------------------------------
Xxxx Xxxxxxxx
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EXHIBIT A
ALLOCATION OF SHARES
Purchaser Shares Purchased
--------- ----------------
Xxxx X. Xxxxx 2,998,410
Xxxxxxx X. Xxxx 999,469
Xxxxxx X. Xxxxxxx 999,469
Xxxxxx X. Xxxxx 999,469
Xxxxx X. Xxxx 999,469
S. Xxxx Xxxxxxx 999,469
Xxxx X. Xxxxxx 999,469
Xxxxx XxXxxxxxx 150,000
Xxxxx Xxxxxxxx 25,000
Xxxx Xxxxxxxx 25,000
----------------
Total 9,195,224
