Exhibit 10.18
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is entered into as of
September 30, 1998, by and between City Truck Holdings, Inc., a Delaware
corporation (the "Company") and Martin R. Reid. ("Purchaser" or "you").
RECITALS
A. The Company desires to issue and sell to Purchaser, and Purchaser
desires to purchase from the Company, 858 shares of Common Stock, par value $.01
per share (the "Common Shares"), and 1995.422 shares of Series A Preferred
Stock, par value $.01 per share (the "Preferred Shares"), of the Company upon
the terms and conditions specified herein. The Common Shares and the Preferred
Shares are collectively referred to herein as the "Shares." Four Hundred (400)
of the Common Shares are subject to the vesting provisions contained herein and
are referred to herein as the "Vesting Common Shares." The remaining 458 Common
Shares and the 1995.422 Preferred Shares are not subject to the vesting
provisions contained herein.
B. The Company desires to have, and Purchaser is willing to grant to
the Company, the right and option to repurchase the Vesting Common Shares upon
the terms and conditions contained herein.
C. It is a condition precedent to the obligations of the Company
under this Agreement that Purchaser enter into that certain Stockholders'
Agreement (the "Stockholders' Agreement") among the Company and the other
stockholders of the Company.
THEREFORE, in consideration of the premises and of the covenants and
conditions contained herein, the parties hereto agree as follows:
1. Purchase and Sale; Closing.
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(a) Purchase and Sale. The Company hereby agrees to issue and sell
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to Purchaser, and Purchaser hereby agrees to purchase from the Company on the
Closing Date, such number of Common Shares for $1.00 per share in cash and such
number of Preferred Shares for $100 per share in cash.
(b) The Closing. The consummation of the purchase and sale of the
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Shares to be initially purchased hereunder (the "Closing") shall occur on a date
mutually agreeable to the parties (the "Closing Date"). At the Closing, the
Purchaser shall deliver payment of the specified consideration, and the
certificates evidencing the Vesting Common Shares purchased hereunder by the
Purchaser shall be deposited with the Escrow Agent pursuant to Section 5 hereof.
2. Vesting of the Common Stock.
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(a) 20.00% of the Vesting Common Shares shall become vested as of the
end of each fiscal year of the Company (the "Fiscal Year End Date") commencing
with fiscal 1998, e.g. fiscal years 1998, 1999, 2000, 2001 and 2002.
(b) The foregoing notwithstanding, no Vesting Common Shares shall
become vested unless Purchaser has served continuously as a director of the
Company until each respective date on which the Vesting Common Shares are
scheduled to vest; provided, however, that if there is a Termination (as defined
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below), a pro rata portion of any Vesting Common Shares which are scheduled to
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vest in the fiscal year in which the Termination occurs shall become vested
immediately upon Termination (such pro rata portion being equal to the ratio of
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the number of days Purchaser served as a director during the fiscal year in
question to 365).
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(c) As used herein, "Termination" shall mean the time when the
Purchaser's position as a director of the Company is terminated for any reason
whatsoever, with or without cause.
(d) Anything in this Agreement to the contrary notwithstanding, if,
the Company is acquired by a third party or parties through an asset purchase,
merger or sale of more than 50% (in value) of the outstanding equity securities
of the Company (an "Acquisition"), all Vesting Common Shares scheduled to vest
pursuant to Section 2(a) in the calendar year in which the Acquisition is closed
(and not previously repurchased by the Company pursuant to Section 3) shall vest
immediately prior to the Acquisition closing date.
3. Company Purchase Option.
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(a) The Company shall have the unconditional right and option to
purchase any or all of the Vesting Common Shares that have not vested as
provided in Section 2 at a purchase price of $1.00 per share (the "Option
Price") upon a Termination on the terms and conditions hereinafter provided.
The Company's right and option set forth in this Section 3(a) is referred to
herein as the "Purchase Option."
(b) The Purchase Option, if exercised, must be exercised no later
than 60 days after a Termination. The Purchase Option may be exercised in whole
or in part. Any Vesting Common Shares which become subject to the Purchase
Option as provided herein but with respect to which the Purchase Option is not
exercised in accordance with the terms hereof shall become fully vested upon
expiration of the period during which the Purchase Option with respect thereto
is effective, and no such Vesting Common Shares shall at any time thereafter be
subject to the Purchase Option.
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(c) The Purchase Option shall be exercised by written notice signed
by an officer of the Company and delivered or mailed to Purchaser as provided in
Section 15(c) of this Agreement and to the Escrow Agent (as defined in Section 5
hereof) as provided in the Joint Escrow Instructions (as defined in Section 5
hereof) and shall be effective immediately upon such delivery or mailing.
4. No Directorship Guaranteed. Nothing contained in this Agreement,
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or in any other agreement entered into by the Company and Purchaser in
connection with this Agreement obligates the Company, or any subsidiary or
parent of the Company, to retain Purchaser as a director or in any capacity
whatsoever, and Purchaser hereby acknowledges and agrees that neither the
Company nor any other person has made any representations or promises whatsoever
to Purchaser concerning these matters. In the event of any Termination,
Purchaser shall have the rights set forth in this Agreement and no more.
5. Escrow of Shares. As security for the faithful performance of the
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terms of this Agreement and to ensure the availability for delivery of the
Vesting Common Shares in case of an exercise of the Purchase Option, Purchaser
shall deliver to and deposit with the escrow agent (the "Escrow Agent") named in
the joint escrow instructions attached hereto as Annex A (the "Joint Escrow
Instructions"), 10 stock assignments duly endorsed (with date and number of
shares blank) in the appropriate form attached hereto as Annex B, together with
the certificate or certificates evidencing the Vesting Common Shares purchased
hereunder by Purchaser. Such documents are to be held by the Escrow Agent and
delivered by the Escrow Agent pursuant to the terms of the Joint Escrow
Instructions, which shall be executed by Purchaser and the Company and delivered
to the Escrow Agent concurrently with the execution of this Agreement. From
time
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to time, upon written request of the Company, the Escrow Agent shall deliver to
the Company certificates representing that number of Vesting Common Shares which
the Company shall have purchased upon exercise of the Purchase Option, unless
Purchaser objects in the manner provided in the Joint Escrow Instructions.
In the case of any conflict or inconsistency between this Section 5
and the Joint Escrow Instructions, the Joint Escrow Instructions shall control.
6. Change in Capitalization. If from time to time during the term of
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this Agreement (i) there is any dividend of cash or property or rights to
acquire same, any liquidating dividend of cash and/or property, or any stock
dividend or stock split or other change in the character or amount of any of the
outstanding securities of the Company, or (ii) there is (a) any consolidation,
merger or sale of all, or substantially all, of the assets of the Company or (b)
a Drag-Along Sale pursuant to the Stockholders' Agreement, then in such event
any and all new, substituted or additional securities or other property to which
Purchaser may become entitled by reason of his ownership of Vesting Common
Shares shall immediately become subject to this Agreement and shall assume the
same status with respect to vesting as the Vesting Common Shares upon which such
dividend was paid or in substitution for which such additional securities or
property were distributed. Any cash or cash equivalents received pursuant to
this Section 6 shall be invested in conservative, short-term interest bearing
securities, and interest earned thereon shall likewise assume the same status as
to vesting. While the total Option Price for all Vesting Common Shares subject
to the Purchase Option shall remain the same after each such event, the Option
Price per Vesting Common Share upon exercise of the Purchase Option shall be
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proportionately or otherwise appropriately adjusted as determined in good faith
by the Board of Directors of the Company.
7. Purchaser Representations and Agreements. Purchaser hereby
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represents and warrants, and agrees with, the Company as set forth below.
(a) Purchaser has full power and authority to execute, deliver and
perform his obligations under this Agreement and this Agreement is a valid and
binding obligation of Purchaser, enforceable in accordance with its terms,
except that the enforcement thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and to general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law). Purchaser is not subject to any agreement not to compete or other
restriction on his ability to acquire the Shares being purchased pursuant to
this Agreement or to become an employee of the Company or any of its
subsidiaries, and Purchaser will not enter into any such agreement or
restriction.
(b) Purchaser has received and reviewed this Agreement and all
annexes and schedules hereto, including the Stockholders' Agreement and all
schedules and exhibits attached hereto and thereto, and has received all such
business, financial and other information as he deems necessary and appropriate
to enable him to evaluate the financial risk inherent in making an investment in
the Shares and has received satisfactory and complete information concerning the
business and financial condition of the Company in response to all inquiries in
respect thereof.
(c) Purchaser is acquiring the Shares purchased hereunder with his
own funds or property for investment, for his own account, and not as a nominee
or agent for any other
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person, firm or corporation, and not with a view to the sale or distribution of
all or any part thereof, and he has no present intention of selling, granting
participation in, or otherwise distributing any of the Shares. Except as
provided herein or pursuant to the Stockholders' Agreement, Purchaser does not
have any contract, undertaking, agreement or arrangement with any person, firm
or corporation to sell, transfer or grant participation to such person, firm or
corporation, with respect to any of the Shares.
(d) Purchaser understands and agrees that (i) the Shares will not be
registered under the Securities Act of 1933, as amended (the "Act"), in part
based upon an exemption from registration predicated on the accuracy and
completeness of his representations and warranties appearing herein and (ii) he
will not be permitted to sell, transfer or assign any of the Shares until they
are registered under the Act or an exemption from the registration and
prospectus delivery requirements of the Act is available, and (iii) there is no
assurance that such an exemption from registration will ever be available or
that the Shares will ever be able to be sold.
(e) Purchaser agrees that in no event will he make a disposition of
any Shares or any interest therein, unless such Shares are registered under the
Act or unless and until (i) he shall have notified the Company of the proposed
disposition and shall have furnished the Company with a statement of the
circumstances surrounding the proposed disposition, and (ii) he shall have
furnished the Company with an opinion of counsel reasonably satisfactory in form
and content to the Company to the effect that (A) such disposition will not
require registration of such Shares under the Act or applicable state securities
laws, or (B) that appropriate action necessary for compliance with the Act and
applicable state securities laws has been taken, or (iii) the
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Company shall have waived, expressly and in writing, the provisions of clauses
(i) and (ii) of this subsection.
(f) Purchaser does not require the assistance of an investment
advisor or other purchaser representative to participate in the transactions
contemplated by this Agreement, has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of his
investment in the Company, has the ability to bear the economic risks of its
investment for an indefinite period of time and has been furnished with and had
access to such information as is necessary to verify the accuracy of the
information supplied and to have all questions answered by the Company.
8. Representations and Warranties of the Company. The Company hereby
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represents and warrants to Purchaser as set forth below.
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has all requisite
corporate power and authority to enter into this Agreement, to issue the Shares
and to perform its obligations hereunder.
(b) The execution and delivery of this Agreement have been duly and
validly authorized, and all necessary corporate action has been taken to make
this Agreement a valid and binding obligation of the Company, enforceable in
accordance with its terms, except that the enforcement thereof may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and to general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
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(c) When issued and paid for by Purchaser as provided for herein, the
Shares will be duly and validly issued, fully paid and non-assessable.
9. Conditions of Parties' Obligations.
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The obligations of the Company to issue and sell, and of Purchaser to
purchase and pay for, the Shares to be issued on the Closing Date are also
subject to the fulfillment prior to or concurrently with the Closing of the
conditions set forth below.
(a) The representations and warranties of the Purchaser and the
Company shall be true and correct on and as of the Closing Date.
(b) All permits, consents, approvals, orders and authorizations, if
any, which the Company is required to obtain from, and all registrations,
qualifications, designations, declarations and filings which the Company is
required to make with, any state or Federal governmental authority of the United
States in connection with the execution, delivery or performance of this
Agreement and the consummation of the transactions contemplated hereby shall
have been duly obtained or made and shall be effective on and as of the Closing
Date.
(c) Purchaser shall have received copies of such supporting documents
as Purchaser may reasonably request. The Company shall have received such
supporting documents as it may reasonably request to satisfy itself concerning
the representations of Purchaser.
(d) Purchaser shall have become a party to and agreed to be bound by
the Stockholders' Agreement, which Stockholders' Agreement is hereby
incorporated herein as if set forth in full in this Agreement.
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10. Restriction on Sale or Transfer. Except as provided herein, none
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of the Vesting Common Shares that are subject to repurchase by the Company or
any Investor (or any beneficial interest therein) shall be sold, transferred,
assigned or pledged (including transfer by operation of law) and any attempt to
make any such sale, transfer, assignment or pledge shall be null and void and of
no effect.
11. Legends. In addition to any legends required by the
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Stockholders' Agreement, the certificates representing the shares of Common
Stock purchased pursuant to this Agreement will bear a legend in substantially
the following form:
The shares represented by this certificate are subject to repurchase
under certain circumstances by the Issuer pursuant to a Stock Purchase Agreement
between the Issuer and the initial purchaser, to which reference is made for a
fuller description of such repurchase rights."
12. Enforcement.
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The parties acknowledge that the remedy at law for any breach or
violation of the provisions of Section 10 hereof shall be inadequate and that,
in the event of any such breach or violation, the Company shall be entitled to
injunctive relief in addition to any other remedy, at law or in equity, to which
it may be entitled.
13. Violation of Transfer Provisions. The Company shall not be
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required (a) to transfer on its books any Vesting Common Shares which shall have
been sold, transferred, assigned or pledged in violation of any of the
provisions of this Agreement or (b) to treat as owner of such Vesting Common
Shares or to accord the right to vote or to pay dividends to any purported
transferee of Vesting Common Shares in violation of any of the provisions of
this Agreement.
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14. Covenant Regarding 83(b) Election. Purchaser hereby covenants
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and agrees that he will make a timely election pursuant to Treasury Regulation
1.83-2 with respect to the Vesting Common Shares and will furnish the Company
with a copy of the form of election Purchaser has filed and evidence that such
an election has been filed in a timely manner.
15. General Provisions.
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(a) No Assignments. Except as specifically provided to the contrary
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in this Agreement, neither party shall transfer, assign or encumber any of its
or his rights, privileges, duties or obligations under this Agreement without
the prior written consent of the other party, and any attempt to so transfer,
assign or encumber shall be void; provided, however, that the Company may assign
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this Agreement and its rights hereunder in connection with a sale of all of the
stock of or all or substantially all of the assets of the Company.
(b) Notices. All notices, requests, consents and other
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communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given and made and served either by personal delivery
to the person for whom it is intended (including by reputable overnight delivery
services which shall be deemed to have effected personal delivery) or by
telecopy, receipt of which is acknowledged by the telecopy number set forth
below for the applicable addressee, or if deposited, postage prepaid, registered
or certified mail, return receipt requested, in the United States mail:
(i) if to Purchaser, addressed to Purchaser at his address shown
on the stock register maintained by the Company, or at such other address
as Purchaser may specify by written notice to the Company, or
(ii) if to the Company, addressed to City Truck Holdings, Inc.,
c/o HDA Parts System, Inc., 520 Lake Cook Road, Deerfield, Illinois 60015,
with a copy
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to: c/o Christopher A. Laurence, Brentwood Associates, 11150
Santa Monica Boulevard, Suite 1200 Los Angeles, California 90025, or at
such other address as the Company may specify by written notice to the
Purchaser.
Each such notice, request, consent and other communication shall be deemed to
have been given upon receipt thereof as set forth above or, if sooner, three
days after deposit as described above. The addresses for the purposes of this
Section 15(b) may be changed by giving written notice of such change in the
manner provided herein for giving notice. Unless and until such written notice
is received, the addresses provided herein shall be deemed to continue in effect
for all purposes hereunder.
(c) Choice of Law. This Agreement shall be governed by and construed
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in accordance with the internal laws, and not the laws of conflicts of laws, of
the State of Delaware.
(d) Severability. The parties hereto agree that the terms and
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provisions in this Agreement are reasonable and shall be binding and enforceable
in accordance with the terms hereof and, in any event, that the terms and
provisions of this Agreement shall be enforced to the fullest extent permissible
under law. In the event that any term or provision of this Agreement shall for
any reason be adjudged to be unenforceable or invalid, then such unenforceable
or invalid term or provision shall not affect the enforceability or validity of
the remaining terms and provisions of this Agreement, and the parties hereto
hereby agree to replace such unenforceable or invalid term or provision with an
enforceable and valid arrangement which in its economic effect shall be as close
as possible to the unenforceable or invalid term or provision.
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(e) Parties in Interest. All of the terms and provisions of this
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Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective permitted successors and assigns of the parties hereto.
(f) Modification, Amendment and Waiver. No modification, amendment
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or waiver of any provision of this Agreement shall be effective against the
Company or Purchaser unless approved in writing, and, in the case of the
Company, authorized by its Board of Directors. The failure at any time to
enforce any of the provisions of this Agreement shall in no way be construed as
a waiver of such provisions and shall not affect the right of any of the parties
thereafter to enforce each and every provision hereof in accordance with its
terms.
(g) Integration. This Agreement constitutes the entire agreement of
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the parties with respect to the subject matter hereof and supersedes all prior
negotiations, understandings and agreements, written or oral.
(h) Headings. The headings of the sections and paragraphs of this
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Agreement have been inserted for convenience of reference only and do not
constitute a part of this Agreement.
(i) Counterparts. This Agreement may be executed in counterpart with
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the same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument.
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
COMPANY:
CITY TRUCK HOLDINGS, INC.
By: /s/ John J. Greisch
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John J. Greisch
President and Chief Executive Officer
PURCHASER:
/s/ Martin R. Reid
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Martin R. Reid
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ANNEX A
JOINT ESCROW INSTRUCTIONS
SEPTEMBER 30, 1998
Mark Kimura
c/o Brentwood Associates
11150 Santa Monica Boulevard
Los Angeles, California 90025
Re: Joint Escrow Instructions
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Dear Sir or Madam:
As the person identified herein as Escrow Agent for City Truck Holdings,
Inc. (the "Company"), a Delaware corporation, and the undersigned holder of
common stock, par value $.01 per share, of the Company (the "Purchaser"), you
are hereby authorized and directed to hold the documents delivered to you
pursuant to the terms of that certain Stock Purchase Agreement (the "Agreement")
dated as of September 30, 1998, to which a copy of these Joint Escrow
Instructions is attached as Annex A, in accordance with the following
instructions:
1. In the event the Company, or any assignee of the Company (referred to
collectively herein as the "Company"), shall elect to exercise the Purchase
Option (as defined and described in the Agreement), the Company shall give to
the Purchaser and you a written notice specifying the number of shares of stock
to be purchased, the purchase price and the time for a closing hereunder at the
principal office of the Company, which time shall not be less than 20 days after
the date of such written notice. Unless you shall have received written notice
from Purchaser at least five days prior to the date specified for the closing
objecting to consummation of the transaction, Purchaser and the Company hereby
irrevocably authorize and direct you to close the transaction contemplated by
such notice in accordance with the terms of said notice including prompt
delivery of the stock certificate(s) representing the shares purchased. Any
objecting notice from Purchaser shall set forth in reasonable detail the basis
for his objections, but his failure to do so shall not affect your duties
hereunder.
2. At the closing you are directed to (i) date a stock certificate
assignment form or forms necessary for the transfer in question, (ii) fill in
the number of shares being transferred and (iii) deliver same together with the
certificate or certificates evidencing the shares to be transferred to the
Company, against the simultaneous delivery to you of the purchase price for the
number of shares of stock being purchased pursuant to the exercise of the
Purchase Option. Promptly after the closing, the Company shall deliver to you
any certificate or certificates representing shares which were not so purchased
and remain subject to these Joint Escrow Instructions.
3. Purchaser does hereby irrevocably constitute and appoint you as his
attorney-in-fact and agent for the term of this escrow to execute with respect
to such securities all
documents necessary or appropriate to make such securities negotiable and
complete any transaction herein contemplated, including but not limited to any
required filings with all other governmental or regulatory bodies.
4. This escrow shall terminate upon termination of the Purchase Option
with respect to all Common Shares under the Agreement. Within ten days after
each date of vesting under Sections 2(a) and 2(b) of the Agreement, the Company
shall notify you and Purchaser in writing of the number of shares which have
vested on that date. Within 20 days after your receipt of such notice, you
shall deliver to Purchaser a certificate or certificates evidencing the shares
which have so vested. Promptly following any exercise of the Purchase Option,
you shall deliver to Purchaser a certificate or certificates representing the
number of shares of stock not theretofore repurchased by the Company pursuant to
such exercise of the Purchase Option which have vested (less such shares as have
been previously delivered).
5. If at the time of termination of this escrow you should have in your
possession any documents, securities or other property belonging to Purchaser,
you shall deliver all of same to Purchaser and shall be discharged from all
further obligations hereunder. The Company hereby authorizes you at any time
and from time to time after the date hereof to comply with a written request
from Purchaser, a copy of which you shall deliver to the Company, and unless the
Company shall have given you written notice of its objection to such request
within 30 days following its receipt thereof, to deliver to Purchaser a
certificate for that many shares of stock as have become vested in accordance
with the terms of the Agreement (less such shares as have been previously
delivered).
6. Your duties hereunder may be altered, amended, modified or revoked only
by a writing by the parties hereto.
7. You shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in acting or
refraining from acting in reliance upon any instrument reasonably believed by
you to be genuine and to have been signed or presented by the proper party or
parties. You shall not be personally liable for any act you may do or omit to
do hereunder as Escrow Agent or as attorney-in-fact for Purchaser while acting
in good faith and in the exercise of your own good judgment, and any act done or
omitted by you pursuant to the advice of our own independent attorneys shall be
conclusive evidence of such good faith.
8. You are hereby expressly authorized to disregard any and all warnings
given by any of the parties hereto or by any other person or corporation,
excepting only orders or process of courts of law, and are hereby expressly
authorized to comply with and obey orders, judgments or decrees or any court.
If you obey or comply with any such order, judgment or decree of any court, you
shall not be liable to any of the parties hereto or to any other person, firm or
corporation by reason of such obedience or compliance, notwithstanding any such
order, judgment or decree being subsequently reversed, modified, annulled, set
aside vacated or found to have been entered without jurisdiction. For purposes
of this paragraph 8, an objection made pursuant to paragraph 1 by the Purchaser
shall not be deemed a warning.
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9. You shall not be liable in any respect on account of the identity,
authority or rights of the parties executing or delivering or purporting to
execute or deliver the Agreement or any documents or papers deposited or called
for hereunder or thereunder.
10. You shall be entitled to employ such independent legal counsel and
other experts as you may deem necessary properly to advise in connection with
your obligations hereunder, may rely upon the advice of such counsel and may pay
such counsel reasonable compensation therefor.
11. Your responsibilities as Escrow Agent hereunder shall terminate on the
thirtieth day following receipt by the parties of your written notice of
resignation. In the event of any such termination, the Company shall appoint a
successor Escrow Agent.
12. If you reasonably require other or further instruments in connection
with these Joint Escrow Instructions or obligations in respect hereto, the
necessary parties hereto shall join in furnishing such instruments.
13. It is understood and agreed that should any dispute arise with respect
to the delivery and/or ownership or right of possession of the securities held
by you hereunder, you are authorized and directed to retain in your possession
without liability to anyone all or any part of said securities until such
dispute shall have been settled either by mutual written agreement of the
parties concerned or by a final order, decree or judgment of a court of
competent jurisdiction after the time for appeal has expired and no appeal has
been perfected, but you shall be under no duty whatsoever to institute or defend
any such proceedings.
14. Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon personal delivery or upon deposit in
the United States mail, by registered or certified mail with postage and fees
prepaid, addressed to each of the other parties thereunto entitled at the
following addresses, or at such other addresses as a party may designate by ten
(10) days' advance written notice to each of the other parties hereto.
Company: c/o Brentwood Associates
11150 Santa Monica Boulevard
Suite 1200
Los Angeles, California 90025
Attention: Christopher A. Laurence
Notice to Purchaser shall be sent to the address set forth below
Purchaser's signature.
Escrow Agent: Mark Kimura
c/o Brentwood Associates
11150 Santa Monica Boulevard
Suite 1200
Los Angeles, California 90025
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15. By signing these Joint Escrow Instructions, you become a party hereto
only for the purpose of these Joint Escrow Instructions; you do not become a
party to the Agreement.
16. All liabilities, losses, costs, fees and disbursements incurred by you
in connection with the performance of your duties hereunder, including without
limitation the compensation paid pursuant to paragraph 10 hereof, shall be borne
by the Company, and the Company hereby agrees to indemnify and hold you free and
harmless in respect of all claims, actions, demands, liabilities, losses, costs,
fees and expenses incurred by you in the performance of your duties hereunder;
provided, however, that this indemnity shall not extend to conduct which has
been determined, by a final judgment of a court of competent jurisdiction, to
have been grossly negligent or to have constituted intentional misconduct.
17. This instrument shall be governed by and construed in accordance with
the internal laws, and not the laws of conflict of law, of the State of
Delaware.
18. This instrument shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
19. This instrument may be executed in counterpart with the same effect as
if all parties had signed the same document. All such counterparts shall be
deemed an original, shall be construed together and shall constitute one and the
same instrument.
Very truly yours,
CITY TRUCK HOLDINGS, INC.
By
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John J. Greisch
President and Chief Executive Officer
PURCHASER:
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Martin R. Reid
Address: 10801 E. Happy Valley Road, #44
Scottsdale, Arizona 85255-8174
ESCROW AGENT:
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Name: Mark Kimura
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ANNEX B
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Stock Purchase Agreement
dated as of September 30, 1998, (the "Agreement"), the undersigned hereby sells,
assigns and transfers unto the person identified as Escrow Agent in the
Agreement all rights and interests in shares of Common Stock of
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City Truck Holdings, Inc. (the "Company"), a Delaware corporation, represented
by Stock Certificate No. herewith (the "Certificate"), which
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Certificate was deposited by the undersigned with the Escrow Agent pursuant to
the Joint Escrow Instructions (as defined in the Agreement) among the
undersigned, the Company and such Escrow Agent, such Certificate standing in the
undersigned's name on the books of the Company.
The undersigned does hereby irrevocably constitute and appoint the Escrow
Agent attorney to transfer such Common Stock on the books of the Company, with
full power of substitution in the premises.
Dated: 199
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Martin R. Reid