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Exhibit 10.11
AGREEMENT
This Agreement is made this 13th day of February, 1998 among Lexford,
Inc., an Ohio corporation formerly known as Cardinal Realty Services, Inc. (the
"Company"), Xxxxxxx X. Xxxxxxx ("Fimberg"), and each of FSC Realty, L.L.C.
("FSC"), Xxx Xxxxxx ("Holder"), Xxxxx X. Xxxxxxxx ("Xxxxxxxx"), Xxxxxxx Xxxxxx
("Xxxxxx"), Xxxxx Xxxxxxxx ("Xxxxxxxx"), Xxxx Xxxxxx ("Xxxxxx"), and Xxxxx Xxxx
Xxxxx ("Xxxxx" and together with FSC, Holder, Williams, Hoover, Xxxxxxxx and
Xxxxxx, the "Old Lexford Shareholders"). Capitalized terms not otherwise defined
herein shall have the meanings ascribed to them in the Merger Agreement (the
"Merger Agreement") dated as of July 19, 1996 among the Company, Rexflor
Acquisition Corporation, an Ohio corporation ("Rexflor"), Lexford Properties,
Inc., a Texas corporation ("Lexford properties"), Fimberg and the Old Lexford
Shareholders.
WHEREAS, pursuant to the terms of the Merger Agreement, Lexford
Properties was merged with and into Rexflor with Lexford Properties surviving
the merger (the "Merger") and each of the Old Lexford Shareholders became
entitled to receive the Merger Consideration;
WHEREAS, the Merger Consideration consisted of shares of common stock,
no par value, of the Company (the "Company Common Stock"), certain portions of
which were designated as Escrow Shares, Group 1 Forfeitable Shares and Group 2
Forfeitable Shares;
WHEREAS, the Escrow Shares have been issued to the Old Lexford
Shareholders and held by the Company to secure certain indemnification
obligations of the Old Lexford Shareholders pursuant to the terms of the Merger
Agreement;
WHEREAS, the Group 1 Forfeitable Shares and Group 2 Forfeitable Shares
have been issued to the Old Lexford Shareholders and held by the Company subject
to forfeiture, each in whole or in part, based on the performance of Lexford
Properties during the three full fiscal years beginning after the Effective Time
as more particularly described in the Merger Agreement;
WHEREAS, in connection with the Merger and pursuant to a Registration
Rights Agreement (the "Registration Rights Agreement") dated August 1, 1996
between the Company and the Old Lexford Shareholders, the Company granted to the
Old Lexford Shareholders certain registration rights with respect to certain of
the shares of Company Common Stock received in the Merger;
WHEREAS, in connection with the Merger, Lexford Properties entered into
Consulting Agreements dated as of August 1, 1997 with each of Fimberg and
Xxxxxxxx (the "Consulting Agreements"); and
WHEREAS, the Company is contemplating a restructuring of its business,
including the business being conducted by Lexford Properties and, in connection
with such restructuring, the parties hereto desire to memorialize their
agreements with respect to the release and forfeiture of
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the Escrow Shares, Group 1 Forfeitable Shares and Group 2 Forfeitable Shares,
and certain of the rights granted under the Registration Rights Agreement,
Employment Agreements and the Consulting Agreements, all as more particularly
set forth below.
NOW, THEREFORE, in consideration of the above premises and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows.
1. Escrow Shares. Notwithstanding anything to the contrary contained in
the Merger Agreement, the Company, as Exchange/Escrow Agent under the Merger
Agreement hereby agrees to release all of the 50,000 Escrow Shares to the Old
Lexford Shareholders (in accordance with Schedule I to the Merger Agreement
attached hereto for convenience as Exhibit A ("Schedule I")). As soon as
practicable after the effectiveness of this Agreement, the Company will deliver
or cause its transfer agent to deliver, as the case may be, to the Old Lexford
Shareholders the share certificates representing the Escrow Shares.
2. Group 1 Forfeitable Shares. Notwithstanding anything to the contrary
contained in the Merger Agreement, the Company, as Exchange/Escrow Agent under
the Merger Agreement hereby agrees to release all of the 150,000 Group 1
Forfeitable Shares to the Old Lexford Shareholders (in accordance with Schedule
I). As soon as practicable after the effectiveness of this Agreement, the
Company will deliver or cause its transfer agent to deliver, as the case may be,
to the Old Lexford Shareholders the share certificates representing the Group 1
Forfeitable Shares. From and after the effectiveness of this Agreement, the
Group 1 Forfeitable Shares will be deemed to be Non-Forfeited Shares and no
longer subject to forfeiture under the Merger Agreement.
3. Group 2 Forfeitable Shares. Notwithstanding anything to the contrary
contained in the Merger Agreement, the Old Lexford Shareholders hereby agree to
forfeit to the Company all of the 300,000 Group 2 Forfeitable Shares. From and
after the effectiveness of this Agreement, the Old Lexford Shareholders will
have no rights whatsoever with respect to the Group 2 Forfeitable Shares
notwithstanding the provisions of Sections 2.2(d)(ii)(B) and 2.2(e) of the
Merger Agreement.
4. Registration Rights. The Company and each of the Old Lexford
Shareholders hereby agree to terminate the Registration Rights Agreement. From
and after the effectiveness of this Agreement, the Registration Rights Agreement
shall be deemed null and void, with no further force or effect.
5. Consulting Agreements. Each of Fimberg and Xxxxxxxx hereby
irrevocably waives the Company's compliance with its obligations under Section 5
of his Consulting Agreement.
6. Holdback Agreements. In the event that the Company determines to
register any of its shares of Company Common Stock in an underwritten public
offering in a registration statement filed under the Securities Act of 1933 (the
"Act") covering the sale of Company Common Stock to the public, and the managing
or lead underwriter thereof requests that the Old Lexford Shareholders agree not
to effect any public sale or distribution (including sales pursuant
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to Rule 144 promulgated under the Act) of equity securities of the Company or
any securities convertible into or exchangeable or exercisable for such equity
securities during a period of time beginning on the date of the initial filing
of the registration statement and ending on a date not more than one year after
the date such registration statement is declared effective (the "Holdback
Period"), the Old Lexford Shareholders will agree to comply with such request
and will execute any and all documents reasonably required by the underwriters
evidencing the same. Provided, however, that in the event that any of the
members of management (including directors) of the Company are permitted by the
underwriters to agree to a shorter Holdback Period than one (1) year, then the
Holdback Period provided herein shall be shortened to such shorter period.
Notwithstanding the foregoing, the holdback agreement with Xxxxx Xxxxxxxx shall
provide that Xx. Xxxxxxxx may sell up to 25,000 shares during the Holdback
Period provided that in no single month shall Xx. Xxxxxxxx sell more than 8,334
shares.
7. Proxy. Each of the Old Lexford Shareholders agrees to execute and
deliver to the Company, or its designees, a duly executed proxy to vote all
shares of Company Common Stock ("Shares") owned by such Old Lexford Shareholder
at the Special Meeting of the Company's Shareholders to be held on March 3, 1998
and at any adjournments thereof. Each of the Old Lexford Shareholders
acknowledges receipt of the Proxy Statement/Prospectus of the Company and
Lexford Residential Trust dated February 2, 1998 relating to such special
meeting. All such proxies will be voted in favor of the merger described in such
Proxy Statement/Prospectus. No Old Lexford Shareholder will take any further
action to revoke any such proxy or otherwise vote his or her Shares at such
Special Meeting. In addition, each of the Old Lexford Shareholders agrees to
execute and deliver to the Company, or its designees, a duly executed
irrevocable proxy to vote the 50,000 Escrow Shares and the 150,000 Group 1
Forfeitable Shares released hereby at any meeting of the Company's shareholders
held at any time during the Holdback Period.
8. No Claims. Each of the Old Lexford Shareholders and Fimberg hereby
acknowledges and represents that he or she does not have any claim against the
Company or Lexford Properties as of the date of this Agreement arising out of
the Merger Agreement or the Consulting Agreements, as applicable, or arising out
of any other conduct of the Company or Lexford Properties.
9. Releases. The Company on the one hand and Old Lexford Shareholders
on the other, on behalf of themselves and their heirs, assigns and successors,
do hereby release and forever discharge each other of and from any and all
claims, demands, liabilities, obligations, losses or expenses of any nature
whatsoever, whether existing at law, in equity or otherwise and whether known or
unknown, foreseen or unforeseen, that either of them have or may hereafter claim
to have had against each other relating to any provisions, terms, conditions,
covenants or representations of the Merger Agreement or any agreements executed
in connection therewith, provided, however, that nothing contained in this
Agreement shall release either party from any of their obligations under either
this Agreement, or from any claims for indemnification under applicable law in
connection with serving as an officer or director of the Company.
10. Effect of this Agreement. Except as required by this Agreement, the
terms of the Merger Agreement and the Consulting Agreements shall remain
unaffected by this Agreement.
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11. Further Assurances. Each of the parties hereto agrees to execute
and deliver all documents and take all such other actions as may be reasonably
required to give effect to the agreements contained herein.
12. Counterparts. This Agreement may be executed in multiple
counterparts, all of which when taken together shall constitute one and the same
agreement. This Agreement shall be effective when signed by all the parties
hereto.
13. Severability. If any term, provision, covenant or restriction of
this Agreement is held to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall not otherwise be affected, impaired or
invalidated.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with, the internal laws of the State of Ohio without giving effect to
the principles of conflicts of law thereof.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
LEXFORD, INC.
By: /s/ XXXX X. XXXXXXXX
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Name: Xxxx X. Xxxxxxxx
Title: President & CEO
/s/ XXX XXXXXX
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Xxx Xxxxxx
/s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx
/s/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx
/s/ XXXXXXX XXXXXX
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Xxxxxxx Xxxxxx
/s/ XXXXX XXXXXXXX
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Xxxxx Xxxxxxxx
/s/ XXXX XXXXXX
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Xxxx Xxxxxx
/s/ XXXXX XXXX XXXXX
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Xxxxx Xxxx Xxxxx
FSC REALTY, L.L.C.
By: /s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx, Manager
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