EXHIBIT 10.1
STANDBY SECURITIES PURCHASE AGREEMENT
THIS STANDBY SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of
January 4, 2005, is made by and among Blue Ridge Real Estate Company, a
Pennsylvania corporation ("Blue Ridge"), Big Boulder Corporation, a Pennsylvania
corporation ("Big Boulder" and, together with Blue Ridge, the "Company"), and
Kimco Realty Services, Inc. (the "Purchaser"), a Delaware corporation and
wholly-owned subsidiary of Kimco Realty Corporation, a Maryland corporation.
Blue Ridge, Big Boulder and the Purchaser are sometimes referred to individually
as a "Party" and, collectively, as the "Parties."
W I T N E S S E T H:
WHEREAS, the Company intends to undertake a rights offering (the "Rights
Offering") pursuant to which the Company will offer to the Company's
shareholders (the "Shareholders") rights (the "Rights") to purchase shares (the
"Offered Shares") of the Company's common stock, without par value (the "Common
Stock"), that have an aggregate value of Fifteen Million Five Hundred Thousand
Dollars ($15,500,000), rounded to the nearest whole share;
WHEREAS, shares of Blue Ridge and Big Boulder are issued in combined
common stock certificates, each certificate representing the same number of
shares of each of Blue Ridge and Big Boulder, and shares of each corporation may
be transferred only together with an equal number of shares in the other
corporation;
WHEREAS, pursuant to the terms of the Rights Offering, each of the
Shareholders will have the right to purchase its pro rata share of the Offered
Shares and will be afforded an over-subscription privilege;
WHEREAS, in the event the Company elects to undertake the Rights Offering,
the Company anticipates that it will file a registration statement on Form S-1
or such other form with respect to which the Rights Offering may be registered
(the "Registration Statement") with the Securities and Exchange Commission (the
"SEC") covering the offering and sale of the Offered Shares to the Shareholders;
WHEREAS, as a Shareholder, the Purchaser will be issued Rights pursuant to
the Rights Offering;
WHEREAS, upon the terms and conditions set forth in this Agreement, the
Company wishes to sell to the Purchaser, and the Purchaser wishes to purchase
from the Company the unsold allotment of the Offered Shares issuable in the
Rights Offering; and
WHEREAS, the Purchaser and the Company wish to provide for the purchase
and sale of the Common Stock and to establish certain rights and obligations in
connection therewith.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements set forth in this
Agreement, and for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Parties hereto agree as follows:
ARTICLE I
ISSUANCE AND SALE OF SHARES
1.1 Issuance, Purchase and Sale. In the event that the Shareholders do not
subscribe for and purchase all of the Offered Shares on or before the expiration
date of the Rights Offering (all such Offered Shares not subscribed for and
purchased by the Shareholders in the Rights Offering being referred to herein as
the "Unsubscribed Shares"), subject to the terms and conditions set forth
herein, the Company shall issue and sell to the Purchaser, and the Purchaser
shall purchase from the Company, the Unsubscribed Shares. The purchase price
payable for each of the Unsubscribed Shares shall be equal to the subscription
price per share set forth on the cover page to the prospectus included in the
Registration Statement at the time it was declared effective by the SEC or on
the cover page to the prospectus relating to the Registration Statement that is
filed with the SEC pursuant to Rule 424(b) under the Securities Act (the "Per
Share Subscription Price"). In no event shall the Purchaser be obligated to
purchase Unsubscribed Shares in an aggregate amount in excess of Fifteen Million
Five Hundred Thousand Dollars ($15,500,000).
1.2 Closing. Upon the terms and subject to the satisfaction of the
conditions contained in Article VII of this Agreement, the closing of the
purchase and sale of the Unsubscribed Shares (the "Closing") shall take place at
the offices of Xxxxxx, Xxxxx & Xxxxxxx LLP, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX
00000, at 10:00 a.m., local time, on the tenth Business Day following the
expiration of the Rights Offering, provided that the Closing may take place at
such other place, time or date as shall be mutually agreed upon by the Company
and the Purchaser (the date of the Closing, the "Closing Date").
1.3 Deliveries. At the Closing (i) the Company shall deliver to the
Purchaser stock certificates registered in the name of the Purchaser,
representing the Unsubscribed Shares purchased by the Purchaser hereunder and
(ii) the Purchaser shall deliver to the Company the aggregate purchase price for
the Unsubscribed Shares equal to the product of (A) the number of Unsubscribed
Shares and (B) the Per Share Subscription Price, which shall be paid by the
Purchaser to the Company via wire transfer of immediately available funds to an
account designated in writing by the Company on or prior to the Closing Date.
1.4 Capitalized Terms. Capitalized terms not otherwise defined in this
Agreement shall have the meanings ascribed to such terms in Section 10.1.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchaser, as of the date
hereof and as of the Closing Date, as follows:
2.1 Organization. Each of Blue Ridge and Big Boulder is a corporation duly
organized and presently subsisting under the laws of the Commonwealth of
Pennsylvania and has the requisite corporate power and authority to carry on its
business as it is now being conducted. Each of Blue Ridge and Big Boulder is
duly qualified to conduct business and is in good standing as a foreign
corporation in each jurisdiction in which the nature of the business conducted
or property owned by it makes such qualification necessary, except where the
failure to be so qualified or in good standing, as the case may be, would not,
individually or in the aggregate, have a Material Adverse Effect.
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2.2 Due Authorization. Each of Blue Ridge and Big Boulder has the
requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery by
each of Blue Ridge and Big Boulder of this Agreement, the issuance, sale and
delivery of the Unsubscribed Shares and the consummation by each of Blue Ridge
and Big Boulder of the transactions contemplated hereby (a) are within the
corporate power and authority of each of Blue Ridge and Big Boulder and (b) have
been duly authorized by all necessary corporate action of each of Blue Ridge and
Big Boulder. This Agreement has been duly and validly executed and delivered by
each of Blue Ridge and Big Boulder. Assuming the due authorization, execution
and delivery by the Purchaser of this Agreement, this Agreement constitutes a
valid and binding obligation of each of Blue Ridge and Big Boulder enforceable
against it in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium, or other laws
affecting the enforcement of creditors' rights in general, and except that the
enforceability of this Agreement is subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law). The Unsubscribed Shares have been validly reserved for
issuance and, when issued and delivered in accordance with the terms of this
Agreement, shall be validly issued, fully paid and non-assessable.
2.3 No Conflicts. The execution, delivery and performance of this
Agreement by each of Blue Ridge and Big Boulder, the issuance and sale of the
Unsubscribed Shares and the consummation by each of Blue Ridge and Big Boulder
of the other transactions contemplated hereby do not and will not (a) conflict
with or violate any provision of the articles of incorporation or bylaws of Blue
Ridge or Big Boulder, (b) conflict with or result in a violation of any Law or
Order to which either Blue Ridge or Big Boulder is subject or (c) violate the
terms of any agreement by which either Blue Ridge or Big Boulder is bound,
except in the case of each of clauses (b) and (c) such as would not have or
reasonably be expected to result in a Material Adverse Effect.
2.4 SEC Reports. Blue Ridge has filed with the SEC all reports required to
be filed by it under the Exchange Act for the two year period immediately
preceding the date hereof and has made available to the Purchaser complete
copies of all such reports (including the financial statements and other
financial data contained herein) (collectively, the "SEC Reports").
2.5 Financial Statements. The financial statements of the Company included
in the SEC Reports comply as to form in all material respects with applicable
accounting requirements and the rules and regulations of the SEC with respect
thereto as in effect at the time of filing. Such financial statements have been
prepared in accordance with United States generally accepted accounting
principles applied on a consistent basis during the periods involved ("GAAP"),
except as may be otherwise specified in such financial statements or the notes
thereto and except that unaudited financial statements may not contain all
footnotes required by GAAP, and fairly present in all material respects the
financial position of the Company and its consolidated subsidiaries as of and
for the dates thereof and the results of operations and cash flows for the
periods then ended, subject, in the case of unaudited statements, to year-end
audit adjustments.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Company as of the date hereof
and as of the Closing Date, as follows:
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3.1 Organization. The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of formation
and has the requisite power and authority to carry on its business as it is now
being conducted.
3.2 Due Authorization. The Purchaser has the requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery by the Purchaser of this
Agreement, the purchase of the Unsubscribed Shares and the consummation of the
transactions contemplated hereby (a) are within the corporate power and
authority of the Purchaser and (b) have been duly authorized by all necessary
corporate action of the Purchaser. This Agreement has been duly and validly
executed and delivered by the Purchaser. Assuming the due authorization,
execution and delivery by the Company of this Agreement, this Agreement
constitutes a valid and binding obligation of the Purchaser enforceable against
it in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium, or other laws
affecting the enforcement of creditors' rights in general, and except that the
enforceability of this Agreement is subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
3.3 No Conflicts. The execution, delivery and performance of this
Agreement by the Purchaser, the purchase of the Unsubscribed Shares and the
consummation by the Purchaser of the other transactions contemplated hereby do
not and will not (a) conflict with or violate any provision of the articles of
incorporation or bylaws of the Purchaser or (b) conflict with or result in a
violation of any Law or Order to which the Purchaser is subject or (c) violate
the terms of any agreement by which the Purchaser is bound, except in the case
of each of clauses (b) and (c) such as would not have or reasonably be expected
to result in a material adverse effect on the business, condition (financial or
otherwise) or results of operations of the Purchaser.
3.4 Acquisition for Investment. The Purchaser understands that the
Unsubscribed Shares are "restricted securities" and have not been registered
under the Securities Act or any applicable state securities law and is acquiring
the Unsubscribed Shares as principal for its own account for investment purposes
only and not with a view to or for distributing or reselling such Unsubscribed
Shares or any part thereof, has no present intention of distributing any of such
Unsubscribed Shares and has no arrangement or understanding with any other
Persons regarding the distribution of such Unsubscribed Shares except as set
forth in Article VI.
3.5 Accredited Investor Status. The Purchaser is an "accredited investor,"
as that term is as defined in Rule 501(a) of Regulation D under the Securities
Act. The Purchaser, either alone or together with its representatives, has such
knowledge, sophistication and experience in business and financial matters so as
to be capable of evaluating the merits and risks of the prospective investment
in the Unsubscribed Shares, and has so evaluated the merits and risks of such
investment. The Purchaser is able to bear the economic risk of an investment in
the Unsubscribed Shares and, at the present time, is able to afford a complete
loss of such investment. The Purchaser understands that its investment in the
Unsubscribed Shares involves a significant degree of risk.
3.6 Information. The Purchaser and its advisers have been furnished with
all materials relating to the business, finances and operations of the Company
and materials relating to the offer and sale of the Unsubscribed Shares which
have been requested by the Purchaser or its advisers. The Purchaser and its
advisers have been afforded the opportunity to ask questions of the Company's
management concerning the Company and the Unsubscribed Shares. Copies of the SEC
Reports have been made available to the Purchaser.
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3.7 Government Review. The Purchaser understands that no Governmental
Authority has passed upon or made any recommendation or endorsement of the
Unsubscribed Shares.
3.8 General Solicitation. The Purchaser is not purchasing the Unsubscribed
Shares as a result of any advertisement, article, notice or other communication
regarding the Unsubscribed Shares published in any newspaper, magazine or
similar media or broadcast over television or radio or presented at any seminar
or any other general solicitation or general advertisement.
3.9 Resale or Transfer. The Purchaser understands that: (i) the resale of
the Unsubscribed Shares has not been and is not being registered under the
Securities Act or any applicable state securities laws, and the Unsubscribed
Shares may not be sold or otherwise transferred unless (a) the Unsubscribed
Shares are sold or transferred pursuant to an effective registration statement
under the Securities Act, (b) the Purchaser shall have delivered to the Company
an opinion of counsel (which opinion shall be in form, substance and scope
satisfactory to the Company's counsel) to the effect that the Unsubscribed
Shares to be sold or transferred may be sold or transferred pursuant to an
exemption from such registration, or (c) the Unsubscribed Shares are sold
pursuant to Rule 144 under the Securities Act; (ii) any sale of such
Unsubscribed Shares made in reliance on Rule 144 under the Securities Act may be
made only in accordance with the terms of such Rule; and (iii) except as set
forth in Article VI, neither the Company nor any other Person is under any
obligation to register such Unsubscribed Shares under the Securities Act or any
state securities laws or to comply with the terms and conditions of any
exemption thereunder.
3.10 Residency. The principal offices of the Purchaser and the offices of
the Purchaser in which it made its decision to purchase the Unsubscribed Shares
are located in the State of New York.
3.11 Non-reliance Regarding Tax Consequences. The Purchaser is not relying
on the Company or any representation contained herein with respect to the tax or
economic effect of Purchaser's investment in the Common Stock. The Purchaser has
reviewed with the Purchaser's own tax advisors the federal, state, local and
foreign tax consequences of this investment and the transactions contemplated by
this Agreement. The Purchaser is relying solely on such advisors and not on any
statements or representations of the Company or any of its representatives. The
Purchaser understands that Purchaser shall be responsible for the Purchaser's
own tax liability that may arise as a result of this investment or the
transactions contemplated by this Agreement.
ARTICLE IV
COVENANTS
4.1 Consents, Approvals and Filings. Subject to the terms of this
Agreement, each of Blue Ridge, Big Boulder and the Purchaser shall use its
reasonable efforts to take, or cause to be taken, all actions, and do, or cause
to be done, and to assist and cooperate with the other Parties in doing, all
things necessary, proper, desirable or advisable to obtain and make all
consents, approvals and filings required to be obtained or made by Blue Ridge,
Big Boulder or the Purchaser, as the case may be, in connection with the
authorization, execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
4.2 Further Assurances. At any time or from time to time after the date of
this Agreement, Blue Ridge and Big Boulder, on the one hand, and the Purchaser,
on the other hand, agree to cooperate with each other, and at the request of the
other Party, to execute and deliver any further instruments or documents and to
take all such further action as the other Party may reasonably request in order
to
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evidence or effectuate the consummation of the transactions contemplated by this
Agreement and to otherwise carry out the intent of the Parties hereunder.
4.3 Public Statements. Neither the Company nor the Purchaser shall issue
any public announcement, statement or other disclosure with respect to this
Agreement or the transactions contemplated hereby without the prior written
consent of the other Parties hereto, which consents shall not be unreasonably
withheld, except if such public announcement, statement or other disclosure is
required by applicable law or applicable stock market regulations.
Notwithstanding the foregoing, the Purchaser acknowledges and agrees that the
existence if this Agreement and the terms and conditions hereof may be disclosed
by the Company in the Registration Statement or any other documents contained
therein without the consent of the Purchaser.
ARTICLE V
RESTRICTIONS ON TRANSFER
5.1 Restrictions on Transfer. The Purchaser shall not, and shall ensure
that its Affiliates do not, purchase, sell, transfer, assign, convey, gift,
mortgage, pledge, encumber, hypothecate or otherwise dispose of, directly or
indirectly ("Transfer"), any Unsubscribed Shares except in accordance with
Sections 3.9 and 5.2 and Article VI. Any purported Transfers of Unsubscribed
Shares in violation of this Article V shall be null and void.
5.2 Compliance with Laws; Stop Order.
(a) The Purchaser shall, and shall ensure that its Affiliates shall,
observe and comply with the Securities Act and the Exchange Act and the
regulations promulgated thereunder and all other requirements of applicable Law
in connection with any permitted Transfer of the Unsubscribed Shares, including
all requirements of applicable Law relating to the use of insider information or
the trading of securities while in the possession of nonpublic information.
(b) In order to enforce the provisions of this Article V, the
Company may impose stop transfer instructions with respect to all of the
Unsubscribed Shares held by the Purchaser and the Unsubscribed Shares of every
other Person subject to the foregoing restrictions.
5.3 Restrictive Legends.
(a) The Purchaser understands and agrees that the Unsubscribed
Shares will bear a legend substantially similar to the legend set forth below in
addition to any other legend that may be required by applicable law, by the
Articles of Incorporation or bylaws of Blue Ridge or Big Boulder, as amended
from time to time, or by any agreement between the Company and the Purchaser:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
REGISTERED AND/OR QUALIFIED UNDER ANY STATE SECURITIES LAWS. THE
SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED
EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND REGISTRATION AND/OR
QUALIFICATION UNDER APPLICABLE STATE SECURITIES LAWS, OR (B) IN A
TRANSACTION WHICH IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND REGISTRATION
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AND/OR QUALIFICATION UNDER APPLICABLE STATE SECURITIES LAWS.
ARTICLE VI
REGISTRATION RIGHTS
6.1 Company Registration.
(a) If the Company files a registration statement under the
Securities Act for purposes of a public offering of securities of the Company
for its own account (excluding Special Registration Statements), it shall notify
the Purchaser in writing (the "Company Notice"). The Purchaser shall have the
right (the "Piggyback Right"), subject to the limitations set forth in Section
6.1(b), to include in any such registration statement all or any portion of the
Unsubscribed Shares then held by the Purchaser. In order to exercise the
Piggyback Right, the Purchaser shall give written notice to the Company (the
"Piggyback Notice") no later than 15 days following the date on which the
Company gives the Company Notice. The Piggyback Notice shall set forth the
number of Unsubscribed Shares that the Purchaser desires to include in the
registration statement.
(b) If the registration statement under which the Company gives
notice under this Section 6.1 is for an underwritten offering, the Company shall
so advise the Purchaser in the Company Notice. In such event, the right of the
Purchaser to be included in a registration pursuant to this Section 6.1 shall be
conditioned upon the Purchaser's participation in such underwritten offering and
the inclusion of the Purchaser's Unsubscribed Shares in the underwritten
offering to the extent provided herein. If the Purchaser proposes to include its
Unsubscribed Shares in such underwritten offering, the Purchaser shall enter
into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by the Company. Notwithstanding any
other provision of this Agreement, if the underwriter determines in good faith
that marketing factors require a limitation of the number of shares to be
underwritten, the number of shares that may be included in the underwriting
shall be allocated, first, to the Company; second, to the Purchaser; and third,
to any shareholder of the Company (other than the Purchaser) on a pro rata
basis. No such reduction shall reduce the securities being offered by the
Company for its own account to be included in the registration and underwriting.
If the Purchaser disapproves of the terms of any such underwriting, the
Purchaser may elect to withdraw therefrom by written notice to the Company and
the underwriter, delivered at least 30 days prior to the effective date of the
registration statement.
(c) The Company shall have the right to terminate or withdraw any
registration initiated by it under this Section 6.1 prior to the effectiveness
of such registration whether or not the Purchaser has elected to include
securities in such registration. The Registration Expenses of such withdrawn
registration shall be borne by the Company in accordance with Section 6.3
hereof.
6.2 Form S-3 Registration.
(a) After the Closing, the Purchaser may request in writing that the
Company effect a registration on Form S-3 ("Form S-3 Registration Statement")
with respect to all or a part of the Unsubscribed Shares owned by the Purchaser
("Form S-3 Request"). The Form S-3 Request shall set forth the number of
Unsubscribed Shares to be included in the Form S-3 Registration Statement. In
such event, the Company will as soon as reasonably practicable, file, and use
its commercially reasonable efforts to cause to be declared effective, a Form
S-3 Registration Statement covering the Unsubscribed Shares specified by the
Purchaser in the Form S-3 Request.
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(b) The Company shall not be obligated to effect any registration
pursuant to Section 6.2(a):
(i) if Form S-3 is not available for such offering by the
Purchaser;
(ii) if the Purchaser proposes to sell Unsubscribed Shares at
an aggregate price to the public of less than $2,000,000;
(iii) if the Company shall furnish to the Purchaser a
certificate signed by the Chief Executive Officer of the Company that it intends
to engage in a registered public offering within 90 days following receipt of
the Form S-3 Request;
(iv) if the Company shall furnish to the Purchaser a
certificate signed by the Chief Executive Officer of the Company stating that in
the good faith judgment of the Company, it would be detrimental to the Company
for such Form S-3 registration to be effected at such time, in which event the
Company shall have the right to defer the filing of the Form S-3 Registration
Statement for a period of not more than 180 days following receipt of the Form
S-3 Request;
(v) if the Company has already effected two registrations on
Form S-3 pursuant to this Section 6.2; or
(vi) in any particular jurisdiction in which the Company would
be required to qualify to do business or to execute a general consent to service
of process in effecting such registration.
(c) If the Purchaser intends to distribute the Unsubscribed Shares
covered by the Form S-3 Request by means of an underwritten offering, it shall
so advise the Company in the Form S-3 Request. In such event, the Purchaser
shall enter into an underwriting agreement in customary form with an underwriter
or underwriters selected for such underwriting by the Purchaser and acceptable
to the Company. Notwithstanding any other provision of this Section 6.2, if the
underwriter advises the Company that marketing factors require a limitation of
the number of securities to be underwritten (including Unsubscribed Shares),
then the Company shall so advise the Purchaser, and the number of securities
that may be included in the underwriting shall be reduced accordingly; provided,
however, that the number of Unsubscribed Shares to be included in such
underwriting and registration shall not be reduced unless all other securities
of the Company are first entirely excluded from the underwriting and
registration. Any Unsubscribed Shares excluded or withdrawn from such
underwriting shall be withdrawn from the registration.
(d) Notwithstanding the foregoing, the Company shall have the right,
upon giving written notice to the Purchaser ("Black-Out Notice"), to suspend the
effectiveness of a Form S-3 Registration Statement and to require the Purchaser
not to sell any Unsubscribed Shares pursuant to such Form S-3 Registration
Statement for a reasonable period (as determined in good faith by the Company)
from the date on which such Black-Out Notice is given (a "Black-Out Period"), if
(i)(A) the Company is engaged in or proposes to engage in discussions or
negotiations with respect to, or has proposed or taken a substantial step to
commence, or there otherwise is pending, any merger, acquisition, other form of
business combination, divestiture, tender offer, financing or other transaction,
or there is an event or state of facts relating to the Company, in each case
which is material to the Company (any such negotiation, step, event or state of
facts being herein called a "Material Activity"), (B) in the good faith judgment
of the Company, disclosure of such Material Activity would be necessary under
applicable securities laws, and (C) such disclosure would, in the good faith
judgment of the Company, be adverse to the interests of the Company, or (ii) the
Company, in its good faith judgment, deems it necessary to file a post-effective
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amendment to the Form S-3 Registration Statement or to prepare a supplement to,
or otherwise amend, the form of prospectus contained therein. The Black-Out
Notice shall not contain any material, nonpublic information.
6.3 Registration Expenses.
(a) Subject to Section 6.3(b), all Registration Expenses incurred in
connection with any registration of Unsubscribed Shares pursuant to Section 6.1
or Section 6.2 shall be borne by the Company. All Selling Expenses incurred in
connection with such registration of Unsubscribed Shares shall be borne by the
Purchaser.
(b) The Company shall not be required to pay for expenses of any
registration proceeding begun pursuant to Section 6.2, the request of which has
been subsequently withdrawn by the Purchaser.
6.4 Obligations of the Company. Whenever required to effect the
registration of any Unsubscribed Shares, the Company shall, as soon as
reasonably practicable:
(a) prepare and file with the SEC a registration statement with
respect to such Unsubscribed Shares and use its reasonable commercial efforts to
cause such registration statement to become effective, and, upon the request of
the Purchaser, keep such registration statement effective for up to 90 days or,
if earlier, until the Purchaser has completed the distribution related thereto;
provided, however, that:
(i) such 90 day period shall be extended for a period of time
equal to the period the Purchaser refrains from selling any securities included
in such registration at the request of the Company or an underwriter of Common
Stock of the Company; and
(ii) in the case of any registration of Unsubscribed Shares on
Form S-3 which are intended to be offered on a continuous or delayed basis, such
90 day period shall be extended, if necessary, to keep the Form S-3 Registration
Statement effective until all such Unsubscribed Shares are sold but not longer
than an additional 90 days, provided that Rule 415, or any successor rule under
the Securities Act, permits an offering on a continuous or delayed basis, and
provided further that applicable rules under the Securities Act governing the
obligation to file a post-effective amendment permit, in lieu of filing a
post-effective amendment which (A) includes any prospectus required by Section
10(a)(3) of the Securities Act or (B) reflects facts or events representing a
material or fundamental change in the information set forth in the registration
statement, the incorporation by reference in the registration statement of
information required to be included in (A) and (B) above from periodic reports
filed pursuant to Section 13 or 15(d) of the Exchange Act.
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement for the period set forth in paragraph (a) above;
(c) furnish to the Purchaser such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as the Purchaser may reasonably request
in order to facilitate the disposition of the Unsubscribed Shares;
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(d) use its commercially reasonable efforts to register and qualify
the securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Purchaser; provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions; and
(e) in the event of (i) any request by the SEC or any other federal
or state governmental authority during the period of effectiveness of a
registration statement for amendments or supplements to the registration
statement or related prospectus or for additional information, (ii) the issuance
by the SEC or any other federal or state governmental authority of any stop
order suspending the effectiveness of the registration statement or the
initiation of any proceedings for that purpose, (iii) the receipt by the Company
of any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Unsubscribed Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, or (iv) any event or circumstance which, upon the advice of the
Company's counsel, necessitates the making of any change in the registration
statement or prospectus, or any document incorporated or deemed to be
incorporated therein by reference, so that the registration statement and the
prospectus will not contain any untrue statement of a material fact or any
omission to state a material fact required to be stated therein or necessary to
make the statements therein (in the case of the prospectus in light of the
circumstances under which they were made) not misleading, the Company shall
deliver a written notice to the Purchaser (the "Suspension Notice") to the
effect of the foregoing; provided that such Suspension Notice shall not contain
any material, nonpublic information; provided further, in any such event, the
Company shall use its reasonable commercial efforts to (x) prevent the issuance
of any stop order or to obtain the withdrawal of any stop order as soon as
practicable if any stop order should be issued and (y) cause the use of any
prospectus so suspended to be resumed as soon as reasonably practicable after
the delivery of a Suspension Notice pursuant to this Section 6.4(e).
Notwithstanding the foregoing, the Company shall have no obligation with
respect to any registration requested pursuant to Section 6.2 if, due to the
operation of Section 6.2(c), the anticipated aggregate offering price of the
Unsubscribed Shares to be included in the registration does not equal or exceed
$2,000,000.
6.5 Termination of Registration Rights. All registration rights granted
under this Article VI shall terminate and be of no further force and effect on
the date upon which all of the Unsubscribed Shares then owned by the Purchaser
could be sold under Rule 144 under the Securities Act, including Rule 144(k),
during any 90-day period (the "Rights Termination Date").
6.6 Obligations of the Purchaser. The Purchaser pursuant to a registration
effected pursuant to this Agreement shall:
(a) provide all such information and material and take all actions
as may be reasonably requested by the Company in order to enable the Company to
comply with all applicable requirements of the SEC;
(b) not take any action that would prevent the distribution of
Unsubscribed Shares included in any such registration statement from being made
in accordance with the plan of distribution set forth in such registration
statement and with all applicable rules and regulations of the SEC;
(c) not deliver any form of prospectus in connection with the sale
of any Unsubscribed Shares as to which the Company has advised the Purchaser
that it is preparing an amendment or supplement;
10
(d) upon receipt of a Suspension Notice or a Black-Out Notice,
refrain from selling any Unsubscribed Shares pursuant to a registration
statement until (i) the Purchaser's receipt of copies of a supplemented or
amended prospectus prepared and filed by the Company, or (B) the Purchaser has
been advised in writing by the Company that the current prospectus may be used;
and
(e) notify the Company promptly in writing upon the sale by the
Purchaser of any Unsubscribed Shares covered by the registration statement.
The Purchaser shall not have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Article VI.
6.7 Securities Indemnification. In the event any Unsubscribed Shares are
included in a registration statement under Section 6.1 or Section 6.2:
(a) To the extent permitted by Law, the Company will indemnify and
hold harmless the Purchaser and the officers and directors of the Purchaser, any
underwriter (as defined in the Securities Act) for the Purchaser and each
Person, if any, who controls the Purchaser or such underwriter within the
meaning of the Securities Act or the Exchange Act, against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the Securities Act, the Exchange Act or other federal or state law,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively, a "Violation") by the Company: (i) any
untrue statement (or alleged untrue statement) of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission (or alleged omission) to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation by the Company of the Securities Act, the Exchange Act, any
state securities law or any rule or regulation promulgated under the Securities
Act, the Exchange Act or any state securities law in connection with the
offering covered by such registration statement. The indemnification agreement
contained in this Section 6.7(a) shall not apply to the Purchaser (i) to the
extent that any such Violation arises out of or is based on any untrue statement
(or alleged untrue statement) or omission (or alleged omission) made in reliance
upon and in conformity with written information furnished to the Company by the
Purchaser or a controlling person for use therein, (ii) if such untrue statement
(or alleged untrue statement) or omission (or alleged omission) was contained in
a preliminary prospectus and corrected in a final or amended prospectus or
supplement thereto, copies of which were delivered to the Purchaser on a timely
basis, and the Purchaser failed to deliver a copy of the final or amended
prospectus at or prior to the confirmation for the sale of the Unsubscribed
Shares to the Persons asserting any such loss, claim, damage, or liability in
any case where such delivery is required by the Securities Act, or (iii) to the
extent that the loss, claim, damage or liability as to which indemnification is
sought is in connection with an offer or sale made by the Purchaser in breach of
the terms of this Agreement (a "Breach").
(b) To the extent permitted by Law, the Purchaser will indemnify and
hold harmless the Company, each of its directors, its officers, employees and
each Person, if any, who controls the Company within the meaning of the
Securities Act, and any underwriter against any losses, claims, damages or
liabilities (joint or several) to which the Company or any such director,
officer, employee, controlling person or underwriter may become subject under
the Securities Act, the Exchange Act or other federal or state law, insofar as
such losses, claims, damages or liabilities (or actions in respect thereto)
arise out of or are based upon (i) any Breach by the Purchaser, or (ii) any
Violation to the extent that such Violation occurs in reliance upon and in
conformity with information furnished by the Purchaser for use in connection
with such registration; provided, however, that in no event shall the indemnity
by
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the Purchaser under this Section 6.7(b) exceed the net proceeds from the sale of
Unsubscribed Shares in the offering received by the Purchaser, except in the
case of willful fraud by the Purchaser.
(c) If the indemnification provided for in this Section 6.7 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any losses, claims, damages or liabilities referred to herein,
the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall to the extent permitted by applicable Law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the Violation(s) that resulted in such
loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. In no event shall any contribution by the Purchaser under
this Section 6.7(c) exceed the net proceeds from the sale of Unsubscribed Shares
in the offering received by the Purchaser, except in the case of willful fraud
by the Purchaser.
(d) The terms and conditions of Sections 9.2 and 9.3 shall also
apply to the indemnification matters set forth in this Section 6.7.
ARTICLE VII
CONDITIONS
7.1 Conditions to Obligations of the Purchaser and the Company at the
Closing. The obligations of the Purchaser to purchase from the Company, and the
Company to sell to the Purchaser, the Unsubscribed Shares and to consummate the
other transactions contemplated hereby are subject to the satisfaction (or
waiver by the Purchaser and the Company) at or prior to the Closing Date of each
of the following conditions:
(a) no preliminary or permanent injunction or other Order by any
Governmental Authority which prevents the consummation of the transactions
contemplated hereby shall have been issued and remain in effect (each Party
agreeing to use its reasonable efforts to have any such injunction or Order
lifted);
(b) no statute, rule, regulation or other Law shall have been
enacted by any Governmental Authority which would prevent or make illegal the
consummation of the transactions contemplated by this Agreement;
(c) any consents, filings and approvals that are necessary for the
consummation of the transactions contemplated by this Agreement shall have been
made or obtained except where (i) the Company's failure to make or obtain such
consents, filings and approvals would not have a Material Adverse Effect or a
material adverse effect on the Company's ability to perform its obligations
under this Agreement or (ii) the Purchaser's failure to obtain such consents,
filings and approvals would not have a material adverse effect on the
Purchaser's ability to perform its obligations under this Agreement; and
(d) the Registration Statement shall have been declared effective by
the SEC and no stop order shall have been issued with respect thereto.
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7.2 Additional Conditions to Obligations of the Purchaser at the Closing.
The obligation of the Purchaser to purchase the Unsubscribed Shares and
consummate the other transactions contemplated hereby shall be subject to the
satisfaction (or waiver by the Purchaser) at or prior to the Closing Date of
each of the following additional conditions:
(a) the representations and warranties of each of Blue Ridge and Big
Boulder set forth in this Agreement shall be true and correct in all material
respects as of the date hereof and as of the Closing as though made on and as of
the Closing or in the case of representations and warranties made as of a
specified date earlier than the Closing, shall have been true and correct in all
material respects on and as of such date;
(b) each of Blue Ridge and Big Boulder shall have performed and
complied in all material respects with the covenants and agreements contained in
this Agreement which are required to be performed and complied with by it on or
prior to the Closing Date;
(c) from the date hereof through the Closing Date, there shall not
have occurred, and be continuing, a Material Adverse Effect;
(d) the trading of the Common Stock shall not have been suspended by
the SEC or by any automated quotation system on which the Common Stock is
quoted;
(e) the Company shall have delivered the certificates for the
Unsubscribed Shares to the Purchaser; and
(f) each of Blue Ridge and Big Boulder shall have delivered to the
Purchaser an officer's certificate certifying as to its compliance with the
conditions set forth in clauses (a) and (b) of this Section 7.2.
7.3 Additional Conditions to Obligations of the Company at the Closing.
The obligations of the Company issue and sell the Unsubscribed Shares and to
consummate the other transactions contemplated hereby shall be subject to the
satisfaction (or waiver by the Company) at or prior to the Closing Date of each
of the following additional conditions:
(a) the representations and warranties of the Purchaser set forth in
this Agreement shall be true and correct in all material respects as of the date
hereof and as of the Closing as though made on and as of the Closing or in the
case of representations and warranties made as of a specified date earlier than
the Closing, shall have been true and correct in all material respects on and as
of such date;
(b) the Purchaser shall have performed and complied in all material
respects with the covenants and agreements contained in this Agreement which are
required to be performed and complied with by it on or prior to the Closing
Date; and
(c) the Purchaser shall have delivered the following to the Company:
(i) the purchase price payable for the Unsubscribed Shares;
(ii) an officer's certificate certifying as to the Purchaser's
compliance with the conditions set forth in clauses (a) and (b) of this Section
7.3; and
13
(iii) such other documents as may be required by this
Agreement or reasonably requested by the Company.
ARTICLE VIII
TERMINATION
8.1 Termination. This Agreement may be terminated at any time:
(a) by mutual written agreement of the Company and the Purchaser;
(b) by the Company (i) upon a breach of any covenant or agreement on
the part of the Purchaser set forth in this Agreement or if any representation
or warranty of the Purchaser set forth in this Agreement shall not be true and
correct, in either case such that the conditions set forth in Section 7.3(a) or
7.3(b) would not be satisfied (a "Terminating Purchaser Breach"); provided, that
such Terminating Purchaser Breach shall not have been waived or cured by the
earlier of (x) the Closing Date or (y) within 30 days after written notice of
such Terminating Purchaser Breach is given to the Purchaser by the Company; or
(ii) if any condition to the Company's obligations to close at the Closing set
forth in Article VII has not been satisfied as of the Closing or satisfaction of
such a condition is or becomes impossible (other than because of the failure of
the Company to comply with its obligations under this Agreement), and the
Company has not waived such condition;
(c) by the Purchaser: (i) upon a breach of any covenant or agreement
on the part of the Company set forth in this Agreement or if any representation
or warranty of the Company set forth in this Agreement shall not be true and
correct, in either case such that the conditions set forth in Section 7.2(a) or
7.2(b) would not be satisfied (a "Terminating Company Breach"); provided, that
such Terminating Company Breach shall not have been waived or cured by the
earlier of (x) the Closing Date or, (y) within 30 days after written notice of
such Terminating Company Breach is given to the Company by the Purchaser; or
(ii) if any condition to the Purchaser's obligation to close set forth in
Article VII has not been satisfied as of the Closing, or satisfaction of such a
condition is or becomes impossible (other than because of the failure of the
Purchaser to comply with its obligations under this Agreement), and the
Purchaser has not waived such condition; and
(d) after July 1, 2005, by the Company or the Purchaser in the event
the Registration Statement has not been declared effective by the SEC by such
date.
8.2 Effect of Termination. If this Agreement is terminated by either the
Company or the Purchaser pursuant to the provisions of Section 8.1, this
Agreement shall forthwith become void and there shall be no further obligations
on the part of the Company or the Purchaser or their respective directors,
officers, employees, agents or representatives, except for the provisions of
Articles VIII and IX and Sections 6.7, 10.1, 10.2, 10.4, 10.5, 10.7, 10.8 and
10.9, which shall survive any termination of this Agreement; provided, that
nothing in this Section 8.2 shall relieve any Party from liability for any
willful breach of this Agreement.
ARTICLE IX
INDEMNIFICATION
9.1 Indemnification
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(a) The Company shall indemnify and hold harmless the Purchaser, its
directors, officers, employees, agents, representatives, affiliates and
controlling Persons against any and all losses, claims, damages, liabilities and
expenses (including reasonable attorneys' and accountants' fees, disbursements
and expenses, as incurred) (collectively, "Losses") incurred or suffered by such
party arising out of or based upon any breach of a representation or warranty or
breach of or failure to perform any covenant or agreement on the part of the
Company contained in this Agreement.
(b) The Purchaser shall indemnify and hold harmless each of Blue
Ridge and Big Boulder and its directors, officers, employees, agents,
representatives, affiliates and controlling Persons against any and all Losses
incurred or suffered by such party arising out of or based upon any breach of a
representation or warranty or breach of or failure to perform any covenant or
agreement on the part of the Purchaser contained in this Agreement.
9.2 Indemnification Procedures. All claims or demands for indemnification
under Article IX shall be asserted and resolved as follows:
(a) In the event that any claim or demand for which a Party (the
"Indemnifying Party") would be liable to the other Party (the "Indemnified
Party") hereunder is asserted against an Indemnified Party by a third party, the
Indemnified Party shall with reasonable promptness notify the Indemnifying Party
of such claim or demand (the "Claim Notice"), specifying the nature of such
claim or demand and the amount or the estimated amount thereof to the extent
then feasible (which estimate shall not be conclusive of the final amount of
such claim or demand). The Indemnifying Party shall have fifteen (15) days from
the receipt of the Claim Notice (the "Notice Period") to notify the Indemnified
Party (i) whether or not the Indemnifying Party disputes the Indemnifying
Party's liability to the Indemnified Party hereunder with respect to such claim
or demand and (ii) if the Indemnifying Party does not dispute such liability,
whether or not the Indemnifying Party desires, at the sole cost and expense of
the Indemnifying Party, to defend against such claim or demand, provided that
the Indemnified Party is hereby authorized (but not obligated) prior to and
during the Notice Period to file any motion, answer or other pleading and to
take such action which the Indemnified Party shall reasonably deem necessary or
appropriate to protect the Indemnified Party's interests. In the event that the
Indemnifying Party notifies the Indemnified Party within the Notice Period that
the Indemnifying Party does not dispute the Indemnifying Party's obligation to
indemnify hereunder and desires to defend the Indemnified Party against such
claim or demand and except as hereinafter provided, the Indemnifying Party shall
have the right to defend (with counsel reasonably satisfactory to the
Indemnified Party) by appropriate proceedings; provided that, unless the
Indemnified Party otherwise agrees in writing, the Indemnifying Party may not
settle any matter (in whole or in part) unless such settlement includes a
complete and unconditional release of the Indemnified Party. If the Indemnified
Party desires to participate in, but not control, any such defense or
settlement, the Indemnified Party may do so at its sole cost and expense. If the
Indemnifying Party elects not to defend the Indemnified Party against such claim
or demand, whether by not giving the Indemnified Party timely notice as provided
above or otherwise, then the Indemnified Party, without waiving any rights
against the Indemnifying Party, may settle or defend against any such claim in
the Indemnified Party's sole discretion and, if it is ultimately determined that
the Indemnifying Party is responsible therefor under this Article IX, then the
Indemnified Party shall be entitled to recover from the Indemnifying Party the
amount of any settlement or judgment and all indemnifiable costs and expenses of
the Indemnified Party with respect thereto, subject to the limitations set forth
in this Article IX.
(b) If at any time, in the reasonable opinion of the Indemnified
Party, notice of which shall be given in writing to the Indemnifying Party, any
such claim or demand seeks material prospective relief which could have a
materially adverse effect on the business, operations, results of operations or
condition (financial and otherwise) of any Indemnified Party, the Indemnified
Party shall have the right to
15
control or assume (as the case may be) the defense of any such claim or demand
and the amount of any judgment or settlement and the reasonable costs and
expenses of defense shall be included as part of the indemnification obligations
of the Indemnifying Party hereunder. If the Indemnified Party should elect to
exercise such right, the Indemnifying Party shall have the right to participate
in, but not control, the defense of such claim or demand at the sole cost and
expense of the Indemnifying Party.
(c) In the event the Indemnified Party should have a claim against
the Indemnifying Party hereunder which does not involve a claim or demand being
asserted against or sought to be collected by a third party, the Indemnified
Party shall with reasonable promptness send a Claim Notice with respect to such
claim to the Indemnifying Party. If the Indemnifying Party does not notify the
Indemnified Party within the Notice Period that the Indemnifying Party disputes
such claim, the amount of such claim shall be conclusively deemed a liability of
the Indemnifying Party hereunder.
(d) The Indemnified Party's failure to give reasonably prompt notice
to the Indemnifying Party of any actual, threatened or possible claim or demand
which may give rise to a right of indemnification hereunder shall not relieve
the Indemnifying Party of any liability which the Indemnifying Party may have to
the Indemnified Party unless the failure to give such notice materially and
adversely prejudices the Indemnifying Party.
9.3 Limitations on Indemnification.
(a) Neither the Company nor the Purchaser shall have any obligation
under this Article IX to indemnify any Person for lost profits or for
consequential, incidental, punitive or exemplary damages.
(b) The indemnification provided in this Article IX shall be the
sole and exclusive remedy for monetary damages available to the Company and the
Purchaser for matters for which indemnification is provided under this Article
IX.
ARTICLE X
MISCELLANEOUS
10.1 Definitions. The following terms, as used in this Agreement, shall
have the following meanings:
"Affiliate" shall have the meaning ascribed to such term in Rule 12b-2
under the Exchange Act.
"Business Day" shall mean any day other than Saturday, Sunday and any day
on which banking institutions in the State of New York are authorized by Law or
other governmental action to close.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any successor federal statute, in each case as the same shall be in effect at
the time.
"Form S-3" means such form under the Securities Act as in effect on the
date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
"Governmental Authority" shall mean any federal, state or local
governmental, regulatory, legislative, executive or administrative agency,
commission, body, department, board, or other
16
governmental subdivision, court, tribunal, arbitrating body or other
governmental authority.
"Laws" shall mean all federal, state and local laws, statutes, ordinances,
rules, regulations, orders and decrees.
"Material Adverse Effect" shall mean a material adverse effect on the
business, condition (financial or otherwise) or results of operations of Blue
Ridge, Big Boulder and their respective subsidiaries, taken as a whole.
"Order" shall mean any judgment, rule, decree, writ, injunction, order or
decision of any Governmental Authority that is binding on any person or its
property under applicable Law.
"Person" shall mean any individual, firm, corporation, limited liability
company, partnership, company or other entity, and shall include any successor
(by merger or otherwise) of such entity.
"Register," "registered," and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of effectiveness of such
registration statement or document.
"Registration Expenses" shall mean all registration and filing fees,
printing expenses, fees and disbursements of counsel for the Company, blue sky
fees and expenses and the expense of any special audits incident to or required
by any such registration; provided, however, that such expenses shall exclude
any Selling Expenses.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
successor federal statute, in each case as the same shall be in effect at the
time.
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Unsubscribed Shares.
"Special Registration Statement" shall mean a registration statement
relating to any employee benefit plan or with respect to any corporate
reorganization or other transaction under Rule 145 under the Securities Act.
10.2 Assignment; Successors and Assigns. No Party may assign either this
Agreement or any of its rights, interests, or obligations hereunder without the
prior written approval of the other Parties, and any attempted assignment in
violation of the foregoing shall be void ab initio. Subject to the preceding
sentence, all of the terms and provisions of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the successors and
permitted assigns of the Parties.
10.3 Entire Agreement. This Agreement sets forth the entire agreement of
the Parties with respect to the subject matter hereof. Any prior agreements or
understandings among the Parties regarding the subject matter hereof, whether
written or oral, are superseded by this Agreement.
10.4 Notices. Any notice, request, claim, demand, waiver, consent,
approval or other communication which is required or permitted hereunder shall
be in writing and shall be deemed received on the day delivered personally or
sent by facsimile (with confirmation of receipt), on the third Business Day
after posted by registered or certified mail, postage prepaid, or on the next
Business Day after sent by recognized overnight courier service, as follows:
17
(i) if to the Company, to:
Blue Ridge Real Estate Company
Big Boulder Corporation
Xxxxx 000 xxx Xxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Facsimile No. (000) 000-0000
Attention: Xxxxx Xxxxxxxxxx
with a copy to:
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile No. (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
(ii) if to the Purchaser, to:
Kimco Realty Services, Inc.
0000 Xxx Xxxx Xxxx Xxxx
Xxxxx 000
Xxx Xxxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxx
or to such other address as the Person to whom notice is to be given may have
specified in a notice duly given to the sender as provided herein.
10.5 Amendments; Waivers. This Agreement shall not be amended or modified
except by a written instrument duly executed by each of the Parties. Any
extension or waiver by any Party of any provision hereto shall be valid only if
set forth in an instrument in writing signed on behalf of such Party.
10.6 Counterparts. This Agreement may be executed in any number of
counterparts and any Party may execute any such counterpart, each of which when
executed and delivered (which deliveries may be made by facsimile) shall be
deemed to be an original, and all of which counterparts taken together shall
constitute but one and the same instrument.
10.7 Governing Law. This Agreement shall be governed by and construed,
interpreted and enforced in accordance with the Laws of the Commonwealth of
Pennsylvania, without giving effect to any of the conflicts of laws provisions
thereof that would require the application of the substantive Laws of any other
jurisdiction.
10.8 Exclusive Jurisdiction; Venue. Each of the Company and the Purchaser
hereby irrevocably submits in any suit, action or proceeding arising out of or
relating to this Agreement or any of the transactions contemplated hereby to the
exclusive jurisdiction and venue of the federal and state courts in the
Commonwealth of Pennsylvania and irrevocably waives any and all objections to
exclusive jurisdiction or review of venue that any such Party may have under the
laws of the Commonwealth of Pennsylvania or the United States. Without limiting
the other remedies, this Agreement shall be enforceable by specific performance.
18
10.9 Survival. All representations, warranties, covenants and agreements
made by each party in this Agreement shall survive the Closing until the first
anniversary of the date hereof, except (a) for the covenants and agreements
contained in Article IV, which shall survive indefinitely and (b) for the
covenants and agreements set forth in Article VI, which shall survive until the
Rights Termination Date.
10.10 Severability. If any provision of this Agreement or the application
thereof to any Person or circumstance is held invalid or unenforceable in any
jurisdiction, the remainder hereof, and the application of such provision to
such Person or circumstance in any other jurisdiction or to other Persons or
circumstances in any jurisdiction, shall not be affected thereby, and to this
end the provisions of this Agreement shall be severable.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties hereto have duly executed and delivered
this Standby Securities Purchase Agreement as of the date first above written.
BLUE RIDGE REAL ESTATE COMPANY
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer,
President & Director
BIG BOULDER CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer,
President & Director
KIMCO REALTY SERVICES, INC.
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: President
20
