PURCHASE AGREEMENT
November 17, 1997
Xxxx X. X. Xxxxxxx
Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
Selling Stockholders as shown on Exhibit A, attached hereto.
1. This Purchase Agreement ("Agreement") sets forth the terms pursuant to
which All American Bottling Corporation, or it designee, ("AABC"), as
purchaser, and Xxxx X. X. Xxxxxxx and Xxxxx Xxxxxxx, individually,
("Xxxxxxx"), and the persons shown on Exhibit A attached hereto
("Sellers") and Xxxxx Xxxxxxx, individually, ("Xxxxx") shall be legally
bound. The parties enter into this agreement subject to the approval of
the lender of AABC, the parent franchise companies, and Finova Capital
Corporation.
2. Subject to the terms and provisions of this agreement, Xxxxxxx and
Sellers will sell and deliver to AABC, and AABC hereby agrees to purchase
good title to, and all beneficial interest in, all of the capital stock
owned by each Seller in Full Service Beverage Company, a Kansas
Corporation, consisting of 188 shares, to include the stock owned in all
subsidiaries. It is understood and agreed that all shares of stock are
pledged to Finova Capital Corporation and the obligations to sell and
deliver the same are contingent upon Finova Capital Corporation releasing
the same.
3. The purchase price will be the sum of $1,525,000 to be paid to Sellers as
set forth on schedule A attached hereto.
4. In connection with this purchase, Sellers and Xxxxx, severally and
jointly, hereby make the following representations, warranties, and
covenants with respect to the Stock to be sold hereunder:
a. That Sellers own all beneficial interest in the stock to be
sold hereunder free and clear of all security interests and
encumbrances (other than the lien held by Finova Capital
Corporation) and have full power and authority to sell and
transfer the stock. Upon and subject to payment of the
purchase price by AABC, Sellers will deliver to the Purchaser
good title to, and all beneficial ownership interest in, the
Securities, free and clear of all liens, security interest,
restrictions (except as provided herein) and encumbrances.
b. The sale and transfer of the Shares has been duly authorized
by all required persons, and or entities.
c. That Xxxxxxx and Xxxxx represent and warrant that, to the
best of their knowledge: (i) none of the financial
statements or other written information they have furnished
AABC is inaccurate in any material respect, and (ii) Full
Service Beverage Company has no material contingent
liabilities which have not been disclosed to AABC, and (iii)
they have made known to Full Service Beverage Company, it's
officers and directors all disclosures of material facts in
their possession, and within their knowledge, pertaining to
the assets and liabilities of Full Service Beverage Company
and it's subsidiaries and they are not aware of any facts,
not previously disclosed, which would materially affect the
assets and liabilities, provided however, that neither makes
any representation or warranty with respect to income tax
liabilities of Full Service Beverage Company.
5. Closing will take place on October 10, 1997 subject, of course, to the
approvals set forth above. AABC has the right to extend the closing date
an additional 30 days in the event all approvals are not obtained in time
for a October 10, 1997 closing.
6. In addition to the purchase price AABC will cause Full Service Beverage
Company to enter into a non-compete agreement with Xxxxxxx in the amount
of $1,750,000 and with Xxxxx in the amount of $231,200 to be paid out
over time with interest in accordance with the schedules attached to the
non-compete agreements.
7. Upon the closing of this transaction, the payment of the consideration
and the delivery of the documents Xxxxxxx and Xxxxx will resign,
effective the closing date, all positions they hold with the company,
it's subsidiaries, and the Boards of Directors, to include all trade and
industry groups, Beverage Cooperative Association and as service agent.
Xxxxxxx and Xxxxx will receive their normal compensation up to the date
of closing and will waive any accrued but unused vacation and any
compensation for severance or termination, other than set forth in this
agreement. From and after the date of closing, other than the covenants
not to compete, both Xxxxxxx and Xxxxx release AABC and Full Service
Beverage Company, and it's subsidiaries from and of any and all other
obligations and claims relating to their employment with Full Service
Beverage Company and it's subsidiaries.
8. At closing, AABC will cause Full Service Beverage Company to transfer the
Range Rover automobile in the possession of Xxxxx to Xxxxx or his
designee.
9. At, or prior to closing, Xxxxx Xxxxxxx will sell to AABC her bonds issued
by AABC at a price of par, plus accrued interest.
10. This agreement shall be binding upon the heirs, executors,
administrators, successors, legal representatives and assigns of the
parties hereto. This agreement may be executed in several counterparts
and it shall not be necessary for each party to execute each of such
counterparts, but when all of the parties have executed and delivered one
of such counterparts, the counterparts, when taken together, shall be
deemed to constitute one and the same instrument, enforceable against
each party in accordance with its terms.
11. The representations, warranties, covenants, and agreements contained
herein shall survive the completion of the transactions contemplated by
this agreement.
12. If any provision of this agreement shall be held to be void or
unenforceable under the laws of any place governing its construction or
enforcement, this agreement shall not be void but shall be construed to
be in force with the same effect as though such provisions were omitted.
13. This agreement shall be construed under the laws of the State of
Oklahoma.
14. AABC acknowledges that it's President, Xxxxxxx Xxxxxx, has been the
managing general partner of Full Service Management Company, LC, which
has had the right to manage the business affairs of Full Service Beverage
Company since April 16, 1996 and is familiar with the assets,
liabilities, results of operations, recent financial history, recent
industry trends, prospects and other matter relating to Full Service
Beverage Company. AABC further acknowledges that it has had full access
to the offices, facilities, books and records of Full Service Beverage
Company and has had a full opportunity to discuss all such matters
relating to Full Service Beverage with officers and employees.
15. The parties acknowledge that the Internal Revenue Service may in the
future assert income tax deficiencies against Full Service Beverage
Company, the resolution of which may affect the personal income tax
liabilities of one or more of the Sellers. AABC agrees that if any such
assertion is made, it will give prompt written notice thereof to Sellers
and will permit Sellers to participate in the resolution of such claim.
In the event the Internal Revenue Service may in the future assert claims
against the Sellers which may affect the tax liability of Full Service
Beverage Company, they will give prompt written notice thereto to Full
Service Beverage Company and will permit it to participate in the
resolution of such claim.
16. Upon closing each Seller does release all claims of any type they may
have against AABC and Full Service Beverage Company, and it's
subsidiaries, and AABC and Full Service Beverage Company, and it's
subsidiaries, does release each Seller from all claims of any type,
provided however that such release shall not release any party from (i)
any liability or responsibility under this Agreement; (ii) any agreement
being executed and delivered pursuant to this agreement, or (iii) any
contract, civil claim or tort claim which has not been previously
specifically disclosed.
THIS AGREEMENT is entered into, effective the day and year first above
written.
ALL AMERICAN BOTTLING CORPORATION
BY: XXXXXXX X. XXXX
Xxxxxxx X. Xxxx
XXXX XXXXXXX XXXXX XXXXXXX
Xxxx Xxxxxxx Xxxxx Xxxxxxx
XXXXX XXXXXXX
Xxxxx Xxxxxxx
XXXXXXX XXXXXXX XXXXXX XXXXXXX XXXXXXX
Xxxxxxx Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxx
Xxxxx Xxxxxxx Xxxxxxx Trust Xxxx X. Xxxxxxx Trust
By: XXXXX XXXXXXX By: XXXX X. XXXXXXX
Xxxxx Xxxxxxx Xxxx X. Xxxxxxx
XXXXXXX XXXXX XXXXXXX XXXXXXXXX X. XXXXXXX
Xxxxxxx Xxxxx Xxxxxxx Xxxxxxxxx X. Xxxxxxx
XXXXXX X. XXXXXXX XXXX A. S. XXXXXXX
Xxxxxx F. Xxxxxxx Xxxx A. S. Xxxxxxx
