Exhibit 10.27
EXCHANGE AGREEMENT
THIS AGREEMENT is made this 28th day of May, 2004, between Standard
Parking Corporation ("SPC"), a corporation organized under the laws of Delaware,
and Steamboat Industries LLC, ("SIL"), a limited liability company organized
under the laws of New York.
WHEREAS, SPC proposes to exchange pursuant to this Agreement, 8.25610
shares of Series C Preferred Stock, par value $.0001 per share (the "PREFERRED
STOCK") of SPC that SIL holds for ___ shares of SPC's common stock, par value
$.001 per share (the "COMMON STOCK");
WHEREAS, SPC and SIL are entering into that certain Registration
Rights Agreement, dated as of the date hereof, with respect to the Common Stock;
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement, SPC and SIL agree as follows:
Section 1. AUTHORIZATION OF EXCHANGE OF THE PREFERRED STOCK. Subject
to the terms and conditions of this Agreement, SPC has authorized the issuance
and exchange of ___ number of shares of the Common Stock for the Preferred
Stock.
Section 2. AGREEMENT TO EXCHANGE THE PREFERRED STOCK. Simultaneously
with the execution and delivery of this Agreement, SPC is exchanging with SIL,
and SIL is exchanging with SPC, upon the terms hereinafter set forth, the
Preferred Stock for the Common Stock.
Section 3. PAYMENT AND DELIVERY.
3.1 CLOSING. Transfer of the Common Stock shall be made to SIL in
Chicago, Illinois against delivery of the Preferred Stock (such payment and
delivery hereinafter referred to as the "CLOSING") at 10:00 a.m., Central
Standard Time, on May 28, 2004, or at such other time on the same or such other
date, not later than June 4, 2004, as shall be agreed by SPC and SIL. The time
and date of such transfer are hereinafter referred to as the "Closing Date."
Issuance of the Common Stock shall be made against delivery of the Preferred
Stock to the address set forth on the signature page of this Agreement, in such
nominee name as specified by SPC. Certificates for the Common Stock shall be
registered in the name of SIL or in the name of a nominee designated by SIL, as
provided in Annex 1 hereto. The certificates evidencing the Common Stock shall
be delivered to SIL on the Closing Date.
3.2 LEGEND. The certificate or certificates representing the Common
Stock shall contain a legend restricting transfer under the Securities Act of
1933, as amended (the "SECURITIES ACT"), such legend to be substantially as
follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE
Exchange Agreement (SIL & SPC)
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SECURITIES LAWS. SUCH COMMON STOCK MAY NOT BE SOLD, TRANSFERRED, OR PLEDGED
IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN
OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE COMPANY AND ITS
COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN
ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE
STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY."
The certificate shall also include any legends required by any
applicable state securities laws.
Section 4. REPRESENTATIONS AND WARRANTIES OF SPC. SPC hereby
represents and warrants to, and covenants with, SIL that the following are true
and correct.
4.1 ORGANIZATION. SPC is a corporation duly incorporated, validly
existing as a corporation and in good standing under the laws of Delaware and
has full corporate power and authority to own, lease and operate its properties
and assets, and to carry on its business as presently conducted and as proposed
to be conducted.
4.2 AUTHORIZATION. This Agreement has been duly authorized, executed
and delivered and is a valid and binding obligation of SPC, enforceable in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at law) and
may be legally unenforceable.
4.3 VALID ISSUANCE. All shares of such Common Stock have been duly
authorized and, when issued, will be validly issued, fully paid and
nonassessable.
4.4 NO FINDER'S FEE. No broker, investment banker, financial advisor
or other person is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of SPC.
4.5 SOLE CONSIDERATION. SPC represents that the only consideration it
will receive from SIL for entering into this Agreement and for the consummation
of the transactions described herein will be the Preferred Stock.
Section 5. SIL hereby represents and warrants to, and covenants with,
SPC that the following are true and correct.
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5.1 ORGANIZATION. SIL is a limited liability company duly
incorporated, validly existing as a limited liability company and in good
standing under the laws of New York and has full corporate power and authority
to own, lease and operate its properties and assets, and to carry on its
business as presently conducted and as proposed to be conducted.
5.2 AUTHORIZATION. This Agreement has been duly authorized, executed
and delivered and is a valid and binding obligation of SIL, enforceable in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at law) and
may be legally unenforceable.
5.3 NO LIENS. SIL directly owns 100 percent of the Preferred Stock,
free and clear of any claims, liens, encumbrances or security interests and all
of such Preferred Stock have been duly authorized and validly issued and are
fully paid and nonassessable.
5.4 NO FINDER'S FEE. No broker, investment banker, financial advisor
or other person is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of SIL.
5.5 INVESTMENT INTENT. SIL is acquiring the Common Stock for its own
account and for investment, and not with a view to the resale or distribution
thereof; it has no present intention of selling, negotiating, or otherwise
disposing of the Common Stock in violation of the U.S. securities laws. SIL's
financial condition and investments are such that it is in a financial position
to hold the Common Stock for an indefinite period of time and to bear the
economic risk of, and withstand a complete loss of, such Common Stock. In
addition, by virtue of its expertise, the advice available to it, and its
previous investment experience, SIL has extensive knowledge and experience in
financial and business matters, investments, securities, and private placements
and the capability to evaluate the merits and risks of the transactions
contemplated by this Agreement.
5.6 RELIANCE ON REPRESENTATIONS. SIL understands that the Common Stock
is not registered under the Securities Act on the ground that the exchange
contemplated by this Agreement is exempt from registration under the Securities
Act pursuant to Section 4(2) or Section 3(a)(9) thereof, and that SPC's reliance
on such exemptions is predicated on SIL's representations set forth herein. SIL
realizes that the basis for the exemptions may not be present if,
notwithstanding such representations, SIL has in mind merely acquiring the
Common Stock for a fixed or determinable period in the future, or for a market
rise, or for sale if the market does not rise. SIL has no such intention.
5.7 RESTRICTED SECURITY. SIL represents and acknowledges that the
Common Stock may not be sold, transferred, or otherwise disposed of without
registration under the Securities Act or an exemption therefrom and that in the
absence of an effective registration statement covering the Common Stock or an
available exemption from registration under the Securities Act, the Common Stock
must be held indefinitely. SIL represents and acknowledges
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that the Common Stock will bear a legend substantially in the form provided for
in Section 3.2 of this Agreement. SIL represents and acknowledges SPC will be
under no obligation to register the Common Stock under the Securities Act, and
that SPC does not currently intend to register the Common Stock, except to the
extent set forth in the Registration Rights Agreement, dated as of May 28, 2004,
between the SPC and SIL.
5.8 ACCREDITED INVESTOR. SIL is an "accredited investor" within the
meaning of Rule 501(a)(8) under the Securities Act.
5.9 FULL INFORMATION. SIL represents and acknowledges that it has had
an opportunity to ask questions of and receive answers from representatives of
SPC concerning the terms of the Common Stock and this Agreement and all such
questions have been answered to full satisfaction of SIL.
5.10 SOLE CONSIDERATION. SIL represents that the only consideration it
will receive from SPC for entering into this Agreement and for the consummation
of the transactions described herein will be the Common Stock.
Section 6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by SPC and SIL herein
and in the certificates representing the Common Stock delivered pursuant hereto
shall survive the execution of this Agreement, the delivery to SIL of the Common
Stock being exchanged for the Common Stock therefor.
Section 7. SIL'S CONDITIONS TO CLOSING. The obligation of SIL to
deliver the Preferred Stock in exchange for the Common Stock on the Closing Date
is subject to the following conditions:
(a) SIL shall have received the Common Stock in the full amount as set
forth in Section 1.
(b) The representations and warranties made by SPC shall be true and
correct in all material respects as of the Closing Date contained in this
Agreement and the undertakings of SPC to be fulfilled on or prior to the
Closing shall have been fulfilled.
Section 8. SPC'S CONDITIONS TO CLOSING. SPC's obligation to deliver
the Common Stock to SIL is subject to the following conditions:
(a) SPC shall have received the Preferred Stock in the full amount as
set forth in Section 1.
(b) The representations and warranties made by SIL shall be true and
correct in all material respects as of the Closing Date contained in this
Agreement and the undertakings of SIL to be fulfilled on or prior to the
Closing shall have been fulfilled.
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Section 9 OTHER AGREEMENTS.
9.1 NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing, shall be mailed by first class
registered or certified mail, postage prepaid, and shall be deemed given when
so mailed:
(a) if to SPC:
Standard Parking Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq. (Executive Vice President,
General Counsel and Secretary)
(b) if to SIL:
Steamboat Industries LLC
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx (Manager)
(c) if to any transferee or transferees of SIL, at such address or
addresses as shall have been furnished to SPC at the time of the transfer or
transfers, or at such other address or addresses as may have been furnished by
such transferee or transferees to SPC in writing.
9.2 ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding between the parties hereto with respect to the subject
matter hereof and supersedes all prior oral or written agreements and
understandings relating to the subject matter hereof. No statement,
representation, warranty, covenant or agreement of any kind not expressly set
forth in this Agreement shall affect, or be used to interpret, change or
restrict, the express terms and provisions of this Agreement.
9.3 AMENDMENTS. This Agreement may not be modified or amended
except pursuant to an instrument in writing signed by SPC and by SIL.
9.4 HEADINGS. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not
be deemed to be part of this Agreement.
9.5 SEVERABILITY. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein
shall not in any way be affected or impaired thereby.
9.6 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York and the United
States of America.
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9.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which,
when taken together, shall constitute but one instrument, and shall become
effective when one or more counterparts have been signed by each party hereto
and delivered to the other party. It is the express intent of the parties to
be bound by the exchange of signatures on this Agreement via telecopy.
9.8 EXPENSES. Each of the parties shall pay its own fees and
expenses (including the fees of any attorneys, accountants, appraisers or
others engaged by such party) in connection with this Agreement and the
transactions contemplated hereby whether or not the transactions contemplated
hereby are consummated.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives the day and year first
above written.
STANDARD PARKING CORPORATION
By:
--------------------------------------
Name:
Title:
STEAMBOAT INDUSTRIES LLC
By:
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Name: Xxxx X. Xxxxxx
Title: Manager
ANNEX 1
Print or Type:
Name of Purchaser (Institution)
Tax ID No.:
Address:
Telephone:
Facsimile:
Name in which the Common Stock should
be registered (if different):
Relationship between SIL and the person or
entity in whose name the Common Stock
should be registered (if different):
Address to which the Common Stock shall
be delivered:
Signature by:
Name of Individual representing SIL:
Title of Individual representing SIL:
NUMBER OF COMMON STOCK TO BE
PURCHASED:
PER SHARE PURCHASE PRICE:
AGGREGATE PURCHASE PRICE:
