EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
by and among
XXXXXXX XXXXXX
and
CODINA GROUP, INC.
and
ST. XXX CORPORATION
and
WEEKS REALTY SERVICES, INC.
DATED: February ___, 1998
TABLE OF CONTENTS
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PAGE
ARTICLE I - DEFINITIONS
ARTICLE II - TRANSFER OF SHARES; CLOSING
2.1 Shares.......................................... 10
2.2 Purchase Price.................................. 10
2.3 Closing Obligations............................. 11
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF CODINA AND COMPANY
3.1 Organization and Good Standing.................. 12
3.2 Authority....................................... 12
3.3 No Conflict..................................... 12
3.4 Capitalization of Company....................... 13
3.5 Capitalization of Subsidiaries.................. 14
3.6 Financial Statements............................ 15
3.7 Licensing of Company and Subsidiaries........... 15
3.8 Books and Records............................... 16
3.9 Title to Properties; Encumbrances............... 16
3.10 Condition and Sufficiency of Assets............. 17
3.11 Accounts Receivable............................. 17
3.12 No Undisclosed Liabilities...................... 18
3.13 Taxes........................................... 18
3.14 No Material Adverse Change...................... 19
3.15 Employee Benefits............................... 19
3.16 Compliance with Legal Requirements.............. 20
3.17 Governmental Authorizations..................... 20
3.18 Legal Proceedings............................... 21
3.19 Orders.......................................... 21
3.20 Absence of Certain Changes and Events........... 21
3.21 Contracts....................................... 22
3.22 No Defaults..................................... 23
3.23 Insurance....................................... 24
3.24 Environmental Matters........................... 25
3.25 Employees....................................... 26
3.26 Intellectual Property........................... 27
3.27 Certain Payments................................ 28
3.28 Disclosure...................................... 28
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3.29 Relationships with Related Persons.............. 28
3.30 Brokers or Finders.............................. 29
3.31 Bank Accounts; Directors & Offices.............. 29
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF ST. XXX AND WEEKS
4.1 Organization and Good Standing................... 29
4.2 Authority........................................ 29
4.3 No Conflict...................................... 29
4.4 Investment Intent................................ 30
4.5 Certain Proceedings.............................. 30
4.6 Brokers or Finders............................... 30
4.7 Organization and Good Standing................... 30
4.8 Authority........................................ 30
4.9 No Conflict...................................... 30
4.10 Investment Intent................................ 31
4.11 Certain Proceedings.............................. 31
4.12 Brokers or Finders............................... 31
ARTICLE V. - INDEMNIFICATION; REMEDIES
5.1 Survival; Right to Indemnification.............. 31
5.2 Indemnification and Payment of Damages by Codina. 31
5.3 Indemnification and Payment of Damages by St. Xxx 32
5.4 Indemnification and Payment of Damages by Weeks.. 32
5.5 Assertion of Claims.............................. 32
5.6 Indemnity Limits................................. 33
ARTICLE VI - GENERAL PROVISIONS
6.1 Expenses.......................................... 34
6.2 Public Announcements.............................. 34
6.3 Confidentiality................................... 34
6.4 Enforcement Costs................................. 34
6.5 Equitable Remedies................................ 35
6.6 Notices........................................... 35
6.7 Jurisdiction; Service of Process.................. 36
6.8 Further Assurances................................ 36
6.9 Waiver............................................ 36
6.10 Entire Agreement and Amendment.................... 37
6.11 Assignment, Successors and No Third-Party Rights.. 37
6.12 Severability...................................... 37
6.13 Section Headings, Construction.................... 37
6.14 Time of Essence................................... 38
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6.15 Governing Law..................................... 38
6.16 Counterparts...................................... 38
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STOCK PURCHASE AGREEMENT
------------------------
THIS STOCK PURCHASE AGREEMENT is made as of February ___, 1998, by and
among ST. XXX CORPORATION, a Florida corporation ("St. Xxx"), and WEEKS REALTY
SERVICES, INC., a Georgia corporation indirectly, majority-owned by Weeks
Corporation ("Weeks") (referred to sometimes together as the "Buyers"), and
XXXXXXX XXXXXX, an individual resident of the State of Florida ("Codina"), and
CODINA GROUP, INC., a Florida corporation (the "Company") (referred to sometimes
together as "Sellers").
WHEREAS, the Company is a corporation organized and existing under the
laws of the State of Florida in the business of providing development,
management, construction, consulting, and leasing services for real properties
located in south Florida;
WHEREAS, St. Xxx is a corporation organized and existing under the
laws of the State of Florida that is interested in providing development,
management, construction, consulting, and leasing services for real properties
located in south Florida;
WHEREAS, Weeks is a corporation organized and existing under the laws
of the State of Georgia that is interested in providing development, management,
construction, consulting, and leasing services for real properties located in
south Florida;
WHEREAS, the Company owns directly or indirectly all of the issued and
outstanding shares of stock of certain operating companies that perform
development, management and leasing services, such companies being Codina
Development Corporation, Codina Construction Corporation, Codina Xxxx Xxxxx
Realty, Inc., Codina Real Estate Management, Inc., CR Consulting, Inc. and C & S
Real Estate Development Corp. (sometimes referred to herein together as the
"Subsidiaries" and individually as "Subsidiary");
WHEREAS, the Company and Codina have determined that it would be in
their respective best interests to sell a certain percentage of the Company's
issued and outstanding stock to Weeks and St. Xxx;
WHEREAS, St. Xxx and Weeks have determined that it would be in their
respective best interests to each acquire one-third of the capital stock of the
Company; and
WHEREAS, Sellers and Buyers wish to provide for certain undertakings,
conditions, representations, warranties and covenants in connection with the
transaction contemplated hereby.
NOW, THEREFORE, in consideration of the premises and of the respective
covenants, representations, warranties and agreements herein contained, it is
hereby covenanted and agreed by and among the parties hereto that they shall
carry out and consummate the following agreement ("Agreement"):
ARTICLE I. DEFINITIONS
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For purposes of this Agreement, the following terms have the meanings
specified or referred to in this Article 1:
"Applicable Contract" means any Contract (a) under which the Company
or any Subsidiary has or may acquire any rights, (b) under which the Company or
any Subsidiary has or may become subject to any obligation or liability, or (c)
by which the Company or any Subsidiary or any of the assets owned or used by any
of them is or may become bound.
"Best Efforts" means the efforts that a prudent Person desirous of
achieving a result would use in similar circumstances to ensure that such result
is achieved as expeditiously as possible.
"Breach" means a Breach of a representation, warranty, covenant,
obligation or other provision of this Agreement or any instrument delivered
pursuant to this Agreement which will be deemed to have occurred if there is or
has been (a) any inaccuracy in or breach of, or any failure to perform or comply
with such representation, warranty, covenant, obligation or other provision, or
(b) any claim (by any Person) or other occurrence or circumstance that is or was
inconsistent with such representation, warranty, covenant, obligation or other
provision, and the term "Breach" means any such inaccuracy, breach, failure,
claim, occurrence or circumstance.
"Buyers" has the meaning as defined in the first paragraph of
this Agreement.
"Closing" means the date of this Agreement.
"Closing Date" means the date and time as of which the Closing
actually takes place.
"Closing Date Balance Sheet" has the meaning defined in Section 3.6.
"Collateral Documents" means those documents listed in Section 2.3.
"Company" has the meaning as defined in the first paragraph of this
Agreement.
"Consent" means any approval, consent, ratification, waiver or other
authorization (including any Governmental Authorization).
"Contemplated Transactions" means all of the transactions
contemplated by this Agreement, including:
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(a) the issuance or transfer of the St. Xxx Shares and the Weeks
Shares by Sellers to Buyers for the Purchase Price and the cancellation and
reissuance of any and all certificates representing the Shares;
(b) the execution, delivery and performance of the Seller's Release;
(c) the performance by Buyer and Seller of their respective covenants
and obligations under this Agreement;
(d) the execution, delivery and performance of the Shareholders'
Agreement by Buyers and Sellers;
(e) the execution, delivery and performance of the License Agreement
by Codina; and
(f) Buyers' acquisition and ownership of the Shares.
"Contract" means any agreement, contract, obligation, promise or
undertaking (whether written or oral and whether express or implied) that is
legally binding.
"Damages" has the meaning as defined in Section 5.2.
"Development Agreements" means any Applicable Contract under which the
Company or a Subsidiary is responsible for the development of real property as
more particularly described in Exhibit 3.21(i).
"EBITDA" shall mean for purposes of this Agreement, the net income
(determined in accordance with generally accepted accounting principles) of the
Corporation for the twelve month period ended December 31, 1997, before interest
expense and the provision for income taxes, adjusted by (i) adding thereto the
amount of all amortization of intangibles and depreciation that were deducted in
arriving at the Corporation's net income for such period, (ii) subtracting
therefrom the amount of all non-cash gains that were added in arriving at the
Corporation's net income for such period, (iii) excluding from such calculation
all extraordinary items (determined in accordance with generally accepted
accounting principles) and (iv) adding thereto the amount of all non-cash losses
that were deducted in arriving at the Corporation's net income for such period;
provided that in computing EBITDA for such period, no amount shall be deducted
for salaries, bonuses and any and all benefits paid or payable to Xxx Xxxx, any
extraordinary bonuses paid to Xxxxx Xxxxxxx, Xxxx Xxxxx, Ford Xxxxxx, Xxxx
Xxxxx, Xxxxxx Xxxxx, Xxxxxxx Xxxxxx and Xxxxxxx Xxxxxx and the fee paid to
Xxxxxx Xxxxxxxx in connection with the Contemplated Transaction. For this
purpose an extraordinary bonus shall mean any payment in excess of such Person's
base salary, benefits and the incentive compensation described on the Exhibits
to the Employment Agreements between the Corporation and Messrs. Befeler,
Gibson, Xxxxx, Xxxxxx, Rodon and Xxxxx all dated as of January 1, 1998.
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"Encumbrance" means any charge, claim, community property interest,
condition, equitable interest, lien, option, pledge, security interest, right of
first refusal or restriction of any kind, including any restriction on use,
voting, transfer, receipt of income or exercise of any other attribute of
ownership.
"Environment" means soil, land surface or subsurface strata, surface
waters (including navigable waters, ocean waters, streams, ponds, drainage
basins and wetlands) groundwaters, drinking water supply, stream sediments,
ambient air (including indoor air) plant and animal life and any other
environmental medium or natural resource.
"Environmental, Health and Safety Liabilities" means any cost,
damages, expense, liability, obligation or other responsibility arising from or
under Environmental Law or Occupational Safety and Health Law and consisting of
or relating to:
(a) any environmental, health or safety matters or conditions (including
on-site or off-site contamination, occupational safety and health and
regulation of chemical substances or products);
(b) fines, penalties, judgments, awards, settlements, legal or
administrative proceedings, damages, losses, claims, demands and response,
investigative, remedial or inspection costs and expenses arising under
Environmental Law or Occupational Safety and Health Law;
(c) financial responsibility under Environmental Law or Occupational
Safety and Health Law for cleanup costs or corrective action, including any
investigation, cleanup, removal, containment or other remediation or
response actions ("Cleanup") required by applicable Environmental Law or
Occupational Safety and Health Law (whether or not such Cleanup has been
required or requested by any Governmental Body or any other Person) and for
any natural resource damages; or
(d) any other compliance, corrective, investigative or remedial measures
required under Environmental Law or Occupational Safety and Health Law.
The terms "removal", "remedial" and "response action" include the types of
activities covered by the United States Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. (S) 9601 et seq., as amended
("CERCLA").
"Environmental Law" means any Legal Requirement that requires or relates
to:
(a) advising appropriate authorities, employees and the public of
intended or actual releases of pollutants or hazardous substances or materials,
violations of discharge limits or other prohibitions and of to commencements
of activities, such as resource extraction or construction, that could have
significant impact on the Environment;
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(b) preventing or reducing to acceptable levels the release of
pollutants or hazardous substances or materials into the Environment;
(c) reducing the quantities, preventing the release or minimizing the
hazardous characteristics of wastes that are generated;
(d) assuring that products are designed, formulated, packaged and
used so that they do not present unreasonable risks to human health or the
Environment when used or disposed of;
(e) protecting resources, species or ecological amenities;
(f) reducing to acceptable levels the risks inherent in the
transportation of hazardous substances, pollutants, oil or other potentially
harmful substances;
(g) cleaning up pollutants that have been released, preventing the
threat of release or paying the costs of such clean up or prevention; or
(h) making responsible parties pay private parties, or groups of them,
for damages done to their health or the Environment or permitting self-
appointed representatives of the public interest to recover for injuries
done to public assets.
"Facilities" means any real property, leaseholds or other interests
currently or formerly owned or operated by the Company or any Subsidiary and any
buildings, plants, structures or equipment (including motor vehicles) currently
or formerly owned or operated by the Company or any Subsidiary.
"Financial Statements" has the meaning as defined in Section 3.6.
"GAAP" means generally accepted accounting principles in effect in the
United States from time to time.
"Governmental Authorization" means any approval, consent, license,
permit, waiver or other authorization issued, granted, given or otherwise made
available by or under the authority of any Governmental Body or pursuant to any
Legal Requirement.
"Governmental Body" means any:
(a) federal, state, regional, county, city, town, village, district or
other jurisdiction of any nature;
(b) federal, state, local, municipal, foreign or other government;
(c) governmental or quasi-governmental authority of any nature
(including any governmental agency, branch, department, official or entity
and any court or other tribunal);
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(d) multi-national organization or body; or
(e) body exercising or entitled to exercise any administrative,
executive, judicial, legislative, police, regulatory or taxing authority
or power of any nature.
"Hazardous Activity" means the distribution, generation, handling,
importing, management, manufacturing, processing, production, refinement,
release, storage, transfer, transportation, treatment or use (including any
withdrawal or other use of groundwater) of Hazardous Materials in, on, under,
about or from the Facilities or any part thereof into the Environment, and any
other act, business, operation or thing that increases the danger, or risk of
danger, or poses an unreasonable risk of harm to persons or property on or off
the Facilities, or that may affect the value of the Facilities or the Company or
any of the Subsidiaries.
"Hazardous Materials" means any waste or other substance that is
listed, defined, designated or classified as, or otherwise determined to be,
hazardous, radioactive or toxic or a pollutant or a contaminant under or
pursuant to any Environmental Law, including any admixture or solution thereof
and specifically including petroleum and all derivatives thereof or synthetic
substitutes therefor and asbestos or asbestos-containing materials.
"Indemnification Claim" has the meaning as defined in Section 5.5.
"Indemnified Party" has the meaning as defined in Section 5.5.
"IRC" means the Internal Revenue Code of 1986 or any successor law and
regulations issued by the IRS pursuant to the Internal Revenue Code or any
successor law.
"IRS" means the United States Internal Revenue Service or any
successor agency and, to the extent relevant, the United States Department of
the Treasury.
"Knowledge of Codina" means the actual knowledge of Xxxxxxx Xxxxxx and
Xxxxx Xxxxxxx with respect to the subject matter of the representation.
"Leasing Agreements" means any Applicable Contract under which the
Company or a Subsidiary has a right to list and/or lease certain commercial and
industrial space as more particularly described in Exhibit 3.21(i).
"Legal Requirement" means any federal, state, local, municipal, or
other administrative order, constitution, law, ordinance, principle of common
law, regulation statute or treaty.
"License Agreement" means that certain license agreement dated the
date hereof, by and between Codina, as licensor, and the Company, as licensee.
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"Management Agreements" means any Applicable Contract under which the
Company or a Subsidiary is responsible for the management of the operations of
real property as more particularly described in Exhibit 3.21(i).
"Occupational Safety and Health Law" means any Legal Requirement
designed to provide safe and healthful working conditions and to reduce
occupational safety and health hazards, and any program, whether governmental or
private (including those promulgated or sponsored by industry associations and
insurance companies) designated to provide safe and healthful working
conditions.
"Order" means any award, decision, injunction, judgment, order,
ruling, subpoena or verdict entered, issued, made or rendered by any court,
administrative agency or other Governmental Body or by any arbitrator.
"Ordinary Course of Business" means an action taken by a Person will
be deemed to have been taken in the "Ordinary Course of Business" only if:
(a) such action is consistent with the past practices of such Person
and is taken in the ordinary course of the normal day-to-day operations
of such Person; and
(b) such action is similar in nature and magnitude to actions
customarily taken in the ordinary course of the normal day-to-day
operations of other Persons that are in the same line of business
as such Person.
"Organizational Documents" means (a) the articles or certificate of
incorporation and the bylaws of a corporation, (b) the partnership agreement and
any statement of partnership of a general partnership, (c) the limited
partnership agreement and the certificate of limited partnership of a limited
partnership, (d) any charter or similar document adopted or filed in connection
with the creation, formation or organization of a Person, and (e) any amendment
to any of the foregoing.
"Person" means any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, labor union or other entity
or Governmental Body.
"Proceeding" means any action, arbitration, audit, hearing,
investigation, litigation or suit (whether civil, criminal, administrative,
investigative or informal) commenced, brought, conducted or heard by or before,
or otherwise involving, any Governmental Body or arbitrator.
"Proprietary Rights Agreement" has the meaning defined in Section 3.25.
"Purchase Price" means an aggregate of $16,800,000 as adjusted pursuant
to the provisions of Section 2.2.
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"Related Person" means, with respect to a particular individual:
(a) each other member of such individual's Family;
(b) any Person that is directly or indirectly controlled by such
individual or one or more member of such individual's Family;
(c) any Person in which such individual or members of such individual's
Family hold (individually or in the aggregate) a material Interest; and
(d) any Person with respect to which such individual or one or more
members of such individual's Family serves as a director, officer partner,
executor or trustee (or in a similar capacity).
With respect to a specified Person other than an individual:
(a) any Person that directly or indirectly controls, is directly or
indirectly controlled by or is directly or indirectly under common control
with such specified Person;
(b) any Person that holds a material Interest in such specified Person;
(c) each Person that serves as a director, officer, partner, executor
or trustee of such specified Person (or in a similar capacity);
(d) any Person in which such specified Person holds a material
Interest;
(e) any Person with respect to which such specified Person serves as a
general partner or a trustee (or in a similar capacity); and
(f) any Related Person of any individual described in clause (b) or
(c).
For purposes of this definition, (a) the "Family" of an individual includes
(i) the individual's spouse and, (ii) any other natural person who is related to
the individual or the individual's spouse within the second degree, and (b)
"material Interest" means direct or indirect beneficial ownership (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934) of voting securities or
other voting interests representing at least 10% of the outstanding voting power
of a Person or equity securities or other equity interests representing at
least 10% of the outstanding equity securities or equity interests in a Person.
"Release" means any spilling, leaking, emitting, discharging,
depositing, escaping, leaching, dumping or other releasing into the Environment,
whether intentional or unintentional.
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"Securities Act" means the Securities Act of 1933, as amended, or any
successor law, regulations and rules issued pursuant to that act or any
successor law.
"Sellers" has the meaning as defined in the first paragraph of this
Agreement.
"Sellers' Closing Documents" means the Collateral Documents, Sellers'
Release and the certificates representing the St. Xxx Shares and the Weeks
Shares.
"Sellers' Release" has the meaning as defined in Section 2.3.
"Shareholders' Agreement" means that certain shareholders' agreement
dated as of the date hereof, by and between Codina, Weeks and St. Xxx, as
Shareholders, and the Company.
"Shares" has the meaning as defined in Section 3.4.
"St. Xxx Shares" means the 3,601 Shares delivered to St. Xxx by Xxxxxx
and the 1,399 Shares issued to St. Xxx by the Company.
"Subsidiary" has the meaning as defined in the Recitals of this
Agreement.
"Tax" means any and all taxes, charges, fees, duties, levies or other
assessments, including, without limitation, income, gross receipts, net
proceeds, ad valorem, turnover, real and personal property (tangible and
intangible), sales, use, franchise, excise, value added, license, payroll,
unemployment, customs duties, disability, stamp, leasing, lease, user, transfer,
fuel, excess profits, occupational and interest equalization, windfall profits,
severance and employees' income withholding and Social Security taxes imposed
by, the United States or any other country or by any state, municipality,
subdivision or instrumentality of, the United States or of any other country or
by any other Governmental Authority, including all applicable penalties and
interest, and such term shall include any interest, penalties or additions to
tax attributable to such Taxes.
"Tax Return" means any return (including any information return),
report, statement, schedule, notice, form or other document or information filed
with or submitted to, or required to be filed with or submitted to any
Governmental Body in connection with the determination, assessment, collection
or payment of any Tax or in connection with the administration, implementation
or enforcement of or compliance with any Legal Requirement relating to any Tax.
"Threat of Release" means a substantial likelihood of a Release that
may require action in order to prevent or mitigate damage to the Environment
that may result from such Release.
"Threatened" means a claim, Proceeding, dispute, action or other
matter will be deemed to have been "Threatened" if any demand or statement has
been made (in writing) or any notice has been given (in writing) or if any other
event has occurred or any other circumstances exist that would lead a prudent
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Person to conclude that such a claim, Proceeding, dispute, action or other
matter is likely to be asserted, commenced, taken or otherwise pursued in the
future.
"Warrant Agreement" means the form of warrant agreement attached
hereto as Exhibit A.
"Weeks Shares" means the 3,601 Shares delivered to Weeks by Codina
and the 1,399 Shares issued to Weeks by the Company.
"Weeks Warrant" means a warrant to purchase a share of Weeks
Corporation common stock issued pursuant to a Warrant Agreement containing the
same terms and conditions as the Warrant Agreement with an Exercise Price (as
defined therein) equal to the closing price of Weeks Corporation's common stock
on the first day immediately preceding the Closing Date when the New York Stock
Exchange is open for business.
ARTICLE II. TRANSFER OF SHARES; CLOSING
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2.1 SHARES. Subject to the terms and conditions of this Agreement,
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Sellers hereby sell or issue, as applicable the St. Xxx Shares to St. Xxx and
the Weeks Shares to Weeks.
2.2 PURCHASE PRICE.
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(a) St. Xxx hereby delivers (i) to Codina the sum of Six Million Fifty
Thousand Dollars ($6,050,000) and (ii) to the Company the sum of Two Million
Three Hundred Fifty Thousand Dollars ($2,350,000), both in exchange for the St.
Xxx Shares. Weeks hereby delivers (i) to Codina the sum of Six Million Fifty
Thousand Dollars ($6,050,000) and (ii) to Company the sum of Two Million Seven
Hundred Fifty Thousand Dollars ($2,750,000), both in exchange for the Weeks
Shares. Upon completion of the Company's 1997 audited financial statements, (i)
if (a) the Company's 1997 EBIDTA is less than $4,000,000 and/or (b) the
Company's liabilities exceed its assets, the Purchase Price paid to the Company
and Codina collectively by Weeks and St. Xxx will be reduced by the sum of (I)
an amount equal to the product of (A) 66 2/3% and (B) the product of (1) 6 and
(2) the amount, if any, by which $4,000,000 exceeds the Company's 0000 XXXXXX
and (II) the product of (A) 66 2/3% and (B) the amount, if any, by which the
Company's liabilities exceed its assets or (ii) if (a) the Company's 1997 EBITDA
exceeds $4,400,000 and/or (b) the Company's assets exceed its liabilities, the
Purchase Price paid to the Company and Codina collectively by Weeks and St. Xxx
will be increased by the sum of (I) an amount equal to the product of (A) 66
2/3% and (B) the product of (1) 6 and (2) the amount, if any, by which the
Company's 1997 EBITDA exceeds $4,400,000 but is not in excess of $4,600,000 and
(II) the product of (A) 66-2/3% and (B) the amount, if any, by which the
Company's assets exceed its liabilities. Any purchase price increase or
decrease shall be paid or repaid by or to the Sellers in the same ratio as their
initial payments hereunder provided that for such purpose the total Purchase
Price paid to the Company shall be deemed to be $4,700,000. Any purchase price
adjustment shall be paid in cash within 30 days after issuance of the Company's
1997 audited financial statements.
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(b) If the cost to the Corporation of reaching agreement with the Internal
Revenue Service regarding the qualification of the Codina Group Employee Savings
and Protection Plan net of any recovery from consultants to the Corporation
exceeds $25,000, the Purchase Price shall be reduced by such excess amount.
Such excess amount, if any, shall be paid in cash by Codina to the Corporation
within thirty (30) days after such amount is ultimately determined.
2.3 CLOSING OBLIGATIONS. Sellers shall deliver to Buyers:
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(i) certificates representing the St. Xxx Shares and the Weeks
Shares to St. Xxx and Weeks respectively;
(ii) release in the form of Exhibit B attached hereto executed by
Seller ("Seller's Release");
(iii) Shareholders' Agreement; and
(iv) License Agreement.
2.4 Weeks Warrants. The Company shall purchase and Weeks Corporation
--------------
shall sell to the Company 100,000 Weeks Warrants for a purchase price of Four
Hundred Thousand Dollars ($400,000). Codina shall purchase and Weeks
Corporation shall sell to Codina 70,000 Weeks Warrants for a purchase price of
Two Hundred and Eighty Thousand Dollars ($280,000). The Company and Codina
shall pay the foregoing purchase price by wire transfer within two business days
from the Closing Date and Weeks Corporation shall deliver a Warrant Agreement
and the Warrant Certificates referred to in such Warrant Agreement to the
Company and Codina within thirty days from the Closing Date.
The individuals listed below shall purchase and Weeks Corporation
shall sell to the individuals listed below the number of Weeks Warrants listed
opposite their names for the purchase price indicated:
Number of
Name Weeks Warrants Purchase Price
------------------------------ ------------------------------ ------------------
Xxxxx Xxxxxxx 50,000 $200,000
Ford Xxxxxx 40,000 $160,000
Xxxxx Xxxxx 20,000 $ 80,000
Xxxxxxx X. Xxxxxx 20,000 $ 80,000
Xxxx Xxxxx 20,000 $ 80,000
Xxxxxx Xxxxx 30,000 $120,000
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The purchase price shall be paid by Messrs. Befeler, Gibson, Xxxxx, Xxxxxx,
Xxxxx and Xxxxx by check within ten business days from the Closing Date and
Weeks Corporation shall deliver a Warrant Agreement and the Warrant Certificates
referred to in such Warrant Agreement to such individuals within thirty days
from the Closing Date.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
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OF CODINA AND COMPANY
---------------------
Codina, and the Company as to Sections 3.1 through and including Section
3.5 only, jointly and severally, represent and warrant to each of the Buyers as
follows:
3.1 ORGANIZATION AND GOOD STANDING. The Company and the Subsidiaries are
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each a corporation duly organized, validly existing, and in good standing under
the laws of the State of Florida, with full corporate power and authority to
conduct their business as it is now being conducted, to own or use the
properties and assets that it purports to own or use, and to perform all its
obligations under Applicable Contracts. Neither the Company nor any Subsidiary
is qualified to do business as a foreign corporation under the laws of any other
state or other jurisdiction because the ownership and use of the properties
owned or used by it, or the nature of the activities conducted by it, does not
require such qualification. Sellers have delivered to Buyers true, correct and
complete copies of the Organizational Documents of the Company and Subsidiaries,
as currently in effect.
3.2 AUTHORITY. The execution and delivery of this Agreement and the other
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Sellers' Closing Documents by the Company and the performance by the Company of
its covenants and agreements hereunder and thereunder have been duly authorized
by all necessary corporate action on the part of the Company, and each of this
Agreement and the Collateral Documents constitutes the legal, valid and binding
obligation of Sellers, enforceable against Sellers in accordance with their
respective terms subject to applicable bankruptcy, insolvency, reorganization or
other laws now or hereafter in effect affecting creditors' rights generally and
subject to general principles of equity. Sellers have the absolute and
unrestricted right, power, authority and capacity to execute and deliver this
Agreement and the Sellers' Closing Documents and to perform their obligations
under this Agreement and the Sellers' Closing Documents, and all of the Seller's
Closing Documents executed and delivered by the Company and the Contemplated
Transactions have been approved by all necessary corporate and other action.
3.3 NO CONFLICT. Except as would not have a material adverse effect on
-----------
the consolidated financial condition of the Company, provided that the preceding
exception does not apply to Subsection 3.3(i), neither the execution and
delivery of this Agreement nor the consummation or performance of any of the
Contemplated Transactions will, directly or indirectly (with or without notice
or lapse of time or both);
(i) contravene, conflict with or result in a violation of (A) any
provision of the Organizational Documents of the Company or the
-12-
Subsidiaries, or (B) any resolution adopted by the board of directors or
the stockholders of the Company or the Subsidiaries;
(ii) contravene, conflict with or result in a violation of or give any
Governmental Body or other Person the right to challenge Codina's or the
Company's consummation of any of the Contemplated Transactions or to
exercise any remedy or obtain any relief under, any Legal Requirement or
any Order to which Codina, the Company or any Subsidiary, or any of the
assets owned or used by Codina, the Company or any Subsidiary, may be
subject;
(iii) contravene, conflict with or result in a violation of any of
the terms or requirements of or give any Governmental Body the right to
revoke, withdraw, suspend, cancel, terminate or modify any Governmental
Authorization that is held by the Company or any Subsidiary or that
otherwise relates to the business of, or any of the assets owned or used
by, the Company or any Subsidiary;
(iv) to the Knowledge of Codina, cause the Company or any Subsidiary
to become subject to or to become liable for the payment of any Tax for
which they would otherwise not be liable;
(v) contravene, conflict with or result in a violation or breach of
any provision of or give any Person the right to declare a default or
exercise any remedy under or to accelerate the maturity or performance of
or to cancel, terminate or modify any Applicable Contract; or
(vi) result in the imposition or creation of any Encumbrance upon or
with respect to any of the assets owned or used by the Company and the
Subsidiaries.
Except as provided in Exhibit 3.3, neither Codina nor the Company nor
any Subsidiary is or will be required to give any notice to or obtain any
Consent from any Person in connection with the execution and delivery of this
Agreement or the consummation or performance of any of the Contemplated
Transactions except as set forth on Exhibit 3.3 attached hereto.
3.4 CAPITALIZATION OF COMPANY. The authorized capital stock of the
-------------------------
Company consist of Fifty Thousand (50,000) shares of common stock, par value one
cent ($.01) per share, of which Twelve Thousand Two Hundred and Two (12,202)
shares are issued and outstanding (the "Shares"). Codina is the record and
beneficial owner and holder of the Shares, free and clear of all Encumbrances,
and Codina has full legal right, power and authority to transfer the Shares to
the Buyers. With the exception of the Shares there exists no outstanding equity
securities or other securities or any subscriptions, options, warrants, calls,
contracts, demands, commitments or other agreements requiring the Company to
issue or entitling any Person or entity to acquire any additional shares of
capital stock or any other equity security of the Company. No legend or other
reference to any purported Encumbrance appears upon any certificate representing
-13-
the Shares. All of the Shares have been duly authorized, validly issued and are
fully paid and nonassessable. There are no Contracts relating to the issuance,
sale or transfer of any equity securities or other securities or any
subscriptions, options, warrants, calls, contracts, demands, commitments or
other agreements requiring the Company to issue or entitling any Person or
entity to acquire any additional shares of capital stock or any other equity
security of the Company. Neither the Shares nor any other securities of the
Company were issued or transferred in violation of the Securities Act or any
other Legal Requirement. Except as set forth on Exhibit 3.4 attached hereto,
the Company and the Subsidiaries do not own, or have any Contract to acquire any
equity securities or other securities of any Person or any direct or indirect
equity or ownership interest in any other business other than the Subsidiaries.
To the Knowledge of Codina no former or present holder of any of the capital
stock of the Company has any legally cognizable claim against the Company or
Codina, based on any issuance, sale, purchase, redemption or involvement in any
transfer of any capital stock by the Company. The Company has no outstanding
obligations to repurchase, redeem or otherwise acquire any outstanding shares of
its stock.
3.5 CAPITALIZATION OF SUBSIDIARIES. The authorized, issued and
------------------------------
outstanding capital stock of the Subsidiaries is as set forth below:
SHARES OF CAPITAL STOCK
SUBSIDIARIES AUTHORIZED
ISSUED AND OUTSTANDING PAR VALUE
Codina Development 7,500 2,500 $1.00
Corporation
Codina Construction 1,000 1,000 1.00
Corporation
Xxxxxx Xxxx Xxxxx 00 00 No par
Realty, Inc.
Codina Real Estate 1,000 1,000 $.01
Management, Inc.
CR Consulting, Inc. 1,000 1,000 $1.00
C&S Real Estate 1,000 1,000 $1.00
Development Corp.
-14-
The Company is the record and beneficial owner and holder of all of the
outstanding capital stock of each Subsidiary (other than C&S Real Estate
Development Corp.), free and clear of all Encumbrances. Codina Development
Corporation is the record and beneficial owner and holder of all capital stock
of C&S Real Estate Development Corp., free and clear of all Encumbrances. With
the exception of the shares identified above, there exists no outstanding equity
securities or other securities or any subscriptions, options, warrants, calls,
contracts, demands, commitments or other agreements requiring any Subsidiary to
issue or entitling any Person or entity to acquire any additional shares of
capital stock or any other equity security of any Subsidiary. No legend or
other reference to any purported Encumbrance appears upon any certificate
representing equity securities of any Subsidiary. All of the outstanding equity
securities of each Subsidiary have been duly authorized, validly issued and are
fully paid and nonassessable. There are no Contracts relating to the issuance,
sale or transfer of any equity securities or other securities of any Subsidiary.
None of the outstanding equity securities or other securities or any
subscriptions, options, warrants, calls, contracts, demands, commitments or
other agreements requiring any Subsidiary to issue or entitling any Person or
entity to acquire any additional shares of capital stock or any other equity
security of any Subsidiary was issued or transferred in violation of the
Securities Act or any other Legal Requirement. Except for Codina Development
Corporation, which owns all of C&S Real Estate Development Corp., no Subsidiary
owns, or has any Contract to acquire any equity securities or other securities
of any Person, or any direct or indirect equity or ownership interest in any
other business. No former or present holder of any of the capital stock of any
Subsidiary has any legally cognizable claim against the Company, any Subsidiary
or Codina, based on any issuance, sale, purchase, redemption or involvement in
any transfer of any capital stock by any Subsidiary. No Subsidiary has any
outstanding obligations to repurchase, redeem or otherwise acquire any
outstanding shares of its stock.
3.6 FINANCIAL STATEMENTS. Sellers have delivered to Buyers:
--------------------
(a) consolidated balance sheets of the Company and the Subsidiaries at
December 31 in each of the years 1995 through 1996 and the related consolidated
statements of income, changes in stockholders' equity and cash flow for each of
the fiscal years then ended, together with the report thereon of Xxxxxx, Xxxxxxx
& Company, P.A., independent certified public accountants; and
(b) an unaudited consolidated balance sheet of the Company as at
December 31, 1997 ("Closing Date Balance Sheet") and the related unaudited
consolidated statements of income, for the twelve (12) months then ended
(together, with the financial statements referred to in Section 3.6(a), the
"Financial Statements").
Except as provided in Exhibit 3.6, to the Knowledge of Codina such
Financial Statements and notes fairly present the consolidated financial
condition and the results of operations, changes in stockholders' equity and
cash flow of the Company and the Subsidiaries in all material respects, as at
the respective dates of and for the periods referred to in such financial
statements, all in accordance with GAAP, and as to the Closing Date Balance
-15-
Sheet without customary year end audit adjustments and without the notes which
would normally accompany audited financial statements.
3.7 LICENSING OF COMPANY AND SUBSIDIARIES. Except as would not have
-------------------------------------
a material adverse effect on the consolidated financial condition of the
Company, the Company and each Subsidiary is licensed, authorized or registered
to carry on such business carried on by it in each jurisdiction in which such
businesses are carried on as of the date of this Agreement and the employees and
the consultants of the Company and each Subsidiary that need to be licensed or
registered by any Governmental Authority have all necessary valid licenses
and/or registrations to conduct the activities or perform the functions
currently being conducted by the Company and the Subsidiaries. To the Knowledge
of Codina, the Company and each of the Subsidiaries, except as set forth on
Exhibit 3.7 attached hereto, there has not been, and there is no, Proceeding
pending, served or Threatened to suspend, revoke or limit any such license or
registration of the Company, any Subsidiary or any employee of the Company or
any Subsidiary, and there is no circumstance which, with notice or passage of
time or both, will result in any such revocation, suspension or limitation.
3.8 BOOKS AND RECORDS. The books of account, minute books, stock
-----------------
record books and other material records of the Company and the Subsidiaries,
all of which have been made available to Buyers, are complete and correct in all
material respects. The minute books of the Company and the Subsidiaries contain
accurate and complete records of all meetings held of, and corporate action
taken by, the stockholders and the Boards of Directors (including without
limitation all issuances, transfers and redemptions of all the capital stock of
the Company and the Subsidiaries.), and no meeting of any such stockholders or
Board of Directors has been held for which minutes have not been prepared and
are not contained in such minute books. At the Closing all of those books and
records will be in the possession of the Company.
3.9 TITLE TO PROPERTIES; LEASES ENCUMBRANCES.
----------------------------------------
(a) Exhibit 3.9(a) attached hereto contains a complete and accurate
list of all real property or other interests therein owned by the Company and
the Subsidiaries. The Company and the Subsidiaries own (with good and
marketable title in the case of real property, subject only to the matters
permitted by the following sentence) all the properties and assets (whether
real, personal, or mixed and whether tangible or intangible) that they purport
to own located in the facilities owned or operated by the Company and the
Subsidiaries or reflected as owned in the books and records of the Company and
the Subsidiaries, including all of the properties and assets reflected in the
Closing Date Balance Sheet and all of the properties and assets purchased or
otherwise acquired by the Company and the Subsidiaries since the date of the
Closing Date Balance Sheet (except for personal property acquired and sold since
the date of the Closing Date Balance Sheet in the Ordinary Course of Business
and consistent with past practice). All properties and assets reflected in the
Closing Date Balance Sheet are free and clear of all Encumbrances except, with
respect to all such properties and assets (a) mortgages or security interests
-16-
shown on the Closing Date Balance Sheet as securing specified liabilities or
obligations, with respect to which no default (or event that, with notice or
lapse of time or both, would constitute a default) exists, (b) mortgages or
security interests incurred in connection with the purchase of property or
assets after the date of the Closing Date Balance Sheet (such mortgages and
security interests being limited to the property or assets so acquired) with
respect to which no default (or event that with notice or lapse of time or both
would constitute a default) exists, (c) liens for current taxes not yet due, and
(d) with respect to real property (i) minor imperfections of title, if any, none
of which materially detracts from the value or impairs the use of the property
subject thereto for its intended use, or impairs the operations of the Company
or any Subsidiary, and (ii) zoning laws and other land use restrictions, right-
of-way, building use restrictions, exception, variances, reservations or
limitations that do not impair the present or anticipated use of the property
subject thereto. All buildings, plants, and structures owned by the Company or
any Subsidiary lie wholly within the boundaries of the real property owned by
the Company or any Subsidiary and do not encroach upon the property of or
otherwise conflict with the property rights of any other Person.
(b) Exhibit 3.9(b) sets forth all leases of real property to which the
Company or any Subsidiary is a party, together with all amendments and
supplements thereto and modifications thereof. To the Knowledge of Codina there
is no default or claim of default pending, threatened or asserted against the
Company or any Subsidiary by any party to any such contract or agreement, and
all such contracts and agreements are currently in full force and effect, and
there are no circumstances which, with notice or passage of time or both, would
constitute a default or a breach thereunder.
(c) Except as would not have a material adverse effect in the
consolidated financial condition of the Company, Exhibit 3.9(c) sets forth a
description of all leases of personal property involving expenditures of $10,000
or more in any year during its term to which the Company or any Subsidiary is a
party, together with all amendments and supplements thereto and modifications
thereof. No personal property leasehold interest of the Company or any
Subsidiary is subject to or subordinate to any security interest, lease or other
Encumbrance except as set forth on Exhibit 3.9(c). To the Knowledge of Codina
there is no default or claim of default pending, threatened or asserted against
the Company or any Subsidiary by any party to any such contract or agreement,
and all such contracts and agreements are currently in full force and effect,
and there are no circumstances which, with notice or passage of time or both,
would constitute a default or a breach thereunder.
3.10 CONDITION AND SUFFICIENCY OF ASSETS. Exhibit 3.10 attached
-----------------------------------
hereto contains a complete and accurate list of the buildings, structures,
fixtures and equipment of the Company and the Subsidiaries. To the Knowledge of
Codina the buildings, structures, fixtures and equipment of the Company and the
Subsidiaries are structurally sound, are in good operating condition and repair
and are adequate for the uses to which they are being put and none of such
buildings, plants, structures, fixtures or equipment is in need of maintenance
or repairs except for ordinary, routine maintenance and repairs that are not
-17-
material in nature or cost. The buildings, structures, fixtures and equipment of
the Company and the Subsidiaries are sufficient for the continued conduct of the
Company and the Subsidiaries businesses after the Closing in substantially the
same manner as conducted prior to the Closing.
3.11 ACCOUNTS RECEIVABLE. To the Knowledge of Codina all accounts
-------------------
receivable of the Company and the Subsidiaries that are reflected on the Closing
Date Balance Sheet (collectively, the "Accounts Receivable") represent or will
represent valid obligations arising from sales actually made or services
actually performed in the Ordinary Course of Business. To the Knowledge of
Codina the Accounts Receivable are current and collectible net of the respective
reserves shown on the Closing Date Balance Sheet or on the accounting records of
the Company and the Subsidiaries as of the Closing Date (which reserves are
adequate and calculated consistent with past practice and, in the case of the
reserve as of the Closing Date, will not represent a material adverse change in
the composition of such Accounts Receivable in terms of aging). To the
Knowledge of Codina, subject to such reserves, each of the Accounts Receivable
either has been or will be collected in full in the Ordinary Course of Business.
To the Knowledge of Codina there is no pending contest, claim or right of set-
off, under any Contract with any obligor of an Accounts Receivable relating to
the amount or validity of such Accounts Receivable. Exhibit 3.11 attached
hereto is the Accounts Receivable Ledger as of the date of the Closing Date
Balance Sheet, which list sets forth the aging of such Accounts Receivable.
3.12 NO UNDISCLOSED LIABILITIES. Except as set forth on Exhibit
--------------------------
3.12 or liabilities and obligations incurred in the Ordinary Course of Business,
to the Knowledge of Codina neither the Company nor any Subsidiaries has any
liabilities (whether absolute, accrued, contingent or otherwise) except for
liabilities or obligations reflected or reserved against in the Closing Date
Balance Sheet. The Company has provided Buyers with all information and detail
relating to any liability or obligation reflected on or reserved against in the
Closing Date Balance Sheet. Further, to the Knowledge of Codina, neither the
Company nor any Subsidiary is in material violation of or default under any
Contract which could give rise to any material liability or obligation not
disclosed on the Closing Date Balance Sheet.
3.13 TAXES. The Company and each Subsidiary has filed or cause to
-----
be filed (on a timely basis since its creation) all Tax Returns that are or were
required to be filed by it and each Subsidiary either separately or as a member
of a group of corporations, pursuant to applicable Legal Requirements. Sellers
have delivered to Buyers copies of all such Tax Returns filed since December 31,
1995. The Company has paid on a timely basis or made provision for the payment
of all Taxes that have or may have become due pursuant to those Tax Returns or
otherwise, or pursuant to any assessment received by the Company or any
Subsidiary. The charges, accruals and reserves with respect to Taxes on the
books of the Company and of the Subsidiaries are adequate (determined in
accordance with GAAP) and are at least equal to the Company's and the
Subsidiaries' liability for Taxes. There exists no proposed tax assessment or
-18-
other dispute or claim for Taxes against the Company or any Subsidiary except as
disclosed in the Closing Date Balance Sheet. No consent to the application of
Section 341(f)(2) of the IRC has been filed with respect to any property or
assets held, acquired, or to be acquired by the Company. All Taxes that the
Company and each Subsidiary is or was required by Legal Requirements to withhold
or collect have been duly withheld or collected and, to the extent required,
have been paid to the proper Governmental Body or other Person on a timely
basis. All Tax Returns filed by the Company and each Subsidiary are true,
correct and complete. Except with respect to the Subsidiaries, there is no tax
sharing agreement that will require any payment by the Company after the date of
this Agreement. Neither the Company nor any Subsidiary has executed an
extension or waiver of any statute of limitations on the assessment or
collection of any Tax. There is no audit, examination, deficiency or refund
Proceeding with respect to Taxes of any kind pending or Threatened, and there is
no basis in fact for any assessment of any additional Tax. All documentary
stamp Taxes with respect to the issuance of all capital stock of the Company and
the Subsidiaries have been paid.
3.14 NO MATERIAL ADVERSE CHANGE. To the Knowledge of Codina, since
--------------------------
the date of the Closing Date Balance Sheet, there has not been any material
adverse change in the business, operations, properties, prospects, assets or
condition of the Company or the Subsidiaries and no event has occurred or
circumstance exists that may result in such a material adverse change.
3.15 EMPLOYEE BENEFITS.
-----------------
(i) Except as listed on Exhibit 3.15, neither the Company, any
Subsidiary nor any Person treated as a single employer with the Company under
IRC Section 414(b), (c) or (m) maintains or contributes to, or has any
obligation to maintain or to contribute to, any profit sharing plan, pension
plan, welfare plan, retirement plan or other employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement Income Securities Act of
1974, as amended ("ERISA"), fringe benefit, severance or any bonus or incentive
compensation plan (collectively "Company Benefit Plans").
(ii) To the Knowledge of Codina, except as provided on Exhibit 3.15,
each Company Benefit Plan is in substantial compliance with all applicable laws
and has been administered and operated in all material respects in accordance
with its terms.
(iii) Each Company Benefit Plan intended to qualify under IRC Section
401 (a) has received from the IRS a favorable determination letter with respect
to such qualified status of such Company Benefit Plan.
(iv) To the Knowledge of Codina, all reports, returns and similar
documents with respect to the Company Benefit Plans required to be filed with
any governmental agency or furnished to any participant or beneficiary have been
properly and timely filed or so furnished except to the extent that any failure
to do so could not be expected to result in the imposition of material
liability.
-19-
(v) There are no audits, investigations, and to the Knowledge of
Codina, any actions, suits or claims (other than routine claims for benefits)
threatened or pending against, or with respect to, any of Company Benefit Plans
or the assets thereof, which would result in a material liability of the
Company.
(vi) To the Knowledge of Codina, the consummation of the transactions
contemplated hereby will not accelerate the vesting or payment of any benefit
under any Company Benefit Plan which would result in a material liability of the
Company.
(vii) To the Knowledge of Codina, the assets allocated to each
Company Benefit Plan are equal to or exceed the liabilities of such Company
Benefit Plan or such liabilities are properly shown on the Closing Date Balance
Sheet.
3.16 COMPLIANCE WITH LEGAL REQUIREMENTS. To the Knowledge of Codina
----------------------------------
the Company and each Subsidiary is, and at all times since January 1, 1995 has
been in material compliance with each Legal Requirement that is or was
applicable to it or to the conduct or operation of their respective businesses
or the ownership or use of any of their respective assets. No event has occurred
or circumstance exists that (with or without notice or lapse of time or both)
(A) may constitute or result in a material violation by the Company or any
Subsidiary of or a failure on the part of the Company or any Subsidiary to
comply with any material Legal Requirement, or (B) may give rise to any
obligation on the part of the Company or any Subsidiary to undertake or to bear
all or any portion of the cost of any remedial action of any nature. Except as
set forth on Exhibit 3.16 attached hereto, neither the Company nor any
Subsidiary has received, at any time since January 1, 1995, any notice or other
written communication from any Governmental Body or any other Person regarding
(A) any actual, alleged, possible or potential material violation of or failure
to comply with any Legal Requirement, or (B) any actual, alleged, possible or
potential material obligation on the part of the Company or any Subsidiary to
undertake or to bear all or any portion of the cost of any material remedial
action of any nature.
3.17 GOVERNMENTAL AUTHORIZATIONS. Exhibit 3.17 attached
---------------------------
hereto contains a complete and accurate list of each material Governmental
Authorization that is held by the Company and the Subsidiaries. To the
Knowledge of Codina, each Governmental Authorization listed or required to be
listed on Exhibit 3.17 is valid and in full force and effect. To the Knowledge
of Codina, the Company is, and at all times since January 1, 1995, has been in
full compliance with all of the terms and requirements of each Governmental
Authorization identified or required to be identified on Exhibit 3.17 attached
hereto. To the Knowledge of Codina no event has occurred or circumstance exists
that may (with or without notice or lapse of time or both) (A) constitute or
result directly or indirectly in a material violation of or a failure to comply
with any term or requirement of any Governmental Authorization listed or
required to be listed on Exhibit 3.17, or (B) result directly or indirectly in
the revocation, withdrawal, suspension, cancellation or termination of or any
modification to any Governmental Authorization listed or required to be listed
on Exhibit 3.17. Neither the Company nor any Subsidiary has received, at any
time since January 1, 1995, any notice or other written communication from any
-20-
Governmental Body or any other Person regarding (A) any actual, alleged,
possible or potential violation of or failure to comply with any term or
requirement of any Governmental Authorization, or (B) any actual, proposed,
possible or potential revocation, withdrawal, suspension, cancellation,
termination of or modification to any Governmental Authorization. All
applications required to have been filed for the renewal of the Governmental
Authorizations listed or require to be listed on Exhibit 3.17 have been duly
filed on a timely basis with the appropriate Governmental Bodies and all other
filings required to have been made with respect to such Governmental
Authorizations have been duly made on a timely basis with the appropriate
Governmental Bodies. To the Knowledge of Codina, the Governmental
Authorizations listed on Exhibit 3.17 collectively constitute all of the
material Governmental Authorizations necessary to permit the Company and the
Subsidiaries to lawfully conduct and operate its business in the manner it
currently conducts and operates such business and to permit the Company and the
Subsidiaries to own and use their respective assets in the manner in which they
currently own and use such assets.
3.18 LEGAL PROCEEDINGS. Except as disclosed on Exhibit 3.18 attached
-----------------
hereto, there is no pending Proceeding: (A) that has been commenced by or
against Codina, the Company or any Subsidiary that relates to the business of or
any of the assets owned or used by the Company or any Subsidiary; or (B) that
challenges or that may have the effect of preventing, delaying, making illegal
or otherwise interfering with any of the Contemplated Transactions.
Except as provided on Exhibit 3.18, to the Knowledge of Codina, (A)
no such Proceeding has been Threatened, and (B) no event has occurred or
circumstance exists that may give rise to or serve as a basis for the
commencement of any such Proceeding. To the Knowledge of Codina, there is no
proceeding pending or Threatened which otherwise relates to or may affect the
business of the Company or any Subsidiary.
3.19 ORDERS. To the Knowledge of Codina, there is no material Order
------
to which the Company or the Subsidiaries or any of the assets owned or used by
the Company or the Subsidiaries is subject. To the Knowledge of Codina, no
officer, director or employee of the Company or the Subsidiaries is subject to
any Order that prohibits such officer, director or employee from engaging in or
continuing any conduct, activity or practice relating to the business of the
Company or the Subsidiaries.
3.20 ABSENCE OF CERTAIN CHANGES AND EVENTS. Since the date of the
-------------------------------------
Closing Date Balance Sheet the Company and the Subsidiaries have conducted their
respective businesses only in the Ordinary Course of Business and except as set
forth on Exhibit 3.20, there has not been any: (i) change in the Company's or
the Subsidiaries' authorized or issued capital stock; grant of any stock option
or right to purchase shares of capital stock of the Company or any Subsidiary;
issuance of any security convertible into such capital stock; grant of any
registration rights; purchase, redemption, retirement or other acquisition by
the Company or any Subsidiary of any shares of any such capital stock; or
declaration or payment of any dividend or other distribution or payment on any
-21-
of its shares of capital stock; (ii) amendment to the Organizational Documents
of the Company or any Subsidiary; (iii) payment or increase by the Company or
any Subsidiary of any bonuses, salaries or other compensation to any
stockholder, director, officer or employee (except in the Ordinary Course of
Business) or entry into any employment, severance or similar Contract with any
director, officer or employee; (iv) payment on account of the Shares by way of
dividends or other distributions of cash or other assets of the Company; (v)
damage to or destruction or loss of any asset or property of the Company or the
Subsidiaries, whether or not covered by insurance, materially and adversely
affecting the properties, assets, business, financial condition or prospects of
the Company and the Subsidiaries taken as a whole; (vi) other than in the
Ordinary Course of Business, entry into, termination of or receipt of notice of
termination of (1) any license, distributorship, dealer, sales representative,
joint venture, management, development, credit or similar agreement; (2) any
Management, Development or Leasing Agreement; or (3) any Contract or transaction
involving a total remaining commitment by or to the Company or any Subsidiary of
at least Fifty Thousand and no/100 Dollars ($50,000.00); (vii) other than the
Ordinary Course of Business, purchase, sale, lease or other disposition of any
asset or property of the Company or any Subsidiary or mortgage, pledge or
imposition of any lien or other encumbrance on any asset or property of the
Company or the Subsidiaries involving Fifty Thousand and no/100 Dollars
($50,000.00) or more, including the sale, lease or other disposition of any of
the assets; (viii) cancellation or waiver of any claims or rights with a value
to the Company or any Subsidiary in excess of Ten Thousand and no/100 Dollars
($10,000.00); (ix) material change in the tax elections or accounting methods
used by the Company or any Subsidiary; (x) agreement, whether oral or written,
by the Company or any Subsidiary to do any of the foregoing outside the Ordinary
Course of Business; (xi) any borrowings, other than trade payables incurred in
the Ordinary Course of Business; (xii) any change in existing credit
arrangements with any bank or other institution; (xiii) any material loan or
advance made to any officer, director, consultant, agent, employee or
shareholder, or Related Person of any of the foregoing outside of the Ordinary
Course of Business; or (xiv) any material transactions outside the Ordinary
Course of Business.
3.21 CONTRACTS. Exhibit 3.21 attached hereto contains a complete and
---------
accurate list and the Company has delivered to Buyers true and complete copies
of:
(i) each Applicable Contract that involves performance of services or
delivery of goods or materials in excess of Fifty Thousand and no/100
Dollars ($50,000.00) per annum by the Company and all Subsidiaries,
including without limitation the Development, Management and Leasing
Agreements;
(ii) each licensing agreement or other Applicable Contract with
respect to patents, trademarks, copyrights or other intellectual property,
including agreements with current or former employees, consultants or
contractors in excess of Fifty Thousand and no/100 Dollars ($50,000.00) per
annum;
-22-
(iii) each joint venture, partnership and other Applicable Contract
(however named) involving a sharing of profits, losses, costs or
liabilities by the Company or any Subsidiary with any other Person;
(iv) each Applicable Contract containing covenants that in any way
purport to restrict the business activity of Codina, the Company or any
Subsidiary of the Company or limit the freedom of Codina, the Company or
any Subsidiary of the Company to engage in any line of business or to
compete with any Person;
(v) each Applicable Contract providing for payments to or by any
Person based on sales, purchases or profits in excess of Fifty Thousand and
no/100 Dollars ($50,000.00) per annum other than direct payments for good
and services;
(vi) each power of attorney that is currently effective and
outstanding;
(vii) each Applicable Contract for capital expenditures in excess of
Fifty Thousand and no/100 Dollars ($50,000.00) per annum;
(viii) each written warranty, guaranty and/or other similar
undertaking with respect to contractual performance extended by the Company
or the Subsidiaries in excess of Fifty Thousand and no/100 ($50,000.00) per
annum;
(ix) all leases of real property;
(x) each Applicable Contract with any director, officer, shareholder
employee, or affiliates of any of the foregoing entered into by the Company
or any Subsidiary;
(xi) any other written or unwritten agreement that is material to the
business of the Company and any Subsidiary; and
(xii) each amendment, supplement and modification (whether oral or
written) in respect of any of the foregoing.
To the Knowledge of Codina, each Contract identified or required to be
identified on Exhibit 3.21 is in full force and effect and is valid and
enforceable in accordance with its terms.
Except as provided on Exhibit 3.21, to the Knowledge of Codina, as of the
date hereof with respect to each Construction Contract identified on Exhibit
3.21, it is not anticipated (i) that the party to each of such contracts will be
entitled to make a claim for liquidated damages under such contracts or (ii)
that the Company's total cost of performing such contracts will exceed the
guaranteed maximum price, if any, under such contracts.
-23-
Except as provided on Exhibit 3.21, to the Knowledge of Codina as of the
date hereof, it is not anticipated that the Company's cost of performing any
Development Agreement which has a guaranteed maximum price will exceed such
guaranteed maximum price.
3.22 NO DEFAULTS. Except as set forth on Exhibit 3.22, to the Knowledge
-----------
of Codina:
(i) the Company and the Subsidiaries are, and at all times have been,
in material compliance with all material applicable terms and requirements
of each Contract under which the Company or any Subsidiary has or had any
obligation or liability or by which the Company or any Subsidiary or any of
the assets owned or used by the Company or any Subsidiary is or was bound;
(ii) each other Person that has or had any obligation or liability
under any Contract under which the Company or any Subsidiary has or had any
rights is, and at all times has been, in material compliance with all
applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or
without notice or lapse of time) may contravene, conflict with or result in
a material violation or breach of or give the Company, a Subsidiary or
other Person the right to declare a default or exercise any remedy under or
to accelerate the maturity or performance of or to cancel, terminate or
modify any Applicable Contract;
(iv) neither the Company nor any Subsidiary has given to, or received
from, any other Person, at any time any notice or other written
communication regarding any actual, alleged, possible or potential
violation or breach of or default under any Contract; and
(v) neither Codina nor the Company nor any Subsidiary is or will be
required to give any notice to or obtain Consent from any Person in
connection with the execution and delivery of this Agreement or the
consummation or performance of any of the Contemplated Transactions.
There are no renegotiations or outstanding rights to renegotiate any
material amounts paid or payable to the Company under current or completed
Contracts with any Person and no such Person has made written demand for such
renegotiation.
3.23 INSURANCE. To the Knowledge of Codina, except as described on
---------
Exhibit 3.23, the Company and each Subsidiary maintains, insurance policies of
fire and extended coverage and casualty, liability and other forms of insurance
in such amounts and against such risks and losses as are set forth on Exhibit
3.23 attached hereto. To the Knowledge of Codina, all such insurance policies
are in full force and effect. To the Knowledge of Codina, except as described
on Exhibit 3.23, all such insurance policies will continue in full force and
effect following consummation of the Contemplated Transactions and do not
-24-
provide for any retroactive premium adjustment or other experience-based
liability on the part of the Company or any Subsidiary.
Neither Company nor any Subsidiary has received (i) any refusal of coverage
or any notice that a defense will be afforded with reservation of rights, or
(ii) any notice of cancellation or any other indication that any insurance
policy is no longer in full force or effect or will not be renewed or that the
issuer of any policy is not willing or able to perform its obligations
thereunder. The Company and each Subsidiary has paid all premiums due and has,
to the Knowledge of Codina, except as described on Exhibit 3.23, otherwise
performed all of its obligations under each policy to which the Company or any
Subsidiary is a party or that provides coverage to the Company or any Subsidiary
or any director, officer, employee, agent or consultant of the Company or any
Subsidiary thereof. To the Knowledge of Codina, except as described on Exhibit
3.23, the Company and each Subsidiary, as applicable, has given notice to the
insurer of all claims that may be insured thereby.
3.24 ENVIRONMENTAL MATTERS.
---------------------
(i) To the Knowledge of Codina, the Company is, and at all times has
been, in full compliance with and has not been and is not in violation of
or liable under any Environmental Law. To the Knowledge of Codina, the
Company has no basis to expect nor has it or any other Person for whose
conduct it is or may be held to be responsible received any actual or
Threatened order, notice or other communication from (a) any Governmental
Body or private citizen acting in the public interest, or (b) the current
or prior owner or operator of any Facilities of any actual or potential
violation or failure to comply with any Environmental Law or of any actual
or Threatened obligation to undertake or bear the cost of any
Environmental, Health and Safety Liabilities with respect to any of the
Facilities or any other properties or assets (whether real, personal or
mixed) in which the Company has had an interest or with respect to any
property or Facility at or to which Hazardous Materials were generated,
manufactured, refined, transferred, imported, used or processed by the
Company or any other Person for whose conduct they are or may be held
responsible.
(ii) There are no pending or, to the Knowledge of Codina, Threatened
claims, Encumbrances or other restrictions of any nature resulting from any
Environmental, Health and Safety Liabilities or arising under or pursuant
to any Environmental Law with respect to or affecting any of the Facilities
or any other properties and assets (whether real, personal or mixed) in
which the Company or any Subsidiary has or had an interest.
(iii) To the Knowledge of Codina, the Company has no basis to expect,
nor has it or any other Person for whose conduct it is or may be held
responsible, received any citation, directive, inquiry, notice, Order,
summons, warning or other communication that relates to Hazardous Activity,
Hazardous Materials or any alleged, actual or potential obligation to
-25-
undertake or bear the cost of any Environmental, Health and Safety
Liabilities with respect to any of the Facilities or any other properties
or assets (whether real, personal or mixed) in which the Company or the
Subsidiaries had an interest, or with respect to any property or facility
to which Hazardous Materials generated, manufactured, refined, transferred,
imported, used or processed by the Company or any other Person for whose
conduct it is or may be held responsible, have been transported, treated,
stored, handled, transferred, disposed, recycled or received.
(iv) To the Knowledge of Codina, neither the Company nor any
Subsidiary, nor any other Person for whose conduct it is or may be held
responsible, has any Environmental, Health and Safety Liabilities with
respect to the Facilities or with respect to any other properties and
assets (whether real, personal or mixed) in which the Company or any
Subsidiary (or any predecessor) has or had an interest, or at any property
geologically or hydrologically adjoining the Facilities or any such other
property or assets.
(v) To the Knowledge of Codina, neither the Company nor any
Subsidiary, nor any other Person for whose conduct it is or may be held
responsible has permitted or conducted or is aware of any Hazardous
Activity conducted with respect to the Facilities or any other properties
or assets (whether real, personal or mixed) in which the Company or any
Subsidiary has or had an interest except in full compliance with all
applicable Environmental Laws.
(vi) To the Knowledge of Codina, there has been no Release, or Threat
of Release, of any Hazardous Materials at or from the Facilities or at any
other locations where any Hazardous Materials were generated, manufactured,
refined, transferred, produced, imported, used or processed from or by the
Facilities or from or by any other properties and assets (whether real,
personal or mixed) in which the Company or any Subsidiary has or had an
interest whether by the Company or any other Person.
(vii) The Company has delivered to Buyers true and complete copies
and results of any reports, studies, analyses, tests or monitoring
possessed or initiated by the Company pertaining to Hazardous Materials or
Hazardous Activities in, on or under the Facilities or concerning
compliance by the Company or any other Person for whose conduct it is or
may be held responsible with Environmental Laws.
3.25 EMPLOYEES.
---------
(a) Exhibit 3.25 attached hereto is the Payroll Register as of
December 31, 1997 which contains a complete and accurate list of the following
information for each employee, officer or director of the Company and each
Subsidiary, including each such person on leave of absence or layoff status:
employer; name; job title; current compensation paid or payable; last increase
in compensation; and vacation accrued. Except as set forth on Exhibit 3.25
-26-
attached hereto, no employee, officer or director of the Company or any
Subsidiary is a party to or is otherwise bound by any agreement or arrangement,
including any confidentiality, non-competition or proprietary rights agreement
between such employee, officer or director and any other Person ("Proprietary
Rights Agreement") that in any way adversely affects or will affect (i) the
performance of his or her duties as an employee or director of the Company or
any Subsidiary, or (ii) the ability of the Company or any Subsidiary to conduct
its business, including any Proprietary Rights Agreement with the Company or any
Subsidiary by any such employee, consultant, officer or director. To the
Knowledge of Codina, no director, officer or other key employee of the Company
or any Subsidiary intends to terminate his employment with the Company or any
Subsidiary.
(b) To the Knowledge of Codina, except as set forth in Exhibit
3.25, neither the Company nor any Subsidiary has any:
(i) Outstanding written or oral employment, consulting or
retainer (except for retainer agreements with attorneys and accountants and
retainer agreements for the provision of services for the Company or any
Subsidiary that are terminable at will by the Company and entered into in
the Ordinary Course of Business) agreements for rendition of services by
any person or any outstanding obligation under any prior written or oral
agreement of such nature;
(ii) Officers or other employees or consultants whose employment
or retainer, as the case may be, cannot be terminated by the Company or any
Subsidiary at will and without penalty, and, except in the Ordinary Course
of Business, without payment of any severance or similar benefits imposed
by any statute, regulation, order, decree, Applicable Contract or
otherwise;
(iii)Obligations to make future contributions to fund bonus,
pension, profit sharing or deferred compensation agreements, plans, or
arrangements; or
(iv) Collective bargaining agreement. or labor union.
(c) Neither the Company nor any Subsidiary has any "golden parachute
agreements" or agreements providing payments, bonuses, or termination or
acceleration rights, or other benefits to employees or other Persons in
connection with or as a result of a change in control of the Company or any
Subsidiary.
(d) Except as provided elsewhere in this Agreement, neither the
Company nor any of the Subsidiaries has any outstanding liability to any of
their employees, officers or directors except (i) accrued salaries during the
current period (not to exceed one month) or accrued compensation or commissions,
as the case may be, and (ii) normal vacations during the preceding twelve
months.
-27-
(e) The incentive compensation arrangements reflected on Exhibits to
the Employment Agreements by and between the Company and each member of Senior
Management (as such term is defined in the Shareholders Agreement) are the same
as the incentive compensation arrangements in effect with such individuals for
the calendar year 1997 except that there was a 10% holdback of the amount of the
incentive compensation which is not provided for in the Exhibits to the
Employment Agreements.
3.26 INTELLECTUAL PROPERTY.
---------------------
(a) To the Knowledge of Codina, except as disclosed on Exhibit 3.26,
the Company and the Subsidiaries do not own, use or license: (i) registered and
unregistered trademarks, service marks and applications (collectively, "Marks");
or (ii) know-how, trade secrets, confidential information, customer lists,
software, technical information, data process technology, plans, drawings and
blue prints (collectively, "Trade Secrets").
(b) Neither the Company nor any Subsidiary owns any patent, patent
application or invention or discovery that may be patentable or any copyright in
either published works or unpublished works.
To the Knowledge of Codina, Exhibit 3.26 attached hereto lists all of the
Marks and Trade Secrets and contains a complete and accurate list and summary
description, including any royalties paid or received by the Company or any
Subsidiary, of all Contracts relating to the Marks, Patents, Copyrights and
Trade Secrets to which the Company or any Subsidiary is a party or by which the
Company or any Subsidiary is bound. To the Knowledge of Codina, there are no
outstanding and no Threatened disputes or disagreements with respect to any such
agreement. The Company has provided Buyers with true and complete copies of
each item listed or required to be listed on Exhibit 3.26. To the Knowledge of
Codina, the Company and the Subsidiaries have not infringed on any proprietary
rights of any other Person. To the Knowledge of Codina, the Company and each of
the Subsidiaries owns, or possesses valid license rights to, all computer
software programs that are material to the conduct of the business of the
Company and the Subsidiaries. To the Knowledge of Codina, the consummation of
the transactions contemplated by this Agreement will not result in the loss or
impairment of any of the Marks or Trade Secrets.
3.27 CERTAIN PAYMENTS. To the Knowledge of Codina, neither the
----------------
Company, the Subsidiaries nor any director, officer or employee of the Company
or any Subsidiary, or any other Person associated with or acting for or on
behalf of the Company or any Subsidiary has directly or indirectly (i) made any
illegal contribution, gift, bribe, rebate, payoff, influence payment, kickback
or other payment to any Person, private or public, regardless of form, whether
in money, property or services (a) to obtain favorable treatment in securing
business, (b) to pay for favorable treatment for business secured, (c) to obtain
special concessions or for special concessions already obtained for or in
respect of the Company or any Subsidiary or any Related Person of the Company or
-28-
any Subsidiary, or (d) in violation of any Legal Requirement, and (ii)
established or maintained on behalf of the Company or any Subsidiary any fund or
asset that has not been recorded in the books and records of the Company or of
any Subsidiary.
3.28 DISCLOSURE. To the Knowledge of Codina, no representation,
----------
warranty or statement of the Company or Codina in this Agreement and no
statement contained in any other document executed in connection with this
Agreement contains an untrue statement of material fact or omits to state a
material fact necessary to make the statements herein or therein in light of the
circumstances in which they were made not misleading. To the Knowledge of
Codina, there is no fact that has specific application to the Company and the
Subsidiaries (other than general economic or industry conditions) and that
materially adversely affects the assets, business, prospects, financial
condition or results of operations of the Company and the Subsidiaries that has
not been set forth in this Agreement or the Exhibits hereto.
3.29 RELATIONSHIPS WITH RELATED PERSONS. Except as listed on Exhibit
----------------------------------
3.29 attached hereto, as of the date hereof, neither Codina nor any Related
Person of Codina has any interest in any property (whether real, personal or
mixed and whether tangible or intangible) used in or pertaining to the Company
or the Subsidiaries' businesses. Except as listed on Exhibit 3.29 attached
hereto, as of the date hereof, neither Codina nor any Related Person of Codina
owns (of record or as a beneficial owner), an equity interest or any other
financial or profit interest in a Person that has business dealings or a
material financial interest in any transaction with the Company or any
Subsidiary which involved payment in excess of $10,000 per annum.
3.30 BROKERS OR FINDERS. Neither Codina nor the Company nor any
------------------
Subsidiary has incurred any obligation or liability, contingent or otherwise,
for brokerage or finders' fees or agents' commissions or other similar payment
in connection with this Agreement as the commission of any of the Contemplated
Transactions except for the fee owed to Xxxxxx Xxxxxxxx by the Company as set
forth on Exhibit 3.30.
3.31 BANK ACCOUNTS; DIRECTORS AND OFFICERS. A complete list of all
-------------------------------------
bank accounts and safe deposit boxes maintained by each of the Company and the
Subsidiaries and all persons entitled to draw thereon or with access thereto is
set forth on Exhibit 3.31 attached hereto. Exhibit 3.31 also sets forth the
names of all of the directors and officers of the Company and the Subsidiaries.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF
----------------------------------------------
ST. XXX AND WEEKS
-----------------
St. Xxx represents and warrants to each of the Sellers as
follows:
4.1 ORGANIZATION AND GOOD STANDING. St. Xxx is a corporation duly
------------------------------
organized, validly existing and in good standing under the laws of the State of
Florida.
-29-
4.2 AUTHORITY. This Agreement and each of the St. Joe's Closing
---------
Documents listed in Section 2 constitutes the legal, valid and binding
obligation of St. Xxx, enforceable against St. Xxx in accordance with its terms.
St. Xxx has the absolute and unrestricted right, power and authority to execute
and deliver this Agreement and the St. Joe's Closing Documents and to perform
its obligations under this Agreement and the St. Joe's Closing Documents.
4.3 NO CONFLICT. Neither the execution and delivery of this
-----------
Agreement by St. Xxx nor the consummation or performance of any of the
Contemplated Transactions by St. Xxx will give any Person the right to prevent,
delay or otherwise interfere with any of the Contemplated Transactions pursuant
to:
(i) any provision of St. Joe's Organizational Documents;
(ii) any resolution adopted by the board of directors or the
stockholders of St. Xxx;
(iii) any Legal Requirement or Order to which St. Xxx xxx
be subject;or
(iv) any Contract to which St. Xxx is a party or by which St.
Xxx xxx be bound.
St. Xxx is not and will not be required to obtain any Consent from any
Person in connection with the execution and delivery of this Agreement or the
consummation or performance of any of the Contemplated Transactions.
4.4 INVESTMENT INTENT. St. Xxx is acquiring the St. Xxx Shares for
-----------------
its own account and not with a view to their distribution within the meaning of
Section 2(11) of the Securities Act.
4.5 CERTAIN PROCEEDINGS. There is no pending Proceeding that has
-------------------
been commenced against St. Xxx and that challenges or may have the effect of
preventing, delaying, making illegal or otherwise interfering with any of the
Contemplated Transactions. To St. Joe's Knowledge, no such Proceeding has been
Threatened.
4.6 BROKERS OR FINDERS. Neither St. Xxx nor its officers and agents
------------------
have incurred any obligation or liability, contingent or otherwise, for
brokerage or finders' fees or agents' commissions or other similar payment in
connection with this Agreement or the consummation of the Contemplated
Transactions.
Weeks represents and warrants to each of the Sellers as follows:
4.7 ORGANIZATION AND GOOD STANDING. Weeks is a corporation, duly
------------------------------
organized validly existing and in good standing under the laws of the State of
Georgia.
-30-
4.8 AUTHORITY. This Agreement and each of the Weeks Closing
---------
Documents constitutes the legal, valid and binding obligation of Weeks,
enforceable against Weeks in accordance with its terms. Weeks has the absolute
and unrestricted right, power and authority to execute and deliver this
Agreement and the Weeks' Closing Documents and to perform its obligations under
this Agreement and the Weeks' Closing Documents.
4.9 NO CONFLICT. Neither the execution and delivery of this
-----------
Agreement by Weeks nor the consummation or performance of any of the
Contemplated Transactions by Weeks will give any Person the right to prevent,
delay or otherwise interfere with any of the Contemplated Transactions pursuant
to:
(i) any provision of Weeks' Organizational Documents;
(ii) any resolution adopted by the board of directors or the
stockholders of Weeks;
(iii)any Legal Requirement or Order to which Weeks may be subject;
or
(iv) any Contract to which Weeks is a party or by which Weeks may
be bound.
Weeks is not and will not be required to obtain any Consent from any
Person in connection with the execution and delivery of this Agreement or the
consummation or performance of any of the Contemplated Transactions.
4.10 INVESTMENT INTENT. Weeks is acquiring the Weeks Shares for its
-----------------
own account and not with a view to their distribution within the meaning of
Section 2(11) of the Securities Act.
4.11 CERTAIN PROCEEDINGS. There is no pending Proceeding that has
-------------------
been commenced against Weeks and that challenges or may have the effect of
preventing, delaying, making illegal or otherwise interfering with any of the
Contemplated Transactions. To Weeks' Knowledge, no such Proceeding has been
Threatened.
4.12 BROKERS OR FINDERS. Neither Weeks nor its officers and agents
------------------
have incurred any obligation or liability, contingent or otherwise, for
brokerage or finders' fees or agents' commissions or other similar payment in
connection with this Agreement the consummation of any of the Contemplated
Transactions.
ARTICLE V. INDEMNIFICATION; REMEDIES
-------------------------------------
5.1 SURVIVAL; RIGHT TO INDEMNIFICATION. All representations,
----------------------------------
warranties, covenants and obligations in this Agreement and any other
certificate or document delivered pursuant to this Agreement will survive for
-31-
eighteen (18) months after the Closing Date except for the representations and
warranties contained in Section 3.12 which will survive for thirty-six (36)
months after Closing Date.
5.2 INDEMNIFICATION AND PAYMENT OF DAMAGES BY CODINA. Codina will
------------------------------------------------
indemnify and hold harmless each of the Buyers and their respective
stockholders, controlling persons and affiliates for and will pay to such
persons the amount of any loss, liability, claim, damage, fine, penalty
(excluding incidental and consequential damages), expense (including costs of
investigation and defense and reasonable attorneys' and accountants' fees) or
diminution of value whether or not involving a third-party claim (collectively,
"Damages") arising, directly or indirectly, from or in connection with:
(i) any Breach of any representation or warranty made by
Sellers in this Agreement or any other certificate delivered by Sellers
pursuant to this Agreement;
(ii) any Breach by Sellers of any covenant or obligation in
this Agreement;
(iii) any claim by any Person for brokerage or finders' fees
or commissions or similar payments based upon any agreement or
understanding alleged to have been made by any such Person with either
Codina or the Company or any Subsidiary (or any Person acting on their
behalf) in connection with any of the Contemplated Transactions; and
(iv) any breach of Contract or violation of law occurring
prior to the date of closing.
5.3 INDEMNIFICATION AND PAYMENT OF DAMAGES BY ST. XXX. St. Xxx will
-------------------------------------------------
indemnify and hold harmless Sellers against any Damages arising, directly or
indirectly, from or in connection with:
(i) any Breach of any representation or warranty made by St. Xxx in
this Agreement or in any certificate or documents delivered by St. Xxx
pursuant to this Agreement; or
(ii) any Breach by St. Xxx of any covenant or obligation of St. Xxx in
this Agreement.
5.4 INDEMNIFICATION AND PAYMENT OF DAMAGES BY WEEKS. Weeks will
-----------------------------------------------
indemnify and hold harmless Sellers against any Damages arising, directly or
indirectly, from or in connection with:
(i) any Breach of any representation or warranty made by Weeks in this
Agreement or in any certificate or documents delivered by Weeks pursuant to
this Agreement; or
-32-
(ii) any Breach by Weeks of any covenant or obligation of Weeks in
this Agreement.
5.5 ASSERTION OF CLAIMS. In the event that Buyers or Sellers desires
-------------------
to make a claim under this Article 5 (an "Indemnification Claim"), the party to
be indemnified (the "Indemnified Party") will give the other party (the
"Indemnifying Party") prompt notice of any such Indemnification Claim and, in
the event such Indemnification Claim involves any suit, action or other
proceeding, pending or threatened, the Indemnifying Party will undertake the
defense thereof by representatives chosen by it which are reasonably
satisfactory to the Indemnified Party. The failure to promptly notify the
Indemnifying Party hereunder shall not relieve such party of its obligations
hereunder, except to the extent that the Indemnifying Party is actually
prejudiced by such failure to give notice. If the Indemnifying Party, within a
reasonable time after notice of any such Indemnification Claim, fails to defend
such Indemnification Claim, the Indemnified Party will have the right to
undertake the defense, compromise or settlement of such Indemnification Claim on
behalf of and for the account and risk of the Indemnifying Party, subject to the
right of the Indemnifying Party to assume the defense of such Indemnification
Claim at any time prior to settlement, compromise or final determination
thereof. The Indemnified Party shall, at the request and expense of the
Indemnifying Party, provide reasonable assistance in the defense of any such
Indemnification Claim. If the Indemnifying Party has undertaken defense of an
Indemnification Claim and if there is a reasonable probability that (i) an
Indemnification Claim may materially and adversely affect the Indemnified Party
other than as a result of money damages or other money payments or (ii) the
Indemnified Party or parties may have legal defenses available to it which are
different from or additional to the defenses available to the Indemnifying
Party, the Indemnified Party shall have the right, at the Indemnifying Party's
expense, to jointly control the defense, compromise or settlement of such
Indemnification Claim. In all events an Indemnified Party shall have the right
to participate in its defense at its own expense. Notwithstanding the
foregoing, no Indemnifying Party shall be liable for any compromise or
settlement of any action or proceeding effected without its written consent
(which shall not be unreasonably withheld). The Indemnifying Party shall not,
without the written consent of the Indemnified Party, settle or compromise any
Indemnification Claim or consent to the entry of any judgment with respect to
the Indemnified Party which does not include as an unconditional term thereof
the giving by the claimant or the plaintiff to the Indemnified Party a release
from all liability in respect of such Indemnification Claim.
5.6 INDEMNITY LIMITS.
----------------
(a) Indemnification Claims shall be reduced by proceeds actually
received by an Indemnified Party under insurance policies, risk sharing pools,
or similar arrangements specifically as a result of, and in compensation for,
the subject matter of an Indemnification Claim by such Indemnified Party.
-33-
(b) Notwithstanding anything herein to the contrary, (i) Codina shall
not be obligated to indemnify Weeks against any Indemnification Claim pursuant
to this Agreement unless and until all amounts for which Codina would otherwise
be obligated to indemnify Weeks under this Agreement exceeds $250,000; provided,
however, that if Codina's obligation under this Article V exceeds such limit,
his obligation shall be for the full amount of such obligation, from the first
dollar up to the maximum amount of his liability; (ii) Codina shall not be
obligated to indemnify St. Xxx against any Indemnification Claim pursuant to
this Agreement unless and until all amounts for which Codina would otherwise be
obligated to indemnify St. Xxx under this Agreement exceeds $250,000; provided,
however, that if Codina's obligation under this Article V exceeds such limit,
his obligation shall be for the full amount of such obligation, from the first
dollar up to the maximum amount of his liability; and (iii) in no event shall
the aggregate liability of Codina pursuant to this Agreement exceed $1,500,000
with respect to Weeks or $1,500,000 with respect to St. Xxx.
(c) Notwithstanding anything herein to the contrary, neither Weeks nor
St. Xxx shall be obligated to indemnify against any Indemnification Claim
pursuant to this Agreement until such time as Codina's aggregate right to such
indemnification exceeds $250,000 with respect to indemnification by St. Xxx;
provided, however that if St. Joe's obligation under this Article V exceeds such
limit, its obligation shall be for the full amount of such obligation, from the
first dollar up to the maximum amount of its liability; and $250,000 with
respect to indemnification by Weeks; provided, however, that if Weeks'
obligation under this Article V exceed such limit, its obligation shall be for
the full amount of such obligation, from the first dollar up to the maximum
amount of its liability. St. Joe's and Weeks' aggregate liability for
indemnification pursuant to Section 7.3 will not exceed $1,500,000 each.
ARTICLE VI. GENERAL PROVISIONS
-------------------------------
6.1 EXPENSES. Each of Codina, St. Xxx and Weeks will bear its
--------
respective expenses incurred in connection with the preparation, execution and
performance of this Agreement and the Contemplated Transactions, including all
fees and expenses of agents, representatives, counsel and accountants.
6.2 PUBLIC ANNOUNCEMENTS. Any public announcement or similar
--------------------
publicity with respect to this Agreement or the Contemplated Transaction will be
issued, if at all, at such time and in such manner as Buyers and Codina mutually
determine. Unless consented to by Buyers and Codina in advance or required by
Legal Requirements, each party hereto shall keep this Agreement strictly
confidential and may not make any disclosure of this Agreement to any Person.
Sellers and Buyers will consult with each other concerning the means by which
the Company's employees, customers, consultants and suppliers and others having
dealings with the Company will be informed of the Contemplated Transactions and
Buyers will have the right to be present for any such communication.
-34-
6.3 CONFIDENTIALITY. Each party hereto will maintain in confidence
---------------
and will cause their respective directors, officers, employees, agents,
consultants and advisors to maintain in confidence, any written, oral or other
information obtained in confidence from another party hereto or the Company in
connection with this Agreement or the Contemplated Transactions, unless (i) such
information is already known to such party or to others not bound by a duty of
confidentiality or such information becomes publicly available through no fault
of such party, (ii) the use of such information is necessary or appropriate in
making any filing or obtaining any consent or approval required for the
consummation of the Contemplated Transactions, or (iii) the furnishing or use of
such information is required by legal proceedings; provided, however, that in
the event of disclosure pursuant to (ii) or (iii) hereof, such disclosing party
shall agree to provide prompt written notice to the other parties hereto prior
to disclosure and to disclose only that portion of the confidential information
which is legally required or otherwise necessary.
6.4 ENFORCEMENT COSTS. If any civil action, arbitration or other
-----------------
legal proceeding is brought for the enforcement of this Agreement, or because of
an alleged dispute, breach, default or misrepresentation in connection with any
provision of this Agreement, the successful or prevailing party or parties shall
be entitled to recover reasonable attorneys' fees, sales and use taxes, court
costs and all expenses even if not taxable as court costs (including, without
limitation, all such fees, taxes, costs and expenses incident to arbitration,
appellate, bankruptcy and post-judgment proceedings), incurred in that civil
action, arbitration or legal proceeding, in addition to any other relief to
which such party or parties may be entitled. Attorneys' fees shall include,
without limitation, paralegal fees, investigative fees, administrative costs,
sales and use taxes and all other charges billed by the attorney to the
prevailing party. All of such preceding enforcement costs shall not be subject
to the limitations on amounts set forth in Section 5.6 of this Agreement.
6.5 EQUITABLE REMEDIES. Each of the parties acknowledges that the
------------------
other parties hereto will be irreparably damaged (and damages at law would be an
inadequate remedy) if this Agreement is not specifically enforced. Therefore,
in the event of a breach or threatened breach by any party of any provision of
this Agreement, the other parties hereto shall be entitled, in addition to any
other rights or remedies or law or in equity to which such party may be
entitled, to an injunction restraining such breach, without being required to
show any actual damage or to post an injunction bond, and/or to a decree for
specific performance of the provisions of this Agreement.
6.6 NOTICES. All notices, consents, waivers and other communications
-------
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by telecopier (with written confirmation of receipt), provided that a copy
is mailed by registered mail, return receipt requested, or (c) when received by
the addressee, if sent by a nationally recognized overnight delivery service
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(receipt requested) in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier numbers as a
party may designate by notice to the other parties):
To St. Xxx:
-----------
St. Xxx Corporation
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Senior Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
--------------
Xxxxxx X. Xxxxxx, Esq.
St. Xxx Corporation
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To the Company:
--------------
Codina Group, Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxxxx #0
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx, CFO
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
--------------
White & Case
First Union Financial Center
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: K. Xxxxxxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Weeks:
--------
Weeks Corporation
0000 Xxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: A. Xxx Xxxxx, Xx., Chairman and CEO
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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With a copy to:
--------------
King & Spalding
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
6.7 JURISDICTION; SERVICE OF PROCESS. Any action or proceeding seeking to
--------------------------------
enforce any provision of or based on any right arising out of this Agreement may
be brought against any of the parties in the courts of the Circuit Court in and
for County of Dade, or if it has or can acquire jurisdiction, in the United
States District Court for the Southern District of Florida, and each of the
parties consents to the jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or proceeding and waives any objection to
venue laid therein. Process in any action or proceeding referred to in the
preceding sentence may be served on any party anywhere in the world.
6.8 FURTHER ASSURANCES. The parties agree (i) to furnish upon request to
------------------
each other such further information, (ii) to execute and deliver to each other
such other documents, and (iii) to do such other acts and things all as the
other party may reasonably request for the purpose of carrying out the intent of
this Agreement and the documents referred to in this Agreement.
6.9 WAIVER. The rights and remedies of the parties to this Agreement are
------
cumulative and not alternative. Neither the failure nor any delay by any party
in exercising any right, power or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such right,
power or privilege, and no single or partial exercise of any such right, power
or privilege will preclude any other or further exercise of such right, power or
privilege or the exercise of any other right, power or privilege. To the
maximum extent permitted by applicable law (i) no claim or right of any party
arising out of this Agreement can be discharged by a party, in whole or in part,
by a waiver or renunciation of the claim or right unless in writing signed by
the party possessing such right, (ii) no waiver that may be given by a party
will be applicable except in the specific instance for which it is given, and
(iii) no notice to or demand on one party will be deemed to be a waiver of any
obligation of such party or of the right of the party giving such notice or
demand to take further action without notice or demand as provided in this
Agreement; provided that notwithstanding anything herein to the contrary, if
Weeks and St. Xxx have the same or similar claim against Codina hereunder,
either Weeks or St. Xxx xxx settle such claim with Codina as to itself only
without the consent of the other party.
6.10 ENTIRE AGREEMENT AND AMENDMENT. This Agreement supersedes all prior
------------------------------
agreements between the parties with respect to its subject matter including
without limitation that certain letter of intent dated December 9, 1997 and
constitutes (along with the documents referred to in this Agreement) a complete
and exclusive statement of the terms of the agreement between the parties with
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respect to its subject matter. This Agreement may not be amended except by a
written agreement executed by all parties.
6.11 ASSIGNMENTS, SUCCESSORS AND NO THIRD-PARTY RIGHTS. No party may
-------------------------------------------------
assign any of its rights under this Agreement without the prior consent of the
other parties, which will not be unreasonably withheld; provided, however, that
Weeks may freely transfer any of its rights under this Agreement to any Person
of which Weeks Corporation owns, directly or indirectly, a majority of such
Person's beneficial interest. Subject to the preceding sentence, this Agreement
will apply to, be binding in all respects upon and inure to the benefit of the
heirs and legal representatives, successors and permitted assigns of the
parties. Nothing expressed or referred to in this Agreement will be construed
to give any Person other than the parties to this Agreement any legal or
equitable right, remedy or claim under or with respect to this Agreement or any
provision of this Agreement. This Agreement and all of its provisions and
conditions are for the sole and exclusive benefit of the parties to this
Agreement and their heirs and legal representatives, successors and assigns.
6.12 SEVERABILITY. If any provision of this Agreement is held invalid or
------------
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
6.13 SECTION HEADINGS, CONSTRUCTION. The headings of Sections in this
------------------------------
Agreement are provided for convenience only and will not affect its construction
or interpretation. All references to "Article", "Section" or "Sections" refer
to the corresponding Article, Section or Sections of this Agreement. All words
used in this Agreement will be construed to be of such gender or number as the
circumstances require. Unless otherwise expressly provided, the word
"including" does not limit the preceding words or terms.
6.14 TIME OF ESSENCE. With regard to all dates and time periods set forth
---------------
or referred to in this Agreement, time is of the essence.
6.15 GOVERNING LAW. This Agreement will be governed by the laws of the
-------------
State of Florida without regard to conflicts of laws principles.
6.16 COUNTERPARTS. This Agreement may be executed in one or more
------------
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which when taken together will be deemed to constitute one
and the same agreement.
(Signatures on following page)
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first written above.
___________________________________
XXXXXXX XXXXXX
CODINA GROUP, INC.
By:_________________________________
Xxxxxxx Xxxxxx, President
ST. XXX CORPORATION
By:_________________________________
Name:______________________________
Title:_______________________________
WEEKS REALTY SERVICES, INC.
By:________________________________
Name:______________________________
Title:_______________________________
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EXHIBIT A
---------
WARRANT AGREEMENT
-----------------
EXHIBIT B
---------
SELLER'S RELEASE
----------------
