EXHIBIT 10.2
SHAREHOLDERS' AGREEMENT
THIS SHAREHOLDERS' AGREEMENT is made this ___ day of February, 1998, by and
among Codina Group, Inc., a Florida corporation (the "Corporation"), and Xxxxxxx
Xxxxxx, a Florida resident ("Codina"), St. Xxx Corporation, a Florida
corporation ("St. Xxx"), and Weeks Realty Services, Inc. ("Weeks"), a Georgia
corporation and an indirectly, majority-owned subsidiary of Weeks Corporation,
and any other Person (as defined below) who hereafter acquires or holds, during
the term of this Agreement, any of the Shares (as defined below) (hereinafter
referred to individually as a "Shareholder" and collectively as the
"Shareholders").
WHEREAS, the Shareholders are the record owners of all of the issued and
outstanding Shares;
WHEREAS, the Shareholders desire to promote their mutual interests and the
interests of the Corporation by imposing certain restrictions and obligations on
themselves, on the Corporation and on the Shares now owned or at any time
hereafter acquired by any Shareholder or the Corporation;
NOW, THEREFORE, in consideration of the premises and of the promises
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions.
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"Accountant" shall mean Xxxxxx, Xxxxxxx & Company or such other firm of
certified public accountants selected by the Board from time to time.
"Affiliate(s)" of a specified Person shall mean any Person or group of
Persons, Controlling, Controlled by, or under Common Control with the specified
Person. For the purposes of this Agreement none of the Trust, FECI or the Gran
Entity shall be considered Affiliates of St. Xxx.
"Agreement" shall mean this agreement and all exhibits hereto.
"Airport Land" shall mean that certain approximately 195 acre tract owned by
FECI contiguous to Miami International Airport.
"Annual Business Plan" shall have the meaning provided in Section 3.3.
"Beacon Centre Property" shall mean all property owned by Weeks or a Weeks'
Affiliate in that certain real estate development located in Dade County,
Florida, more commonly known as Beacon Centre.
"Board" shall mean the Board of Directors of the Corporation.
"Brickell Avenue Office Building Project" shall mean the development of an
office building on certain property located in Miami, Florida on Brickell Avenue
adjacent to the Brickell Square building.
The term "Change in Control" with respect to St. Xxx or Weeks means that:
(i) 25% or more of the outstanding voting stock of Weeks Corp. or St. Xxx,
as the case may be, is acquired by any Person or group of Persons.
With respect to St. Xxx, a Change in Control will not have occurred
because of a change in ownership by the Trust,
(ii) St. Xxx or Weeks Corp. is a party to a merger or similar transaction
as a result of which St. Xxx or Weeks Corp. stockholders immediately
prior to such transaction, as the case may be, own less than 50% of
the surviving entity's voting securities after such merger or similar
transaction; and
(iii) with respect to Weeks Corp., none of A. Xxx Xxxxx, Xx., Xxxxxx X.
Xxxxxxxx, Xxxxx X. Xxxxxxxx or any replacement for any of the
foregoing who has been acknowledged as a replacement by St. Xxx
continues to serve in a senior management capacity with Weeks Corp. or
its successor in interest and at least one member of the foregoing is
not represented on the Board at any time. St. Xxx hereby agrees to act
reasonably in approving replacements for the foregoing individual
designees.
"Closing" shall mean the consummation of the Transfer of any Shares required
or permitted to be Transferred hereunder.
"Closing Date" shall have the meaning provided in Section 8.11.
"Codina" shall have the meaning provided in the introductory paragraph hereof.
"Codina Cause" shall mean with respect to Codina: (i) any reduction by the
Corporation in the amount of his base compensation or benefits which are
provided in this Agreement, (ii) any change in his incentive compensation
formula which is provided for in this Agreement, except as provided in this
Agreement, (iii) his actual or de facto removal from the position of President
and Chief Executive Officer of the Corporation, (iv) any material reduction in
his authority within the Corporation or (v) a material increase or substantial
change in his duties from those being performed at the date of this Agreement,
except for any change which may result from the general growth of the
Corporation; provided, however, that Codina Cause shall not exist if Codina
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approves in writing any of the foregoing changes.
"Codina Owned Real Estate" shall mean all real estate located in South Florida
which is, directly or indirectly, owned, in whole or in part, by Codina as of
the date hereof and which is more particularly described on Exhibit A.
"Codina Put Option" shall have the meaning provided in Section 8.6.
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"Codina Representative" shall have the meaning provided in Section 3.1(a).
"Codina St. Xxx Change in Control" shall be deemed to have occurred if none of
the Chief Executive Officer, Chief Operating Officer or Chief Financial Officer
of St. Xxx or its successor in interest is serving as a member of the Board.
"Codina Weeks Change in Control" shall be deemed to have occurred if A. Xxx
Xxxxx, Xx. ceases to serve in a senior management capacity with Weeks or its
successor in interest and Codina is not then serving on the Board of Directors
of Weeks Corp. as a result of having not been elected or re-elected (other than
as a result of Codina's refusal to stand for re-election). Codina may in his
sole discretion approve a replacement for A. Xxx Xxxxx, Xx.; provided however,
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that if a request is made in writing by Weeks to approve a replacement for A.
Xxx Xxxxx, Xx., Codina shall approve or disapprove such replacement, in his sole
discretion, within 90 days of such written request.
"Codina Weeks Partnership" shall mean those to-be-formed partnerships by and
between an entity controlled by Xxxxxxx Xxxxxx and Weeks or one of its
Affiliates.
"Collateral Documents" shall mean (i) the Stock Purchase Agreement and (ii)
the License Agreement.
"Consumer Price Index" shall mean the Consumer Price Index "All Urban
Consumers: U.S. city average, all items" (1982-1984 = 100) published by the
Bureau of Labor Statistics of the United States Department of Labor, or any
equivalent successor or substitute index published by the Bureau of Labor
Statistics or a successor or substitute governmental agency.
"Control" of a Person (including, with correlative meaning, the terms
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"Controlling," "Controlled by" and "Under Common Control With") shall mean (i)
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the beneficial ownership (as defined in Rule 13d-3 under the Securities and
Exchange Act of 1934) of 50 percent or more of the voting or equity securities
of such Person, (ii) the status of being a director, officer, partner, executor,
trustee or other fiduciary of such Person or (iii) the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting or equity
securities, by contract or otherwise. For purposes of the foregoing, the
managing partner of a general or limited partnership and any general partner of
a limited partnership and the adviser of a partnership, corporation, trust or
other entity shall be deemed to be in control thereof.
"Control Group" shall mean with respect to each of Codina, St. Xxx and Weeks,
each of them and their respective Permitted Transferees.
"Coral Gables Office Building Project" shall mean the development of an office
building on Giralda Avenue, Coral Gables, Florida.
"Corporation" shall have the meaning provided in the introductory paragraph
hereof.
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"Corporation Call Option" shall have the meaning provided in Section 8.8(a).
"Corporation Cause" shall mean with respect to Codina: (i) his gross
negligence or willful misconduct with respect to the Corporation, (ii) his
conviction of a felony or a lesser crime involving fraud which is materially
injurious to the Corporation or its reputation, in each case as determined by
the unanimous vote of the Weeks Representatives and St. Xxx Representatives or
(iii) after written notice, his failure to cure a breach by him of this
Agreement or any of the Collateral Agreements; provided that with respect to the
Stock Purchase Agreement, for purposes hereof only a failure by Codina to pay an
indemnification claim which Codina has not contested is due and payable or for
which a judgment against Codina has been entered by a court of competent
jurisdiction or final order in binding arbitration and from which no further
appeals are available, shall be considered a breach.
"Default Call" shall have the meaning provided in Section 8.7.
"Designated Purchaser" shall have the meaning provided in Section 8.3(a).
"Disabled or Disability" shall mean, with respect to Codina, a condition which
renders him incapable of performing in any material respect his duties as an
officer or employee of the Corporation, whether by reason of a physical or
mental injury, physical incapacity or disability, physical or mental illness or
otherwise, for any period of 180 consecutive days, exclusive of vacations,
holidays and leaves of absence approved in writing by the Corporation and which
in the written opinion of a physician resident in South Florida of recognized
ability and reputation selected by the Board who has examined Codina after such
180 days renders Codina unable to perform his duties as an officer and employee
of the Corporation.
"Distributed Division" shall have the meaning provided in Section 8.1(b).
"Distributed Division Value" shall mean with respect to the Weeks Division or
the St. Xxx Division, as the case may be, an amount equal to the lesser of (i)
the amount determined by multiplying the Corporation's EBITDA attributable to
the Weeks Division or St. Xxx Division, as the case may be, for the four
consecutive calendar quarters immediately preceding the date of the valuation by
six or (ii) the amount determined by multiplying the Corporation's EBITDA
attributable to the Weeks Division or St. Xxx Division, as the case may be, for
the four consecutive calendar quarters commencing on the first day of the
calendar quarter which precedes by eight calendar quarters the date of the
valuation by 7.5; provided, however, if the Weeks Division or the St. Xxx
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Division, as the case may be, has not operated for the requisite number of
calendar quarters, the Distributed Division Value shall mean a value as
determined by the Board in good faith.
"EBITDA" shall mean for any fiscal period or portion thereof, the net income
(determined in accordance with generally accepted accounting principles) of the
Corporation for such period, 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
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(iv) adding thereto the amount of all non-cash losses that were deducted in
arriving at the Corporation's net income for such period.
"Employment Agreement" shall mean with respect to each member of Senior
Management, the employment agreement dated as of January 1, 1998 by and between
each such individual and the Corporation.
"Excluded Areas" shall mean (i) the area bounded on the north by Florida State
Road 836 (also known as the Dolphin Expressway), the east by Northwest 2nd
Avenue, the west by Interstate 95 and the south by Flagler Street and (ii) the
area bounded by Okeechobee Road, the Florida Turnpike and Xxxxxxxxx 00xx Xxxxxx.
"Exercise Amount" shall mean at the date of any determination, the amount
which would be received by the Corporation if all options to purchase Shares
which are In The Money were exercised, without regard to whether such option is
exercisable by its terms at the date of such determination.
"FECI" shall mean Florida East Coast Industries, Inc.
"Gran Entity" shall mean Gran Central Corporation ("GCC").
"Gran Property" shall mean all of the improved real property located in Gran
Park in Medley, Florida currently owned by GCC.
"In the Money" shall mean, at the date of any determination, with respect to
an option to purchase a Share, that the value of the Share which is subject to
such option exceeds the option price of such Share. For purposes of determining
the value of each Share subject to an option, the Shares of the Company shall be
valued by dividing the Total Price (computed for this purpose only by not
including the Exercise Amount) by the total number of issued and outstanding
Shares as of such time.
"License Agreement" shall mean that certain license agreement dated the date
hereof by and between Codina, as licensor and the Corporation as licensee.
"Management Division" shall have the meaning provided in Section 4.1.
"Non-Offering Shareholder" shall have the meaning provided in Section 9.2(a).
"Offered Shares" shall have the meaning provided in Section 9.2(a).
"Offeree" shall have the meaning provided in Section 8.10.
"Offering Shareholder" shall have the meaning provided in Section 9.2(a).
"Offeror" shall have the meaning provided in Section 8.10.
"Officer(s)" shall mean any officer of the Corporation.
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"Option Shares" shall mean Shares initially acquired by the exercise of an
option under the Stock Option Plan.
"Permitted Transfer" shall mean:
(i) with respect to a Shareholder who is a natural person, a Transfer by
way of gift or the laws of descent and distribution to his or her
spouse or lineal descendants, or to any trust of which he or she is
the settlor for the primary benefit of his or her spouse or lineal
descendants, or to any partnership or other entity, the securities or
equity of which are owned by the Shareholder or his or her spouse,
lineal descendants or trust of the type described above in this
subsection (i);
(ii) with respect to Weeks or St. Xxx, a Transfer to any other Person or
entity that is an Affiliate of Weeks or St. Xxx, respectively;
(iii) with respect to St. Xxx, a Transfer to either FECI or Gran Entity, if
such transferee agrees to assume all of the obligations of St. Xxx
hereunder and the other of such parties (i.e. FECI or Gran Entity, as
the case may be) agrees to be treated as an Affiliate of the
transferee for all purposes hereof; or
(iv) with respect to any Shareholder, a Transfer (a) pursuant to Section 8
or (b) by way of pledge to bank or recognized financial institution
(provided that (A) such pledge is taken subject to any obligations
hereunder, (B) any foreclosure or other action taken against the
pledge by the pledgee shall be subject to the provisions of this
Agreement, (C) such pledge is taken only upon the written consent of
each of the other Shareholders, which consent shall not be
unreasonably withheld, (D) the bank or financial institution to which
the Shares are pledged will agree to sell to the other Shareholders
any Shares that it owns as a result of realizing on the pledge for an
amount equal to the amount of its outstanding loan and accrued
interest which was secured by such Shares and (E) with respect to a
pledge by Codina or Codina's Permitted Transferee, such pledge shall
not be made prior to eighteen months from the date hereof and provided
that the loan for which the Shares are pledged as security is recourse
to Codina or Codina's Permitted Transferee and the amount of such loan
does not exceed fifty percent of the value of the Shares pledged at
the time of such pledge).
"Permitted Transferee" shall mean any transferee described in the definition
of Permitted Transfer. A transferee under Section 9.2 is not a Permitted
Transferee.
"Person" shall mean any individual, partnership, corporation, limited
liability company, trust or other unincorporated association or entity.
"Purchase Price" shall mean an amount equal to the product of (i) the Total
Price and (ii) a fraction, the numerator of which is the total number of Shares
owned by the selling shareholder and the denominator of which is the sum of (a)
the total number of issued and outstanding Shares and (b) all shares which may
be purchased pursuant to an outstanding option if such option is In the Money at
the time of the determination of the Purchase Price.
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"Purchasing Shareholder" shall have the meaning provided in Section 8.1(a).
"Put Option" shall have the meaning provided in Section 8.1(a).
"Put Time" shall mean the earliest to occur of the following: (i) the death
of Codina, (ii) the Disability of Codina, (iii) the seventh anniversary of the
date of this Agreement, (iv) the date Codina's employment with the Corporation
is terminated by the Corporation other than for Corporation Cause, (v) the date
Codina terminates employment with the Corporation for Codina Cause, (vi) the
date when Codina (a) has ceased to be employed by the Corporation for any reason
and (b) either (A) there has been a Codina St. Xxx Change in Control and a
Codina Weeks Change in Control or (B) either St. Xxx or Weeks has acquired the
interest of the other in the Corporation and following or preceding such
acquisition there has been or is a Codina St. Xxx Change in Control or a Codina
Weeks Change in Control, as applicable, of the acquiring Shareholder and (vii)
if Weeks has acquired the interest of St. Xxx in the Corporation and either (A)
Codina is not then serving on the Board of Directors of Weeks Corp. as a result
of having not been elected or reelected (other than as a result of Codina's
refusal to stand for re-election) or (B) Codina is subsequently not elected as a
member of the Board of Directors of Weeks Corp.
"Qualified Public Offering" shall mean a sale of the Corporation's common
stock to the public pursuant to an effective registration statement filed under
the Securities Act of 1933, as amended, after which such shares are listed on a
national securities exchange or quoted on the NASDAQ Stock Market, Inc.'s
National Market System.
"Remaining Offered Shares" shall have the meaning provided in Section 9.2(c).
"Removed Director" shall have the meaning provided in Section 3.1(e).
"Selling Shareholder" shall have the meaning provided in Section 8.1(a).
"Senior Management" shall have the meaning provided in Section 7.1.
"Shareholder(s)" shall have the meaning provided in the introductory paragraph
hereof; provided however, that unless the context requires the term shall not
include holders of Option Shares.
"Shares" shall mean the $.01 par value common capital stock of the
Corporation, which constitutes all of the authorized stock of the Corporation
and all subsequent issuances of equity securities of the Corporation to any
Shareholder.
"South Florida" shall mean Miami-Dade, Broward, Palm Beach and Monroe
Counties, Florida.
"Specified Amount" shall have the meaning provided in Section 8.10.
"St. Xxx" shall have the meaning provided in the introductory paragraph
hereof.
"St. Xxx Call Option" shall have the meaning provided in Section 8.4.
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"St. Xxx Division" shall have the meaning provided in Section 4.1.
"St. Xxx Partnerships" shall mean those certain to-be-formed partnerships by
and between St. Xxx and a Xxxxxx Weeks Partnership or Weeks for the purpose of
developing certain property owned by St. Xxx, FECI, Gran Entity and/or its
Affiliates in South Florida.
"St. Xxx Representative" shall have the meaning provided in Section 3.1(a).
"Stock Option Plan" shall mean the Codina Group, Inc. 1998 Stock Option Plan.
"Stock Purchase Agreement" shall mean that certain Stock Purchase Agreement
dated the date hereof by and among the Corporation, Codina, St. Xxx and Weeks.
"Subsidiary" shall mean the direct or indirect subsidiaries of the
Corporation.
"Tax Resolution Accountant" shall have the meaning provided in Section 3.5
herein.
"Total Price" shall mean an amount equal to the lesser of (i) the sum of (a)
the amount determined by multiplying the Corporation's EBITDA for the four
consecutive calendar quarters immediately preceding the date of the valuation by
six, (b) the undistributed earnings accumulated from January 1, 1998 to the date
of such determination and (c) the Exercise Amount or (ii) the sum of (a) the
amount determined by multiplying the Corporation's EBITDA for the four
consecutive calendar quarters commencing on the first day of the calendar
quarter which precedes by eight calendar quarters the date of the valuation by
7.5, (b) the undistributed earnings accumulated from January 1, 1998 to the date
of such determination and (c) the Exercise Amount; provided however,
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notwithstanding anything contained herein to the contrary, for purposes of this
definition any calendar quarter occurring in 1997 shall be deemed to have an
EBITDA in an amount equal to the product of (I) 25% and (II) the final EBITDA
utilized to determine the purchase price as defined in the Stock Purchase
Agreement.
"Tradeport Project" shall mean the development, leasing, sale, and/or any and
all other activities related to that certain approximately 374 acres located at
the northeast quadrant of the intersection of the Florida Turnpike and Florida
State Road 836 (also known as the Dolphin Expressway).
"Transfer" shall mean the sale, gift, pledge, assignment, transfer, transfer
in trust, mortgage, alienation, hypothecation, encumbering or disposition of
Shares in any manner whatsoever, voluntarily or involuntarily, including,
without limitation, any attachment, assignment for the benefit of creditors or
transfer by operation of law or otherwise.
"Trust" shall mean the Xxxxxx X. xxXxxx Testamentary Trust.
"Weeks Codina Call" shall have the meaning provided in Section 8.9(a).
"Weeks Corp." shall mean Weeks Corporation, a Georgia corporation.
"Weeks" shall have the meaning provided in the introductory paragraph.
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"Weeks Call Option" shall have the meaning provided in Section 8.5.
"Weeks Division" shall have the meaning provided in Section 4.1.
"Weeks Partnership" shall mean those to-be-formed partnerships by and between
St. Xxx and a Xxxxxx Weeks Partnership or Weeks for the purpose of developing
and owning property owned, controlled or identified by Weeks and/or its
Affiliates in South Florida.
"Weeks Representative" shall have the meaning provided in Section 3.1(a).
Section 2. Representations and Warranties.
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2.1. Representations and Warranties of St. Xxx. To induce Weeks, Codina and
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the Corporation to execute, deliver and perform this Agreement, St. Xxx
represents and warrants to Weeks, Codina and the Corporation on and as of the
date hereof as follows:
(a) Organization/Authority. St. Xxx is a corporation duly formed, validly
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existing and in good standing under the laws of the State of Florida. St.
Xxx has the requisite power and authority to execute, deliver and perform
its obligations under this Agreement. The execution, delivery and
performance of this Agreement by St. Xxx has been duly and validly
authorized by all necessary corporate action. This Agreement has been duly
executed and delivered by St. Xxx. This Agreement constitutes a legal,
valid and binding obligation of St. Xxx which, 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, will be enforceable against St. Xxx in accordance
with its terms.
(b) No Violation. The execution, delivery and performance by St. Xxx of this
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Agreement and of the documents and instruments contemplated hereby to be
executed, delivered and performed by it will not (i) violate or conflict
with any provision of the Articles of Incorporation or Bylaws of St. Xxx,
(ii) constitute a violation of, or be in conflict with, or result in a
breach of, or constitute a default under, or create (or cause the
acceleration of the maturity of) any debt, obligation or liability pursuant
to, or result in the imposition of any lien upon any of the assets of, St.
Xxx under, any indenture, mortgage, deed of trust, loan agreement, or other
agreement or instrument, to which St. Xxx is a party or by which St. Xxx is
bound or to which St. Xxx or any of its assets are subject, or (iii)
contravene any provision of any law, rule or regulation or any judgment,
decree, order or award by which St. Xxx or any of its assets are subject
except, in each case, as would not have a material adverse effect on the
consolidated financial condition of St. Xxx.
(c) Restrictions and Contractual Obligations. The restrictions and contractual
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obligations set forth on Schedule 5.2(b) is a complete and accurate list of
the restrictions and contractual obligations applicable to St. Xxx and/or
its Affiliates with respect to its commercial and industrial activities in
South Florida as of the date hereof.
(d) Gran Property. St. Xxx shall use its reasonable best efforts to cause the
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Gran Entity to enter into property management and exclusive brokerage
agreements with the Corporation with respect to the Gran Property within a
reasonable time period after the date of this Agreement.
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2.2. Representations and Warranties of Weeks. To induce St. Xxx, Xxxxxx and
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the Corporation to execute, deliver and perform this Agreement, Weeks Corp. and
Weeks, jointly and severally, represent and warrant to St. Xxx, Codina and the
Corporation on and as of the date hereof as follows:
(a) Organization/Authority. Each of Weeks Corp. and Weeks is a corporation
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duly formed, validly existing, in good standing under the laws of the State
of Georgia and qualified to transact business in the State of Florida.
Each of Weeks Corp. and Weeks has the requisite power and authority to
execute, deliver and perform its obligations under this Agreement. The
execution, delivery and performance of this Agreement by each of Weeks
Corp. and Weeks has been duly and validly authorized by all necessary
corporate action. This Agreement has been duly executed and delivered by
each of Weeks Corp. and Weeks. This Agreement constitutes a legal, valid
and binding obligation of each of Weeks Corp. and Weeks which, 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, will be enforceable against each of Weeks
Corp. and Weeks in accordance with its terms.
(b) No Violation. The execution, delivery and performance by each of Weeks
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Corp. and Weeks of this Agreement and of the documents and instruments
contemplated hereby to be executed, delivered and performed by it will not
(i) violate or conflict with any provision of the Articles of Incorporation
and Bylaws of either Weeks Corp. or Weeks, (ii) constitute a violation of,
or be in conflict with, or result in a breach of, or constitute a default
under, or create (or cause the acceleration of the maturity of) any debt,
obligation or liability pursuant to, or result in the imposition of any
lien upon any of the assets of either Weeks Corp. or Weeks under, any
indenture, mortgage, deed of trust, loan agreement, or other agreement or
instrument, to which either Weeks Corp. or Weeks is a party or by which
either Weeks Corp. or Weeks is bound or to which either Weeks Corp. or
Weeks or any of their assets are subject, or (iii) contravene any provision
of any law, rule or regulation or any judgment, decree, order or award by
which either Weeks Corp. or Weeks or any of their assets are subject
except, in each case, as would not have a material adverse effect on the
consolidated financial condition of Weeks Corp.
2.3. Representations and Warranties of Codina. To induce Weeks, St. Xxx and
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the Corporation to execute, deliver and perform this Agreement, Codina
represents and warrants to Weeks, St. Xxx and the Corporation on and as of the
date hereof as follows:
(a) Execution/Enforceability. This Agreement has been duly executed and
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delivered by Codina. This Agreement constitutes a legal, valid and binding
obligation of Codina which, 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,
will be enforceable against him in accordance with its terms.
(b) No Violation. The execution, delivery and performance by Codina of this
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Agreement and of the documents and instruments contemplated hereby to be
executed, delivered and performed by him will not (i) constitute a
violation of, or be in conflict with, or result in a breach of, or
constitute a default under, or create (or cause the acceleration of the
maturity of) any debt, obligation or liability pursuant to, or result in
the imposition of any lien upon any of the assets of Codina under, any
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indenture, mortgage, deed of trust, loan agreement, or other agreement or
instrument, to which Codina is a party or by which Codina is bound or to
which Codina or any of his assets are subject, or (ii) contravene any
provision of any law, rule or regulation or any judgment, decree, order or
award by which Codina or any of his assets are subject except, in each
case, as would not have a material adverse effect on the financial
condition of Codina.
(c) Codina Owned Real Estate. The real estate described on Exhibit A is a
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complete and accurate schedule of all real estate, directly or indirectly,
owned, in whole or in part, by Codina in South Florida as of the date of
this Agreement.
2.4. Representations and Warranties of Codina and the Corporation. To induce
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St. Xxx and Weeks to execute, deliver and perform this Agreement, Codina and the
Corporation, jointly and severally, represent and warrant to St. Xxx and Weeks
on and as of the date hereof as follows:
(a) Organization/Authority. The Corporation is a corporation duly formed,
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validly existing and in good standing under the laws of the State of
Florida. The Corporation has the requisite power and authority to execute,
deliver and perform its obligations under this Agreement. The execution,
delivery and performance of this Agreement by the Corporation has been duly
and validly authorized by all necessary corporate action. This Agreement
has been duly executed and delivered by the Corporation. This Agreement
constitutes a legal, valid and binding obligation of the Corporation which,
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, will be enforceable against the
Corporation in accordance with its terms.
(b) No Violation. The execution, delivery and performance by the Corporation
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of this Agreement and of the documents and instruments contemplated hereby
to be executed, delivered and performed by it will not (i) violate or
conflict with any provision of the Articles of Incorporation or Bylaws of
the Corporation or any Subsidiary, (ii) constitute a violation of, or be in
conflict with, or result in a breach of, or constitute a default under, or
create (or cause the acceleration of the maturity of) any debt, obligation
or liability pursuant to, or result in the imposition of any lien upon any
of the assets of, the Corporation or any Subsidiary under, any indenture,
mortgage, deed of trust, loan agreement, or other agreement or instrument,
to which the Corporation or any Subsidiary is a party or by which the
Corporation or any Subsidiary is bound or to which the Corporation or any
Subsidiary or any of its assets are subject, or (iii) contravene any
provision of any law, rule or regulation or any judgment, decree, order or
award by which the Corporation or any Subsidiary or any of its assets are
subject except, in each case, as would not have a material adverse effect
on the consolidated financial condition of the Corporation and its
Subsidiaries.
2.5. Representations and Warranties of St. Xxx and Weeks to Each Other.
-----------------------------------------------------------------
(a) Disclosure by St. Xxx. St. Xxx represents and warrants to Weeks with full
---------------------
knowledge that Weeks is relying upon the same that St. Xxx has fully
disclosed to Weeks all of its and its Affiliates' agreements and contracts
with Codina.
(b) Disclosure by Weeks. Weeks represents to St. Xxx with full knowledge that
-------------------
11
St. Xxx is relying upon the same that, except with respect to the
agreements and contracts regarding the acquisition of the Beacon Centre
Property, Weeks has fully disclosed to St. Xxx all of its and its
Affiliates' agreements and contracts with Codina.
Section 3. Governance of the Corporation.
-----------------------------
3.1 Election, Resignation and Removal of the Board of Directors.
-----------------------------------------------------------
(a) The Shareholders covenant and agree that they will take and will cause to
be taken at all times all necessary action, including, without limitation,
the voting of the Shares to fix the size of the Board at six individuals to
be comprised as follows: (i) two members of the Board shall be individuals
nominated in writing by St. Xxx (each a "St. Xxx Representative"), (ii) two
members of the Board shall be individuals nominated in writing by Weeks
(each a "Weeks Representative") and (iii) two members of the Board shall be
individuals nominated in writing by Codina (each a "Codina
Representative"). The Weeks Representatives initially shall be A. Xxx
Xxxxx, Xx. and Xxxxxx X. Xxxxxxxx, the St. Xxx Representatives initially
shall be Xxxxx X. Xxxxxxx and Xxxxx X. Xxxxx and the Codina Representatives
initially shall be Xxxxxxx Xxxxxx and Xxxxx Xxxxxxx.
(b) The Shareholders covenant and agree that they will take, and cause to be
taken, all necessary action, including, without limitation, the voting of
their respective Shares and the tendering of resignations of their
respective nominees to the Board, to cause the reallocation of the seats on
the Board in accordance with the following:
(i) In the event of a sale of St. Joe's Shares other than to a Permitted
Transferee, (a) if Weeks or Codina purchases such Shares, the seats on the
Board previously held by the St. Xxx Representatives shall be redesignated
seats to be held by individuals nominated in writing by the Shareholder
purchasing such Shares, (b) if Weeks and Codina purchase such Shares, one
seat on the Board previously held by a St. Xxx Representative shall be
redesignated to be held by an individual nominated in writing by Weeks and
one seat on the Board previously held by a St. Xxx Representative shall be
redesignated to be held by an individual nominated in writing by Codina and
(c) if neither Weeks nor Codina purchases such Shares, the seats on the
Board previously held by the St. Xxx Representatives shall be redesignated
seats to be held by individuals nominated in writing by the Person
purchasing such Shares.
(ii) In the event of a sale of Weeks' Shares other than to a Permitted
Transferee, (a) if St. Xxx or Codina purchases such Shares, the seats on
the Board previously held by the Weeks Representatives shall be
redesignated seats to be held by individuals nominated in writing by the
Shareholder purchasing such Shares, (b) if St. Xxx and Xxxxxx purchase such
Shares, one seat on the Board previously held by a Weeks Representative
shall be redesignated to be held by an individual nominated in writing by
St. Xxx and one seat on the Board previously held by a Weeks Representative
shall be redesignated to be held by an individual nominated in writing by
Codina and (c) if neither St. Xxx nor Xxxxxx purchases such Shares, the
seats on the Board previously held by the Weeks Representatives shall be
redesignated seats to be held by individuals nominated in writing by the
Person purchasing such Shares.
12
(iii) In the event of a sale of Codina's Shares other than to a Permitted
Transferee, (a) if St. Xxx or Weeks purchases such Shares, the seats on
the Board previously held by the Codina Representatives shall be
redesignated seats to be held by individuals nominated in writing by the
Shareholder purchasing such Shares, (b) if St. Xxx and Weeks purchase such
Shares, one seat on the Board previously held by a Codina Representative
shall be redesignated to be held by an individual nominated in writing by
St. Xxx and one seat on the Board previously held by a Codina
Representative shall be redesignated to be held by an individual nominated
in writing by Weeks and (c) if neither St. Xxx nor Weeks purchases such
Shares, the seats on the Board previously held by the Codina
Representatives shall be redesignated seats to be held by individuals
nominated in writing by the Person purchasing such Shares.
(c) Notwithstanding anything contained herein to the contrary, the Shareholders
covenant and agree that in the event the size of the Board increases or
decreases, the allocation of seats on the Board to each of the Shareholders
shall be equitably adjusted.
(d) The nomination of a nominee to the Board must be made by the Shareholder
entitled to make the nomination hereunder, a copy of which must be
delivered to the Corporation and the other Shareholders not fewer than 5
days prior to any meeting or taking of action by Shareholders for the
purpose of electing any members to the Board. In the absence of such a
nomination, each St. Xxx Representative, Weeks Representative and Codina
Representative, as the case may be, then serving on the Board shall be
deemed to be renominated, except to the extent inconsistent with this
Section 3.
(e) No Shareholder shall vote to remove a member of the Board except (i) on
account of such member of the Board's bad faith or willful misconduct or
(ii) upon the request of the Shareholder originally nominating such member
of the Board. In the event that any member of the Board is removed (a
"Removed Director"), each Shareholder shall vote, whether in person or by
proxy, to cause to be voted all of its Shares, and otherwise use its
reasonable best efforts, so that the vacancy created thereby is filled by a
nominee of the Shareholder that originally nominated the Removed Director;
provided that such Shareholder shall not nominate any Removed Director and
that no Shareholder shall nominate any Removed Director removed pursuant to
Section 3.1(e)(i).
(f) In the event that any member of the Board dies or resigns, each Shareholder
shall take all such action and shall vote, whether in person or by proxy,
or cause to be voted all Shares owned by it and otherwise use its
reasonable best efforts, so that the vacancy created thereby is filled by a
nominee of the Shareholder that originally designated such member of the
Board.
(g) Each Shareholder shall have the right to have a proportionate
representation on any committee or subcommittee created by the Board as
such Shareholder has on the Board.
(h) Each Shareholder shall take such actions or cause the Corporation to take
such actions and otherwise use its reasonable best efforts to enable any
Shareholder to exercise the rights provided in this Section 3.1, including,
without limitation, the calling of a special meeting of the Shareholders.
13
3.2 Management of the Corporation. Except as provided in Section 3.4 and
-----------------------------
otherwise delegated to the officers of the Corporation, the business and affairs
of the Corporation shall be managed by or under the direction of the Board.
Except for the following acts which shall require the unanimous vote of the
members of the Board, all decisions of the Board shall be made by majority vote
of the members of the entire Board:
(a) the merger, consolidation, liquidation or dissolution of the Corporation;
(b) the sale of all or substantially all of the assets of the Corporation;
(c) the issuance of additional Shares or other securities other than pursuant
to options granted to employees;
(d) the amendment of the Corporation's Articles of Incorporation and Bylaws;
(e) the entering into of contractual arrangements with any Shareholder or
Affiliate of any Shareholder at less than market rates, as reasonably
determined by a majority of the disinterested members of the Board;
provided that if approval of such contractual agreement is not required
hereunder, the terms of any such contractual agreements with a Shareholder
or an Affiliate of a Shareholder shall be disclosed to the Board;
(f) the entering into of any agreement which will require the Corporation to
impose material restrictions on the manner in which it conducts its
business;
(g) the removal or replacement of Senior Management, provided that the Codina
Representatives will recuse themselves from voting on such issue;
(h) other than the Tradeport Project, the Coral Gables Office Project or the
Brickell Avenue Office Building Project, the undertaking by the
Corporation of a major project for any Shareholder or any Affiliates of a
Shareholder which would absorb a disproportionate amount of the time of
the Senior Management of the Corporation;
(i) for the calendar year 1998 the ratification of, and for the calendar year
1999 only, the approval of, the Annual Business Plan;
(j) material acquisitions; and
(k) the determination to proceed with a public offering.
3.3 Annual Business Plans. At least 30 days prior to the commencement of
---------------------
each calendar year after the date hereof, the President of the Corporation shall
cause to be prepared and submitted to the Board for its consideration and
approval, a business plan (the "Annual Business Plan") for the operation of the
business of the Corporation during the ensuing calendar year, in the form
established by the Board from time to time, setting forth on a pro-forma basis
the estimated receipts and expenditures (capital, operating and other) and an
income statement for the ensuing calendar year, as well as any other matter
relating to the business of the Corporation which the Board may require. The
President has caused to be prepared the Annual Business Plan for the 1998
14
calendar year. The Officers of the Corporation are authorized to use their best
efforts to implement the 1998 Annual Business Plan and each subsequently
approved Annual Business Plan in accordance with the terms thereof and the terms
hereof.
3.4 Officers. The Officers shall implement the Annual Business Plan, manage
--------
the day-to-day business of the Corporation and perform such other duties as may
be specified by resolution of the Board that are not inconsistent with the By-
laws of the Corporation and the corporate law of Florida. In addition, the
Officers shall perform such ministerial duties (e.g., signing annual reports and
----
stock certificates and filing tax returns) appropriately performed by an Officer
and such other duties as may be required by law to be performed by an Officer.
3.5 Tax Matters.
-----------
(a) The federal, state and, if applicable, local tax returns of the Corporation
shall be prepared by the Accountant. The Accountant shall provide the
Board with copies of all proposed tax returns at least 30 days prior to the
filing due date (inclusive of extensions) of any such return for the
Board's review and approval. The Corporation shall not file any tax
return, make any material tax election or take any material tax position
without obtaining the approval of the Board. In the event that the Board
cannot agree upon a tax matter, the Board shall submit such tax matter to a
nationally recognized certified public accounting firm which is considered
a member of the "Big Six" accounting firms or one of its successors (the
"Tax Resolution Accountant") selected by the Board which shall resolve the
dispute in such a manner as is in the best interests of the Corporation and
the Shareholders, taken as a whole and taking into consideration the
particular tax attributes and characteristics of each Shareholder. The Tax
Resolution Accountant's decision shall be final and binding on the
Corporation and all of the Shareholders and the Corporation and the
Shareholders covenant and agree not to take any tax position inconsistent
with the decision of the Tax Resolution Accountant.
(b) The provisions of this Section 3.5 shall survive the termination of this
Agreement or the dissolution of the Corporation with respect to any matters
relating to events occurring prior to the termination of this Agreement or
the dissolution of the Corporation and shall remain binding on the
Corporation and the Shareholders for the period of time necessary to
resolve with the Internal Revenue Service, the Department of Treasury
and/or the applicable State Department of Revenue any and all matters
regarding the taxation of the Corporation and each of the Shareholders.
3.6 Covenants. Each Shareholder covenants that it will cause its
---------
Representatives to vote to: (i) adopt and maintain the calendar year as the
Corporation's fiscal year and (ii) make distributions of the Corporation's
earnings for each fiscal year, to the extent not previously distributed and
after the retention of appropriate reserves as agreed to by the Board, to be
distributed within 60 days after the end of each fiscal year.
3.7 Accounting Treatment. The parties hereby acknowledge and agree that for
--------------------
book and tax accounting purposes the Shareholders shall be entitled to share
equally in any distributions resulting from the Corporations results of
operations for the period beginning January 1, 1998.
15
Section 4. Structural Organization of the Corporation.
-------------------------------------------
4.1 Divisions of the Corporation. At such time as the Shareholders mutually
----------------------------
agree and as the activity levels of the Corporation allow, to the extent
possible, the Corporation shall be divided into three or more divisions,
including, without limitation, (i) a division (the "St. Xxx Division") devoted
to the extent reasonably practical to the provision of property management,
development and asset management services for assets owned by St. Xxx, its
Affiliates and the St. Xxx Partnerships, (ii) a division (the "Weeks Division")
devoted to the extent reasonably practical to the provision of property
management, development and asset management services for assets owned by Weeks,
its Affiliates and the Weeks Partnerships and (iii) a division (the "Management
Division") devoted to the extent reasonably practical to the provision of
various services to the St. Xxx Division, the Weeks Division and to various
third parties.
4.2 Assignment of Personnel to Divisions. To the extent reasonably
------------------------------------
practical, each of the St. Xxx Division, the Weeks Division, the Management
Division and any other division established pursuant to the mutual agreement of
the Shareholders, shall have senior line management, including, without
limitation, account principals and operational personnel, assigned to it on a
full time basis; provided however, in no event shall Xxxxx Xxxxxxx or Xxxxxxx
----------------
Codina, or either of their replacements, be an account principal allocated to
any such division; and provided further, each member of Senior Management and
----------------
their respective replacements shall be assigned as account principals to the
Management Division and shall provide services to both the St. Xxx Division and
the Weeks Division.
4.3 Allocation of Salaries. The Corporation shall allocate the salaries of
----------------------
operational personnel and senior line management to the division to which each
such employee is assigned, or in the event that any such employee is assigned to
more than one division, among such divisions based on the time expended on the
matters in each such division. The Corporation shall allocate the salaries of
employees providing general and administrative services, including Codina and
Senior Management, if applicable, among the divisions in an equitable manner to
be agreed upon by the Shareholders.
Section 5. Covenants Regarding the Shareholders' and Corporation's Activities.
------------------------------------------------------------------
5.1 Restrictions on Weeks' and Weeks' Affiliates' Activities. Except as set
--------------------------------------------------------
forth in Sections 5.3, 5.4 and 5.5, until such time as the earlier of (i) either
St. Xxx or Weeks exercises its Put Option and for a period of two years
thereafter or (ii) either St. Joe's or Weeks' interest in the Corporation is
acquired pursuant to the St. Xxx Call Option, the Weeks Call Option or the
Default Call, (a) Weeks and its Affiliates will restrict their respective real
estate development and ownership activities in South Florida to the following
product types: bulk industrial, office warehouse or business distribution, flex
or service, medical offices comprised of eight or less stories, and suburban
offices comprised of eight or less stories and (b) Weeks will not develop real
estate in its permitted product types within the Excluded Areas.
16
5.2 Restrictions on St. Joe's and St. Joe's Affiliates' Activities.
--------------------------------------------------------------
(a) Except as set forth in this Section and Sections 5.3, 5.4 and 5.5, until
such time as the earlier of (i) either St. Xxx or Weeks exercises its Put
Option and for a period of two years thereafter or (ii) either St. Joe's or
Weeks' interest in the Corporation is acquired pursuant to the Weeks Call
Option, the St. Xxx Call Option or the Default Call, St. Xxx and its
Affiliates will restrict their real estate development and ownership
activities in South Florida to any of the following: (A) their existing
properties, (B) all development by FECI which directly relates to FECI's
railroad operations, (C) the following product types: retail,
entertainment, hotel, resort and residential and (D) any activities
described in item 2 of Schedule 5.2(b).
(b) Notwithstanding anything contained herein to the contrary, (i) in the event
that St. Xxx, as a result of its relationship with a tenant outside of
South Florida, has an exclusive commitment to develop a build-to-suit
project for such tenant in South Florida on property not owned by St. Xxx
or one of its Affiliates as of the date of this Agreement and St. Xxx has
unsuccessfully negotiated in good faith with a Weeks Partnership or Weeks
to invest in the development and ownership of such project, St. Xxx xxx
proceed with the development and ownership of such project; and (ii) St.
Xxx and its Affiliates shall be entitled to engage in commercial and
industrial development activities to the extent that such commercial and/or
industrial development activities are: (A) ancillary to residential
development activities in South Florida or (B) covered by the contracts or
obligations described in item 2 of Schedule 5.2(b); provided that, a Weeks
--------------
Partnership or Weeks is first offered the opportunity to invest in such
commercial and/or industrial development activities on the same terms and
conditions as St. Xxx or its Affiliate, as the case may be; provided
--------
further that, St. Xxx shall not be obligated to offer such opportunity to a
------------
Weeks Partnership or Weeks (A) to the extent prohibited by the restrictions
or contractual obligations applicable to St. Xxx or its Affiliates as of
the date of this Agreement as described in Schedule 5.2(b), it being
understood that St. Xxx would be obligated under this Section 5.2(b)(ii) to
offer to a Weeks partnership or Weeks any portion of such opportunity not
covered by any such contractual obligation, and/or (B) with respect to a
commercial or industrial building that is less than 30,000 square feet.
5.3 Obligation to Negotiate, Except as set forth in Sections 5.4 and 5.5, in
-----------------------
the event that either St. Xxx or Weeks desire to develop and/or own an urban
office high rise building in excess of eight stories, St. Xxx or Weeks, as the
case may be, shall negotiate in good faith with the other party for the
participation of the other party in such project in South Florida. If after
such good faith negotiations the parties are unable to reach agreement upon such
participation, the originating party may proceed with the development and
ownership of such project subject to the provisions of Section 5.6.
5.4 Multi-Asset Portfolio Acquisition. Notwithstanding anything contained
---------------------------------
herein to the contrary, neither St. Xxx nor Weeks shall be in breach of Sections
5.1, 5.2 or 5.3, as the case may be, as a result of a multi-asset portfolio
acquisition by it or any of its Affiliates in which in excess of 75% of (A) the
total developed square footage of the developed commercial and industrial assets
or (B) the total value of the portfolio acquired in such acquisition, are
located outside of South Florida; provided that the party otherwise in breach
-------------
negotiates in good faith to conform its and/or its Affiliates activities to be
in compliance with Section 5.1, 5.2 or 5.3, as the case may be, including,
without limitation, (i) the orderly sale of some or all of the commercial and
industrial assets which violate Section 5.1, 5.2 or 5.3, as the case may be,
17
and/or (ii) (a) in the event that St. Xxx is the otherwise breaching party,
offering to Weeks and (b) in the event that Weeks is the otherwise breaching
party, offering to St. Xxx, the opportunity to invest in some or all of the
commercial and industrial assets which violate such Sections. In the event St.
Xxx and Weeks are unable to agree as to the corrective action required to bring
the otherwise breaching party into conformity with the provision of this Section
5, such matter shall be referred to binding arbitration in accordance with
Section 12.
5.5 De Minimis and Passive Investments. Notwithstanding anything contained
----------------------------------
herein to the contrary, neither St. Xxx nor Weeks shall be in breach of Sections
5.1, 5.2 or 5.3, as the case may be, as the result of the ownership of less than
a ten percent (10%) interest in an entity which owns an asset or assets in a
precluded category provided that such ownership interest is passive in nature.
5.6 Real Estate Activities of St. Xxx, Weeks and Their Respective Affiliates.
------------------------------------------------------------------------
(a) Except as otherwise set forth in Section 5.9, each of St. Xxx (with respect
to St. Xxx specifically, including the Gran Entity entering into a
management and leasing agreement with respect to the Gran Property) and
Weeks hereby covenant and agree to contract with the Corporation
exclusively for all of its and its Affiliates real estate development,
construction, property management and leasing activities for real estate
projects located in South Florida; provided however, St. Xxx and its
----------------
Affiliates shall not be obligated to contract with the Corporation for the
provision of services related to St. Joe's and its Affiliates' railroad,
residential, entertainment, retail, hotel, resort activities and commercial
and/or industrial activities to the extent that such commercial and/or
industrial activities are: (A) ancillary to residential development
activities in South Florida and constitute Future Developments as such term
is defined in item 1 of Schedule 5.2(b) or (B) projects which are required
to be developed by the CNL Partnership (as such term is defined in item of
2 of Schedule 5.2(b)). With respect to any activity described in clauses
(A) and (B) of the preceding sentence, St. Xxx covenants to use its
reasonable best efforts to cause the Corporation's construction, leasing,
development, consulting and management services to be utilized to the
extent reasonably possible and not inconsistent with the contractual
relationships described on Schedule 5.2(b). All such services shall be
rendered by the Corporation at prevailing market rates, from time to time.
(b) Each of St. Xxx and Weeks covenant and agree that in the event that it or
its Affiliates desires to contract with the Corporation for the provision
of services outside of South Florida, (i) such contract shall be at market
rates and (ii) if the service desired is development service, and if the
development activity to which the provision of such service relates is
deemed competitive, e.g. such development projects could reasonably be
deemed to compete for tenants, with the other party's (i.e., Weeks or St.
Xxx, as the case may be) existing or planned future activity as determined
in such other party's sole discretion, it shall not contract with the
Corporation without obtaining the prior written consent of the other party.
18
5.7 Real Estate Activities of Codina and his Affiliates.
---------------------------------------------------
(a) During the period of time that Codina is a Shareholder and for either (i) a
one year period thereafter if Codina ceases to be a Shareholder for any
reason other than pursuant to a transfer by him under Section 9 or as a
result of the Corporation Call Option, (ii) a three year period thereafter
if Codina ceases to be a Shareholder pursuant to a transfer by him under
Section 9 or (iii) a two year period thereafter if Codina ceases to be a
Shareholder as a result of the Corporation Call Option, except for Codina
Owned Real Estate, residential development activities, the Coral Gables
Office Building Project, the Brickell Avenue Office Building Project and
the Tradeport Project, Codina and his Affiliates, if the Corporation
desires, (i) will contract with the Corporation for provision of property
development, leasing, management and construction services relating to his
or its residential development activities in South Florida, to the extent
applicable and if, and only if, the Corporation has expertise at such time
in providing the services to be provided and is currently providing such
services to other parties and (ii) will conduct all of his or its other
real estate development, construction, consulting, service and ownership
activities in South Florida through the Corporation, a St. Xxx Partnership
or a Codina Weeks Partnership; provided however, that the foregoing shall
----------------
not apply to Codina's ownership of less than a 10% interest in a publicly
traded company engaged in the real estate business provided that such
ownership interest is passive in nature; and provided, further, that the
-------- -------
one and three year periods, as applicable, provided for above shall not
apply if Codina's employment has been terminated by the Corporation other
than for Corporation Cause or by Codina for Codina Cause.
(b) If Weeks acquires Codina's Shares within four years from the date hereof,
the restrictions set forth in Section 5.7(a)(i), if applicable, shall apply
for the period Codina is a Shareholder of Codina Group or a member of Weeks
Corporation's Board of Directors, and a period of eighteen months
thereafter.
(c) During the time that Codina is a Shareholder and for any applicable non-
competition period thereafter, Codina covenants and agrees not to operate
any separate real estate business under his name or any other name other
than real estate activities that he is entitled to engage in pursuant to
the terms of this Agreement.
(d) Notwithstanding anything contained herein to the contrary, subject to
Section 6.1(a), Codina may engage or invest in any other non-real estate
business or investment activity.
(e) If Codina or one of his Affiliates develops the Coral Gables Office
Building Project, Codina will cause Codina Group to be retained to provide
the development services for the Coral Gables Building Project at market
rates and subject to partner limitations will cause Codina Group to be
retained to provide property management and leasing services for such
project.
5.8 Brickell Avenue Office Building Project. Codina shall provide each of
---------------------------------------
St. Xxx and Weeks with written notice containing the terms and conditions upon
which each of them shall have a right to participate (on an equal basis with
each other) in the development and ownership of the Brickell Avenue Office
Building Project, including all information concerning the project which is
19
available to Codina at such time, and St. Xxx and/or Weeks shall be entitled to
participate in such project upon notifying Codina of its intent to participate
within 30 days of Codina providing written notice as herein provided. In the
event that either St. Xxx or Weeks does not elect to participate on the offered
terms within such 30 days period, the other party may participate with Codina in
such project. In the event that neither St. Xxx nor Weeks elects to
participate on the offered terms within the 30-day period, Codina shall be
entitled to develop and own the project without the participation of either of
St. Xxx or Weeks. In the event that any third party participates with him in
the development and/or ownership of such project, such third party may not
participate on terms and conditions more favorable than those offered to St. Xxx
and Weeks. Codina covenants and agrees to contract with the Corporation for the
provision of development services related to the Brickell Avenue Office Building
Project and shall use his best efforts to contract with the Corporation for the
provision of management and leasing services related to the Brickell Avenue
Office Building Project.
5.9 Limitation on Requirement to Contract with the Corporation.
----------------------------------------------------------
Notwithstanding anything contained herein to the contrary, from and after the
time that (i) except for Codina's obligations pursuant to Section 5.7, any
Shareholder ceases to be a Shareholder for whatever reason, such Shareholder and
its Affiliates shall no longer be required to utilize the Corporation for its
real estate development, leasing, management, construction, consulting or any
other real estate services in South Florida, and (ii) any Shareholder or its
Affiliates ceases to own a particular parcel of real property in South Florida,
such Shareholder or its Affiliate shall no longer be required to utilize the
Corporation for its real estate development, leasing, management, construction,
consulting or any other real estate services with respect to such property.
5.10 Notice to Directors of Shareholder's Real Estate Activities. Each of
-----------------------------------------------------------
the Shareholders covenants and agrees, to the extent not prohibited by an
applicable legal or other required confidentiality restrictions (which
restrictions each Shareholder will attempt to minimize in good faith) to timely
advise the Board of its planned real estate activities in South Florida for
which such Shareholder is obligated to utilize the Corporation's services to
assist the Corporation in allocating its resources and developing its business
plans.
5.11 Solicitation of Employees. If (i) either St. Xxx or Weeks exercises the
-------------------------
Put Option or the Default Call, (ii) Weeks exercises the Weeks Call Option or
(iii) St. Xxx exercises the St. Xxx Call Option, none of St. Xxx, its
Affiliates, Weeks, its Affiliates and the Corporation may solicit for employment
any of the employees of the others for a period of three years after the Closing
of the sale of Shares pursuant to the exercise of such put or call option;
provided however, (a) the party exercising the Put Option may employ the
----------------
personnel of the division transferred to it as the result of such exercise and
the employees of such division shall be deemed to be its employees for purposes
of this Section and (b) any selling party may negotiate with and employ Ford
Xxxxxx. In the event that a division is transferred to a Shareholder pursuant
to the exercise of a Put Option, each other party hereto agrees not to solicit
for employment any of the employees of such division for a period of two years
after the Closing of such Put Option.
5.12 St. Xxx Covenant. St. Xxx hereby covenants and agrees to use its
----------------
reasonable best efforts to cause FECI and the Gran Entity to comply with the
provisions of this Section 5 as if it were an Affiliate of St. Xxx for purposes
of this Agreement.
5.13 Restriction on Corporation's Activities. Each of Weeks and St. Xxx
---------------------------------------
20
acknowledges that Codina has entered into certain agreements more particularly
described on Schedule 5.13 (true and correct copies of which have been delivered
to Weeks and St. Xxx) which will be violated if the Corporation engages in
certain activities. Each of Codina, St. Xxx and Weeks agree to cause the
Corporation not to engage in any activity which would cause Codina to violate
such obligations until (i) Codina consents in writing, (ii) the Corporation
obtains an unqualified legal opinion from counsel satisfactory to Codina that a
restriction has lapsed or that a particular activity will not violate such
restriction, or (iii) such restriction has expired by its express terms.
Section 6. Codina.
------
6.1 Devotion of Time; Compensation; Incentive Compensation;
-------------------------------------------------------
Modification of Compensation.
----------------------------
(a) Devotion of Time. Codina covenants and agrees that during the period of
----------------
time he is a Shareholder, he will devote such reasonable time as is
necessary for the operation of the Corporation consistent with his duties
as the President and Chief Executive Officer of the Corporation and his
past practices; provided however, each of St. Xxx and Weeks acknowledge
----------------
and agree that Codina shall not be required to devote his full time to the
Corporation and that he will be permitted to continue (i) his involvement
in existing and future civic activities, non-real estate related business
activities and the real estate activities provided in Section 5.7 outside
of the Corporation and/or a Codina Weeks Partnership and (ii) to serve as a
member of the boards of directors of the corporations on which he currently
serves and on additional boards of directors from time to time, in each
case for as long as such activities do not unreasonably interfere with the
operations of the Corporation.
(b) The Board shall elect Codina as the President and Chief Executive Officer
of the Corporation. Codina shall serve in such capacities until the
Corporation or Codina terminates such relationship upon 60 days prior
written notice unless he is terminated for Corporation Cause.
(c) Base Compensation. During the period of time that Codina is employed by
-----------------
the Corporation, Codina shall receive an annual base salary in an amount
equal to $250,000.00, increased each year by the Consumer Price Index
increase, if any from the immediately preceding year. The base salary will
be paid in periodic payments consistent with the Corporation's payroll
practices from time to time. Codina shall be reimbursed for all reasonable
expenses incurred by him in the performance of his duties to the
Corporation and accounted for in accordance with the Corporation's expense
guidelines and reimbursement procedures and practices in effect from time
to time, including, without limitation, travel, hotel and entertainment.
(d) Incentive Compensation. During any calendar year during the term of his
----------------------
employment by the Corporation, the Corporation shall pay, and Codina shall
receive, incentive compensation for each year (or a pro rata portion
thereof if Codina's employment by the Corporation is terminated prior to
the end of a calendar year for any reason other than (A) Corporation Cause
or (B) his resignation for other than Codina Cause) equal to the sum of (i)
10 percent of the amount, if any, by which the EBITDA for such year exceeds
an amount equal to 110 percent of the greater of (x) the EBITDA for the
21
immediately preceding year or (y) $4,200,000.00/1/, (ii) 3 percent of the
amount, if any, by which the EBITDA for such year exceeds the greater of
(x) an amount equal to 115 percent of EBITDA for the immediately preceding
year and (y) $4,200,000.00, and (iii) 5 percent of the amount, if any, by
which the EBITDA for such year exceeds the greater of (x) an amount equal
to 125 percent of EBITDA for the immediately preceding year and (y)
$4,200,000.00. If Codina's employment by the Corporation is terminated
prior to the end of a calendar year for any reason other than (A)
Corporation Cause or (B) his resignation for other than Codina Cause,
Codina's incentive compensation, if any, shall be computed on a partial
year basis calculated on the Corporation's EBITDA through the date of
termination and adjusting the $4,200,000 and the prior year's EBITDA
thresholds based on the portion of the year elapsed. For purposes of this
Section 6.1(d), EBITDA shall be calculated prior to any reduction for
incentive compensation payable to Codina.
(e) Modification of Base Compensation or Incentive Compensation. Neither the
-----------------------------------------------------------
amount of base salary to which Codina is entitled pursuant to Section
6.1(c) hereof nor the formula for computing the amount of incentive
compensation to which Codina is entitled pursuant to Section 6.1(d) hereof
may be reduced or otherwise changed without the approval of Codina;
provided however, the formula for the computation of the amount of
----------------
incentive compensation to which Codina is entitled may be changed by the
Compensation Committee of the Board if such change does not materially
reduce the amount of incentive compensation to which Codina would have been
entitled to prior to such change when both the old and new formulae are
applied to the actual financial results.
(f) Benefits. Codina shall be entitled to participate in such medical, dental,
--------
disability, hospitalization, life insurance, profit sharing and other
benefit plans which are maintained for the benefit of executive officers of
the Corporation on the terms and subject to the conditions set forth in
such plans.
6.2 Non-exclusive License. Codina and the Corporation shall enter into the
---------------------
License Agreement.
Section 7. Executive Compensation and Stock Option Plan.
--------------------------------------------
7.1 Executive Compensation. Commencing on the date of this Agreement and
----------------------
continuing for the period of time three years thereafter, the Corporation
covenants and agrees to retain the base salaries (as reflected in each
individual's Employment Agreement) and the same or similar incentive
compensation structure (as reflected in each individual's Employment Agreement)
which is in effect as of the date of this Agreement for Xxxxx Xxxxxxx, Xxxx
Xxxxx, Ford Xxxxxx, Xxxx Xxxxx, Xxxxxx Xxxxx and Xxxxxxx Xxxxxx (collectively
"Senior Management").
-----------
/1/ If the EBITDA used in the Stock Purchase Agreement for determining the
purchase price thereunder is (i) less than $4,000,000 or between $4,400,000 and
$4,600,000 then such EBITDA amount shall be substituted for the $4,200,000
amount each place that it appears in Section 6.1(d), or (ii) greater than
$4,600,000 then $4,600,000 shall be substituted for $4,200,000 each place that
it appears in Section 6.1(d).
22
7.2 Stock Option Plan.
-----------------
The Corporation will adopt the Stock Option Plan. The exercise price of the
initial options granted under the plan will be the value per share paid by Weeks
and St. Xxx in their acquisition of Shares. Subject to the approval of the
Board, the Shareholders and the Corporation agree that (i) up to 30% of the
options initially available to be granted under the Stock Option Plan will be
retained for future grants and (ii) it is not currently envisioned that options
will be granted to Codina but that the Board in its sole discretion may
entertain such grants in the future.
Section 8. Put and Call Options.
--------------------
8.1 Put Option.
----------
(a) At any time commencing three years after the date of this Agreement, either
St. Xxx or Weeks, but not both (the first of such Shareholders to initiate
the provisions of this Section 8.1(a), the "Selling Shareholder"; and the
other of such Shareholders, the "Purchasing Shareholder"), shall have the
right (such right, the "Put Option"), upon providing 45 days prior written
notice to the Corporation and other Shareholders, to require, subject to
Sections 8.2 and 8.3 hereof, the Purchasing Shareholder to purchase all of
its Shares for an amount equal to the Purchase Price payable as provided in
Section 8.1(b) and otherwise as provided in this Section 8.
(b) In the event the Selling Shareholder exercises its Put Option, the Purchase
Price shall be paid to the Selling Shareholder by the Purchasing
Shareholder causing the Corporation to distribute, in the event that St.
Xxx is the Selling Shareholder, the St. Xxx Division and, in the event that
Weeks is the Selling Shareholder, the Weeks Division (such distributed
division, the "Distributed Division"), to the Selling Shareholder. In the
event that the Purchase Price exceeds the Distributed Division Value, the
Purchasing Shareholder shall pay in cash to the Selling Shareholder at the
Closing an amount equal to the amount by which the Purchase Price exceeds
the Distributed Division Value. In the event that the Distributed
Division Value exceeds the Purchase Price, the Selling Shareholder shall
pay in cash at the Closing to the Purchasing Shareholder, an amount equal
to the amount by which Distributed Division Value exceeds the Purchase
Price. The Purchasing Shareholder shall pay in cash at the Closing to the
Corporation an amount equal to the Distributed Division Value of the
division distributed to the Selling Shareholder. All Shareholders covenant
and agree that they will take and will cause to be taken at all times all
necessary action, including without limitation, the voting of Shares to
distribute a division to effectuate the provisions of this Section 8.1(b).
(c) Notwithstanding the foregoing, if both Weeks and St. Xxx exercise the Put
Option within 60 days after the third anniversary of this Agreement, both
such exercises of the Put Option shall be void ab initio and neither Weeks
---------
nor St. Xxx xxx exercise the Put Option (i) for a period of 30 days after
the last of the foregoing exercises or (ii) if either Weeks or St. Xxx
initiates the buy-sell procedure set forth in Section 8.10, at any time
thereafter.
8.2 Codina Option to Purchase One-half of Selling Shareholder's Shares. If
------------------------------------------------------------------
either St. Xxx or Weeks exercises its Put Option pursuant to Section 8.1 and
such exercise is not voided as provided in Section 8.1(c), Codina shall have the
23
right, in his sole discretion and upon providing written notice within 15 days
of receipt of the Selling Shareholder's notice of its exercise of the Put Option
to the Corporation and the other Shareholders, to purchase one-half, but not
less than one-half, of the Selling Shareholder's Shares. If Codina elects to
purchase one-half of the Selling Shareholder's Shares, Codina shall become a
Purchasing Shareholder with respect to one-half of the Selling Shareholder's
Shares and shall have all the rights and obligations of a Purchasing Shareholder
of such Shares as provided in this Section 8. The original Purchasing
Shareholder shall continue as a Purchasing Shareholder of one-half of the
Selling Shareholder's Shares and shall have all the rights and obligations as
such are provided in this Section 8.
8.3 Purchasing Shareholder's Option.
-------------------------------
(a) Notwithstanding anything contained herein to the contrary, if either St.
Xxx or Weeks is obligated to purchase Shares pursuant to Section 8.1, the
Purchasing Shareholder shall have the right, in its sole discretion, to
either (i) if Codina so desires, in his sole discretion, allow Codina to
acquire the Shares required to be purchased by it pursuant to Section 8.1,
or (ii) upon obtaining Codina's prior written consent, which consent may be
withheld in his sole discretion, allow another Person to acquire the Shares
required to be purchased by it pursuant to Section 8.1 (such other Person,
the "Designated Purchaser").
(b) If Codina purchases all of the Selling Shareholder's Shares pursuant to
clause (i) of Section 8.3(a), Codina shall become the Purchasing
Shareholder and shall have all of the rights and obligations as such are
provided in this Section 8.
(c) If a Designated Purchaser purchases all of the Selling Shareholder's Shares
pursuant to clause (ii) of Section 8.3(a), the Designated Purchaser shall
become the Purchasing Shareholder and shall have all of the rights and
obligations as such are provided in this Section 8.
8.4 St. Joe's Call Option. At any time within 180 days after St. Xxx has
---------------------
actual knowledge of a Change in Control of Weeks, St. Xxx shall have the right
(the "St. Xxx Call Option") to require, upon providing 45 days prior written
notice (provided that such 45-day prior notice requirement shall not operate to
shorten the 180-day exercise period) to the Corporation and the other
Shareholders, Weeks to sell its Shares to St. Xxx for an amount equal to the
Purchase Price payable as provided in Section 8.1(b), as if St. Xxx is the
Purchasing Shareholder and Weeks is the Selling Shareholder.
8.5 Week's Call Option. At any time (i) within 180 days after Weeks has
------------------
actual knowledge of a Change in Control of St. Xxx, (ii) after eighteen months
after, and prior to twenty-four months after, the date hereof, if (A) St. Xxx
and a Xxxxxx Weeks Partnership have not reached agreement after good faith
negotiations upon the timing and terms of the formation of the partnership which
will develop the Airport Land, or (B) FECI and the Gran Entity have not agreed
in writing to be bound by the terms of this Agreement as if they were Affiliates
of St. Xxx for purposes of this Agreement, or (iii) within 180 days after Weeks
has actual knowledge that FECI has engaged in any activity that would be
prohibited under Section 5 of this Agreement if it were deemed to be an
Affiliate of St. Xxx for purposes of this Agreement, Weeks shall have the right
(the "Weeks Call Option") to require, upon providing 45 days prior written
24
notice (provided that such 45-day prior notice requirement shall not operate to
shorten the 180-day exercise period) to the Corporation and the other
Shareholders, St. Xxx to sell its Shares to Weeks for an amount equal to the
Purchase Price payable as provided in Section 8.1(b), as if Weeks is the
Purchasing Shareholder and St. Xxx is the Selling Shareholder.
8.6 Codina Put Option.
-----------------
(a) The holders of Codina's Shares shall have the right (the "Codina Put
Option"), at any time after the Put Time (except if the Put Time occurs as
a result of Codina's death, within 180 days after the date of Codina's
death), to require, upon providing 45 days prior written notice to the
Corporation and the other Shareholders, the then current Shareholders which
are members of the Weeks Control Group or St. Xxx Control Group to acquire,
in proportion to their relative ownership interests in the Corporation
without considering Codina's Shares and Option Shares, all of Codina's
Shares. At the Closing, each of the then Shareholders which are members of
the Weeks Control Group or St. Xxx Control Group shall pay to the holders
of Codina's Shares in cash or, at the election of the holders of the Codina
Shares, in stock or units of limited partnership interest as provided in
Section 8.6(b), an amount equal to the product of (a) the Purchase Price
and (b) a fraction, the numerator of which is the number of Shares owned by
such Shareholder and the denominator of which is the total number of Shares
owned by members of the Weeks Control Group and St. Xxx Control Group.
(b) If either Weeks or St. Xxx is the sole other Shareholder at the time of the
exercise of the Codina Put Option, at the election of the holders of the
Codina Shares, Weeks or St. Xxx, as the case may be, shall use its
reasonable best efforts to structure the acquisition of Codina's Shares on
a tax efficient basis to the holders of the Codina Shares, through either a
merger or, if Weeks is the only Shareholder, the contribution by the
holders of the Codina Shares to Weeks Realty, L.P. in exchange for common
units of limited partnership interests therein. If Weeks and St. Xxx are
both Shareholders at the time of the exercise of the Codina Put Option, at
the election of the holders of the Codina Shares, Weeks shall use its
reasonable best efforts to structure its portion of the acquisition on a
tax efficient basis to the holders of the Codina Shares through a
contribution by the holders of the Codina Shares to Weeks Realty, L.P. in
exchange for common units of limited partnership interest therein. No
holder of Codina Shares shall be entitled to elect to receive securities of
Weeks Corp. or Weeks Realty, L.P unless at the time of such election such
holder is an "accredited investor" as defined under Rule 501(a) of the
Securities Act of 1933, as amended.
8.7 Default Call. In the event that as a result of a merger, consolidation
------------
or other business combination by either St. Xxx or Weeks, St. Xxx or Weeks is in
default of Section 5.1, 5.2 or 5.3. Weeks or St. Xxx as the nondefaulting
party, as the exclusive remedy for such default, shall have the right (such
right, the "Default Call"), at any time within 180 days after such breach, upon
providing 45 days prior written notice (provided that such 45-day prior notice
requirement shall not operate to shorten the 180-day exercise period) to the
Corporation and the other Shareholders, to acquire the defaulting party's Shares
for an amount equal to the Purchase Price payable as provided in Section 8.1(b)
hereof, as if the defaulting Shareholder is the Selling Shareholder and the
nondefaulting Shareholder is the Purchasing Shareholder.
8.8 Corporation Call. (a) At any time within 70 days after Codina's
----------------
25
employment with the Corporation is terminated by the Corporation for Corporation
Cause, the Corporation shall have the right (the "Corporation Call Option") to
require, upon providing 45 days prior written notice (provided that such 45-day
prior notice requirement shall not operate to shorten the 70-day exercise
period) to Codina, Codina to sell his Shares to the Corporation for an amount
equal to the Purchase Price.
(b) (i) If the Corporation does not exercise the Corporation Call Option in
accordance with Section 8.8(a) above within the 70-day period, then Weeks
and St. Xxx (collectively, the "Offered Shareholders") shall have the
right, within 15 days following the earlier of either (A) the expiration of
the 70-day period or (B) the giving of written notice by the Corporation to
Codina and each Offered Shareholder that it will not exercise the
Corporation Call Option, to elect to purchase their pro rata share of
Codina's Shares at their prorata share of the Purchase Price by giving
written notice to Codina, the Corporation and the other Shareholders within
the 15-day period.
(ii) If any Offered Shareholder does not elect to purchase its pro rata share of
the Codina Shares (the "Remaining Codina Shares") within the 15-day period
specified in Section 8.8(b)(i) above, the Offered Shareholders who have
elected to purchase their pro rata share of the Codina Shares shall have
the right, exercisable for a period of five days after the 15-day period
specified in Section 8.8(b)(i) above, to purchase the Remaining Codina
Shares pro rata or in such other proportion as they may agree. The Offered
Shareholders must purchase in the aggregate all of Codina's Shares, or else
they may not purchase any of Codina's Shares.
(c) At any time within 180 days after the date of Codina's death, the
Corporation shall have the right to require, upon providing 45 days prior
written notice (provided that such 45-day prior notice requirement shall
not operate to shorten the 180-day exercise period) to Codina, Codina to
sell his Shares to the Corporation for an amount equal to the Purchase
Price.
8.9 (a) At any time within 180 days after the first anniversary of Weeks or
an Affiliate of Weeks acquisition of St. Joe's Shares, Weeks shall have the
right ("Weeks Codina Call") to require, upon providing 45 days prior written
notice (provided that such 45-day prior notice requirement shall not operate to
shorten the 180-day exercise period) to Codina, Codina to sell his Shares to
Weeks, for an amount equal to the Purchase Price.
(b) At any time (i) within 180 days after the first anniversary of Weeks
acquisition of St. Joe's Shares or (ii) within 180 days after the
occurrence of the last to occur of (A) Codina is not elected or re-elected
to the Board of Directors of Weeks Corp. (other than as a result of
Codina's refusal to stand for re-election) and (B) Weeks or an Affiliate of
Weeks acquires St. Joe's Shares, Codina shall have the right to require
Weeks to acquire his Shares for an amount equal to the Purchase Price.
(c) The Purchase Price under this Section 8.9 shall be paid in cash or at the
option of Codina Weeks, will use its reasonable best efforts to structure
its acquisition of Codina's Shares such that the Purchase Price can be paid
in a tax efficient manner.
26
8.10 Buy-Sell.
--------
(a) If both Weeks and St. Xxx exercise the Put Option within 60 days after the
third anniversary of this Agreement, at any time within the 30 day period
following the date of the last of such exercises, either Weeks or St. Xxx
shall have the right to purchase from or sell to each of the Shareholders
all, but not less than all, of its Shares in the manner set forth in this
Section 8.10.
(b) Either Weeks or St. Xxx (the "Offeror") may serve upon the other
Shareholder(s) (each an "Offeree") a notice (the "Offering Notice") which
shall contain the following terms:
(i) a statement of intent to rely on this Section 8.10; and
(ii) the price per Share (the "Specified Amount") at which the Offeror is
willing to buy and sell Shares.
(c) Either Weeks or St. Xxx as the Offeree shall have the option to elect to do
one of the following, and such option may be exercised at any time within
25 days after its receipt of the Offering Notice:
(i) to sell all, but not less than all, of its Shares to the Offeror for a per-
Share price equal to the Specified Amount;
(ii) to purchase, subject to Codina's right set forth in Section 8.10(d), all,
but not less than all, of the Shares of the Offeror for a per-Share price
equal to the Specified Amount. If an Offeree does not exercise either of
its options within such 25-day period, then, as of the day following the
expiration of such period, the Offeree shall be conclusively deemed to have
elected to sell its Shares.
(d) Codina shall have the option to purchase one-half of the Shares which are
sold by either the Offeror or Offeree and such option may be exercised at
any time within 10 days after Codina is advised in writing as to the
identity of the buyer and seller.
8.11 Closing.
-------
(a) Closing. Except as otherwise agreed to by all of the purchasing and
-------
selling Shareholders, all sales of a Shareholder's Shares pursuant to the
provisions of Section 8 shall take place at the Closing on the Closing Date
and shall occur in accordance with the following Sections 8.11(b) through
(f).
(b) Closing Date. The closing date ("Closing Date") shall be as applicable (i)
------------
the date 60 days after the providing of written notice by the Shareholder
which initiated the sale of such Shares pursuant to Section 8 or such
earlier date as the buying and selling Shareholders so determine or (ii) 30
days following the date of the exercise of an option or the expiration of
the time period provided for in Section 8.10(c); provided, however, if, in
connection with any such closing, a Notification and Report Form is
required to be filed under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
27
of 1976, the Closing Date shall be deferred until the expiration or early
termination of the notice periods required under such Act.
(c) Place and Time. The Closing shall be held at 1:00 p.m. on the Closing
--------------
Date, at the offices of the Corporation, or at any other time and place as
the parties shall agree.
(d) Payment and Delivery. At the Closing, the Purchase Price shall be paid in
--------------------
accordance with Sections 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 8.9 or
8.10, as the case may be, and the selling Shareholder shall deliver
certificates representing all of the Shares to be sold, duly endorsed, free
and clear of all liens and encumbrances.
(e) Failure to Deliver Certificates. If the Shareholder required to sell Shares
-------------------------------
pursuant hereto does not deliver the certificates at the Closing of a sale
of Shares pursuant to Section 8 hereof, then the Corporation shall cause
its transfer books to reflect that such Shares have been transferred to the
purchasing Shareholder, as of the Closing Date.
(f) Attorney-in-Fact. Each Shareholder hereby appoints the Corporation,
----------------
through its Secretary or such other officer as the Board may designate, as
its attorney-in-fact to execute and deliver all documents needed to convey
the Shares to the purchasing Shareholder, if the Shareholder does not
deliver the Shares at the Closing as required hereby. This power of
attorney is coupled with an interest, does not terminate on the
Shareholder's disability or death, and continues for so long as this
Agreement is in effect.
8.12 Fair and Sufficient Purchase Price. With respect to any sale of Shares
----------------------------------
pursuant to Section 8, the Shareholders acknowledge that the Purchase Price may
not, depending upon the circumstances, reflect the fair market value of such
Shares, but that in any event such price constitutes fair and sufficient
consideration for the Shares as determined through the process of arms-length
negotiations among the parties hereto.
8.13 REIT Qualification. In the event that an amendment to the Internal
------------------
Revenue Code of 1986, as amended (the "Code") subsequent to the date hereof
could, in the reasonable opinion of counsel to Weeks Corp., result in a material
risk that Weeks' compliance with the put/call provisions under this Section 8
would jeopardize Weeks Corp.'s qualification as a real estate investment trust
under Sections 856 through 860 of the Code, the parties shall negotiate in good
faith to modify such provisions in a manner that would, in the reasonable
opinion of counsel to Weeks Corp., eliminate such material risk of
disqualification and would preserve to the greatest extent practicable the
original agreement of the parties under the applicable provisions of this
Section 8; provided that no modification shall terminate the right of the
applicable selling Shareholder to sell its Shares or to require a Shareholder to
sell his or its Shares except as otherwise required under such Section on the
terms set forth therein.
28
Section 9. Transfer of Shares.
------------------
9.1 Restrictions on Transfer. No Shareholder shall, directly or indirectly,
------------------------
Transfer any Shares, and no Shares shall be, directly or indirectly,
Transferred, except for Permitted Transfers and Transfers in compliance with
Section 9.2. Except for Permitted Transfers, and Transfers made in accordance
with Section 9.2, no Shareholder shall, at any time, (i) deposit any Shares
under a voting trust or similar agreement, or otherwise Transfer any shares to
any Person for the purpose of vesting in such Person the right to vote such
Shares; (ii) enter into any agreement providing for the voting of Shares as
directed by any Person, or in a specified manner, or pursuant to a specified
procedure; or (iii) grant any voting proxy or otherwise enter into any agreement
or arrangement, the purpose or effect of which is to vest in any other Person
the voting rights of the Shares from time to time held by such Person. Any such
Transfer not made in compliance with this Section 9 shall be void ab initio and
-- ------
of no effect whatsoever. The provisions of this Section 9.1 shall not be
applicable to sales of Shares in a Qualified Public Offering.
9.2 Right of First Refusal.
----------------------
(a) Except as otherwise provided hereinafter, if any Shareholder (the "Offering
Shareholder") shall desire to sell all but not less than all of his or its
Shares (the "Offered Shares"), the Corporation and the remaining
Shareholders (the "Non-Offering Shareholders") shall have the right of
first refusal to purchase the Offered Shares upon the terms and conditions
hereinafter provided. Prior to any Transfer of Offered Shares, the
Offering Shareholder shall have received a written bona fide offer from a
third party to purchase the Offered Shares stating the number of Shares to
be purchased and the price and terms upon which such Shares are proposed to
be Transferred, and shall have delivered a copy of such written bona fide
offer to the Corporation and each of the Non-Offering Shareholders. The
Corporation shall have the right to elect within 30 days thereafter to
purchase all, but not less than all, of the Offered Shares at the lesser of
the Purchase Price or the same price and upon the same terms and conditions
as those contained in such offer by giving notice to the Offering
Shareholder within the 30-day period. The Offering Shareholder shall not
participate in any way in the making of the decision as to whether the
Corporation shall accept or reject the offer. Any attempted conditional or
partial acceptance of the offer by the Corporation shall constitute a
rejection.
(b) If the Corporation does not accept an offer made in accordance with Section
9.2(a) above within the 30-day period, then the Non-Offering Shareholders
shall have the right, within 5 days following the earlier of either (i) the
expiration of the 30-day period or (ii) the giving of written notice by the
Corporation to the Offering Shareholder and each Non-Offering Shareholder
that it will not purchase the Offered Shares, to elect to purchase their
pro rata share of the Offered Shares at the lesser of the Purchase Price or
the same price and upon the same terms and conditions as those contained in
such offer by giving written notice to the Offering Shareholder and the
Corporation within the five-day period. Any attempted conditional or
partial acceptance of the offer by a Non-Offering Shareholder shall
constitute a rejection.
(c) If any Non-Offering Shareholder does not elect to purchase his or its pro
rata share of the Offered Shares (the "Remaining Offered Shares") within
the 5-day period specified in Section 9.2(b) above, the Non-Offering
Shareholders who have elected to purchase their pro rata share of the
Offered Shares shall have the right, exercisable for a period of five days
after the five-day period specified in Section 9.2(b) above, to purchase
29
the Remaining Offered Shares pro rata or in such other proportion as they
may agree. The Non-Offering Shareholders must purchase in the aggregate
all of the Offered Shares, or else they may not purchase any of the Offered
Shares.
(d) If the Corporation and the Non-Offering Shareholders do not elect to
purchase all of the Offered Shares within the aforesaid periods, or, if
after accepting such offer, the Corporation fails to purchase all of the
Offered Shares in accordance herewith and (i) the Non-Offering Shareholders
do not elect to purchase all of the Offered Shares within the periods
provided herein or (ii) the Non-Offering Shareholders elect to accept such
offer but fail to purchase all of the Offered Shares in accordance
herewith, then, subject to the provisions of Section 9.4, the Offering
Shareholder shall be free to Transfer all of the Offered Shares to the
third party that submitted the written bona fide offer at not less than the
price and on the same terms and conditions set forth in such bona fide
offer within 90 days following, as the case may be, (a) the default by the
Non-Offering Shareholders to make such purchase of the Offered Shares on
the Closing Date, or (b) the earlier of either (A) the expiration of the
period within which the Non-Offering Shareholders may elect to purchase the
Offered Shares or (B) the giving of written notice by the Non-Offering
Shareholders to the Offering Shareholder that they do not elect to purchase
all of the Offered Shares; provided that in no event shall a Shareholder be
-------- ----
permitted to sell its Shares to a Person which is a competitor of the
Corporation or any of its Shareholders, as reasonably determined by the
disinterested members of the Board. Promptly after the execution of any
contract for the Transfer of the Offered Shares, the Offering Shareholder
shall deliver to the Corporation a true and complete copy of such contract
and all amendments thereto, and such other information relating to the
contract and the proposed purchaser as the Corporation may request. Upon
the consummation of the Transfer of the Offered Shares, the Shareholder
shall notify the Corporation thereof and shall certify the price and terms
and conditions upon which such Transfer was made.
(e) If the Offering Shareholder does not Transfer all of the Offered Shares
within the 90-day period specified in Section 9.2(d) above, then the rights
of the Corporation and the other Shareholders under this Section 9.2 shall
be fully restored and reinstated as if such offer had never been made;
provided, however, that the 90-day period shall be extended during any
period in which such sale is not completed as a result of an act of God,
war or other force majeure.
9.3 Default by Corporation. If the Corporation accepts an offer for Shares
----------------------
made in accordance with Section 9, and then, on the Closing Date, the
Corporation defaults (other than a willful default) or is precluded by law from
consummating such purchase at the price or on the terms and conditions
prescribed hereby, the Non-Offering Shareholders shall have the options set
forth in Sections 9.2(b) and 9.2(c), dating from such Closing Date.
9.4 Validity and Effect of Transfer.
-------------------------------
(a) Notwithstanding anything in this Agreement to the contrary, no Transfer of
Shares or rights shall be deemed to be a Permitted Transfer or a
permissible transfer pursuant to Section 9.2 unless the Permitted
Transferee or Section 9.2 transferee agrees in writing for the benefit of
the other Shareholders, as a condition to such Transfer, to be bound by all
of the provisions of this Agreement to the same extent as was the
transferor hereunder; and provided, further, that the provisions hereof
30
shall be self-operative such that any such Permitted Transferees or Section
9.2 transferee shall take all such Shares and rights subject to all the
provisions of this Agreement as if such Shares or rights were still held by
the Shareholder who made the Transfer, whether or not they so agree with
the Shareholder who makes the Transfer or with the other Shareholders.
(b) If any Transfer is made or attempted contrary to the provisions of this
Agreement, such purported Transfer shall be void ab initio; the other
-- ------
Shareholders shall have, in addition to any other legal or equitable
remedies which they may have, the right to enforce the provisions of this
Agreement by actions for specific performance (to the extent permitted by
law). Without limitation to the foregoing, each of the Shareholders
further agrees that the provisions of Section 13.11 shall apply in the
event of any violation or threatened violation of this Agreement.
(c) If a Permitted Transferee is a member of its transferor's Control Group
then the Permitted Transferee or such Control Group, if the Shares of such
Control Group are held by more than one member of such Control Group, shall
have, either individually or collectively, as the case may be, all of the
rights and obligations of Control Group's initial Shareholder under this
Agreement. A transferee under Section 9.2 shall succeed to all of the
rights of its transferor hereunder except if such transferee's transferor
is Codina or a Permitted Transferee of Codina, the Codina Put Option.
9.5 Acknowledgment of Restrictions. Each of the Shareholders acknowledges
------------------------------
and understands that the limitations imposed upon him or it by Sections 8 and 9
with respect to such Shareholder's ownership of Shares significantly limit such
Shareholder's ability to Transfer, and realize any value from, the Shares owned
by the Shareholder.
Section 10. Notations of Restrictions on Certificates. All certificates
-----------------------------------------
evidencing Shares shall bear legends on the face thereof substantially as
follows:
The shares represented by this certificate have not been registered under
the Securities Act of 1933, as amended (the "Act"). Such shares have been
acquired for investment and may not be sold or transferred in the absence
of an effective registration statement for such shares under the Act or an
opinion of counsel for the Corporation that registration is not required
under the Act.
The shares evidenced by this certificate are subject to the restrictions
and options stated in, and are transferable only upon compliance with, the
provisions of the Shareholders' Agreement, dated as of February ___, 1998,
by and among Codina Group, Inc., and its shareholders, as amended from time
to time, a copy of which is on file in the office of the Secretary of the
Corporation, the provisions of which are incorporated herein by reference.
Section 11. Termination of Agreement. This Agreement shall terminate, and
------------------------
the certificates representing the Shares subject to this Agreement shall be
released from the terms of this Agreement, upon the occurrence of any of the
following events:
(a) cessation of the Corporation's business;
31
(b) written agreement of the Shareholders owning all of the Shares;
(c) adjudication of bankruptcy or dissolution of the Corporation or appointment
of a receiver for the Corporation or any substantial part of its assets;
(d) acquisition by one Person of all of the outstanding Shares; or
(e) the sale by the Corporation and/or its Shareholder of stock of the
Corporation in a Qualified Public Offering.
Section 12. Arbitration.
-----------
12.1 Application of Section. Whenever either (a) the Shareholders have a
----------------------
dispute regarding the interpretation of this Agreement or (b) the Shareholders
mutually agree to submit any other question, matter or dispute to arbitration,
the provisions of this Section shall apply.
12.2 Initiating Arbitration, Selection of Arbitrators. Any Shareholder may
------------------------------------------------
submit any question, matter or dispute set forth in Section 12.1 to arbitration
at which time the submitting Shareholder shall provide written notice to each of
the other Shareholders of its intent to initiate the arbitration proceedings set
forth herein. Within thirty (30) days after receipt of a request to arbitrate a
dispute, if there are three Shareholders, each Shareholder shall appoint one
arbitrator. If any Shareholder shall fail to make such appointment within said
30-day period within 15 days after the expiration of the 30-day period, the
other Shareholders shall jointly appoint another arbitrator, or, in the event
that the other Shareholders can not agree upon the appointment of a third
arbitrator, the two appointed arbitrators shall select a third arbitrator within
said 15-day period. If the other Shareholders and/or the two appointed
arbitrators are unable to agree within fifteen (15) days, then any Shareholder
may, upon at least five days' prior written notice to the other Shareholders,
request the Presiding Judge of the Circuit Court of the Eleventh Judicial
Circuit, in and for Miami-Dade County, Florida, ("Judge") acting in his or her
private and nonjudicial capacity, to choose an arbitrator to fill the vacancy.
The Judge may thereupon appoint an arbitrator to complete the panel of three
arbitrators. If there are only two Shareholders, each Shareholder shall appoint
one arbitrator within thirty (30) days after a receipt of a request to arbitrate
a dispute. If a Shareholder shall fail to make such appointment within said 30-
day period, the other Shareholder shall appoint the second arbitrator. The two
appointed arbitrators shall select a third arbitrator. If the two arbitrators
are unable to agree within fifteen (15) days, then any Shareholder may request
the Judge to choose an arbitrator to fill the vacancy.
All arbitrators shall be impartial and unrelated, directly or indirectly, so
far as employment of services is concerned to any of the Shareholders or to any
Affiliate or to any person directly or indirectly related to any Affiliate or to
any person directly or indirectly related to the Shareholders. In an
arbitration proceeding involving the management and operation of the
Corporation, the arbitrators shall have substantial knowledge and experience in
the management and operation of similar companies. In any arbitration
proceedings involving any other specialized area of knowledge or competence, the
arbitrators shall have substantial knowledge and experience in such specialized
area as, for example, in any dispute involving accounting procedures the
arbitrators shall be independent certified public accountants. The arbitration
proceeding shall otherwise be governed by the rules of the American Arbitration
32
Association then in force.
12.3 Procedures: Limitations on Authority. The three arbitrators shall
------------------------------------
investigate the facts and shall hold hearings at which the Shareholders may
present evidence and arguments, be represented by counsel and conduct cross
examination. The three arbitrators shall render a written decision upon the
matter presented to them by a majority vote within ninety (90) days after the
date upon which the last arbitrator is appointed, and that decision shall be
final and binding on the Shareholders, subject to the provisions of Section 12.4
hereof. Judgment upon the decision rendered in such arbitration may be entered
by any court having jurisdiction thereof. No Shareholder shall be considered in
default hereunder during the pendency of arbitration proceedings relating to a
disputed default. If the three arbitrators shall fail to render a decision
within said 90-day period, any Shareholder may initiate a second arbitration
proceeding as provided in Section 12.1 and if the second set of arbitrators
shall fail to render a decision within said 90-day period the Shareholder shall
have the right to institute such action or proceeding in such court as shall be
appropriate in the circumstances. Upon the institution of such action, the
arbitration proceeding shall be terminated and shall be of no further force and
effect. The arbitrators shall determine in what proportion the Shareholders
shall bear the fees and expenses of the arbitrator appointed by or on behalf of
it and each Shareholder shall bear the fees and expenses of its own counsel and
other consultants. In determining any question, matter or dispute before them,
the arbitrators shall apply the provisions of this Agreement, without varying
therefrom in any respect. They shall not have the power to add to, modify or
change any of the provisions of this Agreement.
12.4 Review of Arbitration Decision. Notwithstanding anything contained
------------------------------
herein to the contrary, any Shareholder may seek review of any arbitration
decision made pursuant to this Section 12 by a court of competent jurisdiction
whose review shall be limited to a determination that there is substantial
competent evidence to support the facts as found by the arbitrators and that the
arbitrators have applied the law applicable to the dispute. The decision of the
trial court may be appealed to an appellate court.
Section 13. Miscellaneous.
-------------
13.1 Amendment. This Agreement may be amended only by a writing signed by
---------
all of the Shareholders; provided, however, that no such amendment shall deprive
-------- -------
any Shareholder of any right which has accrued hereunder prior to the effective
date of such amendment.
13.2 Notices. All notices, requests, demands and other communications
--------
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given when delivered in person, or when sent by telex
or telecopy or other facsimile transmission (with receipt confirmed), or on the
fifth business day after posting thereof by registered or certified mail, return
receipt requested, pre-paid and addressed as follows (or at such other addresses
as the parties may designate by written notice in the manner aforesaid):
33
If to the Corporation:
Codina Group, Inc.
Xxx Xxxxxxxx Xxxxx, XX-0
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
If to St. Xxx:
Xx. Xxx Xxxxxxxxxxx
XxXxxx Xxxxxx, Xxxxx 000
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
With a copy to:
Xx. Xxx Xxxxxxxxxxx
XxXxxx Xxxxxx, Xxxxx 000
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
Xxxxxxx Xxxxxxx Xxxxxx-Xxxxx & Xxxxxxx, P.A.
000 X. Xxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
If to Weeks:
Weeks Corporation
0000 Xxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: A. Xxx Xxxxx, Xx.
Facsimile No.: (000) 000-0000
With a copy to:
Weeks Corporation
0000 Xxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
00
Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
If to Codina:
c/o Codina Group, Inc.
Xxx Xxxxxxxx Xxxxx, XX-0
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
With a copy to:
White & Case
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, XX 00000
Attention: K. Xxxxxxxx Xxxxx
Facsimile No.: (000) 000-0000
13.3 Governing Law. This Agreement shall be construed in accordance with,
-------------
and be governed by, the law of the State of Florida without regard to its
conflict of laws provisions.
13.4 Binding Effect. This Agreement shall be binding upon the Shareholders,
--------------
their estates, legatees, heirs, personal representatives and other permitted
successors in interest, and upon the Corporation, its permitted successors and
assigns.
13.5 Attorneys' Fees. In any litigation arising under this Agreement, the
---------------
prevailing party shall be entitled to recover from the non-prevailing party all
reasonable attorneys' fees and costs incurred by the prevailing party.
13.6 Headings. The headings in this Agreement are intended solely for
--------
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
13.7 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which shall
constitute the same Agreement. Delivery of an executed counterpart of a
signature page to this Agreement by facsimile transmission shall be effective
delivery of a manually executed counterpart of this Agreement.
13.8 Entire Agreement. This Agreement constitutes the entire agreement among
----------------
the parties hereto with respect to the subject matter hereof and all
understandings and agreements heretofore or simultaneously had among the parties
35
are merged into this Agreement and superseded thereby, including without
limitation that certain letters of intent dated December 9, 1997. No promises,
representations, understandings, warranties, and agreements have been made by
any of the parties hereto except as referred to herein; and all inducements to
the making of this Agreement relied upon by either party hereto have been
expressed herein.
13.9 Partial Invalidity. If any provision of this Agreement, or the
------------------
application of a provision to any person or circumstance, shall be held invalid,
the validity or legality of the remainder of this Agreement, or the application
of such provision to persons or circumstances other than those to which it is
held invalid, shall not be affected.
13.10 Phrase Reference. Wherever from the context it appears appropriate,
----------------
each term stated in either the singular or the plural shall include the singular
and the plural, and pronouns stated in the masculine, the feminine or the neuter
gender shall include the masculine, feminine and neuter.
13.11 Specific Performance. The parties agree that it is impossible to
--------------------
measure in money the damages which will accrue to a party by reason of a failure
to perform any of the obligations set forth in this Agreement. Therefore, if
any party shall institute any action or proceeding to enforce the terms or
alleging a breach of the provisions of this Agreement, in addition to any other
remedy available at law, such party may seek specific performance of the terms
hereof; and any other party against whom such action or proceeding is brought
hereby waives the claim or defense that a remedy at law alone is adequate, and
agrees (to the maximum extent permitted by law) to have such provision
specifically enforced against it by any court of equity, without the necessity
of posting bond or other security against it, and consents to the entry of
injunctive relief against it enjoining or restraining any violation or
threatened violation of this Agreement.
13.12 Service of Process; Jurisdiction. Except for matters subject to
--------------------------------
arbitration pursuant to Section 12.1, the parties hereto (i) hereby irrevocably
submit themselves to the jurisdiction of the courts of the State of Florida and
to the jurisdiction of the United States District Court for the Southern
District of Florida for the purpose of any suit, action or other proceeding
arising out of or based upon this Agreement, any other agreements entered into
pursuant to this Agreement or the subject matter hereof or thereof and (ii)
hereby waive, and agree not to assert, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding, any claim that they are not
subject personally to the jurisdiction of the above-named courts, that the suit,
action or proceeding is brought in an inconvenient forum, that the venue of the
suit, action or proceeding is improper or that this Agreement or the subject
matter hereof may not be enforced in or by such court. The parties hereto
hereby consent to service of process by registered mail at the address to which
notices are to be given. The parties hereto agree that their submission to
jurisdiction and their consent to service of process by mail is made for the
express benefit of the other parties hereto. Final judgment against any party
hereto in any such action, suit or proceeding shall be conclusive and may be
enforced in other jurisdictions (A) by suit, action or proceeding on the
judgment, a certified or true copy of which shall be conclusive evidence of the
fact and of the amount of any indebtedness or liability of the party therein
described or (B) in any other manner provided by or pursuant to the laws of such
other jurisdiction.
13.13 WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY IN
--------------------
36
ANY LITIGATION, SUIT OR PROCEEDING, IN ANY COURT WITH RESPECT TO, IN CONNECTION
WITH, OR ARISING OUT OF THIS AGREEMENT, THE SHARES, ANY OTHER AGREEMENT ENTERED
INTO PURSUANT TO THIS AGREEMENT, OR ANY INSTRUMENT OR DOCUMENT DELIVERED
PURSUANT TO THIS AGREEMENT OR ANY SUCH OTHER AGREEMENT, OR THE VALIDITY,
PROTECTION , INTERPRETATION, COLLECTION OR ENFORCEMENT, THEREOF; PROVIDED,
HOWEVER, THAT WITH RESPECT TO ANY COMPULSORY COUNTERCLAIM (I.E., A CLAIM BY A
PARTY HERETO AGAINST ANOTHER PARTY WHICH, IF NOT BROUGHT IN SUCH ACTION, WOULD
RESULT IN THE FIRST PARTY BEING FOREVER BARRED FROM BRINGING SUCH CLAIM), A
PARTY HERETO SHALL HAVE THE RIGHT TO RAISE SUCH COMPULSORY COUNTERCLAIM IN ANY
SUCH LITIGATION.
13.14 Consents. Any consent required by this Agreement may be given as
--------
follows:
(a) By a written consent given by the consenting Shareholder at or before the
doing of the act or thing for which the consent is solicited, provided that
such consent shall be nullified by either (i) written notification to the
other Shareholders by the consenting Shareholder at or before the time of,
or the negative vote by such consenting Shareholder at, any meeting held to
consider the doing of such act or thing, or (ii) written notification to
the other Shareholders by the consenting Shareholder before the doing of
any act or thing the doing of which is not subject to approval at such a
meeting; or
(b) By the affirmative vote by the consenting Shareholder to the doing of the
act or thing for which the consent is solicited at any meeting duly called
and held to consider the doing of such act or thing.
13.15 Force Majeure. The parties to this Agreement shall be excused from
-------------
performance of their obligations under this Agreement where they are prevented
from so performing by revolutions or other disorders, wars, acts of enemies,
fires, floods, or acts of God. All parties shall perform such parts or aspects
of their obligations that are not interfered with by such causes.
13.16 Successors. Except as herein otherwise specifically provided, this
----------
Agreement shall be binding upon, and inure to, the benefit of the parties and
their successors and permitted assigns.
13.17 No Third Party Rights. The provisions of this Agreement are for the
---------------------
exclusive benefit of the Corporation and the Shareholders and no other party,
except as specifically provided herein (including without limitation, any
creditor of the Corporation), shall have any right or claim against the
Corporation or any Shareholder by reason of those provisions or be entitled to
enforce any of those provisions against the Corporation or any Shareholder.
13.18 Survival. All covenants, agreements, representations and warranties
--------
made herein or otherwise made in writing by any Shareholder or the Corporation
pursuant hereto shall survive the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby.
37
13.19 No Waiver. One or more waivers of the breach of any provision of this
---------
Agreement by any party hereto shall not be construed as a waiver of a subsequent
breach of the same or any other provision, nor shall any delay or omission by a
nondefaulting party to seek a remedy for any breach of this Agreement or to
exercise the rights accruing to a nondefaulting party by reason of such breach
be deemed a waiver by a nondefaulting party of its remedies and rights with
respect to such breach.
13.20 Confidentiality. No party hereto, without the written approval of the
---------------
other party, during the period of time this Agreement is in effect or thereafter
divulge to any person not a party hereto, other than its attorneys, accountants,
employees and professional advisers, any information concerning the business of
the Corporation or the content of this Agreement or any other contract or
agreement entered into by the Corporation, 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, or (iii) the furnishing of such
information is required by law; 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, if practicable, and to disclose only that portion of the
confidential information which is legally required or otherwise necessary.
13.21 Construction. This Agreement shall be interpreted without regard to
------------
any presumption or rule requiring construction against the party causing this
Agreement to be drafted.
13.22 Further Assurances. Each party hereto agrees to execute and deliver
------------------
any and all additional instruments and documents and do any and all acts and
things as may be necessary or expedient to more fully carry out this Agreement
and the purposes contemplated herein.
(Signatures on following page)
38
IN WITNESS WHEREOF, the Shareholders have executed this Agreement, and the
Corporation has caused its corporate name to be signed by an authorized officer
of the Corporation as of the date first above written.
THE CORPORATION:
Codina Group, Inc., a Florida corporation
By:
--------------------------------------
Name:
------------------------------------
Its:
-------------------------------------
ST. XXX:
St. Xxx Corporation, a Florida corporation
By:
--------------------------------------
Name:
------------------------------------
Its:
-------------------------------------
WEEKS CORP.:
WEEKS CORPORATION, a Georgia corporation
By:
--------------------------------------
Name:
------------------------------------
Its:
-------------------------------------
WEEKS REALTY:
Weeks Realty Services, Inc.
By:
--------------------------------------
Name:
------------------------------------
Its:
-------------------------------------
CODINA:
-----------------------------------------
Xxxxxxx Xxxxxx
39
EXHIBIT A
---------
Codina Owned Real Estate
------------------------
GABLES GRAND PLAZA
2320 Salzedo Street, Coral Gables
200 Apartments, 35,000 sf Retail & 500 car Parking Garage
AMC ASSOCIATES, INC.
0000 X.X. 00 Xxxxxx, Xxxxx
58,800 sf Lot with 4,000 sf Structure
BAYSIDE, LTD.
N.E. 0xx Xxxxxx & Xxxxxxxx Xxxxxxxxx
Retail Center in Downtown Miami
XXXXXX XX 00XX XXXXXX JV
0000 X.X. 00 Xxxxxx, Xxxxx
00 Xxxx Xxxxxxxx Xxxx including approximately 450,000 sf of Industrial
Buildings
CODINA VALLS PROPERTY
00000 X.X. 000 Xxxxxx, Xxxxx
7.21 Acres of land by SR 27 and the Turnpike
MIAMI RIVER PROPERTY JV
Miami Avenue & S.E. 4 Street, NE corner on 0xx Xxxxxx
69,000 sf fronting the Miami River
MIAMI RIVER PROPERTY XX. 0
XX Xxxxxx xx 0xx Xxxxxx
115,000 sf fronting the Miami River
BEACON TRADEPORT
00000 X.X. 00 Xxxxxx, Xxxxx
374 Acre Property at NE corner of Turnpike & SR 836
BEACON INDUSTRIAL PARK
00000 X.X. 00 Xxxxxx, Xxxxx; 000 Xxxxxx & 00 Xxxxxx
0 acres remaining to be developed
SCHEDULE 5.2(b)
---------------
Restrictions and Contractual Obligations
----------------------------------------
St. Xxx Corporation ("St. Xxx") has the following restrictions and contractual
obligations as of the date of the Agreement.
1. St. Xxx/Arvida Company, L.P. St. Xxx, St. Xxx/Arvida Company, L.P. (the
----------------------------
"JMB Partnership") and their affiliates must: (i) act as the exclusive agent and
enter into exclusive pre-development, development, management, residential
property brokerage, advisory, construction, project consulting and/or project
supervisory agreements (the "Future Management Contracts") with respect to any
Future Development (as hereinafter defined); and (ii) provide JMB Realty
Corporation ("JMB") the right to participate in any Future Development on the
same economic basis as St. Xxx and its affiliates, for up to 26% (such
percentage to be determined by JMB) of the Future Development. The right of
participation granted to JMB covers all acquisitions of economic interests of
St. Xxx, in any Future Development whether obtained through purchase, option,
the acquisition of development rights, loans, contribution or other transfers of
assets, securities or rights.
Future Development means: (a) future Arvida-named projects; and (b) other
residential projects or mixed use projects that are primarily residential, but
may include other land uses, whether or not such projects include the name
"Arvida". This term includes all land, infrastructure, improvements (whether
residential improvements or non-residential improvements which support any such
property development), rights, fixtures, easements and other real and personal
property relative thereto. Future Developments, at St. Joe's sole discretion,
may, in addition, include stand alone hotel and/or resort properties, but shall
not include stand-alone golf courses; provided that, Future Developments in all
cases shall include any Arvida-named projects regardless of any designations to
the contrary by St. Xxx. These rights extend to all properties owned by St. Xxx
and its affiliates as of November 12, 1997 and to all future acquired lands on
which a Future Development is to be built. In addition, St. Xxx and its
affiliates are obligated to enter into Future Management Contracts solely with
------
the Partnership (or its wholly-owned subsidiaries) for all Future Developments,
and must refer all opportunities for Future Management Contracts with
unaffiliated third parties for Future Developments to the JMB Partnership, which
shall include all property purchase, pre-development, development, management,
residential property brokerage, advisory, construction, project consulting
and/or project supervisory services to be provided relative to such Future
Developments.
2. St. Xxx/CNL Realty Group, Ltd. Activity. St. Xxx/CNL Realty Group, Ltd.
----------- ---------------------
(the "CNL Partnership") and their affiliates (except for Florida East Coast
Industries, Inc. ("FEC") for which St. Xxx is required to use only its best
efforts) must present to the CNL Partnership on a right of first option basis
all opportunities identified, optioned, acquired or presently held by St. Xxx or
its affiliates with respect to acquiring, financing, developing, leasing,
maintaining, owning, operating, managing and/or disposing of single tenant
Schedule 5.2(b)
---------------
Page 2
Corporate Facilities (as hereinafter defined) throughout the United States
obtained through referrals by existing or future clients of the retail,
restaurant, hospitality or healthcare groups of affiliates of CNL Venture and
cultivation of the "Xxxxxx" relationship of such CNL Venture affiliates.
Corporate Facilities means office buildings, industrial space and flex space,
but does not include medical or medical office buildings.
CNL Venture means CNL Corporate Venture, Inc., a wholly owned subsidiary of
CNL Group, Inc.
SCHEDULE 5.13
-------------
Restrictions on Activities
--------------------------
1. The restriction set forth in that Section 15 of the Purchase Agreement by
and between Beacon Industrial Park Joint Venture and AMB Industrial Park Joint
Venture dated December 31, 1995.
A similar provision is included in the Management Agreements between Codina
Real Estate Management, Inc. and AMB Industrial Fund, Inc. dated December 31,
1995 and Codina Real Estate Management, Inc. and SSMRT Blue Lagoon (13), Inc.
dated November 15, 1996.
2. The restriction set forth in Section 4.3 of the Agreement of Limited
Partnership of CSC Limited Partnership dated as of April 30, 1997.
