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EXHIBIT 7.3
RIGHT OF FIRST REFUSAL
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This Agreement made and entered in as of May 27, 1998, by ▇▇▇▇▇ ▇.
Oeri, individually, and Oeri Finance, Inc. ("Oeri Finance") (collectively, ▇▇▇▇▇
▇. Oeri and Oeri Finance shall be referred to herein as "Oeri") and 3421643
CANADA INC., ("The Bier Group"), and Third Capital Partners, LLC, ("Third
Capital"). (The Bier Group and Third Capital shall be referred to collectively
as the "Stockholders").
WHEREAS, the Stockholders have agreed to purchase certain securities
issued by ▇. ▇. Oxford Holdings, Inc. (the "Corporation") from Oeri as more
fully described in the Purchase Agreement dated as of May 21, 1998 ("Purchase
Agreement"), and the covenants of Oeri as set forth in this Agreement are a
material inducement for Stockholders entering into such Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and other good and valuable consideration, the receipt which is
hereby acknowledged, the parties hereto agree as follows:
1. OUTSTANDING COMMON STOCK. After taking account of all purchases
described in the Purchase Agreement, Oeri hereby agrees that it shall own
2,420,419 shares of common stock of the Corporation.
2. VOTING RIGHTS. All shares of the Corporation's common stock now
owned or hereafter acquired by Oeri shall be subject to the terms of the
Irrevocable Proxy attached hereto as Exhibit A, which shall be executed by Oeri
simultaneously with the execution hereof. ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall have the
right to exercise in person or by their nominee or proxy all voting rights with
respect to the common stock subject to this Agreement relating to the right to
vote and to take part in or consent to any corporate or stockholders' action.
3. RIGHT OF FIRST REFUSAL. Oeri hereby grants to each of the
Stockholders, on a pro rata basis, a right of first refusal to purchase any
securities issued by the Corporation (the "Securities") which Oeri desires to
sell or transfer on the terms and conditions described below. In the event that
none of the Stockholders elect to exercise their rights of first refusal, the
Corporation, upon the direction of its Board of Directors, shall have the right
of first refusal for the rights granted to the Stockholders which are not
exercised pursuant to the provisions of this Section 3.
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a. In the event that Oeri shall receive a Bona Fide Offer, as herein
defined, from a third party (the "Proposed Assignee") to purchase any of its
Securities and is willing to accept such Bona Fide Offer, Oeri shall promptly
send written notice (the "Notice") to the Corporation and each Stockholder
offering to sell its Securities to the respective Stockholders at the same price
and upon the same terms and conditions that are contained in the Bona Fide
Offer. The Notice shall contain a true and complete copy of the Bona Fide Offer,
setting forth the price and all terms and conditions with the names, addresses
(both home and office) and businesses or other occupations of the Proposed
Assignee. (In the event such sale relates is to be an open market sale, such
notice shall specify the number of shares to be sold, the price at which Oeri
will sell the shares to the open market and specify that such sale will be
completed within 45 days after the expiration of this right of First Refusal.)
b. As used herein, the term "Bona Fide Offer" shall mean an offer in
writing, signed by the Proposed Assignee (who must be a person or persons
financially capable of carrying out the terms of such Bona Fide Offer), in a
form legally enforceable against such Proposed Assignee.
c. Whenever, under this Agreement, a Bona Fide Offer to purchase the
Securities has been received, and written notice thereof has been sent to the
Corporation and the Stockholders by the Oeri, the following procedure shall be
complied with:
(1) For a period of thirty (30) days from receipt of the Notice,
each Stockholder shall have the option to purchase the securities of Oeri on a
pro rata basis based upon each Stockholders then current ownership of securities
issued by the Corporation. Such option to be exercised by written notice to Oeri
and all the Stockholders. If no Stockholder elects to exercise any right of
first refusal, the Corporation shall then have a ten (10) day period to exercise
any rights of first refusal not otherwise elected by the Stockholders.
Notwithstanding the foregoing, the Stockholder shall have only seven (7) days,
and the Company shall have only three (3) days thereafter, in which to exercise
such purchase option if the sale of securities by Oeri involves an open market
sale of less than 200,000 shares of common stock.
(2) If the Corporation or the Stockholders do not elect, within
the prescribed time periods, to purchase the Securities covered by the Bona Fide
Offer (or such Stockholder notice to sell securities in the public markets),
Oeri shall have the right to accept the Bona Fide Offer and to sell such stock,
but only in strict accordance with all of the provisions of the Bona Fide Offer
and only if the sale is fully consummated within ninety (90) days after the
mailing of the Notice.
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4. TERMINATION. This Agreement shall terminate upon the written
agreement of all the Stockholders to that effect, or upon Oeri providing written
notice to the Shareholders that it no longer owns Five percent (5%) or more of
any Securities issued by the Corporation.
5. SPECIFIC PERFORMANCE. The parties hereby declare that it is
impossible to measure in money the damages which will accrue to a party hereto
by reason of failure to perform any of the obligations under this Agreement.
Therefore, if any party hereto shall institute any action or proceeding to
enforce the provisions hereof, the defendant or defendants against whom such
action or proceeding is brought hereby waives the claim or defense therein that
such party has an adequate remedy at law and such person shall not urge in any
action or proceeding the claim or defense that such remedy at law exists.
6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The warranties,
representations, covenants and agreements set forth herein shall be continuous
and shall survive the termination of this Agreement or any part hereof.
7. ENTIRE AGREEMENT. This Agreement, together with the Purchase
Agreement and the Irrevocable Proxy attached hereto, contains the entire
understanding between the parties hereto with respect to the transactions
contemplated hereby, and such agreements supersede in all respects all written
or oral understandings and agreements heretofore existing between the parties
hereto.
8. AMENDMENT AND WAIVER. This Agreement may not be modified or amended
except by an instrument in writing duly executed by the parties hereto. No
waiver or compliance with any provision or condition hereof and no consent
provided for herein shall be effective unless evidenced by an instrument in
writing duly executed by the party hereto sought to be charged with such waiver
or consent.
9. NOTICES. Notices and requests required or permitted hereunder shall
be deemed to be delivered hereunder if mailed with postage prepaid or delivered,
in writing as follows:
▇▇▇▇▇ ▇. Oeri
Oeri Finance Inc.
▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇
▇▇-▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Third Capital Partners, LLC
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▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
3421643 Canada Inc.
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Trust, 18th Floor
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
10. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and all such counterparts shall constitute one and the same
instrument.
11. CAPTIONS. Captions used herein are for convenience only and are not
a part of this Agreement and shall not be used in construing it.
12. EXECUTION OF DOCUMENTS. At any time and from time to time, the
parties hereto shall execute such documents as are necessary to effect this
Agreement.
13. REMEDIES.
a. EXPENSES. Each of the parties to this Agreement shall pay its own
expenses in connection with this Agreement and the transactions contemplated
hereby, including the fees and expenses of its counsel, certified public
accountants and other experts.
b. ASSIGNABILITY. This Agreement shall not be assignable by any of
the parties to this Agreement without the prior written consent of all other
parties to this Agreement.
c. GOVERNING LAW. This Agreement has been negotiated and prepared and
shall be performed in the State of Tennessee, and the validity, construction and
enforcement of, and the remedies under, this Agreement shall be governed in
accordance with the laws of the State of Tennessee (except that if any choice of
law provision under Tennessee law would result in the application of the law of
a state or jurisdiction other than the State of Tennessee, such provision shall
not apply).
d. SEVERABILITY OF PROVISIONS. The invalidity of unenforceability of
any particular provision hereof shall not affect the remaining provisions of
this
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Agreement, and this Agreement shall be construed in all respects as if such
invalid or unenforceable provision were omitted.
e. SUCCESSORS AND ASSIGNS. The rights and obligations of the parties
hereunder shall inure to the benefit of, and be binding and enforceable upon the
respective (heirs - if personal), successors, assigns and transferees of either
party.
f. RELIANCE. All representations and warranties contained herein, or
any certificate or other instrument delivered in connection herewith, shall be
deemed to have been relied upon by the parties hereto, notwithstanding any
independent investigation made by or on behalf of such parties.
g. TIME. Time is of the essence in this Agreement.
h. EXHIBITS. The Exhibits to this Agreement are incorporated by
reference herein and are made a part hereof as if they were fully set forth
herein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
WITNESSES:
/s/ ▇▇▇ ▇▇▇▇▇▇▇
-------------------------- OERI FINANCE INC.
Print Name: ▇▇▇ ▇▇▇▇▇▇▇
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By: /s/ ▇▇▇▇▇ ▇. Oeri
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ ----------------------------
-------------------------- ▇▇▇▇▇ ▇. Oeri
Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Authorized Representative
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/s/ ▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. Oeri
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Print Name: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. OERI
---------------
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ INC.
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇▇ ----------------------------
-------------------------- ▇▇▇▇▇▇ ▇. ▇▇▇▇
Print Name: ▇▇▇ ▇▇▇▇▇▇▇ Authorized Representative
---------------
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
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/s/ A.R. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------- THIRD CAPITAL PARTNERS, LLC
Print Name: A.R. ▇▇▇▇▇▇▇▇▇▇▇
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By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ---------------------------
---------------------------- ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Chief Manager
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Attachments
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Exhibit A Irrevocable Proxy
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EXHIBIT A
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IRREVOCABLE PROXY
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I, ▇▇▇▇▇ ▇. Oeri, in my individual capacity and as authorized representative of
Oeri Finance, Inc. (collectively "Oeri"), being the holder of 2,420,419 shares
of the common stock of ▇. ▇. Oxford Holdings, Inc., a Utah corporation (the
"Corporation"), do hereby appoint, coupled with an interest, ▇▇▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ to be the true and lawful proxy for Oeri, with full power of
substitution and revocation, for a period commencing on May 27, 1998 and ending
on the date which is the earlier of: (i) the date on which Oeri no longer owns
any common stock of said Corporation, or (ii) the latest date for which an
irrevocable proxy can be outstanding under applicable law, to vote as Oeri's
proxy all shares in the Corporation owned by ▇▇▇▇▇ ▇. Oeri or Oeri Finance,
Inc., at any and all meetings, regular or special, of the stockholders of said
corporation or any adjournments thereof which may be held during the stated
period or any action by written consent of shareholders in lieu of meeting,
giving and granting as Oeri's proxy all the power to the same extent and with
the same effect as Oeri would possess if personally present at any meeting, said
individuals being authorized to vote in their sole discretion to elect the Board
of Directors of the corporation, for or against the disposition of all assets
belonging to the Corporation, for or against the liquidation of the Corporation
and for or against any and all other matters to come to the attention to the
shareholders at any meeting or at any continuation thereof.
Witnesses to all Parties: OERI FINANCE INC.
/s/ ▇▇▇ ▇▇▇▇▇▇▇
-------------------------- By: /s/ ▇▇▇▇▇ ▇. Oeri
Print Name: ▇▇▇ ▇▇▇▇▇▇▇ ---------------------------
--------------- ▇▇▇▇▇ ▇. Oeri
Authorized Representative
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. Oeri
--------------- -----------------------------
▇▇▇▇▇ ▇. OERI
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