SECURITIES PURCHASE AGREEMENT
dated as of February __, 1997
between
GROVE REAL ESTATE ASSET TRUST
and
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Insert Purchaser's Name
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "Agreement"), dated as of
January __, 1997, between Grove Real Estate Asset Trust, a Maryland real estate
investment trust ("GREAT") and
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_____________________("Purchaser").
WHEREAS, GREAT has distributed to certain prospective investors
(including Purchaser) who are Accredited Investors (as defined), a Private
Placement Memorandum, dated December 5, 1996 (together with all appendices
thereto, the "PPM"), in connection with the offering by GREAT to such investors
of up to 3,333,333 of GREAT's common shares of beneficial interest, par value
$0.01 per share (each a "Common Share"), at a price of $9.00 per Common Share
(the "Purchase Price Per Share");
WHEREAS, following a complete and thorough review of the PPM, Purchaser
desires to purchase from GREAT, and GREAT desires to sell to Purchaser,
_________ Common Shares (as such number of Common Shares may be reduced from
time to time in accordance with Section 5.3(b), the "Purchased Common Shares"),
upon the terms and conditions set forth in this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
Article I
Definitions
1.1 Definitions. As used in this Agreement, the following terms
have the meaning set forth below:
"Accredited Investor" means, as defined under Regulation D promulgated
under the Act, any Person who (i) is able to bear the economic risk of the
acquisition of a security and can afford to sustain a total loss with respect to
such investment, and has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of an investment,
and therefore has the capacity to protect its own interest in connection with
the acquisition of a security and/or (ii) comes within any of the following
categories: (1) any bank as defined in Section 3(a)(2) of the Act, or any
savings and loan association or other institution as defined in Section
3(a)(5)(A) of the Act, whether acting in its individual or fiduciary capacity;
any broker or dealer registered pursuant to Section 15 of the Exchange Act; any
insurance company as defined in Section 2(13) of the Act; any investment company
registered under the Investment Company Act of 1940 or a business development
company as defined in Section 2(a)(48) of that act; any Small Business
Investment Company licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of 1958; any plan
established and maintained by a state, its political subdivisions, or any agency
or instrumentality of a state or its subdivisions for the benefit of its
employees, if such plan has total assets in excess of $5,000,000; any employee
benefit plan within the meaning of ERISA, if the investment decision is made by
a plan fiduciary, as defined in Section 3(21) of ERISA, which is either a bank,
savings and loan association, insurance company, or registered investment
advisor, or if the employee benefit plan has total assets in excess of
$5,000,000 or, if a self-directed plan, with investment decisions made solely by
persons that are Accredited Investors; (2) any private business development
company as defined in Section 202(a)(22) of the Investment Advisors Act of 1940;
(3) any organization described in Section 501(c)(3) of the Code, corporation,
Massachusetts or similar business trust or partnership, not formed for the
specific purpose of acquiring the securities offered, with total assets in
excess of $5,000,000; (4) any trust manager or executive officer of GREAT; (5)
any natural person whose individual net worth, or joint net worth with that
person's spouse, at the time of that person's purchase exceeds $1,000,000; (6)
any natural person who had an individual income in excess of $200,000 in each of
the two most recent years or joint income with that person's spouse in excess of
$300,000 in each of those years, and who has a reasonable expectation of
reaching the same income level in the current year; (7) any trust with total
assets in excess of $5,000,000 not formed for the specific purpose of acquiring
the securities offered, whose purchase is directed by a sophisticated person as
described in Rule 506(b)(2)(ii) of Regulation D; and (8) any entity in which all
of the equity owners are Accredited Investors.
As used in this definition, the term "net worth" means the excess of
the total assets over total liabilities. In calculating "net worth," the value
of a principal residence must be valued at cost or at a written appraised value
used by an institutional lender to make a loan secured by the property. In
determining income, an investor should add to such investor's adjusted gross
income any amounts attributable to tax exempt income received, losses claimed as
a limited partner in any limited partnership, deductions claimed for depletion
contributions to an "XXX" or "XXXXX" retirement plan, alimony payments and any
amount by which income from long-term capital gains has been reduced in arriving
at adjusted gross income.
"Act" means the Securities Act of 1933, as amended, or any successor statute.
"Affiliate" of any Person means any Person which, directly or indirectly,
controls, is controlled by, or is under common control with, such Person. The
term "control" (including, with correlative meaning, the terms "controlled by"
and "under common control with"), as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
"Agreement" has the meaning ascribed to such term in the introductory paragraph
of this Agreement.
"AMEX" means the American Stock Exchange, Inc.
"best efforts" , as used in this Agreement, shall mean commercially reasonable
efforts; provided, that in no event shall "best efforts" mean efforts which
require the performing party (i) to do any act that is unreasonable under the
circumstances, to make any capital contribution or to expend any funds other
than reasonable out-of-pocket expenses incurred in satisfying its obligations
under this Agreement, including, but not limited to, the fees, expenses and
disbursements of its accountants, counsel and other professionals, or (ii) in
the case of GREAT, to modify the terms of the Consolidation Transactions.
"Charter" means the Second Amended and Restated Declaration of Trust of GREAT.
"Charter Amendments" means the amendments proposed to be effected to the
Charter, as set forth in the Proxy Statement.
"Charter Documents" means the Charter and the Bylaws of GREAT, as each may be
amended from time to time.
"Closing" has the meaning ascribed to such term in Section 2.2 of this
Agreement.
"Closing Date" has the meaning ascribed to such term in Section 2.2 of this
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, together with the
rules and regulations promulgated thereunder, or any successor statute.
"Common Shares" means the common shares of beneficial interest, $0.01 par value
per share, of GREAT.
"Common Units" means common units representing ownership interests in the
Operating Partnership.
"Consolidation Transactions" means the consolidation transactions, including the
Private Placement, proposed to be entered into by GREAT, as described in the
Proxy Statement.
"Current Proposals" has the meaning ascribed to such term in Section 5.1(b) of
this Agreement.
"Damages" of any Person means any loss, liability (however defined or
characterized), diminution in value, damage or expense (including reasonable
costs of investigation and prosecution of litigation and attorneys' fees)
incurred by such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended,
or any successor statute.
"ERISA Certification" has the meaning ascribed to such term in Section 5.3(a) of
this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or any
successor statute.
"Exchange Offer" means the Offer to Exchange, dated December 2, 1996, by the
Operating Partnership to the limited partners of certain limited partnerships,
pursuant to which certain such limited partners can exchange the interests held
by them in such limited partnerships for Common Units or, under certain
circumstances, cash, as such Offer to Exchange may be supplemented, amended or
modified from time to time.
"GAAP" means generally accepted accounting principles in effect from time to
time in the United States.
"GREAT" has the meaning ascribed to such term in the introductory paragraph of
this Agreement.
"Knowledge" of GREAT means the actual knowledge of any of its officers (other
than assistant officers whose duties are principally ministerial) after due
inquiry to satisfy themselves that there is a reasonable basis for belief in the
accuracy of any of the representations and warranties made by GREAT, but shall
not be construed to require independent review or verification by them of
underlying facts.
"Material Adverse Effect" means any change in or effect on the business of GREAT
or its Subsidiaries that is materially adverse to the business, assets, results
of operations or financial condition of GREAT and its Subsidiaries taken as a
whole, or materially impairs the ability of GREAT to consummate the transactions
contemplated by this Agreement.
"Operating Partnership" means Grove Operating, L.P., a Delaware limited
partnership and the operating partnership of GREAT.
"Person" means any individual, a partnership, a joint venture, a corporation, a
trust, limited liability company, an unincorporated organization or a government
or any department or agency thereof.
"PPM" has the meaning ascribed to such term in the first Whereas clause of this
Agreement.
"Private Placement" means the private placement of up to 3,333,333 Common Shares
by GREAT pursuant to and as more fully set forth in the PPM.
"Proxy Statement" has the meaning ascribed to such term in Section 5.1(b) of
this Agreement.
"Purchase Price" means $____________, which is equal to the product of $9.00
(the Purchase Price Per Share) and _________ (the number of Common Shares which
constitutes the Purchased Common Shares), subject to adjustment in accordance
with Section 5.3(c).
"Purchase Price Per Share" has the meaning ascribed to such term in the first
Whereas clause of this Agreement.
"Purchased Common Shares" has the meaning ascribed to such term in the second
Whereas clause of this Agreement.
"Receipt" means the receipt to be executed and delivered by each of Purchaser
and GREAT at Closing, in the form attached as Exhibit D hereto.
"Redemption Rights" means the right, beginning one year after the issuance of
Common Units to limited partners of the limited partnerships participating in
the Exchange Offer, of certain limited partners to require the Operating
Partnership to redeem their Common Units for cash equal to the fair market value
of an equivalent number of Common Shares at the time of redemption or, at the
Operating Partnership's option, it can exchange such Common Units for Common
Shares on a one-for-one basis (subject to adjustment).
"Registration Rights Agreement" means the Registration Rights Agreement, to be
entered into on or prior to the Closing, among GREAT, Purchaser, certain other
purchasers of the Common Shares offered in the Private Placement and others,
which will grant to Purchaser certain "piggyback" registration rights (provided,
that in any event, no registration statement in connection with such
registration rights shall be filed with the SEC or with any state securities
commission at any time prior to the six-month anniversary of the Closing) and
subject the sale by Purchaser of its Common Shares to certain "black out"
provisions.
"SEC" means the United States Securities and Exchange Commission.
"SEC Filings" has the meaning ascribed to such term in Section 3.4 of this
Agreement.
"Special Meeting" shall have the meaning ascribed to such term in Section 5.1(b)
of this Agreement.
"Subsidiaries" means, collectively, GREAT's direct or indirect majority-owned
subsidiaries, including, without limitation, the Operating Partnership.
Article II.
Purchase of Common Shares
2.1 Purchase of Common Shares. At the Closing, GREAT shall issue and sell to
Purchaser, and Purchaser shall purchase from GREAT, the Purchased Common Shares.
At the Closing, Purchaser shall pay the Purchase Price for the Purchased Common
Shares by wire transfer of immediately available funds or by certified or
official bank check payable in same day funds to the order of GREAT. Upon
receipt of the Purchase Price, GREAT shall deliver to Purchaser a certificate
representing the number of Common Shares constituting the Purchased Common
Shares, registered in the name of Purchaser.
2.2 Closing. The closing of the issuance and sale of the Purchased Common Shares
hereunder (the "Closing") shall take place at the offices of Xxxx, Scholer,
Fierman, Xxxx & Handler, LLP located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, and will occur substantially simultaneously with the closing of the other
purchases and sales of Common Shares in the Private Placement. GREAT will notify
Purchaser of the date of the Closing (the "Closing Date") not less than three
business days prior to the Closing Date.
2.3 Deliveries.
(a) Purchaser's Deliveries. At the Closing, in consideration of Purchaser's
receipt from GREAT of the Purchased Common Shares, Purchaser shall deliver to
GREAT the following:
(i) the Purchase Price in accordance with Section 2.1 hereof;
(ii) the certificate referred to in Section 7.3 hereof duly executed on behalf
of Purchaser;
(iii) the Registration Rights Agreement, duly executed on behalf of Purchaser;
and
(iv) the Receipt, duly executed on behalf of Purchaser.
(b) GREAT's Deliveries. At the Closing, in consideration of GREAT's receipt of
the Purchase Price from Purchaser, GREAT shall deliver to Purchaser the
following:
(i) certificates representing the Purchased Shares, duly issued in the name of
Purchaser;
(ii) the certificate referred to in Section 6.3 hereof, duly executed by an
authorized officer on behalf of GREAT;
(iii) the Registration Rights Agreement, duly executed by an authorized officer
on behalf of GREAT; and
(iv) the Receipt, duly executed by an authorized officer on behalf of GREAT.
2.4 Legends. In addition to the legend concerning inter alia, Excess Shares, set
forth in the Charter, the certificates evidencing the Purchased Common Shares
shall bear the following legends:
(a) "The transfer of the securities represented by this
certificate is subject to conditions specified in section 5.3(d) of a Securities
Purchase Agreement dated January, __, 1997, as such agreement may be amended
from time to time, and no transfer of such securities shall be valid or
effective until such conditions have been fulfilled with respect to such
transfer. A copy of such Securities Purchase Agreement will be furnished by the
company to the holder of this certificate upon written request and without
charge."
(b) "These securities have not been registered under the
Securities Act of 1933, as amended (the "Act") and may not be offered sold or
otherwise transferred except pursuant to an effective registration statement
under the Act or an exemption from the registration requirements thereof. These
securities have not been registered under the securities laws of any state."
Article III
Representations and Warranties of GREAT
GREAT hereby represents and warrants to Purchaser that, as of the date
of this Agreement and as of the Closing Date:
3.1 Organization, Good Standing and Qualification. GREAT has been duly
organized and is a validly existing trust in good standing under the laws of
Maryland with all requisite power and authority to carry on its business as
presently conducted. GREAT is duly qualified to transact business and is in good
standing in each jurisdiction in which it is required to be qualified except
where the failure to be so qualified or in good standing would not, in the
aggregate, have a Material Adverse Effect.
3.2 Capitalization. (a) As of the date hereof, the authorized capital
stock of GREAT consists of 10,000,000 Common Shares, 525,000 of which are issued
and outstanding as of the date hereof, and 4,000,000 preferred shares of
beneficial interest, $0.01 par value per share, none of which are issued and
outstanding as of the date hereof. No other shares of capital stock of GREAT are
outstanding or held as treasury shares. There are no outstanding options,
warrants, rights (including conversion or preemptive rights) or agreements for
the purchase or acquisition from GREAT of any shares of its capital stock or
securities or obligations of any kind convertible into any shares of its capital
stock except for (i) options to purchase an aggregate of 100,000 Common Shares
held by certain executive officers and trust managers of GREAT and issued under
GREAT's 1994 Share Option Plan, (ii) as contemplated by the Private Placement
(including pursuant to this Agreement and pursuant to other Securities Purchase
Agreements between GREAT on the one hand, and other purchasers of Common Shares
therein on the other hand) and (iii) the Common Shares issuable to certain
Persons participating in the Exchange Offer at the option of the Operating
Partnership upon the exercise by such Persons of Redemption Rights.
(b) The Capitalization Table set forth in the section of
Appendix I to the PPM entitled "SUMMARY -- Capitalization" sets forth the
currently anticipated capitalization of GREAT at the Closing, giving effect to
the consummation of the Consolidation Transactions, including the Private
Placement. The capitalization set forth on such table has been calculated taking
into account various assumptions regarding the Consolidation Transactions, as
described in further detail in the above-referenced section of Appendix I to the
PPM, and accordingly, the actual capitalization of GREAT following the
consummation of the Consolidation Transactions may differ.
3.3 Authorization. GREAT has full power and corporate authority to
execute and deliver this Agreement and (subject to shareholder approval as
contemplated by the Proxy Statement) to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the other agreements
and instruments contemplated hereby, and the consummation of the transactions
contemplated by this Agreement, have been authorized by the Board of Trust
Managers of GREAT and no other proceedings (except for a meeting of the
shareholders of GREAT for the purpose of obtaining shareholder approval as
contemplated by the Proxy Statement) on the part of GREAT are necessary to
authorize this Agreement or to consummate the transactions so contemplated. This
Agreement has been duly and validly executed by GREAT and, subject as aforesaid,
constitutes a valid and binding agreement of GREAT enforceable in accordance
with its terms except as limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws and equitable principles relating to or
limiting creditors' rights generally.
3.4 SEC Filings. Purchaser has been provided (or will, upon Purchaser's
written request, be provided) true and correct copies of GREAT's annual reports
on Form 10-KSB for the fiscal years ended December 31, 1995 and 1994, and
GREAT's quarterly reports on Form 10-QSB for the fiscal quarters ended March 31,
1996, June 30, 1996 and September 30, 1996 (collectively, the "SEC Filings"). As
of their respective dates, the SEC Filings (including all exhibits and schedules
thereto and documents incorporated by reference therein) complied in all
material respects with the laws, regulations and forms governing the SEC
Filings; and none of the SEC Filings contained, as of the date it was filed with
the SEC, any untrue statement of any 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.
3.5 Valid Issuance of Shares. The Purchased Common Shares, when issued,
sold and delivered to Purchaser in accordance with the terms hereof for the
consideration expressed herein, will be duly authorized and validly issued,
fully paid and nonassessable and, based in part on the representations of
Purchaser in this Agreement, will be issued in compliance with all applicable
federal and state securities laws.
3.6 Consents and Approvals; No Violation. Neither the execution and
delivery of this Agreement by GREAT, its consummation of the transactions
contemplated hereby nor its compliance with any of the provisions hereof will
(a) conflict with or result in the breach of any provision of the Charter
Documents; (b) require any consent, approval, order or authorization of, or
registration, qualification, designation or filing with or notification to, any
governmental or regulatory authority, the failure of which to obtain would have
a Material Adverse Effect, except for (i) the filing with the SEC of a Form D
and such other documents as may be required in connection with this Agreement
and the other Common Shares being issued in the Private Placement and the
obtaining from the SEC of such orders as may be so required, (ii) the filing of
such documents with, and the obtaining of orders from, the various state
securities authorities that are required in connection with the transactions
contemplated by this agreement and (iii) the filing of an additional listing
application and the listing of the Purchased Common Shares to be issued pursuant
to this Agreement and the other Common Shares to be issued in the Private
Placement, as contemplated by Section 5.1(c); or (c) conflict with or result in
any breach or default (with or without notice or lapse of time or both) or
violate any loan agreement, note, mortgage, indenture, lease or other
obligation, instrument, order, injunction, decree, statute, rule or regulation
applicable to GREAT or its Subsidiaries or any of their respective properties or
assets where such conflicts, breaches, defaults or violations would, in the
aggregate, have a Material Adverse Effect.
3.7 REIT Status. (a) To GREAT's Knowledge, no person or entity which
would be treated as an "individual" for purposes of Section 542(a)(2) of the
Code (as modified by the by Section 856(h) of the Code) owns or would be
considered to own (taking into account the ownership attribution rules under
Section 544 of the Code, as modified by Section 856(h) of the Code) in excess of
5.0% of the value of the outstanding equity interest in GREAT. The Board of
Trust Managers of GREAT has not exempted any Person from the Ownership Limit (as
defined in the Charter) or the Grove Affiliate Investor Limit (as defined in the
Charter) or otherwise waived any of the provisions of Section 7 of the Charter.
The Ownership Limit and the Grove Affiliate Investor Limit (each as defined in
the Charter) have not been modified pursuant to Section 7.9 or 7.10 of the
Charter or otherwise; provided, that such limits are expected to be modified
pursuant to the Charter Amendments, and, if the Charter Amendments are effected,
GREAT's Board of Trust Managers will be permitted to exempt from such limits one
or more Persons in connection with a purchase of Common Shares by such Persons
in the Private Placement.
(b) GREAT (i) has been or intends in its federal income tax returns for
the tax years ended December 31, 1994, 1995 and 1996 to be taxed as a real
estate investment trust within the meaning of Section 856 of the Code (a "REIT")
and has complied (or will comply) with all applicable provisions of the Code
relating to a REIT for 1995 and 1996, (ii) has operated and currently intends to
continue to operate in such a manner so as to qualify as a REIT, (iii) has not
taken or omitted to take any action which would reasonably be expected to result
in a challenge to its status as a REIT, and (iv) to GREAT's Knowledge, and
assuming the accuracy of Purchaser's representations in Article IV hereof, will
not be rendered unable to qualify as a REIT for federal income tax purposes as a
consequence of the transactions contemplated hereby.
3.8 No Brokers' or Other Fees. No broker, finder or investment banker
is entitled to any brokerage, finder or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by GREAT for which Purchaser shall be liable or obligated.
ARTICLE IV
Representations and Warranties of Purchaser
Purchaser hereby represents and warrants to GREAT that, as of
the date of this Agreement and as of the Closing Date:
4.1 Organization and Authorization. Purchaser is an entity of the type
identified in the introductory paragraph of this Agreement, duly organized,
validly existing and in good standing under the laws of its jurisdiction of
formation. The execution and delivery of this Agreement and the other agreements
and instruments contemplated hereby have been, and the consummation of the
transactions contemplated hereby and thereby have been, duly and validly
authorized by all necessary action of Purchaser, and no other proceedings on the
part of Purchaser are or will be necessary to consummate the transactions
contemplated hereby. Purchaser has the right, power, legal capacity and
authority to enter into, deliver and perform this Agreement and any other
agreements and instruments contemplated hereby and to own the Purchased Common
Shares, and this Agreement and all such other agreements are, or upon the
execution thereof will be, valid and legally binding upon Purchaser and
enforceable in accordance with their respective terms except as limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws and
equitable principles relating to or limiting creditors' rights generally.
4.2 Consents and Approvals; No Violation. None of the execution and
delivery of this Agreement by Purchaser, its consummation of the transactions
contemplated hereby or its compliance with any of the provisions hereof will (i)
conflict with or result in any breach of any provision of the statutes governing
the organization and operation of Purchaser or the organizational documents of
Purchaser, (ii) require any consent, approval, authorization or permit of, or
filing with or notification to, any governmental or regulatory authority, except
for any filings referred to in Section 3.6, filings by Purchaser under Section
13(d) or 16(a) of the Exchange Act as may be required in connection with this
Agreement and the transactions contemplated hereby, and except for such other
consents as are obtained or waived prior to the Closing Date, or (iii) conflict
with or result in any breach or default (with or without notice or lapse of time
or both) or violate any loan agreement, note, mortgage, indenture, lease or
other obligation, instrument, order, writ, injunction, decree, statute, rule or
regulation applicable to Purchaser or any of its properties or assets.
4.3 ERISA Certification. Purchaser has read and comprehends the ERISA
Certification referred to in Section 5.3(a) and attached hereto as Exhibit A
(the "ERISA Certification"), has completed and executed the ERISA Certification
and has delivered the same to GREAT simultaneously with the execution of this
Agreement.
4.4 Information Supplied. None of the information to be supplied by
Purchaser in connection with the Proxy Statement will, at the date mailed to
shareholders and at the time of the Special Meeting, contain any untrue
statement of a material fact or omit 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 are made, not misleading.
4.5 No Brokers' or Other Fees. No broker, finder or investment banker
is entitled to any brokerage, finder or other fee or commission in connection
with the transaction contemplated by this Agreement based upon arrangements made
by or on behalf of Purchaser or its Affiliates for which GREAT shall be liable
or obligated.
4.6 Investment Intent. Purchaser has read and comprehends the
definition of "Accredited Investor" set forth in Section 1.1 hereof, and is an
"Accredited Investor." Purchaser is acquiring the Purchased Common Shares for
the purpose of investment only and not with a view to or for sale in connection
with any distribution thereof (other than in a transaction which is either
registered under the Act or which is exempt from such registration). Purchaser
hereby acknowledges that (i) copies of the SEC Filings have been provided or
made available to Purchaser and (ii) Purchaser has been given an opportunity to
ask questions of, and receive written answers from, GREAT and its executive
officers concerning the terms and conditions of the Private Placement, and to
obtain any additional written information (to the extent GREAT possesses such
information or can acquire it without unreasonable expense or effort) necessary
to verify the accuracy of the information contained therein.
4.7 REIT Qualification Matters. To Purchaser's knowledge, no Person
which would be treated as an "individual" for purposes of Section 542(a)(2) of
the Code (as modified by Section 856(h) of the Code) owns or would be considered
to own (taking into account the ownership attribution rules under Section 544 of
the Code as modified by Section 856(h) of the Code) in excess of 5.0% of the
value of the outstanding equity interest in Purchaser.
4.8 Investment Company Matters. Purchaser is not, and after giving
effect to the purchase of the Purchased Common Shares hereunder, will not be, an
"investment company" or an entity "controlled" by an "investment company", as
such terms are defined in the Investment Company Act of 1940, as amended.
4.9 Ownership of Tenants. Purchaser does not own, directly or
indirectly, an interest in a tenant of GREAT listed on Schedule 4.9, which
interest is equal to or greater than (i) 10% of the combined voting power of all
classes of stock of such tenant, (ii) 10% of the total number of shares in all
classes of stock of such tenant, or (iii) if such tenant is not a corporation,
10% of the assets or net profits of such tenant. For purposes of this Section,
the ruled prescribed by Section 318(a) of the Code, for determining the
ownership of stock, as modified by Section 856(d)(5) of the Code, shall apply in
determining direct and indirect ownership of stock, assets, or net profits.
GREAT shall advise Purchaser within a reasonable period of time prior to the
Closing of any material changes to Schedule 4.9.
ARTICLE V
Covenants of Great and Purchaser
5.1 Covenants of GREAT. GREAT covenants and agrees with Purchaser as
follows:
(a) Access. Between the date of this Agreement and the Closing Date, and subject
to any limitations imposed by Section 5(c) of the Act, GREAT shall (and shall
cause its Subsidiaries to) give Purchaser and its counsel, accountants and other
representatives access to, and furnish Purchaser and its representatives with,
all documents, copies of documents, financial and operating data and other
information concerning the property and affairs of GREAT as Purchaser may from
time to time reasonably request.
(b) Shareholder Meeting. GREAT shall call a
special meeting of its shareholders(the "Special Meeting") to be held as
promptly as practicable for the purpose of voting upon the issuance and sale of
Common Shares pursuant to the Private Placement (including the Purchased Shares)
and certain other matters. GREAT filed on November 21, 1996 with the SEC under
the Exchange Act, and shall use its best efforts to clear with the SEC, a proxy
statement with respect to the Special Meeting (together with any amendments and
supplements thereto, the "Proxy Statement"). At the Special Meeting, GREAT will,
through its Board of Trust Managers, recommend to its shareholders approval of
all proposals (the "Current Proposals") included in the Proxy Statement as filed
with the SEC on November 21, 1996.
(c) Stock Exchange Listing. Prior to the Closing Date, the Purchased Common
Shares to be issued pursuant to this Agreement shall be approved for listing on
the AMEX, subject to official notice of issuance.
(d) Ancillary Agreements. GREAT shall cause the Registration Rights Agreement to
be executed by a duly authorized officer on behalf of GREAT at or prior to the
Closing and shall use all reasonable efforts to obtain the execution of the
Registration Rights Agreement by the other parties thereto (other than
Purchaser) effective on the Closing.
(e) Best Efforts. Subject to the terms and conditions of this Agreement, GREAT
shall use its best efforts to take, or cause to be taken, all reasonable action,
and to do, or cause to be done, all reasonable things necessary, proper or
advisable under the applicable laws and regulations to cause the conditions
specified in Article VI to be satisfied and otherwise to consummate and make
effective the transactions contemplated by this Agreement.
(f) Material Adverse Changes; SEC Filings; Financial Statements.
(i) GREAT will promptly notify Purchaser of any event of which GREAT obtains
knowledge which has had or might reasonably be expected to have a Material
Adverse Effect or which might reasonably be expected to result in the
non-satisfaction of any condition set forth in Article VI.
(ii) Prior to the Closing, GREAT will timely file with the SEC all disclosure
documents, including each Quarterly Report on Form 10-Q, Current Report on
Form 8-K and Annual Report on Form 10-K, required to be filed by GREAT
under the Exchange Act and the rules and regulations promulgated
thereunder. As of their respective dates, none of such reports shall
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(iii)Each of the financial statements included in GREAT's Forms 10-Q and Form
10-K referred to in clause (ii) shall be prepared in accordance with GAAP
consistently applied during the periods covered (except as disclosed
therein), except that the quarterly financial statements may omit (y)
statements of changes in financial position and footnote disclosures
required by GAAP to the extent the content thereof would not materially
differ from those disclosures reported in the most recent annual financial
statement, and (z) year-end adjustments to the extent not material.
5.2 Covenants of Purchaser. Purchaser covenants and agrees with GREAT as
follows:
(a) Confidentiality. Subject to the requirements of applicable law, Purchaser
shall, and shall use all reasonable efforts to cause its officers, employees and
agents who obtain such information to, hold in confidence all non-public
information obtained from GREAT until such time as such information is otherwise
available to Purchaser without breach of an agreement with Purchaser or becomes
publicly available.
(b) Proxy Statement. Purchaser shall cooperate with GREAT in the preparation of
the Proxy Statement and shall provide to GREAT any information regarding
Purchaser required or deemed advisable by GREAT or its advisors to be included
in the Proxy Statement. None of the information to be supplied by Purchaser
expressly for inclusion in the Proxy Statement, or in any amendments or
supplements thereto, will, at the time of (x) the first delivery or mailing
thereof or (y) the Special Meeting, contain any untrue statement of a material
fact or omit 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. At the Special Meeting called
pursuant to Section 5.1(b), Purchaser shall vote all Common Shares owned by it
(if any) in favor of approval and adoption of each of the Current Proposals.
(c) Ancillary Agreements. Purchaser shall cause the Registration Rights
Agreementto be executed on behalf of Purchaser and delivered to GREAT at or
prior to the Closing.
(d) Best Efforts. Subject to the terms and conditions of this Agreement,
Purchaser shall use its best efforts to take, or cause to be taken, all
reasonable actions, and to do, or cause to be done, all reasonable things
necessary, proper or advisable under the applicable laws and regulations to
cause the conditions specified in Article VII to be satisfied and otherwise to
consummate and make effective the transactions contemplated by this Agreement.
5.3 ERISA Covenants.
(a) ERISA Certification. Simultaneous with the execution of
this Agreement, Purchaser shall review, complete and deliver to GREAT an ERISA
Certification, substantially in the form of Exhibit A hereto (the "ERISA
Certification").
(b) Adjustment to Purchased Common Shares. The parties hereby
acknowledge and agree that, notwithstanding any prior agreement between the
parties or anything to the contrary contained herein, in the event that
Purchaser is a "benefit plan investor" (as defined in the ERISA Certification),
GREAT may, in its sole discretion, by delivery of a notice to Purchaser at any
time prior to the Closing, reduce the number of Common Shares that constitute
the Purchased Common Shares hereunder, and such reduction shall not affect
Purchaser's obligations hereunder except as specifically contemplated by Section
5.3(c). GREAT's notice shall set forth (i) the number of Common Shares which
shall thereafter constitute the Purchased Shares hereunder and (ii) the Purchase
Price for the Purchased Shares, as reduced in accordance with Section 5.3(c).
(c) Adjustment to Purchase Price. In the event that the number
of Common Shares which constitutes the Purchased Common Shares is reduced
pursuant to Section 5.3(b) hereof, the Purchase Price to be paid by Purchaser
hereunder shall be reduced accordingly, and shall thereafter be equal to the
product of (i) the Purchase Price Per Common Share and (ii) the number of Common
Shares constituting the Purchased Common Shares, after giving effect to the
reduction pursuant to Section 5.3(b).
(d) Restrictions on Transfer. In addition to any other restrictions on
the transfer of the Purchased Common Shares, whether contained in the Charter,
GREAT's Bylaws or elsewhere, in no event may a transfer of any interest in a
Purchased Common Share be made unless, prior to such transfer, (i) the proposed
transferee delivers to GREAT a completed and executed ERISA Certification, and
(ii) GREAT determines, in its sole discretion, that such transfer would not
cause any portion of its assets to be deemed to be "plan assets" for purposes of
the fiduciary requirements of ERISA and the prohibited transaction provisions of
ERISA and/or Internal Revenue Code Section 4975.
ARTICLE VI
Conditions of Purchaser's Obligations at Closing
The obligations of Purchaser set forth in Article II are
subject to the fulfillment or waiver by Purchaser on or before the Closing Date
of each of the following conditions:
6.1 Representations and Warranties. The representations and
warranties of GREAT contained in Article III shall be true in all material
respects on and as of the Closing Date with the effect as though such
representations and warranties had been made on and as of the Closing Date.
6.2 Performance. GREAT shall have performed and complied in
all material respects with all agreements, obligations and conditions contained
in this Agreement that are required to be performed or complied with by it on or
before the Closing Date.
6.3 Compliance Certificate. GREAT shall deliver to Purchaser
at the Closing a certificate, in the form of Exhibit C hereto, duly executed by
an authorized officer on behalf of GREAT, certifying that the conditions
specified in Sections 6.1 and 6.2 have been satisfied.
6.4 No Litigation. There shall be no order, decree or
injunction of a court of competent jurisdiction which, as of the Closing Date,
stays or prohibits the transactions contemplated by this Agreement.
6.5 Consents and Waivers. Any and all consents or waivers from
other parties to any agreements, or consents, waivers or permits from other
Persons, that are required in connection with the consummation by Purchaser or
GREAT of the transactions contemplated by this Agreement shall have been
obtained, including, without limitation, the approval of GREAT's shareholders of
the Current Proposals.
6.6 Ancillary Agreements. The Registration Rights
Agreement shall have been duly and validly executed by the parties thereto
(other than Purchaser) and shall be in full force and effect.
6.7 Minimum Private Placement. The aggregate gross proceeds
received by GREAT from the concurrent sale of Common Shares hereunder and to
other purchasers of Common Shares in the Private Placement shall be not less
than $15,000,000.
ARTICLE VII
Conditions of GREAT's Obligations at Closing
The obligations of GREAT set forth in Article II are subject
to the fulfillment or waiver by GREAT on or before the Closing of each of the
following conditions:
7.1 Representations and Warranties. The representations and
warranties of Purchaser contained in Article IV shall be true on and as of the
Closing Date with the same effect as though such representations and warranties
had been made on and as of the Closing Date.
7.2 Purchase Price. Purchaser shall have delivered the
Purchase Price to GREAT.
7.3 Compliance Certificate. Purchaser shall deliver to GREAT
at the Closing a certificate, in the form of Exhibit B hereto, duly executed by
or on behalf of Purchaser, certifying that the conditions specified in Sections
7.1 and 7.4 have been satisfied.
7.4 Performance. Purchaser shall have performed and complied
in all material respects with all agreements, obligations and conditions
contained in this Agreement that are required to be performed or complied with
by it on or before the Closing Date.
7.5 No Litigation. There shall not be any action, suit,
proceeding, hearing or investigation or order, decree or injunction of any
nature or type threatened, pending or made by or before any governmental body
that questions or challenges the lawfulness of the transactions contemplated by
this Agreement or in connection with any of the Consolidation Transactions under
any law or regulation or seeks to delay, restrain or prevent or obtain damages
in respect of such transactions.
7.6 Consents and Waivers. Any and all consents or waivers from
other parties to any agreements or consents, waivers or permits from other
Persons that are required in connection with the consummation by Purchaser or
GREAT of the transactions contemplated in this Agreement shall have been
obtained, including without limitation approval of the Current Proposals by
GREAT's shareholders.
7.7 Ancillary Agreements. The Registration Rights
Agreement shall have been duly and validly executed by the parties thereto
(other than GREAT) and shall be in full force and effect.
7.8 ERISA Certification. Purchaser shall have reviewed,
completed and delivered to GREAT the ERISA Certification.
7.9 Minimum Private Placement. The aggregate gross proceeds
received by GREAT from the concurrent sale of Common Shares hereunder and to
other purchasers of Common Shares in the Private Placement shall be not less
than $15,000,000.
7.10 "Consolidation Transactions". The closing under the
Contribution Agreement (as described in the Proxy Statement), the Exchange Offer
and the Refinancing (as described in the Proxy Statement) shall have occurred,
or all of the conditions thereto shall have been satisfied so that the closings
thereunder occur concurrently with the sale of the Purchased Shares.
ARTICLE VIII
MISCELLANEOUS
8.1 Successors and Assigns. Neither party may assign any of
its rights or delegate any of its duties under this Agreement with out the prior
written consent of the other party hereto. Except as otherwise provided herein,
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective permitted successors and assigns of the parties.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors any rights,
remedies, obligations or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
8.2 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of New York as applied to agreements among
New York residents entered into and to be performed entirely within New York,
except that the internal corporate affairs of GREAT shall be governed by the
laws of Maryland applicable thereto.
8.3 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.4 Captions. The captions used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement.
8.5 Notices. Any notice, request, instruction or other
document to be given hereunder by any party hereto to another party hereto shall
be in writing, shall be deemed to have been duly given or delivered when
delivered personally or telecopied (receipt confirmed, with a copy sent by
certified or registered mail as set forth herein) or sent by certified or
registered mail, postage prepaid, return receipt requested, or by Federal
Express or other overnight delivery service, to the address of the party set
forth below or to such address as the party to whom notice is to be given may
provide in a written notice to GREAT, a copy of which written notice shall be on
file with the Secretary of GREAT:
(a) To GREAT:
Grove Real Estate Asset Trust
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xx. Xxxxxx XxXxxxxx, Chief Financial Officer
and Secretary
With copies to:
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx Xxxxxxx, Esq.
(b) To Purchaser:
=============================
=============================
Telecopier No.:_________________
Telephone No.:_________________
Attention:______________________
8.6 Expenses. Whether or not the Closing occurs, GREAT and
Purchaser shall each pay all costs and expenses that it incurs with respect to
the negotiation, execution, delivery and performance of this Agreement.
8.7 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only by a writing executed by each of GREAT and Purchaser.
8.8 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision(s) shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms to the fullest extent permitted by law.
8.9 Publicity. GREAT and Purchaser shall continue to consult
with each other before issuing any press releases or otherwise making any public
statement with respect to this Agreement and the transactions contemplated
hereby, and they shall not issue any such press release or make any such public
statement prior to such consultation, except as may, in the judgment of counsel,
be required by law or by obligations pursuant to any securities laws or listing
agreement with any national securities exchange.
8.10 Further Assurances. Each of the parties shall, without
further consideration, use reasonable efforts to execute and deliver to the
other such additional documents and take such other action as the other may
reasonably request to carry out the intent of this Agreement and the
transactions contemplated hereby.
8.11 Entire Agreement. This Agreement, including the exhibits
hereto, the documents, schedules, certificates and referred to herein, together
with the Registration Rights Agreement, embodies the entire agreement and
understanding of the parties hereto in respect of the transactions contemplated
by such agreements. There are no restrictions promises, inducements,
representations, warranties, covenants or undertakings, other than those
expressly set forth or referred to herein. This Agreement supersedes all prior
written or oral agreements and understandings between the parties with respect
to such transactions.
8.12 Survival. All representations and warranties and
covenants of the parties contained in this Agreement shall survive the Closing.
ARTICLE IX
Termination
9.1 Termination Events. This Agreement may be
terminated and the transactions contemplated hereby may be abandoned at any
time before the Closing Date:
(a) by mutual written agreement of Purchaser and GREAT;
(b) by either GREAT or Purchaser at any time after April 30,
1997 if, at the time notice of such termination is given, the Closing has not
occurred, unless the failure of such occurrence shall be due to the failure of
the party seeking to terminate this Agreement to perform or observe any material
covenant or agreement set forth herein required to be performed or observed by
such party on or before the Closing Date;
(c) by Purchaser (if it is not in breach of any of its
material obligations hereunder) in the event of a breach or failure by GREAT
that is material in the context of the transactions contemplated hereby of any
representation, warranty, covenant or agreement by GREAT contained herein which
has not been, or cannot be, cured within 30 days after written notice of such
breach is given to GREAT; or
(d) Purchaser (if it is not in breach of any of its material
obligations hereunder) in the event of a breach or failure by GREAT that is
material in the context of the transactions contemplated hereby of any
representation, warranty, covenant or agreement by GREAT contained herein which
has not been, or cannot be, cured within 30 days after written notice of such
breach is given to GREAT.
The power of termination provided for by this Section 9.1 shall be effective
only after notice thereof, duly executed on behalf of the party for which it is
given, shall have been given to the other.
9.2 Procedure Upon Termination; Liabilities. In the event of a
termination of this Agreement by either or both of GREAT and Purchaser pursuant
to Section 9.1, notice thereof shall forthwith be given by the terminating party
to the other party, and this Agreement shall thereupon terminate and become void
and have no further effect, and the transactions contemplated hereby shall be
abandoned without further action by the parties hereto, except that the
provisions of Section 5.2(a) (Confidentiality), 8.6 (Expenses), 8.2 (Governing
Law), and 8.5 (Notices), and any related definitional, interpretive or other
provisions necessary for the logical interpretation of such provisions, shall
survive the termination of this Agreement; provided, however, that such
termination shall not relieve any party hereto of any liability for any breach
of this Agreement.
IN WITNESS WHEREOF, Purchaser and GREAT have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
----------------------------
Insert Purchaser's Name
By:______________________________
Name:
Title:
GROVE REAL ESTATE ASSET TRUST
By:______________________________
Xxxxx Xxxxxxx
Chief Executive Officer
Exhibit A
ERISA CERTIFICATION
Reference is made to that certain Securities Purchase Agreement (the
"Agreement"), dated as of January __, 1997, between Grove Real Estate Asset
Trust ("GREAT") and _____________ ("Purchaser"). Capitalized terms used but not
defined herein shall have the meanings ascribed to such terms in the Agreement.
This is the ERISA Certification referred to in, and contemplated by,
Section 5.3(a) of the Agreement.
The United States Department of Labor (the "DOL") has promulgated 29
CFR 2510.101 (the "DOL Regulation") defining the term "plan assets" for purposes
of the fiduciary requirements of Employee Retirement Income Security Act of
1974, as amended ("ERISA") and the prohibited transaction provisions of ERISA
and Internal Revenue Code Section 4975. Under the DOL Regulation, when an
employee benefit plan or an entity that holds the assets of an employee benefit
plan ("Benefit Plan Investors") makes an equity investment in another entity,
the underlying assets of that entity generally will be considered plan assets
unless one of the exceptions contained in the DOL Regulation is met. In order to
avoid having its assets deemed to be plan assets of any Benefit Plan Investor
that purchases Common Shares in the Private Placement, GREAT has determined to
restrict the number of Common Shares purchased by Benefit Plan Investors in the
Private Placement. In order to permit GREAT to comply with this restriction,
Purchaser hereby certifies the following under penalties of perjury [check one]:
It is not a Benefit Plan Investor.
It is a Benefit Plan Investor because it is [Check Applicable Category]:
an employee welfare benefit plan or employee pension benefit
plan, as those terms are defined in ERISA Section 3, whether or
not such plan is subject to ERISA (including, without
limitation: (i) a pension, profit sharing, stock bonus or
employee stock ownership plan that is qualified under Internal
Revenue Code Section 401(a), and is established for the benefit
of the employees of any employer or is a "Xxxxx" plan
established for the benefit of a self-employed individual (or
the partners of a partnership), or (ii) a governmental plan (as
defined in ERISA);
an individual retirement account or annuity described in
Internal Revenue Code Section 408; or
any other entity or account the underlying assets of which are
deemed to be "plan assets," within the meaning of 29 CFR
Section 2510.3-101 (including, without limitation, a bank
collective investment vehicle or group trust or an insurance
company separate account) as follows [describe]:
==========================================
==========================================
==========================================
Purchaser acknowledges that, notwithstanding anything set forth in the
Agreement to the contrary, in the event that Purchaser is a "Benefit Plan
Investor," as defined in the DOL Regulation, and GREAT determines, in its sole
discretion, that the ownership by Benefit Plan Investors of Common Shares issued
in the Private Placement should be restricted to avoid having the assets of the
Purchaser deemed to be "plan assets" for purpose of the fiduciary requirements
of ERISA and the prohibited transaction provisions of ERISA and/or Internal
Revenue Code Section 4975, (a) the number of Common Shares which constitute the
Purchased Common Shares to be purchased by Purchaser under the Agreement will be
reduced in accordance with Section 5.3(b) thereof to the extent that GREAT, in
its sole discretion, deems necessary or appropriate and (b) the Purchase Price
to be paid by Purchaser for the Purchased Common Shares thereunder will be
reduced accordingly in accordance with Section 5.3(c) thereof.
IN WITNESS WHEREOF, Purchaser has executed this ERISA Certification as
of this ___ day of ______________, 1997.
----------------------------
Insert Purchaser's Name
By:___________________________
Name:
Title:
Exhibit B
PURCHASER'S COMPLIANCE CERTIFICATE
Pursuant to Section 7.3 of the Securities Purchase Agreement (the
"Agreement"), dated January __, 1997, between ____________________,
("Purchaser") and Grove Real Estate Asset Trust ("GREAT"), the undersigned is
duly authorized to certify on behalf of Purchaser, and hereby certifies on
behalf of Purchaser that:
1. The representations and warranties of Purchaser contained
in the Agreement are true as of the date hereof, as though such
representations and warranties had been made on the date hereof.
2. Purchaser has performed and complied in all material
respects with all agreements, obligations and conditions contained in
the Agreement that were required to be performed or complied with by
Purchaser on or before the date hereof.
IN WITNESS WHEREOF, the undersigned has set his hand this __ day of
___________________, 1997.
--------------------------------
Insert Name of Purchaser
By:_____________________________
Name:
Title:
Exhibit C
GREAT's COMPLIANCE CERTIFICATE
Pursuant to Section 6.3 of the Securities Purchase Agreement (the
"Agreement"), dated January __, 1997, between ____________________,
("Purchaser") and Grove Real Estate Asset Trust ("GREAT"), the undersigned, the
Secretary of GREAT, hereby duly certifies on behalf of GREAT that:
1. The representations and warranties of GREAT contained in
the Agreement are true in all material respects as of the date hereof,
as though such representations and warranties had been made on the date
hereof.
2. GREAT has performed and complied in all material respects
with all agreements, obligations and conditions contained in the
Agreement that were required to be performed or complied with by GREAT
on or before the date hereof.
IN WITNESS WHEREOF, the undersigned has set his hand this __ day of
___________________, 1997.
GROVE REAL ESTATE ASSET TRUST
By:_____________________________
Xxxxxx X. XxXxxxxx
Secretary
Exhibit D
RECEIPT
Reference is made to the Securities Purchase Agreement (the
"Agreement"), dated January __, 1997, between ____________________ ("Purchaser")
and Grove Real Estate Asset Trust ("GREAT"). Capitalized terms used but not
defined herein shall have the meanings ascribed to such terms in the Agreement.
GREAT hereby acknowledges receipt, on the date hereof, of
$_____________ in respect of the Purchase Price, as such amount may have been
adjusted from time to time prior to the date hereof in accordance with Section
5.3(c) of the Agreement.
Purchaser hereby acknowledges receipt, on the date hereof, the
certificate(s) listed on Schedule A hereto representing an aggregate of _______
Common Shares, which Common Shares constitute the Purchased Common Shares, as
such number of Common Shares may have been adjusted from time to time prior to
the date hereof in accordance with Section 5.3(b) of the Agreement.
GROVE REAL ESTATE ASSET TRUST
By:_______________________________
Xxxxxx X. XxXxxxxx
Chief Financial Officer
--------------------------------------
Insert Name of Purchaser
By:___________________________________
Name:
Title:
Schedule A
Certificate(s) Representing Purchased Shares
