EXHIBIT 2.12
AMENDMENT TO STOCK PURCHASE AGREEMENT
THIS AMENDMENT TO STOCK PURCHASE AGREEMENT (the "First Amendment") is
made and entered into this 14th day of October, 1997, by and among
CROSS-CONTINENT AUTO RETAILERS, INC. ("Purchaser"), a Delaware corporation;
THE XXXXXXXX FAMILY TRUST R-501 (the "Seller"); and JRJ INVESTMENTS, INC.
(the "Company"), a Nevada corporation.
RECITALS
A. Whereas, the above referenced parties entered into a certain Stock
Purchase Agreement, dated the 8th day of October, 1997, with reference to the
acquisition by Purchaser from Seller of all of the issued and outstanding
capital stock of the Company, and certain related transactions thereto (the
"Purchase Agreement").
B. Whereas, the above referenced parties have now determined that it is
in their respective best interest to amend certain provisions of the Purchase
Agreement to more clearly reflect their mutual understandings and agreements.
AGREED TO AMENDMENTS
In consideration of the mutual covenants, agreements, representations and
warranties set forth in the Purchase Agreement and this First Amendment,
Purchaser, Seller and the Company agree that the Purchase Agreement is
amended in the following respects:
1. Paragraph 3 of the Purchase Agreement is hereby amended to read
in its entirety as follows:
"ADJUSTMENT TO THE PURCHASE PRICE. In the event the Net Worth
(hereinafter defined) is more or less than $3,000,000, the Purchase Price
shall be increased or decreased by an amount equal to the difference between
$3,000,000 and the Net Worth. As used in this Agreement, the term "Net
Worth" shall mean the net worth of the Company as shown as total
shareholders' equity on the balance sheet of the Company in the Audited
Financial Statements (hereinafter defined), using the values for the New
Vehicle Inventory (hereinafter defined), the Used Vehicle Inventory
(hereinafter defined), the Parts and Accessories Inventory (hereinafter
defined), and the Tangible Personal Property (hereinafter defined), as
determined in accordance with subparagraph 12(c), as adjusted by the Net
Worth Adjustments (hereinafter defined), as of the last business day prior to
the Closing."
2. Paragraph 9 of the Purchase Agreement is hereby amended to read
in its entirety as follows:
"SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties
made by the parties in this Agreement or in any certificate, schedule,
statement, document or instrument furnished hereunder or in connection with
the negotiation, execution and performance of this Agreement shall survive
the Closing for a period of three (3) years, and any claim or cause of
action for indemnification under subparagraph 15(a) or subparagraph 16(a) for
breaches of representations or warranties set forth in this Agreement or in
any exhibit or document furnished hereunder may be made in respect of such
matters within three (3) years after the Closing Date; provided, however, the
parties expressly agree that the indemnification provisions under
subparagraph 15(b) and subparagraph 16(b) shall not be subject to the three
(3) year limitation set forth herein. Notwithstanding any investigation or
audit conducted before or after the Closing or the decision of any party to
complete the Closing, each party shall be entitled to rely upon the
representations and warranties set forth herein for the time period set forth
above."
3. Subparagraph 15(b) of the Purchase Agreement is hereby amended
to read in its entirety as follows:
"ENVIRONMENTAL INDEMNIFICATION. With respect to any existing or
future liability arising out of any condition, activity or event existing or
occurring prior to the Closing Date with respect to the Las Vegas Premises,
the Xxxxxxxxx Premises or the 2.5 Acre Tract (individually, a "Property" and
collectively, the "Properties") that violates or violated any Environmental
Laws or for which there may be any environmental liability in tort, or
otherwise (an "Environmental Event"), the Seller agrees that it will
indemnify, defend and hold harmless the Purchaser Indemnified Parties from
and against all claims, damages, actions, suits, proceedings, demands,
assessments, adjustments, costs, and expenses, including reasonable
attorneys' fees and expenses of investigation, incurred by any Purchaser
Indemnified Party as a result of the Environmental Event, and further
including, if necessary, the costs and expenses of any remediation,
transportation, incineration, treatment, or other necessary and appropriate
disposition or mitigation of the Environmental Event. Notwithstanding the
preceding sentence, it is expressly agreed by the parties that the
indemnification provided for therein shall not apply to any Environmental
Event caused by contamination migrating into or onto a Property from or
through any other real property."
4. Subparagraph 16(b) of the Purchase Agreement is hereby amended
to read in its entirety as follows:
"ENVIRONMENTAL INDEMNIFICATION. With respect to any future
liability arising out of any condition, activity or event, caused by, or
under the control of, the Purchaser or the Company occurring after the
Closing with respect to any of the Properties that violates any Environmental
Laws or for which there may be any liability for an Environmental Event, the
Purchaser agrees that it will indemnify, defend and hold harmless the
Seller Indemnified Parties from and against all claims, damages, actions,
suits, proceedings, demands, assessments, adjustments, costs, and expenses,
including reasonable attorneys' fees and expenses of investigation, incurred
by any Seller Indemnified Party as a result of the Environmental Event, and
further including, if necessary, the costs and expenses of any remediation,
transportation, incineration, treatment, or other necessary and appropriate
disposition or mitigation of the Environmental Event. Notwithstanding the
preceding sentence, it is expressly agreed by the parties that the
indemnification provided for therein shall not apply to any Environmental
Event caused by contamination migrating into or onto a Property from
or through any other real property."
5. Subparagraph 16(c) of the Purchase Agreement is hereby amended
by changing the last word in the first sentence from "Purchaser" to
"Purchase."
6. As expressly amended hereby, all of the provisions of the
Purchase Agreement remain in full force and effect, and, as used in the
Purchase Agreement, the term "Agreement" means the Purchase Agreement as
amended by this First Amendment.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
PURCHASER: CROSS-CONTINENT AUTO RETAILERS, INC.,
a Delaware corporation
By: /s/ XXXX XXXXXXXXX
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Xxxx Xxxxxxxxx, Chairman and Chief Executive Officer
SELLER: THE XXXXXXXX FAMILY TRUST R-501
By: /s/ XXXXX X. XXXXXXXX, XX., TRUSTEE
----------------------------------------------------
Xxxxx X. Xxxxxxxx, Xx., Trustee
COMPANY: JRJ INVESTMENTS, INC., a Nevada corporation
By: /s/ XXXXX X. XXXXXXXX, XX.
----------------------------------------------------
Xxxxx X. Xxxxxxxx, Xx., President
