EXHIBIT 10.17
STOCK REPURCHASE AGREEMENT
THIS STOCK REPURCHASE AGREEMENT (this "Agreement"), dated as of May 20,
2003, by and between LKQ Corporation, a Delaware corporation (the "Company"),
and AutoNation, Inc., a Delaware corporation ("Stockholder").
WHEREAS, Stockholder is the owner of 2,867,673 shares of Common Stock, par
value $0.01 per share, of the Company ("Common Stock"); and
WHEREAS, the Company has agreed to repurchase certain of such shares from
Stockholder on the terms set forth herein; and
WHEREAS, the parties hereto wish to set forth certain agreements between
them relating to such repurchase.
NOW THEREFORE, the parties hereto covenant and agree as follows:
1. REPURCHASE OF SHARES. Immediately upon the execution hereof, the
Company shall repurchase 1,500,000 shares of Common Stock (the "Shares") from
Stockholder in exchange for the payment by the Company to Stockholder of Ten
Million Five Hundred Thousand Dollars ($10,500,000) in cash by wire transfer of
immediately available funds.
2. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Stockholder hereby
represents and warrants to the Company as follows:
(a) Stockholder is the record and beneficial owner of the Shares and
has good and valid title to the Shares, free and clear of any pledge, lien,
security interest, charge, claim, equity, option, proxy, right of first refusal
or other limitation on disposition or encumbrance of any kind (other than as set
forth in the Company's Stockholders Agreement dated June 19, 1998 (the
"Stockholders Agreement")). Stockholder has all necessary corporate power and
authority to execute and deliver this Agreement and to consummate the
transaction contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transaction contemplated hereby by Stockholder have
been duly authorized by all necessary corporate action on the part of
Stockholder. This Agreement has been duly executed and delivered by Stockholder
and, assuming its due authorization, execution and delivery by the Company,
constitutes a legal, valid and binding obligation of Stockholder, enforceable
against Stockholder in accordance with its terms.
(b) The execution and delivery of this Agreement by Stockholder do
not, and the performance of this Agreement by Stockholder will not, (i) conflict
with or violate the Certificate of Incorporation or Bylaws of Stockholder, (ii)
conflict with or violate any law, rule, regulation, order, judgment or decree
applicable to Stockholder or by which Stockholder or any of its properties
(including the Shares) is bound or affected, or (ii) conflict with, violate or
result in any breach of or constitute a default (or an event that with notice or
lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any of the property or assets (including the Shares) of
Stockholder pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which Stockholder is a party or by which it or any of its properties is bound
or affected.
(c) The execution and delivery of this Agreement by Stockholder do
not, and the performance of this Agreement by Stockholder will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority, domestic or foreign, or other
third party (other than as required by the Stockholders Agreement).
(d) Stockholder acknowledges that the Company has disclosed to the
Stockholder the Company's plans to pursue an initial public offering of the
Company's common stock (the "Proposed IPO"), including the fact that the Company
has had an initial organizational meeting with underwriters concerning the
proposed IPO. Stockholder further acknowledges that, while there can be no
assurance that the Proposed IPO will occur, or as to what the price will be,
such IPO price could be substantially higher than the purchase price under this
Agreement. Stockholder confirms that it has been given an opportunity to make,
and has in fact made, any other inquiries of the Company and its representatives
that Stockholder desires to make regarding the Proposed IPO and that each such
inquiry has been answered by the Company to the satisfaction of Stockholder.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to Stockholder as follows:
(a) The Company is a corporation duly organized and validly existing
under the laws of the State of Delaware. The Company has all necessary corporate
power and authority to execute and deliver this Agreement and to consummate the
transaction contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transaction contemplated hereby by the Company have
been duly authorized by all necessary corporate action on the part of the
Company. This Agreement has been duly executed and delivered by the Company and,
assuming its due authorization, execution and delivery by Stockholder,
constitutes a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms.
(b) The execution and delivery of this Agreement by the Company do
not, and the performance of this Agreement by the Company will not, (i) conflict
with or violate the Certificate of Incorporation or Bylaws of the Company, (ii)
conflict with or violate any law, rule, regulation, order, judgment or decree
applicable to the Company or by which the Company or any of its properties is
bound or affected, or (iii) conflict with, violate or result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any of the property or assets
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of the Company pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which the Company is a party or by which it or any of its properties is bound
or affected.
(c) The execution and delivery of this Agreement by the Company do
not, and the performance of this Agreement by the Company will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority, domestic or foreign, or other
third party (other than as required by the Stockholders Agreement).
4. [RESERVED]
5. NOTICES. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made as of the date delivered, mailed or transmitted, and shall be effective
upon receipt, if delivered personally, mailed by registered or certified mail
(postage prepaid, return receipt requested) or by overnight courier to the
parties at the following addresses (or at such other address for a party as
shall be specified by like changes of address) or sent by electronic
transmission to the telecopier number specified below:
(a) If to the Company:
LKQ Corporation
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: General Counsel
Telecopier No: 000-000-0000
(b) If to Stockholder:
AutoNation, Inc.
000 X.X. 0xx Xxxxxx
00xx Xxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attention: General Counsel
Telecopier No: 000-000-0000
6. HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation or this Agreement.
7. SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any
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manner materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable or being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
8. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
of the parties and supersedes all prior agreements and undertakings, both
written and oral, between the parties, or any of them, with respect to the
subject matter hereof; provided, however, that this Agreement is not intended to
modify or amend, and should not be deemed to modify or amend, the Stockholders
Agreement.
9. ASSIGNMENT. This Agreement shall not be assigned by operation of
law or otherwise.
10. PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
11. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Illinois applicable to contracts
executed and to be performed entirely within that state.
12. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
LKQ CORPORATION AUTONATION, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice-President Title: Senior Vice-President, General Counsel
and Secretary
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