EXHIBIT 10.4
PURCHASE AND SALE OF SECURITIES
This Purchase and Sale of Securities dated as of October 30, 1995 (the
"Agreement"), is entered into by and among Xxxxxxx X. Xxxxxx ("KLT") and Xxxxxxx
X. Xxxxxx ("RHT" and, collectively with KLT, the "Tuckers") and Xxxxxxxx Xxxx
("MD") and Xxxxxx X. D'Arcy ("TPD" and, collectively with MD, the "Investors").
WITNESSETH:
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WHEREAS, Xxxxxxx Real Estate, Inc. ("Xxxxxxx") and Xxxxxx Properties
Corporation ("Xxxxxx") are entering into a certain Agreement and Plan of Merger
(the "Merger Agreement") of even date herewith pursuant to which Xxxxxx shall be
merged with and into Xxxxxxx (the "Merger");
WHEREAS, pursuant to the Merger, Xxxxxxx shall acquire all of Xxxxxx'x
ownership interests in each of the Xxxxxx Properties and the Xxxxxx Subsidiaries
(as each of such terms are defined in the Merger Agreement);
WHEREAS, the securities of one of the Xxxxxx Subsidiaries, Xxxxxx
Management Corp. ("TMC"), are owned by both Xxxxxx Operating Limited Partnership
("TOP") and the Tuckers;
WHEREAS, in connection with the Merger the Tuckers have agreed to sell
their interests in TMC to the Investors;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein contained and for other good and valuable consideration, the parties
hereto agree as follows:
1. SALE OF SECURITIES. Subject to, and in consideration of, the terms
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and conditions of this Agreement, the Tuckers hereby sell, assign, transfer,
convey and deliver to the Investors all right, title and interest of the Tuckers
in TMC, including without limitation the 460 shares of common stock of TMC, $.01
par value per share (the "Common Stock") (representing 92% of the Common Stock),
provided TOP owns 8% of the Common Stock, and 25 shares of the preferred stock
of TMC, $.01 par value per share (the "Preferred Stock") (representing 5% of the
Preferred Stock), provided TOP owns 95% of the Preferred Stock, and the
Investors hereby acknowledge and consent to such sale, assignment, transfer,
conveyance and delivery.
2. PURCHASE PRICE. In consideration of the sale, assignment, transfer,
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conveyance and delivery described above, at the Effective Time, the Investors
will pay each of the Tuckers $500 (the "Purchase Price") upon the effectiveness
of such sale, assignment, transfer, conveyance and delivery described above.
3. EFFECTIVE DATE. The effective date of this Agreement shall be the
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Effective Time. In the event the Merger is not consummated, this Agreement
shall be null and void.
4. REPRESENTATIONS AND COVENANTS OF THE TUCKERS.
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4.1 Each of the Tuckers owns beneficially and of record the number of
shares of the Common Stock and the Preferred Stock set forth opposite such
stockholder's name on Exhibit A hereto, free and clear of all pledges, liens,
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encumbrances, restrictions, voting agreements or trusts, rights, claims or
charges of any nature or kind whatsoever (collectively, "Claims"). Upon
delivery to the Investors of the certificates representing the shares owned by
each of the Tuckers duly endorsed in blank for transfer or with stock powers
attached duly executed in blank, against delivery of the Purchase Price, good
and valid title thereto shall be transferred to the Investors free and clear of
any and all Claims.
4.2 Each of the Tuckers has full right, authority, power and capacity
to enter into this Agreement and each agreement, document and instrument to be
executed and delivered by him pursuant to or as contemplated by this Agreement
and to carry out the transaction contemplated hereby and thereby. This Agreement
and each agreement, document and instrument to be executed and delivered by each
of the Tuckers pursuant to or as contemplated by this Agreement constitute, or
when executed and delivered will constitute, valid and binding obligations of
each of the Tuckers, enforceable in accordance with their respective terms. The
execution, delivery and performance by each of the Tuckers of this Agreement and
each such agreement, document and instrument:
(i) do not and will not violate any laws of the United States,
or any state or other jurisdiction applicable to either of the Tuckers or
require either of the Tuckers to obtain any approval, consent or waiver of,
or make any filing with, any person or entity (governmental or otherwise)
that has not been obtained or made; and
(ii) do not and will not result in a breach of, constitute a
default under, accelerate any obligation under or give rise to a right of
termination of any indenture or loan or credit agreement or any other
agreement, contract, instrument, mortgage, lien, lease, permit,
authorization, order, writ, judgment, injunction, decree, determination or
arbitration award to which either of the Tuckers is a party or by which the
property of either of the Tuckers is bound or affected, or result in the
creation or imposition of any mortgage, pledge, lien, security interest or
other charge or encumbrance on any of the Xxxxxx Properties or any of the
assets of TMC.
4.3 Except for interests in TOP and the interests in TMC set forth in
Section 1 hereto and the interests in the common stock of Xxxxxx, neither of the
Tuckers owns, directly or indirectly, any interest or investment (whether equity
or debt) in any of the Xxxxxx Subsidiaries.
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5. RELEASE AND INDEMNIFICATION.
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5.1 Subject to Section 2 hereof, each of the Tuckers hereby releases
and forever discharges Xxxxxxx and the Investors, each of the present and former
shareholders, directors, officers, employees and agents of Xxxxxxx, affiliates
of any of the foregoing and their respective successors and assigns (each a
"Released Person"), of and from all actions, causes of action, suits, debts,
dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants,
commitments, contracts, controversies, agreements, promises, variances,
trespasses, damages, judgments, extents, executions, claims and demand
whatsoever, in law or equity and/or any and all other applicable federal, state
or local statutes, laws, rules and regulations which either of the Tuckers
and/or any of their heirs, executors or administrators ever had, now has or
hereafter can, shall or may have against any Released Person, whether asserted,
unasserted, absolute, contingent, known or unknown, arising out of or relating
to the Common Stock or the Preferred Stock or the Tuckers' sale of the Common
Stock and the Preferred Stock to the Investors.
5.2 Subject to Section 2 hereof, each of the Tuckers agrees to
indemnify and hold harmless Xxxxxxx and the Investors against any losses,
claims, damages or liabilities to which any of Xxxxxxx or the Investors may
become subject, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon a breach of the
representations or covenants set forth in Section 4 hereof and will reimburse
each of Xxxxxxx and the Investors for any legal or other expenses reasonably
incurred by them in connection with investigating or defending against such
loss, claim, damage, liability or action.
6. MISCELLANEOUS.
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6.1 The rights accruing pursuant to this Agreement shall not be
transferable by any party hereto without the prior written consent of each other
party hereto.
6.2 Every provision of this Agreement is intended to be severable,
and if any term or provision hereof is held to be illegal or invalid for any
reason whatsoever, such illegality or invalidity shall not affect the validity
of the remainder hereof.
6.3 All capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Merger Agreement.
6.4 This Agreement shall be governed by and construed in accordance
with the laws of the State of Maryland.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
/s/ XXXXXXXX XXXX
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Xxxxxxxx Xxxx
/s/ XXXXXX X. D'ARCY
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Xxxxxx X. D'Arcy
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EXHIBIT A
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Xxxxxxx X. Xxxxxx 368 shares of Common Stock
20 shares of Preferred Stock
Xxxxxxx X. Xxxxxx 92 shares of Common Stock
5 shares of Preferred Stock
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