AGREEMENT OF SALE
Exhibit (a)(3)
AGREEMENT OF SALE AND ASSIGNMENT
The undersigned Limited Partner (the "Seller") does hereby sell, assign,
transfer, convey and deliver to Kenneth E. Nelson, or his designee ("Nelson" or
the "Purchaser"), all of the Seller's right, title and interest in the units
(the "Units") of limited partnership assignee interests in Metric Partners
Growth Suite Investors, LP, a California limited partnership (the "Partnership")
being sold pursuant to this Agreement of Sale and Assignment ("Agreement") and
indicated on the signature pages to this Agreement, for a purchase price of $86
per Unit, less the amount of any distributions declared or paid from any source
by the Partnership with respect to the Units after January 1, 2003, without
regard to the record date or whether such distributions are classified as a
return on, or a return of, capital, plus a release from certain litigation
claims.
PAYMENT FOR UNITS BEING SOLD PURSUANT TO THIS AGREEMENT WILL BE MADE WITHIN TEN
(10) BUSINESS DAYS FOLLOWING THE "EXPIRATION DATE" SET FORTH IN THE OFFER TO
PURCHASE ACCOMPANYING THIS AGREEMENT, PROVIDED PURCHASER HAS RECEIVED AND
ACCEPTED THIS AGREEMENT, PROPERLY COMPLETED AND DULY EXECUTED PURSUANT TO THE
TERMS AND CONDITIONS OF THE OFFER. HOWEVER, IN THE EVENT THAT NELSON'S ELECTION
AS GENERAL PARTNER IS CONTESTED, PAYMENT MAY BE DELAYED UNTIL AFTER A JUDICIAL
DETERMINATION THAT NELSON IS THE SOLE GENERAL PARTNER.
The Seller hereby represents and warrants to the Purchaser that the Seller owns
all of the Units being sold hereunder and has full power and authority to
validly sell, assign, transfer, convey, and deliver to the Purchaser such Units,
and that when any such Units are accepted for payment by the Purchaser, the
Purchaser will acquire good, marketable and unencumbered title thereto, free and
clear of all options, liens, restrictions, charges, encumbrances, conditional
sales agreements, or other obligations relating to the sale or transfer thereof,
and such Units will not be subject to any adverse claim. The Seller represents
and warrants that the Seller is a "United States person" as defined in Section
7701(a)(30) of the Internal Revenue Code of 1986, as amended, or if the Seller
is not a United States person, the Seller does not own beneficially or of record
more than 5 percent of the outstanding Units. The Seller also represents and
warrants that in deciding to sell the Units to the Purchaser, the Seller has not
relied upon any representation or warranty made by the Purchaser or any agent of
the Purchaser with respect to the value of the Units or the income tax
consequences of the sale of the Units.
The sale of Units pursuant to this Agreement shall include, without limitation,
all rights in, and claims to, any Partnership profits and losses, cash
distributions, voting rights and other benefits of any nature whatsoever,
distributable or allocable to such Units under the Partnership's Agreement of
Limited Partnership. Upon the execution of this Agreement by the Seller,
Purchaser shall have the right to receive all benefits and cash distributions
and otherwise exercise all rights of beneficial ownership of such Units. By
executing this Agreement, Seller assigns to Purchaser (i) the Seller's right to
pursue any legal or other action of recovery against any person or entity which
might be liable in any way to the Seller as a result of his purchase or
ownership of the Units (or any interest therein) being sold hereby and (ii) any
existing or future rights arising from the refusal of the Partnership or its
General Partners to recognize the substitution of Purchaser as a limited
partner, the assignment of Seller's beneficial ownership of the Units to
Purchaser, or the assignment of claims effected by clause (i) of this sentence.
Any damages or recoveries resulting from such actions, whether initiated by the
Purchaser or by other parties will be due and payable to the Purchaser.
Seller, upon execution of this Agreement, hereby irrevocably constitutes and
appoints Purchaser as its true and lawful agent and attorney-in-fact with
respect to the Units being sold hereby with full power of substitution. This
power of attorney is an irrevocable power, coupled with an interest of the
Seller to Purchaser, to (i) execute, swear to, acknowledge, and file any
document relating to the assignment of the Units being sold hereby on the books
of the Partnership that are maintained with respect to the Units and on the
Partnership's books maintained by the General Partner of the Partnership, or
amend the books and records of the Partnership as necessary or appropriate for
the assignment of the Units, (ii) vote or act in such manner as any such
attorney-in-fact shall, in its sole discretion, deem proper with respect to the
Units being sold hereby, (iii) deliver the Units being sold hereby and transfer
ownership of such Units on the books of the Partnership that are maintained with
respect to the Units and on the Partnership's books, maintained by the
Partnership's General Partner, (iv) endorse on the Seller's behalf any and all
payments received by Purchaser from the Partnership for any period on or after
January 1, 2003, which are made payable to the Seller, in favor of Purchaser,
(v) execute on the Seller's behalf, any applications for transfer and any
distribution agreements required by the National Association of Securities
Dealers, Inc.'s Notice to Members 96-14 to give effect to the transaction
contemplated by this Agreement, (vi) receive all distributions and inspect and
amend the books and records of the Partnership, including Seller's address and
records, to direct all distributions to Purchaser as of the effective date of
this Agreement, (vii) request an accounting of the affairs of the Partnership.
Purchaser shall not be required to post bond of any nature in connection with
this power of attorney, and (viii) in the event that the General Partner of the
Partnership refuses to either transfer the Seller's Units to the Purchaser or to
admit the Purchaser as a substitute limited partner, take legal action, as the
Seller's true and lawful agent and attorney-in-fact, on behalf of the Seller, to
enforce this Agreement of Sale.
Seller does hereby direct and instruct the Partnership and the General Partners
immediately upon their receipt of this Agreement of Sale, which includes a power
of attorney appointing the Purchaser as the Seller's true and lawful agent and
attorney-in-fact, (i) to amend the books and records of the Partnership to
change the Seller's address of record for purposes of mailing distributions with
respect to the Units being sold hereby to Kenneth E. Nelson, 4107 W. Gazebo Hill
Blvd. N107, Mequon, WI 53092, and (ii) to forward all distributions and all
other information relating therein to be received by Seller to Nelson at the
address set forth in (i) above.
Seller does hereby release and discharge the General Partners and their
officers, shareholders, employees and agents from all actions, causes of
actions, claims or demands Seller has, or may have, against the General Partner
that result from the General Partner's reliance on this Agreement or any of the
terms and conditions contained herein. Seller agrees to indemnify and hold the
Purchaser and the Partnership harmless
from and against, and to reimburse the Purchaser and/or the Partnership on
demand, for any damage, loss, cost or expense (including attorneys' fees and
costs of investigation incurred in defending against and/or settling such
damage, loss, cost or expense) reasonably incurred by the Purchaser and/or the
Partnership arising out of or in connection with any misrepresentation, breach
of warranty, or failure to perform or violation of any agreement or covenant on
the part of the Seller under this Agreement.
All authority herein conferred or agreed to be conferred shall survive the death
or incapacity of the Seller and any obligations of the Seller shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned. This agreement is irrevocable and may not be withdrawn following
execution and delivery by the Seller. Upon request, the Seller will execute and
deliver any additional documents deemed by the Purchaser or the Partnership to
be necessary or desirable to complete the assignment, transfer and purchase of
such Units.
If the Seller is more than one person, then and in such event, the obligations
of the Seller under this Agreement shall be joint and several and the
representations, warranties and covenants herein contained shall be deemed to be
made by and binding upon each such person and his heirs, executors,
administrators, successors and assigns. The representations, warranties,
covenants and agreements contained in this Agreement shall survive the transfer
of the Units made by this Agreement and the payment of the consideration
therefor.
The Seller hereby certifies, under penalties of perjury, that (i) the tax
identification number shown on this form is the Seller's correct Taxpayer
Identification Number; and (ii) Seller is not subject to backup withholding
either because Seller has not been notified by the Internal Revenue Service (the
"IRS") that Seller is subject to backup withholding as a result of failure to
report all interest or dividends, or the IRS has notified Seller that Seller is
no longer subject to backup withholding.
The Seller hereby also certifies, under penalties of perjury, that the Seller,
if an individual, is not a nonresident alien for purposes of U.S. income
taxation, and if not an individual, is not a foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
Internal Revenue Code and Income Tax Regulations). The Seller understands that
this certification may be disclosed to the IRS by the Purchaser and that any
false statements contained herein could be punished by fine, imprisonment, or
both.
The undersigned recognizes that, if proration is required pursuant to the terms
of the Offer, the Purchaser will accept for payment from among those Units
validly tendered on or prior to the Expiration Date and not properly withdrawn,
the maximum number of Units permitted pursuant to the Offer on a pro rata basis.
The undersigned understands that a tender of Units to the Purchaser will
constitute a binding agreement between the undersigned and the Purchaser upon
the terms and subject to the conditions of the Offer. The undersigned recognizes
that under certain circumstances set forth in the Offer to Purchase, the
Purchaser may not be required to accept for payment any of the Units tendered
hereby. In such event, the undersigned understands that any Agreement for Units
not accepted for payment will be destroyed by the Purchaser.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Wisconsin. Seller waives any claim that any court in Wisconsin is
an inconvenient forum, and waives any right to trial by jury.
The undersigned Seller (including any joint owner(s)) owns and wishes to assign
the number of Units set forth below. By its own or its Authorized Signatory's
signature below, the Seller hereby assigns its entire right, title and interest
in the Units set forth below to the Purchaser.
By executing this Agreement, the Seller hereby acknowledges to the General
Partners that the Seller desires to assign the Units referenced herein and
hereby directs the General Partners to take all such actions as are necessary to
accomplish such assignment, and appoints the General Partners the agent and
attorney-in-fact of the Limited Partner, to execute, swear to, acknowledge and
file any document or amend the books and records of the Partnership as necessary
or appropriate for the assignment of the withdrawal of the Limited Partner.
Each of the Parties hereto agrees to promptly execute and deliver any and all
further agreements, documents or instruments necessary to effectuate this
Agreement and the transaction referred to herein or reasonably requested by the
other party to perfect or evidence its or his rights hereunder.
Should either party hereto commence any proceeding to enforce the provisions of
this Agreement, then and in such event, the prevailing party in any such
proceeding or action shall be entitled to reimbursement of its or his costs,
including attorney's fees, incurred in the investigation and prosecution of such
proceeding or action. The parties agree that the proper venue for any such
action shall be in the County of Ozaukee, State of Wisconsin, and the Seller
hereby consents to the jurisdiction over the Seller by the state and Federal
courts of or in the State of Wisconsin, County of Ozaukee, in connection with
any proceeding or action brought under this Assignment.
Any provision of this Agreement that is invalid or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining provisions of this Agreement or affecting the validity or
enforceability of any provisions of this Agreement in any other jurisdiction.
METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.
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IN WITNESS WHEREOF, Nelson and the Limited Partners have executed this
Assignment as of May 14, 2003.
(A) NUMBER OF UNITS OWNED: _________________ NUMBER OF UNITS TO BE
TRANSFERRED -ALL-
(B)_____________________________________________________________________________
Limited Partner (s)/Assignor(s) (Full Registered Name of Limited
Partner(s)/Assignor(s))
(C) Mailing Address:
________________________________________
Street
________________________________________
City State Zip
(D)_______________________________________________
Telephone Number (And Fax Number if Available)
(E)_____________________________________
Signature of Limited Partner
Date ___________________________, 2003
Limited Partner's Signature Guarantee*
__________________________________________________________
Signature of Joint Limited Partner or Custodian / Trustee
Date ___________________________, 2003
Joint Limited Partner's or Custodian / Trustee Signature Guarantee*
F) ________________________________________________
Social Security/Taxpayer No. of Limited Partner
_______________________________________________
Security/Taxpayer No. of Joint Limited Partner
(G) Custodian(s) or Trustee(s) Information
__________________________________________
Name of Custodian(s) or Trustee(s)
__________________________________________
Address
__________________________________________
City, State, Zip
____________________________________________
Account Number
_______________________________________
for NELSON
INSTRUCTIONS TO COMPLETE AGREEMENT OF SALE
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LINE HOW TO FILL IN
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(A) number of Units you wish to sell
(B) print full registered name of Limited Partner (for example:
"Mary Smith" or "Anne & Bob Smith, JTWROS"). If Units are held in
partnerships, trusts, retirement accounts or other entities, please
indicate (for example: "ABC Corp. Pension Plan, Jane Smith,
Custodian" or "John Smith, Trustee UGMA FBO Sarah Smith Trust")
(C) Limited Partner's current mailing address
(D) telephone number
(E) signature of person listed on Line B or authorized representative
(F) social security or tax ID number of person/entity listed on Line B
(G) name and address of custodian (for example, IRA custodian)
*signature guarantee: necessary only if selling more than 50 units. May be
obtained by the officer of a national bank or trust company, or a member firm of
a stock exchange.
CONSENT
THIS WRITTEN CONSENT IS SOLICITED BY KENNETH E. NELSON TO BE EFFECTIVE AS SET
FORTH IN THE SOLICITATION STATEMENT ACCOMPANYING THIS CONSENT CARD.
This Consent Card ("Consent Card") must be completed and returned by every Unit
holder who wishes to vote for the Proposals as described in the Solicitation
Statement accompanying this Consent Card. A postage-paid return envelope is
enclosed for your convenience in returning this Consent Card. The Consent Card
must be received prior to June 27, 2003. The undersigned, with respect to each
Unit in Metric Partners Growth Suite Investors, L.P., held of record by the
undersigned on May 14, 2003, hereby sets forth his, her or its vote in
connection with the written consent solicited by Kenneth Nelson as described in
the Solicitation Statement accompanying the Consent Card and hereby directs the
Assignor Limited Partner to vote on the Proposed Amendment as directed below. A
PROPERLY EXECUTED CONSENT CARD THAT IS NOT MARKED WILL BE DEEMED TO VOTE FOR THE
PROPOSALS.
KENNETH E. NELSON RECOMMENDS A VOTE FOR ALL PROPOSALS.
Proposal No. 1: Approval of Proposed Amendment to Paragraph 12.3 of the Limited
Partnership Agreement of Metric Partners Growth Suite Investors, L. P.
|_| FOR |_|AGAINST |_| ABSTAIN
Proposal No. 2: Approval of the removal of the current general partners of
Metric Partners Growth Suite Investors, L. P.
|_| FOR |_|AGAINST |_| ABSTAIN
Proposal No. 3: Approval of the election of Kenneth E. Nelson as general partner
of Metric Partners Growth Suite Investors, L. P.
|_| FOR |_|AGAINST |_| ABSTAIN
Proposal No. 4: Approval of the Proposed Settlement Agreement.
|_| FOR |_|AGAINST |_| ABSTAIN
The undersigned hereby acknowledges receipt of the Solicitation Statement, dated
May 14, 2003. If Units are owned jointly, all joint owners must sign below.
Date:________________________________________________
Signature of Owner:__________________________________
Signature of Joint Owner:____________________________
Please date and sign here exactly as your name or names appear on this Consent
Card. Each executor, administrator, trustee, guardian, attorney-in-fact or other
fiduciary should sign and indicate his or her full title.
D.F. King & Co., Inc.
48 Wall Street
New York, NY 10005
800-949-2583