EXHIBIT 99.1
THIS STOCK SALE AGREEMENT, dated as of January 19, 1996 (the
"Agreement"), is between INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York
corporation ("IBM"), and XXXXX & XXXXX COMPANY, a Delaware corporation ("Xxxxx &
Xxxxx").
WHEREAS, IBM is the record holder of 25,000 shares of the Class B
Common Stock, $.01 par value per share (the "IBM Shares") of Axiom Real Estate
Management, Inc. (hereinafter referred to as "Axiom");
WHEREAS, IBM acquired the IBM Shares pursuant to a Stock Purchase and
Stockholder Agreement dated May 6, 1992 by and among IBM, Xxxxx & Xxxxx and GE
New Corp. (currently Axiom) (the "1992 Agreement");
WHEREAS, Xxxxx & Xxxxx is the record holder of 70,000 shares of Class
A Common Stock, $.01 par value per share of Axiom, and wishes to acquire the IBM
Shares; and
WHEREAS, IBM desires to sell to Xxxxx & Xxxxx and Xxxxx & Xxxxx
desires to purchase all of the IBM Shares upon the terms and conditions
hereinafter provided;
NOW, THEREFORE, it is hereby agreed as follows:
1. SALE OF TRANSFERRED STOCK. IBM hereby agrees to sell, convey,
transfer and deliver to Xxxxx & Xxxxx, and Xxxxx & Xxxxx hereby agrees to
purchase, and accept conveyance, transfer and delivery from IBM of, the IBM
Shares in consideration of the payment by Xxxxx & Xxxxx to IBM of an aggregate
of Six Hundred Thousand Dollars ($600,000), to be made in four equal
installments of One Hundred Fifty Thousand Dollars ($150,000) each, payable at
Closing and on each of the first, second and third anniversaries of Closing by
wire transfer of immediately available funds to an account designated by IBM.
2. ACKNOWLEDGMENTS, REPRESENTATIONS AND COVENANTS OF IBM. IBM
hereby represents, warrants and covenants to Xxxxx & Xxxxx as follows, which
representations, warranties and covenants are as of the date hereof and will be
as of the Closing Date, true and correct:
(a) ORGANIZATION AND GOOD STANDING. IBM is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New York.
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(b) TITLE TO IBM SHARES. IBM is the record holder and sole
beneficial owner of the IBM Shares being sold pursuant to this Agreement and,
upon the termination of the 1992 Agreement the IBM Shares shall be free and
clear of any claim, lien, pledge, option, charge, security interest or
encumbrance of any nature whatsoever (other than restrictions imposed by
applicable securities laws) (collectively "Encumbrances") with respect to IBM.
(c) AUTHORITY; EXECUTION AND DELIVERY, ETC. IBM has full power
and authority to enter into this Agreement and to sell the IBM Shares in
accordance with the terms hereof. The execution, delivery and performance of
this Agreement have been duly authorized by IBM and no other actions on the part
of IBM are required. This Agreement has been duly executed and delivered by IBM
and constitutes the legal, valid and binding obligation of IBM, enforceable
against IBM in accordance with its terms.
(d) NO BROKERS. IBM has not entered into and will not enter into
any agreement, arrangement or understanding with any person or firm which will
result in any obligation of Xxxxx & Xxxxx to pay any finder's fee, brokerage
commission or similar payment in connection with the transactions contemplated
hereby. IBM agrees to indemnify and hold Xxxxx & Xxxxx harmless from and
against any and all claims, liabilities or obligations with respect to any
finder's fees, brokerage commission or similar payments asserted by any person
on the basis of any act or statement alleged to have been made by IBM.
(e) CONSENTS, NO CONFLICTS, ETC. Neither the execution and
delivery of this Agreement, the consummation by IBM of the transactions
contemplated hereby, nor compliance by IBM with any of the provisions hereof
will (with or without the giving of notice or the passage of time): (i) violate
or conflict with any provision of the Articles of Incorporation or By-Laws of
IBM, the 1992 Agreement or any agreement, instrument, judgment, decree, statute
or regulation applicable to IBM or any assets or properties of IBM; (ii) violate
any order, writ, injunction, decree, statute, rule or regulation applicable to
IBM or any assets or properties of IBM; or (iii) require the consent, approval,
permission or other authorization of or by, or designation, declaration, filing,
registration or qualification with, any court, arbitrator or government,
administrative or self-regulatory authority or any other third party whatsoever.
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(f) NO SPECIAL CEO SEVERANCE OR STOCK OPTION ARRANGEMENT: (i) For
purposes of this Section 2(f) and Section 3(e) below, "Special CEO Severance or
Stock Option Arrangements" shall mean any special employment, consulting,
severance or other similar contract, arrangement or policy (written or oral), or
any stock option grant or plan or stock appreciation rights or phantom stock
plan, entered into by Axiom which obligates Axiom to continue to employ, make
payments to or assume liabilities of Axiom's Chief Executive Officer in the
event of termination of his employment with Axiom, in addition to the standard
severance payments provided to all Axiom employees by Axiom's standard severance
policies applicable to all its employees, or by which Axiom has granted or which
obligates Axiom to grant stock options, stock appreciation rights or phantom
stock to Axiom's Chief Executive Officer; (ii) Except as otherwise set forth on
the Disclosure Schedule attached hereto, to IBM's knowledge, there are no
Special CEO Severance or Stock Option Arrangements.
(g) IBM acknowledges that it has had access to such financial and
other information as it deems necessary in connection with its decision to sell
the IBM Shares.
(h) these representations, warranties and covenants shall survive the
Closing.
(i) IBM, in making the aforementioned representations and warranties
has not relied on any representations or warranties made by Xxxxx & Xxxxx.
3. ACKNOWLEDGMENTS, REPRESENTATIONS AND COVENANTS OF XXXXX & XXXXX.
Xxxxx & Xxxxx hereby represents, warrants and covenants to IBM as
follows which representations, warranties and covenants are as of the date
hereof and will be as of the Closing Date, true and correct:
(a) ORGANIZATION AND GOOD STANDING. Xxxxx & Xxxxx is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware.
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(b) AUTHORITY, EXECUTION AND DELIVERY, ETC. Xxxxx & Xxxxx has
full power and authority to enter into this Agreement and to purchase and accept
the transfer of the IBM Shares in accordance with the terms hereof. The
execution, delivery and performance of this Agreement have been duly authorized
by Xxxxx & Xxxxx and no other actions on the part of Xxxxx & Xxxxx are required.
This Agreement has been duly executed and delivered by Xxxxx & Xxxxx and
constitutes the legal, valid and binding obligation of Xxxxx & Xxxxx,
enforceable against Xxxxx & Xxxxx in accordance with its terms.
(c) CONSENTS, NO CONFLICTS, ETC. Neither the execution and
delivery of this Agreement, the consummation by Xxxxx & Xxxxx of the
transactions contemplated hereby, nor compliance by Xxxxx & Xxxxx with any of
the provisions hereof will (with or without the giving of notice or the passage
of time): (i) violate or conflict with any provision of the Certificate of
Incorporation or By-Laws of Xxxxx & Xxxxx, the 1992 Agreement or any agreement,
instrument, judgment, decree, statute or regulation applicable to Xxxxx & Xxxxx
or any assets or properties of Xxxxx & Xxxxx; (ii) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Xxxxx & Xxxxx or
any assets or properties of Xxxxx & Xxxxx; (iii) other than the consent of IBM
Credit Corporation ("ICC") under that certain credit agreement entitled,
"Revolving Loan and Security Agreement" and dated as of October 19, 1995,
between ICC and Axiom, require the consent, approval, permission or other
authorization of or by, or designation, filing, registration or qualification
with, any court, arbitrator or governmental, administrative or self-regulatory
authority or any other third party whatsoever.
(d) NO BROKERS. Xxxxx & Xxxxx has not entered into and will not
enter into any agreement, arrangement or understanding with any person or firm
which will result in any obligation of IBM to pay any finder's fees, brokerage
commission or similar payment in connection with the transactions contemplated
hereby. Xxxxx & Xxxxx agrees to indemnify and hold IBM harmless from and
against any and all claims, liabilities or obligations with respect to any
finder's fees, brokerage commission or similar payments asserted by any person
on the basis of any act or statements alleged to have been made by Xxxxx &
Xxxxx.
(e) NO SPECIAL CEO SEVERANCE OR STOCK OPTION ARRANGEMENTS: Except
as otherwise set forth on the Disclosure Schedule attached hereto, to Xxxxx &
Xxxxx' knowledge, there are no Special CEO Severance or Stock Option
Arrangements.
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(f) INVESTMENT PURPOSE AND INVESTOR STATUS. Xxxxx & Xxxxx intends to
acquire and hold the IBM Shares for investment purposes for an indefinite period
for its own account and not with a view to the sale or distribution of the IBM
Shares to the public. Xxxxx & Xxxxx is an "accredited investor" as defined in
Rule 501(a) of Regulation D under the Securities Act of 1933, as amended (the
"Act"). Xxxxx & Xxxxx acknowledges that it has had access to such financial and
other information as it deems necessary in connection with its decision to
purchase the IBM Shares. Xxxxx & Xxxxx will not offer, sell or otherwise
dispose of any or all of the IBM Shares in violation of the Securities Act of
1933 (the "Act"), or the rules promulgated thereunder or any state securities
laws.
(g) EXEMPTION FROM REGISTRATION UNDER FEDERAL SECURITIES LAWS.
Xxxxx & Xxxxx understands that the IBM Shares are not and may never be
registered under the Act on the ground that the sale provided for in this Stock
Sale Agreement with respect to such unregistered IBM Shares is intended to be
exempt from registration pursuant to exemptions available under the Act.
(h) RESTRICTIVE LEGEND. Xxxxx & Xxxxx acknowledges that the IBM
shares acquired hereunder may bear substantially the following restrictive
legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY
NOT BE SOLD OR OFFERED FOR SALE EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS.
(i) these acknowledgments, representations, warranties and covenants
shall survive the Closing.
(g) Xxxxx & Xxxxx, in making the foregoing acknowledgments,
representations and warranties has not relied on any representations or
warranties of IBM.
4. SPECIAL COVENANTS OF BOTH PARTIES REGARDING THE MASTER MANAGEMENT
AGREEMENTS AND THE 1992 AGREEMENT.
(a) IBM and Xxxxx & Xxxxx hereby agree, and Xxxxx & Xxxxx further
agrees that it shall cause Axiom to agree, that the original "Master Management
Agreement" between IBM and Axiom dated May 6, 1992, as amended by Amendment No.
1 dated August 29, 1992 (the "Original Master Management Agreement"), shall
terminate and shall thereafter be of no further force or effect, and shall be
superseded by the new Managed Service Agreement
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between IBM and Axiom, attached hereto as "Exhibit A" (the "New Managed Service
Agreement") effective upon the Closing of this Agreement as described and
subject to the conditions in Sections 5 and 6, below.
(b) At the Closing of this Agreement, immediately following the
effective transfer of title to the IBM Shares to Xxxxx & Xxxxx, Xxxxx & Xxxxx
shall cause an authorized signatory of Axiom to deliver to IBM a properly
executed original New Managed Service Agreement in form and substance identical
to Exhibit A, which the parties agree, and which Xxxxx & Xxxxx further agrees to
cause Axiom to agree, shall supersede and replace the Original Master Management
Agreement and which shall take effect upon the Closing of this Agreement.
5. THE CLOSING.
(a) Subject to the satisfaction or waiver of the conditions set forth
in Section 6 hereof, the Closing shall take place at Old Orchard Road, Armonk,
New York on January 19, 1996, or at such other place and time as shall be
mutually agreed by IBM and Xxxxx & Xxxxx (the "Closing").
(b) At the Closing, Xxxxx & Xxxxx shall (i) pay IBM One Hundred Fifty
Thousand Dollars ($150,000) as provided in Section 1(a) of this Agreement; (ii)
cause an authorized signatory of Axiom to deliver to IBM a properly executed
original New Managed Service Agreement in form and substance identical to
Exhibit A which shall supersede and replace the Original Master Management
Agreement and shall take effect upon the effective transfer of title to the IBM
Shares to Xxxxx & Xxxxx; and (iii) deliver to IBM a duly authorized and properly
executed (x) Shareholder Resolution, in the form of Exhibit B hereto; (y) Board
Resolution in the form of Exhibit C hereto, and (z) Agreement to Terminate the
1992 Agreement in the form of Exhibit D hereto.
(c) At the Closing, IBM shall deliver to Xxxxx & Xxxxx: (i) a stock
certificate or certificates evidencing the IBM Shares transferred to Xxxxx &
Xxxxx hereby, which shall, upon termination of the 1992 Agreement, be free and
clear of Encumbrances accompanied by stock powers duly executed to Xxxxx &
Xxxxx' order; (ii) a duly authorized and properly executed (x) Shareholder
Resolution, in the form of Exhibit B hereto, (y) Board Resolution in the form of
Exhibit C hereto, and (z) Agreement to Terminate the 1992 Agreement in the form
of Exhibit D hereto; and (iii) the executed resignation of Xxx X. Xxxxxx from
the Axiom Board of Directors, in the form of Exhibit E, effective as of the
Closing date of this Agreement.
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(d) IBM and Xxxxx & Xxxxx hereby agree that the effective date of the
transfer of the IBM Shares shall be May 31, 1995.
6. CONDITIONS TO THE CLOSING.
(a) XXXXX & XXXXX CONDITIONS TO CLOSING. It shall be a condition
to Xxxxx & Xxxxx' obligation to purchase the IBM Shares at the Closing that:
(i) the representations, warranties and covenants of IBM shall be true and
correct in all material respects as of the date of the Closing; (ii) IBM shall
deliver to Xxxxx & Xxxxx the documents described in Section 5(c) above,
effective as of the Closing; and (iii) all actions, instruments and documents
required to consummate the purchase of the IBM Shares as provided for in this
Agreement and all other related legal matters shall be reasonably satisfactory
to Xxxxx & Xxxxx.
(b) IBM CONDITIONS TO CLOSING. It shall be a condition to the
obligations of IBM to sell the IBM Shares at the Closing that: (i) the
representations, warranties and covenants of Xxxxx & Xxxxx shall be true and
correct in all material respects as of the date of Closing; (ii) Xxxxx & Xxxxx
shall deliver to IBM the documents described in Section 5(b) above, effective as
of the Closing; (iii) all actions, instruments and documents required to
consummate the sale of the IBM Shares as provided for in this Agreement, and all
other related legal matters, shall be reasonably satisfactory to IBM, and (iv)
Xxxxx & Xxxxx shall have caused Axiom to deliver a duly authorized and properly
executed New Managed Service Agreement in the form and substance of Exhibit A
attached, including renegotiated service rates.
(c) EACH PARTY'S CONDITIONS OF CLOSING. The obligations of each
of IBM and Xxxxx & Xxxxx under this Agreement are subject to and conditioned
upon the satisfaction at or prior to the Closing of each of the following
conditions (unless waived by IBM and Xxxxx & Xxxxx in writing):
(i) NO PROCEEDINGS. No action, suit, investigation or legal
or administrative claim or proceeding shall be pending or threatened before any
court, governmental agency or regulatory authority which has resulted or may
result in the restraint, prohibition, or the obtaining of damages or other
relief in respect of, or which is related to or arises out of, the consummation
of the purchase and sale of the IBM Shares as contemplated by this Agreement or
seeking to prohibit Xxxxx & Xxxxx' ownership of the IBM Shares.
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(ii) NO STATUTE, RULE, REGULATION OR ORDER. There shall not
have been any action taken, or any statute, rule, regulation or order enacted,
promulgated or issued or deemed applicable to the sale of the IBM Shares by any
federal or state government or governmental agency or instrumentality or court
which would (A) prohibit Xxxxx & Xxxxx' ownership of the IBM Shares or the sale
of the IBM Shares, or (B) make consummation of the transactions contemplated
hereby illegal.
7. RESCISSION AND LIQUIDATED DAMAGES.
In addition to any other remedies available to the parties, whether at
law or in equity, in the event Xxxxx & Xxxxx fails to cause an authorized
representative of Axiom to deliver to IBM a duly executed New Managed Service
Agreement as set forth in this Agreement, IBM and Xxxxx & Xxxxx hereby agree
that IBM shall be entitled to: (a) rescind the resignation of Xxx X. Xxxxxx as
director of Axiom; (b) rescind the sale and transfer of the IBM shares to Xxxxx
& Xxxxx pursuant to all terms and conditions of this Stock Sale Agreement; and
(c) rescind all other actions and agreements undertaken by IBM pursuant to or in
connection with this Stock Sale Agreement including but not limited to all side
agreements and the Agreement to terminate the 1992 Agreement (the "Other
Agreements"). In the event of a rescission, the Original Master Management
Agreement shall remain in place, IBM shall return the $150,000 payment made by
Xxxxx & Xxxxx and all other actions undertaken by Xxxxx & Xxxxx pursuant to this
Agreement and the Other Agreements shall also be rescinded.
8. MISCELLANEOUS.
(a) EXPENSES. Each party shall be liable for its own
expenses in connection with the transactions contemplated by this Agreement.
(b) TAXES. Xxxxx & Xxxxx shall be responsible for all stock
transfer and documentary taxes, if any, arising out of the transactions
contemplated by this Agreement.
(c) AMENDMENTS, ETC. All amendments or waivers of any
provisions of this Agreement may only be made pursuant to a written instrument
executed by the parties hereto or their successors and assigns.
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(d) SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Agreement contained by or on behalf of either party hereto shall bind and
inure to the benefit of the respective successors and assigns of IBM and Xxxxx &
Xxxxx, whether so expressed or not.
(e) NOTICES. All notices, requests and other communications
provided for hereunder shall be effective upon receipt, shall be in writing and
shall be deemed to have been duly given if delivered in person or by courier,
overnight delivery service, telegraph, telex or by facsimile transmissions with
electromechanical report of delivery.
If to Xxxxx & Xxxxx:
Xxxxx & Xxxxx Company
Xxx Xxxxxxxxxx Xxxxxx
Telesis Tower, 9th Floor
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
If to IBM:
International Business Machines Corporation
Xxx Xxxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
or to such other address with respect to any party as such party shall notify
the others in writing.
(f) GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the laws
of the State of New York (without regard to the choice of law provisions
thereof). Each party waives, to the fullest extent permitted by applicable law,
any right it may have to a trial by jury in respect of any action, suit or
proceeding arising out of or relating to the transactions contemplated by this
Agreement.
(g) HEADINGS. The descriptive headings of the several paragraphs
of this Agreement are inserted for convenience only and do not constitute a part
of this Agreement.
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(h) COUNTERPARTS. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original, and it
shall not be necessary in making proof of this Agreement to produce or account
for more than one such counterpart.
(i) PUBLIC ANNOUNCEMENTS. Neither IBM nor Xxxxx & Xxxxx will
issue any press release or public announcement of the transactions contemplated
hereby except: (i) as they may mutually agree in writing or; (ii) as may be
required in the opinion of counsel under applicable law in which case the party
so required to make such an announcement shall provide a draft of the proposed
announcement to the other party no less than two (2) business days prior to the
date of the proposed announcement (unless it is unlawful or impracticable to do
so); except Xxxxx & Xxxxx may file this Agreement with, and disclose the terms
and conditions of this Agreement in its filings with, the SEC, the NYSE and
other regulating bodies as required under various federal and state securities
laws and regulations.
(j) COMPLETE AGREEMENT. This Agreement and the Other Agreements
contains the entire agreement between the parties with respect to the subject
matter hereof and, except as provided herein and therein, supersedes all
previous negotiations, commitments and writings. This Agreement is not intended
to confer any benefit upon any person other than the parties hereto.
(k) FURTHER ACTIONS. Each party shall execute and deliver such
other certificates, agreements, and other documents and take such other actions,
or cause their director designees or other representatives to take such other
actions, as may reasonably be requested by the other party in order to
consummate or implement the transactions contemplated by this Agreement.
(l) APPROVAL PER AMENDED AND RESTATED CERTIFICATE OF INCORPORATION.
This Agreement shall constitute the approval by the holders of Class A Common
Stock and Class B Common Stock of Axiom of the transfer of IBM Shares to Xxxxx &
Xxxxx as contemplated in this Agreement pursuant to Article Fourth B(d) of the
Amended and Restated Certificate of Incorporation of Axiom. No actions shall be
required to be taken pursuant to Section 6.03 of the 1992 Agreement.
(m) SEVERABILITY. If any provision of this Agreement shall be
determined to be illegal, void, or unenforceable, all other provisions of this
Agreement shall not be affected and shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
as of the date first above written.
INTERNATIONAL BUSINESS
MACHINES CORPORATION
By: /s/ Xxx X. Xxxxxx
------------------------
Name: Xxx X. Xxxxxx
Title: Vice President
Corporate Development and
Real Estate
Date: January 19, 1996
XXXXX & XXXXX COMPANY
By: /s/ Xxx X. Xxxxxxx
------------------------
Name: Xxx X. Xxxxxxx
Title: Chairman
Date: January 19, 1996
