EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement"), entered into this _______
day of November, 1996, by and among SMART CHOICE HOLDINGS, INC., a Delaware
corporation (the "Buyer") and XXXX XXXXX, an individual (the "Stockholder");
W I T N E S S E T H:
WHEREAS, Florida Finance Group, a Florida corporation (the "Company"),
is engaged in a business consisting primarily of finance and leasing activities
in connection with the sale of new and used automobiles and other consumer
vehicles (the "Business"); and
WHEREAS, the Stockholder is the record and beneficial owner of all of
the issued and outstanding capital stock of the Company (the "Stock"); and
WHEREAS, the Buyer desires to purchase from the Stockholder, and the
Stockholder desires to sell to the Buyer, all upon the terms and subject to the
conditions set forth in this Agreement, all (and not less than all) of the
Stock, and the business of the Company as a going concern;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereby agree as follows:
1. ACQUISITION OF THE STOCK.
1.1 EXCHANGE OF SHARES. Subject to the terms and conditions of this
Agreement, on the date hereof, the Buyer is purchasing and acquiring from the
Stockholder, and the Stockholder is selling and transferring to the Buyer, all
(and not less than all) of the Stock, solely in exchange for the shares of
common stock of the Buyer provided for in Section 2 below. In furtherance
thereof, the Stockholder is, simultaneously with the execution and delivery of
this Agreement, delivering to the Buyer the certificates representing all of the
Stock, duly endorsed for transfer or accompanied by stock powers executed in
blank for transfer.
1.2 BOOKS AND RECORDS. On the date hereof, in addition to the
delivery and transfer of the Stock to the Buyer, the Stockholder is delivering,
and causing the Company to deliver, to the Buyer all of the stock books, records
and minute books of the Company, all financial and accounting books and records
of the Company, and all referral, client, customer and sales records of the
Company.
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2. CONSIDERATION.
2.1 SHARES.
(a) As the sole consideration for the Stock, the Buyer is
issuing to the Stockholder an aggregate of 285,714 shares of common stock of the
Buyer (the "Shares"), which are being issued and delivered to the Stockholder
concurrently with the execution and delivery of this Agreement, and which the
Buyer and the Stockholders agree have an aggregate fair value on the date hereof
of $____________ (the "Company Valuation"). The Company Valuation represents an
amount calculated as the difference of (i) 85% of the aggregate outstanding
principal amount of all outstanding finance receivables, accounts receivable,
notes receivable and other rights to receive payment under outstanding credit
agreements, finance leases and other such agreements under which the Company is
the payee or obligee (the "Receivables"), minus (ii) the sum of (A) the
aggregate principal amount, and all unpaid accrued interest thereon, of all
borrowings owed by the Company to Finova Credit Corporation and/or any of its
affiliates ("Finova"), plus (B) the $1,000,000 (approximate) principal amount,
and all unpaid accrued interest thereon, owed by the Company to certain private
investors as listed in SCHEDULE 4.17 annexed hereto, plus (C) $250,000.
(b) In the event that NEITHER of the following events occurs:
(i) the Buyer consummates an initial public offering of its common stock on or
prior to June 30, 1997, or (ii) the Buyer consummates, on or prior to June 30,
1997, a merger, share exchange or other business combination (a "Combination")
with another entity (an "Exchange Entity") whereby the stockholders of the Buyer
receive shares of such Exchange Entity of a class which is listed or traded on
any national securities exchange or recognized automated quotation system (such
as NASDAQ); THEN the Buyer shall redeem all of the Shares for an aggregate price
equal to the Company Valuation, which shall be payable in immediately available
funds within sixty (60) days after written demand therefor made at any time
after July 1, 1997 and prior to the occurrence of either of the events described
in clauses (i) and (ii) of this Section 2.1(b) (without regard to the date of
the occurrence of such event).
3. REORGANIZATION.
3.1 TAX-FREE REORGANIZATION. The parties intend that the
transactions pursuant to this Agreement qualify as a tax-free reorganization
under the Internal Revenue Code of 1986, as amended, and the parties shall
report these transactions and take such actions and otherwise conduct their
affairs so as to give effect to such intention.
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4. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER.
In connection with the sale and transfer of the Stock to the
Buyer, the Stockholder hereby represents and warrants to the Buyer as follows:
4.1 TITLE TO THE STOCK. The Stockholder is the valid and lawful
record and beneficial owner of all of the Stock. All of the Stock has been duly
authorized and validly issued and is fully paid and non-assessable, and is free
and clear of all pledges, liens, claims, charges, options, calls, encumbrances,
restrictions and assessments whatsoever (except any restrictions which may be
created by operation of state or federal securities laws). The Buyer is
receiving from the Stockholder good, valid and marketable title to all of the
Stock, free and clear of all pledges, liens, claims, charges, options, calls,
encumbrances, restrictions and assessments whatsoever (except any restrictions
which may be created by operation of state or federal securities laws).
4.2 VALID AND BINDING AGREEMENT; NO BREACH.
(a) The Stockholder has full legal right, power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. This Agreement constitutes the legal, valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms, except to the extent that such enforceability may be limited by
bankruptcy, insolvency, reorganization and other laws affecting creditors'
rights generally, and except that the remedy of specific performance or similar
equitable relief is available only at the discretion of the court before which
enforcement is sought.
(b) Except as disclosed in SCHEDULE 4.2 annexed hereto,
neither the execution and delivery of this Agreement by the Stockholder, nor
compliance with the terms and provisions of this Agreement on the part of the
Stockholder, will: (i) violate any statute or regulation of any governmental
authority, domestic or foreign, affecting the Company or the Stockholder; (ii)
require the issuance of any authorization, license, consent or approval of any
federal or state governmental agency; or (iii) conflict with or result in a
breach of any of the terms, conditions or provisions of any judgment, order,
injunction, decree, note, indenture, loan agreement or other agreement or
instrument to which the Company or the Stockholder is a party, or by which the
Company or the Stockholder is bound, or constitute a default thereunder.
4.3 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Florida, with full corporate power and authority to own its
assets and conduct its business as owned and conducted on the date hereof. The
Company is not required to be qualified as a foreign corporation under the
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laws of any jurisdiction. True and complete copies of the Certificate of
Incorporation and By-Laws of the Company (including all amendments thereto), and
a correct and complete list of the officers and directors of the Company, are
annexed hereto as SCHEDULE 4.3.
4.4 CAPITAL STRUCTURE; EQUITY OWNERSHIP.
(a) The authorized capital stock of the Company is as set
forth in its Certificate of Incorporation as included in SCHEDULE 4.3, and the
Stock constitutes and represents all of the outstanding capital stock of the
Company.
(b) There are no outstanding subscriptions, options, rights,
warrants, convertible securities or other agreements or calls, demands or
commitments obligating the Company to issue, transfer or purchase any shares of
its capital stock, or obligating the Stockholder to transfer any shares of the
Stock. No shares of capital stock of the Company are reserved for issuance
pursuant to stock options, warrants, agreements or other rights to purchase
capital stock.
4.5 SUBSIDIARIES AND INVESTMENTS. The Company does not own,
directly or indirectly, any stock or other equity securities of any corporation
or entity, or have any direct or indirect equity or ownership interest in any
person, firm, partnership, corporation, venture or business other than the
business conducted by the Company.
4.6 FINANCIAL INFORMATION.
(a) Annexed hereto as SCHEDULE 4.6(A) are the unaudited
financial statements (including balance sheet, income statement and statement of
cash flows) for the Company as of December 31, 1993, December 31, 1994 and
December 31, 1995 and for each of the years then ended, and as of June 30, 1996
and for the six (6) months then ended (collectively, the "Financial
Statements"), all of which fairly reflect, in all material respects, the
financial condition and results of operations of the Company as of the dates
thereof and for the periods then ended; and, without limitation of the
foregoing, the Company does not have any material liabilities, fixed or
contingent, known or unknown, except to the extent reflected in the most recent
of such Financial Statements or thereafter incurred in the normal course of the
Company's business.
(b) Annexed hereto as SCHEDULE 4.6(B) are the payment
histories of each of the credit agreements, finance leases and other agreements
underlying the Receivables, all of which fairly present the dates and amounts of
all receipts and disbursements under or in respect of such credit agreements,
finance leases and other agreements. Except as and to the extent
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reflected in such payment histories, (i) all payments under such credit
agreements, finance leases and other agreements have been made in a full and
timely manner, and (ii) there have been no prepayments made in respect of any
such credit agreements, finance leases or other agreements.
4.7 NO MATERIAL CHANGES. Except as disclosed in SCHEDULE 4.7
annexed hereto, since the date of the most recent of the Financial Statements,
(a) the business of the Company has been operated solely in the normal course,
(b) there has been no material adverse change in the financial condition,
operations or business of the Company from that reflected in such Financial
Statements, (c) the Company has not incurred any material obligation or
liability except in the normal course of business, (d) the Company has not
effected or suffered any material modification in its collection practices, or
with respect to the timing and manner of payment of its accounts payable, and
(e) there has not been any (i) sale, assignment or transfer by the Company of
any assets or other part of its business, excluding the sale or disposition of
inventory, and/or the sale of loans, in the ordinary course of business, (ii)
acquisitions or commitments to acquire (whether by purchase, lease or otherwise)
any capital assets by the Company wherein the aggregate payments will exceed
$10,000, (iii) increase or commitment to increase the compensation or benefits
of any employees of the Company, (iv) implementation or institution of any
bonus, benefit, profit-sharing, pension, retirement or other plan or similar
arrangement which was not in existence on June 30, 1996, or (v) new employment
agreement, or modification of any existing employment agreement, by the Company.
4.8 TAX MATTERS.
(a) The Company has, to the date hereof, timely filed all tax
reports and tax returns required to be filed by the Company, and the Company has
paid all taxes, assessments and other impositions as and to the extent required
by applicable law. All federal, state and local income, franchise, sales, use,
property, excise and other taxes (including interest and penalties and including
estimated tax installments where required to be filed and paid) due from or with
respect to the Company as of the date hereof have been fully paid, and all taxes
and other assessments and levies which the Company is required by law to
withhold or to collect have been duly withheld and collected and have been paid
over to the proper governmental authorities to the extent due and payable. There
are no outstanding or pending claims, deficiencies or assessments for taxes,
interest or penalties with respect to any taxable period of the Company.
(b) Except as disclosed in SCHEDULE 4.8 annexed hereto, there
are no audits pending with respect to any federal, state or local tax reports or
tax returns of the Company, and no
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waiver of statutes of limitations have been given or requested with respect to
any tax years or tax filings of the Company.
4.9 TITLE AND CONDITION OF THE ASSETS. Except for liens securing
the Company's indebtedness to Finova as described in Section 2.1(a)(ii)(A) above
(which liens secure only such indebtedness), the Company has and owns good and
marketable title to all of its assets, free and clear of all liens, pledges,
claims, security interests and encumbrances of every kind and nature. All of the
Company's fixed assets are in good operating condition and repair (reasonable
wear and tear excepted), are adequate for their use in the Business as presently
conducted, and are sufficient for the continued conduct of such Business.
4.10 RECEIVABLES. All of the Receivables (whether reflected in
the Financial Statements or thereafter created or acquired by the Company prior
to the date hereof), (a) have arisen in the normal course of the Company's
business, (b) are not subject to any counterclaims, set-offs, allowances or
discounts of any kind, and (c) have been, are and will be valid and generally
collectible in the ordinary course of the Business; and the Stockholder has no
knowledge of any material or unusual risk of non-payment of any of the
Receivables.
4.11 INVENTORY. All of the Company's inventory (whether reflected
in the Financial Statements or thereafter acquired by the Company prior to the
date hereof) is of a quality, age and quantity consistent with the historical
practices of the Company, and is valued on the Company's books at cost.
4.12 LEGAL COMPLIANCE.
(a) The Company is, and for the past three (3) years has been,
in compliance in all material respects with all laws, statutes, regulations,
rules and ordinances applicable to the conduct of its business (including,
without limitation, all applicable environmental laws, statutes, regulations,
rules and ordinances), and has in full force and effect all licenses, permits
and other authorizations required for the conduct of its business as presently
constituted; and the Company is not in default or violation in respect of or
under any of the foregoing, and none of such licenses, permits or other
authorizations will be voided, revoked or terminated, or voidable, revocable or
terminable, upon and by reason of the change of ownership of the Company
pursuant to this Agreement. The Stockholders is not aware of any past or present
condition or circumstance in the Company's business (including, without
limitation, with respect to any real property now or previously occupied by the
Company) which could give rise to any material liability under any such law,
statute, regulation, rule or ordinance.
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(b) To the best of the Stockholder's knowledge, the Company
has not, at any time during the three (3) year period prior to the date hereof,
(i) handled, stored, generated, processed or disposed of any hazardous
substances in violation of any federal, state or local environmental laws or
regulations, (ii) otherwise committed any material violation of any federal,
state or local environmental laws or regulations or any material violation of
the Occupational Safety and Health Act, or (iii) been in material violation of
any requirements of its insurance carriers from time to time.
(c) Neither the Company nor the Stockholder has received any
written notice of default or violation, nor, to the best of the Stockholder's
knowledge, is the Company or any of its directors, officers or employees in
default or violation, with respect to any judgment, order, writ, injunction,
decree, demand or assessment issued by any court or any federal, state, local,
municipal or other governmental agency, board, commission, bureau,
instrumentality or department, domestic or foreign, relating to any aspect of
the Company's business, affairs, properties or assets. Neither the Company nor
the Stockholder has received written notice of, been charged with, or is, to the
best of the Stockholder's knowledge, under investigation with respect to, any
violation of any provision of any federal, state, local, municipal or other law
or administrative rule or regulation, domestic or foreign, relating to any
aspect of the Company's business, affairs, properties or assets, which violation
would have a material adverse effect on the Company, its business or any
material portion of its assets.
4.13 REAL PROPERTY. The Company does not own any real estate or
any interest therein, except to the extent of its interest as lessee under the
lease for its business premises (the "Lease", a true and complete copy of which
is annexed hereto as SCHEDULE 4.13). The Company (and, to the best of the
Stockholder's knowledge, the landlord thereunder) is presently in compliance
with all of its obligations under the Lease, and the premises leased thereunder
are in good condition (reasonable wear and tear excepted), and are adequate for
the operation of the Business as presently conducted. No consent of the landlord
under the Lease which has not previously been obtained is required in connection
with the transactions contemplated by this Agreement.
4.14 INSURANCE. The Company maintains, has in full force and
effect, and has paid all premiums in respect of insurance covering its business
and assets against such hazards and in such amounts as are normal and customary
for businesses of similar size, scope and nature.
4.15 EMPLOYEES. Except as disclosed in SCHEDULE 4.15 annexed
hereto, the Company is not a party to or bound by any collective bargaining
agreement, employment agreement, consulting agreement or other commitment for
the employment or retention of
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any person, and no union is now certified or has claimed the right to be
certified as a collective bargaining agent to represent any employees of the
Company. The Company has not had any material labor difficulty in the past two
(2) years, and neither the Company nor the Stockholder has received notice of
any unfair labor practice charges against the Company or any actual or alleged
violation by the Company of any law, regulation, or order affecting the
collective bargaining rights of employees, equal opportunity in employment, or
employee health, safety, welfare, or wages and hours.
4.16 EMPLOYEE BENEFITS. The Company does not maintain and is not
required to make any contributions to any pension, profit-sharing, retirement,
deferred compensation or other such plan or arrangement for the benefit of any
employee, former employee or other person, and the Company does not have any
obligations with respect to deferred compensation or future benefits to any past
or present employee. SCHEDULE 4.16 annexed hereto fairly summarizes the employee
benefits currently granted by the Company to its employees.
4.17 CONTRACTS AND COMMITMENTS. The Company has previously
provided reasonable access to the Buyer and its representatives to permit such
persons to inspect and copy all of the credit agreements, finance leases and
other agreements underlying the Receivables. Other than (a) such credit
agreements, finance leases and other agreements underlying the Receivables, (b)
the Lease, and (c) those contracts and commitments listed on SCHEDULE 4.17
annexed hereto, there is no contract, agreement, commitment or understanding
which is material to the ongoing operation of the Business. To the best of the
Stockholder's knowledge, all of such agreements and contracts are in full force
and effect, and there is no material default or non-performance outstanding
thereunder. None of such agreements or contracts will be voided, revoked or
terminated, or voidable, revocable or terminable, upon and by reason of the
change of ownership of the Company pursuant to this Agreement.
4.18 LITIGATION. There is no pending or, to the best knowledge of
the Stockholder, threatened litigation, arbitration, administrative proceeding
or other legal action or proceeding against the Company or relating to its
business. The Stockholder is not aware of any state of facts, events, conditions
or occurrences which the Stockholder should reasonably believe would properly
constitute grounds for or the basis of any suit, action, arbitration, proceeding
or investigation against or with respect to the Company.
4.19 INTELLECTUAL PROPERTY. The Company has the valid right to
utilize all trade names and other intellectual property utilized in its
business, and has not received notice of any
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claimed infringement of any of such intellectual property with the rights or
property of any other person.
4.20 BANK ACCOUNTS. Annexed hereto as SCHEDULE 4.20 is a correct
and complete list of all bank accounts and safe deposit boxes maintained by or
on behalf of the Company, with indication of all persons having signatory,
access or other authority with respect thereto.
4.21 GOING CONCERN. The Stockholder has no knowledge of any fact,
event, circumstance or condition (including but not limited to any announced or
anticipated changes in the policies of any material supplier, referral source,
client or customer) that would materially impair the ability of the Company to
continue the Business in substantially the manner heretofore conducted (other
than general, industry-wide conditions).
4.22 THE SHARES. The Stockholder hereby confirms that the Shares
constitute "restricted securities" under applicable federal and state securities
laws, and that the Shares may not be resold in the absence of an effective
registration thereof under federal and state securities laws or an available
exemption from such registration requirements. The Stockholder further confirms
that he has received no assurance whatsoever as to whether or when any of the
Shares will be registered under federal or state securities laws, and that,
accordingly, the Stockholder may be required to hold the Shares indefinitely.
4.23 DISCLOSURE AND DUTY OF INQUIRY. The Buyer is not and will
not be required to undertake any independent investigation to determine the
truth, accuracy and completeness of the representations and warranties made by
the Stockholder in this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF THE BUYER.
In connection with the Buyer's acquisition of the Stock, the
Buyer hereby represents and warrants to the Stockholder as follows:
5.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Buyer is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, with all necessary power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
5.2 AUTHORIZATION OF AGREEMENT. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby by the Buyer has been duly and validly authorized by the
Board of Directors of the Buyer. No further corporate authorization is required
on the part of the Buyer to consummate the transactions contemplated hereby.
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5.3 VALID AND BINDING AGREEMENT. This Agreement constitutes the
legal, valid and binding obligation of the Buyer, enforceable against the Buyer
in accordance with its terms, except to the extent limited by bankruptcy,
insolvency, reorganization and other laws affecting creditors' rights generally,
and except that the remedy of specific performance or similar equitable relief
is available only at the discretion of the court before which enforcement is
sought.
5.4 NO BREACH OF STATUTE OR CONTRACT. Neither the execution and
delivery of this Agreement by the Buyer, nor compliance with the terms and
provisions of this Agreement on the part of the Buyer, will: (a) violate any
statute or regulation of any governmental authority, domestic or foreign,
affecting the Buyer; (b) require the issuance of any authorization, license,
consent or approval of any federal or state governmental agency; (c) conflict
with or result in a breach of any of the terms, conditions or provisions of any
judgment, order, injunction, decree, note, indenture, loan agreement or other
agreement or instrument to which the Buyer is a party, or by which the Buyer is
bound, or constitute a default thereunder; or (d) require the consent of any
third party under any outstanding statute, regulation, judgment, order,
injunction, decree, agreement or instrument to which the Buyer is a party, or by
which the Buyer is bound.
5.5 ISSUANCE OF SHARES. The issuance of the Shares hereunder has
been duly authorized by all necessary corporate action on the part of the Buyer,
and the Shares are validly issued, fully paid and non-assessable. The Shares are
part of the only class of voting stock of the Buyer authorized on the date
hereof.
5.6 INVESTMENT. The Buyer is purchasing the Stock for its own
account for investment, and not with a view to the resale or distribution
thereof in violation of any applicable securities laws.
5.7 DISCLOSURE AND DUTY OF INQUIRY. The Stockholder is not and
will not be required to undertake any independent investigation to determine the
truth, accuracy and completeness of the representations and warranties made by
the Buyer in this Agreement.
6. ADDITIONAL AGREEMENTS.
6.1 RESIGNATIONS. In addition to the other deliveries being made
pursuant to this Agreement on the date hereof, the Stockholders are causing to
be executed and delivered to the Company the resignations of all officers and
directors of the Company (except to the extent that such resignations are not
being required by the Buyer).
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6.2 AUDIT OF FINANCIAL STATEMENTS. The Stockholder shall, from
time to time as and when requested by the Buyer from and after the date hereof,
cooperate with and assist the Buyer in all reasonable respects in dealing with
the accountants heretofore retained by the Company, in order that the Buyer and
its accountants may obtain copies of all work papers utilized or prepared by the
Company's accountants in connection with their review of the Financial
Statements, and consult with the Company's accountants as and to the extent
necessary or appropriate in connection with the preparation of audited financial
statements of the Company for all periods from and after January 1, 1993 in
accordance with Regulation S-X promulgated under the Securities Act of 1933, as
amended.
7. [INTENTIONALLY OMITTED].
8. INDEMNIFICATION.
8.1 GENERAL.
(a) The Stockholder shall defend, indemnify and hold harmless
the Buyer from, against and in respect of any and all claims, losses, costs,
expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties and reasonable attorneys' fees, that the Buyer may
incur, sustain or suffer ("Losses") as a result of any breach of, or failure by
the Stockholder to perform, any of the representations, warranties, covenants or
agreements of the Stockholder contained in this Agreement or in any Schedule(s)
furnished by or on behalf of the Company or the Stockholder under this
Agreement.
(b) The Buyer shall defend, indemnify and hold harmless the
Stockholder from, against and in respect of any and all claims, losses, costs,
expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties and reasonable attorneys' fees, that the
Stockholder may incur, sustain or suffer as a result of any breach of, or
failure by the Buyer to perform, any of the representations, warranties,
covenants or agreements of the Buyer contained in this Agreement.
8.2 LIMITATIONS ON CERTAIN INDEMNITY.
(a) Notwithstanding any other provision of this Agreement to
the contrary, (i) the Stockholder shall not be liable to the Buyer with respect
to Losses unless and until the aggregate amount of all Losses incurred by the
Buyer shall exceed the sum of $10,000 (the "Basket"), and (ii) the Stockholder
shall thereafter be liable for all Losses in excess of the Basket, provided that
the Stockholder's maximum aggregate liability in respect of all Losses shall
not, in the absence of proven fraud by the Stockholder in respect of any
particular Losses, in any event exceed the limitations set forth in Section
8.2(b) below; PROVIDED, HOWEVER,
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that the Basket and such limitation on liability shall not be available with
respect to, and there shall not be counted against the Basket or such limitation
of liability, any Losses arising by reason of any Losses involving proven fraud
by the Stockholder.
(b) Except with respect to any Losses involving proven fraud
by the Stockholder, the Stockholder shall not be required to pay indemnification
hereunder in an aggregate amount in excess of the Company Valuation. The
Stockholder shall have the option of satisfying all or any portion of any claim
in respect of Losses by tendering to the Buyer for cancellation a number of
Shares (which, for purposes of this Section 8.2(b), shall include any shares of
an Exchange Entity issued in exchange or substitution for the Shares by reason
of any Combination) having an aggregate value (determined in accordance with
Section 2.1 above, subject to appropriate arithmetic adjustment to account for
any stock split, stock dividend, combination of shares or other such event
(including any Combination) which may occur at any time or from time to time
subsequent to the date hereof in respect of the outstanding common stock of the
Buyer) equal to the amount of the subject claim which is to be satisfied in such
manner.
(c) The Buyer shall be entitled to indemnification by the
Stockholder for Losses only in respect of claims for which notice of claim shall
have been given to the Stockholder on or before December 31, 1997.
8.3 CLAIMS FOR INDEMNITY. Whenever a claim shall arise for which
any party shall be entitled to indemnification hereunder, the indemnified party
shall notify the indemnifying party or parties in writing within sixty (60) days
of the indemnified party's first receipt of notice of, or the indemnified
party's obtaining actual knowledge of, such claim, and in any event within such
shorter period as may be necessary for the indemnifying party or parties to take
appropriate action to resist such claim. Such notice shall specify all facts
known to the indemnified party giving rise to such indemnity rights and shall
estimate (to the extent reasonably possible) the amount of potential liability
arising therefrom. If an indemnifying party shall be duly notified of such
dispute, the parties shall attempt to settle and compromise the same or may
agree to submit the same to arbitration or, if unable or unwilling to do any of
the foregoing, such dispute shall be settled by appropriate litigation, and any
rights of indemnification established by reason of such settlement, compromise,
arbitration or litigation shall promptly thereafter be paid and satisfied by
those indemnifying parties obligated to make indemnification hereunder.
8.4 RIGHT TO DEFEND. If the facts giving rise to any claim for
indemnification shall involve any actual or threatened action or demand by any
third party against the indemnified party or any of its affiliates, the
indemnifying party or parties shall
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be entitled (without prejudice to the indemnified party's right to participate
at its own expense through counsel of its own choosing), at their expense and
through a single counsel of their own choosing, to defend or prosecute such
claim in the name of the indemnifying party or parties, or any of them, or if
necessary, in the name of the indemnified party. In any event, the indemnified
party shall give the indemnifying party advance written notice of any proposed
compromise or settlement of any such claim. If the remedy sought in any such
action or demand is solely money damages, the indemnifying party shall have
fifteen (15) days after receipt of such notice of settlement to object to the
proposed compromise or settlement, and if it does so object, the indemnifying
party shall be required to undertake, conduct and control, though counsel of its
own choosing and at its sole expense, the settlement or defense thereof, and the
indemnified party shall cooperate with the indemnifying party in connection
therewith.
9. POST-CLOSING EVENTS.
9.1 DEBT REFINANCING. Simultaneous with the consummation of the
transactions contemplated hereby, the Buyer is causing the Company to (a)
consummate the renegotiation and/or refinancing of the Company's indebtedness to
Finova (as described in Section 2.1(a)(ii)(A) above, and (b) utilize additional
cash proceeds generated by such renegotiation and/or refinancing to repay in
full those obligations of the Company described in Section 2.1(a)(ii)(B) above.
9.2 ANNOUNCEMENTS. No party hereto shall make any disclosure or
public announcement of the consummation of the transactions pursuant to this
Agreement, or of any of the terms thereof, without the prior review and approval
thereof by the Buyer (in the case of any proposed disclosure or public
announcement by the Stockholder) or the Stockholder (in the case of any proposed
disclosure or public announcement by the Buyer), such approval not to be
unreasonably withheld or delayed.
9.3 BANK ACCOUNTS. Upon the consummation of the transactions
pursuant to this Agreement, the Stockholder shall cooperate with the Buyer to
promptly modify to the Buyer's satisfaction the signatory and access
arrangements for all bank accounts and safe deposit boxes maintained by or in
the name of the Company.
9.4 FURTHER ASSURANCES. From time to time from and after the date
hereof, the parties will execute and deliver to one another any and all further
agreements, instruments, certificates and other documents as may reasonably be
requested by any other party in order more fully to consummate the transactions
contemplated hereby, and to effect an orderly transition of the ownership and
operations of the Business.
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10. COSTS.
10.1 FINDER'S OR BROKER'S FEES. Each of the Buyer and the
Stockholder represents and warrants that neither it nor he nor any of their
respective affiliates have dealt with any broker or finder in connection with
any of the transactions contemplated by this Agreement, and no broker or other
person is entitled to any commission or finder's fee in connection with any of
these transactions, except that the Buyer agrees to be solely responsible for
any compensation payable to Greyhouse Services Corporation in connection with
the transactions contemplated by this Agreement.
10.2 EXPENSES. The Buyer and the Stockholder shall each pay all
costs and expenses incurred or to be incurred by them, respectively, in
negotiating and preparing this Agreement and in closing and carrying out the
transactions contemplated by this Agreement.
11. FORM OF AGREEMENT.
11.1 EFFECT OF HEADINGS. The Section headings used in this
Agreement and the titles of the Schedules hereto are included for purposes of
convenience only, and shall not affect the construction or interpretation of any
of the provisions hereof or of the information set forth in such Schedules.
11.2 ENTIRE AGREEMENT; WAIVERS. This Agreement and the other
agreements and instruments referred to herein constitute the entire agreement
between the parties pertaining to the subject matter hereof, and supersede all
prior agreements or understandings as to such subject matter. No party hereto
has made any representation or warranty or given any covenant to the other
except as set forth in this Agreement, the Schedules hereto, and the other
agreements and instruments referred to herein. No waiver of any of the
provisions of this Agreement shall be deemed, or shall constitute, a waiver of
any other provisions, whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver shall be binding unless executed in writing by the
party making the waiver.
11.3 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12. PARTIES.
12.1 PARTIES IN INTEREST. Nothing in this Agreement, whether
expressed or implied, is intended to confer any rights or remedies under or by
reason of this Agreement on any persons other than the parties to it and their
respective heirs, executors, administrators, personal representatives,
successors and permitted
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assigns, nor is anything in this Agreement intended to relieve or discharge the
obligations or liability of any third persons to any party to this Agreement,
nor shall any provision give any third persons any right of subrogation or
action over or against any party to this Agreement.
12.2 NOTICES. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given (a) on the date of service if served personally on the
party to whom notice is to be given, (b) on the day after the date sent by
recognized overnight courier service, properly addressed and with all charges
prepaid or billed to the account of the sender, or (c) on the third day after
mailing if mailed to the party to whom notice is to be given, by first class
mail, registered or certified, postage prepaid, and properly addressed as
follows:
(i) If to the Stockholder:
Xxxx Xxxxx
c/o Florida Finance Group
0000 00xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
(ii) If to the Buyer:
Smart Choice Holdings, Inc.
000 Xxxx Xxxxxx, Xxxxx 00
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxx Xxxxxx
or to such other address as any party shall have specified by notice in writing
given to the other party.
13. MISCELLANEOUS.
13.1 AMENDMENTS AND MODIFICATIONS. No amendment or modification
of this Agreement or any Schedule hereto shall be valid unless made in writing
and signed by the party to be charged therewith.
13.2 NON-ASSIGNABILITY; BINDING EFFECT. Neither this Agreement,
nor any of the rights or obligations of the parties hereunder, shall be
assignable by any party hereto without the prior written consent of all other
parties hereto. Otherwise, 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 permitted assigns.
13.3 GOVERNING LAW; JURISDICTION. This Agreement shall be
construed and interpreted and the rights granted herein governed
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in accordance with the laws of the State of Florida applicable to contracts made
and to be performed wholly within such State. Except as otherwise provided in
Section 8.3 above, any claim, dispute or controversy arising under or in
connection with this Agreement or any actual or alleged breach hereof shall be
settled exclusively by arbitration to be held before a single arbitrator in
Orlando, Florida, or in any other locale or venue as legal jurisdiction may
otherwise be had over the party against whom the proceeding is commenced, in
accordance with the commercial arbitration rules of the American Arbitration
Association then obtaining. As part of his or her award, the arbitrator shall
make a fair allocation of the fee of the American Arbitration Association, the
cost of any transcript, and the parties' reasonable attorneys' fees, taking into
account the merits and good faith of the parties' claims and defenses. Judgment
may be entered on the award so rendered in any court having jurisdiction. Any
process or other papers hereunder may be served by registered or certified mail,
return receipt requested, or by personal service, provided that a reasonable
time for appearance or response is allowed.
IN WITNESS WHEREOF, the parties have executed this Agreement on and as
of the date first set forth above.
SMART CHOICE HOLDINGS, INC.
By:
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XXXX XXXXX
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