STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is entered into this 16th
day of March 1996, by and among U.S. Pawn Inc., a Colorado corporation
("Purchaser"), Advantage Pawn, a Wyoming corporation (the "Company"), and Xxxxxx
X. Xxxxxxxxxxx, Xxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxx. (Xxxxxx X. Xxxxxxxxxxx,
Xxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxx shall be hereinafter sometimes
individually referred to as a "Seller" and shall be hereinafter collectively,
jointly and severally referred to as the "Sellers").
RECITALS
WHEREAS, the Seller owns an aggregate of 3,000 shares of common stock of
the Company (the "Shares"), which are all the outstanding shares of the common
stock of the Company; and,
WHEREAS, the Sellers desires to sell, transfer and deliver 2,400 Shares to
the Purchaser and the Purchaser desires to purchase such Shares upon the terms
and conditions provided by this Agreement.
THEREFORE, in consideration of the Recitals, which shall constitute a
substantive part of this Agreement, the mutual covenants, promises, agreements,
representations and warranties hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
ARTICLE I
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SALE AND PURCHASE OF SHARES
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1.1 SALE AND PURCHASE. Subject to the terms and conditions hereof, on the
Closing Date as defined below, the Sellers shall each sell, assign, transfer and
deliver to the Purchaser, and the Purchaser shall purchase from each of the
Sellers (the "Purchase"), 800 shares for a total of 2,400 shares, which the
Sellers represent will be owned by Sellers at the time of Closing. The Purchase
shall be evidenced by the delivery to the Purchaser of stock certificates
representing such Shares owned by the Sellers duly endorsed in blank or
accompanied by duly executed stock powers. Further, as part of the purchase and
sale, each of the Sellers has agreed to enter into employment agreements with
the Company as set forth in Section 2.1 below. Specifically contained in each of
the employment agreements referenced in Section 2.1 below is a covenant not to
compete which is an integral component of the purchase and sale of Seller's
Shares hereunder.
1.2 CLOSING. The Purchase shall be consummated at a closing to take
place at the offices of Purchaser on April 1, 1996 (the "Closing Date"), or such
other date as the parties shall agree.
1.3 PURCHASE PRICE FOR SELLER'S SHARES. The consideration to be paid by the
Purchaser to the Sellers for the Seller's Shares shall be a total of One Hundred
Eighty-Seven Thousand Five Hundred Dollars ($187,500) payable at the closing as
follows: (a) Eighty-Two Thousand Five Hundred dollars ($82,500) in cash
delivered by Purchaser by certified or cashier's check, and (b) a number of
shares of the Common Stock of the Purchaser (the "Purchaser's Shares") equal to
the result obtained by dividing One Hundred Five Thousand Dollars ($105,000) by
the average closing price per share of the Common Stock of the Purchaser, as
reported by NASDAQ, for the ten (10) trading days immediately preceding the
Closing Date. Further, Purchaser agrees that it will guarantee an aggregate of
$105,000 of liabilities of the Company consisting of approximately $60,000 of
bank notes payable and approximately $45,000 of notes payable to private
parties.
1.4 PURCHASE PRICE FOR COVENANTS NOT TO COMPETE. The consideration to be
paid by the Purchaser to the Sellers for such Sellers to enter into covenants
not to compete as contained in each Seller's employment agreement referenced in
Section 2.1 below shall be Twenty-Two Thousand Five Hundred Dollars ($22,500)
payable Seven Thousand Five Hundred Dollars ($7,500) to each of the Sellers at
the Closing by Purchaser by certified or cashier's check.
ARTICLE II
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FURTHER AGREEMENTS
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2.1 EMPLOYMENT AGREEMENT. On the Closing Date, the Company and Xxxxxx X.
Xxxxxxxxxxx, Xxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxx shall execute employment
agreements substantially in the form attached hereto as Exhibits A, B and C,
respectively.
2.2 BUY-SELL AGREEMENT. On the Closing Date, all parties to this Agreement
shall execute a Buy-Sell Agreement substantially in the form attached hereto as
Exhibit D.
2.3 AMENDED SHAREHOLDERS' AGREEMENT. On the Closing Date, all parties to
this Agreement shall execute an Amended Shareholders' Agreement substantially in
the form attached hereto as Exhibit E.
2.4 BOARD OF DIRECTORS. On and subsequent to the Closing Date and so long
as the Sellers own 20% of the outstanding shares of the Company's Common Stock,
the Sellers shall be entitled to appoint one (1) member to the Company's Board
of Directors.
2.5 SUBSCRIPTION AGREEMENTS. The Sellers represent that the Purchaser's
Shares that they are receiving as part of the purchase price as set forth in
Section 1.3 above, are restricted shares of common stock and not registered in
accordance with the Securities Act of 1933, as amended. The Sellers further
acknowledge that the Purchaser's Shares represent a speculative investment
wherein they could lose the entire value of such investment and further
represent and acknowledge those matters as set forth in the Subscription
Agreement attached hereto as Exhibit F. On the Closing Date, the Sellers shall
execute a Subscription Agreement substantially in the form of attached Exhibit
F.
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ARTICLE III
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REPRESENTATIONS AND WARRANTIES
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3.1 GENERAL STATEMENT. The parties make the representations and warranties
to each other which are set forth in this Article III. The survival of all such
representations and warranties shall be in accordance with Section 8.1 hereof.
All representations and warranties of the parties are made subject to the
exceptions which are noted in the respective exhibits delivered by the parties
to each other concurrently herewith. Copies of all documents referenced in the
exhibits to this Agreement, other than documents filed by the Purchaser with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended (the "Securities Act"), or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), shall be attached hereto.
3.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
warrants to the Company and the Sellers, as of the date hereof and at the
Closing Date, as follows:
a. Organization. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Colorado.
b. Authorization of Transaction. Purchaser has the full power and
authority (including full corporate power and authority) to execute
and deliver this Agreement and to perform its obligations hereunder.
This Agreement constitutes the valid and legally binding obligation of
Purchaser, enforceable in accordance with its terms and conditions.
c. Brokers' Fees. Purchaser has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent engaged by the
Sellers or Company with respect to the transactions contemplated by
this Agreement.
3.3 REPRESENTATIONS AND WARRANTIES OF SELLERS AND COMPANY. Sellers and
Company, jointly and severally, represent and warrant to Purchaser as of the
date hereof and at the Closing Date, as follows:
a. Organization, Qualification and Corporate Power. Company is a
corporation duly incorporated, validly existing, and in good standing
under the laws of the State of Wyoming. Company is
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duly authorized to conduct business and is in good standing under the
laws of each jurisdiction where such qualification is required.
Company has the legal right, full corporate power and authority to
carry on the business in which it is engaged and to own and use the
properties owned and used by it. No actions, proceedings or
transactions have been commenced or undertaken by either the Company
or Seller which (i) give or would give rights to any person, other
than the Purchaser, in any of the Shares or any of the Company's
assets or (ii) interfere with the consummation of the transactions
contemplated by this Agreement. The Company has no subsidiaries.
b. Capitalization. The entire authorized capital stock of the Company
consists of 4,000 shares of common stock, of which 3,000 shares are
issued and outstanding. All of the issued and outstanding shares of
the Company have been duly authorized and are validly issued, fully
paid, and nonassessable. There are no outstanding or authorized
options, warrants, purchase rights, subscription rights, conversion
rights, exchange rights, or other contracts or commitments that could
require the Company to issue, sell, or otherwise cause to become
outstanding any of its capital stock. There are no outstanding or
authorized stock appreciation, phantom stock, profit participation, or
similar rights with respect to the Company.
c. Ownership of Sellers Shares. Each Seller is the sole and exclusive
record and beneficial owner of 1,000 Shares. The Sellers possess and
on the Closing Date shall possess good and merchantable title to the
Sellers Shares, and own the Sellers Shares free and clear of any and
all security interests, agreements, restrictions, claims, liens,
pledges and encumbrances of any nature or kind. The Sellers have the
absolute and unconditional right to sell, assign, transfer and deliver
the Sellers Shares to the Purchaser in accordance with the terms of
this Agreement.
d. Authority and Binding Effect. The Company has the full corporate power
and each of the Sellers has the full power and authority to execute
and deliver this Agreement and each agreement referenced herein to
which they are a party and to consummate the transactions contemplated
by, and comply with their obligations under, such agreements. At their
execution, this Agreement and each agreement referenced herein to
which Company is a party, and the consummation by Company of its
obligations herein and therein, have been duly authorized by all
necessary corporate
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action of the Company. As of the Closing, this Agreement and each
agreement referred to herein to which Company is a party, if
required, will have approval by all of the Company's stockholders in
accordance with applicable law. This Agreement has been duly executed
and delivered by the Sellers and the Company, and the Sellers and the
Company will, at the Closing, duly execute and deliver the agreements
referenced herein to which they are a party. To the Sellers' and the
Company's best knowledge, this Agreement is a valid and binding
agreement of the Sellers and the Company. To Sellers' and Company's
best knowledge, this Agreement shall be enforceable against the
Sellers and the Company in accordance with its terms, except as such
enforceability may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally and (B) general principles of
equity regardless of whether such enforceability is considered in a
proceeding in equity or at law. To Sellers and Company's best
knowledge, no further action is required to be taken by the Sellers
or the Company, nor is it necessary for the Sellers or the Company to
obtain any action, approval or consent by or from any third persons,
governmental or other, to enable the Sellers or the Company to enter
into or perform its obligations under this Agreement and each
agreement referenced herein to which they are a party.
e. Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated
hereby, will (i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which
Company is subject or any provision of the charter or bylaws of
Company or any shareholders' agreement under which the Company
operates in lieu of bylaws or (ii) conflict with, result in a breach
of, constitute a default under, result in the acceleration of, create
in any party the right to accelerate, terminate, modify, or cancel, or
require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which Company is a party or by
which it is bound or to which any of its assets is subject (or result
in the imposition of any security interest upon any of its assets),
except where the violation, conflict, breach, default, acceleration,
termination, modification, cancellation or failure to give notice
would not have a material adverse effect on Company or on the ability
of the parties to consummate the transactions contemplated by this
Agreement. Company does not
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need to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental
agency in order for the parties to consummate the transactions
contemplated by this Agreement, except where the failure to give
notice to file, or obtain any authorization, consent, or approval
would not have a material adverse effect on the Company or on the
ability of the parties to consummate the transactions contemplated by
this Agreement.
f. Financial Statements. The Seller has delivered to Purchaser financial
statements of the Company consisting of an unaudited balance sheet and
a related statement of income, as of and for the period ended December
31, 1995 (the "Financial Statements"). True, correct and complete
copies of the Financial Statements including weekly updates from
December 31, 1995 and through March 15, 1996, are attached as Exhibit
G hereto. Except as otherwise set forth in the footnotes contained
therein, the Financial Statements were prepared in accordance with
generally accepted accounting principles ("GAAP"). The Financial
Statements fairly present the financial condition of the Company and
the results of its operations as of the relevant dates thereof and for
the respective periods covered thereby. Except as set forth in the
Financial Statements, the Company does not have any debts,
obligations, liabilities or commitments of any nature, whether due or
to become due, absolute, contingent or otherwise, that, in accordance
with GAAP, are required to be disclosed in a balance sheet or the
footnotes thereto, and are not shown on the December 31, 1995 balance
sheet delivered pursuant hereto, other than liabilities incurred after
December 31, 1995 in the ordinary course of business and consistent
with past practice. Such post- December 31, 1995 liabilities are not
material in amount and have not had and are not expected to have,
individually or in the aggregate, a material adverse effect on the
financial condition or results of operations of the Company or the
business. As to each liability, debt, obligation or commitment, fixed
or contingent, that is set forth in the Financial Statements, the
Seller shall provide the following information, in writing as an
attachment to such Exhibit: (i) a summary description of the
liability, debt, obligation or commitment, together with copies of all
relevant documentation relating thereto, the amounts claimed and any
other action or relief sought and, if in connection with a claim, suit
or proceeding, the name of the claimant and all other parties involved
therewith and the identity of the court or agency in which such claim,
suit or proceeding is being prosecuted, and (ii) the best estimate of
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the Seller of the maximum amount, if any, which is likely to become
payable with respect to any contingent liability. For purposes hereof,
if no written estimate is provided, such best estimate shall be deemed
to be zero. Currently and at the time of closing, the Company has and
will have a minimum of $10,000 in cash on hand or in a bank account or
in a combination thereof. All outstanding notes receivable of the
Company are collectible.
g. Absence of Certain Changes. Except as set forth in Exhibit H hereto,
during the period from December 31, 1995 to the date hereof, there has
not been with respect to or affecting Company or its business: (i) any
amendment, termination or revocation, or any threat known to the
Sellers or the Company of any amendment, termination, or revocation,
of any material contract or agreement to which Company is, or during
the period ended March 16, 1996 was, a party or of any license, permit
or franchise required for the continued operation of the business as
it was conducted during the period ended March 16, 1996; (ii) except
for the transactions contemplated hereby, any sale, transfer,
mortgage, pledge or subjection to lien, charge or encumbrance of any
kind, of, on or affecting any of the Company's assets, except sales or
utilization of the Company's inventory that have been made in the
ordinary course of the Company's business and consistent with past
practices, and liens for current taxes not yet due and payable; (iii)
other than as contemplated in connection with the transactions
contemplated hereby, any increase in the compensation paid or payable
or in the fringe benefits provided to any employees of the Company,
(iv) any damage, destruction or loss, whether or not covered by
insurance, of any of the Company's assets; (v) the incurrence of any
indebtedness, either for borrowed money or in connection with any
purchase of assets that is not reflected in the December 31, 1995
balance sheet and individually or in the aggregate involves more than
$1,000, except in the ordinary course of business consistent with past
practices; (vi) any purchase or lease, or commitment for the purchase
or lease, of equipment, machinery, leasehold improvements or other
capital items not disclosed in the Financial Statements which involves
amounts exceeding $1,000 individually or $2,500 in the aggregate,
except in the ordinary course of business consistent with past
practices, or which is in excess of or represents a departure from the
normal, ordinary and usual requirements of the Company's business;
(vii) the execution by the Company of any agreement or contract that
is, or could reasonably be expected to become, material to the
business; or (viii) the occurrence subsequent to December 31, 1995
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of any other event or circumstance which, to the best knowledge of
the Seller or the Company, after due inquiry would materially and
adversely affect any of the Company's assets, the business, or the
ability of the Seller or the Company to consummate the transactions
contemplated hereby.
h. Title to and Adequacy of Company Assets. Except as disclosed on
Exhibit I hereto, the Company has, and at the Closing will have good,
complete and marketable title to all of the Company assets set forth
on Exhibit J attached hereto (the "Company Assets"), free and clear of
all mortgages, liens, security interests, encumbrances, pledges,
leases, equities, claims, charges, restrictions, conditions,
conditional sale contracts and any other adverse interests. Except as
set forth on Exhibit I, all of the Company Assets are in the exclusive
possession and control of the Company. The Company Assets constitute
substantially all the assets, properties, rights, privileges and
interests necessary for Purchaser to own and operate the Company's
business substantially in the same manner as it has been conducted by
the Company since inception.
i. Undisclosed Liabilities. To the best of Seller's and Company's
knowledge, the Company has no liability (whether known or unknown,
whether asserted or unasserted, whether absolute or contingent,
whether accrued and unaccrued, whether liquidated or unliquidated, and
whether due or to become due), except for (i) liabilities set forth in
the face of the balance sheets dated as of December 31, 1995 and
outstanding on the Closing Date, and (ii) liabilities which have
arisen after December 31, 1995, in the ordinary course of business
(none of which results from, arises out of, relates to, is in the
nature of, or was caused by breach of contract, breach of warranty,
tort, infringement, or violation of law). Company has no liability
(whether known or unknown, whether asserted or unasserted, whether
absolute or contingent, or whether due or to become due) for Taxes (as
defined below).
j. Brokers' Fees. Seller shall be responsible for and pay any fees or
commissions to any broker, finder, or agent engaged by Seller or
Company with respect to the transactions contemplated by this
Agreement.
k. Taxes. With respect to Taxes (as defined below):
(1) Company has filed, within the time and in the manner prescribed
by law, all returns, declarations, reports, estimates,
information returns and statements ("Returns") required to be
filed under federal, state, local or any foreign laws by Company
or such subsidiary, and all such Returns are true, correct and
complete in all material respects.
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(2) Company has within the time and in the manner prescribed by law,
paid (and until the Closing Date will, within the time and in the
manner prescribed by law, pay) all Taxes (as defined below) that
are due and payable.
(3) Company has established (and until the Closing Date will
establish) on its respective books and records reserves (to be
specifically designated as an increase to current liabilities)
that are adequate for the payment of all Taxes yet due and
payable.
(4) There are no liens for Taxes upon the assets of Company except
liens for Taxes not yet due.
(5) Company has not filed (and will not file prior to the Closing
Date) any consent agreement under Section 341(f) of the Code or
agree to have Section 341(f)(2) of the Code apply to any
disposition of the subsection (f) asset (as such term is defined
in Section 341(f)(4) of the Code) owned by Company.
(6) Except as set forth in attached Exhibit K (which shall set forth
the type of return, date filed, and date of expiration of the
statute of limitations), (i) no extensions of the statute of
limitations for the assessment of federal income taxes have been
granted for any federal income tax returns of Company and such
returns have been examined by the Internal Revenue Service for
all periods through December 31, 1995; (ii) no extensions of the
statute of limitations for the assessment of state, local or
foreign income taxes have been granted for any applicable Returns
of Company and such Returns have been examined by the appropriate
tax authorities for all periods through December 31, 1995; and
(iii) no deficiency for any Taxes has been proposed, asserted or
assessed against Company which has not been resolved and paid in
full.
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(7) There are no outstanding waivers or comparable consents regarding
the application of the statute of limitations with respect to any
Taxes or tax returns ("Return") that have been given by Company.
(8) Except as set forth in Exhibit L (which shall set forth the
nature of the proceeding, the type of return, the deficiencies
proposed or assessed and the amount thereof, and the taxable year
in question), no federal, state, local or foreign audits or other
administrative proceedings or court proceedings are presently
pending with regard to any Taxes or Returns.
(9) Company is not a party to any tax-sharing or allocation
agreement, nor does Company owe any amount under any tax-sharing
or allocation agreement.
(10) No amounts payable under any agreement will fail to be deductible
for federal income tax purposes by virtue of Section 280G of the
Code.
(11) Company has complied (and until the Closing Date will comply) in
all respects with all applicable laws, rules and regulations
relating to the payment and withholding of Taxes (including,
without limitation, withholding of Taxes pursuant to Sections
1441 or 1442 of the Code or similar provisions under any foreign
laws) and have, within the time and in the manner prescribed by
law, withheld from employee wages and paid over to the proper
governmental authorities, all amounts required to be so withheld
and paid over under all applicable laws.
(12) Company has never been (or has any liability for unpaid Taxes
because it once was) a member of an "affiliated group" within the
meaning of Section 1502 of the Code during any part of any
consolidated return year within any part of which year any
corporation other than Company was also a member of such
affiliated group.
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(13) For purposes of this Agreement, "Taxes" shall mean all taxes,
charges, fees, levies, or other assessments of whatever kind or
nature, including, without limitation, all net income, gross
income, gross receipts, sales, use, ad valorem, transfer,
franchise, profits, license, withholding, payroll, employment,
excise, estimated, severance, stamp, occupancy or property taxes,
customs duties, fees, assessments or charges of any kind
whatsoever (together with any interest and any penalties,
additions to tax or additional amounts) imposed by any taxing
authority (domestic or foreign) upon or payable by Company or any
subsidiary.
l. Leases. Exhibit M is a list and brief description of each of the
facilities or real properties leased by the Company and used in its
business (the "Real Property Leases"). The description sets forth,
among other things, the address of each facility or real property
leased and the name and address of the landlord. Exhibit N also
contains a list of all leases under which the Company possesses or
uses personal property in connection with the conduct or operation of
its business. The personal property leases set forth in Exhibit N are
sometimes collectively referred to as the "Personal Property Leases."
True, correct and complete copies of the Real Property Leases and
Personal Property Leases (collectively, the "Leases") have been
delivered to Purchaser. All of the facilities covered by the Real
Property Leases have been delivered to Purchaser. All of the
facilities covered by the Real Property Leases are equipped in
substantial conformity with laws and governmental regulations
applicable to the Company or the business. The zoning of each parcel
of real property permits the presently existing improvements thereon
and continuation of the business presently conducted thereon and no
changes therein are pending or are threatened. To the best of the
Company's and Sellers' knowledge after due inquiry, no condemnation or
similar proceedings are pending or, to the best knowledge of the
Company and Seller, after due inquiry, threatened against any of the
real properties described on Exhibit M. Upon review of the Leases, to
the best knowledge of the Company and Sellers, none of the Leases
contains any provisions which, after the Closing Date, would (i)
hinder or prevent Purchaser from continuing to use any of the
properties or assets which are the subject of the Leases in the manner
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in which they are currently used or (ii) impose any additional costs
(other than scheduled rental increases) or burdensome requirements as
a condition to their continued use which are not currently in effect.
Except for the Leases, none of the Company's Assets are held under, or
used by the Company in connection with the Company's business pursuant
to, any lease or conditional sales contract.
m. Contracts, Agreements and Commitments. Exhibit O hereto contains an
accurate and complete list of all contracts, agreements, leases,
licenses and instruments, not otherwise disclosed in Exhibit M and N
to which the Company is a party or is bound and (i) which relate to
and materially affect any of the Company's Assets or the Company's
business, or (ii) which could hinder consummation of the transactions
contemplated by this Agreement or would affect Purchaser's title to or
it ability, after the Closing, to conduct the business as it has been
conducted by the Company since inception, 199__, or its ability to
dispose of any of the Company Assets following the Closing. Exhibits
M, N and O include, without limitation, all contracts and agreements
and all leases, licenses and instruments, which (i) grant a security
interest or permit or provide for the imposition of any lien,
mortgage, security interest or other encumbrance on, or provide for
the disposition of, any of the Company's Assets; (ii) require the
consent of any third party to the consummation by the Company or
Sellers of the transactions contemplated by this Agreement, or (iii)
would restrict the use or disposition by Purchaser after the Closing
of any of the Company's Assets. True, correct and complete copies of
all items so listed in Exhibits M, N and O have been furnished to
Purchaser. Each of such contracts, agreements, leases, licenses and
instruments so listed, or required to be so listed, in Exhibits M, N
and O is a valid and binding obligation of the Company or Sellers, as
applicable, and to the best knowledge of the Company and Sellers, the
other parties thereto, enforceable in accordance with their terms,
except as may be affected by bankruptcy, insolvency, moratorium or
similar laws affecting creditors' rights generally and general
principles of equity relating to the availability of equitable
remedies. Except as otherwise set forth in Exhibits M, N and O hereto,
there have not been any defaults by the Company or Sellers or, to the
best knowledge of the Company and Sellers after due inquiry, defaults
or any claims of default or claims of nonenforceability by the other
party or parties which, individually or in the aggregate, would have a
material adverse effect on the business or any of the Company's
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Assets, and, to the best of the Company's and Sellers' knowledge after
due inquiry, there are no facts or conditions that have occurred or
that the Company or Sellers (without independent investigation)
anticipate to occur which, through the passage of time or the giving
of notice, or both, would constitute a default by the Company or
Sellers, or by the other party or parties, under any of such
contracts, agreements, leases, licenses and instruments or would cause
a creation of a lien, security interest or encumbrance upon any of the
Company's Assets or otherwise materially and adversely affect any of
the Company's Assets or the business.
n. Employees and Plans. Company and Sellers have furnished to Purchaser a
list of each compensation arrangement for each employee. Company has
no employee pension plan, employee profit sharing plan or employee
welfare benefit plan subject to the Employee Income Retirement
Security Act of 1974 or any other employee pension plan, employee
profit sharing plan and employee welfare benefit plan.
o. Receivables. All notes receivable of Company from and advanced as set
forth on Schedule 1 attached hereto and made a part hereof are
collectible.
p. Licenses. Company owns and holds all licenses and permits necessary or
required by applicable law in order to conduct its business as now
conducted and, if required, the Company and Sellers shall take all
actions necessary to transfer such licenses and permits to the
Purchaser.
q. Statutes. All transactions of the Company and Sellers of any nature
have been entered into and/or completed in accordance with all
applicable statutes, laws, rules, codes, regulations, and ordinances.
r. Labor Unions. There are no agreements with any labor union, other
labor organization or labor representatives applicable to or covering
the employees of the Company, nor are any discussions or negotiations
in anticipation of any such agreement presently under way or
anticipated, nor has there been any request made to enter any such
negotiations or to hold any type of election relating to
employer/employee relations or bargaining.
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s. Environmental Laws. The premises currently occupied by the Company
satisfy all local ordinances and Wyoming statutes and the Company has
complied in all material respects with all environmental laws,
including hazardous or toxic waste disposal laws and regulations
applicable to the Company and its business.
t. Compliance with Law/Permits. The Company is in compliance with all,
and is not in violation of any, law, ordinance, order, decree, rule or
regulation of any governmental agency or authority, the violation of
or noncompliance with which could have a material adverse effect on
the business or the Company's Assets taken as a whole. There are no
unresolved (i) proceedings or investigations instituted or, to the
best knowledge of the Company or Sellers after due inquiry,
threatened, by any such governmental authorities against the Company
or, to the best knowledge of the Company or Sellers (without
independent investigation), relating to the business, or (ii)
citations issued or, to the best knowledge of the Company or Sellers
after due inquiry, threatened against the Company or its business,
including under any federal or state regulation or otherwise, which
could have, individually or in the aggregate, a material adverse
effect on the business or the Company's Assets taken as a whole, or
interfere with the maintenance, or the transfer or reissuance to
Purchaser, of the permits, licenses, franchises, certificates,
authorizations or any right to operate held by the Company.
u. Litigation and Proceedings. Except as set forth in Exhibit P hereto,
there is no action, suit, proceeding or investigation, or any counter
or cross-claim in an action brought by or on behalf of the Company or
Sellers, whether at law or in equity, or before or by any governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, or before any arbitrator of any kind, that is
pending or, to the best knowledge of the Company or Sellers after due
inquiry, threatened, against the Sellers, which (i) could reasonably
be expected to affect adversely the Company's or Sellers' ability to
perform its obligations under this Agreement or the agreements
referenced herein or complete any of the transactions contemplated
hereby or thereby, or (ii) involves the reasonable possibility of any
judgment or liability, or which may become a claim, against Purchaser,
the Company, its business or any of the Company's Assets prior to or
subsequent to the Closing Date. The Company is not subject to any
judgment, order, writ, injunction, decree or award of any court,
arbitrator or governmental department, commission, board, bureau,
agency or instrumentality having jurisdiction over Company, any of its
assets or the business.
14
ARTICLE IV
----------
COVENANTS
---------
4.1 CONDUCT OF BUSINESS OF COMPANY PENDING THE CLOSING. Sellers and Company
agree that from the date hereof and prior to the Closing Date or earlier
termination of this Agreement.
a. Full Access. Sellers and Company shall permit representatives of
Purchaser to have full access to all premises, properties,
personnel, books, records, contracts and documents pertaining to
Company;
b. Operation of Business. Neither the Company nor the Sellers will
engage in any practice, take any action, or enter into any
transaction outside the ordinary course of business. Without
limiting the generality of the foregoing neither the Company nor
the Sellers:
(1) will authorize or effect any change in its charter or
shareholders' agreement under which the Company operates in
lieu of bylaws;
(2) will grant any options, warrants, or other rights to
purchase or obtain any of its capital stock or issue, sell,
or otherwise dispose of any of its capital stock.
(3) will declare, set aside, or pay any dividend or distribution
with respect to its capital stock (whether in cash or in
kind), or redeem, repurchase, or otherwise acquire any of
its capital stock;
(4) will issue any note, bond, or other debt security or create,
incur, assume, or guarantee any indebtedness for borrowed
money or capitalized lease obligation;
(5) will impose any security interest upon any of its assets;
(6) will make any capital investment in, make any loan to, or
acquire the securities or assets of any other person outside
the ordinary course of business;
15
(7) will make any change in employment terms for any of its
directors, officers, and employees outside the ordinary
course of business; and,
(8) will commit to any of the foregoing.
c. Exclusivity. Neither Sellers nor Company shall solicit, initiate
or encourage the submission of any proposal or offer from any
person relating to the acquisition of all or substantially all of
the capital stock or assets of Company. Sellers and Company shall
notify the Purchaser immediately if any person makes any
proposal, offer, inquiry or contact with respect to any of the
foregoing.
4.2 THIRD PARTY CONSENTS. Each party to this Agreement shall use its best
efforts to obtain, as soon as reasonably practicable, all permits,
authorizations, consents, waivers and approvals from third parties or
governmental authorities necessary to consummate this Agreement and the
transactions contemplated hereby or thereby, including, without limitation, any
permits, authorizations, consents, waivers and approvals required in connection
with the Agreement.
ARTICLE V
---------
CONDITIONS TO CLOSING
---------------------
5.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE PURCHASE. The
respective obligations of each party to consummate the purchase and the other
transactions contemplated by this Agreement (collectively, the "Transaction")
shall be subject to the fulfillment of all of the following conditions precedent
at or prior to the Closing Date:
a. No injunction, order, or decree by any federal, state or foreign
court which prevents the consummation of the Transaction shall
have been issued;
b. No statute or regulation shall exist or be enacted which would
prevent consummation of the Transaction; and,
c. All governmental consents and approvals required for Transaction
shall have been obtained.
5.2 CONDITIONS TO OBLIGATIONS OF SELLERS TO EFFECT THE TRANSACTION. The
obligation of Sellers to effect the Transaction is subject to fulfillment of all
of the following conditions precedent at or prior to the Closing Date.
16
a. All representations and warranties in Section 3.2 shall be true
and correct in all material respects;
b. Purchaser shall have performed and complied with all covenants
under this Agreement;
c. The Employment Agreements substantially in the form attached
hereto as Exhibits A, B and C, shall be executed by Sellers as
applicable, and the Company;
d. The Buy-Sell Agreement, substantially in the form attached hereto
as Exhibit D shall have been executed by all parties to this
Agreement;
e. The Amended Shareholders' Agreement, substantially in the form
attached hereto as Exhibit E, shall have been executed by all
parties to this Agreement;
f. The Subscription Agreement, substantially in the form attached
hereto as Exhibit F, shall have been executed by the Sellers.
5.3 CONDITIONS TO OBLIGATIONS OF PURCHASER TO EFFECT THE TRANSACTION. The
obligation of Purchaser to effect the Transaction is subject to the fulfillment
of all of the following conditions precedent at or prior to the Closing Date:
a. All representations and warranties made in this Agreement by the
Company and Seller are true and correct;
b. Company and Sellers shall have performed and complied with all
covenants under this Agreement;
c. No action, suit or proceeding shall be pending or threatened
before any court or quasi-judicial or administrative agency of
any federal, state, local, or foreign jurisdiction or before any
arbitrator wherein an unfavorable injunction, judgment, order,
decree, ruling or change would (A) prevent consummation of any of
the transactions contemplated by this Agreement, (B) cause any of
the transactions contemplated by this Agreement, (C) affect
adversely the right of Purchaser to own the capital stock of the
Company or (D) materially and adversely affect the right of the
Company to own its assets and to operate its business (and no
such injunction, judgment, order, decree, ruling or charge shall
be in effect);
17
d. The Employment Agreements, substantially in the form attached
hereto as Exhibit A, B and C, shall be executed by Sellers as
applicable, and the Company;
e. The Buy-Sell Agreement, substantially in the form attached hereto
as Exhibit D, shall be executed by all parties to this Agreement;
f. The Amended Shareholders' Agreement, substantially in the form
attached hereto as Exhibit E, shall be executed by all parties to
this Agreement;
g. All consents and approvals necessary for the Transaction shall
have been obtained; and
h. No material adverse change has occurred in the business,
operations or prospects of the Company.
5.4 CONTINGENCIES. In addition to the foregoing, this Agreement and
Purchaser's obligation to perform hereunder is specifically contingent upon and
subject to the Purchaser's satisfaction, in its sole discretion, with its due
diligence examination of the following which will be performed and completed by
Purchaser or its agents within fifteen (15) business days of the execution of
this Agreement:
a. An accounting and audit verification of all assets and
liabilities of the Company by agents of Purchaser satisfactory to
all parties.
b. Verification of the corporate status of the Company with the
Wyoming Secretary of State.
c. Review of corporate articles of incorporation, bylaws, minutes of
any meetings of shareholders and/or board of directors, and stock
certificate records and/or ledgers of the Company which will be
provided to Purchaser upon execution of this Agreement.
d. Review of pawn and other required business licenses of the
Company to conduct business in the state and local governmental
jurisdictions.
e. Any other business review procedures and/or documents required to
close the Transaction as may be required or recommended by legal,
accounting and/or tax advisors for any party.
If the Purchaser is not satisfied, in Purchaser's sole opinion, with its
review of any of the above, the Purchaser may terminate this Agreement in
writing on or before twenty (20) business days from the execution of this
Agreement in which event this Agreement and all obligations of the Purchaser
hereunder shall terminate.
18
ARTICLE VI
----------
INDEMNIFICATION
---------------
6.1 GENERAL INDEMNIFICATION COVENANTS. Subject to the provisions of
Sections 6.3 and 6.4, Sellers, jointly and severally, shall unconditionally
indemnify, save and keep Purchaser and its affiliates, successors and permitted
assigns (including Company) (the "Purchaser Indemnitees"), harmless against and
from all liability, demands, claims, actions or cause of action, assessments,
losses, fines, penalties, costs, damages and expenses, including reasonable
attorneys' fees, disbursements and expenses (collectively, "Damages"), sustained
or incurred by any of the Purchaser Indemnitees as a result of, arising out of,
or by virtue of any misrepresentation, breach of any warranty or representation,
or non-fulfillment of any agreement or covenant on the part of Company or
Sellers, whether contained in this Agreement or any exhibit or schedule hereto
or in any closing document delivered by Company or Sellers or Purchaser in
connection herewith to the extent such Damages (excluding obligations of Sellers
under Section 6.2 and Section 6.8) exceed One Thousand dollars ($1,000) in the
aggregate.
6.2 TAX INDEMNITY.
a. Sellers, jointly and severally, hereby unconditionally agrees to
pay, indemnify, defend and hold Purchaser and Company harmless
from and against any and all Taxes of Company and its
subsidiaries with respect to any period (or any portion thereof)
up to and including the Closing Date, except for Taxes of Company
which are reflected on the federal income tax return of the
Company as originally filed with the Internal Revenue Service for
the period ended on or about the Closing Date, together with all
reasonable legal fees, disbursements, and expenses incurred by
Purchaser and Company in connection therewith.
b. Purchaser shall prepare and file any Return of Company which is
required to be filed after the Closing Date and which relates to
any period (or portion thereof) up to and including the Closing
Date. Promptly after notice from Purchaser to Sellers at any time
prior to the date any payment for Taxes attributable to any such
Return is due or payment for Taxes with respect to any Return
must be made, an amount equal to the excess, if any, of (i) the
aggregate amount of Taxes that are due with respect to any
taxable period or periods ending on or before the Closing Date,
and Taxes that would have been due with respect to a taxable
period beginning before and ending after the Closing Date if such
period had ended
19
on the Closing Date over (ii) the amount of such Taxes of Company
which are reflected on the federal income tax return of the
Company as originally filed with the Internal Revenue Service for
the period ended on or about the Closing Date shall be paid by
Seller to Purchaser by wire transfer of immediately available
funds within three business days.
c. The indemnity provided for in this Section 6.2 shall be
independent of any other indemnity provision hereof and, anything
in this Agreement to the contrary, notwithstanding, shall survive
until the expiration of the applicable statutes of limitation for
the Taxes referred to herein, and any Taxes subject to the
indemnification for Taxes set forth in this Section 6.2 shall not
be subject to the provisions of Section 6.1 or 6.4 hereof.
6.3 CONDITIONS OF INDEMNIFICATION PURSUANT TO SECTION 6.1.
a. Promptly following the receipt by a Purchaser Indemnitee of
notice of a demand, claim, action, assessment or proceeding made
or brought by a third party, including a governmental agency (a
"Third Party Claim"), the Purchaser Indemnitee receiving the
notice of the Third Party Claim (i) shall notify Sellers of its
existence, setting forth the facts and circumstances of which
such Purchaser Indemnitee has received notice, and (ii) if the
Purchaser Indemnitee giving such notice is a person entitled to
indemnification under this Article VI (an "Indemnified Party"),
specifying the basis hereunder upon which the Indemnified Party's
claim for indemnification is asserted.
b. The Indemnified Party shall, upon reasonable notice by Sellers,
tender the defense of a Third Party Claim to Sellers. If Sellers
accepts responsibility for the defense of a Third Party Claim,
then Sellers shall have the exclusive right to contest, defend
and litigate the Third Party Claim and shall have the exclusive
right, in his discretion exercised in good faith and upon the
advice of counsel, to settle any such matter, either before or
after the initiation of litigation, at such time and upon such
terms as he deems fair and reasonable, provided that at least ten
(10) days prior to any such settlement, he shall give written
notice of his intention to settle to the Indemnified Party. The
Indemnified Party shall have the right to be represented by
counsel at its own expense in any defense conducted by Sellers.
20
c. Notwithstanding the foregoing, in connection with any settlement
by Sellers, no Indemnified Party shall be required to (i) enter
into any settlement (A) that does not include the delivery by the
claimant or plaintiff to the Indemnified Party of a release from
all liability in respect of such claim or litigation, (B) if the
Indemnified Party shall, in writing to Sellers within the ten
(10) day period prior to such proposed settlement, disapprove of
such settlement proposal and desire to have Sellers tender the
defense of such matter back to the Indemnified Party, or (C) that
requires an Indemnified Party to take any affirmative actions as
a condition of such settlement, or (ii) consent to the entry of
any judgment that does not include a full dismissal of the
litigation or proceeding against the Indemnified Party with
prejudice; provided, however, that should the Indemnified Party
disapprove of a settlement proposal pursuant to Clause (B) above,
the Indemnified Party shall thereafter have all the
responsibility for defending, contesting and settling such Third
Party Claim but shall not be entitled to indemnification by
Sellers to the extent that, upon final resolution of such Third
Party Claim, Sellers' liability to the Indemnified Party but for
this provision exceeds what Sellers' liability to the Indemnified
Party would have been if Sellers were permitted to settle such
Third Party Claim in the absence of the Indemnified Party
exercising its right under Clause (B) above.
d. If, in accordance with the foregoing provisions of this Section
6.4, an Indemnified Party shall be entitled to indemnification
against a Third Party Claim, and if Sellers shall fail to accept
the defense of a Third Party Claim which has been tendered in
accordance with this Section 6.4, the Indemnified Party shall
have the right, without prejudice to its right of indemnification
hereunder, in its discretion exercised in good faith and upon the
advice of counsel, to contest, defend and litigate such Third
Party Claim, and may settle such Third Party Claim, either before
or after the initiation of litigation, at such time and upon such
terms as the Indemnified Party deems fair and reasonable,
provided that at least ten (10) days prior to any such
settlement, written notice of its intention to settle is given to
Sellers. If, pursuant to this Section 6.4, the Indemnified Party
so defends or settles a Third Party Claim for which it is
entitled to indemnification hereunder, as hereinabove provided,
the Indemnified Party shall be reimbursed by Sellers for the
reasonable attorneys' fees and other expenses of defending the
Third Party Claim which are incurred from time to time, forthwith
following the presentation to Sellers of itemized bills for said
attorneys' fees and other expenses. No failure by Sellers to
21
acknowledge in writing his indemnification obligations under this
Article VI shall relieve him of such obligations to the extent
they exist.
6.4 CERTAIN TAX AND OTHER MATTERS.
a. If, in connection with the audit of any Return, a proposed
adjustment is asserted in writing with respect to any Taxes of
Company for which Sellers are required to indemnify Purchaser
pursuant to Section 6.2(a) hereof, Purchaser shall notify Sellers
of such proposed adjustment within twenty (20) days after the
receipt thereof. Upon notice to Purchaser or Company within
twenty (20) days after receipt of the notice of such proposed
adjustment from Purchaser or Company, Sellers may assume (at
Sellers' own cost and expense) control of and contest such
proposed adjustment.
b. Alternatively, if Sellers request within twenty (20) days after
receipt of notice of such proposed adjustment from Purchaser or
Company, as the case may be, shall contest such proposed
adjustment, Sellers shall be obligated to pay all reasonable
out-of- pocket costs and expenses (including legal fees and
expenses) which Purchaser or Company may incur in so contesting
such proposed adjustment as such costs and expenses are incurred,
and Purchaser shall have the full right to contest such proposed
adjustment and shall be entitled to settle or agree to pay in
full such proposed adjustment (in its sole discretion) and
thereafter pursue its rights under this Agreement. Sellers shall
pay to Purchaser all indemnity amounts in respect of any such
proposed adjustment within thirty (30) days after written demand
to Sellers therefor, or, if Sellers have assumed control of the
contest of such proposed adjustment as provided above (or has
requested Purchaser or Company to contest such proposed
adjustment within the time provided above), within thirty (30)
days after such proposed adjustment is settled or a Final
Determination has been made with respect to such proposed
adjustment.
c. For purposes of this Section 6.5, a "Final Determination" shall
mean (i) the entry of a decision of a court of competent
jurisdiction at such time as an appeal may no longer be taken
from such decision or (ii) the execution of a closing agreement
or its equivalent between the particular taxpayer and the
Internal Revenue Service, as provided in Section 7121 and Section
7122, respectively, of the Code, or a corresponding agreement
between the particular taxpayer and the particular state or local
22
taxing authority. The obligation of Sellers to make any indemnity
payment pursuant to Section 6.2(a) shall be premised on the
receipt by Sellers from Purchaser or Company of a written notice
setting forth the relevant portion of any Final Determination,
and in cases where the amount of the indemnity payment exceeds
twenty-five thousand dollars ($25,000), a certified statement by
a nationally recognized accounting firm setting forth the amount
of the indemnity payment (and in all other cases, a similar
statement certified by the chief financial officer of Purchaser)
and describing in reasonable detail the calculation thereof.
6.5 CERTAIN INFORMATION. Purchaser, Sellers and Company agree to furnish or
cause to be furnished to each other (at reasonable times and at no charge) upon
request as promptly as practicable, such information (including access to books
and records) pertinent to Company and assistance relating to Company as is
reasonably necessary for the preparation, review and audit of financial
statements, the preparation, review, audit and filing of any Tax Return, the
preparation for any audit or the prosecution or defense of any claim, suit or
proceeding relating to any proposed adjustment or which may result in Sellers
being liable under the indemnification provisions of this Article VI provided,
that access shall be limited to items pertaining solely to Company or its
subsidiaries. Sellers shall grant to Purchaser access to all Tax Returns filed
with respect to Company.
6.6 RELEASE BY SELLERS. Sellers hereby release and discharge Purchaser and
Company and each of its officers and directors from, and agrees and covenants
that in no event will Sellers commence any litigation or other legal or
administrative proceeding against, Purchaser, Company, or any of their officers
or directors, whether in law or equity, relating to any and all claims and
demands, known and unknown, suspected and unsuspected, disclosed and
undisclosed, for damages, actual or consequential, past, present and future,
arising out of or in any way connected with his ownership or alleged ownership
of common stock of Company prior to the Closing Date, other than claims or
demands arising out of the transactions contemplated by this Agreement.
6.7 INDEMNITY OF PURCHASER. Purchaser agrees to indemnify and hold Seller
harmless from all liability, demands, claims, causes of action, damages and
expenses sustained or incurred by Seller as a result of (a) the breach by
Purchaser of any warranty in Section 3.2, (b) obligations under leases of
Company with respect to which Company is not in default on the Closing Date and
have been furnished to Purchaser prior to the Closing Date.
ARTICLE VII
-----------
TERMINATION, AMENDMENT AND WAIVER
---------------------------------
7.1 TERMINATION. This Agreement may be terminated at any time prior to the
Closing Date:
23
a. By mutual consent of Purchaser and Sellers; or,
b. By either Purchaser or Sellers if (i) the Purchase shall not have
been consummated on or before April 1, 1996 (the "Termination
Date"), (ii) any governmental or regulatory body, the consent of
which is a condition to the obligations of Purchaser and Company
to consummate the transactions contemplated hereby, shall have
determined not to grant its consent and all appeals of such
determination shall have been taken and have been unsuccessful,
or (iii) any court of competent jurisdiction in the United States
or any State shall have issued an order, judgment or decree
(other than a temporary restraining order) restraining, enjoining
or otherwise prohibiting the consummation of the Transaction and
such order, judgment or decree shall have become final and
nonappealable.
7.2 EFFECT OF TERMINATION. In the event of termination of this Agreement by
either Purchaser or Sellers, as provided in Section 7.1, this Agreement shall
forthwith become void and there shall be no liability on the part of either
Purchaser or Company or their respective officers and directors. Nothing in this
Section 7.2 shall relieve any party from liability for any breach of this
Agreement.
7.3 AMENDMENTS AND WAIVERS. No amendment of any provision of this Agreement
shall be valid unless the same shall be in writing and signed by all of the
parties. No waiver by any party of any default, misrepresentation, or breach of
warranty or covenant hereunder, whether intentional or not, shall be deemed to
extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
ARTICLE VIII
------------
MISCELLANEOUS
-------------
8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations,
warranties, covenants and agreements made by any party in this Agreement or
pursuant hereto shall survive the closing of the Purchase until March 31, 1999,
except for the representations, warranties, covenants and agreements contained
in Sections 3.3(k), 3.3(n), and 6.2(a) of this Agreement which shall survive the
Purchase until the expiration of the applicable statutes of limitations with
respect to such matters. All claims made by Purchaser by virtue of any such
representations, warranties, covenants and agreements shall be made under, and
subject to the limitations set forth in, Article VI hereof.
8.2 PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No party shall issue any press
release or make any public announcement relating to the subject matter of this
Agreement
24
without the prior approval of the other parties; provided, however, that any
party may make any public disclosure it believes in good faith is required by
applicable law or any listing or trading agreement concerning its
publicly-traded securities (in which case the disclosing party will use its
reasonable best efforts to advise the other party prior to making the
disclosure).
8.3 NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to the Company: Advantage Pawn
000 Xxxx 00xx Xxxxxx
Xxxxxxxx, XX 00000
Copy To: U.S. Pawn, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
Xxxxx X. Xxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
If to the Purchaser: U.S. Pawn, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
Copy To: Xxxxx X. Xxxxxx, Esq.
0000 X. Xxxxx Xxxxxx, #000
Xxxxxx, XX 00000
If to the Sellers: Xxxxx X. Xxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxxxxx
000 X. 0xx Xxxxxx
Xxxxxxxx, XX 00000
Xxxxxxx X. Xxxxx
0000 Xxxxxxxx
Xxxxxxxx, XX 00000
25
Copy to: Xxxxx X. Xxxxx, Esq.
Majestic Building, Suite 400
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Any party may send any notice, request, demand, claim or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other parties
notice in the manner herein set forth.
8.4 ENTIRE AGREEMENT. This Agreement (including the documents referred to
herein) constitutes the entire agreement among the parties and supersedes any
prior understandings, agreements, or representations by or among the parties,
written or oral, to the extent they related in any way to the subject matter
hereof.
8.5 NON-WAIVER. The failure of any party to insist upon performance of any
terms, covenants or conditions shall not be construed as a subsequent waiver of
any such terms, covenants, or conditions.
8.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
8.7 SEVERABILITY. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
8.8 GOVERNING LAW. This Agreement shall be governed by and construed
exclusively in accordance with the domestic laws of the State of Colorado
without giving effect to any choice or conflict of law provision or rule
(whether of the State of Colorado or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Colorado.
8.9 ARBITRATION. Any controversy or claim arising out of this Agreement
shall be resolved by binding arbitration in accordance with the rules of the
American Arbitration Association and the prevailing party, in addition to the
award provided by such arbitration, shall be entitled to attorney's fees and
costs associated with such arbitration.
8.10 SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the parties named herein and their respective successors
and permitted assign either this Agreement or any of its rights, interests, or
obligations hereunder without the prior written approval of the other parties.
26
8.11 HEADINGS. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
8.12 EXPENSES. Each of the parties will bear its own costs and expenses
(including legal fees and expenses) incurred in connection with this Agreement
and the transactions contemplated hereby.
IN WITNESS WHEREOF, the parties have executed this Stock Purchase Agreement
on the date first above written.
PURCHASER: U.S. PAWN, INC.
By: /S/ XXXXXX XXXXXX
-----------------------------------
XXXXXX XXXXXX
Chief Executive Officer
COMPANY: ADVANTAGE PAWN
By: /S/ XXXXXX X. XXXXXXXXXXX
------------------------------------
Xxxxxx X. Xxxxxxxxxxx, President
SELLERS:
/S/ XXXXX X. XXXXXXXX
---------------------------------------
Xxxxx X. Xxxxxxxx
/S/ XXXXXX X. XXXXXXXXXXX
---------------------------------------
Xxxxxx X. Xxxxxxxxxxx
/S/ XXXXXXX X. XXXXX
---------------------------------------
Xxxxxxx X. Xxxxx
27
