EXHIBIT 10.18
IVG CORP.
COMMON STOCK ISSUANCE AGREEMENT
This Agreement (the "AGREEMENT") is made and entered into by and
between IVG Corp., a Delaware corporation (the "COMPANY"), and each shareholder
of the Company listed on the signature pages hereto (collectively the
"SHAREHOLDERS").
WHEREAS, the Shareholders have entered into a certain Security
Agreement, dated September 10, 2001, by and among the Company, the Shareholders,
the Collateral Agent (as defined therein) and the Lenders identified on SCHEDULE
A thereto (the "SECURITY AGREEMENT"), and into an accompanying Collateral Agent
Agreement of even date with such Security Agreement, by and among the
Shareholders, the Collateral Agent and the Lenders (the "COLLATERAL AGENT
AGREEMENT" and together with the Security Agreement the "STOCK PLEDGE
DOCUMENTS");
WHEREAS, pursuant to the Stock Pledge Documents, the Shareholders have
pledged certain shares of Common Stock of the Company owned by them to secure
certain obligations of the Company to the Lenders, as more fully set forth in
the Stock Pledge Documents; and
WHEREAS, the Company desires to issue certain authorized but unissued
shares of its Common Stock to the Shareholders in consideration of their
agreement to pledge shares on the Company's behalf;
NOW, THEREFORE, in consideration of the premises and the mutual
obligations and covenants set forth herein, the parties hereto agree as follows:
A. ISSUANCE OF THE SHARES.
1. Capitalized terms used herein and not defined shall have
the meaning assigned to them in the Stock Pledge Documents.
2. As promptly as practicable following the execution of this
Agreement, the Company hereby agrees to issue to each Shareholder a number of
shares of Common Stock of the Company (the "INITIAL SHARES") that is equal to
the number of shares of Common Stock pledged by such Shareholder pursuant to the
Stock Pledge Documents, multiplied by 46 percent, rounded to the nearest whole
share.
3. If at any time subsequent to the date hereof, the Lenders
and Collateral Agent shall foreclose on any shares of Common Stock pledged
pursuant to the Stock Pledge Documents, and such shares shall become the
property of the Lenders, the Company shall issue a number of shares (the
"REPLACEMENT SHARES" and, together with the Initial Shares, the "SHARES") to
each Shareholder equal to the number of such Shareholder's shares that have
become the property of one of the Lenders pursuant to such foreclosure, at the
rate of one Replacement Share for each lost share.
4. Each Shareholder understands, acknowledges and agrees that:
a. In reliance upon applicable exemptions, the
Initial Shares have not been nor will the Replacement Shares be registered under
the Securities Act of 1933, as amended (the "ACT"), and the rules and
regulations thereunder or any state securities laws and the rules and
regulations thereunder.
b. Since the Shares have not been registered under
the Act or applicable state securities laws, the economic risk of this
investment must be borne indefinitely by the Shareholder and the Shares may not
be sold, pledged or hypothecated or otherwise transferred unless subsequently
registered under the Act and applicable state securities laws or an exemption
from such registration is available.
c. No assignment, sale, pledge, hypothecation,
transfer, exchange or other disposition, or offer thereof, of the Shares may be
made if, in the opinion of counsel to the Company, such disposition or offer
would require registration under the Act or would result in the violation of
applicable federal or state securities laws.
B. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE SHAREHOLDERS. Each
Shareholder represents, warrants, acknowledges and agrees that:
1. The Shareholder is acquiring the Shares for his, her or its
own account for investment, and not with a view to distribution, resale,
subdivision or fractionalization thereof, and the Shareholder has no present
plans to enter into any contract, undertaking, agreement or arrangement for the
distribution, resale, subdivision or fractionalization of the Shares. In order
to induce the Company to issue the Shares, the Shareholder agrees that the
Company shall have no obligation to recognize the ownership, beneficial or
otherwise, of the Shares by anyone but the Shareholder.
2. (a) The Shareholder is an Accredited Investor (as defined
in Rule 501 of Regulation D under the Act); (b) the Shareholder can bear the
economic risk of losing his, her or its entire investment; and (c) the
Shareholder has such knowledge and experience in financial and business matters
that the Shareholder is capable of evaluating the risks and merits of this
investment.
3. A legend shall be placed on any certificate evidencing the
Shares in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE STATE SECURITIES
LAWS OF ANY STATE. WITHOUT SUCH REGISTRATION, SUCH SECURITIES MAY NOT
BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED AT ANY TIME
WHATSOEVER, EXCEPT UPON DELIVERY TO THE COMPANY OF AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED
FOR SUCH TRANSFER AND/OR THE SUBMISSION TO THE COMPANY OF SUCH OTHER
EVIDENCE AS MAY BE SATISFACTORY TO THE COMPANY TO THE EFFECT THAT ANY
SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE SECURITIES ACT OF 1933,
AS AMENDED, AND/OR APPLICABLE STATE SECURITIES LAWS.
4. Stop transfer instructions have been or shall be placed
with respect to the Shares so as to restrict the resale, pledge, hypothecation
or other transfer thereof. Stop transfer instructions shall be placed with
respect to any new certificate representing the Shares upon presentment by the
Shareholder of a certificate for transfer.
The foregoing representations and warranties are true and
accurate as of the date set forth below and shall be true and accurate as of the
date of any issuance of Shares to such Shareholder. If in any respect such
representations and warranties shall not be true and accurate as of any such
date, the Shareholder shall give written notice of such fact to the Company
specifying which representations and warranties are not true and accurate and
the reasons therefor.
C. GOVERNING LAW. This Agreement shall be governed by and construed in
all respects with the laws of the State of Delaware without reference to any
choice or conflicts of law provisions.
D. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto, except that the Shareholder may not assign any of his rights or
obligations hereunder.
E. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof. Neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated except by a written instrument signed
by the Company and the Shareholder.
F. NOTICES, ETC. All notices and other communications required or
permitted hereunder must be in writing and addressed (1) if to the Shareholder,
as indicated on the signature page hereto, or at such other address as the
Shareholder shall have furnished to the Company in writing in accordance with
this Section F or (2) if to the Company, to IVG Corp., 00000 Xxxxx Xxxxxxx,
Xxxxx 000, Xxxxx Xxxx, XX 00000, Attn: Xxxxxxx Xxxxxxx, or at such other address
as the Company shall have furnished to the Shareholder in writing in accordance
with this Section F. All such notices or communications shall be deemed given
when actually delivered by hand, messenger, confirmed facsimile, recognized
overnight delivery service, telegram or mailgram or, if mailed, three business
days after deposit, postage prepaid, in the United States mail.
G. RIGHTS; SEVERABILITY. Unless otherwise expressly provided herein,
each party's rights hereunder are several rights, not rights jointly held with
any other holder of the Company's capital stock. If any provision of this
Agreement is held to be illegal, invalid or unenforceable under present or
future laws effective during the term of this Agreement, such provision shall be
fully severable, this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part of this
Agreement and the remaining provisions of this Agreement shall remain in full
force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance from this Agreement. Furthermore, in
lieu of each 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.
H. TITLES AND SUBTITLES. The titles of the Sections of this Agreement
are for convenience of reference only and are not to be considered in construing
this Agreement.
I. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
J. TERMINATION. This Agreement shall terminate at such time as any of
the shares pledged pursuant to the Stock Pledge Documents are released by the
Collateral Agent to the Shareholders.
(SIGNATURE PAGE FOLLOWS)
IN WITNESS WHEREOF, the Company and each Shareholder below have
executed this Agreement this ___ day of September, 2001.
IVG CORP.
By:
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Name:
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Title:
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Xxxxxxx Xxxxxxx, Joint Tenant
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Xxxxx Xxxxxxx, Joint Tenant
Number of Shares Pledged: 3,000,000
Number of Initial Shares to be issued: 1,380,000
Address:
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Telephone:
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Facsimile:
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Hamp Family Limited Partnership
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By: Xxxxxx Xxxx
Number of Shares Pledged: 600,000
Number of Initial Shares to be issued: 276,000
Address:
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Telephone:
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Facsimile:
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X. Xxxxxxx Belt
Number of Shares Pledged: 870,000
Number of Initial Shares to be issued: 400,200
Address:
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Telephone:
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Facsimile:
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Xxxxx Xxxxxx
Number of Shares Pledged: 215,000
Number of Initial Shares to be issued: 98,900
Address:
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Telephone:
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Facsimile:
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Xxxxxxx Xxxxxxx
Number of Shares Pledged: 100,000
Number of Initial Shares to be issued: 46,000
Address:
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Telephone:
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Facsimile:
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Xxxxxx X. XxXxxxxxx
Number of Shares Pledged: 218,000
Number of Initial Shares to be issued: 100,280
Address:
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Telephone:
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Facsimile:
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