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EXHIBIT (d)(1)
VOTING AGREEMENT
This VOTING AGREEMENT, entered into as of March 16, 2001 (the
"Agreement"), among CENTEX FINANCIAL SERVICES, INC, a Nevada corporation (the
"Purchaser"), and CONSUMER PORTFOLIO SERVICES, INC. ("CPS"), and GREENHAVEN
ASSOCIATES, INC. (collectively, the "Principal Shareholders") and Xxxxxxx X.
Xxxxxxx, Xx. ("Xxxxxxx").
WITNESSETH:
WHEREAS, in order to induce the Purchaser to enter into a Stock
Purchase Agreement, dated the date hereof (as the same may be amended from time
to time, the "Stock Purchase Agreement"), with NAB Asset Corporation, a Texas
corporation (the "Company"), and Stanwich Financial Services, Inc., a Rhode
Island corporation, (i) each of the Principal Shareholders is willing to enter
into this Agreement and perform its obligations hereunder, including its
obligations with respect to the voting of shares ("Company Shares") of Common
Stock, par value $.10 per share, of the Company owned by them or as to which
they have voting control in accordance with the terms and provisions set forth
herein and (ii) Xxxxxxx is willing to take certain actions to facilitate the
transactions contemplated by the Stock Purchase Agreement;
WHEREAS, the Stock Purchase Agreement contemplates that the Company
will propose the Reorganization Plan, which will provide for, among other
things, (i) the issuance and sale by the Company of certain Company Shares to
the Purchaser on the Closing Date and (ii) the distribution of certain amounts
in cash to the persons holding Company Shares prior to the Closing Date (other
than the Principal Shareholders);
WHEREAS, the Stock Purchase Agreement contemplates that the Company
will (i) solicit acceptances of the Reorganization Plan from the holders of
Company Shares and (ii) when the required acceptances have been obtained,
commence the Bankruptcy Case and use its reasonable best efforts to obtain the
confirmation of the Reorganization Plan; and
WHEREAS, capitalized terms used herein without definition have the
respective meanings set forth in the Stock Purchase Agreement;
NOW, THEREFORE, in consideration of the premises, the terms and
provisions set forth herein, the mutual benefits to be gained by the performance
thereof and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
VOTING
SECTION 1.1 Agreement to Vote. For so long as this Agreement remains in
effect, each Principal Shareholder shall, at any meeting of the shareholders of
the Company and in any action by written consent of the shareholders of the
Company in lieu of a meeting, vote or execute acceptances with respect to all of
the Company Shares owned by such Principal Shareholder or
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as to which such Principal Shareholder has or exercises voting control as of the
date of this Agreement and any additional Company Shares acquired by such
Principal Shareholder from time to time (whether by purchase or otherwise) or
with respect to which such Principal Shareholder obtains or exercises voting
control from time to time (with respect to the applicable Principal Shareholder,
the "Shares") (i) in favor of the Reorganization Plan and the other transactions
contemplated by the Stock Purchase Agreement and the Reorganization Plan and
(ii) against any Acquisition Proposal or any other action or agreement that,
directly or indirectly, is inconsistent with the Stock Purchase Agreement or the
Reorganization Plan or the transactions contemplated thereby or that is
reasonably likely to (a) impede, interfere with, delay or postpone the
transactions contemplated by the Stock Purchase Agreement or the Reorganization
Plan, (b) result in a breach of any covenant, representation, warranty or any
other obligation of Company under the Stock Purchase Agreement or (c) cause arty
conditions to the obligations of the parties under the Stock Purchase Agreement
not to be fulfilled.
SECTION 1.2 Certain Other Actions. In addition, for so long as this
Agreement remains in effect, each Principal Shareholder shall (i) not take any
action that has the purpose or effect of impeding, interfering with, delaying or
postponing the transactions contemplated by the Stock Purchase Agreement or the
Reorganization Plan. or creating any legal or other impediment thereto, (ii)
waive any rights to approve or disapprove of the Stock Purchase Agreement or the
Reorganization Plan or the transactions contemplated thereby (other than by
voting the Shares in accordance with the provisions of this Agreement) that such
Principal Shareholder may have under the articles of incorporation of the
Company, as amended (the "Articles of Incorporation"), the bylaws of the
Company, as amended (the "Bylaws"), any agreement among the shareholders of the
Company (a "Shareholder Agreement") or the Texas Business Corporation Act, (iii)
authorize any amendments to the Articles of Incorporation, the Bylaws or any
Shareholder Agreement to which it is a party that are proposed by the Purchaser
in order to facilitate the consummation of the transactions contemplated by the
Stock Purchase Agreement or the Reorganization Plan, (iv) waive any dissenters'
rights or appraisal rights that may apply under the Articles of Incorporation,
the Bylaws or the Texas Business Corporation Act as a result of or in connection
with the transactions contemplated by the Stock Purchase Agreement or the
Reorganization Plan and (v) execute and deliver such documents and instruments
as may be reasonably requested by the Purchaser in order to permit or facilitate
the effectiveness of the transactions contemplated by the Stock Purchase
Agreement or the Reorganization Plan.
SECTION 1.3 Voting Agreement. THIS AGREEMENT CONSTITUTES X VOTING
AGREEMENT WITHIN THE MEANING OF SECTION 2.30.B OF THE TEXAS BUSINESS CORPORATION
ACT, AND SUBJECT ONLY TO THE EXPRESS LIMITATIONS SET FORTH HEREIN, SHALL
IRREVOCABLY OBLIGATE THE PRINCIPAL SHAREHOLDERS TO VOTE THEIR SHARER IN THE
MANNER PROVIDED herein. Pursuant to the Stock Purchase Agreement, the Company
has agreed that a counterpart of this Agreement shall be deposited with the
Company at its principal place of business or registered office and shall be
subject to the same right of examination by a shareholder of the Company, in
person or by agent or attorney, as are the books and records of the Company.
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ARTICLE II
RULE 13E-3 MATTERS
SECTION 2.1 Schedule 13E-3
(a) As promptly as practicable following the date hereof, CPS shall, if
required pursuant to Rule 13e-3 under the Exchange Act or pursuant to comments
received from the staff of the Commission (which are not withdrawn after
discussion of such comments with the staff of the Commission), prepare and file
with the Commission a transaction statement or statements on Schedule 13E-3
(collectively, the "Schedule 13E-3") in connection with the transactions
contemplated by the Stock Purchase Agreement and the Reorganization Plan, which
may, if permitted by law, be a joint transaction statement filed by CPS and the
Company. The Schedule 13E-3 shall comply as to form with the applicable
requirements of the Exchange Act and any other provisions of applicable law.
(b) In preparing the Schedule 13E-3, CPS shall use its reasonable best
efforts to (i) obtain and punish all material information required to be
included therein pursuant to the Exchange Act and any other provisions of
applicable law, (ii) respond promptly to any comments made by the Commission
with respect to the Schedule 13E-3 and (iii) have the Schedule 13E-3 cleared by
the Commission at the earliest practicable date. The Purchaser and its counsel
shall be given a reasonable opportunity to review and comment upon the Schedule
13E-3 and any amendments thereto prior to the time they are filed with the
Commission. CPS shall provide the Purchaser and its counsel with a copy of any
written comments or telephonic notification of any verbal comments that are
received by it from the Commission or its staff with respect to the Schedule
13E-3 and shall further provide the Purchaser and its counsel with a copy of any
written responses and telephonic notification of any verbal responses by CPS or
its counsel.
(c) If at any time prior to the Closing Date any fact, event or
development is discovered by CPS which is required under applicable law to be
set forth in an amendment to the Schedule 13E-3, CPS shall prepare and file with
the Commission any such amendments and shall disseminate the same to the holders
of Company Shares in the manner required by applicable law.
(d) If under applicable law or pursuant to comments received from the
staff of the Commission (which are not withdrawn after discussion of such
comments with the staff of the Commission), Xxxxxxx is or is found to be subject
to the requirements of Rule 13e-3 in connection with the transactions
contemplated by the Stock Purchase Agreement and the Reorganization Plan,
Xxxxxxx shall be bound by, and shall comply with, the provisions of paragraphs
(a) through (c) above as fully and to the same extent as CPS. Without limiting
the generality of and if required by the foregoing, Xxxxxxx shall prepare and
file with the Commission a transaction statement or statements on Schedule 13E-3
in connection with such transactions, which may, if permitted by law, be a joint
transaction statement filed by Xxxxxxx, CPS and the Company.
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(e) Notwithstanding subsection 2.1(a), neither CPS nor Xxxxxxx shall be
required to commence preparation of a statement on Schedule 13E-3 prior to April
3, 2001.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Principal Shareholders (and, in the case of Section 3.5, Xxxxxxx)
severally and not jointly represent and warrant to the Purchaser as follows:
SECTION 3.1 Authority; Binding Effect. Each Principal Shareholder has
all necessary power and authority to enter into and perform its obligations
under this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by such Principal Shareholder have been
duly and validly authorized by all necessary corporate action on the part of
such Principal Shareholder and all necessary action on the part of its
shareholders, and no other proceedings or actions on the part of or with respect
to such Principal Shareholder or any other Share Owner (as defined below) or
their respective shareholders are necessary to authorize this Agreement, the
performance by such Principal Shareholder of its obligations hereunder or the
consummation by such Principal Shareholder of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by each Principal
Shareholder and constitutes a legal, valid and binding obligation of each
Principal Shareholder and each other Share Owner, enforceable against each of
them in accordance with the terms hereof.
SECTION 3.2 Absence of Conflicts. The execution and delivery by the
each of the Principal Shareholders of this Agreement, the performance by it of
its obligations hereunder and the consummation by it of the transactions
contemplated hereby will not (i) conflict with, or result in any violation or
breach of, any provision of the Charter or Bylaws of such Principal Shareholder,
(ii) conflict with, result in any violation or breach of, constitute a default
under, give rise to any right of termination or acceleration (with or without
notice or the lapse of time or both) pursuant to, or result in being declared
void, voidable or without further effect, any term or provision of any note,
bond, mortgage, indenture, lease, franchise, permit, license, Contract or other
instrument or document to which such Principal Shareholder is a party or by
which its properties or assets are bound or (iii) conflict with, or result in
any violation of, any law, ordinance, statute, rule or regulation of any
Governmental Authority or of any order, writ, injunction, judgment or decree of
any court, arbitrator or Governmental Authority applicable to such Principal
Shareholder or its properties or assets.
SECTION 3.3 Governmental Consents and Filings. There is no requirement
applicable to any of the Principal Shareholders to obtain any Consent of, or to
make or effect any declaration, filing or registration with, any Governmental
Authority for the valid execution and delivery by such Principal Shareholder of
this Agreement, the due performance by it of its obligations hereunder or the
lawful consummation by them of the transactions contemplated hereby, except for
any filings required to be made by such Principal Shareholder in connection with
this Agreement pursuant to Section 13(d) or 13(e) of the Exchange Act (if
applicable to such Principal Shareholder) and the rules and regulations
promulgated by the Commission thereunder.
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SECTION 3.4 Title to Shares. As of the date hereof, each Principal
Shareholder is the record and beneficial owner (the "Share Owner") of the number
of Shares set forth opposite the name of such Principal Shareholder on Exhibit A
or, in the case of Greenhaven Associates, Inc., has all requisite authority to
act for and on behalf of the applicable Share Owners of such Shares for all
purposes contemplated by this Agreement. The Shares set forth apposite the name
of each Principal Shareholder on such exhibit are the only Company Shares owned
by such Principal Shareholder as of the date hereof or as to which such
Principal Shareholder has pr exercises voting control. The Shares are, or, if
acquired after the date hereof, will be, owned by the Principal Shareholder or
other Share Owner free and clear of all Liens, except for the restrictions on
transfer and other limitations provided for under the express terms of this
Agreement, and except that the Shares owned by CPS are pledged pursuant to a
Pledge and Security Agreement dated as of March 15, 2000 ("CPS Pledge
Agreement"). Neither the Principal Shareholders nor the Share Owners have
appointed or granted any proxy, which appointment or grant is still effective,
with respect to any of the Shares, other than a grant of voting rights by CPS
(i) that would be effective upon default under the CPS Pledge Agreement, and
(ii) that is not effective at present.
SECTION 3.5 Schedule 13E-3. In the case of CPS and Xxxxxxx, none of the
information to be supplied or provided by them for inclusion in the Schedule
13F-3 will contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
ARTICLE IV
COVENANTS
SECTION 4.1 No Encumbrances on or Transfer of Shares.
(a) For so long as this Agreement retrains in effect, no Principal
Shareholder or other Share Owner shall directly or indirectly sell, convey or
transfer record or beneficial ownership of any Shares by any means whatsoever to
any Person, without the prior written consent of the Purchaser. Without limiting
the generality of the foregoing, for so long as this Agreement remains in
effect, .no Principal Shareholder or other Share Owner shall, directly or
indirectly, (i) except pursuant to the terms of this Agreement, grant any
proxies or enter into any voting trust or other agreement or arrangement with
respect to the Shares or (ii) except as permitted pursuant to paragraph (b)
below, sell, assign, transfer, encumber or otherwise dispose of, or enter into
any contract, option or other arrangement or understanding with respect to the
direct or indirect sale, assignment, transfer, encumbrance pr other disposition
of, any Shares, in each case without The prior written consent of the Purchaser.
If requested by the Purchaser, the Principal Shareholders and other Share Owners
shall cause an appropriate legend referring to the restrictions provided for in
this Section 4.1(a) to be placed on the certificates evidencing the Shares,
except that CPS's obligation with respect to such a legend shall be subject to
the rights of the pledgee under the CPS Pledge Agreement.
(b) A Principal Shareholder or other Share Owner may sell, assign,
transfer, encumber or otherwise dispose of Shares with the prior written consent
of the Purchaser, but only if (i) the certificate or certificates evidencing
such Shares bear an appropriate legend
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referring to the restrictions provided for in this Section 4.1 and (ii) the
Person to whom such Shares are to be sold, assigned, transferred, encumbered or
disposed of with the prior written consent of the Purchaser (the "Permitted
Transferee") shall have executed, as a condition to obtaining ownership of such
Shares, an appropriate document (a "Supplemental Agreement") in which the
Permitted Transferee agrees that its ownership of such Shares shall be subject
to, and that the Permitted Transferee shall comply with, all of the terms and
conditions of this Agreement (including, but not limited to, the restrictions on
the sale, assignment, transfer, encumbrance or other disposition of Shares set
forth in this Section 4.1) and that the Permitted Transferee shall not sell,
assign, transfer, encumber or otherwise dispose of any Shares owned by it except
in compliance with the provisions hereof and in which the Permitted Transferee
confirms that the representations and warranties contained in Article III are
true and correct with respect to such Permitted Transferee as of the date of the
Supplemental Agreement and (iii) the Supplemental Agreement shall have been
promptly delivered to the Purchaser and approved by it in its reasonable
discretion prior to the acquisition by such Permitted Transferee of the Shares.
SECTION 4.2 Best Efforts. Each of the parties hereto shall use its
reasonable best efforts to take, or cause to be taken, all action and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations and which may be required under any agreements, Contracts,
commitments, instruments, understandings, arrangements or restrictions of any
kind to which it is a party or by which it is or may be bound, in order to
consummate the transactions contemplated by the Stock Purchase Agreement or the
Reorganization Plan, to obtain all necessary waivers, Consents and approvals
from, and effect all necessary registrations and filings with, any Governmental
Authorities, and to rectify any event or circumstances which could impede the
effectuation of the transactions contemplated thereby.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Expenses. All fees and expenses incurred by any of the
parties hereto in connection with this Agreement or the performance of the
obligations of the parties hereunder shah be borne and paid solely by the puny
incurring such fees and expenses.
SECTION 5.2 Further Assurances. Each of the Principal Shareholders and
Xxxxxxx shall execute and deliver, or cause to be executed and delivered, at the
expense of the Purchaser, all such other and further documents and instruments
and take all such further actions as may be reasonably necessary in order to
effectuate the purposes of this Agreement.
SECTION 5.3 Termination. This Agreement shall terminate on the earliest
of (i) the closing of the transactions contemplated by the Stock Purchase
Agreement, (ii) the termination of the Stock Purchase Agreement without the
transactions contemplated thereby having been consummated or (iii) one year from
the date of this Agreement. No termination of this Agreement shall relieve any
party from liability for any breach of the provisions hereof occurring prior to
the date of termination.
SECTION 5.4 Notices. All notices and other communications hereunder
shall be in writing and shall be given by delivery in person, by registered or
certified mail (return receipt
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requested and with postage prepaid thereon) or by cable, telex or facsimile
transmission to the parties at their respective addresses set forth on the
signature page hereof (or at such other address as any party shall have
furnished to the others in accordance with the tetras of this Section 5.4). All
notices and other communications hereunder that are addressed as provided in or
pursuant to this Section 5.4 shall be deemed duly and validly given (a) if
delivered in person, upon delivery, (b) if delivered by registered or certified
mail (return receipt requested and with postage paid thereon), 72 hours after
being placed in a depository of the United States mails and (c) if delivered by
cable, telex or facsimile transmission, upon transmission thereof and receipt of
the appropriate answerback.
SECTION 5.5 Amendment; Waiver. The teens and provisions of this
Agreement may be modified or amended only by a written instrument executed by
each of the parties hereto, and compliance with any term or provision hereof may
be waived only by a written instrument executed by each party entitled to the
benefits of the same. No failure to exercise any right, power or privilege
hereunder shall operate as a waiver thereof, ear shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege granted hereunder.
SECTION 5.6 Entire Agreement. This Agreement (including the Exhibit
hereto) constitutes the entire agreement among the parties with respect to the
subject matter hereof and supersedes all prior written or oral agreements and
understandings and all contemporaneous oral agreements and understandings among
the parties or any of them with respect to the subject matter hereof.
SECTION 5.7 Parties in Interest; Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns (it being understood and agreed that nothing contained in
this Agreement is intended to confer any rights, benefits or remedies of any
kind or character an any other Person under or by reason of this Agreement). No
party tray delegate any of its obligations or assign or otherwise transfer any
its rights under this Agreement without the prior written consent of each of the
other parties. Any attempted or purported assignment, delegation or other
transfer by any party in violation of this Section 5.7 shall be null and void.
SECTION 5.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas, without regard to
any principles of conflicts of laws that would result in the application of the
laws of any other ,jurisdiction.
SECTION 5.9 Severability. In the event that any provision contained
herein shall be held to be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of any such provision in every other
respect and the validity, legality and enforceability of the remaining
provisions contained in this Agreement shall not be in any way impaired thereby.
SECTION 5.10 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed by the Principal Shareholders or Xxxxxxx in
accordance with the terms hereof. Accordingly, the parties agree that the
Purchaser shall be entitled to injunctive relief to prevent breaches of the
terms of this Agreement and to specific performance of the terms hereof, in
addition to any other remedy now or hereafter available at law or in equity, or
otherwise.
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SECTION 5.11 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
PURCHASER:
CENTEX FINANCIAL SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Executive Vice President
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Address for notices:
Centex Financial Services, Inc.
0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
PRINCIPAL SHAREHOLDERS:
CONSUMER PORTFOLIO SERVICES, INC.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
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Title: Senior Vice President
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Address for notices:
00000 Xxxxxx Xxxxxx Xxxx
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Xxxxxx, XX 00000
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Fax: 000- 000-0000 Attn: President
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GREENHAVEN ASSOCIATES, INC.
By: /s/ Xxxxx Xxxxxxxxxx III
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Name: Xxxxx Xxxxxxxxxx III
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Title: Chairman
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Address for notices:
0 Xxxxxxxxxxxxxx Xxxx
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Purchase, N.Y. 10577
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XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Xx.
Address for notices:
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EXHIBIT A
COMPANY SHARES
OWNED BY THE PRINCIPAL SHAREHOLDERS
Principal Shareholders Number of Company Shares
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Consumer Portfolio Services, Inc. 1,934,706
Greenhaven Associates, Inc. 405,300
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Total 2,352,531
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