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Exhibit 10.45
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement") is entered
into as of June 28, 1996 by and between Reddi Brake Supply Corporation, a
Nevada corporation ("Purchaser"), and Xxxxx X. Xxxxxxx ("Seller").
A. Seller owns 52,000 shares of common stock of Express
Undercar Parts Warehouse of California, Inc. (the "Company") constituting 100%
of the issued and outstanding shares of stock of the Company. All of the stock
of the Company is referred to as the "Shares."
B. Seller wishes to sell the Shares to Purchaser, and
Purchaser desires to purchase the Shares, all on the terms and conditions of
this Agreement.
THEREFORE, the parties agree as follows:
1. PURCHASE AND SALE OF THE SHARES. Subject to the
terms and conditions of this Agreement, at the Closing (as defined below),
Seller shall sell, transfer, convey and deliver to Purchaser the Shares, and
Purchaser shall purchase the Shares, free and clear of all claims, liens,
charges, encumbrances, restrictions on transfer, options and security
interests.
2. PURCHASE PRICE.
2.1 PURCHASE PRICE. The purchase price (the
"Purchase Price") for the Shares shall be an amount (payable in Purchaser's
stock as provided in Section 2.2 below) equal to 1.3 times the "Net Asset
Value" of the Company, as of the close of business on May 31, 1996 (the
"Valuation Date"). The Net Asset Value on such date and the Purchase Price
have been determined as follows:
Assets of the Company at May 31, 1996 Value
------------------------------------- ---------------
Inventory and Miscellaneous Assets $ 1,865,423.63
Accounts Receivable 222,382.18
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Total Fixed Assets $ 2,087,805.81
Accounts Payable & Miscellaneous Liabilities (1,342,067.09)
Bank Loans 0
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Net Asset Value $ 745,738.72
Purchase Price at 130% $ 969,460.33
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2.1.1 GOOD FAITH DEPOSIT. Purchaser has
previously delivered to Seller a good faith cash deposit of $50,000 (the
"Deposit") pursuant to the letter of intent between the parties hereto dated
April 23, 1996 (the "Letter"). At the Closing (as defined in Section 3 below),
the Deposit shall be returned to Purchaser. Notwithstanding the foregoing, if
this Agreement is terminated prior to Closing, the Deposit shall be refunded to
Purchaser.
2.2 MANNER OF PAYMENT. The Purchase Price shall
be paid to Seller at the Closing, as follows:
The Purchase Price shall be paid in shares of
Purchaser's Common Stock determined by dividing the Purchase Price by $1.63,
the deemed value of a share of Common Stock. Such deemed value is the average
between the closing offer and bid prices of the Purchaser's common stock in the
over the counter market on April 16, 1996, the date on which the Purchaser's
Board of Directors approved this transaction, discounted by 10%.
3. CLOSING. The closing (the "Closing") of the
transactions described herein shall take place at 2:00 p.m. on June 28, 1996,
or such later date as the parties may agree to (the "Closing Date") at the
offices of Xxxxxxxxx Xxxxxxxx & Pines LLP, 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000,
Xxx Xxxxxxx, Xxxxxxxxxx 00000. If the Closing does not occur by June 30, 1996,
the Deposit shall be refunded to Purchaser immediately, and this Agreement
shall be terminated, with neither party having any obligation or liability to
the other. Notwithstanding the actual date of Closing (if the Closing occurs),
the Closing shall be deemed to have occurred as of the close of business on the
Valuation Date so that the Shares shall be deemed to be beneficially owned by
Purchaser as of that time with all income received by the Company and all
payments made and obligations and liabilities incurred by the Company after
such time remaining the income, expenses, obligations and liabilities of the
Company on and after the Closing Date.
4. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller
represents and warrants to Purchaser that:
4.1 TITLE TO SHARES. Seller is the sole owner of
52,000 Shares, has good and marketable title to his Shares and owning his
Shares beneficially and of record, free and clear of all liens, claims,
security interests or agreements, shareholder or buy-sell agreements, proxies,
voting trust agreements, encumbrances, options, charges and restrictions
(collectively, "Encumbrances"). Seller has the full right, power and authority
to sell, convey, transfer and deliver his Shares, without obtaining the
approval or consent of any other person; except for the consent of Seller's
spouse in form reasonably satisfactory to Purchaser, which shall be obtained
prior to the Closing Date.
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Seller owns beneficially and of record all of the issued and outstanding
capital stock of the Company.
4.2 BINDING AGREEMENT. Seller has full right,
power and authority to enter into and perform his obligations under this
Agreement. This Agreement and all other agreements, documents and instruments
to be executed by Seller in connection herewith have been (or upon execution
will have been) duly executed and delivered by Seller and constitute (or upon
execution will constitute) legal, valid and binding obligations of Seller,
enforceable in accordance with their respective terms.
4.3 NO CONFLICTS. Except as specified in any of
the Schedules herein, the execution and delivery of this Agreement, the sale of
the Shares, the compliance by Seller with all of the provisions of this
Agreement and the consummation of the transactions contemplated by this
Agreement (a) will not conflict with or result in a breach or violation of the
Company's Articles of Incorporation or Bylaws, or to Seller's actual knowledge,
any federal, state or local law, statute, code, rule, regulation or ordinance
(collectively, "Laws"), or any judgment, order, writ, decree of any court,
tribunal or other governmental body or instrumentality, or any of the terms or
provisions of, or constitute a default under, or require notice, approval, or
consent under, any bond or other agreement, document or instrument to which
Seller or Company is a party, or by which any of the Company's properties is
subject or bound, or (b) results in the creation of any Encumbrance upon any of
the Shares or any "Lien" (as defined in Paragraph 4.13 below) on the assets or
properties of the Company.
4.4 ENTIRETY OF INTEREST. 52,000 Shares
represent Seller's complete legal, equitable and beneficial interest in
Company.
4.5 COMPLIANCE WITH SECURITIES LAWS. Seller
represents and warrants to Purchaser that (a) he understands that the shares of
Purchaser's Common Stock issuable to him under Paragraph 2.2 hereof have not
been registered under the Securities Act of 1933, as amended (the "Securities
Act"), or the securities laws of any state, and are being issued and sold in
reliance upon exemptions afforded thereunder for transactions not involving any
public offering; (b) Seller is an "accredited investor" within the meaning of
Rule 501(a) promulgated under the Securities Act; (c) Seller is a bona fide
resident and domiciliary of the State of Nevada; (d) the shares of Purchaser's
Common Stock to be acquired by Seller hereunder are being acquired for Seller's
own account for investment and without any view toward or for sale in
connection with any distribution thereof to any other person; (e) Seller will
neither sell nor otherwise dispose of the Purchaser's Common Stock being issued
to him hereunder except in compliance with the registration requirements or
exemptive provisions of the Securities Act and
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the rules and regulations thereunder, and under any applicable state securities
laws; (f) Seller has knowledge and experience in financial and business matters
that he is capable of evaluating the merits and risks of the acquisition of the
Purchaser's Common Stock; (g) Seller has consulted with counsel, to the extent
he deemed necessary, as to all matters covered by this Agreement; (h) Seller
has, to his full satisfaction, made investigation into the business, financial
condition and operations of Purchaser as he deemed necessary; (i) Seller has
not relied upon the Purchaser for any explanation of the application of the
various federal or state securities laws with regard to the acquisition of the
Purchaser's Common Stock; (j) Seller acknowledges that Purchaser has made no
representations or warranties with respect to the Purchaser's Common Stock
other than those expressly set forth herein; and (k) Seller agrees that the
Purchaser may endorse on each certificate representing shares of Purchaser's
Common Stock being delivered to Seller hereunder a restrictive legend
consistent with the information set forth in this paragraph. Seller
acknowledges that Seller is receiving certain registration rights as to the
shares of Purchaser's Common Stock pursuant to a Registration Rights Agreement
as set forth in Paragraph 7.2 herein.
4.6 ORGANIZATION, GOOD STANDING AND
QUALIFICATION. Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of California, and has full power
and authority to own its properties and assets and to conduct its business as
it is now being conducted; and is entitled to own, lease or operate the
properties and assets it now owns, leases or operates. Seller has delivered to
Purchaser (a) a true and correct copy of the Company's Articles of
Incorporation, with copies of amendments, if any, all certified by the
Secretary of State of California; (b) the Bylaws and all minutes and
resolutions of any meeting, or written consent or action in lieu thereof, of
the Company's shareholders or Board of Directors (or any committee thereof);
(c) all permits, orders and consents issued by the State of California relating
to the Company, and all applications for such permits, orders and consents; and
(d) the stock transfer book of the Company (collectively, the "Corporate
Documents").
4.7 CAPITAL STOCK. The Company has an authorized
capitalization solely consisting of 1,000,000 shares of common stock, of which
52,000 shares are issued and outstanding. All such outstanding shares have
been duly authorized and validly issued and are fully paid and non-assessable,
and have not been issued in violation of any preemptive rights of stockholders.
No other class of capital stock of the Company is authorized or outstanding.
There are (and at the Closing will be) no outstanding options, warrants,
rights, calls, commitments, conversion rights, rights of exchange, preemptive
rights, commitments, plans or other agreements of any character providing for
the purchase, issuance or sale of any shares of the capital
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stock of the Company, or of any options, warrants or other securities of the
Company.
4.8 SUBSIDIARIES. The Company has no
subsidiaries and does not own, directly or indirectly, any interest in any
corporation, partnership, business, joint venture, partnership, trust or
investment (whether debt or equity) or other entity.
4.9 FINANCIAL STATEMENTS. Seller has delivered
to Purchaser balance sheets of the Company as of May 31, 1996, and the related
statements of earnings and retained earnings for the periods ended May 31,
1996, and changes in financial position as of May 31, 1996, all of which
Purchaser acknowledges receiving. Each of the foregoing financial statements
was prepared in the Company's ordinary course of business, is the sole
financial statement that was prepared for the time period covered and is the
financial statement used by the Company in the conduct of its business. Each
of the foregoing financial statements was prepared in accordance with the books
and records of the Company applied consistently during the periods covered
thereby, and presents fairly the Company's financial condition at the dates of
said statements and the Company's results of operations for the period covered
thereby. (Each of the foregoing financial statements, as well as any financial
statements for subsequent periods prior to the Closing, is referred to, in the
singular, as a "Financial Statement", and, in the plural, as the "Financial
Statements.")
4.10 LIABILITIES. The Company has no material
liabilities, obligations and debts of any nature, whether accrued, absolute,
contingent or otherwise (collectively, the "Liabilities"), except as set forth
on the face of the Balance Sheet dated as of May 31, 1996, or as otherwise set
forth in any Schedule attached to this Agreement. Any material liabilities
incurred since that date have been incurred in the ordinary course of the
Company's business as previously conducted. Seller has no actual knowledge of
any basis for an assertion against the Company of any other Liability other
than those set forth in any Schedule referenced in this Paragraph 4.
4.11 NO ADVERSE CHANGE. Since May 31, 1996, the
Company has operated its business in the ordinary course as previously
conducted, and there has not been, and there is not threatened, (a) any change
in the Company's business or other occurrence that would be materially adverse
to the Company's properties, assets business, or financial condition, or (b)
any event or occurrence that, if taken during the time period between the date
hereof and the Closing, would have constituted a material violation of
Paragraph 6.3, 6.4, 6.6, 6.7, 6.8 or 6.10.
4.12 TAXES. Seller has delivered to the Purchaser
true, correct and complete federal, foreign, state and local tax
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returns and reports filed by the Company through the date of this Agreement.
Neither the Company nor the Seller has knowledge that the Company has failed to
properly file all federal, foreign, state, local and other tax returns and
reports which are required to be filed by it, or that it has failed to pay all
taxes owing as indicated on the Seller's Financial Statements to be due and
owing by it, except taxes which have not yet accrued or otherwise become due
for which adequate provision has been made in the Balance Sheet referred to in
Paragraph 4.10 above. Seller has no knowledge that the federal income tax
returns of the Company have been examined by the Internal Revenue Service since
the Company's inception or that any extension of time for the assessment of
deficiencies for any year is in effect. To the knowledge of the Seller,
neither the Internal Revenue Service nor any other taxing authority is now
asserting or threatening to assert against the Company any deficiency or claim
for additional taxes or interest thereon or penalties in connection therewith.
4.13 REAL PROPERTY. The Company does not own any
real property. Attached as Schedule 4.13 is a complete list of all real
property leases (collectively, the "Leases") to which the Company is a party.
Except as described on Schedule 4.13, (a) no event has occurred that
constitutes, or that with the giving of notice or passage of time, or both,
would constitute a material default by the Company or any other party under any
of the Leases, (b) the Leases constitute all of the real property that is used
or held for use by the Company in connection with its business, (c) the
Company's interest in each of the Leases is free and clear of any liens,
charges, claims, security interests or other encumbrances (collectively,
"Liens") created by, through or under the Company or any person or entity
controlling, controlled by or under common control with the Company
(collectively, "Affiliates"), (d) there are no parties in possession of any
portion of the properties (the "Leased Lands") subject to the Leases as
sublessees, subtenants or otherwise, (e) neither the Company nor the Seller has
knowledge of any pending or threatened condemnation, eminent domain or similar
proceeding affecting the properties subject to the Leases or that the Leased
Lands are not in compliance with all Laws applicable thereto, and (f) neither
Seller nor any officer, director, shareholder, employee, relative or Affiliate
of Seller or the Company, owns, directly or indirectly, in whole or in part,
any interest in the Leased Lands. Seller has delivered to the Purchaser true,
correct and complete copies of each of said Leases, together with any
amendments thereto. Also listed in Schedule 4.13 is the amount of the security
deposits, if any, and advance rentals paid, if any.
4.14 CONTRACTS, LEASES AND COMMITMENTS. Seller
has caused the Company to furnish to Purchaser true and complete copies of all
contracts, leases, agreements, licenses and commitments to which the Company is
a party or by which any of its assets or properties are bound or are subject
and which are
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material to the operation of the Company's business or any of its stores, all
of which are listed in Schedule 4.14 hereto, including summaries of the terms
of any unwritten commitments (collectively, the "Contracts"). Except as set
forth in Schedule 4.14, the Contracts are valid and enforceable, in full force
and effect and there exists no event or condition which does, or that with the
giving of notice or the passage of time, or both, would, constitute a material
default under or give rise to a right to accelerate or terminate any provision
thereof, or give rise to any Lien or restriction on any of the assets or
properties of the Company. The Company has not assigned or otherwise
transferred any interest in or any of its rights or benefits accruing from any
of the Contracts.
4.15 CUSTOMERS AND SUPPLIERS. Except as disclosed
in Schedule 4.15 hereto, during the Company's fiscal year ended June 30, 1995
and the ten-month period ended May 31, 1996, (a) not more than 10% of the
Company's revenues were attributable to any single customer or (to the
knowledge of Seller) to any group of affiliated customers, and (b) not more
than 10% of the Company's inventory was attributable to any single supplier or
(to the knowledge of Seller) to any group of affiliated suppliers. The Company
is engaged in no material disputes with any customers, suppliers, airlines or
other entities with which the Company does business. Seller has no actual
knowledge that any customer, supplier, or other entity with which the Company
does business is considering termination, non-renewal, or any adverse
modification of its arrangements with the Company, and the transactions
contemplated by this Agreement will not have a material adverse effect on the
Company's relationship with any of its suppliers, customers, airlines or other
entities with which the company does business.
4.16 ACCOUNTS RECEIVABLE. Schedule 4.16 hereto is
an aging list of all of the Company's accounts receivable as of May 31, 1996.
The Company's accounts receivable arose in the ordinary course of business for
goods or services delivered or rendered and were recorded consistently in
accordance with the Company's past practice.
4.17 PERMITS; COMPLIANCE WITH LAWS. Neither the
Company nor Seller has knowledge that the Company has failed to comply with all
applicable Laws or that the Company's business is and has been operated other
than in compliance with all applicable Laws, or that any required reports and
filings with governmental authorities have not been properly made by the
Company. To the Company and the Seller's knowledge, the Company possesses, and
Schedule 4.17 sets forth a complete list of, all of the permits, licenses,
authorizations and approvals required by any governmental body or
instrumentality or political subdivision in connection with the conduct of the
Company's business as presently conducted (collectively, the "Permits"). The
execution and delivery of this Agreement, the sale of the
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Shares, the compliance by Seller with all of the provisions of this Agreement
and the consummation of the transaction contemplated by this Agreement will not
result in any violation of any Law, or any Permit of the Company, or any rule,
judgment, writ, decree or order of any court, tribunal or other governmental
body or instrumentality. No consent, registration or qualification of, or
filing or registration with, any person, court, or governmental agency is
required for the sale of the Shares, the compliance by Seller with the
provisions of this Agreement, the maintenance by Purchaser of any of the
Permits immediately following the Closing, or the consummation of the
transactions contemplated hereby.
4.18 EMPLOYEES. The Company is not a party to or
subject to any written agreement, or any oral agreement providing for any
bonus, severance payment, deferred compensation, pensions, options, profit
sharing or similar benefits not terminable within 30 days by and without
penalty or further liability to the Company, with any employee, consultant,
officer, director, agent or representative. The Company has no "Employee
Benefit Plans" as that term is defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended. All obligations of the
Company with respect to all of its Employees, consultants, directors, officers,
agents and representatives and due on or prior to the date hereof have been
paid by the Company.
4.19 LITIGATION. Neither the Company nor Seller
has knowledge of any pending or threatened actions, suits, proceedings, claims,
judgments, orders, arbitration proceedings, administrative or governmental
investigations against the Company or any of its properties or assets, or, in
connection with the Company's business, any of the Company's officers,
directors, employees, consultants, agents or representatives.
4.20 BANK ACCOUNTS. Schedule 4.20 is an accurate
and complete list showing the name of each bank, savings and loan or other
financial institution in which the Company has an account, outstanding debt,
credit line or safe deposit box, the number of each of the foregoing and the
names of all persons authorized to draw thereon or to have access thereto.
4.21 TRANSACTIONS WITH INTERESTED PERSONS. Except
as set forth in Schedule 4.21, there is no (a) obligation or liability incurred
by the Company to Seller or any of its officers, directors or shareholders, or
any loans or advances made by the Company Seller or any of its officers,
directors or employees, except normal compensation payable in accordance with
past practice, and (b) Seller does not own, directly or indirectly, any
interest in, or serves as an officer or director of, any entity which has any
contract, commitment or arrangement with the Company.
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4.22 NO BROKERS. Neither Seller nor the Company
have entered, directly or indirectly, into any agreement, understanding or
commitment with any person or entity that provides for the payment of any
commission, brokerage or "finder's fee" arising out of the transaction
contemplated by this Agreement.
4.23 TANGIBLE PERSONAL PROPERTY. Seller has
caused the Company to furnish to Purchaser computer schedules showing all
leasehold improvements, fixtures, machinery, equipment (including office
equipment), computer hardware, vehicles, furniture and other tangible personal
property used in connection with the Company's business (the "Tangible Personal
Property"). To the Company's and to the Seller's knowledge, such list is
complete and accurate in all material respects. To Seller's knowledge or
except as set forth in Schedule 4.23, the Company has good and marketable title
to each item of Tangible Personal Property free and clear of all Liens.
4.24 INVENTORY. Seller has caused the Company to
furnish to Purchaser a computer schedule of all inventory of the Company as of
May 31, 1996. To the Company's and to the Seller's knowledge, such list is
complete and accurate in all material respects.
4.25 INTELLECTUAL PROPERTY. Except for the trade
name "Express Undercar Parts Warehouse", neither the Company nor Seller has
knowledge of tradenames, trademarks, copyrights or registrations or
applications related to the foregoing or any other intellectual property rights
(collectively, "Intangibles"). Neither the Company nor Seller has any actual
knowledge of any pending or threatened claim, action or proceeding against the
Company contesting the Company's right to use any Intangibles.
4.26 INSURANCE. Schedule 4.26 sets forth a list
of all insurance policies maintained by or for the benefit of the Company. The
Company has not received and Seller has no actual knowledge of any notice
cancelling or threatening to cancel, or amending or increasing the annual or
other premiums payable under any of such policies.
4.27 HAZARDOUS SUBSTANCES. Neither the Company
nor Seller has any actual knowledge (a) of any Hazardous Materials present on
any of the Leased Land or the premises or improvements located thereon, or on
any property in the immediate vicinity of the Leased Lands (b) that Hazardous
Materials have been disposed or otherwise released into the environment by or
on behalf of the Company or its Affiliates, and (c) that any of the following
items is located on the Leased Land: underground containers or vessels or
water, gas or oil xxxxx. Neither the Company nor the Seller have actual
knowledge of any receipt of any notice or other communications concerning any
violation or alleged violation of any Laws relating to the protection of
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health and the environment (collectively "Environmental Requirements").
Neither the Company nor Seller has actual knowledge of the existence of any
writ, injunction, decree, order or judgment outstanding, nor any pending or
threatened claim, action or proceeding, relating to any alleged or suspected
violation of Environmental Requirements arising out of the ownership, use or
operation of the Leased Lands and the premises or improvements thereon
pertaining to the property or any properties in the immediate vicinity of the
Leased Lands or the operation of the Company's business. As used herein,
"Hazardous Materials" shall mean any substances (including, without limitation,
any asbestos, formaldehyde, radioactive substance, hydrocarbons,
polychlorinated biphenyls, industrial solvents, flammables, explosives and any
other hazardous substance, solid waste or toxic material) that are defined as
hazardous or toxic substances under Environmental Requirements or that are
known, as of the date of this Agreement, to pose a threat to or to endanger
health or the environment, except for those substances that are contained
within products sold by Seller at its stores, the handling, labeling and sale
of which does not require a permit or other authorization from, delivery of
notice to, or filing with any court, tribunal or other governmental body or
instrumentality.
4.28 REPRESENTATIONS TRUE AT CLOSING. All
representations by Seller in Section 4 shall be true and accurate as of the
date when made and shall be deemed to be made again at the Closing as of the
Closing Date and shall then be true and accurate in all respects.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser hereby represents and warrants to Seller that:
5.1 BINDING AGREEMENT. Purchaser has all
requisite corporate right, power and authority to enter into and perform its
obligations under this Agreement. This Agreement has been duly authorized,
executed and delivered by Purchaser and constitutes a valid and legally binding
obligation of Purchaser, enforceable in accordance with its terms.
5.2 PURCHASE OF SHARES NOT FOR DISTRIBUTION. The
Shares are being purchased for investment and not with a view to distribution,
it being understood that the Shares are not registered or qualified under the
Securities Act, or any state law.
5.3 NO CONFLICTS. The execution and delivery of
this Agreement, the purchase of the Shares, the compliance by Purchaser with
all of the provisions of this Agreement and the consummation of the
transactions contemplated by this Agreement will not conflict with or result in
a breach or violation of the Articles of Incorporation or Bylaws of Purchaser.
This Agreement and all other agreements, documents and instruments to be
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executed by Purchaser in connection herewith have been (or upon execution will
have been) authorized by Purchaser's Board of Directors, duly executed and
delivered by the Purchaser and constitute (or upon execution will constitute)
legal, valid and binding obligations of Purchaser, enforceable in accordance
with their respective terms, or any of the terms or provisions of, or
constitute default under, or require notice, approval, or consent under, any
bond or other agreement, document or instrument to which Purchaser is a party,
or to Purchaser's knowledge, any Laws or any judgment, order, writ, decree of
any court, tribunal or other governmental body or instrumentality.
5.4 PERMITS; COMPLIANCE WITH LAWS. To the
knowledge of Purchaser's Chief Executive Officer and Chief Financial Officer,
Purchaser has complied, and continues to comply, with all applicable Laws, and
the Purchaser's business is and has been operated in compliance with all
applicable Laws and all required reports and filings with governmental
authorities have been properly made by Purchaser. To Purchaser's knowledge,
Purchaser possesses all of the Permits and approvals required by any
governmental body or instrumentality or political subdivision in connection
with the conduct of Purchaser's business as presently conducted. The execution
and delivery of this Agreement, the purchase of the Shares, the compliance by
Purchaser with all of the provisions of this Agreement and the consummation of
the transaction contemplated by this Agreement will not result in any violation
of any Law, or any Permit of the Purchaser, or any rule, judgment, writ,
decree, or order of any court, tribunal or other governmental body or
instrumentality. No consent, registration or qualification of, or filing or
registration with, any person, court, or governmental agency is required for
the purchase of the Shares, the compliance by the Purchaser with the provisions
of this Agreement, or the consummation of the transactions contemplated hereby.
5.5 LITIGATION. Except as set forth on Schedule
5.5, there are no material actions, suits, proceedings, claims, judgments,
orders, arbitration proceedings, administrative or governmental investigations
pending or, to the knowledge of Purchaser, threatened against Purchaser or any
of its properties or assets, or, in connection with the Purchaser's business,
or any of Purchaser's officers, directors, employees, consultants, agents or
representatives.
5.6 SECURITIES FILINGS. Purchaser has delivered
to Seller copies of its most recent Reports on Form 10-Q, 10-K, and Proxy
Statement, each of which, as of its respective date, did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make statements and facts contained therein, in
light of the circumstances in which they were made, not false or misleading.
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5.7 CAPITAL STOCK. The Purchaser has an
authorized capitalization consisting of 35,000,000 shares of common stock,
$.0001 par value, and 2,500,000 shares of preferred stock, $.0001 par value,
400,000 of which are designated as Class A Preferred Stock and 550,000 of which
are designated as Class B Preferred Stock. As of June 26, 1996, 11:00 a.m.,
Pacific Time, 17,328,786 shares of common stock, 400,000 shares of Class A
Preferred Stock and 490,000 shares of Class B Preferred Stock are issued and
outstanding. All such outstanding shares have been duly authorized and validly
issued and are fully paid and non-assessable, and have not been issued in
violation of any preemptive rights of stockholders. No other class of capital
stock of the Purchaser is authorized or outstanding. There are (and at the
Closing will be) no outstanding options, warrants, rights, calls, commitments,
conversion rights, rights of exchange, preemptive rights, commitments, plans or
other agreements of any character providing for the purchase, issuance or sale
of any shares of the capital stock of the Purchaser, or of any options,
warrants or other securities of the Purchaser.
5.8 FINANCIAL STATEMENTS. Purchaser has
delivered to Seller a balance sheet of the Purchaser as of March 31, 1996, and
the related statements of operations and cash flow for the periods ended March
31 1996, and changes in financial position as of March 31, 1996, all of which
Purchaser acknowledges receiving. Each of the foregoing financial statements
was prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods covered thereby. Each of
the foregoing financial statements was prepared in accordance with the books
and records of the Purchaser and presents fairly the Purchaser's financial
condition at the dates of said statements and the Purchaser's results of
operations and cash flow for the period covered thereby.
5.9 LIABILITIES. The Purchaser has no material
liabilities, obligations and debts of any nature, whether accrued, absolute,
contingent or otherwise (collectively, the "Liabilities"), except as set forth
on the face of the Balance Sheet as described in its Report on Form 10-Q for
the quarter ended March 31, 1996, or as otherwise set forth in any Schedule
attached to this Agreement. Any liabilities incurred since that date have been
incurred in the ordinary course of the Purchaser's business as previously
conducted.
5.10 NO ADVERSE CHANGE. Since March 31, 1996, the
Purchaser has operated its business in the ordinary course as previously
conducted, and, except for matters disclosed in Purchaser's Report on Form 10-Q
for the quarter ended March 31, 1996, there has not been, and there is not
threatened, any change in the Purchaser's business or other occurrence that
would be materially adverse to the Purchaser's properties, assets business, or
financial condition.
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5.11 NO BROKERS. The Purchaser has not entered,
directly or indirectly, into any agreement, understanding or commitment with
any person or entity that provides for the payment of any commission, brokerage
or "finder's fee" arising out of the transaction contemplated by this
Agreement.
5.12 REPRESENTATIONS TRUE AT CLOSING. All
representations by the Purchaser in this Section 5 shall be true and accurate
as of the date when made and shall be deemed to be made again at the Closing as
of the Closing Date and shall then be true and accurate in all respects.
6. COVENANTS AND AGREEMENTS OF SELLER. Seller covenants
and agrees as follows:
6.1 REPRESENTATIONS AND WARRANTIES. Between the
date hereof and the Closing, Seller shall not, and shall cause the Company not
to, take any action which would cause any of the representations and warranties
made herein or the documents or Schedules delivered to Purchaser not to be true
and correct on and as of the Closing Date with the same force and effect as if
such representations and warranties had been made on and as of the Closing
Date.
6.2 ACCESS BY PURCHASER. Between the date hereof
and the Closing, Seller shall allow Purchaser and its representatives and
advisers to have free and full access during normal business hours to the
Company's assets, properties, premises, books and records, agreements,
documents and instruments, and be given the opportunity to meet with the
Company's key employees, accountants, and major suppliers and customers.
Purchaser shall be furnished with such information and copies of such documents
as it may reasonably request. Purchaser shall be promptly furnished with all
Financial Statements of the Company that are prepared in the ordinary course of
business. If, during its due diligence, Purchaser obtains actual knowledge of
any breach of any representation or warranty by Seller or the Company,
Purchaser may elect not to purchase the Shares, but may not purchase the Shares
and then make a claim against Seller or the Company for losses suffered by
Purchaser as a result of such breach, except to the extent that Purchaser
brings such breach to Seller's attention prior to making such claim and
subsequently suffers losses attributable to material facts or information
relating to such breach which Seller withheld from Purchaser or misrepresented
to Purchaser.
6.3 CONDUCT OF BUSINESS. Between the date hereof
and the Closing, Seller shall cause the Company to conduct its business in the
ordinary course, consistent with its prior conduct, and to use its best efforts
to maintain, preserve, and protect its assets and goodwill, and to maintain its
business organization intact (including maintaining its present employees and
preserving its present relationships with suppliers,
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customers, and others having business relationships with the Company). Without
limiting the generality of the foregoing, Seller shall not allow the Company to
(except with the prior written consent of the Purchaser) (a) purchase or commit
to purchase or lease capital or fixed assets exceeding $10,000, (b) take any
action which would create a Lien on any of the Company's assets or properties,
(c) dispose of any interest in any of the Company's assets or properties other
than sales of inventory in the ordinary course of business, consistent with
past practice, (d) in any manner pledge the credit of the Company, except in
the ordinary course of business consistent with past practice, or (e) enter
into any lease, agreement, instrument, commitment or arrangement with any
Affiliate. Further, between the date hereof and the Closing, Seller shall
cause the Company to (a) in a timely manner make all payments due under and
otherwise perform in all material respects all of the obligations under all
Leases, Contracts, Permits and Intangibles in accordance with their respective
terms, and not cancel, amend, modify, abandon, extend or renew any of the same,
or permit any of the same to lapse; (b) maintain the Tangible Personal Property
and the improvements and premises on the Leased Lands in their current
condition, ordinary wear and tear excepted, and in accordance with past
practice; and (c) to comply in all material respects with and fulfill its
obligations and responsibilities under all Laws. Seller shall cooperate with
Purchaser in the collection of accounts receivable from periods through the
Closing due and payable following the Closing.
6.4 MAINTENANCE OF INSURANCE. Seller shall cause
the Company to continue to carry its existing insurance through the date of
Closing and to provide whatever information is needed to enable Purchaser, at
its option, to obtain new insurance coverage.
6.5 SUPPLEMENTS. Seller shall, within two
business days after they occur, inform Purchaser of all material developments,
whether favorable or adverse, relating to the Company's business, properties or
financial condition. If any representation, warranty or statement made herein,
or any Schedule delivered to Purchaser, shall be or become incorrect, Seller
shall promptly deliver to Purchaser a supplement in order that said
representation, warranty, statement or Schedule, as so supplemented, shall be
true and correct.
6.6 CORPORATE MATTERS. Between the date hereof
and the Closing, Seller shall cause the Company not to (a) amend its Articles
of Incorporation or Bylaws; (b) issue any shares of stock; (c) issue or create
any warrants, obligations, subscriptions, options, convertible securities, or
other commitments under which shares may be authorized or issued; or (d)
declare or pay any dividend or distribution on any securities of the Company.
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6.7 EMPLOYEES AND COMPENSATION. Between the date
hereof and the Closing, Seller shall cause the Company not to, and not to agree
to do any of the following: (a) Make or commit to make any change in
compensation payable or to become payable to any officer, director, employee,
consultant, sales agent or representative; (b) pay any benefits to any officer,
director, employee, sale agent or representative under any bonus plan, Employee
Benefit Plan or other agreement; (c) negotiate or enter into any employment
agreement, or (d) hire or fire any employees, consultants or agents or
representatives except in the ordinary course of business, consistent with past
practice.
6.8 NEW TRANSACTIONS. Between the date hereof
and the Closing, Seller shall cause the Company not to, without Purchaser's
written consent, do or agree to do any of the following: (a) Enter into any
contract, commitment or transaction not in the usual and ordinary course of
business; or (b) enter into any contract, commitment or transaction in the
ordinary and usual course of business involving an amount exceeding $10,000
individually or $20,000 in the aggregate.
6.9 NO NEGOTIATIONS. Seller shall not, through
June 30, 1996, negotiate with, or make any agreement, proposal, or commitment
with or to any other party concerning the sale or disposition of the Shares or
the business of the Company.
6.10 EXISTING AGREEMENTS. Between the date hereof
and the Closing, Seller shall cause the Company not to modify, amend, cancel,
or terminate any of its existing contracts or agreements, or agree to do any of
these acts.
6.11 RESIGNATION OF SELLER. At the Closing,
Seller shall deliver to the Company, in form acceptable to Purchaser, his
resignation as employee, officer, and director of the Company, as applicable,
effective as of the Closing Date.
6.12 COVENANT NOT TO COMPETE. The parties
acknowledge that the Company carries on its business throughout the United
States. For a period of three (3) years after the Closing, Seller agrees that
he will not, without the prior written consent of Purchaser in (a) the counties
in which the Company's stores are located and any adjacent county thereto, and
(b) any county where Purchaser presently operates stores and any adjacent
county thereto by or for himself or as the employee or other agent of or for
another or through others as his employees or agents, own (other than stock in
Purchaser and passive ownership of up to 2% of the stock in any other public
company), manage, operate, join, control, be employed by or participate in the
ownership, management, control or operation of or be connected with, in any
way, any business which "competes" with the business of Purchaser. For
purposes of this Agreement, a business shall be deemed to "compete" with the
business of Purchaser if it is in the retail or wholesale automotive parts
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supply business. It is expressly recognized and agreed that any breach of this
paragraph will cause irreparable harm to Purchaser which cannot be fully
compensable by damages, so that, in addition to any and all of the rights and
remedies available to Purchaser by operation of law, in the event of breach of
this covenant, Purchaser shall be entitled to injunctive relief enjoining or
restraining whatever violation may have occurred or be occurring. It is
expressly agreed that if any provision of this paragraph is determined by a
court of competent jurisdiction to be unenforceable, such court shall limit the
scope or duration of such provision and enforce any lesser restriction or
restrictions determined by it to be reasonable.
7. COVENANTS AND AGREEMENTS OF PURCHASER.
7.1 INVENTORY. Purchaser shall, for 2 years from
the Closing, purchase as much of its inventory from Standard Motor Products,
Inc. -- EIS Brake Division as is required by that company's agreement with the
Company or the Seller.
7.2 REGISTRATION RIGHTS. Seller shall have
demand registration rights to compel a registration by Purchaser as to the
shares of Purchaser's stock being acquired by Seller under Paragraph 2.2 hereof
18 months after the Closing Date. Seller shall also have "piggyback"
registration rights as to any other registration by Purchaser of Purchaser's
stock. At the Closing, the parties shall enter into a Registration Rights
Agreement in connection with the registration rights granted to Seller
hereunder.
7.3 ADDITIONAL CONSIDERATIONS. At the Closing,
Purchaser shall sell, transfer, deliver and convey to Seller a sufficient
number of shares of Purchaser (valued at the average between the closing offer
and bid prices one trading day before the Closing Date less twenty percent
(20%) to equal a market value of $17,500.
7.4 AVAILABILITY OF PURCHASER'S STOCK. Purchaser
shall reserve a sufficient number of shares of its stock to issue shares to
Seller as described in Paragraph 2.2 and to allow for issuance of shares upon
exercise of the warrants and options pursuant to the Stock Purchase Agreement
dated May 28, 1996 between Reddi Brake, Xxxxxxx and Xxxxx Xxxxxxx.
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER.
The obligations of Purchaser to consummate the transactions contemplated by
this Agreement are subject to the satisfaction, at or before the Closing, of
each of the following conditions, except to the extent waived by Purchaser in
writing, and Seller shall use his best efforts to cause such conditions to be
fulfilled:
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8.1 REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties of Seller and of the Company in this Agreement
(including the Schedules hereto), shall be true and correct on and as of the
Closing Date with the same force and effect as though made on and as of the
Closing Date.
8.2 PERFORMANCE BY SELLER. Seller shall have
performed and complied with all agreements, covenants, and conditions required
herein to be performed or complied with by them on or before the Closing.
8.3 CONSENTS. On or before the Closing, Seller
shall have delivered to Purchaser all required consents, approvals, or waivers
from regulatory authorities and third parties, if any are required for the
execution, delivery, and performance of Seller's obligations hereunder or for
the Company's continued maintenance of all Permits, Intangibles, Leases, and
Contracts after the Closing.
8.4 LITIGATION. No action, suit or proceeding
shall be pending or threatened before any court, tribunal, or governmental
body, and no claim or demand shall have been made against Purchaser, the
Company, or Seller seeking to restrain or prohibit the transactions
contemplated herein, and no claim or demand shall have been made against
Purchaser or the Company to obtain damages or other relief in connection with
the consummation of the transactions contemplated herein.
8.5 RESIGNATIONS. Seller shall have delivered to
Purchaser the written resignations described in Paragraph 6.11.
8.6 GOOD STANDING AND OTHER CERTIFICATES. Seller
shall have delivered to the Purchaser a Good Standing Certificate from the
California Secretary of State for the Company, dated no earlier than ten (10)
days prior to the Closing Date. Seller and the Company shall have delivered to
Purchaser written certification that the conditions set forth in Paragraphs 8.1
and 8.2 have been fulfilled.
8.7 STOCK CERTIFICATES. Seller shall have
delivered to Purchaser the share certificate(s) evidencing his ownership of his
Shares duly endorsed in blank for transfer, or accompanied by a Stock
Assignment Separate From Certificate duly endorsed in blank for transfer.
8.8 COMPLETION OF DUE DILIGENCE. Purchaser shall
have completed its due diligence investigation of the Company, and be satisfied
with the financial, operating, and business affairs and prospects of the
Company.
8.9 AUDITABLE FINANCIAL STATEMENTS. If
Purchaser's public accountants, KPMG Peat Marwick, LLP, determine
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that the Financial Statements of the Company must be audited for purposes of
Purchaser's compliance with federal securities laws, then such accountants must
further determine that such Financial Statements are auditable within the
requisite time period and at a price reasonably satisfactory to Purchaser.
8.10 NO ADVERSE CHANGE. There shall not have
occurred between the date hereof and the Closing Date any material adverse
change in the results of operations, condition (financial or otherwise),
assets, liabilities (whether absolute, accrued, contingent or otherwise),
business or prospects of the Company.
8.11 SPOUSAL CONSENT. Seller's spouse shall have
consented in writing to the sale of Seller's shares, in a form reasonably
satisfactory to Purchaser ("the Spousal Consent").
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER. The
obligations of Seller to consummate the transactions contemplated by this
Agreement are subject to the satisfaction, at or before the Closing, of each of
the following conditions, except to the extent waived by the Seller in writing,
and Purchaser shall use its best efforts to cause such conditions to be
fulfilled:
9.1 REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties of Purchaser in this Agreement shall be true and
correct on and as of the Closing Date with the same force and effect as though
the same had been made on and as of the Closing Date.
9.2 PERFORMANCE BY PURCHASER. Purchaser shall
have performed and complied with all agreements, covenants, and conditions
required herein to be performed or complied with by him on or before the
Closing.
9.3 LITIGATION. No action, suit or proceeding
shall be pending or threatened before any court, tribunal, or governmental
body, and no claim or demand shall have been made against Purchaser, the
Company, or Seller seeking to restrain or prohibit or to obtain damages or
other relief, in connection with the consummation of the transactions
contemplated herein. Seller shall be satisfied with the report from
Purchaser's counsel regarding the class action lawsuit and broker lawsuit.
9.4 WRITTEN CERTIFICATION. Purchaser shall have
delivered to Seller written certification that the conditions set forth in
Paragraphs 9.1 and 9.2 have been fulfilled.
9.5 NO ADVERSE CHANGE. There shall not have
occurred between the date hereof and the Closing Date any material adverse
changes in the results of operations, condition (financial or otherwise),
assets, liabilities (whether absolute,
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accrued, contingent or otherwise), business or prospects of the Purchaser.
10. CLOSING OBLIGATIONS.
10.1 DELIVERIES OF SELLER. At the Closing, Seller
shall deliver, or shall cause to be delivered, to Purchaser the following:
(a) Certificates representing the
Shares, registered in the name of Xxxxx ("Xxx") Xxxxxxx, as to his Shares, duly
endorsed in blank for transfer or accompanied by a Stock Assignment Separate
From Certificate duly endorsed in blank for transfer, together with all such
other documents as may be required to affect a valid transfer of the Shares,
free and clear of any and all liens, encumbrances, charges or claims.
(b) Executed copies of the governmental
and third party consents, approvals, or waivers, if any, required to consummate
the transactions described herein.
(c) The written resignation described in
Paragraph 6.11.
(d) An executed copy of the Registration
Rights Agreement, and Escrow Agreement.
(e) The Spousal Consent.
10.2 DELIVERIES OF PURCHASER. At the Closing,
Purchaser shall deliver or cause to be delivered to Seller the following:
(a) Stock certificates for the shares of
Purchaser's Common Stock issuable to Seller under Paragraph 2.2 hereof in
100,000 increments (or any fraction thereof, as appropriate).
(b) Payment of the attorneys' fees and
costs.
(c) Resolutions of Board of Directors of
Purchaser approving the transaction.
(d) An executed copy of the Registration
Rights Agreement, and Escrow Agreement.
11. ESCROW; INDEMNIFICATION.
11.1 ESCROW. At the Closing, Seller shall deposit
with an escrow agent a sufficient number of shares of Purchaser's stock (valued
at $1.63 per Share) to equal a market value of $125,000 (the "Escrow"). Six
months after the Closing Date, such
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number of shares shall be adjusted based on the average between the closing
offer and bid prices on such date (the "Six Month Adjustment"); provided,
however, that any number of shares subject to a claim made by Purchaser prior
to the Six Month Adjustment shall not be so adjusted. The Escrow shall be
maintained for a period of one year (the "Escrow Period") from the earlier of
the Closing Date and June 30, 1996.
11.2 INDEMNIFICATION. Subject to the terms of this
Paragraph 11.2, Seller shall indemnify and hold harmless Purchaser, promptly
upon demand at any time and from time to time, against any and all losses,
liabilities, claims, actions, damages and expenses, including, without
limitation, reasonable attorneys' fees and disbursements, (collectively,
"Losses") arising out of or in connection with any misrepresentation or breach
of any warranty, representation, covenant or agreement made by Seller in this
Agreement. If Purchaser determines that it is entitled to indemnification for
Losses, Purchaser shall give prompt written notice to Seller of each claim (a
"Claimed Loss") for a Loss specifying the amount and nature of such claim, and
of any matter which in the opinion of Purchaser is likely to give rise to claim
for a Loss. Purchaser's notice of Claimed Loss shall include its estimate of
its fees and expenses, including without limitation reasonable attorney's fees
and disbursements, in any claim or legal proceeding related thereto, subject to
adjustment once the claim or legal proceeding has concluded and Purchaser's
actual fees and expenses are known. Seller, within twenty (20) days after
Purchaser has given such notice, shall respond in writing, either acknowledging
his obligation for such Claimed Loss or denying such obligation. If Seller
acknowledges such obligation, Purchaser may withdraw from the Escrow a number
of shares (valued as set forth above) equal to the amount of the Claimed Loss,
to the maximum amount then remaining in the Escrow. If Seller denies such
obligation for a Claimed Loss, Seller and Purchaser shall proceed to
arbitration pursuant to paragraph 11.3. If Seller is found by the arbitration
provided for below (or by any other body which can make a final determination)
to be liable, in whole or in part, for a Claimed Loss, Purchaser may withdraw
from the Escrow a number of shares equal to the amount of the Claimed Loss, to
the maximum amount then remaining in the Escrow, and shall, in addition
thereto, be entitled to cash payment or reimbursement by Seller, of Purchaser's
reasonable attorneys' fees and costs (provided that if the Loss awarded is only
part of that Claim, any payment for attorneys' fees and costs shall be
proportionate thereto). The Escrow is being established to protect Purchaser
against all Claimed Losses and Purchaser may resort to the Escrow established
hereunder in such event. The maximum liability of Seller for any and all
Losses under this Agreement, in the aggregate, shall be the amount of the
Escrow, and except as provided in Section 6.12 above, Purchaser shall have no
other recourse against Seller hereunder. Any claim by Purchaser for a Loss
under this Agreement must be filed by the end of the Escrow Period. With
respect to any
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Claimed Loss which has been asserted hereunder that is pending or unresolved at
the end of the Escrow Period, the number of shares subject to such Claimed Loss
shall remain in the Escrow, and the Escrow Period shall be extended until the
matter relating to such Claimed Loss has been terminated or otherwise resolved.
If no claims have been filed by the end of the Escrow Period, the shares held
in Escrow shall automatically, and without need for further action or approval
by Purchaser, be delivered to Seller. The parties shall enter into an escrow
agreement with the escrow holder incorporating the terms of this Agreement.
11.3 ARBITRATION. If Seller denies any obligation
for a Claimed Loss as described in Section 11.2 above, a determination of
whether a Loss exists shall be made by a three-person panel of arbitrators
designated according to the rules of the American Arbitration Association. The
arbitration procedure shall be governed according to the rules of the American
Arbitration Association.
11.4 INDEMNIFICATION BY PURCHASER. Purchaser
shall indemnify, defend, and hold harmless Seller, promptly upon demand at any
time and from time to time, against any and all Losses arising out of or in
connection with any misrepresentation or breach of any warranty,
representation, covenant or agreement made by Purchaser in this Agreement.
11.5 INDEMNIFICATION PROCEDURE. If Seller seeks
indemnification under 11.4 hereof, Seller shall give prompt written notice to
Purchaser of each claim for indemnification hereunder, specifying the amount
and nature of the claim, and of any matter which in the opinion of Seller is
likely to give rise to an indemnification claim. In the event of any claim for
indemnification hereunder resulting from or in connection with any claim or
legal proceeding brought by, or which Seller reasonably believes is likely to
be brought by, a third party, such notice shall specify, if known, the amount
or an estimate of the amount of the liability arising therefrom. Purchaser,
within ten (10) days after the Seller has given such notice (or within such
shorter period of time as an answer or responsive motion may be required),
shall acknowledge in writing its obligation to indemnify. Purchaser shall then
have the right to control, at its sole cost and expense, the defense of such
claim or proceeding, with counsel reasonably satisfactory to the Seller.
Seller shall not settle or compromise such claim or proceeding without the
written consent of the Purchaser, which consent shall not unreasonably be
withheld or delayed. Seller may in any event participate in any such defense
with its own counsel and at its own expense. Each of the parties hereto shall
cooperate in the defense of any claim and shall provide the other with access
to records as may reasonably be required.
Notwithstanding the foregoing, the rights of Seller
to be indemnified hereunder shall not be adversely
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affected by Seller's failure to give notice in accordance with the foregoing
unless and only to the extent that the Purchaser is materially prejudiced by
such failure.
If the Purchaser, within twenty (20) days of receipt
of notice of a claim (or within such shorter time as may be required for an
answer or responsive motion), fails to assume the defense, Seller shall have
the right to undertake the defense, compromise or settlement on behalf of and
for the account and risk of the Purchaser.
11.6 SURVIVAL OF INDEMNIFICATION. The
indemnifications contained in Section 11.4 shall survive for one year after the
Closing. Any matter as to which a claim has been asserted hereunder that is
pending or unresolved at the end of such period shall continue to be covered by
this indemnification until finally terminated or otherwise resolved.
12. TERMINATION. This Agreement may be terminated prior
to the Closing:
(a) By written agreement of the parties hereto;
(b) Automatically, without further action by any
party, if the Closing shall not have occurred on or before June 30, 1996 or
such later date, if any, to which Purchaser and Seller shall agree in writing;
(c) By Purchaser or Seller if a condition to
their respective obligations to consummate the transactions contemplated hereby
has not been met by the Closing Date; or
(d) By Purchaser if, in the course of its due
diligence review, it discovers information which Purchaser believes has a
material adverse effect on or relating to the value, business, properties,
financial condition, prospects, liabilities or obligations of the Company; or
(e) By Seller, if in the course of his due
diligence review, Seller discovers information which Seller believes has a
material adverse effect on or relating to the value, business, properties,
financial condition, prospects, liabilities or obligations of the Purchaser.
13. MISCELLANEOUS.
13.1 SURVIVAL. All representations, warranties,
indemnities, covenants, and agreements made by the parties in connection with
the transaction described herein shall survive the Closing for a period of one
year after the Closing, provided, however, that any matter as to which an
indemnification claim has been asserted under Paragraph 11 that is pending or
unresolved at
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the end of such period shall continue to be covered by such indemnification
until finally terminated or otherwise resolved.
13.2 FURTHER ASSURANCES. The parties shall
cooperate and take such actions, and execute such other documents, at the
Closing or subsequently, as either may reasonably request in order to carry out
the provisions or purpose of this Agreement.
13.3 NOTICES. All notices or other communications
in connection with this Agreement shall be in writing and shall be considered
given when personally delivered or five (5) days after mailing when mailed by
registered or certified mail, postage prepaid, return receipt requested, or
upon receipt when sent via commercial courier or facsimile (with telephonic or
electronic confirmation of receipt) directed, as follows:
If to Purchaser:
Reddi Brake Supply Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: S. Xxxxxx Xxxxx
Executive Vice President
With a copy to:
Xxxxx, Xxxxx & Xxxxxx
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Esq.
If to Seller:
Xx. Xxxxx Xxx Xxxxxxx
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxx 00000
With a copy to:
Xxxxxxxxx Xxxxxxxx & Pines LLP
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
The above addresses may be changed by notice given in accordance with this
Paragraph.
13.4 ENTIRE AGREEMENT. This Agreement (which
includes the Schedules and Exhibits hereto) sets forth the parties' final and
entire agreement with respect to its subject matter (except for the matters to
be covered by the Registration Rights Agreement, the Escrow Agreement and the
Covenant Not to
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Compete) and supersedes any and all prior understandings and agreements. This
Agreement may be amended, supplemented, or changed, and any provision hereof
may be waived, only by a written instrument signed by both parties.
13.5 SUCCESSORS. The rights under this Agreement
shall not be assignable nor the duties delegable by Purchaser or Seller without
the written consent of the other, provided, however, that Purchaser shall have
the right to transfer the assets or stock of the Company to, or merge the
Company with and into, Purchaser's wholly-owned subsidiary, Reddi Brake Supply
Company, Inc., a California corporation. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, personal representatives, successors, and
assigns.
13.6 PARAGRAPH HEADINGS. The paragraph headings
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
13.7 SEVERABILITY. If any provision of this
Agreement shall be held by any court of competent jurisdiction to be illegal,
invalid, or unenforceable, such provision shall be construed and enforced as if
it had been more narrowly drawn so as not to be illegal, invalid or
unenforceable, and such illegality, invalidity or unenforceability shall have
no effect upon and shall not impair the enforceability of any other provision
of this Agreement.
13.8 GOVERNING LAW. This Agreement shall be
governed by and construed and interpreted in accordance with the laws of the
State of California.
13.9 COUNTERPARTS. This Agreement may be executed
in one or more counterparts, each of which shall be deemed an original, but all
of which taken together shall constitute one and the same instrument.
13.10 ATTORNEYS' FEES. In the event that any party
shall bring an action in connection with the performance, breach or
interpretation of this Agreement, or in any action related to the transaction
contemplated hereby, the prevailing party in such action, as may be determined
by the court or other tribunal having jurisdiction, shall be entitled to
recover from the losing party in such action all actual costs and expenses of
such litigation, including attorneys' fees, court costs, costs of
investigation, accounting, and other costs reasonably related to such
litigation, in such amount as may be determined in the
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discretion of the court or other tribunal having jurisdiction of such action.
EXECUTED as of the date first above written.
PURCHASER:
---------
Reddi Brake Supply Corporation
By:
------------------------------
S. Xxxxxx Xxxxx
Executive Vice President
and CFO
By:
------------------------------
Title:
--------------------------
SELLER:
------
----------------------------------
Xxxxx X. Xxxxxxx
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