EXHIBIT 7.4
THIRD CAPITAL, LLC
NINTH FLOOR
000 XXXXXX XXXXXX
XXXXXXXXX, XXXXXXXXX 00000
FAX: 000.000.0000
000.000.0000
OPTION TO PURCHASE 760,000 COMMON SHARES
OF
TIS MORTGAGE INVESTMENT COMPANY
This Agreement entered into on March 16, 1998, is executed by and between Third
Capital, LLC ("Third Capital") and Turkey Vulture Fund XIII, Ltd. (the "Fund")
regarding certain shares of stock the Fund owns in TIS Mortgage Investment
Company ("TIS" or the "Company").
NOW THEREFORE, in consideration of good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties agree as follows:
1. The Fund owns a minimum of 760,000 shares of common stock of TIS (the
"Shares").
2. The Fund hereby grants Third Capital the option to purchase the
Shares at any time prior to March 31, 1999. If this option is exercised prior
to August 1, 1998, the exercise price shall be equal to the greater of $2.00
per common share or the then "current market price". If this option is
exercised thereafter during the option term (as defined in paragraph 7 hereof),
the exercise price shall be equal to the greater of $2.25 per common share or
the then "current market price". Third Capital shall notify the Fund in
writing of its exercise of the option granted herein and payment for the Shares
shall be due in cash or wire transfer at closing. "Current market price" shall
mean the average of the last reported sale price of TIS common stock on the ten
trading days prior to the exercise of the option.
3. The Fund hereby agrees that it will not sell, gift or otherwise
transfer the Shares (or any rights related thereto) so long as the option
rights set forth above shall remain outstanding.
4. The Fund hereby agrees to execute the Irrevocable Proxy attached
hereto as Exhibit A, which grants Xxxxxxxxxxx X. Xxxxxxx the right to vote the
Shares for the election of Directors at the Company's next annual meeting.
5. Representations and Warranties of Third Capital.
A. Organization, Power and Good Standing. Third Capital is a
limited liability company duly organized, validly existing and in good standing
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under the laws of the State of Tennessee, and has all requisite power and
authority to carry on its business as now conducted.
B. Authority. Third Capital has all necessary power and authority,
corporate and otherwise, to make, execute and deliver this Agreement and all
other agreements and documents to be executed and delivered by it pursuant to
this Agreement; and Third Capital has taken all necessary actions required to
be taken to authorize it to execute and deliver this Agreement and such other
agreements, and to perform all of its obligations, undertakings and agreements
to be observed and performed by it under this Agreement. This Agreement has
been duly executed and delivered by Third Capital, and constitutes the valid
and binding agreement of Third Capital enforceable against Third Capital in
accordance with its terms.
C. No Violation. The execution and delivery of this Agreement and
the consummation of the transaction contemplated by this Agreement will not
constitute a violation of, or be in conflict with, or result in a cancellation
of, or constitute a default under: (i) any term or provision of the articles of
organization or operating agreement (or other organizational documents) of
Third Capital; (ii) any judgment, decree, order, regulation or rule of any
court or governmental authority; (iii) any statute or law; (iv) any contract,
agreement, indenture, lease or other commitment to which Third Capital is a
party or by which it is bound; or (v) cause any material change in the rights
or obligations of any party under any such contract, agreement, indenture,
lease or commitment.
D. Material Facts. Representatives of Third Capital have disclosed
to representatives of the Fund all material facts regarding the Company, and no
such disclosure contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein not misleading.
6. Representations and Warranties of the Fund.
A. Organization, Power and Good Standing. The Fund is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Ohio, and has all requisite power and authority to
carry on its business as now conducted.
B. Authority. The Fund has all necessary power and authority,
corporate and otherwise, to make, execute and deliver this Agreement and all
other agreements and documents to be executed and delivered by it pursuant to
this Agreement; and the Fund has taken all necessary actions required to be
taken to authorize it to execute and deliver this Agreement and such other
agreements, and to perform all of its obligations, undertakings and agreements
to be observed and performed by it under this Agreement. This Agreement has
been duly executed and delivered by the Fund, and constitutes the valid and
binding agreement of the Fund enforceable against the Fund in accordance with
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its terms.
C. No Violation. The execution and delivery of this Agreement and
the consummation of the transaction contemplated by this Agreement will not
constitute a violation of, or be in conflict with, or result in a cancellation
of, or constitute a default under: (i) any term or provision of the articles of
organization or operating agreement (or other organizational documents) of
Third Capital; (ii) any judgment, decree, order, regulation or rule of any
court or governmental authority; (iii) any statute or law; (iv) any contract,
agreement, indenture, lease or other commitment to which Third Capital is a
party or by which it is bound; or (v) cause any material change in the rights
or obligations of any party under any such contract, agreement, indenture,
lease or commitment.
7. This agreement shall expire on the earlier of: (i) March 31, 1999, or
(ii) 120 days following the Company's next annual meeting at which a minimum of
3 directors are elected to serve on the Company's Board of Directors; provided
that if by September 1, 1998, (i) Third Capital has not filed a Schedule 14A
regarding the election of such directors with the Securities and Exchange
Commission, (ii) Third Capital has not commenced legal proceedings to cause the
Company to hold a meeting for the election of directors, or (iii) as determined
by the Fund in its sole discretion, Third Capital has not taken substantial
steps to require the Company to hold a meeting for the election of such
directors, the term of this option shall expire automatically on September 1,
1998.
8. The parties agree that the normal rules of construction interpreting
documents against the drafter thereof shall not apply to this agreement since
both parties have been represented by legal counsel with respect to the
negotiation and drafting of this Agreement.
9. This Agreement will be binding upon and inure to the benefit of and
be enforceable by the respective heirs, legal representatives, successors and
permitted assigns of the parities hereto; provided, however, that none of the
rights or obligations of Third Capital may be assigned without the prior
written consent of the Fund, which consent may be withheld in the Fund's sole
discretion.
10. If any provision contained in this Agreement is invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of such provision in every other respect and of the remaining
provisions of the Agreement will not be in any way impaired.
11. This Agreement may be executed in two or more counterparts, each of
which will be deemed an original, but all of which together will constitute one
and the same instrument.
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12. This Agreement will be governed, construed and enforced in accordance
with the internal laws of the State of Ohio, excluding any choice of law rules
which may direct the application of the laws of another jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the
date first above written.
THIRD CAPITAL:
Third Capital, LLC
By:/s/ X.X. Xxxxxxx, Chief Manager
--------------------------------
X.X. Xxxxxxx, Chief Manager
FUND:
Turkey Vulture Fund XIII, Ltd.
By:/s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxx, Manager
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EXHIBIT A
IRREVOCABLE PROXY
The Turkey Vulture Fund XIII, Ltd., the undersigned shareholder of TIS Mortgage
Investment Company, a Maryland corporation (the "Company"), being the holder of
760,000 shares of common stock (the "Shares") of said Company, does hereby
appoint, coupled with an interest, Xxxxxxxxxxx X. Xxxxxxx of the City of
Nashville, State of Tennessee, or in his absence, Xxxxx X. Xxxxx, to be its
true and lawful proxy and attorney-in-fact, with full power of substitution and
revocation, for the limited purpose of voting as its proxy all of the Shares
for the election of individuals to serve as directors for the Company, at any
and all meetings, regular or special, of the stockholders of said Company or
any adjournments thereof which may be held during the stated period or any
action by written consent of shareholder in lieu of a meeting to elect
individuals to serve as directors of the Company, giving and granting as its
proxy all the power to the same extent and with the same effect as the
undersigned would possess if personally present at any meeting of the
stockholders of the Company. This irrevocable proxy shall commence on the date
hereof and end on the earlier of: (i) March 31, 1999, or (ii) 120 days
following the Company's next annual meeting at which a minimum of 3 directors
are elected to serve on the Company's Board of Directors; provided that if by
September 1, 1998, (i) Third Capital has not filed a Schedule 14A regarding the
election of such directors with the Securities and Exchange Commission, (ii)
Third Capital has not commenced legal proceedings to cause the Company to hold
a meeting for the election of directors, or (iii) as determined by the Fund in
its sole discretion, Third Capital has not taken substantial steps to require
the Company to hold a meeting for the election of such directors, the term of
this option shall expire automatically on September 1, 1998.
Dated: March 16, 1998. Turkey Vulture Fund XIII, Ltd.
By:/s/ Xxxxxxx X. Xxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxx, Manager
