Stock Repurchase Agreement
This Stock Repurchase Agreement (this "Agreement"), dated as of March 16,
2007, is by and among DVL, Inc., a Delaware corporation (the "Company"),
Blackacre Bridge Capital, L.L.C., a New York limited liability company
("Blackacre Bridge") and Blackacre Capital Group, L.P., a Delaware limited
partnership ("Blackacre Capital").
WHEREAS, Blackacre Bridge and Blackacre Capital (collectively, the
"Sellers") own 4,753,113 (the "Blackacre Bridge Shares") and 653,000 ( the
"Blackacre Capital Shares" which, together with the Blackacre Bridge Shares, are
collectively referred to herein as the "Shares"), respectively, of the common
stock, par value $.01 per share of the Company; and
WHEREAS, the Company desires to purchase all of the Shares from the
Sellers at a purchase price of $.12 per Share, all on the terms and conditions
set forth herein.
NOW, THEREFORE, in receipt of valid consideration therefor, the parties
hereto agree as follows:
1. Sale and Purchase of the Shares
Subject to the terms and conditions of this Agreement, (a) Blackacre
Bridge hereby transfers, assigns, conveys, delivers and sells all
right, title and interest in and to the Blackacre Bridge Shares to
the Company, and the Company hereby accepts, acquires and purchases
all of the Blackacre Bridge Shares from Blackacre Bridge for an
aggregate purchase price of $570,373.56 (the "Blackacre Bridge
Purchase Price"), and (b) Blackacre Capital hereby transfers,
assigns, conveys, delivers and sells all right title and interest in
and to the Blackacre Capital Shares, and the Company hereby accepts,
acquires and purchases all of the Blackacre Capital Shares from
Blackacre Capital for an aggregate purchase price of $78,360 (the
"Blackacre Capital Purchase Price").
2. Payment for and Delivery of the Shares.
(a) The Blackacre Bridge Purchase Price and the Blackacre Capital
Purchase Price are hereby paid to Blackacre Bridge and
Blackacre Capital, respectively, by wire transfer of
immediately available funds to account(s) designated in
writing by each such Seller or by certified or bank check made
payable to each such Seller.
(b) Contemporaneously herewith, each of the Sellers shall deliver
to the Company the stock certificates (the "Certificates")
evidencing all of the Shares, together with duly executed
stock powers and other documents of transfer, conveyance and
assignment in form and substance reasonably satisfactory to
the Company and Company's counsel required to transfer all
right, title and interest in and to the Shares to the Company
and vest in the Company good and marketable title to the
Shares free and clear of all Liens (as defined in Section 3(b)
hereof).
3. Representations and Warranties
(a) Mutual Representations and Warranties. Each of the Sellers
hereby represents and warrants to the Company, and the Company
hereby represents and warrants to the Sellers, that the
transactions contemplated hereby will not violate (i) its
charter, articles or certificate of incorporation or bylaws
(or other organizational documents), if applicable, or any
agreement, indenture or other instrument to which it is a
party, (ii) any judgment, decree, order or award of any court,
governmental body or arbitrator to which it is subject, or
(iii) any law, rule or regulation applicable to it. Each of
the Sellers hereby represents and warrants to the Company, and
the Company hereby represents and warrants to the Sellers,
that (i) it has full legal right, power and authority to
execute, deliver and perform this Agreement and the
transactions contemplated hereby, (ii) the execution, delivery
and performance by it of this Agreement and the consummation
by it of the transaction contemplated by this Agreement have
been duly authorized by all necessary corporate or other
action, as the case may be, and no other proceedings on the
part of it are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby, and (iii)
this Agreement has been duly and validly executed and
delivered by such party and constitutes a valid and binding
obligation of such party, enforceable against it in accordance
with its terms. In addition, each of the Sellers hereby
represents and warrants to the Company, and the Company hereby
represents and warrants to the Sellers, that no commission or
remuneration has been paid or given directly or indirectly for
soliciting the sale or purchase of the Shares contemplated
under this Agreement.
(b) Representations and Warranties of the Sellers. By executing
this Agreement, each of the Sellers hereby represents and
warrants to the Company that (i) other than with the Company,
the Sellers do not presently have any undertaking, contract,
agreement or other such arrangement to sell or transfer any of
the Shares to any natural person, corporation, partnership,
limited liability company, trust, incorporated organization,
unincorporated association, or similar entity or any
government, governmental agency or political subdivision, (ii)
each of Blackacre Bridge and Blackacre Capital is the record
and beneficial owner of the Blackacre Bridge Shares and the
Blackacre Capital Shares, respectively, free and clear of all
liens, pledges, encumbrances, restrictions options and claims
of any kind (the "Liens"), (iii) at the time the Company
offered to purchase the Shares, the Sellers were and at the
date hereof are an "accredited investor" as defined in Rule
501(a) under the Securities Act of 1933, as amended, (iv) the
Sellers have experience in the kinds of transactions
contemplated by this Agreement and are able by reasons of
business and financial experience, to protect their own
interests in connection with such transactions hereby and have
the knowledge and sophistication in evaluating the merits and
risks of the sale of the Shares and have so evaluated such
merits and risks, (v) the Sellers and their advisors, if any,
have requested, received and considered all information
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relating to the business, properties, operations, condition
(financial or other), results of operations or prospects of
the Company and the information relating to the transactions
contemplated by this Agreement, and (vi) the Sellers and their
advisors, if any, have been afforded the opportunity to ask
questions of the Company concerning the terms of the sale of
the Shares and the business, properties, operations, condition
(financial or other), results of operations and prospects of
the Company and its subsidiaries, and have received
satisfactory and sufficient answers to any such inquires, and
have received all information from the Company, sufficient to
enable the Sellers to evaluate their respective investment
decisions hereby; without limiting the generality of the
foregoing, the Sellers have had the opportunity to obtain and
to review the Company's Annual Reports on Form 10-KSB, the
Company's Quarterly Reports on Form 10-QSB, the Company's
Current Reports on Form 8-K, in each case as filed with the
Securities and Exchange Commission (the "SEC") including the
information and documents (other than exhibits) incorporated
by reference as well as all other publicly filed documents and
all additional information that is necessary to make an
informed decision with respect to the transactions
contemplated hereby. Each of the Sellers hereby represents,
warrants and covenants to file (or cause to be filed in the
case of filings required to be made by any affiliate of the
Sellers) all documents required to be filed with the SEC under
the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the rules and regulations thereunder by or on behalf
of the Sellers or any of their respective affiliates as a
result of or in connection with the transactions contemplated
herein, within the time periods required by the Exchange Act
and the rules and regulations thereunder.
(c) Survival. All representations, warranties and covenants made
herein shall survive delivery of any payment for the Shares,
any transfer of the Certificates as well as any other
consummation of the transactions contemplated herein. The
Company makes no representations or warranties in any oral or
written information provided to either of the Sellers, other
than the representations and warranties included herein.
4. Indemnification and Release
(a) The Sellers hereby agree, jointly and severally (i) to
indemnify and hold harmless the Company and its directors,
officers, shareholders, employees, agents, advisors,
successors and assigns (the "Company Parties") against, and to
reimburse the Company Parties on demand with respect to, any
and all losses, liabilities, obligations, suits, proceedings,
demands, judgments, damages, claims, expenses and costs
(including, without limitation, reasonable fees, expenses and
disbursements of counsel) (collectively, "Damages") which each
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may suffer, incur or pay by reason of (A) the breach by either
of the Sellers of any representation or warranty contained in
this Agreement, or in any agreement, certificate or instrument
executed by it and contemplated hereby, or (B) the failure of
either of the Sellers to perform any of the obligations
required by this Agreement or any additional agreement,
certificate or instrument contemplated hereby, and (ii) in all
respects to release the Company from any and all liability
that may occur in connection with the sale of the Shares as of
the date hereof and after this Agreement is hereby executed
other than with respect to the performance by the Company of
its obligations required by this Agreement and under the
indemnification provisions in Section 4(b)(i) below.
(b) The Company hereby agrees (i) to indemnify and hold harmless
each of the Sellers and each of its respective directors,
officers, shareholders, employees, agents, advisors,
successors and assigns (the "Seller Parties") against, and to
reimburse the Seller Parties on demand with respect to, any
and all Damages which each may suffer, incur or pay by reason
of (A) the breach by the Company of any representation or
warranty contained in this Agreement, or in any agreement,
certificate or instrument executed by it and contemplated
hereby, or (B) the failure of the Company to perform any of
the obligations required by this Agreement or any additional
agreement, certificate or instrument contemplated hereby, and
(ii) in all respects to release the Sellers from any and all
liability that may occur in connection with the sale of the
Shares as of the date hereof and after this Agreement is
hereby executed other than with respect to the performance by
each of the Sellers of its respective obligations required by
this Agreement and under the indemnification provisions in
Section 4(a)(i) above.
5. Further Assurances
At any time or from time to time following the execution of this
Agreement, each of the Sellers agree to cooperate with the Company
and at the request of the Company to execute and deliver any further
instruments or documents and to take all such further action as the
Company may reasonably request in order to evidence or effectuate
the transactions contemplated hereby.
6. Waiver of Rights
Contemporaneously herewith, that certain Exchange Agreement dated as
of December 28, 2001 (the "Exchange Agreement"), by and between the
Company and Blackacre Bridge is hereby terminated in all respects
and has no further force and effect and Blackacre Bridge hereby
waives in all respects any and all rights it may have under the
Exchange Agreement; provided, however, that the representations and
warranties contained in Article Two of the Exchange Agreement shall
continue to survive such termination and waiver.
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7. Confidentiality
Each of the Sellers will hold, and will cause its officers,
directors, managers, partners, employees, consultants, advisors and
agents (collectively, the "Representatives") to hold in confidence
any information which the Company provides to any of the Sellers in
connection with this Agreement; provided, however, that the Sellers
shall not be required to maintain confidentiality with respect to
information which (i) is or becomes generally available to the
public other than as a result of a disclosure by either of the
Sellers or their respective Representatives, (ii) is or becomes
available to either of the Sellers from a source other than the
Company or its agents or advisors, or (iii) was available to the
Sellers prior to its disclosure to either of the Sellers by the
Company or its agents or advisors.
8. Miscellaneous
(a) Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be
deemed given if delivered personally or by facsimile
transmission or two days after being mailed by certified or
registered mail, postage prepaid, return receipt requested, to
the parties, their successors in interest or their assignees
at the following addresses, or at such other addresses as the
parties may designate by written notice in the manner
aforesaid:
If to Blackacre Bridge: Blackacre Bridge Capital L.L.C.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx
Xxxxxx X. Xxxxxx
with a copy to: Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx, Esq.
If to Blackacre Capital: Blackacre Capital Group, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx
Xxxxxx X. Xxxxxx
with a copy to: Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx, Esq.
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If to the Company: DVL, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
with a copy to: Xxxxxx Xxxxxx Xxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
and Xxxxxx X. Xxxxxx, Esq.
(b) Assignability and Parties in Interest. This Agreement shall
not be assignable by any of the parties hereto without the
consent of the other parties hereto. This Agreement shall
inure to the benefit of and be binding upon the parties and
their respective permitted successors and assigns.
(c) Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the internal
substantive law, and not the law pertaining to conflicts or
choice of law, of the State of New York.
(d) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but
all of which shall constitute one and the same instrument.
(e) Complete Agreement. This Agreement is an integrated agreement
containing the entire agreement between the parties hereto
with respect to the subject matter hereof and shall supersede
all previous, and all contemporaneous oral or written
negotiations, commitments or understandings.
(f) Modifications, Amendments and Waivers. This Agreement may be
modified, amended or otherwise supplemented only by a writing
signed by the party against whom it is sought to be enforced.
No waiver of any right or power hereunder shall be deemed
effective unless and until a writing waiving such right or
power is executed by the party waiving such right or power.
(g) Third Party Beneficiaries. There are no third party
beneficiaries under this Agreement or intended by any party
hereto.
(h) Expenses. Each party hereto shall bear its own costs and
expenses, including, without limitation, attorneys' fees,
incurred in connection with this Agreement and the
consummation of the transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
DVL, INC.
By: /s/ Xxxxx Xxxxx
---------------------------------------
Name: Xxxxx Xxxxx
Title: Executive Vice President & Chief
Financial Officer
BLACKACRE BRIDGE CAPITAL, L.L.C.
By: Blackacre Capital Management, LLC. its
Managing Member
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
BLACKACRE CAPITAL GROUP, L.P.
By: Blackacre Capital Management, LLC, its
General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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