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EXHIBIT 2.2
STOCK PURCHASE AGREEMENT
AMONG
GROUP 1 AUTOMOTIVE, INC.,
BOB HOWARD MOTORS, INC.
AND
THE STOCKHOLDERS OF
BOB HOWARD MOTORS, INC.
DATED AS OF
JUNE 14, 1997
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TABLE OF CONTENTS
ARTICLE I
THE ACQUISITION
1.1 The Acquisition . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Closing Date . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Transfer of Shares . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY AND THE STOCKHOLDERS
2.1 Corporate Organization . . . . . . . . . . . . . . . . . . . 3
2.2 Qualification . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 Authorization . . . . . . . . . . . . . . . . . . . . . . . 3
2.4 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.5 Absence of Conflicts . . . . . . . . . . . . . . . . . . . . 3
2.6 Subsidiaries; Equity Investments . . . . . . . . . . . . . . 4
2.7 Capitalization . . . . . . . . . . . . . . . . . . . . . . . 4
2.8 Financial Statements . . . . . . . . . . . . . . . . . . . . 4
2.9 Undisclosed Liabilities . . . . . . . . . . . . . . . . . . 5
2.10 Certain Agreements . . . . . . . . . . . . . . . . . . . . . 5
2.11 Contracts and Commitments . . . . . . . . . . . . . . . . . 5
2.12 Absence of Changes . . . . . . . . . . . . . . . . . . . . . 5
2.13 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . 6
2.14 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.15 Compliance with Law . . . . . . . . . . . . . . . . . . . . 7
2.16 Permits . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.17 Employee Benefit Plans and Policies . . . . . . . . . . . . 7
2.18 Title . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.19 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.20 Affiliate Interests . . . . . . . . . . . . . . . . . . . . 9
2.21 Environmental Matters . . . . . . . . . . . . . . . . . . . 9
2.22 Intellectual Property . . . . . . . . . . . . . . . . . . . 10
2.23 Bank Accounts . . . . . . . . . . . . . . . . . . . . . . . 10
2.24 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE STOCKHOLDERS
3.1 Capital Stock . . . . . . . . . . . . . . . . . . . . . . . 10
3.2 Authorization of Agreement . . . . . . . . . . . . . . . . . 11
3.3 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.4 Absence of Conflicts . . . . . . . . . . . . . . . . . . . . 11
3.5 Investment Intent . . . . . . . . . . . . . . . . . . . . . 11
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF GROUP 1
4.1 Corporate Organization . . . . . . . . . . . . . . . . . . . 12
4.2 Authorization . . . . . . . . . . . . . . . . . . . . . . . 12
4.3 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.4 Absence of Conflicts . . . . . . . . . . . . . . . . . . . . 13
4.5 Capitalization . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE V
COVENANTS OF THE COMPANY AND
THE STOCKHOLDERS
5.1 Acquisition Proposals . . . . . . . . . . . . . . . . . . . 14
5.2 Access . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.3 Conduct of Business by the Company Pending the Acquisition . 14
5.4 Confidentiality . . . . . . . . . . . . . . . . . . . . . . 15
5.5 Notification of Certain Matters . . . . . . . . . . . . . . 16
5.6 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.7 Agreement to Defend . . . . . . . . . . . . . . . . . . . . 16
5.8 Stockholders' Agreements Not to Sell . . . . . . . . . . . . 16
5.9 Intellectual Property Matters . . . . . . . . . . . . . . . 16
5.10 Cooperating in connection with IPO . . . . . . . . . . . . . 16
5.11 Removal of Related Party Guarantees . . . . . . . . . . . . 17
5.12 Termination of Related Party Agreements . . . . . . . . . . 17
5.13 Related Party Agreements . . . . . . . . . . . . . . . . . . 17
5.14 Founders Employment Agreement . . . . . . . . . . . . . . . 17
5.15 GM Employment Agreement . . . . . . . . . . . . . . . . . . 18
5.16 Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.17 Subordination and Non-Disturbance Agreement . . . . . . . . 18
5.18 LIFO Adjustment . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VI
COVENANTS OF GROUP 1
6.1 Confidentiality . . . . . . . . . . . . . . . . . . . . . . 19
6.2 Reservation of Group 1 Common Stock . . . . . . . . . . . . 19
6.3 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.4 Agreement to Defend . . . . . . . . . . . . . . . . . . . . 19
6.5 Removal of Personal Guarantee . . . . . . . . . . . . . . . 19
6.6 Founders Employment Agreement . . . . . . . . . . . . . . . 19
6.7 GM Employment Agreement . . . . . . . . . . . . . . . . . . 19
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ARTICLE VII
CONDITIONS
7.1 Conditions Precedent to Obligation of Each Party to
Effect the Acquisition . . . . . . . . . . . . . . . . . . . 20
7.2 Additional Conditions Precedent to Obligations of Group 1 . 20
7.3 Additional Conditions Precedent to Obligations of the
Stockholders. . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE VIII
EFFECTIVENESS OF REPRESENTATIONS, WARRANTIES
AND AGREEMENTS; INDEMNIFICATION; NON-COMPETITION
8.1 Effectiveness of representations, warranties and agreements 21
8.2 Indemnification . . . . . . . . . . . . . . . . . . . . . . 22
8.3 Non-Competition Obligations . . . . . . . . . . . . . . . . 24
ARTICLE IX
MISCELLANEOUS
9.1 Disclosure Letter . . . . . . . . . . . . . . . . . . . . . 25
9.2 Termination . . . . . . . . . . . . . . . . . . . . . . . . 25
9.3 Effect of Termination . . . . . . . . . . . . . . . . . . . 26
9.4 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.5 Restrictions on Transfer of Group 1 Common Stock . . . . . . 26
9.6 Respecting the IPO . . . . . . . . . . . . . . . . . . . . . 27
9.7 Waiver and Amendment . . . . . . . . . . . . . . . . . . . . 28
9.8 Public Statements . . . . . . . . . . . . . . . . . . . . . 28
9.9 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.10 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.11 Governing Law . . . . . . . . . . . . . . . . . . . . . . . 29
9.12 Severability . . . . . . . . . . . . . . . . . . . . . . . . 29
9.13 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 30
9.14 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . 30
9.15 Entire Agreement; Third Party Beneficiaries . . . . . . . . 30
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement"), dated as of the 14th
day of June, 1997, is among Group 1 Automotive, Inc., a Delaware corporation
("Group 1"), Bob Howard Motors, Inc., an Oklahoma corporation (the "Company"),
and the Persons (defined in Section 2.6 below) listed on the signature pages
hereof under the caption "Stockholders" (collectively, the "Stockholders," and
each of those Persons, individually, a "Stockholder").
PRELIMINARY STATEMENT
The parties to this Agreement have determined it is in their best
long- term interests to effect a business combination pursuant to which:
(A) Group 1 will acquire all of the issued and
outstanding common stock, par value $1.00 per share, of the Company
from the Stockholders (the "Acquisition");
(B) Group 1 will acquire (the "Other Acquisitions") all
of the common stock of the entities listed in the accompanying
Schedule I (each an "Other Founding Company" and, collectively with
the Company, the "Founding Companies") pursuant to agreements that are
(i) similar to this Agreement and (ii) entered into among those
entities and their equity owners and Group 1 (collectively, the "Other
Agreements"); and
(C) Group 1 shall effect a public offering of shares of
its common stock and issue and sell those shares (the "IPO").
Group 1 has provided to the Board of Directors of the Company and the
Stockholders a draft of the Registration Statement on Form S-1 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act") describing Group 1 and its subsidiaries after giving effect
to the Acquisition and the Other Acquisitions.
The respective Boards of Directors of Group 1 and the Company have
approved this Agreement and the Acquisition pursuant to the terms and
conditions herein set forth.
For federal income tax purposes, it is intended that the Acquisition
and the Other Acquisitions and the IPO constitute a transaction described in
Section 351 of the Internal Revenue Code of 1986, as amended (the "Code").
The parties hereto desire to set forth certain representations,
warranties and covenants made by each to the other as an inducement to the
consummation of the Acquisition.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
representations, warranties and covenants herein contained, the parties hereto
hereby agree as follows:
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ARTICLE I
THE ACQUISITION
1.1 The Acquisition. At the Closing (as defined below), each
Stockholder shall sell to Group 1 and Group 1 shall purchase from each
Stockholder that number of shares of common stock, par value $1.00 per share of
the Company ("Company Common Stock") as set forth opposite their respective
names in Schedule II hereto in exchange for that number of shares of common
stock, par value $.01 per share of Group 1 ("Group 1 Common Stock") set forth
opposite their respective names in Schedule II hereto (as may be appropriately
adjusted for stock splits, reverse stock splits and/or stock dividends). In
the event that the Board of Directors of Group 1 approves a reverse stock split
upon the recommendation of the Representatives of the Underwriters in
connection with the IPO, the number of shares of Group 1 Common Stock to be
received by the shareholders of the Founding Companies shall be decreased
proportionately as a result of the reverse stock split; provided, however, that
in the event that the number of shares of Group 1 Common Stock resulting from
the reverse stock split recommended by the Representatives of the Underwriters
is less than the number of shares resulting from a 4.444 for 5 reverse stock
split, a 4.444 for 5 reverse stock split shall be implemented and the number of
shares of Group 1 Common Stock resulting from such 4.444 for 5 reverse stock
split to be received by the shareholders of the Founding Companies shall be
further decreased proportionately to the number of shares that would have been
issued to the shareholders of the Founding Companies had the reverse stock
split recommended by the Representatives of the Underwriters been implemented.
If the number of shares of Group 1 Common Stock received by a Stockholder
pursuant to this Agreement includes a fractional share as a result of a reverse
stock split affecting the Group 1 Common Stock, such fractional share shall be
rounded up to the nearest whole share of Group 1 Common Stock.
1.2 Closing Date. The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place at the offices of Vinson &
Elkins L.L.P., 2300 First City Tower, Houston, Texas 77002 on the same date as
the closing of the IPO, as soon as practicable after the satisfaction or waiver
of the conditions set forth in Article VII or at such other time and place and
on such other date as Group 1 and the Company shall agree; provided, that the
conditions set forth in Article VII shall have been satisfied or waived at or
prior to such time. The date on which the Closing occurs is herein referred to
as the "Closing Date."
1.3 Transfer of Shares. At the Closing, and subject to the
satisfaction or waiver of the conditions set forth in Article VII, the
Stockholders will sell, transfer and deliver that number of shares of Company
Common Stock as set forth opposite their respective names in Schedule II hereto
to Group 1 (in proper form and duly endorsed for transfer) and Group 1 will
purchase such shares of Company Common Stock and will issue, transfer and
deliver to the Stockholders that number of shares of Group 1 Common Stock (in
proper form) set forth opposite their respective names in Schedule II hereto.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY AND THE STOCKHOLDERS
The Company and the Stockholders hereby represent and warrant to Group
1 as follows:
2.1 Corporate Organization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation with all requisite corporate power and
authority to own or lease its properties and conduct its business as now owned,
leased or conducted and to execute, deliver and perform this Agreement and each
instrument required hereby to be executed and delivered by it at the Closing.
The disclosure letter delivered by the Company prior to the execution and
delivery of this Agreement (the "Company Disclosure Letter") includes true and
complete copies of the articles of incorporation and bylaws of the Company, as
amended and presently in effect.
2.2 Qualification. The Company is duly qualified to do business
as a foreign corporation and is in good standing in each jurisdiction in which
the nature of the business as now conducted or the character of the property
owned or leased by it makes such qualification necessary, except where the
failure to be so qualified or in good standing would not have a material
adverse affect on the business, assets, prospects or condition (financial or
otherwise) of the Company (a "Material Adverse Effect"). The Company
Disclosure Letter sets forth a list of the jurisdictions in which the Company
is qualified to do business, if any.
2.3 Authorization. The execution and delivery by the Company of
this Agreement, the performance of its obligations pursuant to this Agreement
and the execution, delivery and performance of each instrument required hereby
to be executed and delivered by the Company at the Closing have been duly and
validly authorized by all requisite corporate action on the part of the
Company. This Agreement has been, and each instrument required hereby to be
executed and delivered by the Company at the Closing will then be, duly
executed and delivered by it, and this Agreement constitutes, and, to the
extent it purports to obligate the Company, each such instrument will
constitute (assuming due authorization, execution and delivery by each other
party thereto), the legal, valid and binding obligation of the Company
enforceable against it in accordance with its terms.
2.4 Approvals. Except for applicable requirements, if any, of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), the Securities Act, and the Oklahoma Motor Vehicle Commission, and
except to the extent set forth in the Company Disclosure Letter, no filing or
registration with, and no consent, approval, authorization, permit, certificate
or order of any federal, state, foreign or local court, tribunal or
governmental agency or authority is required by any applicable statute or other
applicable law or by any applicable judgment, order or decree or any applicable
rule or regulation of any federal, state, foreign or local court, tribunal or
governmental agency or authority to permit the Company to execute, deliver or
perform this Agreement or any instrument required hereby to be executed and
delivered by it at the Closing.
2.5 Absence of Conflicts. Except to the extent set forth in the
Company Disclosure Letter, neither the execution and delivery by the Company of
this Agreement or any instrument required hereby to be executed and delivered
by it at the Closing, nor the performance by the Company of its obligations
under this Agreement or any such instrument will (assuming receipt of all
consents, approvals, authorizations, permits, certificates and orders disclosed
as requisite in the Company Disclosure Letter
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pursuant to Section 2.4) (a) violate or breach the terms of or cause a default
under (i) any applicable federal, state, foreign or local statute or other
applicable law, (ii) any applicable judgment, order or decree or any applicable
rule or regulation of any federal, state, foreign or local court, tribunal or
governmental agency or authority, (iii) any applicable permits received from
any federal, state, foreign or local governmental agency, (iv) the articles of
incorporation or bylaws of the Company, or (v) any contract or agreement to
which the Company is a party or by which it, or any of its properties, is
bound, or (b) result in the creation or imposition of any lien, claim or
encumbrance on any of the properties or assets of the Company, or (c) result in
the cancellation, forfeiture, revocation, suspension or adverse modification of
any existing consent, approval, authorization, license, permit, certificate or
order of any federal, state, foreign or local court, tribunal or governmental
agency or authority, or (d) with the passage of time or the giving of notice or
the taking of any action of any third party have any of the effects set forth
in clause (a), (b) or (c) of this Section, except, with respect to clauses (a),
(b), (c) or (d) of this Section, where such matter would not have a Material
Adverse Effect or a material adverse effect upon the ability of the Company to
consummate the transactions contemplated hereby.
2.6 Subsidiaries; Equity Investments. The Company does not
control directly or indirectly, or have any direct or indirect equity
participation in any individual, firm corporation, partnership, limited
partnership, limited liability company, trust or other entity ("Person").
2.7 Capitalization.
(a) The authorized capital stock of the Company consists
of 25,000 shares of the Company Common Stock, of which 5,000 shares
are issued and outstanding (no shares being held in treasury). Each
outstanding share of the Company Common Stock has been duly
authorized, is validly issued, fully paid and nonassessable and was
not issued in violation of any preemptive rights of any stockholder.
Set forth in the Company Disclosure Letter are the names and addresses
(as reflected in the corporate records of the Company) of each record
holder of the Company Common Stock, together with the number of shares
held by each such Person.
(b) There is not outstanding any capital stock or other
security, including without limitation any option, warrant or right
granted by the Company, entitling the holder thereof to purchase or
otherwise acquire any shares of capital stock of the Company. Except
as disclosed in the Company Disclosure Letter, there are no contracts,
agreements, commitments or arrangements obligating the Company (i) to
issue, sell, pledge, dispose of or encumber any shares of, or any
options, warrants or rights of any kind to acquire, or any securities
that are convertible into or exercisable or exchangeable for, any
shares of, any class of capital stock of the Company or (ii) to
redeem, purchase or acquire or offer to acquire any shares of, or any
outstanding option, warrant or right to acquire, or any securities
that are convertible into or exercisable or exchangeable for, any
shares of, any class of capital stock of the Company.
2.8 Financial Statements. Included in the Company Disclosure
Letter are true and complete copies of the financial statements of the Company
consisting of (i) an unaudited balance sheet of the Company as of December 31,
1996 (the "1996 Balance Sheet") and the related unaudited statements of income,
changes in stockholders' equity and cash flows for the year then ended
(including the notes thereto) (the "Company 1996 Financial Statements") and
(ii) unaudited balance sheets of the Company as of December 31, 1995 and 1994,
and the related unaudited statements of income, changes in stockholders' equity
and cash flows for the calendar years then ended (including the notes thereto)
(collectively with the Company 1996 Financial Statements, the "Company
Financial Statements"). The Company Financial Statements present fairly the
financial position of the Company and the results of its
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operations and changes in financial position as of the dates and for the
periods indicated therein in conformity with generally accepted accounting
principles applied on a consistent basis. The Company Financial Statements do
not omit to state any liabilities, absolute or contingent, required to be
stated therein in accordance with generally accepted accounting principles
consistently applied. All accounts receivable of the Company reflected in the
Company 1996 Financial Statements and as incurred since December 31, 1996
represent sales made in the ordinary course of business, are collectible (net
of any reserves for doubtful accounts shown in the Company 1996 Financial
Statements) in the ordinary course of business and, except as set forth in the
Company Disclosure Letter, are not in dispute or subject to counterclaim, set-
off or renegotiation. The Company Disclosure Letter contains an aged schedule
of accounts receivable included in the Company Financial Statements.
2.9 Undisclosed Liabilities. Except as and to the extent of the
amounts specifically reflected or accrued for in the 1996 Balance Sheet or as
set forth in the Company Disclosure Letter, the Company does not have any
material liabilities or obligations of any nature whether absolute, accrued,
contingent or otherwise, and whether due or to become due. The reserves
reflected in the 1996 Balance Sheet are adequate, appropriate and reasonable in
accordance with generally accepted accounting principles applied on a
consistent basis.
2.10 Certain Agreements. Except as set forth in the Company
Disclosure Letter, neither the Company nor any of its officers or directors, is
a party to, or bound by, any contract, agreement or organizational document
which purports to restrict, by virtue of a noncompetition, territorial
exclusivity or other provision covering such subject matter purportedly
enforceable by a third party against the Company, or any of its officers or
directors, the scope of the business or operations of the Company or any of its
officers or directors, geographically or otherwise.
2.11 Contracts and Commitments. The Company Disclosure Letter
includes (i) a list of all contracts to which the Company is a party or by
which its property is bound that involve consideration or other expenditure in
excess of $50,000 or performance over a period of more than six months or that
is otherwise material to the business or operations of the Company ("Material
Contracts"); (ii) a list of all real or personal property leases to which the
Company is a party involving consideration or other expenditure in excess of
$50,000 over the term of the lease ("Material Leases"); (iii) a list of all
guarantees of, or agreements to indemnify or be contingently liable for, the
payment or performance by any Person to which the Company is a party
("Guarantees") and (iv) a list of all contracts or other formal or informal
understandings between the Company and any of its officers, directors,
employees, agents or stockholders or their affiliates ("Related Party
Agreements"). True and complete copies of each Material Contract, Material
Lease, Guarantee and Related Party Agreement have been furnished to Group 1.
2.12 Absence of Changes. Except as set forth in the Company
Disclosure Letter, there has not been, since December 31, 1996, any material
adverse change with respect to the business, assets, prospects or condition
(financial or otherwise) of the Company. Except as set forth in the Company
Disclosure Letter, since December 31, 1996, the Company has not engaged in any
transaction or conduct of any kind which would be proscribed by Section 5.3
herein after execution and delivery of this Agreement. Notwithstanding the
preceding sentence, the Company makes no representation regarding, and need not
disclose, increases in compensation (of the type contemplated in Section
5.3(f)) since December 31, 1996, for any employee who after such increase would
receive annual compensation of less than $50,000.
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2.13 Tax Matters.
(a) Except as set forth in the Company Disclosure Letter
(and except for filings and payments of assessments the failure of
which to file or pay will not materially adversely affect the
Company), (i) all returns and reports ("Tax Returns") of or with
respect to any Tax (as defined below) which is required to be filed on
or before the Closing Date by or with respect to the Company have been
or will be duly and timely filed, (ii) all items of income, gain,
loss, deduction and credit or other items required to be included in
each such Tax Return have been or will be so included and all
information provided in each such Tax Return is true, correct and
complete, (iii) all Taxes which have become or will become due with
respect to the period covered by each such Tax Return have been or
will be timely paid in full, (iv) all withholding Tax requirements
imposed on or with respect to the Company have been or will be
satisfied in full, and (v) no penalty, interest or other charge is or
will become due with respect to the late filing of any such Tax Return
or late payment of any such Tax. For purposes of this Agreement,
"Taxes" shall mean all taxes, charges, imposts, tariffs, fees, levies
or other similar assessments or liabilities, including income taxes,
ad valorem taxes, excise taxes, withholding taxes, stamp taxes or
other taxes of or with respect to gross receipts, premiums, real
property, personal property, windfall profits, sales, use, transfers,
licensing, employment, payroll and franchises imposed by or under any
law; and such terms shall include any interest, fines, penalties,
assessments or additions to tax resulting from, attributable to or
incurred in connection with any such tax or any contest or dispute
thereof.
(b) The Company Disclosure Letter sets forth all periods
for which Tax Returns of the Company (i) have been audited by the
applicable governmental authorities or (ii) are no longer subject to
audit due to the expiration of the applicable statute of limitations.
(c) There is no claim against the Company for any Taxes,
and no assessment, deficiency or adjustment has been asserted or
proposed with respect to any Tax Return of or with respect to the
Company, other than those disclosed (and to which are attached true
and complete copies of all audit or similar reports) in the Company
Disclosure Letter.
(d) Except as set forth in the Company Disclosure Letter,
there is not in force any extension of time with respect to the due
date for the filing of any Tax Return of or with respect to the
Company or any waiver or agreement for any extension of time for the
assessment or payment of any Tax of or with respect to the Company.
(e) The total amounts set up as liabilities for current
and deferred Taxes in the Balance Sheet are sufficient to cover the
payment of all Taxes, whether or not assessed or disputed, which are,
or are hereafter found to be, or to have been, due by or with respect
to the Company up to and through the periods covered thereby.
(f) All Tax allocation or sharing agreements affecting
the Company shall be terminated prior to the Closing Date and no
payments shall be due or will become due by the Company on or after
the Closing Date pursuant to any such agreement or arrangement.
(g) Except as set forth in the Company Disclosure Letter,
the Company will not be required to include any amount in income for
any taxable period beginning the Closing Date as a result of a change
in accounting method for any taxable period ending on or before the
Closing Date or pursuant to any agreement with any Tax authority with
respect to any such taxable period.
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(h) The Company has not consented to have the provisions
of Section 341(f)(2) of the Code apply with respect to a sale of its
stock.
(i) From January 1, 1991 through the Closing Date, (a)
the Company continuously has been and will be an S Corporation within
the meaning of Section 1361 of the Code, and (b) each holder of the
Company stock has been an individual resident of the United States or
an estate or trust described in Section 1361(c)(2) of the Code that is
permitted to hold the stock of an S Corporation.
2.14 Litigation.
(a) Except as set forth in the Company Disclosure Letter,
there are no actions at law, suits in equity, investigations,
proceedings or claims pending or, to the knowledge of the Company,
threatened against or specifically affecting the Company before or by
any federal, state, foreign or local court, tribunal or governmental
agency or authority which if determined adversely to the Company would
have a Material Adverse Effect.
(b) Except as contemplated by this Agreement and except
to the extent set forth in the Company Disclosure Letter, the Company
has substantially performed all obligations required to be performed
by it to date and is not in default under, and, to the knowledge of
the Company, no event has occurred which, with the lapse of time or
action by a third party could result in a default under any contract
or other agreement to which the Company is a party or by which it or
any of its properties is bound or under any applicable judgment, order
or decree of any federal, state, foreign or local court, tribunal or
governmental agency or authority, other than such defaults that would
not, individually or in the aggregate, have a Material Adverse Effect.
2.15 Compliance with Law. Except as set forth in the Company
Disclosure Letter, the Company is in compliance with all applicable statutes
and other applicable laws and all applicable rules and regulations of all
federal, state, foreign and local governmental agencies and authorities, except
where the failure to be in compliance would not have a Material Adverse Effect.
2.16 Permits. Except as set forth in the Company Disclosure
Letter, the Company owns or holds all franchises, licenses, permits, consents,
approvals and authorizations of all governmental agencies and authorities,
federal, state, foreign and local, necessary for the conduct of its business,
except for those franchises, licenses, permits, consents, approvals and
authorizations which the failure to own or hold would not, in the aggregate,
have a Material Adverse Effect. Each franchise, license, permit, consent,
approval and authorization so owned or held is in full force and effect, and
the Company is in compliance with all of its obligations with respect thereto,
except where the failure to be in full force and effect or to be in compliance
would not, in the aggregate, have a Material Adverse Effect, and, to the
knowledge of the Company, no event has occurred which allows, or upon the
giving of notice or the lapse of time or otherwise would allow, revocation or
termination of any franchise, license, permit, consent, approval or
authorization so owned or held.
2.17 Employee Benefit Plans and Policies.
(a) The Company Disclosure Letter provides a description
of each of the following which is sponsored, maintained or contributed
to by the Company for the benefit of its employees, or has been so
sponsored, maintained or contributed to within six years prior to the
Closing Date:
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(i) each "employee benefit plan," as such term is
defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") ("Plan"); and
(ii) each personnel policy, stock option plan,
collective bargaining agreement, bonus plan or arrangement,
incentive award plan or arrangement, vacation policy,
severance pay plan, policy or agreement, deferred compensation
agreement or arrangement, executive compensation or
supplemental income arrangement, consulting agreement,
employment agreement and each other employee benefit plan,
agreement, arrangement, program, practice or understanding
that is not described in Section 2.17(a)(i) ("Benefit Program
or Agreement").
True and complete copies of each of the Plans, Benefit Programs or
Agreements, related trusts, if applicable, and all amendments thereto,
have been furnished to Group 1.
(b) The Company does not contribute to or have an
obligation to contribute to, and has not at any time contributed to or
had an obligation to contribute to, a plan subject to Title IV of
ERISA, including, without limitation, a multiemployer plan within the
meaning of Section 3(37) of ERISA.
(c) Except as otherwise set forth in the Company
Disclosure Letter,
(i) Each Plan and each Benefit Program or
Agreement has been administered, maintained and operated in
accordance with the terms thereof and in compliance with its
governing documents and applicable law (including, where
applicable, ERISA and the Code);
(ii) There is no matter pending with respect to
any of the Plans before any governmental agency, and there are
no actions, suits or claims pending (other than routine claims
for benefits) or threatened against, or with respect to, any
of the Plans or Benefit Programs or Agreements or their
assets;
(iii) No act, omission or transaction has occurred
which would result in imposition on the Company of (A) breach
of fiduciary duty liability damages under Section 409 of
ERISA, (B) a civil penalty assessed pursuant to subsections
(c), (i) or (l) of Section 502 of ERISA or (C) a tax imposed
pursuant to Chapter 43 of Subtitle D of the Code;
(iv) Each of the Plans intended to be qualified
under Section 401 of the Code satisfies the requirements of
such Section, has received a favorable determination letter
from the Internal Revenue Service regarding such qualified
status and has not, since receipt of the most recent favorable
determination letter, been amended or operated in a way which
would adversely affect such qualified status;
(v) As to any Plan intended to be qualified under
Section 401 of the Code, there has been no termination or
partial termination of the Plan within the meaning of Section
411(d)(3) of the Code; and
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(vi) The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby
will not (A) require the Company to make a larger contribution
to, or pay greater benefits under, any Plan or Benefit Program
or Agreement than it otherwise would or (B) create or give
rise to any additional vested rights or service credits under
any Plan or Benefit Program or Agreement.
(d) There does not currently exist, and there has not at
any time existed, any corporation, trade, business or entity under
common control with the Company, within the meaning of Section 414(b),
(c), (m) or (o) of the Code or Section 4001 of ERISA.
(e) Termination of employment of any employee of the
Company after consummation of the transactions contemplated by this
Agreement would not result in payments under the Plans or Benefit
Programs or Agreements which, in the aggregate, would result in
imposition of the sanctions imposed under Sections 280G and 4999 of
the Code.
(f) Each Plan which is an "employee welfare benefit
plan", as such term is defined in Section 3(1) of ERISA, may be
unilaterally amended or terminated in its entirety without liability
except as to benefits accrued thereunder prior to such amendment or
termination.
(g) The Company Disclosure Letter sets forth by name and
job description of the employees of the Company as of the date of this
Agreement (the "Company Employees"). None of said employees are
subject to union or collective bargaining agreements. The Company has
not at any time had or been threatened with any work stoppages or
other labor disputes or controversies with respect to its employees.
2.18 Title. Except as set forth in the Company Disclosure Letter,
the Company has good and valid title to all properties and assets which it
purports to own, including without limitation the properties and assets which
are reflected in the 1996 Balance Sheet (other than those disposed of since
such date in the ordinary course of business) and good and valid leasehold
interests in all properties and assets which it purports to hold under lease,
and each such ownership or leasehold interest is free and clear of all liens,
claims and encumbrances other than as set forth in the applicable lease
agreements and those reflected in the Company Financial Statements or the
Company Disclosure Letter.
2.19 Insurance. The Company Disclosure Letter identifies, by name
of underwriter, risk insured, amount insured, policy number and date of
issuance all policies of insurance owned by the Company as of the date hereof
or as to which the Company, as of the date hereof, is a beneficiary. All such
policies are currently in full force and effect.
2.20 Affiliate Interests. Except as set forth in the Company
Disclosure Letter, no employee, officer or director, or former employee,
officer or director of the Company has any interest in any property, tangible
or intangible, including without limitation, patents, trade secrets, other
confidential business information, trademarks, service marks or trade names,
used in or pertaining to the business of the Company, except for the normal
rights of employees and stockholders.
2.21 Environmental Matters. The Company is in compliance in all
material respects with all laws, rules, regulations, and other legal
requirements relating to the prevention of pollution and the protection of the
environment (collectively, "Environmental Laws"), and the Company possesses and
can transfer to Group 1 or a Subsidiary of Group 1 all permits, licenses, and
similar authorizations required under Environmental Laws for operation of its
business as currently conducted. Furthermore, there is no
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physical condition existing on any property ever owned or operated by the
Company nor are there any physical conditions existing on any other property
that may have been affected by the Company's operations which could give rise
to any material remedial obligation under any Environmental Laws or which could
result in any material liability to any third party pursuant to any
Environmental Laws.
2.22 Intellectual Property. Except as set forth in the Company
Disclosure Letter, the Company owns, or is licensed or otherwise has the right
to use all patents, trademarks, copyrights, and other proprietary rights
("Intellectual Property") that are material to the condition (financial or
otherwise) or conduct of the business and operations of the Company. To the
knowledge of the Company, (a) the use of the Intellectual Property by the
Company does not infringe on the rights of any Person, subject to such claims
and infringements as do not, in the aggregate, give rise to any liability on
the part of the Company which could have a Material Adverse Effect and (b) no
Person is infringing on any right of the Company with respect to any
Intellectual Property. No claims are pending or, to the knowledge of the
Company, threatened that the Company is infringing or otherwise adversely
affecting the rights of any Person with regard to any Intellectual Property.
All of the Intellectual Property that is owned by the Company is owned free and
clear of all encumbrances and was not misappropriated from any Person. All of
the Intellectual Property that is licensed by the Company is licensed pursuant
to valid and existing license agreements. The consummation of the transactions
contemplated by this Agreement will not result in the loss of any Intellectual
Property.
2.23 Bank Accounts. The Company Disclosure Letter includes the
names and locations of all banks in which the Company has an account or safe
deposit box and the names of all Persons authorized to draw thereon or to have
access thereto.
2.24 Disclosure. The Company has disclosed in writing, or pursuant
to this Agreement and the Company Disclosure Letter, all facts material to the
business, assets, prospects and condition (financial or otherwise) of the
Company. No representation or warranty to Group 1 by the Company contained in
this Agreement, and no statement contained in the Company Disclosure Letter,
any certificate, list or other writing furnished to Group 1 by the Company
pursuant to the provisions hereof or in connection with the transactions
contemplated hereby, contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements herein or
therein not misleading. All statements contained in this Agreement, the
Company Disclosure Letter, and any certificate, list, document or other writing
delivered pursuant hereto or in connection with the transactions contemplated
hereby shall be deemed a representation and warranty of the Company for all
purposes of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE STOCKHOLDERS
Each Stockholder hereby individually with respect to the shares of
Company Common Stock owned by such Stockholder, severally and not jointly,
represents and warrants to Group 1 that:
3.1 Capital Stock. Such Stockholder is the beneficial and record
owner of the number of shares of Company Common Stock as set forth in the
Company Disclosure Letter, free and clear of any lien, claim, pledge,
encumbrance or other adverse claim. Except for such shares of Company Common
Stock set forth in the Company Disclosure Letter and Schedule II hereto, such
Stockholder does not own,
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beneficially or of record, any capital stock or other security, including
without limitation any option, warrant or right entitling the holder thereof to
purchase or otherwise acquire any shares of capital stock of the Company.
3.2 Authorization of Agreement.
(a) Such Stockholder has full legal right, power,
capacity and authority to execute, deliver and perform its obligations
pursuant to this Agreement and to execute, deliver and perform its
obligations under each instrument required hereby to be executed and
delivered by such Stockholder at the Closing.
(b) This Agreement has been, and each instrument required
hereby to be executed and delivered by such Stockholder at the Closing
will then be, duly executed and delivered by such Stockholder, and
this Agreement constitutes and, to the extent it purports to obligate
such Stockholder, each such instrument will constitute (assuming due
authorization, execution and delivery by each other party thereto),
the legal, valid and binding obligation of such Stockholder
enforceable against it in accordance with its terms.
3.3 Approvals. Except for applicable requirements, if any, of the
HSR Act, the Securities Act, the Oklahoma Used Motor Vehicle and Parts
Commission and the Oklahoma Motor Vehicle Commission, no filing or
registration with, and no consent, approval, authorization, permit, certificate
or order of any court, tribunal or governmental agency or authority, federal,
state, foreign or local, is required by any applicable statute or other
applicable law or by any applicable judgment, order or decree or any applicable
rule or regulation of any court, tribunal or governmental agency or authority,
federal, state, foreign or local, to permit such Stockholder to execute,
deliver or perform this Agreement or any instrument required hereby to be
executed and delivered by it at the Closing.
3.4 Absence of Conflicts. Except to the extent set forth in the
Company Disclosure Letter, neither the execution and delivery by such
Stockholder of this Agreement or any instrument required hereby to be executed
and delivered by it at the Closing, nor the performance by such Stockholder of
its obligations under this Agreement or any such instrument will (a) violate or
breach the terms of or cause a default under (i) any applicable statute or
other applicable law, federal, state, foreign or local, (ii) any applicable
judgment, order or decree or any applicable rule or regulation of any court,
tribunal or governmental agency or authority, federal, state, foreign or local,
(iii) the organizational documents of such Stockholder or (iv) any contract or
agreement to which such Stockholder is a party or by which it, or any of its
properties, is bound, or (b) result in the creation or imposition of any lien,
claim or encumbrance on any of the properties or assets of such Stockholder, or
(c) result in the cancellation, forfeiture, revocation, suspension or adverse
modification of any existing consent, approval, authorization, license, permit,
certificate or order of any court, tribunal or governmental agency or
authority, federal, state, foreign or local, or (d) with the passage of time or
the giving of notice or the taking of any action of any third party have any of
the effects set forth in clause (a), (b) or (c) of this Section, except, with
respect to clauses (a), (b), (c) or (d) of this Section, where such matter
would not have a Material Adverse Effect on the Company or the ability of the
Company or such Stockholder to consummate the transactions contemplated hereby.
3.5 Investment Intent. Each Stockholder makes the following
representations relating to its acquisition of shares of Group 1 Common Stock:
(i) such Stockholder will be acquiring the shares of Group 1 Common Stock to be
issued pursuant to the Acquisition to such Stockholder solely for such
Stockholder's account, for investment purposes only and with no current
intention or plan to distribute,
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sell or otherwise dispose of any of those shares; (ii) such Stockholder is not
a party to any agreement or other arrangement for the disposition of any shares
of Group 1 Common Stock other than this Agreement; (iii) such Stockholder,
other than Steve Albright, is an "accredited investor" as defined in Securities
Act Rule 501(a); (iv) such Stockholder (A) is able to bear the economic risk of
an investment in the Group 1 Common Stock acquired pursuant to this Agreement,
(B) can afford to sustain a total loss of that investment, (C) has such
knowledge and experience in financial and business matters, and such past
participation in investments, that he or she is capable of evaluating the
merits and risks of the proposed investment in the Group 1 Common Stock, (D)
has received and reviewed the draft Registration Statement, (E) has had an
adequate opportunity to ask questions and receive answers from the officers of
Group 1 concerning any and all matters relating to the transactions
contemplated hereby, including the background and experience of the current and
proposed officers and directors of Group 1, the plans for the operations of the
business of Group 1, the business, operations and financial condition of the
Other Founding Companies and any plans of Group 1 for additional acquisitions,
and (F) has asked all questions of the nature described in the preceding clause
(E), and all those questions have been answered to his or her satisfaction; (v)
such Stockholder acknowledges that the shares of Group 1 Common Stock to be
delivered to such Stockholder pursuant to the Acquisition have not been and
will not be registered under the Securities Act or qualified under applicable
blue sky laws and therefore may be required to be held for an indefinite period
of time and may not be resold by such Stockholder without compliance with the
Securities Act; (vi) such Stockholder acknowledges that he or she has agreed,
pursuant to Section 9.5 herein, not to sell the shares of Group 1 Common Stock
to be delivered to such Stockholder pursuant to the Acquisition for a period of
two years from the Closing Date; (vii) such Stockholder acknowledges that as a
result of the substantial restrictions, imposed both contractually and by the
Securities Act, on the resale of the shares of Group 1 Common Stock received in
the Acquisition, such shares of Group 1 Common Stock will have a substantially
lower value than those shares of Group 1 Common Stock that are registered under
the Securities Act and sold in the IPO; (viii) such Stockholder, if a
corporation, partnership, trust or other entity, acknowledges that it was not
formed for the specific purpose of acquiring the Group 1 Common Stock; and (ix)
without limiting any of the foregoing, such Stockholder agrees not to dispose
of any portion of Group 1 Common Stock unless either (1) a registration
statement under the Securities Act is in effect as to the applicable shares and
the disposition is made in accordance with that registration statement, or (2)
the Stockholder has notified Group 1 of the proposed disposition, provided
Group 1 with a detailed description of the circumstances surrounding the
proposed disposition and furnished Group 1 with written opinion of counsel
opining that the proposed disposition would not require registration of any
securities under federal or state securities law.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF GROUP 1
Group 1 hereby represents and warrants to the Company and the
Stockholders that:
4.1 Corporate Organization. Group 1 is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware with all requisite corporate power and authority to execute, deliver
and perform this Agreement and each instrument required hereby to be executed
and delivered by it at the Closing.
4.2 Authorization. The execution and delivery by Group 1 of this
Agreement, the performance by Group 1 of its obligations pursuant to this
Agreement, and the execution, delivery and
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performance of each instrument required hereby to be executed and delivered by
Group 1 at the Closing have been duly and validly authorized by all requisite
corporate action on the part of Group 1. This Agreement has been, and each
instrument required hereby to be executed and delivered by Group 1 at or prior
to the Closing will then be, duly executed and delivered by Group 1. This
Agreement constitutes, and, to the extent it purports to obligate Group 1, each
such instrument will constitute (assuming due authorization, execution and
delivery by each other party thereto), the legal, valid and binding obligation
of Group 1, enforceable against it in accordance with its terms.
4.3 Approvals. Except for applicable requirements, if any, of the
HSR Act, the Securities Act, the Oklahoma Used Motor Vehicle and Parts
Commission and the Oklahoma Motor Vehicle Commission, no filing or registration
with, and no consent, approval, authorization, permit, certificate or order of
any court, tribunal or government agency or authority, federal, state, foreign
or local, is required by any applicable statute or other applicable law or by
any applicable judgment, order or decree or any applicable rule or regulation
of any court, tribunal or governmental agency or authority, federal, state,
foreign or local, to permit Group 1, to execute, deliver or consummate the
transactions contemplated by this Agreement or any instrument required hereby
to be executed and delivered by Group 1 at or prior to the Closing.
4.4 Absence of Conflicts. Neither the execution and delivery by
Group 1 of this Agreement or any instrument required hereby to be executed by
it at or prior to the Closing nor the performance by Group 1 of its obligations
under this Agreement or any such instrument will (a) violate or breach the
terms of or cause a default under (i) any applicable statute or other
applicable law, federal, state, foreign or local, (ii) any applicable judgment,
order or decree or any applicable rule or regulation of any court, tribunal or
governmental agency or authority, federal, state, foreign or local, (iii) the
organizational documents of Group 1 or (iv) any contract or agreement to which
Group 1 is a party or by which it or any of its property is bound, or (b)
result in the creation or imposition of any lien, claim or encumbrance on any
of the properties or assets of Group 1 or any of its subsidiaries (other than
any lien, claim or encumbrance created by the Company), or (c) result in the
cancellation, forfeiture, revocation, suspension or adverse modification of any
existing consent, approval, authorization, license, permit certificate or order
of any court, tribunal or governmental agency or authority, federal, state,
foreign or local or (d) with the passage of time or the giving of notice or the
taking of any action by any third party have any of the effects set forth in
clause (a), (b) or (c) of this Section, except, with respect to clauses (a),
(b), (c) or (d) of this Section, where such matter would not have a material
adverse effect on the business, assets, prospects or condition (financial or
otherwise) of Group 1 and its subsidiaries, taken as a whole.
4.5 Capitalization.
(a) The authorized capital stock of Group 1 consists of
1,000,000 shares of preferred stock, par value $.01 per share,
issuable in series, of which preferred stock none is outstanding and
50,000,000 shares of Group 1 Common Stock, of which 450,000 shares are
issued and outstanding; in addition, options have been granted to
purchase 565,000 shares of Group 1 Common Stock. Each outstanding
share of Group 1 Common Stock has been duly authorized, is validly
issued, fully paid and nonassessable and was not issued in violation
of the preemptive rights of any stockholder of Group 1.
(b) Group 1 will issue a total of 9,550,000 shares of
Group 1 Common Stock (less 2,000,000 divided by the Net IPO Price) in
connection with the Acquisition and the Other Acquisitions, subject to
adjustment as provided in the Stock Purchase Agreements to be executed
in connection with the Acquisition and the Other Acquisitions. "Net
IPO Price" is the per share
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IPO price of Group 1 Common Stock, less applicable underwriting
discounts and a pro rata portion of expenses related to the IPO.
(c) All shares of Group 1 Common Stock issuable pursuant
to the Acquisition are duly authorized and will, when issued, be
validly issued, fully paid and nonassessable and not issued in
violation of the preemptive rights of any stockholder of Group 1.
ARTICLE V
COVENANTS OF THE COMPANY AND
THE STOCKHOLDERS
5.1 Acquisition Proposals. Prior to the Closing Date, neither the
Company, any of its officers, directors, employees or agents nor any
Stockholder shall agree to, solicit or encourage inquiries or proposals with
respect to, furnish any information relating to, or participate in any
negotiations or discussions concerning, any acquisition, business combination
or purchase of all or a substantial portion of the assets of, or a substantial
equity interest in, the Company, other than the transactions with Group 1
contemplated by this Agreement.
5.2 Access. The Company shall afford Group 1's officers,
employees, counsel, accountants and other authorized representatives access,
during normal business hours throughout the period prior to the Closing Date,
to all its properties, books, contracts, commitments and records and, during
such period, the Company shall furnish promptly to Group 1 any information
concerning its business, properties and personnel as Group 1 may reasonably
request; provided, however, that no investigation pursuant to this Section or
otherwise shall affect or be deemed to modify any representation or warranty
made by the Company or the Stockholders pursuant to this Agreement.
5.3 Conduct of Business by the Company Pending the Acquisition.
The Company and the Stockholders covenant and agree that, from the date of this
Agreement until the Closing Date, unless Group 1 shall otherwise agree in
writing or as otherwise expressly contemplated by this Agreement or as
disclosed in the Company Disclosure Letter:
(a) The business of the Company shall be conducted only
in, and the Company shall not take any action except in, the ordinary
course of business and consistent with past practice;
(b) The Company shall not directly or indirectly do any
of the following: (i) issue, sell, pledge, dispose of or encumber, (A)
any capital stock of the Company or (B) other than in the ordinary
course of business and consistent with past practice and not relating
to the borrowing of money, any assets of the Company, (ii) amend or
propose to amend the articles of incorporation or bylaws of the
Company, (iii) split, combine or reclassify any outstanding capital
stock, or declare, set aside or pay any dividend payable in cash,
stock, property or otherwise with respect to its capital stock whether
now or hereafter outstanding (other than (x) the distribution of all
profits from January 1, 1997 through the Closing Date, calculated in
accordance with manufacturers accounting procedures and valuing
inventories on a FIFO basis, with profits for the month of Closing pro
rated based on the number of days up to and including the Closing Date
divided by the total number of days in the month, such profits to be
distributed within thirty (30) days of closing, and (y) a return of
capital distribution in the amount of $800,000), (iv) redeem, purchase
or acquire or offer to acquire any of its capital stock, (v) incur
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any indebtedness for borrowed money, or (vi) except in the ordinary
course of business and consistent with past practice, enter into any
contract, agreement, commitment or arrangement with respect to any of
the matters set forth in this Section 5.3(b);
(c) The Company shall use its best efforts (i) to
preserve intact the business organization of the Company, (ii) to
maintain in effect any franchises, authorizations or similar rights of
the Company, (iii) to keep available the services of its current
officers and key employees, (iv) to preserve the goodwill of those
having business relationships with it, (v) to maintain and keep its
properties in as good a repair and condition as presently exists,
except for deterioration due to ordinary wear and tear; and (vi) to
maintain in full force and effect insurance comparable in amount and
scope of coverage to that currently maintained by it;
(d) The Company shall not make or agree to make any
single capital expenditure or enter into any purchase commitments in
excess of $25,000;
(e) The Company shall perform its obligations under any
contracts and agreements to which it is a party or to which its assets
are subject, except for such obligations as the Company in good faith
may dispute;
(f) The Company shall not increase the salary, benefits,
stock options, bonus or other compensation of any officer, director or
employee of the Company; and shall not grant, to any individual,
severance or termination pay that exceeds the lesser of (i) such
individual's compensation for the calendar month immediately preceding
such individual's grant of severance or termination pay, or (ii)
$10,000;
(g) The Company shall not take any action that would, or
that reasonably could be expected to, result in any of the
representations and warranties set forth in this Agreement becoming
untrue or any of the conditions to the Acquisition set forth in
Article VII not being satisfied. The Company promptly shall advise
Group 1 orally and in writing of any change or event having, or which,
insofar as reasonably can be foreseen, would have, a Material Adverse
Effect; and
(h) The Company shall not (i) amend or terminate any Plan
or Benefit Program or Agreement except as may be required by
applicable law, (ii) increase or accelerate the payment or vesting of
the amounts payable under any Plan or Benefit Program or Agreement, or
(iii) adopt or enter into any personnel policy, stock option plan,
collective bargaining agreement, bonus plan or arrangement, incentive
award plan or arrangement, vacation policy, severance pay plan, policy
or agreement, deferred compensation agreement or arrangement,
executive compensation or supplemental income arrangement, consulting
agreement, employment agreement or any other employee benefit plan,
agreement, arrangement, program, practice or understanding (other than
the Plans and the Benefit Programs or Agreements).
5.4 Confidentiality. The Company and the Stockholders agree, and
the Company agrees to cause its officers, directors, employees, representatives
and consultants, to hold in confidence, and not to disclose to others for any
reason whatsoever, any non-public information received by them or their
representatives in connection with the transactions contemplated hereby except
(i) as required by law; (ii) for disclosure to officers, directors, employees
and representatives of the Company as necessary in connection with the
transactions contemplated hereby; and (iii) for information which becomes
publicly available other than through the actions of the Company or a
Stockholder. In the event the Acquisition
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is not consummated, the Company and the Stockholders will return all non-public
documents and other material obtained from Group 1 or its representatives in
connection with the transactions contemplated hereby or certify to Group 1 that
all such information has been destroyed.
5.5 Notification of Certain Matters. The Company shall give
prompt notice to Group 1, orally and in writing, of (i) the occurrence, or
failure to occur, of any event which occurrence or failure would be likely to
cause any representation or warranty contained in this Agreement to be untrue
or inaccurate at any time from the date hereof to the Closing or (ii) any
material failure of the Company, or any officer, director, employee or agent
thereof, or any Stockholder to comply with or satisfy any covenant, condition
or agreement to be complied with or satisfied by it hereunder.
5.6 Consents. Subject to the terms and conditions of this
Agreement, the Company shall (i) take all reasonable steps to obtain all
consents, waivers, approvals (including all applicable automobile manufacturers
approvals, and such approvals shall not contain any unreasonably burdensome
restrictions on the Company or Group 1), authorizations and orders required in
connection with the authorization, execution and delivery of this Agreement and
the consummation of the Acquisition; and (ii) take, or cause to be taken, all
appropriate action, and do, or cause to be done, all things necessary or proper
to consummate and make effective as promptly as practicable the transactions
contemplated by this Agreement.
5.7 Agreement to Defend. In the event any claim, action, suit,
investigation or other proceeding by any governmental authority or other Person
or other legal or administrative proceeding is commenced that questions the
validity or legality of the transactions contemplated hereby or seeks damages
in connection therewith, whether before or after the Closing, the Company and
the Stockholders agree to cooperate and use reasonable efforts (such efforts
shall not include incurring costs to third parties) to defend against and
respond thereto.
5.8 Stockholders' Agreements Not to Sell. Each of the
Stockholders hereby covenants and agrees not to sell, pledge, transfer, dispose
of or encumber any shares of Company Common Stock currently owned, either
beneficially or of record, by such Stockholder except pursuant to Section 9.5
of this Agreement.
5.9 Intellectual Property Matters. The Company shall use its best
efforts to preserve its ownership rights to the Intellectual Property free and
clear of any liens, claims or encumbrances and shall use its best efforts to
assert, contest and prosecute any infringement of any issued foreign or
domestic patent, trademark, service mark, trade name or copyright that forms a
part of the Intellectual Property or any misappropriation or disclosure of any
trade secret, confidential information or know-how that forms a part of the
Intellectual Property.
5.10 Cooperating in connection with IPO. The Company and the
Stockholders will (a) provide Group 1 with all information concerning the
Company or the Stockholders which is reasonably requested by Group 1 from time
to time in connection with effecting the IPO and (b) cooperate with Group 1 and
their representatives in the preparation of the Registration Statement
(including the Financial Statements) and in responding to comments of the staff
of the Commission, if any, with respect thereto. The Company and the
Stockholders agree promptly to (a) advise Group 1, if at any time during the
period in which a prospectus relating to the IPO is required to be delivered
under the Securities Act, any information contained in the then current
Registration Statement prospectus concerning the Company or any of the
Stockholders becomes incorrect or incomplete in any material respect and (b)
provide Group 1 with information needed to correct or complete such
information.
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5.11 Removal of Related Party Guarantees.
(a) The Company and the Stockholders agree to take, or
cause to be taken, all appropriate action, and do, or cause to be
done, all things necessary, proper or advisable to terminate, waive or
release all Company guarantees (such guarantees shall be referred to
herein as "Related Guarantees," as described in the Company Disclosure
Letter pursuant to Section 2.11 of this Agreement) of indebtedness or
other obligations of any of the Company's officers, directors,
shareholders or employees or their affiliates.
(b) Without limiting the generality of the foregoing
subsection 5.11(a), and in further consideration of Group 1 entering
into this Agreement, Robert E. Howard II hereby agrees to grant to
Group 1 an option to purchase the premises (the "Premises") located at
13200 N. Broadway Extension, in Oklahoma City, Oklahoma, to be
described more particularly at a later date in Exhibit A to the form
of Lease Agreement attached as Exhibit C hereto (the "Guaranty
Purchase Option"). The Guaranty Purchase Option shall be granted to
Group 1 pursuant to a written option agreement executed by Group 1 and
Robert E. Howard II, in form and substance satisfactory to Group 1,
such option agreement to be delivered to Group 1 on or before the
tenth (10th) day after the date hereof. The Guaranty Purchase Option
shall only be exercisable by written notice to Robert E. Howard II, on
a date (the "Guaranty Exercise Date") at any time after (i) the
expiration of ninety (90) days after the Closing Date, and (ii) the
failure of Robert E. Howard II to obtain full and complete written
releases (the "Required Releases") of all Related Guarantees of any
indebtedness which is secured by liens or security interests covering
the Premises (the "Indebtedness"). The Required Releases shall be
executed by the then current owner and holder of the Indebtedness.
The purchase price of the Guaranty Purchase Option shall be the
principal amount outstanding under the Indebtedness on the Guaranty
Exercise Date; provided, however, that the same has not been modified
or amended after the date hereof. The purchase of such premises shall
occur on or before thirty (30) days after the Guaranty Exercise Date,
and Robert E. Howard II shall deliver to Group 1 a Special Warranty
Deed and Bill of Sale, executed and acknowledged by Robert E. Howard
II covering such premises, subject to all matters currently affecting
such premises (except the Indebtedness), together with all other
documents customarily used for the sale of real property in Oklahoma.
5.12 Termination of Related Party Agreements. The Company and the
Stockholders agree to take, or cause to be taken, all appropriate action, and
do, or cause to be done, all things necessary, proper or advisable to terminate
the Related Party Agreements, except for those Related Party Agreements that
are disclosed in the Company Disclosure Letter as agreements that shall not be
subject to this Section 5.12.
5.13 Related Party Agreements. The Company agrees, and the
Stockholders agree to cause the Company, not to enter into any Related Party
Agreements or engage in any transactions with the Stockholders or their
affiliates; except for those Related Party Agreements or transactions with
affiliates that are disclosed in the Company Disclosure Letter as agreements or
transactions that shall not be subject to this Section 5.13.
5.14 Founders Employment Agreement. Robert E. Howard II, a
Stockholder, hereby agrees to enter on or prior to the Closing Date into an
Employment Agreement substantially in the form of Exhibit A attached hereto
(the "Employment Agreement"), which agreement shall employ Robert E.
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Howard II as President of Howard Group, and shall provide for an annual salary
of $300,000 and a term of five years.
5.15 GM Employment Agreements. Ken R. Wilkins and Steve Albright,
each Stockholders, hereby agree to enter on or prior to the Closing Date into a
Employment Agreements substantially in the form of Exhibit B attached hereto
(the "GM Employment Agreement").
5.16 Leases. Robert E. Howard II hereby agrees to enter on or
prior to the Closing Date into a lease with the Company, in form substantially
similar to the lease attached hereto as Exhibit C (the "Lease") covering the
properties owned by Robert E. Howard II identified on Exhibit C to the Lease,
including any changes that may be reasonably required by (i) any lender to
Robert E. Howard II or (ii) any automobile manufacturer with whom the Company
or any of its affiliates does business solely in connection with the properties
identified in Exhibit C to the Lease, in each case (i) or (ii) above, whose
consent must be obtained pursuant to any agreement with Robert E. Howard II
existing on the date hereof.
5.17 Subordination and Non-Disturbance Agreement. Robert E.
Howard II hereby agrees to grant to Group 1 an option to purchase the premises
(the "Premises") located at 13200 N. Broadway Extension, in Oklahoma City,
Oklahoma, to be described more particularly at a later date in Exhibit A to the
Lease (the "SNDA Purchase Option"). The SNDA Purchase Option shall be granted
to Group 1 pursuant to a written option agreement executed by Group 1 and
Robert E. Howard II, in form and substance satisfactory to Group 1, and
delivered to Group 1 on or before the tenth (10) day after the date hereof.
The SNDA Purchase Option shall be exercisable only by written notice to Robert
E. Howard II, on a date (the "SNDA Exercise Date") at any time after (i) the
expiration of ninety (90) days after the Closing Date, and (ii) the failure of
Robert E. Howard II to obtain a Mutual Recognition and Attornment Agreement in
the form required under Article 11 to the Lease ("SNDA"), in form and substance
reasonably satisfactory to Group 1, from each then current holder and owner of
any indebtedness which is secured by liens or security interests covering the
Premises (the "Indebtedness"). The SNDA Purchase Option may only be exercised
by Group 1 with respect to those premises for which a SNDA has not been
obtained. The purchase price of the SNDA Purchase Option shall be the
principal amount outstanding under that portion of the Indebtedness
attributable to the premises being purchased on the SNDA Exercise Date;
provided, however, that the same has not been modified or amended after the
date hereof. The purchase of such premises shall occur on or before thirty
(30) days after the SNDA Exercise Date, and Robert E. Howard II shall deliver
to Group 1 a Special Warranty Deed and Bill of Sale, executed and acknowledged
by Robert E. Howard II covering the premises being purchased, subject to all
matters currently affecting such premises (except the Indebtedness), together
with all other documents customarily used for the sale of real property in
Oklahoma. Article 11(iv) of the Lease shall be modified to the extent
necessary to reflect the foregoing provisions.
5.18 LIFO Adjustment. The Company, and not the Stockholders, shall
be responsible for the payment of all costs and liabilities relating to any
LIFO adjustment caused by the termination of the Company's status as an S
corporation as a result of the transactions contemplated hereby.
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ARTICLE VI
COVENANTS OF GROUP 1
6.1 Confidentiality. Group 1 agrees, and Group 1 agrees to cause
its officers, directors, employees, representatives and consultants, to hold in
confidence all, and not to disclose to others for any reason whatsoever, any
non-public information received by it or its representatives in connection with
the transactions contemplated hereby except (i) as required by law; (ii) for
disclosure to officers, directors, employees and representatives of Group 1 as
necessary in connection with the transactions contemplated hereby or as
necessary to the operation of Group 1's business; and (iii) for information
which becomes publicly available other than through the actions of Group 1. In
the event the Acquisition is not consummated, Group 1 will return all
non-public documents and other material obtained from the Company or its
representatives in connection with the transactions contemplated hereby or
certify to the Company that all such information has been destroyed.
6.2 Reservation of Group 1 Common Stock. Group 1 shall reserve
for issuance and shall issue, out of its authorized but unissued capital stock,
such number of shares of Group 1 Common Stock as may be issuable upon
consummation of the Acquisition.
6.3 Consents. Subject to the terms and conditions of this
Agreement, Group 1 shall (i) obtain all consents, waivers, approvals,
authorizations and orders required in connection with the authorization,
execution and delivery of this Agreement and the consummation of the
Acquisition; and (ii) take, or cause to be taken, all appropriate action, and
do, or cause to be done, all things necessary, proper or advisable to
consummate and make effective as promptly as practicable the transactions
contemplated by this Agreement.
6.4 Agreement to Defend. In the event any claim, action, suit,
investigation or other proceeding by any governmental authority or other Person
or other legal or administrative proceeding is commenced that questions the
validity or legality of the transactions contemplated hereby or seeks damages
in connection therewith, whether before or after the Closing, Group 1 agrees to
cooperate and use reasonable efforts to defend against and respond thereto.
6.5 Removal of Personal Guarantees. Group 1 will use commercially
reasonable efforts to have all personal guarantees by any of the Company's
officers, directors, shareholders or employees of any obligation of the Company
terminated, waived or released.
6.6 Founders Employment Agreement. Group 1 hereby agrees to enter
into the Founders Employment Agreement.
6.7 GM Employment Agreement. Group 1 hereby agrees to enter into
the GM Employment Agreement.
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ARTICLE VII
CONDITIONS
7.1 Conditions Precedent to Obligation of Each Party to Effect the
Acquisition. The respective obligations of each party to effect the
Acquisition shall be subject to the fulfillment at or prior to the Closing Date
of the following conditions:
(a) No order shall have been entered and remain in effect
in any action or proceeding before any federal, state, foreign or
local court or governmental agency or other federal, state, foreign or
local regulatory or administrative agency or commission that would
prevent or make illegal the consummation of the Acquisition;
(b) There shall have been obtained any and all material
permits, approvals and consents of securities or "blue sky"
commissions of each jurisdiction and of any other governmental agency
or authority, with respect to the consummation of the Acquisition,
which the failure to obtain would have a material adverse effect on
the business, assets, prospects or condition (financial or otherwise)
of Group 1 and its subsidiaries, taken as a whole;
(c) Group 1 and the underwriters of the IPO shall have
entered into an underwriting agreement in connection with the IPO;
(d) The parties to the Other Agreements shall have
delivered a written representation (a "Closing Representation") to the
Company and Group 1 to the effect that no conditions to their
obligations to consummate the Other Acquisitions remain to be
satisfied and that such parties will consummate the Other Acquisitions
simultaneously with the Closing of the Acquisition; and
(e) The applicable waiting period under the HSR Act with
respect to the transactions contemplated by this Agreement shall have
expired or been terminated.
7.2 Additional Conditions Precedent to Obligations of Group 1.
The obligation of Group 1 to effect the Acquisition is also subject to the
fulfillment at or prior to the Closing Date of the following conditions:
(a) The representations and warranties of the Company and
the Stockholders contained in Article II and Article III,
respectively, shall be accurate as of the Closing Date as though such
representations and warranties had been made at and as of the Closing
Date; all of the terms, covenants and conditions of this Agreement to
be complied with and performed by the Company and the Stockholders on
or before the Closing Date shall have been duly complied with and
performed in all material respects, and a certificate to the foregoing
effect dated the Closing Date and signed by the chief executive
officer of the Company and each of the Stockholders shall have been
delivered to Group 1;
(b) There shall have been obtained any and all material
permits, approvals and consents of securities or blue sky commissions
of any jurisdiction, and of any other governmental body or agency,
that reasonably may be deemed necessary so that the consummation of
the Acquisition and the transactions contemplated thereby will be in
compliance with applicable laws, the failure to comply with which
would have a material adverse effect on the business, assets,
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prospects or condition (financial or otherwise) of Group 1 and its
subsidiaries, taken as a whole, after consummation of the Acquisition;
(c) Group 1 shall have received evidence, satisfactory to
Group 1, that all Related Party Agreements required to be terminated
shall have been terminated and all Related Guarantees shall have been
terminated, waived or released pursuant to Sections 5.11 and 5.12
hereto except as contemplated by Section 5.11(b).
(d) Group 1 shall have received executed representations
from each Stockholder stating that such Stockholder (with respect to
shares owned beneficially or of record by him or her) has no current
plan or intention to sell or otherwise dispose of the Group 1 Common
Stock to be received by him or her in the Acquisition.
(e) Since the date of this Agreement, no material adverse
change in the business, operations or financial condition of the
Company shall have occurred, and the Company shall not have suffered
any damage, destruction or loss (whether or not covered by insurance)
materially adversely affecting the properties or business of the
Company, and Group 1 shall have received a certificate signed by the
chief executive officer of the Company dated the Closing Date to such
effect.
7.3 Additional Conditions Precedent to Obligations of the
Stockholders. The obligation of the Stockholders to effect the Acquisition is
also subject to the fulfillment at or prior to the Closing Date of the
following condition:
(a) The representations and warranties of Group 1
contained in Article IV, other than the representation contained in
Section 4.5(a), shall be accurate as of the Closing Date as though
such representations and warranties had been made at and as of the
Closing Date, except that Group 1 shall be permitted to accomplish a
reverse stock split pursuant to the provisions of Section 1.1; all the
terms, covenants and conditions of this Agreement to be complied with
and performed by Group 1 on or before the Closing Date shall have been
duly complied with and performed in all material respects; and a
certificate to the foregoing effect dated the Closing Date and signed
by the chief executive officer of Group 1 shall have been delivered to
the Company.
(b) The Stockholders shall have received an opinion from
Vinson & Elkins, L.L.P., dated as of the Closing, to the effect that
the Acquisition, the Other Acquisitions and IPO, in the aggregate,
will constitute a transaction described in Section 351 of the Code.
ARTICLE VIII
EFFECTIVENESS OF REPRESENTATIONS, WARRANTIES
AND AGREEMENTS; INDEMNIFICATION; NON-COMPETITION
8.1 Effectiveness of representations, warranties and agreements.
(a) Except as set forth in Section 8.1(b) of this
Agreement, the representations, warranties and agreements of each
party hereto shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any other
party hereto, any Person
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controlling any such party or any of their officers, directors,
representatives or agents whether prior to or after the execution of
this Agreement.
(b) The representations, warranties and agreements in
this Agreement shall terminate at the Closing, except that the
agreements set forth in Sections 5.4, 5.7, 5.11(b), 5.17, 5.18, 6.1,
6.4, 6.5, 8.2, 8.3, 9.4 and 9.5 shall survive the Closing.
(c) The parties hereto agree that the sole and exclusive
remedies for breaches of this Agreement, for negligence, negligent
misrepresentation or for any tort (except for any tort based on intent
to deceive) committed in connection with the transactions described
in, or contemplated by this Agreement are those set forth in this
Agreement, and that no claim may be made by any party hereto for any
matter in connection with the transactions described in, or
contemplated by, this Agreement unless specifically set forth in this
Agreement and then only pursuant to the terms of this Agreement.
8.2 Indemnification.
(a) Group 1 agrees to indemnify and hold harmless each
Stockholder, each underwriter, each Person, if any, who controls such
Stockholder or underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, and the officers,
directors, agents, general and limited partners, and employees of each
Stockholder and each such controlling Person from and against any and
all losses, claims, damages, liabilities, and expenses (including
reasonable costs of investigation) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact
contained in any registration statement or prospectus pursuant to
which such Stockholder sells shares of Group 1 Common Stock pursuant
to an underwritten public offering or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or based
upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of, or are based upon, any
such untrue statement or omission or allegation thereof based upon
information furnished in writing to Group 1 by such Stockholder or
underwriter or on such Stockholder's or underwriter's behalf expressly
for use therein.
(b) Each Stockholder, severally and not jointly, agrees
to indemnify and hold harmless Group 1, and each Person, if any, who
controls Group 1 within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act and the officers,
directors, agents and employees of Group 1 and each such controlling
Person to the same extent as the foregoing indemnity from Group 1 to
such Stockholder, but only with respect to information furnished in
writing by such Stockholder or on such Stockholder's behalf expressly
for use in any registration statement or prospectus pursuant to which
such Stockholder sells shares of Group 1 Common Stock pursuant to an
underwritten public offering. The liability of any Stockholder under
this Section 8.2(b) shall be limited to the aggregate cash and
property received by such Stockholder pursuant to the sale of Group 1
Common Stock covered by such registration statement or prospectus.
(c) If any action or proceeding (including any
governmental investigation) shall be brought or asserted against any
Person entitled to indemnification under Section 8.2(a) or 8.2(b)
above (an
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"Indemnified Party") in respect of which indemnity may be sought from
any party who has agreed to provide such indemnification under Section
8.2(a) or 8.2(b) above (an "Indemnifying Party"), the Indemnified
Party shall give prompt notice to the Indemnifying Party and the
Indemnifying Party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such Indemnified
Party, and shall assume the payment of all reasonable expenses of such
defense. Such Indemnified Party shall have the right to employ
separate counsel in any such action or proceeding and to participate
in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party unless (i) the
Indemnifying Party has agreed to pay such fees and expenses or (ii)
the Indemnifying Party fails promptly to assume the defense of such
action or proceeding or fails to employ counsel reasonably
satisfactory to such Indemnified Party or (iii) the named parties to
any such action or proceeding (including any impleaded parties)
include both such Indemnified Party and Indemnifying Party (or an
Affiliate of the Indemnifying Party), and such Indemnified Party shall
have been advised by counsel that there is a conflict of interest on
the part of counsel employed by the Indemnifying Party to represent
such Indemnified Party (in which case, if such Indemnified Party
notifies the Indemnifying Party in writing that it elects to employ
separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense of
such action or proceeding on behalf of such Indemnified Party).
Notwithstanding the foregoing, the Indemnifying Party shall not, in
connection with any one such action or proceeding or separate but
substantially similar related actions or proceedings in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable at any time for the fees and expenses of more
than one separate firm of attorneys (together in each case with
appropriate local counsel). The Indemnifying Party shall not be
liable for any settlement of any such action or proceeding effected
without its written consent (which consent will not be unreasonably
withheld), but if settled with its written consent, or if there be a
final judgment for the plaintiff in any such action of proceeding, the
Indemnifying Party shall indemnify and hold harmless such Indemnified
Party from and against any loss or liability (to the extent stated
above) by reason of such settlement or judgment. The Indemnifying
Party shall not consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a
release, in form and substance reasonably satisfactory to the
Indemnified Party, from all liability in respect of such action or
proceeding for which such Indemnified Party would be entitled to
indemnification hereunder.
(d) If the indemnification provided for in this Section
8.2(d) is unavailable to the Indemnified Parties in respect of any
losses, claims, damages, liabilities or judgments referred to herein,
then each such Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such losses, claims, damages,
liabilities and judgments as between Group 1 on the one hand and each
Stockholder on the other, in such proportion as is appropriate to
reflect the relative fault of the Stockholder and of each Stockholder
in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any
other relevant equitable considerations. The relative fault of Group
1 on the one hand and of each Stockholder on the other shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
such party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. Group 1 and the Stockholders agree that it would not be
just and equitable if contribution pursuant to this Section 8.2(d)
were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations
referred to in the first two sentences of this Section 8.2(d). The
amount paid or payable by an Indemnified Party as a result of the
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losses, claims, damages, liabilities or judgments referred to in
Sections 8.2(a) and 8.2(b) hereof shall be deemed to include, subject
to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 8.2(d), no Stockholder shall be
required to contribute any amount in excess of the amount by which the
total price at which the securities of such Stockholder were offered
to the public exceeds the amount of any damages which such Stockholder
has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)(1)
of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
8.3 Non-Competition Obligations.
(a) As part of the consideration for the acquisition of
the Company Common Stock, and as an additional incentive for Group 1
to enter into this Agreement, Robert E. Howard II (the "Designated
Stockholder") and Group 1 agree to the non-competition provisions of
this Section 8.3. The Designated Stockholder agrees that during the
period of the Designated Stockholder's non-competition obligations
hereunder, the Designated Stockholder will not, directly or indirectly
for the Designated Stockholder or for others, in any geographic area
or market where Group 1 or any of its subsidiaries or affiliated
companies are conducting any business as of the date in question or
have during the previous twelve months conducted any business:
(i) engage in any business competitive with any
line of business conducted by Group 1 or any of its
subsidiaries or affiliates;
(ii) render advice or services to, or otherwise
assist, any other person, association, or entity who is
engaged, directly or indirectly, in any business competitive
with any line of business conducted by Group 1 or any of its
subsidiaries or affiliates;
(iii) encourage or induce any current or former
employee of Group 1 or any of its subsidiaries or affiliates
to leave the employment of Group 1 or any of its subsidiaries
or affiliates or proselytize, offer employment, retain, hire
or assist in the hiring of any such employee by any person,
association, or entity not affiliated with Group 1 or any of
its subsidiaries or affiliates; provided, however, that
nothing in this subsection (iii) shall prohibit a Designated
Stockholder from offering employment to any prior employee of
Group 1 or any of its subsidiaries or affiliates who was not
employed by Group 1 or any of its subsidiaries or affiliates
at any time in the twelve (12) months prior to the termination
of such Designated Stockholder's employment.
The non-competition obligations set forth in subsections (i)
and (ii) of this Section 8.3(a) shall apply during each Designated
Stockholder's employment and for a period of three (3) years after
termination of employment. The obligations set forth in subsection
(iii) of this Section 8.3(a) with respect to employees shall apply
during each Designated Stockholder's employment and for a period of
five (5) years after termination of employment. If Group 1 or any of
its subsidiaries or affiliates abandons a particular aspect of its
business, that is, ceases such aspect of its business with the
intention to permanently refrain from such aspect of its business,
then this post-employment non-competition covenant shall not apply to
such former aspect of that business. For purposes of this Section
8.3, an "affiliate" of Group 1 is any person who directly,
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or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, Group 1.
(b) The Designated Stockholder understands that the
foregoing restrictions may limit his ability to engage in certain
businesses anywhere in the world during the period provided for above,
but acknowledge that the Designated Stockholder will receive
sufficiently high remuneration and other benefits under this Agreement
to justify such restriction. The Designated Stockholder acknowledges
that money damages would not be sufficient remedy for any breach of
this Section 8.3 by the Designated Stockholder, and Group 1 or any of
its subsidiaries or affiliates shall be entitled to enforce the
provisions of this Section 8.3 by terminating any payments then owing
to the Designated Stockholder under this Agreement and/or to specific
performance and injunctive relief as remedies for such breach or any
threatened breach, without any requirement for the securing or posting
of any bond in connection with such remedies. Such remedies shall not
be deemed the exclusive remedies for a breach of this Section 8.3, but
shall be in addition to all remedies available at law or in equity to
Group 1 or any of its subsidiaries or affiliates, including, without
limitation, the recovery of damages by Group 1 from the Designated
Stockholder's agents involved in such breach.
(c) It is expressly understood and agreed that Group 1
and the Designated Stockholder consider the restrictions contained in
this Section 8.3 to be reasonable and necessary to protect the
confidential and proprietary information and trade secrets of Group 1
and its subsidiaries and affiliates. Nevertheless, if any of the
aforesaid restrictions are found by a court having jurisdiction to be
unreasonable, or overly broad as to geographic area or time, or
otherwise unenforceable, the parties intend for the restrictions
therein set forth to be modified by such courts so as to be reasonable
and enforceable and, as so modified by the court, to be fully
enforced.
ARTICLE IX
MISCELLANEOUS
9.1 Disclosure Letter. The Company Disclosure Letter, executed by
the Company as of the date hereof, and delivered to Group 1 on the date hereof,
contains all disclosure required to be made by the Company under the various
terms and provisions of this Agreement. Each item of disclosure set forth in
the Company Disclosure Letter specifically refers to the article and section of
the Agreement to which such disclosure responds, and shall not be deemed to be
disclosed with respect to any other article or section of the Agreement. A
substantially complete draft of the Company Disclosure Letter shall have been
delivered to Group 1 at least five business days prior to the date of this
Agreement.
9.2 Termination. This Agreement may be terminated and the
Acquisition and the other transactions contemplated herein may be abandoned at
any time prior to the Closing:
(a) by mutual consent of Group 1 and the Stockholders;
(b) by either Group 1 or the Stockholders if the
Acquisition and all of the Other Acquisitions have not been effected
on or before December 31, 1997;
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(c) by either Group 1 or the Company if a final,
unappealable order to restrain, enjoin or otherwise prevent, or
awarding substantial damages in connection with, a consummation of the
Acquisition or the other transactions contemplated hereby shall have
been entered;
(d) by Group 1 if (i) since the date of this Agreement
there has been a material adverse change in the business operations or
financial condition of the Company or (ii) there has been a material
breach of any representation or warranty set forth in this Agreement
by the Company which breach has not been cured within ten business
days following receipt by the Company of notice of such breach (or if
such breach cannot be cured within such time, reasonable efforts have
begun to cure such breach and such breach is then cured within 30 days
after notice); or
(e) by the Company if there has been a material breach of
any representation or warranty set forth in this Agreement by Group 1
which breach has not been cured within ten business days following
receipt by Group 1 of notice of such breach (or if such breach cannot
be cured within such time, reasonable efforts have begun to cure such
breach and such breach is then cured within 30 days after notice).
9.3 Effect of Termination. In the event of any termination of
this Agreement pursuant to Section 9.2, the Company and Group 1 shall have no
obligation or liability to each other except that the provisions of Sections
5.4, 6.1, 9.3 and 9.4 shall survive any such termination.
9.4 Expenses. Regardless of whether the Acquisition is
consummated, all costs and expenses in connection with this Agreement and the
transactions contemplated hereby incurred by Group 1 shall be paid by Group 1
and all such costs and expenses incurred by the Company shall be paid by the
Company; subject, however, to the agreement set forth in the letter of intent
dated April 15, 1997 with respect to the funding of the expenses of Group 1 by
the Founding Companies. The Company and Group 1 each represent and warrant to
each other that there is no broker or finder involved in the transactions
contemplated hereby.
9.5 Restrictions on Transfer of Group 1 Common Stock. (a) During
the two-year period ending on the second anniversary of the Closing Date (the
"Restricted Period"), no Stockholder voluntarily will: (i) sell, assign,
exchange, transfer, encumber, pledge, distribute, appoint or otherwise dispose
of (A) any shares of Group 1 Common Stock received by any Stockholder in the
Acquisition or (B) any interest in (including any option to buy or sell) any of
those shares of Group 1 Common Stock, in whole or in part, and Group 1 will
have no obligation to, and shall not, treat any such attempted transfer as
effective for any purpose; or (ii) engage in any transaction, whether or not
with respect to any shares of Group 1 Common Stock or any interest therein, the
intent or effect of which is to reduce the risk of owning the shares of Group 1
Common Stock acquired pursuant to this Agreement (including for example
engaging in put, call, short-sale, straddle or similar market transactions).
Notwithstanding the foregoing, each Stockholder may (i) pledge shares of Group
1 Common Stock, provided that the pledgee of such shares shall agree not to
sell or otherwise dispose of any such shares for the Restricted Period; (ii)
transfer shares to immediate family members or the estate of any such
individual (including, without limitation, any transfer by such Stockholder to
or among any partnership, trust, custodial or other similar accounts or funds
that are for the benefit of his immediate family members), provided that such
person or entity shall agree not to sell or otherwise dispose of (other than
pursuant to this Section 9.5) any such shares for the Restricted Period; (iii)
transfer shares by will or the laws of descent and distribution or otherwise by
reason of such Stockholder's death; and (iv) sell or transfer shares to Robert
E. Howard II pursuant to any repurchase right held by Robert E. Howard II
covering such shares, provided that Robert
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E. Howard II shall agree not to sell or otherwise dispose of such shares for
the Restricted Period. The certificates evidencing the Group 1 Common Stock
delivered to each Stockholder pursuant to this Agreement will bear a legend
substantially in the form set forth below and containing such other information
as Group 1 may deem necessary or appropriate:
EXCEPT PURSUANT TO THE TERMS OF THE STOCK PURCHASE AGREEMENT AMONG THE
ISSUER, THE HOLDER OF THIS CERTIFICATE AND THE OTHER PARTIES THERETO,
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE VOLUNTARILY
SOLD, ASSIGNED, EXCHANGED, TRANSFERRED, ENCUMBERED, PLEDGED,
DISTRIBUTED, APPOINTED OR OTHERWISE DISPOSED OF, AND THE ISSUER SHALL
NOT BE REQUIRED TO GIVE EFFECT TO ANY ATTEMPTED VOLUNTARY SALE,
ASSIGNMENT, EXCHANGE, TRANSFER, ENCUMBRANCE, PLEDGE, DISTRIBUTION,
APPOINTMENT OR OTHER DISPOSITION OF ANY OF THOSE SHARES, DURING THE
TWO-YEAR PERIOD ENDING ON ______________ [DATE THAT IS THE SECOND-
ANNIVERSARY OF THE CLOSING DATE] (THE "RESTRICTED PERIOD"). ON THE
WRITTEN REQUEST OF THE HOLDER OF THIS CERTIFICATE, THE ISSUER AGREES
TO REMOVE THIS RESTRICTIVE LEGEND (AND ANY STOP ORDER PLACED WITH THE
TRANSFER AGENT) AFTER THE DATE SPECIFIED ABOVE.
(b) Each Stockholder, severally and not jointly with any other Person,
(i) acknowledges that the shares of Group 1 Common Stock to be delivered to
that Stockholder pursuant to this Agreement have not been and, if applicable,
will not be registered under the Securities Act and therefore may not be resold
by that Stockholder without compliance with the Securities Act and (ii)
covenants that none of the shares of Group 1 Common Stock issued to that
Stockholder pursuant to this Agreement will be offered, sold, assigned,
pledged, hypothecated, transferred or otherwise disposed of except after full
compliance with all the applicable provisions of the Securities Act and the
rules and regulations of the Commission and applicable state securities laws
and regulations. All certificates evidencing shares of Group 1 Common Stock
issued pursuant to this Agreement will bear the following legend in addition to
the legend prescribed by Section 9.5(a):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED
UNLESS AND UNTIL SUCH SHARES ARE REGISTERED UNDER SUCH ACT, OR SUCH
STATE LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS
OBTAINED TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED."
In addition, certificates evidencing shares of Group 1 Common Stock issued
pursuant to the Acquisition to each Stockholder will bear any legend required
by the securities or blue sky laws of the state in which that Stockholder
resides.
9.6 Respecting the IPO. Each of the Company and the Stockholders
acknowledges and agrees that: (a) no firm commitment, binding agreement or
promise or other assurance of any kind, whether express or implied, oral or
written, exists at the date hereof that the Registration Statement will become
effective or that the IPO will occur at a particular price or within a
particular range of prices or
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occur at all; (b) neither Group 1 or any of its representatives nor any
prospective underwriters in the IPO will have any liability to the Company, the
Stockholders or any of their respective affiliates or associates for any
failure of (i) the Registration Statement to become effective (provided,
however, that Group 1 will use its reasonable best efforts to cause the
Registration Statement to become effective prior to December 31, 1997) or (ii)
the IPO to occur at a particular price or within a particular range of prices
or to occur at all; and (c) the decision of Stockholders to enter into this
Agreement, has been or will be made independent of, and without reliance on,
any statements, opinions or other communications of, or due diligence
investigations that have been or will be made or performed by, any prospective
underwriter relative to Group 1 or the IPO. The Underwriters shall have no
obligation to any of the Company and the Stockholders with respect to any
disclosure contained in the Registration Statement.
9.7 Waiver and Amendment. Any provision of this Agreement may be
waived at any time by the party that is, or whose stockholders are, entitled to
the benefits thereof. This Agreement may not be amended or supplemented at any
time, except by an instrument in writing signed on behalf of each party hereto,
only as may be permitted by applicable provisions of the Delaware General
Corporation Law or the Texas Business Corporation Act. The waiver by any party
hereto of any condition or of a breach of another provision of this Agreement
shall not operate or be construed as a waiver of any other condition or
subsequent breach. The waiver by any party hereto of any of the conditions
precedent to its obligations under this Agreement shall not preclude it from
seeking redress for breach of this Agreement other than with respect to the
condition so waived. Notwithstanding the above, no provision of this Agreement
may be waived nor may this Agreement be amended after the Registration
Statement has been filed with the SEC in accordance with the Securities Act
unless, in the opinion of counsel to Group 1, such waiver or amendment will not
result in the issuance of Group 1 Common Stock pursuant to the Acquisition
being integrated (under United States securities laws) with the IPO.
9.8 Public Statements. The Company, the Stockholders and Group 1
agree to consult with each other prior to issuing any press release or
otherwise making any public statement with respect to the transactions
contemplated hereby, and shall not issue any such press release or make any
such public statement prior to such consultation, except as may be required by
law.
9.9 Assignment. This Agreement shall inure to the benefit of and
will be binding upon the parties hereto and their respective legal
representatives, successors and permitted assigns. This Agreement shall not be
assignable by the parties hereto without the written consent of the other
parties hereto.
9.10 Notices. All notices, requests, demands, claims and other
communications which are required to be or may be given under this Agreement
shall be in writing and shall be deemed to have been duly given if (i)
delivered in person or by courier, (ii) sent by telecopy or facsimile
transmission, answer back requested, or (iii) mailed, by registered or
certified mail, postage prepaid, return receipt requested, to the parties
hereto at the following addresses:
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if to the Company: 13300 N. Broadway Extension
Oklahoma City, Oklahoma 73114
Telecopy: (405) 936-8851
Attention: Robert E. Howard II
with a copy to: 6520 N. Western, Suite 100
Oklahoma City, Oklahoma 73114
Telecopy: (405) 848-5052
Attention: Randall K. Calvert
if to the Stockholders: 13300 N. Broadway Extension
Oklahoma City, Oklahoma 73114
Telecopy: (405) 936-8851
Attention: Robert E. Howard II
if to Group 1: 950 Echo Lane, Suite 350
Houston, Texas 77024
Telecopy: (713) 467-1513
Attention: B.B. Hollingsworth, Jr.
President and Chief
Executive Officer
with a copy to: Vinson & Elkins L.L.P.
2300 First City Tower
1001 Fannin Street
Houston, Texas 77002-6760
Telecopy: (713) 615-5236
Attention: John S. Watson
or to such other address as any party shall have furnished to the other by
notice given in accordance with this Section 9.10. Such notices shall be
effective, (i) if delivered in person or by courier, upon actual receipt by the
intended recipient, (ii) if sent by telecopy or facsimile transmission, when
the answer back is received, or (iii) if mailed, upon the earlier of five days
after deposit in the mail and the date of delivery as shown by the return
receipt therefor. Delivery to the Stockholders' representative, if any, of any
notice to Stockholders hereunder shall constitute delivery to all Stockholders
and any notice given by such Stockholders' representative shall be deemed to be
notice given by all Stockholders.
9.11 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, excluding any
choice of law rules that may direct the application of the laws of another
jurisdiction.
9.12 Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provision, covenants and
restrictions of this Agreement shall continue in full force and effect and
shall in no way be affected, impaired or invalidated unless such an
interpretation would materially alter the rights and privileges of any party
hereto or materially alter the terms of the transactions contemplated hereby.
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9.13 Counterparts. This Agreement may be executed in counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same agreement.
9.14 Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
9.15 Entire Agreement; Third Party Beneficiaries. This Agreement,
including the Exhibits hereto and the Company Disclosure Letter, constitutes
the entire agreement and supersedes all other prior agreements and
understandings, both oral and written, among the parties or any of them, with
respect to the subject matter hereof (except as otherwise contemplated by this
Agreement) and neither this nor any document delivered in connection with this
Agreement, confers upon any Person not a party hereto any rights or remedies
hereunder.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed on its behalf by its officers thereunto duly authorized, all as of
the date first above written.
GROUP 1 AUTOMOTIVE, INC.
By: /s/ B.B. HOLLINGSWORTH, JR.
-----------------------------------------
B.B. Hollingsworth, Jr.
President and Chief Executive Officer
BOB HOWARD MOTORS, INC.
By: /s/ ROBERT E. HOWARD II
-----------------------------------------
Robert E. Howard II
Secretary
STOCKHOLDERS:
/s/ ROBERT E. HOWARD II
--------------------------------------------
Robert E. Howard II
/s/ KEN R. WILKINS
--------------------------------------------
Ken R. Wilkins
/s/ STEVE ALBRIGHT
--------------------------------------------
Steve Albright
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SCHEDULE I
OTHER FOUNDING COMPANIES
Bob Howard Automotive-H, Inc.
Bob Howard Chevrolet, Inc.
Bob Howard Dodge, Inc.
Courtesy Nissan, Inc.
Foyt Motors, Inc.
Howard Pontiac-GMC, Inc.
Mike Smith Autoplaza, Inc.
Round Rock Nissan, Inc.
SMC Luxury Cars, Inc.
Smith, Liu & Corbin, Inc.
Smith, Liu & Kutz, Inc.
Southwest Toyota, Inc.
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EXHIBIT 2.2
SCHEDULE II
Shares of Company Shares of Group 1
Stockholder Common Stock Common Stock(1)(2)
- ----------- ------------ ------------------
Robert E. Howard II . . . . . . . . . . . . . . . . . 3,350 (3)
Ken R. Wilkins . . . . . . . . . . . . . . . . . . . . 1,250 (3)
Steve Albright . . . . . . . . . . . . . . . . . . . . 400 (3)
- ----------------------
(1) As may be appropriately adjusted for stock splits, reverse
stock splits and/or stock dividends. In the event that the Board of
Directors of Group 1 approves a reverse stock split upon the
recommendation of the Representatives of the Underwriters in
connection with the IPO, the number of shares of Group 1 Common Stock
to be received by the shareholders of the Founding Companies shall be
decreased proportionately as a result of the reverse stock split;
provided, however, that in the event that the number of shares of
Group 1 Common Stock resulting from the reverse stock split
recommended by the Representatives of the Underwriters is less than
the number of shares resulting from a 4.444 for 5 reverse stock
split, a 4.444 for 5 reverse stock split shall be implemented and the
number of shares of Group 1 Common Stock resulting from such 4.444
for 5 reverse stock split to be received by the shareholders of the
Founding Companies shall be further decreased proportionately to the
number of shares that would have been issued to the shareholders of
the Founding Companies had the reverse stock split recommended by the
Representatives of the Underwriters been implemented. If the number
of shares of Group 1 Common Stock received by a Stockholder pursuant
to this Agreement includes a fractional share as a result of a
reverse stock split affecting the Group 1 Common Stock, such
fractional share shall be rounded up to the nearest whole share of
Group 1 Common Stock.
(2) The shares of Group 1 Common Stock to be issued to each of
the Stockholders as set forth on this Schedule II shall be increased
proportionately as a result of the release from escrow of 592,303
shares of Group 1 Common Stock that shall be distributed to the
Stockholders as result of the failure of Howard Pontiac-GMC, Inc. and
Group 1 to acquire the Chevrolet dealership in Tulsa, Oklahoma, all
in accordance with the provisions of the Stock Purchase Agreement
among Group 1, Howard Pontiac-GMC, Inc. and the stockholders of
Howard Pontiac-GMC, Inc. dated as of June 14, 1997.
(3) The number of shares of Group 1 Common Stock to be received
by each Stockholder shall be determined as follows: (i) Robert E.
Howard II is to receive 352,321 shares less the quotient of 1,850,000
divided by the per share IPO price of Group 1 Common Stock ( IPO
Price ); (ii) Ken R. Wilkins is to receive a number of shares equal
to 1,350,000 divided by the IPO Price; and (iii) Steve Albright is to
receive a number of shares equal to 500,000 divided by the IPO Price.
Any fractional share resulting from these calculations shall be
rounded up to the nearest whole share.
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EXHIBIT A
[FOUNDERS EMPLOYMENT AGREEMENT]
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EXHIBIT B
[GM EMPLOYMENT AGREEMENT]
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EXHIBIT C
[LEASE]
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