EXHIBIT 10.7
INVESTMENT AGREEMENT
THIS INVESTMENT AGREEMENT (the "Agreement"), dated as of June 29, 2002,
by and between Amortibanc Investments, L.C., a Kansas limited liability company
(the "Investor"), and Great Western Land and Recreation, Inc., a Delaware
corporation (the "Company").
WITNESSETH:
WHEREAS, each of the Company and the Investor has determined to enter
into this Agreement pursuant to which the Investor will exchange $719,000 of
subordinated debt by the Company to the Investor, for 14,380 shares of the
Company's Series A Cumulative Convertible Preferred Stock, par value $0.001 per
share (the "Series A Preferred Stock"), having the rights, preferences,
privileges and restrictions set forth in the Form of Certificate of Designations
attached hereto as Exhibit B (the "Series A Certificate of Designations"), each
share convertible at the option of the holder at any time following the Closing
into shares (the "Conversion Shares") of common stock, par value $0.001 per
share (the "Common Stock"), of the Company;
WHEREAS, the Company and the Investor desire to make certain
representations, warranties, covenants and agreements in connection with the
transactions contemplated herein;
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this Agreement, the following
terms shall have the meanings set forth below:
"Closing" means the closing of the Share Purchase pursuant to Section
2.02.
"GAAP" means U.S. generally accepted accounting principles as in effect
at the relevant time or for the relevant period.
"Material Adverse Effect" means any event, change, circumstance or
effect that is or is reasonably likely to be materially adverse to the business,
properties, assets, liabilities, condition (financial or otherwise), operations
or results of operations of the Company and its subsidiaries taken as a whole,
other than any event, change, circumstance or effect that results from or arises
out of changes or circumstances affecting the industry in which the Company and
its subsidiaries operate, which event, change, circumstance or effect does not
affect the Company and its subsidiaries disproportionately relative to other
entities operating in such industry.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder from time to time.
ARTICLE II
SHARE PURCHASE
SECTION 2.01. Share Purchase. Upon the terms and subject to the
conditions set forth in this Agreement, and in reliance upon the representations
and warranties hereinafter set forth, at the Closing, the Company will issue,
sell and deliver to the Investor, and the Investor will purchase from the
Company 14,380 shares of Series A Preferred Stock, free and clear of all Liens,
for an aggregate purchase price of $719,000 (the "Share Purchase Price"). The
transaction described in this Section 2.01 is referred to herein as the "Share
Purchase."
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SECTION 2.02. Share Purchase Closing. (a) The Closing shall take place
at such time and place as the parties may agree (the date on which the Closing
occurs, the "Closing Date"), but in no case later than 10:00 a.m., Arizona time,
on July 3, 2002.
(b) At the Closing, (i) the Company will deliver to the Investor
certificates representing the shares of Series A Preferred Stock to be purchased
by, and sold to, the Investor pursuant to Section 2.01, and (ii) the Investor,
in full payment for the shares of Series A Preferred Stock to be purchased by,
and sold to, the Investor pursuant to Section 2.01, will surrender to the
Company all rights to receive payment on the subordinated debt to the Investor
by the Company listed in Exhibit A.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to, and agrees with, the
Investor as of the date hereof and as of the Closing Date that:
SECTION 3.01. Corporate Organization and Qualification. The Company and
each of its subsidiaries is a corporation or limited liability company duly
organized or formed, as the case may be, validly existing and in good standing
under the laws of the jurisdiction of its organization and has all requisite
power and authority to own or lease and operate its properties and to conduct
its business as it is currently being conducted and is proposed to be conducted.
The Company and each of its subsidiaries is duly licensed, authorized or
qualified as a foreign corporation or limited liability company for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which its ownership, lease or operation of property or conduct
of business requires such qualification, except where its failure to be so
licensed, authorized or qualified would not have, individually or in the
aggregate, a Material Adverse Effect.
SECTION 3.02. Authorization of Agreement. (a) The Company has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement. The execution, delivery and performance of
this Agreement has been duly authorized by all necessary corporate action on the
part of the Company. The Board of Directors has approved the entry by the
Company into this Agreement.
(b) This Agreement has been duly executed and delivered by the Company,
and constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally and to general principles of equity.
SECTION 3.03. Consents; No Conflicts. (a) The execution and delivery of
this Agreement does not, and the performance of the obligations set forth herein
will not, (i) violate any provision of the Certificate of Incorporation or the
By-laws or; (ii) violate any law applicable to the Company.
(b) No consent or approval of the Company's stockholders is required by
law, the Certificate of Incorporation or the By-laws, for the execution,
delivery and performance by the Company of the Agreement and the consummation of
the transaction contemplated hereby.
SECTION 3.04. Capitalization; Securities. (a) As of the date hereof,
the authorized capital stock of the Company consists of (i) 50,000,000 shares of
Common Stock, of which 18,904,649 shares are outstanding and 3,500,000 shares
are reserved for issuance under the Company's stock option plan, and (ii)
20,000,000 shares of preferred stock, $0.001 par value, of which no shares are
outstanding, no shares have been designated and no shares are reserved for
issuance. All of such outstanding shares of Common Stock were duly authorized
and validly issued and are fully paid and non-assessable.
(b) Except for the options granted pursuant to the Company's stock
option plan, there are no authorized or outstanding (or any obligations to
authorize or issue) derivative securities.
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(c) Subject to the filing of the Series A Certificate of Designations
with the Secretary of State of the State of Delaware, the shares of Series A
Preferred Stock to be issued pursuant to this Agreement have been duly and
validly authorized and, when issued as contemplated by this Agreement, will have
been validly issued and will be fully paid and non-assessable. The Conversion
Shares have been duly and validly authorized and validly reserved for issuance,
and when issued upon the conversion of Series A Preferred Stock will have been
validly issued and will be fully paid and non-assessable.
SECTION 3.05. Litigation. Except as previously disclosed to the
Investor, there are no claims, suits, actions, proceedings, arbitrations or
investigations pending or, to the knowledge of the Company or its subsidiaries,
explicitly threatened, against or affecting the Company or any of its
subsidiaries that, individually or in the aggregate, are reasonably likely to
have a Material Adverse Effect.
SECTION 3.06. Compliance with Laws; Regulatory Approvals. The
businesses of the Company and its subsidiaries are being conducted in compliance
with all applicable laws in all material respects.
SECTION 3.07. Taxes. (a) The Company and its subsidiaries have timely
filed (taking into account available extensions) all material U.S. federal,
state, local, and other tax returns (including any information returns), reports
and statements (collectively, "Tax Returns") that are required to have been
filed with the appropriate taxing authorities. All information provided in such
Tax Returns is complete and accurate in all material respects. The Company and
its Subsidiaries have paid all material amounts due in respect of taxes (whether
or not actually shown on such Tax Returns), or have otherwise set up reserves in
accordance with GAAP in respect of all taxes for the periods covered by such Tax
Returns.
(b) No audits or investigations relating to any taxes for which the
Company or its subsidiaries may be liable are pending or threatened in writing
by any taxing authority. There are no agreements or applications by the Company
or any of its subsidiaries for the extension of the time for paying any tax nor
have there been any waivers of any statutes of limitation for the assessment of
any taxes.
(c) The Company or its subsidiaries have withheld from its employees
and timely paid to the appropriate taxing authority proper and accurate amounts
in all material respects through all periods in compliance in all material
respects with all employee tax withholding provisions of all applicable laws.
SECTION 3.08. Disclosure. No representation or warranty by the Company
in this Agreement, and no exhibit, document, statement, certificate or schedule
furnished or to be furnished to the Investor pursuant to the terms of this
Agreement, contains or will contain any untrue statement of a material fact, or
omits or will omit to state a material fact necessary to make the statements or
facts contained herein or therein not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor represents and warrants to, and agrees with, the Company
as of the date hereof and as of the Closing Date as follows:
SECTION 4.01. Organization. The Investor is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of Kansas and has all requisite power and authority to own or lease and
operate its properties and to conduct its business as it is now being conducted
and is proposed to be conducted.
SECTION 4.02. Authorization of Agreements. (a) The Investor has all
requisite power and authority as a limited liability company to execute, deliver
and perform its obligations under the Agreement. The execution, delivery and
performance of the Agreement and the consummation by the Investor of the
transaction contemplated thereby, have been duly authorized by all necessary
action on the part of the Investor.
(b) This Agreement has been duly executed and delivered by the
Investor, constitutes a legal, valid and binding obligation of the Investor,
enforceable against the Investor in accordance with its terms,
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subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general principles of equity.
SECTION 4.03. Consents; No Conflicts. (a) The execution and delivery of
this Agreement does not, and the performance of the obligations set forth herein
and the consummation of the transaction contemplated hereby will not, (i)
violate any provision of the certificate of formation of the Investor, or; (ii)
violate any law applicable to the Investor.
SECTION 4.04. Information. The Investor has been furnished with copies
of all materials relating to the business, finances and operations of the
Company that have been requested by the Investor, and has been afforded the
opportunity to ask questions of the Company regarding such matters.
ARTICLE V
PRE-CLOSING COVENANTS
SECTION 5.01. Taking of Necessary Action. Each of the parties agrees to
use its best efforts promptly to take or cause to be taken all actions and
promptly to do or cause to be done all things necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
transaction contemplated by this Agreement in accordance with the terms of the
Agreement. Without limiting the foregoing, the Company will use its best efforts
to file the Series A Certificate of Designations with the Secretary of State of
the State of Delaware.
SECTION 5.02. Conduct of Business. From the date hereof until the
Closing Date, the Company shall conduct its business and shall cause its
subsidiaries to conduct their respective businesses in, and only in, the
ordinary course and shall use, and shall cause its subsidiaries to use, their
best efforts to preserve intact their respective present business organizations,
operations and relationships with third parties (including clients and
providers) and to keep available the services of the present directors, officers
and key employees.
SECTION 5.03. Notifications. At all times prior to the Closing Date,
the Investor shall promptly notify the Company and the Company shall promptly
notify the Investor in writing of any fact, change, condition, circumstance or
occurrence or nonoccurrence of any event which will or is reasonably likely to
result in the failure to satisfy, in any material respect, the conditions to be
complied with or satisfied by it hereunder; provided, however, that the delivery
of any notice pursuant to this Section 6.03 shall not limit or otherwise affect
the remedies available hereunder to any party receiving such notice.
ARTICLE VI
ADDITIONAL COVENANTS
SECTION 6.01. Legend. (a) The Investor agrees to the placement on (i)
certificates representing Series A Preferred Stock issued to the Investor
pursuant to the terms of this Agreement, (ii) certificates representing
Conversion Shares, and (iii) any certificate issued at any time in exchange or
substitution for any certificate bearing such legend, a legend (the "Private
Placement Legend") substantially as set forth below:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAW, AND MAY NOT BE OFFERED, SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT OR PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.
(b) The Private Placement Legend shall be removed from a certificate
representing Series A Preferred Stock or Conversion Shares if the securities
represented thereby are sold pursuant to an effective registration statement
under the Securities Act or there is delivered to the Company such satisfactory
evidence, which may include an opinion of independent counsel, as reasonably may
be
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requested by the Company, to confirm that neither such legend nor the
restrictions on transfer set forth therein are required to ensure that transfers
of such securities will not violate the registration and prospectus delivery
requirements of the Securities Act.
SECTION 6.02. Registration Rights. The investor will have no
registration rights in connection with the Series A Preferred Stock or
Conversion Shares other than "piggyback" rights to register the Conversion
Shares as part of any future registration by the Company of shares of its common
stock.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Fees and Expenses. The Company shall be responsible for
the payment of all expenses incurred by it in connection with the Agreement and
the transaction contemplated thereby. The The Investor shall be responsible for
the payment of all expenses incurred by it in connection with the Agreement and
the transaction contemplated thereby.
Section 7.02. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given, if delivered
personally, by facsimile or sent by overnight courier or by first class mail,
postage prepaid, as follows:
(i) If to the Company, to:
Great Western Land and Recreation
0000 X Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: 000-000-0000
(ii) If to the Investor, to:
Amortibanc Investments
000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Facsimile: 000-000-0000
If to any other holder of shares of Series A Preferred Stock, or
Conversion Shares, addressed to such holder at the address of such holder in the
record books of the Company; or to such other address or addresses as shall be
designated in writing. All notices shall be effective when received.
SECTION 10.06. Entire Agreement. This Agreement and the documents
described herein or attached or delivered pursuant hereto (including the Series
A Certificate of Designations) set forth the entire agreement between the
parties hereto with respect to the transactions contemplated by this Agreement.
SECTION 10.08. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to constitute an original, but
all of which together shall constitute one and the same document.
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IN WITNESS WHEREOF, this Agreement has been executed on behalf of the
parties hereto by their respective duly authorized officers, all as of the date
first above written.
AMORTIBANC INVESTMENTS, L.C., a Kansas
limited liability company
By: /s/ Xxxx Xxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-in-fact for Xxxxxxx X. Xxxxxx,
the trustee of the Xxxxxxx X. Xxxxxx Revocable
Trust and the Xxxxxxx X. Xxxxxx Trust Number
Thirteen
GREAT WESTERN LAND AND RECREATION, INC.
By /s/ Xxx X. Xxxxx
-----------------------------------------
Name: Xxx X. Xxxxx
Title: Chief Executive Officer
EXHIBIT A
SCHEDULE OF SUBORDINATED DEBT
GREAT WESTERN LAND AND RECREATION
SCHEDULE OF SUBORDINATED DEBT
BALANCES AS OF MAY 31, 2002
ACCRUED INTEREST PRINCIPAL
--------------------------------------------- -----------------------------
SUB DEBT - SUB DEBT - GRID NOTE - SUB DEBT - GRID NOTE -
AMORTIBANC JOY! XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX TOTAL
----------- ---------- ----------- ---------- ----------- ----------
Morningside 121,012.80 - - - - 121,012.80
Promenade 19,589.82 39,987.44 - 122,992.22 17,734.79 200,304.27
Prom Xxxx 99,929.83 - - 147,792.29 - 247,722.12
Wheatstone 72,012.73 24,929.66 - - - 96,942.39
Wheatstone III 25,305.21 11,711.19 - - - 37,016.40
Amortibanc Mgt - 16,002.02 - - 16,002.02
- - - - -
---------- --------- --------- ---------- --------- ----------
337,850.39 76,628.29 16,002.02 270,784.51 17,734.79 719,000.00
========== ========= ========= ========== ========= ==========
EXHIBIT B
SERIES A CERTIFICATE OF DESIGNATIONS
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