EXHIBIT 10.1
STOCKHOLDER AGREEMENT
THIS STOCKHOLDER AGREEMENT (this "Agreement") is made and entered into
as of March 21, 2001, by and between Price Enterprises, Inc., a Maryland
corporation ("Enterprises"), and the undersigned (the "Stockholder").
WHEREAS, the Stockholder desires that Enterprises, PEI Merger Sub,
Inc., a Maryland corporation and a wholly-owned subsidiary of Enterprises
("Merger Sub"), and Excel Legacy Corporation, a Delaware corporation ("Legacy"),
enter into an Agreement and Plan of Merger dated the date hereof (as the same
may be amended or supplemented, the "Merger Agreement") with respect to the
merger of Merger Sub with and into Legacy (the "Merger"); and
WHEREAS, the Stockholder is executing this Agreement as an inducement
to Enterprises to enter into and execute, and to cause Merger Sub to enter into
and execute, the Merger Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by
Enterprises and Merger Sub of the Merger Agreement and the mutual covenants,
conditions and agreements contained herein and therein, the parties agree as
follows:
1. REPRESENTATIONS AND WARRANTIES. The Stockholder represents and warrants
to Enterprises as follows:
(a) The Stockholder has full power and authority to execute and
deliver this Agreement, to perform the Stockholder's obligations hereunder
and to consummate the transactions contemplated hereby. The execution,
delivery and performance by the Stockholder of this Agreement and the
consummation by him of the transactions contemplated hereby have been duly
and validly authorized by the Stockholder and no other actions or
proceedings on the part of the Stockholder are necessary to authorize the
execution and delivery by him of this Agreement and the consummation by him
of the transactions contemplated hereby. This Agreement has been duly
executed and delivered by the Stockholder, and, assuming this Agreement
constitutes a valid and binding obligation of Enterprises, constitutes a
valid and binding obligation of the Stockholder, enforceable against him in
accordance with its terms.
(b) The Stockholder is the record and beneficial owner of the number
of shares (the "Stockholder's Shares") of common stock, par value $0.01 per
share, of Legacy ("Legacy Common Stock"), set forth below such
Stockholder's name on the signature page hereof. Except for the
Stockholder's Shares, the Stockholder is not the record or beneficial owner
of any shares of Legacy Common Stock. The Stockholder has or will have
voting power, power of disposition, power to issue instructions with
respect to the matters set forth in Section 2, and power to agree to all of
the matters set forth in this Agreement, in each case with respect to all
of the Stockholder's Shares, with no limitations, qualifications or
restrictions on such rights, subject to applicable federal securities laws
and the terms of this Agreement.
2. VOTING AGREEMENT. The Stockholder agrees with, and covenants to,
Enterprises that, at any meeting of stockholders of Legacy called to vote upon
the Merger and the Merger Agreement or at any adjournment or postponement
thereof or in any other circumstances upon which a vote with respect to the
Merger and the Merger Agreement is sought (the "Stockholders Meeting"), the
Stockholder shall appear, or cause the holder of record on any applicable record
date (the "Record Holder") to appear, for the purpose of obtaining a quorum at
the Stockholders Meeting, and vote (or cause the Record Holder to vote) the
Stockholder's Shares in favor of the Merger, the adoption of the Merger
Agreement, and the approval of the terms thereof and each of the other
transactions contemplated by the Merger Agreement, provided that the terms of
the Merger Agreement shall not have been amended to reduce the consideration
payable in the Merger to a lesser amount of common stock, par value $0.0001 per
share, of Enterprises.
3. TRANSFER. The Stockholder shall not (a) sell, transfer, pledge,
encumber, assign, or otherwise dispose of (collectively, "Transfer"), or consent
to any Transfer of, any or all of the Stockholder's Shares or any interest
therein, except pursuant to the Merger, (b) enter into any contract, option or
other agreement or understanding with respect to any Transfer of any or all of
such Shares or any interest therein, (c) grant any proxy, power of attorney or
other authorization in or with respect to such Shares, except for this Agreement
or (d) deposit such Shares into a voting trust or enter into a voting agreement
or arrangement with respect to such Shares; provided, that the Stockholder may
Transfer any of the Stockholder's Shares to any other person who is on the date
hereof, or to any family member of a person or charitable institution which
prior to the Stockholders Meeting and prior to such Transfer becomes, a party to
this Agreement bound by all the obligations of the "Stockholder" hereunder;
provided, further, that the Stockholder may Transfer an aggregate of 10% of the
Stockholder's Shares without compliance with this Section 3.
4. CERTAIN EVENTS. The Stockholder agrees that this Agreement and the
obligations hereunder shall attach to the Stockholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Stockholder's Shares shall pass, whether by operation of law or otherwise,
including without limitation the Stockholder's successors or assigns. The
Stockholder agrees that, in the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of Legacy affecting the Legacy Common Stock, the number of Shares
subject to the terms of this Agreement shall be adjusted appropriately and this
Agreement and the obligations hereunder shall apply to any additional shares of
Legacy Common Stock issued to the Stockholder.
5. FURTHER ASSURANCES. The Stockholder shall, upon request and expense of
Enterprises, execute and deliver any additional documents and take such further
actions as may reasonably be deemed by Enterprises to be necessary or desirable
to carry out the provisions hereof.
6. TERMINATION. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the first to occur of (a) the Effective
Time of the Merger, (b) the date upon which the Merger Agreement is terminated
in accordance with its terms or (c) the date upon which the Securities Purchase
Agreement by and among Warburg Pincus Equity Partners, L.P., certain of its
affiliates and Enterprises, dated the date hereof, is terminated in accordance
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with its terms. Upon such termination, no party shall have any further
obligations or liabilities hereunder; provided, that no such termination shall
relieve any party from liability for any breach of this Agreement prior to such
termination.
7. MISCELLANEOUS.
(a) Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger
Agreement.
(b) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if
delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice): (i) if to
Enterprises, to the address provided in the Merger Agreement; and (ii) if
to the Stockholder, to its address shown below its signature on the last
page hereof.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of this Agreement.
(d) This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement.
(e) This Agreement (including the documents and instruments referred
to herein) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof.
(f) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior
written consent of the other party. Any assignment in violation of the
foregoing shall be void.
(h) The parties agree that irreparable damage would occur in the event
that any of the provisions of this Agreement were not performed in
accordance with their specific terms. It is accordingly agreed that the
parties shall be entitled to specific performance of the terms hereof, this
being in addition to any other remedy to which they are entitled at law or
in equity.
(i) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and
the application thereof to any other circumstances, shall remain in full
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force and effect, shall not in any way be affected, impaired or
invalidated, and shall be enforced to the fullest extent permitted by law.
(j) Nothing contained in this Agreement shall be deemed to vest in
Enterprises or Merger Sub any direct or indirect ownership or incidence of
ownership of or with respect to any of the Stockholder's Shares. All
rights, ownership and economic benefits of and relating to the
Stockholder's Shares shall remain and belong to the Stockholder, and
neither Enterprises nor Merger Sub shall have any authority to manage,
direct, superintend, restrict, regulate, govern, or administer any of the
policies or operations of Legacy or exercise any power or authority to
direct the Stockholder in the voting of any of the Stockholder's Shares,
except as otherwise provided herein, or the performance of the
Stockholder's duties or responsibilities as a stockholder of Legacy.
(k) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and
signed by such party.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned parties have executed and delivered
this Stockholder Agreement as of the day and year first above written.
PRICE ENTERPRISES, INC.
By:
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Name:
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Title:
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STOCKHOLDER:
Name:
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Address:
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Number of Shares
of Legacy Common Stock
Beneficially Owned:
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