EXHIBIT 10.1
GEORGIA
SHAREHOLDERS' AGREEMENT OF SHARE ALLOCATION
MUSCOGEE COUNTY
THIS AGREEMENT (the "Agreement"), made and entered into as of the ___
day of __________, 1997, by and among Xxxxxxx X. Xxxxxxxx, Xx., Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx X. Xxxxxx, Xxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx, Xx., Xxxxxxx X.
Xxxxxx, Xxxxxx X. Xxxxxx, Xxx Xxxxxx, and the estate of Xxxxxxx X. Xxxxxxx (each
a "Shareholder" and collectively the "Shareholders"), and Peach Warehouse &
Distribution, Inc., a Georgia corporation (the "Corporation").
WITNESSETH:
WHEREAS, the Shareholders owned the common stock of the Companies (the
"Companies") set forth on Schedule A hereto in the amounts set forth on Schedule
A; and
WHEREAS, the Companies merged with and into the Corporation effective
January 1, 1997 (the "First Merger Transactions"); and
WHEREAS, the Shareholders will exchange their common stock in each of
the Companies for common stock in the Corporation; and
WHEREAS, the Shareholders collectively will then own all of the
outstanding shares of capital stock of the Corporation (said shares together
with any additional shares of the Corporation's capital stock acquired by the
Shareholders or other individuals being hereinafter referred to as the Stock);
and
WHEREAS, the Corporation intends to merge with and into Peach Auto
Painting and Collision, Inc., a Delaware corporation ("Peach"), whereupon each
Shareholder's shares of Stock of the Corporation will be exchanged on a one for
one basis for shares of the common stock of Peach (the "Second Merger
Transaction"); and
WHEREAS, the Corporation will cease to exist and Peach will be the
successor corporation to the Corporation and will be bound by the terms of this
Agreement; and
WHEREAS, the parties hereto desire to avoid any future disagreements or
claims against each other or the Corporation or Peach arising out of the
allocation of Stock in connection with the First Merger Transactions.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties agree as follows:
1. AGREEMENT WITH ALLOCATION. Each party hereto has reviewed the attached
Schedule A and agrees with the stated ownership interests in the common
stock of the Companies as therein stated. Each party hereto has also
reviewed, on Schedule A, (a) the ratios used to convert his shares of
the common stock of the Companies to shares of Stock of the Corporation
and (b) the number of shares of Stock of the Corporation he will
receive in the First Merger Transactions. Each party hereby agrees that
the attached Schedule A is accurate with respect to his ownership
interests in the common stock of the Companies and the Stock of the
Corporation following the First Merger Transactions.
2. NO FUTURE CLAIMS. Each party hereby represents, agrees, covenants, and
warrants, on behalf of himself and his heirs, successors, and assigns,
that he does not have, and will not make, any claim for more shares of
common stock of any of the Companies or Stock of the Corporation than
that which is set forth on the attached Schedule A.
3. RELEASE. The Shareholders, for themselves and their respective
affiliates, successors, heirs, administrators, executors, assigns and
agents (and if applicable, their officers, directors, employees,
stockholders and partners) hereby release and forever discharge the
Corporation, its affiliates, its successors (including, but not limited
to, Peach), and each of their respective officers, employees,
directors, stockholders, partners and agents from any and
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all claims, actions and causes of action that any Shareholder may
have, or in the future may possess, for, upon, or by reason of any
matter, cause or thing whatsoever, arising out of or related to the
subject matter of this Agreement.
4. INDEMNIFICATION. Each Shareholder hereby agrees to indemnify the
Corporation, its affiliates, its successors (including, but not limited
to, Peach), and each of their respective officers, employees,
directors, stockholders, partners and agents against and hold them
harmless from any loss, liability, claim, damage or expense (including,
without limitation, reasonable legal fees and expenses and any losses
that may result from the granting of injunctive relief in any suit,
action or proceeding) suffered or incurred by the Corporation, its
affiliates, its successors (including, but not limited to, Peach), and
each of their respective officers, employees, directors, stockholders,
partners and agents for or on account of or arising from or in
connection with any breach of any representation or warranty of such
Shareholder contained in this Agreement.
5. THIRD PARTY BENEFICIARIES. Each Shareholder agrees that (i) the
Corporation and its Board of Directors and officers (the "Third Party
Beneficiaries") are specifically named as third party beneficiaries of
the representations, covenants and agreements made by each Shareholder
herein and may pursue enforcement thereof, (ii) none of the
Shareholders would have entered into this Agreement in the absence of
the representations, covenants and agreements made by each Shareholder
in Sections 1, 2 and 3 hereof and the designation of the Third Party
Beneficiaries under clause (i) above, and (iii) the execution and
performance of this Agreement by the other parties to the Agreement
shall therefore constitute the receipt of adequate consideration for
such representations, covenants and agreements and for the designation
of the Third Party Beneficiaries.
6. RECAPITALIZATION, ETC. As referred to herein, the Stock shall include
any securities that may be distributed with respect thereto or issued
in exchange therefor or in lieu thereof in connection with any stock
dividend, stock split, combination of shares, recapitalization, merger,
consolidation or other reorganization of the Corporation or Peach.
7. CONSTRUCTION OF AGREEMENT. This Agreement represents the entire
integrated agreement among the parties hereto with respect to the
subject matter hereof, and supersedes all prior negotiations or
agreements, whether written or oral. Whenever the context of this
Agreement permits, the masculine gender shall include the feminine and
neuter genders and any reference to singular or plural shall be
interchangeable with the other. The invalidity or unenforceability of
any one or more provisions of this Agreement shall not affect any other
provisions, and the Agreement shall be construed in all respects as if
any such invalid or unenforceable provisions were omitted.
8. BINDING EFFECT. This Agreement shall be binding upon the parties hereto
and their respective legal representatives, successors and assigns.
9. AMENDMENT AND TERMINATION. Except and unless as otherwise indicated
herein, this Agreement may be amended only by an instrument in writing
executed by all the parties hereto.
10. ATTORNEY FEES, BREACHES AND DAMAGES. The parties hereby declare that it
may be impossible to measure in money the damages that will accrue in
the event of a breach of this Agreement. Therefore, if any party
hereto, or any person acting on his behalf, shall institute any action
or proceeding to enforce the provisions hereof, any person against whom
such action or proceeding is brought hereby waives, on behalf of
himself and his personal representatives, heirs, successors and
assigns, the claim or defense therein that such party has an adequate
remedy at law, and each party acknowledges that the person asserting a
violation of this Agreement shall be entitled to the remedy of specific
performance. Said remedy of specific performance, however, shall be in
addition to, and not in limitation of, any other rights and remedies at
law or in equity that may be available with respect to a breach or
threatened breach hereof. The party in breach (or that is threatening
to breach) (the "Breaching Party") also agrees to reimburse the
non-breaching party for all costs and expenses, including reasonable
attorneys' fees, incurred by the non-breaching party in attempting to
enforce the obligations of the Breaching Party.
11. NO IMPLIED WAIVERS. No failure or delay by any party in exercising any
right, power, or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right, power, or
privilege preclude any other or further exercise thereof.
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12. HEADINGS. The headings and other captions in this Agreement are for
convenience and reference only and shall not be used in interpreting,
construing or enforcing any of the provisions of this Agreement.
13. COUNTERPARTS. This Agreement may be executed in multiple counterparts
by the various parties and the failure to have the signatures of all
parties on a single Agreement shall not affect the validity or
enforceability of any part of this Agreement against any party who
executes any counterpart of the Agreement.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA WITHOUT THE
APPLICABILITY OF ANY CONFLICT OF LAW PROVISIONS. EACH SHAREHOLDER
AGREES THAT ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED IN ANY
WAY TO THIS AGREEMENT SHALL BE BROUGHT SOLELY IN A COURT OF COMPETENT
JURISDICTION SITTING IN MUSCOGEE COUNTY, GEORGIA.
I HAVE READ THE ABOVE AGREEMENT AND UNDERSTAND ITS TERMS. I WOULD NOT
SIGN THIS AGREEMENT IF I DID NOT UNDERSTAND IT AND AGREE TO BE BOUND BY ITS
TERMS.
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INTENDING TO BE LEGALLY BOUND UNDER THE TERMS AND CONDITIONS SET FORTH
IN THIS AGREEMENT, WE SET OUR HANDS AND SEALS THE DAY AND YEAR FIRST ABOVE
WRITTEN.
________________________________________
Peach Warehouse & Distribution, Inc.
By: Xxxxxxx X. Xxxxxxxx, Xx., President
_________________________________
Xxxxxxx X. Xxxxxxxx, Xx.
_________________________________
Xxxxxxx Xxxxxx Xxxxxxxx
_________________________________
Xxxxx X. Xxxxxx
_________________________________
Xxxx X. Xxxxxxx
_________________________________
Xxxxxx X. Xxxxxxx, Xx.
_________________________________
Xxxxxxx X. Xxxxxx
_________________________________
Xxxxxx X. Xxxxxx
_________________________________
Xxx Xxxxxx
The estate of Xxxxxxx X. Xxxxxxx
By: ____________________________
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