EXHIBIT A
OPTION AGREEMENT
by and among
Consumer Finance Holdings, Inc.
and
Xxxxxx Xxxxxxxx, Xxxxxxx Family Partners, Ltd.,
and Xxxxx X. Xxxxxxx
Effective as of
December 4, 1997
EXHIBIT A
OPTION AGREEMENT
This OPTION AGREEMENT (this "Agreement"), effective as of December 4, 1997
(the "Effective Date"), is made and entered into by and among Consumer Finance
Holdings, Inc., a Nevada corporation ("Optionee"), and each of Xxxxxx Xxxxxxxx
("Xxxxxxxx"), Xxxxxxx Family Partners, Ltd., a Colorado limited partnership
("Sandler Partners"), and Xxxxx X. Xxxxxxx ("Xxxxxxx" and, together with
Xxxxxxxx and Sandler Partners, the "Shareholders").
WHEREAS, Xxxxxxxx and Xxxxxxx Partners are the owners of 580,000 and
250,000 shares, respectively, of Class B Common Stock, par value $0.01 per share
("Class B Common Stock" or the "Shares"), of Monaco Finance, Inc., a Colorado
corporation (the "Company");
WHEREAS, the Shareholders are willing to grant to Optionee an option to
purchase the Shares upon the terms of this Agreement, and to agree to the
additional terms and conditions of this Agreement, including the provisions
regarding voting of the Shares contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
I. DEFINITIONS. The following terms when used in this Agreement shall
have the following meanings:
"AFFILIATE" means, with respect to a person, any corporation or other
entity in which such person has a direct or indirect controlling interest or by
which such person is directly or indirectly controlled or which is under direct
or indirect common control with such person.
"BUSINESS DAY" means any day which is not a Saturday or a Sunday, or a
day on which banks in the State of Colorado are not authorized or required to
close.
"COMMON STOCK" shall mean the Company's Class A Common Stock, par
value $0.01 per share, and the Class B Common Stock, par value $0.01 per share.
"EFFECTIVE DATE" shall mean December 4, 1997.
"LIEN OR OTHER ENCUMBRANCE" means any lien, pledge, mortgage, security
interest, claim, lease, charge, option, right of first refusal, easement,
servitude, transfer restriction under any shareholder or similar agreement or
encumbrance.
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EXHIBIT A
"SHARES" or "OPTION SHARES" mean (i) the 830,000 shares of Class B
Common Stock owned by Shareholders, (ii) any shares of Common Stock issued in
respect of any subdivision, split or dividend on the shares of Class B Common
Stock described in subparagraph (i), and (iii) in the event the Company at any
time shall be a party to a recapitalization of the Class B Common Stock in which
the previously outstanding Class B Common Stock shall be changed into or
exchanged for different securities of the Company, any such other securities
received in respect of such shares of Class B Common Stock.
2. OPTION TO PURCHASE SHARES.
(a) GRANT OF OPTION; EXERCISE. Effective as of the Effective Date,
each of the Shareholders hereby grants to the Optionee an irrevocable option
(the "Option") to purchase that portion of the Shares held by such person at a
price of $4.00 per share, subject to adjustment as provided in Section 2(e) (as
adjusted, the "Option Price"). The Option shall be exercisable commencing on
the Effective Date and ending on the third anniversary of the Effective Date
(the "Option Term"). In the event the Optionee elects to exercise the Option,
the Optionee shall (i) notify the Shareholders of such election by delivering a
written notice to that effect setting forth the date for the consummation of the
purchase (such date being referred to as the "Option Closing Date"), which date
shall be not earlier than ten (10) days or later than thirty (30) days from the
date the notice is delivered and (ii) to the extent one-half of the Security
(hereinafter defined) has been released in accordance with the last sentence of
Paragraph 2(b) hereof, replenish the Security, on the date of exercise of the
Option, to an amount equivalent to 100% of the Option Price. The Optionee shall
have the right to exercise the Option as to all, but not less than all, of the
Shares.
(b) SECURITY. Simultaneously with the execution hereof Optionee
shall provide as security for the full and prompt performance of its obligations
to pay the Put Price (as hereinafter defined) in the form of cash, a letter of
credit or other collateral reasonably acceptable to Shareholders and sufficient,
upon payment, collection or sale to pay the full amount due from Optionee upon a
full exercise of the Put (i.e. without regard to any provisions for partial or
installment exercise or installment payment) under this Agreement (the
"Security"), which Security will be pledged to the Shareholders pursuant to the
terms and conditions of a Pledge Agreement which will be acceptable to Optionee
and Shareholders. If the first Put is not exercised in the First Put Period,
then immediately following the expiration of the First Put Period, one-half of
the Security shall be released from the pledge agreement. The Security shall
initially be cash. The Shareholders agree that the Optionee may, at its
election, substitute a letter of credit for the cash at any time by delivering
to each of the Shareholders one or more letters of credit, in form and substance
acceptable to each such Shareholder, aggregating the Put Price for each such
Shareholder's Shares.
(c) PAYMENT OF OPTION PRICE. On the Option Closing Date, the
Optionee shall pay to each of the Shareholders an amount equal to the number of
Shares being sold by such
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EXHIBIT A
person multiplied by the Option Price. Such amount shall be paid by wire
transfer of immediately available funds to such account or accounts of the
Shareholders as the Shareholders shall designate to the Optionee, in the manner
specified herein for the delivery of notices, not less than three (3) Business
Days prior to the Option Closing Date. In the event that the Optionee defaults
on its obligation to pay the Option Price on the Option Closing Date, the
Shareholders may elect to foreclose on the Security and complete the sale of the
Shares; provided, that if the Shareholders elect not to so complete the sale of
the Shares, Optionee shall have no further rights pursuant to this Agreement.
(d) DELIVERY OF SHARES. On the Option Closing Date, the Shareholders
shall deliver to the Optionee stock certificates representing all of the Shares
being purchased by the Optionee, duly endorsed in blank or accompanied by duly
executed instruments of transfer, or registered in the name of the Optionee.
(e) OPTION PRICE ADJUSTMENTS. In the event the Company shall at any
time subdivide or split its outstanding shares of Class B Common Stock into a
greater number of shares or declare any dividend on the Class B Common Stock
payable in shares of Common Stock, the Option Price in effect immediately prior
to such subdivision, split, or dividend shall be proportionately decreased, and
conversely, in case the outstanding shares of Class B Common Stock shall be
combined into a smaller number of shares, the Option Price in effect immediately
prior to such combination shall be proportionately increased.
(f) SALE OR TRANSFER OF SHARES BY OPTIONEE. In the event that the
Optionee or any Affiliate of Optionee exercises the Option and within 180 days
of the Option Closing Date, Optionee or any Affiliate of Optionee sells, or
agrees to sell, all or any portion of the Shares to a person who is not an
Affiliate of the Optionee for a price per share greater than $4.00 per share,
Optionee or its Affiliate shall be obligated to pay to the Shareholders, in
proportion to the number of shares previously held by them, 50% of such excess
purchase price per share. Such payment shall be made to the Shareholders within
two (2) business days after receipt of the purchase price by Optionee or its
Affiliate from such third party purchaser. Optionee shall notify the
Shareholders in writing at least ten (10) days prior to the consummation of any
such sale or agreement of the fact of such sale or agreement. Any sale of
Common Stock by Optionee or its Affiliate shall be deemed to include Shares in
the same proportion that the Shares bear to the aggregate amount of Common Stock
held by Optionee and its Affiliates immediately prior to such sale. The
provision of this Section 2(f) shall apply to any Affiliate of Optionee.
(g) ENCUMBRANCE ON SHARES. Until the expiration of the Option Term,
none of the Shareholders shall pledge or otherwise encumber the Shares or,
except as set forth in Section 3 hereof, sell, assign, transfer or grant any
other rights in the Shares or take any other action inconsistent with the
Option.
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EXHIBIT A
(h) LEGEND. On the Effective Date, the Shareholders shall deliver
the Shares to the Company and instruct the Company to place the following legend
on each certificate representing the Shares and record corresponding stop
transfer instructions to its transfer agent:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF AN OPTION AGREEMENT DATED AS OF DECEMBER 4, 1997 BY AND
AMONG CONSUMER FINANCE HOLDINGS, INC., XXXXXX XXXXXXXX, XXXXXXX FAMILY
PARTNERS, LTD., AND XXXXX X. XXXXXXX. COPIES OF SUCH AGREEMENT ARE ON
FILE WITH THE SECRETARY OF MONACO FINANCE, INC.
The Optionee shall instruct the Company to return the legended Shares as
promptly as practicable to the Shareholders.
(i) RELEASE FROM OPTION. Upon any permitted sale by the Shareholders
under Section 3 hereof or upon expiration of the Option granted hereunder, the
Shares shall be released from the terms of this Option, and the Shareholders
shall be entitled to request the Company to remove the legend called for by
Section 2(h) from the certificates evidencing such shares and terminate the stop
transfer instructions in respect of such shares. Except as herein expressly
provided, none of the Shareholders shall take any action to remove the legend
described in Section 2(h) from the certificates evidencing the Shares.
3. RIGHT TO SELL.
(a) GRANT OF PUT. The Optionee hereby grants to each Shareholder
during the Option Term an irrevocable option, exercisable during the Option Term
(the "Put"), to sell that portion of the Shares held by each such Shareholder at
a price of $4.00 per share, subject to adjustment as provided in Section 3(d)
(as adjusted, the "Put Price"). The Put shall be exercisable by a Shareholder
with respect to (i) up to 50% of the Shares held by such Shareholder as of the
date hereof during the 30-day period following the second anniversary of the
Effective Date (the "First Put Period"), and (ii) up to 50% of the Shares held
by such Shareholder as of the date hereof during the 30-day period following the
third anniversary of the Effective Date (the "Second Put Period"). In the event
any Shareholder elects to exercise the Put, such Shareholder shall notify the
Optionee of such election by delivering a written notice (the "Put Notice") to
the Optionee during the First Put Period or the Second Put Period, as the case
may be, which shall set forth the fact of such election.
(b) PAYMENT OF PUT PRICE. On the date of the consummation of the
purchase of the Shares subject to a Put (such date being referred to as the "Put
Closing Date"), which date shall be not earlier than 10 days or later than 30
days from the date a Put Notice is delivered, as determined by the Optionee, the
Optionee shall pay to the Shareholder who has delivered such Put Notice an
amount equal to the number of Shares being put by such person, multiplied by the
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EXHIBIT A
Put Price (the "Put Payment"). The Put Payment shall be paid by wire transfer
of immediately available funds to such account or accounts of the Shareholder as
the Shareholder exercising the Put shall designate to the Optionee, in the
manner specified herein for the delivery of notices, not less than three (3)
Business Days prior to the Put Closing Date.
(c) DELIVERY OF OPTION SHARES. On the Put Closing Date, the
Shareholder exercising the Put shall deliver to the Optionee stock certificates
representing all of the Shares being purchased by the Optionee, duly endorsed in
blank or accompanied by duly executed instruments of transfer, or registered in
the name of the Optionee.
(d) PUT PRICE ADJUSTMENTS. In the event the Company shall at any
time subdivide or split its outstanding shares of Class B Common Stock into a
greater number of shares or declare any dividend of the Class B Common Stock
payable in shares of Common Stock, the Put Price in effect immediately prior to
such subdivision, split, or divided shall be proportionately decreased, and
conversely, in case the outstanding shares of Class B Common Stock shall be
combined into a smaller number of shares, the Put Price in effect immediately
prior to such combination shall be proportionately increased.
4. VOTING AGREEMENTS.
(a) VOTING AGREEMENT. Each Shareholder hereby grants Optionee the
right, for a period commencing on the Effective Date and ending on the third
anniversary of the Effective Date (the "Voting Period"), to vote the Option
Shares (on the basis of three votes per share rather than one vote per share of
the Company Class A Common Stock, par value $0.01 per share), at all meetings of
shareholders of the Company, to cause such Option Shares, and such additional
shares of capital stock of the Company to which he or the Shareholders hold a
proxy granted by a third party, to be counted as present at any such meetings
for purposes of establishing a quorum and to exercise all consensual or other
voting rights with respect to the Option Shares and additional shares, in each
case in such manner as Optionee, in its sole discretion, shall determine by
written notice to the Shareholders, provided that voting any shares of capital
stock as to which he or the Shareholders hold a proxy granted by a third party
in the manner directed by Optionee shall be consistent with any fiduciary duty
owed by him or the Shareholder to the grantor of such proxy. Each of the
Shareholders hereby acknowledges that the grant of rights under this Section
4(a): (i) is consistent with Section 0-000-000 of the Colorado Business
Corporation Act, and (ii) is coupled with an interest and is intended by all
parties to this Agreement to be irrevocable during the Voting Period.
(b) IRREVOCABLE PROXIES. To secure each Shareholder's obligation to
vote that person's Option Shares in accordance with the provisions of this
Agreement, each Shareholder shall, simultaneously with the execution of this
Agreement, execute one, and thereafter if need be more than one, irrevocable
proxy, substantially in the form attached hereto, pursuant to Section 0-000-000
of the Colorado Business Corporation Act, in favor of Optionee or its designee,
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EXHIBIT A
permitting Optionee or its designee to vote all Option Shares owned by such
Shareholder during the Voting Period, and each such Shareholder shall deliver
such proxies to Optionee.
(c) DEPOSIT WITH THE COMPANY. A counterpart of this Agreement shall
be deposited with the Company at its principal office and shall be subject to
the same rights of examination by a shareholder of the Company, in person or by
agent or attorney, as are the books and records of the Company. The
Shareholders covenant and agree that each certificate representing Option Shares
shall contain a statement that the shares represented by the certificate are
subject to the provisions of this Agreement, a counterpart of which has been
deposited with the Company at its principal office.
(d) ECONOMIC RIGHTS TO OPTION SHARES. Except for the voting rights
provided in this Agreement, and subject to the option of Optionee set forth in
Section 2 hereof, the Shareholders shall retain all incidents of ownership with
respect to the Option Shares, including, but not limited to, the right to
receive dividends.
(e) BOARD OF DIRECTORS. Until the earlier of termination of this
Agreement or acquisition by Optionee of all the Option Shares pursuant to this
Agreement, Optionee shall vote (and shall cause each of its Affiliates to vote)
its shares of capital stock of the Company, as well as the Option Shares, to
maintain Xxxxxx Xxxxxxxx and Xxxxx X. Xxxxxxx as directors of the Company.
Following the Effective Date, the Shareholders shall use their best efforts to
provide the Optionee with the right to designate four directors to the Company's
Board of Directors, or such larger number as shall then be sufficient to provide
the Optionee with effective control of the Company's Board of Directors. It is
understood and agreed that this best efforts commitment of the Shareholders may
require them, among other things, to procure resignations from directors
currently sitting on the Company's Board of Directors.
5. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
Each of the Shareholders hereby severally represents and warrants to
Optionee with respect to only those matters concerning such Shareholder that:
(a) ORGANIZATION AND POWER. Sandler Partners is a partnership duly
organized, validly existing and in good standing under the laws of the State of
Colorado. Each of the Shareholders has all requisite power and authority to
execute and deliver this Agreement and to perform his or its obligations
hereunder (including, without limitation, the power to sell, transfer and convey
the Shares as provided by this Agreement).
(b) EXECUTION, DELIVERY; VALID AND BINDING AGREEMENTS. The
execution, delivery and performance of this Agreement by Sandler Partners and
the consummation of the transactions contemplated hereby have been duly and
validly authorized by all requisite partnership action, and no other partnership
proceedings on its part are necessary to authorize the
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EXHIBIT A
execution, delivery and performance of this Agreement. This Agreement has been
duly executed and delivered by the Shareholders and constitutes the valid and
binding obligation of the Shareholders, enforceable in accordance with its
terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
affecting enforcement of creditors' rights or by general principles of equity.
(c) NO BREACH. The execution, delivery and performance of this
Agreement by the Shareholders and the consummation by the Shareholders of the
transactions contemplated hereby do not conflict with or result in any breach of
any of the provisions of, constitute a default under, result in a violation of,
result in the creation of a right of termination or acceleration or any lien,
security interest, charge or encumbrance upon any of the Shares, or require any
authorization, consent, approval, exemption or other action by or notice to any
court or other governmental body, under the provisions of the partnership
agreement of Sandler Partners or any agreement or instrument by which any of the
Shareholders is bound or affected, or any law, statute, rule or regulation or
order, judgment or decree to which any of Shareholders or the Company is
subject.
(d) GOVERNMENTAL AUTHORITIES: CONSENTS. To the best of Shareholders'
knowledge, except for appropriate filings on Schedule 13D and Form 4, none of
the Shareholders is required to submit any notice, report or other filing with
any governmental authority in connection with the execution or delivery by it of
this Agreement or the consummation of the transactions contemplated hereby. No
consent, approval or authorization of any governmental or regulatory authority
or any other party or person is required to be obtained by the Shareholders or
by the Company in connection with its execution, delivery and performance of
this Agreement or the transactions contemplated hereby, except such as have been
duly obtained or made, as the case may be, and are in full force and effect on
the date hereof and will continue to be in full force and effect on the Closing
Date.
(e) OWNERSHIP OF CAPITAL STOCK. The Shareholders own, beneficially
and of record, all right, title and interest in and to the shares free and clear
of any Lien or Other Encumbrance (except the Buy-Sell Agreement dated May 14,
1993 among the Company, Sandler Partners and Xxxxxxxx, which will remain in
effect subject to the Option granted hereby and the Company, by its execution of
this Agreement, agrees that to the extent it becomes the owner of any Shares
pursuant to such Buy-Sell Agreement, such Shares shall remain subject to this
Agreement and the Company will substitute an Option Agreement on similar terms)
and have full power and authority to transfer good and valid title to the Shares
to Optionee, free and clear of any Lien or Other Encumbrance, and, upon delivery
of any payment of such Shares as provided herein, Optionee will acquire good
tile, thereto, free and clear of any Lien or Other Encumbrance.
(f) OPTIONS OR OTHER RIGHTS. Except for the rights granted to
Optionee hereunder and the Buy-Sell Agreement dated May 14, 1993 among the
Company and the Shareholders, there is no outstanding right, subscription,
warrant, call, unsatisfied preemptive
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EXHIBIT A
right, option or other agreement of any kind to purchase or otherwise receive
from any of the Shareholders any of the Shares.
6. REPRESENTATIONS AND WARRANTIES OF OPTIONEE. Optionee hereby
represents and warrants to Shareholders that:
(a) ORGANIZATION AND POWER. Optionee is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada, with the requisite power and authority to enter into this Agreement and
perform its obligations hereunder.
(b) EXECUTION, DELIVER, VALID AND BINDING AGREEMENT. The execution,
delivery and performance of this Agreement by Optionee and the consummation of
the transactions contemplated hereby have been duly and validly authorized by al
requisite action, and no other proceedings on its part are necessary to
authorize the execution, delivery or performance of this Agreement. This
Agreement has been duly executed and delivered by Optionee and constitutes the
valid and binding obligation of Optionee, enforceable in accordance with its
terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
affecting enforcement of creditors' rights or by general principles of equity.
(c) NO BREACH. The execution, delivery and performance of this
Agreement by Optionee and the consummation by Optionee of the transactions
contemplated hereby do not conflict with or result in any breach of any of the
provisions of, constitute a default under, result in a violation of, result in
the creation of a right of termination or acceleration or any lien, security
interest, charge or encumbrance upon any assets of Optionee, or require any
authorization, consent, approval, exemption or other action by or notice to any
court of other governmental body, under the provisions of the articles of
organization of Optionee or any indenture, mortgage, lease, loan agreement or
other agreement or instrument by which Optionee is bound or affected, or any
law, statute, rule or regulation or order, judgment or decree to which Optionee
is subject;
(d) GOVERNMENTAL AUTHORITIES, CONSENTS. To the best of Optionee's
knowledge, except for appropriate filings on Schedule 13D and Form 4, Optionee
is not required to submit any notice, report or other filing with any
governmental authority in connection with the execution or delivery by it of
this Agreement or the consummation of the transactions contemplated hereby. No
consent, approval or authorization of any governmental or regulatory authority
or any other party or person is required to be obtained by Optionee in
connection with its execution, delivery and performance of this Agreement or the
transactions contemplated hereby.
(e) INVESTMENT INTENT. Upon exercise of the Option, Optionee shall
purchase the Shares for its own account with the present intention of holding
the Shares for investment
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EXHIBIT A
purposes and not with a view to or for sale in connection with any distribution
of the Shares in violation of any applicable securities law. Optionee will
refrain from transferring or otherwise disposing of any of the Shares, or any
interest therein, in such manner as to cause Shareholders to be in violation of
the registration requirements of the Securities Act of 1933, as amended, or
applicable state securities or blue sky laws.
7. COVENANTS OF THE PARTIES.
(a) COVENANTS PENDING CLOSING. From the date hereof through the
Closing Date, each of Optionee and the Shareholders shall conduct its or his
affairs in such a manner so that, except as otherwise contemplated or permitted
by this Agreement, all of its representations and warranties in this Agreement
remain true and correct on and as of the Closing Date as if made on and as of
the Closing Date, and all its covenants contained in this Agreement remain
capable of performance. Optionee and Shareholders shall promptly advise the
other parties of any action or event of which any of them become aware that has,
or could have, the effect of making incorrect any of its representations or
warranties in any material respect or which has the effect of rendering any of
its covenants incapable of performance.
(b) REGULATORY FILINGS. As promptly as practicable after the
execution of this Agreement, Optionee and Shareholders shall, and shall cause
the Company to, make or cause to be made all filings and submissions under any
laws or regulations applicable to Optionee, Shareholders and the Company for the
consummation of the transactions contemplated herein. Optionee and Shareholders
will coordinate and cooperate with each other in exchanging such information and
will provide such reasonable assistance as any party may request in connection
with all of the foregoing.
8. CONDITIONS TO OPTIONEE'S OBLIGATIONS.
The obligation of Optionee to consummate the transactions contemplated
by this Agreement with respect to a particular Shareholder is subject to the
satisfaction of the following conditions on or before the Option Closing Date or
the Put Closing Date, as the case may be.
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of such Shareholder set forth in Section 5 hereof shall be true
and correct in all material respects at and as of the Option Closing Date or the
Put Closing Date, as the case may be as though then made.
(b) PERFORMANCE OF COVENANTS. Such Shareholder shall have performed
in all material respects all of the covenants and agreements required to be
performed and complied with by such Shareholder under this Agreement prior to
the Option Closing Date or the Put Closing Date, as the case may be.
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EXHIBIT A
(c) APPROVALS. Such Shareholder shall have obtained, or caused to be
obtained, each consent and approval required to be obtained by them to
effectuate the transactions contemplated hereby.
(d) GOVERNMENTAL FILINGS. All material governmental filings,
authorizations and approvals that are required by such Shareholder for the
effectuation of the transactions contemplated hereby shall have been duly made
and obtained.
(e) INJUNCTION. There shall be no effective injunction, writ,
preliminary restraining order or any order of any nature against Optionee issued
by a court of competent jurisdiction directing that the transactions provided
for herein or any of them not be consummated as provided in this Agreement.
(f) EVIDENCE OF LEGENDING. The certificates representing the Shares
shall have been legended as required by Section 2(h) and corresponding stop
transfer instructions shall have been given to the Company's transfer agent.
9. CONDITIONS TO SHAREHOLDERS' OBLIGATIONS.
The obligation of the Shareholders to consummate the transactions
contemplated by this Agreement is subject to the satisfaction of the following
conditions on or before the Option Closing Date or the Put Closing Date, as the
case may be:
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties set forth in Section 6 hereof shall be true and correct in all
material respects at and as of the Option Closing Date or the Put Closing Date,
as the case may be as though then made.
(b) PERFORMANCE OF COVENANTS. Optionee shall have performed in all
material respects all of the covenants and agreements required to be performed
and complied with by it under this Agreement prior to the Option Closing Date or
the Put Closing Date, as the case may be.
(c) APPROVALS. Optionee shall have obtained, or caused to be
obtained, each consent and approval required to be obtained by Optionee to
effectuate the transactions contemplated hereby.
(d) GOVERNMENTAL FILINGS. All material governmental filings,
authorizations and approvals that are required by Optionee for the effectuation
of the Transactions contemplated hereby shall have been duly made and obtained.
(e) INJUNCTION. There shall be no effective injunction, writ,
preliminary restraining order or any order of any nature against the
Shareholders issued by a court of
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EXHIBIT A
competent jurisdiction directing that the transactions provided for herein or
any of them not be consummated as provided in this Agreement.
10. MISCELLANEOUS.
(a) WAIVERS, AMENDMENTS AND APPROVALS. This Agreement constitutes
the entire agreement among the Parties relating to the subject matter hereof.
This Agreement may be amended, superseded, canceled, renewed or extended, and
the terms hereof may be waived, only by a written instrument signed by the
parties or, in the case of waiver, by the party waiving compliance. No delay on
the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver or, the part of any
party of any such right, power or privilege, nor any single or partial exercise
of such right, power or privilege, preclude any further exercise thereof or the
exercise of any other such right, power or privilege.
(b) NOTICES. All notices, requests, consents and other
communications required or permitted hereunder shall be in writing and shall be
personally delivered, transmitted via facsimile or overnight courier service or
mailed first-class postage prepaid, registered or certified mail,
(i) if to any Shareholder, addressed to such holder at its
address below his/its signature hereon, or at such other address or to
such facsimile telephone number as such holder may specify by written
notice to the Company, or
(ii) if to Optionee, at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxx 00000, Attention: Xxxx X. Xxxxxxx with a copy to 0000 Xxxxxxxxx
Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attention: Xxxxxxx X.
Xxxxxx; or at such other address as Optionee may specify by written
notice to the Shareholders,
and such notices and other communications shall for all purposes of this
Agreement be treated as being effective or having been given on the date when
personally delivered, or when transmitted by facsimile (if confirmation of
facsimile receipt has been given), or on the date after being deposited with an
overnight courier service, or, if sent by mail, four days after deposit in the
United States mail, postage prepaid.
(c) SPECIFIC PERFORMANCE. Subsequent to the Effective Date, the
parties shall be entitled to specific enforcement of their respective rights
under this Agreement, and to recover damages by reason of any breach of any
provision hereof by the other party hereto and to exercise all other rights
existing in their favor. The parties agree and acknowledge that money damages
may not be an adequate remedy for any breach of the provisions of this Agreement
and that the other party may, in its sole discretion, apply to any court of law
or equity of competent jurisdiction for specific performance and/or injunctive
relief in order to enforce or prevent any violations of the provisions of this
Agreement.
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EXHIBIT A
(d) ARBITRATION OF DISPUTES
(i) Any controversy or claim arising out of this Agreement
other than under Sections 2 or 4 of this Agreement, or any breach of
this Agreement other than under Sections 2 or 4 of this Agreement,
shall be settled by arbitration in accordance with the Rules of the
American Arbitration Association then in effect, as modified by this
Section 10(d) or by the further agreement of the parties.
(ii) Such arbitration shall be conducted in Denver, Colorado.
(iii) Any judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof. The
arbitrators shall not, under any circumstances, have any authority to
award punitive, exemplary or similar damages, and may not, in any
event, make any ruling, finding or award that does not conform to the
terms and conditions of this Agreement.
(iv) Nothing contained in this Section 10(d) shall limit or
restrict in any way the right or power of a party at any time to seek
injunctive relief in any court and to litigate the issues relevant to
such request for injunctive relief before such court (A) to restrain
the other party from breaching this Agreement or (B) for specific
enforcement of this Section 10(d). The parties agree that any legal
remedy available to a party with respect to a breach of this Section
10(d) will not be adequate and that, in addition to all other legal
remedies, each party is entitled to an order specifically enforcing
this Section 10(d).
(v) The parties to this Agreement hereby consent to the
jurisdiction of the federal, courts located within Denver, Colorado
for all purposes.
(vi) Neither party nor the arbitrators may disclose the
existence or results of any arbitration under this Agreement or any
evidence presented during the course of the arbitration without the
prior written consent of both parties, except as required to fulfill
applicable disclosure and reporting obligations, or as otherwise
required by law.
(vii) Each party shall bear its own costs incurred in the
arbitration, provided that, in any claim based on an allegation of
fraud or misrepresentation in connection with this Agreement, the
attorneys' fees of both parties shall be borne by the non-prevailing
party. The arbitrator's fees and expenses of any dispute submitted to
arbitration hereunder shall be allocated among the parties who are
subject to the arbitration by the arbitrator so as to charge such fees
and expenses proportionately to the party or parties whose positions
are not sustained, which allocation shall be determined by the
arbitrator as part of his decision. The
13
EXHIBIT A
parties agree that judgment may be entered in any court of competent
jurisdiction upon any award of the arbitrator.
(e) PARTIES IN INTEREST; ASSIGNMENT. All the terms and provisions of
this Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors of the parties hereto. Optionee may
freely assign this Agreement, provided that any such assignment will not release
Optionee its obligations under Section 3 hereof. Except as set forth in the
preceding sentence, no party may assign its rights or obligations under this
Agreement.
(f) HEADINGS. The headings of the articles and sections of this
Agreement have been inserted for convenience of reference only and do not
constitute a part of this Agreement.
(g) CHOICE OF LAW. The substantive laws of Colorado and applicable
federal law shall govern the validity of this Agreement, the construction of its
terms and the interpretation of the rights and duties of the parties hereunder.
(h) COUNTERPARTS. This Agreement may be executed concurrently 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.
14
EXHIBIT A
IN WITNESS WHEREOF, each of the Optionee and the Shareholders has caused
this Agreement to be executed by its duly authorized representative.
CONSUMER FINANCE HOLDINGS, INC.,
a Nevada corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
/s/ Xxxxxx Xxxxxxxx
--------------------------------------------
XXXXXX XXXXXXXX
Address:
--------------------------------------------
--------------------------------------------
/s/ Xxxxx X. Xxxxxxx
--------------------------------------------
XXXXX X. XXXXXXX
Address:
--------------------------------------------
--------------------------------------------
SANDLER FAMILY PARTNERS, LTD.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxx, General Partner
Address:
--------------------------------------------
--------------------------------------------
15
EXHIBIT A
ACKNOWLEDGMENT OF COMPANY
The Company hereby acknowledges receipt of a copy of the foregoing
Agreement and agrees to be bound by the provisions of Paragraph 5(e) of the
foregoing Agreement.
MONACO FINANCE, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Exec. Vice President
16
EXHIBIT A
IRREVOCABLE PROXY AND SPECIAL POWER OF ATTORNEY
KNOW ALL MIEN BY THESE PRESENTS that I, __________________________, in
connection with the execution of the Option Agreement, dated December 4, 1997
(the "Option Agreement"), by and among Consumer Finance Holdings, Inc., Xxxxxx
Xxxxxxxx, Xxxxxxx Family Partners, Ltd. and Xxxxx Xxxxxxx, hereby make,
constitute and appoint Consumer Finance Holdings, Inc., or its designee, with
full power of substitution, as my true and lawful attorney in fact and proxy for
me and in my name, place and xxxxx, to vote all Option Shares (as defined in the
Option Agreement) owned by me, and such additional shares of capital stock of
Monaco Finance, Inc., a Colorado corporation, to which I hold a proxy granted by
a third party, as contemplated by Section 4(a) of the Option Agreement. I
hereby further grant and give to such attorney in fact full power and authority
to do and perform every act necessary, requisite or proper to be done to
effectuate such voting of the Option Shares and other shares of capital stock as
I might do were I personally present, with full power of substitution and
revocation.
This proxy is irrevocable during the Voting Period (as defined in the
Option Agreement) and is coupled with an interest. This proxy shall
automatically expire at 12:00 Midnight, Denver, Colorado time, on the last day
of the Voting Period.
IN WITNESS WHEREOF, I have hereunto set my hand this 4th day of December,
1997.
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[name]