EXHIBIT 10.60
EXCHANGE AGREEMENT
54
EXCHANGE AGREEMENT
EXCHANGE AGREEMENT dated as of March 19, 1998 among Security Capital
Corporation (the "Company"), CP Acquisition, L.P. No. 1, FGS, Inc., Capital
Partners, Inc., A. Xxxxxx Xxxxxxx, Xxxxx X. Xxxxx, Xxxx X. Xxxxxxxx, Xx. and the
Trust dated 6/26/81 f/b/o the children of Xxxxx X. Xxxxxxxxxx (collectively, the
"Stockholders"), and Xxxxx X. Xxxxxxxxxx (solely with respect to Section 4.3 of
this Agreement).
W I T N E S S E T H :
WHEREAS, Capital Partners, Inc., on behalf of the holders of all the
outstanding shares of the Company's Class A Preferred Stock, par value $.01 per
share (the "Class A Preferred Stock"), has suggested that the Company consider
an exchange of all the outstanding shares of the Class A Preferred Stock, and
all accrued dividends thereon, for shares of the Company's Class A Common Stock
(as defined below), at an exchange price per share equal to $4.00; and
WHEREAS, as of December 31, 1997, 30,000 shares of Class A Preferred Stock
were outstanding, and such shares had an aggregate liquidation preference of
$3,000,000, not including accrued dividends thereon of $1,987,500; and
WHEREAS, the Company and the Stockholders desire that the Stockholders
exchange shares of the Company's Preferred Stock and all accrued dividends
thereon for shares of the Company's Class A Common Stock, upon the terms set
forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
and covenants hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. EXCHANGE OF SHARES
(a) EXCHANGE SHARES. Subject to the terms and conditions set forth herein,
each Stockholder shall tender all shares of the Class A Preferred Stock held by
it as of December 31, 1997, in exchange for shares of Class A Common Stock, par
value $.01 per share (the "Class A Common Stock"), of the Company (the
"Exchange"). The shares of Class A Common Stock to be received by the
Stockholders in the Exchange shall be hereinafter referred to as the "Exchange
Shares" and shall be calculated as to each Stockholder as follows:
Number of Exchange Shares =
(NUMBER OF SHARES OF CLASS A PREFERRED STOCK X $100.00)
+ ALL ACCRUED DIVIDENDS THEREON
------------------------------------------------------
$4.00
Schedule 1 to this Agreement lists, as to each Stockholder, the number of shares
of Class A Preferred Stock held, the accrued dividends thereon and the number of
Exchange Shares to be received in the Exchange.
(b) THE EXCHANGE. Subject to the terms and conditions set forth herein,
the Exchange shall close on March 19, 1998 (the "Closing Date"), and shall be
effective as of December 31, 1997 (the "Exchange Date"). Certificates
representing shares of Class A Preferred Stock shall be canceled as of the
Exchange Date and, upon presentation of the canceled certificates to the
Company, Stockholders shall be entitled to receive certificate(s) representing
the Exchange Shares for which such canceled shares have been exchanged, and all
other rights of the Stockholders as to the shares of Class A Preferred Stock
being exchanged shall cease. All certificates representing the Exchange Shares
shall conspicuously bear the following legend:
"The shares represented by this certificate are subject to
certain restrictions on transfers set forth in Article FOURTH (C) of the
Company's Certificate of Incorporation, the full text of which is printed on the
55
reverse side of this certificate. ANY DIRECT OR INDIRECT ATTEMPT TO ACQUIRE
CLASS A COMMON STOCK OF THE COMPANY OR CONTINGENT OR NONCONTINGENT RIGHTS TO
ACQUIRE SUCH STOCK IN VIOLATION OF SUCH RESTRICTIONS SHALL BE NULL AND VOID AND
MAY RESULT IN FINANCIAL LOSS TO THE PERSON OR ENTITY ATTEMPTING SUCH
ACQUISITION."
SECTION 2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY
The Company represents and warrants to and agrees with the Stockholders as
follows (which representations, warranties and agreements shall survive the
Closing Date):
2.1 EXECUTION, ETC. This Agreement has been duly executed and delivered by
the Company and constitutes the legal, valid and binding obligation of the
Company, enforceable against it in accordance with its terms, subject to the
effect of any applicable bankruptcy, reorganization, insolvency (including
without limitation all laws relating to fraudulent transfers), moratorium or
similar laws affecting creditors' rights and remedies generally and subject to
general principles of equity (regardless of whether considered in a proceeding
at law or in equity).
2.2 CONSENTS. No consent, approval or authorization of, or any
registration, filing, qualification or declaration with, any federal, state,
local or foreign governmental authority or any other person is required on the
part of the Company in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
2.3 NO VIOLATIONS, ETC.. Neither the Exchange nor the consummation of any
of the other transactions contemplated by this Agreement, nor the fulfillment of
the terms of this Agreement by the Company conflicts with, results in a breach
of or constitutes a default under any agreement, contract, mortgage, note,
undertaking, indenture or other agreement or instrument to which the Company is
a party or by which it is bound or to which its assets are subject, or any
judgment, writ, decree, order, statute, rule or regulation applicable to the
Company or to which its assets are subject.
SECTION 3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE STOCKHOLDERS
Each Stockholder severally represents and warrants to and agrees with the
Company as follows (which representations, warranties and agreements shall
survive the Closing Date):
3.1 EXECUTION, ETC. This Agreement has been duly executed and delivered by
such Stockholder and constitutes the legal, valid and binding obligation of such
Stockholder, enforceable against it in accordance with its terms, subject to the
effect of any applicable bankruptcy, reorganization, insolvency (including
without limitation all laws relating to fraudulent transfers), moratorium or
similar laws affecting creditors' rights and remedies generally and subject to
general principles of equity (regardless of whether considered in a proceeding
at law or in equity).
3.2 CONSENTS. No consent, approval or authorization of, or any
registration, filing, qualification or declaration with, any federal, state,
local or foreign governmental authority or any other person is required on the
part of such Stockholder in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
3.3 NO VIOLATIONS, ETC. Neither the Exchange nor the consummation of any
of the other transactions contemplated by this Agreement, nor the fulfillment of
the terms of this Agreement by such Stockholder conflicts with, results in a
breach of or constitutes a default under any agreement, contract, mortgage,
note, undertaking, indenture or other agreement or instrument to which such
Stockholder is a party or by which it is bound or to which its assets are
subject, or any judgment, writ, decree, order, statute, rule or regulation
applicable to such Stockholder or to which its assets are subject.
3.4 TITLE TO SHARES. Such Stockholder is the record and beneficial owner
of the shares of Class A Preferred Stock listed opposite its name on Schedule 1
to this Agreement and owns such shares free and clear of all liens, claims,
charges, encumbrances, rights of third parties and security interests of any
kind or nature whatsoever including, without limitation, any restrictions on the
voting or transfer thereof.
56
SECTION 4. COVENANTS AND OTHER AGREEMENTS
4.1 LISTING OF EXCHANGE SHARES. The Company will use its best efforts to
cause all of the Exchange Shares to be listed on the Pacific Stock Exchange or
any securities exchange or interdealer quotation system on which similar
securities issued by the Company are listed.
4.2 REGISTRATION RIGHTS. The Stockholders are hereby granted rights
relating to the registration of the Exchange Shares under the Securities Act of
1933, as amended, identical to any such rights previously granted to Capital
Partners, Inc. in respect of shares of Class A Common Stock owned by it.
4.3 "GOING PRIVATE" TRANSACTIONS. Xxxxx X. Xxxxxxxxxx hereby agrees that
neither he nor any entity controlled by him will, directly or indirectly,
propose or effect, during the five-year period following the Exchange Date any
Rule 13e-3 transaction (within the meaning of Rule 13e-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) which (i) involves any
class of equity securities of the Company which is (x) subject to Section 12(g)
or Section 15(d) of the Exchange Act or (y) listed on a national securities
exchange or authorized to be quoted in an inter-dealer quotation system, and
(ii) has one of the effects referred to in Rule 13e-3(a)(3)(ii).
4.4 CERTIFICATE OF INCORPORATION. The Company hereby agrees to use its
best efforts to cause a proposal to amend the Company's Amended and Restated
Certificate of Incorporation to delete Article Twelfth therefrom to be submitted
to its stockholders at the 1998 Annual Meeting of stockholders.
SECTION 5. CONDITIONS TO THE PARTIES' OBLIGATIONS
5.1 CONDITIONS TO EACH STOCKHOLDER'S OBLIGATION.
(a) Each Stockholder's obligation to participate in the Exchange is
subject to the satisfaction, at or before the Exchange Date and the
Closing Date, of each of the following conditions:
(i) The representations and warranties of the Company shall be
true and accurate in all respects at and as of the Exchange Date and
the Closing Date.
(ii) The Company shall have performed in all respects all
obligations required by this Agreement to be performed by it before
or on the Closing Date.
5.2 CONDITIONS TO THE COMPANY'S OBLIGATION.
(a) The Company's obligation to issue the Exchange Shares is subject
to the satisfaction, at or before the Exchange Date and the Closing Date,
of each of the following conditions:
(i) The Stockholders shall have delivered to the Company the
shares of Class A Preferred Stock pursuant to Section 1 of this
Agreement.
(ii) The representations and warranties of the Stockholders
set forth in this Agreement shall be true and accurate in all
respects at and as of the Exchange Date and the Closing Date.
(iii) The Stockholders shall have performed in all respects
all obligations required by this Agreement to be performed by them
before or on the Closing Date.
SECTION 6. MISCELLANEOUS
6.1 BENEFITS; ASSIGNMENTS. This Agreement shall inure exclusively to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. This Agreement may not be assigned by the
Company or any Stockholder without the prior written consent of the other.
57
6.2 AMENDMENT AND WAIVER. No provision of this Agreement may be amended or
otherwise modified except in writing executed by the Company and the
Stockholders holding, at the time of any amendment, a majority in interest of
the Exchange Shares. Any waiver by any party of a breach of any provision of
this Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provisions of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
6.3 GOVERNING LAW; HEADINGS. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to conflict of laws, except to the extent that the Delaware General
Corporation Law applies, in which case such law shall apply. The headings in
this Agreement are for convenience only and shall not affect the construction
hereof.
6.4 SEVERABILITY. If any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
6.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original and all of which together
will be deemed to be one and the same instrument, and all signatures need not
appear on any one counterpart.
6.6 ENTIRE AGREEMENT. This agreement constitutes the entire agreement
between the parties and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to the
Exchange. Any certificate or other document delivered pursuant to or in
connection with this Agreement shall be deemed to be part of this Agreement.
58
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first above written.
SECURITY CAPITAL CORPORATION
BY: /s/ A. XXXXXX XXXXXXX
Name: A. Xxxxxx Xxxxxxx
Title: President
CP ACQUISITION, L.P. NO.1
By: Capital Partners, Inc.
General Partner
By: /s/ A. XXXXXX XXXXXXX
Name: A. Xxxxxx Xxxxxxx
Title:
FGS, INC.
By: /s/ A. XXXXXX XXXXXXX
Name: A. Xxxxxx Xxxxxxx
Title: Vice President
CAPITAL PARTNERS, INC.
By: /s/ A. XXXXXX XXXXXXX
Name: A. Xxxxxx Xxxxxxx
Title: Vice President
/s/ A. XXXXXX XXXXXXX
A. Xxxxxx Xxxxxxx
/s/ XXXXX X. XXXXX
Xxxxx X. Xxxxx
/s/ XXXX X. XXXXXXXX, XX.
Xxxx X. Xxxxxxxx, Xx.
TRUST DATED 6/26/81
F/B/O THE CHILDREN OF
XXXXX X. XXXXXXXXXX
By: /s/ XXXXX X. XXXXXXXXXX
Name: Xxxxx X. Xxxxxxxxxx
Title: Trustee
/s/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx (solely for
purposes of
Section 4.3)
59
SCHEDULE 1
As of December 31, 1997
NO. OF NO. OF SHARES
SHARES OF CLASS A PRINCIPAL ACCRUED TOTAL OF CLASS A COMMON
HOLDER PREFERRED STOCK AMOUNT DIVIDENDS PRINCIPAL & DIVIDENDS STOCK AT $4/SHARE
------ ----------------- ------------- ----------------- --------------------- -----------------
CP Acquisition L.P., No. 1 23,168 $2,316,800 $1,534,880 $3,851,680 962,920
FGS, Inc. 4,160 416,000 275,600 691,600 172,900
Capital Partners, Inc. 650 65,000 43,062 108,062 27,016
A. Xxxxxx Xxxxxxx 703 70,300 46,574 116,874 29,218
Xxxxx X. Xxxxx 335 33,500 22,194 55,694 13,923
Xxxx X. Xxxxxxxx, Xx. 334 33,400 22,127 55,527 13,882
Trust Dated 6/26/81 FBO Children
of Xxxxx X. Xxxxxxxxxx,
Xxxxx X. Xxxxxxxxxx, Trustee 650 65,000 43,063 108,063 27,016
--------- ------------- ----------------- -------------- -------------
30,000 $3,000,000 $1,987,500(1) $4,987,500 1,246,875
========= ============= ================= ============== =============
(1) $66.25 accrued dividends per share as of 12/31/97.
