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EXHIBIT 10.17
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT ("AGREEMENT") is dated the ___ day of
March, 1998, between CHAMPIONSHIP AUTO RACING TEAMS, INC., a Delaware
corporation ("CART" or the "PURCHASER"), and the shareholders of AMERICAN
RACING SERIES, INC., a Michigan Corporation ("ARS"), U.E. XXXXXXX, XXXXXX X.
XXXXXXX, XXXX X. XXXXXXX, XXXX X. XXXXXXX, XXXXXX XXXXXXX-XXXXX AND XXXXX
XXXXXX (individually and collectively, the "SELLERS").
WITNESSETH:
CART has filed a Registration Statement with the Securities and
Exchange Commission for the purpose of having an initial public offering of its
common stock ("IPO"); and in conjunction therewith, CART desires to purchase all
(but not less than all) of the outstanding stock of ARS ("SHARES") from the
Sellers, upon the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, representations and agreements and warranties contained, the parties
agree as follows:
1. SALE OF SHARES; PURCHASE PRICE.
1.1. SALE OF SHARES. The Sellers agree to sell the Shares to the
Purchaser, and the Purchaser agrees to purchase and acquire the Shares from the
Sellers, free and clear of all liens, claims, encumbrances and rights of others.
Such Shares shall be evidenced by share certificates of ARS's Stock which shall
be duly endorsed or accompanied by appropriate stock transfer powers duly
executed.
1.2. PURCHASE PRICE. In consideration of the sale of the Shares, the
Purchaser shall pay to the Sellers a purchase price, (the "PURCHASE PRICE") for
all the shares for an amount equal to the following:
1.2.1. CASH PURCHASE PRICE. $5,500,000 which shall be paid
at Closing; plus
1.2.2. EARN OUT PURCHASE PRICE. An aggregate of $2,700,000
in three (3) equal
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annual payments each year for the three (3) years on the anniversary of
the closing, if and only if ARS shall achieve revenues equal to or
exceeding $3,943,800 in 1998 and in 1999, and $573,800 in 2000 from the
following:
1.2.2.1. Sponsorship agreements that are not
currently contracted for $522,500 each year for 1998, 1999,
and 2000. It is understood and agreed that "sponsorship
agreements that are not currently contracted" means any annual
revenues from sponsorships that are in excess of $2,175,000
for 1998, $2,140,000 for 1999, and $1,100,000 for 2000 (which
are the sponsorship revenues to be provided under current
contracts). The Sellers will be entitled to continue to
solicit sponsors in all categories until September 1, 1998.
After September 1, 1998, the Sellers agree to discontinue any
sales efforts
1.2.2.2. $200,000.00 each to Promoter fees for
Nazareth Speedway, Homestead Speedway, Michigan Speedway and
California Speedway for the 1998 and 1999 seasons.
1.2.2.3. Engine leases of $1,380,000 and engine
rebuilds of $1,440,000 for a total of $2,820,000 each for 1998
and 1999. ARS will use reasonable efforts to increase the
engine lease payments and engine rebuilds for the year 1999.
1.2.2.4. Wheel sales (net of cost of goods sold)
of $51,300.00 each year for 1998, 1999 and 2000.
1.2.2.5. Parts and chassis commissions of
$350,000.00 each year for 1998 and 1999.
1.2.2.6. Anything herein to the contrary
notwithstanding, ARS shall only be required to meet the TOTAL
annual dollar volume per year as set forth in Subsections
1.2.2.1 through 1.2.2.5 (the "REVENUES") and not any specific
amount for any of the above-described categories. Further, any
of the Revenues produced by BP Automotive, Ltd, a Michigan
corporation ("BP"), and an affiliate of ARS, shall be deemed
to have been produced by ARS.
1.2.3. SHORTFALL AND MAKE UP. In the event that there is a
shortfall in 1998 and/or 1999 in the ARS revenues, the annual payments
by CART will be reduced dollar for dollar (to not less than $0) by the
shortfall for that year, provided, however, if such shortfall is
subsequently made up in 1999 or 2000, the payment not made to the
Sellers the prior year shall be paid to them in the subsequent year on
a dollar for dollar basis to the extent made up.
1.2.4. CART LONG TERM STOCK OPTION. The Sellers shall be
granted options to purchase 97,883 shares of the common stock of CART
at a per share price equal to the price offered to the public in the
IPO if, and only if, ARS's 1998 Revenues exceed $3,943,800.
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Any shortfall for 1998 may be made up by the Sellers rendering a cash
contribution to CART for the amount of the shortfall within 30 days
after written determination of such shortfall has been delivered to the
Sellers. Upon rendering such payment, the Sellers shall be qualified
for the said stock options. These options shall vest one year after the
closing of the IPO and may be exercised at any time within five (5)
years after they vest. Shares issuable upon exercise of the option will
not be registered under the Securities Act of 1933 or any state
securities laws and will constitute restricted securities within the
meaning of Rule 144 under the Securities Act.
1.2.5. CART STOCK PURCHASE. The Sellers shall be granted the
right to subscribe for up to $960,000 of CART's common stock at a per
share price equal to the price offered to the public in the IPO
(rounded to the nearest whole shares). The stock shall be fully
registered and listed in connection with CART's IPO at the closing.
Each Seller who elects to purchase such shares shall pay for such
stock, in cash, at the closing, on the Closing Date, and shall
acknowledge that he or she has received a copy of the current final
prospectus for the IPO. None of those who elect to purchase have made
or will make any commitment to purchase such shares until such time as
the registration statement for the CART IPO has become effective.
2. WARRANTIES AND REPRESENTATIONS OF THE SELLERS. The Sellers warrant and
represent to the Purchaser as follows:
2.1. AUTHORITY AND CAPACITY. The Sellers have, and on the Closing Date
will have, all requisite power, authority and capacity to enter into this
Agreement and to perform the obligations required of them hereunder. This
Agreement is a valid and binding obligation of the Sellers, enforceable against
Sellers in accordance with its terms, subject, however, to the effect of
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
as now or hereafter are in effect or as to the application of equitable
principles in any proceeding, legal or equitable.
2.2. TITLE TO THE SHARES. The Sellers presently are the owner of record
and the beneficial owner of all of the issued and outstanding shares of ARS's
Stock (as set forth on Exhibit A). On the Closing Date the Sellers will be the
owner of record and the beneficial owner of all of the issued and outstanding
shares of ARS, and the transfer, assignment and delivery of the Shares by the
Sellers and each of them pursuant to the provisions of this Agreement will
transfer to the Purchaser legal and valid record and beneficial title thereto,
free and clear of all claims, liens, charges and encumbrances of any kind.
2.3. ORGANIZATION, GOOD STANDING AND POWER. ARS is a corporation duly
organized and validly existing as a corporation in good standing under the laws
of the State of Michigan and has the corporate power and authority to own its
properties and to carry on its business as the same is now being conducted.
Complete and correct copies of ARS's Articles of Incorporation (together with
all amendments thereto) and the Bylaws in effect on the date of this Agreement
have been delivered to the Purchaser. ARS is not required to qualify as a
foreign corporation under the laws of any jurisdiction.
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2.4. CAPITALIZATION; ABSENCE OF OPTIONS AND WARRANTS. The authorized
capital stock of ARS consists of 10,000 shares of common stock with a par value
of $5.00 per share, of which 300 shares of common stock are outstanding. All of
such outstanding shares have been duly and validly issued, and are fully paid
and nonassessable. There are no existing options, calls, agreements or
commitments of any character relating to any of the authorized or issued shares
of ARS's Stock.
2.5. NO SUBSIDIARIES. Other than its ownership of Xxxxxxx Group, LLC
(the "LLC"), and Melbourne Properties, a general partnership, ARS does not
directly or indirectly own any interest in or control any other corporation,
partnership, limited partnership, limited liability company or other entity.
2.6. EFFECTIVE AGREEMENT. The execution and performance of this
Agreement by the Sellers and compliance with the provisions hereof do not and
will not (i) violate, with or without the giving of notice and/or the passage of
time, any provision of law applicable to the Sellers or ARS, which such
violation could have a Material Adverse Effect on the operations or financial
condition of ARS, or (ii) conflict with, or result in a breach or termination
of, or constitute a default under, or result in the creation of any lien, charge
or encumbrance upon any of ARS's properties pursuant to any corporate charter,
by-law, or any other agreement or instrument to which the Sellers or ARS is a
party or by which they or any of their properties may be bound, the result of
which could have a Material Adverse Effect. As used in this Agreement, "Material
Adverse Effect" means any change, effect or circumstance that, individually or
when taken together with all other like changes, effects or circumstances that
have occurred prior to the date of determination of the occurrence of a Material
Adverse Effect, is or is reasonably likely to be materially adverse to the
revenues of ARS, or the ability of ARS to continue to operate its business and
affairs in the manner heretofore operated.
2.7. ABSENCE OF DEFAULTS. ARS is not in default under any contract,
agreement, lease or document to which it or any of its properties is bound (the
"Contracts"), and no event exists with respect thereto which, with or without
the giving of notice and/or the passage of time, would constitute a default or
would reasonably be expected to have a Material Adverse Effect. Except as set
forth on in the Disclosure Schedule, each of the Contracts is a valid and
binding agreement of ARS, enforceable against ARS in accordance with its terms
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally, and by
principles of equity (whether considered in a proceeding at law or in equity)
and Sellers have no knowledge that any Contract is not a valid and binding
agreement of the other parties thereto. ARS has fulfilled all material
obligations required under each Contract to have been performed by it prior to
the date hereof, and Sellers have no reason to believe that ARS will not be able
to fulfill, when due, all of its obligations under the Contracts which remain to
be performed after the Closing Date. Except as set forth on the Disclosure
Schedule, the continuation, validity and effectiveness of each Contract would
not be affected by the consummation of the transactions contemplated by this
Agreement.
2.8. FINANCIAL STATEMENTS. The Sellers have delivered to the Purchaser
copies of the audited balance sheet of ARS as at December 31, 1997 (the "AUDITED
BALANCE SHEET") and the related statement of operations and retained earnings of
ARS for the year then ended (the "AUDITED
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INCOME STATEMENT"), including in each case the related notes and schedules
thereto, if any. The Audited Balance Sheet and Audited Income Statement fairly
present ARS's financial position at December 31, 1997 and results of operations
for period indicated, and have been prepared in accordance with generally
accepted accounting principles consistently applied and contain all adjustments
which are necessary to a fair statement of the results for the period covered.
Except as set forth on the Disclosure Schedule, since December 31, 1997 there
has been no change (not including world events or general economic conditions)
which has had a Material Adverse Effect. Sellers have no knowledge of any
existing or threatened occurrence, event or development which it believes will
have a Material Adverse Effect.
2.9. ABSENCE OF UNDISCLOSED LIABILITIES. Except to the extent shown or
provided for in the Audited Balance Sheet, at December 31, 1997, or disclosed in
the Disclosure Schedule (attached hereto as Exhibit B), ARS had no material
obligations or liabilities of any kind, fixed, accrued or contingent, except
obligations to perform after December 31, 1997 under open sales contracts,
supply contracts, purchase orders and other commitments incurred in the ordinary
course of business.
2.10. ABSENCE OF CERTAIN CHANGES.
2.10.1 Except as otherwise disclosed in the Disclosure Schedule, since
December 31, 1997, ARS has not:
2.10.1.1 incurred any obligation or liability, fixed, accrued
or contingent, except normal payroll obligations, and trade obligations
incurred in the ordinary course of business;
2.10.1.2 discharged or satisfied any lien or encumbrance or
paid any obligation or liability, fixed, accrued or contingent, except
current liabilities reflected in its Audited Balance Sheet, and current
liabilities incurred in the ordinary course of business subsequent to
the date of the Audited Balance Sheet;
2.10.1.3. mortgaged, pledged or subjected to lien, charge,
security interest or to any other encumbrance any of its assets or
properties;
2.10.1.4. transferred or leased any of its assets or
properties except in the ordinary course of business;
2.10.1.5. canceled or compromised any debt or claim, and
other than adjustments made with respect to contracts for the purchase
of supplies, the sale of products or the rendering of services in the
ordinary course of business which adjustments would not have a Material
Adverse Effect;
2.10.1.6. waived or released any rights;
2.10.1.7 transferred or granted any rights under any material
concessions, leases, licenses, agreements, patents, inventions,
trademarks, trade names, copyrights, or with
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respect to know-how;
2.10.1.8. made or entered into any employment contract
with any officer or employee or paid any bonus or increased the
compensation of any officer or employee;
2.10.1.9. entered into any transaction other than in the
ordinary course of business;
2.10.1.10. suffered any material casualty loss;
2.10.1.11. entered into any contract or commitment to make
any material capital expenditure;
2.10.1.12. declared any dividend or made any distribution
to its shareholders; or
2.10.1.13. issued or sold any shares of ARS's stock or any
other securities of ARS, or granted any options, warrants or rights for
the purchase of any shares of ARS's stock or other securities of ARS.
2.10.2 Since December 31, 1997, there has not occurred any
event which could reasonably be expected to cause or result in a
Material Adverse Effect.
2.11. TITLE TO PROPERTIES. Except to the extent shown in the Audited
Balance Sheet, ARS has, and except for those assets and properties described in
Section 7.6, on the Closing Date will have, good title to all of its properties
and assets reflected in the Audited Balance Sheet or acquired thereafter (except
those disposed of hereafter in the ordinary course of business), in each case
free and clear of all claims, liens, charges and encumbrances of any kind. All
of such properties and assets not distributed in accordance with Section 7.6
will be in good condition and repair on the Closing Date, reasonable wear and
tear excepted, and suitable for the uses for which intended.
2.12. INVENTORIES. The inventories reflected on the Audited Balance
Sheet were, and the inventories on hand at the Closing Date will be, as the case
may be, acquired in the ordinary course of business at not more than market
prices prevailing at the times of purchase and are usable in the normal
operation of ARS' business.
2.13. COMPLIANCE WITH LAWS. ARS is not in violation of any applicable
law, ordinance, regulation, order or requirement relating to its operations or
its properties which would have a material adverse effect upon its operations or
financial condition.
2.14. DOCUMENT LIST. The Disclosure Schedule includes a list of all
material contracts, licenses, permits, approvals, and other agreements, to which
ARS is a party (the "DOCUMENTS"). Complete copies of all such Documents have
been delivered or made available to the Purchaser. Except only as to such
Documents, ARS is not a party to or bound by any:
2.14.1. written or oral contract not made in the ordinary
course of business;
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2.14.2. contract which is not terminable by it without
cost or liability to it or to its successors upon 30 days notice or
less;
2.14.3. collective bargaining agreement;
2.14.4. bonus, deferred compensation, profit sharing,
pension, retirement, stock option, stock purchase, hospitalization,
insurance or other plan or arrangement providing for employee benefits;
2.14.5. lease with respect to any property, real or
personal, whether as lessor or lessee;
2.14.6. dealers', manufacturers', representatives' or
distributors' agreement which is not terminable by it without cost or
liability to it or its successors on thirty (30) days' notice or less;
2.14.7. contract requiring material capital expenditures;
2.14.8. material contract for the sale of goods or the
rendering of services continuing for a period of more than thirty (30)
days from the date of this Agreement;
2.14.9. contract for the purchase of supplies, materials or
services for delivery over a period of more than thirty (30) days from
the date of this Agreement;
2.14.10. contract or agreement of any kind continuing
for a period of more than 3 months from the date of this Agreement;
2.14.11. material governmental licenses, permits, approvals
or orders; or
2.14.12. loan agreements, indentures, mortgages or security
agreements.
2.15. EMPLOYEES. The Disclosure Schedule contains a list setting forth
the names of all employees of ARS, the current duties of such employees, the
total compensation paid to such employees during 1997, the current salary paid
to such employee and a description of existing compensation programs for various
categories of employees.
2.16. OBLIGATIONS TO EMPLOYEES. All obligations of ARS, whether arising
by operation of law or by contract for payment to trusts or other funds or to
any governmental agency, or to any individual employee or agent (or his heirs,
legatees or legal representatives) with respect to unemployment compensation
benefits, profit sharing, pension or retirement benefits, social security
benefits, or similar obligations have been paid, or shall have been paid on or
before the Closing Date, by ARS, except current amounts accrued but not yet due.
All obligations of ARS, whether arising by operation of law, by contract or by
past practice, for vacation and holiday pay, bonuses and other
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forms of compensation which are payable to employees or agents of ARS, have been
paid, or shall have been paid, by ARS, on or before the Closing Date, except
current amounts shown on the Disclosure Schedule which are accrued but not yet
due.
2.17. INSURANCE LIST. The Disclosure Schedule contains a list and brief
description of all policies of fire, extended coverage, business interruption,
public and product liability and all other kinds of insurance held by ARS (the
"INSURANCE LIST"). A copy of each such policy has been delivered or made
available to the Purchaser. All such insurance policies are in full force and
effect with all premiums due thereon paid in full (except those premiums which
are paid on an installment basis and indicated as such on the Disclosure
Statement). ARS has not received any notice or other communication from any
issuer of the policies listed on the Insurance List canceling or materially
amending any of such policy, materially increasing any deductibles or retained
amounts thereunder or rejecting any claim under any policy and, to the knowledge
of Sellers, no such cancellation, amendment or increase of deductibles is
threatened.
2.18. REAL PROPERTY; LEASES OF REAL PROPERTY. The Disclosure Schedule
contains a list and brief description of the location and approximate size of
each tract of real property owned or leased by ARS (the "PROPERTY LIST"). With
respect to the real property disclosed on the Property List, except as to
mortgages, liens and encumbrances reflected in the Audited Balance Sheet, or
existing utility easements which do not materially interfere with the present
use of the real properties or materially affect their value, all of the real
properties which are reflected as being owned by ARS in the Audited Balance
Sheet are owned in fee simple, free and clear of all claims, liens, charges and
encumbrances of any kind. Each of ARS's leases of real property is a valid and
binding lease obligation, in full force and effect, enforceable in accordance
with its terms and does not require the consent of any person to the
transactions contemplated by this Agreement (except for consents which have been
obtained in writing and delivered by Sellers to Purchaser).
2.19. LEASES OF PERSONAL PROPERTY. The Disclosure Schedule contains a
list and brief description of each lease with respect to personal property
leased by ARS (the "PERSONAL PROPERTY LIST"). Each of ARS's leases of personal
property is a valid and binding lease obligation, in full force and effect,
enforceable in accordance with its terms and does not require the consent of any
person to the transactions contemplated by this Agreement (except for consents
which have been obtained in writing and delivered by Sellers to Purchaser).
2.20. BOOKS AND RECORDS. The books and records of ARS are in all
material respects complete and correct and have been maintained in accordance
with sound business practices and the requirements of applicable law.
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2.21. LITIGATION. There is no litigation, proceeding or investigation
pending or, to the best knowledge of any Seller, threatened by or against ARS or
its properties or business or the transactions contemplated by this Agreement,
nor is any Seller aware of any fact or circumstance which they reasonably
believe would be the basis for any such litigation, proceeding or investigation.
Neither ARS nor Sellers are in violation of or in default with respect to any
judgment, order, award, writ, injunction, decree or rule of any court,
governmental authority or any regulation of any administrative agency or
governmental authority, where such violation or default would have a Material
Adverse Effect or would adversely affect the consummation of the transactions
contemplated hereby.
2.22. TAX RETURNS. ARS has prepared and filed with the appropriate
federal, state and local governmental agencies all tax returns required to be
filed, and has paid all assessments shown to be due and claims to be due
thereon. No claim for the assessment or collection of taxes has been asserted
against ARS by any federal, state or local governmental authority. To the
knowledge of the Sellers, the federal income tax returns of ARS are not being
audited by the Internal Revenue Service, and ARS has not received notice of any
such audit. The Sellers know of (i) no tax returns or reports which are required
to be filed by ARS which have not been so filed and (ii) no unpaid assessments
for any additional taxes of any fiscal period.
2.23. BENEFIT PLANS. ARS maintains a Simplified Employee Pension
("SEP"), an employee benefit plan subject to the Employee Retirement Income
Security Act of 1974. ARS makes annual contributions to the SEP, and it is
current with respect to all such contributions.
2.24. DISCLOSURE. No representation or warranty by Sellers in this
Agreement or in any Exhibit or Schedule hereto, or in any certificate delivered
or to be delivered pursuant to this Agreement, contains or will contain any
untrue statement of a material fact or omits or will omit any material fact
necessary in order to make the statements contained therein not misleading.
3. WARRANTIES AND REPRESENTATIONS OF PURCHASER. The Purchaser warrants and
represents to the Sellers as follows:
3.1. AUTHORITY AND CAPACITY. The Purchaser has, and on the Closing Date
will have, all requisite corporate power, authority and capacity to enter into
this Agreement and to perform the obligations required of it hereunder,
including, specifically, the delivery of the stock options and stock pursuant to
Sections 1.2.4 and 1.2.5. This Agreement is a valid and binding obligation of
the Purchaser, enforceable against Purchaser in accordance with its terms,
subject, however, to the effect of applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws as now or hereafter are in effect or
as to the application of equitable principles in any proceeding, legal or
equitable.
3.2. ORGANIZATION, GOOD STANDING, POWER, ETC. The Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of Delaware and has the corporate power and authority to own its properties and
to carry on its business as the same is now being conducted.
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3.3. EFFECTIVE AGREEMENT. The execution and performance of this
Agreement by the Purchaser and compliance with the provisions hereof do not and
will not (i) violate, with or without the giving of notice and/or the passage of
time, any provision of law applicable to the Purchaser, which violation could
have a material adverse effect on the operations or financial condition of the
Purchaser, or (ii) conflict with, or result in a material breach or termination
of, or constitute a default under, or result in the creation of any material
lien, charge or encumbrance upon any of the Purchaser's properties pursuant to
any corporate charter, by-law, or any other material agreement or instrument to
which the Purchaser is a party or by which it or any of its properties may be
bound.
3.4. INVESTMENT REPRESENTATION. The Purchaser understands and
acknowledges that the Shares have not been, and on the Closing Date will not
have been, registered under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), or under any applicable state securities law, and that this
transaction has not been reviewed by, passed on or submitted to any federal or
state agency or commission. The Purchaser will be acquiring the Shares for its
own account, for investment, and not with a view to, or for resale in connection
with, a distribution thereof, in whole or in part. The Purchaser has made and
will make such investigations of the financial statements, books, records and
other documents and information concerning ARS as is deemed by the Purchaser to
be necessary and appropriate in order to protect the Purchaser in connection
with the transactions contemplated by this Agreement, it being understood,
however, that no such investigation shall release the Sellers from any of their
representations and warranties contained herein.
3.5. GOOD FAITH ASSISTANCE. Purchaser will cause its officers,
employees and agents to utilize reasonable efforts to assist ARS to secure the
Revenues, including but not limited to, the additional sponsorship revenues
through the period ending September 1, 1998; and, in furtherance thereof, will
provide Sellers complete access to all books and records of ARS. Further, the
Purchaser shall elect as the Board of Directors of ARS for the years 1998, 1999,
and 2000, not more than five nor less than two directors, two of whom shall be
Sellers U.E. Xxxxxxx and Xxxxx Xxxxxx. If either U.E. Xxxxxxx or Xxxxx Xxxxxx
are unable to serve as a director, then a successor or successors shall be
selected by the Sellers. If Purchaser wishes to elect three additional
directors, these directors shall be the then acting Chairman of the Board of
CART, plus a CART team owner and a person who is neither an employee, agent or
advisor of CART. Failure of Purchaser to so utilize its reasonable efforts to
assist ARS or to elect the nominees of Sellers to ARS Board shall relieve the
Sellers from having to achieve any of the Revenues in order for the annual
payment of the balance of the purchase price to be paid as set forth in Section
1.2.2 to the extent that the failure to achieve such revenues is attributable to
Purchaser's failure to use such reasonable efforts.
4. COVENANTS OF THE SELLERS. The Sellers covenant and agree that:
4.1. CONDUCT OF ARS'S BUSINESS.
4.1.1. Subject to the provision of 7.6, from and after the
date of this Agreement until the Closing Date, the Sellers will cause
ARS to:
A. carry on its business in the normal and
ordinary course and consistent
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with the manner in which the same was
heretofore being conducted;
B. maintain and keep its properties in good
condition and repair, reasonable wear and
tear and damage due to casualty excepted;
C. keep in force and effect insurance
comparable in amount, scope and coverage to
that which it presently maintains;
D. perform in all material respects all of its
obligations and commitments; and
E. keep all of its material leases of real and
personal property in force and effect.
4.1.2. From and after the date of this Agreement until the
Closing Date, the Sellers will prohibit ARS from:
A. redeeming or repurchasing any outstanding
shares of ARS's Stock;
B. issuing or agreeing to issue any additional
shares of ARS's Stock or granting options or
issuing warrants to acquire such shares;
C. making any commitments or contracts of any
kind or nature, or incurring any
obligations or liabilities, exceeding
$25,000.00 in the aggregate, except in the
ordinary course of business;
D. increasing any salaries being paid to any
employees in excess of salaries being paid
to them at the date hereof;
E. making any loans to any officers or
directors; or
F. discharging or satisfying any lien or
encumbrance or paid any obligation or
liability, fixed, accrued or contingent,
except current liabilities reflected in its
Audited Balance Sheet, and current
liabilities incurred in the ordinary course
of business subsequent to the date of the
Audited Balance Sheet;
G. mortgaging, pledging or subjecting to lien,
charge, security interest or to any other
encumbrance any of its assets or properties;
H. transferring or leasing any of its assets or
properties except in the ordinary course of
business which adjustments would not have a
Material Adverse Effect;
I. canceling or compromising any debt or claim,
and other than
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adjustments made with respect to contracts
for the purchase of supplies, the sale of
products or the rendering of services in the
ordinary course of business which
adjustments would not have a Material
Adverse Effect;
J. waiving or releasing any rights;
K. transferring or granting any rights under
any material concessions, leases,
licenses, agreements, patents,
inventions, trademarks, trade names,
copyrights, or with respect to know-how;
L. entering into any transaction other than in
the ordinary course of business;
M. suffering any material casualty loss;
N. declaring any dividend or making any
distribution to its shareholders; or
O. entering into any transaction which would
cause any of the Sellers' warranties and
representations contained in this Agreement
not to be true and correct in all material
respects on and as of the Closing Date.
4.2. ACCESS TO DOCUMENTS. From the date of this Agreement until the
Closing Date, the Sellers will permit the Purchaser and its attorneys,
accountants, appraisers and other representatives access at all reasonable times
to the properties, files, books and records of ARS, as well as to all
information relating to its operations, financial condition, properties, taxes,
contracts and commitments.
4.3. FURTHER ACTIONS. At the closing, the Sellers will, at the request
of the Purchaser, execute and deliver to the Purchaser all such further
assignments, endorsements and such other documents as the Purchaser may
reasonably request in order to perfect the transfer, assignment and delivery to
the Purchaser of the Shares owned by it.
4.4. EXCLUSIVITY. Sellers grant to Purchaser the exclusive right to
acquire the shares until June 30, 1998. Sellers shall not (i) solicit, initiate
or encourage the submission of any proposal or offer from any person relating to
the acquisition of any capital stock or other voting securities, or any
substantial portion of the assets of, ARS (including any acquisition structured
as a merger, consolidation or share exchange) or (ii) participate in any
discussions or negotiations regarding, furnishing any information with respect
to, assist or participate in, or facilitate in any other manner any effort or
attempt by any person to do or seek any of the foregoing. Sellers will notify
Purchaser immediately if any person makes any proposal, offer, inquiry or
contact with respect to any of the foregoing.
5. COVENANTS OF THE PURCHASER. The Purchaser covenants and agrees that:
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5.1. CONDUCT OF BUSINESS. The Purchaser will not take any action which
would cause any of the Purchaser's warranties and representations contained in
this Agreement not to be true and correct in all material respects on and as of
the Closing Date.
5.2. FURTHER ACTIONS. The Purchaser will, at the request of the
Sellers, execute and deliver to the Sellers at the closing, all such further
assignments, endorsements and such other documents as the Sellers may reasonably
request in order to consummate the transactions contemplated by this Agreement.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PURCHASER. The obligations of the
Purchaser to consummate the transactions contemplated by this Agreement are
subject, at the Purchaser's option, to the satisfaction at or prior to the
Closing Date of each of the following conditions:
6.1. CORRECTNESS OF WARRANTIES AND REPRESENTATIONS. The warranties and
representations of the Sellers contained in Section 2 of this Agreement shall be
true and correct in all material respects on and as at the Closing Date, with
the same force and effect as though the same had been made on and as of the
Closing Date, and the Sellers shall have delivered to the Purchaser a
certificate to such effect, signed by each of the Sellers, dated the Closing
Date.
6.2. COMPLIANCE WITH CONDITIONS. All of the terms, covenants and
conditions of this Agreement required to be complied with and performed by the
Sellers at or prior to the Closing Date shall have been duly complied with and
performed in all material respects.
6.3. OPINION OF COUNSEL FOR THE SELLERS. The Purchaser shall have
received an opinion of Xxx, Xxxxxxx & Giarmarco, P.C., counsel for the Sellers,
dated the Closing Date, in the form and to the effect set forth in Exhibit C
annexed hereto.
6.4. ABSENCE OF LEGAL PROCEEDINGS. No action or proceeding shall have
been instituted or affirmatively threatened before a court or any other
governmental body, or by any public authority or agency, seeking to restrict or
prohibit the sale by the Sellers to the Purchaser of the Shares or the operation
by the Purchaser of the business presently conducted by ARS.
6.5. ABSENCE OF MATERIAL DAMAGE TO PROPERTY. Between the date of this
Agreement and the Closing Date there shall not have occurred, (i) any casualty
(irrespective of any insurance relating thereto) to any of ARS's properties or
assets as a result of which the monetary amount of damage or destruction caused
thereby aggregates twenty-five percent (25%) or more of the aggregate book value
shown on ARS's books for all of its fixed assets.
6.6. DELIVERY OF FINANCIAL STATEMENTS. The Purchaser shall have
received from the Sellers, as and when prepared by ARS, the unaudited balance
sheets of ARS as at each month end after December 31, 1997 and the related
unaudited statements of operations and retained earnings of ARS for each such
period then ended, including, in each case, the related notes and schedules
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thereto, which financial statements shall fairly present (and delivery of which
shall constitute Sellers' representation that they do fairly present) ARS's
financial position as at each such month end and its results of operations for
each such period then ended, shall have been prepared in accordance with
generally accepted accounting principles consistently applied, shall contain all
adjustments which are necessary to a fair statement of the results for the
interim periods presented.
6.7. COVENANT NOT TO COMPETE. Sellers U.E. Xxxxxxx and Xxxxx Xxxxxx
each shall have entered into a Covenant Not to Compete (the "COVENANT") with
ARS, substantially in the form attached hereto as Exhibit D.
6.8. DELIVERY OF RESIGNATIONS, MINUTE BOOKS, STOCK BOOKS. The Purchaser
shall have received (i) the written resignation of the officers and directors
(other than U.E. Xxxxxxx and Xxxxx Xxxxxx as Directors and Xxxxx Xxxxxx as
President and Xxxx Xxxxxxx as Vice President --as set forth in Sections 3.5 and
7.8) of ARS whose names are set forth in Exhibit E annexed hereto; (ii) all of
ARS's corporate minute books, stock books, stock transfer ledgers and corporate
seals; and (iii) such other items and documents of or relating to ARS as the
Purchaser may reasonably request as are consistent with the purposes of this
Agreement.
6.9. CERTIFIED ResolUTIONS. The Purchaser shall have received from the
Sellers certified copies of all resolutions adopted by the Board of Directors of
the ARS necessary in order to authorize the purchase of the Shares pursuant to
this Agreement.
6.10. SECTION 338(H)(10) ELECTION. The parties agree that in connection
with the sale of the Shares contemplated hereby, the parties shall cause an
express election pursuant to Section 338(h)(10) of the Internal Revenue Code (a
SECTION 338 "ELECTION") to be made, and shall comply with the rules and
regulations applicable to such Section 338 Election.
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6.10.1 For purposes of executing a Section 338 Election, on
or prior to the Closing Date, the Sellers and the Purchasers (and/or
ARS as necessary) jointly shall execute four (4) copies (three [3] for
the Purchaser and one [1] for the Sellers) of Internal Revenue Service
Form 8023 (or any successor form) and all attachments required to be
filed therewith pursuant to applicable Treasury regulations. The forms
relating to the Section 338 Election for federal, state and local tax
purposes hereinafter shall be referred to as the "FORMS". The Purchaser
and the Sellers agree that the Forms shall be filed with the
appropriate tax authorities not earlier than sixty (60) days before the
latest date for the filing thereof. At least one hundred twenty (120)
days prior to the latest date for the filing of such Form, the Sellers
shall prepare and submit to the Purchaser any necessary corrections,
amendments or supplements to such Form and the attachments thereto, as
executed the Sellers and the Purchaser (and/or ARS as necessary) on or
before the Closing Date. The Sellers shall not file any Form or the
attachments thereto as corrected, amended or supplemented unless they
shall have obtained the Purchaser's consent thereto, which consent
shall not be unreasonably withheld. On or prior to the thirtieth (30th)
day after the Purchaser's receipt of such corrections, amendments or
supplements from the Sellers, the Purchaser shall deliver to the
Sellers either (A) its consent to such filing or (B) a written notice
specifying in reasonable detail all disputed items and the basis
therefor. If, within thirty (30) days after Sellers' receipt of the
written notice described in clause (B) above, the Sellers and the
Purchaser have been unable to resolve their differences, any remaining
disputed issues shall be submitted to a nationally recognized
independent public accounting firm in the United States (other than a
firm which then serves, has been selected to serve in the future, or
has served within the past three [3] years as, the independent auditor
for the Sellers or any of their affiliates) selected by the Sellers,
and reasonably acceptable to the Purchaser, to resolve the disputed
issues in a final, binding manner after hearing the views of both
parties. In that event, the Sellers and the Purchaser shall execute and
consent to the filing of the corrected, amended or supplemented Form in
the manner determined by such accounting firm. In no event, however,
shall the Forms be filed later than fifteen (15) days before they are
due. The fees and expenses of the accounting firm shall be shared
equally.
6.10.2 For purposes of making a Section 338 Election, Exhibit
F shall set forth an allocation of the Purchaser's "ADJUSTED GROSSED-UP
BASIS" in the Shares (within the meaning of the Treasury Regulations
under Section 338 of the Internal Revenue Code) to the tangible and
intangible assets of ARS as of the Closing Date (the "ALLOCATION"). The
Allocation shall be binding upon the Purchaser and the Sellers for
purposes of allocating the "DEEMED SELLING PRICE" (within the meaning
of the Treasury Regulations) among the assets of ARS. Neither party
shall file any tax return, or take a position with a tax authority,
that is inconsistent with the Allocation.
6.11 NO CHANGE. Since December 31, 1997, no change in the business,
assets or financial condition of ARS shall have occurred which has or will have
a Material Adverse Effect.
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7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLERS. The obligations of the
Sellers to consummate the transactions contemplated by this Agreement are
subject, at Sellers' option, to the satisfaction at or prior to the Closing Date
of each of the following conditions:
7.1. CORRECTNESS OF WARRANTIES AND REPRESENTATIONS. The warranties and
representations of the Purchaser contained in Section 3 of this Agreement shall
be true and correct in all material respects on and as at the Closing Date, with
the same force and effect as though the same had been made on and as of the
Closing Date, and the Purchaser shall have delivered to the Sellers a
certificate to such effect, signed by an authorized officer of the Purchaser,
dated the Closing Date.
7.2. COMPLIANCE WITH CONDITIONS. All of the terms, conditions and
covenants of this Agreement required to be complied with and performed by the
Purchaser on or prior to the Closing Date shall have been duly complied with and
performed in all material respects.
7.3. OPINION OF COUNSEL FOR THE PURCHASER. Sellers shall have received
an opinion of Butzel Long, counsel for the Purchaser, dated the Closing Date, in
the form and to the effect set forth in Exhibit G annexed hereto.
7.4. ABSENCE OF LEGAL PROCEEDINGS. No action or proceeding shall have
been instituted or affirmatively threatened before a court or any other
governmental body, or by any public authority or agency, seeking to restrict or
prohibit the sale by Sellers to the Purchaser of the Shares or the operation by
the Purchaser of the business presently conducted by ARS.
7.5. CERTIFIED RESOLUTIONS. The Sellers shall have received from the
Purchaser certified copies of all resolutions adopted by the Board of Directors
of the Purchaser necessary in order to authorize the purchase of the Shares
pursuant to this Agreement.
7.6. DISTRIBUTIONS PRIOR TO CLOSING. Anything to the contrary
notwithstanding, the parties agree that, prior to the Closing, ARS shall
distribute to its shareholders on February 28, 1998, by way of dividends or
otherwise, all cash, accounts receivable (subject to all accounts payable), its
entire interest in the LLC, and the partnership interests with respect to the
real estate located in Melbourne, Florida. The cash distributed shall be
adjusted to reflect any obligations that ARS may have with respect to engine
deposits, unearned income related to 1998 and beyond, or other matters recorded
on ARS's financial statements which reflect future obligations of ARS, all of
which shall be accounted for in accordance with past practices. In the event
that the distribution of cash is less than or greater than the amount as finally
determined by ARS's accountants, ARS or the Sellers, as the case may be, shall
correct such error by ARS distributing to Sellers or Sellers returning to ARS in
cash the amount so determined within thirty (30) days after the Closing. In
addition to the distributions described in this Section 7.6, in the event that
the Savannah Racetrack of Savannah, Georgia, or the trustee in bankruptcy for
said Track makes a distribution for unpaid sanction fees for the 1997 race to
CART and ARS, then fifty percent (50%) of such distribution shall be paid
immediately to the Sellers and shall be accounted for as if such amount were an
Account Receivable as set forth herein and distributed on February 28, 1998.
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7.7 ACCOUNTS RECEIVABLE. With respect to the Accounts Receivable being
distributed to Sellers as referred to in Section 7.6 (the "Assigned Accounts"),
all receipts from each of said accounts, however obtained, including but not
limited to the withholding of monies due such accounts by ARS, shall be deemed
to be a payment on the Assigned Account until all such accounts have been paid
in full, regardless of the intent of the obligor for such account. Such amounts
so collected shall be immediately paid to Sellers.
7.8. EMPLOYMENT CONTRACT. Purchaser shall have entered into
an Amendment to the Employment Contract of Xxxxx Xxxxxx in the form attached
hereto as Exhibit H.
8. SIMULTANEOUS CLOSING. Purchaser has entered into an agreement to purchase the
assets of BP immediately after the Closing contemplated by this Agreement. In
the event that for any reason whatsoever Purchaser does not purchase the assets
of BP contemporaneous with the Closing of this transaction pursuant to the terms
of the Asset Purchase Agreement attached hereto as Exhibit K, then this
transaction shall be null and void and of no force or effect and all of the
transfers and other actions taken pursuant to this Agreement shall be rescinded
and the parties shall be returned to their same status as existed immediately
prior to the Closing pursuant to this Agreement and the transactions
contemplated to sell and purchase as evidenced hereunder shall be cancelled and
of no further force or effect.
9. THE CLOSING
9.1. CLOSING AND CLOSING DATE. The closing hereunder (herein referred
to as the "CLOSING") shall take place at a mutually convenient location and at a
mutually convenient time simultaneously with the closing of the initial public
offering of CART's common stock, provided that all conditions to the obligations
of the Purchaser and of the Sellers set forth, respectively, in Sections 6 and 7
hereof shall have been satisfied or waived. The date of the Closing is referred
to in this Agreement as the "CLOSING DATE". Notwithstanding any other provision
of this Agreement, if the Closing fails to occur by June 30, 1998, then, in such
event, Purchaser or Sellers, in addition to any other rights they may have,
shall have the right, exercisable by written notice, to terminate this
Agreement, such termination to be effective upon the date set forth in such
notice; provided, however, that nothing contained in this Section 9.1 shall
affect or impair any rights or obligations arising prior to or at the time of
termination of this Agreement, or that may arise by an event causing the
termination of this Agreement.
9.2. PROCEEDINGS AT CLOSING.
9.2.1. All proceedings taken and all documents to be executed
and delivered by the parties at the Closing shall be deemed to have
been taken and executed simultaneously, and no proceedings shall be
deemed taken nor documents executed or delivered until all have been
taken, executed and delivered.
9.2.2. At the Closing, the Sellers shall deliver or cause to
be delivered to the
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Purchaser the following:
A. Share certificates evidencing the Shares,
duly endorsed or accompanied by
appropriate stock transfer powers duly
executed;
B. The certificate referred to in Section 6.1
hereof;
C. The opinion of counsel for the Sellers
referred to in Section 6.3 hereof;
D. The list of Sellers with the number of
options for each Seller and the purchase
price for the shares which any Seller has
elected to purchase pursuant to Sections
1.2.4 and 1.2.5, respectively;
E. A duly executed Option Agreement from each
Seller to whom options are to be granted as
referred to in Section 1.2.4;
F. The Covenant Not to Compete duly executed by
U.E. Xxxxxxx as referred to in Section 6.7;
G. The Covenant Not to Compete duly executed by
Xxxxx Xxxxxx as referred to in Section 6.7;
and
H. The executed Amendment to Employment
Agreement of Xxxxx Xxxxxx.
9.2.3. At the Closing, the Purchaser shall deliver or cause
to be delivered to the Sellers the following:
A. The Purchase Price, in the form of the
Purchaser's certified checks in the amounts
and to the respective Sellers as set forth
on Exhibit A.
B. The certificate referred to in Section 7.1
hereof;
C. The opinion of counsel for the Purchaser
referred to in Section 7.3;
D. The certified resolutions referred to in
Section 7.5 hereof;
E. A duly executed Option Agreement to each
Seller to whom options are to be granted as
referred to in Section 1.2.4 hereof and the
stock to be purchased as referred to in
Section 1.2.5 hereof; and
F. The executed Amendment to the Employment
Contract with Xxxxx Xxxxxx.
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10. INDEMNIFICATION.
10.1 INDEMNIFICATION OF PURCHASER BY SELLERS. The Sellers covenant and
agree that they will indemnify and hold the Purchaser and its officers,
directors, employees and agents harmless from and against any and all losses,
damages, liabilities, obligations, and reasonable costs and expenses incurred or
sustained by the Purchaser by reason or arising out of any material breach of
any warranty, representation, covenant, agreement or obligation of the Sellers
contained in this Agreement, including, but not limited to, any claim by any
taxing authority with respect to taxes (including penalties and interest) due
through the close of business the day prior to the Closing Date for which
adequate provisions for such taxes referred to in Sections 2.8 and 2.22 had not
been made.
10.2 INDEMNIFICATION OF SELLERS BY PURCHASER. The Purchaser covenants
and agrees that it will indemnify and hold the Sellers harmless from and against
any and all losses, damages, liabilities, obligations, and reasonable costs and
expenses incurred or sustained by the Sellers by reason or arising out of any
material breach of any warranty, representation, covenant, agreement or
obligation of the Purchaser contained in this Agreement.
10.3 CLAIMS FOR INDEMNITY. Promptly upon notice of any claim, suit or
demand which any person entitled to indemnity hereunder (the "INDEMNITEE")
believes will give rise to indemnity by the Sellers or the Purchaser, as the
case may be (the "INDEMNITOR"), under Sections 10.1 or 10.2, the Indemnitee
shall give the Indemnitor written notice thereof, and the Indemnitor shall
defend against any such claim, suit or demand, in its name or in the name of the
Indemnitee, as the case may be, at the Indemnitor's expense and with counsel of
its own choice at its own expense. The Indemnitor shall have no obligation or
liability to indemnify with respect to, or in connection with, any claim, suit
or demand which shall be paid, settled or compromised by the Indemnitee without
the prior written consent of the Indemnitor. No right or remedy conferred in
this Section 10.3 is intended to be exclusive of any other right or remedy
available, now or hereafter, at law or in equity or otherwise, to the parties
hereto.
10.4 RIGHT TO OFFSET. To the extent that the Purchaser has suffered any
loss or losses, damages, liabilities or obligations by reason of any breach of
any warranty, representation, covenant, agreement or obligation of the Sellers
contained in this Agreement, the Purchaser shall have the right to offset any
such amounts against any amounts due and owing Sellers.
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11. ARBITRATION. In the event of any dispute among CART, ARS and Sellers under
this Agreement which they are unable to resolve, including but not limited to
whether the criteria as set forth in Section 1.2.2. has been met, or whether the
requirements as set forth in Section 3.5 have been met, the dispute shall be
submitted to arbitration at the request of any party. The party requesting
arbitration shall so notify the other party(ies) in writing and shall specify
the question or questions to be arbitrated. Within ten (10) days after receipt
of such notification, CART or ARS shall select one arbitrator and Sellers shall
select one arbitrator and each shall give the name and address thereof to the
other party. The two arbitrators shall select a third disinterested arbitrator
to complete a panel consisting of three arbitrators. In the event one party
fails to select an arbitrator within the required time period, the arbitrator
who has been selected may select one disinterested arbitrator and the two
arbitrators may proceed to resolve the dispute. Within ten (10) days of the
selection of the second arbitrator, or third arbitrator, as the case may be, the
panel of arbitrators shall schedule a hearing on the disputed issues to be held
within thirty (30) days after the selection of the final arbitrators. The
arbitrators shall render their written decision within thirty (30) days of the
last day of the hearing. The decision of a majority of the arbitrators shall be
final and conclusive on all parties. Such decision shall be entered as a final
judgement in a court of competent jurisdiction and shall be a final,
nonappealable order. The arbitration shall be conducted in accordance with the
commercial arbitration rules of the American Arbitration Association except as
specified herein. The arbitration shall take place in Troy, Michigan or such
other location as the parties may agree. The arbitrator shall substantially
comply with the Michigan rules of evidence; shall grant essential but limited
discovery; shall provide for the exchange of witness lists and exhibit copies;
and shall conduct a pretrial conference and consider dispositive motions. Each
party shall have the right to request the arbitrator to make findings of
specific factual issues. The arbitrator shall decide all issues and disputes in
conformity with applicable law and shall have no authority to alter the terms of
this Agreement. Each party shall cooperate with the arbitrator to comply with
procedural time requirements and the failure of either to do so shall entitle
the arbitrator to extend the arbitration proceedings accordingly and to impose
sanctions on the party responsible for the delay, payable to the other party. If
the arbitrator determines that a party has failed to act in good faith or with a
reasonable basis in connection with the dispute, the arbitrator shall be
entitled to award, against the party so acting, the fees and expenses of the
arbitration and the costs and expenses incurred by the other party in connection
with the arbitration, included but not limited to reasonable attorneys' fees. In
the absence of such a finding, the fees and expenses of the arbitration shall be
borne equally by Purchaser and Sellers (except that each party shall be solely
responsible for the fees and expenses of its counsel and other professionals and
experts retained by it).
12. MISCELLANEOUS.
12.1. ANNOUNCEMENTS. All announcements relating to the transactions
contemplated hereby shall be mutually approved by, and shall not be released
except with the mutual consent of the parties thereto, except where immediate
disclosure, in the opinion of counsel for the party concerned, is required by
law.
12.2. BROKERAGE. The Sellers warrant and represent to the Purchaser
that they have not incurred any obligation or liability, contingent or
otherwise, for brokerage or finder's fees or agent's
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commissions or other like payment in connection with this Agreement or the
transactions contemplated hereby. The Sellers covenant and agree to indemnify
and hold the Purchaser harmless from and against any such obligation or
liability (and any reasonable expense or expenses incurred in investigating or
defending the same, including counsel fees) based in any way on any agreements,
arrangements or understandings claimed to have been made by the Sellers with any
third party. The Purchaser warrants and represents to the Sellers that it has
not incurred any obligation or liability, contingent or otherwise, for brokerage
or finder's fees or agent's commissions or other like payment in connection with
this Agreement or the transactions contemplated hereby. The Purchaser covenants
and agrees to indemnify and hold the Sellers harmless from and against any such
obligation or liability (and any reasonable expense or expenses incurred in
investigating or defending the same, including counsel fees) based in any way on
any agreements, arrangements or understandings claimed to have been made by the
Purchaser with any third party.
12.3. SURVIVAL OF WARRANTIES AND REPRESENTATIONS. Each party hereto
covenants and agrees that its warranties and representations contained in this
Agreement and in any document delivered or to be delivered pursuant hereto shall
survive the Closing Date hereunder until December 31, 2000.
12.4. EXPENSES. Whether or not the transactions contemplated by this
Agreement are consummated, each of the parties hereto shall pay the fees and
expenses of its counsel, accountants, other experts and all other expenses
incurred by such party incident to the negotiation, preparation and execution of
this Agreement.
12.5. NOTICES. All notices, requests, demands and other communications
which are required or permitted to be given under this Agreement shall be in
writing and shall be deemed to have been duly given upon the delivery or mailing
thereof, as the case may be, if delivered personally or sent by registered or
certified mail, return receipt requested, postage prepaid:
(a) If to the Seller, to: U.E. Xxxxxxx
Xxxxxxx Exploration Company
000 X. Xxxxxxxx Xxx.
X.X. Xxx 000
Xxxxxxx, XX 00000-0000
with a copy to: Xxxxx X. Xxxxxx, Esq.
Xxx, Xxxxxxx & Xxxxxxxxx,
X.X. - Xxxxx 000
000 Xxxx Xxx Xxxxxx Xxxx
Xxxx, XX 00000-0000
(b) If to the Purchaser, to: Championship Auto Racing
Teams, Inc.
000 X. Xxx Xxxxxx Xxxx,
Xxxxx 000
Xxxx, XX 00000-0000
with a copy to: Xxxx Xxxxxx, Esq.
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00
Xxxxxxx Xxxxxx, Xxxxx 0000
00 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
with a copy to: Xxxxxx. X. Xxxxxx, Esquire
Butzel Long
000 X. Xxxxxxxxx, Xxx. 000
Xxxxxxx, XX 00000-0000
or to such other address as either the Sellers or the Purchaser shall have
specified by notice in writing to the other.
12.6. WAIVERS. Either the Sellers or the Purchaser may, by written
notice to the other, (a) extend the time for the performance of any of the
obligations or other actions of the other; (b) waive any inaccuracies in this
Agreement or in any document delivered pursuant hereto by the other; (c) waive
compliance with any of the terms, conditions or covenants required to be
complied with by the other hereunder; and (d) waive or modify performance of any
of the obligations of the other hereunder. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any other or subsequent breach.
12.7. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof.
12.8. BINDING EFFECT; BENEFITS. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns. Nothing in this Agreement, expressed or implied, is
intended to confer on any person other than the parties hereto, or their
respective successors and assigns, any rights, remedies, obligations or
liabilities.
12.9. FULFILLMENT OF CONDITIONS. The parties hereby covenant and agree
to use their reasonable efforts to fulfill all of the terms and conditions
contained in this Agreement, and to take such action as may be reasonably
required to obtain all necessary consents, permits, authorizations and approvals
of third parties which are conditions of this Agreement.
12.10. LAW GOVERNING. This Agreement shall be governed by and construed
in accordance with the laws of the State of Michigan, without regard to choice
of law provisions which would require the application of the laws of any other
jurisdiction.
12.11. HEADINGS. Headings on the Articles and Sections in this
Agreement are for reference purposes only and shall not be deemed to have any
substantive effect.
12.12. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall be deemed to be one and the same instrument.
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IN WITNESS WHEREOF, the Sellers have caused this Agreement to be duly
executed in each of their names, and the Purchaser has caused this Agreement to
be duly executed in its corporate name by one of its duly authorized officers,
all as of the date first above written.
Witnesses:
/s/ XXXXX X. XXXXXX
-------------------------------- /s/ U.E. XXXXXXX
------------------------------
/s/ XXXXXX X. XXXXXX U.E. XXXXXXX
--------------------------------
/s/ XXXXX X. XXXXXX
-------------------------------- /s/ XXXXXX X. XXXXXXX
------------------------------
/s/ XXXXXX X. XXXXXX XXXXXX X. XXXXXXX
--------------------------------
/s/ XXXXX X. XXXXXX
-------------------------------- /s/ XXXX X. XXXXXXX
------------------------------
/s/ XXXXXX X. XXXXXX XXXX X. XXXXXXX
--------------------------------
/s/ XXXXX X. XXXXXX
-------------------------------- /s/ XXXX X. XXXXXXX
------------------------------
/s/ XXXXXX X. XXXXXX XXXX X. XXXXXXX
--------------------------------
/s/ XXXXX X. XXXXXX
-------------------------------- /s/ XXXXXX XXXXXXX-XXXXX
------------------------------
/s/ XXXXXX X. XXXXXX XXXXXX XXXXXXX-XXXXX
--------------------------------
/s/ XXXXX X. XXXXXX
-------------------------------- /s/ XXXXX XXXXXX
------------------------------
/s/ XXXXXX X. XXXXXX XXXXX XXXXXX
--------------------------------
"SELLERS"
CHAMPIONSHIP AUTO RACING
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TEAMS, INC., a Delaware corporation
------------------------------- /s/ Xxxxxx Xxxxx
By: -----------------------------
Chairman and CEO
Its: ----------------------------
-------------------------------
"PURCHASER"
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EXHIBITS:
A - List showing owners of record (Sellers) of ARS Stock
B - Disclosure Schedule - Documents
C - Opinion of counsel to Xxxxxxx - Xxx, Xxxxxxx & Giarmarco, P.C.
D - Covenant not to Compete - U.E. Xxxxxxx and Xxxxx Xxxxxx
E - List of Officers and Directors of the Corporation
F - Section 338 Allocation
G - Opinion of counsel to Purchaser - Butzel Long
H - Amendment of Employment Contract with Xxxxx Xxxxxx
I - Asset Purchase Agreement - CART / XX
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XXXXX PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT ("Agreement") is made this ___ day of
March, 1998, between CHAMPIONSHIP AUTO RACING TEAMS, INC., a Delaware
corporation ("CART" or the "PURCHASER"), and BP AUTOMOTIVE, LTD., a Michigan
corporation ("SELLER").
WITNESSETH: Seller is in the business of selling racing
wheels and related products (the "Business"); CART has filed a Registration
Statement with the Securities and Exchange Commission for the purpose of having
an initial public offering of its common stock ("IPO"); and in conjunction
therewith, CART desires to purchase the Business and certain assets from Seller
upon the terms and subject to the conditions hereinafter set forth; NOW,
THEREFORE, in consideration of the premises and the mutual covenants,
representations and agreements and warranties contained, the parties agree as
follows: 1 PURCHASE AND SALE OF ACQUIRED ASSETS 1.1 Purchase and Sale.
Upon the terms and subject to the conditions of this Agreement, Seller agrees to
sell, assign, transfer, convey and deliver, or cause to be sold, assigned,
transferred, conveyed and delivered, to Purchaser and Purchaser agrees to
purchase at the Closing, all the acquired assets free and clear of all liens,
liabilities or obligations.
1.2 Acquired Assets. The term "ACQUIRED ASSETS" means all the assets,
properties, goodwill and rights owned by Seller on the Closing Date and used or
usable in connection with the operation of the Business, of whatever kind and
nature, real or personal, tangible or intangible, other than the Excluded Assets
(as defined in Section 1.4), including, but not limited to the following:
(a) all machinery, equipment, tools, dies, jigs,
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patterns, trade fixtures, molds, spare parts, vehicles, furniture,
designs, drawings and supplies;
(b) all rights in, to and under all leases of tools,
furniture, machinery, supplies, vehicles, equipment and other items of
personal property listed on Exhibit A attached hereto;
(c) all of Seller's right, title and interest in and to the
Agreement between Lola Cars and American Racing Series, Inc., a
Michigan corporation ("ARS"), attached hereto as Exhibit B;
(d) all real property, leasehold and other interests in real
property of Seller, in each case together with all buildings,
improvements, fixtures and all appurtenances thereto;
(e) all right, title and interest of Seller in, to and under
the following, which shall be referred to herein collectively as the
"INTELLECTUAL PROPERTY RIGHTS";
(i) all inventions (whether patentable or
unpatentable and whether or not reduced to
practice), all improvements thereto, and all
patents, patent applications, and patent
disclosures, together with all reissuances,
continuations, continuations-in-part,
revisions, extensions, and reexaminations
thereof;
(ii) all trademarks, service marks, trade dress,
logos, trade names, together with all
translations, adaptations, derivations, and
combinations thereof and including all
goodwill associated therewith, and all
applications, registrations, and renewals in
connection therewith;
(iii) all copyrightable works, all copyrights, all
mask works, and all applications,
registrations, and renewals in connection
therewith;
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(iv) all trade secrets and confidential business
information (including ideas, research and
development, technology, know-how, formulas,
compositions, manufacturing and production
processes and techniques, technical data,
designs, drawings, specifications, customer
and supplier lists, pricing and cost
information, and business and marketing
plans and proposals); and
(v) all other proprietary rights, all copies and
tangible embodiments of any of the foregoing
(in whatever form or medium), and all
license agreements (as licensee or licensor)
relating to any of the foregoing;
(f) to the extent legally assignable, all right, title and
interest of Seller in, to and under all franchises, licenses, permits,
orders, certificates, approvals and other governmental authorizations
which are necessary to own or lease and operate the Acquired Assets and
to conduct the Business as it has been conducted by Seller ("PERMITS");
(g) all right, title and interest of Seller in, to and under
all contracts, agreements, including but not limited to purchase
orders, customer orders and work orders (the "Contracts");
(h) all computer programs, including but not limited to the
Peer-to-Peer Network, and a copy of the source code and object code of
all such programs, together with all additions, modifications, updates,
and enhancements thereto; all design specifications including, but not
limited to, program descriptions, system flow charts, file layouts,
report layouts, screen layouts, and all other computer program
documentation; and all user's manuals, training manuals, sales
literature, and other system and operations documentation relating to
such computer programs;
(i) all rights, claims, causes of action and chooses in action
against third parties (including, but not limited to, rights against
suppliers under warranties covering any inventory, machinery or
equipment) existing on the Closing Date, the benefits of which have
been assumed by or assigned
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to Purchaser pursuant to this Agreement;
(j) all books and records relating to the Business, including,
but not limited to, financial, accounting and personnel records,
property records, production records, engineering records,
environmental compliance records, files, invoices, customer lists and
records, supplier lists and records and other data owned or used by
Seller relating to the Acquired Assets described in subparagraphs (a)
through (j) of this Section 1.2; and
(k) all other tangible and intangible assets of Seller
relating to the Business, whether or not carried at value or listed on
the books and records of Seller, and whether or not in the possession
of Seller or others.
1.3 Transfer of Title to Acquired Assets. The sale, assignment, conveyance,
transfer and delivery by Seller of the Acquired Assets shall be made at the
Closing by such bills of sale, assignments, licenses, endorsements and other
appropriate instruments of transfer as shall be necessary to vest in Purchaser,
as of the Closing Date, good and marketable title to the Acquired Assets, free
and clear of all liens.
1.4 Excluded Assets. The term "EXCLUDED ASSETS" means:
(a) minute books, stock records, tax returns, financial
statements and similar corporate records of Seller;
(b) the rights of Seller to any of Seller's claims for any
federal, state, local or foreign tax refunds; and
(c) cash, cash equivalents and accounts receivable
of Seller;
(d) Note Receivable from Xxx Xxxxxx to Seller;
(e) other Notes Receivable (if any) of Seller;
(f) Accounts Payable (if any); and
(g) the corporate name, "BP Automotive Ltd.".
1.5 ACCOUNTS RECEIVABLE. With respect to the Accounts Receivable
being Excluded Assets and retained by Seller as referred
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to in Section 1.4(c), (the "Assigned Accounts"), all receipts from each of said
accounts, however obtained, including but not limited to the withholding of
monies due such accounts by Seller, shall be deemed to be a payment on the
Assigned Account until all such accounts have been paid in full, regardless of
the intent of the obligor for such account. Such amounts so collected shall be
immediately paid to Seller. Notwithstanding the foregoing, Buyer shall have no
obligation to collect or pursue the collection of Accounts Receivable retained
by Seller.
1.6 CERTAIN LIABILITIES ASSUMED. Upon the terms and subject to the
conditions of this Agreement, Purchaser shall assume and agree to pay, perform
and discharge all obligations and liabilities of Seller under the contracts and
agreements which are to be acquired by Purchaser pursuant to the provisions of
this Agreement, and with respect to which Purchaser succeeds to the rights of
Seller thereunder, to the extent that such obligations and liabilities accrue
from and after the Closing Date (the "Assumed Liabilities").
1.7 LIABILITIES NOT ASSUMED. Purchaser shall not assume and shall not
be responsible to pay, perform or discharge any other obligations, liabilities,
contracts or commitments of Seller of any kind or nature whatsoever.
1.8 PURCHASE PRICE. Purchaser shall pay to Seller at Closing a purchase
price, (the "PURCHASE PRICE") for all the Acquired Assets an amount equal to the
following:
1.8.1 CASH PURCHASE PRICE. $1,500,000 which shall be paid
at Closing; plus
1.8.2 EARN OUT PURCHASE PRICE. An aggregate of $300,000 in
three (3) equal annual payments each year for three (3) years on the anniversary
of the Closing, if and only if Purchaser shall achieve revenues equal to or
exceeding $401,300.00 (the "REVENUES") in 1998 and 1999, from wheel sales and
parts and chassis commissions, and $51,300.00 for year 2000 from wheel sales,
(net of cost of goods sold). Included in the revenues from wheel sales shall be
the revenues (net of cost of goods sold) from the sales of the 1993-20 Lola
wheels. Further, the earn out shall require total Revenues as set forth in
Sections 1.2.2.1. through 1.2.2.5. of the Stock Purchase Agreement (Exhibit G)
produced by both Seller and ARS of $3,943,800 for the years 1998-1999 and
$573,800 in the year 2000.
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1.8.3 SHORTFALL AND MAKE UP. In the event that there is a
shortfall in 1998 and/or 1999 in the Revenues, the annual payments by CART will
be reduced dollar for dollar (to not less than $0) by the shortfall for that
year, provided, however, if such shortfall is subsequently made up in 1999 or
2000, the payment not made to the Seller the prior year shall be paid to it in
the subsequent year on a dollar-for-dollar basis to the extent made up.
1.8.4 CART LONG TERM STOCK OPTION. Xxxxx XxXxx ("XXXXX"), a
Shareholder of Seller, shall be granted options to purchase 2,117 shares of the
common stock of CART at a per-share price equal to the price offered to the
public in the IPO if, and only if, 1998 Revenues equal or exceed the amounts
specified in Section 1.8.2. Any shortfall for 1998 may be made up by the Seller
and/or XxXxx rendering a cash contribution to CART for the amount of the
shortfall within 30 days after written determination of such shortfall has been
delivered to the Seller. Upon rendering such payment, the XxXxx shall be
qualified for the said stock options. These options shall vest one year after
the closing of the IPO and they may be exercised at any time within five (5)
years after they vest. Shares issuable upon exercise of the option will not be
registered under the Securities Act of 1933 or any state securities laws and
will constitute restricted securities within the meaning of Rule 144 under the
Securities Act.
1.8.5 CART STOCK PURCHASE. XxXxx shall subscribe for 2500
shares of CART's common stock at a per-share price equal to the price offered to
the public in the IPO. The stock shall be fully registered and listed in
connection with CART's IPO at the Closing. XxXxx shall pay for such stock, in
cash, at the Closing, on the Closing Date and shall acknowledge that he has
received a copy of the current final prospectus for the IPO. XxXxx has not made,
and will not make, any commitment to purchase such shares until such time as the
registration statement for the CART IPO has become effective.
1.8.6 ALLOCATION. The Purchase Price shall be allocated among
the Acquired Assets as set forth on Exhibit C. The Purchase Price shall be
allocated to the Assets (other than Goodwill) in an amount equal to their net
book value as carried on Seller's balance sheet and the balance of the Purchase
Price shall be allocated to Goodwill. Seller and Purchaser each hereby covenant
and agree that it will not take a position on any income tax return, before any
governmental agency charged with the
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collection of any income tax, or in any judicial proceeding that is in any way
inconsistent with the terms of this Section 1.8.6.
2 WARRANTIES AND REPRESENTATIONS OF THE SELLER. Seller warrants and represents
to Purchaser as follows:
2.1 Authority and Capacity. Seller has, and on the Closing Date will have, all
requisite power, authority and capacity to enter into this Agreement and to
perform the obligations required of it hereunder. This Agreement is a valid and
binding obligation of Seller, enforceable against Seller in accordance with its
terms, subject, however, to the effect of applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws as now or hereafter are in effect or
as to the application of equitable principles in any proceeding, legal or
equitable.
2.2 Authorization. The execution and delivery of this Agreement and all other
agreements, documents and instruments provided for herein by Seller, and the
consummation of all transactions contemplated hereby and thereby, has been duly
authorized by all requisite corporate action of Seller (including approval by
Seller's shareholders in accordance with applicable law and the provisions of
Seller's Articles of Incorporation and Bylaws).
2.3 Title to the Acquired Assets. Seller has good and marketable title to all of
the Acquired Assets free and clear of all Liens of any nature whatsoever, except
as set forth on the Disclosure Schedule attached hereto as Exhibit D. The
Acquired Assets include all the assets and properties which are necessary to
conduct the Business as presently conducted, and to perform all of the
contracts, leases, agreements, commitments, purchase orders, work orders,
customer orders, and other arrangements of Seller. The tools, machinery and
equipment included in the assets of Seller are in good operating condition and
are sufficient to enable Buyer to operate the Business as presently conducted.
2.4 Organization, Good Standing and Power. Seller is a corporation duly
organized and validly existing as a corporation in good standing under the laws
of the State of Michigan and has the corporate power and authority to own its
properties, to carry on its business as the same is now being conducted and to
execute and deliver this Agreement and perform its obligations hereunder. Seller
is not required to qualify as a foreign corporation under
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the laws of any jurisdiction.
2.5 No Subsidiaries. Seller does not directly or indirectly own any interest in
or control any other corporation, partnership, limited partnership, limited
liability company, joint venture or other entity.
2.6 Effective Agreement. The execution and performance of this Agreement by the
Seller and compliance with the provisions hereof do not and will not (i)
violate, with or without the giving of notice and/or the passage of time, any
provision of law applicable to the Seller, which such violation could have a
Material Adverse Effect on the Business or the operations or financial condition
of Seller, or (ii) conflict with, or result in a breach or termination of, or
constitute a default under, or result in the creation of any lien, charge or
encumbrance upon any Acquired Assets pursuant to any corporate charter, by-law,
or any other agreement or instrument to which the Seller is a party or by which
it or any of its properties may be bound, the result of which could have a
Material Adverse Effect. As used in this Agreement, "Material Adverse Effect"
means any change, effect or circumstance that, individually or when taken
together with all other like changes, effects or circumstances that have
occurred prior to the date of determination of the occurrence of a Material
Adverse Effect, is or is reasonably likely to be materially adverse to the
Acquired Assets, business, financial condition or results of operations of
Seller, or the ability of Seller to perform its obligations under this
Agreement, or the ability of Buyer to operate the acquired assets and the
business in the manner heretofore operated by Seller.
2.7 Absence of Defaults. Seller is not in default under any of the contracts or
any other contract, agreement, lease or document to which it or any of its
properties is bound, and no event exists with respect thereto which, with or
without the giving of notice and/or the passage of time, would constitute a
default or would reasonably be expected to have a Material Adverse Effect.
Except as set forth on in the Disclosure Schedule, each of the Contracts is a
valid and binding agreement of Seller, enforceable against Seller in accordance
with its terms except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally, and by principles of equity (whether considered in a proceeding at
law or in equity) and Seller has no knowledge that
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any Contract is not a valid and binding agreement of the other parties thereto.
Seller has fulfilled all material obligations required under each Contract to
have been performed by it prior to the date hereof, and Seller has no reason to
believe that Purchaser will not be able to fulfill, when due, all of its
obligations under the Contracts which remain to be performed after the Closing
Date. Except as set forth on the Disclosure Schedule, the continuation, validity
and effectiveness of each Contract would not be affected by the transfer thereof
to Purchaser under this Agreement and all such Contracts are assignable to
Purchaser without the consent of any other party.
2.8 Financial Statements. The Seller has delivered to the Purchaser copies of
its audited balance sheet as at December 31, 1997 (the "AUDITED BALANCE SHEET")
and its related statement of operations and retained earnings for the year then
ended (the "AUDITED INCOME STATEMENT"), including in each case the related notes
and schedules thereto, if any. The Audited Balance Sheet and Audited Income
Statement fairly present Seller's financial position at December 31, 1997 and
results of operations for period indicated, and have been prepared in accordance
with generally accepted accounting principles consistently applied and contain
all adjustments which are necessary to a fair statement of the results for the
period covered. Except as set forth on the Disclosure Schedule, since December
31, 1997, there has been no change (not including world events or general
economic conditions) which has had a Material Adverse Effect. Seller has no
knowledge of any existing or threatened occurrence, event or development which
it believes will have a Material Adverse Effect.
2.9 Absence of Undisclosed Liabilities. Except to the extent shown or provided
for in the Audited Balance Sheet at December 31, 1997, or disclosed in the
Disclosure Schedule, Seller had no material obligations or liabilities of any
kind, fixed, accrued or contingent, except obligations to perform after December
31, 1997 under open sales contracts, supply contracts, purchase orders and other
commitments incurred in the ordinary course of business.
2.10 Absence of Certain Changes.
(a) Except as otherwise disclosed in the Disclosure Schedule, since
December 31, 1997, Seller has not:
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(i) incurred any obligation or liability, fixed, accrued or
contingent, except normal payroll obligations, and trade obligations
incurred in the ordinary course of business;
(ii) discharged or satisfied any lien or encumbrance or paid
any obligation or liability, fixed, accrued or contingent, except
current liabilities reflected in its Audited Balance Sheet, and current
liabilities incurred in the ordinary course of business subsequent to
the date of the Audited Balance Sheet;
(iii) mortgaged, pledged or subjected to lien, charge,
security interest or to any other encumbrance any of its assets or
properties;
(iv) transferred or leased any of its assets or properties
except in the ordinary course of business;
(v) canceled or compromised any debt or claim, other than
adjustments made with respect to contracts for the purchase of
supplies, the sale of products or the rendering of services in the
ordinary course of business which adjustments would not have a Material
Adverse Effect;
(vi) waived or released any rights;
(vii) transferred or granted any rights under any material
concessions, leases, licenses, agreements, patents, inventions,
trademarks, trade names, copyrights, or with respect to know-how;
(viii) made or entered into any employment contract with any
officer or employee or paid any bonus or increased the compensation of
any officer or employee;
(ix) entered into any transaction other than in the ordinary
course of business;
(x) suffered any material casualty loss; or
(xi) entered into any contract or commitment to make any
material capital expenditure.
(b) Since December 31, 1997, there has not occurred any event
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which could reasonably be expected to cause or result in a Material Adverse
Effect.
2.11 Inventories. The inventories reflected on the Audited Balance Sheet were,
and the inventories will be, on hand at the Closing Date and will be, as the
case may be, acquired in the ordinary course of business at not more than market
prices prevailing at the times of purchase and are usable in the normal
operation of the business (except for the 1993-20 Lola Wheels).
2.12 Products Liability and Warranty Claims. Except as set forth in the
Disclosure Schedule:
(a) Seller has not made any oral or written warranties with
respect to the quality or absence of defects of its products or
services which are in force as of the date of this Agreement;
(b) there are no liabilities of or claims against Seller and,
to the knowledge of Seller, no liabilities or claims are threatened
against Seller, with respect to any product liability (or similar
claim) of Seller or product warranty (or similar claim) of Seller that
relates to any product manufactured or sold by Seller;
(c) Seller has no knowledge of any facts or circumstances
which might reasonably give rise to such liabilities or claims.
2.13 Compliance with Laws. Seller is not in violation of any applicable law,
ordinance, regulation, order or requirement relating to its operations or its
properties which would have a material adverse effect upon its assets,
operations or financial condition.
2.14 Document List. The Disclosure Schedule includes a list of all material
contracts, licenses, permits, approvals, and other agreements, to which Seller
is a party (the "DOCUMENTS"). Complete copies of all such Documents have been
delivered or made available to the Purchaser. Except only as to such Documents,
Seller is not a party to or bound by any:
(a) written or oral contract not made in the ordinary course
of business;
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(b) contract which is not terminable by it without cost or
liability to it or to its successors upon 30 days notice or less;
(c) collective bargaining agreement;
(d) bonus, deferred compensation, profit sharing, pension,
retirement, stock option, stock purchase, hospitalization, insurance or
other plan or arrangement providing for employee benefits;
(e) lease with respect to any property, real or personal,
whether as lessor or lessee;
(f) dealers, manufacturers, representatives or distributors
agreement which is not terminable by it without cost or liability to it
or its successors on thirty (30) days notice or less;
(g) contract requiring material capital expenditures;
(h) material contract for the sale of goods or the rendering
of services continuing for a period of more than 30 days from the
date of this Agreement;
(i) contract for the purchase of supplies, materials or
services for delivery over a period of more than 30 days from the date
of this Agreement;
(j) contract or agreement of any kind continuing for a
period of more than 3 months from the date of this Agreement;
(k) material governmental licenses, permits, approvals or
orders; or
(l) loan agreements, indentures, mortgages or security
agreements
2.15 Employees. The Disclosure Schedule contains a list setting forth the names
of all employees of Seller, the current duties of such employees, the total
compensation paid to such employees during 1997, the current salary paid to such
employee and a description of existing compensation programs for various
categories of employees.
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2.16 Obligations to Employees. All obligations of Seller, whether arising by
operation of law or by contract for payment to trusts or other funds or to any
governmental agency, or to any individual employee or agent (or his heirs,
legatees or legal representatives) with respect to unemployment compensation
benefits, profit sharing, pension or retirement benefits, social security
benefits, or similar obligations have been paid, or shall have been paid on or
before the Closing Date, by Seller, except current amounts accrued but not yet
due. All obligations of Seller, whether arising by operation of law, by contract
or by past practice, for vacation and holiday pay, bonuses and other forms of
compensation which are payable to employees or agents of Seller, have been paid,
or shall have been paid, by Seller, on or before the Closing Date, except
current amounts shown on the Disclosure Schedule which are accrued but not yet
due.
2.17 Insurance List. The Disclosure Schedule contains a list and brief
description of all policies of fire, extended coverage, business interruption,
public and product liability and all other kinds of insurance held by Seller
(the "INSURANCE LIST"). A copy of each such policy has been delivered or made
available to the Purchaser. All such insurance policies are in full force and
effect with all premiums due thereon paid in full (except those premiums which
are paid on an installment basis and indicated as such on the Disclosure
Statement). Seller has not received any notice or other communication from any
issuer of the policies listed on the Insurance List canceling or materially
amending any of such policy, materially increasing any deductibles or retained
amounts thereunder or rejecting any claim under any policy and, to the knowledge
of Seller, no such cancellation, amendment or increase of deductibles is
threatened.
2.18 Real Property; Leases of Real Property. There is no real property owned
or leased by Seller.
2.19 Leases of Personal Property. There are no leases of personal property.
2.20 Books and Records. The books and records of Seller are in all material
respects complete and correct and have been maintained in accordance with sound
business practices and the requirements of applicable law.
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2.21 Litigation. There is no litigation, proceeding or investigation pending
or, to the best knowledge of Seller, threatened by or against Seller or its
properties or business or the transactions contemplated by this Agreement, nor
is Seller aware of any fact or circumstance which they reasonably believe would
be the basis for any such litigation, proceeding or investigation. Seller is not
in violation of or in default with respect to any judgment, order, award, writ,
injunction, decree or rule of any court, governmental authority or any
regulation of any administrative agency or governmental authority, where such
violation or default would have a Material Adverse Effect or would adversely
affect the consummation of the transactions contemplated hereby.
2.22 Tax Returns. Seller has prepared and filed with the appropriate federal,
state and local governmental agencies all tax returns required to be filed, and
has paid all assessments shown to be due and claims to be due thereon. No claim
for the assessment or collection of taxes has been asserted against Seller by
any federal, state or local governmental authority. To the knowledge of Seller,
the federal income tax returns of Seller are not being audited by the Internal
Revenue Service, and Seller has not received notice of any such audit. The
Seller knows of (i) no tax returns or reports which are required to be filed by
Seller which have not been so filed and (ii) no unpaid assessments for any
additional taxes of any fiscal period.
2.23 Benefit Plans. Seller does not maintain an employee benefit plan subject to
the Employee Retirement Income Security Act of 1974.
2.24 Disclosure. No representation or warranty by Seller in this Agreement or in
any Exhibit or Schedule hereto, or in any certificate delivered or to be
delivered pursuant to this Agreement, contains or will contain any untrue
statement of a material fact or omits or will omit any material fact necessary
in order to make the statements contained therein not misleading.
3 WARRANTIES AND REPRESENTATIONS OF PURCHASER. The Purchaser warrants and
represents to the Seller as follows:
3.1 Authority and Capacity. The Purchaser has, and on the Closing Date will
have, all requisite corporate power, authority and capacity to enter into this
Agreement and to perform the
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obligations required of it hereunder, including, specifically, the delivery of
the stock options and stock pursuant to Sections 1.8.4 and 1.8.5. This Agreement
is a valid and binding obligation of the Purchaser, enforceable against
Purchaser in accordance with its terms, subject, however, to the effect of
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
as now or hereafter are in effect or as to the application of equitable
principles in any proceeding, legal or equitable.
3.2 Organization, Good Standing, Power, Etc. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of Delaware and
has the corporate power and authority to own its properties and to carry on its
business as the same is now being conducted.
3.3 Effective Agreement. The execution and performance of this Agreement by the
Purchaser and compliance with the provisions hereof do not and will not (i)
violate, with or without the giving of notice and/or the passage of time, any
provision of law applicable to the Purchaser, which such violation could have a
material adverse effect on the operations or financial condition of the
Purchaser, or (ii) conflict with, or result in a material breach or termination
of, or constitute a default under, or result in the creation of any material
lien, charge or encumbrance upon any of the Purchaser's properties pursuant to
any corporate charter, by-law, or any other material agreement or instrument to
which the Purchaser is a party or by which it or any of its properties may be
bound.
3.4 Good Faith Assistance. Purchaser will cause its officers, employees and
agents to utilize reasonable efforts to assist Seller to secure the Revenues,
including but not limited to, the wheel sales and chassis commission revenues
through the period ending December 31, 2000. In furtherance thereof, Seller, or
its attorneys and/or representatives, shall be permitted access to the documents
described in Section 4.2 through the period ending December 31, 2000. Failure of
Purchaser to so utilize reasonable efforts to assist Seller shall relieve Seller
from having to achieve any of the Revenues in order for the annual payment of
the balance of the purchase price to be paid as set forth in Section 1.8.2 to
the extent that the failure to achieve such revenues is attributable to
Purchaser's failure to use such reasonable efforts.
4 COVENANTS OF THE SELLER. The Seller covenants and agrees
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that:
4.1 Conduct of Business.
4.1.1 From and after the date of this Agreement until the Closing Date, the
Seller will:
(a) carry on its business in the normal and ordinary
course and consistent with the manner in which the same was
heretofore being conducted;
(b) maintain and keep its properties in good
condition and repair, reasonable wear and tear and damage due
to casualty excepted;
(c) keep in force and effect insurance comparable in
amount, scope and coverage to that which it presently
maintains;
(d) perform in all material respects all of its
obligations and commitments; and
(e) keep all of its material leases of real and
personal property in force and effect.
4.1.2 From and after the date of this Agreement until the Closing Date, the
Seller will not:
(a) incur any liability or obligation, fixed
contingent, accrued or otherwise, other than liabilities
incurred in the ordinary course of business consistent with
past practice, or discharge or satisfy any Lien or pay any
liabilities, other than in the ordinary course of business
consistent with past practice, or fail to pay or discharge
when due any material liabilities (individually or in the
aggregate), or fail to perform any material obligations
(individually or in the aggregate);
(b) mortgage, pledge or subject any of its assets to
any mortgage, lien, pledge, security interest, conditional
sales contract or other encumbrance of any nature whatsoever;
(c) make or suffer any amendment or termination of
any material agreement, contract, commitment, lease or
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plan, or cancel, modify or waive any material debts or claims
held by it or waive any rights material to the Business;
(d) sell or in any way transfer or otherwise dispose
of any of its assets or property except for sales of inventory
and other transfers and dispositions in the ordinary course of
business;
(e) suffer any casualty, damage, destruction or loss,
or any material interruption in use, of any material assets or
properties, whether or not covered by insurance, or suffer any
repeated, recurring or prolonged shortage, cessation or
interruption of supplies or utility or other services required
to conduct its business and operations;
(f) institute, settle, or agree to settle any
litigation, action, proceeding, or arbitration related to the
Acquired Assets or the Business;
(g) make any commitments or contracts of any kind or
nature, or incur any obligations or liabilities exceeding
$25,000.00 in the aggregate, except in the ordinary course of
business;
(h) increase any salaries being paid to any employees
in excess of salaries being paid to them at the date hereof;
(i) make any loans to any officers or directors; or
(j) cancel or compromise any debt or claim, other
than adjustments made with respect to contracts for the
purchase of supplies, the sale of products or the rendering of
services in the ordinary course of business which adjustments
would not have a Material Adverse Effect;
(k) transfer or grant any rights under any material
concessions, leases, licenses, agreements, patents,
inventions, trademarks, trade names, copyrights, or with
respect to know-how;
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(l) enter into any transaction which would cause any
of the Seller's warranties and representations contained in
this Agreement not to be true and correct in all material
respects on and as of the Closing Date.
4.2 Access to Documents. From the date of this Agreement until the Closing
Date, the Seller will permit the Purchaser and its attorneys, accountants,
appraisers and other representatives access at all reasonable times to the
properties, files, books and records of Seller, as well as to all information
relating to its operations, financial condition, properties, taxes, contracts
and commitments.
4.3 Bulk Sales Act. Purchaser waives compliance with the bulk sale
provisions of the Michigan Uniform Commercial Code, MCLA 440.1101 et seq (the
"Bulk Sales Law"). Seller agrees to pay when due all claims of creditors which
could be asserted by reason of noncompliance with the Bulk Sales Law, and to
the extent Purchaser may be held liable for any claims of Seller's creditors by
reason of noncompliance with the Bulk Sales Law, Purchaser shall be indemnified
against any such loss in accordance with Section 10.
4.4 Further Actions. At the closing, the Seller will, at the request of the
Purchaser, execute and deliver to the Purchaser all such further assignments,
endorsements and such other documents as the Purchaser may reasonably request in
order to perfect the transfer, assignment and delivery to the Purchaser of the
Acquired Assets being sold hereunder.
4.5 EXCLUSIVITY. Seller grants to Purchaser the exclusive right to acquire
the Business and the Acquired Assets until June 30, 1998. Seller shall not (i)
solicit, initiate or encourage the submission of any proposal or offer
from any person relating to the acquisition of any capital stock or other voting
securities, or any substantial portion of the assets of, Seller (including any
acquisition structured as a merger, consolidation or share exchange) or (ii)
participate in any discussions or negotiations regarding, furnishing any
information with respect to, assist or participate in, or facilitate in any
other manner any effort or attempt by any person to do or seek any of the
foregoing. Seller will notify Purchaser immediately if any person makes any
proposal, offer, inquiry or contact with respect to any of the foregoing.
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COVENANTS OF THE PURCHASER. the Purchaser covenants and agrees that:
5.1 Conduct of Business. The Purchaser will not take any action which would
cause any of the Purchaser's warranties and representations contained in this
Agreement not to be true and correct in all material respects on and as of the
Closing Date.
5.2 Further Actions. The Purchaser will, at the request of the Seller,
execute and deliver to the Seller at the closing, all such further assignments,
endorsements and such other documents as the Seller may reasonably request in
order to consummate the transactions contemplated by this Agreement.
6 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PURCHASER. The obligations of the
Purchaser to consummate the transactions contemplated by this Agreement are
subject, at the Purchaser's option, to the satisfaction at or prior to the
Closing Date of each of the following conditions:
6.1 Correctness of Warranties and Representations. The warranties and
representations of the Seller contained in Section 2 of this Agreement shall be
true and correct in all material respects on and as at the Closing Date, with
the same force and effect as though the same had been made on and as of the
Closing Date, and the Seller shall have delivered to the Purchaser a certificate
to such effect, signed by an officer of the Seller, dated the Closing Date.
6.2 Compliance with Conditions. All of the terms, covenants and conditions of
this Agreement required to be complied with and performed by the Seller at or
prior to the Closing Date shall have been duly complied with and performed in
all material respects.
6.3 Opinion of Counsel for the Seller. The Purchaser shall have received an
opinion of Xxx, Xxxxxxx & Giarmarco, P.C., counsel for the Seller, dated the
Closing Date, in the form and to the effect set forth in Exhibit E annexed
hereto.
6.4 Absence of Legal Proceedings. No action or proceeding shall have been
instituted or affirmatively threatened before a court or any other governmental
body, or by any public authority or agency, seeking to restrict or prohibit the
sale by the Seller to the Purchaser of the Acquired Assets or the operation by
the
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Purchaser of the business presently conducted by Seller.
6.5 Absence of Material Damage to Property. Between the date of this Agreement
and the Closing Date there shall not have occurred, (i) any casualty
(irrespective of any insurance relating thereto) to any of Seller's properties
or assets as a result of which the monetary amount of damage or destruction
caused thereby aggregates twenty-five percent (25%) or more of the aggregate
book value shown on Seller's books for all of its fixed assets.
6.6 Delivery of Financial Statements. The Purchaser shall have received from the
Seller, as and when prepared by Seller, the unaudited balance sheets of Seller
as at each month end after December 31, 1997 and the related unaudited
statements of operations and retained earnings of Seller for each such period
then ended, including, in each case, the related notes and schedules thereto,
which financial statements shall fairly present (and delivery of which shall
constitute Seller's representation that they do fairly present) Seller's
financial position as at each such month end and its results of operations for
each such period then ended, shall have been prepared in accordance with
generally accepted accounting principles consistently applied, shall contain all
adjustments which are necessary to a fair statement of the results for the
interim periods presented.
6.7 No Change. Since December 31, 1997, no change in the Business or the
financial condition of the Business shall have occurred which has or will have a
Material Adverse Effect. 6.8 Certified Resolutions. The Purchaser shall have
received from the Seller certified copies of all resolutions adopted by the
Board of Directors of the Seller necessary in order to authorize the purchase of
the Acquired Assets pursuant to this Agreement.
7 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER. The obligations
of the Seller to consummate the transactions contemplated by this Agreement
are subject, at Seller's option, to the satisfaction at or prior to the
Closing Date of each of the following conditions:
7.1 Correctness of Warranties and Representations. The warranties and
representations of the Purchaser contained in Section 3 of this Agreement shall
be true and correct in all material respects on and as at the Closing Date, with
the same force and effect as though the same had been made on and as of the
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46
Closing Date, and the Purchaser shall have delivered to the Seller a certificate
to such effect, signed by an authorized officer of the Purchaser, dated the
Closing Date.
7.2 Compliance With Conditions. All of the terms, conditions and covenants of
this Agreement required to be complied with and performed by the Purchaser on or
prior to the Closing Date shall have been duly complied with and performed in
all material respects.
7.3 Opinion of Counsel for the Purchaser. Seller shall have received an opinion
of Butzel Long, counsel for the Purchaser, dated the Closing Date, in the form
and to the effect set forth in Exhibit F annexed hereto.
7.4 Absence of Legal Proceedings. No action or proceeding shall have been
instituted or affirmatively threatened before a court or any other governmental
body, or by any public authority or agency, seeking to restrict or prohibit the
sale by Seller to the Purchaser of the Acquired Assets or the operation by the
Purchaser of the business presently conducted by Seller.
7.5 Certified Resolutions. The Seller shall have received from the Purchaser
certified copies of all resolutions adopted by the Board of Directors of the
Purchaser necessary in order to authorize the purchase of the Acquired Assets
pursuant to this Agreement.
8 SIMULTANEOUS CLOSING. Purchaser has entered into an agreement to purchase all
outstanding shares of stock of ARS (the "Shares") immediately prior to the
Closing contemplated by this Agreement. In the event that for any reason
whatsoever Purchaser does not purchase the Shares contemporaneous with the
Closing of this transaction pursuant to the terms of the Stock Purchase
Agreement attached hereto as Exhibit G, then this transaction shall be null and
void and of no force or effect and all of the transfers and other actions taken
pursuant to this Agreement shall be rescinded and the parties shall be returned
to their same status as existed immediately prior to the Closing pursuant to
this Agreement and the transactions contemplated to sell and purchase as
evidenced hereunder shall be cancelled and of no further force or effect.
9 THE CLOSING.
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9.1 Closing and Closing Date. The closing hereunder (herein referred to as
the "CLOSING") shall take place at a mutually convenient location and at a
mutually convenient time simultaneously with the closing of the initial public
offering of CART's common stock, provided that all conditions to the obligations
of the Purchaser and of the Seller set forth, respectively, in Sections 6 and 7
hereof shall have been satisfied or waived. The date of the Closing is referred
to in this Agreement as the "CLOSING DATE". Notwithstanding any other provision
of this Agreement, if the Closing fails to occur by June 30, 1998, then, in such
event, Purchaser or Seller, in addition to any other rights it may have, shall
have the right, exercisable by written notice to the other, to terminate this
Agreement, such termination to be effective upon the date set forth in such
notice; provided, however, that nothing contained in this Section 9.1 shall
affect or impair any rights or obligations arising prior to or at the time of
termination of this Agreement, or that may arise by an event causing the
termination of this Agreement.
9.2 Proceedings at Closing.
9.2.1 All proceedings taken and all documents to be executed and delivered by
the parties at the Closing shall be deemed to have been taken and
executed simultaneously, and no proceedings shall be deemed taken nor
documents executed or delivered until all have been taken, executed and
delivered.
9.2.2 At the Closing, the Seller shall deliver or cause to be delivered to the
Purchaser the following:
(a) an appropriately executed general assignment and
xxxx of sale in the form attached hereto as Exhibit H ("Xxxx
of Sale") and such deeds, assignments and other instruments of
transfer relating to the Acquired Assets in form and substance
reasonably satisfactory to Purchaser and its counsel;
(b) such other documents as Purchaser or its counsel
may reasonably request to demonstrate satisfaction of the
conditions and compliance with the agreements set forth in
this Agreement;
(c) The certificate referred to in Section 6.1
hereof;
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(d) The opinion of counsel for the Seller referred to
in Section 6.3 hereof;
(e) XxXxx shall deliver payment for any shares
purchased pursuant to Section 1.8.5;
(f) XxXxx shall execute and deliver the Option
Agreement as referred to in Section 1.8.4 hereof.
9.2.3 At the Closing, the Purchaser shall deliver or cause to be delivered to
the Seller the following:
(a) The Purchase Price, in the form of the
Purchaser's certified check in the amount as set forth in
Section 1.8.1;
(b) The certificate referred to in Section 7.1
hereof;
(c) The opinion of counsel for the Purchaser referred
to in Section 7.3 hereof;
(d) The certified resolutions referred to in Section
7.5 hereof;
(e) To XxXxx certificates for any shares of stock
which XxXxx has elected to purchase pursuant to Section 1.8.5
hereof; and
(f) To XxXxx a duly executed Option Agreement as
referred to in Section 1.8.4 hereof.
10 INDEMNIFICATION.
10.1 Indemnification of Purchaser by Seller. The Seller covenants and agrees
that it will indemnify and hold the Purchaser and its officers, directors,
employees and agents harmless from and against any and all losses, damages,
liabilities, obligations, and reasonable costs and expenses incurred or
sustained by the Purchaser by reason or arising out of any material breach of
any warranty, representation, covenant, agreement or obligation of the Seller
contained in this Agreement, including, but not limited to, liabilities and
debts related to the Business (other than the Assumed Liabilities), failure to
comply with applicable bulk sales
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or similar laws, and any other liability (other than an Assumed Liability)
respecting the Business or any of the Acquired Assets which is attributable to
any period prior to the Closing Date.
10.2 Indemnification of Seller by Purchaser. The Purchaser covenants and agrees
that it will indemnify and hold the Seller harmless from and against any and all
losses, damages, liabilities, obligations, and reasonable costs and expenses
incurred or sustained by the Seller by reason or arising out of any material
breach of any warranty, representation, covenant, agreement or obligation of the
Purchaser contained in this Agreement.
10.3 Claims for Indemnity. Promptly upon notice of any claim, suit or demand
which any person entitled to indemnity hereunder (the "INDEMNITEE") believes
will give rise to indemnity by the Seller or the Purchaser, as the case may be
(the "INDEMNITOR"), under Sections 10.1 or 10.2, the Indemnitee shall give the
Indemnitor written notice thereof, and the Indemnitor shall defend against any
such claim, suit or demand, in its name or in the name of the Indemnitee, as the
case may be, at the Indemnitor's expense and with counsel of its own choice at
its own expense. The Indemnitor shall have no obligation or liability to
indemnify with respect to, or in connection with, any claim, suit or demand
which shall be paid, settled or compromised by the Indemnitee without the prior
written consent of the Indemnitor. No right or remedy conferred in this Section
10.3 is intended to be exclusive of any other right or remedy available, now or
hereafter, at law or in equity or otherwise, to the parties hereto.
10.4 Right to Offset. To the extent that the Purchaser has suffered any loss or
losses, damages, liabilities or obligations by reason of any breach of any
warranty, representation, covenant, agreement or obligation of the Seller
contained in this Agreement, the Purchaser shall have the right to offset any
such amounts against any amounts due and owing Seller.
11 ARBITRATION. In the event of any dispute among CART and Seller under this
Agreement which they are unable to resolve, including but not limited to whether
the criteria as set forth in Section 1.8.2 has been met, or whether the
requirements as set forth in Section 3.4 have been met, the dispute shall be
submitted to arbitration at the request of any party. The party requesting
arbitration shall so notify the other party(ies) in writing and shall specify
the question or questions to be arbitrated. Within
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ten (10) days after receipt of such notification, CART shall select one
arbitrator and Seller shall select one arbitrator and each shall give the name
and address thereof to the other party. The two arbitrators shall select a third
disinterested arbitrator to complete a panel consisting of three arbitrators. In
the event one party fails to select an arbitrator within the required time
period, the arbitrator who has been selected may select one disinterested
arbitrator and the two arbitrators may proceed to resolve the dispute. Within
ten (10) days of the selection of the second arbitrator, or third arbitrator, as
the case may be, the panel of arbitrators shall schedule a hearing on the
disputed issues to be held within thirty (30) days after the selection of the
final arbitrators. The arbitrators shall render their written decision within
thirty (30) days of the last day of the hearing. The decision of a majority of
the arbitrators shall be final and conclusive on all parties. Such decision
shall be entered as a final judgment in a court of competent jurisdiction and
shall be a final non-appealable order. The arbitration shall be conducted in
accordance with the commercial arbitration rules of the American Arbitration
Association except as specified herein. The arbitration shall take place in
Troy, Michigan or such other location as the parties may agree. The arbitrator
shall substantially comply with the Michigan rules of evidence; shall grant
essential but limited discovery; shall provide for the exchange of witness lists
and exhibit copies; and shall conduct a pretrial conference and consider
dispositive motions. Each party shall have the right to request the arbitrator
to make findings of specific factual issues. The arbitrator shall decide all
issues and disputes in conformity with applicable law and shall have no
authority to alter the terms of this Agreement. Each party shall cooperate with
the arbitrator to comply with procedural time requirements and the failures of
either to do so shall entitle the arbitrator to extend the arbitration
proceedings accordingly and to impose sanctions on the party responsible for the
delay, payable to the other party. If the arbitrator determines that a party has
failed to act in good faith or with a reasonable basis in connection with the
dispute, the arbitrator shall be entitled to award, against the party so acting,
the fees and expenses of the arbitration and the costs and expenses incurred by
the other party in connection with the arbitration, included but not limited to
reasonable attorneys' fees. In the absence of such a finding, the fees and
expenses of the arbitration shall be borne equally by Purchaser and Seller
(except that each party shall be solely responsible for the fees and expenses of
its counsel and other
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professionals and experts retained by it).
12 MISCELLANEOUS.
12.1 Announcements. All announcements relating to the transactions contemplated
hereby shall be mutually approved by, and shall not be released except with the
mutual consent of the parties thereto, except where immediate disclosure, in the
opinion of counsel for the party concerned, is required by law.
12.2 Brokerage. The Seller warrants and represents to the Purchaser that it has
not incurred any obligation or liability, contingent or otherwise, for brokerage
or finder's fees or agent's commissions or other like payment in connection with
this Agreement or the transactions contemplated hereby. The Seller covenants and
agrees to indemnify and hold the Purchaser harmless from and against any such
obligation or liability (and any reasonable expense or expenses incurred in
investigating or defending the same, including counsel fees) based in any way on
any agreements, arrangements or understandings claimed to have been made by the
Seller with any third party. The Purchaser warrants and represents to the Seller
that it has not incurred any obligation or liability, contingent or otherwise,
for brokerage or finder's fees or agent's commissions or other like payment in
connection with this Agreement or the transactions contemplated hereby. The
Purchaser covenants and agrees to indemnify and hold the Seller harmless from
and against any such obligation or liability (and any reasonable expense or
expenses incurred in investigating or defending the same, including counsel
fees) based in any way on any agreements, arrangements or understandings claimed
to have been made by the Purchaser with any third party.
12.3 Survival of Warranties and Representations. Each party hereto covenants and
agrees that its warranties and representations contained in this Agreement and
in any document delivered or to be delivered pursuant hereto shall survive the
Closing Date hereunder until December 31, 2000.
12.4 Expenses. Whether or not the transactions contemplated by this Agreement
are consummated, each of the parties hereto shall pay the fees and expenses of
its counsel, accountants, other experts and all other expenses incurred by such
party incident to the negotiation, preparation and execution of this Agreement.
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12.5 Notices. All notices, requests, demands and other communications which
are required or permitted to be given under this Agreement shall be in writing
and shall be deemed to have been duly given upon the delivery or mailing
thereof, as the case may be, if delivered personally or sent by registered or
certified mail, return receipt requested, postage prepaid:
(a) If to the Seller, to: BP Automotive, Ltd.
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxx, XX 00000-0000
with a copy to: Xxxxx X. Xxxxxx, Esq.
Xxx, Xxxxxxx & Xxxxxxxxx,
X.X. - Xxxxx 000
000 Xxxx Xxx Xxxxxx Xxxx
Xxxx, XX 00000-0000
(b) If to the Purchaser, to: Championship Auto Racing
Teams, Inc.
000 X. Xxx Xxxxxx Xxxx,
Xxxxx 000
Xxxx, XX 00000-0000
with a copy to: Xxxx Xxxxxx, Esq.
Capital Square, Suite 1800
00 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
with a copy to: Xxxxxx X.Xxxxxx, Esquire
Butzel Long
000 X. Xxxxxxxxx,
Xxxxx 000
Xxxxxxx, M 48226-4430
or to such other address as either the Seller or the Purchaser shall have
specified by notice in writing to the other.
12.6 Waivers. Either Seller or the Purchaser may, by written notice to the
other, (a) extend the time for the performance of any of the obligations or
other actions of the other; (b) waive any inaccuracies in this Agreement or in
any document delivered pursuant hereto by the other; (c) waive compliance with
any of the terms, conditions or covenants required to be complied with by the
other hereunder; and (d) waive or modify performance of any of the
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53
obligations of the other hereunder. The waiver by any party hereto of a breach
of any provision of this Agreement shall not operate or be construed as a waiver
of any other or subsequent breach.
12.7 Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof.
12.8 Binding Effect; Benefits. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and assigns.
Nothing in this Agreement, expressed or implied, is intended to confer on any
person other than the parties hereto, or their respective successors and
assigns, any rights, remedies, obligations or liabilities.
12.9 Fulfillment of Conditions. The parties hereby covenant and agree to use
their reasonable efforts to fulfill all of the terms and conditions contained in
this Agreement, and to take such action as may be reasonably required to obtain
all necessary consents, permits, authorizations and approvals of third parties
which are conditions of this Agreement.
12.10 Law Governing. This Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan, without regard to choice of
law principles which would require the application of the laws of any other
jurisdiction.
12.11 Headings. Headings on the Articles and Sections in this Agreement are for
reference purposes only and shall not be deemed to have any substantive effect.
12.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall be deemed to be one and the same instrument.
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IN WITNESS WHEREOF, the Seller has caused this Agreement to be duly
executed in its corporate name by one of its duly authorized officers, and the
Purchaser has caused this Agreement to be duly executed in its corporate name by
one of its duly authorized officers, all as of the date first above written.
CHAMPIONSHIP AUTO RACING
TEAMS, INC., a Delaware
corporation
-------------------------------------------------------------------------------
By: /s/ XXXXXX XXXXX
/s/ XXXXX X. XXXXXX -----------------------------
-------------------------
/s/ XXXXXX X. XXXXXX Its: Chairman
----------------------------------------------------------------- --------
& CEO
-------------------------------------------------------------------------------
BP AUTOMOTIVE, LTD.,
a Michigan corporation
------------------------------------------------------------------------------
By: /s/ XXXXX XXXXXX
-----------------------------
-------------------------
Its: President
---------------------------------------------------------------- ---------
-------------------------------------------------------------------------------
Exhibits:
A: Personal Property
B: Lola Cars/ARS Agreement
C: Allocation of Purchase Price
D: Disclosure Schedule
E: Xxx, Xxxxxxx & Giarmarco, P.C. Opinion
F: Butzel Long's Opinion
G: ARS/CART Stock Purchase Agreement
H: Xxxx of Sale of Assets
29
