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COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT is made as of the date set forth on
the signature page attached hereto (the "Signature Page") between FINET
HOLDINGS CORPORATION, a Delaware corporation (the "Company"), and XXXX
XXXXX XXXXXX GARCAO (the "Purchaser"):
R E C I T A L S:
WHEREAS, the Company has authorized the issuance and sale pursuant to
the terms and conditions hereof of 1,000,000 shares of its Common Stock
(the "Shares"); and
WHEREAS, the Purchaser desires to purchase and the Compnay desires to
sell the Shares on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of these premises and the mutual
covennants and agreements herein contained and othere valuable
consideration, the receipt and adequacy of which the parties hereto
acknowledge, the parties have agreed as follows:
1. Purchase and Sale of the Shares. The Company agrees to sell to the
Purchaser and upon the basis of the representations and warranties, and
subject to the terms and conditions, set forth in this Agreement, the
Purchser agrees to purchase from the Company 1,000,000 shares of Common
Stock in consideration for (a) cancellation of the Company's indebtedness
to the Purchaser in the amount of $270,000, and (b) a cash purchase price
of $230,000, which aggregate consideration constitutes a purchase price of
$0.50 per share.
2. Closing Date; Delivery. The closing of the purchase and sale of the
Shares shall be held at the offices of the Company, 000 Xxxxxxxxxx Xxxxxx,
Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx, 00000 on December 16, 1996 or at such
other time and place as the parties may agree upon. At the Closing,
subject to the terms of this Agreement, the Company will deliver to the
Purchaser certificates representing the Shares to be purchased by the
Purchaser from the Company, against payment at the Closing of the cash
purchase price in immediately available funds and delivery by the Purchaser
of written cancellation of the Company's indebtedness to the Purchaser.
3. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the Purchaser that:
(a) Organization and Standing; Articles and Bylaws. The Company is a
corporation duly organized and existing under, and by virtue of, the laws
of the state of Delaware and is in good standing under such laws. The
Company has the requisite corporate power to own and operate its properties
and assets, and to carry on it business as presently conducted and as
proposed to be conducted. The Company is qualified, licensed or
domesticated as a foreign corporation in all jurisdictions where the nature
of its activities or of its properties owned or leased makes such
qualification, licensing or domestication necessary at this time. The
Company has furnished you with copies of its Articles of Incorporation and
Bylaws. Said copies are true, correct and complete and contain all
amendments through the date of this Agreement.
(b) Corporate Power. The Company has now, or will have at the Closing
Date, all requisite legal and corporate power to enter into this Agreement,
to sell the Shares hereunder, and to carry out and perform its obligations
under the terms of this Agreement.
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(c) Subsidiaries. The Company has no subsidiaries other than (i) Finet
Corporation, which is a wholly-owned subsidiary of the Company; (ii) Finet
Correspondent, Inc., a wholly-woned subsidiary of the Company, (iii) FWC
Shell Company ("FWC"), a wholly-owned subsidiary of the Company; (iv) RPM
Affiliates, which is a wholly-owned subsidiary of FWC; (v) RPM Mortgage,
Inc., a wholly-owned subsidiary of FWC; and (viii) Fremont Mortgage, Inc.,
a wholly-owned subsidiary of FWC (sometimes hereinafter collectively
referred to as the "Subsidiaries"). The Company does not own, directly or
indirectly, shares of stock or other interests in any other corporation,
association, joint venture, or business organization except as may be
listed on a Schedule of Exceptions filed as an exhibit hereto.
(d) Capitalization. The authorized capital stock of the Company is
30,000,000 shares of Common Stock. There are issued and outstanding
8,475,242 shares of Common Stock. The issued and outstanding shares of
Common Stock have been duly authorized and validly issued, are fully paid
and nonassessable and were issued in compliance with all applicable state
and federal laws concerning the issuance of securities. There are no
outstanding rights, options, warrants, conversion rights, or agreements for
the purchase or acquisition from the Company of any shares of its capital
stock, except (i) that options for 438,876 shares of the Company's Common
Stock have been granted to directors, officers and employees of the Company
pursuant to the Company's 1989 Incentive Stock Option Plan and are
currently outstanding; (ii) a debenture convertible into a maximum of
2,000,000 shares of Common Stock is issued and outstanding to Cumberland
Partners; (iii) warrants for 131,167 shares have been granted to
underwriters in connection with the May 1993 Unit Offering, and are
currently outstanding; and (iv) warrants for 425,000 Common shares have
been granted to certain bridge lenders of the Company.
(d) Authorization.
(i) All corporate action on the part of the Company, its officers,
directors, and stockholders necessary for the sale and issuance of
the Shares pursuant hereto and the performance of the Company's
obligations hereunder, has been taken or will be taken prior to the
Closing. This Agreement is a legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with
its terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws of general application
affecting enforcement of creditors' rights, and except as limited
by application of legal principles affecting the availability of
equitable remedies.
(ii) The Shares, when issued in compliance with the provisions of
this Agreement, will be validly issued, fully paid and
nonassessable, and will be free of any liens or encumbrances;
provided, however, that such shares may be subject to restrictions
on transfer under state and/or federal securities laws as set forth
herein, and as may be required by future changes in such laws.
(iii) No shareholder of the Company has any right of first refusal
or any preemptive rights in connection with the issuance of the
Shares or of Common Stock by the Company.
(f) Financial Statements. The Company's audited balance sheet and
statement of income and expenses for the fiscal year ended 1994 and the
Company's unaudited balance sheeet and statement of income and expenses for
the 9-month period ended September 30, 1995 (hereinafter collectively
referred to as the Financial Statements) which have been supplied to the
Purchaser are true and correct, have been prepared in accordance with
generally accepted accounting principles consistently applied (except as
disclosed therein and except that the Financial Statements do not contain
the footnotes required by generally accepted accounting principles), and
fairly present the financial condition of the Company and the results of
the operations of the Company as of the date thereof.
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The Company has delivered to the Purchaser a copy of its Private
Placement Memorandum dated October 1, 1996.
(g) Material Contracts and Commitments. All the material contracts,
commitments, agreements, and instruments to which the Company is a party
are legal, valid, binding, and in full force and effect in all material
respects and enforceable by the Company in accordance with their terms
except as limited by bankruptcy, insolvency, reorganization, moratorium, or
similar laws of general application affecting enforcement of creditors'
rights, and except as limited by application of legal principles
(h) affecting the availability of equitable remedies. The Company is
not in material default under any of such contracts. A list of all such
material contracts, agreements and instruments is set forth in Exhibit A
hereto.
(i) Compliance with Other Instruments, None Burdensome, etc. Neither
the Company nor any Subsidiary is in violation of any term of its
respective Articles of Incorporation or Bylaws, or in any material respect
of any mortgage, indenture, contract, agreement, instrument, or, to the
best knowledge of the Company, any judgment, decree, order, statute, rule,
or regulation applicable to it. The execution, delivery, and performance
by the Company of this Agreement, and the issuance and sale of the Shares
pursuant hereto, will not result in any such violation or be in conflict
with or constitute a default under any such term, or cause the acceleration
of maturity of any loan or material obligation to which the Company or the
Subsidiaries are a party or by which any of them are bound or with respect
to which any of them is an obligor or guarantor, or result in the creation
or imposition of any material lien, claim, charge, restriction, equity or
encumbrance of any kind whatsoever upon, or, to the best knowledge of the
Company after due inquiry, give to any other person any interest or right
(including any right of termination or cancellation) in or with respect to
any of the material properties, assets, business or agreements of the
Company or the Subsidiaries. To the best knowledge of the Company after
due inquiry, no such term or condition materially adversely affects or in
the future (so far as can reasonably be foreseen by the Company at the date
of this Agreement) may materially adversely affect the business, property,
prospects, condition, affairs, or operations of the Company and the
Subsidiary.
(j) Litigation, etc. Other than as listed on Exhibit B hereto, there
are no actions, proceedings or investigations pending (or, to the best of
the Company's knowledge, any basis therefor or threat thereof), which,
either in any case or in the aggregate, might result in any adverse change
in the business, prospects, conditions, affairs, or operations of the
Company or in any of its properties or assets, or in any impairment of the
right or ability of the Company to carry on its business as proposed to be
conducted, or in any material liability on the part of the Company, or
which question the validity of this Agreement or any action taken or to be
taken in connection herewith.
(k) Governmental Consent, etc. No consent, approval, or authorization
of, or designation, declaration, or filing with, any governmental unit is
required on the part of the Company in connection with the valid execution
and delivery of this Agreement, or the offer, sale or issuance of the
Shares, or the consummation of any other transaction contemplated hereby
(except exemption notice filings under the Blue Sky securities laws of
those states in which offers or sales may be made in connection with this
Offering, which filings have been or will be timely made so as to comply
with such laws).
(l) Offering. The offer, sale and issuance of the Shares in conformity
with the terms of this Agreement will not violate the Securities Act.
(m) Use of Proceeds. The net proceeds from the sale of the Shares
shall be used to implement the Company's voluntary
reorganization/recapitalization plan as set forth in the Private Placement
Memorandum relating to the offer and sale of the Shares, dated October 1,
1996.
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(n) Insurance. Neither the Company nor any of its Subsidiaries maintain
in force any insurance policies as of the date of this Agreement.
(o) Intellectual Property, etc. Neither the Company nor any of its
Subsidiaries own the rights to any trademarks, service marks, trade names,
copyrights, patents or other intellectual property. Neither the Company
nor any Subsidiary has received any notice or claim of infringement of any
patents, inventions, rights, trademarks, trade names or copyrights of
others with respect to any processes, methods, formulae or procedures used
by any of said corporations in the present or planned conduct of their
respective businesses.
(p) Title to and Condition of Properties. The Company and its
Subsidiaries have good and marketable title to all their respective
tangible and intangible property and assets, including those reflected in
the Financial Statements (except suchproperty or assets as have since
September 30, 1995 been sold or otherwise disposed of in the ordinary
course of business), and such property and assets are subject to no
mortgage or security interests, conditional sales contract, charge, lien or
encumbrance (except for the lien of current taxes not yet due and payable
and such imperfections of title, easements and encumbrances, if any, as are
not substantial in character, amount or extent and do not materially
detract from the value of, or interfere with the present use of the
properties subject thereto or affected thereby, or otherwise materially
impair the business operations of the Company and any Subsidiary), and
subsequent to September 30, 1995 neither the Company nor any Subsidiary has
sold or disposed of any of its property and assets or obligated itself to
do so except in the ordinary course of business. Except for such minor
defects as are not substantial in character and which do not have a
materially adverse effect upon the validity thereof, all material real and
personal property leases to which the Company or the Subsidiaries are a
party are in good standing, valid and effective, and there is not under any
such lease any existing material default or event which with notice or
lapse of time or both would constitute a material default and in respect of
which the Company or the Subsidiaries have not taken reasonable steps to
prevent such a default from occurring.
(q) Taxes. The Company and the Subsidiaries represent that upon
completion of the offering of the Shares they will file all tax returns
that are required to have been filed by them prior to the date of this
Agreement with appropriate federal, state, county and local governmental
agencies or instrumentalities.
(r) Disclosure. This Agreement, the exhibits hereto, the Financial
Statements, and all certificates delivered to you pursuant to this
Agreement, when read together, do not contain any untrue statement of a
material fact and do not omit to state a material fact necessary in order
to make the statements contained therein or herein not misleading, it being
understood that the Private Placement Memorandum contains estimates and
projections which have been made in good faith by the Company and no
warranty of such projections is expressed or implied hereby. There is, to
the best of the Company's knowledge, no fact which materially adversely
affects the business, prospects, condition, affairs or operations of the
Company or any of its properties or assets which has not been set forth in
this Agreement, the exhibits hereto, the Financial Statements or the
Private Placement Memorandum.
(s) The Shares:
(i) are free and clear of any security interests, liens, claims, or
other encumbrances;
(ii) have been duly and validly authorized and issued and are, and
on the Closing Date will be, fully paid and non-assessable;
(iii) will not have been, individually and collectively, issued or
sold in violation of any pre-emptive or other similar rights of the
holders of any securities of the Company;
(iv) will not subject the holders thereof to personal liability by
reason of being such holders; and
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4. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to, and agrees with, the Company as follows:
(a) No consent, approval, authorization, or order of any court,
governmental agency or body, or arbitrator having jurisdiction over the
Purchaser is required for execution of this Agreement, including, without
limitation, the purchase of the Shares, or the performance of the
Purchaser's obligations hereunder.
(b) The Purchaser understands that no federal or state agency has
passed on or made any recommendation or endorsement of the Shares.
(c) The Company has given the Purchaser the opportunity to have
answered all of the Purchaser's questions concerning the Company and its
business and has made available to the Purchaser all information requested
by the Purchaser which is reasonably necessary to verify the accuracy of
other information furnished by the Company. The Purchaser has received and
evaluated all information about the Company and its business which the
Purchaser deems necessary to formulate an investment decision, and does not
desire any further information.
(d) The Purchaser understands that the Shares are being offered and
sold to it in reliance on specific exemptions or non-application from the
registration requirements of federal and state securities laws and that the
Company is relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgments, and understandings of the
Purchaser set forth herein in order to determine the applicability of such
exemptions or non-applications and the suitability of the Purchaser to
acquire the Shares.
(e) The Purchaser is aware that the Shares have not been registered
under the Securities Act by reason of their issuance in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act pursuant to Section 4(2) and Regulation D thereof, and that
they must be held by the Purchaser for an indeterminate period and the
Purchaser must therefore bear the economic risk of such investment
indefinitely, unless a subsequent disposition thereof is registered under
the Securities Act or is exempt from registration. The Purchaser is aware
of the provisions of Rule 144 promulgated under the Securities Act which
permits limited resale of shares purchased in a private placement subject
to the satisfaction certain conditions, including, among other things the
existence of a public market for the Shares, the availability of certain
current public information about the Company, the resale occurring not less
than two years after a party has purchased and paid for the security to be
sold, the sale being through a "broker's transaction" or in transactions
directly with a "market maker" (as provided by Rule 144(f)) and the number
of shares being sold during any three-month period not exceeding specified
limitations. The Purchaser is also aware that, while many of the
restrictions of Rule 144 do not apply to the resale of shares by a person
who owned those shares for at least three years prior to their resale and
who is not an "affiliate" (within the meaning of Rule 144(a)) of the issuer
and has not been an affiliate of the issuer for at least three months prior
to the date of resale of the restricted securities, the Company does not
warrant or represent that you are not an affiliate as of the date of this
Agreement or that you will not be an affiliate at any relevant times in the
future.
(f) Each instrument representing the Shares may be endorsed with the
following legends:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN
ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION
OF COUNSEL FOR THE HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO
THE COMPANY, STATING THAT SUCHSALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION
IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF
SUCH ACT.
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(ii) Any other legend required by California or other state
securities laws.
The Company need not register a transfer of legended Shares, and may
instruct its transfer agent not to register the transfer of the Shares,
unless one of the conditions specified in the foregoing legends is
satisfied.
(g) Any legend endorsed on an instrument pursuant to Section 4(f)
hereof and the stop transfer instructions with respect to such Shares shall
be removed, and the Company shall issue an instrument without such legend
to the holder of such Shares if such Shares are registered under the
Securities Act and a prospectus meeting the requirements of Section 10 of
the Securities Act is available or if such holder provides the Company with
an opinion of counsel for such holder of the Shares, reasonably
satisfactory to the Company, to the effect that a public sale, transfer or
assignment of such Shares may be made without registration.
(h) The Purchaser is either (i) acquiring the Shares for the
Purchaser's own account; or (ii) for the account of another for which the
Purchaser acts as a fiduciary, in which case the Purchaser will so advise
the Company. If acting as a fiduciary, the Purchaser makes the
representations, warranties, and covenants as set forth herein on its own
behalf and as agent for and on behalf of such other party. The Purchaser is
acquiring the Shares for investment and without any present intention to
engage in a distribution thereof.
(i) The Purchaser has the knowledge and experience in financial and
business matters to evaluate the merits and risks of the proposed
investment.
(j) The Purchaser is an "Accredited Investor" as that term is
defined under Rule 501 adopted pursuant to the Securities Act. "Accredited
Investors" are defined in Rule 501 to include among others: (1) Various
specified institutional investors (such as banks, savings and loan
associations, licensed brokers or dealers, insurance companies, investment
companies, small business investment companies, employee benefit plans
having assets in excess of $5,000,000, and self-directed plans having
investment decisions made solely by persons that are Accredited Investors);
(2) Any entity with total assets in excess of $5,000,000, not formed for
the specific purpose of acquiring the securities offered; (3) Any person
who had individual income in excess of $200,000 in each of the two most
recent years or joint income with that person's spouse in excess of
$300,000 in each of those years and has a reasonable expectation of
reaching the same income level this year; (4) Any person whose individual
net worth (or joint net worth with the person's spouse) at the time of
purchase exceeds $1,000,000; (5) Directors and executive officers of Finet;
(6) Trusts with total assets in excess of $5,000,000 not formed for the
specific purpose of acquiring the securities offered, whose purchase is
directed by a sophisticated person prescribed in Rule 506(b)(2)(ii); and
(7) Any entity in which all the equity owners are deemed accredited.
5. Negative Covenants of the Company. The Company further covenants and
agrees that without the prior written approval of the Purchaser, it will
not:
(a) Engage in any business other than the business engaged in or
proposed to be engaged in by the Company or any subsidiary on the date
hereof and any businesses or activities substantially similar or related
thereto.
(b) Issue and sell any options to purchase more than an aggregate of
1,000,000 shares of the Company's Common Stock to employees, officers and
directors of, and consultants and franchisees to the Company, pursuant to
any incentive program approved by the Board of Directors of the Company.
(c) Liquidate or dissolve, merge, consolidate or sell substantially all
of its assets.
(d) Declare or pay any dividends; or purchase, redeem or otherwise
acquire for value or make any other distribution with respect to any of the
Company's capital stock, other than the repurchase of shares of capital
stock from terminating or terminated employees at a price no greater
than fair market value.
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(e) Invest, directly or indirectly, in any business or enterprise other
than in connection with the operation of its business; provided however,
pending the use of the net proceeds of this offering in its businesses the
Company may invest such net proceeds in short term interest bearing
deposits and securities.
(f) By amendment of its articles of incorporation, throught the
acquisition of Monument Mortgage, Inc., and Preference America Mortgage
Network, through the voluntary reorganization or recapitalization, or
through any transfer of its assets, consolidation, merger, dissolution,
issue or sale of securities, or any other voluntary action, avoid or seek
to avoid the observance or performance of any of the terms to be observed
or performed hereunder by the Company.
6. Conditions Precedent to the Purchaser's Obligations. The obligations
of each of the Purchaser hereunder are subject to the performance by the
Company of its obligations hereunder and to the satisfaction of the
following additional conditions precedent on or before the Closing Date:
(a) The representations and warranties made by the Company in this
Agreement shall, unless waived by the Purchaser, be true and correct as of
the date hereof and at the Closing Date, with the same force and effect as
if they had been made on and as of the Closing Date.
(b) After the date hereof until the Closing Date there shall not have
occurred:
(i) any change, or any development involving a prospective change,
in either (A) the condition, financial or otherwise, or in the earnings,
business or operations, or in or affecting the properties of the Company or
(B) the financial or market conditions or circumstances in the United
States, in either case which, in the Purchaser's judgment, is material and
adverse and makes it impractical or inadvisable to proceed with the
offering, sale, or delivery of the Shares;
(ii) an imposition of a new legal or regulatory restriction not
in effect on the date hereof, or any change in the interpretation of
existing legal or regulatory restrictions, that materially and adversely
affects the offering, sale, or delivery of the Shares; or
(iii) a suspension, or material limitation of, trading (A)
generally on or by the New York Stock Exchange or NASDAQ, or (B) of any
securities of the Company on any exchange or in any over-the-counter
market.
7. Conditions Precedent to the Company's Obligations. The obligations
of the Company hereunder are subject to the performance by the Purchaser of
its obligations hereunder and to the satisfaction of the following
additional condition precedent:
The representations and warranties made by the Purchaser in this Agreement
shall, unless waived by the Company, be true and correct at the Closing
Date, with the same force and effect as if they had been made on, and as
of, the Closing Date.
8. Registration Rights
(a) Request for Registration. In case the Company shall receive from
the Purchaser a written request that the Company effect any registration,
qualification, or compliance with respect to all or a part of the Shares
the Company will: (i) as soon as practicable, use its diligent best
efforts to effect all such registrations, qualifications and compliances
(including, without limitations, the execution of an undertaking to file
post-effective amendments, appropriate qualifications under the applicable
blue sky or other state securities laws and appropriate compliance with
exemptive regulations issued under the Securities Act and any other
governmental requirements or regulations) as may be so requested and as
would permit or facilitate the sale and distribution of all or such portion
of the Purchaser's Shares as are specified in such request, together with
all or such portion of the Shares of any Holder or Holders joining in such
request as are specified in a written request given within thirty days
after receipt of such written notice from the Company; provided that the
Company shall not
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be obligated to take any action to effect such registration, qualification
or compliance pursuant to this clause (i): (A) After the Company has
effected two such registrations pursuant to this subparagraph (i) and such
registrations have been declared or ordered effective; or (B) If the amount
of securities being offered for sale is less than 25 percent of the Shares.
Subject to the foregoing clauses (A) through (B), the Company shall
file a registration statement covering the Shares so requested to be
registered as soon as practical, but in any event within ninety days, after
receipt of the request or requests of the Purchaser; provided, however,
that if the Company shall furnish to such Purchaser a certificate signed by
the President of the Company stating that in the good faith judgment of the
Board of Directors it would be seriously detrimental to the Company and it
stockholders for such registration statement to be filed at the date filing
would be required and it is therefore essential to defer the filing of such
registration statement, the Company shall have an additional period of not
more than ninety days within which to file such registration statement.
(b) In any event, the Company shall use its best efforts to cause such
registration statement to become effective within 150 days of the closing
date, and to keep such registration statement effective for up to three
years.
(c) Expenses of Registration. All expenses incurred in connection with
any registration, qualification or compliance pursuant to this Agreement,
including without limitation, all registration, filing, and qualification
fees, printing expenses, fees and disbursements of counsel for the Company,
and expenses of any special audits incidental to or required by such
registration, shall be borne by the Company.
(d) Indemnification.
(i) The Company will indemnify the Purchaser with respect to such
registration, qualification, or compliance effected pursuant to this
paragraph, and each underwriter, if any, and each person who controls any
underwriter of the Shares held by or issuable to the Purchaser, against all
claims, losses, damages, and liabilities (or actions in respect thereto)
arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus, offering
circular or other document (including any related registration statement,
notification or the like) incident to any such registration, qualification,
or compliance, or based on any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or any violation by the Company of
any rule or regulation promulgated under the Securities Act applicable to
the Company and relating to action or inaction required of the Company in
connection with any such registration, qualification, or compliance, and
will reimburse the Purchaser, each such underwriter and each person who
controls any such underwriter, for any legal and any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, provided that the Company will
not be liable in any such case to the extent that any such claim, loss,
damage or liability arises out of or is based on any untrue statement or
omission based upon written information furnished to the Company by an
instrument duly executed by such Purchaser or underwriter specifically for
use therein.
(ii) The Purchaser will, if Shares held by or issuable to such
Purchaser are included in the securities as to which such registration,
qualification, or compliance is being effected, indemnify the Company, each
of its directors and officers who sign such registration statement, each
underwriter, if any, of the Company's securities covered by such a
registration statement, and each person who controls the Company within the
meaning of the Securities Act, against all claims, losses, damages, and
liabilities (or actions in respect thereto) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained
in any such registration statement, prospectus, offering circular, or other
document, or any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Company, such directors,
officers, persons, or underwriters for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability, or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering
84
circular, or other document in reliance upon and in conformity with written
information furnished to the Company by an instrument duly executed by such
Purchaser specifically for use therein.
(iii) Each party entitled to indemnification under this
paragraph (d) (the Indemnified Party) shall give notice to the party
required to provide indemnification (the Indemnifying Party) promptly after
such Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party to assume
the defense of any such claim or any litigation resulting therefrom,
provided that counsel for the Indemnifying Party, who shall conduct the
defense of such claim or litigation, shall be approved by the Indemnified
Party (whose approval shall not be unreasonably withheld), and the
Indemnified Party may participate in such defense at such party's expense,
and provided further that the failure of any Indemnified Party to give
notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this paragraph. No Indemnifying Party, in the defense of
any such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release
from all liability in respect to such claim or litigation.
(e) Transfer of Registration Rights. The rights to cause the Company
to register the securities granted to the Purchaser by the Company under
Section 8 may be assigned by the Purchaser to a transferee or assignee of
any of the Purchaser's Shares, provided, that the Company is given written
notice by the Purchaser at the time of or within a reasonable time after
said transfer, stating the name and address of said transferee or assignee
and identifying the securities with respect to which such registration
rights are being assigned.
9. Fees and Expenses. The Purchaser and the Company each agrees to pay
its own expenses incident to the performance of its obligations hereunder,
except that the Company agrees to pay the fees, expenses and disbursements
of the Purchaser's counsel.
10. Survival of the Representations, Warranties, etc. The respective
agreements, representations, warranties, indemnities, and other statements
made by or on behalf of the Company and Purchaser, respectively, pursuant
to this Agreement, shall remain in full force and effect, regardless of any
investigation made by or on behalf of the other party to this Agreement or
any officer, director, or employee of, or person controlling or under
common control with, such party, and will survive delivery of any payment
of the Shares.
11. Notices. All communications hereunder shall be in writing, and, if
sent to the Purchaser shall be sufficient in all respects if delivered,
sent by registered mail, or by telecopy and confirmed to the Purchaser at:
Xxxx Xxxxx Xxxxxx Garcao
Lote CT-14
Xxxxxx Xx Xxxxxxx
0000 Xxxxxxx, Xxxxxxxx
with a copy sent to:
Xxxxx X. Xxxxx, Esq.
Xxxxxxxx & Xxxxxx
Xxx Xxxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
85
or, if sent to the Company, shall be delivered, sent by registered mail, or
by telecopy and confirmed to the Company at:
Finet Holdings Corporation
000 Xxxxxxxxxx Xxxxxx, #000
Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy sent to:
Xxxxxxx X. Xxxxx, Esq.
Xxxxxx, Xxxxxxxxx & Xxxxxx, LLP
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
12. Miscellaneous.
(a) This Agreement may be executed in one or more counterparts and it
is not necessary that signature of all parties appear on the same
counterpart, but such counterparts together shall constitute but one and
the same agreement.
(b) This Agreement shall inure to the benefit of and be binding upon
the parties hereto, their respective successors and, with respect to
Section 9 hereof, the officers, directors, and controlling persons thereof
and each person under common control therewith, and no other person shall
have any right or obligation hereunder.
(c) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of California.
(d) The headings of the sections of this document have been inserted
for
convenience of reference only and shall not be deemed to be a part of this
Agreement.
86
IN WITNESS HEREOF, the parties hereto have duly executed and delivered this
Agreement, all as of the day and year first above written.
COMPANY:
FINET HOLDINGS CORPORATION
By:
President
PURCHASER:
By:
Xxxx Xxxxx Xxxxxx Garcao
