EXHIBIT 4
MANAGEMENT STOCK PURCHASE AGREEMENT
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THIS AGREEMENT is made as of February 3, 2000 (the "AGREEMENT"), by
and among BNCM ACQUISITION CO., a Delaware corporation (the "COMPANY"), and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇-Haeghen, ▇▇▇▇▇▇ ▇. ▇▇▇▇
and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (collectively, the "PURCHASERS" and, each individually, a
"PURCHASER").
W I T N E S S E T H :
WHEREAS, on the terms and subject to the conditions set forth herein,
each Purchaser desires to subscribe for and purchase, and the Company desires to
sell to each Purchaser, the number of shares of common stock, par value $0.01
per share, of the Company (the "SHARES") set forth in Column A of Schedule I
hereto opposite the name of such Purchaser in exchange for (i) the transfer,
assignment and conveyance of the number of shares of common stock, par value
$0.001 per share, of BNC Mortgage, Inc. ("CONTRIBUTED SHARES") set forth in
Column B of Schedule I hereto opposite the name of such Purchaser (herein
referred to, with respect to any particular Purchaser, as such "PURCHASER'S
CONTRIBUTED SHARES"); (ii) at Purchaser's election, an amount in cash equal to
$10.00 in lieu of each Contributed Share, or (iii) at Purchaser's election, in a
combination of Contributed Shares and cash.
NOW, THEREFORE, in order to implement the foregoing and in
consideration of the mutual representation, warranties, covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Purchase and Sale of the Shares. (a) At the Closing referred to in
Section 2 below, subject to the terms and conditions set forth herein, the
Company shall sell to each Purchaser, and each Purchaser shall purchase from the
Company, the number of Shares set forth opposite the name of such Purchaser on
Schedule I in exchange for the number of Purchaser's Contributed Shares set
forth opposite the name of such Purchaser on Schedule I (and/or cash in lieu of
Contributed Shares as permitted by the first recital of this Agreement).
(b) In the event any Purchaser, other than ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, fails to
purchase the Shares in accordance with Section 1(a) hereof (such Shares
hereinafter referred to as the "DEFAULTED SHARES"), the remaining Purchasers
may, at his or her option, subscribe for and purchase some or all of such
Defaulted Shares; provided, however, in the event the aggregate number of
Defaulted Shares is not greater than 12,000 Shares, the remaining Purchasers
shall be required to subscribe for and purchase such Defaulted Shares on a pro
rata basis or as otherwise agreed upon by the remaining Purchasers.
2. The Closing. (a) The closing (the "CLOSING") of the purchase and
sale of the Shares shall take place at the offices of Weil, Gotshal & ▇▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ immediately prior to the Closing
contemplated by the Merger Agreement (as defined below) or at such other place
or on such other date as shall be mutually agreeable to the parties hereto.
(b) At the Closing, the Company shall deliver to each Purchaser a
certificate representing the Shares issued to such Purchaser, upon delivery by
such Purchase of his Purchaser's Contributed Shares duly endorsed to the
Company.
3. Conditions of the Purchasers' Obligation at the Closing. The
obligation of the Purchaser to purchase the Shares and to deliver the
Purchaser's Contributed Shares at the Closing is subject to the satisfaction as
of the Closing of the following conditions:
(a) Representations and Warranties. The representations and
warranties contained in Section 4 hereof shall be true and correct in all
material respects at and as of the Closing as though then made.
(b) Merger Agreement. Each of the conditions precedent set forth in
Article VII of the Agreement and Plan of Merger, dated as of even date herewith
(the "MERGER AGREEMENT"), between the Company and BNC Mortgage, Inc., a Delaware
corporation ("BNC MORTGAGE"), shall have been satisfied or waived (provided,
such waiver has been approved by the "Stockholders' Representative" (as defined
in the Stockholders' Agreement referred to below) and, upon consummation of the
merger of the Company with and into BNC Mortgage, the Shares shall become shares
of common stock of BNC Mortgage, as the surviving corporation of such merger.
(c) Stockholders' Agreement. The Company, Mortgage Investco LLC
("MORTGAGE INVESTCO") and each Purchaser shall have entered into a stockholders'
agreement (the "STOCKHOLDERS' AGREEMENT") on terms substantially similar to the
form attached as Exhibit A hereto, and the Stockholders' Agreement shall be in
full force and effect as of the Closing.
(d) Proceedings. All corporate and other proceedings taken or
required to be taken in connection with the transactions contemplated hereby to
be consummated at or prior to the Closing and all documents incident thereto
shall be satisfactory in form and substance to the Purchaser.
(e) Employment Agreements. The Employment Agreements entered into
between the Company and each of the Purchasers, dated as of even date herewith,
shall be in full force and effect as of the Closing.
Any condition specified in this Section 3 may be waived and any
agreement contemplated may be amended if consented to by all of the Purchasers;
provided, however, that no such waiver shall be effective against any such
Purchaser
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unless it is set forth in a writing executed by such Purchaser; and provided,
further, that, notwithstanding the foregoing, each Purchaser may waive
provisions of Section 3(e) with respect to his/her Employment Agreement without
all Purchasers consenting to such waiver.
4. Representations and Warranties of the Company. The Company
represents and warrants to each Purchaser as follows:
(a) the Company has full corporate power and authority to execute and
deliver this Agreement and all other agreements and instruments contemplated
hereby to which the Company is a party and to perform its obligations hereunder
and thereunder, and this Agreement and all such other agreements and instruments
have been duly authorized, executed and delivered by the Company and, assuming
the due execution and delivery of this Agreement and all such other agreements
and instruments by the other parties hereof and thereof, are valid, binding and
enforceable against the Company in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally,
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity);
(b) except as set forth in the Merger Agreement, no consent or
authorization of, filing with or other act by or in respect of any governmental
authority is required to be obtained or made by the Company in connection with
the execution, delivery, performance, validity or enforceability of this
Agreement and all other agreements and instruments contemplated hereby to which
the Company is a party;
(c) the Shares to be issued to each Purchaser pursuant to this
Agreement, when issued and delivered in accordance with the terms hereof and
thereof, will be duly and validly issued and will be fully paid and
nonassessable; and
(d) acceptance of the Purchaser's Contributed Shares (and/or cash in
lieu of Contributed Shares as permitted by the first recital of this Agreement)
from each Purchaser shall constitute confirmation from the Company that all of
the conditions in Section 3 shall have been satisfied in all material respects.
5. Representations and Warranties of the Purchasers. Each Purchaser
hereby represents and warrants, severally and not jointly, to the Company that:
(a) the Agreement and all other agreements and instruments
contemplated hereby to which such Purchaser is a party have been duly executed
and delivered by or on behalf of such Purchaser;
(b) assuming due authorization, execution and delivery of this
Agreement and all other agreements and instruments contemplated hereby to which
such Purchaser is a party by the other parties hereto and thereto, this
Agreement and all such
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other agreements and instruments constitute the legal, valid and binding
obligations of such Purchaser, enforceable against such Purchaser in accordance
with their terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity);
(c) there is no action, suit, investigation or proceeding of or
before any arbitrator or governmental authority now pending or, to the knowledge
of such Purchaser, threatened against or affecting such Purchaser or against any
of the Purchaser's properties or income that would have a material adverse
effect on, or which questions or challenges, this Agreement or any other
agreement or instrument contemplated hereby to which such Purchaser is a party
or any of the transactions contemplated hereby or thereby;
(d) no consent or authorization of, filing with or other act by or in
respect to any governmental authority is required to be obtained or made by such
Purchaser in connection with the execution, delivery, performance, validity or
enforceability of this Agreement and all other agreements and instruments
contemplated hereby to which such Purchaser is a party;
(e) such Purchaser has full legal capacity to execute and deliver
this Agreement and all other agreements and instruments contemplated hereby to
which such Purchaser is a party and to make, deliver and perform his obligations
hereunder and thereunder;
(f) the execution, delivery and performance of this Agreement and all
other agreements and instruments contemplated hereby to which such Purchaser is
a party by such Purchaser and the fulfillment of and compliance with the
respective terms hereof and thereof by the Purchaser, do and will not (x)
violate any requirements of any material obligation of such Purchaser, (y)
result in or constitute (with or without the giving of notice, lapse of time or
both) any default or event of default under any such material obligation of the
Purchaser, or give rise to a right of termination of, or accelerate the
performance required by, any terms of any such material obligation, or (z)
violate any statute, law, ordinance, rule, regulation or order of any court or
governmental authority or any judgment, order or decree (federal, state, local
or foreign) applicable to such Purchaser, in each of the foregoing events, where
such violation, default, termination or acceleration could have a material
adverse effect on such Purchaser; and
(g) each Purchaser has good and marketable title to such Purchaser's
Contributed Shares, free and clear of all Liens except as set forth in the
Voting Agreement dated as of even date herewith between the Company and such
Purchaser.
6. Investment Representations. (a) Each Purchaser hereby represents
and warrants that such Purchaser is acquiring its respective Shares for
investment purposes only and not with a view to the sale or distribution
thereof.
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Each Purchaser hereby represents that (i) at the Closing such Purchaser
is an "accredited investor" as defined in Rule 501(a) under the Securities Act
of 1933, as amended (the "SECURITIES ACT"), (ii) such Purchaser's financial
situation is such that he can afford to bear the economic risk of holding the
Shares for an indefinite period of time and suffer complete loss of his
investment in the Shares; (iii) such Purchaser's knowledge and experience in
financial and business matters are such that he is capable of evaluating the
merits and risks of his investment in the Shares as contemplated by this
Agreement; (iv) such Purchaser understands that the Shares are a speculative
investment that involve a high degree of risk of loss of his investment therein,
that there are substantial restrictions on the transferability of the Shares and
that on the date of the Closing and for an indefinite period thereafter there
will be no public market for the Shares and, accordingly, it may not be possible
to liquidate such Purchaser's investment in the Company or, after the closing of
the transactions contemplated by the Merger Agreement (the "MERGER AGREEMENT
CLOSING"), BNC Mortgage; (v) in making his decision to invest in the Shares
hereunder, such Purchaser has relied upon independent investigations made by
such Purchaser and, to the extent believed by such Purchaser to be appropriate,
such Purchaser's representatives, including such Purchaser's own professional,
tax and other advisors; and (vi) such Purchaser and his representatives have
been given the opportunity to examine all documents and to ask questions of, and
to receive answers from, the Company and their respective representatives
concerning the terms and conditions of the investment in the Shares. Each
Purchaser hereby represents and warrants that his true and correct residence
address is set forth under his signature on the signature page hereto.
(b) Each Purchaser hereby acknowledges that he is fully familiar with
the Company and BNC Mortgage, and that no other representations or warranties,
express or implied, regarding the Company and BNC Mortgage, and their respective
businesses, operations, plans or prospects have been made to it by the Company,
Mortgage Investco or any affiliate of Mortgage Investco, BNC Mortgage or any
other third party.
(c) Each Purchaser acknowledges that he has been advised that (i) the
Shares have not been registered under the Securities Act; (ii) the Shares must
be held indefinitely and he must continue to bear the economic risk of the
investment in the Shares unless they are subsequently registered under the
Securities Act or an exemption from such registration is available; (iii) it is
not anticipated that there will be any public market for the Shares; (iv) Rule
144 promulgated under the Securities Act ("RULE 144") is not currently available
with respect to the sales of any securities of the Company and following the
Merger Agreement Closing will not be available with respect to the sales of any
securities of BNC Mortgage, and neither the Company nor BNC Mortgage has made
any covenant to make such Rule 144 available; (v) if and when the Shares may be
disposed of without registration in reliance on Rule 144, such disposition can
be made only in limited amounts in accordance with the terms and conditions of
such rule; (vi) if the Rule 144 exemption is not available, public offer of sale
without registration will require the availability of an exemption under the
Securities Act; (vii) a restrictive legend or legends in a form to be set forth
in the Stockholders' Agreement shall be placed on the
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certificates representing the Shares; and (viii) a notation shall be made in the
appropriate records of the Company or, following the Merger Agreement Closing,
BNC Mortgage, indicating that each of the Shares is subject to restrictions on
transfer and, if the Company or, following the Merger Agreement Closing, BNC
Mortgage, should at some time in the future engage the services of a securities
transfer agent, appropriate stop-transfer instructions will be issued to such
transfer agent with respect to the Shares.
7. Survival of Representations and Warranties. All representations
and warranties contained herein or made in writing by any party in connection
herewith shall survive the execution and delivery of this Agreement, regardless
of any investigation made by each Purchaser or on his behalf.
8. Non-Competition. ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ acknowledges and recognizes
the highly competitive nature of the business of BNC Mortgage and its affiliates
as well as his extensive participation in the ownership of the common stock of
BNC Mortgage. ▇▇. ▇▇▇▇▇▇▇ accordingly agrees that if his employment with the
company is terminated for any reason, then until the Restricted Date (as defined
in the employment agreement between the Company and ▇▇. ▇▇▇▇▇▇▇ referred to in
Section 3(e)) he will not directly or indirectly engage (as owner, stockholder,
partner or otherwise, except as a passive holder of fewer than 5% of the
outstanding shares or other equity interests (and without any role in management
or as a director officer, partner or similar position) of a company whose shares
or other equity interests are publicly traded), in any business which directly
or indirectly competes with the business of BNC Mortgage or any of its
subsidiaries within the same jurisdictions in which BNC Mortgage or any of its
subsidiaries engages in business at the time of his termination or resignation,
as the case may be.
9. Termination. This Agreement shall automatically terminate in the
event the Merger Agreement is terminated in accordance with the terms thereof.
Notwithstanding anything to the contrary herein, no termination of this
Agreement shall relieve any party of liability for a breach hereof prior to
termination.
10. Successors and Assigns. Except as otherwise expressly provided
herein, all covenants and agreements contained in this Agreement by or on behalf
of any of the parties hereto shall be binding on and inure to the benefit of the
respective successors and assigns of the parties hereto. It is hereby understood
and agreed that, concurrently with the closing under the Merger Agreement, the
rights and obligations of the Company hereunder shall be assigned by operation
of law to BNC Mortgage.
11. Assignment. The Purchasers may assign their right to purchase the
Shares hereunder to any entity, all of the equity interests of which are owned
by the Purchasers; provided, however, such entity shall become a party to the
Stockholders' Agreement as a "MANAGEMENT STOCKHOLDER"; and provided, further,
such assignment shall not relieve any Purchaser of his/her obligations
hereunder.
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12. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
13. Counterparts. This Agreements may be executed in two or more
counterparts, each of which shall be considered an original, but all of which
taken together shall constitute one and the same Agreement.
14. Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
15. Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement and the exhibits and schedules
hereto shall be governed by the internal laws, and not the conflicts of laws, of
the State of Delaware.
16. Waiver of Jury Trial. The parties hereto waive all right to trial
by jury in any action or proceeding to enforce or defend any rights under this
Agreement and any document executed in connection herewith.
17. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered, telecopied
or mailed, certified or registered mail, return receipt requested:
(a) If to any Purchaser, to the
address set forth under such
Purchaser's signature on the
signature page hereto.
(b) If to the Company or, following the Merger Agreement
Closing, to BNC Mortgage:
BNC Mortgage, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to
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Mortgage Investco LLC
c/▇ ▇▇▇▇▇▇ Brothers Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President
▇▇▇▇▇ ▇▇▇▇▇▇, Senior Vice President
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
Such names and address may be changed by written notice to each person listed
above. All notices are effective upon receipt or upon refusal if properly
delivered.
18. Specific Performance. Each Purchaser recognizes and acknowledges
that a breach by it of any covenants or agreements contained in this Agreement
will cause the Company to sustain damages for which it would not have an
adequate remedy at law for money damages, and therefore each Purchaser agrees
that in the event of any such breach the Company party shall be entitled to the
remedy of specific performance of such covenants and agreements and injunctive
and other equitable relief in addition to any other remedy to which the Company
may be entitled, at law or in equity.
19. Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any thereof
by any party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
20. No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
21. No Third Party Beneficiaries. This Agreement is not intended to
be for the benefit of, and shall not be enforceable by, any Person who or which
is not a party hereto other than Mortgage Investco, who shall be a third party
beneficiary of the rights of the Company hereunder.
[The remainder of this page has been intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date first written above.
BNCM ACQUISITION CO.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address: ▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
Address: 34 Versailles
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇ ▇▇▇▇▇▇
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▇▇ ▇▇▇▇▇▇
Address: ▇▇ ▇▇▇▇▇▇▇ #▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇-Haeghen
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▇▇▇▇ ▇▇▇▇▇▇-Haeghen
Address: ▇▇▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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SPOUSAL CONSENT
Each of the undersigned hereby acknowledges that he or she has read
the foregoing Management Stock Purchase Agreement, dated as of February 3, 2000
(the "Agreement"), and knows the contents thereof. Each of the undersigned is
aware that pursuant to the Agreement, each Purchaser (as defined in the
Agreement) is exchanging shares of common stock of BNC Mortgage, Inc. (including
any interest that the undersigned may have in such shares (marital or
otherwise), if any, which would be equivalent to a spousal interest by virtue of
the undersigned's relationship with a Purchaser) for shares of common stock of
BNCM Acquisition Co., a Delaware corporation, and the undersigned hereby
consents to such exchange and to be bound by each and every provision of the
Agreement.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇ ▇▇▇▇▇▇ as Attorney-In-Fact
for ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name:
------------------------------
Name:
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SCHEDULE 1
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NUMBER OF SHARES OF NUMBER OF PURCHASER'S
PURCHASER COMMON STOCK CONTRIBUTED SHARES
--------- ------------ ------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 240,000 200,000
▇▇▇▇▇ ▇. ▇▇▇▇▇ 9,000 7,500
▇▇ ▇▇▇▇▇▇ 18,000 15,000
▇▇▇▇ ▇▇▇▇▇▇-Haeghen 18,000 15,000
▇▇▇▇▇▇ ▇. ▇▇▇▇ 6,000 5,000
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 9,000 7,500
------- -------
Total 300,000 250,000
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