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EXHIBIT 10.1
CALL OPTION, PUT OPTION AND PURCHASE PRICE ADJUSTMENT
AGREEMENT (this "Agreement") dated as of March 17, 1998, by and between
Apartment Investment and Management Company, a Maryland corporation ("AIMCO"),
and _________ (the "Stockholder").
WHEREAS, the Stockholder beneficially owns (i) an aggregate of
______________________ shares of Common Stock, par value $.01 per share ("IFG
Stock"), of Insignia Financial Group, Inc. ("IFG"), (ii) options and/or
warrants to purchase an aggregate of __________ shares of IFG Stock, but only
to the extent they are outstanding on the Call Option Trigger Date (as
hereinafter defined) or the Put Option Trigger Date (as hereinafter defined),
and if any option or warrant is exercised, then the number of shares of IFG
Stock shall be increased by the number of shares received upon such exercise
(collectively, "Insignia Options"), and (iii) ________ shares of beneficial
interest, par value $0.01 per share ("IPT Stock"), of Insignia Properties Trust
("IPT");
WHEREAS, AIMCO, IFG and Insignia/ESG, Inc., a Delaware
corporation ("SpinCo"), are entering into an Agreement and Plan of Merger dated
as of the date hereof (the "Merger Agreement"), which provides, among other
things, for the merger of IFG with and into AIMCO, with AIMCO as the surviving
corporation; and
WHEREAS, in order to induce AIMCO to enter into the Merger
Agreement and in further consideration thereof, the Stockholder has agreed to
grant AIMCO the Call Option (as hereinafter defined) on the terms and subject
to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the parties hereto intending
to be legally bound agree as follows:
1. Grant of Call Option; Price Protection; Put Option.
(a) Upon the terms and subject to the conditions contained herein, the
Stockholder hereby grants AIMCO an irrevocable option (the "Call Option") to
purchase in the aggregate 45% of the shares of IFG Stock, 45% of the shares of
IFG Stock issuable upon the exercise of the Insignia Options and 45% of the
shares of IPT Stock (collectively, the "Stockholder's Shares"); provided,
however, in the event (a) the Spin Off has occurred or (b) the Merger Agreement
is terminated by Target pursuant to Section 9.1(e) thereof, or pursuant to
Section 9.1(b), (c) or (d) of the Merger Agreement following the making of an
Acquisition Proposal, unless such Acquisition Proposal relates only to SpinCo
(whether or not the Spin Off has occurred), "Stockholder's Shares" shall mean
100% of
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the shares of IFG Stock, 100% of the shares of IFG Stock issuable upon the
exercise of the Insignia Options and 100% of the shares of IPT Stock. The per
share purchase price for each share of IFG Stock shall be $25.00 per share (the
"IFG Per Share Purchase Price") and the per share purchase price for each share
of IPT Stock shall be $13.25 per share; provided, however, that in the event
the Spin Off has occurred, the IFG Per Share Purchase Price shall be reduced to
$11.00 per share. The aggregate purchase price for the Stockholder's Shares
shall be payable by AIMCO at the Closing (as hereinafter defined) by wire
transfer in immediately available funds to an account or accounts designated by
the Stockholder prior to the Closing Date (as hereinafter defined).
If during the term of this Agreement AIMCO increases the
Merger Consideration payable pursuant to the Merger Agreement in response to an
Acquisition Proposal, then the IFG Per Share Purchase Price for the
Stockholder's Shares shall be increased by the amount of the increase of the
Merger Consideration. If any portion of the Merger Consideration is payable
in a form of consideration that is not cash, then AIMCO and the Stockholder
shall mutually determine the dollar value of the non-cash portion of the Merger
Consideration (it being understood that for the purposes of this Agreement the
Merger Consideration set forth in the Merger Agreement is valued by the parties
at $25.00 per share, and the Independent Appraiser (as defined below) shall be
bound by such valuation). If AIMCO and the Stockholder are unable to agree on
the dollar value of such non-cash consideration, then the IFG Per Share
Purchase Price shall be immediately increased to the lower of (a) the estimate
of the dollar value of such non-cash consideration offered by AIMCO and (b) the
estimate of the dollar value of such non-cash consideration offered by the
Stockholder, but in no case shall the IFG Per Share Purchase Price be less than
$25 per share before the Spin Off has occurred or less than $11 per share after
the Spin Off has occurred and no less than the lower of clause (a) or (b) above
(the "Agreed Price"). The IFG Per Share Purchase Price shall later be adjusted
to the extent that the Independent Appraiser provides an appraisal of the
dollar value of the non-cash portion of the increase in the Merger
Consideration offered by AIMCO. "Independent Appraiser" shall mean that
independent qualified appraiser jointly selected by AIMCO and the Stockholder.
AIMCO and the Stockholder shall each bear one-half of the cost of any appraisal
provided by the Independent Appraiser, and shall instruct the Independent
Appraiser to render his report within 30 days.
In the event that, after payment of the Aggregate Purchase
Price to the Stockholder pursuant to this Section 1(a) or Section 1(c) hereof,
the Independent Appraiser delivers an appraisal report to AIMCO and the
Stockholder which indicates that the IFG Per Share Purchase Price is subject to
adjustment pursuant to this Section 1(a), then if the appraisal report
indicates that the Agreed Price was lower than indicated
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by such appraisal report, then AIMCO shall, within 10 days, wire transfer
immediately available funds to an account or accounts designated by the
Stockholder the difference between the value set forth in such appraisal report
and the amount theretofore paid to the Stockholder pursuant to this Section
1(a) or Section 1(c) hereof.
The "Aggregate Purchase Price" shall mean the aggregate
purchase price for the Stockholder's Shares as established pursuant to the
preceding portions of this Section 1(a).
(b) Upon the terms and subject to the conditions contained
herein, AIMCO hereby grants to Stockholder the irrevocable right (the "Price
Protection Right") to receive from AIMCO an amount (the "Price Protection
Payment") equal to the difference between (i) the Aggregate Purchase Price and
(ii) (a) the average closing sale price per share of IFG Stock on the New York
Stock Exchange (the "NYSE") for the three (3) trading days preceding the date
on which the Stockholder gives written notice to exercise its Purchase Price
Right multiplied by 45% of the aggregate number of shares of IFG Stock plus the
aggregate number of shares of IFG Stock issuable upon the exercise of the
Insignia Options which are subject to the Price Protection Right plus (b) the
average closing sale price per share of IPT Stock on the securities exchange or
listing or quotation service on which the IPT Stock is traded for the three (3)
trading days preceding the date on which the Stockholder gives written notice
to exercise its Price Protection Right, or $13.25, if IPT Stock is not then
listed on any securities exchange or listing or quotation services multiplied
by 45% of the aggregate number of shares of IPT Stock subject to the Price
Protection Right; provided, however, that in the event that (i) the Spin Off
has occurred or (ii) the Merger Agreement is terminated by Target pursuant to
Section 9.1(e) thereof, or pursuant to Section 9.1(b), (c) or (d) of the Merger
Agreement following the making of an Acquisition Proposal, unless such
Acquisition Proposal relates only to SpinCo (whether or not the Spin Off has
occurred), before the Closing with respect to the Price Protection Trigger
Event (as hereinafter defined), "Price Protection Payment" shall mean an amount
equal to the difference between (i) the Aggregate Purchase Price giving effect
to the Spin Off (if the Spin Off has occurred) and (ii) (a) the average
closing sale price per share of IFG Stock on the NYSE for the three (3) trading
days preceding the date the Stockholder gives written notice to exercise its
Price Protection Right multiplied by the sum of 100% of the shares of IFG Stock
plus the aggregate number of shares of IFG Stock issuable upon the exercise of
the Insignia Options which are subject to the Price Protection Right plus (b)
the average closing sale price per share of IPT Stock on the securities
exchange or listing or quotation service on which the IPT Stock is traded for
the three (3) trading days preceding the date on which the Stockholder gives
written notice to exercise its
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Price Protection Right, or $13.25 if the IPT Stock is not then listed on any
securities exchange or listing or quotation service, multiplied by 100% of the
shares of IPT Stock subject to the Price Protection Right. The Price
Protection Payment shall be payable by wire transfer in immediately available
funds to an account or accounts designated by the Stockholder prior to the
Closing Date.
(c) Upon the terms and subject to the conditions contained
herein, AIMCO hereby grants to the Shareholder an irrevocable option (the "Put
Option") to sell to AIMCO the Stockholder's Shares. The per share purchase
price for each share of IFG Stock purchased in connection with the Put Option
shall be the IFG Per Share Purchase Price and the per share purchase price for
each share of IPT Stock purchased in connection with the Put Option shall be
$13.25 per share; provided, however, that in the event the Spin Off has
occurred, the IFG Per Share Purchase Price shall be reduced to $11.00 per
share. The Aggregate Purchase Price shall be payable by AIMCO at the Closing
by wire transfer in immediately available funds to an account or accounts
designated by the Stockholder prior to the Closing Date.
2. Term of Call Option, Price Protection Right and Put
Option. Each of the Call Option, the Price Protection Right and the Put Option
shall commence on the date hereof and shall expire on the Termination Date (the
"Expiration Date"). "Termination Date" means the earlier to occur of (i) the
time immediately prior to the Effective Time (as defined in the Merger
Agreement), and (ii) five business days after the occurrence of either, a Call
Option Trigger Event, a Put Option Trigger Event or a Price Protection Trigger
Event, provided that if AIMCO or the Stockholder, as the case may be, provides
written notice to the other party of its wish to exercise the Call Option, in
the case of AIMCO, or the Price Protection Right or the Put Option, in the case
of the Stockholder, then ten business days after the earliest of (a) delivery
of the written notice, if any, exercising the Call Option, (b) delivery of the
written notice, if any, exercising the Price Protection Right, if there has
been no Call Option Trigger Event or if no exercise of the Call Option has been
delivered, (c) delivery of the written notice, if any, exercising the Put
Option and (d) the satisfaction or waiver of the applicable conditions set
forth in the first paragraph of Section 3 hereof.
3. Exercise of Call Option, Price Protection Right and
Put Option. Subject to the provisions set forth below, each of the Call
Option, the Price Protection Right or the Put Option may be exercised by either
AIMCO or the Stockholder, as the case may be, at any time on and after the date
hereof through and including the Expiration Date; provided that (a) no statute,
rule, regulation, court order, or injunction shall have been enacted, entered,
promulgated or enforced, and be in force, by any court
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or governmental authority which prohibits the consummation of the purchase and
sale of the Stockholder's Shares hereunder; (b) any waiting period applicable
to the purchase and sale of the Stockholder's Shares hereunder under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 0000 (xxx "XXX Xxx") shall have
expired or been terminated; (c) a Call Option Trigger Event, with respect to
exercise, if any, of the Call Option shall have occurred prior to the
Termination Date; and (d) a Price Protection Trigger Event, with respect to
exercise, if any, of the Price Protection Right, shall have occurred prior to
the Termination Date and (e) a Put Option Trigger Event, with respect to
exercise, if any, of the Put Option, shall have occurred prior to the
Termination Date; provided, further, that in the case of the Price Protection
Right or the Put Option (x) the representations and warranties of the
Stockholder contained in Section 5 hereof shall be true and correct in all
material respects as of the Closing Date with the same force and effect as
though the same had been made on and as of the Closing Date; and (y) the
Stockholder shall have performed and complied in all material respects with
each of its obligations under this Agreement required to be performed by it at
or prior to the Closing Date. For purposes of this Agreement, a "Call Option
Trigger Event" means the date on which the Merger Agreement has been terminated
for any reason prior to consummation of the Merger, other than termination due
to (aa) failure of any waiting period under the HSR Act applicable to the
Merger to have expired or terminated, (bb) any permanent injunction or other
order by any federal or state court preventing consummation of the Merger or
(cc)(i) Target validly terminating the Merger Agreement pursuant to Section
9.1(b)(i) thereof and (ii) the absence of a right by AIMCO to validly terminate
the Merger Agreement pursuant to Section 9.1(b)(i) thereof. For purposes of
this Agreement, "Price Protection Trigger Event" means the date which is five
business days after the occurrence of a Call Option Trigger Event, provided
that no exercise of the Call Option has been delivered by the last day for the
giving of such notice. For purposes of this Agreement, a "Put Option Trigger
Event" means the date on which the Merger Agreement has been validly terminated
by Target pursuant to Section 9.1(b)(i) thereof, but if, and only if, AIMCO did
not have the right to validly terminate the Merger Agreement pursuant to
Section 9.1(b)(i) thereof on the date of such termination.
In the event AIMCO wishes to exercise the Call Option, or the
Stockholder wishes to exercise the Price Protection Right or the Put Option,
such exercising party shall send written notice (which shall be irrevocable) to
the other party specifying that it wishes to purchase the Stockholder's Shares,
in the case of the Call Option, receive the Price Protection Payment, in the
case of the Price Protection Right, or sell the Stockholder's Shares, in the
case of the Put Option, and a date (the "Closing Date") for the closing of such
purchase or receipt of such payment (a "Closing"). Such notice shall be sent
no later than the fifth business day following the Call Option Trigger
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Event, the Price Protection Trigger Event or the Put Option Trigger Event, as
the case may be. The Closing shall take place on the tenth business day after
the earliest of (a) delivery of the written notice, if any, exercising the Call
Option, (b) delivery of the written notice, if any, exercising the Price
Protection Right, (c) delivery of the written notice, if any, exercising the
Put Option, and (d) the satisfaction or waiver of the applicable conditions set
forth in the preceding paragraph, at the offices of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx or at such other place
as may be mutually agreed upon by AIMCO and the Stockholder. Until either the
Call Option, in the case of AIMCO, or the Price Protection Right or the Put
Option, in the case of the Stockholder, has been exercised and AIMCO has paid
the Aggregate Purchase Price or the Price Protection Payment, as the case may
be, in full as provided for in Section 1 hereof, the parties hereto agree that
the Stockholder shall own the Stockholder's Shares and Insignia Options for all
purposes.
In the event AIMCO delivers written notice exercising the Call
Option, Stockholder shall, immediately prior to the Closing, exercise the
Insignia Options and purchase from IFG the shares of IFG Stock issuable upon
the exercise of the Insignia Options. Concurrent with Stockholder's exercise
of the Insignia Options, AIMCO shall loan to Stockholder an amount equal to the
aggregate exercise price of the Insignia Options in consideration for a
promissory note payable on demand (the "Promissory Note") which shall be
secured by all the shares of IFG Stock owned by Stockholder, the Insignia
Options and the IFG Stock acquired upon the exercise of the Insignia Options
and with full recourse against the Stockholder. The Promissory Note shall bear
interest at a rate equal to AIMCO's weighted average cost of funds.
If the person signing this Agreement is Xxxxxx Xxxxxx, he
agrees that in the event the Call Option is exercised and he is unable to
deliver any of the Stockholder's Shares for any reason including, without
limitation, because Metropolitan Asset Partners IV L.P. ("MAP IV") and/or
Metropolitan Asset Partners V L.P. ("MAP V") have not distributed shares to Xx.
Xxxxxx for any reason, he will be in breach of this Agreement and liable to
AIMCO for damages.
4. Payment and Delivery of Certificates. At any
Closing pursuant to an exercise of the Call Option, the Price Protection Right
or the Put Option hereunder:
(a) AIMCO will make payment to the Stockholder of the
Aggregate Purchase Price or the Price Protection Payment, as the case may be,
as provided for in Section 1 hereof in immediately available funds.
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(b) In the event of the exercise of the Call Option or the Put
Option, Stockholder shall deliver to AIMCO certificates evidencing
Stockholder's Shares, in form ready for transfer, duly endorsed in blank with
all signatures guaranteed by a member firm of the New York Stock Exchange or by
a national bank. At the Closing, and from time to time thereafter, Stockholder
shall execute and deliver such other documents and instruments, and take such
other actions, as AIMCO may reasonably request, in order to more fully vest in
AIMCO and perfect its title to Stockholder's Shares.
5. Representations and Warranties of Stockholder.
Except as set forth on Schedule 5 attached hereto, the Stockholder represents
and warrants to AIMCO that: (a) Stockholder has duly authorized, executed and
delivered this Agreement and this Agreement is a legal, valid and binding
obligation of Stockholder, enforceable against Stockholder in accordance with
its terms; and neither the execution of this Agreement nor the consummation by
such Stockholder of the transactions contemplated hereby will constitute a
violation of or default under, or conflict with, any contract, commitment,
agreement, understanding, arrangement or restriction of any kind to which such
Stockholder is a party or by which Stockholder is bound; (b) as of the date
hereof, the Shares and Insignia Options listed on Annex A to this Agreement
represent all the shares of IFG Stock and IPT Stock and Insignia Options as to
which the Stockholder has a pecuniary beneficial interest (other than through a
limited partnership of which he or his controlled entity is not a general
partner) and (as to restricted stock and Insignia Options) are vested, and
there are no options, warrants or rights to purchase or acquire, or agreements
relating to, the Stockholder's Shares and Insignia Options other than this
Agreement, and the instruments permitting or effectuating the grant of
restricted stock and Insignia Options; (c) upon dissolution of MAP IV and MAP
V, the Stockholder will have (without exception) good title to the
Stockholder's Shares and Insignia Options free and clear of all claims, liens,
charges, encumbrances and security interest of any nature whatsoever, except
that the Stockholder may have pledged all or part of the Stockholder's Shares
to a bona fide financial institution if (unless the person signing this
Agreement is one of Messrs. Aston, Garrison, or Uretta) such institution agrees
in writing to be bound by this Agreement, and the Stockholder will transfer to
AIMCO good title to the Stockholder's Shares other than the Insignia Options,
free and clear of all claims, liens, charges, encumbrances and security
interests of any nature whatsoever placed thereon by the Stockholder or, if the
person signing this Agreement is Xxxxxx X. Xxxxxx, by MAP IV and MAP V; (d)
except for the Voting Agreement and the Proxy, the Stockholder is not a party
to or otherwise bound by any proxy, voting agreement or restriction which
affects the voting rights of the Shares or any shares underlying the
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Insignia Options or any capital stock or other security of IFG; and (e) in the
case of a Stockholder which is a trust, the undersigned individual trustees of
such trust are lawful and duly appointed trustees of such trust and have full
power and authority on behalf of such trust to enter into this Agreement and
to consummate the transactions contemplated hereby.
6. Representations and Warranties of AIMCO. AIMCO
represents and warrants to the Stockholder as follows: (a) AIMCO is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Maryland; (b) AIMCO has full power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby; (c) the execution, delivery and performance of this
Agreement by AIMCO and the consummation by it of the transactions contemplated
hereby have been approved by all necessary corporate action on the part of
AIMCO; (d) this Agreement constitutes the legal, valid and binding obligation
of AIMCO; and (e) AIMCO is purchasing the Stockholder's Shares for investment
only and not with a view to the distribution thereof.
7. Covenants of the Stockholder. (a) The Stockholder
shall not transfer, pledge, hypothecate, sell, exchange or offer to transfer or
sell or otherwise dispose of or encumber or grant any proxy or consent with
respect to any of the Shares or Insignia Options at any time prior to the
Termination Date, except that the Stockholder may execute the Voting Agreement
and the Irrevocable Proxy, dated as of the date hereof, by and between the
parties hereto (the "Voting Agreement and the Proxy"), sell the Insignia Options
to IFG after the Spin Off and prior to the consummation of the Merger or pledge
all or part of the Stockholder's Shares to a bona fide financial institution
which agrees in writing to be bound by this Agreement.
(b) The Stockholder, in his or its capacity as a holder
of Shares and Insignia Options, agrees that prior to the Closing the
Stockholder will retain record (to the extent he or it possesses record
ownership as of the date hereof) and beneficial ownership of all of the
Stockholder's Shares and (except as contemplated by Section 7(a)) the Insignia
Options.
(c) If this Agreement is signed by Xxxxxx X. Xxxxxx, in
the event that (a) at the time of delivery of the Call Option Notice or (b) at
any time following an Acquisition Proposal (as defined in the Merger Agreement)
upon the written request of AIMCO, Xx. Xxxxxx does not own of record any of the
Stockholder's Shares and such shares are beneficially owned by MAP IV or MAP V,
Xx. Xxxxxx in his capacity as the
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sole stockholder and director of Metro Shelter Directives, Inc., the sole
general partner of MAP IV, and in his capacity as the sole stockholder and
director of MV Inc., the sole general partner of MAP V, will cause each of MAP
IV and MAP V to distribute, within three business days following delivery of
the Call Option or within three business days following AIMCO's written
request, to him the number of shares of IFG Stock set forth on Annex A.
8. Resale of AIMCO Shares. The Stockholder hereby
agrees that unless he or it receives prior written consent of AIMCO, such
Stockholder will not sell, assign, transfer or otherwise dispose of any shares
of capital stock of AIMCO obtained pursuant to the Merger, or enter into any
negotiations, commitments or agreements with respect to any such disposition,
during the period ending on the second anniversary of the consummation of the
Merger, as applicable; provided; however, such Stockholder may dispose of any
such capital stock to a family member or related trust or estate planning
vehicle if such person, trust or entity agrees in writing to be bound by the
provisions of this Agreement, or may pledge all or part of the shares of
capital stock of AIMCO held by the Stockholder to a bona fide financial
institution which agrees in writing to be bound by this Agreement; provided
further, that the Stockholder may sell or otherwise dispose of up to
twenty-five (25)% of such shares of capital stock of AIMCO during the period
commencing on the Closing Date and ending six months thereafter and an
additional 25% during each subsequent six month period. AIMCO agrees that it
will respond to any request by the Stockholder pursuant to the preceding
sentence within five business days of its receipt thereof.
If the Stockholder is unable after reasonable efforts to
locate a bona fide financial institution which is willing to be bound in
writing to this Agreement, then AIMCO shall, upon execution of customary loan
and security agreements, provide a loan to the Stockholder, in an amount equal
to fifty (50)% of the aggregate fair market value of the shares of capital
stock of AIMCO then owned by the Stockholder (or the Stockholder's Shares, if
the Merger has not been consummated), which loan shall be secured by all the
shares of capital stock of AIMCO then owned by the Stockholder (or the
Stockholder's Shares, if the Merger has not been consummated) provided,
however, that the value of such loan shall not exceed five percent of the value
of the total assets of AIMCO, all as measured for purposes of Section
856(c)(4)(B) of the Code. Such loan shall be recourse to the Stockholder,
shall be for a term of three years, shall bear interest at a rate which is
equal to AIMCO's weighted average cost of capital, as calculated on the date
such loan is provided to the Stockholder, and all accrued interest on the
principal amount of such loan shall be due and payable semi-annually.
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This Section 8 shall not apply if the Stockholder is a Trust.
9. Covenants of AIMCO. AIMCO hereby agrees that if it
consents in writing to the Stockholder's request to sell shares of capital
stock of AIMCO pursuant to Section 8 hereof, then it will, from the date of
delivering such written consent to the Stockholder, consent in writing to any
requests by any other person or entity signing an agreement substantially the
same as this Agreement in the two weeks before or after this Agreement is
executed (the "Parallel Agreements") to sell shares of capital stock of AIMCO
pursuant to Section 8 of the Parallel Agreements. AIMCO hereby agrees not to
exercise the Call Option granted herein unless it simultaneously exercises the
call options granted to it pursuant to the Parallel Agreements.
10. Trustee Liability. Any undersigned individual
trustee of a trust which is a Stockholder of IFG shall have no personal
liability hereunder, and it is understood that any such trustee that signs this
Agreement shall do so on behalf of such trust in his or her capacity as trustee
of such trust, and not in his or her individual capacity.
11. HSR Act. Each party hereto shall file or cause to be
filed with the FTC and the Department of Justice any notifications required to
be filed by their respective "ultimate parent" companies under the HSR Act and
the rules and regulations promulgated thereunder with respect to the
transactions contemplated hereby. Such parties will use all commercially
reasonable efforts to make any such filings in a timely manner and respond on a
timely basis to any requests for additional information made by either of such
agencies.
12. Specific Performance. The parties hereto agree that
their respective remedies at law would be inadequate in the event of any
default by the other party in the performance of such party's obligations under
this Agreement. Accordingly, the parties hereto agree that in the event of any
such default the non-defaulting party shall have the right to seek specific
performance of such obligations as well as any other legal remedies to which
such non-defaulting party may be entitled.
13. Assignment; Parties in Interest. This Agreement
shall not be assignable, except that AIMCO may assign its rights under this
Agreement to a subsidiary or affiliate of AIMCO or, if AIMCO determines that
its status as a real estate investment trust would make advisable a partial
purchase by AIMCO and assignment of its remaining rights under this Agreement
to a third party, to any third party who
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agrees in writing to be bound by this Agreement; provided, however, that no
assignment shall effect the obligations of AIMCO under this Agreement. This
Agreement shall be binding upon, inure to the benefit of and be enforceable by
and against the parties hereto and their successors (including administrators
and executors of individuals or trusts).
14. Amendments. No amendment or waiver of any provision
of this Agreement shall be effective unless the same shall be in writing and
signed by or on behalf of AIMCO and by or on behalf of each Stockholder or
their respective heirs, representatives, successors or assigns. All notices
and other communications pursuant to this Agreement shall be in writing or by
fax and mailed or sent to each party hereto at its address set forth on the
signature page hereto or at such other address as shall be designated by such
party in a written notice to the other parties hereto.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICT OF LAWS THEREOF.
16. Counterparts. This Agreement may be executed in two
or more counterparts, each of which will be deemed to be an original but all of
which together will constitute one and the same instrument.
15. Effect of Headings. The descriptive headings
contained herein are for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
16. Capitalized Terms. Capitalized terms used and not
defined herein shall have the meanings ascribed to them in the Merger
Agreement.
17. Information to be Supplied. If the person signing
this Agreement is one of Messrs. Aston, Garrison, or Uretta, the number of
shares and options is not yet filled in and he agrees to supply such
information to AIMCO promptly but in any case within two weeks and agrees that
he is bound by this Agreement prior to and following delivery of such
information.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed on the day and year first written above.
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By:
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Name: Xxxxx Xxxxxxxxx
Its: President
Address: 0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Tele: (000) 000-0000
Fax: (000) 000-0000
STOCKHOLDER
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Name:
Address:
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