----------
STOCK EXCHANGE AGREEMENT
by and among
KENWICK INDUSTRIES, INC.
as Acquiror
AUTOMAX INTERNATIONAL, INC.,
as Acquiree
AUTOMAX USA, INC.
as Acquiree
AUTOMAX USA FINANCE, INC.
as Acquiree
and
XXXXXX XXXXXXX
the Sole Shareholder of
AUTOMAX INTERNATIONAL, INC.
AUTOMAX USA, INC.
and
AUTOMAX USA FINANCE, INC.
as more particularly set forth herein
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August 20, 1998
DRAFT #3
August 20, 1998
STOCK EXCHANGE AGREEMENT
THIS STOCK EXCHANGE AGREEMENT (the "Agreement") is made and entered into
this 20th day of August, 1998 by and among KENWICK INDUSTRIES, INC., a Florida
corporation (hereinafter referred to as "KENWICK"), AUTOMAX USA, INC., a Florida
corporation (hereinafter referred to as "AUTO"), AUTOMAX INTERNATIONAL, INC., a
Florida corporation (hereinafter referred to as "INTERNATIONAL"), AUTOMAX USA
FINANCE, INC., a Florida corporation (hereinafter referred to as "FINANCE")
(collectively hereinafter referred to as "AUTOMAX"), and Xxxxxx Xxxxxxx, the
sole shareholder of AUTOMAX (hereinafter referred to as the "AUTOMAX
Shareholder").
RECITALS:
A. The AUTOMAX Shareholder owns all of the issued and outstanding shares
of the capital stock of AUTOMAX.
B. KENWICK is willing to acquire all of the issued and outstanding capital
stock of AUTOMAX, making AUTOMAX a wholly-owned subsidiary of KENWICK, and the
AUTOMAX Shareholders desire to exchange all of their shares of AUTOMAX's capital
stock for authorized but unissued shares of Common Stock, no par value (the
"Common Stock") of KENWICK as hereinafter provided.
C. It is the intention of the parties hereto that: (i) KENWICK shall
acquire all of the issued and outstanding capital stock of AUTOMAX in exchange
solely for the consideration set forth below (the "Exchange"); and (ii) the
Exchange shall qualify as a transaction in securities exempt from registration
or qualification under the Securities Act of 1933, as amended, and under the
applicable securities laws of each jurisdiction where the AUTOMAX Shareholders
reside.
D. It is the intention of the parties that the Exchange qualify as a
"tax-free" transaction within the meaning of Section 368 of the Internal Revenue
Code of 1986.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties hereto
agree as follows:
SECTION 1. PURCHASE OF SHARES
1.1 Acquisition of Shares. KENWICK and the AUTOMAX Shareholders hereby
agree that the AUTOMAX Shareholders shall, on the Closing Date (as hereinafter
defined), exchange all of the issued and outstanding shares of capital stock of
AUTOMAX (the "AUTOMAX Shares") and KENWICK shall issue to the AUTOMAX
Shareholders an aggregate of One Million (1,000,000) Shares of
DRAFT #3
August 20, 1998
KENWICK's Common Stock (the "KENWICK Shares"). The allocation of the KENWICK
Shares to the AUTOMAX Shareholders is set forth on Exhibit A hereto.
1.2 Delivery of AUTOMAX Shares. On the Closing Date, the AUTOMAX
Shareholders will deliver to KENWICK the certificates representing the AUTOMAX
Shares, duly endorsed (or with executed stock powers) so as to make KENWICK the
sole owner thereof. Simultaneously, KENWICK will deliver certificates
representing the KENWICK Shares to the AUTOMAX Shareholders.
1.3 Investment Intent. The KENWICK Shares have not been registered under
the Securities Act of 1933, as Amended (the "Act"), and may not be resold unless
the KENWICK Shares are registered under the Act or an exemption from such
registration is available. The AUTOMAX Shareholders represent and warrant that
each of them is acquiring the KENWICK Shares for his, her or its own account,
for investment, and not with a view to the sale or distribution of the KENWICK
Shares. Each certificate representing the KENWICK Shares will have a legend
thereon incorporating language as follows:
"The shares represented by this certificate have not been registered under
the Securities Act of 1933, as amended (the "Act"). The shares have been
acquired for investment and may not be sold or transferred in the absence
of an effective Registration Statement for the shares under the Act unless
in the opinion of counsel satisfactory to the Company, registration is not
required under the Act."
SECTION 2. REPRESENTATIONS AND WARRANTIES OF AUTOMAX AND AUTOMAX SHAREHOLDERS
AUTOMAX and the AUTOMAX Shareholders hereby represent and warrant as
follows:
2.1 Organization and Good Standing. AUTOMAX is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida, and is entitled to own or lease its properties and to carry on its
business as and in the places where such properties are now owned, leased or
operated and such business is now conducted. AUTOMAX does not have any
subsidiaries. AUTOMAX is duly licensed or qualified and in good standing as a
Florida corporation where the character of the properties owned by AUTOMAX or
the nature of the business transacted by it make such license or qualification
necessary.
2.2 Ownership of AUTOMAX Shares. The AUTOMAX Shareholders represent as to
his, her or their respective ownership of AUTOMAX Shares, that he, she or they
are the owner of record and
DRAFT #3
2 August 20, 1998
beneficially of all of the shares of capital stock of AUTOMAX listed in their
respective names on Exhibit A hereto, all of which shares are free and clear of
all rights, claims, liens and encumbrances, and have not been sold, pledged,
assigned or otherwise transferred except pursuant to this Agreement. There are
no outstanding subscriptions, rights, options, warrants or other agreements
obligating either AUTOMAX or the AUTOMAX Shareholders to issue, sell or transfer
any stock or other securities of AUTOMAX.
2.3 Financial Statements, Books and Records. The unaudited balance sheet
of AUTOMAX as at June 30, 1998, and statements of operations for the periods
then ended previously delivered to AUTOMAX were prepared in accordance with
generally accepted accounting principles applied on a consistent basis with
prior periods, and such financial statements fairly represent the financial
position of AUTOMAX as at such dates and the results of its operations for the
periods then ended. The unaudited balance sheet of AUTOMAX as at June 30, 1998,
and statements of operations for the periods then ended previously delivered to
AUTOMAX were compiled but were not prepared in accordance with generally
accepted accounting principles applied on a consistent basis with prior periods.
However, such compiled financial statements fairly represent the financial
position of AUTOMAX as at such dates and the results of its operations for the
periods then ended.
2.4 No Material Adverse Changes. Since the date of the Balance Sheet there
has not been:
(i) any material adverse change in the assets, operations, condition
(financial or otherwise) or prospective business of AUTOMAX;
(ii) any damage, destruction or loss materially affecting the
assets, prospective business, operations or condition (financial or otherwise)
of AUTOMAX, whether or not covered by insurance;
(iii) any declaration, setting aside or payment of any dividend or
distribution with respect to any redemption or repurchase of AUTOMAX's capital
stock;
(iv) any sale of an asset (other than in the ordinary course of
business) or any mortgage or pledge by AUTOMAX of any properties or assets; or
(v) adoption of any pension, profit sharing, retirement, stock
bonus, stock option or similar plan or arrangement.
2.5 Compliance with Laws. AUTOMAX has complied with all federal, state,
county and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees
DRAFT #3
3 August 20, 1998
applicable to it or its business which, if not complied with, would materially
and adversely affect the business of AUTOMAX.
2.6 No Breach. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby will not:
(i) violate any provision of the Charter or By-Laws of AUTOMAX;
(ii) violate, conflict with or result in the breach of any of the
terms of, result in a material modification of, otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any contract or other agreement to
which AUTOMAX is a party or by or to which it or any of its assets or properties
may be bound or subject;
(iii) violate any order, judgment, injunction, award or decree of
any court, arbitrator or governmental or regulatory body against, or binding
upon, AUTOMAX, or upon the properties or business of AUTOMAX; or
(iv) violate any statute, law or regulation of any jurisdiction
applicable to the transactions contemplated herein which could have a materially
adverse effect on the business or operations of AUTOMAX.
2.7 Actions and Proceedings. There is no outstanding order, judgment,
injunction, award or decree of any court, governmental or regulatory body or
arbitration tribunal against or involving AUTOMAX. There is no action, suit or
claim or legal, administrative or arbitral proceeding or (whether or not the
defense thereof or liabilities in respect thereof are covered by insurance)
pending or threatened against or involving AUTOMAX or any of its properties or
assets.
2.8 Brokers or Finders. No broker's or finder's fee will be payable by
AUTOMAX in connection with the transaction contemplated by this Agreement, nor
will any such fee be incurred as a result of any actions by AUTOMAX or the
AUTOMAX Shareholders.
2.9 Real Estate. Attached as Exhibit "B".
2.10 Tangible Assets. AUTOMAX has full title and interest in all
machinery, equipment, furniture, leasehold improvements, fixtures, vehicles,
structures, owned or leased by AUTOMAX, any related capitalized items or other
tangible property material to the business of AUTOMAX (the "Tangible Assets").
AUTOMAX holds all
DRAFT #3
4 August 20, 1998
rights, title and interest in all the Tangible Assets owned by it on the Balance
Sheet or acquired by it after the date of the Balance Sheet free and clear of
all liens, pledges, mortgages, security interests, conditional sales contracts
or any other encumbrances except as set forth on Schedule 2.10.
2.11 Liabilities. As of the Closing Date, AUTOMAX will not have any
Liabilities, other than Liabilities fully and adequately reflected on the
Balance Sheet, except for Liabilities incurred in the ordinary course of
business. AUTOMAX does not have any material direct or indirect indebtedness,
liability, claim, loss, damage, deficiency, obligation or responsibility, known
or unknown, fixed or unfixed, liquidated or unliquidated, secured or unsecured,
accrued or absolute, contingent or otherwise, (all of the foregoing collectively
defined to as "Liabilities"), which were not fully, fairly and adequately
reflected on the Balance Sheet.
2.12 Operations of AUTOMAX. Except as set forth on Schedule 2.12, from the
date of the Balance Sheet and through the Closing Date hereof AUTOMAX has not:
(i) incurred any indebtedness for borrowed money;
(ii) declared or paid any dividend or declared or made any
distribution of any kind to any shareholder, or made any direct or indirect
redemption, retirement, purchase or other acquisition of any shares in its
capital stock;
(iii) made any material loan or advance to any shareholder, officer,
director, employee, consultant, agent or other representative or made any other
material loan or advance otherwise than in the ordinary course of business;
(iv) except in the ordinary course of business, incurred or assumed
any material indebtedness or liability (whether or not currently due and
payable);
(v) disposed of any assets of AUTOMAX except in the ordinary course
of business; or
(vi) issued any equity securities or rights to acquire such equity
securities.
2.13 Capitalization. The authorized capital stock of AUTO consists of One
Thousand (1,000) shares of common stock of which zero (0) shares are presently
issued and outstanding. The authorized capital stock of INTERNATIONAL consists
of One Thousand (1,000) shares of common stock of which zero (0) are presently
issued and outstanding. The authorized capital stock of FINANCE consists of One
Thousand (1,000) shares of common stock of which zero (0) are presently issued
and outstanding. Neither AUTOMAX nor
DRAFT #3
5 August 20, 1998
the AUTOMAX Shareholder has granted, issued or agreed to grant, issue or make
available any warrants, options, subscription rights or any other commitments of
any character relating to the issued or unissued shares of capital stock of
AUTOMAX.
2.14 Authority to Execute and Perform Agreements. AUTOMAX has the full
legal right and power and all authority and approval required to enter into,
execute and deliver this Agreement and to perform fully its obligations
hereunder. This Agreement has been duly executed and delivered and is the valid
and binding obligation of AUTOMAX enforceable in accordance with its terms,
except as may be limited by bankruptcy, moratorium, insolvency or other similar
laws generally affecting the enforcement of creditors' rights. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby and the performance by AUTOMAX of this Agreement, in accordance with its
respective terms and conditions will not:
(i) require the approval or consent of any governmental or
regulatory body, the shareholders of AUTOMAX, or the approval or consent of any
other person;
(ii) conflict with or result in any breach or violation of any of
the terms and conditions of, or constitute (or with any notice or lapse of time
or both would constitute) a default under, any order, judgment or decree
applicable to AUTOMAX, or any instrument, contract or other agreement to which
AUTOMAX is a party or by or to which AUTOMAX is bound or subject; or
(iii) result in the creation of any lien or other encumbrance on the
assets or properties of AUTOMAX.
2.15 Full Disclosure. No representation or warranty by AUTOMAX or the
AUTOMAX Shareholders in this Agreement or in any document or schedule to be
delivered by them pursuant hereto, and no written statement, certificate or
instrument furnished or to be furnished to KENWICK pursuant hereto or in
connection with the negotiation, execution or performance of this Agreement
contains or will contain any untrue statement of a material fact or omits or
will omit to state any fact necessary to make any statement herein or therein
not materially misleading or necessary to a complete and correct presentation of
all material aspects of the businesses of AUTOMAX. The AUTOMAX Shareholders
acknowledge that they have received and read a copy of the Company's
Confidential Private Offering Memorandum dated February 9, 1998.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF KENWICK
KENWICK hereby represents and warrants to AUTOMAX and the AUTOMAX
Shareholders as follows:
DRAFT #3
6 August 20, 1998
3.1 Organization and Good Standing. KENWICK is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida, and is entitled to own or lease its properties and to carry on its
business as and in the places where such properties are now owned, leased, or
operated and such business is now conducted. The authorized capital stock of
KENWICK consists of 2,904,965 shares of Common Stock issued and outstanding, of
which 223,736 shares are presently so-called free trading shares and not subject
to any investment restrictions. KENWICK is duly licensed or qualified and in
good standing as a Florida corporation where the character of the properties
owned by KENWICK or the nature of the business transacted by it make such
license or qualification necessary.
3.2 The KENWICK Shares. The KENWICK Shares to be issued to the AUTOMAX
Shareholders have been or will have been duly authorized by all necessary
corporate and shareholder actions and, when so issued in accordance with the
terms of this Agreement, will be validly issued, fully paid and non-assessable.
3.3 Financial Statements, Books and Records. The audited balance sheet of
KENWICK as at December 31, 1997, and statements of operations for the periods
then ended previously delivered to AUTOMAX were prepared in accordance with
generally accepted accounting principles applied on a consistent basis with
prior periods, and such financial statements fairly represent the financial
position of KENWICK as at such dates and the results of its operations for the
periods then ended.
3.4 No Material Adverse Changes. Since the date of the Balance Sheet there
has not been:
(i) any material adverse change in the assets, operations, condition
(financial or otherwise) or prospective business of KENWICK;
(ii) any damage, destruction or loss materially affecting the
assets, prospective business, operations or condition (financial or otherwise)
of KENWICK, whether or not covered by insurance;
(iii) any declaration, setting aside or payment of any dividend or
distribution with respect to any redemption or repurchase of KENWICK's capital
stock;
(iv) any sale of an asset (other than in the ordinary course of
business) or any mortgage or pledge by KENWICK of any properties or assets; or
(v) adoption of any pension, profit sharing, retirement, stock
bonus, stock option or similar plan or arrangement.
DRAFT #3
7 August 20, 1998
3.5 Compliance with Laws. KENWICK has complied with all federal, state,
county and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to their businesses which, if not
complied with, would materially and adversely affect the business of KENWICK or
the trading market for the shares of KENWICK's Common Stock.
3.6 No Breach. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby will not:
(i) violate any provision of the Articles of Incorporation or
By-Laws of KENWICK;
(ii) violate, conflict with or result in the breach of any of the
terms of, result in a material modification of, otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any contract or other agreement to
which KENWICK is a party or by or to which it or any of its assets or properties
may be bound or subject;
(iii) violate any order, judgment, injunction, award or decree of
any court, arbitrator or governmental or regulatory body against, or binding
upon, KENWICK or upon the securities properties or business of KENWICK; or
(iv) violate any statute, law or regulation of any jurisdiction
applicable to the transactions contemplated herein.
3.7 Actions and Proceedings. There is no outstanding order, judgment,
injunction, award or decree of any court, governmental or regulatory body or
arbitration tribunal against or involving KENWICK. There is no action, suit or
claim or legal, administrative or arbitral proceeding or (whether or not the
defense thereof or liabilities in respect thereof are covered by insurance)
pending or threatened against or involving KENWICK or any of its properties or
assets. Except as set forth on Schedule 3.7, there is no fact, event or
circumstances that may give rise to any suit, action, claim, investigation or
proceeding.
3.8 Brokers or Finders. No broker's or finder's fee will be payable by
KENWICK in connection with the transaction contemplated by this Agreement, nor
will any such fee be incurred as a result of any actions by KENWICK.
3.9 Liabilities. KENWICK does not have any direct or indirect
indebtedness, liability, claim, loss, damage, deficiency, obligation or
responsibility, known or unknown, fixed or unfixed, liquidated or unliquidated,
secured or unsecured, accrued or absolute, contingent or otherwise, including,
without limitation,
DRAFT #3
8 August 20, 1998
any liability on account of taxes, any other governmental charge or lawsuit (all
of the foregoing collectively defined to as "Liabilities"), which were not
fully, fairly and adequately reflected on the December 31, 1997 Balance Sheet.
As of the Closing Date, KENWICK will not have any Liabilities, other than
Liabilities fully and adequately reflected on the December 31, 1997 Balance
Sheet, except for Liabilities incurred in the ordinary course of business.
3.10 Listing of Shares. KENWICK's shares of Common Stock are traded on
over-the-counter Bulletin Board under the symbol "KWIN." KENWICK is not subject
to the periodic reporting responsibilities under the Securities Exchange Act of
1934.
3.11 Operations of KENWICK. Except as set forth on Schedule 3.11, since
December 31, 1997, and through the Closing Date hereof, KENWICK has not:
(i) incurred any indebtedness for borrowed money;
(ii) declared or paid any dividend or declared or made any
distribution of any kind to any shareholder, or made any direct or indirect
redemption, retirement, purchase or other acquisition of any shares in its
capital stock;
(iii) made any loan or advance to any shareholder, officer,
director, employee, consultant, agent or other representative or made any other
loan or advance otherwise than in the ordinary course of business;
(iv) except in the ordinary course of business, incurred or assumed
any indebtedness or liability (whether or not currently due and payable);
(v) disposed of any assets of KENWICK except in the ordinary course
of business; or
(vi) issued any equity securities or rights to acquire such equity
securities except as contemplated by the Stock Purchase Agreement.
3.12 Authority to Execute and Perform Agreements. KENWICK has the full
legal right and power and all authority and approval required to enter into,
execute and deliver this Agreement and to perform fully its obligations
hereunder. This Agreement has been duly executed and delivered and is the valid
and binding obligation of KENWICK enforceable in accordance with its terms,
except as may be limited by bankruptcy, moratorium, insolvency or other similar
laws generally affecting the enforcement of creditors' rights. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby and the performance by KENWICK
DRAFT #3
9 August 20, 1998
of this Agreement, in accordance with its respective terms and conditions will
not:
(i) require the approval or consent of any governmental or
regulatory body, the shareholders of KENWICK, or the approval or consent of any
other person;
(ii) conflict with or result in any breach or violation of any of
the terms and conditions of, or constitute (or with any notice or lapse of time
or both would constitute) a default under, any order, judgment or decree
applicable to KENWICK, or any instrument, contract or other agreement to which
KENWICK is a party or by or to which KENWICK is bound or subject; or
(iii) result in the creation of any lien or other encumbrance on the
assets or properties of KENWICK.
3.13 Full Disclosure. No representation or warranty by KENWICK in this
Agreement or in any document or schedule to be delivered by it pursuant hereto,
and no written statement, certificate or instrument furnished or to be furnished
to AUTOMAX or the AUTOMAX Shareholders pursuant hereto or in connection with the
execution or performance of this Agreement contains or will contain any untrue
statement of a material fact or omits or will omit to state any fact necessary
to make any statement herein or therein not materially misleading or necessary
to a complete and correct presentation of all material aspects of the business
of KENWICK.
SECTION 4. COVENANTS
4.1 Corporate Examinations and Investigations. Prior to the Closing Date,
the parties acknowledge that they have been entitled, through their employees
and representatives, to make such investigation and verification of the assets,
properties, business and operations, books, records and financial condition of
the other, including communications with suppliers, vendors and customers, as
they each may reasonably require. No investigation by a party hereto shall,
however, diminish or waive in any way any of the representations, warranties,
covenants or agreements of the other party under this Agreement. Consummation of
this Agreement shall be subject to the fulfillment of due diligence procedures
to the reasonable satisfaction of each of the parties hereto and their
respective counsel.
4.2 Expenses. Each party hereto agrees to pay its own costs and expenses
incurred in negotiating this Agreement and consummating the transactions
described herein.
4.3 Further Assurances. The parties shall execute such documents and other
papers and take such further actions as may be
DRAFT #3
10 August 20, 1998
reasonably required or desirable to carry out the provisions hereof and the
transactions contemplated hereby. Each such party shall use its best efforts to
fulfill or obtain the fulfillment of the conditions to the Closing, including,
without limitation, the execution and delivery of any documents or other papers,
the execution and delivery of which are necessary or appropriate to the Closing.
4.4 Confidentiality. In the event the transactions contemplated by this
Agreement are not consummated, each of the parties hereto agree to keep
confidential any information disclosed to each other in connection therewith for
a period of two (2) years from the date hereof; provided, however, such
obligation shall not apply to information which:
(i) at the time of disclosure was public knowledge;
(ii) after the time of disclosure becomes public knowledge (except
due to the action of the receiving party); or
(iii) the receiving party had within its possession at the time of
disclosure.
4.5 Stock Certificates and Consideration. At the Closing, the AUTOMAX
Shareholders shall have delivered the certificates representing the AUTOMAX
Shares duly endorsed (or with executed stock powers) so as to make KENWICK the
sole owner thereof. At such Closing, KENWICK shall issue to the AUTOMAX
Shareholders the KENWICK Shares as provided herein.
4.6 Management of AUTOMAX On the Closing Date, Xxxxxx Xxxxxxx shall become
the President and director of AUTOMAX. Xxxxxx Xxxxxxx shall have sole control
over the day to day operation of AUTOMAX. Xxxxxxx Xxxxxxx shall become Secretary
and director of AUTOMAX.
SECTION 5. SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF KENWICK
Notwithstanding any right of AUTOMAX and the AUTOMAX Shareholders fully to
investigate the affairs of KENWICK, AUTOMAX and the AUTOMAX Shareholders shall
have the right to rely fully upon the representations, warranties, covenants and
agreements of KENWICK contained in this Agreement or in any document delivered
by KENWICK or any of its representatives, in connection with the transactions
contemplated by this Agreement. All such representations, warranties, covenants
and agreements shall survive the execution and delivery hereof and the Closing
Date hereunder for twelve (12) months following the Closing.
DRAFT #3
11 August 20, 1998
SECTION 6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF THE AUTOMAX
SHAREHOLDERS
Notwithstanding any right of KENWICK fully to investigate the affairs of
AUTOMAX, KENWICK has the right to rely fully upon the representations,
warranties, covenants and agreements of AUTOMAX and the AUTOMAX Shareholders
contained in this Agreement or in any document delivered to KENWICK by the
latter or any of their representatives in connection with the transactions
contemplated by this Agreement. All such representations, warranties, covenants
and agreements shall survive the execution and delivery hereof and the Closing
Date hereunder for twelve (12) months following the Closing.
SECTION 7. INDEMNIFICATION
7.1 Obligation of KENWICK to Indemnify. Subject to the limitations on the
survival of representations and warranties contained in Section 5, KENWICK
hereby agrees to indemnify, defend and hold harmless AUTOMAX and the AUTOMAX
Shareholders from and against any losses, liabilities, damages, deficiencies,
costs or expenses (including interest, penalties and reasonable attorneys' fees
and disbursements) (a "Loss") based upon, arising out of or otherwise due to any
inaccuracy in or any breach of any representation, warranty, covenant or
agreement of KENWICK contained in this Agreement or in any document or other
writing delivered pursuant to this Agreement.
7.2 Obligation of AUTOMAX and the AUTOMAX Shareholders to Indemnify.
Subject to the limitations on the survival of representations and warranties
contained in Section 6, AUTOMAX and the AUTOMAX Shareholders agree to indemnify,
defend and hold harmless KENWICK to the extent provided for herein, from and
against any Loss, based upon, arising out of or otherwise due to any inaccuracy
in or any breach of any representation, warranty, covenant or agreement made by
any of them and contained in this Agreement or in any document or other writing
delivered pursuant to this Agreement.
SECTION 8. THE CLOSING
The Closing shall take place simultaneously with the execution hereof. At
the Closing, the parties shall provide each other with such documents as may be
necessary or appropriate and customary in transactions of this sort in order to
consummate the transactions contemplated hereby including evidence of due
authorization of the Agreement and the transactions contemplated hereby.
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12 August 20, 1998
SECTION 9. MISCELLANEOUS
9.1 Waivers. The waiver of a breach of this Agreement or the failure of
any party hereto to exercise any right under this Agreement shall in no event
constitute waiver as to any future breach whether similar or dissimilar in
nature or as to the exercise of any further right under this Agreement.
9.2 Amendment. This Agreement may be amended or modified only by an
instrument of equal formality signed by the parties or the duly authorized
representatives of the respective parties.
9.3 Assignment. This Agreement is not assignable except by operation of
law.
9.4 Notices. Until otherwise specified in writing, the mailing addresses
of both parties of this Agreement shall be as follows:
AUTOMAX: AUTOMAX USA, INC.
0000 X Xxxxxxxxx Xxxxx
X. Xxxx Xxxxx, XX 00000
AUTOMAX Shareholders: Xxxxxx Xxxxxxx, President
0000 Xxxx Xxxx Xxxx
Xxxx Xxxxx, XX 00000
KENWICK: KENWICK INDUSTRIES, INC.
0000 X. Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Any notice or statement given under this Agreement shall be deemed to have been
given if sent by registered mail addressed to the other party at the address
indicated above or at such other address which shall have been furnished in
writing to the addressor.
9.5 Governing Law. This Agreement shall be construed, and the legal
relations be the parties determined, in accordance with the laws of the State of
Florida, thereby precluding any choice of law rules which may direct the
application of the laws of any other jurisdiction.
9.6 Publicity. No publicity release or announcement concerning this
Agreement or the transactions contemplated hereby shall be issued by either
party hereto at any time from the signing hereof without advance approval in
writing of the form and substance thereof by the other party.
9.7 Entire Agreement. This Agreement (including the Exhibits and Schedules
hereto) and the collateral agreements executed in
DRAFT #3
13 August 20, 1998
connection with the consummation of the transactions contemplated herein contain
the entire agreement among the parties with respect to the purchase and issuance
of the AUTOMAX Shares and the KENWICK Shares and related transactions, and
supersede all prior agreements, written or oral, with respect thereto.
9.8 Headings. The headings in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
9.9 Severability of Provisions. The invalidity or unenforceability of any
term, phrase, clause, paragraph, restriction, covenant, agreement or other
provision of this Agreement shall in no way affect the validity or enforcement
of any other provision or any part thereof.
9.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed, shall constitute an original copy
hereof, but all of which together shall consider but one and the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
AUTOMAX INTERNATIONAL, INC. KENWICK INDUSTRIES, INC.
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxxx
-------------------------------- ------------------------------------
Xxxxxx Xxxxxxx, President Xxxxxxx Xxxxxxx, President
Shareholder:
/s/ Xxxxxx Xxxxxxx
------------------------------------
Xxxxxx Xxxxxxx
AUTOMAX USA FINANCE, INC. AUTOMAX USA, INC.
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
-------------------------------- ------------------------------------
Xxxxxx Xxxxxxx, President Xxxxxx Xxxxxxx, President
Shareholder: Shareholder
/s/ Xxxxxx Xxxxxxx /s/ Xxxxxx Xxxxxxx
------------------------------------ ----------------------------------------
Xxxxxx Xxxxxxx Xxxxxx Xxxxxxx, President
DRAFT #3
14 August 20, 1998
EXHIBIT A - 1
EXCHANGE WITH AUTOMAX USA, INC.
Shares of Shares of
Name of AUTOMAX to be KENWICK to
Shareholder Exchanged be Received
----------- --------- -----------
Xxxxxx Xxxxxxx 1000 1,000,000
Grand Total 1000
DRAFT #3
August 20, 1998
EXHIBIT A - 3
EXCHANGE WITH AUTOMAX INTERNATIONAL, INC.
Shares of Shares of
Name of AUTOMAX to be KENWICK to
Shareholder Exchanged be Received
----------- --------- -----------
Xxxxxx Xxxxxxx 1000 see exhibit A-1
Grand Total 1000
DRAFT #3
17 August 20, 0000
XXXXXXX XXXXXXXX STOCK TRANSFER, INC.
0000 XXX XXXX XXXX
XXXXXXX, XX 00000
(000) 000-0000
February 19, 1999
TRANSFER SHEET NO: 56680
Attn: Transfer Dept.
RE: KENWICK INDUSTRIES INC COMMON STOCK
KENWICK INDUSTRIES INC Account: KENW0l
0000 X XXXXXXX XXXX
XXXXX 000
XX XXXXXXXXXX, XX 00000
NR
Per your instructions, we have:
CANCELLED:
========== --------------------------
Total Cancelled -- 0 Certificates.. 0 Shares
ISSUED:
=======
Certificate # -1215 Issued 02/19/99 R 1,000,000 Shares
XXXXXXX, XXXXXX TAX ID: ###-##-####
--------------------------
Total Issued -- 1 Certificates.. 1,000,000 Shares
Transfer Fee Due: 1 Certificates @ $10.00 each = Total $10.00
***** THESE SHARES HAVE BEEN ISSUED IN ACCORDANCE WITH INSTRUCTIONS
FROM THE COMPANY *****
