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OPTION PURCHASE AGREEMENT
This AGREEMENT entered into this 22nd day of November, 1996 by and
between Xxx X. Xxxxxxxx, of Greenwich, Connecticut (the "Seller") and Franklin
Mutual Advisers, Inc., a Delaware corporation with its principal executive
offices in North Hills, New Jersey, as agent for its advisory clients set forth
on Schedule 1 (the "Buyer").
W I T N E S S E T H
WHEREAS, the Seller is the owner of options to purchase Four Million
One Hundred Forty Thousand (4,140,000) shares of the Voting Common Stock of
Cityscape Financial Corp., a Delaware corporation with its principal executive
offices in Elmsford, New York (the "Corporation"); and
WHEREAS, the Seller desires to sell and the Buyer desires to purchase
said options, upon the terms and conditions set forth in this Agreement,
NOW THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained herein, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
ARTICLE I
SALE AND PURCHASE OF OPTIONS
1.1 Transfer of Options. On the Closing Date and subject to the terms
and conditions of this Agreement, the Buyer, in reliance upon the
representations and warranties made by the Seller herein, shall acquire from the
Seller, and the Seller, in reliance upon the representations and warranties made
by the Buyer herein, shall transfer and convey to the Buyer, all his right title
and interest in and under those three certain Option Agreements between Seller
and Xxxxx Xxxxxxxxxxx, Xxxxxx Xxxxxxx, and Xxxxxx X. Patent, respectively,
attached hereto as Exhibits A, B and C ("Options") to purchase an aggregate, as
adjusted for stock splits, of Four Million One Hundred Forty Thousand
(4,140,000) shares of the Voting Common Stock of the Corporation (the
"Shares''). Seller shall satisfy his obligations under this paragraph by
delivering to the Buyer on the Closing Date executed Assignments of Rights and
Consent to Assignment ("Assignments") in the form attached hereto as Exhibits D,
E, and F. The Assignments will be held by Xxxxxx X. Xxxx, Esq. in escrow, to be
delivered to Buyer at Closing upon fulfillment by Buyer of all the conditions of
closing set forth in this Agreement.
1.2 Purchase Price. The purchase price for the Options is Eighty-Two
Million Eight Hundred Thousand Dollars ($82,800,000) (the "Purchase Price"). The
entire balance of the Purchase Price shall be paid by wire transfer by the Buyer
on the Closing Date of good funds in the amount of the Purchase Price to an
account to be designated by Seller in writing in advance of the Closing.
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ARTICLE 2
REPRESENTATION AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Buyer as follows:
2.1 Authority. The Seller has full power and authority to transfer and
assign the Options on the terms set forth above.
2.2 Good Title. The Seller has good and marketable title to the
Options, free and clear of any claims, liens and encumbrances. Upon exercise of
the Option by Buyer, Buyer will be delivered good and marketable title to the
Shares, free and clear of any claims, liens and encumbrances.
2.3 Compliance. Neither the execution and delivery of this Agreement
nor the compliance with the terms and provisions hereof by the Seller will
result in the material breach of any statute or regulation applicable to the
Seller, or any administrative or court order or decree, or any agreement or
other instrument to which the Seller is a party, or by which the Seller is or
may be bound, or constitute an event of default thereunder, or with the lapse of
time or the giving of notice or both will constitute an event of default
thereunder by the Seller.
2.4 Enforceability of Agreement. The terms and conditions of this
Agreement are valid and binding obligations of the Seller, enforceable against
the Seller in accordance with their respective terms, subject only to applicable
bankruptcy, moratorium and other laws generally affecting the rights and
remedies of creditors and other limitations of equitable principals.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Seller as follows:
3.1 Authority. The Buyer has full power and authority to purchase and
own the Options and to perform its obligations hereunder.
3.2 Compliance. Neither the execution of this Agreement nor the
compliance with the terms and provisions hereof by the Buyer will result in the
material breach of any statute or regulation applicable to the Buyer or any
administrative or court order or decree, or any agreement or other instrument to
which the Buyer is a party, or by which the Buyer is or may be bound, or
constitute an event of default thereunder, or with the lapse of time or the
giving of notice or both will constitute an event of default thereunder by the
Buyer. The notification requirements of 15 U.S.C. Section 18a are not triggered
by this Agreement or the transactions contemplated hereunder.
3.3 Enforceability of Agreement. The terms and conditions of this
Agreement are valid and binding obligations of the Buyer, enforceable against
the Buyer in accordance with their respective terms, subject only to applicable
bankruptcy, moratorium and other laws generally affecting the rights and
remedies of creditors and other limitations of equitable principals.
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3.4 Investment. Buyer is acquiring the Options for investment as agent
for Buyer's advisory clients set forth on Schedule 1 hereto, and not with the
view to, or for resale in connection with, any distribution thereof in violation
of the Securities Act of 1933, as amended (the "Securities Act"). Buyer
understands that, except in connection with the Registration Rights Agreement
dated November 22, 1996, the Options and the Shares have not been, and will not
be registered under this Securities Act. Buyer acknowledges that Seller has not
made and is not making, nor has Buyer relied upon, any oral or written
representations or warranties with respect to the Corporation, the Options of
the Shares except as set forth in this Agreement.
ARTICLE 4
CLOSING
4.1 Closing. The closing (the "Closing") of the purchase and sale of
the Options shall be held on January 7, 1997, or as soon thereafter as all
required governmental approvals shall have been obtained, unless the Buyer and
the Seller agree otherwise. The Closing shall be held on such date (the
"Closing Date") at the offices of the Corporation or at such other place as may
be mutually agreed upon by the parties.
4.2 Closing Documents to be Delivered by the Seller. At the Closing,
the Seller shall deliver to the Buyer executed Assignments in the form attached
as Exhibits D, E, and F.
ARTICLE 5
CONDITIONS PRECEDENT TO PERFORMANCE
5.1 Conditions Precedent to the Buyer's Performance. The obligations of
the Buyer to purchase the Options under this Agreement are subject to the
satisfaction, at or before the Closing, of all the conditions set forth in this
Section 5.1. The Buyer may waive in writing any or all of these conditions in
whole or in part; provided, however, that no such waiver of a condition shall
constitute a waiver by the Buyer of any of its other rights or remedies, at law
or in equity, if the Seller shall be in default of any of its representations,
warranties or covenants under this Agreement.
a. All representations, warranties and covenants of the Seller
set forth in this Agreement shall be true and correct as of the Closing Date as
if made on that Date.
b. The Seller shall have performed, satisfied, and complied
with all covenants, agreements, and conditions required by this Agreement to be
performed, satisfied, or complied with by the Seller on or before the Closing
Date.
c. The Seller shall deliver to the Buyer at the Closing all of
the documents required to be delivered pursuant to Section 4.2 of this
Agreement.
d. Certificates for the Shares, together with an assignment or
other instrument of conveyance satisfactory to Buyer to transfer said
certificates to Buyer upon exercise of the Option, will be available and
delivered to Buyer in the event Buyer exercises the Option at the Closing.
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e. All required governmental approvals shall have been
obtained, and no action, suit, or proceeding before any court or any
governmental body or authority, pertaining to the transactions contemplated by
this Agreement or to its consummation, shall have been instituted or threatened
on or before the Closing Date. All parties agree to cooperate in obtaining any
required governmental approvals.
5.2 Conditions Precedent to the Seller's Performance. The obligations
of the Seller to sell and transfer the Options under this Agreement are subject
to the satisfaction, at or before the Closing, of all the conditions set forth
in Section 5.2. The Seller may waive in writing any or all of these conditions
in while or in part; provided, however, that no such waiver of a condition shall
constitute a waiver by the Seller of any of its other rights or remedies, at law
or in equity, if the Buyer shall be in default of any of its representations,
warranties, or covenants under this Agreement.
a. All representations, warranties and covenants of the Buyer
set forth in this Agreement shall be true and correct as of the Closing Date as
if made on that Date.
b. The Buyer shall have performed, satisfied and complied with
all covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Buyer on or before the Closing
Date.
c. The Buyer shall deliver to the Seller at the Closing the
Purchase Price as required pursuant to Section 1.2 of the Agreement.
d. All required governmental approvals shall have been
obtained, and no action, suit, or proceeding before any court or any
governmental body or authority, pertaining to the transactions contemplated by
this Agreement or to its consummation, shall have been instituted or threatened
on or before the Closing Date. All parties agree to cooperate in obtaining any
required governmental approvals.
ARTICLE 6
INDEMNIFICATION
Each of the Seller and the Buyer (the "Indemnifying Party") covenants
and agrees to defend, indemnify and hold the other party hereto (the
"Indemnified Party") harmless from and against any loss, liability, damage,
claim, action, suit, demand, judgment or expense (including reasonable legal and
other fees and charges at all levels and in all proceedings) incurred or
sustained by the Indemnified Party arising out of, resulting from or
attributable to any misrepresentation or breach of any agreement,
representation, warranty or covenant given or made by the Indemnifying Party in
this Agreement. The Indemnified Party shall be entitled to participate, directly
or through its authorized representative, at its cost and expense, in the
conduct of any negotiations relating to the settlement of any claim giving rise
to the Indemnified Party's right to indemnification hereunder. The
indemnification obligations herein shall survive for a period of one (1) year
from the date hereof.
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ARTICLE 7
MISCELLANEOUS
7.1 Brokerage Fees. Each party hereto represents and warrants to the
other that no broker is entitled to any commission or similar fee in connection
with the making and carrying out of this Agreement.
7.2 Effectiveness. This Agreement supersedes any and all agreements, if
any, previously made between the parties relating to the subject matter hereof,
and there are no understandings or agreements other than those included herein.
7.3 Non-Waiver. No delay or failure on the part of either party in
exercising any right hereunder, and no partial or singular exercise of a right
hereunder, shall constitute a waiver of such right or of any other right
hereunder.
7.4 Headings. Headings in this Agreement are for convenience only and
are not to be used for interpreting or construing any provision hereof.
7.5 Governing Laws; Venue. This Agreement shall be governed by and
interpreted and enforced in accordance with the laws of New York without giving
effect to the rules of conflicts of laws contained therein.
7.6 Counterparts. This Agreement may be executed 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.
7.7 Binding Nature. The provisions of this Agreement shall be binding
upon and inure to the benefit of each of the parties hereto and their respective
heirs, successors and assigns, including without limitation the estates of the
Seller and the Buyer, respectively.
7.8 Expenses. Except as otherwise expressly provided herein, each party
shall pay all of its own expenses incidental to the negotiation and preparation
of the documentation relating to this Agreement and the execution and
performance hereof, irrespective of whether the transactions contemplated hereby
shall be consummated.
7.9 Amendment: Successors and Assigns. This Agreement shall not be
amended or modified unless such amendment or modification is in writing and is
signed by all of the parties hereto. Neither party may assign any of its rights,
obligations, or liabilities arising hereunder without the prior written consent
of the other, and any such assignment or attempted assignment shall be null and
void.
7.10 Third Party Beneficiaries. Except for their proper heirs,
successors and assigns, the parties hereto intend that no third party shall have
any rights or claims by reason of this Agreement or the transactions
contemplated hereby.
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7.11 Rules of Construction. The normal rules of construction which
require the terms of an agreement to be construed most strictly against the
drafter of such an agreement are hereby waived and relinquished by each party.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
SELLER:
/s/ Xxx X. Xxxxxxxx
__________________________________________
Xxx X. Xxxxxxxx
Buyer: Franklin Mutual Advisers, Inc., as
Agent for Advisory Clients on
Schedule 1
By:_______________________________________
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
SELLER:
__________________________________________
Xxx X. Xxxxxxxx
Buyer: Franklin Mutual Advisers, Inc., as
Agent for Advisory Clients on
Schedule 1
/s/ Xxxxx X. Xxxxxxxxx
By:_______________________________________
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SCHEDULE I
Advisory Client Number of Shares Being Purchased
Mutual Shares Fund: 1,311,000
Mutual Qualified Fund: 861,000
Mutual Beacon Fund 987,000
Mutual Discovery Fund 593,000
Mutual European Fund: 88,000
The Orion Fund Limited: 280,000
Mutual Shares Securities Fund: 12,000
Mutual Discovery Securities Fund: 8,000
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OPTION AGREEMENT
This OPTION AGREEMENT is entered into as of March 10, 1995 by and
between Xxxxx Xxxxxxxxxxx ("Optionor") and Xxx X. Xxxxxxxx ("Optionee").
WHEREAS, Optionor is the owner of 1,330,000 shares of the common stock,
par value $.01 per share, of Cityscape Financial Corp., a Delaware corporation
(the "Corporation"); and
WHEREAS, Optionee has provided consulting services to the Corporation
and to its wholly owned subsidiary Cityscape Corp. in the past and will continue
to do so in the future; and
WHEREAS, as a shareholder of the Corporation, Optionor derives indirect
benefits from the consulting services provided to the Corporation and Cityscape
Corp. by Optionee; and
WHEREAS, Optionor desires to grant to Optionee and Optionee desires to
acquire from Optionor, an option to purchase up to 345,000 shares of the common
stock of the Corporation, par value $.01 per share (the "Common Stock"), held by
Optionor on the terms and conditions of this Agreement;
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants hereinafter
set forth, and for other good and valuable consideration, the parties hereto
have agreed, and do hereby agree, as follows:
1. Grant of Option. Optionor hereby grants to Optionee the
right and option (the "Option") to purchase, on the terms and conditions herein
set forth, up to 345,000 shares of the Common Stock held by Optionor.
2. Term of Option. The term of the Option shall commence on
July 1, 1996, and all rights to purchase shares thereunder shall cease at 11:59
P.M., Eastern Standard Time, five years from the date hereof.
3. Purchase Price. The purchase price of the shares of Common
Stock covered by the Option (the "Purchase Price") shall be Five Dollars ($5.00)
per share.
4. Exercise of Option. Subject to the terms and conditions of
this Agreement, Optionee may exercise the Option during the term thereof by
giving written notice to Optionor at the address set forth under Optionor's
signature below. Such notice shall state the election to exercise the Option and
the number of shares of Common Stock as to which the Option is being exercised,
and shall be accompanied by full payment in cash or certified check of the full
Purchase price for the number of shares of Common Stock as to which the Option
is being exercised, as provided in Section 3 above. The Option may be exercised
in whole or in part. Upon receipt of the notice of election and payment of the
Purchase Price, Optionor shall cause certificates for the shares subject to the
Option to be issued in the name of Optionee. Until such time as the Option is
exercised, Optionor shall have the entire beneficial ownership in such shares,
including without limitation, all voting rights relating to the shares, and the
right to receive any dividends or other distributions relating thereto.
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5. Restricted Stock. The shares of Common Stock that are subject to the
Option are restricted, and the certificates evidencing such shares bear the
following legend:
The shares represented by this certificate have not been
registered under the Securities Act of 1933. These shares have
been acquired for investment and not for distribution or resale.
They may not be mortgaged, pledged, hypothecated, or otherwise
transferred without an effective registration statement for such
shares under the Securities Act of 1933 or an opinion of counsel
for the corporation that registration is not required under such
Act.
The Optionee acknowledges that any certificates evidencing shares
obtained by the Optionee upon the exercise of this Option shall bear the same or
a similar legend.
6. Adjustments. The number and class of shares subject to the Option,
and the Purchase Price per share (but not the total Purchase Price), shall all
be proportionately adjusted in the event of any change or increase or decrease
in the number of issued shares of Common Stock, without receipt of consideration
by the Corporation, that results from a split-up or consolidation of shares,
payment of a stock dividend, a recapitalization, a combination of shares or
other like capital adjustment, or upon a merger, consolidation or reorganization
of the Corporation with one or more corporations as a result of which the
Corporation is not the surviving corporation, so that, upon exercise of the
Option, Optinee shall receive the number and class of shares that he would have
received had he been the holder of the number of shares of Common Stock for
which the Option is being exercised on the date of such change or increase or
decrease in the number of shares of Common Stock or on the effective date of
such merger, consolidation or reorganization. No fractional shares shall be
issued under the Option.
7. Shares Free and Clear. All shares of Common Stock purchased by
Optionee pursuant to the exercise of the Option shall be delivered by Optionor
free and clear of all claims, liens and encumbrances of every nature (except the
provisions of this Agreement and any conditions concerning the shares imposed
under applicable securities laws), and Optionee shall acquire full and complete
title and right to all of such shares free and clear of all claims, liens and
encumbrances of every nature (except the provisions of this agreement and any
conditions concerning the shares imposed under applicable securities laws).
8. Representations and Warranties of Optionee. Optionee represents and
warrants to Optionor that the Option and any shares that may be acquired upon
exercise of the Option are being acquired by him for investment for his account
and not with a view to disposition in connection with a resale or other
disposition thereof and that he is an "accredited investor" within the
definition thereof set forth in Rule 501(a) of the Securities Act of 1933.
9. Representations and Warranties of Optionor. Optionor represents and
warrants to Optionee that the execution, delivery and performance of this
Agreement by the Optionor and the consummation by him of the transactions
contemplated hereby do not require the consent, waiver, approval, license or
authorization of or any filing with any person or public authority, except as
may be required by applicable securities laws and will not violate or result in
a breach of any
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agreement, contract, instrument, judgment, decree or order to which he is a
party or by which he is bound.
10. Specific Performance. The parties hereto acknowledge that money
damages are an inadequate remedy for breach of this Agreement because of the
difficulty of ascertaining the amount of damages that would be suffered by
Optionee in the event of breach of this Agreement by Optionor. Therefore,
Optionor agrees that Optionee may obtain specific performance of this Agreement
and injunctive relief against any breach hereof.
11. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered or mailed, by United States certified or registered mail, postage
prepaid, to the parties or their assignees at the addresses set forth under the
signatures below (or such other address as shall be given in writing by either
party to the other).
12. Binding Obligations. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective representatives,
successors and permitted assigns.
13. Applicable Law. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the laws of the State of New York (but not
including the choice of law rules thereof).
14. Entire Agreement. This instrument contains the entire agreement of
the parties with respect to the subject matter hereof. This Agreement may be
amended only by an agreement in writing signed by both of the parties hereto.
15. Effect of Headings. The descriptive headings contained herein are
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
16. Assignment. Neither party hereto may assign any of his rights or
obligations under this Agreement without the prior written consent of the other
party hereto.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year first hereinabove set forth.
/s/ Xxxxx Xxxxxxxxxxx
___________________________
Xxxxx Xxxxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxx, X.X. 00000
/s/ Xxx X. Xxxxxxxx
___________________________
Xxx X. Xxxxxxxx
00 Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
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OPTION AGREEMENT
This OPTION AGREEMENT is entered into as of March 10, 1995 by and
between Xxxxxx X. Patent ("Optionor") and Xxx X. Xxxxxxxx ("Optionee").
WHEREAS, Optionor is the owner of 1,380,000 shares of the common stock,
par value $.01 per share, of Cityscape Financial Corp., a Delaware corporation
(the "Corporation"); and
WHEREAS, Optionee has provided consulting services to the Corporation
and to its wholly owned subsidiary Cityscape Corp. in the past and will continue
to do so in the future; and
WHEREAS, as a shareholder of the Corporation, Optionor derives indirect
benefits from the consulting services provided to the Corporation and Cityscape
Corp. by Optionee; and
WHEREAS, Optionor desires to grant to Optionee and Optionee desires to
acquire from Optionor, an option to purchase up to 345,000 shares of the common
stock of the Corporation, par value $.01 per share (the "Common Stock"), held by
Optionor on the terms and conditions of this Agreement;
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants hereinafter
set forth, and for other good and valuable consideration, the parties hereto
have agreed, and do hereby agree, as follows:
1. Grant of Option. Optionor hereby grants to Optionee the right and
option (the "Option") to purchase, on the terms and conditions herein set forth,
up to 345,000 shares of the Common Stock held by Optionor.
2. Term of Option. The term of the Option shall commence on July 1,
1996, and all rights to purchase shares thereunder shall cease at 11:59 P.M.,
Eastern Standard Time, five years from the date hereof.
3. Purchase Price. The purchase price of the shares of Common Stock
covered by the Option (the "Purchase Price") shall be Five Dollars ($5.00) per
share.
4. Exercise of Option. Subject to the terms and conditions of this
Agreement, Optionee may exercise the Option during the term thereof by giving
written notice to Optionor at the address set forth under Optionor's signature
below. Such notice shall state the election to exercise the Option and the
number of shares of Common Stock as to which the Option is being exercised, and
shall be accompanied by full payment in cash or certified check of the full
Purchase price for the number of shares of Common Stock as to which the Option
is being exercised, as provided in Section 3 above. The Option may be exercised
in whole or in part. Upon receipt of the notice of election and payment of the
Purchase Price, Optionor shall cause certificates for the shares subject to the
Option to be issued in the name of Optionee. Until such time as the Option is
exercised, Optionor shall have the entire beneficial ownership in such shares,
including without limitation, all voting rights relating to the shares, and the
right to receive any dividends or other distributions relating thereto.
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5. Restricted Stock. The shares of Common Stock that are subject to the
Option are restricted, and the certificates evidencing such shares bear the
following legend:
The shares represented by this certificate have not been
registered under the Securities Act of 1933. These shares have
been acquired for investment and not for distribution or resale.
They may not be mortgaged, pledged, hypothecated, or otherwise
transferred without an effective registration statement for such
shares under the Securities Act of 1933 or an opinion of counsel
for the corporation that registration is not required under such
Act.
The Optionee acknowledges that any certificates evidencing shares
obtained by the Optionee upon the exercise of this Option shall bear the same or
a similar legend.
6. Adjustments. The number and class of shares subject to the Option,
and the Purchase Price per share (but not the total Purchase Price), shall all
be proportionately adjusted in the event of any change or increase or decrease
in the number of issued shares of Common Stock, without receipt of consideration
by the Corporation, that results from a split-up or consolidation of shares,
payment of a stock dividend, a recapitalization, a combination of shares or
other like capital adjustment, or upon a merger, consolidation or reorganization
of the Corporation with one or more corporations as a result of which the
Corporation is not the surviving corporation, so that, upon exercise of the
Option, Optionee shall receive the number and class of shares that he would have
received had he been the holder of the number of shares of Common Stock for
which the Option is being exercised on the date of such change or increase or
decrease in the number of shares of Common Stock or on the effective date of
such merger, consolidation or reorganization. No fractional shares shall be
issued under the Option.
7. Shares Free and Clear. All shares of Common Stock purchased by
Optionee pursuant to the exercise of the Option shall be delivered by Optionor
free and clear of all claims, liens and encumbrances of every nature (except the
provisions of this Agreement and any conditions concerning the shares imposed
under applicable securities laws), and Optionee shall acquire full and complete
title and right to all of such shares free and clear of all claims, liens and
encumbrances of every nature (except the provisions of this agreement and any
conditions concerning the shares imposed under applicable securities laws).
8. Representations and Warranties of Optionee. Optionee represents and
warrants to Optionor that the Option and any shares that may be acquired upon
exercise of the Option are being acquired by him for investment for his account
and not with a view to disposition in connection with a resale or other
disposition thereof and that he is an "accredited investor" within the
definition thereof set forth in Rule 501(a) of the Securities Act of 1933.
9. Representations and Warranties of Optionor. Optionor represents and
warrants to Optionee that the execution, delivery and performance of this
Agreement by the Optionor and the consummation by him of the transactions
contemplated hereby do not require the consent, waiver, approval, license or
authorization of or any filing with any person or public authority, except as
may be required by applicable securities laws and will not violate or result in
a breach of any
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agreement, contract, instrument, judgment, decree or order to which he is a
party or by which he is bound.
10. Specific Performance. The parties hereto acknowledge that money
damages are an inadequate remedy for breach of this Agreement because of the
difficulty of ascertaining the amount of damages that would be suffered by
Optionee in the event of breach of this Agreement by Optionor. Therefore,
Optionor agrees that Optionee may obtain specific performance of this Agreement
and injunctive relief against any breach hereof.
11. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered or mailed, by United States certified or registered mail, postage
prepaid, to the parties or their assignees at the addresses set forth under the
signatures below (or such other address as shall be given in writing by either
party to the other).
12. Binding Obligations. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective representatives,
successors and permitted assigns.
13. Applicable Law. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the laws of the State of New York (but not
including the choice of law rules thereof).
14. Entire Agreement. This instrument contains the entire agreement of
the parties with respect to the subject matter hereof. This Agreement may be
amended only by an agreement in writing signed by both of the parties hereto.
15. Effect of Headings. The descriptive headings contained herein are
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
16. Assignment. Neither party hereto may assign any of his rights or
obligations under this Agreement without the prior written consent of the other
party hereto.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year first hereinabove set forth.
/s/ Xxxxxx X. Patent
___________________________
Xxxxxx X. Patent
00 Xxxxx Xxxx
Xxxxxxxxx, X.X. 00000
/s/ Xxx X. xxxxxxxx
___________________________
Xxx X. Xxxxxxxx
00 Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
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OPTION AGREEMENT
This OPTION AGREEMENT is entered into as of March 10, 1995 by and
between Xxxxxx Xxxxxxx ("Optionor") and Xxx X. Xxxxxxxx ("Optionee").
WHEREAS, Optionor is the owner of 1,380,000 shares of the common stock,
par value $.01 per share, of Cityscape Financial Corp., a Delaware corporation
(the "Corporation"); and
WHEREAS, Optionee has provided consulting services to the Corporation
and to its wholly owned subsidiary Cityscape Corp. in the past and will continue
to do so in the future; and
WHEREAS, as a shareholder of the Corporation, Optionor derives indirect
benefits from the consulting services provided to the Corporation and Cityscape
Corp. by Optionee; and
WHEREAS, Optionor desires to grant to Optionee and Optionee desires to
acquire from Optionor, an option to purchase up to 345,000 shares of the common
stock of the Corporation, par value $.01 per share (the "Common Stock"), held by
Optionor on the terms and conditions of this Agreement;
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants hereinafter
set forth, and for other good and valuable consideration, the parties hereto
have agreed, and do hereby agree, as follows:
1.Grant of Option. Optionor hereby grants to Optionee the right and
option (the "Option") to purchase, on the terms and conditions herein set forth,
up to 345,000 shares of the Common Stock held by Optionor.
2. Term of Option. The term of the Option shall commence on July 1,
1996, and all rights to purchase shares thereunder shall cease at 11:59 P.M.,
Eastern Standard Time, five years from the date hereof.
3. Purchase Price. The purchase price of the shares of Common Stock
covered by the Option (the "Purchase Price") shall be Five Dollars ($5.00) per
share.
4. Exercise of Option. Subject to the terms and conditions of this
Agreement, Optionee may exercise the Option during the term thereof by giving
written notice to Optionor at the address set forth under Optionor's signature
below. Such notice shall state the election to exercise the Option and the
number of shares of Common Stock as to which the Option is being exercised, and
shall be accompanied by full payment in cash or certified check of the full
Purchase price for the number of shares of Common Stock as to which the Option
is being exercised, as provided in Section 3 above. The Option may be exercised
in whole or in part. Upon receipt of the notice of election and payment of the
Purchase Price, Optionor shall cause certificates for the shares subject to the
Option to be issued in the name of Optionee. Until such time as the Option is
exercised, Optionor shall have the entire beneficial ownership in such shares,
including without limitation, all voting rights relating to the shares, and the
right to receive any dividends or other distributions relating thereto.
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5. Restricted Stock. The shares of Common Stock that are subject to the
Option are restricted, and the certificates evidencing such shares bear the
following legend:
The shares represented by this certificate have not been
registered under the Securities Act of 1933. These shares have
been acquired for investment and not for distribution or resale.
They may not be mortgaged, pledged, hypothecated, or otherwise
transferred without an effective registration statement for such
shares under the Securities Act of 1933 or an opinion of counsel
for the corporation that registration is not required under such
Act.
The Optionee acknowledges that any certificates evidencing shares
obtained by the Optionee upon the exercise of this Option shall bear the same or
a similar legend.
6. Adjustments. The number and class of shares subject to the Option,
and the Purchase Price per share (but not the total Purchase Price), shall all
be proportionately adjusted in the event of any change or increase or decrease
in the number of issued shares of Common Stock, without receipt of consideration
by the Corporation, that results from a split-up or consolidation of shares,
payment of a stock dividend, a recapitalization, a combination of shares or
other like capital adjustment, or upon a merger, consolidation or reorganization
of the Corporation with one or more corporations as a result of which the
Corporation is not the surviving corporation, so that, upon exercise of the
Option, Optinee shall receive the number and class of shares that he would have
received had he been the holder of the number of shares of Common Stock for
which the Option is being exercised on the date of such change or increase or
decrease in the number of shares of Common Stock or on the effective date of
such merger, consolidation or reorganization. No fractional shares shall be
issued under the Option.
7. Shares Free and Clear. All shares of Common Stock purchased by
Optionee pursuant to the exercise of the Option shall be delivered by Optionor
free and clear of all claims, liens and encumbrances of every nature (except the
provisions of this Agreement and any conditions concerning the shares imposed
under applicable securities laws), and Optionee shall acquire full and complete
title and right to all of such shares free and clear of all claims, liens and
encumbrances of every nature (except the provisions of this agreement and any
conditions concerning the shares imposed under applicable securities laws).
8. Representations and Warranties of Optionee. Optionee represents and
warrants to Optionor that the Option and any shares that may be acquired upon
exercise of the Option are being acquired by him for investment for his account
and not with a view to disposition in connection with a resale or other
disposition thereof and that he is an "accredited investor" within the
definition thereof set forth in Rule 501(a) of the Securities Act of 1933.
9. Representations and Warranties of Optionor. Optionor represents and
warrants to Optionee that the execution, delivery and performance of this
Agreement by the Optionor and the consummation by him of the transactions
contemplated hereby do not require the consent, waiver, approval, license or
authorization of or any filing with any person or public authority, except as
may be required by applicable securities laws and will not violate or result in
a breach of any
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agreement, contract, instrument, judgment, decree or order to which he is a
party or by which he is bound.
10. Specific Performance. The parties hereto acknowledge that money
damages are an inadequate remedy for breach of this Agreement because of the
difficulty of ascertaining the amount of damages that would be suffered by
Optionee in the event of breach of this Agreement by Optionor. Therefore,
Optionor agrees that Optionee may obtain specific performance of this Agreement
and injunctive relief against any breach hereof.
11. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered or mailed, by United States certified or registered mail, postage
prepaid, to the parties or their assignees at the addresses set forth under the
signatures below (or such other address as shall be given in writing by either
party to the other).
12. Binding Obligations. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective representatives,
successors and permitted assigns.
13. Applicable Law. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the laws of the State of New York (but not
including the choice of law rules thereof).
14. Entire Agreement. This instrument contains the entire agreement of
the parties with respect to the subject matter hereof. This Agreement may be
amended only by an agreement in writing signed by both of the parties hereto.
15. Effect of Headings. The descriptive headings contained herein are
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
16. Assignment. Neither party hereto may assign any of his rights or
obligations under this Agreement without the prior written consent of the other
party hereto.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year first hereinabove set forth.
/s/ Xxxxxx Xxxxxxx
___________________________
Xxxxxx Xxxxxxx
00 Xxxxxxx Xxxxx
Xxx Xxxx, X.X. 00000
/s/ Xxx X. Xxxxxxxx
___________________________
Xxx X. Xxxxxxxx
00 Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
20
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ASSIGNMENT OF RIGHTS AND CONSENT TO ASSIGNMENT
THIS ASSIGNMENT OF RIGHTS AND CONSENT TO ASSIGNMENT ("Assignment") is
entered into as of the 7th day of January, 1997, by and between Xxx X. Xxxxxxxx
("Assignor"), Franklin Mutual Advisers, Inc., as agent, for its advisory clients
set forth on Schedule 1 ("Assignee"), and Xxxxx Xxxxxxxxxxx ("Optionor").
WHEREAS, Assignor and Optionor have entered into an option agreement
dated as of March 10, 1995 ("Option Agreement"), pursuant to which Assignor has
the option ("Option"), to purchase from Optionor 1,380,000 shares ("Shares") of
the Voting Common Stock of Cityscape Financial Corp. (the "Corporation"), a
Delaware corporation with its principal executive offices in Elmsford, New York;
WHEREAS, Assignor desires to transfer and assign to Assignee Assignor's
right, title and interest in and to the Option, and Assignee desires to acquire
Assignor's right, title and interest in and to said Option; and
WHEREAS, Optionor consents to the transfer and assignment of Assignor's
right, title and interest in and to the Option;
NOW, THEREFORE, the parties hereby agree as follows:
1. Assignment. Assignor hereby, grants, assigns, transfers and conveys
to Assignee all of Assignor's right, title, and interest in and to the Option
under the Option Agreement.
2. Acceptance by Assignee. Assignee hereby accepts the foregoing
assignment of the Option and adopts and agrees to be bound by the provisions of
the Option Agreement, as modified by the terms hereof.
3. Consent by Optionor. Optionor consents to the assignment and
transfer to Assignee by Assignor of his rights under the Option Agreement on the
terms set forth herein.
4. Substitution of Assignee as Optionor. The parties agree that
Assignee is substituted as the optionee under the Option Agreement with all the
rights, title, interest and obligations of the optionee under the terms of the
Option Agreement, as modified by the terms hereof.
5. Modification of Option Agreement. The parties agree that the Option
Agreement is modified as follows:
a) Assignee shall have the right at any time on or after January
7, 1997, until the expiration date of the Option, to exercise
the Option pursuant to paragraph 4 of the Option Agreement.
Optionor represents that as of the date Assignee gives notice
of election to exercise the Option, Optionor owns the Shares
free and clear of all other claims, liens and encumbrances of
any nature, has full power and authority to transfer title to
the Shares pursuant to Assignee's exercise of the Option, and
that, upon exercise of the Option, will deliver good and
marketable title to the Shares free and clear of all claims,
liens and encumbrances. On
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January 7, 1997, or on such date thereafter as Assignee gives
notice to Optionor of election to exercise the Option,
Optionor will deliver to Assignee certificates for the Shares
along with an assignment or other instrument of conveyance
satisfactory to Assignee transferring said certificates to
Assignee.
b) Assignor shall be solely responsible for payment to Optionor
of the purchase price for the Shares due upon exercise of the
Option ("Exercise Price"). Without regard to whether Optionor
has received payment for the Exercise Price, Optionor shall be
obligated to deliver certificates for the Shares as required
by paragraph 5(a). Optionor shall have no recourse against
Assignee for payment of all or any part of the Exercise Price
in the event of a default in payment of the Exercise Price by
Assignor, and will look solely to Assignor for payment
thereof.
c) Notwithstanding any provisions of the Option Agreement to the
contrary, Assignee may transfer Shares acquired upon exercise
of the Option to affiliates of Assignee or otherwise so long
as Assignee provides an opinion of counsel, acceptable to the
Corporation, that any such transfer complies with the
Securities Act of 1933 and all other applicable laws governing
registration of the Shares.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
/s/ Xxx X. Xxxxxxxx
_______________________________________________________
Xxx X. Xxxxxxxx, Assignor
/s/ Xxxxx Xxxxxxxxxxx
_______________________________________________________
Xxxxx Xxxxxxxxxxx, Optionor
_______________________________________________________
Franklin Mutual Advisers, Inc., as agent on behalf of
its Advisory Clients on Schedule 1, Assignee
22
23
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
_______________________________________________________
Xxx X. Xxxxxxxx, Assignor
_______________________________________________________
Xxxxx Xxxxxxxxxxx, Optionor
/s/ Xxxxx X. Xxxxxxxxx for FMAI
_______________________________________________________
Franklin Mutual Advisers, Inc., as agent on behalf of
its Advisory Clients on Schedule 1, Assignee
23
24
ASSIGNMENT OF RIGHTS AND CONSENT TO ASSIGNMENT
THIS ASSIGNMENT OF RIGHTS AND CONSENT TO ASSIGNMENT ("Assignment") is
entered into as of the 7th day of January, 1997, by and between Xxx X. Xxxxxxxx
("Assignor"), Franklin Mutual Advisers, Inc., as agent, for its advisory clients
set forth on Schedule 1 ("Assignee"), and Xxxxx Xxxxxxxxxxx ("Optionor").
WHEREAS, Assignor and Optionor have entered into an option agreement
dated as of March 10, 1995 ("Option Agreement"), pursuant to which Assignor has
the option ("Option"), to purchase from Optionor 1,380,000 shares ("Shares") of
the Voting Common Stock of Cityscape Financial Corp. (the "Corporation"), a
Delaware corporation with its principal executive offices in Elmsford, New York;
WHEREAS, Assignor desires to transfer and assign to Assignee Assignor's
right, title and interest in and to the Option, and Assignee desires to acquire
Assignor's right, title and interest in and to said Option; and
WHEREAS, Optionor consents to the transfer and assignment of Assignor's
right, title and interest in and to the Option;
NOW, THEREFORE, the parties hereby agree as follows:
1. Assignment. Assignor hereby, grants, assigns, transfers and conveys
to Assignee all of Assignor's right, title, and interest in and to the Option
under the Option Agreement.
2. Acceptance by Assignee. Assignee hereby accepts the foregoing
assignment of the Option and adopts and agrees to be bound by the provisions of
the Option Agreement, as modified by the terms hereof.
3. Consent by Optionor. Optionor consents to the assignment and
transfer to Assignee by Assignor of his rights under the Option Agreement on the
terms set forth herein.
4. Substitution of Assignee as Optionor. The parties agree that
Assignee is substituted as the optionee under the Option Agreement with all the
rights, title, interest and obligations of the optionee under the terms of the
Option Agreement, as modified by the terms hereof.
5. Modification of Option Agreement. The parties agree that the Option
Agreement is modified as follows:
a) Assignee shall have the right at any time on or after January
7, 1997, until the expiration date of the Option, to exercise
the Option pursuant to paragraph 4 of the Option Agreement.
Optionor represents that as of the date Assignee gives notice
of election to exercise the Option, Optionor owns the Shares
free and clear of all other claims, liens and encumbrances of
any nature, has full power and authority to transfer title to
the Shares pursuant to Assignee's exercise of the Option, and
that, upon exercise of the Option, will deliver good and
marketable title to the Shares free and clear of all claims,
liens and encumbrances. On
24
25
January 7, 1997, or on such date thereafter as Assignee gives
notice to Optionor of election to exercise the Option,
Optionor will deliver to Assignee certificates for the Shares
along with an assignment or other instrument of conveyance
satisfactory to Assignee transferring said certificates to
Assignee.
b) Assignor shall be solely responsible for payment to Optionor
of the purchase price for the Shares due upon exercise of the
Option ("Exercise Price"). Without regard to whether Optionor
has received payment for the Exercise Price, Optionor shall be
obligated to deliver certificates for the Shares as required
by paragraph 5(a). Optionor shall have no recourse against
Assignee for payment of all or any part of the Exercise Price
in the event of a default in payment of the Exercise Price by
Assignor, and will look solely to Assignor for payment
thereof.
c) Notwithstanding any provisions of the Option Agreement to the
contrary, Assignee may transfer Shares acquired upon exercise
of the Option to affiliates of Assignee or otherwise so long
as Assignee provides an opinion of counsel, acceptable to the
Corporation, that any such transfer complies with the
Securities Act of 1933 and all other applicable laws governing
registration of the Shares.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
/s/ Xxx X. Xxxxxxxx
_______________________________________________________
Xxx X. Xxxxxxxx, Assignor
/s/ Xxxxxx X. Patent
_______________________________________________________
Xxxxxx X. Patent, Optionor
_______________________________________________________
Franklin Mutual Advisers, Inc., as agent on behalf of
its Advisory Clients on Schedule 1, Assignee
25
26
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
_______________________________________________________
Xxx X. Xxxxxxxx, Assignor
_______________________________________________________
Xxxxxx X. Patent, Optionor
/s/ Xxxxx X. Xxxxxxxxx for FMAI
_______________________________________________________
Franklin Mutual Advisers, Inc., as agent on behalf of
its Advisory Clients on Schedule 1, Assignee
26
27
ASSIGNMENT OF RIGHTS AND CONSENT TO ASSIGNMENT
THIS ASSIGNMENT OF RIGHTS AND CONSENT TO ASSIGNMENT ("Assignment") is
entered into as of the 7th day of January, 1997, by and between Xxx X. Xxxxxxxx
("Assignor"), Franklin Mutual Advisers, Inc., as agent, for its advisory clients
set forth on Schedule 1 ("Assignee"), and Xxxxx Xxxxxxxxxxx ("Optionor").
WHEREAS, Assignor and Optionor have entered into an option agreement
dated as of March 10, 1995 ("Option Agreement"), pursuant to which Assignor has
the option ("Option"), to purchase from Optionor 1,380,000 shares ("Shares") of
the Voting Common Stock of Cityscape Financial Corp. (the "Corporation"), a
Delaware corporation with its principal executive offices in Elmsford, New York;
WHEREAS, Assignor desires to transfer and assign to Assignee Assignor's
right, title and interest in and to the Option, and Assignee desires to acquire
Assignor's right, title and interest in and to said Option; and
WHEREAS, Optionor consents to the transfer and assignment of Assignor's
right, title and interest in and to the Option;
NOW, THEREFORE, the parties hereby agree as follows:
1. Assignment. Assignor hereby, grants, assigns, transfers and conveys
to Assignee all of Assignor's right, title, and interest in and to the Option
under the Option Agreement.
2. Acceptance by Assignee. Assignee hereby accepts the foregoing
assignment of the Option and adopts and agrees to be bound by the provisions of
the Option Agreement, as modified by the terms hereof.
3. Consent by Optionor. Optionor consents to the assignment and
transfer to Assignee by Assignor of his rights under the Option Agreement on the
terms set forth herein.
4. Substitution of Assignee as Optionor. The parties agree that
Assignee is substituted as the optionee under the Option Agreement with all the
rights, title, interest and obligations of the optionee under the terms of the
Option Agreement, as modified by the terms hereof.
5. Modification of Option Agreement. The parties agree that the Option
Agreement is modified as follows:
a) Assignee shall have the right at any time on or after January
7, 1997, until the expiration date of the Option, to exercise
the Option pursuant to paragraph 4 of the Option Agreement.
Optionor represents that as of the date Assignee gives notice
of election to exercise the Option, Optionor owns the Shares
free and clear of all other claims, liens and encumbrances of
any nature, has full power and authority to transfer title to
the Shares pursuant to Assignee's exercise of the Option, and
that, upon exercise of the Option, will deliver good and
marketable title to the Shares free and clear of all claims,
liens and encumbrances. On
27
28
January 7, 1997, or on such date thereafter as Assignee gives
notice to Optionor of election to exercise the Option,
Optionor will deliver to Assignee certificates for the Shares
along with an assignment or other instrument of conveyance
satisfactory to Assignee transferring said certificates to
Assignee.
b) Assignor shall be solely responsible for payment to Optionor
of the purchase price for the Shares due upon exercise of the
Option ("Exercise Price"). Without regard to whether Optionor
has received payment for the Exercise Price, Optionor shall be
obligated to deliver certificates for the Shares as required
by paragraph 5(a). Optionor shall have no recourse against
Assignee for payment of all or any part of the Exercise Price
in the event of a default in payment of the Exercise Price by
Assignor, and will look solely to Assignor for payment
thereof.
c) Notwithstanding any provisions of the Option Agreement to the
contrary, Assignee may transfer Shares acquired upon exercise
of the Option to affiliates of Assignee or otherwise so long
as Assignee provides an opinion of counsel, acceptable to the
Corporation, that any such transfer complies with the
Securities Act of 1933 and all other applicable laws governing
registration of the Shares.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
/s/ Xxx X. Xxxxxxxx
_______________________________________________________
Xxx X. Xxxxxxxx, Assignor
/s/ Xxxxxx Xxxxxxx
_______________________________________________________
Xxxxxx Xxxxxxx, Optionor
_______________________________________________________
Franklin Mutual Advisers, Inc., as agent on behalf of
its Advisory Clients on Schedule 1, Assignee
28
29
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
_______________________________________________________
Xxx X. Xxxxxxxx, Assignor
_______________________________________________________
Xxxxxx Xxxxxxx, Optionor
/s/ Xxxxx X. Xxxxxxxxx for FMAI
_______________________________________________________
Franklin Mutual Advisers, Inc., as agent on behalf of
its Advisory Clients on Schedule 1, Assignee
29
