EXHIBIT 1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement"), dated July 16,
1998, is by and between Xxxxxxx-Xxxxxx, Inc., a Delaware corporation (the
"Company"), and Colony Investors III, L.P., a Delaware limited partnership
("Purchaser").
W I T N E S S E T H:
WHEREAS, the Company wishes to issue and sell to Purchaser (i)
certain shares of the Company's common stock, $.01 par value per share (the
"Common Stock"), and (ii) warrants to acquire additional shares of Common
Stock for an aggregate purchase price of $5,232,610 (the "Purchase Price");
and
WHEREAS, Purchaser wishes to purchase the such securities on the
terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
SECTION 1. THE SECURITIES
Section 1.1 ISSUANCE, SALE AND PURCHASE OF THE SECURITIES. In
reliance upon the representations and warranties made herein and subject to
the satisfaction or waiver of the conditions set forth herein, the Company
agrees to issue and sell to Purchaser, and Purchaser agrees to purchase
from the Company, for the Purchase Price, (i) 440,085 shares (the "Common
Shares") of Common Stock and (ii) warrants (the "Warrants" and,
collectively with the Common Shares, the "Securities"), exercisable for
seven years (as provided in the Warrant Agreement dated the date hereof
between the Company and Purchaser, a form of which is attached hereto as
Exhibit A (the "Warrant Agreement")), to acquire an additional 132,026
shares (the "Warrant Shares") of Common Stock at an initial exercise price
of $15.00 per share, subject to adjustment as provided in the Warrant
Agreement.
Section 1.2 OTHER AGREEMENTS. Concurrently with the Closing
referred to below, the Company will acquire 100% of the outstanding capital
stock of Xxxxxxx Properties Ltd. pursuant to that certain Stock Purchase
Agreement between the Company and Xxxxxxx Financial Ltd. dated as of the
date hereof (the "Acquisition Agreement"). Concurrently with the execution
of this Agreement, the Company will enter into the Warrant Agreement, an
Investor's Agreement with Purchaser in the form attached as Exhibit B
hereto (the "Investor's Agreement"), a Bridge Loan Agreement (including the
pledges and guaranties thereunder and all exhibits thereto) with Purchaser
in the form attached hereto as Exhibit C and a Registration Rights
Agreement with Purchaser in the form attached as Exhibit D hereto (the
"Registration Rights Agreement" and, collectively with the Warrant
Agreement, the Investor's Agreement, a Bridge Loan Agreement (including the
pledges and guaranties thereunder and all exhibits thereto) and the
Acquisition Agreement, the "Other Documents").
Section 1.3 CLOSING. The closing (the "Closing") shall take place
at the time of execution and delivery hereof at the offices of Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx 00000 or at such other location, date and time as may be agreed
upon between Purchaser and the Company. At the Closing, the Company shall
issue and deliver to Purchaser stock and warrant certificates in definitive
form, registered in the name of Purchaser or its designee, representing the
Securities. As payment in full for the Securities, and against delivery of
the certificates therefor at the Closing, Purchaser shall initiate a wire
transfer in immediately available United States funds in accordance with
the Company's instructions in the amount of the Purchase Price. Each
certificate representing the Securities shall bear the following legend in
addition to any other legend that may be required from time to time under
applicable law or pursuant to any other contractual obligation:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF (A "TRANSFER") EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
AN INVESTOR'S AGREEMENT DATED JULY 16, 1998. SUCH SECURITIES ARE ALSO
SUBJECT TO A REGISTRATION RIGHTS AGREEMENT DATED JULY 16, 1998. ANY
TRANSFEREE OF THESE SECURITIES TAKES SUBJECT TO THE TERMS OF SUCH
AGREEMENTS, A COPY OF EACH OF WHICH IS ON FILE WITH THE COMPANY.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR STATE SECURITIES LAWS AND NO SALE OR TRANSFER OF THESE SECURITIES
MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT, OR (B) PURSUANT TO AN EXEMPTION THEREFROM WITH RESPECT
TO WHICH THE COMPANY MAY, UPON REQUEST, REQUIRE A SATISFACTORY OPINION
OF COUNSEL FOR THE HOLDER THAT SUCH TRANSFER IS EXEMPT FROM THE
REQUIREMENTS OF THE ACT AND APPLICABLE STATE SECURITIES LAWS.
SECTION 2. REPRESENTATIONS AND WARRANTIES
Section 2.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to Purchaser as follows:
(a) Each of the Company and its subsidiaries (collectively,
the "Subsidiaries") has been duly organized and is validly existing as a
corporation, trust or partnership, as the case may be, (in the case of
corporate subsidiaries) in good standing under the laws of the jurisdiction
in which it is organized, with full corporate power and authority to own or
lease and occupy its properties and conduct its business, and is duly
qualified to do business, and (in the case of corporate subsidiaries) is in
good standing, in each jurisdiction which requires such qualification,
except where the failure to so qualify would not, individually or in the
aggregate, have or be reasonably likely to result in a material adverse
effect on the business, operations, business prospects, earnings, assets,
liabilities or condition (financial or otherwise) of the Company (a
"Material Adverse Effect"). All of the outstanding shares of capital stock
of each of the Subsidiaries have been duly authorized and validly issued,
are fully paid and nonassessable, and, except as disclosed in the Company's
reports, proxy statements, forms, and other documents with the Securities
and Exchange Commission (the "SEC") filed during the 1998 and publicly
available prior to the date hereof (the "1998 SEC Documents"), are owned by
the Company, directly, or indirectly through another Subsidiary, free and
clear of any lien, adverse claim, security interest or other encumbrance.
(b) The Company and each of the Subsidiaries have all
requisite power and authority, and all necessary material authorizations,
approvals, orders, licenses, certificates and permits of and from all
regulatory or governmental officials, bodies and tribunals, to own or lease
their respective properties and to conduct their respective businesses as
now being conducted, except as would not have a Material Adverse Effect on
the Company or such Subsidiary; all such authorizations, approvals,
licenses, certificates and permits are in full force and effect, except
where the failure to be in full force and effect would not have a Material
Adverse Effect on the Company or such Subsidiary; and the Company and each
of the Subsidiaries are in compliance with all applicable laws, the
violation of which could have a Material Adverse Effect on the Company and
the Subsidiaries taken as a whole or on the Issuer and the Guarantors (as
such terms are defined under the Bridge Loan Agreement) taken as a whole,
as the case may be (collectively, a "Company Material Adverse Effect").
(c) Except as disclosed in the 1998 SEC Documents, (i) the
Company and each Subsidiary have good and marketable title to their
properties and assets (or a valid first lien as to mortgaged properties)
owned (or mortgaged) by them, free and clear of all material liens, charges
and encumbrances and equities of record; (ii) no person or entity, other
than tenants under the leases or guarantors thereof pursuant to which the
Company and its Subsidiaries lease all or a portion of their properties,
has an option or right of first refusal or any other right to purchase any
of such properties; (iii) each of the properties of the Company and its
Subsidiaries, at the time such property was acquired or at the time the
loan by the Company with respect to such property was made, had access to
public rights of way, either directly or through insured easements, except
as would not have a Company Material Adverse Effect; (iv) each of such
properties is served by all public utilities necessary for the current
operations on such property in sufficient quantities for such operations,
except as would not have a Company Material Adverse Effect; (v) each of
such properties complies with all applicable codes and zoning and
subdivision laws and regulations, except for such failures to comply which
would not have a Company Material Adverse Effect; (vi) the real property
leases and equipment leases, if any, relating to each of such properties
are in full force and effect, except where the failure to be in full force
and effect would not have a Company Material Adverse Effect; and (vii)
there is no pending or (to the Company's best knowledge) threatened
condemnation, zoning change, or other proceeding or action that will in any
manner affect the size of, use of, improvements on construction on or
access to the properties of the Company and its Subsidiaries, except such
proceedings or actions which would not have a Company Material Adverse
Effect.
(d) The Company and each Subsidiary maintains adequate
insurance for the conduct of their respective business.
(e) The Company, either directly or through the
Subsidiaries, owns or licenses or otherwise has the right to use all
patents, trademarks, trade names and trade secrets material to the
Company's business; other than routine proceedings which if adversely
determined would not result in a Company Material Adverse Effect, no claims
have been asserted by any person with respect to the use of any such
patents, trademarks, trade names or trade secrets or challenging or
questioning the validity or effectiveness of any such patents, trademarks,
trade names or trade secrets; to the best knowledge of the Company, the
use, in connection with the business and operations of the Company and the
Subsidiaries of such patents, trademarks and trade names does not infringe
on the rights of any person.
(f) The Company's authorized and outstanding capitalization
(including all securities exercisable for, or convertible or exchangeable
into, Common Stock) is as set forth in Schedule 1(f) hereto. The
outstanding shares of Common Stock have been duly and validly authorized
and issued in compliance with all Federal and state securities laws, and
are fully paid and nonassessable; the Common Shares have been duly and
validly authorized and, when issued and delivered pursuant to this
Agreement, will be fully paid and nonassessable; and the holders of
outstanding shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for the Common Shares.
(g) There is no pending or, to the best knowledge of the
Company, threatened, action, suit, proceeding or investigation before any
court, governmental agency, authority or body or arbitrator involving the
Company or any of the Subsidiaries or any of their respective officers (in
their capacities as officers) or any of their respective properties, assets
or rights which, if determined adversely, could have a Company Material
Adverse Effect.
(h) The Company and each of the Subsidiaries party thereto
has full corporate power and authority to enter into and perform its
obligations under this Agreement and the Other Documents and to issue, sell
and deliver the Securities; all of the representations and warranties of
the parties to the Acquisition Agreement made in the Acquisition Agreement
(the "Acquisition Representations") are true and correct in all material
respects as if made on and as of the date hereof; this Agreement and the
Other Documents have been duly authorized, executed and delivered by the
Company and each of the Subsidiaries party thereto and, when so executed,
will each constitute a valid and binding obligation of the Company and each
of the Subsidiaries party thereto, enforceable against the Company and each
of the Subsidiaries party thereto in accordance with its terms, except to
the extent that enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereinafter in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether a proceeding is
considered at law or in equity).
(i) No consent, approval, authorization or order of any
court or governmental agency, authority or body is required (and has not
been received) for the execution by the Company and each of the
Subsidiaries party thereto of this Agreement and the Other Documents, the
performance by the Company and each of the Subsidiaries party thereto or
their respective obligations hereunder and thereunder or the consummation
by the Company and each of the Subsidiaries party thereto of the
transactions contemplated herein and therein.
(j) Neither the Company nor any or the Subsidiaries is in
violation of, in conflict with, in breach of or in default under (and the
Company does not know of an event which with the giving of notice or the
lapse of time or both would be reasonably likely to constitute a default
under) its charter or by-laws (and the Company does not know of an event
which with the giving of notice or the lapse of time or both would be
reasonably likely to constitute a violation), and neither the Company nor
any Subsidiary is in default in the performance of any obligation,
agreement or condition contained in any loan, note or other evidence of
indebtedness or in any indenture, mortgage, deed of trust or any other
material agreement by which it or its properties are bound, except for such
defaults as would not, individually or in the aggregate, have a Company
Material Adverse Effect.
(k) Neither the Company nor any of the Subsidiaries has
violated any environmental, safety or similar law or regulation applicable
to its business relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants, nor has the Company nor any of the Subsidiaries violated any
Federal, state or local law relating to discrimination in the hiring,
promotion, pay or terms or conditions of employment of employees nor any
applicable wage or hour laws, nor has the Company nor any of the
Subsidiaries engaged in any unfair labor practice, which in each case could
reasonably be expected, individually or in the aggregate, to have a Company
Material Adverse Effect.
(l) Neither the issue and sale of the Securities nor the
consummation by the Company and the Subsidiaries of any of the other
transactions contemplated herein or in the Other Documents nor the
fulfillment of the terms hereof and thereof will conflict with, result in a
breach or violation of; or constitute a default under any law or the
charter or bylaws of the Company or any of the Subsidiaries or the terms of
any indenture or other agreement or instrument to which the Company or any
of the Subsidiaries is a party or is bound or (except as would not have a
Company Material Adverse Effect) any judgment, order or decree applicable
to the Company or any of the Subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction
over the Company or any of the Subsidiaries.
(m) The Company has fulfilled its obligations, if any,
under the minimum funding standards of Section 302 of the Employee
Retirement Income Security Act or 1974, as amended ("ERISA"), and the
regulations and published interpretations thereunder with respect to each
"pension plan" (as defined in ERISA and such regulations and published
interpretations) in which employees of the Company are eligible to
participate and each such plan is in compliance in all material respects
with the presently applicable provisions of ERISA and such regulations and
published interpretations (except for such failure to so comply that would
not have, singularly or in the aggregate with all other such failures to
comply, a Company Material Adverse Effect), and has not incurred any unpaid
liability to the Pension Benefit Guaranty Corporation (other than for the
payment of premiums in the ordinary course) or to any such plan under Title
IV of ERISA.
(n) Except as disclosed in the 1998 SEC Documents, other
than the Warrants and grants of options to purchase an aggregate of 815,000
shares of Common Stock pursuant to the 1992 Incentive and Nonstatutory
Stock Option Plan of the Company, as amended, and a warrant to acquire
30,000 shares of Common Stock, there are no outstanding warrants or options
to purchase any shares of capital stock of the Company and there are no
restrictions upon the voting or transfer of, or the declaration or payment
of any dividend or distribution on, any shares of capital stock of the
Company pursuant to the certificate or incorporation or by-laws of the
Company, any agreement or other instrument to which the Company is a party
or by which the Company is bound, or any order, law, rule, regulation or
determination of any court, governmental agency or body (including, without
limitation, any banking or insurance regulatory agency or body), or
arbitrator having jurisdiction over the Company.
(o) There are no registration or other rights entitling any
person to registration by the Company under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the issued capital stock of
the Company (other than pursuant to the Registration Rights Agreement), or
to purchase or subscribe for capital stock of the Company (other than
pursuant to the Investor's Agreement).
(p) The Company files and has filed all required reports,
proxy statements, forms, and other documents with the SEC since January 1,
1995 (the "SEC Documents"). True and complete copies of all 1998 SEC
Documents have been delivered to Purchaser. As of their respective dates,
(i) the SEC Documents complied in all material respects with the
requirements of the Securities Act or the Securities Exchange Act of 1934,
as amended, as the case may be, and the rules and regulations of the SEC
promulgated thereunder applicable to such SEC Documents, and (ii) none of
the SEC Documents contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. Except to the extent that
information contained in any SEC Document has been revised or superseded by
a later filed SEC Document filed and publicly available prior to the date
of this Agreement, none of the SEC Documents contains any untrue statement
of a material fact or omits to state any material fact required to be
stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
financial statements of the Company included in the SEC Documents comply as
to form in all material respects with applicable accounting requirements
and the published rules and regulations of the SEC with respect thereto as
of their respective dates, have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis during the
periods involved and fairly present the consolidated financial position of
the Company and its consolidated Subsidiaries as of the dates thereof and
the consolidated results of their operations and cash flows for the periods
then ended (subject, in the case of unaudited statements, to normal year-
end audit adjustments and the absence of footnotes). Except for
liabilities and obligations incurred in the ordinary course of business,
consistent with past practices, since the date of the most recent
consolidated balance sheet included in the 1998 SEC Documents (the "Base
Balance Sheet"), neither the Company nor any of the Subsidiaries has any
liabilities or obligations of any nature (whether accrued, absolute,
contingent or otherwise) required by generally accepted accounting
principles to be set forth on a consolidated balance sheet of the Company
and its consolidated Subsidiaries or in the notes thereto.
(q) Except as disclosed in 1998 SEC Documents, since the
date of the Base Balance Sheet, the Company and the Subsidiaries have
conducted their respective businesses only in the ordinary course of
business in accordance with past practices, and there has not been (i) any
material adverse change in the Company, (ii) any split, combination or
reclassification of any of its capital stock or any issuance or the
authorization of any issuance of any other securities in respect of, in
lieu of or in substitution for shares of its capital stock, (iii) any
damage, destruction or loss, whether or not covered by insurance, that has
or reasonably could be expected to have a Company Material Adverse Effect
or (iv) any change in accounting methods, principles or practices by the
Company materially affecting its assets, liabilities or business.
(r) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that in all material
respects (i) transactions are executed in accordance with management's
general or specific authorization; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization, and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(s) To the Company's knowledge, neither the Company nor any
of its Subsidiaries nor any employee or agent of the Company or any
Subsidiary has made any payment of funds of the Company or any Subsidiary
or received or retained any funds in violation of any law, rule or
regulation.
(t) The Company and each of the Subsidiaries have filed all
tax returns required to be filed (except to the extent extensions have been
timely filed related thereto), which returns are complete and correct in
all material respects, and neither the Company nor any Subsidiary is in
default in the payment of any taxes which were payable pursuant to said
returns or any assessments with respect thereto.
(u) To the best of the Company's knowledge, no labor
disturbance by the employees of the Company or the Subsidiaries exists or
is imminent that would, individually or in the aggregate, have a Company
Material Adverse Effect. No collective bargaining agreement exists with any
of the Company's employees and, to the best of the Company's knowledge, no
such agreement is imminent.
(v) The Company has been advised concerning the Investment
Company Act of 1940, as amended (the "1940 Act"), and the rules and
regulations thereunder, and has in the past conducted, and intends in the
future to conduct, its affairs in such a manner as to ensure that it will
not become an "investment company" or a company "controlled" by an
"investment company" within the meaning of the 1940 Act and such rules and
regulations.
(w) The Company agrees that neither it, nor anyone acting
on its behalf, will offer any of the Securities so as to bring the issuance
and sale of the Securities within the provisions of Section 5 of the
Securities Act, or offer any similar securities for issuance or sale to, or
solicit any offer to acquire any of the same from, or otherwise approach or
negotiate with respect thereto with, anyone if the sale of any of the
Securities or any such similar securities would be integrated as a single
offering for the purposes of the Securities Act, including, without
limitation, Regulation D thereunder.
(x) Except as set forth in Section 4(c) hereof, the Company
has not retained, directly or indirectly, any broker or finder or incurred
any liability or obligation for any brokerage fees or finder's fees with
respect to this Agreement or the transactions contemplated hereby.
(y) All the Company's representations and warranties herein
(other than the Acquisition Representations, unless and to the extent the
Company knows any such representation is untrue or incorrect) shall survive
until ninety (90) days following the delivery to the Company of its signed,
audited financial statements for the year ending December 31, 1998.
Section 2.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser
represents and warrants to the Company that:
(a) Purchaser is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and has all requisite power and authority under such laws to own
or lease and operate its properties and to carry on its business as now
conducted.
(b) Purchaser has the power and authority to execute,
deliver and perform this Agreement and the Other Documents. All action on
the part of Purchaser necessary for the authorization, execution and
delivery of this Agreement and the other Documents and the performance of
all obligations of Purchaser hereunder and thereunder have been taken or
will be taken prior to the Closing. This Agreement and the Other Documents
have been duly authorized, executed and delivered by Purchaser and each
constitutes a valid and legally binding obligation of Purchaser,
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and
by general principles of equity (whether enforcement is sought by
proceedings in equity or at law).
(c) The execution and delivery by Purchaser of this
Agreement and the Other Documents and the performance by Purchaser of its
obligations hereunder and thereunder will not violate any provision of law,
rule or regulation, the organizational documents governing Purchaser or any
order or decree of any court or other agency of government, or conflict
with, result in a breach of or constitute (with notice or lapse of time or
both) a default under any indenture, agreement or other instrument by which
Purchaser or any of its properties or assets is bound, or result in the
creation or imposition of any lien, charge, restriction, claim or
encumbrance of any nature whatsoever known to Purchaser upon any of the
properties or assets of Purchaser.
(d) The Securities will be acquired for investment for
Purchaser's own account, not as a nominee or agent, and not with a view to
the resale or distribution of any part thereof, and Purchaser has no
present intention of selling, granting any participation in, or otherwise
distributing the same. Purchaser further represents that it does not
presently have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participations to such person or to any
third person, with respect to any of the Securities.
SECTION 3. CLOSING CONDITIONS
Section 3.1 CONDITIONS TO OBLIGATION OF PURCHASER. The obligation
of Purchaser to purchase the Securities shall be subject to satisfaction or
waiver by it of the following conditions at or before the Closing:
(a) The representations and warranties of the Company
contained in Section 2.1 hereof that are qualified as to materiality shall
be true and accurate, and those not so qualified shall be true and accurate
in all material respects.
(b) The Company shall have performed and complied in all
material respects with all agreements, covenants and conditions contained
herein that are required to be performed or complied with by it at or
before the Closing and the Acquisition Agreement shall have been
consummated in accordance with its terms.
(c) The Company shall have entered into the Other
Documents, Purchaser shall have been exempted from Section 203 of the
Delaware General Corporation Law by Company Board of Director action so
that Purchaser shall not be an "interested stockholder" thereunder despite
any additional share purchases not in violation of the Investor's
Agreement, and Purchaser's designee shall have been appointed to the board
of director positions pursuant to the Investor's Agreement.
(d) Purchaser shall have received a certificate, dated the
Closing date and signed by the Chief Executive Officer and the Chief
Financial Officer of the Company, certifying that the conditions in
Sections 3.1(a) and (b) are satisfied on and as of such date.
(e) Purchaser and its counsel shall have received copies of
the following documents:
(i) the Certificate of Incorporation,
certified as of a recent date by the Secretary of State of the
State of Delaware, and a certificate of such authority dated as
of a recent date as to the due incorporation and good standing of
the Company and listing all documents of the Company on file with
said authority;
(ii) a certificate of the Secretary or an
Assistant Secretary of the Company dated the Closing date
certifying: (A) that attached thereto is a true and complete copy
of the Bylaws of the Company as in effect on the date of such
certification; (B) that attached thereto is a true and complete
copy of all resolutions adopted by the Board of Directors
authorizing the execution, delivery and performance of this
Agreement and the Other Documents and the issuance, sale and
delivery of the Securities, and that all such resolutions are in
full force and effect and are all the resolutions adopted in
connection with the transactions contemplated by this Agreement;
(C) that the Certificate of Incorporation of the Company has not
been amended since the date of the last amendment referred to in
the certificate delivered pursuant to clause (i) above; (D) that
the Bylaws have not been amended since the date of the last
amendment referred to in such certificate pursuant to subclause
(ii)(A) above; and (E) that each officer of the Company executing
this Agreement and the Other Documents, the certificates
representing the Securities and any agreement, certificate or
instrument furnished pursuant hereto, was, at the respective
times of such execution and delivery of such documents, duly
elected or appointed, qualified and acting as such officer, and
the signatures of such persons appearing on such documents are
their genuine signatures or true facsimiles thereof; and
(iii) such additional supporting
documents as Purchaser may reasonably request.
(f) Purchaser shall have received an opinion (satisfactory
to Purchaser and its counsel), dated the Closing date, from Xxxxx,
Xxxxxxxxx & Xxxxxx, LLP in substantially the form of Exhibit E hereto.
Section 3.2 CONDITIONS TO THE OBLIGATIONS OF THE COMPANY. The
Company's obligation to sell the Securities shall be subject to the
satisfaction or waiver by it of the following conditions at or before the
Closing:
(a) The representations and warranties of Purchaser
contained in Section 2.2 of this Agreement that are qualified as to
materiality shall be true and accurate, and those not so qualified shall be
true and accurate in all material respects.
(b) Purchaser shall have performed and complied in all
material respects with all agreements and conditions contained herein that
are required to be performed or complied with by it at or before the
Closing, including without limitation, payment of the Purchase Price.
(c) Purchaser shall have entered into the Other Documents.
SECTION 4. MISCELLANEOUS
(a) The Company agrees to pay all of the expenses in
connection with the transactions contemplated hereby (including without
limitation the reasonable fees and expenses of counsel for Purchaser),
whether or not such transactions shall be consummated.
(b) Except as otherwise provided herein, covenants,
agreements, representations and warranties made in this Agreement, or any
certificate or instrument delivered pursuant to or in connection therewith
shall survive the execution and delivery of this Agreement.
(c) Each party hereto represents and warrants to the other
that it has had no dealing with any broker or finder in connection with
this Agreement or the transactions contemplated hereby other than a fee to
Prudential Securities Incorporated to be paid by the Company. Each party
hereto will indemnify and hold harmless the other against and in respect of
any claim for brokerage or other commissions relative to this Agreement or
to the transactions contemplated hereby, based in any way on agreements,
arrangements or understandings made or claimed to have been made by such
party with any third party.
(d) All representations, covenants and agreements contained
in this Agreement by or on behalf of any of the parties hereto shall bind
and inure to the benefit of the respective successors and assigns of the
parties hereto whether so expressed or not; provided that Purchaser shall
not assign its rights in this Agreement to any unrelated third party
without first obtaining the prior written consent of the Company, and
provided further that, notwithstanding the above provision, Purchaser may
assign its rights in this Agreement to any party under its control.
(e) All notices, requests, consents and other
communications hereunder shall be in writing and shall be delivered in
person or mailed by certified or registered mail; return receipt requested,
addressed as follows:
If to Purchaser, to: Colony Investors III, L.P.
c/o Colony Capital, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
Fax No.: (000) 000-0000
with a copy to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
If to the Company, to: Xxxxxxx-Xxxxxx, Inc.]
000 Xxxxxxxx Xxxx., #000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. XxXxxxxx
with copies to: Xxxxx, Xxxxxxxxx & Xxxxxx, LLP
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx, Esq.
Fax No.: (000) 000-0000
and
White & Case LLP
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Xx., Esq.
Fax No.: (000) 000-0000
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others. All notices, requests,
consents and other communications hereunder shall be deemed to have been
duly given or served on the date on which personally delivered or on the
date actually received, with receipt acknowledged.
(f) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflict of laws provisions thereof.
(g) This Agreement and the Other Documents constitute the
sole and entire agreement of the parties with respect to the subject matter
hereof and supersedes any and all prior or contemporaneous agreements,
discussions, representations, warranties or other communications. All
Schedules and Exhibits hereto are hereby incorporated herein by reference.
(h) This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(i) As used in this Agreement, knowledge shall mean, with
respect to any person, actual, conscious knowledge of such person (without
imputing any knowledge to such person), if an individual, or of any
executive officer of such person, if not an individual.
(j) This Agreement may not be amended or modified without
the written consent of the Company and Purchaser, nor shall any waiver be
effective against any party unless in a writing executed on behalf of such
party.
(k) If any provision of this Agreement shall be declared
void or unenforceable by any judicial or administrative authority, the
validity of any other provision and of the entire Agreement shall not be
affected thereby.
(l) The titles and subtitles used in this Agreement are for
convenience only and are not to be considered in construing or interpreting
any term or provisions of this Agreement.
IN WITNESS WHEREOF, the Company and Purchaser have caused this
Agreement to be executed and delivered by the undersigned duly authorized
officers as of the day and year first above written.
XXXXXXX-XXXXXX, INC.
By: /s/ Xxxxxxx X. XxXxxxxx
_________________________
Name: Xxxxxxx X. XxXxxxxx
Title: CEO
COLONY INVESTORS III, L.P.
By: Colony Capital III, L.P.
By: ColonyGP III, Inc.
By: /s/ Xxxx X. Xxxxxxxx
______________________________
Name: Xxxx X. Xxxxxxxx
Title: Vice President
