SECURITIES PURCHASE AGREEMENT
EXHIBIT
10.1
This
Securities Purchase Agreement (this “Agreement”)
is
dated as of __________ ___, 2006, by and among REIT Americas, Inc., a
Maryland corporation (the “Company”),
and
the purchaser identified on the signature page hereto (each, a “Purchaser”
).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and
pursuant to
Section 4(2) of the Securities Act of 1933, as amended (the “Securities
Act”),
and
Rule 506 promulgated thereunder, the Company desires to issue and sell
to each
Purchaser, and each Purchaser, severally and not jointly, desires to
purchase
from the Company, securities of the Company as more fully described
in this
Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this
Agreement,
and for other good and valuable consideration the receipt and adequacy
of which
are hereby acknowledged, the Company and each Purchaser agrees as
follows:
ARTICLE
I
DEFINITIONS
1.1 Definitions.
In
addition to the terms defined elsewhere in this Agreement, the following
terms
have the meanings indicated in this Section 1.1:
“Affiliate”
means
any Person that, directly or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with a Person,
as such
terms are used in and construed under Rule 144 under the Securities
Act.
With
respect to a Purchaser, any investment fund or managed account that
is managed
on a discretionary basis by the same investment manager as such Purchaser
will
be deemed to be an Affiliate of such Purchaser.
“Closing”
means the closing of the purchase and sale of the Securities pursuant
to Section
2.1. The Company
may effect more than one Closing.
“Closing
Date” means the day selected by the Company after all of the Transaction
Documents have been
executed and delivered by the Purchaser, and all conditions precedent
to the
parties’ obligations under
this Agreement have been satisfied or waived. The Company may have
more than one
Closing Date.
“Commission”
means
the U.S. Securities and Exchange Commission.
“Common
Stock”
means
the common stock of the Company, par value $0.01 per share, and any
securities
into which such common stock shall hereinafter have been reclassified
into.
“including”
means
including, without limitation.
“Memorandum”
means
the Company’s Confidential Private Placement Memorandum, dated as of
____________, 2006, with respect to the offering contemplated hereby.
“Person”
means
an individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock
company,
government (or an agency or subdivision thereof) or other entity of
any
kind.
“Rule
144”
means
Rule 144 promulgated by the Commission pursuant to the Securities Act,
as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted.
“Securities”
means
the Common Stock issuable under
the
Transaction Documents.
“Transaction
Documents”
means
this Agreement and any other documents or agreements executed in connection
with
the transactions contemplated hereunder.
ARTICLE
II
SECURITIES
2.1 Closing.
On the
Closing Date, upon the terms and subject to the conditions set forth
herein, the
Company agrees to deliver, and each Purchaser agrees to accept the
number of
shares of the Securities set forth opposite the Purchaser’s name on the
signature page hereto. The Company shall deliver to the Purchaser the
Purchaser’s respective shares of Common Stock as determined pursuant to the
terms set forth in the Memorandum and the other items set forth in
Section 2.2
at the Closing. Upon satisfaction of the conditions set forth in Section
2.2,
the Closing shall occur at the offices of the Company, or such other
location as
the parties shall mutually agree. The Company may enter into Transaction
Documents (including a Securities Purchase Agreement) with other purchasers
with
respect to the Securities offered hereby. Each set of Transaction Documents
shall be identical in all material respects except as to the identities
of the
respective Purchasers, the amount of Securities to be purchased and
the date of
execution and closing. The Company may have more than one Closing and
Closing
Date with respect to such other Transaction Documents.
2.2 Deliveries.
(a) On
the
Closing Date, the Company shall deliver or cause to be delivered to
the
Purchaser the following:
(i) this
Agreement duly executed by the Company; and
(ii) a
certificate evidencing a number of shares of Common Stock subscribed
for;
and
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(b) On
the
Closing Date, each Purchaser shall deliver or cause to be delivered
the
following:
(i) this
Agreement duly executed by such Purchaser; and
(ii) an
Accredited
Investor Questionnaire completed by the Purchaser
and
reasonably satisfactory to counsel for the Company.
2.3 Closing
Conditions.
(a) The
obligations of the Company hereunder in connection with the Closing
are subject
to the following conditions being met:
(i) the
accuracy
in all material respects when made and on the Closing Date (except
for
representations and warranties made as of a specific date, which must
be
accurate in all material respects as of such date) of the representations
and
warranties of the Purchaser contained herein and in the Accredited
Investor
Questionnaire;
(ii) all
obligations, covenants and agreements of the Purchaser required to
be performed
at or prior to the Closing Date shall have been performed; and
(iii) the
delivery by the Purchaser of the items set forth in Section 2.2(b)
of this
Agreement.
(b) The
respective obligations of the Purchaser hereunder in connection with
the Closing
are subject to the following conditions being met:
(i) all
obligations, covenants and agreements of the Company required to
be performed at
or prior to the Closing Date shall have been performed; and
(ii) the
delivery by the Company of the items set forth in Section 2.2(a) of
this
Agreement.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
3.1 Representations
and Warranties of the Purchaser.
Each
Purchaser hereby, for itself and for no other Purchaser, represents
and warrants
as of the date hereof and as of the Closing Date to the Company as
follows:
(a) Organization;
Authority.
If the
Purchaser is an entity, such Purchaser is an entity duly organized,
validly
existing and in good standing under the laws of the jurisdiction
of its
organization with full right, corporate or partnership power and
authority to
enter into and to consummate the transactions contemplated by the
Transaction
Documents and otherwise to carry out its obligations thereunder.
The execution,
delivery and performance by such Purchaser of the transactions contemplated
by
this Agreement have been duly authorized by all necessary corporate,
if
applicable, or similar action on the part of such Purchaser. Each
Transaction
Document to which it is a party has been duly executed by such Purchaser,
and
when delivered by such Purchaser in accordance with the terms hereof,
will
constitute the valid and legally binding obligation of such Purchaser,
enforceable against it in accordance with its terms, except (i) as
limited by
general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting
enforcement of creditors’ rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other
equitable
remedies and (iii) insofar as indemnification and contribution provisions
may be
limited by applicable law.
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(b) Purchaser
Representation.
Such
Purchaser understands that the Securities are “restricted securities” and have
not been registered under the Securities Act or any applicable state
securities
law and is acquiring the Securities as principal for the Purchaser’s own account
for investment and not with a view to,
or for
sale in connection with, any distribution of such Securities or any
part
thereof, has no present intention of distributing any of such Securities
and has
no arrangement or understanding with any other Persons regarding
the
distribution of such Securities. Such Purchaser is acquiring the
Securities
hereunder in the ordinary course of the Purchaser’s business. Such Purchaser
does not have any agreement or understanding, directly or indirectly,
with any
Person to distribute any of the Securities.
(c) Purchaser
Status.
At the
time such Purchaser was offered the Securities, the Purchaser was,
and at the
date hereof the Purchaser is, an
“accredited investor” as defined
in
Regulation D under
the
Securities Act.
(d) Experience
of Such Purchaser.
Such
Purchaser, either alone or together with the Purchaser’s representatives, has
such knowledge, sophistication and experience in business and financial
matters
so as to be capable of evaluating the merits and risks of the prospective
investment in the Securities,
and has
so evaluated the merits and risks of such investment. Such Purchaser
is able to
bear the economic risk of an investment in the Securities, has no
need for
liquidity with respect to the Purchaser’s investment and, at the present time,
is able to afford a complete loss of such investment.
(e) General
Solicitation.
Such
Purchaser is not purchasing the Securities as a result of any advertisement,
article, notice or other communication regarding the Securities,
published in
any newspaper, magazine or similar media or broadcast over television
or radio
or presented at any seminar or any other general solicitation or
general
advertisement.
(f) Purchaser
Investigation.
Such
Purchaser has had the opportunity to request and receive all information
deemed
necessary by the Purchaser to evaluate an investment in the Company.
The
Purchaser confirms that the Company has made available to the Purchaser
the
opportunity to ask questions of, and receive answers from the Company
concerning
the terms and conditions of the Securities and the nature of the
business of the
Company, and to obtain additional information or documents which
the Company
possesses or can acquire without unreasonable effort or expense.
In formulating
the decision to acquire the Securities, the Purchaser has relied
solely upon the
Purchaser’s own advisors and the Purchaser’s own independent investigation of
the Company with respect to this Agreement and the nature and effect
of any
investment in the Securities as well as the information contained,
or
incorporated by reference, in the Company’s Memorandum.
4
(g) Certain
Fees.
No
brokerage or finder’s fees or commissions are or will be payable to any broker,
financial advisor or consultant, finder, placement agent, investment
banker,
bank or other Person with respect to the transactions contemplated
by this
Agreement based upon arrangements made by the Purchaser or any of
the
Purchaser’s Affiliates. The Company shall have no obligation with respect to
any
fees or with respect to any claims made by or on behalf of any Person
for fees
of a type contemplated in this Section that may be due in connection
with the
transactions contemplated by this Agreement based upon arrangements
made by any
Purchaser or any of the Purchaser’s Affiliates.
The
Company acknowledges and agrees that each Purchaser does not make or
has not
made any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in this
Section 3.1
and in the Accredited
Investor Questionnaire.
ARTICLE
IV
OTHER
AGREEMENTS OF THE PARTIES
4.1 Transfer
Restrictions.
(a) The
Securities may only be disposed of in compliance with state and federal
securities laws. In connection with any transfer of Securities other
than
pursuant to an effective registration statement, the Company may require
the
transferor thereof to provide to the Company an opinion of counsel
selected by
the transferor and reasonably acceptable to the Company, the form and
substance
of which opinion shall be reasonably satisfactory to the Company, to
the effect
that such transfer does not require registration of such transferred
Securities
under the Securities Act. As a condition of transfer, any such transferee
shall
agree in writing to be bound by the terms of this Agreement and shall
have the
rights of a Purchaser under this Agreement, provided, that the foregoing
shall
not apply to a transfer of Securities pursuant to an effective registration
statement.
(b) Each
Purchaser agrees to the imprinting, so long as is required by applicable
federal and state securities laws,
of a
legend on any of the certificate(s) evidencing the Securities in the
following
form:
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION,
OR THE SECURITIES COMMISSION OF ANY STATE, IN RELIANCE UPON AN EXEMPTION
FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO
AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT
TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE
STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE COMPANY
TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE
TO THE
COMPANY.
5
(c) Each
Purchaser agrees that the removal of the restrictive legend from the
certificate(s) evidencing the Securities as set forth in this Section
4.1 is
predicated upon the Company’s reliance that the Purchaser will sell any
Securities pursuant to either the registration requirements of the
Securities
Act, including any applicable prospectus delivery requirements, or
an exemption
therefrom.
ARTICLE
V
RELEASE
5.1 Each
Purchaser, does hereby release, remise and forever discharge the Company
and its
predecessors, successors and assigns, and respective directors, officers,
employees, agents and representatives thereof (collectively, the “Released
Parties”) of and from any and all actions, cases of action, suits, claims,
demands, accountings, covenants, contracts, agreements, debt, liabilities
and
obligations of any nature, fixed or contingent, known or unknown, whether
at law
or in equity, which the Purchaser ever had, now has, or which the Purchaser’s
heirs, executors, administrators, or legal representatives, successors,
or
assigns, as applicable, or any of them, hereinafter can, shall or may
have
against the Released Parties for or by reason of any event, occurrence,
circumstance or matter of any nature whatsoever which occurred or existed
at any
time on or before the date hereof.
5.2 Indemnification.
Each
Purchaser shall indemnify and hold the Released Parties harmless from
and
against all damages, expenses, costs and attorneys’ fees which any of the
Released Parties may suffer or incur by reason of any breach by such
Purchaser
of any of the provisions hereof.
ARTICLE
VI
MISCELLANEOUS
6.1 Fees
and Expenses.
Except
as expressly set forth in the Transaction Documents to the contrary,
each party
shall pay the fees and expenses of its advisers, counsel, accountants
and other
experts, if any, and all other expenses incurred by such party incident
to the
negotiation, preparation, execution, delivery and performance of this
Agreement.
The Company shall pay all transfer agent fees, stamp taxes and other
taxes and
duties levied in connection with the issuance of any Securities in
the name of
the Purchaser.
6.2 Entire
Agreement.
The
Transaction Documents, together with the exhibits and schedules thereto,
contain
the entire understanding of the parties with respect to the subject
matter
hereof and supersede all prior agreements and understandings, oral
or written,
with respect to such matters, which the parties acknowledge have been
merged
into such documents, exhibits and schedules.
6
6.3 Notices.
Any and
all notices or other communications or deliveries required or permitted
to be
provided hereunder shall be in writing and shall be deemed given and
effective
on the earliest of (a) the date of transmission, if such notice or
communication
is delivered via facsimile at the facsimile number set forth on the
signature
pages attached hereto prior to 5:30 p.m. (Eastern Time) on a business
day, (b)
the next business day after the date of transmission, if such notice
or
communication is delivered via facsimile at the facsimile number set
forth on
the signature pages attached hereto on a day that is not a business
day or later
than 5:30 p.m. (Eastern Time) on any business day, (c) the second business
day
following the date of mailing, if sent by U.S. nationally recognized
overnight
courier service, or (d) upon actual receipt by the party to whom such
notice is
required to be given. The address for such notices and communications
shall be
as set forth on the signature pages attached hereto.
6.4 Amendments;
Waivers.
No
provision of this Agreement may be waived or amended except in a written
instrument signed, in the case of an amendment, by the Company and
each
Purchaser or, in the case of a waiver, by the party against whom enforcement
of
any such waiver is sought. No waiver of any default with respect to
any
provision, condition or requirement of this Agreement shall be deemed
to be a
continuing waiver in the future or a waiver of any subsequent default
or a
waiver of any other provision, condition or requirement hereof, nor
shall any
delay or omission of either party to exercise any right hereunder in
any manner
impair the exercise of any such right.
6.5 Construction.
The
headings herein are for convenience only, do not constitute a part
of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be the
language
chosen by the parties to express their mutual intent, and no rules
of strict
construction will be applied against any party.
6.6 Successors
and Assigns.
This
Agreement is intended for the benefit of and shall be binding upon
and inure to
the benefit of the parties and their heirs, executors, administrators,
legal
representatives, successors or permitted assigns, as applicable. The
Company may
not assign this Agreement or any rights or obligations hereunder without
the
prior written consent of each Purchaser. Any Purchaser may assign any
or all of
the Purchaser’s rights under this Agreement to any Person to whom such Purchaser
assigns or transfers any Securities, provided such transferee agrees
in writing
to be bound, with respect to the transferred Securities, by the provisions
hereof that apply to the “Purchaser.”
6.7 Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of the Transaction Documents shall be governed by and construed and
enforced in
accordance with the internal laws of the State of
Maryland, without regard to the principles of conflicts of law thereof.
Each
party agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Agreement
and
any other Transaction Documents (whether brought against a party hereto
or its
respective affiliates, directors, officers, shareholders, employees
or agents)
shall be commenced exclusively in the state and federal courts sitting
in the
State of Maryland.
Each party hereby irrevocably submits to the exclusive jurisdiction
of the state
and federal courts sitting in the County
of
[INSERT],
State
of
Maryland for the adjudication of any dispute hereunder or in connection
herewith
or with any transaction contemplated hereby or discussed herein (including
with
respect to the enforcement of any of the Transaction Documents), and
hereby
irrevocably waives, and agrees not to assert in any suit, action or
proceeding,
any claim that it is not personally subject to the jurisdiction of
any such
court, that such suit, action or proceeding is improper or inconvenient
venue
for such proceeding. Each party hereby irrevocably waives personal
service of
process and consents to process being served in any such suit, action
or
proceeding by mailing a copy thereof via registered or certified mail
or
overnight delivery (with evidence of delivery) to such party at the
address in
effect for notices to it under this Agreement and agrees that such
service shall
constitute good and sufficient service of process and notice thereof.
Nothing
contained herein shall be deemed to limit in any way any right to serve
process
in any manner permitted by law. The parties hereby waive all rights
to a trial
by jury. If either party shall commence an action or proceeding to
enforce any
provisions of the Transaction Documents, then the prevailing party
in such
action or proceeding shall be reimbursed by the other party for its
attorneys’
fees and other costs and expenses incurred with the investigation,
preparation
and prosecution of such action or proceeding.
7
6.8 Survival.
The
covenants, representations and warranties contained herein, including,
but not
limited to, those contained in Article V of this Agreement, shall survive
the
Closing and the delivery of the Securities.
6.9 Execution.
This
Agreement may be executed in two or more counterparts, all of which
when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered
to the
other party, it being understood that both parties need not sign the
same
counterpart. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation
of the
party executing (or on whose behalf such signature is executed) with
the same
force and effect as if such facsimile signature page were an original
thereof.
6.10 Severability.
If any
provision of this Agreement is held to be invalid or unenforceable
in any
respect, the validity and enforceability of the remaining terms and
provisions
of this Agreement shall not in any way be affected or impaired thereby
and the
parties will attempt to agree upon a valid and enforceable provision
that is a
reasonable substitute therefor, and upon so agreeing, shall incorporate
such
substitute provision in this Agreement.
6.11 Replacement
of Securities.
If any
certificate or instrument evidencing any Securities is mutilated, lost,
stolen
or destroyed, the Company shall issue or cause to be issued in exchange
and
substitution for and upon cancellation thereof, or in lieu of and substitution
therefor, a new certificate or instrument, but only upon receipt of
evidence
reasonably satisfactory to the Company of such loss, theft or destruction
and
customary and reasonable indemnity, if requested. The applicants for
a new
certificate or instrument under such circumstances shall also pay any
reasonable
third-party costs associated with the issuance of such replacement
Securities.
8
6.12 Remedies.
In
addition to being entitled to exercise all rights provided herein or
granted by
law, including recovery of damages, each Purchaser and the Company
will be
entitled to specific performance under the Transaction Documents. The
parties
agree that monetary damages may not be adequate compensation for any
loss
incurred by reason of any breach of obligations described in the foregoing
sentence and hereby agree to waive in any action for specific performance
of any
such obligation the defense that a remedy at law would be adequate.
6.13 Independent
Nature of Purchaser’s Obligations and Rights.
The
obligations of each Purchaser under any Transaction Document are several
and not
joint with the obligations of any other Purchaser, and no Purchaser
shall be
responsible in any way for the performance of the obligations of any
other
Purchaser under any Transaction Document. Nothing contained herein
or in any
Transaction Document, and no action taken by any Purchaser pursuant
thereto,
shall be deemed to constitute the Purchaser as a partnership, an association,
a
joint venture or any other kind of entity, or create a presumption
that the
Purchaser is in any way acting in concert or as a member of a group
with respect
to such obligations or the transactions contemplated by the Transaction
Documents. Each Purchaser shall be entitled to independently protect
and enforce
the Purchaser’s rights, including without limitation, the rights arising out of
this Agreement or out of the other Transaction Documents, and it shall
not be
necessary for any other Purchaser to be joined as an additional party
in any
proceeding for such purpose. Each Purchaser has been represented by
the
Purchaser’s own separate legal counsel in the Purchaser’s review and negotiation
of the Transaction Documents. The Company has elected to provide all
Purchasers
with the same terms and the Transaction Documents for the convenience
of the
Company and not because it was required or requested to do so by the
Purchasers.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the Company has caused this Securities Purchase Agreement
to be
duly executed by its authorized signatory as of the date first indicated
above.
|
By:__________________________________________
Name:
Title:
|
ADDRESS
0000
X. Xxxx Xx., Xxxxx 000
Xxxxxx,
XX 00000
Facsimile
No.: [INSERT]
|
|
With
a copy to (which shall not constitute notice):
Xxxxx
Xxxxxxx
Blank
Rome LLP
0000
Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx
Xxxxx, XX 00000
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|
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
10
PURCHASER
SIGNATURE PAGES TO THE SECURITIES PURCHASE AGREEMENT
IN
WITNESS WHEREOF, the undersigned executed or caused this Securities
Purchase
Agreement to be duly executed by its respective authorized signatories
as of the
date first indicated above.
Number
of
Shares of Common Stock subscribed for: _______________________
Name
of
Purchaser: __________________________
Signature
of Authorized Signatory of Subscriber:
__________________________
Name
of
Authorized Signatory: _________________________
Title
of
Authorized Signatory: __________________________
Email
Address of Authorized Signatory: ________________________________
EIN
Number of Purchaser: ______________________________________
Address
for Notice of Purchaser:
Facsimile
No. of Purchaser:
Address
for Delivery of Securities for Purchaser (if not same as above):
11
