EXHIBIT 1
AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
by and between
THE FORTRESS GROUP, INC.
and
PROMETHEUS HOMEBUILDERS LLC
Dated as of September 30, 1997
TABLE OF CONTENTS
PAGE
----
ARTICLE I. DEFINITIONS 2
-----------
Section 1.1. Defined Terms. 2
-------------
ARTICLE II. PURCHASE AND SALE OF SECURITIES 13
-------------------------------
Section 2.1. Purchase and Sale of Securities. 13
-------------------------------
Section 2.2. Consideration. 13
-------------
Section 2.3. Right to Assign. 13
---------------
ARTICLE III. CLOSING 13
-------
Section 3.1. Location of Closings. 13
--------------------
Section 3.2. First and Second Closings. 13
-------------------------
Section 3.3. Subsequent Purchases and Sales. 14
------------------------------
Section 3.4. Deliveries by the Company at Closing. 14
------------------------------------
Section 3.5. Deliveries by the Purchaser at Closing. 15
--------------------------------------
Section 3.6. Certificates; Opinions. 15
----------------------
Section 3.7. Ancillary Agreements. 15
--------------------
Section 3.8. Form of Documents and Instruments. 15
---------------------------------
Section 3.9. Further Purchases. 15
-----------------
Section 3.10. Redelivery and Cancellation of Warrants. 15
---------------------------------------
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE COMPANY 16
---------------------------------------------
Section 4.1. Organization of the Company. 16
---------------------------
Section 4.2. Capitalization of the Company. 16
-----------------------------
Section 4.3. Authorization of Issuance. 17
-------------------------
Section 4.4. Authorization. 17
-------------
Section 4.5. Noncontravention. 17
----------------
Section 4.6. Consents and Approvals. 18
----------------------
Section 4.7. Subsidiaries. 18
------------
Section 4.8. Employee Benefit Plans and Other Agreements. 19
-------------------------------------------
Section 4.9. SEC Filings. 24
-----------
Section 4.10. Absence of Undisclosed Liabilities; Guarantees. 25
----------------------------------------------
Section 4.11. Absence of Certain Changes. 25
--------------------------
Section 4.12. Compliance With Laws. 25
--------------------
Section 4.13. Litigation. 26
----------
Section 4.14. True and Complete Disclosure. 26
----------------------------
Section 4.15. Taxes. 26
-----
Section 4.16. Properties. 28
----------
Section 4.17. Environmental Matters. 31
---------------------
Section 4.18. Insurance. 32
---------
Section 4.19. Condition of Tangible Assets. 32
----------------------------
i
Section 4.20. Contracts and Commitments. 33
-------------------------
Section 4.21. Books and Records. 33
-----------------
Section 4.22. Labor Matters. 33
-------------
Section 4.23. Payments. 33
--------
Section 4.24. Information. 33
-----------
Section 4.25. Board Recommendations. 34
---------------------
Section 4.26. Intellectual Property 34
---------------------
Section 4.27. Securities Offerings. 35
--------------------
Section 4.28. No Agreements to Sell the Assets or the Company. 35
-----------------------------------------------
Section 4.29. No Brokers. 35
----------
Section 4.30. Transactions with Certain Persons. 35
---------------------------------
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF PURCHASER 36
-------------------------------------------
Section 5.1. Organization of the Purchaser. 36
-----------------------------
Section 5.2. Authorization. 36
-------------
Section 5.3. Noncontravention. 36
----------------
Section 5.4. Consents and Appeals. 36
--------------------
Section 5.5. Purchase for Investment. 37
-----------------------
Section 5.6. Disclosure Documents. 37
--------------------
Section 5.7. No Brokers. 37
----------
ARTICLE VI. ACTIONS BY THE COMPANY AND THE PURCHASER PRIOR TO THE SECOND
------------------------------------------------------------
CLOSING 38
-------
Section 6.1. Meeting of Stockholders; Proxy Statement; Certificate
-----------------------------------------------------
Amendments. 38
----------
Section 6.2. Stock Exchange Approval. 39
-----------------------
Section 6.3. Continuing Operations. 39
---------------------
Section 6.4. Press Releases. 41
--------------
Section 6.5. Additional Financial Statements. 41
-------------------------------
Section 6.6. Investigations and Access. 41
-------------------------
Section 6.7. Notification of Certain Matters. 42
-------------------------------
Section 6.8. No Solicitation. 42
---------------
Section 6.9. Further Assurances. 43
------------------
Section 6.10. HSR Act Notification. 43
--------------------
Section 6.11. Employee Matters. 44
----------------
Section 6.12. Action by the Company. 44
---------------------
Section 6.13. Liability Insurance. 44
-------------------
Section 6.14. Confidentiality. 44
---------------
Section 6.15. Action following Stockholder Approval. 45
-------------------------------------
ARTICLE VII. CONDITIONS TO ALL CLOSINGS 45
--------------------------
Section 7.1. Conditions to Each Party's Obligations. 45
--------------------------------------
Section 7.2. Conditions to the Company's Obligations. 45
---------------------------------------
Section 7.3. Conditions to the Purchaser's Obligations. 46
-----------------------------------------
ii
ARTICLE VIII. SECOND AND SUBSEQUENT CLOSINGS 47
------------------------------
Section 8.1. Conditions to Each Party's Obligations at the Second
Closing. 47
------------------------------------------------------------
Section 8.2. Conditions to the Purchaser's Obligations at the Second and
-----------------------------------------------------------
Subsequent Closings. 48
-------------------
ARTICLE IX. INDEMNIFICATION 48
---------------
Section 9.1. Survival of Representations, Etc. 48
--------------------------------
Section 9.2. Indemnification by the Company. 48
------------------------------
Section 9.3. Indemnification by the Purchaser. 49
--------------------------------
Section 9.4. Losses. 49
------
Section 9.5. Defense of Claims. 49
-----------------
Section 9.6. Tax Treatment of Indemnity. 50
--------------------------
ARTICLE X. MISCELLANEOUS 50
-------------
Section 10.1. Termination. 50
-----------
Section 10.2. In the Event of Termination: 51
---------------------------
Section 10.3. Fees and Expenses. 51
-----------------
Section 10.4. Injunctive Relief. 52
-----------------
Section 10.5. Independent Determination. 52
-------------------------
Section 10.6. Brokers, etc. 52
------------
Section 10.7. Assignment. 52
----------
Section 10.8. Notices. 52
-------
Section 10.9. Choice of Law. 54
-------------
Section 10.10. Entire Agreement; Amendments and Waivers. 54
----------------------------------------
Section 10.11. Counterparts. 54
------------
Section 10.12. Invalidity. 54
----------
Section 10.13. Headings. 54
--------
Section 10.14. Limitation of Liability. 54
-----------------------
Section 10.15. Abstention from Voting. 54
----------------------
Section 10.16. Mutual Agreement. 55
----------------
Section 10.17. Apportionment of Stock Between Class ABI Preferred Stock and
------------------------------------------------------------
Class ABII Preferred Stock 55
--------------------------
iii
SCHEDULES
Schedule 4.2
Schedule 4.5
Schedule 4.6
Schedule 4.7
Schedule 4.8
Schedule 4.9
Schedule 4.10
Schedule 4.11
Schedule 4.12
Schedule 4.13
Schedule 4.15
Schedule 4.16(a)
Schedule 4.16(b)
Schedule 4.16(c)
Schedule 4.16(d)
Schedule 4.16(e)
Schedule 4.16(f)
Schedule 4.16(j)
Schedule 4.16(k)
Schedule 4.16(s)
Schedule 4.17
Schedule 4.18
Schedule 4.20
Schedule 4.26
Schedule 4.27
Schedule 6.3
Schedule 6.3(e)
Schedule 6.3(i)
EXHIBITS
Exhibit A Form of Class AA Certificate of Designations
Exhibit B Form of Class ABI Certificate of Designations
Exhibit C Form of Class ABII Certificate of Designations
Exhibit D Form of Registration Rights Agreement
Exhibit E Form of Warrant Agreement
Exhibit F Form of Stockholders Agreement
Exhibit G Executed Stockholders Voting Agreement
Exhibit H Form of Bylaws Amendments
Exhibit I Form of Certificate Amendments
Exhibit J Form of By-laws Amendments - Subsidiaries
This AMENDED AND RESTATED STOCK PURCHASE AGREEMENT, dated as of
September 30, 1997, is made by and between (i) The Fortress Group, Inc., a
Delaware corporation (the "Company") and (ii) Prometheus Homebuilders LLC (the
-------
"Purchaser").
----------
RECITALS
--------
WHEREAS, the Company and the Purchaser entered into that certain stock
purchase agreement, dated as of August 14, 1997 (the "First Agreement").
---------------
WHEREAS, the Company and the Purchaser desire to amend and restate in
its entirety the First Agreement as set forth herein.
WHEREAS, the First Agreement, as amended and restated as set forth
herein shall be referred to as the "Agreement".
---------
WHEREAS, Prometheus Homebuilders Funding Corp. has assigned all its
interest in the Purchaser to Lazard Frres Strategic Realty Investors II L.P.
WHEREAS, the Company desires to issue and sell to the Purchaser, and
the Purchaser desires to purchase from the Company, (i) an aggregate of 35,000
shares of its newly issued Class AA Convertible Preferred Stock, $0.01 par value
per share (the "Class AA Preferred Stock"), having the rights, designations and
------------------------
preferences set forth in the Class AA Certificate of Designations (as defined
herein) and (ii) an aggregate of 40,000 shares of its newly issued Class AB
Preferred Stock apportioned between Class ABI Convertible Redeemable Preferred
Stock, $0.01 par value per share (the "Class ABI Preferred Stock"), having the
-------------------------
rights, designations and preferences set forth in the Class ABI Certificate of
Designations (as defined herein) and Class ABII Convertible Redeemable Preferred
Stock, $0.01 par value per share (the "Class ABII Preferred Stock" and together
--------------------------
with the Class AA Preferred Stock, and the Class ABI Preferred Stock, the
"Preferred Stock"), having the rights, designations and preferences set forth in
----------------
the Class ABII Certificate of Designations (as defined herein), together with an
aggregate of 1,000,000 Warrants (the "Warrants") to purchase initially one share
--------
of Common Stock (as defined herein) at an initial exercise price of $7.00 per
share as further described in the Warrant Agreement (as defined herein).
AGREEMENT
---------
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
-----------
Section 1.1. Defined Terms.
-------------
As used herein, the terms below shall have the following meanings:
"Affiliate" shall mean any entity controlling, controlled by or under
---------
common control with the Company. For the purposes of this definition, "control"
shall have the meaning presently specified for that word in Rule 405 promulgated
by the Commission under the Securities Act.
"Agreement" shall mean this Stock Purchase Agreement as amended and
---------
restated, together with all schedules and exhibits referenced herein.
"Alternative Transaction" shall have the meaning set forth in Section
-----------------------
6.8.
"Ancillary Agreements" means the Warrant Agreement, the Stockholders
--------------------
Agreement and the Registration Rights Agreement.
"Applicable Law" means any statute, law, rule, or regulation or any
--------------
judgment, order, writ, injunction or decree of any Governmental Entity to which
a specified person or property is subject.
"Benefit Arrangement" means any employment, consulting, severance or
-------------------
other similar contract, arrangement or policy and each plan, arrangement
(written or oral), program, agreement or commitment providing for insurance
coverage (including without limitation any self-insured arrangements), workers'
compensation, disability benefits, supplemental unemployment benefits, vacation
benefits, retirement benefits, life, health or accident benefits (including
without limitation any "voluntary employees' beneficiary association" as defined
in Section 501(c)(9) of the Code providing for the same or other benefits) or
for deferred compensation, profit-sharing bonuses, stock options, stock
appreciation rights, stock purchases or other forms of incentive compensation or
post-retirement insurance, compensation or benefits which (A) is not a Welfare
Plan, Pension Plan or Multiemployer Plan, (B) is entered into, maintained,
contributed to or required to be contributed to, as the case may be, by the
Company or an ERISA Affiliate or under which the Company or any ERISA Affiliate
may incur any liability, and (C) covers any present or former employees,
directors or consultants of the Company (with respect to their relationship with
such entities).
"Board of Directors" means the Board of Directors of the Company.
------------------
"Business" means the business of the Company as described more fully
--------
in the "Business" section of the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996.
2
"Business Day" shall mean any day other than a Saturday, a Sunday or a
------------
bank holiday in New York, New York.
"Bylaws" means the Bylaws of the Company as in effect on the date
------
hereof and as may be amended from time to time.
"Bylaws Amendments" means the amendments in substantially the form set
-----------------
forth in Exhibit H and Exhibit J attached hereto and any other amendments to the
--------- ---------
bylaws of the Company and any of its Subsidiaries reasonably necessary in
connection with the transactions contemplated under this Agreement and the
Ancillary Agreements (including amendments required to give effect to the
Supermajority provisions of the Stockholders Agreement).
"Certificate Amendments" means the amendments in substantially the
----------------------
form set forth in Exhibit I attached hereto and any other amendments to the
---------
Certificate of Incorporation or the certificates of incorporation of the
Company's Subsidiaries reasonably necessary in connection with the transactions
contemplated under this Agreement and the Ancillary Agreements, including,
without limitation, (a) an increase to the authorized number of shares of Common
Stock of the Company if necessary, (b) the terms and conditions of the
designations, rights and preference of the Preferred Stock set forth in the
Preferred Stock Certificates of Designations, and (c) such other changes to the
Certificate of Incorporation as are reasonably necessary to give effect to the
rights, preferences and designations of the Preferred Stock contained in the
Preferred Stock Certificates of Designations and the provisions of this
Agreement and the Ancillary Agreements (including the voting provisions set
forth in the Stockholders Agreement, if requested by the Purchaser).
"Certificate of Incorporation" means the Certificate of Incorporation
----------------------------
of the Company as amended or restated and as in effect on the date hereof.
"Claim" shall have the meaning set forth in Section 9.5.
-----
"Claim Notice" shall have the meaning set forth in Section 9.5.
------------
"Class AA Certificate of Designations" means the Certificate of
------------------------------------
Designations, Preferences and Relative, Participating, Optional and Other
Special Rights and Qualifications, Limitations and Restrictions thereof of the
Class AA Convertible Preferred Stock, $0.01 par value per share, of the Company,
substantially in the form attached hereto as Exhibit A.
---------
"Class AA Per Share Purchase Price" shall mean the price of $1000 per
---------------------------------
share for the Class AA Preferred Stock.
"Class AA Preferred Stock" means the 6% - 12% Class AA Convertible
------------------------
Preferred Stock, $0.01 par value per share, of the Company.
"Class ABI Certificate of Designations" means the Certificate of
-------------------------------------
Designations, Preferences and Relative, Participating, Optional and Other
Special Rights and Qualifications,
3
Limitations and Restrictions thereof of the Class AB Convertible Redeemable
Preferred Stock, $0.01 par value per share, of the Company, substantially in the
form attached thereto as Exhibit B.
---------
"Class ABII Certificate of Designations" means the Certificate of
--------------------------------------
Designations, Preferences and Relative, Participating, Optional and Other
Special Rights and Qualifications, Limitations and Restrictions thereof of the
Class ABII Convertible Redeemable Preferred Stock, $0.01 par value per share, of
the Company, substantially in the form attached thereto as Exhibit C.
---------
"Class ABI Per Share Purchase Price" shall mean the price of $1000 per
----------------------------------
share for the Class ABI Preferred Stock.
"Class ABII Per Share Purchase Price" shall mean the price of $1000
-----------------------------------
per share for the Class ABII Preferred Stock.
"Class AB Preferred Stock" means the Class ABI Preferred Stock and the
------------------------
Class ABII Preferred Stock.
"Class ABI Preferred Stock" means the 12% Class ABI Convertible
-------------------------
Redeemable Preferred Stock, $0.01 par value per share, of the Company.
"Class ABII Preferred Stock" means the 12% Class ABII Convertible
--------------------------
Redeemable Preferred Stock, $0.01 par value per share, of the Company.
"Closing" shall mean the consummation of any purchase of Preferred
-------
Stock.
"Closing Date" means, with respect to the consummation of any purchase
------------
of Preferred Stock, the third Business Day following the date on which the
conditions set forth herein with respect thereto shall be satisfied or duly
waived, or if the Company and the Purchaser mutually agree on a different date
in this Agreement or otherwise, the date upon which they have mutually agreed.
"Code" means the Internal Revenue Code of 1986, as it may be amended
----
from time to time.
"Commission" means the United States Securities and Exchange
----------
Commission.
"Commitment" shall have the meaning set forth in Section 4.11.
----------
"Common Stock" means the common stock, par value $0.01 per share, of
------------
the Company.
"Company" shall have the meaning set forth in the first paragraph
-------
hereof.
"Company Employee Plan" shall have the meaning set forth in Section
---------------------
4.8(a).
"Company Indemnified Parties" shall have the meaning set forth in
---------------------------
Section 9.3.
4
"Company Pension Plan" shall have the meaning set forth in Section
--------------------
4.8(a).
"Contract" shall mean any written or oral agreement, contract, lease,
--------
commitment, understanding, instrument or obligation to which the Company or any
of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries or any of their respective properties may be bound.
"Conversion Shares" means the shares of Common Stock issuable upon the
-----------------
conversion of the Preferred Stock.
"Employee Plans" means all Benefit Arrangements, Multiemployer Plans,
--------------
Pension Plans and Welfare Plans.
"Encumbrance" means any claim, lien, mortgage, deed of trust, deed to
-----------
secure debt, pledge, option, charge, easement, security interest, right-of-way,
encumbrance or other rights of third parties of any nature, and, with respect to
any securities, any agreements, understandings or restrictions affecting the
voting rights or other incidents of record or beneficial ownership pertaining to
such securities.
"Environmental Conditions" means (1) the Release or threatened Release
------------------------
of any Hazardous Material (whether or not upon a Facility or any former Facility
or the Real Property or other property and whether or not such Release
constituted at the time thereof a violation of any Environmental Law), or (2)
the state of the environment, including natural resources (e.g., flora and
fauna) soil, surface water, ground water, wetlands or ambient air, as a result
of which the Company has or may become liable under any Environmental Laws or by
reason of which any Facility, any former Facility or any of the Real Property or
the other assets of the Company may suffer or be subjected to any Encumbrances.
"Environmental Laws" means any and all applicable Federal, state,
------------------
local or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, legally binding decrees, or other requirement of any Governmental Entity
(including, without limitation, common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of the environment or of
human health or relating to exposure of any kind to Hazardous Materials, as has
been, is now, or may at any time hereafter be, in effect.
"Environmental Permits" means any and all permits, licenses,
---------------------
registrations, notifications, exemptions and any other authorization required
under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended.
"ERISA Affiliate" means any entity which is (or at any relevant time
---------------
was) a member of a "controlled group of corporations" with, under "common
control" with, a member of an "affiliated service group" with, or otherwise
required to be aggregated with the Company, as set forth in Section 414(b), (c),
(m) or (o) of the Code or Section 4001(b)(1) of ERISA.
5
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
"Executive Committee" shall have the meaning set forth in Section
-------------------
7.3(f).
"Existing Preferred Stock" means the Series A Preferred Stock, the
------------------------
Series B Preferred Stock, the Series C Preferred Stock and the Series D
Preferred Stock of the Company.
"Existing Preferred Stock Certificates of Designations" means the
-----------------------------------------------------
Company's (i) Certificate of Designations, Preferences and Relative,
Participating, Optional and Other Special Rights and Qualifications, Limitations
and Restrictions thereof of the Series A 11% Cumulative Convertible Preferred
Stock, $0.01 par value per share, (ii) Certificate of Designations, Preferences
and Relative, Participating, Optional and Other Special Rights and
Qualifications, Limitations and Restrictions thereof of the Series B Convertible
Preferred Stock, $0.01 par value per share, (iii) Certificate of Designations,
Preferences and Relative, Participating, Optional and Other Special Rights and
Qualifications, Limitations and Restrictions thereof of the Series C Convertible
Preferred Stock, $0.01 par value per share, and (iv) Certificate of
Designations, Preferences and Relative, Participating, Optional and Other
Special Rights and Qualifications, Limitations and Restrictions thereof of the
Series D 6% Convertible Redeemable Preferred Stock, $0.01 par value per share.
"Existing Stockholders Agreement" shall mean that certain Stockholders
-------------------------------
Agreement, dated as of April 15, 1996, by and among Xxxxxxx X. Xxxxx, Xx., Xxxxx
X. Xxxxxxx, Xx., Xxxxxxxx Xxxxxxxx, Xxxxxxx X. Xxxx and Xxxx Xxxx, Co-Trustees
of the Xxxx Grantor Trust of 1993, Xxxxx X. XxXxxxxx, Xx., Xxxxx X. Xxxxxxxx,
Xxxxx XxXxxxxx, Xxxxx Xxxxxxxx, Xxxxxx X. Xxxxxxxxxx, Xxxxxx X. Xxxxxxxxxxx,
Xxxxx X. Xxxxxxx, J. Xxxxxxxxxxx Xxxxxxx, Xxxxxx Xxxxx, Lanold X. Xxxxxxxx and
Xxxxxxxx X. Xxxxx.
"Facilities" means the offices, buildings and other improvements and
----------
all other real property and related facilities, including the Real Property,
which are owned, leased or operated by the Company or any of its Subsidiaries.
"Financial Product Agreement" shall mean any (a) interest rate,
---------------------------
currency, commodity or other swap, cap, floor, collar, insurance or similar
agreement or arrangement, (b) put, call, futures or forward contract, straddle,
commodities contract, option or warrant other than outstanding options or
warrants for Common Stock, (c) repurchase or reverse repurchase or similar
agreement or arrangement or (d) any other financial, derivative, hedge, or
speculative product, service or agreement, contract or arrangement.
"First Closing" shall have the meaning set forth in Section 3.2(a).
-------------
"Fixtures and Equipment" shall mean all of the furniture, fixtures,
----------------------
furnishings, machinery and equipment owned by the Company or any of its
Subsidiaries.
"Further Purchase" shall have the meaning set forth in Section 3.9.
----------------
6
"GAAP" shall have the meaning set forth in Section 4.9.
----
"Governmental Entity" means any court or tribunal in any jurisdiction
-------------------
(domestic or foreign) or any public, governmental, or regulatory body, agency,
department, commission, board, bureau, or other authority or instrumentality
(domestic or foreign).
"Hazardous Materials" means any hazardous substance, gasoline or
-------------------
petroleum (including crude oil or any fraction thereof) or petroleum products,
polychlorinated biphenyls, ureaformaldehyde insulation, asbestos or asbestos-
containing materials, pollutants, contaminants, radioactivity, and any other
materials or substances of any kind, whether solid, liquid or gas, that is
regulated pursuant to any Environmental Law or that gives rise to liability
under any Environmental Law.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
-------
1976, as amended.
"Indemnified Parties" shall have the meaning set forth in Section 9.3.
-------------------
"Indenture" shall mean that certain Indenture, dated as of May 21,
---------
1996, by and between The Fortress Group, Inc. and IBJ Xxxxxxxx Bank & Trust
Company, as amended by that certain First Supplemental Indenture, dated as of
May 21, 1996, and that certain Second Supplemental Indenture, dated as of May
27, 1997, between the same parties.
"Liabilities" shall mean, as to any person, all debts, adverse claims,
-----------
liabilities and obligations, direct, indirect, absolute or contingent of such
person, whether known or unknown, accrued, vested or otherwise, whether in
contract, tort, strict liability or otherwise and whether or not actually
reflected, or required by GAAP to be reflected, in such person's or entity's
balance sheets or other books and records, including without limitation (i)
obligations arising from non-compliance with any law, rule or regulation of any
Government Entity or imposed by any court or any arbitrator of any kind, (ii)
all indebtedness or liability of such person for borrowed money, or for the
purchase price of property or services (including trade obligations), (iii) all
obligations of such person as lessee under leases, capital or other, (iv)
liabilities of such person in respect of plans covered by Title IV of ERISA, or
otherwise arising in respect of plans for the Company's employees or former
employees or their respective families or beneficiaries, (v) reimbursement
obligations of such person in respect of letters of credit, (vi) all obligations
of such person arising under acceptance facilities, (vii) all liabilities of
other persons or entities, directly or indirectly, guaranteed, endorsed (other
than for collection or deposit in the ordinary course of business) or discounted
with recourse by such person or with respect to which the person in question is
otherwise directly or indirectly liable, (viii) all obligations secured by any
Encumbrance on property of such person, whether or not the obligations have been
assumed, and (ix) all other items which have been, or in accordance with GAAP
would be, included in determining total liabilities on the liability side of the
balance sheet.
"Losses" shall have the meaning set forth in Section 9.2.
------
7
"Material Adverse Effect" with respect to any person or entity shall
-----------------------
mean an event, occurrence or condition that has had or reasonably would be
expected to have a material adverse effect on the business, condition (financial
or otherwise), assets, liabilities, working capital, operations or prospects of
such person or entity and its Subsidiaries (if any), taken as a whole.
"Material Agreements" shall mean all of the following Contracts to
-------------------
which the Company or any of its Subsidiaries is a party: (a) all Contracts which
(i) involve payments by or to any Person, of more than $50,000 in cash or other
property or services, or (ii) extend for a term of more than thirty (30) days
from the date hereof (unless the same is (y) cancelable on not more than thirty
(30) days' notice without fee, premium or penalty or (z) motor vehicle or
equipment leases not involving payments in excess of $50,000), (b) all loan
agreements and commitments, credit agreements, indentures, promissory notes,
mortgages, deeds of trust, pledge or security agreements, factoring agreements,
conditional sales Contracts, letters of credit or other agreements or
instruments evidencing, securing or issued in connection with any Liability, (c)
all operating leases or capital leases for equipment to which the Company is a
party, involving annual payments in excess of $50,000 per lease, (d) all union,
labor or collective bargaining Contracts, (e) all consulting, management,
development, leasing brokerage or similar agreements with total obligations in
excess of $50,000, (f) any guarantee of any Liability or other obligations of
any Person other than guarantees by the Company of the obligations of its wholly
owned Subsidiaries, (g) each joint venture, partnership, operating or similar
agreement, (h) each agreement relating to any outstanding commitment for capital
expenditures involving future payments which, together with future payments
under all other agreements, Contracts or commitments relating to the same
capital project, exceed $50,000, (i) any agreement, Contract or commitment
relating to a disposition or an acquisition of the assets (except in respect of
the disposition or acquisition of assets with a fair market value of less than
$50,000) or securities of, or any interest in, any Person or other business
enterprise, (j) any agreement, Contract or commitment in respect of any
Liability of whatever nature (including, without limitation, open account
indebtedness) to any Affiliate of the Company, or any agreement, Contract or
commitment with or to any Affiliate of the Company, (k) any agreement, Contract
or commitment containing any covenant limiting the freedom of the Company to
undertake, conduct or engage in any business or activity or to compete with any
Person in any geographic area, (l) any Financial Product Agreement, (m) any
construction, development, service, supply and maintenance agreement (unless the
same is (y) cancelable on not more than thirty (30) days' notice without fee,
premium or penalty or (z) does not involve payments in excess of $50,000), (n)
all leases of Real Property and (o) all agreements not entered into in the
ordinary course of business;
"Multiemployer Plan" means any "multiemployer plan," as defined in
------------------
Section 4001(a)(3) or 3(37) of ERISA, which (A) the Company or any ERISA
Affiliate maintains, administers, contributes to or is required to contribute
to, or, after September 25, 1980, maintained, administered, contributed to or
was required to contribute to, or under which the Company or any ERISA Affiliate
may incur any liability and (B) covers any employee or former employee of the
Company or any ERISA Affiliate (with respect to their relationship with such
entities).
8
"PBGC" means the Pension Benefit Guaranty Corporation.
----
"Pension Plan" means any "employee pension benefit plan" as defined in
------------
Section 3(2) of ERISA (other than a Multiemployer Plan) which (A) the Company or
any ERISA Affiliate maintains, administers, contributes to or is required to
contribute to, or, within the five years prior to the Closing Date, maintained,
administered, contributed to or was required to contribute to, or under which
the Company or any ERISA Affiliate may incur any liability and (B) covers any
employee or former employee of the Company or any ERISA Affiliate (with respect
to their relationship with such entities).
"Permits" shall mean all licenses, permits, orders, consents,
-------
approvals, registrations, authorizations, qualifications and filings required by
any federal, state, local or foreign laws or governmental or regulatory bodies
and all industry or other non-governmental self-regulatory organizations.
"Permitted Encumbrances" means (i) any mechanic's or materialmen's
----------------------
lien or similar Encumbrances arising in the ordinary course of business with
respect to amounts not yet due and payable or which are being contested in good
faith by appropriate proceedings and for which appropriate reserves have been
established, (ii) Encumbrances for Taxes not yet due and payable or which are
being contested in good faith by appropriate proceeding, for which appropriate
reserves have been established, (iii) easements, licenses, covenants, rights of
way and similar Encumbrances which, individually or in the aggregate, would not
materially and adversely affect the marketability or value of the property
encumbered thereby or materially interfere with the operations of the Company.
"Person" means any individual, co-partner, association, partnership,
------
joint venture, limited liability company, trust, estate or other entity or
organization.
"Preferred Stock" shall have the meaning set forth in the Recital
---------------
hereto.
"Preferred Stock Certificates of Designations" shall mean the Class AA
--------------------------------------------
Certificate of Designations, the Class ABI Certificate of Designations and the
Class ABII Certificate of Designations.
"Preferred Stock Director" shall mean the three directors elected by
------------------------
the holders of the Preferred Stock in the manner set forth in the Preferred
Stock Certificates of Designations.
"Preferred Stock Liquidation Preference" shall mean $1,000 per share
--------------------------------------
of Preferred Stock, plus any accrued and unpaid dividends thereon.
"Proceeding" means any action, suit or proceeding, whether civil,
----------
criminal, administrative, arbitrative or investigative, any appeal in such an
action, suit or proceeding, and any inquiry or investigation that could
reasonably be expected to lead to such an action, suit or proceeding.
9
"Proprietary Rights" shall have the meaning set forth in Section
------------------
4.26(a).
"Proxy Materials" means the proxy statement and other proxy materials
---------------
(as amended and supplemented) to be used to solicit proxies on behalf of the
board of directors of the Company in connection with the Stockholders Meeting.
"Purchase Price" shall mean the Class AA Per Share Purchase Price
--------------
multiplied by the number of shares of Class AA Preferred Stock to be purchased
and sold at a particular Closing plus the Class ABI Per Share Purchase Price
multiplied by the number of shares of Class ABI Preferred Stock to be purchased
and sold at a particular Closing plus the Class ABII Per Share Purchase Price
multiplied by the number of shares of Class ABII Preferred Stock to be purchased
and sold at a particular Closing.
"Purchaser" shall have the meaning set forth in the first paragraph
---------
hereof.
"Purchaser Indemnified Parties" shall have the meaning set forth in
-----------------------------
Section 9.2.
"Registration Rights Agreement" means the Registration Rights
-----------------------------
Agreement substantially in the form of Exhibit D attached hereto.
---------
"Regulation D" shall have the meaning set forth in Section 4.27(b).
------------
"Regulations" means any laws, statutes, ordinances, regulations,
-----------
rules, notice requirements, court decisions and orders of any foreign, federal,
state or local government and any other governmental department or agency,
including without limitation Environmental Laws, energy, motor vehicle safety,
public utility, zoning, building and health codes, occupational safety and
health laws and laws respecting employment practices, employee documentation,
terms and conditions of employment and wages and hours.
"Release" means and includes any spilling, leaking, pumping, pouring,
-------
emitting, emptying, discharging, injecting, escaping, leaching, dumping or
disposing into the environment or the workplace of any Hazardous Materials, and
otherwise as defined in any Environmental Law.
"Schedules" shall have the meaning set forth in Section 10.10.
---------
"SEC Filings" shall have the meaning set forth in Section 4.9.
-----------
"Second Closing" shall have the meaning set forth in Section 3.2(b).
--------------
"Securities" means the Preferred Stock and the Warrants.
----------
"Securities Act" means the Securities Act of 1933, as amended.
--------------
10
"Series A Preferred Stock" means the shares of Series A 11% Cumulative
------------------------
Convertible Preferred Stock, $0.01 par value per share, of the Company
outstanding on the date hereof.
"Series B Preferred Stock" means the shares of Series B Convertible
------------------------
Preferred Stock, $0.01 par value per share, of the Company outstanding on the
date hereof.
"Series C Preferred Stock" means the shares of Series C Convertible
------------------------
Preferred Stock, $0.01 par value per share, of the Company to be issued in
accordance with existing contractual provisions.
"Series D Preferred Stock" means the shares of Series D 6% Convertible
------------------------
Redeemable Preferred Stock, $0.01 par value per share, of the Company
outstanding on the date hereof or to be issued in accordance with existing
contractual provisions.
"Shareholder Undertakings" means the undertakings delivered by the
------------------------
Company to the Purchaser on the date of this Agreement pursuant to the
Stockholders Voting Agreement by all the stockholders party to the Stockholders
Voting Agreement including the proxy of each such person to vote in favor of the
Stockholder Approval.
"Stockholder Approval" shall have the meaning set forth in Section
--------------------
8.1(a).
"Stockholders Agreement" means the Stockholders Agreement
----------------------
substantially in the form of Exhibit F attached hereto.
---------
"Stockholders Meeting" shall have the meaning set forth in Section
--------------------
6.1(a).
"Stockholders Voting Agreement" shall mean that certain Stockholders
-----------------------------
Voting Agreement, dated as of September 30, 1997, by and among the Company, the
Purchaser and certain stockholders named therein, an executed version of which
is attached hereto as Exhibit G.
---------
"Subsequent Closing" shall mean each Closing of a Subsequent Purchase.
------------------
"Subsequent Purchase" shall have the meaning set forth in Section
-------------------
3.3(a).
"Subsidiary" means, with respect to any Person, (a) any corporation of
----------
which at least a majority in interest of the outstanding voting stock (having by
the terms thereof voting power under ordinary circumstances to elect a majority
of the directors of such corporation, irrespective of whether or not at the time
stock of any other class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the time,
directly or indirectly, owned or controlled by such Person, by one or more
Subsidiaries of such Person, or by such Person and one or more of its
Subsidiaries, or (b) any corporate or non-corporate entity in which such Person,
one or more Subsidiaries of such Person, or such person and one or more
Subsidiaries of such Person, directly or indirectly, at the date of
determination thereof, has an ownership interest and 100% of the revenue of
which is included in the consolidated financial reports of such Person
consistent with GAAP.
11
"Tax" or "Taxes" means any federal, state, local or foreign net or
--- -----
gross income, gross receipts, license, payroll, employment, excise, severance,
stamp, occupation, premium, (including taxes under Code Sec. 59A), customs
duties, capital stock, franchise, profits, withholding, social security (or
similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax, governmental fee or like assessment or charge of any
kind whatsoever, including any interest, penalty or addition thereto, whether
disputed or not, imposed by any governmental authority or arising under any Tax
law or agreement, including, without limitation, any joint venture or
partnership agreement.
"Tax Return" means any return, declaration, report, claim for refund
----------
or information or return or statement relating to Taxes, including any schedule
or attachment thereto, and including any amendments thereof.
"Third Party Notice" shall have the meaning set forth in Section 9.5.
------------------
"Title Policies" shall have the meaning set forth in Section 4.16(a).
--------------
"Transaction" means, taken together, the transactions contemplated
-----------
under this Agreement.
"Transaction Expenses" means the reasonable fees and expenses incurred
--------------------
by the Purchaser, including, but not limited to, fees and expenses of legal
counsel, accountants and consultants and travel expenses in connection with the
preparation of the Agreement and the Purchaser's due diligence examination
relating to the Agreement and the transactions contemplated hereby, including,
without limitation, Xxxx-Xxxxx-Xxxxxx filing fees, if any.
"Warrant Agreement" means that certain Warrant Agreement by and among
-----------------
the Company and the Purchaser substantially in the form attached hereto as
Exhibit E pursuant to which the Company shall, on the date of the First and
---------
Second Closing, issue the Warrants to the Purchaser.
"Warrants" shall have the meaning set forth in recital hereto.
--------
"Warrant Shares" means the Common Stock issuable upon the exercise of
--------------
the Warrants.
"Welfare Plan" means any "employee welfare benefit plan" as defined in
------------
Section 3(1) of ERISA, which (A) the Company or any ERISA Affiliate maintains,
administers, contributes to or is required to contribute to, or under which the
Company or any ERISA Affiliate may incur any liability and (B) covers any
employee or former employee of the Company or any ERISA Affiliate (with respect
to their relationship with such entities).
12
ARTICLE II
PURCHASE AND SALE OF SECURITIES
-------------------------------
Section 2.1. Purchase and Sale of Securities. Subject to the terms and
--------------------------------------------
conditions hereof, from time to time after the date hereof, at the Closings, the
Company will sell, convey, assign, transfer, and deliver, and the Purchaser will
purchase and acquire from the Company (i) an aggregate of 35,000 shares of Class
AA Preferred Stock, (ii) an aggregate of 40,000 shares of Class AB Preferred
Stock which shall be apportioned between the Class ABI Preferred Stock and the
Class ABII Preferred Stock as set forth in Section 10.17 and (iii) an aggregate
of 1,000,000 Warrants (subject to adjustment in accordance with the terms of the
Warrant Agreement).
Section 2.2. Consideration. Subject to the terms and conditions
-------------
hereof, at each Closing, the Purchaser shall deliver to the Company the Purchase
Price with respect to the number of shares of Preferred Stock to be purchased
and sold at such Closing by wire transfer of immediately available funds in U.S.
dollars to the account or accounts specified by the Company.
Section 2.3. Right to Assign. The Purchaser may assign its rights
---------------
and delegate its obligations created hereby to purchase Securities in accordance
with the provisions of Section 10.7.
ARTICLE III
CLOSING
-------
Section 3.1. Location of Closings. Each Closing shall be held at 9:00
---------------------------------
a.m. Eastern Time on the applicable Closing Date at the offices of Xxxxxx &
Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Section 3.2. First and Second Closings.
-------------------------
(a) First Closing. Subject to the terms and conditions hereof, on
-------------
September 30, 1997, the Purchaser will purchase and acquire from the Company,
and the Company will sell, convey, assign, transfer and deliver to the
Purchaser, 11,700 shares of Class AA Preferred Stock and 375,000 Warrants, and
the Purchaser will pay to the Company the Purchase Price for such shares of
Preferred Stock (the "First Closing").
-------------
(b) Second Closing. Subject to the terms and conditions hereof, on
--------------
December 30, 1997, the Purchaser will purchase and acquire from the Company and
the Company will sell, convey, assign, transfer and deliver to the Purchaser,
4,633 shares of Class AA Preferred Stock and 18,667 shares of Class AB Preferred
Stock apportioned between the Class ABI Preferred Stock and the Class ABII
Preferred Stock as set forth in Section 10.17 and 625,000 Warrants, and the
Purchaser will pay to the Company the Purchase Price for such shares of
Preferred Stock (the "Second Closing"); provided, however, that if Stockholder
------ ------- -------- -------
Approval has
13
not been obtained by December 30, 1997, the Company may, at its option, extend
the date of the Second Closing to any Business Day up to and including January
31, 1998.
Section 3.3. Subsequent Purchases and Sales.
------------------------------
(a) Subject to the terms and conditions hereof, following the Second
Closing, the Company shall be obligated to sell to the Purchaser, from time to
time at one or more Subsequent Closings, an aggregate of 18,667 shares of Class
AA Preferred Stock and 21,333 shares of Class AB Preferred Stock, apportioned
between the Class AA Preferred Stock and the Class AB Preferred Stock in
proportionate amounts and apportioned between the Class ABI Preferred Stock and
the Class ABII Preferred Stock as set forth in Section 10.17 (each referred to
as a "Subsequent Purchase" and, together, the "Subsequent Purchases"), subject
------------------- --------------------
to satisfaction or waiver of the conditions set forth in Sections 7.1 and 7.3
and Article VIII. Subject to the terms and conditions hereof, the Closing of
any Subsequent Purchase shall occur as soon as practicable following the date on
which the conditions set forth in Article VII and Article VIII shall have been
satisfied or duly waived and the applicable notice period referred to in Section
3.3(b) below shall have expired.
(b) At least 20 Business Days prior to any Subsequent Purchase, the
Company shall notify (which shall be in writing and irrevocable) the Purchaser
of the anticipated date of the Subsequent Closing (which shall be a Business
Day) and the number of shares of Preferred Stock the Company is requiring the
Purchaser to purchase, which shall not be fewer than 10,000 Shares of Preferred
Stock unless such purchase is of the balance of the Preferred Stock. The
Company shall be obligated to require the Purchaser to make Subsequent Purchases
of all of the Preferred Stock on or before December 31, 1998.
Section 3.4. Deliveries by the Company at Closing. At each Closing,
------------------------------------
the Company shall issue and deliver to the Purchaser:
(a) certificates evidencing the Preferred Shares to be issued and
delivered at such Closing in the name of the Purchaser (or its permitted
assignee(s)) in the respective amounts as set forth in a written notice provided
to the Company by the Purchaser, free and clear of all Encumbrances;
(b) at the First Closing, certificates evidencing 375,000 Warrants and
at the Second Closing certificates evidencing 625,000 Warrants, in each case in
the name of the Purchaser (or its permitted assignee(s)) in the respective
amounts as set forth in a written notice provided to the Company by the
Purchaser, free and clear of all Encumbrances; and
(c) all such other documents and instruments as the Purchaser or its
counsel shall reasonably request to consummate or evidence the Transaction.
14
Section 3.5. Deliveries by the Purchaser at Closing. At each
--------------------------------------
Closing, the Purchaser shall deliver to the Company:
(a) immediately available funds as provided in Section 2.2;
(b) all such other documents and instruments as the Company or its
counsel shall reasonably request to consummate or evidence the Transaction.
Section 3.6. Certificates; Opinions. At each Closing, the Purchaser
----------------------
and the Company shall deliver the certificates, opinions of counsel, and other
documents described in Article VII.
Section 3.7. Ancillary Agreements. At the First Closing, the
--------------------
Company and the Purchaser shall enter into the Ancillary Agreements.
Section 3.8. Form of Documents and Instruments. All of the documents
---------------------------------
and instruments delivered at Closing shall be in form and substance, and shall
be executed and delivered in a manner, reasonably satisfactory to the parties'
respective counsel.
Section 3.9. Further Purchases. Provided that the Company has at
-----------------
such time sold all Subsequent Purchases to the Purchaser, the Company may, at
its option, request in writing on not less than thirty (30) Business Days'
notice that the Purchaser purchase in the aggregate from the Company, in
proportionate amounts and on terms otherwise identical to the terms of the
securities set forth in Section 2.1., in addition to the Securities set forth in
Section 2.1, up to an additional 11,667 shares of Class AA Preferred Stock, up
to an additional 13,333 shares of Class AB Preferred Stock apportioned between
Class ABI Preferred Stock and Class ABII Preferred Stock as set forth in Section
10.17 and up to an additional 333,250 Warrants (a "Further Purchase"). The
----------------
Purchaser may, in its sole discretion accede to or refuse any such request for a
Further Purchase. If the Purchaser accepts any request for a Further Purchase,
all Further Purchases shall take place in accordance with Sections 3.3 through
3.8 as if the number of Securities set forth in Section 3.3(a) were increased by
the number of additional Securities which the Purchaser has agreed to purchase
as a Further Purchase pursuant to this Section 3.9. Purchaser shall have a right
of first refusal with respect to any bona fide offer to purchase up to
$25,000,000 of equity capital (provided that Purchaser must respond to such
offer within 30 days and if Purchaser does not accept such offer, the Company
cannot raise such capital on terms materially less favorable to the Company
without first offering the securities again to Purchaser).
Section 3.10. Redelivery and Cancellation of Warrants. From and
---------------------------------------
after the Second Closing, in the event the Purchaser defaults in any of its
obligations hereunder to fund Subsequent Purchases (otherwise than by reason of
a default of the Company), the Purchaser shall promptly redeliver to the Company
for cancellation all Warrants received by it in excess of one (1) Warrant for
every seventy five dollars ($75) Liquidation Preference of Preferred Stock
issued pursuant to this Agreement.
15
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
The Company represents and warrants to the Purchaser as follows:
Section 4.1. Organization of the Company. The Company is a
---------------------------
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite corporate power and authority to
own, lease, and operate its properties and to carry on its business as presently
being conducted. No actions or proceedings to dissolve the Company are pending
or, to the knowledge of the Company, threatened. The copies of the Certificate
of Incorporation and Bylaws heretofore delivered by the Company to the Purchaser
are accurate and complete as of the date hereof. The Company is duly qualified
or licensed to do business as a foreign corporation and is in good standing in
each jurisdiction in which the property owned, leased, or operated by it or the
conduct of its business requires such qualification or licensing, except where
the failure to do so taken in the aggregate would not have a Material Adverse
Effect on the Company.
Section 4.2. Capitalization of the Company.
-----------------------------
(a) The authorized capital stock of the Company as of the date hereof,
consists of 49,000,000 shares of Common Stock, par value $0.01 per share and
1,000,000 shares of preferred stock. As of the date hereof, 11,745,275 shares
of Common Stock, 10,000 shares of Series A Preferred Stock, 8,854 shares of
Series B Preferred Stock, no shares of Series C Preferred Stock and 60,000
shares of Series D Preferred Stock were outstanding. As of the date hereof,
379,800 shares of Common Stock are reserved for issuance upon exercise of
outstanding employee stock options, 188,540 shares of Common Stock are reserved
for issuance upon conversion of the Existing Preferred Stock and other
outstanding securities, a maximum of 60,000 shares of Series C Preferred Stock
are reserved for issuance pursuant to existing contractual agreements and a
maximum of 600,000 shares of Common Stock are reserved for issuance upon
conversion of such Series C Preferred Stock. Schedule 4.2 sets forth the
------------
beneficiaries of all such reserved shares. Schedule 4.2 contains the aggregate
------------
number of outstanding options to purchase shares of Common Stock, the weighted
average exercise price with respect to such options and the plan or other
arrangements pursuant to which such options were issued. All outstanding shares
of capital stock of the Company have been validly issued and are fully paid and
nonassessable, and no shares of capital stock of the Company are subject to, nor
have any been issued in violation of, any preemptive or similar rights.
(b) Except as set forth above in paragraph (a) of this Section 4.2, as
contemplated by this Agreement and as set forth on Schedule 4.2 hereof, there
------------
are outstanding (i) no shares of capital stock or other voting securities of the
Company; (ii) no securities of the Company convertible into or exchangeable for
shares of capital stock or other voting securities of the Company; (iii) no
subscriptions, options, warrants, calls, commitments, preemptive rights or other
rights of any kind to acquire from the Company, and no obligation of the Company
to issue or sell, any shares of capital stock or other voting securities of the
Company or any securities of
16
the Company convertible into or exchangeable for such capital stock or voting
securities; and (iv) no equity equivalents, stock appreciation rights, interests
in the ownership or earnings or other similar rights of or with respect to the
Company. Except as set forth on Schedule 4.2, there are no outstanding
------------
contractual obligations of the Company to repurchase, redeem or otherwise
acquire any shares of Common Stock or any other securities of the type described
in clauses (i)-(iv) of the preceding sentence. Except as set forth on Schedule
--------
4.2, there are no restrictions upon the voting or transfer of any share of the
---
capital stock or other voting securities of the Company pursuant to the
Certificate of Incorporation, the Existing Preferred Stock Certificates of
Designations, the Bylaws or other governing documents or any agreement or other
instrument to which the Company is a party or by which the Company is bound
other than restricted stock held by certain employees. Schedule 4.2 contains a
------------
true and correct list of all persons holding restricted stock (as defined under
any plan or arrangement pursuant to which it was issued), the number of shares
of restricted stock held by such persons and the document or documents which
describe such restrictions.
Section 4.3. Authorization of Issuance. Upon consummation of the
-------------------------
transactions contemplated hereby, the Preferred Stock acquired by the Purchaser
from the Company will be duly authorized and validly issued, fully paid and not
subject to any preemptive or similar rights. Upon consummation of the
transactions contemplated hereunder, the Conversion Shares will be duly
authorized and reserved for issuance and upon conversion in accordance with the
terms of the Preferred Stock will be validly issued, fully paid and
nonassessable and not subject to any preemptive or similar rights. Upon the
First Closing, the Warrant Shares will be duly authorized and reserved for
issuance and, upon exercise of the Warrants in accordance with the terms
thereof, will be validly issued, fully paid and nonassessable and not subject to
any preemptive or similar rights.
Section 4.4. Authorization. The Company has full corporate power
-------------
and authority to execute and deliver this Agreement and the Ancillary Agreements
to which it is a party and to consummate the transactions contemplated hereby
and thereby other than the Stockholder Approval. The execution and delivery by
the Company of this Agreement has been duly authorized by all necessary
corporate action of the Company. The execution and delivery by the Company of
the Ancillary Agreements to which it is a party, and the consummation by it of
the transactions contemplated hereby and thereby, have been duly authorized by
all necessary corporate action of the Company (other than the Stockholder
Approval). This Agreement has been duly executed and delivered by the Company
and constitutes, and each Ancillary Agreement executed or to be executed by the
Company has been, or when executed will be, duly executed and delivered by the
Company and constitutes, or when executed and delivered will constitute, a valid
and legally binding obligation of the Company, enforceable against the Company
in accordance with its terms.
Section 4.5. Noncontravention. Except as set forth on Schedule 4.5,
---------------- ------------
the execution and delivery by the Company of this Agreement and the Ancillary
Agreements and the performance by it of the transactions contemplated hereby and
thereby (including the conversion/exercise of all of the Securities acquired or
to be acquired by the Purchaser
17
hereunder) do not and will not (i) conflict with or result in a violation of any
provision of the Certificate of Incorporation or the Bylaws, or the charter,
bylaws, or other governing instruments of any of its Subsidiaries, (ii) conflict
with or result in a violation of any provision of, or constitute (with or
without the giving of notice or the passage of time or both) a default under, or
give rise (with or without the giving of notice or the passage of time or both)
to any loss of a benefit which would have a Material Adverse Effect, or of any
event of default, right of termination, cancellation, or acceleration under, any
Material Agreement including, without limitation, the Indenture, (iii) result in
the creation or imposition of any Encumbrance (other than a Permitted
Encumbrance) upon the properties of the Company or any of its Subsidiaries, or
(iv) violate any Applicable Law binding upon the Company or any of its
Subsidiaries. Schedule 4.5 sets forth, in reasonable detail, the calculations of
------------
the Company demonstrating that the Company is currently in compliance with the
Indenture and that the transactions contemplated hereby do not and will not
result in an event of default under or breach of the terms of the Indenture, or
give rise to a "Change of Control Offer" as defined in the Indenture.
Section 4.6. Consents and Approvals. No consent, approval, order,
----------------------
authorization of, or declaration, filing, or registration with, any Governmental
Entity is required to be obtained or made by the Company or any of its
Subsidiaries in connection with the execution and delivery by the Company of
this Agreement and the Ancillary Agreements to which it is a party or the
consummation of the transactions contemplated hereby and thereby, other than (i)
filings under the HSR Act and expiration or termination of any applicable
waiting period required thereunder, (ii) the filing of the Certificate
Amendments with the Secretary of State of the State of Delaware, and (iii)
filings under the Exchange Act. Except as set forth on Schedule 4.6, no
------------
consent or approval of any person other than any Governmental Entity or The
Nasdaq Stock Market, Inc. is required to be obtained or made by the Company or
any of its Subsidiaries in connection with the execution and delivery by the
Company of this Agreement and the Ancillary Agreements to which it is a party or
the consummation of the transactions contemplated hereby and thereby.
Section 4.7. Subsidiaries.
------------
(a) Except as otherwise set forth on Schedule 4.7, the Company does
------------
not own, directly or indirectly, any of the capital stock or other securities of
any corporation or partnership or have any direct or indirect equity or
ownership interest of more than five percent in any other person, other than its
Subsidiaries. Schedule 4.7 lists each such Subsidiary of the Company as of the
------------
date hereof and its respective jurisdiction of incorporation or formation. As
set forth on Schedule 4.7, each Subsidiary of the Company is a corporation,
------------
partnership 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 incorporation or formation. Each such Subsidiary has all
requisite organizational authority to own, lease, and operate its properties and
to carry on its business as now being conducted. Except as otherwise indicated
on Schedule 4.7, no actions or proceedings to dissolve any Subsidiary of the
------------
Company are pending.
18
(b) Except as otherwise indicated on Schedule 4.7 or under the
------------
Securities Act or the rules and regulations promulgated thereunder, all the
outstanding capital stock or other equity interests of each Subsidiary of the
Company is owned directly or indirectly by the Company, free and clear of all
Encumbrances and restrictions on voting, sale, transfer or disposition. All
outstanding shares of capital stock of each Subsidiary of the Company have been
validly issued and are fully paid and nonassessable. No shares of capital stock
or other equity interests of any Subsidiary of the Company are subject to, nor
have any been issued in violation of, preemptive or similar rights.
(c) Except for shares of Common Stock owned by the Company or any
Subsidiary of the Company and as set forth above on Schedule 4.7, there are
------------
outstanding (i) no shares of capital stock or other voting securities of any
Subsidiary of the Company; (ii) no securities of any Subsidiary of the Company
convertible into or exchangeable for shares of capital stock or other voting
securities of any of any Subsidiary of the Company; (iii) no subscriptions,
options, warrants, calls, commitments, preemptive rights or other rights of any
kind to acquire from any Subsidiary of the Company, and no obligation of any
Subsidiary of the Company to issue or sell, any shares of capital stock or other
voting securities of any Subsidiary of the Company or any securities of any
Subsidiary of the Company convertible into or exchangeable for such capital
stock or voting securities; and (iv) no equity equivalents, stock appreciation
rights, interests in the ownership or earnings, or other similar rights of or
with respect to any Subsidiary of the Company. There are no outstanding
contractual obligations of any Subsidiary of the Company to repurchase, redeem
or otherwise acquire any shares of capital stock or any other securities of the
type described in clauses (i)-(iv) of the preceding sentence.
Section 4.8. Employee Benefit Plans and Other Agreements.
-------------------------------------------
(a) Disclosure; Delivery of Copies of Relevant Documents and Other
--------------------------------------------------------------
Information. Schedule 4.8 contains a complete list of Employee Plans which
----------- ------------
cover or have covered present or former employees, directors or consultants of
the Company or any of its Subsidiaries (with respect to their relationship with
such entities) (each, a "Company Employee Plan"). True and complete copies of
---------------------
each of the following Company Employee Plan documents have been delivered or
made available by the Company to the Purchaser: (i) each Company Employee Plan
document (and, if applicable, related trust agreements and all annuity contracts
or other funding instruments) and all amendments thereto, all reasonably
available written descriptions thereof which have been distributed to the
Company's employees and those of its ERISA Affiliates and a complete description
of any Company Employee Plan, which is not in writing (including a description
of the number and level of employees covered thereby), (ii) the most recent
determination or opinion letter issued by the Internal Revenue Service with
respect to each Pension Plan and each Welfare Plan (other than a Multiemployer
Plan), which covers or has covered employees of the Company or any of its ERISA
Affiliates (with respect to their relationship with such entities), (iii) for
the three most recent plan years, any Annual Reports on Form 5500 Series
required to be filed with any governmental agency for each Pension Plan which
covers or has covered employees or former employees of the Company or any of its
ERISA Affiliates (with respect to their relationship with such entities) (each,
a "Company
19
Pension Plan"), (iv) any actuarial reports prepared for the last three plan
------------
years for each Pension Plan which covers or has covered present or former
employees, directors or consultants of the Company or any of its Subsidiaries
(with respect to their relationship with such entities), (v) a tabulation of
age, salary, service and related data as of the last day of the last plan year
for employees of the Company or any of its Subsidiaries and (vi) a description
setting forth the amount of any liability of the Company or any of its
Subsidiaries as of the Closing Date for payments more than thirty (30) calendar
days past due with respect to each Welfare Plan which covers or has covered
employees or former employees of the Company or any of its Subsidiaries.
(b) Employee Plans.
--------------
(i) Pension Plans.
-------------
(A) The funding method used in connection with any
Pension Plan which is subject to the minimum funding requirements of ERISA is
acceptable and the actuarial assumptions used in connection with funding each
such plan are reasonable. As of the last day of the last plan year of each
Pension Plan and as of the Closing Date, the "amount of unfunded benefit
liabilities" as defined in Section 4001(a)(18) of ERISA (but excluding from the
definition of "current value" of "assets" of such Pension Plan, accrued but
unpaid contributions) did not and will not exceed zero. No "accumulated funding
deficiency" (for which an excise tax is due or would be due in the absence of a
waiver) as defined in Section 412 of the Code or as defined in Section 302(a)(2)
of ERISA, whichever may apply, has been incurred with respect to any Pension
Plan with respect to any plan year, whether or not waived. Neither the Company
nor any ERISA Affiliate has failed to pay when due any "required installment",
within the meaning of Section 412(m) of the Code and Section 302(e) of ERISA,
whichever may apply, with respect to any Pension Plan. Neither the Company nor
any ERISA Affiliate is subject to any lien imposed under Section 412(n) of the
Code or Section 302(f) of ERISA, whichever may apply, with respect to any
Pension Plan. Neither the Company nor any ERISA Affiliate has any liability for
unpaid contributions with respect to any Pension Plan.
(B) Neither the Company nor any ERISA Affiliate is
required to provide security to any Company Pension Plan under Section
401(a)(29) of the Code.
(C) Any Company Pension Plan and each related trust
agreement, annuity contract or other funding instrument is qualified and tax-
exempt under the provisions of Code Sections 401(a) (or 403(a), as appropriate)
and 501(a) and has been so qualified during the period from its adoption to
date.
(D) Any Company Pension Plan and each related trust
agreement, annuity contract or other funding instrument presently complies and
has been maintained in compliance, in all material respects, with its terms and,
both as to form and in operation, with the requirements prescribed by any and
all statutes, orders, rules and regulations which are applicable to such plans,
including without limitation ERISA and the Code.
20
(E) The Company has paid all premiums (and interest
charges and penalties for late payment, if applicable) due the PBGC with respect
to each Company Pension Plan for each plan year thereof for which such premiums
are required. Neither the Company nor any ERISA Affiliate has engaged in, or is
a successor or parent corporation to an entity that has engaged in, a
transaction described in Section 4069 of ERISA. There has been no "reportable
event" (as defined in Section 4043(b) of ERISA and the PBGC regulations under
such Section) with respect to any Pension Plan. No filing has been made by the
Company or any ERISA Affiliate with the PBGC, and no proceeding has been
commenced by the PBGC, to terminate any Pension Plan. No condition exists and no
event has occurred that could constitute grounds for the termination of any
Pension Plan by the PBGC. Neither the Company nor any ERISA Affiliate has, at
any time, (1) ceased operations at a facility so as to become subject to the
provisions of Section 4062(e) of ERISA, (2) withdrawn as a substantial employer
so as to become subject to the provisions of Section 4063 of ERISA, or (3)
ceased making contributions on or before the Closing Date to any Pension Plan
subject to Section 4064(a) of ERISA to which the Company or any ERISA Affiliate
made contributions during the six years prior to the Closing Date.
(ii) Multiemployer Plans.
-------------------
(A) Neither the Company nor any ERISA Affiliate has, at
any time, withdrawn from a Multiemployer Plan in a "complete withdrawal" or a
"partial withdrawal" as defined in Sections 4203 and 4205 of ERISA,
respectively, so as to result in a liability, contingent or otherwise (including
without limitation the obligations pursuant to an agreement entered into in
accordance with Section 4204 of ERISA), of the Company or any ERISA Affiliate.
Neither the Company nor any ERISA Affiliate has engaged in, or is a successor or
parent corporation to an entity that has engaged in, a transaction described in
Section 4212(c) of ERISA.
(B) All contributions required to be made by the Company
or any ERISA Affiliate to any Multiemployer Plan have been made when due.
(C) If, as of the Closing Date, the Company (and all
ERISA Affiliates) were to withdraw from any Multiemployer Plans to which it (or
any of them) has contributed or been obligated to contribute, it (and they)
would incur no liabilities to such plans under Title IV of ERISA.
(D) To the best of the Company's knowledge, with respect
to any Multiemployer Plan: (1) no such Multiemployer Plan has been terminated or
has been in reorganization under ERISA so as to result, directly or indirectly,
in any liability, contingent or otherwise, of the Company or any ERISA Affiliate
under Title IV of ERISA; (2) no proceeding has been initiated by any person
(including the PBGC) to terminate such Multiemployer Plan; (3) a "mass
withdrawal", as defined in PBGC Reg. Section 2640.7, with respect to such
Multiemployer Plan has not occurred; (4) the Company and the ERISA Affiliates
have no reason to believe that such Multiemployer Plan will be terminated or
will be reorganized under ERISA or that a "mass withdrawal", as defined in PBGC
Reg. Section 2640.7, will occur
21
with respect to such Multiemployer Plan; and (5) the Company and the ERISA
Affiliates do not expect to withdraw in a "complete withdrawal" or "partial
withdrawal" from such Multiemployer Plan.
iii) Welfare Plans
-------------
(A) Each Welfare Plan presently complies and has been
maintained in compliance, in all material respects, with its terms and, both as
to form and operation, with the requirements prescribed by any and all statutes,
orders, rules and regulations which are applicable to such Welfare Plan,
including without limitation ERISA and the Code.
(B) None of the Company, any ERISA Affiliate or any
Welfare Plan has any present or future obligation to make any payment to, or
with respect to any present or former employee of the Company or any ERISA
Affiliate pursuant to, any retiree medical benefit plan, or other retiree
Welfare Plan, and no condition exists which would prevent the Company from
amending or terminating any such benefit plan or Welfare Plan.
(C) Each Welfare Plan which is a "group health plan," as
defined in Section 607(1) of ERISA, has been operated in material compliance
with provisions of Part 6 of Title I, Subtitle B of ERISA and 4980B of the Code
at all times.
(D) Neither the Company nor any ERISA Affiliate has
incurred any liability with respect to any Welfare Plan that is a "multiemployer
plan", as defined in Section 3(37) of ERISA, under the terms of such Welfare
Plan, any collective bargaining agreement or otherwise resulting from any
cessation of contributions, cessation of obligation to make contributions or
other form of withdrawal from such Welfare Plan.
(E) If, as of the Closing Date, the Company (and all
ERISA Affiliates) were to have a cessation of contribution, cessation of
obligations to make contribution or other form of withdrawal from all Welfare
Plans that are "multiemployer plans", as defined in Section 3(37) of ERISA, it
(and they) would incur no material liabilities with respect to any such Welfare
Plans under the terms of such Welfare Plans, any collective bargaining agreement
or otherwise.
(iv) Benefit Arrangements. Each Benefit Arrangement has
--------------------
been maintained in all material respects in compliance with its terms and with
the requirements prescribed by any and all statutes, orders, rules and
regulations which are applicable to such Benefit Arrangement, including without
limitation, the Code. Except as set forth in Schedule 4.8 and except as provided
------------
by law, the employment of all persons presently employed or retained by the
Company is terminable at will.
(v) Unrelated Business Taxable Income. No Employee Plan
---------------------------------
(or trust or other funding vehicle pursuant thereto) is subject to any tax under
Code Section 511.
22
(vi) Deductibility of Payments. There is no contract,
-------------------------
agreement, plan or arrangement covering any present or former employee, director
or consultant of the Company or any of its Subsidiaries (with respect to his or
her relationship with such entities) that, individually or collectively,
provides for the payment by the Company of any amount (i) that is not deductible
under Section 162(a)(1), 162(m) or 404 of the Code or (ii) that is an "excess
parachute payment" pursuant to Section 280G of the Code.
(vii) Fiduciary Duties and Prohibited Transactions. Neither
--------------------------------------------
the Company nor any plan fiduciary of any Welfare Plan or Pension Plan, has
engaged in any transaction in violation of Sections 404 or 406 of ERISA or any
"prohibited transaction," as defined in Section 4975(c)(1) of the Code, for
which no exemption exists under Section 408 of ERISA or Section 4975(c)(2) or
(d) of the Code, or has otherwise violated the provisions of Part 4 of Title I,
Subtitle B of ERISA. The Company has not knowingly participated in a violation
of Part 4 of Title I, Subtitle B of ERISA by any plan fiduciary of any Welfare
Plan or Pension Plan and has not been assessed any civil penalty under Section
502(l) of ERISA.
(viii) Validity and Enforceability. Each Welfare Plan,
---------------------------
Pension Plan, related trust agreement, annuity contract or other funding
instrument is legally valid and binding and in full force and effect.
(ix) Litigation. There is no action, order, writ,
----------
injunction, judgment or decree outstanding or claim, suit, litigation,
proceeding, arbitral action, governmental audit or investigation relating to or
seeking benefits under any Employee Plan that is pending, threatened or
anticipated against the Company, any ERISA Affiliate or any Employee Plan.
(x) No Amendments. Neither the Company nor any ERISA
-------------
Affiliate has any announced plan or legally binding commitment to create any
additional Employee Plans which are intended to cover present or former
employees, directors or consultants of the Company or any of its Subsidiaries
(with respect to their relationship with such entities) or to amend or modify
any existing Company Employee Plan.
(xi) No Other Material Liability. No event has occurred in
---------------------------
connection with which the Company or any ERISA Affiliate or any Employee Plan,
directly or indirectly, could be subject to any material liability (A) under any
statute, regulation or governmental order relating to any Employee Plan or (B)
pursuant to any obligation of the Company to indemnify any person against
liability incurred under any such statute, regulation or order as they relate to
the Employee Plans.
(xii) Unpaid Contributions. Neither the Company nor any
--------------------
ERISA Affiliate has any liability for unpaid contributions under Section 515 of
ERISA with respect to any Pension Plan, Multiemployer Plan or Welfare Plan.
(xiii) Insurance Contracts. Neither the Company nor any
-------------------
Employee Plan (other than a Multiemployer Plan) holds as an asset of any
Employee Plan any
23
interest in any annuity contract, guaranteed investment contract or any other
investment or insurance contract issued by an insurance company that is the
subject of bankruptcy, conservatorship or rehabilitation proceedings.
(xiv) No Acceleration or Creation of Rights. Except as
-------------------------------------
disclosed on Schedule 4.8, neither the execution and delivery of this Agreement
------------
by the Company nor the consummation of the transactions contemplated hereby
(including the conversion/exercise of all of the Securities acquired or to be
acquired by the Purchaser hereunder) will result in the acceleration or creation
of any rights of any person to benefits under any Employee Plan (including,
without limitation, the acceleration of the vesting or exercisability of any
stock options, the acceleration of the vesting of any restricted stock, the
acceleration of the accrual or vesting of any benefits under any Pension Plan or
the acceleration or creation of any rights under any severance, parachute or
change in control agreement).
(xv) No Severance Payments. There are no agreements,
---------------------
including, without limitation, any employment or consulting agreements to which
the Company or any of its Subsidiaries is a party that will require the Company
or any of its Subsidiaries to make a severance payment or incur or assume any
other liability as a result of the transactions contemplated by this Agreement
and the Ancillary Agreements, including, without limitation, any obligation to
make any payments upon the occurrence of a change of control.
Section 4.9. SEC Filings. The Company has filed with the
-----------
Commission all forms, reports, schedules, statements, and other documents
required to be filed by it under the Securities Act, the Exchange Act, and all
other Federal securities laws and the rules and regulations promulgated
thereunder, during the period from June 1996 to the date of this Agreement (the
"SEC Filings"). A final draft of the Company's 10Q for the quarter ended
-----------
June 30, 1997 is annexed to Schedule 4.9 (the "June 10Q"). Each SEC Filing
------------ --------
and the June 10Q was prepared in accordance with, and at the time of filing
complied (or will comply) in all material respects with, the requirements of the
Securities Act, the Exchange Act or other applicable Federal securities law and
the rules and regulations promulgated thereunder, as the case may be, except as
the same was corrected or superseded in a subsequent SEC Filing filed with the
Commission. Neither the SEC Filings nor the June 10Q, including, without
limitation, any financial statements or schedules included therein, at the time
filed, contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading, except as the same was corrected or superseded in a
subsequent SEC Filing filed with the Commission. The consolidated historical
financial statements (including, in each case, any related notes thereto)
contained in the SEC Filings and the June 10Q have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a consistent
basis (except as described therein) and each presents fairly the consolidated
financial position of the Company and its consolidated Subsidiaries at the
respective dates thereof and the consolidated results of its operations and
changes in cash flows for the period indicated (subject to normal year-end audit
adjustments in the case of any unaudited interim financial statements).
24
Section 4.10. Absence of Undisclosed Liabilities; Guarantees. Except
----------------------------------------------
as set forth on Schedule 4.10, neither the Company nor any of its Subsidiaries
-------------
has any Liabilities which are reasonably expected to have, individually or in
the aggregate, a Material Adverse Effect on the Company (including any
liabilities, tax or otherwise, related to the "roll-up" of the homebuilding
operations into the Company).
(b) Except as set forth on Schedule 4.10, neither the Company nor
-------------
any of its Subsidiaries is a party to: (i) any Material Agreement relating to
the making of any advance to, or investment in, any Person other than advances
or investments made by the Company to or in its Subsidiaries; or (ii) any
Material Agreement, other than from the Company with respect to its Subsidiaries
providing for a guaranty or other contingent liability with respect to any
indebtedness for money borrowed or similar obligation of any Person.
Section 4.11. Absence of Certain Changes. Except as set forth on
--------------------------
Schedule 4.11 or disclosed in any SEC Filings or the June 10-Q, since December
-------------
31, 1996: (i) there has not been any event or occurrences, or series of events
or occurrences, which have had, or may have, a Material Adverse Effect on the
Company, (ii) neither the Company nor any of its Subsidiaries has incurred any
liability or engaged in any transaction that is material to the Company and its
Subsidiaries taken as a whole, or entered into any Material Agreement, except in
the ordinary course of business consistent with past practice, or as
contemplated by this Agreement, (iii) neither the Company nor any of its
Subsidiaries is in default under (and no event has occurred which with the lapse
of time or action by a third party could result in a default under) any Material
Agreement, (iv) there has not been any declaration, setting aside or payment of
any dividend or other distribution with respect to the Preferred Stock or the
Existing Preferred Stock, (v) there has not been any commitment, contractual
obligation, borrowing, capital expenditure or transaction (each, a "Commitment")
----------
entered into by the Company or any of its Subsidiaries, other than Commitments
which would not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect on the Company, or (vi) there has not been
any change in the Company's accounting principles, practices or methods which
would, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect on the Company.
Section 4.12. Compliance With Laws. Except as set forth on Schedule
-------------------- --------
4.12, (i) the Company and its Subsidiaries are in compliance with all
----
Applicable Laws other than violations which do not and will not, individually or
in the aggregate, have a Material Adverse Effect on the Company; (ii) each of
the Company and its Subsidiaries has obtained and holds all material permits,
licenses, variances, exemptions, orders, franchises, approvals and
authorizations of all Governmental Entities necessary for the lawful conduct of
its business as currently conducted or the lawful ownership, use and operation
of its assets; (iii) neither the Company nor any of its Subsidiaries has
received any written notice of violation of any Applicable Law, which has not
been dismissed or otherwise disposed of, that the Company or such Subsidiary has
not so complied other than with respect to violations of Applicable Law which do
not and will not, individually or in the aggregate, have a Material Adverse
Effect on the Company; and (iv) neither the Company nor any of its Subsidiaries
is charged or, to the best knowledge of the Company, threatened with, or, to the
best knowledge of the Company, under
25
investigation with respect to, any violation of any Applicable Law, including
Environmental Laws, relating to any aspect of the business of the Company or any
of its Subsidiaries other than violations which do not and will not,
individually or in the aggregate, have a Material Adverse Effect on the Company.
Section 4.13. Litigation. Schedule 4.13 sets forth all Proceedings
---------- -------------
pending or, to the best knowledge of the Company, threatened against or
involving the Company or any of its Subsidiaries (or any of their respective
directors or officers in connection with the business or affairs of the Company
or such Subsidiary) or any properties or rights of the Company or any of its
Subsidiaries as of the date hereof. Except as set forth on Schedule 4.13, any
-------------
and all liabilities of the Company and its Subsidiaries under such Proceedings
that are probable and subject to reasonable estimation within the meaning of
GAAP are adequately covered (except for standard deductible amounts) by the
existing insurance maintained by the Company or estimates in accordance with
GAAP for the uninsured costs thereof are reflected in the financial statements
of the Company. Except as set forth on Schedule 4.13, the Company has no
-------------
knowledge of any facts that are likely to give rise to any additional
Proceedings that would reasonably be expected to have a Material Adverse Effect
on the Company. As of the date hereof, there are no Proceedings (including with
respect to Environmental Laws) pending or, to the best knowledge of the Company,
threatened seeking to restrain, prohibit, or obtain damages or other relief in
connection with this Agreement, the Ancillary Agreements to which the Company is
a party or the transactions contemplated hereby or thereby.
Section 4.14. True and Complete Disclosure. The representations
----------------------------
and warranties of the Company set forth with this Agreement, the information
included in the Schedules, and in any certificates delivered pursuant to Section
7.3 of this Agreement, when taken together, are true and accurate in all
material respects on the date as of which such information is dated and not
incomplete by omitting to state any material fact necessary to make the
statements of fact contained therein, in the light of the circumstances under
which they were made, not misleading at such date. All financial projections
prepared and furnished by the Company to the Purchaser were prepared in good
faith on the basis of assumptions believed to be reasonable at the time such
projections were prepared.
Section 4.15. Taxes. (a) Except as set forth on Schedule 4.15:
----- -------------
(i) The Company and all of its Subsidiaries have
filed all Tax Returns required to be filed by them on or before the Closing Date
(taking into account all extensions for filing such Tax Returns) and all such
Tax Returns are correct and complete in all material respects. Each affiliated
group with which any of the Company and its Subsidiaries files a consolidated or
combined Tax Return has filed all such Tax Returns that it was required to file
for each taxable period during which any of the Company and its Subsidiaries was
a member of the group. All such consolidated and combined Tax Returns were
correct and complete in all materials respects;
(ii) All Taxes due and payable by the Company and/or
its Subsidiaries (whether or not shown on any Tax Return) have been timely paid
in full. All
26
income Taxes owed by any affiliated group with which any of the Company and its
Subsidiaries files a consolidated or combined Tax Return (whether or not shown
on any Tax Return) have been paid for each taxable period during which any of
the Company and its Subsidiaries was a member of the group;
(iii) There are no liens or encumbrances related to
Taxes on any of the assets of the Company or its Subsidiaries (other than for
current Taxes not yet due and payable);
(iv) The Company and its Subsidiaries have withheld
all Taxes required to have been withheld and paid by them or on their behalf in
connection with amounts paid or owing to any employee, independent contractor,
creditor, stockholder, or other third party, and such withheld Taxes have either
been duly paid to the proper governmental authority or set aside in accounts for
such purpose;
(v) None of the Company or any of its Subsidiaries
(A) has been a member of any affiliated group filing a consolidated federal
income Tax Return (other than (i) a group the common parent of which is the
Company or (ii) a former group of members of which are owned by the Company) and
(B) has any liability for the Taxes of any person as defined in Section
7701(a)(1) of the Code (other than the Company and its Subsidiaries) under
Treas. Reg. (S) 1.1502-6 (or any similar provision of state, local, or foreign
tax), as a transferee or successor, by contract, or otherwise;
(vi) The charges, accruals and reserves for Taxes
(including deferred Taxes) currently reflected on the Financial Statements in
accordance with GAAP are adequate in the reasonable estimation of the Company to
cover all unpaid Taxes accruing or payable by the Company and its Subsidiaries
in respect of taxable periods that end on or before the Closing Date and for any
taxable periods that begin before the Closing Date and end thereafter to the
extent such Taxes are attributable to the portion of such period ending on the
Closing Date (determined under the closing of the books method of allocation);
(vii) The Company and its Subsidiaries have no Tax
deficiency or claim assessed or, to the best of the Company's knowledge,
proposed or threatened (whether orally or in writing) against any of them,
except to the extent that adequate liabilities or reserves with respect thereto
are accrued on the Financial Statements in accordance with GAAP or (i) such
deficiency or claim is being contested in good faith by appropriate proceedings,
(ii) no such accrual is required by GAAP and (iii) the nature and amount of the
disputed Tax is set forth on Schedule 4.15.
-------------
(viii) None of the Company or any of its Subsidiaries
has made any payments, nor is any of them obligated to make any payments, and is
not a party to any agreements that could obligate it to make any payments, that
will not be deductible under Code Section 280G.
27
(ix) None of the assets of the Company (a) is
property that is required to be treated as being owned by any other person
pursuant to the so-called safe harbor lease provisions of former Section
168(f)(8) of the Code, or (b) directly or indirectly secures any debt the
interest on which is tax-exempt under Section 103(a) of the Code, or (c) is
"tax-exempt use property" within the meaning of Section 168(h) of the Code.
(x) Except as set forth on Schedule 4.7, none of
------------
the Company or any of its Subsidiaries is subject to any joint venture,
partnership or other arrangement or contract which is treated as a partnership
for federal income tax purposes.
(b) Schedule 4.15 lists (a) elections or material consents with
-------------
respect to Taxes affecting the Company or any of its Subsidiaries as of the date
hereof, and (b) all federal, state, local, and foreign Tax Returns that have
been audited, and indicates those Tax Returns that currently are the subject of
audit. Correct and complete copies of all federal Tax Returns, examination
reports, and statements of deficiencies assessed against or agreed to by the
Company or any of its Subsidiaries since January 1, 1994 have been delivered to
Purchaser.
Section 4.16. Properties.
----------
(a) Permits. The Company possesses all material Permits and waivers
-------
necessary for the lawful conduct of its Business as currently conducted, the
absence of which would materially adversely affect the Real Property or the
Business of the Company. Each of the material Permits is listed on Schedule
--------
4.16(a) hereto. All material Permits are in full force and effect, no material
-------
violations have occurred with respect thereto, and to the Company's knowledge no
basis exists for any limitation, revocation, or withdrawal thereof or any denial
of any extension or renewal with respect thereto.
(b) Real Property. Schedule 4.16(b) hereto sets forth each parcel of
------------- ----------------
real property that the Company owns as of the date hereof (collectively, the
"Real Property"). The Real Property has all necessary access to and from public
--------------
highways, streets, and roads and no pending or to the best knowledge of the
Company, threatened proceeding or other fact or condition exists that could
limit or result in the termination of such access. The Real Property is
connected to and serviced by electric, gas, sewage, telephone, and water
facilities in all areas where such connections and services are available, which
facilities are in compliance, in all material respects, with all Applicable Laws
and installation and connection charges with respect thereto have been paid in
full.
(c) Under the heading "Real Property Leases", Schedule 4.16(c) hereto
----------------
describes each agreement, arrangement, contract, commitment, or lease (the "Real
----
Property Leases") pursuant to which the Company is the lessor or the lessee with
---------------
respect to any real property (the "Leased Real Property") as of the date hereof.
--------------------
As to each Real Property Lease (a) the Company has neither delivered nor
received notice that any material breach or material event of default exists,
and (b) no condition or event of default by the Company or any other Person.
28
(d) Land Contracts. Under the heading "Land Contracts", Schedule
-------------- --------
4.16(d) hereto lists all written and oral agreements, arrangements, contracts,
-------
and commitments to which the Company is a party or entered into on behalf
thereof pursuant to which the Company has any material obligation or right to
purchase any developed or undeveloped real property (the "Land Contract
-------------
Property") as of the date hereof. Each such parcel of developed real property
--------
included in the Land Contract Property satisfies all of the representations and
----------------------
warranties set forth herein concerning the Real Property.
(e) Good and Marketable Title. The Company has good and marketable
-------------------------
title in fee simple to its Real Property, subject to the Permitted Encumbrances
and upon acquisition of the Land Contract Property, the Land Contract Property
will likewise be owned in fee and the Company shall have good and marketable
title thereto subject only to Permitted Encumbrances and the Encumbrances listed
on Schedule 4.16(e).
-------------
(f) No Breach or Default. Except as set forth in Schedule 4.16(f)
-------------------- ----------------
hereto, with respect to any agreements, arrangements, contracts, covenants,
conditions, deeds, deeds of trust, rights-of-way, easements, mortgages,
restrictions, surveys, title insurance policies, and other documents granting to
the Company title to or an interest in or otherwise affecting its Real Property,
no material breach or event of default has occurred nor has any event occurred
that with the giving of notice, the lapse of time, or both would constitute a
material breach or event of default, by the Company or, to the best knowledge of
the Company, any other Person.
(g) No Condemnation. No condemnation, eminent domain, or similar
---------------
proceeding exists, is pending or, to the best knowledge of the Company is
threatened with respect to, or that could affect, in any material respect any
Real Property or Leased Real Property.
(h) Compliance with Laws. The buildings and improvements on the Real
--------------------
Property and the Leased Real Property and the subdivision and improvements of
the Real Property do not violate, in any material respect (i) any Applicable
Law, including any building, set-back, or zoning law, ordinance, regulation, or
statute, or other governmental restriction in the nature thereof, or (ii) any
restrictive covenant affecting any such property.
(i) Parties in Possession. There are no parties in possession
---------------------
(other than in the ordinary course of the Company's business) of any material
portion of the Real Property as lessees, tenants at sufferance, or trespassers.
(j) Unpaid Obligations. Except as set forth on Schedule 4.16(j),
------------------ ----------------
there are not material unpaid charges, debts, liabilities, claims or obligations
arising from the construction, occupancy, ownership, use, or operation of the
Real Property. No such Real Property is subject to any condition or obligation
to any material Governmental Entity or other person requiring the owner or any
transferee thereof to donate land, money or other property or to make off-site
public improvements.
29
(k) Assessments. Except as set forth on Schedule 4.16(k), no
----------- ----------------
developer-related material charges or assessments for public improvements or
otherwise made against the Real Property or any lots included therein are
unpaid, including without limitation those for construction of sewer lines,
water lines, storm drainage systems, electric lines, natural gas lines, streets
(including perimeter streets), roads and curbs.
(l) Subdivision Standards. The Real Property and all lots included
---------------------
therein conform in all material respects to the appropriate governmental
authority's subdivision standards.
(m) Moratoria. There is no moratorium applicable to any of the Real
---------
Property on (i) the issuance of building permits for the construction of houses,
or certificates of occupancy therefor or (ii) the purchase of sewer or water
taps.
(n) Construction Conditions. The lots included in the Real Property
-----------------------
are stable and otherwise suitable in all material respects for the construction
of a residential structure by customary means and without extraordinary site
preparation measures.
(o) Environmental Matters. The Real Property does not contain
---------------------
wetlands or a level of radon above action levels of the U.S. Environmental
Protection Agency and is not located within a "critical", "preservation",
"conservation", or similar type of area except where such conditions are not
reasonably expected to have a Material Adverse Effect on the Company. No
material portion of the Real Property is situated within a "noise cone" such
that the Federal Housing Administration will not approve mortgages due to the
noise level classification of such Real Property.
(p) Claims. No material Proceeding is pending or, to the best
------
knowledge of the Company, threatened which involves any of the Real Property or
against the Company with respect to any of the Real Property; all of the Real
Property and the lots included therein are in compliance, in all material
respects, with all applicable zoning and subdivision ordinances; none of the
development-site preparation and construction work performed on the Real
Property has concentrated or diverted surface water or percolating water
improperly onto or from the Real Property in any material respect.
(q) Third Party Rights. The Company has not granted to any Person any
------------------
contract or other right to the use of any portion of the Real Property or to the
furnishing or use of any facility or amenity on or relating to the Real Property
other than rights granted to individual homebuyers to purchase lots in the
ordinary course of business.
(r) Zoning. All of the Real Property is zoned to permit single-family
------
home construction and occupancy thereon, except as set forth on Schedule
--------
4.16(s).
(s) No Foreign Sellers. The Company is not a "foreign person"
------------------
within the meaning of Sections 1445 and 7701 of the Code.
30
Section 4.17. Environmental Matters.
---------------------
(a) For purposes of this Section, the term "Company" shall include
-------
(i) the Company, (ii) any Subsidiaries of the Company, (iii) all partnerships,
joint ventures and other entities or organizations in which Company was at any
time or is a partner, joint venturer, member or participant, and (iv) all
predecessor or former corporations, partnerships, joint ventures, organizations,
businesses or other entities, whether in existence as of the date hereof or at
any time prior to the date hereof, the assets or obligations of which have been
acquired or assumed by Company or the Business or to which Company or the
Business has succeeded.
(b) Except as disclosed in Schedule 4.17, the Company and its
-------------
Subsidiaries: (i) are, and within the period of all applicable statutes of
limitation have been, in compliance with all applicable Environmental Laws; (ii)
hold all Environmental Permits (each of which is in full force and effect)
required for any of their current operations or for any property owned, leased
or otherwise operated by any of them; (iii) are, and within the period of all
applicable statutes of limitation have been, in compliance with all of their
Environmental Permits; and (iv) reasonably believe that each of their
Environmental Permits will be renewed before the expiration of such
Environmental Permit currently in effect, except where the failure to so comply
with such Environmental Laws, hold or comply with such Environmental Permits or
timely renew such Environmental Permits is not reasonably expected to have a
Material Adverse Effect on the Company. With respect to the Company's
reasonably foreseeable future operations, it does not anticipate any issues
arising under Environmental Laws that would prevent the Company from receiving
Permits that are necessary to allow it to conduct its Business.
(c) Except as set forth on Schedule 4.17, the Company and its
-------------
Subsidiaries have not received any notice of alleged, actual or potential
responsibility for, or any inquiry or investigation regarding, any Environmental
Condition except where such Environmental Condition is not reasonably expected
to have a Material Adverse Effect on the Company. The Company has not received
any notice of any other claim, demand or action by any individual or entity
alleging any actual or threatened injury or damage to any person, property,
natural resource or the environment arising from or relating to any Release or
threatened Release of any Hazardous Materials at, on, under, in or from any
Facility or any former Facilities, or in connection with any operations or
activities of the Company or any of its Subsidiaries except with respect to any
claim, demand or action which is not reasonably expected to have a Material
Adverse Effect on the Company.
(d) Except as disclosed in Schedule 4.17 or with respect to such
-------------
matters as have been fully and finally resolved and as to which there are no
remaining obligations known or reasonably anticipated, neither the Company nor
any of its Subsidiaries has entered into or agreed to any consent decree, order,
or settlement or other agreement, nor is subject to any judgment, decree, or
order or other agreement, in any judicial, administrative, arbitral, or other
forum, relating to compliance with or liability under any Environmental Law,
except where such obligations, consent decrees, orders, settlement or other
agreements is not reasonably expected to have a Material Adverse Effect on the
Company.
31
(e) Except as disclosed in Schedule 4.17 or for actions of third
-------------
parties occurring after the Company's or any of its Subsidiaries disposition of
any real property formerly owned or leased by the Company or any of its
Subsidiaries, Hazardous Materials have not been disposed of, emitted,
discharged, transported or otherwise Released or threatened to be Released, to
or at any real property presently or formerly owned or leased by the Company or
any of its Subsidiaries, or, to the knowledge of the Company, any other
location, which Hazardous Materials are reasonably expected to (i) give rise to
liability of the Company or any of its Subsidiaries under any applicable
Environmental Law, except where such liability is not reasonably expected to
have a Material Adverse Effect on the Company, or (ii) interfere with the
Company's or any of its Subsidiaries' continued operations, except where such
interference is not reasonably expected to have a Material Adverse Effect on the
Company or (iii) impair the fair saleable value of any real property owned or
leased by the Company or any of its Subsidiaries, except for such impairment as
is not reasonably expected to have a Material Adverse Effect on the Company.
(f) Except as disclosed in Schedule 4.17, neither the Company nor
-------------
any of its Subsidiaries has assumed or retained, whether by contract or by
operation of law in connection with the sale or transfer of any assets or
business, liabilities under any applicable Environmental Law arising from or
associated with or otherwise in connection with such assets or business of any
kind, fixed or contingent, known or not known, except where such liabilities are
not reasonably expected to have a Material Adverse Effect on the Company.
(g) True, complete and correct copies of the written reports, and all
parts thereof, of all environmental audits or assessments which have been
conducted in respect of any Facility or any former Facility within the past five
years, either by the Company or any attorney, environmental consultant or
engineer engaged for such purpose, have been delivered to the Purchaser and a
list of all such reports, audits and assessments and any other similar report,
audit or assessment of which the Company has knowledge is included on Schedule
--------
4.17.
----
Section 4.18. Insurance. Schedule 4.18 sets forth a list of the
--------- -------------
insurance policies held by, or for the benefit of, the Company and its
Subsidiaries. Each of the Company and its Subsidiaries carry, and will continue
to carry, insurance with reputable insurers with respect to such of their
respective properties and business, in such amounts and against such risks as is
customarily maintained by other entities of similar size engaged in similar
businesses. None of such insurance was obtained through the use of materially
false or misleading information or the failure to provide the insurer with all
material information requested in order to evaluate the liabilities and risks
insured. Neither the Company nor any of its Subsidiaries has received any notice
of cancellation or non-renewal of any current insurance policies or binders.
Section 4.19. Condition of Tangible Assets. The Facilities of the
----------------------------
Company and its Subsidiaries and the Fixtures and Equipment are in good
operating condition and repair (except for ordinary wear and tear) are
reasonably sufficient for the operation of the business of the Company and its
Subsidiaries as presently conducted and are in conformity, in all material
respects, with all Applicable Laws, ordinances, orders, regulations and other
requirements
32
(including applicable zoning, environmental, motor vehicle safety or standards,
occupational safety and health laws and regulations) relating thereto currently
in effect, except where the failure to conform would not have a Material Adverse
Effect on the Company.
Section 4.20. Contracts and Commitments. Except for documents set
-------------------------
forth on Schedule 4.20 or listed as exhibits to the Company's Annual Report on
-------------
Form 10-K for the fiscal year ended December 31, 1996, neither the Company nor
any of its Subsidiaries is a party to any Material Agreement except for
contracts between the Company or any of its Subsidiaries and individual home
buyers for purchases of homes or lots in the ordinary course of business. Except
as set forth on Schedule 4.20, neither the Company nor any of its Subsidiaries
-------------
is (and, to the knowledge of the Company, no other party is) in material breach
or violation of, or default under any Material Agreement to which it is a party,
the breach or violation of which will or may have a Material Adverse Effect on
the Company.
Section 4.21. Books and Records. The Company has made and kept
-----------------
(and given the Purchaser access to) books and records and accounts, which, in
reasonable detail, accurately and fairly reflect the activities of the Company
and each of its Subsidiaries. The minute books of the Company and each of its
Subsidiaries previously provided to the Purchaser accurately and adequately
reflect all action previously taken by the stockholders, the board of directors
and committees of the board of directors of the Company and each of its
Subsidiaries.
Section 4.22. Labor Matters. Since January 1, 1994, neither the
-------------
Company nor any of its Subsidiaries has experienced any attempt by organized
labor or its representatives to make the Company or such Subsidiary conform to
demands of organized labor relating to its employees or to enter into a binding
agreement with organized labor that would cover the employees of the Company or
any of its Subsidiaries. The Company and its Subsidiaries are in compliance with
all Applicable Laws respecting employment practices, terms and conditions of
employment and wages and hours except where noncompliance would not have a
Material Adverse Effect on the Company and, to the Company's knowledge, are not
engaged in any unfair labor practice. There is no unfair labor practice charge
or complaint against the Company or any of its Subsidiaries pending before the
National Labor Relations Board or any other governmental agency arising out of
the activities of the Company or any of its Subsidiaries, and the Company has no
knowledge of any facts or information which would give rise thereto. There is no
labor strike or labor disturbance pending or, to the Company's knowledge,
threatened against the Company or any of its Subsidiaries. There is no grievance
currently being asserted and neither the Company nor any of its Subsidiaries has
experienced since January 1, 1994, a work stoppage or other labor difficulty
which grievance, work stoppage or other labor difficulty is reasonably likely to
have a Material Adverse Effect on the Company.
Section 4.23. Payments. Neither the Company nor any of its
--------
Subsidiaries has, directly or indirectly, paid or delivered any fee, commission
or other sum of money or item of property, however characterized, to any finder,
agent, government official or other party, in the United States or any other
country, which is in any manner related to the business or operations of the
Company or its Subsidiaries and which the Company knows or has reason to believe
to
33
have been illegal under any federal, state or local laws of the United States
(including, without limitation the U.S. Foreign Corrupt Practices Act) or any
other country having jurisdiction; and neither the Company nor any of its
Subsidiaries has participated, directly or indirectly, in any boycotts or other
similar practices affecting any of its actual or potential customers.
Section 4.24. Information. The information contained in the Proxy
-----------
Material (other than information with respect to the Purchaser, or any of their
Affiliates which shall have been supplied in writing by them or any of their
authorized representatives for use in or in preparing the Proxy Material) will
not, at the date of mailing to the Company's stockholders or at the date of the
Stockholders Meeting, contain any statement which, at the time and in light of
the circumstances under which it is made, is false or misleading with respect to
any material fact required to be stated therein or necessary to correct any
statement in any earlier communication with respect to the solicitation of
proxies for the Stockholders Meeting. The Proxy Material will comply as to form
in all material respects with the Exchange Act and the rules and regulations of
the SEC thereunder.
Section 4.25. Board Recommendations. By a vote of the directors
---------------------
present at a meeting of the board of directors of the Company (which meeting was
duly called and held and at which a quorum was present at all times), the board
of directors has (i) approved and adopted (A) this Agreement, including the
issuance of the Securities, (B) the Company's entering into the Ancillary
Agreements to which it is or will be a party, and (C) the Certificate
Amendments, and (ii) resolved to recommend to the Company's stockholders
approval of the transactions contemplated hereunder and under the Ancillary
Agreements to which it is or will be a party, including issuance of the
Securities to the Purchaser pursuant to this Agreement.
Section 4.26. Intellectual Property
---------------------
(a) The Company and its Subsidiaries either own or have valid licenses
or other rights to use all patents, copyrights, trademarks, software, databases,
data, other technical information used in their businesses as presently
conducted ("Proprietary Rights"), subject to the limitations contained in the
agreements governing the use of the same, with such exceptions as would not
result in a Material Adverse Effect on the Company. There are no limitations
contained in the agreements of the type described in the immediately preceding
sentence which, upon consummation of the transactions contemplated hereunder,
will alter or impair any such rights, breach any such agreement with any third
party vendor, or require payments of additional sums thereunder, except any such
limitations that would not have a Material Adverse Effect on the Company. The
Company and its Subsidiaries are in compliance with such licenses and agreements
and, except as set forth on Schedule 4.26, there are no pending or, to the best
-------------
knowledge of the Company or any of its Subsidiaries, threatened Proceedings
challenging or questioning the validity or effectiveness of any license or
agreement relating to such property or the right of the Company or any of its
Subsidiaries to use, copy, modify or distribute the same.
(b) No person has a right, other than those set forth on Schedule 4.26
-------------
to receive a royalty or similar payment in respect of any material Proprietary
Rights whether or not pursuant to any contractual arrangements entered into by
the Company or its Subsidiaries.
34
Section 4.27. Securities Offerings. (a) Except as set forth on
--------------------
Schedule 4.27, since the date of its initial public offering, the Company has
-------------
not sold any securities other than securities registered pursuant to the
Securities Act. The sale of the Securities to the Purchaser hereunder and the
issuance of the Conversion Shares complies with all federal and state securities
laws.
(b) Neither the Company nor any affiliate (as defined in Rule 501(b)
of Regulation D under the Securities Act ("Regulation D")) of the Company has,
------------
directly or through any agent (provided that no representation is made as to the
Purchaser or any person acting on their behalf), (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of any security (as
defined in the Securities Act) that is or will be integrated with the offering
and sale of the Securities in a manner that would require the registration of
the Securities under the Securities Act or (ii) engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with the offering of the Securities.
(c) Except as set forth on Schedule 4.27, neither the Company nor
-------------
any of its Subsidiaries is a party to or bound by any contract or other
agreement, or otherwise obligated, to register any of the securities of the
Company or any of its Subsidiaries under the Act.
Section 4.28. No Agreements to Sell the Assets or the Company.
-----------------------------------------------
Except as contemplated by this Agreement, none of the Company or any
of its Subsidiaries have any legal obligation, absolute or contingent, to any
person or firm to sell the capital stock, material assets or business of the
Company or any of its Subsidiaries or to effect any merger, consolidation,
liquidation, dissolution, recapitalization or other reorganization of the
Company or any of its Subsidiaries or to enter into any agreement with respect
thereto.
Section 4.29. No Brokers. The Company has not employed, and is not
----------
subject to the valid claim of, any broker, finder, consultant or other
intermediary in connection with the transactions contemplated hereby who might
be entitled to a fee or commission from the Company in connection with such
transactions.
Section 4.30. Transactions with Certain Persons. Except as
---------------------------------
disclosed in SEC Filings or as would not be required to be so disclosed, no
officer, director or employee of the Company or any of its Subsidiaries nor any
member of any such person's immediately family is or has been, since the
Company's formation, a party to any transaction with the Company or any of its
Subsidiaries, including without limitation, any contract, agreement or other
arrangement (a) providing for the furnishing of services by, (b) providing for
the rental of real or personal property from, or (c) otherwise requiring
payments to (other than for services as officers, directors or employees of the
Company or its Subsidiaries) any such person or corporation, partnership, trust
or other entity in which any such person has an interest as a shareholder,
officer, director, trustee or partner.
35
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
-------------------------------------------
The Purchaser hereby represents and warrants to the Company as
follows:
Section 5.1. Organization of the Purchaser. The Purchaser is a
-----------------------------
limited liability company duly formed and validly existing and in good standing
as a limited liability company under the laws of its jurisdiction of formation
and has full limited liability company power and authority to carry on its
business as currently being conducted.
Section 5.2. Authorization. The Purchaser has full limited
-------------
liability company power and authority to execute and deliver this Agreement and
the Ancillary Agreements and to consummate the transactions contemplated hereby
and thereby. The execution and delivery by the Purchaser of this Agreement and
the Ancillary Agreements, and the consummation by it of the transactions
contemplated hereby and thereby, have been duly authorized by all necessary
limited liability company action of the Purchaser. This Agreement has been duly
executed and delivered by the Purchaser and constitutes, and each Ancillary
Agreement executed or to be executed by the Purchaser has been, or when executed
will be, duly executed and delivered by the Purchaser and constitutes, or when
executed and delivered will constitute, a valid and legally binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with its
terms.
Section 5.3. Noncontravention. The execution and delivery by the
----------------
Purchaser of this Agreement and the Ancillary Agreements and the consummation by
it of the transactions contemplated hereby and thereby do not and will not (i)
conflict with or result in a violation of any provision of the limited liability
company agreement or other governing agreement of the Purchaser, (ii) conflict
with or result in a violation of any provision of, or constitute (with or
without the giving of notice or the passage of time or both) a default under, or
give rise (with or without the giving of notice or the passage of time or both)
to any right of termination, cancellation, or acceleration under, any bond,
debenture, note, mortgage, indenture, lease, agreement, or other instrument or
obligation to which the Purchaser is a party or by which the Purchaser or any of
its properties may be bound, (iii) result in the creation or imposition of any
Encumbrance upon the properties of the Purchaser, or (iv) violate any Applicable
Law binding upon the Purchaser, except, in the case of clauses (ii), (iii), and
(iv) above, for any such conflicts, violations, defaults, termination,
cancellations, accelerations, or Encumbrances which would not, individually or
in the aggregate, materially and adversely affect the ability of the Purchaser
to consummate the transactions contemplated hereby.
Section 5.4. Consents and Appeals. No consent, approval, order or
--------------------
authorization of, or declaration, filing or registration with, any Government
Entity is required to be obtained or made by the Purchaser in connection with
the execution and delivery by the Purchaser of this Agreement and the Ancillary
Agreements or the consummation of the transaction contemplated hereby and
thereby other than (i) filings under the HSR Act and expiration or termination
of any applicable waiting period required thereunder and (ii) any filings
36
required under Section 13 and Section 16 of the Exchange Act and Rule 13d-1
under the Exchange Act and (iii) such consents, approvals, orders or
authorization which, if not made, would not, individually or in the aggregate,
materially and adversely affect the ability of the Purchaser to consummate the
transactions contemplated hereby.
Section 5.5. Purchase for Investment.
-----------------------
(a) The Purchaser is acquiring the Securities solely by and for its
own account, for investment purposes only and not for the purpose of resale or
distribution; and the Purchaser has no contract, undertaking, agreement or
arrangement with any person or entity to sell, transfer or pledge to such person
or anyone else any Securities; and the Purchaser has no present plans or
intentions to enter into any such contract, undertaking or arrangement.
(b) The Purchaser acknowledges and understands that: (i) the
Securities, the Conversion Shares and the Warrant Shares cannot be sold or
transferred without compliance with the registration provisions of the
Securities Act or compliance with exemptions, if any, available thereunder; (ii)
the certificates representing the respective Securities will include a legend
thereon that refers to the foregoing; and (iii) the Company has no obligation or
intention to register the Securities, Conversion Shares or the Warrant Shares
under any federal or state securities act or law; except to the extent, in each
case, that the terms of the Registration Rights Agreement shall otherwise
provide.
(c) The Purchaser (i) is an "accredited investor" as defined in Rule
501 of Regulation D; (ii) has such knowledge and experience in financial and
business matters in general that it has the capacity to evaluate the merits and
risks of an investment in the Securities and to protect its own interest in
connection with an investment in the Securities; (iii) has such a financial
condition that it has no need for liquidity with respect to its investment in
the Securities to satisfy any existing or contemplated undertaking, obligation
or indebtedness; and (iv) is able to bear the economic risk of its investment in
the Securities for an indefinite period of time.
Section 5.6. Disclosure Documents. None of the information with
--------------------
respect to the Purchaser or any of its Affiliates which shall have been supplied
in writing by the Purchaser for inclusion in the Proxy Material will at the date
of mailing of the Proxy Material to the Company's stockholders contain any
statement which, at the time and in light of the circumstances under which it is
made, is false or misleading with respect to any material fact required to be
stated therein or necessary to correct any statement in any earlier
communication with respect to the solicitation of proxies for the Stockholders
Meeting.
Section 5.7. No Brokers. The Purchaser has not employed, and is
----------
not subject to the valid claim of, any broker, finder, consultant or other
intermediary in connection with the transactions contemplated by this Agreement
who might be entitled to a fee or commission in connection with such
transactions.
37
ARTICLE VI.
ACTIONS BY THE COMPANY AND
--------------------------
THE PURCHASER PRIOR TO THE SECOND CLOSING
-----------------------------------------
The Company and the Purchaser covenant as follows for the period from
the date hereof through the Second Closing (unless otherwise specified herein):
Section 6.1. Meeting of Stockholders; Proxy Statement; Certificate
-----------------------------------------------------
Amendments.
----------
(a) The Company shall take all action necessary in accordance with
Applicable Law and the Certificate of Incorporation and Bylaws to duly call,
give notice of, convene and hold a meeting of its stockholders, which meeting
may be the Company's annual meeting of stockholders (the "Stockholders
------------
Meeting"), as promptly as practicable after the date hereof to consider and vote
upon the adoption and approval of the transaction as contemplated hereunder,
including, without limitation, the Certificate Amendments. The stockholder vote
required for the adoption and approval of the transactions contemplated
hereunder shall be the vote or votes required by Applicable Law, the Certificate
of Incorporation, the Existing Preferred Stock Certificates of Designations and
the rules of The Nasdaq Stock Market, Inc. Except as provided in Section 6.1(b)
below, the board of directors of the Company shall (i) recommend to the
Company's stockholders that they vote in favor of the adoption and approval of
all matters necessary to effectuate the transactions contemplated hereunder,
(ii) use its reasonable best efforts to solicit from the Company's stockholders
proxies in favor of such adoption and approval, and (iii) take all other action
reasonably necessary to secure a vote of the Company's stockholders in favor of
such adoption and approval. The Company has delivered the Shareholder
Undertakings committing all of its executive officers and directors who own
shares of Common Stock to vote all such shares of Common Stock in favor of the
transactions contemplated hereunder at the Stockholders Meeting.
(b) As promptly as practicable after the date hereof, the Company
shall take or cause to be taken, all actions, and do, or cause to be done, all
things reasonably necessary, proper or advisable to (i) prepare and file with
the Commission any documents or materials, including, but not limited to, the
Proxy Materials, pertaining to the issuance of the Securities and the
Stockholders Meeting, (ii) have the Proxy Materials cleared by the Commission
(including with respect to clauses (i) and (ii) by consulting with the Purchaser
and responding promptly to any comments from the Commission) and (iii) take such
action as may be required to be taken under applicable state securities or blue
sky laws in connection with the issuance of the Securities, the Conversion
Shares or the Warrant Shares except that the Company shall have no registration
obligations other than as set forth in the Registration Rights Agreement. Except
to the extent otherwise determined in good faith by the Company's board of
directors in the exercise of its fiduciary duties, taking into account the
advice of outside counsel, the Proxy Materials shall contain the recommendation
of the Board of Directors that stockholders of the Company vote in favor of the
adoption and approval of all matters necessary to effectuate the transactions
38
contemplated hereunder. The Company shall notify the Purchaser promptly of the
receipt of any comments on, or any requests for amendments or supplements to,
the Proxy Materials by the Commission, and the Company shall supply the
Purchaser with copies of all correspondence between it and its representatives,
on the one hand, and the Commission or members of its staff, on the other, with
respect to the Proxy Materials. The Company, after consultation with the
Purchaser, shall use its reasonable best efforts to respond promptly to any
comments made by the Commission with respect to the Proxy Materials. The Company
and the Purchaser shall cooperate with each other in preparing the Proxy
Materials, and the Company and the Purchaser shall each use its reasonable best
efforts to obtain and furnish the information required to be included in the
Proxy Materials. The Company and the Purchaser each agrees promptly to correct
any information provided by it for use in the Proxy Statement if and to the
extent that such information shall have become false or misleading in any
material respect, and the Company further agrees to take all steps necessary to
cause the Proxy Statement as so corrected to be filed with the Commission and to
be disseminated promptly to holders of shares of the Common Stock, in each case
as and to the extent required by Applicable Law.
Section 6.2. Stock Exchange Approval. The Company shall use its
-----------------------
reasonable best efforts and take all action reasonably necessary to obtain the
confirmation of The Nasdaq Stock Market, Inc. that the transactions contemplated
hereby (including the Certificate Amendments) will not violate Rule 4310 or Rule
4460 of the National Association of Securities Dealers, Inc. Manual.
Section 6.3. Continuing Operations. From the date of this Agreement
---------------------
to the earlier of (i) the Second Closing or (ii) the termination of this
Agreement in accordance with its terms, the Company and its Subsidiaries shall
conduct their business in the ordinary and usual course, and, except as set
forth on Schedule 6.3, neither the Company nor any of its Subsidiaries shall,
------------
without the prior consent of the Purchaser except as expressly contemplated
hereby:
(a) purchase, sell, license, assign, transfer, convey or otherwise
acquire or dispose of any assets, securities, or businesses, unless such
transaction is provided for in the annual budget or is in the ordinary course of
business and does not involve (i) the acquisition or disposition of homebuilding
operations or any homebuilding company or entity or (ii) land acquisitions with
a value in excess of $100,000 for any transaction or group of related
transactions or with an aggregate value in excess of $5,000,000 in any twelve
(12) month period;
(b) directly or indirectly incur, refinance, repay, prepay, create,
assume, guarantee or otherwise become liable with respect to any liabilities
with an aggregate face amount in excess of $1,000,000 in the aggregate, other
than in accordance with existing credit facilities and renewals thereof on
substantially the same terms;
(c) enter into any transaction after the date hereof or materially
amend any transaction in effect on the date hereof, with any Affiliate of the
Company (other than between the Company and its Subsidiaries or between
Subsidiaries);
39
(d) split (including any reverse split), combine, or reclassify any
shares of its capital stock; adopt resolutions authorizing a liquidation,
dissolution, merger, consolidation, restructuring, recapitalization, or other
reorganization of the capital structure of the Company or any of its
subsidiaries; or make any other material changes in its capital structure;
(e) engage in any new development or redevelopment of any real
property for an amount in excess of $100,000, whether in a single transaction or
a series of related transactions;
(f) incur any capital expenditure for an amount, outside of the
approved annual budget, in excess of $50,000 per occurrence or $500,000 in the
aggregate, whether in a single transaction or a series of related transactions
or waive, release, grant or transfer any rights of value in respect thereof or
enter into any agreement or arrangement that could adversely affect the
marketability of any real estate of the Company or any of its subsidiaries;
(g) enter into any employment agreement with any employee involving
payments in excess of $100,000 per annum or with any director or executive
officer of the Company or any of its Subsidiaries or enter into or materially
change any Benefit Arrangement ;
(h) enter into any new line of business other than the business
engaged in by the Company and its Subsidiaries on the date hereof, cease to be
engaged in any material line of business engaged in by the Company and its
Subsidiaries on the date hereof or materially change the nature of the business
engaged in by any of them on the date hereof;
(i) approve the annual operating budget of the Company for any year
after 1997;
(j) amend or take actions materially inconsistent with the approved
annual operating budget for 1997 or any subsequent year;
(k) make any general assignment for the benefit of creditors;
(l) file any petition seeking relief, or consent to the institution of
any proceeding against itself seeking to adjudicate it a bankrupt or insolvent,
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors;
(m) institute, voluntarily dismiss, terminate or settle any litigation
or arbitration against any Person (A) involving payments for damages and
penalties in excess of $50,000 or (B) otherwise material to the Company and its
subsidiaries taken as a whole;
(n) engage, retain, pay or agree to pay the fees or expenses of any
third party consultants or advisors (other than advisors retained in the
ordinary course of business), to the extent that such fees and expenses exceed
one hundred thousand dollars ($100,000) in the aggregate;
40
(o) appoint, ratify or replace the independent accountants, change any
accounting policy or practice other than as mandated by generally accepted
accounting principles then in effect; or change any significant tax methods,
practices, procedures or policies;
(p) enter into or amend any joint venture, partnership or profit
sharing agreement or arrangement;
(q) amend to the Company's or any Subsidiary's certificate of
incorporation or bylaws; or
(r) declare or pay any dividend or make any other distribution with
respect to its capital stock, other than dividends paid by any subsidiary to the
Company or another subsidiary in the ordinary and usual course of business or to
the holders of the Preferred Stock and the Existing Preferred Stock as required
pursuant to the terms of the Preferred Stock and the Preferred Stock
Certificates of Designations;
(s) issue, sell, (whether through the issuance or granting of options,
warrants, commitments, subscriptions, rights to purchase, or otherwise) any of
its capital stock (other than upon conversion of the Preferred Stock or the
Existing Preferred Stock or upon exercise of the Warrants) or deliver or other
securities other than as contemplated herein or pursuant to stock options issued
and outstanding as of the date hereof or purchase or otherwise acquire any of
its capital stock, employee or director stock options or debt securities; or
(t) agree to do any of the foregoing.
Section 6.4. Press Releases. Except as may be required by
--------------
applicable law or by the rules of any national securities exchange, neither the
Purchaser nor the Company shall issue any press release with respect to this
Agreement or the transactions contemplated hereunder without the prior consent
of the Company in the case of the Purchaser, and of the Purchaser in the case of
the Company (which consent shall not be unreasonably withheld under the
circumstances). Any such press release required by applicable law or by the
rules of any national securities exchange shall only be made after reasonable
notice to the other party.
Section 6.5. Additional Financial Statements. During the period
-------------------------------
from the date hereof through the First Closing, as soon as reasonably
practicable after they become publicly available, the Company shall furnish to
the Purchaser (i) the quarterly consolidated financial statements of the Company
and its consolidated Subsidiaries, which shall have been prepared in accordance
with GAAP and on a basis consistent with past practice and (ii) all monthly
financial statements or reports of the Company and its consolidated
Subsidiaries, which shall have been prepared in a manner consistent with past
practice.
Section 6.6. Investigations and Access. The Company agrees to
-------------------------
permit the Purchaser and its agents and representatives reasonable access during
normal business hours to (i) the premises of the Company and its Subsidiaries
and (ii) all the books, computer software application systems, files and records
of the Company and its Subsidiaries, including, but not
41
limited to, lease, loan, real estate, financial, tax and personnel files and
records, and to furnish the Purchaser such financial and operating data and
other information with respect to the business, assets and properties of the
Company as the Purchaser shall reasonably request. The Company will authorize
its accountants to provide the Purchaser, in accordance with such accountant's
internal policies, with their working papers for the Company's financial
statements. The Company shall deliver true, correct and complete copies of all
resolutions, and minutes of all meetings, reflecting any action taken by the
Company stockholders, board of directors or committees of the board of directors
and by each Subsidiary during the period from the date hereof through the First
Closing.
Section 6.7. Notification of Certain Matters. The Company shall
-------------------------------
give prompt notice to the Purchaser, and the Purchaser shall give prompt notice
to the Company, of (i) the occurrence, or failure to occur, of any event which
occurrence or failure would be likely to cause any representation or warranty
contained in this Agreement to be untrue or inaccurate in any material respect
any time from the date hereof to the Closing Date and (ii) any material failure
of the Company or the Purchaser, as the case may be, to comply with or satisfy
any covenant, condition or agreement to be complied with or satisfied by it
hereunder, and each party shall use all reasonable efforts to remedy such
failure. In addition, the Company shall give prompt notice to the Purchaser of
any material developments involving the operations or activities of the Company
or its Subsidiaries.
Section 6.8. No Solicitation. Until the Second Closing shall have
---------------
occurred, neither the Company nor any of its Affiliates nor any of their
respective directors, officers, employees, representatives or agents, shall
directly or indirectly solicit or initiate any discussions, submissions of
proposals or offers or negotiations with, participate in any negotiations or
discussions with, or provide any information or data of any nature whatsoever
to, or otherwise cooperate in any other way with, or assist or participate in,
facilitate or encourage any effort or attempt by, any corporation, partnership,
person or other entity or group, other than the Purchaser and its respective
partners, employees, representatives, agents and Affiliates, concerning any
Alternative Transaction, provided, however, that nothing contained in this
-------- --------
Section 6.8 shall prohibit the Board of Directors from (i) furnishing
information or affording access to properties, books or records to, or entering
into discussions or negotiations with, any person or entity in connection with
any unsolicited bona fide proposal by such person or entity to enter into any
Alternative Transaction or entering into an Alternative Transaction if, and only
to the extent that, (A) the Company receives the written advice of outside legal
counsel that such action is advisable to enable the Board of Directors to comply
with its fiduciary duties imposed by Applicable Law and (B) prior to furnishing
such information to, or entering into discussions or negotiations with, such
person or entity, the Company (A) provides written notice to the Purchaser to
the effect that it is furnishing information or affording access to properties,
books or records to, or entering into discussions or negotiations with, such
person or entity and (B) receives from such person or entity an executed
confidentiality agreement on terms and in form customary for similar
transactions or (ii) complying with Rule 14e-2 promulgated under the Exchange
Act, with regard to an Alternative Transaction. For purposes of this Agreement,
"Alternative Transaction" means any merger, consolidation (other than insofar
-----------------------
as such merger or
42
consolidation relates exclusively to the acquisition by the Company or one of
its Subsidiaries of companies or businesses engaged primarily in the same
business as the Company), sale of substantial assets not in the ordinary course,
sale of shares of existing or future capital stock or other equity securities or
securities convertible into equity securities or derivatives thereof (other than
pursuant to employee stock options), recapitalization, capital infusion,
incurrence of material additional indebtedness except pursuant to existing lines
of credit or refinancings thereof, debt restructuring or similar transaction
involving the Company or any of its Subsidiaries, or any division of the Company
or any of its Subsidiaries except, in each case, as disclosed in the Schedules
to this Agreement. As part of the written notice provided to the Purchaser
pursuant to clause (i)(B) above, the Company shall indicate the identity of the
offeror and the terms and conditions of any proposals or offers or the nature of
any inquiries or contacts, and thereafter shall use reasonable efforts to keep
the Purchaser informed, on a current basis, of the status and terms of any such
proposals or offers and the status of any such discussions or negotiations. The
Company shall not release any third party from, or waive any provision of, any
confidentiality or standstill agreement to which the Company is a party.
Section 6.9. Further Assurances. Upon the terms and subject to the
------------------
conditions contained herein, the Company agrees, both before and after each
Closing, (i) to use all reasonable efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or
advisable to consummate and make effective the transactions contemplated by this
Agreement, (ii) to execute any documents, instruments or conveyances of any kind
which may be reasonably necessary or advisable to carry out any of the
transactions contemplated hereunder, and (iii) to cooperate with the Purchaser
in connection with the foregoing. Without limiting the foregoing, the Company
agrees to use its reasonable best efforts (A) to obtain all necessary waivers,
consents and approvals, (B) to defend all actions challenging this Agreement or
the consummation of the transactions contemplated hereby, (C) to lift or rescind
any injunction or restraining order or other court order adversely affecting the
ability of the Company to consummate the transactions contemplated hereby, (D)
to give all notices to and make all registrations and filings with third
parties, including without limitation, submissions of information requested by
Governmental Entities and The Nasdaq National Market, Inc., and (E) to fulfill
all conditions to this Agreement. In addition, the Company will commence all
action required under this Section 6.9 by a date which is early enough to allow
the transactions contemplated hereunder to be consummated by each Closing Date.
Section 6.10. HSR Act Notification. To the extent it is determined
--------------------
that the HSR Act will be applicable to the transactions as contemplated
hereunder, each of the affected parties hereto shall (i) file or cause to be
filed, as promptly as practicable after the execution and delivery of this
Agreement, with the Federal Trade Commission and the United States Department of
Justice, all reports and other documents required to be filed by such party
under the HSR Act concerning the transactions contemplated hereby and (ii)
promptly comply with or cause to be complied with any requests by the Federal
Trade Commission or the United States Department of Justice for additional
information concerning the Transaction, in each case so that the waiting period
applicable to this Agreement and the transaction contemplated hereby under the
HSR Act shall expire as soon as practicable after the execution and delivery),
of this
43
Agreement. Each party hereto agrees to request, and to cooperate with the other
party or parties in requesting, early termination of any applicable waiting
period under the HSR Act.
Section 6.11. Employee Matters. On or prior to the First Closing,
----------------
the Board of Directors shall take all actions necessary to ensure that the
acquisition of the Securities by the Purchaser (including the
conversion/exercise of all of the Securities acquired or to be acquired by the
Purchaser hereunder) and the transactions contemplated herein shall not result
in the acceleration or creation of any rights of any person to benefits under
any Employee Plan (including, without limitation, the acceleration of the
vesting or exercisability of any stock options, the acceleration of the vesting
of any restricted stock, the acceleration of the accrual or vesting of any
benefits under any Pension Plan or the acceleration or creation of any rights
under any severance, parachute or change in control agreement).
Section 6.12 Action by the Company. On the date of Stockholder
---------------------
Approval, the Board of Directors shall take, or cause to be taken, all actions
necessary or desirable to (i) cause the Board of Directors to consist of fifteen
(15) directors, three of whom shall be elected by the Purchaser by delivery of a
written consent immediately following the date of Stockholder Approval and (ii)
effect the Bylaws Amendments. Prior to the Second Closing, the Board of
Directors shall take, or cause to be taken, all actions necessary or desirable
to file with the Secretary of State of the State of Delaware the Certificate
Amendments.
Section 6.13. Liability Insurance. On or prior to the appointment
-------------------
of the Preferred Stock Directors to the Board of Directors, the Company shall
ensure that each person serving on the Board of Directors on and after date of
such appointment shall receive substantially the same liability insurance
coverage as a member of the Board of Directors as the Company's directors
receive as of the date hereof (including coverage for liabilities arising before
the date of taking office to the extent arising from such person's status as a
prospective member of the Board of Directors) and that such policies shall be in
full force and effect in accordance with their terms as of the date of such
appointment and in no event shall such coverage be for an amount less than
$25,000,000.
Section 6.14. Confidentiality. The Company and the Purchaser agree
---------------
that all information provided to any of them or any of their representatives
pursuant to this Agreement shall be kept confidential, and such parties shall
not (x) disclose such information to any persons other than the directors,
officers, employees, financial advisors, legal advisors, accountants,
consultants and affiliates of such parties who reasonably need to have access to
the confidential information and who are advised of the confidential nature of
such information or (y) use such information in a manner which would be
detrimental to the Company or the Purchaser; provided, however, the foregoing
-------- -------
obligation of such parties shall not (a) relate to any information that (i) is
or becomes generally available other than as a result of unauthorized disclosure
by such parties or by persons to whom such parties have made such information
available, (ii) is or becomes available to such parties on a non-confidential
basis from a third party that is not, to such parties' knowledge, bound by any
other confidentiality agreement with the Company, or (b) prohibit
44
disclosure of any information if required by law, rule, regulation, court order
or other legal or governmental process.
Section 6.15. Action following Stockholder Approval. Immediately
-------------------------------------
following the Stockholder Approval, (i) the Board of Directors shall adopt the
Bylaws Amendments, (ii) the Certificate Amendments shall be duly filed with the
Secretary of State of the State of Delaware and (iii) the Preferred Stock
Directors shall be appointed to the Board of Directors; provided, however, that
with respect to clauses (i) and (iii) the Company shall take such actions
earlier, upon the written request of the Purchaser.
ARTICLE VII.
CONDITIONS TO ALL CLOSINGS
--------------------------
Section 7.1. Conditions to Each Party's Obligations. The respective
--------------------------------------
obligations of each party to consummate the transactions contemplated hereby in
respect of each Closing are subject to the satisfaction or waiver, on or prior
to the relevant Closing Date, of each of the following conditions:
(a) No Governmental or Other Proceedings or Litigation. There shall
--------------------------------------------------
be no injunction or court order restraining consummation of the transactions
contemplated hereunder and there shall be no pending or threatened action or
proceeding by or before a court or governmental body brought by or on behalf of
any Governmental Entity seeking to restrain or invalidate all or any portion of
the transactions contemplated hereunder, and there shall not have been adopted
any law or regulation making all or any portion of the transactions contemplated
hereunder illegal.
(b) HSR Act. To the extent that the HSR Act is applicable to the
-------
transactions contemplated hereunder, all waiting periods (and any extensions
thereof) applicable to any such transactions under the HSR Act shall have
expired or been terminated.
(c) NASDAQ Listing. The Nasdaq Stock Market, Inc. shall have
--------------
informed the Company that the transactions contemplated hereby will not violate
Rule 4310 or Rule 4460 of the National Association of Securities Dealers, Inc.
Manual and The Nasdaq Stock Market, Inc. shall not have indicated any intention
to delist the Company's Common Stock.
Section 7.2. Conditions to the Company's Obligations. The
---------------------------------------
obligation of the Company to consummate the transactions contemplated hereby on
the Closing Date is subject to the satisfaction or waiver on or prior to the
Closing Date, of each of the following conditions:
(a) Representations, Warranties and Covenants. All representations
-----------------------------------------
and warranties of the Purchaser contained in this Agreement shall be true and
correct in all material respects at and as of the applicable Closing Date as if
such representations and warranties were made at and as of the applicable
Closing Date, and the Purchaser shall have performed in all material respects
all agreements and covenants required hereby to be performed by it prior to or
45
at the applicable Closing Date. There shall be delivered to the Company a
certificate (signed by the sole member of the Purchaser) to the foregoing
effect.
(b) Consents. All consents, approvals, Permits and waivers from
--------
Governmental Entities and other parties necessary to permit the Company to
consummate the transactions contemplated hereby including, but not limited to,
the approval of The Nasdaq Stock Market, Inc. to the transactions contemplated
hereby, shall have been obtained, unless the failure to obtain any such consent,
approval, Permit or waiver would not have a Material Adverse Effect upon the
Company. The Certificate of Designations for the Series D Preferred Stock shall
have been filed in a form and substance acceptable to the Purchaser providing,
among other things, that the Series D Preferred Stock shall be pari passu with
the Preferred Stock and the Existing Preferred Stock.
(c) Opinion of Counsel. The Purchaser shall have delivered to the
------------------
Company the opinions of Xxxxxx & Xxxxxxx, counsel to the Purchaser, in form and
substance reasonably acceptable to the Company.
(d) Certificates. The Purchaser will furnish the Company with such
------------
certificates of its general partner and others to evidence compliance with the
conditions set forth in this Article VII as may be reasonably requested by the
Company.
Section 7.3. Conditions to the Purchaser's Obligations. The
-----------------------------------------
obligation of the Purchaser to consummate the transactions contemplated hereby
on the applicable Closing Date is subject to the satisfaction or waiver on or
prior to the applicable Closing Date of each of the following conditions:
(a) Representations, Warranties and Covenants. All representations
-----------------------------------------
and warranties of the Company contained in this Agreement shall be true and
correct in all material respects at and as of the applicable Closing Date as if
such representations and warranties were made at and as of the applicable
Closing Date (provided that no representation or warranty shall be deemed
breached if the action causing such representation or warranty to be untrue as
of the relevant Closing Date permitted by Section 6.3 or was consented to by the
Purchaser under Section 6.3), and the Company shall have performed in all
material respects all agreements and covenants required hereby to be performed
prior to or at the applicable Closing Date. There shall be delivered to the
Purchaser a certificate (signed by the President and Chief Executive Officer and
the Secretary of the Company) to the foregoing effect.
(b) Consents. All consents, approvals, Permits and waivers from
--------
Governmental Entities and other parties necessary to permit the Purchaser and
the Company to consummate the transactions contemplated hereby shall have been
obtained, unless the failure to obtain any such consent, approval, Permit or
waiver would not have a Material Adverse Effect upon the Company or the
Purchaser.
46
(c) Opinion of Counsel. The Company shall have delivered to the
------------------
Purchaser the opinions of Arent Fox Xxxxxxx Xxxxxxx & Xxxx, counsel for the
Company, in form and substance reasonably acceptable to the Purchaser.
(d) Certificates. The Company shall furnish the Purchaser with such
------------
certificates of the Chief Executive Officer and the Secretary of the Company and
others to evidence compliance with the conditions set forth in this Article VII
as may be reasonably requested by the Purchaser.
(e) No Adverse Changes. Since the date of this Agreement, there
------------------
shall not have been any Material Adverse Effect on the Company.
(f) Elections of Directors. All actions shall have been taken by the
----------------------
Company, its stockholders and Board of Directors so that, immediately upon the
Stockholder Approval, the Board of Directors shall consist of fifteen (15)
directors and the Purchaser may, by execution and delivery of a written consent,
elect three (3) members of the Board of Directors effective as of the
Stockholder Approval as set forth in Section 6.15. As of the date of the
Stockholder Approval the Company shall have established a five-member executive
committee (the "Executive Committee") of the Board of Directors to which
-------------------
substantial authority for operational matters shall be delegated, as further
described in the Stockholders Agreement. The Company shall appoint two members
of the Executive Committee nominated by the Purchaser.
(g) Ancillary Agreements. The Company shall enter into and deliver
--------------------
to the Purchaser the Ancillary Agreements to which it is a party.
(h) Amendment to Existing Stockholders Agreement. If necessary, the
--------------------------------------------
Existing Stockholders Agreement shall be amended to be consistent with the terms
of this Agreement and the Ancillary Agreements (including the Stockholders
Agreement).
ARTICLE VIII.
SECOND AND SUBSEQUENT CLOSINGS
------------------------------
Section 8.1. Conditions to Each Party's Obligations at the Second
----------------------------------------------------
Closing. In addition to the conditions set forth in Article VII, the respective
-------
obligations of each party to consummate the transactions contemplated hereby on
the Second Closing and on Subsequent Closings are subject to the satisfaction or
waiver, on or prior to the date of the Second Closing or the date of any
Subsequent Closing (as the case may be), of each of the following conditions:
(a) Stockholder Approval. The holders of the requisite number of
--------------------
shares of outstanding Common Stock of the Company shall have duly and validly
approved all items necessary to effectuate the transactions contemplated hereby
and under the Ancillary Agreements, including without limitation, the
Certificate Amendments (the "Stockholder Approval").
--------------------
47
Section 8.2. Conditions to the Purchaser's Obligations at the Second
-------------------------------------------------------
and Subsequent Closings. In addition to the conditions set forth in Article
-----------------------
VII, the obligations of the Purchaser to consummate the transactions on the
Second Closing and on Subsequent Closings are subject to the satisfaction or
waiver, on or prior to the date of the Second Closing and the date of any
Subsequent Closing (as the case may be), of each of the following conditions:
(a) Certificate Amendments; Bylaws Amendments. The Certificate
-----------------------------------------
Amendments and Bylaws Amendments in a form satisfactory to Purchaser necessary
to give effect to the transactions contemplated hereby and the provisions of the
Ancillary Documents shall have become effective in accordance with Section 6.15.
(b) Liability Insurance. The Company shall have provided to the
-------------------
Purchaser a copy of the insurance policies together with the riders and
schedules thereto which evidence compliance with the provisions set forth in
Section 6.13.
(c) Employment Agreements. The Company shall amend the employment
---------------------
agreement of Xxxxx X. Xxxxxxx, Xx. in a form and substance satisfactory to the
Purchaser, in the Purchaser's sole discretion, to require that he devote not
less than 95% of his working time to conducting the business affairs of the
Company and to include customary non-compete provisions and, if the Purchaser in
its sole discretion so requires, enter into an employment agreement on similar
terms with J. Xxxxxxxx Xxxxxxx.
ARTICLE IX.
INDEMNIFICATION
---------------
Section 9.1. Survival of Representations, Etc. The representations,
--------------------------------
warranties, covenants and agreements of the parties hereto contained herein
shall survive all of the Closings and shall remain in full force and effect
until December 31, 2000; provided, however, that (i) the representations and
-------- -------
warranties set forth in Section 4.17 shall survive until December 31, 2004; (ii)
the representations and warranties in Sections 4.1 through 4.4 and Section 4.7
shall survive indefinitely and the covenants and agreements set forth in
Articles IX and X shall remain in full force and effect indefinitely and (iii)
the representations and warranties set forth in Section 4.15 shall survive and
shall remain in full force and effect for a period equal to the applicable
statute of limitations for any Taxes imposed payable in breach of such
representations and warranties; and provided, further, that there shall
-------- -------
be no termination with respect to any representation or warranty as to which
either (a) a bona fide claim has been asserted prior to such date or (b) the
Purchaser had actual knowledge of any breach thereof prior to any Closing Date.
Section 9.2. Indemnification by the Company. The Company shall
------------------------------
indemnify and hold harmless the Purchaser and its members, Affiliates,
directors, officers, advisors, agents and employees (the "Purchaser Indemnified
---------------------
Parties") to the fullest extent lawful, from and against any and all demands,
-------
damages, penalties, claims, liabilities, obligations, actions, causes
48
of action, and reasonable expenses (including without limitation, costs of
investigating, preparing or defending any such claim or action and reasonable
legal fees and expenses) (collectively, "Losses"), (i) arising out of or in
------
connection with this Agreement, the transactions contemplated hereby, and/or the
delivery, enforcement and performance of this Agreement or the Ancillary
Agreements except to the extent that Losses with respect thereto are the result
of the Purchaser's actions or omissions, or (ii) arising by reason of or
resulting from any breach of any warranty, representation, covenant or agreement
of the Company contained in this Agreement, the Ancillary Agreements or in any
certificate delivered pursuant thereto.
Section 9.3. Indemnification by the Purchaser. The Purchaser shall
--------------------------------
indemnify and hold harmless the Company and its Affiliates, directors, officers,
advisors, agents and employees (the "Company Indemnified Parties"
----------------------------
and, together with the Purchaser Indemnified Parties, the "Indemnified Parties")
-------------------
to the fullest extent lawful, from and against any and all Losses (i) arising
from this Agreement or the Ancillary Agreements, to the extent of Losses from
the Purchaser's actions or omissions or (ii) arising by reason of or resulting
from any breach of any warranty, representation, covenant or agreement of the
Purchaser contained in this Agreement or in any certificate delivered pursuant
thereto.
Section 9.4. Losses. The term "Losses" as used in this Section 9
------
is not limited to matters asserted by third parties, but includes Losses
incurred or sustained by an Indemnified Party in the absence of third party
claims. Payments by an Indemnified Party of amounts for which such Indemnified
Party is indemnified hereunder shall not necessarily be a condition precedent to
recovery.
Section 9.5. Defense of Claims. If a claim for Losses (a "Claim")
-----------------
is to be made by an Indemnified Party, such Indemnified Party shall give written
notice (a "Claim Notice") to the indemnifying party as soon as practicable after
such Indemnified Party becomes aware of any fact, condition or event which may
give rise to Losses for which indemnification may be sought under this Section
9. If any lawsuit or enforcement action is filed against any Indemnified Party
hereunder, notice thereof (a "Third Party Notice") shall be given to the
------------------
indemnifying party as promptly as practicable (and in any event within five (5)
calendar days after the service of the citation or summons). The failure of any
indemnified party to give timely notice hereunder shall not affect rights to
indemnification hereunder, except to the extent that the indemnifying party
demonstrates actual damage caused by such failure. After receipt of a Third
Party Notice, if the indemnifying party shall acknowledge in writing to the
indemnified party that the indemnifying party shall be obligated under the terms
of its indemnity hereunder in connection with such lawsuit or action, then the
indemnifying party shall be entitled, if it so elects, (i) to take control of
the defense and investigation of such lawsuit or action, (ii) to employ and
engage attorneys approved by the Indemnified Party (such approval not to be
unreasonably withheld) to handle and defend the same, at the indemnifying
party's cost, risk and expense unless the named parties to such action or
proceeding include both the indemnifying party and the Indemnified Party and the
Indemnified Party has been advised in writing by counsel that there may be one
or more legal defenses available to such Indemnified Party that are different
from or additional to those available to the indemnifying party, and (iii) to
compromise or settle such claim, which
49
compromise or settlement shall be made only with the written
consent of the Indemnified Party, such consent not to be unreasonably withheld.
The Indemnified Party shall cooperate in all reasonable respects with the
indemnifying party and such attorneys in the investigation, trial and defense of
such lawsuit or action and any appeal arising therefrom; and the Indemnified
Party may, at its own cost, participate in the investigation, trial and defense
of such lawsuit or action and any appeal arising therefrom and appoint its own
counsel therefor, at its own cost. The parties shall also cooperate with each
other in any notifications to insurers. If the indemnifying party fails to
assume the defense of such claim within fifteen (15) calendar days after receipt
of the Third Party Notice, the Indemnified Party against which such claim has
been asserted will (upon delivering notice to such effect to the indemnifying
party) have the right to undertake the defense, compromise or settlement of such
claim and the indemnifying party shall have the right to participate therein at
its own cost; provided, however, that such claim shall not be compromised or
-------- -------
settled without the written consent of the Indemnifying Party, which consent
shall not be unreasonably withheld. In the event the Indemnified Party assumes
the defense of the claim, the Indemnified Party will keep the indemnifying party
reasonably informed of the progress of any such defense, compromise or
settlement. Notwithstanding the foregoing, the indemnifying party shall not be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys at any time for any and all Indemnified Parties (which firm shall be
designated in writing by such Indemnified Party or Parties) in connection with
any one such action or proceeding arising out of the same general allegations or
circumstances.
Section 9.6. Tax Treatment of Indemnity. The parties agree that
--------------------------
any indemnification payments made pursuant to this Agreement shall be treated
for Tax purposes as an adjustment to the consideration for the purchase of the
Securities, unless otherwise required by applicable law, in which event
indemnification payments shall be made in an amount sufficient to indemnify the
party on a net after-Tax basis.
ARTICLE X
MISCELLANEOUS
-------------
Section 10.1 Termination.
-----------
(a) Prior to the First Closing, this Agreement may be terminated:
(i) by the Purchaser, if there is a breach of any
representation warranty set forth in Article IV hereof or any covenant or
agreement to be complied with or performed by the Company pursuant to the terms
of this Agreement except for any breach which would not have a Material Adverse
Effect on the Company or the Purchaser; or
(ii) by the Company, if there is a material breach of
any representation or warranty set forth in Article V hereof or of any covenant
or agreement to be complied with or performed by the Purchaser pursuant to the
terms of this Agreement except for any breach which would not have a Material
Adverse Effect on the Company.
50
(b) Prior to the Second Closing, this Agreement may be terminated:
(i) by the Company or the Purchaser if the
Stockholder Approval shall not have been obtained on or before January 31, 1998,
provided that the Company shall not have the right to elect this termination if
the Company has not complied with all of its obligations under this Agreement;
(ii) by the Purchaser if the Second Closing shall not
have occurred by January 31, 1998;
(iii) by the Purchaser, if there is a breach of any
representation or warranty set forth in Article IV hereof or any covenant or
agreement to be complied with or performed by the Company pursuant to the terms
of this Agreement except for any breach which would not have a Material Adverse
Effect on the Company or the Purchaser; or
(iv) by the Company, if there is a material breach of
any representation or warranty set forth in Article V hereof or of any covenant
or agreement to be complied with or performed by the Purchaser pursuant to the
terms of this Agreement except for any breach which would not have a Material
Adverse Effect on the Company.
Section 10.2. In the Event of Termination: In the event of
---------------------------
termination of this Agreement:
(a) Each party will redeliver all documents, work papers and other
material of any other party relating to the transactions contemplated hereby,
whether so obtained before or after the execution hereof to the party furnishing
the same;
(b) The provisions of Sections 9 and 10.3 shall continue in full force
and effect; and
(c) Other than pursuant to Sections 9 and 10.3, no party hereto shall
have any liability or further obligation to any other party relating to the
transactions contemplated hereby, provided that no such termination shall
relieve any party from liability or a prior breach of this Agreement.
Section 10.3. Fees and Expenses. The Company shall be responsible
-----------------
for the payment of all costs and expenses incurred by the Company in connection
with the transactions contemplated hereunder, regardless of whether such
transactions close, including, without limitation, all fees and expenses
incurred in connection with the Proxy Materials and the fees and expenses of the
Company's legal counsel and all third party consultants engaged by the Company
to assist in the transactions. On the Closing Date, the Company shall reimburse
the Purchaser for the Transaction Expenses (by wire transfer of same day funds).
In the event that the Agreement is terminated, other than pursuant to Section
10.1(a)(ii) or Section 10.1(b)(iv) hereof, in addition to any other rights of
the Purchaser hereunder, the Company shall promptly pay the Purchaser, by
51
way of liquidated damages, a termination fee of $4,000,000, plus the Transaction
----
Expenses (to the extent not already paid or reimbursed by the Company).
Section 10.4. Injunctive Relief. The parties hereto acknowledge
-----------------
and agree that irreparable damage would occur in the event any of the provisions
of this Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of the provisions
of this Agreement, and shall be entitled to enforce specifically the provisions
of this Agreement, in any court of the United States or any state thereof having
jurisdiction, in addition to any other remedy to which the parties may be
entitled under the Agreement or at law or in equity.
Section 10.5. Independent Determination. From and after the First
-------------------------
Closing Date, all decisions on behalf of the Company as to payment of
indemnification pursuant hereto and otherwise regarding the Company's rights and
obligations pursuant to this Agreement and the Ancillary Agreements shall be
made by a committee of the board of directors consisting of all directors not
elected by the holders of the Preferred Stock voting as a separate class and a
decision of a majority of such directors shall be the decision of the committee.
Nothing contained in this Section 10.5 shall prevent any Indemnified Party from
receiving indemnification pursuant to some other source (such as, by way of
example, the bylaws of the Company in the event that such Indemnified Party is a
director of the Company and such director seeks indemnification due to
circumstances that do not pertain to an alleged breach of this Agreement), and
the determination as to whether indemnification pursuant to such other source is
available shall be made in accordance with the procedures applicable thereto.
Section 10.6. Brokers, etc. No brokerage fees shall be payable to
------------
any Person in connection with the transactions contemplated hereunder, other
than a fee to be payable to Xxxxxx Xxxx, LLC by the Company (in an amount to be
negotiated).
Section 10.7. Assignment. Neither this Agreement nor any of the
----------
rights or obligations hereunder may be assigned by the Company without the prior
written consent of the Purchaser, or by the Purchaser without the prior written
consent of the Company, except that the Purchaser may, without such consent,
assign its rights hereunder, in whole or in part, including, the right to
acquire the Preferred Stock and the Warrants hereunder, to one or more
affiliates of the Purchaser. Subject to the foregoing, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, and no other person shall have any right, benefit or
obligation hereunder.
Section 10.8. Notices. Unless otherwise provided herein, any
-------
notice, request, instruction or other document to be given hereunder by any
party to the other shall be in writing and delivered by hand-delivery,
registered first-class mail, telex, confirmed telecopy, or air courier
guaranteeing overnight delivery, as follows:
If to the Company:
52
The Fortress Group, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: J. Xxxxxxxx Xxxxxxx
with a copy to: Secretary
With an additional copy to:
Arent Fox Xxxxxxx Xxxxxxx & Xxxx
0000 Xxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx
If to the Purchaser:
Prometheus Homebuilders LLC
c/o Lazard Freres Real Estate Investors, LLC
Thirty Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxx
With a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: R. Xxxxxx Xxxxxxxxx
or to such other place and with such other copies as either party may designate
as to itself by written notice to the other.
All such notices, requests, instructions or other documents shall be
deemed to have been duly given; at the time delivered by hand, if personally
delivered; four Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed;
53
when receipt acknowledged by addressee, if by telecopier transmission; and on
the next Business Day if timely delivered to an air courier guaranteeing
overnight delivery.
Section 10.9. Choice of Law. This Agreement shall be construed,
-------------
interpreted and the rights of the parties determined in accordance with the
internal laws of the State of New York, without regard to the conflict of law
principles thereof, except with respect to matters of law concerning the
internal corporate affairs of any corporate entity which is a party to or the
subject of this Agreement, and as to those matters the law of the jurisdiction
under which the respective entity derives its powers shall govern.
Section 10.10. Entire Agreement; Amendments and Waivers. This
----------------------------------------
Agreement, including all schedules attached hereto (each, a "Schedule" and,
---------
collectively, the "Schedules") constitutes the entire agreement among the
---------
parties pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties, including the written summary of proposed terms between
the Company and the Purchaser. Capitalized terms used in the Schedules but not
defined therein shall have the respective meanings ascribed to such terms in
this Agreement. Any item disclosed in one Schedule shall be deemed to have been
disclosed in all other Schedules.
Section 10.11. Counterparts. This Agreement may be executed in one
------------
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
Section 10.12. Invalidity. In the event that any one or more of the
----------
provisions contained in this Agreement or in any other instrument referred to
herein, shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement or any other such instrument.
Section 10.13. Headings. The headings of the Articles and Sections
--------
herein are inserted for convenience of reference only and are not intended to be
a part of or to affect the meaning or interpretation of this Agreement.
Section 10.14. Limitation of Liability. In no event shall any
-----------------------
member, partner or representative of the Purchaser or of any partnership which
is a partner of the Purchaser or any partner of any such partnership, or any
direct or indirect stockholder, officer, director, partner, employee or any
other such person, be personally liable for any obligation of the Purchaser
under this Agreement. In no event shall any officer, director, employee or
shareholder of the Company be personally liable for any obligation of the
Company under this Agreement.
Section 10.15 Abstention from Voting. Neither the Purchaser nor
----------------------
any assignee of the Purchaser shall vote on the resolution to be proposed to
stockholders of the Company to authorize the issuance of the Securities.
54
Section 10.16. Mutual Agreement. The Company shall have the right
----------------
to issue a debt instrument in lieu of all or any portion of the Class AB
Preferred Stock to be issued hereunder, provided that such debt instrument
contains terms and conditions that are no less favorable to the Purchaser than
the terms and conditions of the Class ABI Preferred Stock (such debt to have a
maturity date of December 31, 2004). The parties hereby further agree that,
between the date hereof and the date of the Second Closing, they shall mutually
cooperate with a view to structuring the issuance of a portion of any debt
issued in lieu of Class ABI Preferred Stock through a limited liability company
Subsidiary formed by the Company. Notwithstanding the foregoing, nothing in this
Section 10.16 shall obligate the Purchaser to agree to any such structure.
Section 10.17. Apportionment of Stock Between Class ABI Preferred
--------------------------------------------------
Stock and Class ABII Preferred Stock. The parties will apportion the Class AB
------------------------------------
Preferred Stock to be issued between the Class ABI Preferred Stock and the Class
ABII Preferred Stock to ensure that the Purchaser has no more than 45% of the
total voting power of the Company on the date of issuance of such Class AB
Preferred Stock with respect to the election of directors to the Board of
Directors generally (other than directors elected exclusively by holders of
Preferred Stock), but so that the Company shall issue the maximum amount of
Class ABI Preferred Stock it is permitted to issue before issuing any Class ABII
Preferred Stock.
[Signature Page Follows]
55
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
THE FORTRESS GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxx, Xx.
-------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
-------------------------
Title: President
------------------------
PROMETHEUS HOMEBUILDERS LLC
By: LF Strategic Realty Investors II L.P.,
its member
By: Lazard Freres Real Estate Investors
L.L.C., its general partner
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------
Title: Chief Investment Officer
-------------------------
56
EXHIBIT A
FORM OF
CERTIFICATE OF DESIGNATIONS,
PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL AND OTHER SPECIAL
RIGHTS AND QUALIFICATIONS, LIMITATIONS
AND RESTRICTIONS THEREOF
OF
CLASS AA PREFERRED STOCK
OF
THE FORTRESS GROUP, INC.
EXHIBIT B
FORM OF
CERTIFICATE OF DESIGNATIONS,
PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL AND OTHER SPECIAL
RIGHTS AND QUALIFICATIONS, LIMITATIONS
AND RESTRICTIONS THEREOF
OF
CLASS ABI PREFERRED STOCK
OF
THE FORTRESS GROUP, INC.
EXHIBIT C
FORM OF
CERTIFICATE OF DESIGNATIONS,
PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL AND OTHER SPECIAL
RIGHTS AND QUALIFICATIONS, LIMITATIONS
AND RESTRICTIONS THEREOF
OF
CLASS ABII PREFERRED STOCK
OF
THE FORTRESS GROUP, INC.
EXHIBIT D
FORM OF
REGISTRATION RIGHTS AGREEMENT
EXHIBIT E
FORM OF
WARRANT AGREEMENT
EXHIBIT F
FORM OF
STOCKHOLDERS AGREEMENT
EXHIBIT G
EXECUTED
STOCKHOLDERS VOTING AGREEMENT
EXHIBIT H
FORM OF BYLAWS
AMENDMENTS
EXHIBIT I
FORM OF CERTIFICATE AMENDMENTS
EXHIBIT J
FORM OF BYLAWS AMENDMENTS
- SUBSIDIARIES
