EXHIBIT A
RIGHT OF FIRST REFUSAL AGREEMENT
This Agreement, made as of the 15th day of October, 2001, by and
between XXXXX X. XXXXX ("Xx. Xxxxx") and XXXXXX X. XXXXXXX ("Stockholder").
In consideration of the mutual covenants contained herein and other
good and valuable consideration, Stockholder and Xx. Xxxxx agree as follows:
1. In the event Stockholder proposes to sell any shares of BF Enterprises, Inc.
$.10 par value common stock ("Stock") which Stockholder now or hereafter
owns to any person or entity, Xx. Xxxxx shall have a right of first refusal
to purchase such shares of Stock as hereinafter set forth. Xx. Xxxxx shall
not have a right of first refusal with respect to a transfer of Stock by
Stockholder (i) as a result of, or in connection with, any cash tender
offer, merger or other business combination which has been approved by a
majority of the Board of Directors of BF Enterprises, Inc., (ii) to, or for
the benefit of, one or more of Stockholder's family members, or (iii) by
reason of a charitable contribution to an institution or organization of a
type described in Section 170 (c) of the Internal Revenue Code of 1986, as
amended, or corresponding provisions of any subsequently enacted federal
tax laws.
2. If Stockholder desires to sell shares of Stock then he shall give written
notice in substantially the form of Exhibit A attached hereto (the "Notice")
to Xx. Xxxxx describing fully the proposed sale, including the number of
shares proposed to be sold and the proposed sale price or method of
determining the proposed sale price.
3. Xx. Xxxxx shall have the right to purchase the shares subject to the Notice
on the terms of the proposed sale referred to in the Notice by delivery to
Stockholder of written notice of exercise of the right of first refusal
within three business days following the effective date of the Notice.
4. If Xx. Xxxxx exercises his right of first refusal within such three
business day period, the parties shall consummate the purchase and sale of
the shares subject to the Notice as expeditiously as possible but in any
event no later than seven business days following the effective date of the
Notice.
5. If Xx. Xxxxx fails to exercise his right of first refusal within such three
business day period, Stockholder may conclude a sale of the shares subject
to the Notice on the terms and conditions described in the Notice during the
period ending 120 days following the effective date of the Notice (the
"Sale Period").
6. Any proposed transfer on terms and conditions different from those
described in the Notice, as well as any proposed transfer subsequent to the
Sale Period on the terms and conditions of the Notice, shall again be
subject to Xx. Xxxxx'x right of first refusal and shall require compliance
by Stockholder with the procedure described above.
7. Any notice required to be made pursuant to this Agreement, including the
Notice, shall be in writing and be deemed to be effective when delivered in
person or one business day following deposit in the mails, postage prepaid,
addressed as set forth below (and as may be amended), unless and until one
of the parties shall have specified another address by means of notice
effective hereunder:
If to Xx. Xxxxx:
Xxxxx X. Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
If to Stockholder:
Xxxxxx X. Xxxxxxx
0000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
8. This Agreement may be terminated by either party at any time after
May 31, 2005 upon not less than ten days' written notice to the other
party.
9. This Agreement (i) shall be governed by and construed in accordance with
the laws of the State of California applicable to contracts entered into
and wholly to be performed within the State of California by California
residents, and (ii) shall not be assignable by either party without the
written approval of the other party.
Agreed to as of the date first above written.
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxxx
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Stockholder
EXHIBIT A
Xx. Xxxxx X. Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Dear Xxxxx:
This is to notify you, in accordance with the provisions of our Right
of First Refusal Agreement dated October 15, 2001 (the "Agreement"), of my
desire to sell the number of shares of BF Enterprises, Inc. common stock set
forth below on the terms and subject to the conditions indicated:
[check and complete applicable description]
____ 1. Open market sale through a broker of ________ shares at the
market but not less than $_______ per share.
____ 2. Private sale of _______ shares at a price of
$_________ per share, payable as follows:
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____ 3. Transfer of ________ shares, other than by open market or
private sale, on the following terms (including the method
of determining the transfer value of the shares):
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I understand that if you do not exercise your right of first refusal
pursuant to the Agreement within three business days of the effective date of
this notice, I may conclude the sale described above.
Dated: ___________________ Sincerely,
