EXHIBIT 10.74
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement"), entered into this 6th day of
May, 1997, by and among FIRST CHOICE STUART I, INC., a Florida corporation (the
"Buyer" or "First Choice") and ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇., an individual (the
"Stockholder");
W I T N E S S E T H:
WHEREAS, B&B Florida Enterprises, Inc. ("B&B"), a Florida corporation, is
engaged in the business of operating a Nissan automobile dealership in ▇▇▇▇▇▇
County, Florida (the "Business");
WHEREAS, First Choice is electing to acquire such Business pursuant to the
rights and options granted to it pursuant to that certain Implementation
Agreement dated December 16, 1996 between ▇▇▇▇▇▇ and First Choice;
WHEREAS, the Stockholder is the record owner of fifty one percent (51%) of
the issued and outstanding shares of common stock of B&B (the "B&B Stock" or the
"Stock");
WHEREAS, the Buyer has an agreement to acquire another forty nine percent
(49%) of such common stock of B&B pursuant to the letter agreement referenced in
Section 7.6 hereinbelow; 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 through such Stock ownership, the Business, as a going concern;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereby agree as of the date hereof, as follows:
1. ACQUISITION OF THE STOCK.
1.1 Exchange of Shares. Subject to the terms and conditions of this
Agreement, at the Closing (hereinafter defined) Buyer shall purchase and acquire
from the Stockholder, and the Stockholder shall sell and transfer to Buyer, all
(and not less than all) of the Stock, in exchange for the consideration provided
in Article 2 below. In furtherance thereof, the Stockholder shall have caused
the certificates representing all of the Stock, (duly endorsed for transfer or
accompanied by stock powers executed in blank for transfer) to be delivered to
Buyer by the Pledgee thereof (to wit, Smart Choice of Stuart, L.C., pledgee
pursuant to that certain Stock Pledge Agreement dated December 9, 1996). Smart
Choice of ▇▇▇▇▇▇, ▇.▇. is executing this Agreement for the sole purpose of
expressing its agreement to deliver said Stock to Buyer free and clear of the
aforementioned December 9, 1996 Stock Pledge Agreement upon the satisfaction of
all the terms and conditions of this Agreement.
1.2 Books and Records. In addition to the delivery and transfer of the
Stock to the Buyer, the Stockholder at Closing shall deliver, and cause B&B to
deliver, to the Buyer all of the stock books, records and minute books of each
of them, all financial and accounting books and records of each of them, and all
referral, client, customer and sales records of each of them.
2. CONSIDERATION.
2.1 Purchase Price. The total purchase price ("Purchase Price") for the B&B
Stock shall be 76,546 shares of the common capital stock ($.01 par value) of
Smart Choice Automotive Group, Inc. (the "SMCH Stock"), which First Choice will
cause to be issued to Stockholder by its parent corporation, Smart Choice
Automotive Group, Inc. Smart Choice Automotive Group, Inc. is executing this
Agreement for the sole purpose of expressing its agreement to issue and deliver
said SMCH Stock to Stockholder.
3. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER.
The Stockholder represents and warrants to First Choice as follows and
agrees to indemnify, defend and hold First Choice harmless from and against any
and all liabilities, obligations, assessments, suits, actions, proceedings,
claims or demands asserted against First Choice, the Business or any rights to
be acquired or purchased by First Choice from the Stockholder pursuant to this
Agreement as a result of any inaccuracy of such warranties and representations:
3.1 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 (except for the pledge arising under the December 9, 1996 Pledge
Agreement between Stockholder and Smart Choice of ▇▇▇▇▇▇, ▇.▇.), 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). Schedule 3.1 contains a list of all the shareholders of B&B,
the number of shares held by each and a certification that there are no options,
warrants or other rights to acquire any equity, ownership, or profit interests
in B&B. 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).
3.2 Valid and Binding Agreement; No Breach. 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.
3.3 Organization, Good Standing and Qualification B&B 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. True and complete copies
of the Articles of Incorporation and Bylaws of B&B (including all amendments
thereto), a correct and complete list of the officers and directors of B&B and
copies of the minutes of the proceedings of the board of directors and
shareholders of B&B, are annexed hereto as Schedule 3.3.
3.4 Capital Structure; Equity Ownership.
(a) The authorized capital stock of B&B is as set forth in their Articles
of Incorporation as included in Schedule 3.3, and the Stock constitutes and
represents fifty-one percent (51%) of the outstanding capital stock of B&B.
(b) There are no outstanding subscriptions, options, rights, warrants,
convertible securities or other agreements or calls, demands or commitments
obligating B&B 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 B&B are reserved for issuance pursuant to stock options,
warrants, agreements or other rights to purchase capital stock.
3.5 Subsidiaries and Investments. B&B 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 B&B.
3.6 Financial Information.
(a) Annexed hereto as Schedule 3.6(a) are the financial statements
(including balance sheet, income statement, statement of stockholders' equity,
statement of cash flows, and notes thereto) for B&B as of December 31, 1995 and
December 31, 1996 and for each of the years then ended, and the financial
statements for B&B as of September 30, 1996 and as of March 31, 1997 for nine
months, three months and the month then ended (collectively, the "Financial
Statements"), all of which (to the best of Stockholder's knowledge) fairly
reflect, in all material (see Article 12) respects, the financial condition and
results of operations of B&B in accordance with generally accepted accounting
principles consistently applied, as of the dates thereof and for the periods
then ended; and, without limitation of the foregoing, B&B has no 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 their businesses. To the best knowledge of Stockholder
the Financial Statements (as of the dates thereof and for the periods covered
thereby) are in accordance with the books and records of B&B, which are complete
and accurate in all material respects. Notwithstanding the foregoing, the
parties hereto understand and agree that B&B owes the sum of approximately
$245,000 to ▇▇. ▇▇▇▇ pursuant to a promissory note and no representation or
warranty is being made by Stockholder as to how said obligation is reflected on
B&B's Financial Statements.
(b) Annexed hereto as Schedule 3.6(b) is a listing of all material debts
and obligations and guaranties to which B&B is a party (except for debts,
obligations and guaranties which have arisen in the ordinary course of business
of B&B or which are otherwise reflected in the Financial Statements) and all
obligations of others which are secured by property of B&B, and the current
principal amount of, accrued interest on, and any amount guaranteed under all
such debts, obligations, or guarantees. Schedule 3.6(b) contains a separate
listing of all debt obligations of B&B to the Stockholder (and/or prior
stockholders) and members of the Stockholder's (and prior stockholders'
families) family. Except as set forth on Schedule 3.6(b), to the best knowledge
of Stockholder B&B is not in default under any material debt obligations or
guaranties.
3.7 No Material Changes. Except as disclosed in Schedule 3.7 annexed
hereto, since the date of the most recent of the Financial Statements, (a) the
business of B&B has been operated solely in the normal course, (b) there have
been no changes (other than those arising in the ordinary course of business)
which in the aggregate would have a material adverse effect on the financial
condition, operations or business of B&B from that reflected in such Financial
Statements, (c) B&B has not incurred any material obligation or liability except
in the normal course of business, and (d) there has not been any (i) sale,
assignment or transfer by B&B of any assets or other part of its business,
excluding the sale or disposition of inventory in the ordinary course of
business, (ii) acquisitions or commitments to acquire (whether by purchase,
lease or otherwise) any capital assets by B&B wherein the aggregate payments
will exceed $10,000 (other than those set forth in Schedule 3.7), (iii) increase
or commitment to increase the compensation or benefits of any employees of B&B,
(iv) implementation or institution of any bonus, benefit, profit-sharing,
pension, retirement or other plan or similar arrangement which was not in
existence on September 30, 1996, or (v) new employment agreement (except for the
April 9, 1997 Employment Agreement between B&B and Stockholder, which agreement
is referenced in Section 7.5), or modification of any existing employment
agreement, by B&B.
3.8 Tax Matters.
(a) To the best knowledge of Stockholder, B&B has, to the date hereof
timely filed all tax reports and tax returns required to be filed by B&B, and
B&B has paid all taxes, assessments and other impositions as and to the extent
required by applicable law. To the best knowledge of Stockholder 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 B&B as of the date
hereof have been fully paid, and all taxes and other assessments and levies
which B&B 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. To the best knowledge of Stockholder there are no
outstanding or pending claims, deficiencies or assessments for taxes, interest
or penalties with respect to any taxable period of B&B.
(b) To the best knowledge of Stockholder there are no audits pending with
respect to any federal, state or local tax reports or tax returns of B&B, and no
waiver of statutes of limitations have been given or requested with respect to
any tax years or tax filings of B&B.
(c) B&B has to the date hereof been an electing small business corporation
under Subchapter S of the Internal Revenue Code of 1986, as amended (the
"Code"), and the corresponding tax provisions of Florida law, and has filed all
tax reports required to be filed by B&B on or prior to the date hereof. B&B has
previously distributed to the Stockholder all amounts which have been, are, or
will be distributable to such persons in respect of all completed tax years of
B&B and the 1997 tax year to date. The amounts distributed in respect of the
1996 tax year were not (on a proportionate basis) in excess of the distribution
for prior years, and there have been no 1997 distributions. Schedule 3.8(c)
contains all federal and state tax returns filed for the years 1994, 1995 and
1996.
3.9 Title to Assets. B&B has good and marketable title to all of its
assets, subject to no mortgage, conditional sales agreement, charges, liens or
encumbrances other than those set forth in Schedule 3.9.
3.10 Claims. Except as set forth on Schedule 3.10, there are no legal,
quasi-judicial or administrative actions, suits or proceedings of any kind or
nature now pending or threatened before any court or administrative body in any
manner involving B&B, Business or the Stockholder or any of their assets or
shares of capital stock, or which may adversely affect the power or authority of
B&B or the Stockholder to carry out the transactions to be performed by B&B and
the Stockholder hereunder.
3.11 Contracts.
(a) Except as listed on Schedule 3.11(a), B&B is not a party to any written
or oral (i) contract not made in the ordinary course of business, (ii)
employment contract which is not terminable without cost or other liability to
B&B, or any successor, upon notice of thirty (30) days or less, (iii) contract
with any labor union, (iv) bonus, pension, profit-sharing, retirement, share
purchase, hospitalization insurance or similar plan providing employee benefits,
(v) lease or sublease with respect to any property, real or personal, whether as
lessor or lessee, (vi) advertising contract or contract for public relations
services, (vii) continuing contract for a period of more than thirty (30) days
or which is not terminable without cost or other liability to B&B or its
successors.
(b) Attached hereto as Schedule 3.11(b) is a list of all material contracts
to which B&B is a party. To the best knowledge of Stockholder, B&B has in all
respects performed all material obligations required to be performed by it to
date, and (except as set forth in Schedule 3.11(b)) is not in default in any
respect under any such material agreements or obligations.
3.12 Legal Compliance.
(a) To the actual knowledge of the Stockholder, B&B 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 B&B is not in default or violation in
respect of or under any of the foregoing. The Stockholder is not aware of any
past or present condition or circumstance in the business of B&B (including,
without limitation, with respect to any real property now or previously occupied
by B&B) which could give rise to any material liability under any such law,
statute, regulation, rule or ordinance.
(b) Neither B&B nor the Stockholder has received any written notice of
default or violation, nor, to the best of the Stockholder's knowledge, is B&B 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 business, affairs, properties
or assets of B&B. Neither B&B 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 business, affairs, properties
or assets of B&B, which violation would have a material adverse effect on B&B,
its business or any material portion of its assets.
3.13 The SMCH Stock. The Stockholder hereby confirms that the shares of
SMCH Stock constitute "restricted securities" under applicable federal and state
securities laws, and that the SMCH Stock 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 SMCH Stock will be registered under federal or state securities laws
(except as provided herein).
4 4. 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:
4.1 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 Florida, with all necessary power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The Buyer is qualified to do business in each foreign jurisdiction in which its
business requires it to be qualified.
4.2 Title to the Stock. Smart Choice Automotive Group, Inc. ("SMCH") has
the legal capacity and power to issue the SMCH Stock. All of the SMCH Stock has
been duly authorized and when issued will be validly issued and fully paid and
non-assessable. Further, when issued such SMCH Stock will be 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). Stockholder is receiving from
SMCH good, valid and marketable title to all of the SMCH 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).
4.3 Investment. Buyer hereby confirms that the Stock constitutes
"restricted securities" under applicable federal and state securities laws and
that the Stock 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 Buyer further confirms that he has received
no assurance whatsoever as to whether or when any of the Stock will be
registered under federal or state securities laws (except as provided herein).
5. ADDITIONAL AGREEMENTS.
5.1 Resignations. In addition to the other deliveries being made pursuant
to this Agreement at the Closing, the Stockholder will cause to be executed and
delivered to B&B, the resignations of all officers and directors of each of them
(except to the extent that such resignations are not being required by the Buyer
or are inconsistent with the Employment Agreement referenced in Section 7.5
hereinbelow).
5.2 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 either B&B, in order that the Buyer and its
accountants may obtain copies of all work papers utilized or prepared by B&B's
accountants in connection with their review of the Financial Statements, and
consult with their accountants as and to the extent necessary or appropriate in
connection with the preparation of audited financial statements of them.
5.3 Covenants of the Stockholder. The Stockholder represents and covenants
to First Choice that pending completion of the closing contemplated hereby and
as of the Closing Date:
(a) Each representation and warrant set forth in Article 3 hereof shall be
true and correct in all material respects;
(b) B&B will maintain itself at all times up to and including the Closing
Date as a duly licensed corporation in good standing under the laws of the State
of Florida;
(c) B&B and the Stockholder will not mortgage, pledge or subject to a lien
or other encumbrance any of the assets of the Business, except for the floor
planning of new vehicles; and
(d) B&B will keep all of its insurable assets insured in accordance with
its present practice, and it will maintain, preserve and keep all improvements
on property constituting a part of its assets in a good condition and state of
repair, reasonable wear and tear or damage or loss by fire, storm or other
casualty loss excepted.
5.4 Securities Compliance. Smart Choice Automotive Group, Inc. ("SMCH")
shall from the date hereof through December 31, 1998 use its best efforts to
make on a current basis all filings required under the Securities Exchange Act
of 1934, as amended, so as to afford to Stockholder the opportunity to take
advantage of Rule 144 promulgated under the Securities Act of 1933, as amended
(after taking into account the Rule's relevant holding period).
6. B&B and the Stockholder's Resignation.
6.1 Manufacturer Arrangements. Stockholder shall use his best efforts to
assist B&B in reactivating its dealership privileges with Subaru and Suzuki and
after the Closing Stockholder will not seek to obtain such dealership rights for
his own account, but shall instead use his best efforts to cause such rights to
be granted to B&B.
6.2 The Business' Records. B&B shall make available to First Choice at the
Closing all of its sales and service records for the past five years (to the
extent the same are in existence and are either in the possession of B&B or
reasonably obtainable by the Stockholder), including registration lists (new and
used cars and trucks), owner follow-up lists, service files, used "hard" copies
of shop repair orders and lists of new car and truck orders on hand.
6.3 Representations and Warranties. The Stockholder shall execute and
deliver to First Choice a certificate confirming the true and correctness of all
representations and warranties set forth in Article 4 hereof as of the Closing
Date.
7. Conditions Precedent to Closing. Closing shall be conditioned upon
accomplishment of the following conditions precedent:
7.1 Environmental Audit. Prior to Closing, Buyer shall complete an
environmental audit on the property outside the building of the Business
premises. The cost of such audit shall be paid for by Buyer. If any hazardous
waste condition is discovered, appropriate governmental agencies shall be
notified as may be required by applicable law, and Buyer may retain, at its own
cost, a qualified consulting firm to assess the extent of contamination of the
property and to prepare a plan of remedial action to clean up the contamination
to levels acceptable to all applicable federal, state and local regulations and
standards. The consulting firm shall deliver to B&B and Buyer a contamination
assessment report and remedial action plan which shall include the estimated
cost for clean up of any of the contamination found on or under the real
property owned or leased by B&B (the "Property") (the "Clean-Up Report").
If the audit or any follow-up report indicates any hazardous waste
conditions as to the Property which is unacceptable to Buyer, Buyer may
terminate this Agreement by giving written notice to Stockholder, whereupon this
Agreement shall immediately be terminated and all obligations of the parties
hereunder shall cease, except for the obligation of Buyer to pay the costs of
the audits as set forth herein.
7.2 Consent to Assignment of Lease. All real estate leases to which B&B is
a party shall be approved by Buyer and the lease affixed hereto as Schedule 7.2
(said lease reflecting a ten year lease from the date of Closing and two five
year renewal options, at a rental equal to the current fair market rental, all
as required by the Implementation Agreement set forth in Article 17 of this
Agreement) shall be in full force and effect and to the extent that said
attached lease requires the consent of the lessor for the sale of stock
anticipated hereby, such consent shall have been provided.
7.3 Manufacturer's Approval. First Choice shall have received the approval
of Nissan as to the purchase of B&B. B&B and Nissan shall have effective and in
place at the time of Closing customary dealer agreements with terms no less
favorable than those generally offered to other dealers of Nissan, which
appoints B&B (as then owned by First Choice) as an authorized dealer for the
sale and service of Nissan's automobiles from B&B's present location in ▇▇▇▇▇▇
County, Florida. Stockholder will use his best efforts to assist First Choice in
obtaining such appointment as authorized dealer, including giving
recommendations, executing assignments and releases of its agreements, and all
other actions, other than payment of money reasonably acquired.
7.4 State and Local Approval. First Choice (or its permitted assigns) shall
have all necessary motor vehicle licenses, permits and approvals (the
"Licenses") to operate the Business in ▇▇▇▇▇▇ County from all applicable
governmental agencies.
7.5 Employment Agreement. The Employment Agreement set forth in Schedule
7.5 shall be is in full force and effect at Closing.
7.6 49% Shareholders. The December 16, 1996 letter agreement between Smart
Choice Holdings, Inc. and Messrs. Cianfrogna and Ostowski (the "49%
Shareholders") attached hereto and made a part hereof as Schedule 7.6 shall have
been consummated and all conditions therein satisfied to the satisfaction of
First Choice, with the result that First Choice shall have acquired 49% of the
Stock of B&B from the 49% Shareholders.
7.7 Material Error or Omission. First Choice shall not have discovered any
material error, misstatement or omission in any of the representations or
warranties made by B&B and the Stockholders herein; and
7.8 Act of God. There shall not have been any fire, accident or other
casualty or any labor disturbance, civil commotion, riot, act of God or the
public enemy, or any material change in the business or property of B&B or the
Business, or applicable laws, regulations and ordinances pertaining to the
business or property of B&B or the Business, which would have a material adverse
effect on the conduct of any automobile business at the premises where the
business of B&B is now being conducted, or which would interfere with the use
and occupancy by First Choice of such premises in the conduct of an automobile
dealership business.
7.9 No Breaches. Neither Stockholder nor B&B shall be in breach of Articles
4 or 6 of this Agreement.
7.10 Schedule Updates. The Schedules appended hereto shall have been
completed to the satisfaction of Stockholder and First Choice and such completed
Schedules executed by the parties hereto within one week from the execution of
this Agreement.
7.11 At Closing B&B shall have released Stockholder from those financial
obligations of Stockholder set forth in Schedule 7.11 and Stockholder shall have
released B&B from all financial obligations owed by B&B to Stockholder except
for those obligations arising under the Employment Agreement referenced in
Section 7.5. The releases described herein shall be in form customary for stock
sale transactions. In addition at Closing B&B, Smart Choice Automotive Group,
Inc. and the Buyer shall have entered into an indemnification agreement with
Stockholder indemnifying Stockholder from all liabilities, costs or damages
arising under the agreements and instruments listed on Schedule 7.11.
7.12 The loan documentation set forth in Schedule 7.12 shall have been
fully executed by the parties thereto.
8. Closing. The transaction provided for by this Agreement shall close (the
"Closing") at the offices of Buyer in Titusville, Florida, or at such other
place that the parties may agree to in writing, on or before the later to occur
of the following:
(A) Five (5) business days after the receipt in writing of all necessary
Nissan's approval as contemplated herein; or
(B) Five (5) business days after the satisfaction of the other
preconditions to closing set forth in Section 7 hereof.
The parties shall in good faith endeavor to cause the Closing to occur on
or about May ___, 1997. The date of Closing is referred to herein as the
"Closing" or the "Closing Date". If the Closing Date shall be on a Saturday,
Sunday or local or national holiday, the Closing shall be extended to the next
business day. The parties agree that to the greatest extent possible they desire
that the Closing occur on a Monday after an inventory which is conducted during
the immediately preceding weekend. The parties understand and agree that if
Nissan does not provide its written approval as required under Article 7 hereof
within sixty (60) days after the date of the execution of this Agreement, then
this Agreement shall automatically terminate and the parties shall have no
further obligation to close the transactions contemplated under this Agreement.
9. Notice. Any notice, communication, request, reply or advice hereunder (a
"Notice") must be in writing and may be given by registered or certified mail,
with return receipt requested, or by hand delivery to an officer of such party,
or facsimile. Notice deposited in the mail as set forth above shall be effective
three business days after it is so deposited. Notice given in any other manner
shall be effective when received by the party to whom it is given. For purposes
of notice, the addresses of the parties shall be as follows:
(a) if to First Choice:
Smart Choice Automotive Group, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
with a copy to:
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Jr., Esq.
Smart Choice Automotive Group, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(b) if to the Stockholder to:
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Stuart Nissan
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇, ▇▇▇▇▇▇ et al
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
10. Execution of Further Documents. From and after the Closing, upon the
reasonable request of First Choice, the Stockholder shall execute, acknowledge
and deliver all such further deeds, bills of sale, assignments, transfers,
conveyances, powers of attorney and assurances as may be required or appropriate
to convey and transfer to and vest in First Choice and protect its right, title
and interest in the Business and to carry out the transactions contemplated by
this Agreement.
11. Survival of Representations and Warranties. Each of the representations
and warranties made by B&B and the Stockholder in this Agreement or pursuant
hereto shall survive for a period of three (3) years after the Closing Date.
Notwithstanding any knowledge of facts determined or determinable by any party
by investigation, each party shall have the right to fully rely on the
representations, warranties, covenants and agreements of the other parties
contained in this Agreement or in any other documents or papers delivered in
connection herewith. Each representation, warranty, covenant and agreement of
the parties contained in this Agreement is independent of each other
representation, warranty, covenant and agreement. Each of the representations
and warranties of First Choice shall expire on the Closing Date.
12. Definition of Material. Whenever in this Agreement the word "material"
is used in a context which requires a calculation of a monetary amount, the
amount shall be considered "material" if it involves an amount greater than
$2,000 or a matter that has economic significance greater that $2,000.
13. Section and Other Headings. Section or other headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
14. Schedules. Each Schedule attached hereto shall be deemed to be a part
of this Agreement to the same extent as if set forth verbatim in the body of
this Agreement.
15. Enforcement. The laws of the State of Florida shall govern the
interpretation, validity, performance and enforcement of this Agreement. If any
provision of this Agreement should be held to be invalid or unenforceable, the
validity and enforceability of the remaining provisions of this Agreement shall
not be affected thereby.
16. Parties. This Agreement shall be binding upon and enforceable against,
and shall inure to the benefit of, the parties hereto and their respective
successors or assigns.
17. December 16, 1996 Agreement. This Agreement has been entered into by
First Choice and the Stockholder hereto in recognition of the fact that Smart
Choice of Stuart, L.C., an affiliate of First Choice has the option ("Option")
to purchase the Business for a purchase price of $1.00 and the assumption of
certain liabilities all as more particularly set forth in that certain
Implementation Agreement between B&B and ▇▇. ▇▇▇▇▇▇ dated December 16, 1996. It
is agreed by the parties hereto that the consummation of the closing
contemplated by this Agreement shall constitute the consummation and exercise of
the Option. It is further agreed by ▇▇▇▇▇▇ that upon the issuance of the SMCH
stock referenced herein, First Choice's affiliate Smart Choice Automotive Group,
Inc. (formerly known as Smart Choice Holdings, Inc.), shall have no further
obligation to issue to ▇▇▇▇▇▇ shares of preferred stock ("Preferred") of Smart
Choice Holdings, Inc. as was originally contemplated by reason of Section 3 of
the aforementioned December 16, 1996 Agreement. Notwithstanding the foregoing in
the event that the closing contemplated by this Agreement is not consummated
▇▇▇▇▇▇ agrees that all terms and provisions of the Implementation Agreement
shall survive in form and substance as if this Agreement had not been executed;
provided, however, that ▇▇▇▇▇▇ hereby and herewith agrees to accept the SMCH
Stock referenced herein in lieu of the Preferred. B&B and the other parties
hereto agree that upon the closing as contemplated by this Agreement the other
transactions contemplated by Section 4 of the aforesaid December 16, 1996
Agreement shall have been satisfied and completed; it being understood and
agreed that such transactions are conditions precedent to the closing
contemplated herein.
IN WITNESS WHEREOF the parties have executed this Agreement as of the date
set forth above.
FIRST CHOICE STUART I, INC.,
a Florida corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Its: President
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
The undersigned Smart Choice of ▇▇▇▇▇▇, ▇.▇. hereby joins in this Agreement
for the sole purpose of acknowledging its agreement expressed in the last
sentence of Section 1.1 hereof.
SMART CHOICE OF ▇▇▇▇▇▇, ▇.▇.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Its: President
First Choice Auto Finance, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Its: President
The undersigned Smart Choice Automotive Group, Inc. hereby joins in this
Agreement for the sole purpose of acknowledging its agreement expressed in the
last sentence of Section 2.1 and in Section 5.4 hereof.
SMART CHOICE AUTOMOTIVE GROUP, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Its: President