AGREEMENT AND PLAN OF DISTRIBUTION
BY AND BETWEEN
INSIGNIA FINANCIAL GROUP, INC.
and
INSIGNIA/ESG HOLDINGS, INC.
Dated as of September 16, 1998
TABLE OF CONTENTS
ARTICLE I...............................................DEFINITIONS 2
1.1...............................................Definitions 2
ARTICLE II.........................................THE DISTRIBUTION 10
2.1.............................Mechanics of the Distribution 10
2.2................................Timing of the Distribution 10
ARTICLE III.............................................TAX MATTERS 10
3.1.........Assumption and Indemnification of Tax Liabilities 10
3.2............................Failure of the Merger to Occur 11
3.3................................Indemnification Procedures 11
ARTICLE IV............TRANSFER OF ASSETS AND PAYMENT OF LIABILITIES 12
4.1............................Transfer of Assets to Holdings 12
4.2....................................Payment of Liabilities 12
ARTICLE V..........................................OTHER AGREEMENTS 12
5.1.........Use of "Insignia," "ESG," or "Insignia/ESG" Names 12
5.2..............Release of Holdings by the Company's Lenders 13
5.3.........................................Books and Records 13
5.4.....................................Access to Information 14
5.5......................................Retention of Records 14
5.6...........................................Confidentiality 14
5.7...........................................Listing on NYSE 15
5.8........................................Further Assurances 15
5.9.............Treatment of Certain Participation Interests 15
5.10..............................................Cooperation 16
5.11..............Assumption of Certain Contracts by Holdings 16
5.12 Payments With Respect to Consulting Agreements;
Restricted Stock; Stock Options........................ 16
5.13........................................Conflicting Terms 17
5.14..................................Performance of Services 17
ARTICLE VI.............................INDEMNIFICATION AND RELEASES 17
6.1............................................Mutual Release 17
6.2............................Indemnification by the Company 18
6.3...............................Indemnification by Holdings 18
6.4..............Insurance Proceeds; Tax Benefits; Mitigation 19
6.5.............................Procedure for Indemnification 19
6.6.......................................Remedies Cumulative 21
6.7...................................Survival of Indemnities 21
ARTICLE VII........................................EMPLOYEE MATTERS 22
7.1.................................................Employees 22
7.2.........................................Employee Benefits 22
7.3.........................Other Liabilities and Obligations 24
(i)
ARTICLE VIII.............................................CONDITIONS 24
8.1......................................Stockholder Approval 24
8.2....................................Opinion of Tax Counsel 24
8.3......................................Certain Transactions 25
8.4..........................................Adequate Surplus 25
8.5....................................Release of Obligations 25
8.6..............................................Bank Consent 25
ARTICLE IX................................MISCELLANEOUS AND GENERAL 25
9.1...............................................Termination 25
9.2.....................................Effect of Termination 25
9.3.................................Modification or Amendment 25
9.4..........................................Waiver; Remedies 25
9.5..............................................Counterparts 26
9.6.............................................Governing Law 26
9.7...................................................Notices 26
9.8..................................................Captions 27
9.9 ...............................No Third Party Beneficiary 27
9.10...................................Successors and Assigns 27
9.11......................................Certain Obligations 28
9.12.....................................Specific Performance 28
9.13.............................................Severability 28
9.14.............................................Jurisdiction 28
SCHEDULE 3.1................................................. 30
SCHEDULE 4.1................................................. 31
(ii)
AGREEMENT AND PLAN OF DISTRIBUTION, dated as of September 16, 1998
("Agreement"), between Insignia Financial Group, Inc., a Delaware corporation
(the "Company"), and Insignia/ESG Holdings, Inc., a Delaware corporation and an
indirect wholly owned subsidiary of the Company ("Holdings").
WHEREAS, the Company, Holdings, Apartment Investment and Management
Company, a Maryland corporation ("AIMCO"), and AIMCO Properties, L.P., a
Delaware limited partnership and a subsidiary of AIMCO ("AIMCO Properties"),
have entered into an Amended and Restated Agreement and Plan of Merger, dated
as of May 26, 1998 (the "Merger Agreement"), providing for the Merger (as
defined in the Merger Agreement) of the Company with and into AIMCO, with AIMCO
as the surviving corporation;
WHEREAS, the Boards of Directors of the Company and Holdings have approved
this Agreement, which is being entered into prior to the Effective Time (as
defined in Section 1.3 of the Merger Agreement), pursuant to which the
Distribution (as defined below) will be consummated;
WHEREAS, as soon as practicable after the Company Meeting (as hereinafter
defined), subject to the satisfaction or waiver of the conditions set forth in
Article VIII of this Agreement, the Company will distribute (the
"Distribution") to each holder of record of shares of Class A Common Stock, par
value $.01 per share, of the Company ("Company Common Stock"), a number of
shares of Common Stock, par value $.01 per share, of Holdings ("Holdings Common
Stock") equal to two-thirds of the number of shares of Company Common Stock
held by such holder;
WHEREAS, the purpose of the Distribution is to allow the management of
Holdings and its subsidiaries to focus exclusively on the operation and growth
of the Holdings Business (as defined below), and to provide Holdings with
greater access to the capital markets to develop its commercial real estate
operations, to facilitate future acquisitions of other commercial real estate
operations and to make Holdings better able to attract and retain top quality
professionals in its commercial real estate operations, as well as to make
possible the Merger by divesting the Company of all businesses and operations
(other than the Retained Business (as defined below)) conducted by the Company
and its Subsidiaries (as defined below) which AIMCO is unwilling to acquire;
WHEREAS, the Company and Holdings wish to set forth and provide for
certain agreements between the Company and Holdings in consideration of the
separation of their ownership; and
WHEREAS, it is the intention of the parties to this Agreement that the
Distribution shall qualify as a transaction described in Section 355 of the
Internal Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the premises and the respective
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
I.1 Definitions. As used in this Agreement, the following terms shall have
the following respective meanings (capitalized terms used but not defined
herein shall have the respective meanings ascribed to them in the Merger
Agreement):
"Additional Interests" shall have the meaning set forth in Section
5.9(c) hereto.
"Affiliate" of any Person shall mean another Person that directly or
indirectly through one or more intermediaries, controls, is controlled by or is
under common control with, such first Person; provided, however, that for the
purposes of this Agreement from and after the Time of Distribution, no Retained
Company shall be deemed to be an Affiliate of any Holdings Company, and no
Holdings Company shall be deemed to be an Affiliate of any Retained Company. The
Affiliates of Holdings also include the Commercial Joint Venture Entities.
"Agreement" shall have the meaning set forth in the Preamble.
"AIMCO" shall have the meaning set forth in the Recitals hereto.
"AIMCO Properties" shall have the meaning set forth in the Recitals
hereto.
"Closing Date" shall have the meaning set forth in Section 3.1 of the
Merger Agreement.
"Code" shall have the meaning set forth in the Recitals hereto.
"Commercial Joint Venture Entities" shall mean the following entities:
Brickyard Investors, L.P., Brookhollow Associates, L.P., Courtyard Plaza
Associates, L.P., Glades Plaza, L.P., Hiawassee Oak Partners, L.P., Nashpike
Partners, L.P., Sleepy Lake Partners, L.P., Xxxxxxx Partners, L.P., Xxxxxxx
Investors Associates, LLC, Northpoint Partners, L.P., Mockingbird Associates,
L.P., 000 Xxxxxxxx Xxxxxx Associates, Fresh Xxxxxxx Development, LLC, W/9FIG
Realty, L.L.C., Dallas RPFIV Xxxxxxxx Centre Associates Limited Partnership, St.
Louis RPFIV Gateway One Associates Limited Partnership, Santa Xxxx L.L.C. and
any other entities owning commercial or non-residential real estate assets or
interests therein, or entities owning residential real estate assets related to
the New York Residential Business (as that term is defined in Section 4.1(i) of
the Merger Agreement) other than those in which a subsidiary of Insignia
Properties Trust, a Maryland real estate investment trust, serves as a general
partner, whether now existing or hereafter formed.
"Company" shall have the meaning set forth in the Preamble.
"Company 401(k) Plan" shall have the meaning set forth in Section
7.2(b) hereof.
"Company Common Stock" shall have the meaning set forth in the
Recitals hereto.
"Company Disclosure Letter" shall mean that certain letter dated March
17, 1998 from the Company to AIMCO annexed to and deemed part of the Merger
Agreement.
"Company Flex Plan" shall have the meaning set forth in Section 7.2(c)
hereof.
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"Company Indemnifiable Losses" shall have the meaning set forth in
Section 6.3 hereof.
"Company Indemnitees" shall have the meaning set forth in Section 6.3
hereof.
"Company LTD Plan" shall have the meaning set forth in Section 7.2(c)
hereof.
"Company Meeting" shall mean the special meeting of Company
stockholders at which the stockholders will be asked to approve the Distribution
and the Merger Agreement.
"Company Restoration Plan" shall have the meaning set forth in Section
7.2(b) hereof.
"Company Stock Plans" shall mean the Insignia Financial Group, Inc.
Amended and Restated 1992 Stock Incentive Plan, as amended, and the Insignia
Financial Group, Inc. 1995 Non-Employee Director Stock Option Plan.
"Company VEBA" shall have the meaning set forth in Section 7.2(c)
hereof.
"Company Welfare Plans" shall have the meaning set forth in Section
7.2(c) hereof.
"Consulting Agreements" shall mean the agreements listed in Schedule
5.12(a) hereto.
"Contingent Incentive Award" shall have the meaning set forth in the
Incentive Award Letters.
"Contract" shall mean any note, bond, mortgage, indenture, lease,
contract, agreement, obligation, understanding, commitment or other similar
arrangement, whether written or oral.
"Covered Person" shall have the meaning set forth in Section 2.1 of
the Merger Agreement.
"Credit Agreement" shall have the meaning set forth in Section 5.2
hereof.
"DGCL" shall mean the General Corporation Law of the State of
Delaware.
"Distribution" shall have the meaning set forth in the Recitals
hereto.
"Effective Time" shall have the meaning set forth in Section 1.3 of
the Merger Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Existing 401(k) Plan" shall have the meaning set forth in Section
7.2(b) hereof.
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"Existing LTD Plan" shall have the meaning set forth in Section 7.2(c)
hereof.
"Existing Restoration Plan" shall have the meaning set forth in
Section 7.2(b) hereof.
"Existing Welfare Plans" shall have the meaning set forth in Section
7.2(c) hereof.
"Flex Plan" shall have the meaning set forth in Section 7.2(c) hereof.
"Former Employees" shall have the meaning set forth in Section 7.12(a)
of the Merger Agreement.
"Holdings" shall have the meaning set forth in the Preamble.
"Holdings 40l(k) Plan" shall have the meaning set forth in Section
7.2(b) hereof.
"Holdings Assets" shall have the meaning set forth in Section 4.1
hereof.
"Holdings Businesses" shall mean all of the businesses conducted at or
at any time prior to the Distribution by the Company or any of its Subsidiaries,
excluding the Retained Business.
"Holdings Common Stock" shall have the meaning set forth in the
Recitals hereto.
"Holdings Companies" shall mean Holdings and its Subsidiaries
(determined after giving effect to the transactions contemplated by Article IV
of this Agreement).
"Holdings Entities" shall have the meaning set forth in Section 4.1
hereof.
"Holdings Employees" shall mean all current and former employees of
the Company and its Subsidiaries other than the Retained Employees.
"Holdings Flex Plan" shall have the meaning set forth in Section
7.2(c) hereof.
"Holdings Indemnifiable Losses" shall have the meaning set forth in
Section 6.2 hereof.
"Holdings Indemnities" shall have the meaning set forth in Section 6.2
hereof.
"Holdings Liabilities" shall mean (i) all Liabilities or portions of
Liabilities arising primarily out of or in connection with the Holdings Assets
or the Holdings Businesses; (ii) all Liabilities under Contracts included in the
Holdings Assets, whether such Liabilities arise before, upon or after the
transactions contemplated by this Agreement and including any Liabilities under
such Contracts resulting from the consummation of the transactions contemplated
by this Agreement (including actions, claims or proceedings relating thereto);
(iii) all Liabilities of Holdings and its Subsidiaries pursuant to this
Agreement, the Merger Agreement, the Indemnification Agreement or any of the
Transaction Documents; and (iv) all Liabilities for payment of outstanding
drafts and checks of Holdings and its Subsidiaries to the extent attributable to
the Holdings Assets and the Holdings Businesses existing as of the Time of
Distribution.
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"Holdings LTD Plan" shall have the meaning set forth in Section 7.2(c)
hereof.
"Holdings Restoration Plan" shall have the meaning set forth in
Section 7.2(b) hereof.
"Holdings Vacation Obligation" shall have the meaning set forth in
Section 7.2(a) hereof.
"Holdings VEBA" shall have the meaning set forth in Section 7.2(c)
hereof.
"Holdings Welfare Plans" shall have the meaning set forth in Section
7.2(c) hereof.
"Incentive Award Letters" shall have the meaning set forth in Section
5.9(b) hereof.
"Indemnifiable Losses" shall have the meaning set forth in Section 6.3
hereof.
"Indemnification Agreement" shall mean that certain Amended and
Restated Indemnification Agreement dated as of May 26, 1998 by and between AIMCO
and Holdings, as the same may be amended and supplemented from time to time.
"Indemnifying Party" shall have the meaning set forth in Section 6.4
hereof.
"Indemnitee" shall have the meaning set forth in Section 6.4 hereof.
"Information" of a party shall mean any and all information that such
party or any of its Representatives furnish or have furnished to the receiving
party or any of its Representatives whether furnished orally or in writing or by
any other means or gathered by inspection and regardless of whether the same is
specifically marked or designated as "confidential" or "proprietary," together
with any and all notes, memoranda, analyses, compilations, studies or other
documents (whether in hard copy or electronic media) prepared by the receiving
party of any of its Representatives which contain or otherwise reflect such
Information, together with any and all copies, extracts or other reproductions
of any of the same; provided, however, that for the purposes hereof all
information relating to the Retained Companies and the Retained Business in the
possession of any Holdings Company at the Time of Distribution shall be deemed
to have been furnished by the Retained Companies and all information relating to
the Holdings Companies and the Holdings Businesses in the possession of any
Retained Company at the Time of Distribution shall be deemed to have been
furnished by the Holdings Companies; and further provided that the term
"Information" does not include information that:
(a) is or becomes generally available to the public
through no wrongful act of the receiving party or its
Representatives;
(b) is or becomes available to the receiving party on
a non-confidential basis from a source other than the
providing party or its Representatives, provided that such
source is not
5
known by the receiving party to be subject to a
confidentiality agreement with the providing party; or
(c) has been independently acquired or developed by
the receiving party without violation of any of the
obligations of the receiving party or its Representatives
under this Agreement.
"IRS" shall mean the United States Internal Revenue Service.
"Lenders" shall have the meaning set forth in Section 5.2 hereof.
"Liabilities" shall mean any and all debts, liabilities, commitments
and obligations, whether fixed, contingent or absolute, matured or unmatured,
liquidated or unliquidated, accrued or not accrued, known or unknown, whenever
or however arising and whether or not the same would be required by generally
accepted accounting principles to be reflected in financial statements or
disclosed in the notes thereto.
"Merger" shall have the meaning set forth in the recitals to the
Merger Agreement.
"Merger Agreement" shall have the meaning set forth in the Recitals
hereto.
"Participation Interests" shall mean the interests of Holdings in or
with respect to Proceeds from or arising out of any investment by the Company or
any Affiliates thereof in the Residential Joint Venture Entities listed below
and in the REMIC, as set forth below:
Entity Participation Interest
------ ----------------------
REMIC 30% of Proceeds
Southwest Associates, L.P. 35% of Proceeds
Western Hills Associates, LLC 40% of Proceeds
Cobble Creek Associates LLC 40% of Proceeds
Chimney Ridge Associates 40% of Proceeds
Bennington Square Associates LP 40% of Proceeds
Willow Park Associates 50% of Proceeds
Dallas Xxxx Associates, L.P. 50% of Proceeds
Watermans Crossing Associates, L.P. 50% of Proceeds
Louisville Apartments Limited Partnership 50% of Proceeds
"Person" shall mean any natural person, corporation, general or
limited partnership, limited liability company, joint venture, trust,
association or entity of any kind.
"Proceeds" means the proceeds actually received by the Company or any
of its Affiliates derived from or arising out of its investment in (i) each
Residential Joint Venture Entity, and (ii) the REMIC, in each case after the
Company or such Affiliate has received 100% of its investment plus a return
thereon equal to 10% per annum.
6
"NYSE" shall mean The New York Stock Exchange, Inc.
"Record Date" shall mean the date designated by or pursuant to the
authorization of the Board of Directors of the Company for the purpose of
determining the stockholders of the Company entitled to participate in the
Distribution.
"REMIC" shall mean the obligations known as Structured Asset
Securities Corporation Trust I Collateralized Mortgage Obligation Series
1992-MI, Class D
"Representatives" of a party shall mean such party's officers,
directors, employees, accountants, counsel, investment bankers, financial
advisors, consultants and other representatives.
"Residential Joint Venture Entities" shall mean the following
partnerships and limited liability companies: Southwest Associates L.P., Western
Hills Associates LLC, Cobble Creek Associates LLC, Chimney Ridge Associates,
Bennington Square Associates LP, Willow Park Associates, Dallas Xxxx Associates,
L.P., Watermans Crossing Associates, L.P., and Louisville Apartments Limited
Partnership.
"Retained Assets" shall mean the assets relating to the Company's
existing residential multifamily property management and ownership and
partnership administration businesses but excluding the entities and assets
listed in Schedule 4.1 hereto.
"Retained Business" shall mean the Company's existing residential
multifamily property management and ownership and partnership administration
businesses, including related assets and liabilities but excluding the entities
and assets listed in Schedule 4.1 hereto.
"Retained Companies" shall mean the Company and its Subsidiaries,
other than Holdings and its Subsidiaries.
"Retained Employees" shall mean those Persons who are employees of the
Retained Companies immediately after the Time of Distribution.
"Retained Liabilities" shall mean (i) all Liabilities or portions of
Liabilities arising primarily out of or in connection with the Retained Assets
or the Retained Business; (ii) all Liabilities under Contracts included in the
Retained Assets, whether such Liabilities arise before, upon or after the
transactions contemplated by this Agreement and including any Liabilities under
such Contracts resulting from the consummation of the transactions contemplated
by this Agreement (including actions, claims or proceedings relating thereto);
(iii) all Liabilities of the Company and its Subsidiaries (other than Holdings
and its Subsidiaries) pursuant to this Agreement, the Merger Agreement, the
Indemnification Agreement and the Transaction Documents; and (iv) all
Liabilities for the payment of outstanding drafts and checks of the Company and
its Subsidiaries to the extent attributable to the Retained Assets or the
Retained Business existing as of the Time of Distribution.
"SEC" shall mean the United States Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
7
"Subsidiary" shall mean, with respect to any Person, any corporation
or other organization, whether incorporated or unincorporated, of which (i) such
Person or any other Subsidiary of such Person is a general partner or (ii) at
least 50% of the securities or other interests having by their terms ordinary
voting power to elect a majority of the board of directors or others performing
similar functions with respect to such corporation or other organization or at
least 50% of the value of the outstanding equity is directly or indirectly owned
or controlled by such Person or by any one or more of its Subsidiaries, or by
such Person and one or more of its Subsidiaries. The Subsidiaries of Holdings
include the Commercial Joint Venture Entities but do not include the Residential
Joint Venture Entities.
"Taxes" shall mean any federal, state, county, local or foreign taxes,
charges, fees, levies or other assessments, including all net income, gross
income, sales and use, ad valorem, transfer, gains, profits, excise, franchise,
real and personal property, gross receipt, capital stock, share, production,
business and occupation, disability, employment, payroll, license, estimated,
stamp, custom duties, severance or withholding taxes or charges imposed by any
governmental entity, and includes any interest and penalties (civil or criminal)
on or additions to any such taxes.
"Tax Indemnifying Party" shall have the meaning set forth in Section
3.3(a) hereof.
"Tax Indemnitee" shall have the meaning set forth in Section 3.3(a)
hereof.
"Tax Return" shall mean any report, return or other information
required to be supplied to a governmental entity with respect to Taxes.
"Technical Services Agreement" shall have the meaning set forth in
Section 5.14 hereof.
"Time of Distribution" shall mean the time as of which the
Distribution is effective.
"Third Party Claim" shall have the meaning set forth in Section 6.5
hereof.
"Trade Marks" shall have the meaning set forth in Section 5.1(b)
hereof.
"Transaction Documents" shall have the meaning set forth in Section
5.8 hereof.
"Transfer Agent" shall mean First Union National Bank, the transfer
agent for the Company Common Stock.
"VEBA" shall have the meaning set forth in Section 7.2(c) hereof.
8
ARTICLE II
THE DISTRIBUTION
II.1 Mechanics of the Distribution. The Distribution shall be effected by
the distribution, to each holder of record of shares of Company Common Stock as
of the Record Date, of certificates representing the number of shares of
Holdings Common Stock equal to two-thirds of the number of shares of Company
Common Stock held by such holder; provided, however, that no fractional shares
of Holdings Common Stock shall be issued or delivered. In the event there are
holders of Company Common Stock holding of record on the Record Date a number
of shares of Company Common Stock not wholly divisible by three, the Transfer
Agent shall distribute certificates representing shares of Holdings Common
Stock to such holders on the basis of the next number of shares of Company
Common Stock held below the actual number of shares held which is wholly
divisible by three, multiplied by two. The Transfer Agent shall aggregate all
shares of Holdings Common Stock that would be distributable but for the proviso
to the first sentence of this Section 2.1, shall sell such shares in the public
market as soon as practicable after the Time of Distribution and shall
distribute the proceeds of the sale of such shares pro rata among the holders
of record of Company Common Stock holding such numbers of shares of Company
Common Stock not wholly divisible by three.
II.2 Timing of the Distribution. The Board of Directors of the Company
shall formally declare the Distribution and shall authorize the Company to
effect the Distribution following the approval of the Distribution by the
stockholders of the Company and prior to the Closing Date, subject to the
satisfaction or waiver of the conditions set forth in Article VIII of this
Agreement, by delivery of certificates representing shares of Holdings Common
Stock to the Transfer Agent for delivery to the holders entitled thereto. The
Distribution shall be deemed to be effective upon notification by the Company
to the Transfer Agent that the Distribution has been effected and that the
Transfer Agent is authorized to proceed with the distribution of certificates
representing shares of Holdings Common Stock.
ARTICLE III
TAX MATTERS
III.1 Assumption and Indemnification of Tax Liabilities. Except as
provided in the attached Schedule 3.1, and except as otherwise specifically
provided in the Merger Agreement or the Indemnification Agreement, the
respective Tax liabilities of the Company and its Subsidiaries (other than
Holdings and its Subsidiaries) and of Holdings and its Subsidiaries, whether
arising before, at or after the Time of Distribution, will continue to be the
Tax liabilities of each such party, and each party hereto agrees to save,
indemnify, defend and hold harmless the other, its Subsidiaries and each of
their respective directors, officers, employees, agents, successors and assigns
from and against all such Tax liabilities.
9
III.2 Failure of the Merger to Occur. In the event the Merger does not
occur, Holdings agrees to save, indemnify, defend and hold harmless the Company
and each of its Subsidiaries and their successors and assigns from and against
any Taxes that arise under Sections 355(e), 355(c)(2) and 361(c)(2) of the Code
and corresponding state or local income and franchise Taxes as a result or on
account of (i) any plan (or series of transactions) of Holdings pursuant to
which one or more persons acquire, directly or indirectly, stock representing a
50% or greater interest in Holdings or (ii) any action of Holdings or any of
its Subsidiaries after the Time of Distribution that is the principal cause of
the Distribution not qualifying as a reorganization and distribution under
Sections 368(a)(1)(D) and 355 of the Code.
III.3 Indemnification Procedures.
(a) Any claim for indemnification under this Article III shall be
made by written notice from the party seeking to be indemnified (the "Tax
Indemnitee") to the party from which indemnification is sought (the "Tax
Indemnifying Party") in the same manner as set forth in Section 5 of the
Indemnification Agreement. Except as otherwise provided in the
Indemnification Agreement, if a Tax Indemnitee becomes aware during an
examination of a Tax Return that the tax authority conducting the
examination is considering asserting a Tax subject to indemnification, the
Tax Indemnitee will (i) promptly notify the Tax Indemnifying Party of this
fact, (ii) to the extent reasonably practicable, segregate the issue from
any other issues being examined, (iii) permit the Tax Indemnifying Party
to control the Tax examination insofar as it relates to that issue and any
administrative or judicial appeals relating to the issue (including
whether to settle the issue or to appeal from an adverse determination
with regard to the issue) and (iv) cooperate with the Tax Indemnifying
Party in all reasonable respects to establish that such Tax is not due and
payable.
(b) Upon a determination that a Tax Indemnifying Party is liable for
a payment of Taxes to a Tax Indemnitee, the Tax Indemnifying Party shall
pay the Tax Indemnitee such Taxes. Except as otherwise provided under the
Indemnification Agreement, such payment will be made on an after-Tax basis
promptly following the submission by the Tax Indemnitee of written
evidence of the payment of indemnified Tax.
(c) Except as otherwise provided in the Merger Agreement, the Company
will be responsible for the preparation and filing of all Tax Returns with
respect to all periods ending on or before the Time of Distribution and
for the payment of all Taxes shown on those Tax Returns to be due.
Holdings and its Subsidiaries will be responsible for the preparation and
filing of all other Tax Returns relating to them or their assets or the
Holdings Businesses which are required to be filed after the Time of
Distribution and for the payment of all Taxes shown on those Tax Returns
to be due and all related estimated Taxes payable after the Time of
Distribution.
(d) Each of the Company and Holdings will, and will cause their
respective personnel to, cooperate fully with each other of them in
connection with the preparation and review of Tax Returns and in
connection with any examinations of any Tax Returns filed by either of
them or their respective Subsidiaries.
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ARTICLE IV
TRANSFER OF ASSETS AND PAYMENT OF LIABILITIES
IV.1 Transfer of Assets to Holdings. Prior to the Time of Distribution, the
Company shall take or cause to be taken all actions necessary to cause the
transfer, assignment, delivery and conveyance to Holdings of all of the
Company's and its Subsidiaries' right, title and interest in the Holdings
Entities and the Holdings Assets. "Holdings Entities" and "Holdings Assets"
mean, respectively, the entities and assets identified on Schedule 4.1 under the
headings "Holdings Entities" and "Holdings Assets."
IV.2 Payment of Liabilities. Except as set forth in the Merger Agreement,
the Indemnification Agreement, and the Transaction Documents, from and after
the Time of Distribution, (i) Holdings shall, and shall use its reasonable best
efforts to cause its Subsidiaries to pay, perform and discharge in due course
all of the Holdings Liabilities for which such entity is liable, and (ii) the
Company shall, and shall use its reasonable best efforts to cause its
Subsidiaries (other than Subsidiaries that are not wholly owned Subsidiaries of
Holdings or one of its Affiliates) to, pay, perform and discharge in due course
all of the Retained Liabilities for which such entity is liable.
ARTICLE V
OTHER AGREEMENTS
V.1 Use of "Insignia," "ESG," or "Insignia/ESG" Names.
(a) From and after the Time of Distribution, Holdings shall have all
rights in and use of the name "Insignia," "ESG," "Insignia/ESG" and all
derivatives thereof. Subject to the terms of this Agreement, no later than the
later of (i) 90 days after the Time of Distribution or (ii) 90 days after the
Closing Date, but in no event later than December 31, 1998, the Company agrees
(A) to cause each of the Company and its Subsidiaries (other than Holdings and
its Subsidiaries) to change its name and all of its trade names, trademarks,
service marks and all derivatives thereof, to a name or names which does/do not
include the words "Insignia," "ESG" or "Insignia/ESG" and is/are not
confusingly similar to the words "Insignia," "ESG," "Insignia/ESG" or any other
trademarks, service marks, trade names or logos or all derivatives thereof used
by the Holdings Companies, (B) to cause the word "Insignia," "ESG," and
"Insignia/ESG" and all corporate names, trademarks, service marks, trade names
and logos and all derivatives thereof which are used in any way by the Holdings
Companies to be removed from all marketing, advertising and business materials,
including without limitation, telephone listings, signage, brochures and all
other property used by the Company or any Subsidiary of the Company, except
that the Company and its Subsidiaries may continue to use any remaining
stationary, business cards and other similar property which bears the word
"Insignia" until the stock thereof on hand at the Time of Distribution has been
depleted and (C) to use its reasonable best efforts to cause buildings which
the Company or its Subsidiaries own or in which the Company or its Subsidiaries
rent
11
space, to change their names to names not including any reference to
"Insignia," "ESG" or "Insignia/ESG."
(b) Effective upon the Time of Distribution and continuing until the later
of (i) 90 days after the Time of Distribution or (ii) 90 days after the Closing
Date, but in no event later than December 31, 1998, and subject to the terms of
this Agreement, Holdings hereby grants to the Company, solely for the purpose
of complying with the terms of Section 5.1(a) hereof, a limited, non-exclusive,
royalty free license to use the name "Insignia" and the Holdings corporate
name, trade name, trademark, service xxxx and logo and all derivatives thereof
(collectively, the "Trade Marks") only in connection with the marketing and
sale of goods and/or residential property and asset management services which
are currently undertaken by the Company and each Subsidiary of the Company
(other than the Holdings Companies). All use of the Trade Marks by the Company
shall inure to the benefit of Holdings.
(c) The Trade Marks shall only be used in the same manner in which they
are currently used by the Company and each of its Subsidiaries. In the event
that the Trade Marks are used in a manner inconsistent with the terms of this
sub-section, Holdings shall have the right to terminate the limited license of
Section 5.1(b) upon ten (10) calendar days' prior notice to the Company.
V.2 Release of Holdings by the Company's Lenders. As soon as practicable
after the Time of Distribution, the Company shall use its reasonable best
efforts to cause the Company's Lenders (as defined below) to release Holdings
and its Subsidiaries from any and all obligations under the Credit Agreement (as
defined below) and all ancillary agreements and documents related thereto and to
release all related liens on the assets of Holdings and its Subsidiaries within
a reasonable time after the Distribution; provided, however, that at the
Effective Time, the Company or its successors in interest shall cause the
Lenders to release Holdings and its Subsidiaries from any and all obligations
under the Credit Agreement and all ancillary agreements and documents related
thereto and release all related liens on the assets of Holdings and its
Subsidiaries. The "Credit Agreement" shall mean that certain Amended and
Restated Credit Agreement, dated as of March 19, 1997, by and among the Company,
the lenders party thereto (the "Lenders"), First Union National Bank, as
administrative agent, and Xxxxxx Commercial Paper Inc., as syndication agent, as
amended.
V.3 Books and Records. Prior to or as promptly as practicable after the
Time of Distribution, the Company shall deliver to Holdings all corporate books
and records of the Holdings Companies in the possession of the Retained
Companies and the relevant portions (or copies thereof) of all corporate books
and records of the Retained Companies relating directly and primarily to the
Holdings Companies, the Holdings Businesses or the Holdings Liabilities,
including, in each case, all agreements, litigation files and government
filings. From and after the Time of Distribution, all such books, records and
copies shall be the property of Holdings. The Company may retain copies of all
such corporate books and records. Prior to the Distribution, Holdings shall
deliver to the Company all corporate books and records of the Retained
Companies in the possession of any of the Holdings Companies and relevant
portions (or copies thereof) of all corporate books and records of
12
the Holdings Companies relating directly and primarily to the Retained
Companies, the Retained Business or the Retained Liabilities, including, in
each case, all agreements, active litigation files and government filings. From
and after the Time of Distribution, all such books, records and copies shall be
the property of the Company. Holdings may retain copies of all such corporate
books and records.
V.4 Access to Information. Upon reasonable notice, each party shall, and
shall cause its Subsidiaries to, afford to Representatives of the other
reasonable access, during normal business hours throughout the period prior to
and following the Time of Distribution, to all of its properties, books,
contracts, commitments and records (including, but not limited to, Tax Returns)
and, during such period, each party shall, and shall cause its Subsidiaries to,
furnish promptly to the other (i) access to each report, schedule and other
document filed or received by it or any of its Subsidiaries pursuant to the
requirements of federal or state securities laws or filed with or sent to the
United States Securities and Exchange Commission or any other federal or state
regulatory agency or commission and (ii) access to all information concerning
themselves, their Subsidiaries, directors, officers and stockholders and such
other matters as may be reasonably requested by the other party in connection
with any filings, applications or approvals required or contemplated by this
Agreement or for any other reason related to the transactions contemplated by
this Agreement; provided, however, that the foregoing shall apply to Holdings
and the Holding Companies only with respect to information and access necessary
to or required by the Company in preparation of Tax Returns. Nothing in this
Section 5.4 shall require the parties to take any action or furnish any access
or information which would cause or could reasonably be expected to cause the
waiver of any applicable attorney client privilege. In addition, nothing herein
shall require the parties to provide information other than with respect to
itself and its Subsidiaries, or the conduct of their businesses.
V.5 Retention of Records. If any information relating to the businesses,
assets or liabilities of a Retained Company or a Holdings Company is retained
by a Holdings Company or Retained Company, respectively, each of the Company
and Holdings shall, and shall cause the other Retained Companies and Holdings
Companies, respectively, to retain all such information in the Retained
Companies' or Holdings Companies' possession or under its control until such
information is at least ten years old except that if, prior to the expiration
of such period, any Retained Company or Holdings Company wishes to destroy or
dispose of any such information that is at least three years old, prior to
destroying or disposing of any of such information, (a) the Company or
Holdings, on behalf of the Retained Company or the Holdings Company that is
proposing to dispose of or destroy any such information, shall provide no less
than 45 days' prior written notice to the other party, specifying the
information proposed to be destroyed or disposed of, and (b) if, prior to the
scheduled date of such destruction or disposal, the other party requests in
writing that any of the information proposed to be destroyed or disposed of be
delivered to such other party, the Company or Holdings, as applicable, promptly
shall arrange for the delivery of the requested information to a location
specified by, and at the expense of, the requesting party.
13
V.6 Confidentiality.
(a) Each party hereto shall keep, and shall cause its Representatives to
keep, the other party's Information strictly confidential and will disclose
such Information only to such of its Representatives who need to know such
Information and who agree to be bound by this Section 5.6 and not to disclose
such Information to any other Person. Without the prior written consent of the
other party, neither party nor any of their respective Representatives shall
disclose the other party's Information to any Person or entity except as may be
required by law or judicial process and in accordance with this Section 5.6.
(b) In the event that either party or any of its Representatives receives
a request or is required by law or judicial process to disclose to a court or
other tribunal all or any part of the other party's Information, the receiving
party or its Representatives shall promptly notify the other party of the
request in writing, and consult with and assist the other party in seeking a
protective order or request for other appropriate remedy. In the event that
such protective order or other remedy is not obtained or the other party waives
compliance with the terms hereof, such receiving party or its Representatives,
as the case may be, shall disclose only that portion of the Information or
facts which, in the written opinion of the receiving party's outside counsel,
is legally required to be disclosed, and will exercise its respective
reasonable best efforts to assure that confidential treatment will be accorded
such Information or facts by the Persons or entities receiving the same. The
providing party will be given an opportunity to review the Information or facts
prior to disclosure.
V.7 Listing on NYSE. Holdings shall use its reasonable best efforts to
list the shares of Holdings Common Stock to be issued pursuant to the
Distribution on the NYSE.
V.8 Further Assurances. The parties agree that if, after the Time of
Distribution, a Holdings Company or a Retained Company holds assets which by
the terms hereof or of the Merger Agreement were intended to be assigned and
transferred to, or retained by, a Retained Company or a Holdings Company,
respectively, each of Holdings and the Company shall, and shall cause the other
Holdings Companies and Retained Companies, respectively, at their expense, to
take all commercially reasonable actions required promptly to assign and
transfer or cause to be assigned and transferred such assets to the applicable
Holdings Company or Retained Company, without the payment of additional
consideration, and the parties agree that the transferring Holdings Company or
Retained Company, as applicable, will hold such assets as agent for the sole
benefit of the transferee Retained Company or Holdings Company, as applicable,
and all income and risk of loss of the transferred assets to the Time of
Distribution shall be for the account of the intended owner. Each of the
parties hereto, at its own cost and expense, promptly shall, or shall cause its
Subsidiaries to, execute such documents (the "Transaction Documents") and take
such further actions as may be reasonably required or desirable to carry out
the provisions hereof and to consummate the transactions contemplated hereby.
As used herein, the term "Transaction Documents" includes, but is not limited
to, the Technical Services Agreement.
V.9 Treatment of Certain Participation Interests.
(a) From and after the Time of Distribution, the Company promptly shall
pay to Holdings that percentage of all Proceeds received by the Company or any
of its Affiliates, or their respective successors and assigns, from the
respective Residential Joint Venture
14
Entities and the obligations known as the REMIC in accordance with Holdings'
applicable Participation Interest.
(b) Effective at the Time of Distribution and without further action by
the Company or Holdings, the Company hereby assigns to Holdings, and Holdings
hereby assumes, the Company's duties, obligations and liabilities arising from
or relating to the Incentive Award Letters (as defined below). The Company
agrees to use its reasonable best efforts to obtain the consent of the other
parties to the Incentive Award Letters to said assignments and assumptions and
to the release of the Company from its duties, obligations and liabilities
arising from or relating to the Incentive Award Letters. The "Incentive Award
Letters" shall mean all of the agreements pursuant to which the Company has
granted to any officer or employee of the Company any right to receive a
portion of the Proceeds or any member or partnership interest, including, but
not limited to, the letter agreements listed on Schedule 5.9(b) hereto.
(c) The Company agrees that in the event the Company acquires additional
membership interests or partnership units (the "Additional Interests") in any
Residential Joint Venture Entity after the Time of Distribution which, together
with interests or units owned by the Company at the Time of Distribution, would
constitute a majority of the interests or units of such Residential Joint
Venture Entity, the Company shall pay Holdings an amount equal to the amount
Holdings would have received if such Residential Joint Venture Entity had sold
all of its assets for an aggregate price equal to the per unit price paid by
the Company for the Additional Interests multiplied by the total number of
issued and outstanding membership interests or partnership units of such
Residential Joint Venture Entity.
V.10 Cooperation. The parties shall cooperate with each other in all
reasonable respects to ensure (a) that the Distribution and the assumption (to
the extent necessary) of the Retained Liabilities and of the Holdings
Liabilities are consummated in accordance with the terms hereof, (b) the
retention by the Company of the Retained Business, including, without
limitation, allocating rights and obligations under Contracts, if any, of the
Retained Companies or the Holdings Companies that relate to the Retained
Business, and (c) the retention by Holdings of the Holdings Businesses,
including, without limitation, allocating rights and obligations under
Contracts, if any, of the Holdings Companies or the Retained Companies that
relate to the Holdings Businesses.
V.11 Assumption of Certain Contracts by Holdings. At the Time of
Distribution, the Company will, and will cause its Subsidiaries (other than
Holdings and its Subsidiaries) to, assign to Holdings, and Holdings will
assume, all rights, liabilities and obligations attributable to (i) Holdings
Employees under their respective employment, consulting and severance
agreements with the Company, including, but not limited to, the Contracts
listed in Schedule 5.11 hereto, and (ii) all other Contracts relating to the
Holdings Businesses, including, but not limited to, the Contracts listed in
Schedule 5.11 hereto. The Company will use its reasonable best efforts to
obtain the consent of the other parties to the aforementioned Contracts to the
assignment to Holdings and to the substitution of Holdings for the Company as a
party thereto.
V.12 Payments With Respect to Consulting Agreements; Restricted Stock;
Stock Options.
15
(a) From and after the Time of Distribution, in the event that
the Company for any reason does not make a payment to a signatory to
any of the consulting agreements listed in Schedule 5.12(a) hereto
(the "Consulting Agreements") pursuant to a Consulting Agreement, the
Company shall immediately make such payment to Holdings.
(b) From and after the Time of Distribution, in the event that
the Company receives any payment (whether principal or interest) on a
loan made by the Company pursuant to a Consulting Agreement, the
Company shall assign and transfer such loan payment to Holdings
within ten days of the receipt thereof.
(c) From and after the Time of Distribution, in the event the
Company for any reason does not cause the shares of restricted stock
identified in Schedule 5.12(c) (the "Restricted Stock") to vest in
the holder thereof at the times set forth in the terms of grant of
such Restricted Stock, the Company shall immediately pay to Holdings
in cash an amount equal to the fair market value of the shares of
Restricted Stock which did not so vest, determined as of the date on
which such shares of Restricted Stock were to vest as if they had so
vested and were freely transferable.
(d) From and after the Time of Distribution, if the employment
of any Covered Person (as defined in Section 2.1 of the Merger
Agreement) should terminate prior to the vesting of all options to
purchase shares of Company Common Stock held by such Covered Person,
then the Company shall, promptly after such termination, pay to
either such Covered Person or Holdings an amount equal to the "in the
money" spread value of such remaining unvested options as of the Time
of Distribution.
V.13 Conflicting Terms. The terms of this Agreement shall continue
unabridged at and after the Effective Time, except that at and after the
Effective Time, in the event that there are any conflicts between the terms of
this Agreement on the one hand and the terms of the Merger Agreement and the
Indemnification Agreement on the other hand, the terms of the Merger Agreement
and the Indemnification Agreement shall control with respect to such
inconsistent terms.
V.14 Performance of Services. Beginning at the Time of Distribution, (i)
the Company will provide, or cause one or more of its Subsidiaries to provide,
to Holdings or another member of the Holdings Companies computer services and
data processing for accounting and payroll functions at the Company's actual
direct cost through December 31, 1998 and on a month-to-month basis thereafter
pursuant to a Technical Services Agreement, dated as of _____, 1998, by and
among Insignia, Holdings and AIMCO (the "Technical Services Agreement"); and
(ii) Holdings will continue to provide, or cause one or more of its
Subsidiaries to continue provide, to the Company or one or more of its
Subsidiaries management services for certain properties owned by partnerships
whose general partners are Affiliates of the Company on substantially the same
terms and conditions as management agreements currently in effect.
16
ARTICLE VI
INDEMNIFICATION AND RELEASES
VI.1 Mutual Release. Effective as of the Time of Distribution and except
as otherwise specifically set forth in this Agreement or the Transaction
Documents, the Merger Agreement or the Indemnification Agreement, each of the
Company, on the one hand, and Holdings, on the other hand, releases and forever
discharges the other and its affiliates, and its and their directors, officers,
employees and agents of and from all debts, demands, actions, causes of action,
suits, accounts, covenants, contracts, agreements, damages, and any and all
claims, demands and liabilities whatsoever of every name and nature, both in
law and in equity, against such other party or any of its assigns, which the
releasing party has or ever had, which arise out of or relate to events,
circumstances or actions taken by such other party prior to the Time of
Distribution; provided, however, that the foregoing general release shall not
apply to this Agreement, the Transaction Documents, the Merger Agreement or the
Indemnification Agreement or the transactions contemplated hereby or thereby
and shall not affect either party's right to enforce this Agreement or the
Transaction Documents, the Merger Agreement, the Indemnification Agreement or
any other agreement contemplated hereby or thereby in accordance with its
terms. Each party understands and agrees that, except as otherwise specifically
provided herein or in the Transaction Documents, the Merger Agreement or the
Indemnification Agreement, neither the other party nor any of its Subsidiaries
is, in this Agreement or any other agreement or document, representing or
warranting to such party in any way as to the assets, business or Liabilities
transferred or assumed as contemplated hereby or thereby or as to any consents
or approvals required in connection with the consummation of the transactions
contemplated by this Agreement, the Transaction Documents, the Merger Agreement
or the Indemnification Agreement.
VI.2 Indemnification by the Company. Except as otherwise expressly set
forth in the Merger Agreement, the Indemnification Agreement, and the
Transaction Documents, the Company shall indemnify, defend and hold harmless
Holdings and each of its Subsidiaries, and each of their respective directors,
officers, employees, agents and Affiliates, and each of the heirs, executors,
successors and assigns of any of the foregoing (the "Holdings Indemnities")
from and against the Retained Liabilities and any and all losses, Liabilities
and damages, including the costs and expenses of any and all actions,
threatened actions, demands, assessments, judgments, settlements and
compromises relating thereto and attorneys' fees and any and all expenses
whatsoever reasonably incurred in investigating, preparing or defending against
any such actions or threatened actions (collectively, "Holdings Indemnifiable
Losses" and, individually, a "Holdings Indemnifiable Loss") of the Holdings
Indemnitees arising out of or due to the failure or alleged failure of the
Company or any of its Subsidiaries to pay, perform or otherwise discharge in
due course any of the Retained Liabilities.
VI.3 Indemnification by Holdings. Except as otherwise expressly set forth
in the Merger Agreement, the Indemnification Agreement and the Transaction
Documents, Holdings shall indemnify, defend and hold harmless the Company and
each of its Subsidiaries, and each of their directors, officers, employees,
agents and Affiliates and each of the heirs, executors, successors and assigns
of any of the foregoing (the "Company Indemnitees") from and against the
Holdings Liabilities and any and all losses, Liabilities and damages, including
the costs and expenses of any and all actions, threatened actions, demands,
assessments, judgments, settlements and compromises relating thereto and
attorneys' fees and any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any such actions or threatened
actions (collectively,
17
"Company Indemnifiable Losses" and, individually, a "Company Indemnifiable
Loss") of the Company Indemnitees arising out of or due to the failure or
alleged failure of Holdings or any of its Affiliates to pay, perform or
otherwise discharge in due course any of the Holdings Liabilities. The "Holdings
Indemnifiable Losses" and the "Company Indemnifiable Losses" are collectively
referred to as the "Indemnifiable Losses."
VI.4 Insurance Proceeds; Tax Benefits; Mitigation. The amount which any
party (an "Indemnifying Party") is or may be required to pay to any other
Person (an "Indemnitee") pursuant to Sections 6.2 or 6.3 shall be reduced
(including retroactively) by (i) any insurance proceeds or other amounts
actually recovered by or on behalf of such Indemnitee in reduction of the
related Indemnifiable Loss and (ii) any Tax benefits realized or realizable by
such Indemnitee based on the present value thereof by reason of such loss and
shall be increased by any Tax liability incurred by such Indemnitee based on
such indemnity payment. If an Indemnitee shall have received the payment
required by this Agreement from an Indemnifying Party in respect of an
Indemnifiable Loss and shall subsequently actually receive insurance proceeds,
Tax benefits or other amounts in respect of such Indemnifiable Loss as
specified above, then such Indemnitee shall pay to such Indemnifying Party a
sum equal to the amount of such insurance proceeds, Tax benefits or other
amounts actually received. The Indemnitee shall take all reasonable steps to
mitigate all Losses, including availing itself of any defenses, limitations,
rights of contribution, claims against third parties and other rights at law
(it being understood that any out-of-pocket costs paid to third parties in
connection with such mitigation shall constitute Losses), and shall provide
such evidence and documentation of the nature and extent of any Loss as may be
reasonably requested by the Indemnifying Party.
VI.5 Procedure for Indemnification.
(a) If an Indemnitee shall receive notice or otherwise learn of the
assertion by a person (including any governmental entity) who is not a party to
this Agreement or to any of the Transaction Documents of any claim or of the
commencement by any such Person of any action (a "Third-Party Claim") with
respect to which an Indemnifying Party may be obligated to provide
indemnification pursuant to this Agreement, such Indemnitee shall give such
Indemnifying Party written notice thereof promptly after becoming aware of such
Third-Party Claim; provided, however, that the failure of any Indemnitee to
give notice as required by this Section 6.5 shall not relieve the Indemnifying
Party of its obligations under this Article VI, except to the extent that such
Indemnifying Party is prejudiced by such failure to give notice. Such notice
shall describe the Third-Party Claim in reasonable detail, and shall indicate
the amount (estimated if necessary) of the Indemnifiable Loss that has been or
may be sustained by such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle or
compromise, at such Indemnifying Party's own expense and by such Indemnifying
Party's own counsel reasonably acceptable to the Indemnitee, any Third-Party
Claim, provided that the Indemnifying Party must confirm in writing that it
agrees that the Indemnitee is entitled to indemnification hereunder in respect
of such Third-Party Claim. Within 30 days of the receipt of notice from an
Indemnitee in accordance with Section 6.5(a) (or sooner, if the nature of such
Third-Party Claim so requires), the Indemnifying Party shall notify the
Indemnitee of its election whether to assume responsibility for such
Third-Party Claim (provided that if the Indemnifying Party does not
18
so notify the Indemnitee of its election within 30 days after receipt of such
notice from the Indemnitee, the Indemnifying Party shall be deemed to have
elected not to assume responsibility for such Third-Party Claim), and such
Indemnitee shall cooperate in the defense or settlement or compromise of such
Third-Party Claim. After notice from an Indemnifying Party to an Indemnitee of
its election to assume responsibility for a Third-Party Claim, such
Indemnifying Party shall not be liable to such Indemnitee under this Article VI
for any legal or other expenses (except expenses approved in advance by the
Indemnifying Party) subsequently incurred by such Indemnitee in connection with
the defense thereof; provided, however, that if the defendants in any such
claim include both the Indemnifying Party and one or more Indemnitees and in
such Indemnitees' reasonable judgment there exists a conflict of interest
between such Indemnitees and the Indemnifying Party, such Indemnitees shall
have the right to employ separate counsel and in that event the reasonable fees
and expenses of such separate counsel (but not more than one separate counsel
reasonably satisfactory to the Indemnifying Party) shall be paid by such
Indemnifying Party. If an Indemnifying Party elects not to assume
responsibility for a Third-Party Claim (which election may be made only in the
event of a good faith dispute that a claim was inappropriately tendered under
Section 6.2 or 6.3, as the case may be) such Indemnitee may defend or (subject
to the following sentence) seek to compromise or settle such Third-Party Claim.
Notwithstanding the foregoing, an Indemnitee may not settle or compromise any
Third-Party Claim without prior written notice to the Indemnifying Party, which
shall have the option within fifteen days following the receipt of such notice
(i) to disapprove the settlement and assume all past and future responsibility
for the claim, including reimbursing the Indemnitee for prior expenditures in
connection with the claim, or (ii) to disapprove the settlement and continue to
refrain from participation in the defense of the claim, in which event the
Indemnifying Party shall have no further right to contest the amount or
reasonableness of the settlement if the Indemnitee elects to proceed therewith,
or (iii) to approve the amount of the settlement, reserving the Indemnifying
Party's right to contest the Indemnitee's right to indemnity, or (iv) to
approve and agree to pay the settlement. In the event the Indemnifying Party
makes no response to such written notice from the Indemnitee, the Indemnifying
Party shall be deemed to have elected option (ii).
(c) If an Indemnifying Party chooses to defend or to seek to compromise
any Third-Party Claim, the Indemnitee shall make available to such Indemnifying
Party any personnel and any books, records or other documents within its
control or which it otherwise has the ability to make available that are
necessary or appropriate for such defense.
(d) Notwithstanding anything else in this Section 6.5 to the contrary, an
Indemnifying Party shall not settle or compromise any Third-Party Claim unless
(i) such settlement or compromise contemplates as an unconditional term thereof
the giving by such claimant or plaintiff to the Indemnitee of a written release
from all liability in respect of such Third-Party Claim and (ii) such
settlement does not provide for any non-monetary relief by Indemnitee unless
Indemnitee consents thereto. In the event the Indemnitee shall notify the
Indemnifying Party in writing that such Indemnitee declines to accept any such
settlement or compromise, such Indemnitee may continue to contest such
Third-Party Claim, free of any participation by such Indemnifying Party, at
such Indemnitee's sole expense. In such event, the obligation of such
Indemnifying Party to such Indemnitee with respect to such Third-Party Claim
shall be equal to (i) the costs and expenses of such Indemnitee prior to the
date such Indemnifying Party notifies such Indemnitee of such offer of
settlement or compromise (to the extent such costs and expenses are otherwise
indemnifiable
19
hereunder) plus (ii) the lesser of (A) the amount of any offer of
settlement or compromise which such Indemnitee declined to accept and (B) the
actual out-of-pocket amount such Indemnitee is obligated to pay subsequent to
such date as a result of such Indemnitee's continuing to pursue such
Third-Party Claim.
(e) Any claim on account of an Indemnifiable Loss which does not result
from a Third-Party Claim shall be asserted by written notice given by the
Indemnitee to the applicable Indemnifying Party. Such Indemnifying Party shall
have a period of 30 days after the receipt of such notice within which to
respond thereto. If such Indemnifying Party does not respond within such 30-day
period, such Indemnifying Party shall be deemed to have refused to accept
responsibility to make payment. If such Indemnifying Party does not respond
within such 30-day period or rejects such claim in whole or in part, such
Indemnitee shall be free to pursue such remedies as may be available to such
party under applicable law or under this Agreement, the Merger Agreement or the
Indemnification Agreement.
(f) In addition to any adjustments required pursuant to Section 6.4, if
the amount of any Indemnifiable Loss shall, at any time subsequent to the
payment required by this Agreement, be reduced by recovery, settlement or
otherwise, the amount of such reduction, less any expenses incurred in
connection therewith, shall promptly be repaid by the Indemnitee to the
Indemnifying Party.
(g) In the event of payment by an Indemnifying Party to any Indemnitee in
connection with any Third-Party Claim, such Indemnifying Party shall be
subrogated to and shall stand in the place of such Indemnitee as to any events
or circumstances in respect of which such Indemnitee may have any right or
claim relating to such Third-Party Claim against any claimant or plaintiff
asserting such Third-Party Claim. Such Indemnitee shall cooperate with such
Indemnifying Party in a reasonable manner, and at the cost and expense of such
Indemnifying Party, in prosecuting any subrogated right or claim.
VI.6 Remedies Cumulative. The remedies provided in this Article VI shall
be cumulative and shall not preclude assertion by any Indemnitee of any other
rights or the seeking of any and all other remedies against any Indemnifying
Party.
VI.7 Survival of Indemnities. The obligations of each of Holdings and the
Company under this Article VI shall survive the sale or other transfer by it of
any assets or businesses or the assignment by it of any Liabilities, with
respect to any Indemnifiable Loss of the other related to such assets,
businesses or Liabilities.
VI.8 Tax Matters. Notwithstanding anything to the contrary in this Article
VI, any claim for indemnification with respect to any Liabilities which are Tax
liabilities of the Company and Holdings shall be governed by the terms and
provisions of Article III hereof.
20
ARTICLE VII
EMPLOYEE MATTERS
VII.1 Employees. Immediately prior to, and subject to, the Distribution,
the Company shall transfer to Holdings (or the Holdings Companies) the
employees whose employment relates to the Holdings Companies and Holdings
Businesses, as determined by the Company in its sole discretion, so that no
such employee who becomes employed by Holdings experiences any termination or
other interruption in employment. The employees who become employees of
Holdings upon the Distribution shall not be employees of the Company or any
Subsidiary of the Company at the Time of Distribution, except as otherwise
agreed to in writing by the parties. Effective as of the Time of Distribution,
(a) Retained Employees shall remain or become employees of the Retained
Companies in the same capacities as then held by such employees (or in such
other capacities and upon such terms and conditions as the Company shall
determine in its sole discretion) and (b) Holdings Employees shall remain or
become employees of the Holdings Companies in the same capacities as then held
by such employee (or in such other capacities and upon such terms and
conditions as Holdings shall determine in its sole discretion). Nothing
contained in this Section 7.1 shall confer on any Retained Employee or any
Holdings Employee any right to continued employment after the Time of
Distribution, and such employees shall continue to be employed "at-will." At
and from the Time of Distribution, except as set forth in this Article VII,
Holdings shall assume all obligations relating to all employees, including the
Former Employees and employees of the Holdings Companies, arising prior to or
at the Time of Distribution or, if the Merger is consummated, prior to or at
the Effective Time, including all obligations or liabilities relating to
employee benefits, health insurance and severance, if any.
VII.2 Employee Benefits. Without limiting the generality of Section 7.1
above:
(a) Accrued Vacation. The Company and Holdings agree that all accrued
vacation for Retained Employees on and after the Time of Distribution shall be
the Company's obligation; provided, however, that if a Retained Employee (other
than on-site employees) is terminated or quits prior to December 31, 1998 (or
December 31, 1999 if the Closing Date occurs in 1999) and such Retained
Employee (other than on-site employees) was entitled to accrued vacation
relating to his employment prior to the Effective Time (the "Holdings Vacation
Obligation") at the time of his departure and received a cash payment for such
Holdings Vacation Obligation, Holdings shall promptly reimburse the Company for
such amount.
(b) 401(k) Plan and Restoration Plan. Immediately prior to, and subject
to, the Distribution, the Company shall cause a "spin-off" of the assets and
liabilities of the Company's 401(k) Retirement Plan (the "Existing 401(k)
Plan") resulting in the division of the Existing 401(k) Plan into two separate,
identical, component plans and trusts, in accordance with applicable law
(including, without limitation, Section 414(l) of the Code), covering,
respectively, (i) the Retained Employees (and their beneficiaries) (the
"Company 401(k) Plan") and (ii) all other Existing 401(k) Plan participants
(and their beneficiaries) (the "Holdings 40l(k)Plan"). Immediately prior to,
and subject to, the Distribution, the Company shall cause a "spin-off" of the
assets and liabilities of the Company 401(k) Restoration Plan (the "Existing
Restoration Plan") resulting in the division of the Existing Restoration Plan
into two separate, identical component plans and trusts, covering,
respectively, (i) the Retained Employees (and their beneficiaries) (the
"Company Restoration Plan") and (ii) all other Existing Restoration Plan
participants (and their beneficiaries) (the "Holdings Restoration Plan").
Immediately prior to, and subject to, the Distribution, the Company shall cause
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the Holdings 401(k) Plan and the Holdings Restoration Plan to be transferred to
Holdings but shall retain the Company 401(k) Plan and the Company Restoration
Plan. Prior to the Distribution, the Company shall draft the appropriate
documents and us its reasonable best efforts to take all actions necessary, to
the extent possible, to effectuate the intent of this Section 7.2(b).
(c) Welfare Plans. Except as otherwise provided herein, immediately prior
to, and subject to, the Distribution, the Company shall cause all Company
employee benefit plans that are employee welfare benefit plans, as defined in
Section 3(l) of ERISA (the "Existing Welfare Plans"), to be divided into
separate, identical component plans covering, respectively, (i) the Retained
Employees (and their beneficiaries) (the "Company Welfare Plans") and (ii) all
other Existing Welfare Plan participants, including without limitation,
participants (and their beneficiaries) who experienced a "qualifying event" for
purposes of the group health plan continuation coverage requirements of Section
4980 of the Code and Title I, Subtitle B of ERISA prior to the Closing Date
regardless of when an election for continuation coverage is made by the
participant (the "Holdings Welfare Plans"). Notwithstanding the foregoing, the
Company shall cause the Company Long Term Disability Plan (the "Existing LTD
Plan") to be divided into two separate, identical component plans covering,
respectively, (i) employees who work for the Company after the Distribution and
employees who were working in the United States based multifamily apartment
business of the Company and the Subsidiaries not set forth on Section 4.2(h) of
the Company Disclosure Letter at the time they became eligible for benefits
under the Existing LTD Plan (the "Company LTD Plan") and (ii) all other
participants in the Existing LTD Plan (the " Holdings LTD Plan"). Without
limiting the generality of the foregoing, immediately prior to, and subject to,
the Distribution, the Company shall cause a "spin-off" of the assets and
liabilities of each of the Company Voluntary Employees' Beneficiary Association
and the Company's existing Flexible Spending Plan (which contains premium,
dependent care and medical health reimbursement component parts) (respectively,
the "VEBA" and the "Flex Plan") resulting in the division of each of the VEBA
and the Flex Plan into separate, identical, component plans and trusts, in
accordance with applicable law, covering, respectively, (i) the Retained
Employees (and their beneficiaries) (respectively, the "Company VEBA" and
"Company Flex Plan") and (ii) all other participants (and their beneficiaries)
in the VEBA and the Flex Plan (respectively, the "Holdings VEBA" and the
"Holdings Flex Plan"). Immediately prior to and subject to, the Distribution,
the Company shall cause the Holdings Welfare Plans, Holdings LTD Plan, Holdings
VEBA and Holdings Flex Plan to be transferred to Holdings but shall retain the
Company Welfare Plans, Company LTD Plan, Company VEBA and Company Flex Plan.
Prior to the Distribution, the Company shall draft the appropriate documents
and use its reasonable best efforts to take all actions necessary, to the
extent possible, to effectuate the intent of this Section 7.2(c).
(d) Stock Plans. Immediately prior to, and subject to, the Distribution,
the Company shall cause Holdings to assume all options and awards of restricted
stock (whether vested or unvested) held under the Company Stock Plans by
employees of the Company who become employees of Holdings and convert such
options and awards of restricted stock into an option to purchase shares of
common stock of Holdings or an award of restricted shares of common stock of
Holdings, as applicable, as the Company deems appropriate to reflect the
Distribution. Prior to the Distribution, the Company shall draft the
appropriate documents and use its reasonable best efforts to take all actions
necessary, to the extent possible, to effectuate the intent of this Section
7.2(d).
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(e) Continuation of Group Health Plan Coverage. Holdings and the Holdings
Companies shall be responsible for all obligations and liabilities relating to
or arising under the group health plan continuation coverage requirements of
Section 4980B of the Code and Title I, Subtitle B of ERISA for employees
employed by the Company prior to the Closing Date other than the Retained
Employees. Holdings and the Holdings Companies shall also be responsible for
any liabilities or obligations for severance obligations relating to employees
of the Company employed by the Company prior to the Closing Date other than the
Retained Employees.
VII.3 Other Liabilities and Obligations. Effective as of the Time of
Distribution, Holdings shall assume and be solely responsible for (i) all
liabilities and obligations related to the Holdings Employees and (ii) except
as specifically provided in this Article VII and except to the extent otherwise
provided in this Agreement, the Merger Agreement, the Indemnification Agreement
or the Transaction Documents, all liabilities and obligations related to the
Retained Employees that were incurred on or before the Time of Distribution.
Effective as of the Time of Distribution, the Company shall assume and be
solely responsible for (i) all liabilities and obligations related to the
Retained Employees incurred after the Time of Distribution, (ii) all holiday,
vacation and sick day benefits of the Retained Employees accrued as of the Time
of Distribution, except as otherwise provided for in this Article VII, and
(iii) all other liabilities, including, without limitation, for worker's
compensation and medical benefits. For purposes of this Section 7.3, a
liability is "incurred" on either the date the event giving rise to the
liability occurs or, if the liability is related to more than one event, the
date the first event to which the liability relates occurs. Notwithstanding the
foregoing, deferred directors' fees shall be the sole responsibility of
Holdings.
VII.4 Actions by Holdings. Any action required to be taken under this
Article VII may be taken by any member of the Holdings Companies.
ARTICLE VIII
CONDITIONS
The obligations of the Company and Holdings to consummate the Distribution
shall be subject to the fulfillment of each of the following conditions:
VIII.1 Stockholder Approval. The stockholders of the Company shall have
approved the Distribution.
VIII.2 Opinion of Tax Counsel. The Company shall have received an opinion
of Xxxxxx & Xxxxx LLP (or another recognized law firm acceptable to the
recipient) that, based upon certificates and letters acceptable to Xxxxxx &
Xxxxx LLP (or another nationally recognized law firm acceptable to the Company)
dated as of the Time of Distribution, the Distribution should qualify as a
tax-deferred distribution to the Company's stockholders (with customary
exceptions, assumptions and qualifi cations and based on customary
representations).
VIII.3 Certain Transactions. The actions provided for in Section 4.1 shall
have been consummated in accordance with Section 4.1 in all material respects.
23
VIII.4 Adequate Surplus. The Boards of Directors of the Company and
Holdings shall be reasonably satisfied that, after giving effect to the
Distribution, (i) the Company will not be insolvent and will not have
unreasonably small capital with which to engage in its businesses and (ii) the
Company's surplus will be sufficient to permit, without violation of Section
170 of the DGCL, the Distribution.
VIII.5 Release of Obligations. The Boards of Directors of the Company and
Holdings shall be reasonably satisfied that the obligations of Holdings and its
Subsidiaries under the Credit Agreement and the related liens on the assets of
Holdings and its Subsidiaries will be released within a reasonable time after
the Distribution.
VIII.6 Bank Consent. The Lenders under the Credit Agreement shall have
consented to the Distribution and the other transactions provided for herein on
terms acceptable to the Boards of Directors of the Company and Holdings.
ARTICLE IX
MISCELLANEOUS AND GENERAL
IX.1 Termination. This Agreement may be terminated by the Company at any
time prior to the Time of Distribution.
IX.2 Effect of Termination. In the event of any termination of this
Agreement pursuant to Section 9.1, no party to this Agreement (or any of its
directors or officers) shall have any liability or further obligation to any
other party.
IX.3 Modification or Amendment. The parties hereto may modify or amend
this Agreement by written agreement executed and delivered by authorized
officers of the respective parties.
IX.4 Waiver; Remedies. The conditions to the Company's obligation to
consummate the Distribution are for the sole benefit of the Company and may be
waived in writing by the Company in whole or in part to the extent permitted by
applicable law. No delay on the part of any party hereto in exercising any
right, power or privilege hereunder will operate as a waiver thereof, nor will
any waiver on the part of any party hereto of any right, power or privilege
hereunder operate as a waiver of any other right, power or privilege hereunder,
nor will any single or partial exercise of any right, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder. Unless otherwise provided, the
rights and remedies herein provided are cumulative and are not exclusive of any
rights or remedies which the parties may otherwise have at law or in equity.
IX.5 Counterparts. For the convenience of the parties hereto, this
Agreement may be executed in separate counterparts, each such counterpart being
deemed to be an original instrument, and which counterparts shall together
constitute the same agreement.
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IX.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without reference to its
conflicts of law principles.
IX.7 Notices. Any notice, request, instruction or other document to be
given hereunder by any party to the other shall be in writing and shall be
deemed to have been duly given (i) on the date of delivery if delivered by
facsimile (upon confirmation of receipt) or personally, (ii) on the first
business day following the date of dispatch if delivered by Federal Express or
other next-day courier service, or (iii) on the third business day following
the date of mailing if delivered by registered or certified mail, return
receipt requested, postage prepaid. All notices hereunder shall be delivered as
set forth below, or pursuant to such other instructions as may be designated in
writing by the party to receive such notice:
If to the Company before the Effective Time:
Insignia Financial Group, Inc.
000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy (which shall not constitute notice) to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
If to the Company or after the Effective Time, to the above address for
the Company (but not to Proskauer Rose LLP) and to:
Apartment Investment and Management Company
0000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy (which shall not constitute notice) to:
25
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
If to Insignia/ESG Holdings, Inc., to:
Insignia/ESG Holdings, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy (which shall not constitute notice) to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
IX.8 Captions. All Article, Section and paragraph captions herein are for
convenience of reference only, do not constitute part of this Agreement and
shall not be deemed to limit or otherwise affect any of the provisions hereof.
IX.9 No Third Party Beneficiary. This Agreement is for the purpose of
defining the respective rights and obligations of the parties hereto and is not
for the benefit of any employee, creditor or other third party, except as may
be expressly set forth herein.
IX.10 Successors and Assigns. No party to this Agreement shall convey,
assign or otherwise transfer any of its rights or obligations under this
Agreement without the express written consent of the other party hereto in its
sole and absolute discretion. Any such conveyance, assignment or transfer
without the express written consent of the other party shall be void ab initio.
No assignment of this Agreement or any rights hereunder shall relieve the
assigning party of its obligations hereunder. Any successor by merger to a
party to this Agreement shall be substituted for such party as a party to this
Agreement, and all obligations, duties and liabilities of the substituted party
under this Agreement shall continue in full force and effect as obligations,
duties and liabilities of the substituting party, enforceable against the
substituting party as a principal, as though no substitution had been made.
IX.11 Certain Obligations. Whenever this Agreement requires any of the
Subsidiaries of any party to take any action, this Agreement will be deemed to
include an undertaking on the part of such party to cause such Subsidiary to
take such action.
26
IX.12 Specific Performance. In the event of any actual or threatened
default in, or breach of, any of the terms, conditions and provisions of this
Agreement, the party or parties who are or are to be thereby aggrieved shall
have the right of specific performance and injunctive relief giving effect to
its or their rights under this Agreement, in addition to any and all other
rights and remedies at law or in equity, and all such rights and remedies shall
be cumulative. The parties agree that the remedies at law for any breach or
threatened breach, including monetary damages, are inadequate compensation for
any loss and that any defense in any action for specific performance that a
remedy at law would be adequate is waived.
IX.13 Severability. If any provision of this Agreement or the
application thereof to any Person or circumstance is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to Persons or
circumstances other than those as to which it has been held invalid or
unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon any such determination, the parties shall negotiate
in good faith in an effort to agree upon a suitable and equitable substitute
provision to effect the original intent of the parties.
IX.14 Jurisdiction. Each of the Company and Holdings hereby (i)
consents to be subject to the jurisdiction of the United States District Court
for the Southern District of New York and the jurisdiction of the courts of the
State of New York in any suit, action or proceeding seeking to enforce any
provision of, or based in any matter arising out of or in connection with, this
Agreement or the transaction contemplated hereby, (ii) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court, (iii) agrees that it will not bring any action
relating to this Agreement or the transactions contemplated hereby in any court
other than the United States District Court for the Southern District of New
York or the courts of the State of New York, (iv) irrevocably waives (x) any
objection that it may have or hereafter have to the changing of venue of any
such suit, action or proceeding in such court and (y) any claim that any such
suit, action or proceeding in any such court has been brought in an inconvenient
forum, and (v) irrevocably consents to the service of any and all process in any
such suit, action or proceeding by the delivery of such process to such party at
the address and in the manner provided in Section 9.7 hereof.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officers of the parties hereto as of the date first above
written.
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INSIGNIA FINANCIAL GROUP, INC.
By: /s/Xxxxxx X. Xxxxxx
-----------------------
Xxxxxx X. Xxxxxx
Chairman, President and
Chief Executive Officer
INSIGNIA/ESG HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Xxxxxxx X. Xxxxxx
President
(EXCLUDES ALL SCHEDULES)
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