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XXXXX EQUITY, INC.
500,000 Shares of Common Stock
Par Value $.01 per share
Purchase Agreement
December 12, 1997
XXXXX II Realty Trust, Inc.
Xxx Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Xxxx X.X. Xxxxxxxxx
Gentlemen:
Xxxxx Equity, Inc., a Florida corporation (the "Company"), proposes to
issue and sell shares of its common stock, par value $.01 per share (the "Common
Stock") in an underwritten public offering (such offering being, the
"Underwritten Offering"; and such shares issued and sold in the Underwritten
Offering being, the "Underwritten Shares"). Pursuant to Section 4.4 of the Stock
Purchase Agreement dated as of October 10, 1996 (the "Stock Purchase Agreement")
between the Company and XXXXX II Realty Trust, Inc., a Maryland corporation
("Apollo"), and the successor-in-interest to AP-KEI Holdings, LLC, Apollo was
granted certain subscription rights with respect such offerings of Common Stock
made by the Company. In lieu of exercising its rights under Section 4.4 with
respect to the Underwritten Offering (including with respect to any shares sold
as a result of the exercise by the underwriters of their over-allotment option,
as described in the prospectus for the Underwritten Offering), it is our
understanding that Apollo wishes to purchase 500,000 shares of Common Stock (the
"Offered Shares" and together with the Underwritten Shares, the "Shares") in a
non-underwritten offering (the "Apollo Offering") made by the same prospectus as
the Underwritten Offering.
In connection with the foregoing, the Company has prepared and filed
with the Securities and Exchange Commission (the "Commission") in accordance
with the provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Securities Act"),
two registration statements (the file numbers of which are 33-55179 and
333-37919) on Form S-3, including preliminary prospectuses, relating to the
registration of certain shares of Common Stock (the "Shelf Securities") to be
issued from time to time by the Company. The Company has also filed with, or
proposes to file with, the Commission pursuant to Rule 424 under the Securities
Act, a prospectus supplement specifically relating to the
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Shares. The registration statements as amended to the date of this Agreement are
hereinafter referred to as the "Registration Statement" and the related
prospectus covering the Shelf Securities is hereinafter referred to as the "Base
Prospectus." The Base Prospectus as supplemented by the prospectus specifically
relating to the Shares in the form first used to confirm sales of the Shares is
hereinafter referred to as the "Prospectus." If the Company has filed an
abbreviated registration statement to register additional shares of Common Stock
pursuant to Rule 462(b) under the Securities Act (the "Rule 462 Registration
Statement"), then any reference herein to the term "Registration Statement"
shall be deemed to include such Rule 462 Registration Statement.
In consideration of Apollo's waiver of its rights under Section 4.4 of
the Stock Purchase Agreement with respect to the Underwritten Offering
(including with respect to any shares sold as a result of the exercise by the
underwriters of their over-allotment option, as described in the Prospectus),
the parties agree as follows:
1. Sale and Delivery to Apollo; Closing. Subject to the terms and conditions
set forth herein, the Company agrees to sell to Apollo, and Apollo agrees to
purchase from the Company, the Offered Shares at a price per share (the
"Purchase Price") equal to the net price per share of Common Stock received by
the Company for the Underwritten Shares. Payment of the Purchase Price for, and
delivery of the Offered Shares, shall be made on the same date (the "Closing
Date") and at the same place and time as the closing of the sale of the
Underwritten Shares (the "Closing") pursuant to an Underwriting Agreement dated
as of December 12, 1997 (the "Underwriting Agreement") among the Company and
X.X. Xxxxxx Securities Inc., Bear, Xxxxxxx & Co. Inc., and BT Xxxx Xxxxx
Incorporated, as representatives of the several underwriters party thereto. The
Company shall give Apollo reasonable notice of the date, time and place of the
Closing. The sale and purchase of the Offered Shares shall be effected by the
Company delivering to Apollo, duly registered in its name (or in the name of the
nominee designated by Apollo no later than two business days prior to the
Closing), a duly executed stock certificate evidencing the Offered Shares,
against delivery by Apollo to the Company of the Purchase Price by wire transfer
of immediately available funds to such account as the Company shall designate
prior to Closing.
2. Representations and Warranties of Apollo. Apollo represents and warrants
on behalf of itself and its affiliates as follows:
2.1. Accredited Investor. Apollo is an "accredited investor" (as
such term is defined in Rule 501 under the Securities Act).
2.2. Authorization; No Conflict.
2.2.1. Apollo is a company duly organized, validly existing
and in good standing under the laws of the State of Maryland and
has full power and authority to execute and deliver this Agreement
and to perform its obligations hereunder.
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2.2.2. This Agreement has been duly authorized, executed
and delivered by Apollo and this Agreement is valid, binding and
enforceable against Apollo in accordance with its terms except:
(i) as may be limited by or subject to any bankruptcy insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and (ii) the remedies
of specific performance, injunction and other forms of equitable
relief may not be available because they are subject to certain
tests of equity jurisdiction, equitable defenses and the
discretion of the court before which any proceeding therefor may
be brought.
2.2.3. The execution and delivery of this Agreement by
Apollo and the performance of its obligations hereunder do not and
will not conflict with, or result in breach of or (with or without
giving notice, lapse of time or both) constitute default under,
the organizational documents of Apollo or any material agreement
to which Apollo is a party or by which any of its properties are
bound.
2.3. Waiver of Subscription Rights under the Stock Purchase
Agreement. Apollo and its affiliates have waived all of their rights
under Section 4.4 of the Stock Purchase Agreement with respect to the
Underwritten Offering (including with respect to any shares of Common
Stock sold by the Company as a result of the exercise by the underwriters
of their over-allotment option pursuant to the Prospectus).
3. Representations and Warranties of the Company. The Company represents and
warrants as follows:
3.1. Authorization; No Conflict.
3.1.1. The Company is a corporation duly organized and in
good standing under the laws of the state of Florida and has full
corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder.
3.1.2. This Agreement has been duly authorized, executed
and delivered by the Company and this Agreement is valid, binding
and enforceable against the Company in accordance with its terms
except: (i) as may be limited by or subject to any bankruptcy
insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and (ii)
the remedies of specific performance, injunction and other forms
of equitable relief may not be available because they are subject
to certain tests of equity jurisdiction, equitable
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defenses and the discretion of the court before which any
proceeding therefor may be brought.
3.1.3. The execution and delivery of this Agreement by the
Company and the performance of its obligations hereunder do not
and will not conflict with, or result in breach of or (with or
without giving notice, lapse of time or both) constitute default
under the Company's Amended and Restated Articles of Incorporation
or Amended and Restated By-laws or any material agreement to which
the Company is a party or by which any of its properties are
bound.
3.2. Registration Statement and Prospectus. The Company has
caused to be delivered to Apollo copies of the Registration Statement and
Prospectus.
3.3. Issued Shares. The Offered Shares to be issued and sold by
the Company hereunder have been duly authorized, and when issued and
delivered to and paid for by Apollo in accordance with the terms of this
Agreement, will be duly issued and will be fully paid and non-assessable
and will conform to the descriptions thereof in the Prospectus.
4. Covenant of the Company. The Company covenants and agrees with Apollo
that from the date hereof and prior to the Closing, it will furnish Apollo with
a copy of any amendment or supplement to the Registration Statement or
Prospectus.
5. Conditions to the Obligations to Close. The obligations of the Company to
sell the Offered Shares to Apollo and the obligations of Apollo to purchase and
pay for the Offered Shares at the Closing are subject only to the closing of the
Underwritten Offering pursuant to the Underwriting Agreement.
6. Specific Performance. The parties recognize that their respective rights
under this Agreement are unique, and, accordingly, each party shall, in addition
to such other remedies as may be available to it at law or in equity, have the
right to enforce its rights hereunder by actions for injunctive relief and
specific performance to the extent permitted by law. This Agreement is not
intended to limit or abridge any rights of either party which may exist apart
from this Agreement.
7. Notices. All notices, demands and other communications required to be
given pursuant to this Agreement shall be in writing and shall be deemed to have
been received if given in writing (including telex, telecopy or similar
teletransmission) addressed as provided below (or to the addressee at such other
address as the addressee shall have specified by notice actually received by the
addressor), and if either (a) actually delivered in fully legible form to such
address (evidenced in the case of a telex by receipt of the correct answer back)
or (b) in the case of a letter, three days shall have elapsed after the same
shall have been deposited in the
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mails (i) with first-class (air mail if to or from outside the United States of
America) postage prepaid and registered or certified, with return receipt
requested, or (ii) with express delivery postage prepaid, with receipt required
for delivery.
If to the Company, to it at 0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxxx,
Xxxxxxx 00000, telecopy number (000) 000-0000, to the attention of Xxxxxx X.
Xxxxxx, Xx., with a copy to each of (a) Ropes & Xxxx, Xxx Xxxxxxxxxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, telecopy number (000) 000-0000, to the attention of
Xxxxxxx X. XxXxxxxx, Esq., and (b) Xxxxxx & XxXxxx, 00 Xxxxx Xxxxx Xxxxxx, Xxxxx
000, Xxxxxxxxxxxx, Xxxxxxx 00000, to the attention of Xxxxxx X. XxXxxx, Xx.,
Esq.
If to Apollo, to it at 1301 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, telecopy number (000) 000-0000, to the attention of Xxxx
Xxxxxxxxx, with a copy to Battle Xxxxxx LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, to the attention of Xxxxxx X. Xxxxxxx, Esq.
8. Binding Effect; Assignment. This Agreement shall be binding upon, and
inure to the benefit of, the parties and their respective personal
representatives, successors and permitted assigns.
9. Course of Dealing; Amendments, Waivers and Consents. No course of dealing
between the parties shall operate as a waiver of any party's rights under this
Agreement. Each party acknowledges that if any party, without being required to
do so by this Agreement, gives any notice or information to, or obtains any
consent from, the other party, such party shall not by implication have amended,
waived or modified any provision of this Agreement, or created any duty to give
any such notice or information or to obtain any such consent on any future
occasion. No delay or omission on the part of any party in exercising any right
under this Agreement shall operate as a waiver of such right or any other right
hereunder or thereunder. A waiver on any one occasion shall not be construed as
a bar to or waiver of any right or remedy on any future occasion. No amendment,
waiver or consent with respect to this Agreement shall be binding unless it is
in writing and signed by each of the Company and Apollo.
10. General. If any provision of this Agreement shall be found by any court
of competent jurisdiction to be invalid or unenforceable, the parties hereby
waive such provision to the extent that it is found to be invalid or
unenforceable. Such provision shall, to the maximum extent allowable by law, be
modified by such court so that it becomes enforceable, and, as modified, shall
be enforced as any other provision hereof, all the other provisions hereof
continuing in full force and effect. The headings contained in this Agreement
are for reference purposes only and shall not in any way affect the meaning or
interpretation hereof. This Agreement constitutes the entire understanding of
the parties with respect to the subject matter hereof and supersedes any and all
prior understandings and agreements, whether written or oral, with respect to
such subject matter. This Agreement may be executed in counterparts,
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which together shall constitute one and the same instrument. This Agreement
shall be governed by and construed in accordance with the laws (other than the
conflict of laws rules) of the State of New York.
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If you are in agreement with the foregoing, please execute the enclosed
copy of this letter and return the same to the undersigned.
Very truly yours,
XXXXX EQUITY, INC.
By /s/ Xxxxxx X. Xxxxxx, Xx.
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Xxxxxx X. Xxxxxx, Xx.
Chairman of the Board
Accepted and agreed:
XXXXX II REALTY TRUST, INC.
By /s/ Xxxx X.X. Xxxxxxxxx
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Xxxx X.X. Xxxxxxxxx
Vice President
cc: Apollo Real Estate Management II, Inc.
Attn: Xxxx X.X. Xxxxxxxxx
Battle Xxxxxx LLP
Attn: Xxxxxx X. Xxxxxxx, Esq.
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