EXHIBIT A
COMMON STOCK PURCHASE AND SALE AGREEMENT
This Common Stock Purchase and Sale Agreement (the "Agreement"), dated
December 3, 1996, by and among RGI Holdings, Inc., a Washington corporation
("RGI"); and Xxxxxxx Capital, L.P., a Delaware limited partnership ("Xxxxxxx"),
Ariel Fund Limited, a Cayman Islands corporation ("AFL") and Ariel Management
Corp., a Delaware corporation ("AMC" and, collectively with Xxxxxxx, AFL and
AMC, the "Selling Shareholders").
WHEREAS, the Common Stock, par value $0.01 per share ("Common Stock"), of
Banyan Mortgage Investment Fund, a Delaware corporation (the "Company"), is
publicly traded on the New York Stock Exchange under the symbol "VMG";
WHEREAS, the Selling Shareholders collectively beneficially own and desire
to sell 3,561,900 shares of the Company's Common Stock as more particularly set
forth on Schedule I attached hereto (as appropriately adjusted as necessary to
reflect a stock split (including the proposed one-for-twenty-five reverse stock
split), stock dividend, merger, consolidation, reclassification,
recapitalization or other similar transaction, the "Shares"), which Shares
constitute approximately 7.5% of the total issued and outstanding shares of
Common Stock; and
WHEREAS, Purchaser desires to purchase the Shares from the Selling
Shareholders, and the Selling Shareholders desire to sell the Shares to
Purchaser, upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Purchase and Sale of Shares. Subject to the terms and conditions of this
Agreement, on the Closing Date (as hereinafter defined) the Selling Shareholders
shall sell to Purchaser, and Purchaser shall purchase from the Selling
Shareholders, the Shares set forth on Schedule I.
2. Purchase Price.
(a) The purchase price (the "Purchase Price") payable per Share to be
purchased by Purchaser hereunder shall be $0.60 (appropriately adjusted as
necessary to reflect a stock split (including the proposed one-for-twenty-five
reverse stock split), stock dividend, merger, consolidation, reclassification,
recapitalization or other similar transaction with respect to the Common Stock).
(b) All amounts payable by Purchaser to the Selling Shareholders
pursuant to this Section 2 shall be paid by wire transfer of immediately
available funds in accordance with wire transfer instructions provided by
Xxxxxxx or as otherwise agreed between the parties hereto.
Page 10 of 22 Pages
3. Representations and Warranties of Selling Shareholders. The Selling
Shareholders, severally and not jointly, make the following representations and
warranties to Purchaser (each on behalf of and with respect to itself only),
each of which is true and correct on the date hereof, shall remain true and
correct to and as of the Closing (as hereinafter defined) and shall survive the
Closing:
(a) Each of the Selling Shareholders is duly organized, validly
existing and in good standing under the laws of its state or other jurisdiction
of organization or incorporation. Each Selling Shareholder has all requisite
power and authority to enter into this Agreement and the other documents and
instruments to be executed and delivered by the Selling Shareholders and to
carry out the transactions contemplated hereby and thereby. All entity actions
and proceedings necessary to be taken by or on the part of any of the Selling
Shareholders in connection with the transactions contemplated by this Agreement
have been duly and validly taken.
(b) The execution and delivery of this Agreement and the other
documents and instruments to be executed and delivered by the Selling
Shareholders and the consummation of the transactions contemplated hereby and
thereby, have been duly authorized by all requisite action.
(c) No other act or proceeding on behalf of any Selling Shareholder or
any general partner is necessary to authorize this Agreement or the other
documents and instruments to be executed and delivered by the Selling
Shareholders pursuant hereto or the consummation of the transactions
contemplated hereby and thereby. This Agreement has been duly and validly
executed and delivered by the Selling Shareholders and constitutes, and when
executed and delivered, the other documents and instruments to be executed and
delivered by the Selling Shareholders pursuant hereto will constitute, valid and
binding agreements of the Selling Shareholders enforceable in accordance with
their respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforceability of creditors' rights generally and by general equitable
principles. Neither the execution, delivery and performance of this Agreement
nor the consummation of the transactions contemplated herein will, with or
without the giving of notice of the lapse of time, or both (i) conflict with or
result in any violation of or default under (a) any provision of the articles of
incorporation, partnership agreement, bylaws, trust agreement or other governing
document, of any Selling Shareholder, (b) any note, bond, mortgage, indenture,
lease, agreement or other material instrument, permit, concession, grant,
franchise or license to which any Selling Shareholder is a party or by which any
of their properties or assets may be bound or (c) any judgment, order, decree,
injunction, statute, rule, permit, license or regulation applicable to any
Selling Shareholder or any of its properties, or (ii) result in the acceleration
of any material obligation or the creation of any material lien, charge or
encumbrance upon any Selling Shareholder. No authorization, consent or approval
of, or declaration of, filing with or notice to any governmental body or
authority is necessary for the execution, delivery and performance of this
Agreement by any Selling Shareholder.
Page 11 of 22 Pages
(d) The Selling Shareholders are the beneficial owners of the Shares in
the amounts set forth in Schedule I hereto, free and clear of all liens, claims,
charges and other encumbrances, and the Shares are held by the nominee of
Morgan, Stanley, as custodian, through an account on the book entry system
maintained by the Depositary Trust Corporation. Upon the Closing, the Selling
Shareholders shall cause to be conveyed to Purchaser or its permitted assignee
good and marketable title to the Shares, free and clear of all liens, claims,
charges and other encumbrances (other than those created by Purchaser or its
permitted assignee). None of the Selling Shareholders has any right, directly or
indirectly, to purchase or has any interest in any shares of Common Stock other
than the Shares.
(e) Neither the Selling Shareholders nor any directors, partners,
offices, employees or agents thereof has retained, employed or used any broker
or finder in connection with the transactions provided for herein or in
connection with the negotiation thereof.
(f) None of the Selling Shareholders has offered, directly or
indirectly, any Shares beneficially owned thereby for sale, nor solicited any
offer to buy any such Shares, by means of any general advertising or by any
other form of general solicitation. None of the Selling Shareholders has
offered, directly or indirectly, any Shares beneficially owned thereby for sale,
nor solicited any offer to buy any such Shares, in any other manner that would
require the sale of the Shares to be subject to the registration requirements of
the Securities Act of 1933, as amended. Each of the Selling Shareholders
confirms that it did not acquire any Shares with a view to, or for, resale in
connection with any distribution thereof within the meaning of the Securities
Act of 1933, as amended, which would not be exempt from the registration
requirements of such Act.
4. Representations and Warranties of Purchaser. Purchaser makes the
following representations and warranties to the Selling Shareholders, each of
which is true and correct on the date hereof, shall remain true and correct to
and as of the Closing, and shall survive the Closing:
(a) Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the State of Washington. Purchaser has all
requisite power to enter into this Agreement and the other documents pursuant
hereto and to carry out the transactions contemplated hereby and thereby.
(b) The execution and delivery of this Agreement and the other
documents and instruments to be executed and delivered by Purchaser pursuant
hereto and the consummation of the transactions contemplated hereby and thereby
have been duly authorized by the Board of Directors of Purchaser. No other
corporate act or proceeding on the part of Purchaser or its shareholders is
necessary to authorize this Agreement or the other documents and instruments to
be executed and delivered by Purchaser pursuant hereto or the consummation of
the transactions contemplated hereby and thereby. This Agreement constitutes,
and when executed and delivered, the other documents and instruments to be
executed and delivered by Purchaser pursuant hereto will constitute, valid and
binding agreements of Purchaser, enforceable in
Page 12 of 22 Pages
accordance with their respective terms, except as such may be limited by
bankruptcy, insolvency, reorganization or other laws affecting creditors' rights
generally, and by general equitable principles.
(c) Neither the execution, delivery and performance of this Agreement
nor the consummation of the transactions contemplated herein will, with or
without the giving of notice or the lapse of time, or both, (i) conflict with or
result in any violation of or default under (a) any provision of the Articles of
Incorporation or the bylaws of Purchaser, each as amended and/or restated to
date, (b) any note, bond, mortgage, indenture, lease, agreement or other
material instrument, permit, concession, grant, franchise or license to which
Purchaser is a party or by which any of its properties or assets may be bound or
(c) any judgment, order, decree, injunction, statute, rule, permit, license or
regulation applicable to the Purchaser or any of its properties, or (ii) which
result in the acceleration of any material obligation or the creation of any
material lien, charge or encumbrance upon any of the assets of Purchaser. No
authorization, consent or approval of, or declaration of, filing with or notice
to any governmental body or authority is necessary for the execution, delivery
and performance of this Agreement by Purchaser.
(d) Neither Purchaser nor any of its directors, officers, employees or
agents has retained, employed or used any broker or finder in connection with
the transaction provided for herein or in connection with the negotiation
thereof.
5. Covenants of the Selling Shareholders.
(a) From the date hereof until the Closing, each of the Selling
Shareholders covenants and agrees that it will not, without the prior written
consent of RGI, directly or indirectly (i) transfer any of the Shares, except to
Purchaser pursuant hereto, or (ii) exercise any voting rights of the Shares or
grant any proxies (except as set forth herein) or enter into any voting trust or
other agreement or arrangement with respect to the voting of any Shares.
(b) From the date hereof until the first to occur of (i) the
consummation of the merger of RGI U.S. Holdings, Inc., a Washington corporation,
with and into the Company or (ii) the third business day following the failure
of the shareholders of the Company to approve such a merger at a meeting
thereof, duly called and held, at which a proposal to approve such a merger is
acted upon, or (iii) termination of the Agreement and Plan of Merger, dated as
of April 12, 1996, as amended and restated as of May 20, 1996, by and among RGI
U.S. Holdings, Inc., RGI and the Company, each of the Selling Shareholders
covenants and agrees (on behalf of and with respect to itself only) that it will
not, directly or indirectly, acquire or enter into any contract to acquire, any
shares of Common Stock or any voting rights with respect to any shares of Common
Stock.
6. Conditions Precedent to Purchaser's Obligations. Each and every
obligation of Purchaser to be performed on the Closing Date (as hereinafter
defined) shall be subject to the satisfaction prior to or at the Closing of each
of the following conditions:
Page 13 of 22 Pages
(a) Each of the representations and warranties made by the Selling
Shareholders in this Agreement shall be true and correct in all material
respects when made and shall be true and correct in all material respects at and
as of the Closing Date as though such representations and warranties were made
or given on and as of such Closing Date.
(b) Each of the Selling Shareholders shall have in all material
respects performed and complied with all of its agreements and obligations under
this Agreement which are to be performed or complied with by it prior to or on
the Closing Date, including the delivery of the closing documents specified in
Section 9.
(c) No injunction or restraining order shall have been issued by any
court of competent jurisdiction that enjoins consummation of the transactions
contemplated hereby.
7. Conditions Precedent to Selling Shareholders' Obligations. Each and
every obligation of the Selling Shareholders to be performed on the Closing Date
shall be subject to the satisfaction prior to or at the Closing on such date of
the following conditions:
(a) Each of the representations and warranties made by Purchaser in
this Agreement shall be true and correct in all material respects when made and
shall be true and correct in all material respects at and as of the Closing Date
as though such representations and warranties were made or given on and as of
the Closing Date.
(b) Purchaser shall have in all material respects performed and
complied with all of its agreements and obligations under this Agreement which
are to be performed and complied with by it or prior to or on the Closing Date,
including the delivery of the closing documents specified in Section 10.
(c) No injunction or restraining order shall have been issued by a
court of competent jurisdiction that enjoins consummation of the transactions
contemplated hereby.
8. Closing. The closing of the purchase and sale of the Shares (the
"Closing") shall take place on December 6, 1996, or at such other time and place
as the parties hereto shall agree upon in writing. The date on which the Closing
occurs is referred to in this Agreement as the "Closing Date".
9. Documents to Be Delivered by the Selling Shareholders at the Closing. At
the Closing the Selling Shareholders shall deliver, or cause to be delivered, to
Purchaser the following documents, in each case duly executed or otherwise in
proper form:
(a) Either (i) stock certificates, duly endorsed for transfer or with
duly executed stock powers attached thereto, representing the Shares, or (ii)
other customary evidence of transfer of the Shares in a broker trade on
customary terms.
Page 14 of 22 Pages
(b) A validly executed irrevocable proxy in the form attached hereto as
Exhibit A.
10. Documents to Be Delivered by Purchaser at the Closing. At the Closing,
Purchaser shall deliver to Xxxxxxx, on behalf of the Selling Shareholders, a
wire transfer in payment of the aggregate Purchase Price for the Shares as
provided in Section 2 above.
11. Termination. This Agreement may be terminated by the Selling
Shareholders, on one hand, or the Purchaser, on the other hand, if the Closing
shall not have been consummated prior to 4:00 p.m. (Eastern Standard Time) on
December 6, 1996; provided, however, that the obligations of each of the parties
hereto under Sections 13, 16 and 17 shall continue in full force and effect
notwithstanding any such termination, and that no party shall be relieved from
any liability of any kind or nature whatsoever resulting from or arising out of
a breach thereby of this Agreement occurring prior to such termination.
12. Further Assurances. From time to time prior to, at and after the
Closing, each party hereto shall execute all such instruments and take all such
actions as any other party hereto shall reasonably request in connection with
carrying out and effectuating the transactions contemplated by this Agreement.
13. Notices. Any notices required or allowed to be furnished pursuant to
the terms hereof shall be provided to the Selling Shareholders and Purchaser at
the addresses set forth with their signatures below. Notices hereunder shall be
in writing and may be hand delivered, mailed, delivered by overnight courier
service or, if facsimile numbers are provided below, transmitted by facsimile.
If mailed, such notices shall be sent by certified mail, postage prepaid, return
receipt requested. The date which is three (3) business days after the date of
mailing shall be deemed to be the date on which the notice was given. The
postmark affixed to such notice by the U.S. Post Office shall be conclusively
presumed to be the date of mailing for purposes of this Section. In the case of
notices given by hand delivery or overnight courier, such notices shall be
deemed given on the date of the actual receipt. If transmitted by facsimile,
such notices shall be deemed given on the date of the actual receipt of a
complete, legible facsimile transmission, except that if a facsimile
transmission is received after business hours or on a weekend or holiday, then
the notice shall be deemed given on the next business day following the receipt
of the facsimile transmission.
14. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Delaware without regard to the
conflicts of law provisions thereof.
15. Assignment.
(a) The rights and obligations of a party hereunder may not be
assigned, transferred or encumbered without the prior written consent of the
other parties.
Page 15 of 22 Pages
(b) This Agreement shall be binding upon, inure to the benefit of, and
be enforceable by the respective successors and permitted assigns of the parties
hereto. Nothing contained herein shall be deemed to confer upon any other person
any right or remedy under or by reason of this Agreement.
16. Expenses. Except as hereinafter set forth, each of the parties hereto
shall bear its own expenses and the expenses of its counsel and other agents in
connection with the transactions contemplated hereby.
17. Saturdays, Sundays and Legal Holidays. If the time for performance of
any of the terms, conditions and provisions hereof shall fall on a Saturday,
Sunday or legal holiday, then the time of such performance shall be extended to
the next business day thereafter.
18. Usage of Gender Specific Terms. As used herein, each of the masculine,
feminine and neuter genders shall include the other genders, the singular shall
include the plural, and the plural shall include the singular, wherever
appropriate to the context.
19. Entire Agreement; Amendment. This Agreement embodies the entire
agreement of the parties with respect to the transactions contemplated herein,
including the purchase and sale of Shares, and all prior understandings and
agreements of the parties relating thereto are merged herein. This Agreement may
not be modified in any manner whatsoever except by a written instrument signed
by the Selling Shareholders and the Purchaser.
20. Waiver. No delay in exercising any right or remedy of any of the
parties hereunder shall constitute a waiver thereof, and no waiver by the
Selling Shareholders or Purchaser of the breach of any covenant of this
Agreement shall be construed as a waiver of any preceding or succeeding breach
of the same or any other covenant or condition of this Agreement.
21. Headings. The headings in this Agreement are inserted for convenience
only and shall not constitute a part hereof.
22. Severability. If any term, covenant or condition of this Agreement is
held to be invalid or unenforceable in any respect, such invalidity or
unenforceability shall not affect any other provision hereof and this Agreement
shall be construed as if such invalid or unenforceable provision has never been
contained herein.
23. Public Announcements. The parties shall mutually agree on the content
and timing of any public disclosure in relation to the transactions contemplated
hereby, subject to applicable requirements of law (including, but not limited
to, the filing of amended Schedule 13Ds).
24. Execution. This Agreement may be executed in separate counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same
Page 16 of 22 Pages
instrument. Any party may execute this Agreement by transmitting a copy of its
signature by facsimile to the other parties. In such event the signing party
shall deliver an original of the signature page to each of the other parties
within one business day of signing, and failure to so deliver such originals
shall result in the facsimile copy of that party's signature being treated as an
original.
IN WITNESS WHEREOF, the undersigned parties have executed this Agreement as
of the date and year first above written.
SELLING
SHAREHOLDERS: XXXXXXX CAPITAL, L.P.
By: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Authorized Agent
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
ARIEL FUND LIMITED
By: ARIEL MANAGEMENT CORP.
By:/s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Authorized Agent
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Page 17 of 22 Pages
ARIEL MANAGEMENT CORP.
By:/s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Authorized Agent
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
PURCHASER: RGI HOLDINGS, INC.
By:/s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Its: President
Address: 0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Page 18 of 22 Pages
SCHEDULE I
Banyan Mortgage Investment Fund
Common Stock
Holder Shares
------ ------
Xxxxxxx Capital, L.P. 1,349,962
Ariel Fund Limited 1,991,103
Ariel Management Corp. 220,835
Page 19 of 22 Pages
EXHIBIT A
IRREVOCABLE PROXY
By its execution hereof, each of the undersigned hereby irrevocably
constitutes and appoints RGI Holdings, Inc., a Washington corporation ("RGI"),
as its true and lawful proxy and attorney-in-fact, with respect to the portion
of the 3,561,900 shares ( as appropriately adjusted as necessary to reflect a
stock split, stock dividend, merger, consolidation, reclassification,
recapitalization or other similar transaction, the "Shares") of common stock,
par value $.01 per share ("Common Stock"), of Banyan Mortgage Investment Fund, a
Delaware corporation (the "Company"), beneficially owned by it as of the date
hereof and identified on Schedule I hereto, to: (i) vote at any annual or
special meeting of the stockholders of the Company, to take any action,
including without limitation, adopting a proposed merger of RGI U.S. Holdings,
Inc. with and into the Company, amending the Company's certificate of
incorporation to reclassify, combine and convert each twenty-five issued and
outstanding shares of the Company's Common Stock into one issued and outstanding
share, to adopt an Amended and Restated Certificate of Incorporation of the
Company that, among other things, changes Banyan's name to "Legend Properties,
Inc.", and electing directors; (ii) to exercise written consent in lieu of
voting with respect to the matters set forth in the preceding clause (i); and
(iii) to execute, acknowledge, swear to and file in the name, place and stead of
the undersigned any proxy, consent, approval, or other documents to be executed
by the stockholders in connection with the items set forth in the preceding
clauses (i) and (ii). The proxy granted hereby is irrevocable and is given in
connection with the purchase by RGI of the Shares pursuant to a Common Stock
Purchase and Sale Agreement dated December 3, 1996 (the "Purchase Agreement"),
by and among RGI and Xxxxxxx Capital, L.P., Ariel Fund Limited and Ariel
Management Corp.; provided, however, that this Irrevocable Proxy shall
automatically terminate and be of no further force or effect with respect to any
Shares as of June 30, 1997.
IN WITNESS WHEREOF, each of the undersigned has executed this Irrevocable
Proxy as of the ____ day of December, 1996.
XXXXXXX CAPITAL, L.P.
By:_____________________________
Name: Xxxx X. Xxxxx
Title: Authorized Agent
Address: _______________________
_______________________
_______________________
Facsimile No.: _________________
Page 20 of 22 Pages
ARIEL FUND LIMITED
By: ARIEL MANAGEMENT CORP.
By:________________________
Name: Xxxx X. Xxxxx
Title: Authorized Agent
Address: _______________________
_______________________
_______________________
Facsimile No.: _________________
ARIEL MANAGEMENT CORP.
By:_____________________________
Name: Xxxx X. Xxxxx
Title: Authorized Agent
Address: _______________________
_______________________
_______________________
Facsimile No.: _________________
Page 21 of 22 Pages
SCHEDULE I
Banyan Mortgage Investment Fund
Common Stock
Holder Shares
------ ------
Xxxxxxx Capital, L.P. 1,349,962
Ariel Fund Limited 1,991,103
Ariel Management Corp. 220,835
Page 22 of 22 Pages
