Stock Purchase Agreement - The Owners Club Inc. and Telluride 2001 Holdings Inc.
STOCK PURCHASE AGREEMENT
OWNERS CLUB AT TELLURIDE, INC.
THIS STOCK PURCHASE AGREEMENT (this "AGREEMENT") is made and entered
into as of the 4th day of September, 2001 (the "EFFECTIVE DAY"), by and between
THE OWNERS CLUB, INC., a Delaware corporation (the "SELLER"), and TELLURIDE
2001 HOLDINGS, LLC, a Delaware limited liability company (the "PURCHASER").
RECITALS:
A. The Seller is the sole shareholder of all of the capital stock (the
"SHARES") of Owners Club at Telluride, Inc., a Colorado corporation ("OCT").
B. OCT is a member, majority equity holder and operating manager of The
Telluride Club Mountain Village, L.L.C., a Nevada limited liability company
("TELLURIDE CLUB").
C. Telluride Club owns real property, condominium units, club
facilities and personal property located in San Miguel County, Colorado
(collectively, the "PROPERTY") for the operation of a residential time-share
project commonly known as "The Owners Club at Telluride" (the "PROJECT").
D. The Seller desires to sell and the Purchaser desires to purchase the
Shares upon and subject to the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the mutual representations and
agreements set forth in this Agreement, the Seller and the Purchaser hereby
agree as follows.
Section 1. PURCHASE AND SALE OF STOCK
1.1. Sale of Shares to Purchaser. Subject to the terms and conditions
of this Agreement, the Seller agrees to sell to the Purchaser and the Purchaser
agrees to purchase from the Seller, the Shares for an aggregate purchase price
of One and No/100 Dollar ($1.00) (the "PURCHASE PRICE").
1.2. Closing; Payment and Delivery. Payment for and delivery of the
certificates evidencing the Shares to be sold to the Purchaser (the "CLOSING")
shall be consummated September 4, 2001 and the Purchaser (the "CLOSING DATE") at
such place designated by the Seller. At the Closing; the Purchaser will deliver
to the Seller the Purchase Price.
Section 2. PURCHASER'S OBLIGATIONS AT CLOSING. At the Closing, the Purchaser
shall satisfy the following obligations, any of which may be waived by the
Seller in writing:
2.1. Payment of Purchase Price. At the Closing, the Purchaser shall pay
the Seller the Purchase Price.
2.2. Delivery of Documents. At the Closing, the Purchaser shall have
delivered to the Seller fully executed originals of each of the following:
(a) an indemnification agreement in the form attached hereto
as Exhibit A (the "INDEMNIFICATION AGREEMENT"); and
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(b) a management agreement in the form attached hereto as
Exhibit B (the "MANAGEMENT AGREEMENT").
2.3. Corporate Proceedings. The Purchaser shall deliver to the Seller
documents necessary to evidence, to Seller's satisfaction, that all corporate
and other proceedings required to be taken by the Purchaser in connection with
the Closing and all documents incident thereto have been completed by the
purchaser.
Section 3. SELLER'S OBLIGATIONS AT CLOSING. At the Closing, the Seller shall
satisfy the following obligations, any of which may be waived by the Purchaser
in writing:
3.1. Corporate Proceedings. The Seller shall deliver to the Purchaser
documents necessary to evidence, to Purchaser' satisfaction, that all corporate
and other proceedings required to be taken by the Seller in connection with the
Closing and all documents incident thereto have been completed by the Seller.
3.2. Delivery of Documents. At the Closing, the Seller shall have
delivered to the Purchaser each of the following:
(a) resolutions approved by the Board of the Seller approving
the transactions contemplated by this Agreement;
(b) a Stock Power, transferring the Shares from the Seller to
Purchaser;
(c) original stock certificate number 1 representing a total
of 1,000 shares of common stock of OCT;
(d) the Indemnification Agreement;
(e) the Management Agreement; and
(f) an assignment of interest agreement in the form attached
hereto as Exhibit C (the "ASSIGNMENT OF INTEREST").
Section 4. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller hereby
represents and warrants to the Purchaser as of the date hereof that:
4.1. Organization and Qualification. The Seller is a
corporation duly incorporated, validly existing and in good standing
under the laws of the State of Delaware.
4.2. Power. The Seller has all requisite legal power to (i)
enter into this Agreement, (ii) sell and transfer the Shares to
Purchaser, and (iii) carry out and perform its other obligations under
the terms hereof.
4.3. Capitalization. The authorized capital stock of OCT
consists of 1,000 shares of common stock, $1.00 par value, of which
1,000 shares are designated by certificate number 1, which is issued in
the name of Seller. Prior to giving effect to the transactions
contemplated by this Agreement, all of the capital stock of OCT which
is issued and outstanding was owned of record by Seller.
4.4. Corporate Authorizations. All corporate action on the
part of the Seller and its directors and stockholders necessary for the
authorization, execution and delivery of this Agreement and the
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consummation of the transactions contemplated hereby, and for the sale and
delivery of the Shares has been taken. This Agreement is a legal, valid and
binding obligation of the Seller, enforceable in accordance with its respective
terms.
4.5. Validity of Securities. Except for liens, claims or encumbrances
created by or through the Purchaser or restrictions generally imposed by
applicable laws, the Shares, when sold and delivered in accordance with the
terms of this Agreement against payment therefor, will be duly and validly
issued and free and clear of all liens, claims and encumbrances.
4.6. Fees and Commissions. The Seller has not retained any finder, broker,
agent, financial adviser or other intermediary in connection with the
transactions contemplated by this Agreement, and the Seller does not owe any
such fees to any person in connection therewith.
Section 5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
hereby represents and warrants to the Company as of the date hereof that:
5.1. Organization; Power; Authority. The Purchaser is duly organized and
validly existing under the laws of the state of its formation with the requisite
legal power and authority to own its property and to carry on its business as
currently conducted. The Purchaser has all requisite legal power and authority
to enter into this Agreement and to carry out and perform its obligations under
the terms hereof. All action on the part of the Purchaser necessary for the
authorization, execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby has been taken.
5.2. Fees and Commissions. The Purchaser has not retained any finder,
broker, agent, financial advisor or other intermediary in connection with the
transactions contemplated by this Agreement, and the Purchaser does not owe any
such fees to any person in connection therewith.
5.3. Access to Information and Lack of Registration. The Purchaser
acknowledges that (i) it has been afforded the opportunity to ask such questions
as the Purchaser has deemed necessary of, and to receive answers from,
representatives of the Seller concerning the Shares, OCT, the Telluride Club and
the Project; (ii) it has been afforded access to information about OCT, the
Telluride Club and the Project including the financial condition, results of
operations, business, properties, management and prospects sufficient to enable
the Purchaser to evaluate the investment in the Shares, OCT, the Telluride Club
and the Project; (iii) it has been afforded the opportunity to obtain such
additional information that the Seller possesses or can acquire without
unreasonable effort or expense that is necessary to make an informed investment
decision with respect to an investment in OCT, the Telluride Club and the
Project, and (iv) the Shares have not been and will not be registered under the
U.S. Securities Act of 1933, and may not be offered or sold in the United States
or to any U.S. person unless such securities have been registered under the
Securities Act of 1933 or an exemption from the registration requirements
thereof is available.
5.4. Accredited Investor. The Purchaser is an "accredited investor" as
defined in Rule 501(a) under the Securities Act of 1933.
5.5. Sophistication and Economic Risk. The Purchaser has (i) either alone
or together with the Purchaser's representatives, such knowledge,
sophistication, and experience in business, real estate, investment and
financial matters and in evaluating and investing in common stock of privately
held companies, so as to be capable of evaluating the merits and risks of an
investment in the Shares to be acquired by the Purchaser hereunder, (ii)
evaluated the merits and risks of an investment in OCT, and (iii) the ability to
bear the economic risk of loss of its entire investment in OCT.
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5.6. Certificate Legend. It is agreed and understood by the Purchaser
that the certificate representing the Shares acquired by the Purchaser hereunder
will conspicuously set forth on the face or back thereof a legend in
substantially the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 or any other
applicable Federal or state securities laws, and thus may not be
transferred unless registered under the Securities Act of 1933
and such other laws or unless an exemption from registration is
available."
Section 6. POST-CLOSING AGREEMENTS.
6.1 Claims Regarding Telluride Club Members.
(a) To the fullest extent permitted by law, Seller hereby
absolutely and unconditionally indemnifies and agrees to defend and hold
harmless Purchaser and its officers, directors, partners, members,
employees and agents, and their respective successors and assigns
(collectively, the "INDEMNIFIED PARTIES" and individually, an
"INDEMNIFIED PARTY") from and against any and all demands, claims,
actions or causes of action, assessments, expenses, costs, damages,
losses, liabilities (including legal, witness and expert fees and
expenses), judgments, taxes of any nature whatsoever, contingent or
otherwise, and/or penalties (collectively, "DAMAGES"), which may or
shall at any time be asserted against, imposed upon, or incurred or
suffered by any Indemnified Party, directly or indirectly, by reason of,
resulting from or in connection with any claims, allegations or
assertions made or raised by or on behalf of any of the minority members
of Telluride Club and/or their respective principals, subsidiaries,
officers, directors, partners, members, employees and agents, and their
respective successors and assigns for, because of or relating to the
consummation of the transaction contemplated by this Agreement or any
act or omission of any kind whatsoever occurring on or before the
Effective Date (each, a "MEMBER CLAIM" and collectively the "MEMBER
CLAIMS"). THE FOREGOING INDEMNITY SHALL APPLY AND BE EFFECTIVE EVEN IF
THE INDEMNIFIED PARTY IS FOUND OR DEEMED TO BE NEGLIGENT OR STRICTLY
LIABLE.
(b) In the event Purchaser assigns, sells or otherwise
transfers the Shares to a third party as part of an arms length
transaction (as opposed to an assignment for the benefit of creditors or
any other involuntary transfer) and at Purchaser's written request,
Seller hereby agrees to absolutely and unconditionally indemnify and
defend and hold harmless Purchaser's transferee from and against any and
all Member Claims. At Purchaser's written request, Seller shall execute
a separate indemnification agreement to evidence the agreement in this
Section 6.1(b).
6.2 Dopplemayr Transport System.
(a) At Purchaser's request, Seller shall assist Purchaser
in negotiating the development and the construction of a Dopplemayr
access cross lift system (or some other alternative transport system)
that will facilitate access between the facility and the ski mountain
(collectively, the "DOPPLEMAYR"). Purchaser shall reimburse Seller for
its reasonable, out-of-pocket expenses related to Seller's assistance
with the development and construction of the Dopplemayr.
(b) Bank Midwest holds $300,000 in escrow for construction
costs for the Dopplemayr (the "DOPPLEMAYR ESCROW"). Telluride Club has
been in discussions with Tristant, LLC to share equally the costs of
constructing the Dopplemayr, and such parties contemplate
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entering into a construction contract (the "DOPPLEMAYR CONTRACT") with
a third party (the "CONTRACTOR") to perform the construction. Seller
agrees to make a contribution of up to $75,000 towards the payment of
one-half of the costs incurred under the Dopplemayr Contract in excess
of $600,000 (the "CLUB'S EXPRESS CONSTRUCTION COSTS"), subject to and
upon the following terms and conditions:
(i) the entire $300,000 in the Dopplemayr Escrow
shall have been disbursed for payments due under the
Dopplemayr Contract and an aggregate of $600,000 shall have
been paid to Contractor under the Dopplemayr Contract;
(ii) OCT and/or its designee shall have assumed
liability or otherwise agreed to pay for the Club's Excess
Construction Costs;
(iii) Seller shall have received reasonably detailed
bills or invoices evidencing all construction costs under the
Dopplemayr Contract in excess of $600,000; and
(iv) payment of Seller's contribution shall be made
directly to Contractor within thirty (30) days after Seller's
receipt of the bills or invoices required under clause (iii)
above.
At OCT's request, Seller agrees to execute a separate agreement to
evidence the rights of OCT's designee to receive the payment described
in this Section 6.2(b).
(c) To the fullest extent permitted by law, Seller hereby
absolutely and unconditionally indemnifies and agrees to defend and
hold harmless the Indemnified Parties from and against any and all
Damages, which may or shall at any time be asserted against, imposed
upon, or incurred or suffered by any Indemnified Party, directly or
indirectly, by reason of, resulting from or in connection with
allegations, assertions or claims by Project time-share owners who
purchased their time-share interests on or before the Effective Date
for, because of or relating to the failure to complete the Dopplemayr
on or before the earlier of (i) the actual date of completion of the
Dopplemayr or (ii) September 4, 2002.
(d) In the event Purchaser assigns, sells or otherwise
transfers the Shares to a third party as part of an arms length
transaction (as opposed to an assignment for the benefit of creditors
or any other involuntary transfer) and at Purchaser's written request,
Seller hereby absolutely and unconditionally indemnifies and agrees to
defend and hold harmless the Purchaser's assignee from and against any
and all Damages, which may or shall at any time be asserted against,
imposed upon, or incurred or suffered by any Indemnified Party,
directly or indirectly, by reason of, resulting from or in connection
with assertions or claims by Project time-share owners because of or
relating to the failure to complete the Dopplemayr on or before the
earlier of (i) the actual date of completion of the Dopplemayr or (ii)
one year following the transfer of the Shares by Purchaser to
Purchaser's transferee. At Purchaser's written request, Seller shall
execute a separate indemnification agreement to evidence the agreement
in this Section 6.2(d).
6.3 Indemnification Procedure. After receipt by the Purchaser of notice
of an assertion or commencement of the Member Claims or the Dopplemayr Claims,
the Purchaser shall, if a claim in respect thereof is to be made against Seller,
give written notice to Seller of the assertion or commencement thereof. The
Purchaser may assume the defense of the Member Claims or the Dopplemayr Claims
with counsel of its choice, at the expense of Seller. However, upon the
Purchaser's
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request, Seller, at its sole expense, shall assume the defense with counsel
reasonably satisfactory to the Purchaser. If Seller does not assume (or fails to
assume) the defense of the Member Claims or the Dopplemayr Claims, the Purchaser
shall be entitled to assume the defense of such Cause of Action with counsel of
its own choice, at the expense of Seller. If the Member Claims or the Dopplemayr
Claims are asserted against both Seller and the Purchaser and there is a
conflict of interests, which renders it inappropriate for the same counsel to
represent both Seller and the Purchaser, Seller shall be responsible for paying
for separate counsel for the Purchaser. If Seller elects to assume the defense
of the Member Claims or the Dopplemayr Claims, no compromise or settlement
thereof may be effected by Seller without the Purchaser's written consent (which
shall not be unreasonably withheld) unless the sole relief provided is monetary
damages that are paid in full by Seller. Seller shall have no liability with
respect to any compromise or settlement effected without its written consent
(which shall not be unreasonably withheld).
6.4. Assignment of Claims and Causes of Action. At Seller's request,
Purchaser shall cause Telluride Club to execute an Assignment of Claims and
Causes of Action in the form attached hereto as Exhibit D, which evidences a
transfer of Telluride Club's claims and obligations related to the current
construction litigation affecting Telluride Club and the Project.
6.5. Capital Contribution. Purchaser and Seller acknowledge that prior
to the transfer of the Shares to Purchaser, Seller has committed to contribute a
total of $622,987 to OCT, such funds to be used for working capital and other
expenses associated with the Project. The contribution is payable in two
installments: the first installment due September 4, 2001 in the amount of
$322,987 and a second installment due September 28, 2001 in the amount of
$300,000. Seller acknowledges its obligations to pay the second installment of
the capital contribution no later than September 28, 2001.
6.6. Survival of Section 6. All provisions of this Section 6 shall
survive the execution and delivery of this Agreement and the sale and delivery
of the Shares.
Section 7. MISCELLANEOUS
7.1. Trade Name. Purchaser acknowledges that Seller, or its affiliates,
owns the trade name and symbols of "Owners Club" and "Owners Club at Telluride"
and such trade name is not being transferred to Purchaser or to Telluride Club.
7.2. Amendment and Waiver. This Agreement shall not be altered, amended
or supplemented except by written agreement signed by both parties. Any waiver
of any term, covenant, agreement or condition contained in this Agreement shall
not be deemed a waiver of any other term, covenant, agreement or condition, and
any waiver of any default in any such term, covenant, agreement or condition
shall not be deemed a waiver of any later default thereof or of any default of
any other term, covenant, agreement or condition.
7.3. Representations and Warranties to Survive Closing;
Indemnification; Remedies. All representations, warranties and covenants
contained herein or made in writing by the Seller or the Purchaser in connection
herewith shall survive the execution and delivery of this Agreement and the sale
and delivery of the Shares. Each party hereto agrees to indemnify the other for
any and all claims, losses, expenses, liabilities or other damages, including
reasonable attorneys' fees that the party has incurred by reason of the breach
by the other party of any representation, warranty, covenant or agreement
contained herein.
7.4. Facsimile Signature. This Agreement shall be deemed duly executed
by the Seller upon the delivery of this Agreement (including executed signature
page) by facsimile transmission to the
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Purchaser or by hand delivery of a signed original to the Purchaser. This
Agreement shall be deemed duly executed by the Purchaser upon the delivery of
this Agreement (including executed signature page) by facsimile transmission to
the Seller or by hand delivery of a signed original to the Seller.
7.5. Severability. The invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity, legality or
enforceability of the remainder hereof in such jurisdiction or the validity,
legality or enforceability hereof, including any such provision, in any other
jurisdiction, it being intended that all rights and obligations of the parties
hereunder shall be enforceable to the fullest extent permitted by law.
7.6. Successors and Assigns. All representations, warranties, covenants
and agreements of the parties contained in this Agreement or made in writing in
connection herewith, shall, except as otherwise provided herein, be binding upon
and inure to the benefit of their respective successors and permitted assigns.
7.7. Notices. All communications in connection with this Agreement shall
be in writing and shall be deemed properly given and received if hand delivered
or sent by telecopier (provided that such communication is sent during normal
business hours of the intended recipient) or by federal express or other
nationally recognized courier service with adequate evidence of delivery:
to the Seller, at:
THE OWNERS CLUB INC.
3030 LBJ Freeway Suite 700
Dallas, Texas USA 75234-7703
Fax: (972) 888-7717
Attention: General Counsel
to the Purchaser, at:
TELLURIDE 2001 HOLDINGS, LLC
3030 LBJ Freeway Suite 700
Dallas, Texas USA 75234-7703
Fax: (214) 888-7583
Attention: President
with a copy to:
Munsch Hardt Kopf & Harr, P.C.
1445 Ross Avenue, Suite 4000
Dallas, Texas USA 75202
Fax: (214) 855-7584
Attention: John C. Rutherford, Esq.
or such other addresses or persons as the recipient shall have designated to
the sender by a written notice given in accordance with this Section 7.7.
7.8. Governing Law; Venue; Binding Arbitration. This Agreement shall be
governed by and construed in accordance with the laws of the State of Texas
(without regard to conflicts of laws principles) and the United States of
America, and all obligations hereunder shall be performable in Dallas County,
Texas USA (provided, that the Closing and the obligations to be performed at the
Closing may be performed at such time and place as agreed to by the undersigned
parties). The undersigned party does hereby expressly renounce and waive the
right to claim any other privilege, jurisdiction, domicile or venue. THE PARTIES
HERETO AGREE THAT ANY DISPUTES BETWEEN THEM RELATING TO THIS AGREEMENT, OR THE
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BREACH HEREOF, WILL BE SUBJECT TO BINDING ARBITRATION IN ACCORDANCE WITH THE
PROVISIONS OF THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION
ASSOCIATION (THE "RULES"), and that judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. The
arbitration shall be heard before one arbitrator selected in accordance with the
Rules. The Rules then in effect shall be applied. The parties agree to conduct
the arbitration in Dallas, Texas, or another mutually agreed upon location.
7.9. Construction and Representation. The parties understand and
acknowledge that they have each been represented by legal counsel in connection
with the preparation, execution and delivery of this Agreement. This Agreement
shall not be construed against any party for having drafted it.
7.10. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
together constitute one and the same Agreement.
[SIGNATURES TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day first above written.
THE PURCHASER:
TELLURIDE 2001 HOLDINGS, LLC,
a Delaware limited liability company
By: /s/ JEFFREY P. MAYER
-----------------------------------
Name: Jeffrey P. Mayer
-----------------------------
Title: Executive Vice President
----------------------------
THE SELLER:
THE OWNERS CLUB, INC.,
a Delaware corporation
By: /s/ TOM BENNISON
-----------------------------------
Name: Tom Bennison
-----------------------------
Title: Senior Vice President
----------------------------
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