Exhibit 10.23
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT is entered into on March 30, 2007, by and
among ALL NIGHT AUTO STORES, INC. ("ANASI") and ALL NIGHT AUTO OF NAPERVILLE,
INC. ("XXXXX").
RECITALS
A. All Night Auto of Naperville, Inc. is owned by X.X. Xxxxx, Inc. (51%
owner) and Midnight Auto Franchise Corp. ("MAFC") (an affiliate of ANASI)(49%
owner).
B. ANASI is the sole shareholder and owner of 1,000 shares of ALL NIGHT
AUTO OF AURORA, INC., a Michigan corporation (the "COMPANY").
C.. MAFC in conjunction with X.X. Xxxxx, Inc. has been the store operator,
in charge of supervising the day to day business operations at the Company's
store located at 000 X. Xxxx Xxxx Xxxxxx, Xx. 00000.
X. XXXXX wishes to sell to All Night Auto of Naperville, Inc. and All
Night Auto of Naperville, Inc. wishes to purchase from MAFC 1000 shares of the
outstanding common stock of the Company (representing a 100% interest in the
Company) in exchange for the consideration set forth below.
In consideration of the foregoing recitals and the mutual promises set
forth below, the parties aggress as follows:
1. PURCHASE OF STOCK. ANASI hereby sells to All Night Auto of Naperville,
Inc. and All Night Auto of Naperville, Inc. hereby purchases from ANASI 1,000
shares of common capital stock of the Company (the "PURCHASED STOCK"). ANASI
shall deliver to All Night Auto of Naperville, Inc. a certificate representing
the Purchased Stock, and hereby authorizes All Night Auto of Naperville, Inc. to
transfer the Purchased Stock into the name of All Night Auto of Naperville on
the Company's books and records.
2. PURCHASE PRICE. In consideration of ANASI's sale of the Purchased Stock
to All Night Auto of Naperville, and in consideration of ANASI's other promises
and undertakings in this Agreement, Xxxxx shall: a) contribute to the capital of
All Night Auto of Naperville, Inc. concurrent herewith the sum of Fifty Thousand
Dollars ($50,000) by cash, cashiers check or wire transfer; and, b) cause All
Night Auto of Naperville, Inc. (as subtenant) to enter into a sublease with MAFC
(as sublandlord) for the premises currently occupied by the Company; and c)
cause All Night Auto of Naperville, Inc. to pay to ANASI the sum of Fifty
Thousand Dollars ($50,000) by cash, cashiers check or wire transfer.
3. ANASI'S REPRESENTATIONS AND WARRANTIES. ANASI hereby represents and
warrants to All Night Auto of Naperville that:
a. AUTHORITY TO SELL. ANASI has full capacity, power and authority
to sign this Agreement and sell the Purchased Stock to All Night Auto of
Naperville.
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b. OWNERSHIP OF PURCHASED STOCK. ANASI is the sole owner of the
Purchased Stock. The Purchased Stock is not subject to any lien, claim, charge,
encumbrance or security interest of any kind in any third party. ANASI is not a
party to any agreement of any kind with respect to the sale of the Purchased
Stock (other than this Agreement).
c. VOLUNTARY SALE. ANASI acknowledges that it is voluntarily
entering into this Agreement and voluntarily selling the Purchased Stock to All
Night Auto of Naperville, that it is under no obligation to sell the Purchased
Stock to All Night Auto of Naperville, and that it is not relying on any
representations or advice given by any member of All Night Auto of Naperville to
it regarding the advisability of selling its shares of Purchased Stock to All
Night Auto of Naperville.
4. REPRESENTATIONS AND WARRANTIES OF XXXXX AND ALL NIGHT AUTO OF
NAPERVILLE. Xxxxx and All Night Auto of Naperville hereby represent and warrant
to ANASI:
a. AUTHORITY TO PURCHASE. Xxxxx, as an individual, the President and
Chairman of All Night Auto of Naperville and the president and of X.X. Xxxxx,
Inc. has full capacity, power and authority to sign this Agreement and purchase
the Purchased Stock from ANASI.
b. VOLUNTARY PURCHASE. Xxxxx and All Night Auto of Naperville, Inc.
acknowledge that each are voluntarily entering into this Agreement and
voluntarily purchasing the Purchased Stock from ANASI, that it is under no
obligation to purchase the Purchased Stock from ANASI, and that it is not
relying on any representations or advice given by ANASI to it regarding the
advisability of purchasing the shares of Purchased Stock from ANASI.
c. KNOWLEDGEABLE ABOUT COMPANY BUSINESS OPERATIONS. Xxxxx is
knowledgeable about the Company's business operations. Xxxxx, XXXXX and All
Night Auto of Naperville acknowledge that the Company is indebted to MAFC in the
amount of $524,406.04 as of December 31, 2006 (the most recent financial
statement date), and agrees to pay such indebtedness through the means currently
in place for All Night Auto of Naperville and through any other means that are
mutually acceptable to parties.
5. MUTUAL RELEASE OF CLAIMS. Except for claims arising under this
Agreement, ANASI hereby releases All Night Auto of Naperville (and each of its
affiliates, parents, subsidiaries, officers, directors, shareholders and
agents), on the one hand, and Xxxxx hereby releases ANASI (and each of its
affiliates, parents, subsidiaries, officers, directors, shareholders and
agents), on the other hand, from any and all liabilities whatsoever, known or
unknown, of any kind. This release includes any and all claims, actions,
demands, suits, costs, liabilities, expenses, losses or debts of any nature
whatsoever, whether in law or in equity, relating to any matter, claim or right,
whether presently known or unknown, which ANASI or Xxxxx has, ever had or may
have against the other arising from or relating to any facts or events up to and
including the date of this Agreement.
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5. RESIGNATION. ANASI shall cause its employees to resign all positions
they hold as an officer, director or employee of the Company.
6. MISCELLANEOUS. Michigan law governs this Agreement. Any court
litigation arising out of this Agreement shall be litigated only in the United
States District Court for the Eastern District of Michigan, Southern Division,
or the Oakland County, Michigan Circuit Court; the parties hereby irrevocably
consent to the personal jurisdiction and venue of those courts over them. This
Agreement may be signed in multiple counterparts, each of which shall be deemed
an original and all of which shall taken together shall constitute one
agreement. Faxed or emailed signatures shall be binding as originals. Any
notices provided for in this Agreement shall be given in writing by registered
or certified mail addressed to the applicable party at the party's address below
their signature. The parties agree to sign and deliver all documents,
instruments, certificates and applications which may be deemed reasonably
necessary by the other party, to consummate the transactions contemplated by
this Agreement. Except as otherwise stated in this Agreement, this Agreement
contains the entire understanding of the parties with respect to its subject
matter, and supersedes all other agreements, understandings and negotiations. No
evidence of prior or contemporaneous agreements, understandings or negotiations
shall be used to construe or modify this Agreement. No modification of this
Agreement shall be effective unless in writing and signed by the parties.
7. WAIVER OF JURY TRIAL: THE PARTIES ACKNOWLEDGE THAT THE RIGHT TO TRIAL
BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER
CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR
CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT WAIVES ANY RIGHT
TO TRIAL BY JURY IN THE EVENT OF ANY LITIGATION REGARDING THE PERFORMANCE OR
ENFORCEMENT OF, OR IN ANY WAY RELATED TO: (i) THIS AGREEMENT; OR (ii) ANY OF THE
TRANSACTIONS OR OTHER AGREEMENTS CONTEMPLATED BY THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have agreed to this Agreement as of the
date written above.
MIDNIGHT AUTO FRANCHISE CORPORATION
A MICHIGAN CORPORATION
By:_______________________________________
Xxxxxxxx Xxxxx
Its: President and CEO
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxxxxx, Xxxxxxxx 00000
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X.X. XXXXX, INC., AN ILLINOIS CORPORATION
By:________________________________
Xxxx Xxxxx, President
0000 Xxxx 000xx Xxxxxx
Xxxxxx Xxxx, XX 00000
ALL NIGHT AUTO OF NAPERVILLE, INC., A MICHIGAN CORPORATION
By:________________________________
Xxxx Xxxxx, President
0000 Xxxx 000xx Xxxxxx
Xxxxxx Xxxx, XX 00000
ALL NIGHT AUTO STORES, INC., A MICHIGAN CORPORATION
By:_____________________________
Xxxxxxxx X. Xxxxx, President
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