Exhibit 10(w)
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, made and entered into as of this 23rd day of
February, 1995, by and among ADESA CORPORATION, an Indiana corporation (the
"ADESA"), and D. XXXXXXX XXXXXXX ("Shareholder").
WHEREAS, Minnesota Power & Light Company ("MPL"), ADESA, Shareholder
and others have entered into a letter agreement dated January 5, 1995 ("Letter
of Intent") which contemplates, among other things, that a subsidiary of MPL
will be merged with and into ADESA (the "Merger") pursuant to the terms of an
Agreement and Plan of Merger of even date ("Merger Agreement"), that ADESA will
survive the Merger and that, in connection with the Merger, Shareholder will,
after the Merger, continue to own 2,129,379 shares of ADESA; and
WHEREAS, the Letter of Intent contemplates that the Shareholder will
agree to sell his ADESA shares to ADESA upon his death, disability or
termination of employment; and
WHEREAS, MPL will not undertake the Merger unless it is assured that
after the Merger the Shareholder will be obligated to sell his ADESA shares to
ADESA in said circumstances; and
WHEREAS, to induce MPL to enter into the Merger Agreement contemplated
by the Letter of Intent, and thereafter to consummate the Merger, Shareholder
and ADESA desire to enter into this Stock Purchase Agreement, upon the terms and
conditions hereof.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereby agree as
follows:
1. Definitions. The following terms shall have the following meanings
hereunder:
1.1 "Shares" shall mean all the shares of capital stock of ADESA
owned by the Shareholder at the time of any Triggering Event.
1.2 "Disability" shall mean (a) that as a result of the
Shareholder's incapacity due to physical or mental illness, including
without limitation chemical dependency, the Shareholder shall have been
absent from his full time duties with ADESA for six months during any
12-month period or (b) while employed by ADESA, Shareholder is found to
be permanently disabled by (i) any insurer of ADESA pursuant to the
terms of any disability insurance contract covering Shareholder which
is then in effect, (ii) the Social Security Administration for purposes
of Social Security disability payments, or (iii) by any tribunal or
court.
1.3 "EBITDA" shall mean the product of (a) six and (b) the trailing
12-month after-tax earnings of ADESA and its consolidated subsidiaries
(calculated as if ADESA at all times owned 100% of ADESA Canada), plus
any of the following incurred by ADESA and its consolidated
subsidiaries during said period (i) all interest expense exclusive of
interest expenses of Automotive Finance Corporation and of any dealer
floor planning business, consumer finance business or other similar
finance business conducted by ADESA or any of its consolidated
subsidiaries , (ii) all taxes on or measured by revenue or income,
(iii) all rental payments made under incentive leases of the type set
forth on Exhibit A to this Agreement, exclusive of operating expenses
associated therewith, (iv) all charges resulting from push down
accounting, and (v) depreciation and amortization expense. Except for
treating ADESA Canada as 100% owned, EBITDA and its components shall be
calculated by reference to the books and records of ADESA and its
consolidated subsidiaries prepared in accordance with generally
accepted accounting principles prepared on a basis consistent with
prior periods.
1.4 "Effective Date" shall mean the Effective Time as that term is
defined in the Merger Agreement.
1.5 "Triggering Event" shall mean the (a) death of the Shareholder
at any time during or after his employment by ADESA, (b) Disability
occurring during Shareholder's employment with ADESA, (c) termination
by Shareholder of the Shareholder's employment with ADESA for "Good
Reason" as defined in Section 5.5(a) of the Executive Employment
Agreement between ADESA and the Shareholder, or (d) termination by
ADESA without "Cause" as such term is defined in Section 5.3 of said
Executive Employment Agreement.
1.6 "Transfer" shall mean any sale, assignment, trade, transfer,
encumbrance, pledge, hypothecation, gift or any other disposition of
Shares whether voluntary or involuntary or by operation of law, and
whether testamentary or inter vivos, other than a sale of Shares under
this Agreement or under that certain Put and Call Agreement between
ADESA and the Shareholder of even date herewith.
2. Purchase and Sale of Stock Upon Triggering Event.
2.1 Agreement to Purchase and Sell. After the Effective Date and
upon the occurrence of a Triggering Event ADESA shall purchase from
Shareholder, and the Shareholder shall sell to ADESA, all of the Shares
at the purchase price specified in Section 2.2 hereof.
2.2 Purchase Price. The purchase price per Share for sales occurring
under this Section 2 shall be: (a) if the Triggering Event occurs on or
before April 30, 1999, the
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greater of (i) $17.00, or (ii) EBITDA divided by the weighted daily
average number of shares of ADESA's capital stock outstanding during
the 365-day period ending on the date of the Triggering Event, and (b)
if the Triggering Event occurs after April 30, 1999, the greater of (i)
EBITDA divided by the weighted daily average number of shares of
ADESA's capital stock outstanding during the 365-day period ending on
the date of the Triggering Event or (ii) the fair value of the Shares,
without discount for minority interest or lack of marketability as
determined by agreement by the parties or, if the parties do not reach
agreement within thirty days after the Triggering Event, the fair value
of the Shares as determined by arbitration in Indianapolis, Indiana or,
if the parties shall agree in writing, by mediation. In determining the
weighted daily average number of shares of ADESA capital stock
outstanding, the outstanding shares of ADESA capital stock shall be
deemed increased by the number of shares of ADESA which Xxxxx Xxxxxxx
and/or Xxxxxx Xxxxxxx would own if their then owned ADESA Canada shares
were converted into ADESA shares at a conversion ratio of 9.8 ADESA
shares for each share of ADESA Canada and such increased number of
shares shall be deemed to have been oustanding during the entire
365-day period ending on the date of the Triggering Event. If
arbitration is used, the arbitration shall be conducted by three
arbitrators; one arbitrator shall be selected by each party and the two
arbitrators shall chose an impartial third arbitrator who shall preside
at the arbitration. If either party fails to appoint its arbitrator
within 10 days after being requested to do so by the other party, the
latter, after 10 days' notice of its intention to do so, may appoint
the second arbitrator. If the two arbitrators are unable to agree upon
the third arbitrator within 10 days after their appointment, the third
arbitrator shall be selected from a list of six individuals (three
named by each arbitrator) by a judge of the federal district court
having jurisdiction over the geographical area in which the arbitration
is to take place, or if the federal court declines to act, the state
court having general jurisdiction in such area. Promptly after
appointment of all arbitrators, the panel shall meet and determine
timely periods for briefs, discovery procedures and schedules for
hearings. The decision of any two arbitrators or the mediator when
rendered in writing shall be final and binding and judgment upon the
award of the arbitrators or mediator may be entered in any court having
jurisdiction thereof. All costs of the arbitration or mediation shall
be allocated by the panel or the mediator. If arbitration is used, the
arbitration shall, in all other respects, be conducted in accordance
with the rules and procedures of the American Arbitration Association.
2.3 Closing. The closing of any purchase and sale under this Section
2 shall occur at the offices of ADESA. The closing shall occur on the
later of the 30th day after (a) the
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Triggering Event (or if such date is not a business day, on the next
business day thereafter), or (b) not more than 10 business days from
the date the mediator or arbitrators render a decision in the event
that the parties fail to reach agreement as to fair value in a
circumstance governed by Section 2.2(b).
3. Prohibition of Certain Voluntary Transfers. From the date hereof
through and including April 30, 1999 the Shareholder shall not voluntarily
Transfer any Shares to any person or entity without the prior written consent of
ADESA which consent may be withheld by ADESA in its sole discretion.
4. Right of First Refusal in Favor of Corporation.
4.1 Voluntary Transfers After April 30, 1999. After April 30, 1999,
the Shareholder shall not voluntarily Transfer any Shares to any person
or entity without first giving ADESA 60 days' written notice of his
intent to transfer Shares during which time Shareholder will, if so
requested by ADESA, enter into good faith negotiations with ADESA with
respect to the purchase of the Shares by ADESA. If ADESA and
Shareholder are unable, within said 60-day period, to agree on the
price and terms for the purchase of the Shares by ADESA, and if
Shareholder is not then in default hereunder, the Shareholder shall be
entitled, for a period of 90 days following the expiration of said
60-day period, to Transfer the Shares to a Transferee. If the Transfer
of the Shares has not closed within said 90-day period, the
Shareholder's right to Transfer the Shares free of the restriction set
forth in this Section 4.1 shall expire and the Shares shall not
thereafter be Transferred without again complying with this Section
4.1.
4.2 Involuntary Transfers. In the case of any involuntary Transfer
of any of the Shares (other than a Transfer upon death) after the
Effective Date as a consequence of an order in a divorce proceeding or
due to any other consequences, ADESA shall have the right to purchase
such Shares in the manner set forth in this Section 4.2. Immediately
upon becoming aware of an involuntary Transfer of his Shares the
Shareholder shall furnish written notice to ADESA. For a period
expiring on the later of the 60th day after the Shareholder's notice or
the first day on which ADESA becomes aware of an involuntary Transfer,
ADESA shall have the right to elect to purchase the Shares acquired by
the Transferee at the price specified in Section 2.2(a) if the Transfer
occurs on or before April 30, 1999, or the price specified in Section
2.2(b) if the Transfer occurs after April 30, 1999. ADESA shall inform
the Shareholder and the Transferee of its election by written notice.
If ADESA fails to give written notice to the Shareholder and the
Transferee within the 60-day period, ADESA shall be deemed to have
elected not to purchase the Shares, and the involuntary
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transferee shall become the owner thereof, free of the restrictions set
forth herein.
4.3 Closing. The closing of any purchase under this Section 4 shall
occur at the offices of ADESA. A closing under Section 4.1 shall occur
on the date agreed upon by ADESA and the Shareholder. A closing under
Section 4.2 shall occur on a date specified by ADESA but in no case
later than the 61st day after the later of the date on which ADESA
receives notice from the Shareholder of the involuntary Transfer or the
date on which ADESA otherwise learns of the involuntary Transfer.
5. Representations. The Shareholder represents that (a) at the time of
closing, all Shares sold by him hereunder will be free and clear of all liens,
claims and encumbrances of any sort and (b) the execution, delivery and
performance of this Agreement does not and will not breach, violate or conflict
with any agreement order, judgment, decree or law to which he is or becomes a
party or by which his property is or becomes bound.
6. Offset of Shareholder Indebtedness. If, at the time of the purchase
of the Shares hereunder, the Shareholder is indebted to ADESA, ADESA shall have
the right to offset any such indebtedness, including interest thereon, against
the purchase price due for the Shares.
7. Legend on Shares Certificates.
7.1 Legend on Currently Outstanding Certificates. In addition to any
other legends required to be placed on such certificates, ADESA and
the Shareholder agree that the following legend shall be conspicuously
endorsed on each certificate evidencing Shares owned by the
Shareholder:
"The transfer of the shares represented by this certificate is
restricted by, and subject to, the provisions of a certain
Stock Purchase Agreement, dated as of February ___, 1995
between the registered holder hereof and ADESA Corporation. A
copy of the Agreement is on file with the secretary of the
Company."
The Secretary of ADESA shall keep a copy of this Agreement on file in
ADESA's principal office.
7.2 Legend on Certificates Issued Subsequent Hereto. A copy of this
Agreement shall be filed with the Secretary of ADESA. During the term
of this Agreement, a legend reading as above shall be conspicuously
endorsed on each certificate representing Shares hereafter issued by
ADESA to the Shareholder.
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8. Right to Specific Performance. The parties agree that the remedy at
law for failure of any party to perform would be inadequate, and that the
injured party or parties, at his option, shall have the right to compel the
specific performance of this Agreement in a court of competent jurisdiction.
This right shall be in addition to and not in lieu of any additional or
alternative right or remedy which may be available to a party at law or in
equity.
9. Miscellaneous Provisions.
9.1 Notices. All notices, requests, and other communications from
any of the parties to another shall be in writing and shall be
considered to have been duly given or served if personally delivered,
telecopied, sent by national overnight delivery service, or sent by
first class, certified or registered mail, return receipt requested,
postage prepaid, to the party at his or its address as provided below,
or to such other address as such party may hereafter designate by
written notice to the other parties: (a) if to ADESA, to the address of
its then principal office, Attention: Chairman of the Board; (b) if to
MPL, to the address of MPL noted below; and (c) if to the Shareholder,
to the address last shown for the Shareholder in the records of ADESA.
Copies of all notices shall be sent to MPL at 00 Xxxx Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxx 00000, Attention: Chairman of the Board. Any notice
shall be deemed to be received when delivered if delivered personally,
the next business day after receipt of electronic sent confirmation (or
other confirmation of receipt) if telecopied, the next business day if
sent by a national overnight delivery service, or three business days
after the date mailed if sent by certified or registered mail. Whenever
the giving of notice is required, the giving of such notice may be
waived in writing by the party entitled to receive such notice.
9.2 Amendment. This Agreement may not be altered or amended without
the prior written consent of MPL, and then may be altered or amended
only by a written amendment signed by the Shareholder and ADESA. No
amendment which enlarges the Shareholder's rights hereunder shall be
effective unless Xxxxx X. Xxxxxxx and all the Management Shareholders
(as that term is defined in the Merger Agreement), if they then own
Shares or ADESA Canada stock, shall have consented thereto in writing.
9.3 Governing Law. This Agreement shall be subject to and
governed by the internal laws of the State of Indiana notwithstanding
the choice of law rules of Indiana or any other jurisdiction.
9.4 Parties in Interest. This Agreement shall be binding upon the
heirs, executors, administrators, successors
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and assigns of the Shareholder and of ADESA. The Shareholder and ADESA
do hereby covenant and agree that they, their heirs, executors,
administrators, successors and assigns will take all action and execute
any and all instruments, releases, assignments, and consents which may
reasonably be required of them in order to carry out the provisions of
this Agreement. It is the intention of the parties that MPL be a third
party beneficiary of this Agreement, entitled to enforce this Agreement
for and on behalf of ADESA.
9.5 Counterparts. This Agreement may be executed in any number of
counterparts each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
9.6 Severability. To the extent that any provision of this Agreement
shall be determined to be invalid or unenforceable, the invalid or
unenforceable portion of such provision shall be deleted from this
Agreement, and the validity and enforceability of the remainder of such
provision and of this Agreement shall be unaffected.
9.7 Captions. The captions at the head of a section or a paragraph
of this Agreement are designed for convenience of reference only and
are not to be resorted to for the purpose of interpreting any provision
of this Agreement.
9.8 Meanings of Pronouns; Singular and Plural Words. All pronouns
used in this Agreement shall be deemed to refer to the masculine,
feminine, neuter, singular and plural, as the identity of the person to
which or to whom reference is made may require. Unless the context in
which it is used shall clearly indicate to the contrary, words used in
the singular shall include the plural, and words used in the plural
shall include the singular.
9.9 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes all prior written and oral agreements and understandings
with respect thereto.
9.10 No Assignment. Neither this Agreement nor any rights or
obligations hereunder may be assigned or delegated by any party hereto
without the written consent of the other party.
9.11 Interpretation. When a reference is made in this Agreement to
Sections or Exhibits such reference shall be to a Section or Exhibit to
this Agreement unless otherwise indicated. Whenever the words
"include," "includes," or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation."
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9.12 Effective Date. This Agreement shall become effective on the
Effective Date.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ADESA Corporation
By D. Xxxxxxx Xxxxxxx
--------------------------------
Its President
Shareholder:
D. Xxxxxxx Xxxxxxx
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EXHIBIT A
INCENTIVE LEASES
Lease and Development Agreement by and between Auto Dealers Exchange of Concord,
Inc. and Asset Holdings III, L.P., dated December 21, 1994.
Lease and Development Agreement by and between A.D.E. of Knoxville, Inc. and
Asset Holdings III, L.P., dated November 28, 1994.
Lease and Development Agreement by and between ADESA-Charlotte, Inc. and Asset
Holdings III, L.P., dated November 28, 1994.
Lease Agreement with Option to Purchase by and between X.X. Xxxxxx and ADESA
Austin, Inc., executed on or about September 30, 1994.
Lease of Commercial Property with Option to Purchase by and between Northfield
Auto Auction Corp. and ADESA-Ohio, Inc., dated February 28, 1994.
Various tractor and trailer leases pursuant to a Master Lease Agreement by and
between ADESA Corporation and Banc One Leasing Corporation, dated November 11,
1993.
