EXHIBIT 10.47
WARRANT CANCELLATION AGREEMENT AND RELEASE
This WARRANT CANCELLATION AGREEMENT AND RELEASE (the "Agreement") is
made as of April 30, 2003 by and between MOTORCAR PARTS & ACCESSORIES, INC., a
New York corporation (the "Company"), and WELLS FARGO BANK, N.A., a national
banking corporation ("Holder").
RECITALS
WHEREAS, the Company issued to Holder on or about April 20, 2000 that
certain "Warrant to Purchase Common Stock", No. W-1, exercisable for 400,000
shares, as amended by that certain "Amendment No. 1 to Warrant" executed by the
parties on or about May 31, 2001 (as so amended, the "Warrant"); and
WHEREAS, the Company desires to acquire the Warrant from Holder and
cancel the Warrant in exchange for a net cash payment to Holder of seven hundred
thousand dollars ($700,000.00) (the "Purchase Price"), effective upon execution
of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, covenants and conditions contained herein, the parties hereby agree as
follows:
AGREEMENT
1. THE TRANSACTION.
1.1 WARRANT CANCELLATION. Subject to the terms and
conditions of this Agreement, upon execution of this Agreement (a) the Company
shall deliver to Holder or its order the amount of the Purchase Price, with no
holdback or deduction whatsoever, plus expenses pursuant to Section 1.3 below,
by wire transfer of immediately available funds paid according to the wire
instructions attached hereto as Exhibit A and confirmed by a Fed reference
number, and (b) Holder shall surrender its original, manually-executed form of
the Warrant to the Company for cancellation and agrees to accept the Purchase
Price as full payment for cancellation thereof, whereupon the Company shall mark
the face of the Warrant "cancelled" and such Warrant shall be deemed expired.
The payment for and cancellation of the Warrant shall take place at the offices
of Morrison & Foerster LLP, 555 West Fifth Street, Los Angeles, CA 90013 (the
"Closing").
1.2 EXPENSES. At the Closing, the Company shall reimburse
Holder an amount equal to two thousand five hundred dollars ($2,500.00) towards
the fees and costs of Holder's counsel in connection with the negotiation,
execution and delivery of this Agreement.
2. RELEASE. In consideration of the Purchase Price, Holder hereby
releases and forever discharges the Company and its predecessors, successors,
assigns and each of them, and each past, present, and future director, partner,
subsidiary, division or entity or affiliated corporation, and each past, present
or future employee, agent, representative, attorney, accountant, officer,
director, stockholder, subscriber, and all persons acting by, through, under or
in concert with
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them, or any of them, of and from any and all claims, actions, causes of action,
suits, debts, liens, demands, contracts, liabilities, agreements, costs,
expenses, or losses of any type, whether known or unknown, fixed or contingent,
which Holder had, now has, or may hereafter have, arising out of or resulting
from the Warrant, or the shares of capital stock of the Company issuable upon
exercise of the Warrant, including but not limited to, (i) Holder's claim to any
equity interest in the Company, and (ii) any and all claims with respect to
rights of notice under the Warrant or applicable law.
HOLDER ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY ITS LEGAL COUNSEL AND IS
FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH
PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN ITS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY IT MUST HAVE
MATERIALLY AFFECTED ITS SETTLEMENT WITH THE DEBTOR."
3. REPRESENTATIONS AND WARRANTIES OF HOLDER. Holder hereby
represents and warrants to the Company as follows:
3.1 AUTHORIZATION. Holder has, as appropriate, full power
and legal capacity and all corporate right, power, legal capacity and authority
to enter into this Agreement and the transactions contemplated hereby. The
execution, delivery and performance of this Agreement has been duly and validly
approved and authorized by Holder. This Agreement constitutes a valid and
legally binding obligation of Holder, enforceable in accordance with its terms.
3.2 OWNERSHIP OF WARRANT. Holder has good and valid title
to, and owns all right, title and interest (legal and beneficial) in, the
Warrant being cancelled pursuant to this Agreement, free and clear of all liens.
Upon payment for expiration of the Warrant in accordance with this Agreement,
the Warrant shall be cancelled free and clear of all liens.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to Holder as follows:
4.1 AUTHORIZATION. The Company has, as appropriate, full
power and legal capacity and all corporate right, power, legal capacity and
authority to enter into this Agreement and the transaction contemplated hereby.
The execution, delivery and performance of this Agreement has been duly and
validly approved and authorized by the Company and specifically approved by the
Board of Directors of the Company. This Agreement constitutes a valid and
legally binding obligation of the Company, enforceable in accordance with its
terms.
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4.2 NO CONSENT. No consent or approval of, or filing
with, any governmental authority or other person not a party hereto is required
for the execution, delivery and performance by the Company of this Agreement or
the consummation of the transactions contemplated hereby.
4.3 NO CONFLICT. The execution, delivery and performance
of this Agreement will not violate or conflict with (i) any contract to which
the Company is a party or by which the Company or any of its assets or
properties are bound, (ii) any decree or judgment of any court or other
governmental authority applicable to or binding on the Company, (iii) any law
applicable to the Company or the transfer of the Warrant, or (iv) any provision
of the Charter or Bylaws of the Company. To the Company's knowledge, there is no
agreement by or among any of the stockholders of the Company which relates to
the subject matter of this Agreement or which gives any stockholder of the
Company any preemptive, first refusal, or other right or privilege in connection
with the execution of this Agreement or consummation of the transactions
contemplated hereby.
4.4 COMPLIANCE WITH LAW. The Company has consulted with
its outside legal counsel and received advice which it believes to be reliable
that the execution, delivery and performance of this Agreement by the Company
would comply with the provisions of New York State corporation law and
California corporation law applicable to the Company, including without
limitation Section 513 of the Business Corporation Law of the New York State
Consolidated Laws (entitled "Purchase, redemption and certain other transactions
by a corporation with respect to its own shares") to the extent applicable to
the Company.
4.5 SEC FILINGS. Since January 1, 2001, the Company has
timely filed all reports, schedules, forms, statements and other documents
(collectively, the "SEC Documents") required to be filed by it with the
Securities and Exchange Commission ("SEC") pursuant to the reporting
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). As of their respective dates, the SEC Documents complied in all material
respects with the requirements of the Exchange Act and the rules and regulations
of the SEC applicable to the SEC Documents. None of the SEC Documents, at the
time they were filed with the SEC, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
5. MISCELLANEOUS.
5.1 GOVERNING LAW. This Agreement shall be governed by
and construed under the laws of the State of California.
5.2 COUNTERPARTS. This Agreement may be executed in one
or more counterparts and delivered by facsimile, each of which shall be deemed
to be an original, but all of which together shall constitute one and the same
instrument.
5.3 NOTICES. Unless otherwise provided, any notice
required or permitted under this Agreement shall be given in writing and shall
be deemed effectively given if delivered
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personally or by commercial messenger or courier service to the party to be
notified at the address indicated for such party on the signature page hereof,
or at such other address as such party may designate by advance notice to the
other party.
5.4 AMENDMENT AND WAIVERS. Any term of this Agreement may
be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the parties hereto.
5.5 ENTIRE AGREEMENT. This Agreement, the other
agreements and the documents referred to herein constitute the entire agreement
among the parties and no party shall be liable or bound to any other party in
any manner by any warranties, representations, or covenants except as
specifically set forth herein or therein. The section headings herein are for
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Agreement
5.6 FURTHER ASSURANCES. Each of the parties shall from
time to time and at all times hereafter make, do, execute, or cause or procure
to be made, done and executed such further acts, deeds, conveyances, consents
and assurances without further consideration, which may be reasonably required
to effect the transactions contemplated by this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Warrant Cancellation Agreement and Release has
been executed by the undersigned as of the day and year first above written.
MOTORCAR PARTS & ACCESSORIES, INC. WELLS FARGO BANK, N.A.
By: _______________________________ By: ____________________________
Name: _____________________________ Name: __________________________
Title: ____________________________ Title: _________________________
By: _______________________________ Address: _______________________
Name: _____________________________ ________________________________
Title: ____________________________
Address: __________________________
___________________________________
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#5476003189
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