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EXHIBIT 10.8
AMENDED AND RESTATED
SECURITY ESCROW AGREEMENT
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AMENDED AND RESTATED SECURITY ESCROW AGREEMENT
THIS AMENDED AND RESTATED ESCROW AGREEMENT (this "Agreement") made and
entered into as of May 15, 1998, among Xxxxxxx X. XxXxxxx and Xxxxxx X. Xxxxxx
(herein referred to individually as a "Security Holder" and collectively as the
"Security Holders"), Baron Capital Trust (the "Trust"), Baron Capital
Properties, L.P. (the "Partnership") and American Stock Transfer & Trust Company
(the "Escrow Agent").
WITNESSETH THAT:
A. Each Security Holder is owner of the number of units of limited
partnership interest ("Units") in the Partnership, an affiliate of the Trust,
listed opposite his name on Exhibit A attached hereto which he acquired in
exchange for his initial capital contribution to the Partnership and other
consideration.
B. The Trust has registered with the Securities and Exchange
Commission (the "Commission") 2,500,000 Common Shares of the Trust pursuant to a
Form SB-2 Registration Statement in connection with the proposed public offering
of such Common Shares for cash (the "Cash Offering"), and the Partnership will
apply for registration of 2,500,000 Units in the Partnership (which Units may be
exchanged for an equivalent number of Common Shares as described in the
Prospectus contained in the Form SB-2 Registration Statement), pursuant to a
Form S-4 Registration Statement in connection with the proposed public exchange
offering of Units (the "Exchange Offering"). As a condition of such
registrations, the Security Holders, the Escrow Agent, the Trust and the
Partnership agree to be bound by this Agreement.
C. Each Security Holder has deposited with the Escrow Agent a
certificate representing the number of Units listed opposite his name on Exhibit
A, and the Escrow Agent hereby acknowledges receipt thereof. Such Units,
together with any Common Shares of the Trust into which the Units may be
converted in accordance with this Agreement, are herein collectively referred to
as "Escrowed Shares."
NOW THEREFORE, the parties hereto agree as follows:
1. Deposit of Certificates. Simultaneously with the execution of this
Agreement, each Security Holder has deposited with the Escrow Agent, and the
Escrow Agent hereby acknowledges receipt of, a certificate representing the
Escrowed Shares owned by the respective Security Holder. Escrowed Shares
comprised of Units are exchangeable into an equivalent number of Common Shares
of the Trust in accordance with the terms of the Declaration of Trust of the
Trust (the "Declaration of Trust") and the Agreement of Limited Partnership of
the Partnership (the "Partnership Agreement"), as they may be amended from time
to time. The number of Units comprising the Escrowed Shares deposited with the
Escrow Agent was determined based upon the assumption that the Cash Offering and
Exchange Offering would each be fully subscribed, and is intended to evidence
the ownership by each Security Holder of nine and one-half percent (9-1/2%) of
the Common Shares outstanding after completion of the Cash Offering and exchange
by the Partnership of 2,500,000 of its Units for units of limited partnership
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interest in real estate limited partnerships (including any exchange completed
pursuant to the Exchange Offering), calculated on a fully diluted basis assuming
all then outstanding Units (other than those to be acquired by the Trust) have
been exchanged into an equivalent number of Common Shares. Copies of
certificates representing the Escrowed Shares are attached hereto as Exhibit B.
2. Term. The term of this Agreement and of the escrow provided herein
shall commence on the date that the Cash Offering is declared effective by the
Commission. The certificates evidencing the securities are to be deposited with
the Escrow Agent and are to be held until their release pursuant to paragraph 3
of this Agreement.
3. Release of Escrowed Shares.
3.1 Return of Excess Units and Common Shares. On May 14, 1999, (the
"Share Determination Date"), the Chief Financial Officer of the Partnership
shall certify to the Escrow Agent the number of Units and/or Common Shares
comprising the Escrowed Shares, as the case may be, which are in excess of the
number to which the Security Holders are entitled under the Subscription
Agreement dated as of February 3, 1998 among the Security Holders, the
Partnership and the Trust, and shall simultaneously deliver to the Escrow Agent
replacement certificates evidencing ownership by the Security Holders of the
proper number of Units and/or Common Shares. Upon receipt of such certification
and replacement certificates, the Escrow Agent shall return the certificates
representing the original Escrowed Shares to the Partnership and the replacement
certificates shall thereupon be deemed to represent the Escrowed Shares for all
purposes hereunder.
3.2 Release to the Security Holders. The Escrowed Shares owned by each
Security Holder shall be released to such Security Holder as set forth below,
and once released from escrow hereunder, Escrowed Shares shall no longer be
subject to the terms and conditions of this Agreement:
a. 25% of the Escrowed Shares shall be released from escrow on the
sixth, seventh, eighth, and ninth anniversary dates of the
effectiveness of the Cash Offering; or
b. 100% of the Escrowed Shares shall be released from escrow after
the Trust has had annual net earnings per share according to
generally accepted accounting principles ("GAAP") equal to at
least 5% of the public offering price (after taxes and excluding
extraordinary items) for any two consecutive fiscal years
following the date of effectiveness of the Cash Offering; or
c. 100% of the Escrowed Shares shall be released from escrow after
the Trust has had average annual net earnings per share according
to GAAP (after
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taxes and excluding extraordinary items) equal to at least 5% of
the public offering price, for any five consecutive fiscal years
following the date of effectiveness of the Cash Offering; or
d. 100% of the Escrowed Shares shall be released from escrow after
the Trust's Common Shares have traded on a national stock exchange
at a price equal to at least 175% of the initial public offering
price for at least 90 consecutive trading days following the first
anniversary of the date of effectiveness of the Cash Offering.
3.2.1 Documentation to Escrow Agent Regarding Release of Escrowed Shares
to Security Holders. A request for termination of the escrow, based on the
satisfaction of the conditions described in paragraphs 3.2.a, 3.2.b, 3.2.c or
3.2.d above, shall be forwarded by each Security Holder to the Escrow Agent. A
request for termination of the escrow based upon satisfaction of the conditions
described in paragraph 3.2.b or 3.2.c. shall be accompanied by an earnings per
share calculation audited and reported on by an independent certified public
accountant retained by the Trust. A request for termination of the escrow based
upon satisfaction of the conditions described in paragraph 3.2.d shall be
accompanied by evidence of the stock price conditions provided therein.
3.3. Terminated or Partial Offerings. The foregoing notwithstanding,
the Escrowed Shares will be released by the Escrow Agent:
a. If the Cash Offering and the Exchange Offering have been
terminated and no securities were sold or exchanged thereunder; or
b. If the Cash Offering is terminated without sale of the minimum
offering amount required to complete the offering and all proceeds
have been returned to investors in such offering.
4. Restriction on Transfer. The Escrowed Shares may be transferred by
will, or pursuant to the laws of descent and distribution, or through
appropriate legal proceedings, but in all cases the Escrowed Shares shall remain
in escrow and subject to the terms of this Agreement until released pursuant to
paragraph 3 above. Upon the death of the holder of any Escrowed Shares, the
Escrowed Shares of the deceased holder may be hypothecated, subject to all of
the terms of this Agreement, to the extent necessary to pay the expenses
(including, without limitation, tax liabilities) of the estate. The Escrowed
Shares may be transferred by gift to family members, provided that the Escrowed
Shares shall remain subject to the terms of this Agreement. The Escrowed Shares
may not be pledged to secure a debt except as noted above.
5. Voting Rights. The Security Holders shall be entitled to exercise
all voting rights in respect of the Escrowed Shares owned by him to which the
owners of non-escrowed Units or Common Shares, as the case may be, are entitled;
provided however that until the Share
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Determination Date, a Security Holder shall only be entitled to vote those Units
and/or Common Shares owned by him and held in escrow hereunder which, when added
to all non-escrowed Units and Common Shares owned by him, represent nine and
one-half percent (9-1/2%) of the Common Shares then issued and outstanding,
calculated on a fully diluted basis assuming all then outstanding Units (other
than those to be acquired by the Trust) have been exchanged into an equivalent
number of Common Shares.
6. Dividends and Distributions.
6.1 Payment to Escrow Agent. Any dividends paid on Common Shares
and/or distributions paid with respect to Units while they are held in escrow
hereunder shall be paid to the Escrow Agent by check or wire transfer by the
Trust or the Partnership, respectively. Until the Share Determination Date,
dividends and distributions shall only be paid with respect to those Escrowed
Shares which a Security Holder would be entitled to vote under paragraph 5
hereof. The Escrow Agent shall invest such dividends and distributions and
interest earned thereon in an interest-bearing account. Until the Escrowed
Shares are released to the Security Holders pursuant to paragraph 3 of this
Agreement, the Escrow Agent shall treat dividends and distributions paid on the
Escrowed Shares and interest earned thereon (less amounts thereof required under
paragraph 6.3 hereof to pay tax obligations of the Security Holders in respect
of Escrowed Shares owned by them and held in escrow hereunder) as assets of the
Trust or the Partnership, as the case may be, available for distribution under
the terms and conditions set forth in paragraph 10 below.
6.2 Release to the Security Holders with Escrowed Shares. Dividends
and distributions paid on the Escrowed Shares and interest earned thereon while
the Escrowed Shares are held in escrow thereunder (less amounts thereof required
under paragraph 6.3 hereof to pay tax obligations of the Security Holders in
respect of Escrowed Shares owned by them and held in escrow hereunder) shall be
disbursed to the Security Holders together with Escrowed Shares released from
the escrow pursuant to paragraph 3, in an amount proportionate to the number of
Escrowed Shares so released in relation to the number of Escrowed Shares held in
escrow hereunder immediately prior to such disbursement.
6.3 Payment of Tax Obligations on Dividends. At the written request of
the independent Trustees (identified on Exhibit D hereto, as it may be amended
from time to time), the Escrow Agent shall deliver a check or wire transfer to
each Security Holders each year out of the dividends and distributions paid on
the Escrowed Shares and interest earned thereon held in escrow hereunder, in an
amount equal to the tax due from such Security Holder on such dividends,
distributions and interest.
7. Stock Dividends or Splits. Stock dividends on, and shares
resulting from stock splits of, the Escrowed Shares shall be delivered to the
Escrow Agent and held pursuant to this Agreement. In the event of any stock
dividend, stock split or recapitalization of the Partnership or the Trust, any
rights or duties described in terms of a per share requirement in this Agreement
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shall be adjusted appropriately.
8. Additional Shares. Upon the exercise by a Security Holder of any
conversion rights, warrants or options to acquire additional Units or Common
Shares earned by reason of his ownership of Escrowed Shares under any agreement
now effective or coming into effect during the term of the escrow hereunder,
such additional Units or Common Shares received by the Security Holder shall
forthwith be deposited in escrow with the Escrow Agent and shall be subject to
the terms and conditions of this Agreement.
9. Right to Convert Units into Common Shares. Each Security Holder
shall have the right to convert Units which are subject to the escrow hereunder
into Common Shares at any time conversion is permitted under the Declaration of
Trust and the Partnership Agreement; provided, however, that until the Share
Determination Date occurs, only Units which a Security Holder would be entitled
to vote pursuant to paragraph 5 above may be so converted. Security Holders may
exercise their conversion rights by notifying the Escrow Agent of such
conversions and such conversion shall be effected immediately upon the Escrow
Agent's receipt of such notice. Upon each conversion and any partial release of
Escrowed Shares under this Agreement, the Escrow Agent shall immediately revise
Exhibit A to reflect the number of Common Shares and Units which remain subject
to this Agreement.
10. Dissolution Preference. Subject to the limitations set forth
below, each Security Holder agrees in the event of dissolution, liquidation,
merger, consolidation, sale of assets, exchange, or any transaction or
proceeding ( a "Capital Event") that results in the distribution or sale of all
or substantially all of the assets of the Partnership or the Trust, to defer
receipt of and subordinate the economic benefits to which he would otherwise be
entitled by reason of his ownership of the Units and Common Shares held in
escrow hereunder on the effective date of such an event, in favor of any
original purchasers in the Cash Offering or the Exchange Offering which have
remained the holders of Common Shares or Units, until such original purchasers
have received, or have had irrevocably set aside for them, cash, securities, or
assets of any other kind (including, without limitation, any dividends and/or
distributions of any of the foregoing paid to the original investors prior to
the capital event) with an aggregate value at least equal to 100% of their
initial public offering price per Common Share or Unit, adjusted for stock
splits and stock dividends. Thereafter, the Security Holders shall participate
on a pro rata basis. No transferee from an original purchaser other than by
reason of descent shall have benefit of this provision. No original purchaser of
Units or Common Shares in the Exchange Offering or the Cash Offering, as the
case may be, shall have benefit of this provision if such purchaser voted in
favor of the Capital Event at a meeting held for such purpose, unless the
Security Holders also voted in favor of such Capital Event. The Escrow Agent
shall act in accordance with the written direction of the Independent Trustees
(whose determination shall be conclusive) in respect of the holders of Units and
Common Shares which shall be entitled to the benefits of this Section 10 and the
amount of any such benefits.
11. Reliance by Escrow Agent. The Escrow Agent may conclusively rely
on, and shall
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be protected, when its acts in good faith upon, any statement, certificate,
notice, request, consent, order or other document which it believes to be
genuine and signed by the proper party. The Escrow Agent shall have no duty or
liability to verify any such statement, certificate, notice, request, consent,
order or other document and its sole responsibility shall be to act only as
expressly set forth in this Agreement. The Escrow Agent shall be under no
obligation to institute or defend any action, suit or proceeding in connection
with this Agreement unless it is indemnified to its reasonable satisfaction. The
Escrow Agent may consult counsel with respect to any question arising under this
Agreement and the Escrow Agent shall not be liable for any action taken, or
omitted, in good faith upon advice of counsel. In performing any of its duties
hereunder, the Escrow Agent shall not incur any liability to anyone for any
damages, losses or expenses except those which arise out of the Escrow Agent's
willful default or negligence, and it shall accordingly not incur any such
liability with respect to: (i) any action taken or omitted in good faith upon
advice of its counsel or counsel of the Trust given with respect to any
questions relating to the duties and responsibility of the Escrow Agent under
this Agreement, or (ii) any action taken or omitted in reliance upon any
instrument, including written advice provided for herein, not only as to its due
execution and the validity and effectiveness of its provisions, but also as to
the truth and accuracy of any information contained therein, which the Escrow
Agent shall in good faith believe to be genuine, to have been signed or
presented by a proper person or persons, and to conform with the provisions of
this Agreement. All Escrowed Shares and funds held pursuant to this Agreement
shall constitute trust property. The Escrow Agent shall not be liable for any
interest on the Escrowed Shares.
12. Compensation to Escrow Agent. The Escrow Agent shall be entitled
to receive from the Trust reasonable compensation for its services as set forth
in Exhibit B attached hereto. In the event that the Escrow Agent renders any
additional services not provided for herein, or if any controversy arises
hereunder, or if the Escrow Agent is made a party to, or intervenes in any
action, suit or proceeding pertaining to this Agreement, it shall be entitled to
receive from the Security Holders or at the option of the Escrow Agent, the
Trust, reasonable compensation for such additional services.
13. Qualification and Independence of Escrow Agent. The Trust and
each of the Security Holders hereby represent that a complete list of its
respective officers and members of the Board of the Board is attached hereto as
Exhibit D. Based thereon, the Escrow Agent hereby represents and warrants that
it is not affiliated with the Trust, the Security Holders or any of their
respective officers or directors.
14. Indemnification. The Trust and each Security Holder agrees to hold
the Escrow Agent harmless from, and indemnify the Escrow Agent for, any and all
costs of investigation or claims, costs, expenses, reasonable attorney fees or
other liabilities or disbursements arising out of any administrative
investigation or proceeding or any litigation, commenced or threatened, relating
to this Agreement, including without limitation, the implementation of this
Agreement, the distribution of stock or funds, the investment of funds, the
interpretation of this Agreement or similar matters, provided that the Escrow
Agent shall not be indemnified for any costs of
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investigation or claims, costs, expenses, attorney fees or other liability
arising from its bad faith or negligence or that of any of its employees,
officers, directors or agents; and further provided that the Escrow Agent shall
look first to the Trust, its assets, and the assets subject to escrow, before
seeking recourse under this indemnity against the Security Holders.
15. Scope. This Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective heirs, successors and
assigns.
16. Termination. Except for the indemnification provisions of
paragraph 14 above, which shall survive in any event, this Agreement shall
terminate in its entirety when all the Escrowed Shares have been released as
provided in paragraph 3 above.
17. Substitute Escrow Agent. The Escrow Agent may, upon not less than
60 days prior written notice to the Trust and the Security Holders, resign as
the Escrow Agent. The Trust and the Security Holders shall, before the effective
date of the Escrow Agent's resignation, mutually agree upon and appoint a
successor Escrow Agent. If the Trust and the Security Holders fail to agree upon
a successor Escrow Agent at least 10 days prior to the date of resignation, an
impasse shall be deemed to exist, at which time the Independent Trustees shall
have the right to select the successor Escrow Agent. Pending resolution of the
impasse and selection of the successor Escrow Agent, the Escrow Agent then
serving under this Agreement shall continue to serve as the Escrow Agent, but
shall have no liability for its actions other than for gross negligence or acts
amounting to criminal misconduct.
18. Notice of Non-liability. Under the Delaware Business Trust Act and
Sections 3.3 and 3.4 of the Declaration of Trust, neither the Shareholders, the
Trustees nor any other members of the Board of the Trust shall be personally
liable hereunder, and the Escrow Agent expressly agrees to look solely to the
Trust's property for the satisfaction of any claims hereunder against the Trust
or the Security Holders.
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IN WITNESS WHEREOF, the Security Holders, the Trust and the Escrow Agent
have entered into this Agreement as of the date first above written, in multiple
counterparts, each of which shall be considered an original.
SECURITY HOLDERS:
/s/ Xxxxxxx X. XxXxxxx
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Xxxxxxx x. XxXxxxx
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
TRUST:
BARON CAPITAL TRUST
By: /s/ Xxxxxxx X. XxXxxxx
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Xxxxxxx X. XxXxxxx
Chief Executive Officer
PARTNERSHIP:
BARON CAPITAL PROPERTIES, L.P.
By: /s/ Xxxxxxx X. XxXxxxx
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Xxxxxxx X. XxXxxxx
Chief Executive Officer
ESCROW AGENT:
AMERICAN STOCK TRANSFER
& TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Vice President
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EXHIBIT A
Number of Units
Name of Security Holder Originally Placed in Escrow*
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Xxxxxxx X. XxXxxxx 601,080
Xxxxxx X. Xxxxxx 601,080
*The number of Units originally placed in escrow is based upon the assumed full
subscription of the Cash Offering and exchange by the Partnership of 2,500,000
Units for units of limited partnership interest in real estate limited
partnerships completed by May 14, 1999. On that date, a calculation will be made
as to whether the Security Holders received excess Escrowed Shares, and if so,
such excess Escrowed Shares will be released from escrow and canceled. Pending
this determination, voting rights as well as distribution payments will be
limited as set forth in this Agreement.
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EXHIBIT B
ESCROWED SHARE CERTIFICATES
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EXHIBIT C
COMPENSATION OF ESCROW AGENT
One-time only fee of $ 1,000.00.
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EXHIBIT D
LIST OF OFFICERS AND MEMBERS OF THE BOARD OF THE TRUST
Name of Officer and
Member of the Board Position
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Xxxxxxx X. XxXxxxx Chief Executive Officer
Xxxxxx X. Xxxxxx Chief Operating Officer
Baron Advisors, Inc. Member of the Board
Xxxxx X. Xxxxxx Member of the Board (Independent Trustee)
Xxxxx X. Xxxxxxx Member of the Board (Independent Trustee)
