AMENDED AND RESTATED SUBSCRIPTION AGREEMENT by and among ZAYA S. YOUNAN and YOUNAN PROPERTIES, INC. Dated as of , 2010
Exhibit 10.24
AMENDED AND RESTATED
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT
by and among
XXXX X. XXXXXX
and
XXXXXX PROPERTIES, INC.
Dated as of , 2010
AMENDED AND RESTATED SUBSCRIPTION AGREEMENT
THIS AMENDED AND RESTATED SUBSCRIPTION AGREEMENT (this “Agreement”) is made and entered
into as of , 2010 by and among Xxxxxx Properties, Inc., a Maryland corporation
(the “Company”), and Xxxx X. Xxxxxx (the “Investor”).
RECITALS
A. The Company proposes to undertake an underwritten initial public offering (the “IPO”) of
its common stock, par value $0.01 per share (the “Common Stock”).
B. On April 8, 2010, the Company and the Investor entered into a subscription agreement (the
“Original Agreement”) whereby the Investor agreed to purchase Common Stock of the Company
in a private placement transaction exempt from the registration requirements of the Securities Act
of 1933, as amended (the “Securities Act”), pursuant to Section 4(2) of the Securities Act
and Rule 506 of Regulation D (“Regulation D”) promulgated thereunder by the Securities and
Exchange Commission.
C. The Company and the Investor desire to amend and restate the Original Agreement in its entirety
in accordance with the terms set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the foregoing premises, and the mutual undertakings set
forth below, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree
as follows:
TERMS OF AGREEMENT
ARTICLE I.
IRREVOCABLE SUBSCRIPTION FOR SHARES
IRREVOCABLE SUBSCRIPTION FOR SHARES
Section 1.1 The Investor irrevocably subscribes for and agrees to purchase the number of
shares of Common Stock indicated in this Agreement on the terms provided for herein. The Investor
agrees to and understands the terms and conditions upon which the Common Stock is being offered.
The price per share paid by the Investor shall be the initial public offering price for the Common
Stock in the IPO. The aggregate number of shares to be purchased by the Investor will be an amount
equal to $1 million divided by the midpoint of the range of prices set forth on the cover of the
red xxxxxxx prospectus filed with the Securities and Exchange Commission in connection with the IPO
(the “Committed Share Amount”). The aggregate purchase price for the shares of Common Stock
purchased by the Investor will be an amount equal to the Committed Share Amount multiplied by the
initial public offering price per share for the Common Stock in the IPO. The date, time and place
of the consummation of the IPO shall be referred to herein as the “IPO Closing.”
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ARTICLE II.
CONDITIONS; CLOSING
CONDITIONS; CLOSING
Section 2.1 Conditions to the Company’s Obligations. The obligations of the Company
to effect the transactions contemplated hereby shall be subject to the following conditions
precedent:
(i) The representations and warranties of the Investor contained in this Agreement shall have
been true and correct in all material respects on the date such representations and warranties were
made, and on and as of the Closing Date (as hereinafter defined) as if made on and as of such date;
(ii) The obligations of the Investor contained in this Agreement shall have been duly
performed on or before the Closing Date and the Investor shall not have breached any of his
covenants contained herein in any material respect;
(iii) Concurrently with the Closing (as hereinafter defined), the Investor shall have executed
and delivered to the Company the documents required to be delivered by the Investor pursuant to
Section 2.4 hereof; and
(iv) No order, statute, rule, regulation, executive order, injunction, stay, decree or
restraining order shall have been enacted, entered, promulgated or enforced by any court of
competent jurisdiction or governmental entity that prohibits the consummation of the transactions
contemplated hereby, and no litigation or governmental proceeding seeking such an order shall be
pending or threatened.
Any or all of the foregoing conditions may be waived by the Company in its sole and absolute
discretion.
Section 2.2 Conditions to the Investor’s Obligations. The obligations of the Investor
to effect the transactions contemplated hereby shall be subject to the following conditions
precedent:
(i) The representations and warranties of the Company contained in this Agreement shall have
been true and correct in all material respects on the date such representations and warranties were
made, and on and as of the Closing Date as if made on and as of such date;
(ii) The obligations of the Company contained in this Agreement shall have been duly performed
on or before the Closing Date and the Company shall not have breached any of its covenants
contained herein in any material respect;
(iii) Concurrently with the Closing, the Company shall each have executed and delivered to the
Investor the documents required to be delivered pursuant to Section 2.4 hereof;
(iv) No order, statute, rule, regulation, executive order, injunction, stay, decree or
restraining order shall have been enacted, entered, promulgated or enforced by any court of
competent jurisdiction or governmental entity that prohibits the consummation of the
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transactions contemplated hereby, and no litigation or governmental proceeding seeking such an
order shall be pending or threatened; and
(v) The IPO Closing shall be occurring concurrently with the Closing (or the Closing shall
occur prior to, but be conditioned upon the immediate subsequent occurrence of, the IPO Closing).
Section 2.3 Time and Place. The date, time and place of the consummation of the
transactions contemplated hereunder (the “Closing” or “Closing Date”) shall occur
concurrently with (or prior to, but conditioned upon the immediate subsequent occurrence of) the
IPO Closing, in the office of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx
00000.
Section 2.4 Closing Deliveries. At the Closing, the Investor will pay the Committed
Purchase Amount in cash by wire transfer of immediately available funds to an account designated
upon reasonable advance notice by the Company. At the Closing, the parties shall make, execute,
acknowledge and deliver, or cause to be made, executed, acknowledged and delivered through such
third party as may be applicable, the legal documents and other items (collectively the
“Closing Documents”) necessary to carry out the intention of this Agreement and the other
transactions contemplated to take place in connection therewith, which Closing Documents and other
items shall include, without limitation, the following:
(i) Share Certificates, evidence of delivery of uncertificated shares of Common Stock by
book-entry, and/or other evidence of the transfer of Common Stock to the Investor;
(ii) The Registration Rights Agreement between the Investor, certain other parties and the
Company substantially in the form attached hereto as Exhibit A, (the “Registration Rights
Agreement”);
(iii) The Investor shall have executed and delivered a letter to the Company setting forth
certain representations and undertakings related to the Investor’s ownership of Common Stock in a
form reasonably acceptable to the board of directors of the Company and which allows the board of
directors of the Company to reasonably conclude that the ownership waiver and Excepted Holder Limit
(as defined in the Company’s charter) described in Section 2.4(iv) will not jeopardize the
Company’s status as a real estate investment trust (a “REIT”) under the Internal Revenue
Code of 1986, as amended (the “Code”), and make the other determinations required by the
Company’s charter in connection with granting such waiver and Excepted Holder Limit;
(iv) The Lock-up Agreement signed by the Investor substantially in the form attached hereto as
Exhibit B.
If requested by the Company, on the one hand, or the Investor, on the other hand, each party
shall provide to the requesting party a certified copy of all appropriate corporate resolutions or
partnership actions authorizing the execution, delivery and performance by such party of this
Agreement, any related documents and the documents listed in this Section 2.4.
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ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor represents and warrants to the Company as set forth below in this
Article 3, which representations and warranties are true and correct as of the date hereof and will
(except to the extent expressly relating to a specified date) be true and correct as of the date of
Closing:
Section 3.1 Consents and Approvals. Except as shall have been satisfied prior to the
Closing Date, no consent, waiver, approval or authorization of any third party or governmental
authority or agency is required to be obtained by the Investor in connection with the execution,
delivery and performance of the Agreement and the transactions contemplated hereby.
Section 3.2 No Violation. None of the execution, delivery or performance of the
Agreement, and the transactions contemplated hereby does or will, with or without the giving of
notice, lapse of time, or both, violate, conflict with, result in a breach of, or constitute a
default under or give to others any right of termination, acceleration, cancellation or other right
adverse to the Company of (A) any agreement, document or instrument to which the Investor is a
party or by which the Investor is bound, or (B) any term or provision of any judgment, order, writ,
injunction, or decree, or require any approval, consent or waiver of, or make any filing with, any
person or governmental or regulatory authority or foreign, federal, state, local or other law
binding on such Investor or by which such Investor or its assets are bound or subject; provided in
the case of (A) above, unless any such violation, conflict, breach, default or right would not have
a material adverse effect on the financial condition of the Investor.
Section 3.3 Investment Purposes. The Investor acknowledges its understanding that the
offering and issuance of Common Stock to be acquired by it pursuant to this Agreement are intended
to be exempt from registration under the Securities Act and that the Company’s reliance on such
exemption is predicated in part on the accuracy and completeness of the representations and
warranties of such Investor contained herein. In furtherance thereof, the Investor represents and
warrants to the Company as follows:
Section 3.3.1 Investment. The Investor is acquiring Common Stock hereunder solely for
its own account and not with a view to, or for offer or sale in connection with, any distribution
thereof. The Investor agrees and acknowledges that it will not, directly or indirectly, offer,
transfer, sell, assign, pledge, hypothecate or otherwise dispose of (hereinafter,
“Transfer”) any of the Common Stock acquired hereunder, unless (i) the Transfer is pursuant
to an effective registration statement under the Securities Act and qualification or other
compliance under applicable blue sky or state securities laws, or (ii) counsel for the Investor
(which counsel shall be reasonably acceptable to the Company) shall have furnished the Company with
an opinion, reasonably satisfactory in form and substance to the Company, to the effect that no
such registration is required because of the availability of an exemption from registration under
the Securities Act.
Section 3.3.2 Knowledge. The Investor is knowledgeable, sophisticated and experienced
in business and financial matters and fully understands the limitations on transfer imposed by the
Federal securities laws and as described in the Agreement. The Investor is able to bear the
economic risk of holding the Common Stock for an indefinite period and is able to
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afford the complete loss of its investment in the Common Stock; the Investor has received and
reviewed all information and documents about or pertaining to the Company, the business and
prospects of the Company and the issuance of the Common Stock, as the Investor deems necessary or
desirable, and has been given the opportunity to obtain any additional information or documents and
to ask questions and receive answers about such information and documents, the Company, the
business and prospects of the Company and the Common Stock, which the Investor deems necessary or
desirable to evaluate the merits and risks related to its investment in the Common Stock. The
Investor has reviewed with its legal counsel and tax advisors the forms of Articles of Amendment
and Restatement and Amended and Restated Bylaws of the Company and the partnership agreement of the
Company’s operating partnership subsidiary.
Section 3.3.3 Holding Period. The Investor acknowledges that it has been advised that
(i) the shares of Common Stock issued pursuant to this Agreement are “restricted securities”
(unless registered in accordance with applicable U.S. securities laws) under applicable federal
securities laws and may be disposed of only pursuant to an effective registration statement or an
exemption therefrom and the Investor understands that the Company has no obligation to register the
Investor’s Common Stock, except to the extent set forth in the Registration Rights Agreement;
accordingly, the Investor may have to bear indefinitely the economic risks of an investment in such
Common Stock, (ii) a restrictive legend in the form hereafter set forth shall be placed on the
Share Certificates, and (iii) a notation shall be made in the appropriate records of the Company
indicating that the shares of Common Stock issued hereunder are subject to restrictions on
transfer.
Section 3.3.4 Accredited Investor. The Investor is an “accredited investor” (as such
term is defined in Rule 501 (a) of Regulation D under the Securities Act). The Investor has
previously provided the Company with a duly executed Accredited Investor Questionnaire. No event
or circumstance has occurred since delivery of such Investor’s Questionnaire to make the statements
contained therein false or misleading.
Section 3.3.5 Legend. Each Share Certificate issued pursuant to this Agreement,
unless registered in accordance with applicable U.S. securities laws, shall bear the following
legend:
The securities evidenced hereby have not been registered under the Securities Act of 1933,
as amended (the “Act”), or the securities laws of any state and may not be sold,
transferred or otherwise disposed of in the absence of such registration, unless the
transferor delivers to the company an opinion of counsel satisfactory to the company, to the
effect that the proposed sale, transfer or other disposition may be effected without
registration under the Act and under applicable state securities or “Blue Sky” laws.
In addition to the foregoing legend, each Share Certificate shall bear a legend which generally
provides the following:
The shares represented by this certificate are subject to restrictions on Beneficial and
Constructive Ownership and Transfer for the purpose of the Corporation’s maintenance of its
status as a real estate investment trust under the Internal Revenue Code of 1986, as amended
(the “Code”). Subject to certain further restrictions and except as expressly
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provided
in the Corporation’s Charter, (i) no Person may Beneficially or Constructively Own shares of the Corporation’s Common Stock in excess of 9.8% (in value or number of shares) of
the outstanding shares of Common Stock of the Corporation unless such Person is an Excepted
Holder (in which case the Excepted Holder Limit shall be applicable); (ii) no Person may
Beneficially or Constructively Own shares of Capital Stock of the Corporation in excess of
9.8% of the value of the total outstanding shares of Capital Stock of the Corporation,
unless such Person is an Excepted Holder (in which case the Excepted Holder Limit shall be
applicable); (iii) no Person may Beneficially or Constructively Own Capital Stock that would
result in the Corporation being “closely held” under Section 856(h) of the Code or otherwise
cause the Corporation to fail to qualify as a REIT; and (iv) no Person may Transfer shares
of Capital Stock if such Transfer would result in the Capital Stock of the Corporation being
owned by fewer than 100 Persons. Any Person who Beneficially or Constructively Owns or
attempts to Beneficially or Constructively Own shares of Capital Stock which causes or will
cause a Person to Beneficially or Constructively Own shares of Capital Stock in excess or in
violation of the above limitations must immediately notify the Corporation. If any of the
restrictions on transfer or ownership set forth in (i) through
(iii) above are violated, the shares of Capital Stock represented hereby will be automatically transferred to a Trustee of
a Trust for the benefit of one or more Charitable Beneficiaries. In addition, the
Corporation may take other actions, including redeeming shares upon the terms and conditions
specified by the Board of Directors in its sole and absolute discretion if the Board of
Directors determines that ownership or a Transfer or other event may violate the
restrictions described above. Furthermore, upon the occurrence of certain events, attempted
Transfers in violation of the restrictions described above may be void ab initio. All
capitalized terms in this legend have the meanings defined in the Charter of the
Corporation, as the same may be amended from time to time, a copy of which, including the
restrictions on transfer and ownership, will be furnished to each holder of Capital Stock of
the Corporation on request and without charge. Requests for such a copy may be directed to
the Secretary of the Corporation at its Principal Office.
Section 3.4 No Brokers. The Investor has not employed or made any agreement with any
broker, finder or similar agent or any person or firm which will result in the obligation of the
Company or any of its affiliates to pay any finder’s fee, brokerage fees or commissions or similar
payment in connection with the transactions contemplated by the Agreement.
Except as set forth in this Article III, the Investor does not make any representation or warranty
of any kind, express or implied, and the Company acknowledges that it has not relied upon any other
such representation or warranty.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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The Company represents and warrants to the Investor as set forth below in this
Article 4, which representations and warranties are true and correct as of the date hereof and will
(except to the extent expressly relating to a specified date) be true and correct as of the date of
Closing:
Section 4.1 Organization; Authority. The Company has been duly formed and is validly
existing under the laws of the jurisdiction of its formation, and has all requisite power and
authority to enter into this Agreement and, to the extent required under applicable law, is
qualified to do business and is in good standing in each jurisdiction in which the nature of its
business or the character of its property make such qualification necessary.
Section 4.2 Due Authorization. The execution, delivery and performance of this
Agreement by the Company have been duly and validly authorized by all necessary action of the
Company. This Agreement constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, as such enforceability may be limited
by bankruptcy or the application of equitable principles.
Section 4.3 Consents and Approvals. Assuming the accuracy of the representations and
warranties of the Investor made hereunder and except in connection with the IPO, no consent,
waiver, approval or authorization of any third party or governmental authority or agency is
required to be obtained by the Company in connection with the execution, delivery and performance
of this Agreement and the transactions contemplated hereby, except any of the foregoing that shall
have been satisfied prior to the Closing Date or the IPO Closing, as applicable, and except for
those consents, waivers and approvals or authorizations, the failure of which to obtain would not
have a material adverse effect on the business, financial condition or results of operations (a
“Material Adverse Effect”) on the Company.
Section 4.4 Non-Contravention. Assuming the accuracy of the representations and
warranties of the Investor made hereunder, none of the execution, delivery or performance of this
Agreement by the Company and the consummation of the subscription transactions contemplated hereby
will (A) result in a default (or an event that, with notice or lapse of time or both would become a
default) or give to any third party any right of termination, cancellation, amendment or
acceleration under, or result in any loss of any material benefit, pursuant to any material
agreement, document or instrument to which the Company or any of its properties or assets may be
bound or (B) violate or conflict with any judgment, order, decree, or law applicable to the Company
or any of its properties or assets; provided in the case of (A) and (B), unless any such default,
violation or conflict would not have a Material Adverse Effect.
Section 4.5 REIT Status. At the effective time of the IPO and Closing, the Company
shall be organized in a manner so as to qualify as a REIT within the meaning of Section 856 of the
Code. As described in the prospectus relating to the IPO, the Company intends to elect to be taxed
and to operate in a manner that will allow it to qualify as a REIT for federal income tax purposes
commencing with its taxable year ending December 31, 2010.
Section 4.6 Common Stock. The Common Stock issuable at the Closing in accordance with
the terms of this Agreement will be duly authorized, validly issued, fully paid and
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nonassessable, and not subject to preemptive or similar rights created by statute or any
agreement to which the Company is a party or by which it is bound.
Section 4.7 No Litigation. There is no action, suit or proceeding pending or, to the
Company’s knowledge, threatened against the Company that, if adversely determined, would have a
Material Adverse Effect on the ability of the Company to execute or deliver, or perform its
obligations under, this Agreement and the documents executed by it pursuant to this Agreement or to
consummate the transactions contemplated hereby or thereby.
Section 4.8 No Prior Business. Since the date of its formation, the Company has not
conducted any business, nor has it incurred any liabilities or obligations (direct or indirect,
present or contingent), in each case except in connection with the formation transactions and the
IPO and as contemplated under this Agreement.
Section 4.9 No Broker. Neither Company nor any of its officers, directors or
employees, to the extent applicable, has employed or made any agreement with any broker, finder or
similar agent or any person or firm which will result in the obligation of any Investor or any of
its respective affiliates to pay any finder’s fee, brokerage fees or commissions or similar payment
in connection with transactions contemplated by the Agreement.
Except as set forth in this Article 4, the Company does not make any representation or warranty of
any kind, express or implied, and the Investor acknowledges that it has not relied upon any other
such representation or warranty.
ARTICLE V.
MISCELLANEOUS
MISCELLANEOUS
Section 5.1 Information. The Company may request from the Investor such additional
information as the Company may deem necessary to evaluate the eligibility of the Investor to
acquire the Common Stock, and may request from time to time such information as the Company may
deem necessary to determine the eligibility of the Investor to hold the Common Stock or to enable
the Company to determine the Company’s compliance with applicable regulatory requirements or tax
status, and the Investor shall provide such information as may reasonably be requested.
Section 5.2 Further Assurances. The Investor and the Company shall take such other
actions and execute such additional documents following the Closing as the other may reasonably
request in order to effect the transactions contemplated hereby.
Section 5.3 Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
Section 5.4 Governing Law. This Agreement shall be governed by the internal laws of
the State of California, without regard to the choice of laws provisions thereof.
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Section 5.5 Amendment; Waiver. Any amendment hereto shall be in writing and signed by
all parties hereto. No waiver of any provisions of this Agreement shall be valid unless in writing
and signed by the party against whom enforcement is sought.
Section 5.6 Entire Agreement. This Agreement and the exhibits and schedules hereto
constitute the entire agreement and supersede conflicting provisions set forth in all other prior
agreements and understandings, both written and oral, among the parties with respect to the subject
matter hereof.
Section 5.7 Assignability. This Agreement shall be binding upon, and shall be
enforceable by and inure to the benefit of, the parties hereto and their respective heirs, legal
representatives, successors and assigns; provided, however, that this Agreement may not be assigned
(except by operation of law) by any party without the prior written consent of the other parties,
except to an affiliate, and no assignment shall relieve a party from its obligations under this
Agreement.
Section 5.8 Titles. The titles and captions of the Articles, Sections and paragraphs
of this Agreement are included for convenience of reference only and shall have no effect on the
construction or meaning of this Agreement.
Section 5.9 Third Party Beneficiary. Except as may be expressly provided or
incorporated by reference herein, including, without limitation, the indemnification provisions
hereof, no provision of this Agreement is intended, nor shall it be interpreted, to provide or
create any third party beneficiary rights or any other rights of any kind in any customer,
affiliate, stockholder, partner, member, director, officer or employee of any party hereto or any
other person or entity.
Section 5.10 Severability. If any provision of this Agreement, or the application
thereof, is for any reason held to any extent to be invalid or unenforceable, the remainder of this
Agreement and application of such provision to other persons or circumstances will be interpreted
so as reasonably to effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Agreement with a valid and enforceable provision that
will achieve, to the extent possible, the economic, business and other purposes of the void or
unenforceable provision and to execute any amendment, consent or agreement deemed necessary or
desirable by the Company to effect such replacement.
Section 5.11 Reliance. Each party to this Agreement acknowledges and agrees that it
is not relying on tax advice or other advice from the other party to this Agreement, and that it
has or will consult with its own advisors.
Section 5.12 Survival. It is the express intention and agreement of the parties
hereto that the representations, warranties and covenants of the Investor and the Company set forth
in this Agreement shall survive the consummation of the transactions contemplated hereby.
Section 5.13 Notice. Any notice to be given hereunder by any party to the other shall
be given in writing by either (i) personal delivery, (ii) registered or certified mail, postage
prepaid, return receipt requested, or (iii) facsimile transmission (provided such facsimile is
followed by an original of such notice by mail or personal delivery as provided herein), and any
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such notice shall be deemed communicated as of the date of delivery (including delivery by
overnight courier, certified mail or facsimile). Mailed notices shall be addressed as set forth
below, but any party may change the address set forth below by written notice to other parties in
accordance with this paragraph.
To the Company:
Xxxxxx Properties, Inc.
0000 Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxx X. Xxxxxxxx
0000 Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxx X. Xxxxxxxx
To the Investor:
Xxxx X. Xxxxxx
0000 Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
0000 Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Section 5.14 Equitable Remedies. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not performed in accordance
with the specific terms hereof or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and
to enforce specifically the terms and provisions hereof in any federal or state court located in
California (as to which the parties agree to submit to jurisdiction for the purpose of such
action), this being in addition to any other remedy to which the parties are entitled under this
Agreement; provided, however, that nothing in this Agreement shall be construed to permit the
Investor to enforce consummation of the IPO.
Section 5.15 Dispute Resolution. The parties hereby agree that, in order to obtain
prompt and expeditious resolution of any disputes under this Agreement, each claim, dispute or
controversy of whatever nature, arising out of, in connection with, or in relation to the
interpretation, performance or breach of this Agreement (or any other agreement contemplated by or
related to this Agreement or any other agreement between the parties), including without limitation
any claim based on contract, tort or statute, or the arbitrability of any claim hereunder (an
“Arbitrable Claim”), shall, subject to Section 5.14 above, be settled by final and binding
arbitration conducted in Los Angeles, California. Any Arbitrable Claims under this Agreement shall
be resolved in accordance with a two-step dispute resolution process administered by Judicial
Arbitration & Mediation Services, Inc. (“JAMS”) involving, first, mediation before a
retired judge from the JAMS panel, followed, if necessary, by final and binding arbitration before
the same, or if requested by either party, another JAMS panelist. Such dispute resolution
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process shall be confidential and shall be conducted in accordance with California Evidence
Code Section 1119.
Section 5.16 Mediation. In the event any Arbitrable Claim is not resolved by an
informal negotiation between the parties within fifteen (15) days after either party receives
written notice that a Arbitrable Claim exists, the matter shall be referred to the Los Angeles,
California office of JAMS, or any other office agreed to by the parties, for an informal,
non-binding mediation consisting of one or more conferences between the parties in which a retired
judge will seek to guide the parties to a resolution of the Arbitrable Claims. The parties shall
select a mutually acceptable neutral arbitrator from among the JAMS panel of mediators. In the
event the parties cannot agree on a mediator, an administrator of JAMS will appoint a mediator.
The mediation process shall continue until the earliest to occur of the following: (i) the
Arbitrable Claims are resolved, (ii) the mediator makes a finding that there is no possibility of
resolution through mediation, or (iii) thirty (30) days have elapsed since the Arbitrable Claim was
first scheduled for mediation.
Section 5.17 Arbitration. Should any Arbitrable Claim remain after the completion of
the mediation process described above, the parties agree to submit all remaining Arbitrable Claims
to final and binding arbitration administered by JAMS in accordance with the then existing JAMS
Arbitration Rules. Neither party nor the arbitrator shall disclose the existence, content, or
results of any arbitration hereunder without the prior written consent of all parties. Except as
provided herein, the California Arbitration Act shall govern the interpretation, enforcement and
all proceedings pursuant to this subparagraph. The arbitrator is without jurisdiction to apply any
substantive law other than the laws selected or otherwise expressly provided in this Agreement.
The arbitrator shall render an award and a written, reasoned opinion in support thereof. Judgment
upon the award may be entered in any court having jurisdiction thereof.
Section 5.18 Survivability. This dispute resolution process shall survive the
termination of this Agreement. The parties expressly acknowledge that by signing this Agreement,
they are giving up their respective right to a jury trial.
Section 5.19 Enforcement Costs. Should any party institute any action or proceeding
under Section 5.15 above (or, with respect to the Company, Sections 5.16 or 5.17 above), the
prevailing party shall be entitled to receive all reasonable costs and expenses (including
reasonable attorneys’ fees) incurred by such prevailing party in connection with such action or
proceeding. A party entitled to recover costs and expenses under this Section 5.19 shall also be
entitled to recover all costs and expenses (including reasonable attorneys’ fees) incurred in the
enforcement of any judgment or settlement obtained in such action or proceeding and provision (and
in any such judgment provision shall be made for the recovery of such post-judgment costs and
expenses).
[signature page to follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| “COMPANY” Xxxxxx Properties, Inc. |
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| By: | ||||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | President | |||
| “INVESTOR” |
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| Xxxx X. Xxxxxx |
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