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Exhibit 2.3
Share Transfer Agreement
Whereas, this Share Transfer Agreement ("Agreement"), dated as of December
26, 2000, between The Rouse Company, a Maryland corporation ("Rouse"), and The
Rouse Company Incentive Compensation Statutory Trust ("Shareholder"), being the
owner of record of ninety-one (91) shares of the issued and outstanding Class A
Common Stock of HRD Properties, Inc. ("PSS").
Whereas, Rouse wishes to acquire and the Shareholder wishes to transfer all
of the Shareholder's stock in PSS.
Now, Therefore, Rouse and the Shareholder adopt this share transfer
agreement and agree as follows:
Section 1 -- Transfer of Stock
1.1 Number of Shares. The Shareholder agrees to transfer to Rouse at the
Closing the number of shares of Class A Common Stock of PSS, $0.01 par value per
share, shown in Exhibit A, in exchange for $1.00 to be paid at the Closing.
1.2 Delivery of Certificates by Shareholder. The transfer of PSS shares
by the Shareholder shall be effected by the delivery to Rouse at the Closing of
certificates representing the transferred shares endorsed in blank or
accompanied by stock powers executed in blank, with all necessary transfer tax
and other revenue stamps, acquired at the Shareholder's expense, affixed.
1.3 Further Assurances. At the Closing and from time to time thereafter,
the Shareholder shall execute such additional instruments and take such other
action as Rouse may request in order more effectively to sell, transfer, and
assign the transferred stock to Rouse and to confirm Rouse's title thereto.
Section 2 -- Closing
The Closing contemplated by Section 1.1 shall be held at the principal
offices of Rouse, 10275 Little Patuxent Parkway, Columbia, Maryland, on January
2, 2001, unless another place or time is agreed upon writing by the parties.
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Section 3 -- Representations and Warranties of the Shareholder
The Shareholder represents and warrants to Rouse as follows:
3.1 Corporate Status. PSS is a corporation duly organized, validly
existing, and in good standing under the laws of the state of its incorporation
and is licensed or qualified as a foreign corporation in all states in which the
nature of its business or the character or ownership of its properties makes
such licensing or qualification necessary.
3.2 Capitalization. The authorized capital stock of PSS consists of 100
shares of Class A Common Stock, having a par value of $0.01 per share, of which
one hundred (100) shares are issued and outstanding, all fully paid and
nonassessable, and 9,000 shares of Class B Common Stock, having a par value of
$0.01 per share, of which 9,000 shares are issued and outstanding, all fully
paid and nonassessable.
3.3 Financial Statements. The audited financial statements of PSS
furnished to Rouse, consisting of balance sheets as of December 31, 1999, 1998,
and related statements of income for the periods then ended, and the unaudited
balance sheet as of September 30, 2000 ("PSS' Latest Balance Sheet"), and the
related statement of income, are correct and fairly present the financial
condition of PSS as of the dates and for the periods involved, and such
statements were prepared in accordance with generally accepted accounting
principles consistently applied.
3.4 Undisclosed Liabilities. PSS had no liabilities of any nature except
to the extent reflected or reserved against in PSS' Latest Balance Sheet,
whether accrued, absolute, contingent, or otherwise, including, without
limitation, tax liabilities and interest due or to become due, and PSS' accounts
receivable are collectible in accordance with the terms of such accounts, except
to the extent of the reserve therefor in PSS' Latest Balance Sheet.
3.5 Interim Changes. Between January 2, 2001, and the date of this
Agreement, there have not been, except as set forth in a list certified by the
president of PSS and delivered to Rouse, (1) any changes in PSS' financial
condition, assets, liabilities, or business which, in the aggregate, have been
materially adverse; (2) any damage, destruction, or loss of or to PSS' property,
whether or not covered by insurance; (3) any declaration or payment of any
dividend or other distribution in respect of PSS' capital stock (other than Year
2000 dividends on common stock shares), or any direct or indirect redemption,
purchase, or other acquisition of any such stock; or (4) any increase paid or
agreed to in the compensation, retirement benefits, or other commitments to
employees.
3.6 Title to Property. PSS has good and marketable title to all
properties and assets, real and personal, reflected in PSS' Latest Balance
Sheet, except as since sold or otherwise disposed of in the ordinary course of
business, and PSS' properties and assets
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are subject to no mortgage, pledge, lien, or encumbrance, except for liens shown
therein, with respect to which no default exists.
3.7 Access to Records, and So Forth. From the date of this Agreement to
the Closing, the Shareholder will cause PSS (1) to give to Rouse and its
representatives full access during normal business hours to all of its offices,
books, records, contracts, and other corporate documents and properties so that
Rouse may inspect and audit them and (2) to furnish such information concerning
PSS' properties and affairs as Rouse may reasonably request.
3.8 Title to Shares. The Shareholder is the owner, free and clear of any
liens and encumbrances, of the number of PSS shares which the Shareholder has
contracted to exchange.
3.9 General Release. As of the date of the Closing, PSS and the
Shareholder will execute a mutual release of all claims in the form attached
hereto as Exhibit B.
Section 4 -- Conduct of PSS Pending the Closing
The Shareholder agrees that PSS will conduct itself in the following manner
pending the closing:
4.1 Certificate of Incorporation and Bylaws. No change will be made in
PSS' certificate of incorporation or bylaws.
4.2 Capitalization, and So Forth. PSS will not make any change in its
authorized or issued capital stock, declare or pay any dividend or other
distribution (other than Year 2000 common stock dividends), or issue, encumber,
purchase, or otherwise acquire any of its capital stock.
4.3 Conduct of Business. PSS will use its best efforts to maintain and
preserve its business organization, employee relationships, and goodwill intact,
and will not, without the written consent of Rouse, enter into any material
commitment except in the ordinary course of business.
Section 5 -- Conditions Precedent--Rouse
All obligations of Rouse under this Agreement are subject, at Rouse's
option, to the fulfillment, before or at the Closing, of each of the following
conditions:
5.1 Representations and Warranties True at Closing. The Shareholder's
representations and warranties contained in this Agreement shall be deemed to
have been made again at and as of the Closing and shall then be true in all
material respects.
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5.2 Due Performance. The Shareholder shall have performed and complied
with all the terms and conditions required by this Agreement to be performed or
complied with by them before the Closing.
5.3 Books and Records. The Shareholder shall have caused PSS to make
available to Rouse all books and records of PSS, including minute books and
stock transfer records.
5.4 Revocation of Prior Authorizations. The Shareholder shall have
delivered to Rouse certified copies of resolutions of PSS' board of directors
revoking as of the Closing all prior authorizations, powers of attorney,
designations, and appointments relating to the signing of checks, borrowing of
funds, access to corporate safe-deposit boxes and other similar matters, to the
extent requested by Rouse.
5.5 Resignations. There shall have been delivered to Rouse the signed
resignations of such directors of PSS as Rouse shall request, dated as of the
Closing.
Section 6 -- Conditions Precedent; The Shareholder
All obligations of the Shareholder under this Agreement are subject, at
their option, to the fulfillment, before or at the Closing, of each of the
following conditions:
Due Performance. Rouse shall have performed and complied with all the
terms and conditions required by this Agreement to be performed or complied with
by it before the Closing.
Section 7 -- Indemnification
7.1 Indemnification of Rouse. The Shareholder agrees to indemnify Rouse
against any loss, damage, or expense (including reasonable attorney fees)
suffered by Rouse from (1) any breach by the Shareholder of this Agreement or
(2) any inaccuracy in or breach of any of the representations, warranties, or
covenants by the Shareholder herein, provided, however, that (a) Rouse shall be
entitled to assert rights of indemnification hereunder only if and to the extent
that it suffers losses, damages, and expenses (including reasonable attorney
fees) exceeding $50,000 in the aggregate and (b) Rouse shall give notice of any
claims hereunder within twenty-four months beginning on the date of the Closing.
No loss, damage, or expense shall be deemed to have been sustained by Rouse to
the extent of insurance proceeds paid to, or tax benefits realizable by, Rouse
or PSS as a result of the event giving rise to such right to indemnification.
7.2 Indemnification of Shareholder. Rouse agrees to indemnify the
Shareholder against any loss, damage, or expense (including reasonable attorney
fees) suffered by any of the Shareholder from (1) any breach by Rouse of this
Agreement or
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(2) any inaccuracy in or breach of any of Rouse's representations, warranties,
or covenants herein.
7.3 Defense of Claims. Upon obtaining knowledge thereof, the indemnified
party shall promptly notify the indemnifying party of any claim, which has
given or could give rise to a right of indemnification under this Agreement. If
the right of indemnification relates to a claim asserted by a third party
against the indemnified party, the indemnifying party shall have the right to
employ counsel acceptable to the indemnified party to cooperate in the defense
of any such claim. As long as the indemnifying party is defending any such
claim in good faith, the indemnified party will not settle such claim. If the
indemnifying party does not elect to defend any such claim, the indemnified
party shall have no obligation to do so.
Section 8 -- Termination
This Agreement may be terminated (1) by mutual consent in writing; (2) by
either the Shareholder or Rouse if there has been a material misrepresentation
or material breach of any warranty or covenant by the other party; or (3) by
either the Shareholder or Rouse if the Closing shall not have taken place,
unless adjourned to a later date by mutual consent in writing, by January 31,
2001.
Section 9 -- General Provisions
9.1 Further Assurances. At any time, and from time, after the Effective
Date, each party will execute such additional instruments and take such action
as may be reasonably requested by the other party to confirm or perfect title to
any property transferred hereunder or otherwise to carry out the intent and
purposes of this Agreement.
9.2 Waiver. Any failure on the part of either party hereto to comply with
any of its obligations, agreements, or conditions hereunder may be waived in
writing by the party to whom such compliance is owed.
9.3 Brokers. Each party represents to the other party that no broker or
finder has acted for it in connection with this Agreement and agrees to
indemnify and hold harmless the other party against any fee, loss, or expense
arising out of claims by brokers or finders employed or alleged to have been
employed by it.
9.4 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered in person or sent by
prepaid first-class registered or certified mail, return receipt requested, as
follows:
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The Rouse Company
10275 Little Patuxent Parkway
Columbia, Maryland
Attn: General Counsel
Fax: 410-992-6392
The Rouse Company
Incentive Compensation Statutory Trust
10275 Little Patuxent Parkway
Columbia, Maryland
Attn: Jeffrey H. Donahue
Fax: 410-964-3412
9.5 Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes and cancels any other agreement,
representation, or communication, whether oral or written between the parties
hereto relating to the transactions contemplated herein or the subject matter
hereof.
9.6 Headings. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
9.7 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Maryland.
9.8 Assignment. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their successors and assigns; provided,
however, that any assignment by either party of its rights under this Agreement
without the written consent of the other party shall be void.
9.9 Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
The Rouse Company
By: ______________________________________________
Gordon H. Glenn, Vice President and General Counsel
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The Rouse Company Incentive Compensation
statutory Trust
By: _________________________________________
Jeremiah E. Casey, Trustee
By: _________________________________________
Rohit M. Desai, Trustee
By: _________________________________________
Jeffrey H. Donahue, Trustee
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Exhibit A
<TABLE>
<CAPTION>
No. of PSS
Taxpayer Shares To be
Name of Shareholder Address ID No. Transferred Cash
<S> <C> <C> <C> <C>
The Rouse Company 10275 Little Patuxent Parkway 52-2069348 91 Class A $1.00
Incentive Compensation Columbia, MD 21044 Common Shares
Statutory Trust
</TABLE>
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Exhibit B
Agreement made this 26th of December, 2000, between HRD Properties, Inc.
("PSS"), and The Rouse Company Incentive Compensation Statutory Trust (the
"Shareholder"), being the owner of ninety-one (91) shares of the issued and
outstanding Class A Common Stock of PSS.
As of the date hereof, PSS hereby releases the Shareholder and the
Shareholder hereby releases PSS from all claims of every kind and description,
known and unknown, without regard to the capacity in which such claims may have
arisen.
HRD Properties, Inc.
By: _____________________________________________
Gordon H. Glenn, Vice President and General Counsel
The Rouse Company Incentive Compensation
Statutory Trust
By: _____________________________________________
Jeremiah E. Casey, Trustee
By: _____________________________________________
Rohit M. Desai, Trustee
By: _____________________________________________
Jeffrey H. Donahue, Trustee
