EXHIBIT 2.3
SECOND AMENDMENT TO
STOCK PURCHASE AGREEMENT
This Second Amendment to Stock Purchase Agreement (this "Amendment") is
made and entered into effective August 1, 2002, by and among GROUP 1 AUTOMOTIVE,
INC., a Delaware corporation ("Buyer"), XXXXXX AUTOMOTIVE GROUP, INC., a
California corporation ("Company"), XXXXXXXX XXXXXX XXXXXX and XXXXXXX XXXXXX,
Trustees of the Xxxxxx Trust of 1980 (Restated)("Xxxx Xxxxxx") and Xxxx Xxxxxx,
an individual (collectively "Seller") who are the holders of One Hundred percent
(100%) of the issued and outstanding shares of capital stock of Company
("Shares") are parties to that certain Stock Purchase Agreement dated April 22,
2002, as amended by that certain First Amendment to Stock Purchase Agreement
effective June 10, 2002 (the "Purchase Agreement").
WHEREAS, the parties desire to amend the Purchase Agreement as provided
in this Amendment;
NOW THEREFORE, For good and valuable consideration, and intending to be
legally bound hereby, the parties agree as follows:
1. All terms used in this Agreement with their initial letters
capitalized shall have the meanings given to them herein, or if not specifically
defined herein, in the Purchase Agreement.
2. Section 4.11(b)(ii) of the Purchase Agreement is amended and
restated in its entirety, to read as follows: "The annual Base Rent during the
Initial Term shall be an amount equal to the fair market value of existing
properties times 9.75%.
The annual Base Rent during the Initial Term of the properties
to be constructed shall be 9.75% times the actual cost of the land and
construction of the improvements thereon. The actual cost of the land
shall be (i) all hard and soft costs paid by Sellers' Affiliate for the
purchase of the land in the case of Woodland Hills Nissan Add-Point and
the fair market value ("Market Value") of the Property, as it is then
being used, pursuant to an appraisal conducted on an as-used basis
utilizing actual arm's-length comparable transactions of the land at
the Effective Closing Date in the case of the Xxxxxxxxx Boulevard Honda
Service Center, and in the case of the Xxxxxxxxx Boulevard Honda
Service Center, subtracting demolition costs, plus (ii) interest costs
on such amount from the Effective Closing Date through the Commencement
Date of the Initial Term, in the case of the Woodland Hills Nissan
Add-Point, plus (iii) the prorated portion of any property taxes
assessed against the land which are applicable to the period from the
date of this Agreement until the Commencement Date, in the case of the
Woodland Hills Nissan Add-Point, less (iv) the amount of any incentives
paid or payable to Sellers' Affiliate applicable to the purchase of the
land or the construction of the improvements, but exclusive of any
incentive based upon the performance of the Acquired Companies, which
shall be retained by the Acquired Companies. Actual costs of the
improvements shall be the actual amounts paid to contractors,
subcontractors, architects, surveyors, or others for construction,
demolition, permitting, construction period interest (excluding
interest on land costs) and other soft costs.
3. Section 1.2 of the Purchase Agreement is amended and restated in its
entirety, to read as follows:
"SECTION 1.2 PURCHASE PRICE. The purchase price for the Shares
and the consideration for the non-competition obligations set forth in
Section 8.9 (collectively, the "Purchase Price") will be an aggregate
amount consisting of the value of the Goodwill for
the Acquired Companies as defined in Section 1.2(b) below, plus or
minus the Tangible Net Worth of the Acquired Companies, as defined in
Section 1.2(a) below. The consideration for the non-competition
obligations shall be One Hundred Thousand Dollars ($100,000) and the
consideration for the Shares shall be the balance of the Purchase
Price."
4. Section 1.8 of the Purchase Agreement is amended and restated in its
entirety, to read as follows:
"SECTION 1.8 CLOSING. The effective date and time of the
purchase and sale ("Effective Closing Date") provided for in this
Agreement will be 12:01 a.m. on August 1, 2002, or such other date and
time as the parties may mutually agree. The closing ("Closing") shall
take place at the offices of the Company, or such other place, date and
time as Buyer and Seller agree, at 10:00 a.m. (local time) on August 1,
2002. Subject to the provisions of Section 9.1(f), failure to
consummate the purchase and sale provided for in this Agreement on the
date and time and at the place determined pursuant to this Section 1.8
will not result in the termination of this Agreement and will not
relieve any party of any obligation under this Agreement."
5. Section 10.1 of the Purchase Agreement is amended and restated in
its entirety, to read as follows:
"SECTION 10.1 SURVIVAL. All statements contained in any
Schedule or certificate delivered hereunder or in connection herewith
by or on behalf of any of the parties pursuant to this Agreement shall
be deemed representations and warranties by the respective parties
hereunder unless otherwise expressly provided herein. The
representations and warranties of the Sellers or the Buyer contained in
this Agreement, including those contained in any Schedule or
certificate delivered hereunder or in connection herewith, shall
survive the Closing for a period of three (3) years with the exception
of: (i) the representations and warranties of the Sellers contained in
Section 2.14, which shall survive the Closing until the expiration of
the applicable tax statutes of limitation plus a period of sixty (60)
days; (ii) the representations and warranties of Sellers contained in
Section 2.21, which shall survive the Closing for a period of five (5)
years; and (iii) the representations and warranties of the Sellers
contained in Sections 2.2, 2.3, and 2.6, which shall survive the
Closing indefinitely. As to each representation and warranty of the
parties hereto, the date to which such representation and warranty
shall survive is hereinafter referred to as the "Survival Date.""
6. Section 10.7 of the Purchase Agreement is amended to include the
following sentence at the end of Section 10.7:
"Notwithstanding anything to the contrary, the limitations of
indemnification provided in this SECTION 10.7 shall not apply to the
liabilities resulting from the existence of any former corporations,
companies or subsidiaries."
7. The Agreement is amended to provide that Sellers shall be
responsible for all costs resulting from the current on-going District Attorney
investigations ("Investigation"). If the cost is determined prior to the
Adjustment Date, the Tangible Net Worth shall be reduced accordingly. If the
cost is determined after the Adjustment Date, then the Sellers indemnify the
Buyer against such costs without the limitation on the indemnification
obligations provided in SECTION 10.7.
8. Except as expressly modified by this Amendment, the Purchase
Agreement remains in full force and effect according to its terms.
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9. This Amendment may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Amendment and all of which,
when taken together, will be deemed to constitute one and the same agreement.
10. This Amendment will be governed by, construed and enforced in
accordance with the laws of the state of California.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
"SELLERS"
XXXXXXXX XXXXXX XXXXXX and XXXXXXX
XXXXXX, Trustees of the Xxxxxx Trust of 1980
(Restated)
By:
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Xxxxxxxx Xxxxxx Xxxxxx, Trustee
By:
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Xxxxxxx Xxxxxx, Trustee
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Xxxx Xxxxxx, an individual
"COMPANY"
XXXXXX AUTOMOTIVE GROUP, INC.,
a California corporation
By:
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Xxxxxxxx X. Xxxxxx, Chairman of the Board
"BUYER"
Group 1 Automotive, Inc.
By:
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Xxxx X. Xxxxxx, Executive Vice President
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