EXHIBIT 2.1
COMMONWEALTH OF THE BAHAMAS
NEW PROVIDENCE
THIS DEED OF TRANSFER OF PERSONALTY AND DEED OF RELEASE INDEMNITY AND COVENANT
NOT TO SUE is made the 4th day of November, 1997 B E T W E E N TOWN & COUNTRY
CORPORATION a company incorporated under the laws of the State of Massachusetts
in the United States of America (hereinafter referred to as "TCC") of the first
part CURLEW HOLDINGS LIMITED a company incorporated under the laws of the
Commonwealth of The Bahamas (hereinafter referred to as "Curlew") of the second
part and Fane Solomon of the Eastern District of the Island of New Providence in
the said Commonwealth (hereinafter referred to as "Mr. Solomon") of the third
part.
W H E R E A S
(1) On or about 27th May, 1988 TCC purchased from Solomon Brothers,
Limited a company incorporated and carrying on business under the laws of the
said Commonwealth (hereinafter referred to as "SBL") 410,000 redeemable
participating Preferred 'B' shares in the capital of SBL (hereinafter referred
to as "the 'B' shares")
(2) SBL at the request of TCC has redeemed 83,000 of the 'B' shares
leaving a balance of 327,000 of the 'B' shares owned by TCC at date of the
execution of this Deed (hereinafter referred to as "TCC's unredeemed 'B'
shares")
(3) Mr. Solomon is the beneficial owner of all the issued shares in Curlew
and is a former Officer and Director of SBL and the principal shareholder of SBL
and has agreed at the request of TCC to loan to Curlew sufficient monies to
effect the purchase by Curlew of TCC's unredeemed 'B' shares as hereinafter
provided
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(4) Curlew has agreed to purchase from TCC and TCC has agreed to sell to
Curlew TCC's unredeemed 'B' shares for the sum of US$2,760,000 (Two million
seven hundred and sixty thousand dollars) in the currency of the United States
of America
(5) In consideration of the foregoing TCC has agreed with Mr. Solomon and
Curlew to enter into the various representations covenants warrantees and
agreements hereinafter set out
NOW THIS DEED WITNESSETH AS FOLLOWS:
1. In consideration of the payment by Curlew to TCC of the sum of
US$2,760,000 (Two million seven hundred and sixty thousand dollars) in the
currency of the United States of America loaned by Mr. Solomon to Curlew at the
request of TCC (the receipt and sufficiency of which are hereby expressly
acknowledged), TCC AS BENEFICIAL OWNER hereby irrevocably and unconditionally
assigns transfers and delivers to Curlew TCC's entire right title and interest
in TCC's unredeemed 'B' shares TO HOLD the same unto Curlew absolutely AND
FURTHER TCC hereby warrants covenants and agrees with Curlew and Mr. Solomon as
follows:
(a) TCC is a corporation organized and existing under the laws of the
State of Massachusetts in the United States of America, with its principal
office located at 25 Union Street, Chelsea, Massachusetts in the United States
of America, and has all requisite corporate power and authority to own its
properties and assets, to carry on its business as now conducted, and to enter
into this Deed.
(b) TCC is duly qualified licensed and in good standing in the State of
Massachusetts.
(C) TCC hereby, for itself and all of its directors, officers, partners,
agents, servants,
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employees, insurers, contractors, subcontractors, trustees, attorneys, heirs,
administrators, personal representatives, successors and assigns, irrevocably
and unconditionally releases, acquits, exonerates, and forever discharges both
Mr. Solomon and Curlew and (where the context so admits) all of their respective
directors, officers, partners, agents, servants, employees, insurers,
contractors, subcontractors, trustees, attorneys, heirs, administrators,
personal representatives, successors and assigns of and from any claims,
demands, obligations, liabilities, claims against, suits, rights and causes of
action, attorneys' fees, debts, dues, sums of money, acts, omissions,
reckonings, bonds, bills, specialties, covenants, contracts, agreements,
promises, warranties, variances, trespasses, damages, extents, executions,
grievances, whether at law or in equity, of any kind or nature, whether known or
unknown, by any reason whatsoever, including but not limited to, those arising
under federal, state, or local law of any nation from the beginning of the world
and to the end of the world (excluding, however, any act taken or new obligation
assumed after the date hereof) and arising on account of any matter whatsoever
or because of any matter or thing done, omitted, or suffered to be done,
including, but not limited to, all claims arising in any way, shape, or form
from the purchase by TCC or TCC's ownership of any or all of the 'B' shares.
(d) TCC hereby undertakes to indemnify, defend, and hold harmless both Mr.
Solomon and Curlew and (where the context so admits) all of their directors,
officers, partners, agents, servants, employees, insurers, contractors,
subcontractors, trustees, attorneys, heirs, administrators, personal
representatives, successors and
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assigns, for any and all sums which any one or more of them may be required to
expend or pay as a result of any existing claims (whether or not asserted at the
date hereof) and future claims, demands, costs, loss of services, fees,
expenses, and compensation of whatever nature, including, but not limited to,
claims for contribution, indemnity, subrogation, or other claims or litigation
of any kind whatever and arising on account of any claims arising in any way,
shape, or form from TCC's purchase and/or ownership of any or all of the 'B'
shares.
(e) TCC will never institute any action or suit at law or in equity
against either Mr. Solomon or Curlew, nor institute, prosecute, or in any way
aid in the institution or prosecution of any claims, demands, obligations,
liabilities, claims against, suits, rights and causes of action, attorneys'
fees, debts, dues, sums of money, acts, omissions, reckonings, bonds, bills,
specialties, covenants, contracts, agreements, promises, warranties, variances,
trespasses, damages, extents, executions, grievances whether at law or in
equity, of any kind or nature, whether known or unknown, by any reason
whatsoever, including but not limited to, those arising under federal, state, or
local law of any nation from the beginning of the world and to the end of the
world (excluding however, any act taken or new obligation assumed after the date
hereof) and arising on account of any matter whatsoever or because of any matter
or thing done, omitted, or suffered to be done, including, but not limited to,
all claims arising in any way, shape, or form from TCC's purchase and/or
ownership of any or all of the 'B' shares.
(f) TCC agrees, warrants, covenants, and represents that it has full
right, power, and authority to enter
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into this Deed and assign transfer and deliver to Curlew TCC's unredeemed `B'
shares under the terms of this Deed free and clear of any liens or encumbrances.
This Deed is a valid and binding obligation of TCC, enforceable against TCC in
accordance with its terms.
(g) TCC does hereby, for itself and all of its directors, officers,
partners, agents, servants, employees, insurers, contractors, subcontractors,
trustees, attorneys, heirs, administrators, personal representatives, successors
and assigns, irrevocably and unconditionally waives to Mr. Solomon and Curlew
any and all shareholder rights, claims, or rights to accounting, rights to
dividends, rights to disclosure of books, rights of fiduciary disclosures, or
rights to other information, or other data or information from either Mr.
Solomon or Curlew, and any officers, agents, employees, shareholders or any
other person(s) acting on either Mr. Solomon's or Curlew's behalf.
(h) Immediately after the execution of this Deed TCC will execute a Deed
of Release Indemnity and Covenant Not to Sue in favour of SBL and its present
and former Officers and Directors in the form set out in the Schedule hereto.
2. In consideration of the premises TCC, Curlew and Mr. Solomon hereby
agree and represent warrant and covenant each to the other as follows:
i) In connection with the negotiation, drafting, and execution of this
Deed, the parties and each of them have had the advice of independent counsel of
their own choosing and agree to pay the costs and fees thereof.
ii) This document constitutes the complete agreement between the parties
and there are no other terms conditions or oral representations except as
expressed herein.
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iii) No modification or waiver of any of the terms of this Deed shall be
valid unless in writing and executed with the same formality as this Deed.
iv) This Deed is made and entered into voluntarily, and the parties and
each of them are free from any duress or influence, and fully understand the
terms, conditions, and provisions of this Deed, and believe its terms to be
fair, just, and reasonable.
v) The parties declare that they fully understand the facts and all of
their respective legal rights and liabilities; that they have been afforded the
opportunity to review this Deed with counsel of their choice; and that they
believe the Deed to be fair, just, and reasonable and that they sign the Deed
freely and voluntarily.
vi) The individual(s) executing this Deed on behalf of TCC and Curlew
warrant that he, or they have the authority to execute this Deed on behalf of
their respective principals.
vii) This Deed may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
viii) The waiver by any party hereto of any breach of any provision of
this Deed shall not constitute or operate as a waiver of any other breach of
such provision or of any other provision hereof, nor shall any failure to
enforce any provision hereof operate as a waiver at such time or at any future
time of such provision or of any other provision hereof.
ix) This Deed shall be construed and enforced according to Bahamian law.
All legal actions arising under or out of, or relating to, this Deed shall be
instituted in The Bahamas and TCC agrees to consent to
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the exclusive jurisdiction of the Courts of the Commonwealth of The Bahamas in
respect thereof.
x) The parties stipulate and agree that they are entitled as against each
other to specific performance of the terms of this Deed.
xi) In the event that any of the provisions of this Deed shall be held to
be invalid or unenforceable in whole or in part, those provisions to the extent
enforceable and all other provisions shall nevertheless continue to be valid and
enforceable as though the invalid or unenforceable parts had not been included
in this Deed.
THE SCHEDULE HEREINBEFORE REFERRED TO
COMMONWEALTH OF THE BAHAMAS
NEW PROVIDENCE
THIS DEED OF RELEASE INDEMNITY AND COVENANT NOT TO SUE is made the 4th day of
November, 1997 B E T W E E N TOWN & COUNTRY CORPORATION a company incorporated
under the laws of the State of Massachusetts in the United States of America
(hereinafter referred to as "TCC") of the first part SOLOMON BROTHERS LIMITED a
company incorporated under the laws of the Commonwealth of The Bahamas
(hereinafter referred to as "SBL") of the second part and Martin-Essex Solomon,
Godfrey K. Kelly, Raymond C. Scott, Robert H. Symonette, Simonetta
Raymond-Barker, Percival Ralph Pinder, Albert Joel Miller, Timothy Baswell
Donaldson and C. William Carey (hereinafter collectively referred to as "the
Directors") of the third part.
W H E R E A S
(1) On or about 27th May, 1988 TCC purchased from SBL 410,000 redeemable
participating Preferred 'B' shares in the capital of SBL (hereinafter referred
to as "the 'B' shares")
(2) SBL at the request of TCC has redeemed 83,000 of the 'B' shares but
past differences have arisen between TCC and SBL and the Directors regarding
SBL's failure to effect further redemptions of the remaining 327,000 'B' shares
(hereinafter referred to as "TCC's unredeemed 'B' shares") or any of them
(3) By a Deed of Transfer of Personalty Release Indemnity and Covenant not
to Sue between TCC of the first part Curlew Holdings Limited of the second part
and Fane Solomon (the beneficial owner of all the issued shares in Curlew
Holdings Limited and the principal shareholder in SBL) of the third part (made
this day but executed immediately prior to the execution of this Deed) TCC sold
TCC's unredeemed `B' shares to Curlew Holdings Limited for the consideration
therein set out and covenanted inter alia with the said Fane Solomon to execute
this Deed of Release Indemnity and Covenant Not to Sue in favour of the parties
hereinbefore mentioned.
(4) In consideration of the foregoing and in order to effect full and
final settlement of the differences that have arisen between the parties hereto
TCC has agreed with SBL and the Directors to enter into these presents
NOW THIS DEED WITNESSETH AS FOLLOWS:-
In consideration of the premises TCC hereby releases SBL and the Directors and
each of them from all sums of money actions proceedings accounts claims demands
damages or losses whatsoever which TCC now has or at any time heretofore had
against either SBL or the Directors or any of them for or on account of or in
relation to any act cause matter or thing down to and inclusive of the date of
this Deed arising or resulting from TCC's purchase or ownership of any or all of
the `B' shares AND FURTHER TCC hereby represents warrants covenants and agrees
with SBL and the Directors and each of them as follows:
1. TCC is a corporation organized and existing under the laws of the State
of Massachusetts in the United States of America,
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with its principal office located at 25 Union Street, Chelsea, Massachusetts in
the United States of America, and has all requisite corporate power and
authority to carry on its business as now conducted, and to enter into this
Deed.
2. TCC is duly qualified licensed and in good standing in the State of
Massachusetts.
3. TCC hereby, for itself and all of its directors, officers, partners,
agents, servants, employees, insurers, contractors, subcontractors, trustees,
attorneys, heirs, administrators, personal representatives, successors and
assigns, irrevocably and unconditionally releases, acquits, exonerates, and
forever discharges SBL and the Directors and each of them and (where the context
so admits) all of their respective directors, officers, partners, agents,
servants, employees, insurers, contractors, subcontractors, trustees, attorneys,
heirs, administrators, personal representatives, successors and assigns of and
from any claims, demands, obligations, liabilities, claims against, suits,
rights and causes of action, attorneys' fees, debts, dues, sums of money, acts,
omissions, reckonings, bonds, bills, specialties, covenants, contracts,
agreements, promises, warranties, variances, trespasses, damages, extents,
executions, grievances, whether at law or in equity, of any kind or nature,
whether known or unknown, by any reason whatsoever, including but not limited
to, those arising under federal, state, or local law of any nation from the
beginning of the world and to the end of the world (excluding, however, any act
taken or new obligation assumed after the date hereof) and arising on account of
any matter whatsoever or because of any matter or thing done, omitted, or
suffered to be done, including, but not limited to, all claims arising in any
way, shape, or form from the purchase by TCC or TCC's ownership of any or all of
the 'B' shares.
4. TCC hereby undertakes to indemnify, defend, and hold harmless SBL and
the Directors and each of them and (where the context so admits) all of their
directors, officers, partners, agents, servants, employees, insurers,
contractors, subcontractors, trustees, attorneys, heirs, administrators,
personal representatives, successors and assigns, for any and all sums which any
one or more of them may be required to expend or pay as a result of any existing
claims (whether or not asserted at the date hereof) and future claims, demands,
costs, loss of services, fees, expenses, and compensation of whatever nature,
including, but not limited to, claims for contribution, indemnity, subrogation,
or other claims or litigation of any kind whatever and arising on account of any
claims arising in any way, shape, or form from TCC's purchase and/or ownership
of any or all of the 'B' shares.
5. TCC will never institute any action or suit at law or in equity against
either SBL or the Directors or any of them, nor institute, prosecute, or in any
way aid in the institution or prosecution of any claims, demands, obligations,
liabilities, claims against, suits, rights and causes of action, attorneys'
fees, debts, dues, sums of money, acts, omissions, reckonings, bonds, bills,
specialties, covenants, contracts, agreements, promises, warranties, variances,
trespasses, damages, executions, grievances whether at law or in equity, of any
kind or nature, whether known or unknown, by any reason whatsoever, including
but not limited to, those arising under federal, state, or local law of any
nation from the beginning of the world and to the end of the world (excluding
however, any act taken or new obligation assumed after the date hereof) and
arising on account of or because of any matter or thing done, omitted, or
suffered to be done, arising in any way, shape, or form from TCC's purchase or
ownership of any or all of the 'B' shares.
6. TCC has full right, power, and authority to enter into this Deed. This
Deed is a valid and binding obligation of TCC, enforceable against TCC in
accordance with its terms.
7. TCC does hereby, for itself and all of its directors, officers,
partners, agents, servants, employees, insurers, contractors, subcontractors,
trustees, attorneys, heirs, administrators, personal representatives, successors
and assigns, irrevocably and unconditionally waive to SBL and the Directors and
each of them any and all shareholder rights, claims, or rights to accounting,
rights to dividends, rights to disclosure of books, rights of fiduciary
disclosures, or rights to other information, or other data or information from
either SBL the Directors or any of them, and any officers, agents, employees,
shareholders or any other person(s) acting on behalf of either SBL or the
Directors or any of them.
8. In connection with the negotiation, drafting, and execution of this
Deed, TCC has had the advice of independent counsel of its own choosing and
agrees to pay the costs and fees thereof.
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9. TCC relies upon no terms conditions or oral representations made by
either SBL or the Directors or any of them except as expressed herein.
10. No modification or waiver of any of the terms of this Deed shall be
valid unless agreed by all the parties hereto in writing and executed by all the
parties hereto as a Deed.
11. This Deed is made and entered into by TCC voluntarily, and TCC is free
from any duress or influence, and fully understands the terms, conditions, and
provisions of this Deed, and believes its terms to be fair, just, and
reasonable.
12. TCC fully understands the facts and all of its respective legal rights
and liabilities; that it has been afforded the opportunity to review this Deed
with counsel of its choice; and that it believes the terms of this Deed to be
fair, just, and reasonable and TCC executes this Deed freely and voluntarily.
13. The individuals executing this Deed on behalf of TCC warrant that they
have the authority to execute this Deed on behalf of TCC.
14. This Deed may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
15. The waiver by any party hereto of any breach of any provision of this
Deed shall not constitute or operate as a waiver of any other breach of such
provision or of any other provision hereof, nor shall any failure to enforce any
provision hereof operate as a waiver at such time or at any future time of such
provision or of any other provision hereof.
16. This Deed shall be construed and enforced according to Bahamian law.
All legal actions arising under or out of, or relating to, this Deed shall be
instituted in The Bahamas and TCC agrees to consent to the exclusive
jurisdiction of the Courts of the Commonwealth of the Bahamas in respect
thereof.
17. TCC agrees that SBL the Directors and each of them are entitled to
specific performance of the terms of this Deed.
18. In the event that any of the provisions of this Deed shall be held to
be invalid or unenforceable in whole or in part, those provisions to the extent
enforceable and all other provisions shall nevertheless continue to be valid and
enforceable as though the invalid or unenforceable parts had not been included
in this Deed.
IN WITNESS WHEREOF Town & Country Corporation has caused its seal to be hereunto
affixed.
The Seal of Town & Country )
Corporation was in pursuance )
of a resolution of the Board )
of Directors passed the 4th )
day of November, 1997 affixed)
hereto in the presence of:- )
__________________________ ) Chief Executive
William Schawbel ) Officer and Director
___________________________ ) Director
Richard E. Floor )
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IN WITNESS WHEREOF Curlew Holdings Limited has caused its Common seal to be
hereunto affixed.
The Seal of Curlew Holdings )
Limited was in pursuance )
of a resolution of the Board )
of Directors passed the 4th )
day of November, 1997 affixed )
hereto in the presence of:- )
__________________________ ) President
)
___________________________ ) Secretary
)
IN WITNESS WHEREOF the said
Fane Solomon has hereunto
affixed his hand and seal.
Signed sealed and delivered by the said Fane Solomon in the presence of: