(99.3) Exhibit C to Schedule 13D
Dated November 9, 1995.
STOCK PURCHASE AGREEMENT
_______________, 1995
TABLE OF CONTENTS
1. PURCHASE AND SALE OF SHARES
2
1.1 Agreement to Purchase and Sell
2
1.2 Closing
2
1.3 Purchase Price
2
2. REPRESENTATIONS AND WARRANTIES OF SELLER
3
2.1 Organization/Good Standing
3
2.2 Authority
3
2.3 Binding Obligation of Seller
3
2.4 Title to the Shares
3
2.5 No Preemptive or Other Rights
3
2.6 Compliance
3
2.7 Subsidiaries
4
2.8 Brokers and Finders
4
2.9 Proxy Statement/Schedule 13(D)
4
2.10 Permits
4
2.11 Litigation
5
2.12 Accuracy of Information
5
2.13 Investment Intent
5
2.14 Reliance Upon Seller's Representations
5
2.15 Receipt of Information
5
2.16 Restricted Securities
6
2.17 Investment Experience
6
2.18 Accredited Investor
6
2.19 Legend on Note
7
3. REPRESENTATIONS AND WARRANTIES OF PURCHASER
8
3.1 Organization/Good Standing
8
3.2 Authority
8
3.3 Binding Obligation of Purchaser
8
3.4 Compliance
8
3.5 Subsidiaries
9
3.6 Brokers and Finders
9
3.7 Proxy Statement/Schedule 13(D)
9
3.8 Permits
9
3.9 Litigation
9
3.10 Accuracy of Information
9
4. COVENANTS OF SELLER
10
4.1 Negative Covenants
10
4.2 Compliance, Consents and Approvals
10
4.3 Negotiations
10
5. COVENANTS OF PURCHASER
11
5.1 Negative Covenants
11
5.2 Compliance, Consents and Approvals
11
6. CONFIDENTIALITY
11
7. CONDITIONS OF CLOSE WITH RESPECT TO SELLER
11
7.1 Representations, Warranties and Covenants of
Purchaser 11
7.2 Obligations and Conditions of Purchaser
12
7.3 Consents and Approvals/Qualifications
12
7.4 No Violation of Orders, Etc.
12
7.5 Purchase Price
12
8. CONDITIONS OF CLOSE WITH RESPECT TO PURCHASER
12
8.1 Representations, Warranties and Covenants of Seller
12
8.2 Obligations and Conditions of Seller
12
8.3 Consents and Approvals/Qualifications
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12
8.4 Proceedings and Documents
13
8.5 No Violation of Orders, Etc.
13
8.6 Consummation of Plan of Merger
13
8.7 Elements of Financing
13
8.8 Approval of Big O ESOP
13
8.9 Certificate of Good Standing
14
8.10 Approval by Board of Directors of Company
14
8.11 Shareholder Approval
14
9. INDEMNIFICATION
14
9.1 Indemnification By Seller
14
9.2 Indemnification By Purchaser
14
9.3 Notice of Asserted Liability
14
9.4 Survival
15
10. MISCELLANEOUS PROVISIONS
15
10.1 Survival of Representations, Covenants and
Warranties 15
10.2 Successors and Assigns
15
10.3 Governing Law
15
10.4 Counterparts
15
10.5 Expenses
15
10.6 Notices
15
10.7 Entire Agreement
16
10.8 Waivers, Amendments and Remedies
16
10.9 Severability
17
10.10 Headings/Recitals/Exhibits
17
10.11 Knowledge
17
10.12 Necessary Action
17
10.13 Time
17
10.14 Attorneys' Fees
17
10.15 California Corporate Securities Laws
17
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made as of
__________, 1995,
between
___________________________________________________________
("Seller"),
and Big O Dealers, L.P., a California limited partnership to be
formed
("Purchaser").
RECITALS
A. Seller owns and holds
________________________________________
(_______) shares of common stock (the "Shares") of the Big O
Tires, Inc., a
Nevada corporation ("Company"), par value ten cents ($.10) per
share, which
Shares represent approximately ____________________ percent
(_____%) of all the
issued and outstanding shares of common stock of Company.
X. Xxxxxxxxx has elected to participate in the possible
acquisition of
Company by and through an entity whose principals may (subject to
certain
conditions precedent, as shall hereinafter be set forth) be
comprised of certain
members of the Company's current senior management ("Big O
Management"), certain
participants in the Company's employee stock ownership plan ("Big
O ESOP"), and
Purchaser (collectively, the "Holding Company"). Purchaser is
required to make
an equity contribution to the Holding Company in exchange for the
issuance of
shares of stock of the Holding Company. In order to make such
equity
contribution, Purchaser is intending to borrow funds from various
lending
sources ("Equity Financing") including acquiring shares of
Company stock by way
of giving a secured promissory note to certain existing
shareholders of the
Company and rolling over such shares of Company stock into the
Holding Company.
In connection with the foregoing, Purchaser desires, upon the
occurrence,
fulfillment and satisfaction of certain conditions precedent as
shall
hereinafter be set forth, to purchase and acquire the Shares.
The Holding
Company has entered into an Agreement and Plan of Merger with the
Company a copy
of which attached hereto as EXHIBIT A (the "Merger Agreement").
C. Each limited partner of Purchaser that owns one or
more duly
franchised Big O Tire retail store (a "Dealer") is required to
execute a
purchase commitment agreement with the Company whereby each such
Dealer agrees
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to purchase a minimum number of tire units from the Company for a
six and one
quarter (6.25) year period commencing as of the date of the
consummation of the
Merger pursuant to the Merger Agreement (the "Purchase
Commitment"). In
connection therewith, during the term of the Purchase Commitment,
each such
Dealer is required to make a mandatory additional capital
contribution to
purchase equal to One Dollar ($1.00) for each tire unit purchased
from Company
(the "Tire Contribution").
D. Subject to the terms an conditions as shall
hereinafter be set
forth, Xxxxxx is willing to transfer and convey the Shares to
Purchaser.
NOW, THEREFORE, the parties hereto hereby agree as follows:
AGREEMENT
I. PURCHASE AND SALE OF SHARES.
1.1 AGREEMENT TO PURCHASE AND SELL. On the "Closing
Date" (as defined
in SECTION 1.2 below), and upon the terms and subject to each and
every
condition precedent set forth in this Agreement, Seller shall
sell, assign,
transfer, convey and deliver the Shares to Purchaser or its
designee and
Purchaser shall purchase, acquire and accept the Shares from
Seller.
1.2 Seller and Purchaser intend that the "Closing Date"
of the purchase
and sale of the Shares shall take place at the Offices of Xxxxxx,
Xxxx &
Xxxxxxxx, 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx,
00000, on the
date upon which the plan of merger pursuant to the terms of the
Merger Agreement
shall have been fully and completely consummated or at such other
time, place,
and date as the parties hereto shall agree in writing ("Closing
Date").
Provided further, it is expressly understood and agreed by Seller
and Purchaser
that the Closing Date shall not occur unless and until (1) the
plan of merger
pursuant to the Merger Agreement is fully and completely
consummated and (2)
each and every condition precedent set forth in SECTIONS 7 and 8
of this
Agreement shall have been satisfied and fulfilled or waived by
the party who
holds such waiver right. On the Closing Date, Seller shall
transfer and convey
to the Purchaser the Shares.
In the event the Closing Date does not occur on or before
February 28,
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1996, and the parties have not otherwise agreed in writing to
extend the Closing
Date, this Agreement shall be null and void and have no further
force and
effect, except that the provisions of SECTIONS 6, 9, and 10 shall
survive such
termination. Provided that, to the extent any provision of this
Agreement is
required to survive for purposes of the indemnification
obligations of each
party to the other pursuant to the provisions of SECTION 9
hereof, such
provisions shall survive such termination. Provided further,
such termination
shall not relieve any party of its liability for any
misrepresentation, default
or breach of this Agreement.
1.3 Purchase Price. The Purchase Price for the Shares
("Purchase
Price") shall be the sum of
____________________________________________ Dollars
($_________) (which represents
________________________________________
(_______) Shares at Sixteen and 50/100 Dollars ($16.50 per Share)
which shall be
paid by Purchaser to Seller at the Closing Date as follows:
[1.3.1 Purchaser shall pay to Seller in cash
or equivalent,
an amount equal to _______________________ Dollars ($__________)
(the "Cash
Portion"), which Cash Portion shall, at the sole election of
Purchaser be paid
(1) as part of the "Merger Consideration" (as such term is
defined in Section
1.5(a) of the Merger Agreement) or (2) by Purchaser
simultaneously with the
consummation of the plan of merger (as specified in Section 1.3
of the Merger
Agreement).
1.3.2 The balance of the Purchase Price, equal
to the sum
____________________________ Dollars ($________) shall be paid
pursuant to the
terms of a secured promissory note in the form attached hereto as
EXHIBIT B (the
"Note"). The Note shall be fully amortized over a six (6)-year
period,
commencing immediately following the Closing Date. Interest on
the unpaid
principal shall bear interest at the rate of _____ percent
(___%) per annum,
and the Note shall be payable in seventy-two (72) equal monthly
installments
over the six (6)-year amortized term commencing on the first day
of the month
following the Closing Date and on the first day of each and every
month
thereafter during the amortized period. The Note shall be
secured by Purchaser
granting Seller a security interest in that portion of
Purchaser's shareholdings
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in the Holding Company in the same ratio as the total sum of the
Note bears to
the total of Purchaser's Equity Financing pursuant to the terms
and provisions
of that certain Security and Pledge Agreement in the form
attached hereto as
EXHIBIT C; and by Purchaser assigning as collateral that portion
of the
aggregate of the Dealers' Purchase Commitments in the same ratio
as the total
sum of the Note bears to the total of Purchaser's Equity
Financing. Purchaser
will take all necessary steps to perfect the security interest as
granted and
assign as collateral said portion of the Purchase Commitments.
2. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby
represents and
warrants to Purchaser that each and every statement contained in
this SECTION 2
is correct an complete as of the date of this Agreement and will
be correct and
complete as of the Closing Date.
2.1 ORGANIZATION/GOOD STANDING. [IF AN ENTITY: Seller
is a
______________, duly organized, validly existing and in good
standing under the
laws of the State of __________________, has all requisite
partnership/corporate
power to own and operate its properties and assets and to carry
on its business
as it is now being conducted.] Seller has the full right, power
and authority
and all action has been taken as shall be necessary and required
to consummate
the transactions contemplated hereby.
2.2 AUTHORITY. Seller, or if not Seller, the person
who has signed
this document on behalf of Seller, has the full power, authority
and capacity to
sign and deliver this Agreement and to take all necessary action
on behalf of
Seller as shall be necessary and required to consummate the
transactions
contemplated hereby.
2.3 BINDING OBLIGATION OF SELLER. This Agreement
constitutes the
legally binding obligation of Seller in accordance with the terms
and provisions
hereof, subject as to its enforceability to limitations imposed
by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating
to or effecting
creditors' rights, generally and to the general principals of
equity.
2.4 TITLE TO THE SHARES. Seller owns and holds the
Shares beneficially
and of record, free and clear of any liens, claims, encumbrances
or restrictions
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of any kind or nature whatsoever and, upon delivery of and
payment of the
Purchase Price for the Shares as herein provided, Seller shall
convey to
Purchaser valid title thereto, free and clear of any liens,
claims, security
interests, encumbrances or restrictions of any nature or
description.
2.5 NO PREEMPTIVE OR OTHER RIGHTS. No person has any
right of first
refusal, any preemptive or other rights and there are no rights
or restrictions
under the terms and provision of any agreement to which Seller is
subject or
otherwise a party which would prohibit, preclude or otherwise
affect the sale
and transfer of the Shares to Purchaser as contemplated by the
terms and
provisions of this Agreement.
2.6 COMPLIANCE. Neither the execution and delivery of
this Agreement
by Seller nor the consummation of the transactions contemplated
hereby, nor
compliance by Seller with respect to any of the provisions hereof
will:
(1) violate, conflict with or result in the breach of any
provision of, or
constitute a default (or an event which with notice or lapse of
time are both
would constitute a default) under, or result in the termination
of, or
accelerate the performance by, or result in a right of
termination or
acceleration under, or result in a creation of any liens,
security interest,
charge or encumbrance upon any of the properties or assets of
Seller, under any
of the terms or provisions of [(i) the (partnership agreement)
(articles of
incorporation or bylaws) of Seller or] (ii) any material note,
bond, mortgage,
indenture, deed of trust, license, lease agreement, executory
contract or
arrangement or other instrument or obligation to which Seller is
a party or to
which it or any of its properties or assets may be otherwise
subject or bound;
or (2) subject to Seller's obligations to take all necessary
steps to comply
with the statutes or regulations referred to in the last sentence
of this
paragraph, violate any judgment, ruling, writ, injunction,
decree, statute, rule
or regulation applicable to Seller, or any of its respective
properties or
assets. Other than in connection with Seller's obligation to
comply with the
provisions of the Securities Exchange Act of 1934, as amended, or
any similar
successor, federal statute and the rules and regulations
thereunder, all as the
same, shall be in effect from time-to-time ("Exchange Act"), the
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Securities Act
of 1933, as amended, or any similar successor federal statute and
the rules and
regulations thereunder, all as the same shall be in effect from
time-to-time
("Securities Act"), the "take-over" or "blue sky" laws of the
various states,
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Acts of 1976 and the
rules and
regulations thereunder ("Xxxx-Xxxxx-Xxxxxx Act") and any required
foreign
regulatory approvals, no notice to, filing with, or
authorization, consent or
approval of any domestic or foreign public body or authority is
necessary for
the consummation by Seller of the transactions contemplated by
this Agreement.
2.7 SUBSIDIARIES. Seller does not own or control,
directly or
indirectly, any interest in any other corporation, association,
or other
business entity. Seller is not a participant in any joint
venture, partnership,
or similar arrangement.
2.8 BROKERS AND FINDERS. Xxxxxx has not engaged any
broker, finder or
investment banker in connection with this Agreement or the
transactions
contemplated hereby.
2.9 PROXY STATEMENT/SCHEDULE 13(D). None of the
information supplied
or to be supplied by Seller or any of its agents, representatives
or affiliates
for inclusion, or included or incorporated by reference in (a)
any proxy
statements filed by the Company with the Securities and Exchange
Commission (the
"Commission") or any amendment or supplement thereto, (b) any
Schedule 13(D) or
any amendment or supplement thereto filed by Seller, Purchaser,
the Holding
Company or Company, or any of its agents, representatives or
affiliates, or
(c) any other documents to be filed with the Commission, or any
other regulatory
agency in connection with the transactions contemplated hereby by
Seller,
Purchaser, the Holding Company or Company, or any of its agents,
representatives
or affiliates, will, insofar as such Schedule 13(D) and documents
relate to
Seller, its affiliates, agents and representatives, at the
respective time such
Schedule 13(D) and documents are filed, be false or misleading
with respect to
any material fact, or omit to state any material fact necessary
in order to make
the statements therein, at the time and in light of the
circumstances under
which they were made, not false or misleading. The Schedule
13(D) and any
- 9 -
related documents required in connection with the transactions
contemplated
hereunder, will comply as to form and all material respects with
the
requirements of law insofar as such Schedule 13(D) and documents
relate to
Seller, its affiliates, agents and representatives.
2.10 PERMITS. Seller has all franchises, permits,
licenses and any
similar authority necessary for the conduct of its business as
now being
conducted by it, the lack of which could materially and adversely
effect
Seller's ability to perform its obligations under this Agreement;
and believes
it can obtain, without undue burden or expense, any similar
authority. Seller
is not in default under in any material respect under any such
franchises,
permits, licenses or similar authority.
2.11 LITIGATION. There is no suit, action, proceeding
or investigation
pending or currently threatened against Seller or any of its
affiliates, agents
or representatives that questions the validity of this Agreement
or any
documents, instruments or ancillary agreements in connection
therewith, or the
right of Seller to sell and convey the Shares and enter into such
agreements or
to consummate the transactions contemplated hereby or thereby, or
that might
result, either individually or in the aggregate in any material
adverse change
in the assets, business or property, prospects or financial
condition of Seller,
or in any material change in the current equity ownership of
Seller. Seller is
not a party, or to the best of its knowledge, named in any order,
writ,
injunction, judgment, or decree of any court, government agency
or
instrumentality. There is no action, suit or proceeding by
Seller currently
pending or that Seller currently intends to initiate.
2.12 ACCURACY OF INFORMATION. Except to the extent of
any subsequent
correction or supplement with respect thereto prior to the date
hereof, the
written statements, certificates, schedules, lists or any other
written
information furnished by or on behalf of Seller to Purchaser in
connection with
this Agreement, when considered as a whole, do not contain and
will not contain
any untrue statement of any material fact; and do not omit or
will not omit to
state a material fact necessary in order to make the statements
herein or
therein in light of the circumstances in which they were made,
not misleading.
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Each document delivered by Seller to Purchaser is a true and
complete copy of
such document, unmodified except by another document delivered to
Purchaser.
Notwithstanding the foregoing, a mere inclusion on any particular
items of
information or statement of fact and any such written information
furnished by
or on behalf of Seller in connection with this Agreement, even if
coupled with a
representation or warranty to the effect that such written
information is
inclusive of all material information or statements of fact with
respect to the
subject matter thereof, shall not, without more, give rise to any
implication or
constitute any admission that such particular items or statements
are material.
Provided, however, Xxxxxx agrees to disclose to Purchaser any
such material
facts and information with respect to the foregoing within its
knowledge.
2.13 INVESTMENT INTENT. With respect to the Note being
given by
Purchaser to Seller as [partial] consideration for the Purchase
Price, Seller
hereby acknowledges, confirms and represents that in accepting
the Note as
[partial] consideration for payment of the Purchase Price and for
payment of the
Reimbursement, the Note is being acquired for investment for
Seller's own
account, not as a nominee or agent, and not with a view to the
resale or
distribution of any part thereof and that Seller has no present
intention of
selling, assigning, transferring, conveying or granting any
participation in or
otherwise distributing the Note. Seller further acknowledges and
confirms that
it does not have any contract, undertaking, agreement or other
arrangement with
any person to sell, transfer, assign or grant participation to
any such person
or to any third party with respect to the Note.
2.14 RELIANCE UPON SELLER'S REPRESENTATIONS. Seller
acknowledges and
understands that the Note is not being registered under the
Securities Act on
the ground that the sale and transfer provided for in this
Agreement with
respect to the Note and the issuance of the Note hereunder is
exempt from
registration under the Securities Act pursuant to Section 4(2)
thereof and that
the Purchaser's reliance on such exemption is predicated on
Seller's
representations as set forth herein.
2.15 RECEIPT OF INFORMATION. Seller believes that it
has received all
of the information it considers necessary or appropriate for
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deciding whether to
accept the Note as partial consideration for the Purchase Price.
Seller further
represents that it has had an opportunity to ask questions,
receive answers and
information from the Purchaser regarding the business, assets and
properties,
prospects and financial condition of Purchaser and to obtain
additional
information (to the extent Purchaser possessed such information
or could acquire
it without unreasonable effort or expense) necessary to verify
the accuracy of
any information furnished to Seller or to which Seller had
access. The
foregoing, however, does not limit or modify the representations
and warranties
of Purchaser provided in SECTION 3 of this Agreement, nor the
right of Seller to
rely upon such representations and warranties.
2.16 RESTRICTED SECURITIES. Seller acknowledges and
understands that
in accepting the Note as [partial] consideration for the Purchase
Price, the
Note is characterized as "Restricted Securities" under applicable
Federal
securities laws, inasmuch as it is being acquired from Purchaser
in a
transaction not involving a public offering and that under such
laws and
applicable regulations, such securities may be sold without
registration under
the Securities Act, only in limited circumstances. In this
connection, Seller
represents that it is familiar with Securities Exchange
Commission Rule 144, as
promulgated by the Commission under the Securities Act as such
Rule 144 may be
amended from time to time or any similar successor rule that may
be promulgated
by the Commission, and understands the resale limitations imposed
thereby and by
the Securities Act.
2.17 INVESTMENT EXPERIENCE. Seller represents that it
is experienced
in evaluating and investing in securities of companies and
acknowledges that it
is able to fend for itself, can bear the economic risk of its
investment and has
such knowledge and experience in financial and business matters
that it is
capable of evaluating the merits and risks of the acceptance of
the Note as
partial consideration for the Purchase Price. Seller further
represents that it
has not been organized for the purpose of entering into this
transaction or
otherwise agreeing to the terms of the purchase and sale of the
Shares pursuant
to the terms, conditions and provisions of this Agreement,
without limitation,
accepting the Note as partial consideration for the Purchase
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Price.
2.18 ACCREDITED INVESTOR.
2.18.1 The term "Accredited Investor" as defined in
Rule 501(a) of
Regulation D of the Securities Act means:
(a) a person or entity who is a general
partner, director or
executive officer and/or executive officer, director or general
partner of the
general partner of Purchaser;
(b) any bank as defined in Section 3(a)(2) of
the Securities
Act or any savings and loan association or other institution as
defined in
Section 3(a)(5)(A) of the Securities Act, whether acting in its
individual or
fiduciary capacity, any broker or dealer register pursuant to
Section 15 of the
Exchange Act; any insurance company as defined in Section 2(13)
of the
Securities Act; any investment company registered under the
Investment Company
Act of 1940 or a business development company as defined in
Section 2(a)(48) of
that Act; any Small Business Investment Company licensed by the
U.S. Small
Business Administration under Section 301(c) or (d) of the Small
Business
Investment Act of 1958, any plan established and maintained by a
state, its
political subdivisions, or any agency or instrumentality of a
state or its
political subdivisions, for the benefit of its employees, if such
plan has total
assets in excess of Five Million Dollars ($5,000,000); any
employee benefit plan
within the meaning of Title I of the Employee Retirement Income
Security Act of
1974, if the investment decision is made by a plan fiduciary, as
defined in
Section 3(21) of such Act, which is either a bank, savings and
loan association,
insurance company or registered investment advisor, or if the
employee benefit
plan has total assets in excess of Five Million Dollars
($5,000,000), or if a
self-directed plan, with investment decisions made solely by
persons that are
Accredited Investors;
(c) any private business development company
as defined in
Section 202(a)(22) of the Investment Advisors Act of 1940;
(d) any organizations described in Section
501(c)(3) of the
Internal Revenue Code, corporation, Massachusetts or similar
business trust or
partnership not formed for the specific purposes of acquiring the
securities
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offered, with total assets in excess of Five Million Dollars
($5,000,000);
(e) any natural person who individual net
worth, or joint net
worth with that persons spouse at the time of its purchase
exceeds One Million
Dollars ($1,000,000);
(f) any natural person who had an individual
income in excess
of Two Hundred Thousand Dollars ($200,000) in each of the two
most recent years
or joint income with that person's spouse in excess of Three
Hundred Thousand
Dollars ($300,000) in each of those years and has a reasonable
expectation of
reaching the same income level in the current year;
(g) any trust with total assets in excess of
Five Million
Dollars ($5,000,000), not formed for the specific purposes of
acquiring the
securities offered, whose purchase is directed by a person who
has such
knowledge and experience in such financial and business matters,
that he/she is
capable of evaluating the merits and risks of the prospective
investment; or
(h) any entity in which all the equity owners
are Accredited
Investors.
As used in SECTION 2.18.1, the term "net worth" means
the excess of
total assets over total liabilities. For the purpose of
determining the
person's net worth, the principal residence owned by an
individual should be
valued at the fair market value, including the costs of
improvements, net of
current encumbrances. As used in this SECTION 2.18.1, "income"
means actual
economic income, which may differ from adjusted gross income for
income tax
purposes. Accordingly, Seller should consider whether it should
add any or all
of the following items to its adjusted gross income for income
tax purposes in
order to reflect more accurately its actual economic income: any
amounts
attributable to tax exempt income received, losses claimed as a
limited partner
in any limited partnership, deductions claimed for depletion,
contributions to
an IRA or Xxxxx Retirement Plan and alimony payments.
2.18.2 Seller further represents to Purchaser that
it is an
Accredited Investor.
2.19 LEGEND ON NOTE. It is acknowledged, understood and
agreed that
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the Note shall bear the following legends.
(a) "THESE SECURITIES HAVE NOT BEEN REGISTERED
UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED,
PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SUCH
ACT, OR UNLESS
PURCHASER HAS RECEIVED AN OPINION OF COUNSEL OR OTHER EVIDENCE,
SATISFACTORY TO
PURCHASER AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT
REQUIRED, OR UNLESS
SOLD PURSUANT TO RULE 144 OF SUCH ACT"; and
(b) Any legend required by the laws of the
State of
California or any other applicable state laws.
3. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser
hereby represents
and warrants to Seller that each and every statement contained in
this SECTION 3
is correct and complete as of the date of this Agreement and will
be correct and
complete as of the Closing Date.
3.1 ORGANIZATION/GOOD STANDING. Purchaser is a
California limited
partnership, duly organized, validly existing and in good
standing under the
laws of the State of California, has all requisite partnership
power to own and
operate its properties and assets and to carry on its business as
it is now
being conducted. Purchaser has the full power and authority and
all partnership
and related action has been taken as shall be necessary and
required to
consummate the transaction contemplated hereby.
3.2 AUTHORITY. Big O Tire Dealers of America, a
California
nonprofit mutual benefit corporation, as the general partner of
Purchaser, has
the full power, authority and capacity to sign and deliver this
Agreement and to
otherwise take all action on behalf of Purchaser as necessary and
required to
consummate the transactions contemplated hereby.
3.3 BINDING OBLIGATION OF PURCHASER. This Agreement
constitutes the
legally binding obligation of Purchaser in accordance with the
terms and
provisions hereof, subject as to its enforceability to
limitations imposed by
bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to
or effecting creditors' rights, generally and to the general
principals of
equity.
3.4 COMPLIANCE. Neither the execution and delivery of
this Agreement
- 15 -
by Purchaser nor the consummation of the transactions
contemplated hereby, nor
compliance by Purchaser with respect to any of the provisions
hereof will:
(1) violate, conflict with or result in the breach of any
provision of, or
constitute a default (or an event which with notice or lapse of
time are both
would constitute a default) under, or result in the termination
of, or
accelerate the performance by, or result in a right of
termination or
acceleration under, or result in a creation of any liens,
security interest,
charge or encumbrance upon any of the properties or assets of
Purchaser, under
any of the terms or provisions of (i) the partnership agreement
of Purchaser or
(ii) any material note, bond, mortgage, indenture, deed of trust,
license, lease
agreement, executory contract or arrangement or other instrument
or obligation
to which Purchaser is a party or to which it or any of its
properties or assets
may be otherwise subject or bound; or (2) subject to Purchaser's
obligation to
take all necessary steps to comply with the statutes or
regulations referred to
in the last sentence of this paragraph, violate any judgment,
ruling, writ,
injunction, decree, statute, rule or regulation applicable to
Purchaser, or any
of its respective properties or assets. Other than in connection
with
Purchaser's obligation to comply with the provisions of the
Exchange Act, the
Securities Act, the "take-over" or "blue sky" laws of the various
states, the
Xxxx-Xxxxx-Xxxxxx Act and any required foreign regulatory
approvals, no notice
to, filing with, or authorization, consent or approval of any
domestic or
foreign public body or authority is necessary for the
consummation by Purchaser
of the transactions contemplated by this Agreement.
3.5 SUBSIDIARIES. Purchaser does not own or control,
directly or
indirectly, any interest in any other corporation, association,
or other
business entity; except that some or all of the limited partners
of Purchaser
are members of the general partner of Purchaser which is a trade
organization
comprised of duly franchised retail Big O Tire Store Dealers and
formed for the
purpose of protecting and advancing their common business
interests on a united
basis. Purchaser is not a participant in any joint venture,
partnership, or
similar arrangement.
3.6 BROKERS AND FINDERS. Purchaser has not engaged any
broker, finder
- 16 -
or investment banker in connection with this Agreement or the
transactions
contemplated hereby, except for the engagement of KPMG Peat
Marwick LLP ("KPMG")
pursuant to those certain letter agreements dated October 18, and
19, 1994, and
May 11, 1995.
3.7 PROXY STATEMENT/SCHEDULE 13(D). None of the
information supplied
or to be supplied by Purchaser or any of its agents,
representatives or
affiliates for inclusion, or included or incorporated by
reference in (a) any
(if required) proxy statements filed by the Company with the
Commission or any
amendment or supplement thereto, (b) any Schedule 13(D) or any
amendment or
supplement thereto by Purchaser, Seller, the Holding Company or
the Company, or
any of its agents, representatives or affiliates, or (c) any
other documents to
be filed with the Commission, or any other regulatory agency in
connection with
the transactions contemplated hereby by Seller, Purchaser, the
Holding Company
or the Company, will, insofar as such Schedule 13(D) and
documents relate to
Purchaser, its affiliates agents and representatives, at the
respective time
such Schedule 13(D) and documents are filed, be false or
misleading with respect
to any material fact, or omit to state any material fact
necessary in order to
make the statements therein, at the time and in light of the
circumstances under
which they were made, not false or misleading. The Schedule
13(D) and any
related documents required in connection with the transactions
contemplated
hereunder, will comply as to form and all material respects with
the
requirements of law insofar as such Schedule 13(D) and documents
relate to
Purchaser, its affiliates, agents and representatives.
3.8 PERMITS. Purchaser has all franchises, permits,
licenses and any
similar authority necessary for the conduct of its business as
now being
conducted by it, lack of which could materially and adversely
effect Purchaser's
ability to perform its obligations under this Agreement and
believes it can, if
required in order to perform its obligations hereunder, obtain,
without undue
burden or expense, any similar authority. Purchaser is not in
default under in
any material respect under any such franchises, permits, licenses
or similar
authority.
3.9 LITIGATION. There is no suit, action, proceeding or
investigation
- 17 -
pending or currently threatened against Purchaser or any of its
affiliates,
agents or representatives that questions the validity of this
Agreement or any
documents, instruments or ancillary agreements in connection
therewith, or the
right of Purchaser to enter into such agreements or to consummate
the
transactions contemplated hereby or thereby, or that might
result, either
individually or in the aggregate in any material adverse change
in the assets,
business or properties, prospects or financial condition of
Purchaser, or in any
material change in the current equity ownership of Purchaser.
Purchaser is not
a party, or to the best of its knowledge, named in any order,
writ, injunction,
judgment, or decree of any court, government agency or
instrumentality. There
is no action, suit or proceeding by Purchaser currently pending
or that
Purchaser currently intends to initiate.
3.10 ACCURACY OF INFORMATION. Except to the extent of
any subsequent
correction or supplement with respect thereto prior to the date
hereof, the
written statements, certificates, schedules, lists or any other
written
information furnished by or on behalf of Purchaser to Seller in
connection with
this Agreement, when considered as a whole, do not contain and
will not contain
any untrue statement of any material fact; and do not omit or
will not omit to
state a material fact necessary in order to make the statements
herein or
therein in light of the circumstances in which they were made,
not misleading.
Each document delivered by Purchaser to Seller is a true and
complete copy of
such document, unmodified except by another document delivered to
Seller.
Notwithstanding the foregoing, a mere inclusion on any particular
items of
information or statement of fact and any such written information
furnished by
or on behalf of Purchaser in connection with this Agreement, even
if coupled
with a representation or warranty to the effect that such written
information is
inclusive of all material information or statements of fact with
respect to the
subject matter thereof, shall not, without more, give rise to any
implication or
constitute any admission that such particular items or statements
are material.
Provided, however, Xxxxxxxxx agrees to disclose to Seller any
such material
facts and information with respect to the foregoing within its
knowledge.
4. COVENANTS OF SELLER. Seller hereby covenants and agrees
- 18 -
as follows:
4.1 NEGATIVE COVENANTS. During the period commencing as
of the date of
this Agreement and ending on the Closing Date, except as
otherwise expressly
provided herein, Seller shall not (1) issue, grant, sell or enter
into any
options, warrants, agreements, conversion rights, rights of first
refusal,
preemptive rights, or other rights to subscribe for, purchase or
otherwise
acquire the Shares; (2) create any material lien, charge,
security interest,
claim or encumbrance upon any of the Shares; (3) deed, sell,
transfer, assign,
license or otherwise dispose of any of the Shares; or (4)
otherwise take any
action which would materially effect its ability to perform its
obligations
under this Agreement.
4.2 COMPLIANCE, CONSENTS AND APPROVALS. Seller shall
(1) comply with
and obtain all necessary consents, waivers, authorizations and
approvals of all
governmental and regulatory authorities (including, without
limitation, such
compliances, consents, waivers, authorizations and approvals as
necessary or
required under the Exchange Act, the Securities Act, the "take
over" or "blue
sky" laws of the various states and the Xxxx-Xxxxx-Xxxxxx Act)
and of all other
persons, firms, partnerships, or corporations required in
connection with the
execution, delivery and performance by Seller of each and every
term, condition
and provision of this Agreement; and (2) diligently assist and
cooperate with
Purchaser in preparing and filing all documents required to be
submitted by
Purchaser to any governmental or regulatory authority in
connection with such
transactions (which assistance and cooperation shall include,
without
limitation, timely furnishing to Purchaser all information
concerning Seller
which, in the reasonable opinion of counsel to Purchaser, is
required to be
included into the documents) and in obtaining any governmental
and regulatory
authorities, consents, waivers, authorizations or approvals which
may be
required to be obtained by Purchaser in connection with the
transactions
contemplated by this Agreement.
4.3 NEGOTIATIONS. Following the execution of this
Agreement by all
parties hereto, Seller nor any one acting on behalf of Seller,
shall, directly
or indirectly, encourage, solicit, engage in discussions or
negotiations with,
- 19 -
or provide any information to any person, firm, or other entity
or group (other
than Purchaser or its representatives) concerning any sale,
assignment or
transfer of the Shares or other similar transaction involving the
Shares.
Seller agrees to promptly communicate to Purchaser any inquiries
or
communications concerning any transactions which it may receive
or which it may
become aware of.
5. COVENANTS OF PURCHASER. Purchaser covenants and agrees as
follows:
5.1 NEGATIVE COVENANTS. During the period commencing as
of the date of
this Agreement and ending on the Closing Date, except as
otherwise expressly
provided herein, Purchaser shall take any action which would
materially effect
its ability to perform its obligations under this Agreement.
5.2 COMPLIANCE, CONSENTS AND APPROVALS. Purchaser shall
(1) comply
with and obtain all necessary consents, waivers, authorizations
and approvals of
all governmental and regulatory authorities (including, without
limitation, such
compliances, consents, waivers, authorizations and approvals as
necessary or
required under the Exchange Act, the Securities Act, the "take
over" or "blue
sky" laws of the various states and the Xxxx-Xxxxx-Xxxxxx Act)
and of all other
persons, firms, partnerships or corporations required in
connection with the
execution, delivery and performance by Purchaser of each and
every term,
condition and provision of this Agreement; and (2) diligently
assist and
cooperate with Seller in preparing and filing all documents
required to be
submitted by Seller to any governmental or regulatory authority
in connection
with such transactions (which assistance and cooperation shall
include, without
limitation, timely furnishing to Seller all information
concerning Purchaser
which, in the reasonable opinion of counsel to Seller, is
required to be
included into the documents) and in obtaining any governmental
and regulatory
authorities, consents, waivers, authorizations or approvals which
may be
required to be obtained by Seller in connection with the
transactions
contemplated by this Agreement.
6. CONFIDENTIALITY. Seller and Purchaser acknowledge the
terms and
provisions of the confidentiality letter agreement attached
hereto as EXHIBIT D
(the "Confidentiality Letter Agreement") entered into by and
- 20 -
between Seller and
the general partner of Purchaser, reaffirm same, and agree to be
fully bound
thereby; and further agree that the terms and provisions of this
Agreement shall
be included within the meaning of "Information" as defined in the
Confidentiality Letter Agreement. For purposes of this
Agreement, the term
"Party" under the Confidentiality Letter Agreement shall be
deemed to include
Seller and Purchaser. In connection with the foregoing, Seller
and Purchaser
covenant and agree to treat and hold all Information contained in
this Agreement
and in an exhibit, schedule, instrument, ancillary agreement or
other document
relating hereto, strictly confidential, except as expressly
provided otherwise
in the Confidentiality Letter Agreement; and further covenant and
agree to
consult and confer with each other and each of their respective
counsel prior to
issuing any public announcement or statement with respect to this
Agreement and
the Plan of Merger contemplated by the Merger Agreement and any
other matter
relating to this Agreement.
7. CONDITIONS OF CLOSE WITH RESPECT TO SELLER. All
obligations of Seller
under this Agreement are subject to fulfillment, at or prior to
the Closing Date
of the following conditions, part or all of which may be waived
by Seller only
by written notice to Purchaser on or before the Closing Date.
7.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF
PURCHASER. All
representations, warranties and covenants made by Purchaser in
this Agreement
shall be true, correct and complete on and as of the Closing
Date, the same
effect as those such representations, warranties and covenants
had been made on
and as of the Closing Date.
7.2 OBLIGATIONS AND CONDITIONS OF PURCHASER. Purchaser
shall have
performed and complied with all covenants and obligations
required by it under
this Agreement on or prior to the Closing Date.
7.3 CONSENTS AND APPROVALS/QUALIFICATIONS. All
compliances, consents,
waivers, authorizations, permits, approvals or qualifications of
any
governmental authority or regulatory body of the United States or
of every state
(including, without limitation, such Purchaser compliances,
consents, waivers,
authorizations, approvals and qualifications with respect to the
Exchange Act,
the Securities Act, the "take-over" or "blue sky" laws of the
various states and
- 21 -
the Xxxx-Xxxxx-Xxxxxx Act as specified in SECTION 5.3 hereof)
required in
connection with the execution, delivery and performance of this
Agreement, shall
have been duly obtained and shall be in full force and effect on
the Closing
Date.
7.4 NO VIOLATION OF ORDERS, ETC. There shall not be in
effect on the
Closing Date any statute, rule or regulation to create executive
order,
preliminary or permanent injunction or other order issued,
promulgated or
enacted by any federal, state or local government, or regulatory
authority or
court which declares this Agreement invalid in any respect or
prevents the
consummation of the transactions contemplated hereby; and no
action or
proceeding before any federal, state or local court, or
governmental or
regulatory authority shall be instituted or threatened by any
federal, state or
local government or governmental or regulatory authority or by
any other person,
entity or organization which seeks to prevent or delay the
consummation of the
transactions contemplated by this Agreement (including without
limitation, the
consummation of the proposed plan of merger pursuant to the terms
and provisions
of the Merger Agreement) or which challenges the validity or
enforceability of
this Agreement or any term or provision hereof.
7.5 PURCHASE PRICE. Purchaser shall have delivered to
Seller the
Purchase Price, and all documents and instruments in connection
therewith
including, without limitation, the Note and the Security
Agreement.
8. CONDITIONS OF CLOSE WITH RESPECT TO PURCHASER. All
obligations of
Purchaser under this Agreement are subject to fulfillment, at or
prior to the
Closing Date of the following conditions, part or all of which
may be waived by
Purchaser only by written notice to Seller on or before the
Closing Date.
8.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER.
All
representations and warranties and covenants made by Seller in
this Agreement
shall be true, correct and complete on and as of the Closing
Date, the same
effect as those such representations, warranties and covenants
had been made on
and as of the Closing Date.
8.2 OBLIGATIONS AND CONDITIONS OF SELLER. Seller shall
have performed
- 22 -
and complied with all covenants and obligations required by it
under this
Agreement on or prior to the Closing Date.
8.3 CONSENTS AND APPROVALS/QUALIFICATIONS. All
compliances, consents,
waivers, authorizations, permits, approvals or qualifications of
any
governmental authority or regulatory body of the United States or
of every state
(including, without limitation, such Seller compliances,
consents, waivers,
authorizations, approvals and qualifications with respect to the
Exchange Act,
the Securities Act, the "take-over" or "blue sky" laws of the
various states and
the Xxxx-Xxxxx-Xxxxxx Act as specified in SECTION 4.3 hereof)
required in
connection with the execution, delivery and performance of this
Agreement, shall
have been duly obtained and shall be in full force and effect on
the Closing
Date.
8.4 PROCEEDINGS AND DOCUMENTS. All corporate,
partnership and other
proceedings in connection with the transactions contemplated at
the Closing
(including without limitation, consummation of the proposed plan
of merger
pursuant to the terms of the Merger Agreement) and all documents
incident
thereto, shall be reasonably satisfactory in form and substance
to Purchaser's
counsel, which counsel shall have received all such counterpart
original or
certified or other copies of such documents as he/she may
reasonably request or
require.
8.5 NO VIOLATION OF ORDERS, ETC. There shall not be in
effect on the
Closing Date any statute, rule or regulation to create executive
order,
preliminary or permanent injunction or other order issued,
promulgated or
enacted by any federal, state or local government, or regulatory
authority or
court which declares this Agreement invalid in any respect or
prevents the
consummation of the transactions contemplated hereby; and no
action or
proceeding before any federal, state or local court, or
governmental or
regulatory authority shall be instituted or threatened by any
federal, state or
local government or governmental or regulatory authority or by
any other person,
entity or organization which seeks to prevent or delay the
consummation of the
transactions contemplated by this Agreement (including without
limitation, the
consummation of the proposed plan of merger pursuant to the terms
and provisions
- 23 -
of the Merger Agreement) or which challenges the validity or
enforceability of
this Agreement or any term or provision hereof.
8.6 CONSUMMATION OF PLAN OF MERGER. The consummation of
all
transactions necessary to consummate the plan of merger pursuant
to the terms
and provisions of the Merger Agreement, as amended, including,
without
limitation, the satisfaction of each and every condition
precedent set forth in
Article VI of the Merger Agreement.
8.7 ELEMENTS OF FINANCING. The Holding Company having
obtained
commitments for the required elements of financing in connection
with the merger
transaction contemplated under the terms and provisions of the
Merger Agreement
on terms and conditions satisfactory to the Holding Company in
its sole
discretion, including by way of example the following: (i)
obtaining a
commitment from a lender for the senior facility in the
approximate sum of Forty
Million Dollars ($40,000,000); (ii) obtaining a commitment from a
lender for a
senior subdebt facility in the approximate sum of Ten Million
Dollars
($10,000,000); (iii) Purchaser obtaining financing in the sum of
Five Million
Dollars ($5,000,000) and having arranged to purchase and acquire
shares of
common stock of Company from other existing shareholders on
negotiated terms by
way of promissory notes substantially similar to the Note
contemplated herein
and cash and other property which promissory notes and cash and
other property
(including the Note herein) total in the aggregate the sum of
Five Million
Dollars ($5,000,000) for a total of Ten Million Dollars
($10,000,000); and
(iv) existing lenders, creditors and other obligees of the
Company having agreed
to the financial arrangements contemplated in connection with the
proposed plan
of merger pursuant to the terms and provisions of the Merger
Agreement.
8.8 APPROVAL OF BIG O ESOP. The Big O ESOP shall have
provided its
approval as required by the terms of the governing documents of
the Big O ESOP
and applicable law of the proposed plan of merger contemplated
under the terms
and provisions of the Merger Agreement and the terms, provisions
and conditions
by which the Holding Company shall be formed, structured,
operated and governed,
including, without limitation, having obtained a fairness opinion
and
appropriate approval by the employees of the Company
- 24 -
participating in the Big O
ESOP; and that pursuant to the foregoing, holdings of at least
eighty percent
(80%) of the shares of Common Stock of the Company owned and held
by the Big O
ESOP shall have elected to roll over their existing ESOP account
into investment
in the securities of Holding Company pursuant to the terms and
provisions of the
plan of merger contemplated under the Merger Agreement.
8.9 CERTIFICATE OF GOOD STANDING. Seller shall have
delivered to
Purchaser certificates of partnership and tax good standing and
legal existence
of Seller as of no more than thirty (30) days prior to the
Closing Date from the
Secretary of State of California.
8.10 APPROVAL BY BOARD OF DIRECTORS OF COMPANY. The
Board of Directors
shall have approved the Holding Company's proposed plan of merger
on terms and
conditions satisfactory to the Holding Company, in its sole
discretion.
8.11 SHAREHOLDER APPROVAL. The plan of merger pursuant
to the terms
and conditions of the Merger Agreement shall have been approved
and adopted by
the shareholders of the Company.
9. INDEMNIFICATION.
9.1 INDEMNIFICATION BY SELLER. Seller agrees to and
shall indemnify,
protect, defend and hold harmless Purchaser from and against and
in respect of
any and all claims, losses, damages, costs, expenses,
obligations, charges,
recoveries, and deficiencies, including interest, penalties and
reasonable
attorneys' fees and other related expenses (collectively, the
"Seller Claims")
resulting from or arising out of or relating to any inaccuracy in
or breach of
any representation, warranty, covenant or agreement of Seller
contained in this
Agreement or in any schedule, certificate, exhibit, attachment or
other
instrument furnished or to be furnished by Seller pursuant to the
terms and
provisions of this Agreement.
9.2 INDEMNIFICATION BY PURCHASER. Xxxxxxxxx agrees to
and shall
indemnify, protect, defend and hold harmless Seller from and
against and in
respect of any and all claims, losses, damages, costs, expenses,
obligations,
charges, recoveries, and deficiencies, including interest
penalties and
reasonable attorneys' fees and other related expenses
(collectively, the
- 25 -
"Purchaser Claims") resulting from or arising out of or relating
to any
inaccuracy in or breach of any representation, warranty, covenant
or agreement
of Purchaser contained in this Agreement or in any schedule,
certificate,
exhibit, attachment or other instrument furnished or to be
furnished by
Purchaser pursuant to the terms and provisions of this Agreement.
9.3 NOTICE OF ASSERTED LIABILITY. Promptly after
receipt by any party
hereto ("Indemnitee") of notice of any assertion of any claim
where the
commencement of any action against it in respect of which
Indemnitee or
reimbursement may be sought hereunder (an "Assertion"), such
Indemnitee shall
promptly give written notice (the "Claims Notice") to the other
party obligated
to provide indemnification pursuant to this SECTION 9 (the
"Indemnitor") of the
Assertion, but failure to so notify the Indemnitor shall not
relieve such
Indemnitor of its liability to the Indemnitee hereunder.
Indemnitor shall be
obligated to assume the defense of such Assertion at its own
expense with
counsel chosen by the Indemnitor in reasonably satisfactory to
the Indemnitee.
Notwithstanding that the Indemnitor shall be obligated to assume
the defense of
any Assertion, Indemnitee shall have the right to participate in
the
investigation and defense thereof, with separate counsel chosen
by such
Indemnitee but in such event the fees and expenses of such
counsel shall be paid
by such Indemnitee unless (i) Indemnitor shall agree to pay such
fees and
expenses, (ii) the Indemnitor shall have failed to assume the
defense of such
Assertion and to employ counsel satisfactory to such Indemnitee
or (iii) in the
reasonable judgment of the Indemnitee, based upon the advice of
its counsel, a
potential conflict of interest may exist between the Indemnitor
and the
Indemnitee with respect to such Assertion (in which case, such
Indemnitee
notifies the Indemnitor that such Indemnitee elects to employ
separate counsel
at the Indemnitor's expense, the Indemnitor shall not have the
right to assume
the defense of such Assertion on behalf of such Indemnitee.
Notwithstanding
anything to the contrary in this SECTION 9.3, the Indemnitor
shall not, without
the prior written consent of such Indemnitee, (a) settle or
compromise any
action or consent to the entering of any judgment which does not
include as an
unconditional term thereof the delivery by the claimant or
- 26 -
plaintiff to such
Indemnitee of a duly executed written release of such Indemnitee
from all
liability in respect of such Assertion, which release shall be
satisfactory in
form and substance to counsel to such Indemnitee, or (b) settle
or compromise
any action in a manner that, in the sole judgment of such
Indemnitee or its
counsel, may materially and adversely affect such Indemnitee
other than as a
result of money damages or other money judgments.
9.4 SURVIVAL. The indemnification, protection, defense
and hold
harmless obligations of the parties contained in this SECTION 9
shall survive
the closing or other termination of this Agreement.
10. MISCELLANEOUS PROVISIONS.
10.1 SURVIVAL OF REPRESENTATIONS, COVENANTS AND
WARRANTIES. The
respective representations, covenants and warranties of each of
the parties to
this Agreement shall survive the execution and delivery of this
Agreement, and
the closing or other termination of this Agreement.
10.2 SUCCESSORS AND ASSIGNS. Except as otherwise
provided herein, the
terms and conditions of this Agreement shall inure to the benefit
of and be
binding upon the respective successors and assigns of the parties
hereto.
Provided, however, that nothing contained in this Agreement,
whether express or
implied, is intended to confer upon any party other than the
parties hereto or
their respective successors and assigns any rights, remedies,
obligations or
liabilities under or by reason of this Agreement, except as
expressly provided
in this Agreement.
10.3 GOVERNING LAW. This Agreement shall be governed by
and construed
under the laws of the State of California as applied.
10.4 COUNTERPARTS. This Agreement may be executed in
two or more
counterparts each of which shall be deemed an original, but all
of which
together shall constitute one instrument.
10.5 EXPENSES. Each party shall bear its respective
expenses incurred
in connection with the preparation, execution and performance of
this Agreement
and the transactions contemplated hereby, including, without
limitation, all
fees and expenses of agents, representatives, counsel,
accountants and other
professional advisors.
- 27 -
10.6 NOTICES. Unless otherwise provided, all notices
and other
communications required or permitted under this Agreement shall
be in writing
and shall be mailed by U.S. first-class mail, postage prepaid,
sent by facsimile
or delivered personally by hand or by a nationally recognized
courier addressed
to the party to be notified at the address or facsimile number as
follows, or at
such other address or facsimile number as such party may
designate by ten (10)
days advance notice to the other party:
If to Purchaser: Big O Tire Dealers, L.P.
c/o Xxxxxxx X. Xxxxxx, Esq.
Xxxxxx, Xxxxx, Xxxxx & Xxxx
P.O. Box 2047
Oakland, CA 94604-2047
With copy to: XXXXXX, XXXXX, XXXXX & XXXX
P.O. Box 2047
Oakland, CA 94604-2047
Attn: Xxxxxxx X. Xxxxxx, Esq.
If to Seller: ______________________________
______________________________
______________________________
______________________________
______________________________
With copy to: ______________________________
______________________________
______________________________
______________________________
All such notices and other written communication shall be
effective on the date
of mailing, facsimile transfer or delivery.
10.7 ENTIRE AGREEMENT. This Agreement together with all
schedules,
exhibits, attachments, instruments and documents referred to
herein constitute
the entire agreement among the parties and neither party shall be
liable or
bound to the other party in any manner by any warranties,
representations or
covenants except as specifically set forth herein or therein.
10.8 WAIVERS, AMENDMENTS AND REMEDIES. This Agreement
may be amended
to, preceded, cancelled, renewed or extended, and the terms
hereof may be
waived, only by a written instrument signed by Xxxxxxxxx and
Seller or, in the
case of a waiver, by the party waiving compliance. No delay on
the part of any
party in exercise any right power or privilege hereunder shall
operate as a
waiver thereof; nor shall any waiver on the part of any party of
any such right,
power or privilege, or any single or partial exercise of any such
right, power
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or privilege preclude any further exercise thereof or the
exercise of any other
such right, power or privilege. The rights and remedies herein
provided are
cumulative and are not exclusive in any rights or remedies that
any party may
otherwise have at law or in equity. The rights and remedies of
any party based
upon, arising out of or otherwise in respect of any inaccuracy in
or breach of
any representation, warranty, covenant or agreement contained in
this Agreement
shall in no way be limited by the fact the act, omission,
occurrence or other
state of facts upon which any claim of any such inaccuracy or
breach is based
may also be the subject matter of any other representation,
warranty, covenant
or agreement contained in this Agreement (or in any other
agreement among the
parties herein as to which there is no inaccuracy or breach).
10.9 SEVERABILITY. If one or more provisions of this
Agreement are
held to be unenforceable under applicable law, such provisions
shall be excluded
from this Agreement and the balance of the Agreement shall be
interpreted as if
such provision were so excluded and shall be unenforceable in
accordance with
its terms.
10.10 HEADINGS/RECITALS/EXHIBITS. The section headings
in this
Agreement are solely for convenience of reference and do not
affect the meaning
or interpretation of this Agreement or any term or provision
hereof. The
recitals set forth in the introductory paragraphs hereof and each
exhibit,
schedule or other attachment referred to in this Agreement and
attached hereto
from an integral part of this Agreement are incorporated herein
by this
reference and made a part hereof.
10.11 KNOWLEDGE. Where any representation, warranty or
statement
contained in this Agreement or in any certificate or document
delivered in
connection with this Agreement is expressly qualified to the
knowledge of the
person making such representation, warranty or statement, it
shall mean the
knowledge of such person actually possesses by having made a
reasonable inquiry
as to the matters which are the subject thereof.
10.12 NECESSARY ACTION. Each of the parties will use
its reasonable
efforts to take all actions and to do all things as shall be
necessary, proper
or advisable to consummate and make effective the transactions
contemplated by
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this Agreement.
10.13 TIME. Time is of the essence of this Agreement.
10.14 ATTORNEYS' FEES.
(a) If any action at law is necessary to enforce or
interpret the
terms of this Agreement and all exhibits, schedules, instruments
and documents
referred to herein, the prevailing party shall be entitled to
reasonable
attorneys' fees, costs and disbursements in addition to any other
relief to
which such party may be entitled.
(b) Attorneys' fees incurred by any party to this
Agreement in
enforcing any judgment, order or action brought to resolve any
controversy
arising under this Agreement shall be recoverable by the
prevailing party. Such
rights to recover postjudgment attorneys' fees shall be separate
and distinct
from the right to recover attorneys' fees pursuant to subsection
(a) above. The
provisions of this paragraph 10.14(b) shall be severable from all
provisions of
this Agreement and shall survive any judgment and shall not be
deemed merged
into any judgment.
10.15 CALIFORNIA CORPORATE SECURITIES LAWS. SALE OF THE
SECURITIES
WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED
WITH THE
COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE
ISSUANCE OF SUCH
SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE
CONSIDERATION FOR SUCH
SECURITIES PRIOR TO SUCH QUALIFICATION IS UNLAWFUL. UNLESS THE
SALE OF
SECURITIES IS EXEMPT FROM QUALIFICATION BY SECTION 25100, 25102
OR 25105 OF THE
CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS
AGREEMENT ARE
EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED,
UNLESS THE SALE IS
SO EXEMPT.
IN WITNESS WHEREOF, Seller and Purchaser have caused this
Agreement to be
executed as of the date first above written.
"SELLER" "PURCHASER"
____________________________ BIG O DEALERS, L.P.
By: BIG O TIRE DEALERS OF AMERICA
By__________________________ Its: General Partner
Name:_______________________
Title:______________________
By________________________________
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Xxxxxx Xxxxxxxxxx
Its: President
By____________________________________
Name:_________________________________
Title:__________________________________
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"PURCHASER"
BIG O DEALERS, L.P.
By: BIG O TIRE DEALERS OF AMERICA
Its: General Partner
By____________________________________
Xxxxxx Xxxxxxxxxx
Its: President
- 32 -
EXHIBIT A
MERGER AGREEMENT
EXHIBIT B
NOTE
EXHIBIT C
SECURITY AND PLEDGE AGREEMENT
EXHIBIT D
CONFIDENTIALITY LETTER
STOCK PURCHASE AGREEMENT
______________, 1995
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