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Exhibit (2)(b)
AGREEMENT
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THE XXXXXXXX AND XXXXXXXX COMPANY ("XXXXXXXX") and XXXXX X. XXXXXX
("XXXXXX") agree as follows:
RECITALS
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Reynolds, Wilson, Dealer Internet Services Corporation (the "COMPANY"),
Crown Motors, Inc., Xxxx Motors, Inc. and Xxxxxx X. Xxxx entered into an
acquisition agreement dated June 15, 1995 (the "ACQUISITION AGREEMENT"). Among
other things, the Acquisition Agreement provided for payment to Company of
certain "Contingent Payments" if certain conditions were met.
Xxxxxx held 5% of the outstanding common stock of the Company as of the
date of the Acquisition Agreement. Subsequent to that date, the Company
dissolved and Xxxxxx succeeded to a pro-rata portion of the Company's rights
under the Acquisition Agreement, including the right to receive the Contingent
Payments, if any, that may become due to the Company.
Xxxxxx desires to exchange his rights to any Contingent Payments and to
release and discharge Xxxxxxxx from all obligations under the Acquisition
Agreement in exchange for Xxxxxxxx' agreements and undertakings in this
Agreement. Xxxxxxxx' desires to accept such exchange on the terms and conditions
set forth in this Agreement.
1. RELEASE FROM FURTHER ACQUISITION AGREEMENT Obligations. In
consideration of the promises and obligations of Xxxxxxxx under this
Agreement, Xxxxxx hereby waives and forever releases and discharges
Xxxxxxxx from any obligations arising out of or related to the
Acquisition Agreement, whether the performance of such obligations is
past due or currently due or may become due, including, without
limitation, the obligation to pay any Contingent Payments. In
consideration of the promises and obligations of Xxxxxx under this
Agreement, Xxxxxxxx hereby waives and forever releases and discharges
Xxxxxx from any obligations arising out of or related to the
Acquisition Agreement, whether performance of such obligations is past
due or currently due or may become due.
2. GENERAL RELEASE. In further consideration of the promises and
obligations of Xxxxxxxx under this Agreement, and except as to the
rights and obligations created by this Agreement and by the Employment
Agreement between Xxxxxx and Xxxxxxxx dated June 15, 1995, Xxxxxx on
behalf of himself and his marital community hereby releases, acquits
and forever discharges Xxxxxxxx and its respective owners,
shareholders, partners, joint venturers, directors, officers,
attorneys, insurance carriers, underwriters, agents, employees,
subsidiaries, affiliates, affiliate corporations, spouses, heirs,
executors, administrators, representatives, predecessors, successors
and assigns, and each and all of them (collectively, the "Releasees"),
of and from any and all claims, demands, damages, liens, suits,
actions, agreements, contracts, covenants, obligations, payments,
debts, judgments, orders and liabilities and causes of action of
whatsoever kind, nature or description, whether arising in law or
equity, or upon contract or tort, or under foreign, state or federal
law or laws, or under common law, or otherwise, whether known or
unknown, which Xxxxxx either has had, now has or may claim to have
against the Releasees, and each and all of them including without
limitation any claim for damages sustained or alleged to have been
sustained or which could have been alleged to have been sustained
relating to economic damages, general damages, special damages,
consequential damages, attorney's fees and costs of suit.
3. ADDITIONAL CONSIDERATION TO XXXXXX. Within fifteen (15) days after the
date of this Agreement, Xxxxxxxx shall issue to Xxxxxx a total of 1,618
shares of Xxxxxxxx Class A common stock (the "XXXXXXXX SHARES"). When
issued, the Xxxxxxxx Shares will be duly and validly authorized and
issued, fully paid and nonassessable and covered by an effective
listing application with the New York Stock Exchange. Xxxxxxxx shall,
at its expense, prepare and file with the Securities and Exchange
Commission a registration statement and any necessary amendments
thereto (including post-effective amendments thereto or supplements to
any prospectus contained therein) relating to the resale of the
Xxxxxxxx Shares and will use its best efforts to cause such
registration statement and prospectus to become effective as soon as
possible following the date of this Agreement and to remain effective
for a period of not less than two (2) years from the date of this
Agreement. Xxxxxx will cooperate with Xxxxxxxx and provide such
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information in connection with any registration statement, prospectus
or other document reasonably required by Xxxxxxxx in the performance of
its obligations under this Section 3.
4. XXXXXX REPRESENTATIONS AND WARRANTIES. Xxxxxx represents and warrants
to Xxxxxxxx that:
(a) Xxxxxx is acquiring Xxxxxxxx Shares for investment purposes
only and without a view to any resale thereof until such time
as such resale has been registered (or exemptions from
registration perfected) under the Securities Act of 1933, as
amended, and all applicable state securities laws, and Xxxxxx
will not sell, encumber, dispose or otherwise transfer any
right or interest in the Xxxxxxxx Shares, whether voluntarily,
by gift, operation of law, testamentary disposition or
otherwise, unless such transfer has been registered (or an
exemption from registration has been perfected) under all
applicable federal and state securities laws.
(b) Xxxxxx is an experienced investor and is aware of the risks
inherent in an investment in the Xxxxxxxx Shares.
(c) Xxxxxx has had access to such information about Xxxxxxxx and
its operations as he deems necessary to evaluate fully an
investment in the Xxxxxxxx Shares and Xxxxxx is relying solely
on information provided by his advisors and information
publicly available regarding Xxxxxxxx and its operations and
not on any statement of or information supplied by any
employee, agent, contractor or representative of Xxxxxxxx.
(d) Xxxxxx is a resident of the state of Washington.
5. MISCELLANEOUS. This Agreement contains the entire agreement of the
parties with respect to its subject matter and supersedes any prior or
contemporaneous written or oral agreement between the parties with
respect to such subject matter. This Agreement may only be amended by a
writing signed by the parties. If any provision of this Agreement is
deemed valid or unenforceable, such invalidity or unenforceability
shall not affect the other provisions of this Agreement, and this
Agreement shall be enforced as if such invalid or unenforceable
provisions were omitted. This Agreement shall be construed and enforced
in accordance with the laws of the state of Washington without regard
to applicable conflicts of laws principles. This Agreement may be
executed in one or more counterparts, each of which shall constitute an
original.
The parties have executed this Agreement as of the 24th day of
November, 1997.
THE XXXXXXXX AND XXXXXXXX COMPANY
By: /s/ Xxxx Xxxxxxx
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Title: Associate General Counsel &
Assistant Secretary
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/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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