SHARE PURCHASE AND EXCHANGE AGREEMENT MANCHESTER INC. NICE CARS ACCEPTANCE ACQUISITIONCO, INC. NICE CARS CAPITAL ACCEPTANCE CORPORATION SHAREHOLDERS OF NICE CARS CAPITAL ACCEPTANCE CORPORATION
NICE
CARS ACCEPTANCE ACQUISITIONCO, INC.
NICE
CARS CAPITAL ACCEPTANCE CORPORATION
SHAREHOLDERS
OF NICE
CARS CAPITAL ACCEPTANCE CORPORATION
THIS
SHARE PURCHASE AND EXCHANGE AGREEMENT (this "Agreement"), dated October 4,
2006,
is entered into by and between Manchester Inc., a Nevada corporation having
its
principal office at 000 Xxxxxxxx Xxxxx, 0xx
Xxxxx,
Xxxxxx, Xxxxx 00000 (the “Parent”), Nice
Cars
Acceptance AcquisitionCo, Inc.,
a
Delaware corporation and wholly owned subsidiary of the Parent (the “Company”),
Nice
Cars
Capital Acceptance Corporation,
a
Georgia Corporation (“NCCAC”) having its principal office at 000 Xxxxxxxxxxx
Xxxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000 and the undersigned shareholders of
NCCAC (each a “Shareholder,” and collectively, the “Shareholders”).
WHEREAS,
an Affiliate of the Company (“Nice Cars Operations AcquisitionCo”) intends to
acquire all of the issued and outstanding shares of Nice
Cars,
Inc., a
Georgia corporation (“NCI”), simultaneously with the acquisition of the NCCAC
Shares;
WHEREAS,
the parties hereto intend,
by approving resolutions authorizing this Agreement, to adopt this Agreement
and
the Plan and Agreement of Merger of Foreign Corporation into Delaware
Corporation (the “Merger Agreement”), to be executed and filed as of even date
of the Closing (the “Closing Date”) as contemplated hereto, as a plan of
reorganization within the meaning of Section 368(a) of the Internal Revenue
Code
of 1986, as amended (the "Code"), and the regulations promulgated
thereunder;
_________________
Information
marked with the notation [ * ] has been omitted from the exhibits filed with
the
U.S. Securities and Exchange Commission (the “Commission”) pursuant to a request
for confidential treatment submitted to the Commission on the date of this
filing. A complete copy of these exhibits has been provided to the
Commission.
NOW,
THEREFORE, in consideration of the covenants, promises and representations
set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally
bound hereby, the parties agree as follows:
1. Share
Purchase and Exchange. Subject to the terms and conditions stated herein, at
the
Closing (as defined below), (a) the Shareholders shall assign, transfer, convey,
and deliver to the Company, and the Company shall accept and acquire,
the NCCAC Shares and any and all rights in such shares to which such Shareholder
is entitled, and by so doing, each Shareholder will be deemed to have assigned
all of his or her right, title and interest in and to all such NCCAC Shares
to
the Company; and (b) in exchange for the NCCAC Shares, the Company shall
transfer to the Shareholders, and the Shareholders shall accept from the
Company, (i) 5,568,750 shares of the Parent’s common stock (the “Exchange
Shares”) on the date of the Closing; (ii) a payment of fifteen million three
hundred forty five thousand dollars ($15,345,000) by wire transfer to be made
on
the Closing Date after the Merger Agreement referred to in Section 2.5 has
been
filed with the Secretary of State of Delaware to an account designated by the
Shareholders; and (iii) a note from Manchester to the Shareholders in the
principal amount of six million nine hundred and thirty thousand dollars
($6,930,000) (the “Purchase Note”), substantially in the form of Exhibit A
hereof,
which shall be due and payable in accordance with its terms. If one or more
stock certificates representing the NCCAC Shares have been issued, such
conveyance of the NCCAC Shares shall be evidenced by such stock certificate(s),
duly endorsed to the Company or accompanied by stock powers duly executed to
the
order of the Company, or other instruments of transfer in form and substance
reasonably satisfactory to the Company. As additional inducement to the
Shareholders, the Parent and the Company shall at Closing issue to the
Shareholders the S Tax Reimbursement Note in the form attached hereto as
Exhibit
B
as
described in Section 8(a) herein, and the Shareholder Note in the form attached
hereto as Exhibit
C
with
respect to repayment of Shareholder loans to NCCAC outstanding as of the Closing
Date.
2.2 Employment
Agreements. Simultaneously with the Closing, Nice Cars Operations AcquisitionCo
will enter into employment agreements with those individuals listed on
Exhibit
D
to the
NCI Agreement (as defined below), substantially in the form of the employment
agreements attached thereto.
2.3 Payments
to the Xxxxx. At the Closing, the Company shall take such actions as are
necessary and proper to ensure that any and all amounts due and owed by NCCAC
pursuant to those notes executed with Xxxxxxx Xxxx and his spouse and three
children (the “Xxxxx”) and which are listed on Exhibit
E
hereto
shall be paid at Closing by the delivery of a promissory note by NCCAC to the
Xxxxx.
2
2.4 Release
of the Xxxxx. The Company shall promptly after Closing take such actions as
are
necessary and proper to ensure that the Xxxxx shall be released from those
personal guaranties or other obligations ("Personal Obligations") relating
to
NCCAC that such individuals may have and which are listed on Exhibit
F
provided, however, that no duplicate payments shall be made in respect of any
Personal Obligations agreed to be paid under the acquisition of NCI as of even
date herewith. In the event the Company is unable to obtain the release of
the
Xxxxx from any Personal Obligations, the Company shall fund an escrow account
or
obtain a letter of credit in an amount equal to the sum of all unreleased
Personal Obligations, and the funds in the escrow account or such letter of
credit will be used to satisfy the unreleased Personal Obligations as they
become due. The terms and provisions of the escrow account or such letter of
credit shall be mutually agreed upon by the Company and Shareholders. Parent
and
Company hereby covenant and agree that any lease for premises occupied by NCCAC
which is either in the name of Xxx Xxxx or which is personally guaranteed by
Xxx
Xxxx shall not be amended, modified, renewed or extended in any manner unless
and until Xxx Xxxx is removed from any and all personal obligations under said
lease.
2.5 Merger
of
NCCAC into the Company. At the Closing, the officers of NCCAC and the Company
shall execute, deliver and file with the Secretary of State of the State of
Delaware the Merger
Agreement,
attached hereto as Annex A, and shall take any and all further actions
reasonably necessary to cause the merger of NCCAC into the Company such that
NCCAC shall thereafter cease to exist and all business previously conducted
by
NCCAC shall thereafter be conducted by the Company. Parent and Company
acknowledge that an important consideration to the Shareholders for this
transaction is that the receipt of the Parent's stock by the Shareholders shall
be deemed to be a tax free reorganization under Section 368(a)(2)(D) of the
Code
and Parent and Company agree not to take any actions which would cause this
transaction not to be a reorganization under Section 368(a)(2)(D) of the Code.
In addition, Parent and Company agree not to make any tax elections under
Section 338 of the Code which would have any adverse or detrimental impact
on
the Shareholders.
2.8 Opinion
of NCCAC. Simultaneously with Closing, NCCAC shall deliver an opinion letter
from counsel to NCCAC, substantially in the form attached hereto as Exhibit
H.
3
(b) Ownership.
The Shareholders are the sole record and beneficial owners of all of the issued
and outstanding NCCAC Shares, have good and marketable title to the NCCAC
Shares, free and clear of all Encumbrances (as hereinafter defined), and have
full legal right and power to sell, transfer and deliver the NCCAC Shares to
the
Company in accordance with this Agreement. "Encumbrances" shall mean any liens,
pledges, hypothecations, charges, adverse claims, options, preferential
arrangements or restrictions of any kind, including, without limitation, any
restriction of the use, voting, transfer, receipt of income or other exercise
of
any attributes of ownership, other than as provided under applicable securities
laws. Upon the execution and delivery of this Agreement, the Company will
receive good and marketable title to the NCCAC Shares, free and clear of all
Encumbrances. There are no stockholders' agreements, voting trust, proxies,
options, warrants, convertible instruments, rights of first refusal or any
other
agreements or understandings with respect to the NCCAC Shares. Except
as
contemplated by this Agreement, there are no preemptive or similar rights to
purchase or otherwise acquire shares of the capital stock of NCCAC pursuant
to
any provision of law, the Certificate of Incorporation or By-Laws (in each
case,
as amended and in effect on the date hereof), or any agreement to which any
Shareholder or NCCAC is a party.
(c) No
Conflict. Except as set forth on Exhibit
I,
none of
the execution, delivery, or performance of this Agreement, or the consummation
of the transactions contemplated hereby, conflicts or will conflict with, or
(with or without notice or lapse of time, or both) will result in a termination,
breach or violation of (i) any instrument, contract or agreement to which any
of
the Shareholders are a party or by which he or she is bound, or to which the
NCCAC Shares are subject; or (ii) any federal, state, local or foreign law,
ordinance, judgment, decree, order, statute, or regulation, or that of any
other
governmental body or authority, applicable to the Shareholders or the NCCAC
Shares.
(d) No
Consent. Except as set forth on Exhibit
J,
no
consent, approval, authorization or order of, or any filing or declaration
with
any governmental authority or any other person, is required for the consummation
by the Shareholders of any of the transactions contemplated by the Shareholders
under this Agreement.
4
(g) No
Obligation to Register. Except as otherwise provided in this Agreement, the
Shareholders understand that neither the Company nor the Parent is under any
obligation to register the Exchange Shares under the Securities Act of 1933,
as
amended (the "Securities Act"), or to assist the Shareholders in complying
with
the Securities Act or the securities laws of any state of the United States
or
of any foreign jurisdiction. The Shareholders understand
that the Exchange Shares must be held indefinitely unless such Exchange Shares
are registered under the Securities
Act
or an
exemption from registration is available. Each Shareholder acknowledges that
such person is familiar with Rule 144 of the rules and regulations of the
Commission, as amended, promulgated pursuant to the Securities
Act
(“Rule
144”),
and
that each Shareholder has been advised that Rule 144 permits resales only under
certain circumstances. The Shareholders understand that to the extent that
Rule
144 is not available, such Shareholder will be unable to sell any Exchange
Shares without either registration under the Securities
Act
or
the existence of another exemption from such registration
requirement.
5
(1)
Each
Shareholder realizes that the basis for the exemption may not be present if,
notwithstanding such representations, such Shareholder is acquiring the Exchange
Shares for a fixed or determinable period in the future, or for a market rise,
or for sale if the market does not rise. No Shareholder has any such
intention.
(2) Each
Shareholder has adequate means for providing for his current needs and personal
contingencies and has no need for liquidity with respect to the acquisition
of
the Exchange Shares.
(3) Each
Shareholder has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of the prospective
investment in the Exchange Shares.
(4) Each
Shareholder has been provided an opportunity for a reasonable period of time
prior to the date hereof to obtain additional information concerning the
offering of the Exchange Shares, the Company, the Parent, and all other
information to the extent the Company or the Parent possesses such information
or can acquire it without unreasonable effort or expense.
(5) Each
Shareholder has carefully reviewed all of the Parent's filings under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(j) Accredited
Investor. Each Shareholder is an "accredited investor" as that term is defined
in Rule 501 of the General Rules and Regulations under the Securities Act by
reason of Rule 501(a)(3).
(l)
Net
Worth. Each Shareholder’s overall commitment to investments which are not
readily marketable is not disproportionate to such Shareholder’s net worth, and
the acquisition of the Exchange Shares will not cause such overall commitment
to
become excessive.
6
(q)
Full
Disclosure. No representation or warranty made by any Shareholder to the Company
and/or the Parent in this Agreement omits to state a material fact necessary
to
make the statements herein, in light of the circumstances in which they were
made, not misleading. There is no fact known to any Shareholder that has
specific application to the NCCAC Shares and that materially adversely affects
or, as far as can be reasonably foreseen, materially threatens the NCCAC Shares
that has not been set forth in this Agreement.
(r) Compliance
Undertakings. Each Shareholder hereby
acknowledges that he/she is acquainted with the requirements of Section 16
and
Section 13(d) of the Securities Exchange Act of 1934 and the rules and
regulations issued thereunder. Each
Shareholder understands
that, as a result of its acquisition of Shares, and in order to comply with
Section 16 and Section 13(d) and the rules and regulations issued thereunder,
each Shareholder
may
be
required to file a report on Form 3 and a Schedule 13D and each such Shareholder
hereby undertakes and agrees to make such filing in a timely manner if so
required.
(a)
Organization
of the Parent. The Parent is a corporation duly organized and validly existing
and in good standing under the laws of the State of Nevada, and has all
requisite power and authority to own, lease and operate its properties and
to
carry on its business as now being conducted. The Parent is duly qualified
as a
foreign corporation to do business and is in good standing in every jurisdiction
in which the nature of the business conducted or property owned by it makes
such
qualification
necessary, other than those in which the failure so to qualify would not have
a
material adverse effect on the business, operations, properties, prospects
or
condition (financial or otherwise) of the Parent. Parent has, prior to the
execution of this Agreement, delivered to the Shareholders true and complete
copies of its (i) Certificate of Incorporation with all amendments thereto;
and
(ii) By-laws, in each case as in effect on the date of Closing. Parent is not
in
default under or in violation of any provision of its Certificate of
Incorporation or By-laws.
7
8
(e)
No
General Solicitation or Advertising in Regard to this Transaction. Neither
the
Parent nor any of its affiliates nor any person acting on its or their behalf
(1) has conducted or will conduct any general solicitation (as that term is
used
in Rule 502(c) of Regulation D) or general advertising with respect to any
of
the Exchange Shares, or (2) made any offers or sales of any security or
solicited any offers to buy any security under any circumstances that would
require registration of the Exchange Shares under the Securities
Act.
9
(g)
No
Undisclosed Liabilities. The Parent has no liabilities or obligations that
are
material, individually or in the aggregate, and that are not disclosed in the
SEC Documents or otherwise publicly announced, other than those incurred in
the
ordinary course of the Parent's businesses and which, individually or in the
aggregate, do not or would not have a material adverse effect on the
Parent.
(h)
No
Undisclosed Events or Circumstances. No event or circumstance has occurred
or
exists with respect to the Parent or its businesses, properties, prospects,
operations or financial condition, that, under applicable law, rule or
regulation, requires public disclosure or announcement prior to the date hereof
by the Parent but which has not been so publicly announced or disclosed in
the
SEC Documents.
(j) Capitalization.
Immediately prior to the Closing, the authorized capital stock of the Parent
shall consist of: (i) a total of ten million (10,000,000) shares of preferred
stock, par value $.001 per share, none of which are issued and outstanding;
and
(b) a total of one hundred million (100,000,000) shares of common stock, par
value $.001 per share, of which 32,787,500 are issued and outstanding as of
the
Closing after giving effect to the issuance of shares hereof. Immediately
prior to the Closing, the Parent has issued and outstanding (i) options to
purchase 550,000 shares of the Parent’s common stock with an exercise purchase
price no less than $4.00 per share; and (ii) warrants that Parent has committed
to issue to purchase up to 4,000,000 shares of the Parent’s common stock in
favor of Palm Beach Multi-Strategy Fund L.P. (the "Lender") at an exercise
purchase price of the lesser of $3.00 per share and a price per share equal
to
75% of the publicly-traded market price for such shares. The
Parent expects to adopt an equity incentive plan with a number of shares of
Parent common stock authorized to be issued thereunder to be determined by
the
Board of Directors as customary and reasonable by reference to
similarly-situated public companies. Except as contemplated by this Agreement,
there are no other outstanding warrants, options, conversion privileges,
preemptive rights, or other rights or agreements to purchase or otherwise
acquire or issue any equity securities of the Parent as of the date of this
Agreement.
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(k)
Full
Disclosure. No representation or warranty made to any Shareholder by the Parent
in this Agreement omits to state a material fact necessary to make the
statements herein, in light of the circumstances in which they were made, not
misleading. There is no fact known to the Parent that has specific application
to the Exchange
Shares
and that
materially adversely affects or, as far as can be reasonably foreseen,
materially threatens the Exchange
Shares
that has
not been set forth in this Agreement or otherwise disclosed in the Parent’s
publicly available reports and disclosures filed with the U.S. Securities and
Exchange Commission.
11
(c)
No
General Solicitation or Advertising in Regard to this Transaction. Neither
the
Company nor any of its affiliates nor any person acting on its or their behalf
(1) has conducted or will conduct any general solicitation (as that term is
used
in Rule 502(c) of Regulation D) or general advertising with respect to any
of
the Exchange Shares, or (2) made any offers or sales of any security or
solicited any offers to buy any security under any circumstances that would
require registration of the Exchange Shares under the Securities
Act.
(e)
No
Undisclosed Liabilities. The Company has no liabilities or obligations that
are
material, individually or in the aggregate, other than those incurred in the
ordinary course of the Company's businesses and which, individually or in the
aggregate, do not or would not have a material adverse effect on the
Company.
12
(f)
No
Undisclosed Events or Circumstances. No event or circumstance has occurred
or
exists with respect to the Company or its businesses, properties, prospects,
operations or financial condition, that, under applicable law, rule or
regulation, requires public disclosure or announcement prior to the date hereof
by the Company but which has not been so publicly announced.
(h)
Full
Disclosure. No representation or warranty made to any Shareholder by the Company
in this Agreement omits to state a material fact necessary to make the
statements herein, in light of the circumstances in which they were made, not
misleading. There is no fact known to the Company that has specific application
to the Exchange
Shares
and that
materially adversely affects or, as far as can be reasonably foreseen,
materially threatens the Exchange
Shares
that has
not been set forth in this Agreement or otherwise disclosed in the Parent’s
publicly available reports and disclosures filed with the U.S. Securities and
Exchange Commission.
3.4 Representations
and Warranties regarding NCCAC. As
an
inducement to the Company and the Parent to enter into this Agreement and to
consummate the transactions contemplated herein, each of the Shareholders,
jointly and severally, represent and warrant to the Company and the Parent
as
follows regarding matters pertaining to NCCAC, all of which are true and
complete as of the date of this Agreement and as of the Closing, except to
the
extent set forth on a disclosure schedule attached hereto referencing the
section and paragraph number of the provision herein corresponding to such
exception:
(a)
Organization
of NCCAC. NCCAC is a corporation duly organized and validly existing and in
good
standing under the laws of the state of Georgia, and has all requisite power
and
authority to own, lease and operate its properties and to carry on its business
as now being conducted. NCCAC is duly qualified as a foreign corporation to
do
business and is in good standing in every jurisdiction in which the nature
of
the business conducted or property owned by it makes such qualification
necessary, other than those in which the failure so to qualify would not have
a
material adverse effect on the business, operations, properties, prospects
or
condition (financial or otherwise) of NCCAC. NCCAC has, prior to the execution
of this Agreement, delivered to the Company and the Parent true and complete
copies of its (i) Certificate of Incorporation with all amendments thereto;
and
(ii) By-Laws, in each case as in effect on date of the Closing. NCCAC is not
in
default under or in violation of any provision of its Certificate of
Incorporation or By-Laws
13
(b)
Authority.
(1) NCCAC has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement; (2) the execution and delivery
of
this Agreement by NCCAC and the consummation by it of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action and no further consent or authorization of NCCAC or its Board
of Directors or stockholders is required; and (3) this Agreement has been duly
executed and delivered by NCCAC and constitutes a valid and binding obligation
of NCCAC enforceable against NCCAC in accordance with its terms, except as
such
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws relating to, or affecting generally the enforcement of, creditors' rights
and remedies or by other equitable principles of general
application.
(c)
Documents.
NCCAC has not provided to the Company or the Parent any information that
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(d)
Issuances.
The shares of NCCAC delivered hereto have been properly issued by NCCAC pursuant
to applicable federal and state laws or exemption therefrom. When delivered
as
herein provided, the NCCAC Shares shall be duly authorized, validly issued,
fully paid, and nonassessable. Neither the transfer of the NCCAC Shares pursuant
to, nor the Company's or Parent’s performance of NCCAC obligations under, this
Agreement shall (1) result in the creation or imposition of any liens, charges,
claims or other encumbrances upon the NCCAC Shares or any of the assets of
NCCAC, or (2) entitle the other holders of the NCCAC Shares to any rights to
subscribe to or acquire any other NCCAC Shares or other securities of the
Company or the Parent. The NCCAC Shares constitute all of the issued and all
outstanding equity interests in NCCAC and there are no direct or indirect rights
of any nature or kind issued or outstanding, contingent or otherwise, to acquire
any NCCAC Shares, including, without limitation, no options, warrants or
instruments convertible into NCCAC Shares.
(e)
No
General Solicitation or Advertising in Regard to this Transaction. NCCAC, nor
any of its affiliates nor any person acting on its or their behalf (1) has
conducted or will conduct any general solicitation (as that term is used in
Rule
502(c) of Regulation D) or general advertising with respect to any of the NCCAC
Shares, or (2) made any offers or sales of any security or solicited any offers
to buy any security under any circumstances that would require registration
of
the NCCAC Shares under the Securities Act.
(f)
No
Conflicts. Except as set forth on Exhibit I and Schedule 3.4(t), the execution,
delivery and performance of this Agreement by NCCAC and the consummation by
NCCAC of the transactions contemplated hereby, do not and will not (1) result
in
a violation of the Certificate of Incorporation or By-Laws of NCCAC, or (2)
conflict with, or constitute a material default (or an event that with notice
or
lapse of time or both would become a material default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, any
one
or more agreements that individually or in the aggregate are material,
indenture, instrument or any "lock-up" or similar provision of any underwriting
or similar agreement to which NCCAC is a party, or (3) result in a violation
of
any federal, state, local or foreign law, rule, regulation, order, judgment
or
decree (including federal and state securities laws and regulations) applicable
to NCCAC or by which any property or asset of NCCAC is bound or affected
(except, in the case of (2) and (3), for such conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations as would not,
individually or in the aggregate, have a material adverse effect on the
business, operations, properties, prospects or condition (financial or
otherwise) of NCCAC or its ability to consummate the transaction contemplated
hereby) nor is NCCAC otherwise in violation of, conflict with or in default
under any of the foregoing. The business of NCCAC is not being conducted in
violation of any law, ordinance or regulation of any governmental entity, except
for possible violations that either singly or in the aggregate do not and will
not have a material adverse effect on the business, operations, properties,
prospects or condition (financial or otherwise) of NCCAC.
14
(g)
No
Undisclosed Liabilities. NCCAC has no liabilities or obligations that are
material, individually or in the aggregate, and that are not disclosed in (i)
the financial statements described in Section 3.4(j) of this Agreement; (ii)
the
releases attached as Exhibit
F
hereto;
or (iii) as disclosed on Schedule 3.4(g) of this Agreement, other than those
incurred in the ordinary course of NCCAC’s business and which, individually or
in the aggregate, are not material to NCCAC. The minute books and other records
of NCCAC contain a true and complete record, in all material respects, of all
action taken at all meetings and by all written consents in lieu of meetings
of
directors, members, shareholders, the management committee or boards of
directors, subcommittees and committees of the boards of directors of NCCAC.
(h)
No
Undisclosed Events or Circumstances. Except as set forth on Schedule 3.4(h),
no
event or circumstance has occurred or exists with respect to NCCAC or its
business, properties, prospects, operations or financial condition, that, under
applicable law, rule or regulation, would require public disclosure under the
Securities Act and/or Exchange Act if NCCAC were subject to the reporting
requirements of Sections 13 or 15 of the Exchange Act that has not been
disclosed in writing to the Company or the Parent.
(i) Litigation
and Other Proceedings. Except as listed on Schedule
3.4(i),
there
are no lawsuits or proceedings pending or, to the best knowledge of the
Shareholders or NCCAC threatened, against NCCAC, nor has NCCAC received any
written or oral notice of any such action, suit, proceeding or investigation,
which would have a material adverse effect on the business, operations,
properties, prospects or condition (financial or otherwise) of NCCAC. No
judgment, order, writ, injunction or decree or award has been issued by or,
so
far as is known by the Shareholders or NCCAC, requested of any court, arbitrator
or governmental agency which would have a material adverse effect on the
business, operations, properties, prospects or condition (financial or
otherwise) of NCCAC or its ability to consummate the transaction contemplated
hereby.
15
(j) Validity
of Financial Statements. The audited financial statements of NCCAC
prepared
by Xxxxxxx Xxxx & Co, PLLC as of December 31, 2005, December 31, 2004 and
December 31, 2003 are true and correct
and have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis during the periods involved (except
as
may be otherwise indicated in such financial statements or the notes thereto)
and fairly present in all material respects the financial position of NCCAC
as
of the dates thereof and the results of operations and cash flows for the
periods then ended. The
unaudited balance sheets and profit and loss statements for the six-month period
ended June 30, 2006 and the months ended July 31, 2006 and August 31, 2006,
which the Shareholders have delivered to the Company and the Parent fairly
present in all material respects the financial position of NCCAC as of the
dates
thereof.
(k) No
Competing Interests.
Except
with respect to the ownership interest in the Parent following the Closing
and
except as disclosed on Schedule 3.4(k), each of the Shareholders
hereby
represents and warrants to the Parent and the Company that neither such
Shareholder, nor any affiliate, has any ownership or other interest in any
business or activity that competes or can reasonably be expected to compete,
directly or indirectly, with any business of the Company following the Closing.
Except as disclosed on Schedule 3.4(k), each of the Shareholders
hereby
represents and warrants to Purchaser that neither he, she or it nor any
affiliate, has or shares, any ownership or similar interest in any asset or
property (including any intellectual property) that is being (or has been in
the
past 12-month period) used in connection with the operation of the business
of
NCCAC.
(l) Environmental,
Health and Safety Matters. Except as set forth on Schedule 3.4(l):
(i) NCCAC
is
in compliance in all material respects with all Environmental Laws applicable
to
its business.
(ii) Neither
Shareholders nor NCCAC has received any notice regarding any actual or alleged
material violation of Environmental Laws including any investigatory, remedial
or corrective obligations, arising under Environmental Laws.
“Environmental
Laws” means all Laws and rules of common law pertaining to the environment,
health and safety, including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. § 9601 et seq.) (“CERCLA”),
the Emergency Planning and Community Right to Know Act and the Superfund
Amendments and Reauthorization Act of 1986, the Solid Waste Disposal Act (42
U.S.C. § 6901 et seq.), the Resource Conservation and Recovery Act of 1976, the
Hazardous and Solid Waste Amendments Act of 1984, the Clean Air Act (42 U.S.C.
§
7401 et seq.), the Clean Water Act (33 U.S.C. § 1251 et seq.), the Federal Water
Pollution Control Act, the Toxic Substances Control Act (15 U.S.C. § 2601 et
seq.), the Safe Drinking Water Act, the Occupational Safety and Health Act
of
1970 (42 U.S.C. § 11001 et seq.), the Oil Pollution Act of 1990, the Hazardous
Materials Transportation Act (49 U.S.C. § 1801 et seq.), and any similar or
analogous statutes, regulations and decisional law of any governmental
authority, as each of the foregoing may have been amended or
supplemented.
16
(m) Subsidiaries.
NCCAC
does
not
own or control, directly or indirectly, any corporation, partnership,
association or business entity.
(n) Absence
of Certain Changes and Events. Except
as
set forth on Schedule 3.4(n), since
the
end of the period covered by the audited financial statements for the year
ended
December 31, 2005, the business of NCCAC
has
been
conducted only in the ordinary course consistent with prior practice and
NCCAC
has
not:
(a) transferred, leased or otherwise disposed of any of its assets or properties
other than in the ordinary course of business; (b) waived, released or
terminated any material rights, Claims, contracts or leases, as applicable;
(c)
suffered any material damage, destruction or loss, whether or not such damage,
destruction or loss shall have been insured against; (d) suffered any material
adverse change in the financial condition, properties or business; or (e) made
or entered into any contract or commitment to make any capital expenditure
in
excess of $100,000. Except
as
set forth on Schedule 3.4(n), since
August 31, 2006, there have not been any dividends or other distributions from
NCCAC to any shareholder of NCCAC.
(o) Assets
and Rights. There are no facts or conditions affecting the assets and properties
of NCCAC
which
could, individually or in the aggregate, interfere in any material respect
with
the use, occupancy, or operation thereof as currently used, occupied or
operated, or their adequacy for such use. Except as set forth on Schedule
3.4(o), NCCAC has good and marketable title to all assets and property owned
by
NCCAC, including, without limitation, all accounts receivable.
(p) Taxes.
(i)
NCCAC
has
timely filed with the appropriate taxing authorities all tax returns required
to
have been filed by NCCAC
on or
before the Closing Date; each such tax return is true, correct and complete
in
all material respects; and all taxes of NCCAC
that are
required to have been paid on or before the Closing Date (whether or not shown
on any tax return) have been timely paid in full.
(ii)
Except as set forth on Schedule 3.4(p), there is no action, suit, proceeding,
investigation, audit, claim or assessment pending or, to the knowledge of the
Shareholders, threatened with respect to NCCAC
with
respect to a liability for taxes or with respect to any tax return. No
deficiency for any tax has been assessed with respect to NCCAC
which
has
not been paid in full.
17
(q) Transactions
with Certain Persons. Except
as
set forth on Schedule 3.4(q), no
officer, member, manager or employee of NCCAC,
nor any
member of any such person’s family owns any assets used in or relating to the
business of NCCAC
(other
than incidental personal office items) or is presently a party to any material
transaction with NCCAC,
including, but not limited to, any contract, agreement or other arrangement
(a)
providing for the furnishing of services by, (b) providing for the rental of
real or personal property from, or (c) otherwise requiring payments to (other
than for services as employees, officers or managers of NCCAC)
such
person.
(r)
Employees.
Except
as
set forth on Schedule 3.4(r), there are no pension,
retirement, profit-sharing, thrift-savings, deferred compensation, share bonus,
stock option, cash bonus, employee stock ownership (including investment credit
or payroll stock ownership), severance pay, insurance, medical, vacation plan,
or other employee benefit plans or any other commitments, arrangements, promises
or understandings with any employee as to salary or bonus, if applicable.
NCCAC
has
complied in all material respects with all legal requirements relating to
employment practices, terms and conditions of employment, equal employment
opportunity, nondiscrimination, immigration, anti-harassment/retaliation and
whistleblower retaliation protection, wages, hours, collective bargaining,
the
payment of social security and similar taxes and occupational safety and health
requirements with respect to matters occurring on or before the Closing
Date.
(s) Material
Contracts. Each
contract which would or could reasonably be expected to result in a payment
by
NCCAC to any third party in excess of $100,000 is in full force and effect
and
constitutes a legal, valid and binding agreement, enforceable in accordance
with
its terms, of NCCAC and any other party thereto, and to the knowledge of
Shareholders neither NCCAC nor, any other party to such contract is, nor has
received notice that it is, in violation or breach of or default under any
such
contract (or with notice or lapse of time or both, would be in violation or
breach of or default under any such contract).
(t) Permits.
(i) NCCAC owns or validly holds all permits required to own and lease assets
and
properties of NCCAC and to conduct the business as currently being conducted;
(ii) each such permit is valid, binding and in full force and effect; and (iii)
except as set forth on Schedule 3.4(t) NCCAC is not and has not received any
notice that it is, in default (or with the giving of notice or lapse of time
or
both, would be in default) under any such permit and after giving effect to
the
transactions contemplated hereby the Company shall be fully able to continue
and
conduct business in the ordinary course as previously conducted by NCCAC,
subject to registration requirements under applicable state laws which may
be
attended to in due course following the Closing.
(u) Insurance.
All liability, property, workers compensation, directors and officers liability
and other insurance policies (including any self insurance programs, if any)
currently in effect that insure the business of NCCAC or employees of NCCAC
or
affect or relate to the ownership, use or operation of any of the assets and
properties of NCCAC (collectively, the “Insurance Policies”). Each of the
Insurance Policies is valid and binding and in full force and effect, all
premiums due thereunder have been paid when due and none of the Shareholders,
NCCAC or the person to whom such policy has been issued has received any notice
of cancellation or termination in respect of any such policy or is in default
thereunder, and none of the Shareholders, NCCAC, or any person to whom such
policy has been issued know of any reason or state of facts that could lead
to
the cancellation of the Insurance Policies. None of the Shareholders, NCCAC,
or
any person to whom such policy has been issued has failed to give any
significant notice or present any significant claim under any of the Insurance
Policies in due and timely fashion.
18
(v) Employees.
The Shareholders have provided the Company and the Parent with a complete and
accurate list of all employees and sales persons currently employed or engaged
by NCCAC, together with the position held by each such person, the amount of
the
annual compensation (separating base salary and other forms of compensation)
of
each such person. NCCAC has paid in full to such employees all wages,
commissions, bonuses and other compensation for all services performed by them
to date (other than amounts accrued since the end of the last pay period and
bonuses accrued for the month of September) and NCCAC is not subject to any
claim for non-payment or non-performance of any of the foregoing.
(w) Accounts
Receivable. The accounts receivable carried in NCCAC’s books and records,
including all retail installment sale contracts for vehicles originated by
NCI:
(i) are valid; (ii) have arisen solely out of bona fide performance of services
and other business transactions in the ordinary course of business consistent
with past practice, in each case, with persons other than affiliates; (iii)
are
not subject to any prior lien and are not subject to valid defenses, set-offs
or
counterclaims, and there are no refunds, discounts or other adjustments payable
in respect of such accounts receivable; and (iv) are collectable in accordance
with their terms, subject to the historical bad debt expense incurred by
NCCAC.
(x) Bank
Accounts; Signatories. Schedule 3.4(x) sets forth (i) a complete and accurate
list of all signatories of any and all bank accounts of, for or in the name
of,
NCCAC and a list of all authorized signatories for each, and (ii) a list of
all
credit cards in the name of NCCAC that are used by the Shareholders or any
of
their affiliates or relatives.
3.5 Indemnification.
(a) The
Shareholders shall jointly and severally indemnify and hold harmless the Company
and the Parent and the officers, directors, agents, affiliates, representatives
and the respective successors and assigns of the Company and the Parent from
and
against any and all damages, losses, liabilities, taxes and costs and expenses
(including, without limitation, attorneys' fees and costs) resulting directly
or
indirectly from (i) any inaccuracy, misrepresentation, breach of warranty or
non-fulfillment of any of the representations and warranties of the Shareholders
in this Agreement, or any actions, omissions or statements of fact inconsistent
with in any material respect any such representation or warranty, (ii) any
failure by the Shareholders to perform or comply with any agreement, covenant
or
obligation in this Agreement.
19
(b) The
Company and Parent shall jointly and severally indemnify and hold harmless
NCCAC
and the Shareholders’ and their respective agents, affiliates, representatives
and respective successors and assigns from and against any and all damages,
losses, liabilities, taxes and costs and expenses (including, without
limitation, attorneys' fees and costs) resulting directly or indirectly from
(i)
any inaccuracy, misrepresentation, breach of warranty or non-fulfillment of
any
of the representations and warranties of the Company or Parent in this
Agreement, or any actions, omissions or statements of fact inconsistent with
in
any material respect any such representation or warranty, (ii) any failure
by
the Company or Parent to perform or comply with any agreement, covenant or
obligation in this Agreement.
(c) Rules
Regarding Indemnification.
The
obligations and liabilities of each party which may be subject to
indemnification liability hereunder (the “indemnifying party”) to the other
party (the “indemnified party”) shall be subject to the following terms and
conditions:
20
(iii) If
the
Closing occurs, no party shall have any liability (for indemnification or
otherwise) with respect to any representation or warranty or any covenant or
obligation to be performed or complied with prior to the Closing Date
(other than representations with respect to taxes and any cases involving fraud)
unless on or
before
May 31, 2009, the indemnified party notifies the indemnifying party of a claim
specifying the factual basis of the claim as set forth in subparagraph (i)
and
(ii) of this Paragraph (c).
Each
certificate representing the Exchange Shares shall be stamped or otherwise
imprinted with legends substantially in the following form (in addition to
any
legend required by applicable state securities or "blue sky" laws):
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE (THE "SECURITIES") HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY
STATE
SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT
(1)(A) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE ACT (IF AVAILABLE) OR ANOTHER THEN AVAILABLE EXEMPTION UNDER THE ACT AND
STATE SECURITIES LAWS, OR (B) IN A TRANSACTION THAT DOES NOT REQUIRE
REGISTRATION UNDER THE ACT OR ANY APPLICABLE STATE LAWS, AND WHEREIN MANCHESTER
INC. SHALL HAVE RECEIVED AN OPINION OF COUNSEL THAT REGISTRATION OF SUCH
SECURITIES UNDER THE ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES
LAWS IS NOT REQUIRED, OR (C) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN
DECLARED EFFECTIVE UNDER THE ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE
TIME OF SUCH TRANSFER); AND (2) PRIOR TO ANY SUCH TRANSFER, IT WILL FURNISH
TO
MANCHESTER INC. AND THE TRANSFER AGENT FOR THE COMMON STOCK SUCH CERTIFICATIONS,
LEGAL OPINIONS, OR OTHER INFORMATION AS MANCHESTER INC. OR SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT
TO
AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE ACT OR STATE SECURITIES LAWS; AND (3) IT WILL DELIVER TO
EACH PERSON TO WHOM THE SECURITIES EVIDENCED HEREBY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. FURTHERMORE, HEDGING TRANSACTIONS
INVOLVING THE SECURITIES EVIDENCED HEREBY MAY NOT BE CONDUCTED UNLESS IN
COMPLIANCE WITH THE ACT.
21
The
Parent agrees to reissue certificates representing any of the Exchange Shares
without the legend set forth above if at such time, prior to making any transfer
of any such Exchange Shares, such holder thereof shall give written notice
to
the Parent describing the manner and terms of such transfer and removal as
the
Parent may reasonably request. Such proposed transfer and removal will not
be
effected until: (a) either (i) the Parent has received an opinion of counsel
reasonably satisfactory to the Parent, to the effect that the registration
of
the Exchange Shares under the Securities
Act
is
not required in connection with such proposed transfer; (ii) a registration
statement under the Securities
Act
covering such proposed disposition has been filed by the Parent with the
Commission and has become effective under the Securities
Act;
(iii) the Parent has received other evidence reasonably satisfactory to the
Parent that such registration and qualification under the Securities
Act
and
state securities laws are not required; or (iv) the holder provides the Parent
with reasonable assurances that such security can be sold pursuant to Rule
144
under the Securities
Act;
and
(b) either (i) the Parent has received an opinion of counsel reasonably
satisfactory to the Parent, to the effect that registration or qualification
under the securities or "blue sky" laws of any state is not required in
connection with such proposed disposition; or (ii) compliance with applicable
state securities or "blue sky" laws has been effected or a valid exemption
exists with respect thereto. The Parent will respond to any such notice from
a
holder within five (5) business days. In the case of any proposed transfer
under
this section, the Parent will use reasonable efforts to comply with any such
applicable state securities or "blue sky" laws, but shall in no event be
required, (x) to qualify to do business in any state where it is not then
qualified; (y) to take any action that would subject it to tax or to the general
service of process in any state where it is not then subject; or (z) to comply
with state securities or “blue sky” laws of any state for which registration by
coordination is unavailable to the Parent. The restrictions on transfer
contained in this section shall be in addition to, and not by way of limitation
of, any other restrictions on transfer contained in any other section of this
Agreement. Whenever
a
certificate representing the Exchange Shares is required to be issued to a
purchaser without a legend, in lieu of delivering physical certificates
representing the Exchange Shares, provided the Parent's transfer agent is
participating in the Depository Trust Company ("DTC")
Fast Automated Securities Transfer program, the Parent shall use its
commercially reasonable efforts to cause its transfer agent to electronically
transmit the Exchange Shares to a purchaser by crediting the account of such
purchaser's Prime Broker with DTC through its Deposit Withdrawal Agent
Commission ("DWAC") system (to the extent not inconsistent with any provisions
of this Agreement).
22
(a) The
Parent and the Shareholders agree that if at any time after the date hereof
the
Parent shall propose to file a registration statement with respect to any of
its
common stock on a form suitable for a secondary offering, it will give notice
in
writing to such effect to the Shareholders at least thirty (30) days prior
to
such filing, and, at the written request of the Shareholders, made within ten
(10) days after the receipt of such notice, will include therein at the Parent's
cost and expense (including the reasonable fees and expenses of one counsel
to
all such holder(s), but excluding underwriting discounts, commissions and filing
fees attributable to the common stock included therein) such of the Exchange
Shares as the Shareholders shall request; provided, however, that if the
offering being registered by the Parent is underwritten and if the
representative of the underwriters certifies in writing that the inclusion
therein of the Exchange Shares would materially and adversely affect the sale
of
the securities to be sold by the Parent thereunder, then the Parent shall be
required to include in the offering only that number of securities, including
the Exchange Shares, which the underwriters determine in their sole discretion
will not jeopardize the success of the offering (the securities so included
to
be apportioned pro rate among all selling holders of shares according to the
total amount of securities entitled to be included therein owned by each selling
holder of shares, but in no event shall the total amount of Exchange Shares
included in the offering be less than the number of securities included in
the
offering by any other single selling holder of shares unless all of the Exchange
Shares are included in the offering).
(b) After
the
date hereof, the Parent shall not grant to any holder of securities of the
Parent any registration rights which have a priority greater than those granted
to Shareholders without the prior written consent of Shareholders.
(c) The
Parents obligations under Section
5(a)
above
with respect to the Exchange Shares are expressly conditioned upon the
Shareholders furnishing to the Parent in writing such information concerning
the
Shareholders as the Parent shall reasonably request for inclusion in the
registration statement. If any registration statement including any of the
Exchange Shares is filed, the Parent shall indemnify the Shareholders from
any
loss, claim, damage or liability arising out of, based upon or in any way
relating to any untrue statement of a material fact contained in such
registration statement or any omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
except for any such statement or omission based on information furnished in
writing by the Shareholders expressly for use in connection with such
registration statement; and the Shareholders shall indemnify the Parent (and
each of its officers and directors who has signed such registration statement,
each director, each person, if any, who controls the Parent within the meaning
of the Securities Act, each underwriter for the Parent and each person, if
any,
who controls such underwriter within the meaning of the Securities Act) and
each
other such Shareholders against any loss, claim, damage or liability arising
from any such statement or omission which was made in reliance upon information
furnished in writing to the Parent by the Shareholders expressly for use in
connection with such registration statement.
23
(a) No
officer or director of the Parent (each, a "Key Shareholder") shall enter into
any private transaction that would result in the sale by it of any securities
of
the Parent now or hereafter owned by it, unless prior to such sale such Key
Shareholder shall give written notice (the "Co-Sale Notice") to the Shareholders
addressed and delivered as set forth in Section
8(a)
hereof,
of its intention to effect such sale in order that the Shareholders may exercise
its rights under this Section
6
as
hereinafter described. Such notice shall set forth (i) the number of securities
to be sold by such Key Shareholder, (ii) the principal terms of the sale,
including the price at which the securities are intended to be sold, and (iii)
an offer by such Key Shareholder to use its best efforts to cause to be included
with the securities to be sold by its in the sale, on a securities-by-securities
basis and on the same terms and conditions, the Exchange Shares issuable or
issued to the Shareholders pursuant to this Agreement. For purposes of clarity,
the foregoing provisions of this Section
6
shall
not apply to any public market sales of securities, including, without
limitation, any transactions executed within the scope of Rule 144.
Notwithstanding the foregoing, this Section
6
shall
not apply to any transfers by any Key Shareholder for estate planning purposes
to: (i) a trust for the benefit of such Key Shareholder or the Key Shareholder's
spouse or issue; or (ii) to a family partnership, limited liability company
or
similar entity of which the members are the foregoing persons.
(b) If
Shareholders have not accepted such offer in writing within a period of ten
(10)
days from the date of receipt of the Co-Sale Notice, the such Key Shareholder
shall thereafter be free for a period of ninety (90) days to sell the number
of
securities specified in the Co-Sale Notice, at a price no greater than the
price
set forth in the Co-Sale Notice and on otherwise no more favorable terms to
such
Key Shareholder than as set forth in the Co-Sale Notice, without any further
obligation to Shareholders in connection with such sale. In the event that
such
Key Shareholder fails to consummate such sale within such ninety (90) day
period, the Shareholders specified in the Co-Sale Notice shall continue to
be
subject to this Section
6.
(c) If
Shareholders accept such offering in writing within a ten (10) day period,
then
such acceptance shall be irrevocable unless Key Shareholder shall be unable
to
cause to be included in his sale the number of Exchange Shares held by
Shareholders and set forth in the written acceptance. In the event, such Key
Shareholder and Shareholders shall participate in the sale equally, with such
Key Shareholder and Shareholders each selling half the number of such securities
to be sold in the sale.
24
(a) Subject
to the terms and conditions contained in this Section
7,
the
Parent hereby grants to Shareholders a right of first offer with respect to
future sales of shares ("New Issues") by the Parent. Shareholders shall be
entitled to purchase such number of shares in each New Issue that is determined
by multiplying the total number of shares in each New Issue by a fraction,
the
numeration of which is the number of Exchange Shares and the denominator of
which is the total number of shares then held by all holders of shares as a
group on a fully diluted basis.
(b) Each
time
the Parent proposes to offer shares or securities convertible into shares for
sale, the Parent shall first make an offering of such securities to the
Shareholders by delivering to Shareholders a notice ("Offering Notice") stating
(i) its bona fide intention to offer such securities, (ii) the number of
securities proposed to be offered, and (iii) the price and terms upon which
it
proposes to offer such securities.
(c) Within
fourteen (14) calendar days following the delivery of the Offering Notice,
Shareholders may elect to purchase or obtain, at the price and upon the terms
specified in the Offering Notice, that number of shares of the New Issue
determined as provided in Section
7(a),
by
written notice of acceptance ("Acceptance Notice") to the Parent.
(d) The
right
of the first offer in this Section
7
shall
not be applicable (a) to the issuance or sale of securities, or options
therefor, pursuant to a bonus or option plan, or otherwise pursuant to the
employment terms of an officer or employee, approved by the Parent's Board
of
Directors, or (b) to the issuance of securities in connection with a bona fide
business acquisition of or by the Parent, whether by merger, consolidation,
sale
of assets, exchange of stock or otherwise.
8. Taxes.
(a) The
parties acknowledge that NCCAC has elected to be treated as "S" Corporation
under the provisions of Section
1361
of the
Code with the result that the taxable income of NCCAC ("S Income") is taxed
to
the Shareholders for both federal and state income tax purposes. The
Shareholders have computed that the sum of $1,577,785.00 is the aggregate
estimated amount necessary to reimburse the Shareholders for all state and
federal income taxes ("S Taxes") payable by the Shareholders with
respect to NCI and NCCAC
for the
year ending December 31, 2005 and for the partial year ending as of the date
of
Closing by reason of the Shareholders reporting the S Income on their personal
federal and state income tax returns ("Tax Amount"). At the Closing, the Parent
and Company shall deliver to Shareholders the S Tax Taxes Reimbursement Note
attached as Exhibit B hereto (the “S Tax Reimbursement Note”) in an amount equal
to the Tax Amount. After the Shareholders have prepared their federal and state
income tax returns for the years ending December 31, 2005 and for December
31,
2006, and the S Taxes attributable to the S Income are computed in accordance
with the procedure set forth in subparagraph (b) of this Section 8, if the
amount paid pursuant to the S Tax Reimbursement Note was not sufficient to
fully
reimburse the Shareholders for the total amount of the S Taxes, the Company
shall make an additional distribution to the Shareholders in the amount of
the
deficiency: and if the amount paid pursuant to the S Tax Reimbursement Note
was
in excess of the actual S Taxes, the Shareholders shall reimburse the Company
such excess amount.
25
(b) For
purposes of computing the amount of the S
Taxes
payable by the Shareholders, the Shareholders shall prepare their tax returns
for the years ending December 31, 2005 and December 31, 2006 first with the
inclusion of the S Income and next with the exclusion of the S Income and the
difference of tax liabilities as shown on the respective returns shall be deemed
to be the S Taxes.
(c) In
the
event that the federal or state income tax returns for NCCAC for the years
ending December 31, 2005 or December 31, 2006 are audited by the Internal
Revenue Service or by any state revenue department and in the event adjustments
are made on such tax returns by reason of such audits with the result that
the
Shareholders owe additional S Taxes, the Company covenants and agrees to
promptly pay to the Shareholders an amount equal to the increase in the S Taxes.
In the event the adjustments made on such tax returns by reason of such audits
result in the S Taxes being reduced, the Shareholders covenant and agree to
promptly refund to the Company funds in amount equal to the reduction in the
S
Taxes.
(d) The
Company and NCCAC agree to make available to the Shareholders, upon request
from
the Shareholders, all books and records of the Company and NCCAC that the
Shareholders may need in order to complete their December 31, 2005 and December
31, 2006 federal and state income tax returns and or to respond to any inquiries
from any governmental authority relating to the tax returns or the operations
of
NCCAC prior to the Closing.
(e) Notwithstanding
anything to the contrary herein, any and all such tax reimbursement obligations
to the Shareholders on the part of the Company and NCCAC shall be reduced
dollar-for-dollar to the same and full extent of any and all cash distributions
and/or cash withdrawals made by any and all of the Shareholders with respect
to
the year ending December 31, 2005 and through the partial year ended for
2006 through the Closing Date other than distributions made to the Shareholders
as employees (both salary and bonus) or distributions made to the Shareholders
as repayment of Shareholder loans to NCCAC.
26
10.
Miscellaneous.
Notice Address of Parent: | Manchester, Inc. | ||
000 Xxxxxxxx Xxxxx, 0xx Xxxxx | |||
Xxxxxx, Xxxxx 00000 | |||
Attn: Xxxxxxx X. Xxxxxx | |||
Corporate Secretary
|
|||
Notice Address of Company: | Nice Cars Acceptance Acquisition Corp. | ||
000 Xxxxxxxx Xxxxx, 0xx Xxxxx | |||
Xxxxxx, Xxxxx 00000 | |||
Attn: Xxxxxxx X. Xxxxxx | |||
Corporate Secretary
|
|||
Notice Address of NCCAC: | Nice Cars Capital Acceptance Corporation | ||
000 Xxxxxxxxxxx Xxxxxxx | |||
Xxxx Xxxxxxxxxx, Xxxxxxx 00000 | |||
Attn: Xxx Xxxx | |||
Notice Address of Shareholders: | Xxx Xxxx and Xxxxxxxx Xxxx | ||
0000 Xxxxxx Xxxxx | |||
Xxxx Xxxxxxxxxx, Xxxxxxx 00000 |
(b)
Choice
of
Law. This Agreement shall be governed, construed and enforced in accordance
with
the laws of the State of New York and the federal laws of United States
applicable therein, without giving effect to principles of conflicts of
law.
(c)
Jurisdiction.
The parties hereby irrevocably consent to the in personam jurisdiction of the
state or federal courts located in the State of New York, in connection with
any
action or proceeding arising out of or relating to this Agreement or the
transactions and the relationships established thereunder. The parties hereby
agree that such courts shall be the venue and exclusive and proper forum in
which to adjudicate such matters and that they will not contest or challenge
the
jurisdiction or venue of these courts.
27
28
(j) Acceptance
by Fax.
This
Agreement shall be accepted, effective and binding, for all purposes, when
the
parties shall have signed and transmitted to each other, by telecopier or
otherwise, copies of the signature pages hereto.
(k) Binding
Effect; Benefits.
This
Agreement shall inure to the benefit of, and be binding upon, the parties hereto
and their respective heirs, legal representatives, successors and permitted
assigns. Nothing in this Agreement, express or implied, is intended to or shall
confer upon any person other than the parties hereto, and their respective
heirs, legal representatives, successors and permitted assigns, any rights,
remedies, obligations or liabilities under, in connection with or by reason
of
this Agreement.
(l) Reporting.
The Shareholders
and
NCCAC acknowledge that the Parent is a public Company subject to U.S. Federal
securities laws. The Shareholders
and
NCCAC acknowledge that they will not engage in any trading in the Parent’s
securities until after public announcement of the acquisition in form and date
to be mutually agreed upon by the Shareholders
and the
Parent. The Shareholders furthermore agree to use commercially reasonable
efforts to promptly comply and assist the Parent with any and all requests
for
information as necessary to comply with the Parent’s filing requirements with
the U.S. Securities and Exchange Commission and the Parent’s public reporting
obligations.
29
|
|
|
By: |
/s/
Xxxxxxx Xxxxxx
|
|
Name: Xxxxxxx
Xxxxxx
|
||
Title:
Corporate
Secretary
|
NICE
CARS ACCEPTANCE ACQUISITIONCO, INC.
|
||
|
|
|
By: |
/s/
Xxxxxxx Xxxxxx
|
|
Name: Xxxxxxx
Xxxxxx
|
||
Title: Corporate
Secretary
|
NICE
CARS CAPITAL ACCEPTANCE CORPORATION
|
||
|
|
|
By: | /s/ Xxx Xxxx | |
Name: Xxx
Xxxx
|
||
Title:
President
|
SHAREHOLDERS
OF NICE
CARS CAPITAL
ACCEPTANCE
CORPORATION
|
||
|
|
|
/s/ Xxx Xxxx | ||
Xxx
Xxxx
|
||
/s/ Xxxxxxxx Xxxx | ||
Xxxxxxxx
Xxxx
|
||
-30-
INDEX
TO
EXHIBITS AND SCHEDULES
EXHIBIT
A PURCHASE
NOTE
EXHIBIT
B S
TAX
REIMBURSEMENT NOTE
EXHIBIT
C SHAREHOLDER
NOTE
EXHIBIT
D [INTENTIONALLY
OMITTED]
EXHIBIT
E LIST
OF
AMOUNTS TO BE PAID TO SHAREHOLDERS AT CLOSING
EXHIBIT
F LIST
OF
RELEASES / CONSENTS / TERMINATIONS NEEDED AT CLOSING
EXHIBIT
G WUERSCH
& XXXXXX, LLP
-
OPINION LETTER
EXHIBIT
H XXXXXXXXX,
XXXXXX & XXXXXXX, P.C. - OPINION LETTER
EXHIBIT
I CONFLICTS
EXHIBIT
J REQUIRED
CONSENT
EXHIBIT
K [INTENTIONALLY
OMITTED]
SCHEDULE
3.4(G) LIABILITIES
AND OBLIGATIONS
SCHEDULE
3.4(H) NO
UNDISCLOSED EVENTS OR CIRCUMSTANCES
SCHEDULE
3.4(I) LITIGATION
AND OTHER PROCEEDINGS
SCHEDULE
3.4(K) COMPETING
INTERESTS
SCHEDULE
3.4(L) ENVIRONMENTAL
MATTERS
SCHEDULE
3.4(N) ABSENCE
OF CERTAIN CHANGES AND EVENTS
SCHEDULE
3.4(O) ASSETS
AND RIGHTS
SCHEDULE
3.4(P) TAXES
SCHEDULE
3.4(Q) TRANSACTION
WITH CERTAIN PERSONS
SCHEDULE
3.4(R) EMPLOYEE
PLANS
SCHEDULE
3.4(T) PERMITS
SCHEDULE
3.4(X) BANK
ACCOUNTS AND CREDIT CARDS
ANNEX
A
PLAN
AND
AGREEMENT OF MERGER OF FOREIGN CORPORATION INTO DELAWARE
CORPORATION
EXHIBIT
A
PURCHASE
NOTE
EXHIBIT
B
S
TAX
REIMBURSEMENT NOTE
EXHIBIT
C
SHAREHOLDER
NOTE
EXHIBIT
D
[INTENTIONALLY
OMITTED]
EXHIBIT
E
LIST
OF
AMOUNTS TO BE
PAID
TO
SHAREHOLDERS AT CLOSING
1. Xxxxxxx
X. Xxxx and Xxxxxxxx X. Xxxx - $627,542.77
EXHIBIT
F
LIST
OF
RELEASES / CONSENTS / TERMINATIONS
NEEDED
AT
CLOSING
1. Gateway
Bank and Trust Company - Account No. [ * ]
(a)
Loan
in
the name of Nice Cars, Inc. and personally guaranteed by
Xxxxxxx X. Xxxx, Xx.
(b) Line
of
Credit in the amount of [ * ]
(c)
Current
Balance - [ * ] paid at Closing.
2. New
South
Federal Savings Bank - Account No. [ * ]
(a)
Loan
in
the name of Nice Cars, Inc. and personally guaranteed by
Xxxxxxx X. Xxxx, Xx.
(b) Floor
Plan Arrangement in the amount of [ * ]
(c) Current
Balance - $0
3. Xxxxxx
Financial Services, Inc.
(a) Commitment
to participate in installment contracts
(b) Dated
01/13/05
(c)
Approximate
balance (09/25/05) - [ * ] - does not include interest rebate or any
prepayment
penalties - per diem - [ * ]
(d)
Financial
Covenant (Section 12.6.18) "the control and ownership of the Seller (NCCAC)
and
Dealer (Nice Cars) shall remain unchanged"
(e)
Additional
Covenant (Section 15.2) "neither Dealer nor Seller may consolidate with
or merge
into any corporation or other entity or transfer its property substantially
as
an entirety to any person unless the successor party unless" the surviving
entity agrees to be bound by the Xxxxxx financial
documents.
(f)
Prepayment
penalty (Section 19.1) - [ * ] percent [ * ]% of Commitment Amount -
not the
amount outstanding. Original Commitment Amount per document was [ * ]
and per
memo from Xxx Xxxx to Xxxxxx Xxxxx dated 12/13/05, Commitment Amount
had been
increased to [ * ].
(a) Lease
in
the name of Xxx Xxxx d/b/a Nice Cars
(b) Location
- Rome
(c) Date
of
Lease 10/03/02 as amended by Lease Amendment dated 08/25/04
(d) Term
of
Lease expires 10/31/10
(e) Rent
$[ *
] per month
(f) No
assignment or subletting without consent of Lessor
5. Xxxxx
Xxxxxx - Lease
(a) Lease
in
the name of Xxx Xxxx d/b/a Nice Cars
(b) Location
- New Fort Oglethorpe lot
(c) Date
of
Lease 03/16/04
(d) Term
of
Lease expires 06/30/11 with two (2) five (5) year options
(e) Rent
$[ *
] per month for the first 4 years, $[ * ] per month the last 3
years
(f) No
assignment or subletting without prior written consent of Lessor
6. XX
Xxxxxx
Estate - Lease
(a) Lease
in
the name of Nice Cars, Inc.
(b) Location
- Xxxxxx
(c) Date
of
Lease 07/23/03
(d) Term
of
Lease expires 07/31/08
(e) Rent
$[ *
] per month - Annual CPI adjustment
(f) No
assignment or subletting without prior consent of Lessor
(g) Signed
individually by Xxx Xxxx
7. XX
Xxxxxxx - Lease
(a) Lease
in
the name of Nice Cars, Inc.
(b) Location
- Xxxxxx
(c) Date
of
Lease 07/30/02 as amended by Amendment to Lease dated 08/14/04
(d)
Term
of
Lease expires 07/31/07 with one (1) five (5) year option (rent increases
to $[ *
] per month)
(e) Rent
$[ *
] per month + payment of increase in taxes
(f) No
assignment of subletting without consent of Lessor
(g) Personal
guaranty of Xxx Xxxx
8. Village
Developers - Lease
(a) Lease
in
the name of Xxx Xxxx for Nice Cars, Inc.
(b) Location
- Corporate Headquarters
(c) Date
of
Lease 01/02/05
(d)
Term
of
Lease expires 01/31/08 with one (1) three (3) year option (rent increase
to $[ *
] per month)
(e) Rent
$[ *
] per month
(f) No
assignment or subletting without consent of Lessor
9. Xxxxx
Group, LLC - Lease
(a) Lease
in
the name of Nice Cars, Inc.
(b) Location
- Xxxxxxx
(c) Date
of
Lease 06/01/03
(d) Term
of
Lease expires 05/31/05 with five (5) one (1) year option
(e) Rent
$[ *
] per month
(f)
Sublease
to Xxxxxxx Xxxxxxx effective 08/01/05 at $[ * ] per year annual rent
- sublease
specifically does not release Nice Cars, Inc. from its lease
obligation
(g)
No
record
of personal guaranty
10. TNHJ
Properties - Lease
(a) Lease
in
the name of Nice Cars, Inc.
(b) Location
0000 - 0000 Xxxxxxxx Xxxx
(c) Date
of
Lease 12/18/03
(d)
Term
of
Lease expires 12/31/09 with three (3) five (5) year options (rent increasing
during each renewal option)
(e) Rent
$[ *
] per month
(f) No
assignment or subletting without consent of Lessor
(g) Personal
Guaranty of Xxx Xxxx
11. Xxxxxx
-
Lease
(a) Lease
in
the name of Nice Cars, Inc.
(b) Location
- Storage lot / Lakeview Drive
(c) Date
of
Lease 03/01/04
(d)
Term
of
Lease expires 02/28/05 with five (5) one (1) year
options
(e) Rent
$[ *
] per month
(f) No
assignment or subletting without consent of Lessor
(g) No
record
of personal guaranty
12. Xxxxx
-
Lease
(a) Lease
in
the name of Nice Cars, Inc.
(b) Location
0000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx
(c) Date
of
Lease 05/22/01
(d)
Term
of
Lease expires 06/01/06
(e) Rent
$[ *
] per month
(f) No
assignment or subletting without prior written consent of Lessor
(g) No
record
of personal guaranty
13. Xxxxx
-
Lease
(a) Lease
in
the name of Nice Cars, Inc.
(b) Location
- Fort Oglethorpe
(c) Date
of
Lease 06/01/01
(d)
Term
of
Lease expires 05/31/06
(e) Rent
$[ *
] per month
(f) Illegible
(g) No
record
of personal guaranty
14. Xxxxxxxx
Sublease - Land:
(a) Lease
in
the name of Nice Cars, Inc. and Nice Cars Capital Acceptance
Corporation
(b) Location
- Marietta, Georgia
(c) Date
of
lease - July 11, 2006
(d) Term
of
lease expires July 31, 2010 - One 36 month option
(e) Rent
- $[
* ] per month
(f) Subject
to terms of original lease, original lease not attached to sublease
(g) No
record
of personal guaranty
15. Xxxxxxxx
Sublease - Building:
(a) Lease
in
the name of Nice Cars, Inc. and Nice Cars Capital Acceptance
Corporation
(b) Location
- Marietta, Georgia
(c) Date
of
lease - July 7, 2006
(d) Term
of
lease - month to month until sublessee gives sublessor 30 days notice of
termination
(e) Rent
- $[
* ] per month
(f) Subject
to terms of original lease, original lease not attached to sublease
(g) No
record
of personal guaranty
16. ADT
Automotive - Baltimore / Washington Auto Exchange
(a) Personal
Guaranty of Xxx Xxxx dated 10/12/98
(b) Guarantee
of financial obligations and odometer disclosure statements
(c) Current
obligation per Xxx Xxxx - $0
17. Bel
Air
Auto Auction
(a) Personal
Guaranty of Xxx Xxxx dated 05/27/98
(b) Guarantee
of financial obligations and Guarantee's title to each vehicle
(c) Current
obligation per Xxx Xxxx - $0
18. ABC
-
REDTOP Auto Auction
(a) Personal
Guaranty of Xxx Xxxx dated 12/16/05
(b)
Guarantee
of financial obligations and completeness and accuracy of each odometer
disclosure statement
(c) Current
obligation per Xxx Xxxx - $0
19. PADE
-
Pennsylvania Auto Dealers Exchange, Inc.
(a) Authorization
to Buy and Sell at PADE
(b) Authorization
and Disclaimer
(c)
"Dealership
agrees to provide to subscribing auto auction and/or auction access on
a timely
basis any significant changes relative to their business including to
but not
limited to information regarding licensees, banks and dealer
representatives"
(d)
Current
obligation per Xxx Xxxx - $0
20. Xxxxx
Fargo Financial - Account No. [ * ]
(a) Equipment
Lease for surveillance equipment
(b) Lease
dated 12/03/03
(c) Payments
- 60 monthly payments of $1,315 per month
(d) Assignment
provision - Nice Cars has "no right to sell, transfer, assign or sublease
the
equipment or this Lease"
EXHIBIT
G
WUERSCH
& XXXXXX, LLP
-
OPINION LETTER
EXHIBIT
H
XXXXXXXXX,
XXXXXX & XXXXXXX, P.C. - OPINION LETTER
EXHIBIT
I
CONFLICTS
1. All
items
listed on Exhibit F to this Share Purchase and Exchange Agreement.
2. All
items
listed on Schedule 3.4(t) to this Share Purchase and Exchange
Agreement.
EXHIBIT
J
REQUIRED
CONSENT
1. All
items
listed on Exhibit F to this Share Purchase and Exchange Agreement.
2. All
items
listed on Schedule 3.4(t) to this Share Purchase and Exchange
Agreement.
EXHIBIT
K
[INTENTIONALLY
OMITTED]
Schedule
3.4(g)
LIABILITIES
AND OBLIGATIONS
1.
|
All
items listed on Exhibit F to the Share Purchase and Exchange
Agreement.
|
2.
|
Nice
Cars, Inc. and Nice Cars Capital Acceptance Corporation are subject
to a
pending audit by the Internal Revenue Service ("IRS") for the years
2002,
2003 and 2004. During the process of the audit, the IRS raised
an issue of
the amount of discount Nice Cars, Inc. takes at the time it sells
the
customers' financing packages to Nice Cars Capital Acceptance Corporation.
At one time, the IRS indicated that it was going to be the IRS's
position
that the discount should be deferred and not taken by Nice Cars,
Inc.
until such time as Nice Cars Capital Acceptance Corporation had
incurred
an actual loss on each customer's financial package. If the IRS
were to
prevail in its position that the discount be deferred, this would
have a
negative impact on Nice Cars, Inc. and Nice Cars Capital Acceptance
Corporation because this would cause Nice Cars, Inc. to record
a higher
net income in the year the customer's financial package is sold
to Nice
Cars Capital Acceptance Corporation. However, the IRS revenue agent
has
now orally advised the certified public accountant for Nice Cars,
Inc. and
Nice Cars Capital Acceptance Corporation that the IRS will not
raise the
issue of the deferral of the discount in the current audit for
years 2002,
2003 and 2004, and instead the IRS is agreeing to allow a [ * ]
percent [
* ]% discount. Until receipt of the revenue agent's report for
the audit
period 2002, 2003 and 2004, there can be no assurance that the
IRS will
not be raised the issue of the deferral of the discount. Also,
there can
be no assurance that the deferral of the discount will not be raised
in
audits of future years by the IRS.
|
3.
|
Estimated
Tennessee franchise and excise taxes for the period from
January 1, 2006 through the date of
closing
|
(a)
|
Nice
Cars, Inc. [ * ]
|
(b)
|
Nice
Cars, Capital Acceptance Corporation [ *
]
|
4.
|
Estimated
Georgia income taxes for the period from January 1, 2006 through
the date of closing
|
(a)
|
Nice
Cars, Inc. [ * ]
|
(b)
|
Nice
Cars, Capital Acceptance Corporation [ *
]
|
5.
|
Estimated
tax distribution due Ray and Xxxxxxxx Xxxx for the year ending
December 31, 2005 for the S-Corporation income taxable to Ray
and Xxxxxxxx Xxxx.
|
(a)
|
Nice
Cars, Inc. [ * ]
|
(b)
|
Nice
Cars, Capital Acceptance Corporation [ *
]
|
6.
|
Estimated
tax reimbursement due Ray and Xxxxxxxx Xxxx for the period from
January 1, 2006 through the date of closing for the
S-Corporation income taxable to Ray and Xxxxxxxx Xxxx.
|
(a)
|
Nice
Cars, Inc. [ * ]
|
(b)
|
Nice
Cars, Capital Acceptance Corporation [ *
]
|
7.
|
Any
amounts or accruals due under any of the Employee Plans described
on
Schedule 3.4(r)
|
Schedule
3.4(h)
No
Undisclosed Events or Circumstances
1. Nice
Cars, Inc. and Nice Cars Capital Acceptance Corporation are subject to a
pending
audit by the Internal Revenue Service ("IRS") for the years 2002, 2003 and
2004.
During the process of the audit, the IRS raised an issue of the amount of
discount Nice Cars, Inc. takes at the time it sells the customers' financing
packages to Nice Cars Capital Acceptance Corporation. At one time, the IRS
indicated that it was going to be the IRS's position that the discount should
be
deferred and not taken by Nice Cars, Inc. until such time as Nice Cars Capital
Acceptance Corporation had incurred an actual loss on each customer's financial
package. If the IRS were to prevail in its position that the discount be
deferred, this would have a negative impact on Nice Cars, Inc. and Nice Cars
Capital Acceptance Corporation because this would cause Nice Cars, Inc. to
record a higher net income in the year the customer's financial package is
sold
to Nice Cars Capital Acceptance Corporation. However, the IRS revenue agent
has
now orally advised the certified public accountant for Nice Cars, Inc. and
Nice
Cars Capital Acceptance Corporation that the IRS will not raise the issue
of the
deferral of the discount in the current audit for years 2002, 2003 and 2004,
and
instead the IRS is agreeing to allow a [ * ] percent [ * ]% discount. Until
receipt of the revenue agent's report for the audit period 2002, 2003 and
2004,
there can be no assurance that the IRS will not be raised the issue of the
deferral of the discount. Also, there can be no assurance that the deferral
of
the discount will not be raised in audits of future years by the
IRS.
Schedule
3.4(i)
Litigation
and Other Proceedings
1. Ms.
Xxxx
Xxxxxx made a request for arbitration in a letter dated December 28, 2005.
In
that letter, she asserted damages in excess of $250,000. Xx. Xxxxxx'x claim
relates to allegations that Nice Cars failed to comply with warranties in
connection with the sale of a used car, which car has been repossessed by
Nice
Cars. Management of Nice Cars believe that Xx. Xxxxxx'x claim is without
merit
and, even to the extent if she were successful, the damages sought are in
excess
of what she could reasonably be expected to recover. Xx. Xxxxxx has verbally
agreed to settle her claim if Nice Cars agrees not to xxx her or provide
a
negative report to any credit reporting agency. Counsel for Nice Cars sent
Xx.
Xxxxxx a mutual release and settlement agreement for her to sign to resolve
this
matter, but Nice Cars never received a signed copy from Xx. Xxxxxx.
2. As
of
August 31, 2006, Nice Cars is a creditor in 496 bankruptcies. As a part of
Nice
Cars' ordinary business practices, it is usually paid through a bankruptcy
plan
determined by the Bankruptcy Trustee at a reduced interest rate or the
underlying car will be returned back to it.
3. Mr.
Xxxxxxxx Xxxxx informed Nice Cars via letter of a potential claim involving
an
accident where he allegedly fell on the Nice Cars premises. To date, no further
action has been taken by Xx. Xxxxx in this matter and Nice Cars management
believes the matter is complete.
4. In
the
ordinary course of business, authorities for the State of Tennessee may take
possession of a vehicle from a Nice Cars' customer in connection with the
arrest
of such customer. When this occurs, Nice Cars will send notice to the Tennessee
Department of Safety-Legal Division reflecting its legal interest in such
cars.
In the ordinary course of business, the cars will either be returned to Nice
Cars or Nice Cars will be paid as a creditor in the event of the disposal
of
such cars by the State. Currently, there are approximately five (5) cars
that
are in the possession of the Tennessee Department of Safety.
5. Xx.
Xxxxx
Xxxxxxxx has filed a claim against Nice Cars for a breach of contract. The
claim
is pending in Catoosa County Magistrate Court. Nice Cars would estimate that
any
potential liability would not exceed $2,500.
6. Mr.
Xxxxxx Xxxxxx has filed a claim against Nice Cars for breach of contract
based
on Nice Cars' repossession of vehicle. Magistrate Court ruled in favor of
Xxxxxx, but he case was appealed to Superior Court of Catoosa County. The
claim
is for approximately $1,000.
7. Xx.
Xxxxxx Xxxxxx has filed a claim against Nice Cars for breach of contract.
Xx.
Xxxxxx was awarded a default judgment in Xxxxxxxx County General Sessions
Court.
This case has been appealed to Circuit Court. This case involves a claim
of
about $10,000.
8. Nice
Cars
is involved in a lien dispute involving a car purchased by April Bowling.
This
case was originally in Catoosa County Magistrate Court. It involves competing
lien claims. The Magistrate Court ruled in favor of the mechanic in the amount
of $1,960.00, and the case has been appealed to Catoosa Superior Court.
9. Ms.
Nina
Xxxxxx Xxxxxxx brought suit against Nice Cars in Xxxxxxxx County Sessions
Court.
However, a civil warrant was never served on Nice Cars. There have been no
material developments in the case since that time. As of the current date,
Nice
Cars still has not been served with process in connection with this
matter.
10. On
May
25, 2006, Providence Washington sued Nice Cars alleging breach of contract
by
Nice Cars for failure to pay an adjusted premium. The parties have agreed
to
settle this suit for $16,000 and expect the suit to be dismissed once the
release is executed and the settlement paid.
Schedule
3.4(k)
Competing
Interests
The
Shareholders have an ownership or similar interest in the following assets
used
in connection with the operation of the Business of NCCAC:
1. Xxxxx
Xxxxxx - Lease
(a) Lease
in
the name of Xxx Xxxx d/b/a Nice Cars
(b) Location
- Rome
(c) Date
of
Lease 10/03/02 as amended by Lease Amendment dated 08/25/04
(d) Term
of
Lease expires 10/31/10
(e) Rent
$[ *
] per month
(f) No
assignment or subletting without consent of Lessor
2. Xxxxx
Xxxxxx - Lease
(a) Lease
in
the name of Xxx Xxxx d/b/a Nice Cars
(b) Location
- New Fort Oglethorpe lot
(c) Date
of
Lease 03/16/04
(d) Term
of
Lease expires 06/30/11 with two (2) five (5) year options
(e)
Rent
$[ *
] per month for the first 4 years, $[ * ] per month the last 3
years
(f) No
assignment or subletting without prior written consent of Lessor
3. Village
Developers - Lease
(a) Lease
in
the name of Xxx Xxxx for Nice Cars, Inc.
(b) Location
- Corporate Headquarters
(c) Date
of
Lease 01/02/05
(d)
Term
of
Lease expires 01/31/08 with one (1) three (3) year option (rent increase
to $[ *
] per month)
(e) Rent
$[ *
] per month
(f) No
assignment or subletting without consent of Lessor
4. ADT
Automotive - Baltimore / Washington Auto Exchange
(a) Personal
Guaranty of Xxx Xxxx dated 10/12/98
(b) Guarantee
of financial obligations and odometer disclosure statements
(c) Current
obligation per Xxx Xxxx - $0
5. Bel
Air
Auto Auction
(a) Personal
Guaranty of Xxx Xxxx dated 05/27/98
(b) Guarantee
of financial obligations and Guarantee's title to each vehicle
(c) Current
obligation per Xxx Xxxx - $0
6. ABC
-
REDTOP Auto Auction
(a) Personal
Guaranty of Xxx Xxxx dated 12/16/05
(b)
Guarantee
of financial obligations and completeness and accuracy of each odometer
disclosure statement
(c) Current
obligation per Xxx Xxxx - $0
Schedule
3.4(l)
Environmental
Matters
Schedule
3.4(n)
Absence
of Certain Changes and Events
1. Capital
Expenditures
(a) Opening
of Marietta lot - leasehold improvements - approximate cost [ * ]
(b) Passtime
devises - approximate cost - [ * ]
2. Nice
Cars, Inc. and Nice Cars Capital Acceptance Corporation are subject to a
pending
audit by the Internal Revenue Service ("IRS") for the years 2002, 2003 and
2004.
During the process of the audit, the IRS raised an issue of the amount of
discount Nice Cars, Inc. takes at the time it sells the customers' financing
packages to Nice Cars Capital Acceptance Corporation. At one time, the IRS
indicated that it was going to be the IRS's position that the discount should
be
deferred and not taken by Nice Cars, Inc. until such time as Nice Cars Capital
Acceptance Corporation had incurred an actual loss on each customer's financial
package. If the IRS were to prevail in its position that the discount be
deferred, this would have a negative impact on Nice Cars, Inc. and Nice Cars
Capital Acceptance Corporation because this would cause Nice Cars, Inc. to
record a higher net income in the year the customer's financial package is
sold
to Nice Cars Capital Acceptance Corporation. However, the IRS revenue agent
has
now orally advised the certified public accountant for Nice Cars, Inc. and
Nice
Cars Capital Acceptance Corporation that the IRS will not raise the issue
of the
deferral of the discount in the current audit for years 2002, 2003 and 2004,
and
instead the IRS is agreeing to allow a [ * ] percent [ * ]% discount. Until
receipt of the revenue agent's report for the audit period 2002, 2003 and
2004,
there can be no assurance that the IRS will not be raised the issue of the
deferral of the discount. Also, there can be no assurance that the deferral
of
the discount will not be raised in audits of future years by the
IRS.
(a) Xxx
Xxxx
- partial repayment of shareholder debt in the amount of [ * ].
(b) Salary
and monthly bonuses paid to Xxx Xxxx during September, 2006 in the ordinary
course of business approximate amount [ * ].
(c) Salary
and monthly bonuses paid to Xxxxxxxx Xxxx during September, 2006 in the ordinary
course of business approximate amount [ * ].
Schedule
3.4(o)
Assets
and Rights
1. Xxxxx
Fargo Financial - Account No. [ * ]
(a) Equipment
Lease for surveillance equipment
(b) Lease
dated 12/03/03
(c) Payments
- 60 monthly payments of [ * ] per month
(d) Assignment
provision - Nice Cars has "no right to sell, transfer, assign or sublease
the
equipment or this Lease"
Schedule
3.4(p)
Taxes
1. Nice
Cars, Inc. and Nice Cars Capital Acceptance Corporation are subject to a
pending
audit by the Internal Revenue Service ("IRS") for the years 2002, 2003 and
2004.
During the process of the audit, the IRS raised an issue of the amount of
discount Nice Cars, Inc. takes at the time it sells the customers' financing
packages to Nice Cars Capital Acceptance Corporation. At one time, the IRS
indicated that it was going to be the IRS's position that the discount should
be
deferred and not taken by Nice Cars, Inc. until such time as Nice Cars Capital
Acceptance Corporation had incurred an actual loss on each customer's financial
package. If the IRS were to prevail in its position that the discount be
deferred, this would have a negative impact on Nice Cars, Inc. and Nice Cars
Capital Acceptance Corporation because this would cause Nice Cars, Inc. to
record a higher net income in the year the customer's financial package is
sold
to Nice Cars Capital Acceptance Corporation. However, the IRS revenue agent
has
now orally advised the certified public accountant for Nice Cars, Inc. and
Nice
Cars Capital Acceptance Corporation that the IRS will not raise the issue
of the
deferral of the discount in the current audit for years 2002, 2003 and 2004,
and
instead the IRS is agreeing to allow a [ * ] percent [ * ]% discount. Until
receipt of the revenue agent's report for the audit period 2002, 2003 and
2004,
there can be no assurance that the IRS will not be raised the issue of the
deferral of the discount. Also, there can be no assurance that the deferral
of
the discount will not be raised in audits of future years by the
IRS.
Schedule
3.4(q)
Transaction
With Certain Persons
1. Certain
of the leases listed on Exhibit K (items 4 through 20) are in the name of
Xxx
Xxxx but the leased premises are used for the benefit of the NCCAC. Xxx Xxxx
will execute any and all documents necessary to convey all of his rights,
title
and interest under the lease to the Company.
2. Certain
of the auto auction agreements have been personally guaranteed by Xxx Xxxx
(see
Exhibit F items 16 through 19).
Schedule
3.4(r)
Employee
Plans
1. Holidays:
NCCAC
observes 6 paid holidays per year, which are: New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day, and Christmas Day. Hourly
employees must be employed 90 days prior to the holiday to receive holiday
pay.
All employees must work the scheduled day before and after the holiday to
be
eligible to receive holiday pay. Part time employees are not eligible to
receive
holiday pay.
2. Vacations:
Employees
will receive [ * ] week after one year, [ * ] weeks after [ * ] years, [
* ]
weeks after [ * ] years, [ * ] weeks after [ * ] years. Supervisor approval
must
be obtained for scheduling of vacation period. Vacations must be taken, they
cannot be carried over to the following year. Any employee who resigns or
is
discharged will not receive pay for the unused vacation earned. Employees
may
receive pay in lieu of vacation time with supervisor approval. Pay will be
based
on [ * ] employment for commissioned sales personnel.
3. Sick
Pay:
The
company provides sick pay of [ * ] day after one year, [ * ] days after two
years and [ * ] days after three years. Sick pay does not accumulate if not
used
and may not be paid in lieu of sick time.
4. Group
Health & Life Insurance:
[
*
].
5. Nice
Cars, Inc. 401(k) Plan:
[
*
].
6. Bonus
Plans:
(a) Xxxxxxx
X. Xxxx receives a monthly bonus equal to 1.65% of Nice Cars' Net Pre-tax
Income
for the applicable month.
(b) Xxxxxxxx
X. Xxxx receives a monthly bonus equal to 1.65% of Nice Cars' Net Pre-tax
Income
for the applicable month.
(c) Xxxxxxx
X. Xxxx, XX receives a monthly bonus equal to 1.30% of Nice Cars' Net Pre-tax
Income for the applicable month. Xxxxxxx X. Xxxx, XX receives an
additional
monthly bonus based upon Nice Cars Charge-Off Percentage (as follows). The
amount of the monthly bonus shall be based upon the Nice Cars Charge-Off
Percentage for such month as follows: 3.00% or less equals an $8,000 bonus;
3.01% to 3.25% equals a $7,000 bonus; 3.26% to 3.50% equals a $6,000 bonus;
3.51% to 3.75% equals a $5,000 bonus; and 3.76% to 4.00% equals a $4,000
bonus;
4.01% to 4.25% equals a $3,000 bonus; 4.26% to 4.50% equals a $2,000 bonus;
4.51% to 4.75% equals a $1,500 bonus; 4.76% to 5.00% equals a $1,000 bonus;
and
5.1% or more equals no bonus.
(d) Xxxxxx
Xxxx receives
a monthly bonus equal to 1.30% of Nice Cars' Net Pre-tax Income for the
applicable month. Xxxxxx
Xxxx receives a monthly bonus equal to $40 per Net Unit Sold.
(e) Xxxxxx
Xxxx receives a monthly bonus equal to 1.30% of Nice Cars' Net Pre-tax Income
for the applicable month.
(f) All
salaried employees participate in a [ * ] percent [ * ]% bonus plan in which
[ *
] of the pretax profit earned by the Company each month is distributed to
all
salaried personnel at discretion of management.
(g) Other
bonus plans for non-executive employees based on unit sales, collection activity
and other incentives.
Schedule
3.4(t)
Permits
1. All
Leases listed on Exhibit K (items 4 through 15) can not be assigned or assumed
by the Company without Landlord's prior written consent.
2. The
Company will need to apply for new auto auction licenses with the
following:
(a) [
*
]
(b) [
*
]
(c) [
*
]
(d) [
*
]
3. The
Company will need to file new applications with the states of Tennessee and
Georgia for a Used Motor Vehicle Dealer License for each Nice Cars
location.
4. The
Company will need to file for local business licenses in each jurisdiction
where
it does business.
5. The
Company will need to file sales tax registration application with Tennessee
and
Georgia Department of Revenue.
6. None
of
the permits or licenses of NCCAC are assignable to the Company.
Schedule
3.4(x)
Bank
Accounts and Credit Cards
A. Bank
Accounts
1. Regions
Bank
(a) Account
Name : [
*
]
(b) Account
Number : [
*
]
(c) Authorized
Signers : [
*
]
2. Regions
Bank
(a) Account
Name : [
*
]
(b) Account
Number :
[ *
]
(c) Authorized
Signers : [
*
]
3. Regions
Bank
(a) Account
Name : [
*
]
(b) Account
Number : [
*
]
(c) Authorized
Signers : [
*
]
4. Regions
Bank
(a) Account
Name : [
*
]
(b) Account
Number : [
*
]
(c) Authorized
Signers : [
*
]
5. Regions
Bank
(a) Account
Name : [
*
]
(b) Account
Number : [
*
]
(c) Authorized
Signers : [
*
]
6. Regions
Bank
(a) Account
Name : [
*
]
(b) Account
Number : [
*
]
(c) Authorized
Signers : [
*
]
7. Regions
Bank
(a) Account
Name : [
*
]
(b) Account
Number : [
*
]
(c) Authorized
Signers : [ * ]
8. Regions
Bank
(a) Account
Name : [
*
]
(b) Account
Number : [
*
]
(c) Authorized
Signers : [
*
]
9. Regions
Bank
(a) Account
Name : [
*
]
(b) Account
Number : [
*
]
(c) Authorized
Signers : [
*
]
10. Regions
Bank
(a) Account
Name : [
*
]
(b) Account
Number : [
*
]
(c) Authorized
Signers : [
*
]
B. Credit
Cards
1. American
Express Executive Business Card
(a) Account
Name : [
*
]
(b) Account
Number : [
*
]
2. Platinum
Plus for Business
(a) Account
Name : [
*
]
(b) Account
Number : [
*
]
ANNEX
A
PLAN
AND
AGREEMENT OF MERGER
OF
FOREIGN CORPORATION INTO
DELAWARE
CORPORATION
(attached)
PLAN
AND AGREEMENT OF MERGER
OF
FOREIGN CORPORATION INTO DELAWARE CORPORATION
AGREEMENT
OF MERGER made this 4th day
of
October, 2006, between Nice Cars Capital Acceptance Corporation, a Georgia
Corporation (the “Georgia Corporation”), and Nice Cars Acceptance AcquisitionCo,
Inc. a Delaware Corporation (the “Delaware Corporation”).
WHEREAS,
the Delaware Corporation has an authorized capital stock consisting of 100
shares of common stock, par value $.01 per share (the "Common Stock") of
which one
hundred (100) shares have been validly
issued, fully paid, are nonassessable and
are
now outstanding;
WHEREAS,
the Parent Corporation has previously issued 5,568,750
shares
of its common stock, par value $0.001 per share (“Parent Corporation Shares”) to
the Delaware Corporation;
1.
MERGER. The Georgia Corporation be, and it hereby is, merged into the Delaware
Corporation.
2.
EFFECTIVE DATE. This Agreement of Merger shall become effective immediately
upon
compliance with the laws of the States of Georgia and Delaware, the time
of such
effectiveness being hereinafter called the Effective Date.
3.
SURVIVING CORPORATION. The Delaware Corporation shall survive the merger
herein
contemplated and shall continue to be governed by the laws of the State of
Delaware, but the separate corporate existence of the Georgia Corporation
shall
cease as of the Effective Date.
4.
AUTHORIZED CAPITAL. The authorized capital stock of the Delaware Corporation
following the Effective Date shall be one hundred (100) shares of Common
Stock,
par value $.01 per share, unless and until the same shall be changed in
accordance with the laws of the State of Delaware.
5.
CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of the Delaware
Corporation in effect immediately prior to the Effective Date shall continue
in
full force and effect as the Certificate of Incorporation of the Delaware
Corporation as the surviving corporation at the Effective Date and following
the
Effective Date until the same shall be amended or repealed in accordance
with
the provisions thereof, which power to amend or repeal is hereby expressly
reserved, and all rights or powers of whatsoever nature conferred in such
Certificate of Incorporation or herein upon any shareholder or director or
officer of the Delaware Corporation or upon any other persons whomsoever
are
subject to the reserve power. Such Certificate of Incorporation shall constitute
the Certificate of Incorporation of the Delaware Corporation separate and
apart
from this Agreement of Merger and may be separately certified as the Certificate
of Incorporation of the Delaware Corporation.
6.
BYLAWS. The Bylaws of the Delaware Corporation as they exist on the effective
date shall be the Bylaws of the Delaware Corporation following the Effective
Date unless and until the same shall be amended or repealed in accordance
with
the provisions thereof.
7.
BOARD
OF DIRECTORS. The members of the Board of Directors of the Delaware Corporation
immediately after the effective date of the merger shall be those persons
who
were the members of the Board of Directors of the Delaware Corporation
immediately prior to the effective date of the merger, and such persons shall
serve in such offices, respectively, for the terms provided by law or in
the
Certificate of Incorporation and/or the Bylaws, or until their respective
successors are elected and qualified.
8.
FURTHER ASSURANCE OF TITLE. If at any time the Delaware Corporation shall
consider or be advised that any acknowledgments or assurances in law or other
similar actions are necessary or desirable in order to acknowledge or confirm
in
and to the Delaware Corporation any right, title, or interest of the Georgia
Corporation held immediately prior to the Effective Date. The Georgia
Corporation and its proper officers and directors serving the Georgia
Corporation immediately prior to the Effective Date shall and will execute
and
deliver all such acknowledgments or assurances in law and do all things
necessary or proper to acknowledge or confirm such right, title, or interest
in
the Delaware Corporation as shall be necessary to carry out the purposes
of this
Agreement of Merger, and the Delaware Corporation and the proper officers
and
directors thereof are fully authorized to take any and all such action in
the
name of the Georgia Corporation or otherwise.
9.
RETIREMENT OF ORGANIZATION STOCK. Forthwith upon the Effective Date, the
authorized shares of common stock of the Georgia Corporation presently issued
and outstanding shall be exchanged for 5,568,750
shares
of common stock of the Parent Corporation, which shall be delivered from
the
assets of the Delaware Corporation.
10.
CONVERSION OF OUTSTANDING STOCK. As of the Effective Date, each of the issued
and outstanding shares of Common Stock of the Delaware Corporation and all
rights in respect thereof shall continue in effect as fully paid and
nonassessable shares of Common Stock of the Delaware Corporation, and each
certificate nominally representing the Georgia Corporation Shares shall
become
null
and
void. The holders of such certificates shall surrender the same to the Delaware
Corporation in exchange for the Parent Corporation Shares delivered from
the
assets of the Delaware Corporation.
11.
RIGHTS AND LIABILITIES OF DELAWARE CORPORATION. At and after the Effective
Date
of the merger, the Delaware Corporation shall succeed to and possess, without
further act or deed, all of the estate, rights, privileges, powers, and
franchises, both public and private, and all of the property, real, personal,
and mixed, of each of the parties hereto; all debts due to the Georgia
Corporation or whatever account shall be vested in the Delaware Corporation;
all
claims, demands, property, rights, privileges, powers and franchises and
every
other interest of either of the parties hereto shall be as effectively the
property of the Delaware Corporation as they were of the respective parties
hereto; the title to any real estate vested by deed or otherwise in the Georgia
Corporation shall not revert or be in any way impaired by reason of the merger,
but shall be vested in the Delaware Corporation; all rights of creditors
and all
liens upon any property of either of the parties hereto shall be preserved
unimpaired, limited in lien to the property affected by such lien at the
effective time of the merger; all debts, liabilities, and duties of the
respective parties hereto shall thenceforth attach to the Delaware Corporation
and may be enforced against it to the same extent as if such debts, liabilities,
and duties had been incurred or contracted by it; and the Delaware Corporation
shall indemnify and hold harmless the officers and directors of each of the
parties hereto against all such debts, liabilities and duties and against
all
claims and demands arising out of the merger.
12.
SERVICE OF PROCESS ON DELAWARE CORPORATION. The Delaware Corporation agrees
that
it may be served with process in the State of Georgia in any proceeding for
enforcement of any obligation of the Georgia Corporation as well as for the
enforcement of any obligation of the Delaware Corporation arising from the
merger, including any suit or other proceeding to enforce the right of any
shareholder as determined in appraisal proceedings pursuant to the provisions
of
the Georgia Business Corporation Law.
13.
TERMINATION. This Agreement of Merger may be terminated and abandoned by
joint
action of the Board of Directors of the Delaware Corporation and the Georgia
Corporation at any time prior to the Effective Date, whether before or after
approval by the shareholders of the two corporate parties hereto.
14.
PLAN
OF REORGANIZATION. This Agreement of Merger is intended to constitute a tax-free
Plan of Reorganization under Section 368(a) of the Internal Revenue Code
of
1986, as amended, to be carried out in the manner, on the terms and subject
to
the conditions herein set forth.
15.
EXPENSES AND RIGHTS OF DISSENTING SHAREHOLDERS. The Delaware Corporation
shall
pay all expenses of carrying this Agreement of Merger into effect and of
accomplishing the merger, including amounts, if any, to which dissenting
shareholders of the Georgia Corporation may be entitled by reason of this
merger.
[Signature
Page Follows]
NICE
CARS
CAPITAL ACCEPTANCE CORPORATION
By:
/s/
Xxxxxxx Xxxx
Name:
Xxxxxxx
Xxxx
Title: President
NICE
CARS
ACCEPTANCE ACQUISITIONCO, INC.
By:
/s/
Xxxxxxx Xxxxxx
Name:
Xxxxxxx
Xxxxxx
Title:
Corporate
Secretary