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Exhibit 10.47
FIRST AMENDMENT TO ESCROW AGREEMENT (THE "AMENDMENT")
June 28, 1996
Corporate Stock Transfer, Inc.
Republic Plaza
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxx
Ladies and Gentlemen:
Reference is hereby made to that certain Escrow Agreement,
dated as of June 3, 1996 (the "Escrow Agreement"), by and among Reddi Brake
Supply Corporation, a Nevada corporation ("Reddi Brake"), Xxxxx X. Xxxxxxx (the
"Shareholder") and Corporate Stock Transfer, Inc. Capitalized terms used and
not otherwise defined herein shall have the meanings ascribed to such terms in
the Escrow Agreement.
1. Deposit of Additional Shares into Escrow.
Concurrently herewith, Reddi Brake has instructed you to issue Seventy-Six
Thousand Six Hundred Eighty-Seven (76,687) shares of Reddi Brake Common Stock
(the "Additional Shares"), valued at $125,000, to the Shareholder as part of
the "Purchase Price" under the Stock Purchase Agreement, dated June 28, 1996,
between Reddi Brake and the Shareholder. The Additional Shares, and the Stock
Certificates representing them, shall be deposited by you into the Escrow
Account. Shareholder shall concurrently deliver to you a stock power, endorsed
in blank with his signature guaranteed by a Medallion bank; Shareholder further
agrees to deliver such further stock powers, so endorsed, as may from time to
time be necessary to accomplish (a) the adjustment specified in Section 3 of
the Escrow Agreement or (b) any distributions under Section 4 of the Escrow
Agreement. You shall hold all Additional Shares in the Escrow Account in
accordance with the instructions contained in the Escrow Agreement. The Escrow
Agreement is hereby amended so that all references to "Shares" include the
Additional Shares deposited into the Escrow Account in accordance herewith.
2. Term of Escrow. Section 2 of the Escrow Agreement is
hereby amended to read in its entirety as follows:
"The term of the Escrow (the "Escrow Period") shall commence
on the date hereof and shall terminate on June 28, 1997;
provided, however, that, pursuant to Paragraph 12.2 of the
Purchase Agreement and Paragraph 11.2 of the Stock Purchase
Agreement (the "Second Purchase Agreement"), dated June 28,
1996, between
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Reddi Brake and the Shareholder, if any Claimed Loss under
either the Purchase Agreement or the Second Purchase Agreement
which has been asserted by Reddi Brake is pending or
unresolved at the end of the Escrow Period, then Reddi Brake
shall notify you in writing, not later than one day prior to
the end of the Escrow Period, that the specified number of
Shares subject to such Claimed Loss shall remain in the Escrow
Account, and the Escrow Period shall be extended until the
matter relating to such Claimed Loss has been terminated or
otherwise resolved."
3. Adjustment to Number of Shares. Section 3 of the
Escrow Agreement is hereby amended to read in its entirety as follows:
"Pursuant to Paragraph 12.1 of the Purchase Agreement,
effective December 3, 1996, the number of Shares deposited
into the Escrow Account on June 3, 1996 in accordance with the
Purchase Agreement shall be adjusted so that the market value
of such Shares then held in the Escrow Account (based on the
average closing and bid prices on such date, as reported by
The NASDAQ Stock Market or, if Reddi Brake's Common Stock is
no longer reported thereon, the then-relevant market or
system) equals $125,000, and pursuant to Paragraph 11.1 of the
Second Purchase Agreement, effective December 28, 1996, the
number of Shares deposited into the Escrow Account on June 28,
1996 in accordance with the Second Purchase Agreement shall be
adjusted so that the market value of such Shares then held in
the Escrow Account (based on the average closing and bid
prices on such date, as reported by The NASDAQ Stock Market
or, if Reddi Brake's Common Stock is no longer reported
thereon, the then-relevant market or system) equals $125,000;
provided, however, that any number of Shares subject to a
Claimed Loss asserted by Purchaser under either the Purchase
Agreement or the Second Purchase Agreement prior to such dates
shall not be so adjusted. If on such dates additional Shares
must be deposited into the Escrow Account in order to bring
the market value of the relevant Shares up to $125,000,
Shareholder shall deliver to you stock certificates
representing the requisite number of additional Shares of
Reddi Brake Common Stock, which Shares shall be held in the
Escrow Account in accordance with these instructions. If on
such dates Shares must be released from the Escrow Account in
order to bring the market value of the relevant Shares down to
$125,000 (subject to the proviso at the end of the first
sentence of this Section 3), promptly following a written
certificate executed by Reddi Brake and Shareholder in the
form attached hereto as Exhibit A, you
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shall deliver to Shareholder the number of Shares indicated
therein from the Escrow Account."
4. Instructions to Escrow Agent. Sections 4.1 and 4.2
of the Escrow Agreement are hereby amended to read in its entirety as follows:
"4.1 Distribution Pursuant to Purchase Agreements.
Pursuant to Paragraphs 12.2 and 11.2, respectively, of the
Purchase Agreement and the Second Purchase Agreement, if
Sellers or Shareholder, as the case may be, acknowledge their
obligation for a Claimed Loss, Reddi Brake may promptly
withdraw from the Escrow Account a number of Shares equal to
the sum arrived at by dividing (a) the amount of the Claimed
Loss by (b) the "Relevant Value" of the Shares. For this
purpose, the "Relevant Value" of the Shares shall be (a) with
respect to any Claimed Loss under the Purchase Agreement for
which Purchaser has given notice to Sellers by December 3,
1996, or with respect to any Claimed Loss under the Second
Purchase Agreement for which the Purchaser has given notice to
Shareholder by December 28, 1996, $1.63, or (b) with respect
to any Claimed Loss under the Purchase Agreement for which
Purchaser has given Sellers notice on or after December 3,
1996, or with respect to any Claimed Loss under the Second
Purchase Agreement for which the Purchaser has given
Shareholder notice on or after December 28, 1996, the average
between the closing offer and bid prices on such date (as
reported on The NASDAQ Stock Market or, if Reddi Brake's
Common Stock is no longer reported thereon, the then-relevant
market or system). In connection therewith, promptly follow
receipt of a written certificate executed by the appropriate
parties in the form attached hereto as Exhibit B-1 or B-2, as
applicable, you shall deliver to Reddi Brake, for cancellation
or to be held as treasury shares, at the sole option and
direction of Reddi Brake, the number of Shares indicated
therein from the Escrow Account.
4.2 Distribution Pursuant to Arbitration.
Pursuant to Paragraphs 12.2 and 12.3 and 11.2 and 11.3,
respectively, of the Purchase Agreement, and the Second
Purchase Agreement, if Sellers or Shareholder, as the case may
be, deny such obligation for a Claimed Loss, Sellers or
Shareholder, as the case may be, and Purchaser shall proceed
to arbitration, with a determination of whether a Loss exists
to be made by a three- person panel of arbitrators designated
according to the rules of the American Arbitration
Association. Upon Reddi Brake's delivering to you a written
determination by such panel of arbitrators that Reddi Brake
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is entitled to Shares from the Escrow Account, you shall
deliver to Reddi Brake, for cancellation or holding as
treasury shares, at the sole option and direction of Reddi
Brake, the number of Shares indicated therein from the Escrow
Account."
5. No Other Changes to Escrow Agreement. Except as
provided herein, the Escrow Agreement shall remain unchanged and in full force
and effect.
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6. Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same document.
Very truly yours,
REDDI BRAKE SUPPLY
By:
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S. Xxxxxx Xxxxx
Chief Financial Officer
SHAREHOLDER
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Xxxxx X. Xxxxxxx
The foregoing is accepted and
agreed to as of ________________, 1996
CORPORATE STOCK TRANSFER, INC.
By:
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Xxxxxxx Xxxx, President
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EXHIBIT A
FORM OF CERTIFICATE
Pursuant to Section 3 of that certain Escrow Agreement, dated
June 3, 1996 (the "Escrow Agreement"), by and among Reddi Brake Supply
Corporation, a Nevada corporation ("Reddi Brake"), Xxxxx X. Xxxxxxx and
Corporate Stock Transfer, Inc., as Escrow Agent, the undersigned do hereby
request the distribution to Xxxxx X. Xxxxxxx (the "Shareholder") of
______________ shares of the Common Stock, par value $.0001 per share, issued
in the name of such Shareholder (the "Released Shares") and do hereby certify
as follows:
(i) This certificate is being furnished in
conformity with the terms of Section 3 of the Escrow Agreement; and
(ii) The Shareholder is entitled to receipt of the
Released Shares pursuant to the provisions of [Section 12.1 of that certain
Stock Purchase Agreement, dated as of May 28, 1996, among Reddi Brake, Xxxxx X.
Xxxxxxx and Xxxxx Xxxxxxx] or [Section 11.1 of that certain Stock Purchase
Agreement, dated as of June 28, 1996, between Reddi Brake and Xxxxx X.
Xxxxxxx].
REDDI BRAKE SUPPLY CORPORATION
By:
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Name:
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Title:
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Xxxxx X. Xxxxxxx
A-1
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EXHIBIT B-1
FORM OF CERTIFICATE
Pursuant to Section 4.1 of that certain Escrow Agreement,
dated June 3, 1996 (the "Escrow Agreement"), by and among Reddi Brake Supply
Corporation, a Nevada corporation ("Reddi Brake"), Xxxxx X. Xxxxxxx and
Corporate Stock Transfer, Inc., as Escrow Agent, the undersigned do hereby
request the distribution to Reddi Brake, for [cancellation or holding as
treasury shares], of ______________ shares of Reddi Brake Common Stock, par
value $.0001 per share, issued in the name of Xxxxx X. Xxxxxxx (the "Released
Shares") and do hereby certify as follows:
(i) This certificate is being furnished in
conformity with the terms of Section 4.1 of the Escrow Agreement; and
(ii) Reddi Brake is entitled to receipt of the
Released Shares pursuant to the provisions of Section 12.2 of that certain
Stock Purchase Agreement, dated as of May 28, 1996, among Reddi Brake, Xxxxx X.
Xxxxxxx and Xxxxx Xxxxxxx.
REDDI BRAKE SUPPLY CORPORATION
By:
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Name:
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Title:
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SELLERS
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Xxxxx X. Xxxxxxx
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Xxxxx Xxxxxxx
B-1
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EXHIBIT B-2
FORM OF CERTIFICATE
Pursuant to Section 4.1 of that certain Escrow Agreement,
dated June 3, 1996 (the "Escrow Agreement"), by and among Reddi Brake Supply
Corporation, a Nevada corporation ("Reddi Brake"), Xxxxx X. Xxxxxxx and
Corporate Stock Transfer, Inc., as Escrow Agent, the undersigned do hereby
request the distribution to Reddi Brake, for [cancellation or holding as
treasury shares], of ______________ shares of Reddi Brake Common Stock, par
value $.0001 per share, issued in the name of Xxxxx X. Xxxxxxx (the "Released
Shares") and do hereby certify as follows:
(i) This certificate is being furnished in
conformity with the terms of Section 4.1 of the Escrow Agreement; and
(ii) Reddi Brake is entitled to receipt of the
Released Shares pursuant to the provisions of Section 11.2 of that certain
Stock Purchase Agreement, dated as of June 28, 1996, between Reddi Brake and
Xxxxx X. Xxxxxxx.
REDDI BRAKE SUPPLY CORPORATION
By:
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Name:
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Title:
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SELLER
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Xxxxx X. Xxxxxxx
B-2
