COMMON STOCK PURCHASE AND SALE AGREEMENT
This Common Stock Purchase and Sale Agreement (the "Agreement"), dated
December 3, 1996, by and among RGI Holdings, Inc., a Washington corporation
("RGI"); and Xxxx Xxxxxx and Xxxxxxx Xxxxxx, as joint tenants (together, the
"Selling Shareholders").
WHEREAS, the Common Stock, par value $0.01 per share ("Common Stock"), of
Banyan Mortgage Investment Fund, a Delaware corporation (the "Company"), is
publicly traded on the New York Stock Exchange under the symbol "VMG";
WHEREAS, the Selling Shareholders, as joint tenants, own and desire to sell
1,250,000 shares of the Company's Common Stock (as appropriately adjusted as
necessary to reflect a stock split (including the proposed one-for-twenty-five
reverse stock split), stock dividend, merger, consolidation, reclassification,
recapitalization or other similar transaction, the "Shares"), which Shares
constitute approximately 2.6% of the total issued and outstanding shares of
Common Stock; and
WHEREAS, Purchaser desires to purchase the Shares from the Selling
Shareholders, and the Selling Shareholders desire to sell the Shares to
Purchaser, upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. PURCHASE AND SALE OF SHARES. Subject to the terms and conditions of
this Agreement, on the Closing Date (as hereinafter defined) the Selling
Shareholders shall sell the Shares to Purchaser, and Purchaser shall purchase
the Shares from the Selling Shareholders.
2. PURCHASE PRICE.
(a) The purchase price (the "Purchase Price") payable per Share to be
purchased by Purchaser hereunder shall be, as of any date, $0.50 (appropriately
adjusted as necessary to reflect a stock split (including the proposed one-for-
twenty-five reverse stock split), stock dividend, merger, consolidation,
reclassification, recapitalization or other similar transaction with respect to
the Common Stock).
(b) The aggregate Purchase Price payable by Purchaser to the Selling
Shareholders pursuant to this Section 2 shall be paid by bank cashier's check or
wire transfer to an account designated in writing by the Selling Shareholders at
least forty-eight (48) hours prior to the Closing.
3. REPRESENTATIONS AND WARRANTIES OF SELLING SHAREHOLDERS. The Selling
Shareholders, jointly and severally, make the following representations and
warranties to Purchaser, each of which is true and correct on the date hereof,
shall remain true and correct to and as of the Closing (as hereinafter defined)
and shall survive the Closing:
(a) Each Selling Shareholder has all requisite power and authority to
enter into this Agreement and the other documents and instruments to be executed
and delivered by the Selling
Shareholders and to carry out the transactions contemplated hereby and thereby.
This Agreement has been duly and validly executed and delivered by the Selling
Shareholders and constitutes, and when executed and delivered, the other
documents and instruments to be executed and delivered by the Selling
Shareholders pursuant hereto will constitute, valid and binding agreements of
the Selling Shareholders enforceable in accordance with their respective terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforceability of creditors'
rights generally and by general equitable principles. Neither the execution,
delivery and performance of this Agreement nor the consummation of the
transactions contemplated herein will, with or without the giving of notice of
the lapse of time, or both (i) conflict with or result in any violation of or
default under (a) any note, bond, mortgage, indenture, lease, agreement or other
material instrument, permit, concession, grant, franchise or license to which
either Selling Shareholder is a party or by which any of his or her properties
or assets may be bound or (b) any judgment, order, decree, injunction, statute,
rule, permit, license or regulation applicable to either Selling Shareholder or
any of his or her properties, or (ii) result in the acceleration of any material
obligation or the creation of any material lien, charge or encumbrance upon
either Selling Shareholder. No authorization, consent or approval of, or
declaration of, filing with or notice to any governmental body or authority is
necessary for the execution, delivery and performance of this Agreement by
either Selling Shareholder.
(b) The Selling Shareholders are the owners of the Shares, free and
clear of all liens, claims, charges and other encumbrances. Upon the Closing,
the Selling Shareholders shall convey to Purchaser or its permitted assignee
good and marketable title to the Shares, free and clear of all liens, claims,
charges and other encumbrances. None of the Selling Shareholders has any right,
directly or indirectly, to purchase or has any interest in any shares of Common
Stock other than the Shares.
(c) Neither of the Selling Shareholders has retained, employed or
used any broker or finder in connection with the transactions provided for
herein or in connection with the negotiation thereof.
(d) Neither of the Selling Shareholders has offered, directly or
indirectly, any Shares beneficially owned thereby for sale, nor solicited any
offer to buy any such Shares, by means of any general advertising or by any
other form of general solicitation. Neither of the Selling Shareholders has
offered, directly or indirectly, any Shares beneficially owned thereby for sale,
nor solicited any offer to buy any such Shares, in any other manner that would
require the sale of the Shares to be subject to the registration requirements of
the Securities Act of 1933, as amended. Each of the Selling Shareholders
confirms that he or she did not acquire any Shares with a view to, or for,
resale in connection with any distribution thereof within the meaning of the
Securities Act of 1933, as amended, which would not be exempt from the
registration requirements of such Act.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser makes the
following representations and warranties to the Selling Shareholders, each of
which is true and correct on the date hereof, shall remain true and correct to
and as of the Closing, and shall survive the Closing:
(a) Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Washington. Purchaser has all
requisite power to enter into this Agreement and the other documents pursuant
hereto and to carry out the transactions contemplated hereby and thereby.
(b) The execution and delivery of this Agreement and the other
documents and
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instruments to be executed and delivered by Purchaser pursuant hereto and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by the Board of Directors of Purchaser. No other corporate act or
proceeding on the part of Purchaser or its shareholders is necessary to
authorize this Agreement or the other documents and instruments to be executed
and delivered by Purchaser pursuant hereto or the consummation of the
transactions contemplated hereby and thereby. This Agreement constitutes, and
when executed and delivered, the other documents and instruments to be executed
and delivered by Purchaser pursuant hereto will constitute, valid and binding
agreements of Purchaser, enforceable in accordance with their respective terms,
except as such may be limited by bankruptcy, insolvency, reorganization or other
laws affecting creditors' rights generally, and by general equitable principles.
(c) Neither the execution, delivery and performance of this Agreement
nor the consummation of the transactions contemplated herein will, with or
without the giving of notice or the lapse of time, or both, (i) conflict with or
result in any violation of or default under (a) any provision of the Articles of
Incorporation or the bylaws of Purchaser, each as amended and/or restated to
date, (b) any note, bond, mortgage, indenture, lease, agreement or other
material instrument, permit, concession, grant, franchise or license to which
Purchaser is a party or by which any of its properties or assets may be bound or
(c) any judgment, order, decree, injunction, statute, rule, permit, license or
regulation applicable to the Purchaser or any of its properties, or (ii) which
result in the acceleration of any material obligation or the creation of any
material lien, charge or encumbrance upon any of the assets of Purchaser. No
authorization, consent or approval of, or declaration of, filing with or notice
to any governmental body or authority is necessary for the execution, delivery
and performance of this Agreement by Purchaser.
(d) Neither Purchaser nor any of its directors, officers, employees
or agents has retained, employed or used any broker or finder in connection with
the transaction provided for herein or in connection with the negotiation
thereof.
5. COVENANTS OF THE SELLING SHAREHOLDERS.
(a) From the date hereof until the Closing, each of the Selling
Shareholders covenants and agrees that he or she will not, without the prior
written consent of RGI, directly or indirectly (i) transfer any of the Shares,
except to Purchaser pursuant hereto, or (ii) exercise any voting rights of the
Shares or grant any proxies (except as set forth herein) or enter into any
voting trust or other agreement or arrangement with respect to the voting of any
Shares.
(b) From the date hereof until the first to occur of (i) the
consummation of the merger of RGI U.S. Holdings, Inc., a Washington corporation,
with and into the Company or (ii) the third business day following the failure
of the shareholders of the Company to approve such a merger at a meeting
thereof, duly called and held, at which a proposal to approve such a merger is
acted upon, each of the Selling Shareholders shall not, directly or indirectly,
acquire or enter into any contract to acquire, any shares of Common Stock or any
voting rights with respect to any shares of Common Stock.
6. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. Each and every
obligation of Purchaser to be performed on the Closing Date (as hereinafter
defined) shall be subject to the satisfaction prior to or at the Closing of each
of the following conditions:
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(a) Each of the representations and warranties made by the Selling
Shareholders in this Agreement shall be true and correct in all material
respects when made and shall be true and correct in all material respects at and
as of the Closing Date as though such representations and warranties were made
or given on and as of such Closing Date.
(b) Each of the Selling Shareholders shall have in all material
respects performed and complied with all of his or her agreements and
obligations under this Agreement which are to be performed or complied with by
it prior to or on the Closing Date, including the delivery of the closing
documents specified in Section 9.
(c) No injunction or restraining order shall have been issued by any
court of competent jurisdiction that enjoins consummation of the transactions
contemplated hereby.
7. CONDITIONS PRECEDENT TO SELLING SHAREHOLDERS' OBLIGATIONS. Each and
every obligation of the Selling Shareholders to be performed on the Closing Date
shall be subject to the satisfaction prior to or at the Closing on such date of
the following conditions:
(a) Each of the representations and warranties made by Purchaser in
this Agreement shall be true and correct in all material respects when made
shall be true and correct in all material respects at and as of the Closing Date
as though such representations and warranties were made or given on and as of
the Closing Date.
(b) Purchaser shall have in all material respects performed and
complied with all of its agreements and obligations under this Agreement which
are to be performed and complied with by it or prior to or on the Closing Date,
including the delivery of the closing documents specified in Section 10.
(c) No injunction or restraining order shall have been issued by a
court of competent jurisdiction that enjoins consummation of the transactions
contemplated hereby.
8. CLOSING. The closing of the purchase and sale of the Shares (the
"Closing") shall take place at 10:00 a.m. (Pacific Standard Time) on December 6,
1996, or at such other time and place as the parties hereto shall agree upon in
writing. The date on which the Closing occurs is referred to in this Agreement
as the "Closing Date".
9. DOCUMENTS TO BE DELIVERED BY THE SELLING SHAREHOLDERS AT THE CLOSING.
At the Closing the Selling Shareholders shall deliver, or cause to be delivered,
to Purchaser the following documents, in each case duly executed or otherwise in
proper form:
(a) Either (i) stock certificates, duly endorsed for transfer or with
duly executed stock powers attached thereto, representing the Shares, or (ii)
other customary evidence of transfer of the Shares reasonably satisfactory to
RGI and its legal counsel.
(b) A validly executed irrevocable proxy in the form attached hereto
as Exhibit A.
10. DOCUMENTS TO BE DELIVERED BY PURCHASER AT THE CLOSING. At the
Closing, Purchaser shall deliver to the Selling Shareholders a bank cashier's
check or wire transfer in payment of the aggregate Purchase Price for the Shares
as provided in Section 2 above.
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11. PRICE PROTECTION.
(a) For purposes of this Section 11, the following definitions shall
apply:
(i) The term "Acquisition Transaction" shall mean:
(A) the acquisition by any Person of securities
representing at least fifty percent (50%) of the combined voting power of
the Company's then outstanding securities; or
(B) the consummation by any Person of (x) any
consolidation, merger or similar transaction involving the Company in which
the Company is not the continuing or surviving corporation or pursuant to
which shares of the Company's Common Stock are converted into cash or
securities, or (y) any purchase, lease, exchange or other acquisition (in
one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company.
(ii) The term "Person" shall mean any individual, firm,
partnership, corporation or other entity, including any successor (by
merger or otherwise) of such entity, or a group of any of the foregoing
acting in concert.
(b) In the event any Person (including, but not limited to, the
Purchaser) offers, directly or indirectly, an Acquisition Transaction
within four (4) months following the Closing, Purchaser shall pay to the Selling
Shareholders, on the thirty-third day following the consummation of such
Acquisition Transaction, by bank cashier's check or wire transfer to an account
designated in writing by at least forty-eight (48) hours prior to the time for
payment hereunder), a dollar amount (the "Excess Amount") equal to the product
of (i) the aggregate number of Shares and (ii) the excess, if any, of (x) the
fair market value of the cash and/or securities (as determined below) the
Selling Shareholders would have been entitled to receive for each Share in the
Acquisition Transaction had the Closing under this Agreement not occurred and
the Selling Shareholders participated in the Acquisition Transaction over (y)
the Purchase Price per Share paid by Purchaser to the Selling Shareholders
pursuant to this Agreement. For purposes hereof, the fair market value of any
securities shall be the average closing price of such securities for the five
days immediately preceding the thirtieth day following the consummation of the
Acquisition Transaction (as appropriately adjusted as necessary to reflect a
stock split, including the Company's proposed one-for-twenty-five reverse stock
split, stock dividend, merger, consolidation, reclassification, recapitalization
or other similar transaction). In the event an Acquisition Transaction involves
solely the issuance of shares of voting stock or other securities to the holders
of the Company's Common Stock, the Purchaser may, in lieu of paying the Excess
Amount in cash, pay such amount in shares of the voting stock or other
securities delivered to the holders of the Company's Common Stock in the
Acquisition Transaction.
12. TERMINATION. This Agreement may be terminated by the Selling
Shareholders, on one hand, or the Purchaser, on the other hand, if the Closing
shall not have been consummated prior to 5:00 p.m. (Pacific Standard Time) on
December 6, 1996; PROVIDED, HOWEVER, that the obligations of each of the parties
hereto under Sections 14, 17 and 18 shall continue in full force and effect
notwithstanding any such termination, and that no party shall be relieved from
any liability of any kind or nature whatsoever resulting from or arising out of
a breach thereby of this Agreement occurring
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prior to such termination.
13. FURTHER ASSURANCES. From time to time prior to, at and after the
Closing, each party hereto shall execute all such instruments and take all such
actions as any other party hereto shall reasonably request in connection with
carrying out and effectuating the transactions contemplated by this Agreement.
14. NOTICES. Any notices required or allowed to be furnished pursuant to
the terms hereof shall be provided to the Selling Shareholders and Purchaser at
the addresses set forth with their signatures below. Notices hereunder shall be
in writing and may be hand delivered, mailed, delivered by overnight courier
service or, if facsimile numbers are provided below, transmitted by facsimile.
If mailed, such notices shall be sent by certified mail, postage prepaid, return
receipt requested. The date which is three (3) business days after the date of
mailing shall be deemed to be the date on which the notice was given. The
postmark affixed to such notice by the U.S. Post Office shall be conclusively
presumed to be the date of mailing for purposes of this Section. In he case of
notices given by hand delivery or overnight courier, such notices shall be
deemed given on the date of the actual receipt. If transmitted by facsimile,
such notices shall be deemed given on the date of the actual receipt of a
complete, legible facsimile transmission, except that if a facsimile
transmission is received after business hours or on a weekend or holiday, then
the notice shall be deemed given on the next business day following the receipt
of the facsimile transmission.
15. GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Delaware without regard to the
conflicts of law provisions thereof.
16. ASSIGNMENT.
(a) The rights and obligations of a party hereunder may not be
assigned, transferred or encumbered without the prior written consent of the
other parties, except that Purchaser may assign its rights hereunder to an
affiliate thereof.
(b) This Agreement shall be binding upon, inure to the benefit of,
and be enforceable by the respective successors and permitted assigns of the
parties hereto. Nothing contained herein shall be deemed to confer upon any
other person any right or remedy under or by reason of this Agreement.
17. EXPENSES. Each of the parties hereto shall bear its own expenses and
the expenses of its counsel and other agents in connection with the transactions
contemplated hereby.
18. SATURDAYS, SUNDAYS AND LEGAL HOLIDAYS. If the time for performance of
any of the terms, conditions and provisions hereof shall fall on a Saturday,
Sunday or legal holiday, then the time of such performance shall be extended to
the next business day thereafter.
19. USAGE OF GENDER SPECIFIC TERMS. As used herein, each of the
masculine, feminine and neuter genders shall include the other genders, the
singular shall include the plural, and the plural shall include the singular,
wherever appropriate to the context.
20. ENTIRE AGREEMENT; AMENDMENT. This Agreement embodies the entire
agreement of the parties with respect to the transactions contemplated herein,
including the purchase and sale of Shares,
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and all prior understandings and agreements of the parties relating thereto are
merged herein. This Agreement may not be modified in any manner whatsoever
except by a written instrument signed by the Selling Shareholders and the
Purchaser.
21. WAIVER. No delay in exercising any right or remedy of any of the
parties hereunder shall constitute a waiver thereof, and no waiver by the
Selling Shareholders or Purchaser of the breach of any covenant of this
Agreement shall be construed as a waiver of any preceding or succeeding breach
of the same or any other covenant or condition of this Agreement.
22. HEADINGS. The headings in this Agreement are inserted for convenience
only and shall not constitute a part hereof.
23. SEVERABILITY. If any term, covenant or condition of this Agreement is
held to be invalid or unenforceable in any respect, such invalidity or
unenforceability shall not affect any other provision hereof and this Agreement
shall be construed as if such invalid or unenforceable provision has never been
contained herein.
24. PUBLIC ANNOUNCEMENTS. The parties shall mutually agree on the content
and timing of any public disclosure in relation to the transactions contemplated
hereby, subject to applicable requirements of law.
25. EXECUTION. This Agreement may be executed in separate counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Any party may execute this Agreement by
transmitting a copy of its signature by facsimile to the other parties. In such
event the signing party shall deliver an original of the signature page to each
of the other parties within one business day of signing, and failure to do so
deliver such originals shall result in the facsimile copy of that party's
signature being treated as an original.
IN WITNESS WHEREOF, the undersigned parties have executed this Agreement as
of the date and year first above written.
SELLING
SHAREHOLDERS:
/s/
----------------------------------------
Xxxx Xxxxxx, as joint tenant
/s/
----------------------------------------
Xxxxxxx Xxxxxx, as joint tenant
Address: 0000 Xxxxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
PURCHASER: RGI HOLDINGS, INC.
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By: /s/
--------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------
Its: President
---------------------------
Address: 0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
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EXHIBIT A
IRREVOCABLE PROXY
By their execution hereof, the undersigned, as joint tenants, hereby
irrevocably constitute and appoint RGI Holdings, Inc., a Washington corporation
("RGI"), with full power of substitution, as their true and lawful proxy and
attorney-in-fact, with respect to the 1,250,000 shares ( as appropriately
adjusted as necessary to reflect a stock split, stock dividend, merger,
consolidation, reclassification, recapitalization or other similar transaction,
the "Shares") of common stock, par value $.01 per share ("Common Stock"), of
Banyan Mortgage Investment Fund, a Delaware corporation (the "Company"), owned
by them as joint tenants as of the date hereof, to: (i) vote at any annual or
special meeting of the stockholders of the Company, to take any action,
including without limitation, adopting a proposed merger of RGI U.S. Holdings,
Inc. with and into the Company, amending the Company's certificate of
incorporation to reclassify, combine and convert each twenty-five issued and
outstanding shares of the Company's Common stock into one issued and outstanding
share, to adopt an Amended and Restated Certificate of Incorporation of the
Company that, among other things, changes Banyan's name to "Legend Properties,
Inc.", and electing directors; (ii) to exercise written consent in lieu of
voting with respect to the matters set forth in the preceding clause (i); and
(iii) to execute, acknowledge, swear to and file in the name, place and stead of
the undersigned any proxy, consent, approval, or other documents to be executed
by the stockholders in connection with the items set forth in the preceding
clauses (i) and (ii). The proxy granted hereby is irrevocable and is given in
connection with the purchase by RGI of the Shares pursuant to a Common Stock
Purchase and Sale Agreement dated December 3, 1996 (the "Purchase Agreement"),
by and among RGI and Xxxx Xxxxxx and Xxxxxxx Xxxxxx, as joint tenants; PROVIDED,
HOWEVER, that this Irrevocable Proxy shall automatically terminate and be of no
further force or effect with respect to any Shares as of June 30, 1997.
IN WITNESS WHEREOF, the undersigned, as joint tenants, have executed this
Irrevocable Proxy as of the ____ day of December, 1996.
----------------------------------------
Xxxx Xxxxxx, as joint tenant
----------------------------------------
Xxxxxxx Xxxxxx, as joint tenant
Address: 0000 Xxxxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
