Exhibit 10.1
STOCK PURCHASE AGREEMENT
dated as of December 31, 1999
by and between
Xxxxxxx X. Xxxxxxxx
and
International Realty Group, Inc.
with respect to all of the
outstanding capital stock of
Appraisal Group International, Inc.
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT, dated as of December 31, 1999
(this "AGREEMENT"), is made and entered into by and between Xxxxxxx X. Xxxxxxxx,
an individual resident of the State of Florida ("PURCHASER"), and International
Realty Group, Inc., a Delaware corporation ("SELLER"). Capitalized terms not
specifically defined in this Agreement have the meanings set forth in SECTION
11.01(a).
WHEREAS, Seller owns One Hundred (100) shares of common stock,
par value One Dollar ($1.00) per share ("AGII COMMON STOCK"), of Appraisal Group
International, Inc., a Florida corporation (the "COMPANY"), constituting all of
the issued and outstanding shares of capital stock of the Company (the "AGII
SHARES"); and
WHEREAS, Seller desires to sell, and Purchaser desires to
purchase, the AGII Shares on the terms and subject to the conditions set forth
in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I.
SALE OF SHARES AND CLOSING
1.01 PURCHASE AND SALE. Seller agrees to sell to Purchaser,
and Purchaser agrees to purchase from Seller, all of the right, title and
interest in and to the AGII Shares at the Closing on the terms and subject to
the conditions set forth in this Agreement.
1.02 PURCHASE PRICE. The aggregate purchase price (the
"PURCHASE PRICE") for the AGII Shares shall consist of:
(a) Eight Hundred Thousand (800,000) shares of Seller's common
stock, par value $0.001 per share ("IRG COMMON STOCK"), owned by Purchaser (the
"INITIAL SHARES"); and
(b) Four Hundred Thousand (400,000) shares of Seller's IRG
Common Stock owned by Purchaser (the "ESCROW SHARES"), subject to adjustment in
accordance with SECTION 1.04.
1.03 CLOSING. The closing of the sale and purchase of the AGII
Shares under this Agreement (the "CLOSING") will take place at the offices of
Xxxxx & XxXxxxxx, 000 Xxxx Xxxxxxxx, Xxxxxxx Xxxxx, Xxx Xxxxx, XX 00000, at
10:00 A.M. local time on February 24, 2000, or at such other place or time as
may be mutually agreed upon by Purchaser and Seller (the "CLOSING DATE"). At the
Closing:
(a) Seller will assign and transfer to Purchaser good and
valid title in and to the AGII Shares, free and clear of all Liens, by
delivering to Purchaser a certificate or certificates
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representing the AGII Shares, in genuine and unaltered form, duly endorsed in
blank or accompanied by duly executed stock powers endorsed in blank;
(b) Purchaser will assign and transfer to Seller good and
valid title in and to the Initial Shares, free and clear of all Liens, and will
issue irrevocable transfer instructions, in form and substance satisfactory to
Seller and its counsel, to Purchaser's broker or Seller's transfer agent, and
any subsequent transfer agent, to effect the transfer of the Initial Shares to
Seller;
(c) Purchaser will deposit the Escrow Shares with American
Securities Transfer & Trust, Inc. as escrow agent (the "ESCROW AGENT"), under an
escrow agreement to be executed and delivered by Seller, Purchaser and the
Escrow Agent on the Closing Date (the "ESCROW AGREEMENT"), in the form attached
hereto as EXHIBIT A; and
(d) Seller and Purchaser shall execute and deliver the
respective certificates set forth in ARTICLES VI and VII.
1.04 ESCROW. The Escrow Agent shall release to Seller the
Escrow Shares on the third anniversary of the Closing Date (the "ESCROW
TERMINATION DATE"), pursuant to the terms and conditions of the Escrow
Agreement; PROVIDED, HOWEVER, that, if, at any time between the Closing Date and
the Escrow Termination Date, the Fair Market Value of the IRG Common Stock
exceeds $0.50 per share (such amount per share to be adjusted proportionately
for any stock split, combination or similar event), then Purchaser shall have
the right, but not the obligation, to adjust the number of the Escrow Shares
deliverable to Seller under SECTION 1.02(b) in accordance with the adjustment
procedure set forth in Section 2 of the Escrow Agreement.
1.05 ADDITIONAL AGREEMENTS. Concurrently herewith: (i)
Purchaser and Seller will execute and deliver the separation and general release
agreement in the form attached hereto as EXHIBIT B (the "SEPARATION AGREEMENT,"
and, collectively with the Escrow Agreement, the "OPERATIVE AGREEMENTS"); and
(ii) Purchaser will execute and deliver the resignation letter (the "DIRECTOR
RESIGNATION LETTER") with respect to Purchaser's resignation as a member of
Seller's Board of Directors, in the form attached hereto as EXHIBIT C.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as follows:
2.01 ORGANIZATION OF SELLER. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Seller has full corporate power and authority to execute and deliver
this Agreement and the Operative Agreements to which it is a party and to
perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby, including, without limitation, to
sell and transfer the AGII Shares pursuant to this Agreement.
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2.02 AUTHORITY. The execution and delivery by Seller of this
Agreement and the Operative Agreements to which it is a party, and the
performance by Seller of its obligations hereunder and thereunder, have been
duly and validly authorized by the Board of Directors of Seller, and no other
corporate action on the part of Seller or its stockholders is necessary. This
Agreement and the Operative Agreements to which it is a party have been duly and
validly executed and delivered by Seller and, upon the due and valid execution
and delivery by Purchaser of this Agreement and such Operative Agreements to
which it is a party, this Agreement and such Operative Agreements will
constitute, legal, valid and binding obligations of Seller enforceable against
Seller in accordance with their respective terms.
2.03 NO CONFLICTS. The execution and delivery by Seller of
this Agreement do not, and the execution and delivery by Seller of the Operative
Agreements to which it is a party, the performance by Seller of its obligations
under this Agreement and such Operative Agreements and the consummation of the
transactions contemplated hereby and thereby will not:
(a) conflict with or result in a material violation or breach
of any term or provision of any material Law or Order applicable to Seller or
any of its material Assets and Properties; or
(b) (i) conflict with or result in a material violation or
breach of, (ii) constitute (with or without notice or lapse of time or both) a
material default under, (iii) require Seller to obtain any consent, approval or
action of, make any filing with or give any notice to any Person as a result or
under the terms of or (iv) result in the creation or imposition of any material
Lien upon Seller or any of its Assets and Properties under any Contract or
License to which Seller is a party or by which any of its Assets and Properties
is bound.
2.04 LEGAL PROCEEDINGS. There are no Actions or Proceedings
pending or, to the knowledge of Seller, threatened against, relating to or
affecting Seller or any of its Assets and Properties which could reasonably be
expected to result in the issuance of an Order restraining, enjoining or
otherwise prohibiting or making illegal the consummation of any of the
transactions contemplated by this Agreement or any of the Operative Agreements
to which Seller is a party.
2.05 BROKERS. All negotiations relative to this Agreement and
the transactions contemplated hereby have been carried out by Seller directly
with Purchaser without the intervention of any Person on behalf of Seller in
such manner as to give rise to any valid claim by any Person against Purchaser
or any of its Affiliates for a finder's fee, brokerage commission or similar
payment.
2.06 TITLE TO SHARES. Seller is the record and beneficial
owner and holder of the AGII Shares. Upon the transfer of the AGII Shares to
Purchaser, Purchaser will have good and marketable legal and beneficial title to
the AGII Shares, free and clear of any Liens.
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ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
3.01 NO CONFLICTS. The execution and delivery by Purchaser of
this Agreement do not, and the execution and delivery by Purchaser of the
Operative Agreements to which it is a party, the performance by Purchaser of its
obligations under this Agreement and such Operative Agreements and the
consummation of the transactions contemplated hereby and thereby will not:
(a) conflict with or result in a material violation or breach
of any term or provision of any material Law or Order applicable to Purchaser or
any of its material Assets and Properties; or
(b) (i) conflict with or result in a material violation or
breach of, (ii) constitute (with or without notice or lapse of time or both) a
material default under, (iii) require Purchaser to obtain any consent, approval
or action of, make any filing with or give any notice to any Person as a result
or under the terms of or (iv) result in the creation or imposition of any
material Lien upon Purchaser or any of its Assets and Properties under any
Contract or License to which Purchaser is a party or by which any of its Assets
and Properties is bound.
3.02 LEGAL PROCEEDINGS. There are no Actions or Proceedings
pending or, to the knowledge of Purchaser, threatened against, relating to or
affecting Purchaser or any of its Assets and Properties which could reasonably
be expected to result in the issuance of an Order restraining, enjoining or
otherwise prohibiting or making illegal the consummation of any of the
transactions contemplated by this Agreement or any of the Operative Agreements
to which Purchaser is a party.
3.03 BROKERS. All negotiations relative to this Agreement and
the transactions contemplated hereby have been carried out by Purchaser directly
with Seller without the intervention of any Person on behalf of Purchaser in
such manner as to give rise to any valid claim by any Person against Seller, the
Company or any of their respective Affiliates for a finder's fee, brokerage
commission or similar payment.
3.04 INVESTMENT REPRESENTATIONS. Purchaser understands that
the AGII Shares have not been registered under the Securities Act of 1933, as
amended (the "SECURITIES ACT"). Purchaser also understands that the AGII Shares
are being offered and sold pursuant to an exemption from registration contained
in the Securities Act based in part upon Purchaser's representations contained
in this Agreement. Purchaser hereby represents and warrants as follows:
(a) PURCHASER BEARS ECONOMIC RISK. Purchaser understands that
it must bear the economic risk of its acquisition and ownership of the AGII
Shares indefinitely, unless the AGII Shares are registered pursuant to the
Securities Act, or an exemption from registration is available.
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(b) ACQUISITION FOR OWN ACCOUNT. Purchaser is acquiring the
AGII Shares for Purchaser's own account for investment only, and not with a view
towards their distribution.
(c) PURCHASER CAN PROTECT ITS INTEREST. Purchaser has
substantial knowledge of and experience concerning the operations, management
and financial condition of the Company and has evaluated the merits and risks of
its acquisition of the AGII Shares. Purchaser represents that by reason of its
business and financial experience and substantial knowledge of and involvement
in the management and operations of the Company, Purchaser has the capacity to
protect its own interests in connection with the transactions contemplated by
this Agreement and the Operative Agreements. Further, Purchaser is aware of no
publication of any advertisement in connection with the transactions
contemplated in this Agreement.
(d) ACCREDITED INVESTOR. Purchaser represents that it is an
accredited investor within the meaning of Regulation D under the Securities Act.
(e) COMPANY INFORMATION. Purchaser has served as an executive
officer and director of Seller and the Company and has substantial knowledge and
experience regarding the business, management, operations, facilities and
financial condition of the Company. Purchaser has also had the opportunity to
ask questions of and receive answers from the Company and its management
regarding the terms and conditions of the acquisition of the AGII Shares.
(f) RESTRICTED SECURITIES. Purchaser acknowledges and agrees
that the AGII Shares are "restricted securities" (as defined under Rule 144
promulgated under the Securities Act) and must be held indefinitely unless they
are subsequently registered under the Securities Act or an exemption from
registration is available.
(g) RESIDENCE. Purchaser resides in the state or province
identified in the address of the Purchaser set forth in the preamble of this
Agreement.
3.05 TITLE TO SHARES. As of the date hereof and on and through
the Closing Date: (i) Purchaser is the record and beneficial owner and holder of
the Initial Shares and the Escrow Shares, free and clear of any Liens; (ii)
there are no Contracts relating to the issuance, sale or transfer of any of the
Initial Shares or the Escrow Shares; and (iii) upon the transfer of the Initial
Shares and the Escrow Shares to Seller, Seller will have good and marketable
legal and beneficial title to the Initial Shares and the Escrow Shares, free and
clear of any Liens.
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ARTICLE IV.
COVENANTS OF SELLER
4.01 COMPANY RECORDS. Seller hereby covenants that it will
deliver any and all books, records and corporate documents relating to the
Company to Purchaser as soon as reasonably practicable after the Closing.
4.02 BEST EFFORTS. Seller shall use its best efforts to
consummate the transactions contemplated by this Agreement and the Operative
Agreements to which it is a party.
ARTICLE V.
COVENANTS OF PURCHASER
5.01 "AS IS" ACKNOWLEDGMENT. Purchaser acknowledges and agrees
that he has substantial knowledge of and experience concerning the operations,
management and financial condition of the Company, and that Seller has made no
representation, warranty or assurance as to the current or future performance of
the Company. Purchaser is acquiring the Company "as is" and "where is" as of the
Closing Date, without any express or implied warranties as to the fitness,
merchantability or condition of the Company's Assets and Properties, the
existence of any Liabilities of the Company or its Assets and Properties, or as
to any other matter. Purchaser further acknowledges that no express or implied
warranty, representation, covenant or agreement whatsoever has been made to or
for Purchaser with respect to any licenses, permits, certificates or similar
governmental approvals required for the operation of the Company after the
Closing.
5.02 BEST EFFORTS. Purchaser shall use its best efforts to
consummate the transactions contemplated by this Agreement and the Operative
Agreements to which it is a party.
5.03 TITLE TO ESCROW SHARES. From the date hereof until the
Escrow Termination Date, Purchaser covenants that it will neither incur any
Liens or other obligations with respect to the Escrow Shares nor enter into any
Contracts relating to the issuance, sale or transfer of any of the Escrow Shares
except as otherwise provided for in this Agreement.
ARTICLE VI.
CONDITIONS TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser hereunder to purchase the AGII
Shares are subject to the satisfaction, at or before the Closing, of each of the
following conditions (all or any of which may be waived in whole or in part by
Purchaser in its sole discretion):
6.01 REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by Seller in this Agreement shall be true
and correct in all material respects on and as of the Closing Date as though
such representations and warranties were made on and as of the Closing Date, and
any representation or warranty made as of a specified date earlier than the
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Closing Date shall have been true and correct in all material respects on and as
of such earlier date.
6.02 PERFORMANCE. Seller shall have performed and complied
with, in all material respects, each agreement, covenant and obligation required
by this Agreement to be so performed or complied with by Seller on or before the
Closing.
6.03 OFFICERS' CERTIFICATES. Seller shall deliver a
certificate stating that all of the representations and warranties of Seller
contained herein or in the other Operative Agreements are true and correct on
and as of the date of the Closing as if made on such date and that no breach of
any covenant contained in ARTICLE IV has occurred or would result from such
Closing.
6.04 ORDERS AND LAWS. There shall not be in effect on the
Closing Date any Order or Law that became effective after the date of this
Agreement restraining, enjoining or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated by this Agreement or any of
the Operative Agreements.
6.05 THIRD PARTY CONSENTS. All consents (or in lieu thereof
waivers) to the performance by Seller of its obligations under this Agreement
and the Operative Agreements or to the consummation of the transactions
contemplated hereby and thereby as are required under any Contract to which
Purchaser, Seller, the Company or any Subsidiary is a party or by which any of
their respective Assets and Properties are bound (a) shall have been obtained,
(b) shall be in form and substance reasonably satisfactory to Purchaser, (c)
shall not be subject to the satisfaction of any condition that has not been
satisfied or waived and (d) shall be in full force and effect, except where the
failure to obtain any such consent (or in lieu thereof waiver) could not
reasonably be expected, individually or in the aggregate with other such
failures, to materially adversely affect Purchaser or the Business or Condition
of the Company or otherwise result in a material diminution of the benefits of
the transactions contemplated by this Agreement and the Operative Agreements to
Purchaser.
6.06 PROCEEDINGS. All proceedings to be taken on the part of
Seller in connection with the transactions contemplated by this Agreement and
all documents incident thereto shall be reasonably satisfactory in form and
substance to Purchaser, and Purchaser shall have received copies of all such
documents and other evidences as Purchaser may reasonably request in order to
establish the consummation of such transactions and the taking of all
proceedings in connection therewith.
6.07 ADDITIONAL AGREEMENTS. Seller shall have executed and
delivered to Purchaser the Escrow Agreement.
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ARTICLE VII.
CONDITIONS TO OBLIGATIONS OF SELLER
The obligations of Seller hereunder to sell the Shares are
subject to the satisfaction, at or before the Closing, of each of the following
conditions (all or any of which may be waived in whole or in part by Seller in
its sole discretion):
7.01 REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by Purchaser in this Agreement shall be true
and correct in all material respects on and as of the Closing Date as though
such representations and warranties were made on and as of the Closing Date.
7.02 PERFORMANCE. Purchaser shall have performed and complied
with, in all material respects, each agreement, covenant and obligation required
by this Agreement to be so performed or complied with by Purchaser at or before
the Closing.
7.03 OFFICERS' CERTIFICATES. Purchaser shall deliver a
certificate stating that all of the representations and warranties of Purchaser
contained herein or in the other Operative Agreements are true and correct on
and as of the date of the Closing as if made on such date and that no breach of
any covenant contained in ARTICLE V has occurred or would result from such
Closing.
7.04 ORDERS AND LAWS. There shall not be in effect on the
Closing Date any Order or Law that became effective after the date of this
Agreement restraining, enjoining or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated by this Agreement or any of
the Operative Agreements.
7.05 THIRD PARTY CONSENTS. All consents (or in lieu thereof
waivers) to the performance by Purchaser of its obligations hereunder and to the
consummation of the transactions contemplated hereby as are required under any
Contract (a) shall have been obtained, (b) shall be in form and substance
reasonably satisfactory to Seller, (c) shall not be subject to the satisfaction
of any condition that has not been satisfied or waived and (d) shall be in full
force and effect, except where the failure to obtain any such consent (or in
lieu thereof waiver) could not reasonably be expected, individually or in the
aggregate with other such failures, to materially adversely affect Seller or
otherwise result in a material diminution of the benefits of the transactions
contemplated by this Agreement and the Operative Agreements to Seller.
7.06 PROCEEDINGS. All proceedings to be taken on the part of
Purchaser in connection with the transactions contemplated by this Agreement and
all documents incident thereto shall be reasonably satisfactory in form and
substance to Seller, and Seller shall have received copies of all such documents
and other evidences as Seller may reasonably request in order to establish the
consummation of such transactions and the taking of all proceedings in
connection therewith.
7.07 ADDITIONAL AGREEMENTS. Purchaser shall have executed and
delivered to Seller the Escrow Agreement, the Separation Agreement and the
Director Resignation Letter.
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ARTICLE VIII.
SURVIVAL OF REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS
8.01 SURVIVAL. All representations, warranties, covenants and
agreements of the parties contained in this Agreement, or in any instrument,
certificate, opinion, or other writing provided for in it, shall survive the
Closing.
ARTICLE IX.
INDEMNIFICATION
9.01 PURCHASER'S INDEMNIFICATION. Purchaser shall indemnify,
defend and hold harmless Seller and its Affiliates against and in respect of any
and all claims, demands, Losses, costs, expenses, obligations, Liabilities,
damages, recoveries and deficiencies, including interest, penalties and
reasonable attorneys' fees that they shall incur or suffer, which arise, result
from or relate to any breach of, or failure by Purchaser to perform, any of its
representations, warranties, covenants or agreements in this Agreement or any
instrument furnished or to be furnished by Purchaser under this Agreement.
9.02 SELLER'S INDEMNIFICATION. Seller shall indemnify, defend
and hold harmless Purchaser against and in respect of any and all claims,
demands, Losses, costs, expenses, obligations, Liabilities, damages, recoveries
and deficiencies, including interest, penalties and reasonable attorneys' fees
that it shall incur or suffer, which arise, result from or relate to any breach
of, or failure by Seller to perform, any of its representations, warranties,
covenants or agreements in this Agreement or any instrument furnished or to be
furnished by Seller under this Agreement.
ARTICLE X.
TERMINATION
10.01 TERMINATION FOR CAUSE. Any party having the right to
terminate this Agreement due to a failure of a condition precedent contained in
ARTICLES VI or VII hereto may terminate this Agreement by delivering to the
other party written notice of termination, and thereupon, this Agreement will be
terminated without obligation or liability of any party.
10.02 TERMINATION WITHOUT CAUSE. Anything herein or elsewhere
to the contrary notwithstanding, this Agreement may be terminated and abandoned
at any time without further obligation or liability on the part of any party in
favor of any other by mutual written consent of Purchaser and Seller.
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ARTICLE XI.
DEFINITIONS
11.01 DEFINITIONS.
(a) DEFINED TERMS. As used in this Agreement, the following
defined terms have the meanings indicated below:
"AAA" has the meaning set forth in SECTION 12.07 of this
Agreement.
"ACTIONS OR PROCEEDINGS" means any action, suit, proceeding,
arbitration or Governmental or Regulatory Authority investigation or audit.
"AGII COMMON STOCK" has the meaning set forth in the recitals
of this Agreement.
"AGII SHARES" has the meaning set forth in the recitals of
this Agreement.
"AGREEMENT" means this Stock Purchase Agreement and the
exhibits, the disclosure schedule and the schedules hereto and the certificates
delivered in accordance with ARTICLES VI and VII, as the same shall be amended
from time to time.
"ASSETS AND PROPERTIES" of any Person means all assets and
properties of every kind, nature, character and description (whether real,
personal or mixed, whether tangible or intangible, whether absolute, accrued,
contingent, fixed or otherwise and wherever situated), including the goodwill
related thereto, operated, owned or leased by such Person, including without
limitation cash, cash equivalents, Investment Assets, accounts and notes
receivable, chattel paper, documents, instruments, general intangibles, real
estate, equipment, inventory, goods and Intellectual Property.
"BUSINESS DAY" means a day other than Saturday, Sunday or any
day on which banks located in the state of Seller's principal executive offices
are authorized or obligated to close.
"BUSINESS OR CONDITION OF THE COMPANY" means the business,
condition (financial or otherwise), results of operations, Assets and Properties
and prospects of the Company and the Subsidiaries taken as a whole.
"CLOSING" has the meaning set forth in SECTION 1.03 of this
Agreement.
"CLOSING DATE" has the meaning set forth in SECTION 1.03 of
this Agreement.
"COMPANY" has the meaning set forth in the recitals of this
Agreement.
"CONTRACT" means any agreement, lease, license, evidence of
Indebtedness, mortgage, indenture, security agreement or other contract (whether
written or oral).
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"DIRECTOR RESIGNATION LETTER" has the meaning set forth in
SECTION 1.05 of this Agreement.
"ESCROW AGENT" and "ESCROW AGREEMENT" have the respective
meanings set forth in SECTION 1.03(c) of this Agreement.
"ESCROW SHARES" has the meaning set forth in SECTION 1.02(b)
of this Agreement.
"ESCROW TERMINATION DATE" has the meaning set forth in SECTION
1.04 of this Agreement.
"FAIR MARKET VALUE" shall mean the average market price of IRG
Common Stock over a specified period of ten (10) Business Days of Normal
Trading, where market price means, for IRG Common Stock as of any date:
(i) the closing price for such security during Normal Trading
on the O.T.C. Bulletin Board;
(ii) if the O.T.C. Bulletin Board is not the principal
securities exchange or trading market for such security, then the closing price
during Normal Trading of such security on the principal securities exchange or
trading market where such security is listed or traded as reported by such
principal securities exchange or trading market;
(iii) if the foregoing do not apply, then the closing price
during Normal Trading of such security in the over-the-counter market on the
electronic bulletin board for such security; or
(iv) if no closing price is reported for such security, then
the average of the bid prices of any market makers for such security as reported
in the "pink sheets" by the National Quotation Bureau, Inc.
If the Fair Market Value cannot be calculated for such
security on such date on any of the foregoing bases, then the Fair Market Value
of such security on such date shall be the fair market value as determined by
Seller's Board of Directors in good faith; PROVIDED, HOWEVER, that, if Purchaser
does not agree with such determination by Seller's Board of Directors, then
Purchaser shall appoint, at Purchaser's sole cost and expense, an independent
third party appraiser, reasonably satisfactory to Seller, to determine such Fair
Market Value.
"GAAP" means generally accepted accounting principles,
consistently applied throughout the specified period and in the immediately
prior comparable period.
"GOVERNMENTAL OR REGULATORY AUTHORITY" means any court,
tribunal, arbitrator, authority, agency, commission, official or other
instrumentality of the United States, any foreign country or any domestic or
foreign state, county, city or other political subdivision.
"INDEBTEDNESS" of any Person means all obligations of such
Person (i) for borrowed money, (ii) evidenced by notes, bonds, debentures or
similar instruments, (iii) for the deferred purchase price of goods or services
(other than trade payables or accruals incurred in the ordinary course of
business), (iv) under capital leases and (v) in the nature of guarantees of the
obligations described in clauses (i) through (iv) above of any other Person.
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"INITIAL SHARES" has the meaning set forth in SECTION 1.02(A)
of this Agreement.
"INTELLECTUAL PROPERTY" means all patents and patent rights,
trademarks and trademark rights, trade names and trade name rights, service
marks and service xxxx rights, service names and service name rights, brand
names, inventions, processes, formulae, copyrights and copyright rights, trade
dress, business and product names, logos, slogans, trade secrets, industrial
models, processes, designs, methodologies, computer programs (including all
source codes) and related documentation, technical information, manufacturing,
engineering and technical drawings, know-how and all pending applications for
and registrations of patents, trademarks, service marks and copyrights.
"INVESTMENT ASSETS" means all debentures, notes and other
evidences of Indebtedness, stocks, securities (including rights to purchase and
securities convertible into or exchangeable for other securities), interests in
joint ventures and general and limited partnerships, mortgage loans and other
investment or portfolio assets owned of record or beneficially by the Company or
any Subsidiary and issued by any Person other than the Company or any Subsidiary
(other than trade receivables generated in the ordinary course of business of
the Company and the Subsidiaries).
"IRG COMMON STOCK" has the meaning set forth in SECTION
1.02(a) of this Agreement.
"LAWS" means all laws, statutes, rules, regulations,
ordinances and other pronouncements having the effect of law of the United
States, any foreign country or any domestic or foreign state, county, city or
other political subdivision or of any Governmental or Regulatory Authority.
"LIABILITIES" means all Indebtedness, obligations and other
liabilities of a Person (whether absolute, accrued, contingent, fixed or
otherwise, or whether due or to become due).
"LIENS" means any mortgage, pledge, assessment, security
interest, lease, lien, adverse claim, levy, charge or other encumbrance of any
kind, or any conditional sale Contract, title retention Contract or other
Contract to give any of the foregoing.
"LOSS" means any and all damages, fines, fees, penalties,
deficiencies, losses and expenses (including without limitation interest, court
costs, fees of attorneys, accountants and other experts or other expenses of
litigation or other proceedings or of any claim, default or assessment).
"NORMAL TRADING" shall mean trading that occurs between 9:30
AM and 4:00 PM, New York City time, on any Business Day, and shall expressly
exclude "after hours" trading.
"OPERATIVE AGREEMENTS" means the Escrow Agreement, the
Separation Agreement and any support or other agreements to be entered into in
connection with the transactions contemplated by this Agreement.
"ORDER" means any writ, judgment, decree, injunction or
similar order of any Governmental or Regulatory Authority (in each such case
whether preliminary or final).
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"PERSON" means any natural person, corporation, general
partnership, limited partnership, proprietorship, other business organization,
trust, union, association or Governmental or Regulatory Authority.
"PURCHASE PRICE" has the meaning set forth in SECTION 1.02 of
this Agreement
"PURCHASER" has the meaning set forth in the preamble of this
Agreement.
"SECURITIES ACT" has the meaning set forth in SECTION 3.04 of
this Agreement.
"SELLER" has the meaning set forth in the preamble of this
Agreement.
"SEPARATION AGREEMENT" has the meaning set forth in SECTION
1.05 of this Agreement.
"SUBSIDIARY" means any Person in which the Company, directly
or indirectly through Subsidiaries or otherwise, beneficially owns more than
fifty percent (50%) of either the equity interests in, or the voting control of,
such Person.
(b) CONSTRUCTION OF CERTAIN TERMS AND PHRASES. Unless the
context of this Agreement otherwise requires: (i) words of any gender include
each other gender; (ii) words using the singular or plural number also include
the plural or singular number, respectively; (iii) the terms "hereof," "herein,"
"hereby" and derivative or similar words refer to this entire Agreement; (iv)
the terms "Article" or "Section" refer to the specified Article or Section of
this Agreement; (v) the phrases "ordinary course of business" and "ordinary
course of business consistent with past practice" refer to the business and
practice of the Company or a Subsidiary; (vi) the words "include," "includes"
and "including" when used herein shall be deemed in each case to be followed by
the words "without limitation;" and (vii) the headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever this Agreement refers to a
number of days, such number shall refer to calendar days unless Business Days
are specified. All accounting terms used herein and not expressly defined herein
shall have the meanings given to them under GAAP.
ARTICLE XII.
MISCELLANEOUS
12.01 NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed given on receipt if delivered personally
or by commercial delivery service (including overnight delivery) or sent via
facsimile (with confirmation of receipt), or seventy-two (72) hours after being
mailed by registered or certified mail (return receipt requested) to the parties
at the following addresses (or at such other address for a party as shall be
specified by like notice):
(a) if to Seller, to:
International Realty Group, Inc.
Xx. Xxxxxxxxxxxxxx 000
00
Xxxxxx, D. F. 11810
ATTN: Chief Executive Officer
FAX: 000-000-000-0000
PHONE: 000-000-000-0000
with copies to:
Xxxxx & XxXxxxxx
000 Xxxx Xxxxxxxx, Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
ATTN: Xxxxxx X. Xxxxxxx, Esq.
FAX: (000) 000-0000
PHONE: (000) 000-0000
(b) if to Purchaser, to:
Xxxxxxx X. Xxxxxxxx
000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
PHONE: (000) 000-0000
12.02 REPRESENTATION BY COUNSEL. Each of Seller and Purchaser
acknowledges that it has had the opportunity to consult with independent counsel
of its own choice concerning this Agreement, and that it has taken advantage of
that opportunity to the extent desired. Each of Seller and Purchaser further
acknowledges that it has read and understands this Agreement, is fully aware of
its legal effect, and has entered into it voluntarily based on its own judgment.
12.03 INTERPRETATION. Each of the parties and its counsel has
reviewed this Agreement and provided revisions thereto; the rule of construction
to the effect that ambiguities are construed against the drafter shall not be
used in the interpretation of this Agreement.
12.04 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original as against any
party whose signature appears on such counterpart and all of which shall be
considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other party, it being understood that all parties need not sign the same
counterpart.
12.05 SEVERABILITY. In the event that any provision of this
Agreement, or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.
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12.06 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties concerning the subject matter hereof and supersedes
all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof.
12.07 DISPUTE RESOLUTION. This Agreement will be governed and
construed by and under the laws of the State of Delaware without regard to the
application of the principles of conflict of laws, and, subject to the
arbitration provisions set forth below. Seller and Purchaser will submit all
disputes arising out of or related to these terms and conditions or to the
performance, breach or termination of this Agreement, or between the parties, to
binding arbitration pursuant to the Expedited Procedures of the Commercial
Arbitration Rules ("RULES") of the American Arbitration Association ("AAA"). The
arbitration will take place in San Diego, California at the offices of the AAA.
The dispute will be resolved by a single arbitrator appointed by the AAA in
accordance with the list procedure described in Paragraph 13 of the Rules. The
parties expressly agree that prior to the selection of the arbitrator, nothing
in this Agreement will prevent the parties from applying to a court that would
otherwise have jurisdiction for provisional or interim injunctive or other
equitable measures. After the arbitrator is selected, he will have sole
jurisdiction to hear such applications, except that the parties agree that any
measure ordered by the arbitrator may be immediately and specifically enforced
by a court otherwise having jurisdiction over the parties. The prevailing party
shall be entitled to reasonable attorneys' fees and costs. All fees and costs
will be allocated to the parties to the arbitration as determined by the
arbitrator. To the extent that the state or federal law under which a party's
claim arises provides for the award of attorneys' fees to the prevailing party,
the arbitrator is empowered to award such fees. The parties submit to the
exclusive jurisdiction of any court sitting in the County of San Diego, State of
California, for the resolution of any dispute or enforcement of any right
arising our of or relating to this section, and waive any objection to the venue
or personal jurisdiction of said courts.
12.08 ASSIGNMENT. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by Purchaser
(whether by operation of law or otherwise) without the prior written consent of
Seller. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns.
12.09 THIRD PARTY BENEFICIARIES. Nothing contained in this
Agreement is intended to confer upon any person other than the parties hereto
and their respective successors and permitted assigns, any rights, remedies or
obligations under, or by reason of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officer of each party hereto as of the date first above
written.
SELLER:
INTERNATIONAL REALTY GROUP, INC.
By: /s/ Xxxxx Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxx Xxxxxx
Title: Chief Executive Officer
PURCHASER:
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx
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