EXHIBIT 2.1.7
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into this 1st day of July 1997, by and
between The Price Trust u/t/d 10/5/84 (the "Seller"), FirstAmerica Automotive,
Inc., a Delaware corporation (the "Purchaser") and Smart Nissan, Inc., a
California corporation (the "Corporation").
WHEREAS, Seller owns 40,000 shares of stock of the Corporation, which
represents 100% of the total outstanding capital stock of the Corporation.
WHEREAS, Purchaser desires to acquire the 40,000 shares of capital stock of
the Corporation held by the Seller in accordance with and subject to the terms
and conditions set forth herein.
NOW, THEREFORE, in recognition of the representations set forth above and
in consideration of the mutual covenants hereafter contained, the parties hereto
agree as follows:
1. INCORPORATION OF RECITALS. The recitals set forth hereinabove are
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incorporated herein by this reference.
2. STOCK PURCHASE. Subject to the terms and conditions set forth in this
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Agreement, Seller agrees to convey, transfer, assign and deliver to Purchaser,
and Purchaser agrees to acquire from Seller, 40,000 shares of the capital stock
of the Corporation (the "Shares").
3. PURCHASE PRICE.
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3.1 AMOUNT. Purchaser shall pay to Seller as consideration for the
acquisition of the Shares hereunder, the sum of $600,000.00.
3.2 PAYMENT. The purchase price for the Shares shall be paid in cash upon
the Closing.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
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warrants to Seller as follows:
4.1 POWER AND AUTHORITY. Purchaser has the requisite power and authority
to enter into and perform this Agreement. This Agreement has been (and each
other agreement, document or instrument contemplated hereby, will at or prior to
the Closing be) duly executed and delivered by the Purchaser. No approvals or
consents of any person or entity other than the Purchaser are necessary in
connection with the Purchaser's power and authority to perform its obligations
pursuant to this Agreement. This Agreement constitutes (and at the Closing,
each other agreement, document or instrument contemplated hereby will
constitute) the legal, valid and binding obligation of the Purchaser enforceable
against the Purchaser in accordance with its terms.
4.2 NO MISREPRESENTATION. None of the representations and/or warranties
made by the Purchaser hereunder contains or will contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which they are made, not
misleading.
5. REPRESENTATIONS AND WARRANTIES OF SELLER. The Seller and the Corporation
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jointly and severally represent and warrant to the Purchaser as follows:
5.1 POWER AND AUTHORITY. The Seller and the Corporation have the
requisite power and authority to enter into and perform this Agreement and to
convey and transfer the capital Shares of the
Corporation as provided in this Agreement. This Agreement has been (and each
other agreement, document or instrument contemplated hereby, will at or prior to
the Closing be) duly executed and delivered by the Seller and the Corporation.
No approvals or consents of any person or entity is necessary in connection with
Seller's and the Corporation's power and authority to perform their respective
obligations pursuant to this Agreement. This Agreement constitutes (and at the
Closing, each other agreement, document or instrument contemplated hereby will
constitute) the legal, valid and binding obligation of the Seller and the
Corporation enforceable against Seller and the Corporation in accordance with
its terms.
5.2 CORPORATE ORGANIZATION AND GOOD STANDING. The Corporation is a
corporation duly organized, validly existing and in good standing under the laws
of the State of California, and is duly authorized, qualified, and licensed
under all applicable laws, regulations, ordinances and orders of public
authorities to carry on its business in the places and in the manner as now
conducted.
5.3 ARTICLES OF INCORPORATION, BY-LAWS AND MINUTE BOOKS. True, complete
and correct copies of the Articles of Incorporation and By-Laws of the
Corporation, each as amended to date, have been furnished to Purchaser. The
stock records and minute books of the Corporation, all of which have been made
available to Purchaser, contain true and complete minutes and records of all
meetings, proceedings and other actions of the stockholders and directors of the
Corporation from the date of organization.
5.4 AUTHORIZED CAPITALIZATION. The authorized capital stock of the
Corporation consists of 75,000 shares of common stock. The number of issued and
outstanding shares of stock of the Corporation is 40,000. All issued and
outstanding shares of the Corporation are owned by the Seller and are validly
issued and outstanding, fully paid and non-assessable, free and clear of all
liens, security interests, pledges, charges, voting trusts, equities,
restrictions, encumbrances and claims of every kind. All of the outstanding
shares of the Corporation were offered, issued, sold and delivered by the
Corporation in compliance with all applicable state and federal laws concerning
the issuance of securities. None of the shares of the Corporation which are
outstanding were issued in violation of any preemptive rights held by any past
or present shareholder of the Corporation. The Corporation does not have any
outstanding options, warrants, rights or other securities, plans, contracts or
agreements which give the holder thereof or any other person the right to
purchase any shares of the Corporation's capital stock or which are convertible
into or exercisable for any shares of such capital stock or under which any such
option, warrant, or right or security may be issued in the future. The
Corporation does not have any obligation, whether contingent or otherwise, to
purchase, redeem, or otherwise acquire any of its equity securities or interests
therein or pay a dividend or make any distribution with respect thereto.
5.5 UNIONS. Except as set forth on Schedule 5.5 attached hereto and
incorporated herein by this reference, the Corporation is not a party to any
arrangement with any union, and no employees of the Corporation are represented
by any labor union or covered by any collective bargaining agreement, nor, to
the knowledge of the Seller, is any effort to establish such representation in
progress. There is no pending or, to the knowledge of the Seller, threatened
labor dispute involving the Corporation or any of its employees.
5.6 INSURANCE. Set forth on Schedule 5.6 attached hereto and incorporated
herein by this reference is an accurate list, as of the date of this Agreement,
of all insurance policies of the Corporation, including an accurate list of all
insurance losses, including workers' compensation claims, of the Corporation for
the past three policy years.
5.7 EMPLOYEE PLANS. Set forth on Schedule 5.7 attached hereto and
incorporated herein by this reference is a complete and accurate list of all
employee benefit plans, including without limitation, all
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pension, profit sharing, deferred compensation, bonus, and multi-employer plans
and other plans currently maintained or sponsored by the Corporation, or to
which the Corporation contributes or has an obligation to contribute in the
future. To the knowledge of the Seller and the Corporation, each of the plans
referenced on Schedule 5.7 attached is in substantial compliance with all
applicable provisions of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"). No plan has incurred an accumulated funding deficiency, as
defined for purposes of the Internal Revenue Code and ERISA, and the Corporation
does not have any direct or indirect obligation or liability to the Pension
Benefit Guaranty Corporation or to the Internal Revenue Service for any excise
tax or penalty. Neither the Corporation nor any ERISA Affiliate (i.e., each
business which is treated together with the Corporation as a single employer
under Section 4001(a)(14) of ERISA or Internal Revenue Code Section 414(b), (c),
(m), (n) or (o)) has incurred or expects to insure any withdrawal liability to
any multiemployer plan.
5.8 LITIGATION; CONFORMITY WITH THE LAW. Except as set forth on Schedule
5.8 attached hereto and incorporated herein by this reference, there are no
claims, actions, suits or proceedings, pending or, to the knowledge of the
Seller, threatened against or affecting the Corporation or any of its properties
at law or in equity, or before or by any federal, state, municipal, or any other
governmental department, commission, board, bureau, agency, or instrumentality,
having jurisdiction with respect to the Corporation, and no notice of any claim,
action, suit, or proceeding, whether pending or threatened, has been received.
The Corporation has conducted its business in substantial compliance with all
federal, state and local statutes, ordinances, permits, licenses, orders,
variances, rules and regulations. Except as set forth on Schedule 5.8, the
Corporation is not subject to any order of any Court or federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality.
5.9 ENVIRONMENTAL MATTERS. None of the Corporation's assets has ever been
used by the Corporation or, to the best of the Corporation's knowledge, by
previous owners or operators, in the disposal of, or to produce, store, handle,
treat, release, or transport, any hazardous waste or hazardous substance other
than in accordance with applicable law; none of the Corporation's assets has
ever been designated or identified in any manner pursuant to any environmental
protection statute as a hazardous waste or hazardous substance disposal site, or
a candidate for closure pursuant to any environmental protection statute; no
lien arising under any environmental protection statute has attached to any
revenues or property of the Corporation; the Corporation does not have any
contingent liability in connection with the release of any hazardous substances
into the environment, including third-party releases onto property that the
Corporation owns or operates; and the Corporation has not received a summons,
citation, notice, or directive from the Environmental Protection Agency or any
other federal or state governmental agency concerning any action or omission by
the Corporation relating to the release or disposal of hazardous waste or
hazardous substances. Except as set forth on Schedule 5.9 attached hereto and
incorporated herein by this reference, the Corporation has not at any time owned
or leased any real estate having underground storage tanks.
5.10 REPRESENTATIONS AND WARRANTIES ON CLOSING DATE. The representations
and warranties of the Seller contained in this Agreement shall be true and
correct in all material respects on and as of the Closing Date with the same
force and effect as though such representations and warranties had been made on
and as of the Closing Date.
5.11 TITLE TO STOCK OF SELLER. The Seller has good title to all of the
Shares held by the Seller. All of the Shares are free and clear of restrictions
on or conditions to transfer or assignment, other than any restrictions imposed
by any governmental agency, and are free and clear of all mortgages, liens,
options, pledges, charges, encumbrances, equities, claims, easements or
restrictions.
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5.12 NO MISREPRESENTATION. None of the representations and/or warranties
made by the Seller and Corporation hereunder contains or will contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which are made, not
misleading.
5.13 FINANCIAL CONTRIBUTION. Seller has paid to the Corporation the sum
of $600,000.00 for the Shares. Seller has received no compensation or
distributions from the Corporation other than reimbursement for funds expended
by Seller or affiliates of Seller on behalf of the Corporation.
6. CONDITIONS TO PURCHASER'S OBLIGATIONS TO CLOSE. The obligations of
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Purchaser under this Agreement are subject to fulfillment of the conditions set
forth below. Purchaser shall have the right to waive in writing all or part of
any one or more of the following conditions without releasing Seller or the
Corporation from any liability for any loss or damage sustained by Purchaser by
reason of the breach by Seller or the Corporation of any covenant, obligation or
agreement contained herein, or by reason of any misrepresentation made by Seller
or the Corporation and upon such waiver may proceed with the transactions
contemplated by this Agreement.
6.1 AGREEMENTS AND CONDITIONS. On or before the Closing Date, Seller and
the Corporation shall have complied with and duly performed in all material
respects all agreements and conditions on their part to be complied with and
performed pursuant to or in connection with this Agreement.
6.2 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of Seller and the Corporation contained in this Agreement, or otherwise made in
writing in connection with the transactions contemplated hereby, shall be true
and correct in all material respects on and as of the Closing Date with the same
force and effect as though such representations and warranties had been made on
and as of the Closing Date.
6.3 NO LEGAL PROCEEDINGS. No action or proceeding shall have been
instituted or threatened to restrain or prohibit the acquisition by Purchaser or
the conveyance by Seller of the Shares or which might result in any material
adverse change in the business, prospects or financial or other condition of the
Corporation.
6.4 LOSS, DAMAGE OR DESTRUCTION. Between the date hereof and the Closing
Date, there shall not have been any material loss, damage or destruction of the
assets of the Corporation, and there shall have been no development which would
have a material adverse effect on the Corporation.
6.5 CONSENTS. Purchaser shall have received the written approval of
Nissan Motor Corporation U.S.A. ("Franchiser") designating Purchaser or its
designee as the duly authorized dealer for the sales and service of such
Franchiser's automobiles at 807 East Francisco Boulevard, San Rafael,
California, free of any material condition which is adverse to Purchaser, and
Purchaser and Franchiser shall have entered into a customary dealer sales and
service agreement. All permits and licenses necessary to enable Purchaser to
conduct the Franchise and service facilities shall have been obtained. All
other requisite consents and approvals shall have been obtained.
6.6 DELIVERIES. On the Closing Date, Seller shall deliver to Purchaser,
executed by Seller in blank for transfer to Purchaser, all issued and
outstanding share certificates evidencing the Shares, and all corporate
documentation and records, including Articles of Incorporation, Bylaws and
minute books. Seller shall further deliver to Seller a written resignation of
all offices and directorships held by Seller in the Corporation.
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7. CONDITIONS OF SELLER'S OBLIGATIONS TO CLOSE. The obligations of Seller
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under this Agreement are subject to fulfillment of the conditions set forth
below. Seller shall have the right to waive in writing all or part of any one
or more of the following conditions without, however, releasing Purchaser from
any liability for any loss or damage sustained by Seller by reason of the breach
by Purchaser of any covenant, obligation or agreement contained herein, or by
reason of any misrepresentation made by Purchaser and upon such waiver may
proceed with the transactions contemplated by this Agreement.
7.1 AGREEMENTS AND CONDITIONS. On or before the Closing Date, Purchaser
shall have complied with and duly performed in all material respects all of the
agreements and conditions on its part required to be complied with or performed
pursuant to this Agreement.
7.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER. The representations and
warranties of Purchaser contained in this Agreement shall be true and correct in
all material respects on and as of the Closing Date with the same force and
effect as though such representations and warranties had been made on and as of
the Closing Date.
7.3 DELIVERIES. On the Closing Date, Purchaser shall deliver to Seller
the sum of $600,000.00 as and for the purchase price for the Shares, and any
executed transfer documentation form(s) required by the Department of
Corporations reflecting the transfer of the Shares.
8. NO OTHER REPRESENTATIONS. Except as specifically set forth herein, no party
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to this Agreement makes any representations or warranties.
9. CLOSING. The closing of this transaction (the "Closing" or the "Closing
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Date") shall take place on satisfaction of the conditions set forth in Sections
6 and 7 above.
10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The parties hereto agree that
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the representations and warranties contained herein and the obligations set
forth in Sections 6 and 7 hereof shall survive the execution and delivery hereof
and the Closing hereunder for a period of five (5) years subsequent to the
Closing.
11. FURTHER ASSURANCES. The parties hereto each agree to execute such other
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documents or agreements as may be necessary or desirable for the implementation
of this Agreement and the consummation of the transactions contemplated hereby.
12. NOTICES. Any notice or other communication required or permitted to be
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given under this Agreement ("Notices") shall be in writing and shall be (i)
personally delivered; (ii) delivered by a reputable overnight courier; or (iii)
delivered by certified mail, return receipt required and deposited in the U.S.
Mail, postage prepaid. Notices shall be deemed received at the earlier of
actual receipt or (i) one (1) business day after deposit with an overnight
courier as evidenced by a receipt of deposit; or (ii) three (3) business days
following deposit in the U.S. Mail, as evidenced by a return receipt. Notices
shall be directed to the parties at their respective addresses shown below and
to the Escrow Holder at the address shown below or such other address as either
party may, from time to time, specify in writing to the other in the manner
described above:
THE PURCHASER: FirstAmerica Automotive, Inc.
100 The Embarcadero, Penthouse
San Francisco, CA 94105
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Attn: W. Bruce Bercovich
Fax No.: (415) 512-9277
WITH COPY TO: W. Bruce Bercovich, Esq.
Kay & Merkle
100 The Embarcadero, Penthouse
San Francisco, California 94105
Fax No.: (415) 512-9277
THE SELLER: The Price Trust
1500 Collins Avenue
Colma, CA 94014
Attn: Thomas A. Price
Fax No.: (415) 756-3945
TO CORPORATION: 1500 Collins Avenue
Colma, CA 94014
Attn: Thomas A. Price
Fax No.: (415) 756-3945
13. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
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the parties pertaining to the subject matter contained in it and supersedes all
prior and contemporaneous agreements, representations and understandings of the
parties.
14. INUREMENT. This Agreement shall be binding on and shall inure to the
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benefit of the parties hereto, their respective heirs, legal representatives,
successors and assigns.
15. CALIFORNIA LAW. This Agreement shall be governed by and be construed
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according to the laws of the State of California.
16. ATTORNEYS' FEES. In the event of any litigation or arbitration between the
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parties, the prevailing party shall be entitled to recover reasonable attorneys'
fees and all other costs and expenses incurred in connection with such
litigation or arbitration.
17. SEVERABILITY. If any provision of this Agreement or the application of any
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provision hereof to any person or circumstance is held invalid, the remainder of
this Agreement and the application of such provision to other persons or
circumstances shall not be affected unless the provision held invalid shall
substantially impair the benefits of the remaining portions of this Agreement.
18. COUNTERPARTS. This Agreement may be executed in counterparts, each of
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which shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument. This Agreement shall become
effective upon the execution of a counterpart hereof by each of the parties
hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
PURCHASER: SELLER:
FirstAmerica Automotive, Inc. The Price Trust u/t/d 10/5/84
By: /s/ Thomas A. Price By: /s/ Thomas A. Price
__________________________ _________________________
Thomas A. Price, President Thomas A. Price, Trustee
THE CORPORATION:
Smart Nissan, Inc.
By: /s/ Thomas A. Price
________________________
Thomas A. Price, President
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SCHEDULES
Schedule 5.5 Unions
Schedule 5.6 Insurance
Schedule 5.7 Employee Plans
Schedule 5.8 Litigation; Conformity with the Law
Schedule 5.9 Environmental Matters
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