UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): February 27, 2018
| AMREP CORPORATION |
| (Exact name of Registrant as specified in its charter) |
| Oklahoma | 1-4702 | 59-0936128 |
| (State or other jurisdiction of | (Commission File | (IRS Employer |
| incorporation) | Number) | Identification No.) |
|
620 West Germantown Pike, Suite 175 Plymouth Meeting, PA |
19462 |
| (Address of principal executive offices) | (Zip Code) |
Registrant's telephone number, including area code: (610) 487-0905
| (Former name or former address, if changed since last report) |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01 Entry into a Material Definitive Agreement.
Reference is made to the Annual Report on Form 10-K of AMREP Corporation (the “Company”) for the year ended April 30, 2017, which was filed with the Securities and Exchange Commission on July 18, 2017, regarding the Settlement Agreement and Mutual General Release (the “Settlement Agreement”) between the Florida Department of Economic Opportunity (the “State of Florida”) and Palm Coast Data LLC (“PCD”), a subsidiary of the Company entered into in May 2017 and the related Guaranty Agreement between the Company and the State of Florida entered into in May 2017. As part of the Settlement Agreement, PCD agreed to pay the State of Florida 40 quarterly payments of $40,000 each, without interest, on the first business day of each calendar quarter starting on October 1, 2017 and ending on July 1, 2027. PCD has timely paid two such quarterly payments. Pursuant to the Guaranty Agreement, the Company guaranteed the payment by PCD of amounts due to the State of Florida under the Settlement Agreement.
On February 27, 2018, PCD and the Company entered into a Release Agreement (the “Release Agreement”), dated February 22, 2018, with the State of Florida. Pursuant to the Release Agreement, (1) PCD paid the State of Florida $956,192.31, (2) each of the parties released all claims relating to the Guaranty Agreement and the payment obligations under the Settlement Agreement that the releasing party may have against each of the other parties and (3) each of the Guaranty Agreement and the payment obligations under the Settlement Agreement shall be deemed terminated and none of the parties shall have any further liabilities or obligations with respect thereto.
The foregoing description of the Release Agreement is a summary only and is qualified in all respects by the provisions of such document, a copy of which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.
Item 1.02 Termination of a Material Definitive Agreement.
The information in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 1.02.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit Number | Description |
| 10.1 | Release Agreement, dated February 22, 2018, between the Florida Department of Economic Opportunity, Palm Coast Data LLC and AMREP Corporation. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| AMREP Corporation | ||||||
| Date: February 28, 2018 | By: |
/s/ Christopher V. Vitale |
||||
| Name: Christopher V. Vitale | ||||||
| Title: President and Chief Executive Officer | ||||||
EXHIBIT INDEX
| Exhibit Number | Description |
| 10.1 | Release Agreement, dated February 22, 2018, between the Florida Department of Economic Opportunity, Palm Coast Data LLC and AMREP Corporation. |
Exhibit 10.1
Release Agreement
THIS RELEASE AGREEMENT (the “Release Agreement”) is made and entered into this 22nd day of February, 2018 (the “Effective Date”), by and among the Florida Department of Economic Opportunity (“DEO”), Palm Coast Data LLC (“Palm Coast”) and AMREP Corporation (the “Guarantor”). DEO, Palm Coast and the Guarantor are sometimes referred to collectively herein as the “Parties” and, each, as a “Party.”
Recitals
WHEREAS, Palm Coast and DEO are parties to a Settlement Agreement and Mutual General Release, dated May 4, 2017 (the “Settlement Agreement”);
WHEREAS, the Guarantor and DEO are parties to a Guaranty Agreement, dated May 4, 2017 (the “Guaranty Agreement”); and
WHEREAS, Palm Coast desires to satisfy in full its obligations under the Settlement Agreement and DEO has agreed to accept the payment to be made by Palm Coast under this Release Agreement in satisfaction in full of Palm Coast’s obligations under the Settlement Agreement and the Guarantor’s obligations under the Guaranty Agreement.
Agreement
NOW, THEREFORE, the Parties, for and in consideration of the covenants, promises, undertakings and releases stated herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, hereby consent and agree as follows:
| 1. | Prepayment Amount . Palm Coast shall pay to DEO nine hundred fifty-six thousand one hundred ninety-two dollars and 31/100 ($956,192.31) (“Prepayment Amount”) within fifteen (15) calendar days after the Effective Date. |
| 2. | Electronic Funds Transfer. Palm Coast shall follow DEO’s previously provided instructions for a wire transfer of the funds from Palm Coast’s or its affiliate’s financial institutions to DEO’s financial institution in order to facilitate the Electronic Funds Transfer (“EFT”) between Palm Coast Data and DEO. |
| 3. | Release and Covenant Not to Sue . Upon receipt by DEO of the Prepayment Amount, the Parties shall and do forever mutually release and discharge each other and covenant not to sue or bring any other legal or administrative action or claim against each other, or their past and current officers, directors, managers, members, employees, representatives, stockholders, affiliates, parents, subsidiaries, partners, agents, servants, insurers, sureties, predecessors, successors and assigns, receivers, executors, administrators, and beneficiaries, and any and all entities in which Palm Coast has had an interest, directly or indirectly, from and concerning any and all liabilities, rights, claims, demands, damages, debts, causes of action, agreements, warranties, controversies, promises, judgments, obligations or controversies of every kind and description, in law or equity, whether arising in law or equity or by statute, by regulation, or otherwise, and regardless of the legal theory, whether known or unknown, suspected or unsuspected, unanticipated as well as anticipated and that now exist or may hereafter accrue based on matters now unknown as well as known under, related to, arising from, or in any way connected with the Funding Agreement (as defined in the Settlement Agreement), the Guaranty Agreement or Sections 1 through 5 of the Settlement Agreement. It is understood and agreed by all Parties that the release in this Section 3 is a general release of the Parties, and it is to be construed in the broadest possible manner consistent with applicable law. |
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Each Party represents and warrants that it is the exclusive owner of the claims such Party is releasing in the prior paragraph and that, as of the Effective Date, such Party has not assigned, sold, transferred or otherwise conveyed those claims to any other person. Each Party represents and warrants that they have not filed with any court, tribunal or alternative dispute resolution organization any claim, demand, action, joinder or cause of action against any other Party or their past and current officers, directors, managers, members, employees, representatives, stockholders, affiliates, parents, subsidiaries, partners, agents, servants, insurers, sureties, predecessors, successors and assigns, receivers, executors, administrators, and beneficiaries, or any and all entities in which Palm Coast has had an interest, directly or indirectly under, related to, arising from, or in any way connected with the Funding Agreement (as defined in the Settlement Agreement), the Guaranty Agreement or Sections 1 through 5 of the Settlement Agreement.
| 4. | Termination of Further Obligations . Upon receipt by DEO of the Prepayment Amount, Sections 1 through 5 of the Settlement Agreement shall be deemed terminated, void and of no further force and effect, and none of the Parties or any other person shall have any further liabilities or obligations under Sections 1 through 5 of the Settlement Agreement whatsoever. Upon receipt by DEO of the Prepayment Amount, the Guaranty Agreement shall be deemed terminated, void and of no further force and effect, and none of the Parties or any other person shall have any further liabilities or obligations under the Guaranty Agreement whatsoever. |
| 5. | Authority. The Parties represent and warrant that they have all necessary and appropriate authority to enter into and execute this Release Agreement and be legally bound thereby. Each person signing this Release Agreement in a representative capacity represents and warrants that he/she has the full and complete authority to execute this Release Agreement on behalf of his/her principal or employer, and that upon execution the Release Agreement shall be binding upon his/her principal or employer. |
| 6. | Attorneys’ Fees, Costs, and Expenses. All fees, costs, and expenses incurred by the Parties in negotiating and entering into this Release Agreement, shall be paid by the Parties incurring them, including, but not limited to, legal fees and costs. In the event of a dispute arising under this Release Agreement, whether or not a lawsuit or other proceeding is filed, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, including attorneys’ fees and costs incurred in litigating entitlement to attorneys’ fees and costs, as well as in determining or quantifying the amount of recoverable attorneys’ fees and costs. The reasonable costs to which the prevailing party is entitled shall include costs that are taxable under any applicable statute, rule, or guideline, as well as non-taxable costs, including, but not limited to, costs of investigation, copying costs, electronic discovery costs, telephone charges, mailing and delivery charges, information technology support charges, consultant and expert witness fees, travel expenses, court reporter fees, and mediator fees, regardless of whether such costs are otherwise taxable. |
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| 7. | Acknowledgments. Each of the Parties declares that it has read and understands the terms of this Release Agreement, that it has had the opportunity to be represented by counsel in the negotiation, execution, and delivery of this Release Agreement, and that it executes this Release Agreement voluntarily. Each of the Parties participated in the drafting of this Release Agreement. In the event of any ambiguity, the Parties agree that it shall not be construed against either of them. |
| 8. | Warranties. Except as expressly set forth in this Release Agreement, the Parties have not made and make no other representations, warranties, statements, promises, or agreements to each other. |
| 9. | References. As used in this Release Agreement, the use of the pronoun “it” shall be deemed to include, where applicable, masculine, feminine, singular or plural, individuals, government entities, partnerships, or corporations. As used in this Release Agreement, “person” shall mean any natural person, government entity, corporation, partnership, limited partnership, trust, estate, or other entity, and the term “affiliate” shall mean any partnership, joint venture, corporation, or other entity in which such person has an interest, or which controls, is controlled by, or is under common control with such person. |
| 10. | Non-prejudice and Construction of Agreement. This Release Agreement is the product of informed negotiations that involves compromises of the Parties’ previously stated legal positions. Accordingly, this Release Agreement does not reflect the Parties’ views as to their rights and obligations with respect to matters or entities outside the scope of this Release Agreement. This Release Agreement is without prejudice to positions taken by DEO, Palm Coast or the Guarantor with regard to those not within the scope of this Release Agreement. |
| 11. | Captions and Headings. The captions and headings, to the extent used in this Release Agreement, are for reference purposes only and shall not be taken into account in construing or interpreting this Release Agreement. |
| 12. | Invalid Provisions. If any provision of this Release Agreement is held to be illegal, invalid, or unenforceable under present or future laws effective during the term of this Release Agreement, such provision(s) shall be fully severable and the invalidity, illegality, or unenforceability shall not affect any other provision of this Release Agreement. |
| 13. | Counterparts. This Release Agreement may be executed in counterparts, each of which shall be deemed an original instrument, but all of which together shall constitute one and the same instrument. A signed copy of this Release Agreement delivered by facsimile, e-mail or other means of electronic transmission (to which a signed PDF copy is attached) shall be deemed to have the same legal effect as delivery of an original signed copy of this Release Agreement. Any Party may copy this completed Release Agreement for electronic storage in a non-editable format, at which time the paper form of this Release Agreement may be destroyed. Each Party agrees that following the electronic storage of this Release Agreement, any hardcopy printout of that electronically stored information will constitute an original of this Release Agreement. |
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| 14. | Applicable Law and Jurisdiction. The laws of the State of Florida shall govern the construction, enforcement and interpretation of this Release Agreement, regardless of and without reference to whether any applicable conflicts of laws principles may point to the application of the laws of another jurisdiction. The Parties hereby agree that the exclusive personal jurisdiction and venue to resolve any and all disputes between them arising out of or relating to this Release Agreement shall be in the state courts of the State of Florida in the County of Leon. With respect to any and all disputes between them arising out of or relating to this Release Agreement, the Parties expressly (a) consent to the exclusive personal jurisdiction and venue in any state court located in Leon County, Florida and (b) waive any defense of forum non conveniens, lack of personal jurisdiction, or like defense. IN ANY LEGAL OR EQUITABLE ACTION BETWEEN THE PARTIES ARISING FROM THIS RELEASE AGREEMENT, THE PARTIES HEREBY EXPRESSLY WAIVE TRIAL BY JURY TO THE FULLEST EXTENT PERMITTED BY LAW. |
| 15. | Entire Agreement and Successors and Assigns. This Release Agreement is a fully integrated agreement which sets forth the entire agreement and understanding of the Parties concerning the subject matter of this Release Agreement. This Release Agreement shall be binding upon the successors and assigns of the Parties and may not be waived, rescinded, canceled, terminated, supplemented, amended, or modified in any manner without the prior written consent of each of DEO, Palm Coast and the Guarantor. |
| 16. | No Third Party Beneficiaries. This Release Agreement is for the sole benefit of the Parties and their permitted successors and assigns and nothing herein expressed or implied shall give or be construed to give any person, other than the Parties and such permitted successors and assigns (and as provided in the following sentence), any legal or equitable rights hereunder. Notwithstanding the foregoing, the Parties hereby designate each of their past and current officers, directors, managers, members, employees, representatives, stockholders, affiliates, parents, subsidiaries, partners, agents, servants, insurers, sureties, predecessors, successors and assigns, receivers, executors, administrators, and beneficiaries, and any and all entities in which Palm Coast has had an interest, directly or indirectly, as third-party beneficiaries of Section 3 having the right to enforce this Release Agreement. |
| 17. | Time is of the essence. The Parties agree and acknowledge that time is of the essence with regard to payments required hereunder. |
| 18. | No modification unless in writing. No modification of this Release Agreement shall be valid unless in writing and agreed upon by all Parties. |
| 19. | Disclosure of This Agreement. The Parties agree and acknowledge that DEO may be required to disclose this Release Agreement pursuant to a request made under chapter 119 of the Florida Statutes. The Parties agree and acknowledge that Guarantor may disclose this Release Agreement as it deems necessary under applicable law or the rules of any stock exchange or market on which its securities are traded. |
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| 20. | Notices . All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); or (c) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective Parties at the address set forth below (or to such other address that may be designated by a Party from time to time in accordance with this paragraph): |
If to DEO:
Office of the General Counsel
107 E. Madison Street, MSC 110
Tallahassee, Florida 32399-4128
Attention: General Counsel
If to PCD:
11 Commerce Boulevard
Palm Coast, Florida 32164
Attn: President
With a required copy to:
AMREP Corporation
620 West Germantown Pike, Suite 175
Plymouth Meeting, Pennsylvania 19462
Attention: President
If to Guarantor:
620 West Germantown Pike, Suite 175
Plymouth Meeting, Pennsylvania 19462
Attention: President
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the Parties have caused this Release Agreement to be duly executed by each of their duly authorized representative(s) on the dates hereinafter subscribed.
| Date: February 22, 2018 | PALM COAST DATA LLC | |
| By: | /s/ Christopher V. Vitale | |
| Title: Vice President | ||
| Print Name: Christopher V. Vitale | ||
| Date: February 22, 2018 | AMREP CORPORATION | |
| By: | /s/ Christopher V. Vitale | |
| Title: President and Chief Executive Officer | ||
| Print Name: Christopher V. Vitale | ||
| Date: February 27, 2018 | FLORIDA DEPARTMENT OF ECONOMIC OPPORTUNITY | |
| By: | /s/ Chris Peary | |
| Title:Chief of Staff | ||
| Print Name : Chris Peary | ||
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