EXHIBIT 10.4
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT (this "Agreement"), entered into this 19th day
of December, 1996, by and among FIRST CHOICE AUTO FINANCE, INC., a Florida
corporation (the "Buyer"), ▇▇▇▇ ▇▇▇▇▇▇▇ ENTERPRISES, INC. (d/b/a Motorcars of
Stuart), an Illinois corporation (the "Seller"), ▇▇▇▇ ▇▇▇▇▇▇▇, an individual
("JW"), and F. ▇▇▇▇▇ ▇▇▇▇▇▇▇, an individual ("CC"; and, collectively with JW,
(the "Stockholders");
W I T N E S S E T H:
WHEREAS, the Seller is engaged in a business consisting of a retail
automobile dealership for Volkswagen and Volvo automobiles and other consumer
vehicles (collectively, the "Business"); and
WHEREAS, the Stockholders are collectively the record and beneficial
owners of all of the issued and outstanding capital stock of the Seller, and as
such will derive substantial benefit from the transactions contemplated by this
Agreement; and
WHEREAS, in connection with and in furtherance of the
Business, the Seller is the owner of certain assets and properties;
and
WHEREAS, the Seller desires to sell substantially all of its assets and
properties to the Buyer, and the Buyer desires to purchase such assets and
properties, and the Business as a going concern, all upon the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereby agree as follows:
1. ACQUIRED ASSETS.
1.1 THE ASSETS. Subject to the terms and conditions of this
Agreement, on the Closing Date (as such term is hereinafter defined), the Seller
shall sell, transfer and deliver to the Buyer, and the Buyer shall purchase and
receive from the Seller, all of the following assets, properties, improvements
and business of the Seller as same are constituted on the Closing Date:
(a) All franchise rights of the Seller with respect to its
Volkswagen and Volvo dealerships;
(b) All new, unused, undamaged and never damaged 1996, 1997
and 1998 model-year Volkswagen and Volvo vehicles owned by the Seller (or on
consignment to the Seller) and held for
1
purchase or lease at the Seller's business location at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Premises");
(c) All of the Seller's 1996 and 1997 model-year Volvo service
loaners at the Premises;
(d) All used vehicle inventory of the Seller at the Premises;
(e) All inventories of the Seller consisting of parts and/or
accessories usable in the Volkswagen or Volvo dealerships (the "Inventory");
(f) All usable new tires, wheels, batteries, oil, grease and
gasoline, if any, which the Seller has on hand;
(g) All tangible fixed assets, furniture, fixtures, machinery,
equipment, tools, signage, vehicles (to the extent not held for purchase or
lease) and other fixed assets of the Seller (the "Fixed Assets");
(h) Any and all prepaid expenses of and security deposits
granted by the Seller;
(i) All trade names (including but not limited to the trade
name "Motorcars of Stuart"), customer lists, supplier lists, trade secrets,
technical information, and other such knowledge and information constituting the
"know-how" of the Seller, and the good will of the Seller;
(j) All contract rights, commitments and claims of the Seller,
including but not limited to customer deposits, orders and sales contracts held
by the Seller with respect to the sale of new vehicles which are not yet
delivered to the customer as of the Closing Date, service agreements,
advertising agreements, and rights under manufacturer's warranties and any
licenses or license agreements relating to patents, trademarks or other
intangibles; and
(k) All software, books, records, printouts, drawings, data,
files, notes, notebooks, accounts, invoices, correspondence and memoranda
relating to the Assets and/or the business of the Seller.
1.2 EXCLUDED ASSETS. Anything elsewhere contained in this
Agreement to the contrary notwithstanding, the Assets shall not include, and the
Buyer is not purchasing hereunder, (a) any cash, marketable securities, accounts
receivable, notes receivable or lease receivables of the Seller, or (b) any
assets of the Seller which do not relate to the Volkswagen and Volvo dealerships
and are not listed or described in Section 1.1 above.
2
2. ASSUMED LIABILITIES.
2.1 ASSUMED LIABILITIES. Subject to the terms and conditions of
this Agreement, on the Closing Date, the Seller shall assign to the Buyer, and
the Buyer shall assume, and agree to pay and perform when due, the following
liabilities and obligations of the Seller, as same are constituted on the
Closing Date (collectively, the "Assumed Liabilities"):
(a) The Seller's obligations under its floor planning
agreements for new Volkswagen and Volvo vehicles, up to an aggregate amount
equal to the Seller's aggregate actual invoice cost for those vehicles included
in the Assets pursuant to Section 1.1(a) above;
(b) All obligations of the Seller from and after the Closing
Date under the ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ lease for the Seller's data processing
equipment;
(c) All obligations of the Seller from and after the Closing
Date under the Seller's short-term sales trailer lease and telephone system
contract financed with the Stuart Bank;
(d) All obligations of the Seller from and after the Closing
Date under the Seller's short-term lease on two (2) ▇▇▇▇▇▇ copying machines;
(e) All obligations of the Seller from and after the Closing
Date under the Volkswagen mandatory V-Crest rooftop dish lease; and
(f) All obligations of the Seller with respect to periods from
and after the Closing Date under those contracts acquired by the Buyer pursuant
to Section 1.1(j) above, and all obligations of the Seller to complete service
work in process as of the Closing Date.
2.2 EXCLUDED LIABILITIES. Notwithstanding anything to the
contrary contained in Section 2.1 above, the Buyer shall not assume, or become
in any way liable for, the payment or performance of any debts, liabilities or
obligations (absolute or contingent) of the Seller (a) in the nature of customer
claims, employee claims or other contingent liabilities arising out of or
relating to any operations of the Seller prior to the Closing Date, (b) relating
to any lease obligations of any kind other than as expressly set forth in
Section 2.1 above, (c) in respect of any indebtedness for money borrowed or any
consignment or contingent purchase agreement, other than as expressly set forth
in Section 2.1(a), (d) relating to any federal, state or local income,
franchise, sales, use, property, excise, transfer, payroll or other taxes
payable by or in respect of the Seller, including but not limited to any such
taxes which may be assessable against the Seller arising out of, in connection
3
with or as a result of the transactions contemplated by this Agreement and/or
the consummation thereof, (e) relating to or arising out of any pending claims,
actions, arbitrations and/or other proceedings against the Seller, (f) relating
to recapture of any depreciation deduction or investment tax credit of the
Seller, (g) relating to, arising out of, under or in respect of any employment
agreement or consulting agreement (except to the extent expressly assumed by the
Buyer by separate written agreement as of the Closing Date) or any benefit plan
maintained by the Seller in respect of or for the benefit of any of its
employees, or (h) not specifically assumed by the Buyer in Section 2.1 above.
3. PURCHASE PRICE.
3.1 CALCULATION OF PURCHASE PRICE. The net purchase price for the
Assets (collectively, the "Purchase Price") shall be the amount calculated as
follows:
(a) An amount equal to the aggregate actual factory invoice
cost to the Seller for all new vehicles included in the Assets, provided that
(i) there shall be added or deducted, as the case may be, the cost of any
dealer-installed or dealer-removed accessories and equipment in or from such
vehicles, (ii) there shall be deducted any applicable rebate, refund or holdback
actually received by or credited to the Seller on or prior to the Closing Date,
and any premium loan or physical miscellaneous charges, (iii) the invoice cost
shall not include any amounts for advertising funds, and (iv) no deduction will
be taken against a vehicle's invoice cost by reason of such vehicle not having
been "prepped" for delivery, provided that the Seller delivers to the Buyer any
reimbursement cards applicable thereto; PLUS
(b) An amount equal to the aggregate actual factory invoice
cost to the Seller for all Volvo service loaners purchased pursuant to Section
1.1(c) above, minus (i) $1,200 per vehicle, and (ii) $.40 per mile for each mile
by which any of such vehicles exceeds 6,500 miles; PLUS
(c) An amount equal to (i) the designated "clean" wholesale
value of all used vehicles being purchased by the Buyer pursuant to Section
1.1(d) above, as reflected in the Florida edition of the current Black Book with
applicable additions and deductions for equipment and options, and an
appropriate credit to the Buyer in the event of any damage discovered upon
inspection of such used vehicles within five (5) days prior to the Closing Date,
or (ii) in the case of any used vehicles for which no listing is available in
the current Black Book, an amount equal to the Seller's actual inventory cost of
such used vehicles; PLUS
(d) An amount equal to the book value on the Seller's books,
on the Closing Date, of all gas, oil, grease, work
4
in process (including, without limitation, customer service repair orders,
including warranty items) and shop supplies; PLUS
(e) The sum of $300,000, plus or minus (as the case may be)
any net change from June 30, 1996 to the Closing Date in the aggregate book
value on the Seller's books of all Inventory (other than Volkswagen parts)
included in the Assets; PLUS
(f) The sum of $1,342,500; MINUS
(e) The amount of the Assumed Liabilities pursuant to Section
2.1(a) above.
The parties shall consult with one another on the Closing Date with respect to
the components of the Purchase Price set forth in Sections 3.1(a), (b), (c),
(d), (e) and (g) above, and shall agree in good faith on the amounts thereof on
the Closing Date.
3.2 PAYMENT OF PURCHASE PRICE.
(a) As a good faith deposit against the Purchase Price, the
Buyer shall, on the earlier of January 5, 1997 or the date of the consummation
of the proposed business combination between Smart Choice Holdings, Inc. and
▇▇▇▇▇▇ Industries, Inc., deposit with the Seller's counsel (as escrow agent) the
sum of $100,000, which (i) shall be applied to the cash portion of the Purchase
Price at the time of Closing, (ii) shall be paid to the Seller as liquidated
damages in the event that and at such time as the Seller shall terminate this
Agreement (provided that it then has the right to do so) in accordance with
Section 10 below, or (iii) shall be returned to the Buyer in the event that and
at such time as the Buyer shall terminate this Agreement (provided that it then
has the right to do so) in accordance with Section 10 below. In each case, all
interest earned on the escrow deposit shall be paid with the principal of the
escrow deposit. The parties hereby agree to execute and deliver any reasonable
escrow agreement required by either of the parties or by the Escrow Agent in
connection with the deposit pursuant to this Section 3.2(a).
(b) The Purchase Price, as determined in accordance with
Section 3.1 above, shall be paid to the Seller on the Closing Date (i) as to the
first $900,000 thereof, by means of the issuance to the Seller (or, if so
designated by written instruction of both Stockholders, to the Stockholders) of
convertible redeemable preferred stock (the "Preferred Stock") of the Buyer's
corporate parent, Smart Choice Holdings, Inc. (the "Parent"), having an
aggregate liquidation preference (in priority to the common stock of the Parent)
of $900,000, and otherwise having the relative rights, preferences and
limitations set forth in the form Certificate of Stock Designation annexed
hereto as EXHIBIT A (the "Certificate of Stock Designation"), (ii) as to the
next $100,000 thereof, by application of the good faith deposit pursuant to
5
Section 3.2(a) above, and (iii) as to the balance of the Purchase Price, by
means of a certified or bank cashier's check payable to the Seller or (at the
Seller's option) by wire transfer of immediately available funds to the account
designated therefor by the Seller reasonably prior to the Closing Date.
(c) The Parent shall be committed, pursuant to the Certificate
of Stock Designation, to (i) permit the holder(s) of the Preferred Stock to
convert any or all of the Preferred Stock into common stock of the Parent at the
rate of one (1) share of common stock for each $8.75 of liquidation value of the
Preferred Stock (exclusive of interest earned on the Preferred Stock), (ii)
grant to the holder(s) of the Preferred Stock a "piggyback" registration right
in respect of the shares of common stock issuable upon conversion of the
Preferred Stock (subject to customary cutbacks and indemnifications, and any
lock-up or holdback agreements, to the extent required by the Parent's
underwriter), until such time as the shares issued upon conversion of the
Preferred Stock may be resold under Rule 144 or other comparable exemption from
registration requirements, and (iii) redeem all of the Preferred Stock, together
with all accrued interest thereon, on that date which is one hundred eighty
(180) days after the Closing Date, to the extent that such Preferred Stock has
not theretofore been converted into common stock of the Parent as aforesaid.
(d) To the extent that the Seller's aggregate floor planning
obligations on the Closing Date exceed the portion thereof to be assumed by the
Buyer pursuant to Section 2.1(a) above, then the Seller shall apply a portion of
the cash portion of the Purchase Price to the payment of the entire such excess
floor planning obligations.
3.3 NET PRICE. The foregoing Purchase Price for the Assets shall
be in addition to the assumption of the Assumed Liabilities set forth in Section
2.1 above.
3.4 ALLOCATION OF CONSIDERATION. The purchase price specified in
Section 3.1 above shall be allocated, as among the Assets and the Seller's
covenants pursuant to Section 11 below, in accordance with SCHEDULE 3.4 annexed
hereto.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE
STOCKHOLDERS.
In connection with the sale of the Assets to the Buyer, the
Seller and the Stockholders hereby jointly and severally represent and warrant
to the Buyer as follows:
6
4.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Seller is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Illinois, with full corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby, and to own its assets and conduct its business as owned and
conducted on the date hereof. The Seller is duly qualified and in good standing
as a foreign corporation under the laws of the State of Florida, and is not
required to be qualified as a foreign corporation under the laws of any other
jurisdiction.
4.2 AUTHORIZATION OF AGREEMENT. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby by the Seller has been duly and validly authorized by the
Board of Directors of the Seller and by the Stockholders (as the stockholders of
the Seller). No further corporate authorization is required on the part of the
Seller to consummate the transactions contemplated hereby.
4.3 VALID AND BINDING AGREEMENT. This Agreement constitutes the
legal, valid and binding obligation of the Seller and the Stockholders,
enforceable against the Seller and the Stockholders 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.
4.4 NO BREACH OF STATUTE OR CONTRACT. Neither the execution and
delivery of this Agreement by the Seller and the Stockholders, nor compliance
with the terms and provisions of this Agreement on the part of the Seller and
the Stockholders, will: (a) violate any statute or regulation of any
governmental authority, domestic or foreign, affecting the Seller; (b) require
the issuance to the Seller of any authorization, license, consent or approval of
any federal or state governmental agency or any other person; (c) conflict with
or result in a breach of any of the terms, conditions or provisions of the
Seller's certificate of incorporation or by-laws or any judgment, order,
injunction, decree, agreement or instrument to which the Seller or either of the
Stockholders is a party, or by which the Seller or either of the Stockholders 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 Seller or either of the
Stockholders is a party or by which the Seller or either of the Stockholders is
bound.
4.5 SUBSIDIARIES AND INVESTMENTS. The Business is conducted
entirely through, in the name and for the account of the Seller, and no portion
or element of the Businessis conducted
7
through, in the name or for the account of any subsidiary or
affiliate of the Seller or either of the Stockholders.
4.6 FINANCIAL INFORMATION. Annexed hereto as SCHEDULE 4.6 are the
audited financial statements (including balance sheet, income statement and
statement of cash flows) for the Seller as of December 31, 1993, December 31,
1994 and December 31, 1995 and for each of the years then ended, and the
unaudited financial statements of the Seller 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 Seller as of the dates thereof and for the periods then ended,
in accordance with generally accepted accounting principles consistently applied
(subject, in the case of the unaudited financial statements, to the absence of
full footnote disclosures and to normal, non-material audit adjustments); and,
without limitation of the foregoing, the Seller 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 Seller's business.
4.7 NO MATERIAL CHANGES. Since June 30, 1996, except as disclosed
in SCHEDULE 4.7 annexed hereto, (a) the business of the Seller 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 Seller from that
reflected in such Financial Statements, (c) the Seller has not incurred any
material obligation or liability except in the normal course of business, (d)
the Seller 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 Seller of any material assets or other part of its business,
excluding the sale or disposition of inventory in the ordinary course of
business, (ii) acquisition or commitment to acquire (whether by purchase, lease
or otherwise) any capital assets by the Seller wherein the aggregate payments
will exceed $10,000 (provided that this clause (ii) shall not be applicable with
respect of purchases of inventory), (iii) increase or commitment to increase the
compensation or benefits of any employees of the Seller, (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, consulting or management agreement, or modification of any
existing employment, consulting or management agreement, by the Seller.
4.8 TAX MATTERS. The Seller has, to the date hereof, timely filed
all tax reports and tax returns required to be filed by the Seller, and the
Seller 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,
8
property, excise, payroll 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 Seller as of the date hereof have been fully paid,
and all taxes and other assessments and levies which the Seller 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
Seller.
4.9 TITLE AND CONDITION OF THE ASSETS. The Seller has and owns
good and marketable title to all of the Assets, free and clear of all liens,
pledges, claims, security interests and encumbrances of every kind and nature
(other than any such encumbrances to the extent securing the floor planning
obligations to be assumed pursuant to Section 2.1(a) above). All of the 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 FRANCHISE RIGHTS. Except as disclosed in SCHEDULE 4.7
annexed hereto, the Seller is in compliance in all material respects with all of
its obligations under its franchise agreements for its Volkswagen and Volvo
dealerships, and neither the Seller nor either of the Stockholders has received
any notice of any pending default, event of default or termination or threatened
termination thereunder. To the best of the Seller's and the Stockholders'
knowledge, the franchisors under such agreements are in compliance in all
material respects with their respective obligations under such franchise
agreements. Neither the Seller nor either of the Stockholders has any reason to
believe that such franchisors will not consent (to the extent required under
such franchise agreements) to the assignment of such franchise agreements to the
Buyer hereunder, and the continued operation of the Business by the Buyer from
and after the Closing Date.
4.11 INVENTORY. All of the Seller's inventory of vehicles, and
all of the Inventory (whether reflected in the Financial Statements or
thereafter acquired by the Seller prior to the date hereof), is of a quality,
age and quantity consistent with the historical practices of the Seller since
January 1, 1993, and is valued on the Seller's books at the lower of cost or
market (on a ____ basis).
4.12 COMPLIANCE. To the best of the Seller's and the
Stockholders' knowledge, the Seller 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
9
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 Seller is not in default or violation in respect of or
under any of the foregoing, and neither the Seller nor either the Stockholders
is aware of any past or present condition or circumstance in the Seller's
business (including, without limitation, with respect to any real property now
or previously occupied by the Seller) which could give rise to any material
liability under any such law, statute, regulation, rule or ordinance. Without
limitation of the foregoing, all odometer readings of the vehicles included in
the Assets reflect, to the best of the Seller's and the Stockholders' knowledge,
the actual mileage of the subject vehicle, and all service work in process
included in the Assets will have been performed in a proper and professional
manner in accordance with applicable service standards recommended or required
by the subject vehicle manufacturers.
4.13 REAL PROPERTY. The Seller 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 at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ (which lease will be expressly superseded by the lease contemplated by
Section 9.3 below). Such leased premises are in good condition (reasonable wear
and tear excepted), and are adequate for the operation of the Business as
presently conducted.
4.14 INSURANCE. The Seller 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. The Seller is not a party to or bound by any
collective bargaining agreement, 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 Seller. The Seller is not party to any employment agreement,
consulting agreement or management agreement which is not terminable without
cost or penalty upon less than thirty (30) days' prior written notice. The
Seller has not had any material labor difficulty in the past two (2) years, and
neither the Seller nor either of the Stockholders has received notice of any
unfair labor practice charges against the Seller or any actual or alleged
violation by the Seller 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 Seller does not maintain and is not
required and has no obligation to make any contributions to any bonus, pension,
profit-sharing, retirement, deferred compensation, retirement, medical benefits
or other such plan or
10
arrangement for the benefit of any employee, former employee or other person,
and the Seller does not have any obligations with respect to deferred
compensation or future benefits to any past or present employee.
4.17 CONTRACTS AND COMMITMENTS. Except for the franchise
agreements described in Section 1.1(a) above, and those leases for which ongoing
obligations are included in the Assumed Liabilities, there is no contract,
agreement, commitment or understanding which is material to the ongoing
operation of the Business. To the best of the Seller's and the Stockholders'
knowledge, (a) the Seller and all other parties to the material contracts
specified in this Section 4.17 have performed and complied in all material
respects with all of their respective obligations thereunder, and (b) there is
no outstanding material default or non-performance under any of such material
contracts.
4.18 LITIGATION. Except for one pending litigation brought by a
former employee of the Seller alleging sexual harassment (as to which the Seller
will retain responsibility and any liability thereunder), there is no pending
or, to the best knowledge of the Seller and the Stockholders, threatened
litigation, arbitration, administrative proceeding or other legal action or
proceeding against the Seller or relating to its business.
4.19 INTELLECTUAL PROPERTY. The Seller has the valid right to
utilize all trade names and other intellectual property utilized in its business
(including but not limited to the trade name "Motorcars of Stuart"), and has not
received notice of any claimed infringement of any of such intellectual property
with the rights or property of any other person.
4.20 GOING CONCERN. Neither the Seller nor either of the
Stockholders has any 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 Buyer to continue the Business
heretofore conducted by the Seller in substantially the manner heretofore
conducted by the Seller (other than general, industry-wide conditions).
4.21 THE SHARES. The Seller and the Stockholders hereby confirm
that the Preferred Stock constitutes "restricted securities" under applicable
federal and state securities laws, and that none of the Preferred Stock (and/or
any shares of common stock of the Parent into which any of the Preferred Stock
may be converted) may be resold in the absence of an effective registration
therefor under federal and state securities laws or an available exemption from
such registration requirements. The Seller further confirms that it has received
no assurance
11
whatsoever as to whether or when any of the Preferred Stock (and/or any shares
of common stock of the Parent into which any of the Preferred Stock may be
converted) will be registered under federal or state securities laws, and that,
accordingly, subject to Section 3.2 above, the Seller may be required to hold
such securities indefinitely.
4.22 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 Seller and the Stockholders in this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF THE BUYER.
In connection with the Buyer's purchase of the Assets from the
Seller, the Buyer hereby represents and warrants to the Seller and the
Stockholders 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 Florida, 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.
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
12
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 SHARES. The issuance of the Preferred Stock hereunder has
been duly authorized by all necessary corporate action on the part of the
Parent, and, when issued hereunder, the Preferred Stock will be validly issued,
fully paid and non-assessable.
5.6 DISCLOSURE AND DUTY OF INQUIRY. The Seller and the
Stockholders are 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. THE SELLER'S OBLIGATIONS BEFORE THE CLOSING DATE.
The Seller hereby covenants and agrees that, from the date hereof
until the Closing Date:
6.1 ACCESS TO INFORMATION. The Seller shall permit the Buyer and
its counsel, accountants and other representatives, upon reasonable advance
notice, during normal business hours and without undue disruption of the
business of the Seller, to have reasonable access to all assets, properties,
books, accounts, records, contracts, documents and information relating to the
Business. The Buyer and its representatives shall also be permitted to freely
consult with the Seller's counsel concerning the Business. Such information,
together with any information which may be provided by the Buyer to the Seller
or the Stockholders, shall be maintained by each party in confidence, and shall
not be disclosed to any persons other than such parties' professional advisors
assisting such party in connection with the transactions contemplated hereby;
PROVIDED, HOWEVER, that information shall not be considered confidential to the
extent that it (a) is a matter of common knowledge, (b) is generally known in
the industry, or (c) is otherwise available to the recipient thereof other than
by reason of a breach of this or any other binding confidentiality agreement.
6.2 CONDUCT OF BUSINESS IN NORMAL COURSE. The Seller shall carry
on its business activities in substantially the same manner as heretofore
conducted, and shall not make or institute any unusual or novel methods of
service, sale, purchase, lease, management, accounting or operation that will
vary materially from those methods used by the Seller as of the date hereof,
without in each instance obtaining the prior written consent of the Buyer.
6.3 PRESERVATION OF BUSINESS AND RELATIONSHIPS. The Seller shall
use its best efforts, without making any commitments
13
on behalf of the Buyer or incurring any unusual expenditures, to preserve its
business organization intact, and to preserve its present relationships with
customers, referral sources, suppliers and others having business relationships
with the Seller.
6.4 CORPORATE MATTERS. The Seller will not, without the prior
written consent of the Buyer:
(a) pay, grant or authorize any salary increases or bonuses
except in the ordinary course of business and consistent with past practice, or
enter into or modify any employment, consulting or management agreements, or
institute any bonus, benefit, profit sharing, pension, retirement or other such
benefit plan or policy;
(b) modify in any material respect any material agreement to
which the Seller is a party or by which it may be bound, except in the ordinary
course of business;
(c) make any change in the Seller's management personnel;
(d) acquire any capital assets having an aggregate purchase
price in excess of $1,000 (excluding purchases of inventory), or sell, assign or
dispose of any capital asset(s) with a net book value in excess of $1,000 as to
any one item;
(e) materially change its method of collection of accounts or
notes receivable;
(f) incur any liability or indebtedness except, in each
instance, in the ordinary course of business;
(g) subject any of the assets or properties of the Seller to
any liens or encumbrances not in existence on the date hereof; or
(h) agree to do, or take any action in furtherance of, any of
the foregoing.
7. CONDITIONS PRECEDENT TO THE BUYER'S PERFORMANCE.
The obligations of the Buyer to consummate the transactions
contemplated by this Agreement are subject to the satisfaction, at or before the
Closing Date, of all of the following conditions, any one or more of which may
be waived in writing by the Buyer:
7.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made by the Seller and/or the Stockholders in
this Agreement, in any Schedule(s) hereto, and/or in any written statement
delivered to the Buyer under this
14
Agreement shall be true and correct in all material respects on and as of the
Closing Date as though such representations and warranties were made on and as
of that date.
7.2 PERFORMANCE. The Seller and the Stockholders shall have
performed, satisfied and complied with all covenants, agreements, and conditions
required by this Agreement to be performed, satisfied or complied with by the
Seller and/or the Stockholders on or before the Closing Date.
7.3 CERTIFICATION. The Buyer shall have received a certificate,
dated the Closing Date, signed by the Seller and the Stockholders, certifying,
in such detail as the Buyer and its counsel may reasonably request, that the
conditions specified in Sections 7.1 and 7.2 above have been fulfilled.
7.4 GOOD STANDING CERTIFICATES. The Seller shall have delivered
to the Buyer certificates or telegrams issued by the Secretary of State of
Illinois and the Secretary of State of Florida, evidencing the good standing of
the Seller in the States of Illinois and Florida as of a date not more than ten
(10) days prior to the Closing Date.
7.5 ABSENCE OF LITIGATION. No action, suit or proceeding by or
before any court or any governmental body or authority, against the Seller or
pertaining to the transactions contemplated by this Agreement or their
consummation, shall have been instituted on or before the Closing Date, which
action, suit or proceeding would, if determined adversely, have a material
adverse effect on the Business.
7.6 CONSENTS. All necessary filings with, disclosures to and
agreements and consents of governmental agencies and regulatory bodies (state,
federal or local), and the franchisors under the Seller's franchise agreements
for its Volkswagen and Volvo dealerships, all to the extent required in
connection with the transactions contemplated by this Agreement, shall have been
obtained and true and complete copies thereof delivered to the Buyer; and the
Seller and the Stockholders shall have provided such reasonable assistance as
may be requested by the Buyer in connection therewith.
7.7 NO MATERIAL ADVERSE CHANGE. To the Closing Date, there shall
have been no material adverse change (or event or condition likely to result in
a material adverse change) in the financial or other condition of the Seller's
assets, operations or business from that reflected in the June 30, 1996
Financial Statements included in SCHEDULE 4.6. Between the date of this
Agreement and the Closing Date, assets of the Seller having an aggregate fair
market value of $25,000 or more shall not have been lost, destroyed or
irreparably damaged by fire, flood, explosion, theft or any other cause, whether
or not covered by insurance.
15
7.8 ACCOUNTANT'S CONSENT. The Seller shall have caused to be
delivered to the Buyer a written agreement executed by the Seller's independent
certified public accountants, pursuant to which such accountants will agree (a)
not to unreasonably withhold their consent to the use of such accountants' audit
opinions and financial statements, and the inclusion of such accountants' name,
in any registration statement and/or prospectus (including any amendments
thereto) which may be filed by the Buyer or any of its affiliates subsequent to
the Closing Date, and (b) not to unreasonably withhold, with respect to such
financial statements and use of name, specific written consents bearing a
then-current date in a form suitable for inclusion as an exhibit to any filing
of any registration statement (including amendments thereto) which may be filed
by the Buyer or any of its affiliates subsequent to the Closing Date.
8. CONDITIONS PRECEDENT TO THE SELLER'S PERFORMANCE.
The obligations of the Seller and the Stockholders to consummate
the transactions contemplated by this Agreement are further subject to the
satisfaction, at or before the Closing Date, of all of the following conditions,
any one or more of which may be waived in writing by the Seller and the
Stockholders:
8.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made by the Buyer in this Agreement and/or in any
written statement delivered by the Buyer under this Agreement shall be true and
correct in all material respects on and as of the Closing Date as though such
representations and warranties were made on and as of that date.
8.2 PERFORMANCE. The Buyer shall have performed, satisfied and
complied with all covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by the Buyer on or before
the Closing Date.
8.3 CERTIFICATION. The Seller and the Stockholders shall have
received a certificate, dated the Closing Date, signed by the Buyer, certifying,
in such detail as the Seller and its counsel may reasonably request, that the
conditions specified in Sections 8.1 and 8.2 above have been fulfilled.
9. CLOSING.
9.1 PLACE AND DATE OF CLOSING. Unless this Agreement shall be
terminated pursuant to Section 10 below, the consummation of the transactions
contemplated by this Agreement (the "Closing") shall take place at the offices
of ____________________________________________________________________________
________________________________________________________________________________
______________________________, or such other location as is agreed to between
the Buyer and the Seller, at 10:00 A.M. local time on the later of (a) that day
which is thirty (30)
16
days after the consummation of the contemplated business combination between the
Parent and ▇▇▇▇▇▇ Industries, Inc., or (b) January 20, 1997, or such later date
(not later than January 27, 1997) as may be agreeable to the Buyer and the
Seller (the date of the Closing being referred to in this Agreement as the
"Closing Date").
9.2 ACTIONS AT CLOSING. At the Closing, the Buyer and the Seller
shall make all payments and deliveries stated in this Agreement to be made at
the Closing and/or on or prior to the Closing Date; and in addition, (a) the
Seller shall execute and deliver to the Buyer a ▇▇▇▇ of sale to effect the
transfer of the Assets to the Buyer, in form and substance reasonably
satisfactory to the Buyer and the Seller, (b) the Seller shall execute and
deliver to the Buyer properly endorsed certificates of title to effect the
transfer to the Buyer of all vehicles and other titled assets included in the
Assets, (c) the Buyer and the Seller shall execute and deliver to one another an
assignment and assumption agreement with respect to the Assumed Liabilities, in
form and substance reasonably satisfactory to the Buyer and the Seller, and (d)
the Seller shall have caused to be delivered to the Buyer the accountant's
agreement contemplated by Section 7.8 above.
9.3 NEW LEASE. At the Closing, as a condition precedent to the
obligations of all parties hereunder, the Buyer and the owner of the Premises
shall execute and deliver to one another a mutually acceptable "triple net"
lease for the Premises, such lease to contain terms consistent with ADDENDUM "A"
annexed hereto.
10. TERMINATION OF AGREEMENT.
10.1 GENERAL. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to the
Closing: (a) by the mutual written consent of the Seller and the Buyer; (b) by
the Buyer, or by the Seller, if: (i) a material breach shall exist with respect
to the written representations and warranties made by the other party, (ii) the
other party shall take any action prohibited by this Agreement, if such action
shall or may have a material adverse effect on the Business and/or the
transactions contemplated hereby, (iii) the other party shall not have
furnished, upon reasonable notice therefor, such certificates and documents
required in connection with the transactions contemplated hereby and matters
incidental thereto as it shall have agreed to furnish, and it is reasonably
unlikely that the other party will be able to furnish such item(s) prior to the
Outside Closing Date specified below, or (iv) any consent of any third party to
the transactions contemplated hereby (whether or not the necessity of which is
disclosed herein or in any Schedule hereto) is reasonably necessary to prevent a
default under any outstanding material obligation of the Buyer or the Seller,
and such consent is not obtainable without material cost or penalty (unless the
party or parties not seeking to terminate this
17
Agreement agrees or agree to pay such cost or penalty); or (c) by the Buyer, or
by the Seller, at any time on or after January 27, 1997 (the "Outside Closing
Date"), if the transactions contemplated hereby shall not have been consummated
prior thereto, and the party directing termination shall not then be in breach
or default of any obligations imposed upon such party by this Agreement.
10.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement pursuant to this Section 10, no party to this Agreement shall have any
further liability to the other, except that the confidentiality provisions of
Section 6.1 shall remain in full force and effect. In the event of termination
by either party as above provided in this Section 10, prompt written notice
shall be given to the other party.
11. RESTRICTIVE COVENANTS.
11.1 ACKNOWLEDGEMENTS. The Seller and the Stockholders
acknowledge and agree that: (a) the business contacts, customers, suppliers,
know-how, trade secrets, marketing techniques and other aspects of the Business
have been of value to the Seller, and have provided the Seller (and will
hereafter provide the Buyer) with substantial competitive advantage in the
operation of the Business, and (b) by virtue of their previous relationships,
the Seller and the Stockholders have detailed knowledge and possess confidential
information concerning the Business.
11.2 LIMITATIONS. Neither the Seller nor either of the
Stockholders shall directly or indirectly, for itself or himself, or through or
on behalf of any other person or entity:
(a) at any time from and after the Closing Date, divulge,
transmit or otherwise disclose or cause to be divulged, transmitted or otherwise
disclosed, any business contacts, client or customer lists, know-how, trade
secrets, marketing techniques, contracts or other confidential or proprietary
information relating to the Business of whatever nature existing on or prior to
the date hereof (provided, however, that for purposes hereof, information shall
not be considered to be confidential or proprietary if (i) it is a matter of
common knowledge or public record, (ii) it is generally known in the industry,
or (iii) the Seller or the Stockholder can demonstrate that such information was
already known to the recipient thereof other than by reason of any breach of any
obligation under this Agreement or any other confidentiality or non-disclosure
agreement); and/or
(b) at any time from and after the Closing Date, utilize any
trade name or other good will heretofore associated with the Business
(including, without limitation, the trade name "Motorcars of Stuart"); and/or
18
(c) at any time during the two (2) year period from and after
the date hereof (the "Restrictive Period"), invest, carry on, engage or become
involved, either as a principal, operator, an employee, agent, advisor, officer,
director, stockholder (excluding ownership of not more than 3% of the
outstanding shares of a publicly held corporation if such ownership does not
involve managerial or operational responsibility), manager, partner, joint
venturer, participant or consultant, in any business enterprise (other than the
Parent or any of its subsidiaries, affiliates, successors or assigns) which: (i)
is or shall be located or operating, or soliciting or servicing automobile
dealers, clients or customers located, anywhere within a twenty (20) mile radius
(or, in the case of any Volvo dealership, a fifty (50) mile radius) of the
Premises in Stuart, Florida, and (ii) is or becomes, at any time during the
Restrictive Period, engaged in any manner in any retail sale, leasing or
financing of automobiles or other consumer vehicles, or in any leasing or
financing activities related to or arising out of any retail sale of automobiles
or other consumer vehicles.
11.3 REMEDIES.
(a) The parties hereby further acknowledge and agree that any
breach, directly or indirectly, of Section 11.2 above will cause the Buyer
irreparable injury for which there is no adequate remedy at law. Accordingly,
the Seller and the Stockholders expressly agree that, in the event of any such
breach or any threatened breach hereunder, directly or indirectly, the Buyer
shall be entitled, in addition to any and all other remedies available
(including but not limited to the liquidated damages provided for in Section
11.3(a) above), to seek and obtain, without requirement of posting any bond or
other security, injunctive and/or other equitable relief to require specific
performance of or prevent, restrain and/or enjoin a breach under the provisions
of this Agreement.
(b) In the event of any dispute under or arising out of this
Section 11, the prevailing party or parties in such dispute shall be entitled to
recover from the non-prevailing party or parties, in addition to any damages
that may be awarded, its or their reasonable costs and expenses (including
reasonable attorneys' fees) incurred in connection with prosecuting or defending
the subject dispute.
11.4 SEVERABILITY. It is acknowledged, understood and agreed that
the restrictions contained in this Section 11 (a) are made for good, valuable
and adequate consideration received and to be received by the Seller and the
Stockholders, and (b) are reasonable and necessary, in terms of the time,
geographic scope and nature of the restrictions, for the protection of the Buyer
and the good will thereof. It is intended that said provisions be fully
severable, and in the event that any of the foregoing
19
restrictions, or any portion of the foregoing restrictions, shall be deemed
contrary to law, invalid or unenforceable in any respect by any court or other
tribunal of competent jurisdiction, then such restrictions shall be deemed to be
amended, modified and reduced in scope and effect, as to duration, geographic
area or in any other relevant respect, only to that extent necessary to render
same valid and enforceable, and any other of the foregoing restrictions shall be
unaffected and shall remain in full force and effect.
12. INDEMNIFICATION.
12.1 GENERAL.
(a) Without prejudice to any rights of contribution as among
the Seller and the Stockholders, the Seller and the Stockholder shall jointly
and severally 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 (i) any breach of, or failure by the Seller or the
Stockholders to perform, any of the representations, warranties, covenants or
agreements of the Seller or the Stockholders contained in this Agreement or in
any Schedule(s) furnished by or on behalf of the Seller or the Stockholders
under this Agreement, or (ii) any failure by the Seller to pay or perform when
due any of its retained liabilities.
(b) The Buyer shall defend, indemnify and hold harmless the
Seller and the Stockholders 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 Seller or either of the Stockholders may incur, sustain or suffer as a
result of (i) 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, or (ii) any failure by the Buyer to pay or perform when due any
of the Assumed Liabilities.
12.2 LIMITATIONS ON CERTAIN INDEMNITY.
(a) Notwithstanding any other provision of this Agreement to
the contrary, (i) neither the Seller nor the Stockholders shall 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 $15,000 (the "Basket"), and (ii)
the Seller and the Stockholders shall thereafter be jointly and severally liable
for all Losses in excess of the Basket, provided that the Seller's and the
Stockholders' maximum aggregate liability in respect of all Losses shall not, in
the absence of proven fraud by the Seller or either of the Stockholders in
respect of any
20
particular Losses, in any event exceed the limitations set forth in Section
8.2(b) below; PROVIDED, HOWEVER, 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 (A) any breach by the Seller or either of the Stockholders of Section 11.2
above, (B) any failure by the Seller to pay or perform when due any of its
retained liabilities, or (C) any Losses involving proven fraud by the Seller or
either of the Stockholders.
(b) Except with respect to any Losses involving proven fraud
by the Seller or either of the Stockholders, or any breach of Section 11.2
above, or any failure by the Seller to pay or perform when due any of its
retained liabilities, the Seller and the Stockholders shall not be required to
pay indemnification hereunder in an aggregate amount in excess of the Purchase
Price. To the extent that, at the time of payment, the Seller or the
Stockholders still hold any Preferred Stock, then the Seller and/or the
Stockholders shall have the option of satisfying any claim in respect of Losses
by tendering to the Parent for cancellation a number of shares of Preferred
Stock having an aggregate liquidation value 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
Seller and the Stockholders for Losses only in respect of claims for which
notice of claim shall have been given to the Seller or the Stockholders on or
before March 31, 1998.
12.3 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.
12.4 RIGHT TO DEFEND. If the facts giving rise to any
claim for indemnification shall involve any actual or threatened
21
action or demand by any third party against the indemnified party or any of its
affiliates, the indemnifying party or parties shall 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.
13. POST-CLOSING EVENTS.
13.1 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 Seller or either of the Stockholders) or JW (in the case of
any proposed disclosure or public announcement by the Buyer), such approval not
to be unreasonably withheld or delayed.
13.2 EMPLOYEES. The Buyer shall be permitted to offer employment
to any or all employees of the Seller as of the Closing Date, on such terms as
shall be mutually agreeable to the Buyer and each subject employee. Nothing
contained in this Agreement shall be deemed to obligate the Buyer to offer or
provide employment to any employee of the Seller, or to assume any pre-Closing
Date obligations owed by the Seller to any of such employees.
13.3 SALES TAXES. All real estate taxes (to the extent imposed on
the Seller pursuant to the lease for the Premises) and all state, city and
county personal property taxes attributable to the Assets shall be prorated as
of the Closing Date. The Seller will prepare and file a final sales tax return
and payment within fifteen (15) days after the Closing Date, and shall indemnify
and hold harmless the Buyer in respect of any and all sales taxes payable in
respect of the Seller's operations for periods through and including the Closing
Date.
13.4 ACCOUNTS RECEIVABLE. In the event and to the extent that the
Buyer shall, following the Closing Date, receive any payments in respect of the
Seller's accounts receivable, the Buyer shall be deemed to have received such
payments in trust for the
22
benefit of the Seller, and shall immediately turn over any and all such payments
in the form received. The Buyer shall be under no obligation to pursue
collection of any of the Seller's accounts receivable, or to send any bills or
statements in respect thereof; and the Buyer shall have no authority to make any
adjustments or compromises in respect of the Seller's accounts receivable (which
authority shall, as between the Buyer and the Seller, remain solely with the
Seller).
13.5 BOOKS AND RECORDS. From and after the Closing Date, the
Buyer shall permit the Seller and its representatives, from time to time upon
reasonable prior notice and during normal business hours so as not to unduly
interfere with the conduct of the Buyer's business, to have access at the
Buyer's business premises to those books and records conveyed as part of the
Assets, including but not limited to sales and service records of the Seller and
its predecessor, Blow's Exposition. In the event and to the extent that the
Buyer may determine to dispose of any of such books and records following the
Closing Date, the Buyer shall permit the Seller a reasonable opportunity to
remove such books and records from the Buyer's business premises at the Seller's
sole cost and expense.
13.6 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
Business to the Buyer hereunder. Without limitation of the foregoing, the Seller
shall cooperate with the Buyer in order to cause the local telephone company to
transfer to the Buyer's name and account all telephone numbers and fax numbers
currently held by the Seller (provided that the Buyer acknowledges that the
transfer of such telephone numbers and fax numbers is in the discretion of the
local telephone companies).
14. COSTS.
14.1 FINDER'S OR BROKER'S FEES. Each of the Buyer, the Seller and
the Stockholders represents and warrants that neither they 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.
14.2 EXPENSES. The Buyer, the Seller and the Stockholders shall
each pay all costs and expenses incurred or to
23
be incurred by them, respectively, in negotiating and preparing this Agreement
and in closing and carrying out the transactions contemplated by this Agreement.
15. FORM OF AGREEMENT.
15.1 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.
15.2 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.
15.3 COUNTERPARTS. This Agreement may be executed simultaneously
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.
16. PARTIES.
16.1 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 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.
16.2 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
24
class mail, registered or certified, postage prepaid, and properly
addressed as follows:
(i) If to the Seller and/or the Stockholders:
▇▇▇▇ ▇▇▇▇▇▇▇ Enterprises, Inc.
d/b/a Motorcars of Stuart
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
(ii) If to the Buyer:
c/o Smart Choice Holdings, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
or to such other address as any party shall have specified by notice in writing
given to the other party.
17. MISCELLANEOUS.
17.1 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.
17.2 NON-ASSIGNABILITY; BINDING EFFECT. Neither this Agreement,
nor any of the rights or obligations of any of the parties hereunder, shall be
assignable by any party hereto without the prior written consent of all other
parties hereto; PROVIDED, HOWEVER, that the Buyer shall have the right, without
requirement of any consent of the Seller or the Stockholders, (a) at any time up
to and including the Closing Date, to assign all of its rights and obligations
hereunder to any other affiliate of the Parent, and (b) at any time and from
time to time on or after the Closing Date, to assign its rights and remedies for
indemnification hereunder to any financial institution or other lender providing
financing to the Buyer or any permitted assignee of the Buyer. 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.
17.3 GOVERNING LAW; JURISDICTION. This Agreement shall be
construed and interpreted and the rights granted herein governed in accordance
with the laws of the State of Florida applicable to contracts made and to be
performed wholly within such State. Except for any judicial proceeding seeking
equitable relief as contemplated by Section 11.3(b) above, or as otherwise
provided in Section 12.3 above, any claim, dispute or controversy arising under
25
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.
FIRST CHOICE AUTO FINANCE, INC.
By: ------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ENTERPRISES, INC.
By: ------------------------------
----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
F. ▇▇▇▇▇ ▇▇▇▇▇▇▇
The undersigned, SMART CHOICE HOLDINGS, INC., being the "Parent" named
in the foregoing Agreement, hereby (a) joins in the representations and
warranties of the Buyer made in Section 5.5 of the foregoing Agreement, (b)
agrees to issue to the Seller, as contemplated by Section 3 of the foregoing
Agreement, the shares of Preferred Stock which may hereafter become issuable
pursuant to such Section 3.1, and (c) agrees to effect the redemption of any
remaining Preferred Stock as contemplated by Section 3.2(c) of the foregoing
Agreement.
SMART CHOICE HOLDINGS, INC.
By: ------------------------------
26