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EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement dated as of February 9, 1999
(this "Agreement"), among Prairie Boy's Investments, Inc., a Florida corporation
(the "Buyer"), III Global Ltd., a Cayman Islands corporation ("III Global"), and
III Fund Ltd., a Cayman Islands corporation ("III Fund") (III Global and III
Fund being sometimes collectively referred to herein as the "Sellers"),
WHEREAS, III Fund is the record and beneficial owner of
7,286,926 shares of Common Stock, par value $.01 per share (the "Common Stock"),
of The Aegis Consumer Funding Group, Inc., a Delaware corporation (the
"Company");
WHEREAS, III Fund is the record and beneficial owner of 12
shares of Series C Preferred Stock, par value $.10 per share, of the Company
(the "Preferred Stock");
WHEREAS, III Global is the record and beneficial owner of
5,849,061 shares of the Common Stock and nine shares of the Preferred Stock;
WHEREAS, the Buyer desires to purchase all of such Common
Stock and an aggregate of 12 shares of the Preferred Stock (sometimes
collectively referred to herein as the "Securities")
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from the Sellers and III Fund and III Global, respectively, desire to sell to
the Buyer such Common Stock and Preferred Stock, on the terms and conditions
hereinafter set forth in this Agreement;
WHEREAS, as more fully hereinafter set forth, it is the
intention of the parties that, as a result of the transactions provided for
herein, Buyer shall become the beneficial owner of or have the right to acquire
(upon the conversion of the Preferred Stock) not less than an aggregate of 50.1%
of the outstanding Common Stock of the Company and that the sale and assignment
of Common Stock and Preferred Stock by the Sellers to the Buyer shall be without
any express or implied representation or warranty by either of the Sellers (with
regard to Aegis, its financial condition, financial statements, business,
assets, liabilities, prospects or any other matter) except as expressly
hereinafter set forth.
NOW THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt of which is acknowledged, it is
agreed as follows:
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ARTICLE I
SALE AND PURCHASE OF THE SECURITIES
Section 1.1 Sale and Purchase of the Securities. On the date
hereof:
(a) III Fund shall deliver to the Buyer (i) a certificate or
certificates representing an aggregate of 7,286,926 shares of Common Stock
accompanied by a duly executed stock power with signatures guaranteed
transferring and assigning such Common Stock to Buyer subject only to the lien
created by the Pledge Agreement (as such term is defined herein) and (ii) a
certificate representing an aggregate of seven shares of Preferred Stock
accompanied by a duly executed stock power with signatures guaranteed
transferring such Preferred Stock to the Buyer subject only to the lien created
by the Pledge Agreement.
(b) III Global shall deliver to the Buyer (i) a certificate or
certificates representing an aggregate of 5,849,061 shares of Common Stock
accompanied by a duly executed stock power with signatures guaranteed
transferring and assigning such Common Stock to Buyer subject only to the lien
created by the Pledge Agreement and (ii) a certificate representing an aggregate
of five shares of Preferred Stock accompanied by a duly executed stock power
with signatures guaranteed transferring such Preferred Stock to the Buyer
subject only to the lien created by the Pledge Agreement.
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(c) In payment of the purchase price for the Common Stock and
Preferred Stock, the Buyer shall deliver (i) to III Fund a duly executed
promissory note in the form attached hereto as Exhibit I in the principal amount
of $1,892,753.40 (a "Note"); (ii) to III Global a duly executed Note in the
principal amount of $1,496,376.60; and (iii) to III Fund and III Global a duly
executed Pledge Agreement in the form attached hereto as Exhibit II creating a
security interest in the Securities in favor of the Sellers to secure the
payment of the principal and interest on the Notes when due and payable in
accordance therewith and (iv) to the Sellers, certificates representing the
Securities accompanied by the stock power referred to in Section 1(a) of the
Pledge Agreement, to be held by Sellers pursuant to the terms of the Pledge
Agreement to secure the payment of principal and interest due and payable on the
Notes.
(d) The Sellers shall deliver to the Buyer and the Company a
duly executed copy of the form of Confirmation Agreement attached hereto as
Exhibit III pertaining to certain indebtedness owed by the Company to the
Sellers and their Affiliates and the liens securing such indebtedness.
Section 1.2 General. The parties acknowledge that:
(a) the Preferred Stock is convertible into Common Stock of
the Company; on the date hereof the 12 shares of Preferred Stock being sold,
transferred and assigned by the
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Sellers to the Buyer on the date hereof are convertible into an aggregate of
3,809,663 shares of Common Stock;
(b) it is intended by the parties that the aggregate number of
shares of Common Stock being sold, assigned and transferred to the Buyer on the
date hereof (the "Existing Shares") plus the number of shares of Common Stock
into which the Preferred Stock being sold, assigned and transferred to the Buyer
on the date hereof is convertible (the "Conversion Shares"), will equal that
number of shares of Common Stock of the Company equal to 50.1% (the "Required
Percentage") of the outstanding shares of Common Stock of the Company, after
giving effect to such conversion (the "Outstanding Common Stock") on the date
hereof;
(c) it is acknowledged that, prior to any conversion of the
Preferred Stock, the Buyer will be required to make the filings required by the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 0000 (xxx "XXX Xxx") and the
regulations thereunder, and delay conversion until the expiration of the waiting
period or periods therein provided. Provided that the Buyer shall have made, or
caused to be made, such HSR Act filing within 30 days of the date of this
Agreement and such waiting period shall have expired not later than 60 days
after the date of this Agreement (the "Expiration Date"), if on the Expiration
Date the sum of the Existing Shares plus the Conversion Shares divided by the
Outstanding Common Stock on the Expiration Date is less than the Required
Percentage, (i) the Sellers shall sell, transfer and
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assign to the Buyer that number of additional shares of Preferred Stock so that
upon conversion thereof the Buyers will have or be entitled to receive the
Required Percentage of the Outstanding Common Stock on the Expiration Date and
(ii) the Buyer shall execute and deliver to the Sellers such documents as may be
reasonably necessary to amend the Notes to increase the principal amount thereof
by an amount equal to $0.20 times the number of additional shares of Common
Stock into which such additional Preferred Stock shall then be convertible.
It is understood that on the date hereof III Fund owns of
record five shares of Preferred Stock and III Global owns of record four shares
of Preferred Stock which are not being sold, transferred and assigned to the
Buyer pursuant to Section 1.1. Nothing in this Section 1.2 shall obligate III
Fund or III Global to sell, assign and transfer to Buyer more than five and four
additional shares of Preferred Stock, respectively.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Section 2.1 Representations and Warranties of III Global. As
an inducement to the Buyer to enter into this Agreement and to consummate the
transactions contemplated hereby, III Global represents and warrants to the
Buyer as follows:
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(a) Organization and Authority of III Global. III Global is a
corporation duly organized, validly existing and in good standing under the laws
of the Cayman Islands. III Global has full corporate power and authority to own
or lease and to operate and use its properties and to carry on its business as
now conducted.
III Global has full corporate power and authority to execute,
deliver and perform this Agreement and each of the Seller Ancillary Agreements.
This Agreement and each of the Seller Ancillary Agreements have been duly
authorized, executed and delivered by III Global and is the legal, valid and
binding obligation of III Global enforceable in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
moratorium or other laws affecting the rights of creditors generally and by
general principles of equity.
Neither the execution and delivery by III Global of this
Agreement or the Seller Ancillary Agreements or the consummation by III Global
of any of the transactions contemplated hereby or thereby nor compliance with or
fulfillment of the terms, conditions and provisions hereof or thereof will:
(A) conflict with, result in a breach of the terms, conditions
or provisions of, or constitute a default, an event of default or an
event creating rights of
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acceleration, termination or cancellation or a loss of rights under, or
result in the creation or imposition of any Encumbrance upon any of the
assets or properties of III Global under (1) its memorandum or articles
of association or by-laws, (2) any note, instrument, agreement,
mortgage, lease, license, franchise, permit or other authorization,
right, restriction or obligation to which is a party or any of the
assets or properties of III Global is subject or by which III Global is
bound, (3) any Court Order to which III Global is a party or any of the
assets or properties of III Global is subject or by which III Global is
bound, or (4) any Requirements of Laws affecting III Global or its
assets or properties; provided that no representation or warranty is
made in this clause (A) with respect to any matter concerning III
Global that individually could not reasonably be expected to have a
Material Adverse Effect with respect to III Global; or
(B) require the approval, consent, authorization or act of, or
the making by III Global of any declaration, filing or registration
with, any Person.
(b) III Global is the record and beneficial owner of 5,849,061
shares of Common Stock and nine shares of Preferred Stock. All of such Common
Stock and Preferred Stock is validly issued, fully paid and nonassessable and
was not issued in violation of any preemptive or similar rights. All of such
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shares are owned by III Global free from all Encumbrances of any kind except for
Permitted Encumbrances.
(c) No Finder. Neither III Global nor any Person acting on its
behalf has paid or become obligated to pay any fee or commission to any broker,
finder or intermediary for or on account of the transactions contemplated by
this Agreement.
(d) Litigation. There is no action, suit or proceeding
pending, or, to the knowledge of III Global, threatened which questions the
legality or propriety of the transactions contemplated by this Agreement.
(e) Distribution. Since June 30, 1998, no dividends or other
cash distributions have been paid or made with respect to the equity securities
of the Company and the Company has not paid any amounts to its officers or
employees other than regular salaries and employee benefits payable in the
ordinary course of the Company's business.
Section 2.2 Representations and Warranties of III Fund. As an
inducement to the Buyer to enter into this Agreement and to consummate the
transactions contemplated hereby, III Fund represents and warrants to the Buyer
as follows:
(a) Organization and Authority of III Fund. III Fund is a
corporation duly organized, validly existing and in good
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standing under the laws of the Cayman Islands. III Fund has full corporate power
and authority to own or lease and to operate and use its properties and to carry
on its business as now conducted.
III Fund has full corporate power and authority to execute,
deliver and perform this Agreement and each of the Seller Ancillary Agreements.
This Agreement and each of the Seller Ancillary Agreements have been duly
authorized, executed and delivered by III Fund and is the legal, valid and
binding obligation of III Fund enforceable in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
moratorium or other laws affecting the rights of creditors generally and by
general principles of equity.
Neither the execution and delivery by III Fund of this
Agreement or the Seller Ancillary Agreements or the consummation by III Fund of
any of the transactions contemplated hereby or thereby nor compliance with or
fulfillment of the terms, conditions and provisions hereof or thereof will:
(A) conflict with, result in a breach of the terms, conditions
or provisions of, or constitute a default, an event of default or an
event creating rights of acceleration, termination or cancellation or a
loss of rights under, or result in the creation or imposition of any
Encumbrance upon any of the assets or properties of III Fund under (1)
its memorandum or articles of association or by-laws, (2)
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any note, instrument, agreement, mortgage, lease, license, franchise,
permit or other authorization, right, restriction or obligation to
which III Fund is a party or any of the respective assets or properties
of III Fund is subject or by which III Fund is bound, (3) any Court
Order to which III Fund is a party or any of the assets or properties
of III Fund is subject or by which III Fund is bound, or (4) any
Requirements of Laws affecting III Fund or its assets or properties;
provided that no representation or warranty is made in this clause (A)
with respect to any matter concerning III Fund that individually could
not reasonably be expected to have a Material Adverse Effect with
respect to III Fund; or
(B) require the approval, consent, authorization or act of, or
the making by III Fund of any declaration, filing or registration with,
any Person.
(b) III Fund is the record and beneficial owner of 7,286,926
shares of Common Stock and 12 shares of Preferred Stock. All of such Common and
Preferred Stock is validly issued, fully paid and nonassessable and was not
issued in violation of any preemptive or similar rights. All of such shares are
owned by III Fund free from all Encumbrances of any kind except for Permitted
Encumbrances.
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(c) No Finder. Neither III Fund nor any Person acting on its
behalf has paid or become obligated to pay any fee or commission to any broker,
finder or intermediary for or on account of the transactions contemplated by
this Agreement.
(d) Litigation. There is no action, suit or proceeding
pending, or, to the knowledge of III Fund, threatened which questions the
legality or propriety of the transactions contemplated by this Agreement.
(e) Distributions and Payments. Since June 30, 1998, no
dividends or other cash distributions have been paid or made with respect to the
equity securities of the Company and the Company has not paid any amounts to its
officers or employees other than regular salaries and employee benefits payable
in the ordinary course of the Company's business.
Section 2.3 No Other Representations and Warranties of
Sellers. The Buyer acknowledges and agrees that, except as expressly set forth
in Sections 2.1 and 2.2 of this Agreement, neither of the Sellers has made or is
making any representation or warranty, express or implied, oral or written, with
respect to the Common Stock, the Preferred Stock, the Company, the Company's
business and prospects, the Company's past or present financial condition, any
of the Company's financial statements, assets, liabilities (fixed or
contingent), its past or present compliance or failure to comply with applicable
laws and regulations, the
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status of its relationship with third parties, including, without limitation,
parties to contracts or agreements to which the Company is a party or by which
it is bound, employees, federal, state or local regulatory agencies, or any
other matter or matters with respect to the Company or which have affected or
may effect its operations, results of operations, continuing viability or
ability to conduct business. The Securities being sold to the Buyer hereunder
are sold, except as stated in the preceding sentence, "as is" and "where is."
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BUYER
As an inducement to the Sellers to enter into this Agreement
and to consummate the transactions contemplated hereby, the Buyer hereby
represents and warrants to each of the Sellers and agrees as follows:
Section 3.1 Organization of the Buyer. The Buyer is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Florida and has full corporate power and authority to own or
lease and to operate and use its properties and assets and to carry on its
business as now conducted.
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Section 3.2 Authority of the Buyer. The Buyer has full power
and authority to execute, deliver and perform this Agreement and the Buyer
Ancillary Agreements. The execution, delivery and performance of this Agreement
and the Buyer Ancillary Agreements by the Buyer have been duly authorized and
approved by Buyer's Board of Directors. This Agreement, and the Buyer Ancillary
Agreements, have each been duly authorized, executed and delivered by the Buyer
and is the legal, valid and binding agreement of the Buyer enforceable in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, moratorium or other laws affecting the rights of
creditors generally and by general principles of equity.
Neither the execution and delivery of this Agreement or the
Buyer Ancillary Agreements or the consummation of any of the transactions
contemplated hereby or thereby nor compliance with or fulfillment of the terms,
conditions and provisions hereof or thereof will:
(i) conflict with, result in a breach of the terms, conditions
or provisions of, or constitute a default, an event of default or an
event creating rights of acceleration, termination or cancellation or a
loss of rights under (1) the articles of incorporation or by-laws of
the Buyer, (2) any material note, instrument, agreement, mortgage,
lease, license, franchise, permit or other authorization,
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right, restriction or obligation to which the Buyer is a party or any
of its properties is subject or by which the Buyer is bound, (3) any
Court Order to which the Buyer is a party or by which it is bound or
(4) any Requirements of Laws affecting the Buyer; or
(ii) require the approval, consent, authorization or act of,
or the making by the Buyer of any declaration, filing or registration
with, any Person.
Section 3.3 No Finder. Neither the Buyer nor any Person acting
on its behalf has paid or become obligated to pay any fee or commission to any
broker, finder or intermediary for or on account of the transactions
contemplated by this Agreement.
Section 3.4 Investment Representations. The Buyer (a) is
acquiring the Securities for its own account for investment, and not with a view
to resale or distribution, in whole or in part, in violation of the Securities
Act of 1933, as amended (the "Act"); (b) is not acquiring the Securities
pursuant to any pre-existing agreement, plan or intention to purchase the
Securities and neither the Buyer nor its Affiliates nor any Person acting on its
or their behalf entered into any option, short position, equity swap or other
similar instrument or position with respect to any of the Securities; (c)
acknowledges and agrees that the Securities have not been registered under the
Act and may be resold only (i) pursuant to an effective Registration Statement
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under the Act and any applicable state securities laws ("State Acts"), (ii)
pursuant to an exemption from registration under the Act and any applicable
State Acts or (iii) in accordance with Rule 903 or/and 904 of Regulation S under
the Act; (d) understands that the Securities are being transferred to it in
reliance on specific exemptions from the registration requirements of the United
States federal and state securities laws and that the Sellers are relying upon
the truth and accuracy of, and the Buyer's compliance with, the representations,
warranties, agreements, acknowledgments, and understandings set forth in this
Section 3.4 in order to determine the availability of such exemptions and the
eligibility of the Buyer to acquire the Securities; (e) will not make any sale,
transfer or other disposition of the Securities in violation of the Act, the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), any State
Acts, or the rules and regulations of the SEC or any state securities
commission, promulgated under any of the foregoing, and that its purchase of the
Securities does not violate the Act, the Exchange Act, any State Acts, or the
rules and regulations of the SEC or any state securities commission promulgated
thereunder, and that all offers or sales of the Securities will be made in
compliance with the foregoing or in accordance with the provisions of Rules 903
or/and 904 of Regulation S; (f) has relied solely upon an independent
investigation of the Company, its business, assets, liabilities and condition
made by it and its representatives and has, prior to the date hereof, been given
access to and the opportunity to
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examine all books and records of the Company, and all material contracts and
documents of the Company; (g) in making its investment decision to purchase the
Securities, is not relying on any oral or written representations, warranties or
assurances from the Sellers (other than as expressly set forth herein) or any
other Person or any representation by the Company; (h) has such experience in
business and financial matters that it is capable of evaluating the risk of its
investment in the Company and determining the suitability of its investment; (i)
is an accredited investor as defined in Rule 501 of Regulation D under the Act;
and (j) understands and acknowledges that an investment in the Securities
involves a high degree of risk. The Buyer further acknowledges (A) that there
are limitations on the liquidity of the Securities and there is no public market
for the Preferred Stock; and (B) that the Buyer is able to bear the economic
risk of an investment in the Securities, including a possible total loss of such
investment.
Section 3.5 Litigation. There is no action, suit or proceeding
pending, or, to the knowledge of the Buyer, threatened which questions the
legality or propriety of the transactions contemplated by this Agreement.
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ARTICLE IV
ADDITIONAL AGREEMENTS
Section 4.1 Release of Sellers and Affiliates; Insurance. (a)
The Buyer hereby releases each of (a) the Sellers and III Finance, III
Associates, III Offshore Advisors, Xxxxx River Capital Corp. and their
respective Affiliates, stockholders, partners, directors, officers, employees
and agents and (b) each of the current directors, officers and employees of the
Company (collectively, the "Released Parties"), from and against any debt,
liability, obligation, cause of action, claim, damage, cost, Loss or Expense
which (x) the Company may have, or be owed or have incurred or (y) the Buyer may
have, or be owed or have incurred or be entitled to as a stockholder of the
Company (whether in its own right or derivatively on behalf of the Company) in
either case arising out of any act or action authorized by this Agreement or any
act, failure to act or breach of duty by the Released Parties or any of them
with regard to the Company or its subsidiaries at any time or prior to the date
hereof (including, without limitation, the sale of the SST Shares by the Company
to AVM and III Associates pursuant to the SST Stock Purchase Agreement and the
expiration of the Repurchase Option), provided that nothing herein shall release
any of the Released Parties with respect to any breach by any of them of the
obligations set forth in this Agreement or any of the Seller Ancillary
Agreements or with regard to any other acts or events
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occurring after the date hereof (other than acts authorized by this Agreement).
(b) The Buyer shall use its best efforts to cause the Company
to maintain continuously in effect, for six years after the date hereof,
directors' and officers' liability insurance covering those persons currently
covered by the Company's policy for acts or omissions occurring at or prior to
the date hereof on terms no less favorable than current coverages. The Buyer
shall use its best efforts to cause the Company to pay any deductible specified
by such insurance. The Buyer shall also use its best efforts to cause the
Company to indemnify and hold harmless (and advance expenses to) all past and
current directors, officers and employees of the Company and of its
subsidiaries, for claims made within six years after the date hereof arising out
of acts or omissions occurring at or prior to the date hereof, to the same
extent such persons are currently indemnified by the Company pursuant to the
Company's Amended and Restated Certificate of Incorporation, its By-laws and/or
applicable Delaware law.
Section 4.2 Rights Under Existing Loan Agreements. Nothing in
this Agreement or any of the Seller Ancillary Agreements shall be deemed to bar
any investment fund (including, but not limited to, III Finance) advised or
managed by III Associates, III Offshore Advisors or their respective Affiliates
(or bar III Associates, AVM or III Offshore Advisors as agent of any such fund)
from exercising any right or taking or refraining
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from taking any action as lender or otherwise pursuant to the Existing Loan
Agreements (including, without limitation, the foreclosure of any lien or any
security interest or the right to accelerate any loan or loans to the Company
outstanding under any such Existing Loan Agreements or the exercise of any other
right which may arise upon the occurrence or continuance of an event of default
thereunder) or otherwise or subject either of the Sellers or their respective
Affiliates to any liability to the Company or the Buyer in the event of the
exercise of any such right or taking or refraining from taking any such action.
(b) The Buyer acknowledges and agrees that, except as provided
in the last sentence of this clause (b), the Sellers and their Affiliates shall
not be required, after the date hereof, to make any further advances to the
Company under any of the Existing Loan Agreements or under or by reason of any
other written or oral arrangement or course of conduct. The Buyer represents to
Sellers that it has obtained or will obtain financing for the Company adequate
to permit the Company to continue its present level of operations for at least
12 months. It is contemplated that III Finance shall continue, for a period not
to exceed 30 days from the date hereof, to fund the acquisition of automobile
finance receivables by Aegis pursuant to the terms of the Loan Warehouse
Agreement (as such term is defined in the Confirmation Agreement); provided that
(i) the underwriting and other credit quality standards applied during such 30
day period shall be the same as those being applied on
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the date hereof and, in any event, shall be reasonably satisfactory to III
Finance and (ii) the receivables generated with the proceeds of such financing
shall be subject to the lien created by the Loan Warehouse Agreement in favor of
III Finance.
Section 4.3 Repurchase Options. The Buyer acknowledges that
the Repurchase Options, as amended, have expired by their terms and the Company
has no financial or equity interest in SST or right to acquire SST or any of
SST's outstanding securities or assets.
Section 4.4 No Changes in Company Capitalization. (a) The
Buyer agrees that unless and until all amounts of principal and interest due and
payable with respect to the Notes have been paid in full, it shall not permit
the Company or any of its subsidiaries to issue (i) any equity securities (other
than upon the conversion of preferred shares of the Company outstanding on the
date hereof) except at a cash price (net of all related expenses) of not less
than $.20 per share, or (ii) any debt or equity securities, or options, warrants
or similar rights, which are convertible into, or exchangeable for, or permit
the holder thereof to acquire, any equity securities of the Company or any of
its subsidiaries unless the Company shall be entitled to receive upon such
conversion, exchange or acquisition a cash price (net of all related expenses)
of not less than $.20 per share.
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(b) The Buyer further agrees that, unless and until all
amounts of principal and interest due and payable with respect to the Notes have
been paid in full, it shall not sell short any of the Securities or sell or
purchase any put or call with respect thereto.
(c) The Buyer agrees that the full amount of any cash
dividends received by it from Aegis with respect to the Securities shall be
promptly paid to Sellers, pro rata, in repayment of (i) first, any accrued but
unpaid interest on the Notes, and (ii) the balance, if any, any unpaid principal
amount of the Notes.
ARTICLE V
DEFINITIONS
5.1. Definitions. In this Agreement, the following terms have
the meanings specified or referred to in this Section 5.1 and shall be equally
applicable to both the singular and plural forms.
"AFFILIATE" means, with respect to any Person, any other
Person which directly or indirectly controls, is controlled by or is under
common control with such Person; provided that the Company shall not be deemed
an Affiliate of Seller.
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"AVM" means Xxxxx, Xxxxx & Mosler, Ltd., a limited partnership
organized under the law of Illinois.
"BUYER" has the meaning specified in the first paragraph of
this Agreement.
"BUYER ANCILLARY AGREEMENTS" means the Notes, the Pledge
Agreement and all other agreements, instruments and documents being or to be
executed and delivered the Buyer under this Agreement or in connection herewith.
"COMPANY" has the meaning specified in the second paragraph of
this Agreement.
"CONFIRMATION AGREEMENT" means the form of agreements attached
have to as Exhibit III.
"CONVERSION SHARES" has the meaning set forth in Section
1.2(b)
"COURT ORDER" means any judgment, order, award or decree of
any foreign, federal, state, local or other court or tribunal and any award in
any arbitration proceeding.
"ENCUMBRANCE" means any lien (statutory or other), claim,
charge, security interest, mortgage, deed of trust, pledge, hypothecation,
assignment, conditional sale or other
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title retention agreements, preference, priority or other security agreements or
preferential arrangement of any kind or nature, and any easement, encroachment,
covenant, restriction, right of way, defect in title or other encumbrance of any
kind.
"EXCHANGE ACT" has the meaning specified in Section 3.4.
"EXISTING LOAN AGREEMENTS" means the following agreements:
Loan and Security Agreement dated March 14, 1997 between Aegis Consumer Finance,
Inc., Aegis Acceptance Corp. and III Finance Ltd., as amended, the Amended and
Restated Master Loan Agreement dated April 30, 1997 among Aegis Auto Finance,
Inc., Aegis Consumer Finance, Inc. and III Finance Ltd., as amended, and the
Loan and Security Agreement dated as of March 14, 1997 between Aegis Auto
Finance, Inc. and III Finance Ltd., as amended.
"EXISTING SHARES" has the meaning set forth in Section 1.2(b).
"EXPENSES" means any and all expenses incurred by the Buyer,
the Company or any of their respective Affiliates in connection with
investigating, defending or asserting any claim, action, suit or proceeding
incident to any matter indemnified against hereunder by the Buyer (including
court filing fees, court costs, arbitration fees or costs, witness fees, and
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reasonable fees and disbursements of legal counsel, investigators, expert
witnesses, consultants, accountants and other professionals).
"GOVERNMENTAL BODY" means any foreign, federal, state, local
or other governmental authority or regulatory body.
"HSR ACT" has the meaning specified in Section 1.2(c).
"LOSSES" means any and all losses, costs, obligations,
liabilities, settlement payments, awards, judgments, fines, penalties, damages,
expenses, deficiencies or other charges.
"MATERIAL ADVERSE EFFECT" means any condition, circumstance,
change or effect (or any development that, insofar as can be reasonably
foreseen, would result in any condition, circumstance, change or effect) that is
materially adverse to the assets, business, financial condition, or results of
operations of the Company, Sellers or the Buyer, as applicable.
"OUTSTANDING COMMON STOCK" has the meaning set forth in
Section 1.2(b).
"PERMITTED ENCUMBRANCES" means liens for taxes and other
governmental charges and assessments arising in the ordinary course of business
which are not yet due and payable.
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"PERSON" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization or Governmental Body.
"REPURCHASE OPTIONS" means the options to repurchase SST
Shares provided in Section 7.8 of the SST Stock Purchase Agreement.
"RELEASED PARTIES" has the meaning specified in Section 4.2.
"REQUIREMENTS OF LAWS" means any foreign, federal, state and
local laws, statutes, regulations, rules, codes or ordinances enacted, adopted,
issued or promulgated by any Governmental Body (including those pertaining to
electrical, building, zoning, subdivision, land use, environmental and
occupational safety and health requirements) or common law.
"REQUIRED PERCENTAGE" means 50.1% with reference to the
Outstanding Common Stock.
"SECURED LOANS" means the indebtedness of the Company issued
under or pursuant to the Existing Loan Agreements and secured by, among other
things, a lien upon the SST Shares.
"SEC" means the Securities and Exchange Commission or any
successor agency.
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"SECURITIES" has the meaning specified in the preambles to
this Agreement.
"SELLERS" has the meaning specified in the first paragraph of
this Agreement.
"SELLERS ANCILLARY AGREEMENTS" means the Pledge Agreement, the
Confirmation Agreement, and all other agreements, instruments and documents
being or to be executed and delivered by the Sellers under this Agreement or in
connection herewith.
"SST" means Systems & Services Technologies, Inc., a Delaware
corporation.
"SST SHARES" means the Common Stock of SST owned on the date
hereof by AVM and III Associates, which was subject to the Repurchase Options.
"SST STOCK PURCHASE AGREEMENT" means the Stock Purchase
Agreement dated as of January 28, 1998 among the Company, AVM and III
Associates.
"STATE ACTS" has the meaning specified in Section 3.4.
"III ASSOCIATES" means III Associates, a general partnership
organized under the laws of Nevada.
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"III FINANCE" means III Finance Ltd., a Cayman Islands
corporation.
"III FUND" has the meaning set forth in the first paragraph of
this Agreement.
"III GLOBAL" has the meaning set forth in the first paragraph
of this Agreement.
"III OFFSHORE ADVISORS" means III Offshore Advisors, a Nevada
general partnership.
5.2. Interpretation. As used in this Agreement, the word
"including" means without limitation, the word "or" is not exclusive and the
words "herein", "hereof", "hereby", "hereto" and "hereunder" refer to this
Agreement as a whole. Unless the context otherwise requires, references herein:
(i) to Articles, Sections and Exhibits mean the Articles and Sections of and the
Exhibits attached to this Agreement; (ii) to an agreements, instrument or other
document means such agreements, instrument or other document as amended,
supplemented and modified from time to time to the extent permitted by the
provisions thereof and by this Agreement; and (iii) to a statute means such
statute as amended from time to time and includes any successor legislation
thereto. The Exhibits referred to herein shall be construed with and as an
integral part of this Agreement to the same extent as if they were set forth
verbatim herein. Titles to Articles and headings of Sections are inserted for
convenience of reference
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only and shall not be deemed a part of or to affect the meaning or
interpretation of this Agreement. References herein to the knowledge of a party
or matters or information known to a party mean the actual knowledge of the
officers of such party.
ARTICLE VI
GENERAL PROVISIONS
Section 6.1 Notices. All notices or other communications
required or permitted hereunder shall be in writing and shall be deemed given or
delivered (i) when delivered personally, (ii) if transmitted by facsimile when
confirmation of transmission is received, or (iii) if sent by registered or
certified mail, return receipt requested, or by private courier when received;
and shall be addressed as follows:
If to Buyer, to:
Prairie Boy's Investments, Inc.
0000 Xxxxxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Facsimile No.:
Attention:
with a copy to:
Xxxxx, Xxxxx & Kiefner
City Center, North Tower
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000-0000
Facsimile No.: 000-000-0000
Attention: Xxxxxxxx Xxxx, Esq.
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If to Sellers, to:
III Global Ltd.
III Fund Ltd.
c/o III Offshore Advisors
000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Facsimile No.:
Attention: Xxxxxx Xxxxxx
with a copy to:
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxx, Esq.
or to such other address as such party may indicate by a notice delivered to the
other party hereto.
Section 6.2 Successors and Assigns. (a) The rights of any
party under this Agreement shall not be assignable by such party without the
written consent of the other parties.
(b) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their successors and permitted assigns. The
successors and permitted assigns hereunder shall include, without limitation, in
the case of Buyer, any permitted assignee as well as the successors in interest
to such permitted assignee (whether by merger, liquidation (including successive
mergers or liquidations) or otherwise). Nothing in this Agreement, expressed or
implied, is intended or shall be construed to confer upon any Person other than
the parties and
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successors and assigns permitted by this Section 6.2 any right, remedy or claim
under or by reason of this Agreement.
Section 6.3 Entire Agreement; Amendments. This Agreement and
the Exhibits referred to herein and the documents delivered pursuant hereto
contain the entire understanding of the parties hereto with regard to the
subject matter contained herein or therein, and supersede all prior agreements,
understandings or letters of intent between or among any of the parties hereto.
This Agreement shall not be amended, modified or supplemented except by a
written instrument signed by an authorized representative of each of the parties
hereto.
Section 6.4 Waivers. Any term or provision of this Agreement
may be waived, or the time for its performance may be extended, by the party or
parties entitled to the benefit thereof. Any such waiver shall be validly and
sufficiently given for the purposes of this Agreement if, as to any party, it is
in writing signed by an authorized representative of such party. The failure of
any party hereto to enforce at any time any provision of this Agreement shall
not be construed to be a waiver of such provision, nor in any way to affect the
validity of this Agreement or any part hereof or the right of any party
thereafter to enforce each and every such provision. No waiver of any breach of
this Agreement shall be held to constitute a waiver of any other or subsequent
breach.
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Section 6.5 Survival of Representations and Warranties. The
representations and warranties included herein shall survive the consummation of
the purchase and sale of the Securities hereunder.
Section 6.6 Partial Invalidity. Wherever possible, each
provision hereof shall be interpreted in such manner as to be effective and
valid under applicable law, but in case any one or more of the provisions
contained herein shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such provision shall be ineffective to the extent,
but only to the extent, of such invalidity, illegality or unenforceability
without invalidating the remainder of such provision or provisions or any other
provisions hereof, unless such a construction would be unreasonable.
Section 6.7 Execution in Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall be considered an
original instrument, but all of which shall be considered one and the same
agreements, and shall become binding when one or more counterparts have been
signed by each of the parties hereto and delivered to each of Seller and Buyers.
Section 6.8 Governing Law. This Agreement shall be governed by
and construed in accordance with the internal laws (as opposed to the conflicts
of law provisions) of the State of Florida.
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Section 6.9 Submission to Jurisdiction. Sellers and Buyer
hereby irrevocably submit in any suit, action or proceeding arising out of or
related to this Agreement or any of the transactions contemplated hereby to the
non-exclusive jurisdiction of the United States District Court for the Middle
District of Florida (Tampa Division) and the jurisdiction of any court of the
State of Florida located in Pinellas County and waive any and all objections to
jurisdiction that they may have and any claim or objection that any such court
is an inconvenient forum.
Each party consents to service of process upon it with respect
to any such action or proceeding by registered mail, return receipt requested,
and by any other means permitted by applicable laws and rules.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed the day and year first above written.
III GLOBAL LTD.
By: /s/ Xxxx X. Xxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxx
Title: Director
III FUND LTD.
/s/ Xxxx X. Xxxxxxxx
----------------------------
By: Name: Xxxx X. Xxxxxxxx
Title: Director
PRAIRIE BOY'S INVESTMENTS, INC.
By: /s/ Xxxxxx Xxxxxx
----------------------------
Name: Xxxxxx Xxxxxx
Title: Agent
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