EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement") is dated as of June 27, 2003, by and between
BRAZOS RIVER LEASING, L.P., a Texas limited partnership (the "Seller"), and
Monro Muffler Brake, Inc., a corporation organized under the laws of New York
(the "Purchaser" and, together with the Seller, the "Parties").
WHEREAS, the Seller owns Ten Thousand (10,000) shares of common stock, par
value $1.00 (the "Shares") of Brazos Automotive Properties Management, Inc., a
Delaware corporation (the "Company"); and
WHEREAS, the Seller desires to sell to the Purchaser the Shares and the
Purchaser desires to buy the Shares upon the terms and subject to the conditions
of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein set forth,
the Parties hereby agree as follows:
1. Sale and Purchase of Shares.
(a) Subject to the terms and conditions of this Agreement, the Seller
hereby sells and the Purchaser hereby purchases from the Seller the Shares
for an aggregate purchase price of $50,000 (the "Purchase Price") (subject
to Section 7 hereof), the receipt and sufficiency of which are hereby
acknowledged.
(b) On the date of this Agreement, the Seller has assigned and
delivered to the Purchaser the stock certificate representing the Shares,
duly endorsed in blank or accompanied by stock powers duly executed in
blank, in proper form for transfer.
2. Representations and Warranties of the Purchaser. The Purchaser hereby
represents and warrants to the Seller as follows:
(a) This Agreement has been duly executed and delivered by the
Purchaser and constitutes a legal, valid and binding obligation of the
Purchaser enforceable against the Purchaser in accordance with its terms,
except as the enforcement may be limited by bankruptcy, insolvency, or
other similar laws affecting the enforcement of creditors' rights in
general or by general principles of equity. The performance by the
Purchaser of its obligations under this Agreement shall not violate any
law, order, judgment or decree of a court or other governmental or
regulatory authority to which the Purchaser is bound or subject;
(b) The Purchaser understands that the Shares being purchased are
characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from the Seller in a transaction not
involving a public offering, are being offered and sold without
registration under the Securities Act of 1933, as amended (the "Securities
Act") in a private placement that is exempt from the registration
provisions of the Securities Act under Section 4(2) of the Securities Act
and that under such laws and applicable regulations such securities may be
resold without registration under the Securities Act only in limited
circumstances. The Purchaser understands that it
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must bear the economic risk of the acquisition of the Shares made in
connection herewith for an indefinite period of time because, among other
reasons, the Shares have not been registered under the Securities Act or
under the securities laws of certain states and, therefore, cannot be
resold, assigned or otherwise disposed of unless they are subsequently
registered under the Act and under the applicable securities laws of such
states or an exemption from such registration is available. The Purchaser
further understands that the certificates representing the Shares shall
bear the following legend:
NO SHAREHOLDER OR OTHER PERSON SHALL HAVE ANY PREEMPTIVE RIGHT OR ANY
RIGHT OF CUMULATIVE VOTING, BOTH BEING EXPRESSLY DENIED BY THE
CERTIFICATE OF INCORPORATION OF BRAZOS AUTOMOTIVE PROPERTIES
MANAGEMENT, INC. (THE "COMPANY") ON FILE IN THE OFFICE OF THE SECRETARY
OF STATE OF DELAWARE. THE COMPANY WILL FURNISH A COPY OF SAID
CERTIFICATE OF INCORPORATION, AS FROM TIME TO TIME AMENDED, TO THE
RECORD HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST
TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS OR REGISTERED OFFICE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE FEDERAL SECURITIES
LAWS OR THE SECURITIES LAWS OF ANY STATE. SUCH SECURITIES MAY NOT BE
SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED AT ANY TIME
WHATSOEVER, EXCEPT UPON SUCH REGISTRATION OR UPON DELIVERY TO THE
COMPANY OF AN OPINION OF COUNSEL SATISFACTORY TO THE BOARD OF DIRECTORS
OF THE COMPANY THAT REGISTRATION IS NOT REQUIRED FOR SUCH TRANSFER
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, APPLICABLE STATE
SECURITIES LAWS AND ANY RULES OR REGULATIONS PROMULGATED THEREUNDER.
(c) No consent, approval or authorization from any person, entity or
governmental authority is required to be obtained by the Purchaser in order to
consummate the transaction contemplated herein;
(d) The Purchaser can bear the economic risk of its investment in the
Shares and has such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and the risks of the investment. The
Purchaser has been furnished with all materials relating to the business,
finances and operations of the Company which have been requested, including,
without limitation all certificates, instruments, agreements and other documents
defining the rights, limitations and preferences of the Shares and the holders
thereof. The Purchaser has conducted its own investigation of the Company and is
not relying on any representations or warranties of the Seller other than those
expressly set forth herein. The Purchaser understands that the Company is under
no obligation to register the Shares on the Purchaser's behalf;
(e) The Purchaser is an "accredited investor" within the meaning of Rule
501(a) of Regulation D promulgated under the Securities Act; and
(f) The Purchaser (a) has not received any formal offer from any third
party with respect to the acquisition of any substantial portion of the capital
stock or assets of the Company or
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any of its subsidiaries within the twelve months immediately preceding the date
of this Agreement and (b) is not currently engaged in any ongoing discussions
with any third party concerning a transaction involving the sale of any
substantial portion of the capital stock or assets of the Company or any of its
subsidiaries and, as such, is not otherwise negotiating nor currently
contemplating the entering into a letter of intent or any other definitive
documentation relating to the sale of such stock or assets.
3. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Purchaser as follows:
(a) The Seller is the registered, legal and beneficial owner of, and
has the power and authority to convey, the Shares free and clear of all
liens, claims or security interests of any kind whatsoever, and such
restrictions on transfer imposed by state and federal securities laws. Upon
delivery of and payment for the Shares as herein provided and registration
of the transfer on the register of shareholders of the Company, the Seller
shall have conveyed to the Purchaser valid and marketable title to the
Shares free and clear of all liens, claims and security interests of any
kind whatsoever, except such restrictions on transfer imposed by state and
federal securities laws;
(b) The Seller has the legal capacity and right to execute, deliver,
enter into, consummate and perform this Agreement;
(c) This Agreement has been duly executed and delivered by the Seller
and constitutes a legal, valid and binding obligation of the Seller
enforceable against the Seller in accordance with its terms, except as the
enforcement may be limited by bankruptcy, insolvency, or other similar laws
affecting the enforcement of creditors' rights in general or by general
principles of equity. The performance by the Seller of its obligations
under this Agreement shall not violate any law, order, judgment or decree
of a court or other governmental or regulatory authority to which the
Purchaser is bound or subject.
(d) The Company has no business, assets or liabilities other than its
rights and obligations under that certain First Amended and Restated
Agreement of Limited Partnership of Brazos Automotive Properties, L.P.,
dated as of September 15, 1998, by and among the Company, as general
partner, and Heller Financial, Inc., as sole limited partner.
(e) The Seller has no knowledge of any debts, obligations, liabilities
or claimed liabilities of the Company incurred for the Company's exclusive
benefit and not known to Monro Muffler Brake, Inc. or of the Company or of
Brazos Automotive Properties, L.P. except those associated with the
business of the Company described in Section 3(d) hereof under the Credit
Agreement dated as of September 15, 1998, as amended as of March 19, 2003,
and in connection with the Agreement for Ground Lease, the Agreement for
Facilities Lease, the Ground Lease Agreement and the Facilities Lease
Agreement, by and between Brazos Automotive Properties, L.P. and Monro
Muffler Brake, Inc. and/or its designated subsidiaries or affiliates each
dated as of September 15, 1998, as amended.
4. Indemnity by the Seller. The Seller hereby agrees to indemnify and hold
the Buyer harmless from any loss, cost, or expense (including reasonable
attorneys' fees) that the Buyer may incur by reason of any breach of a warranty,
representation, covenant or agreement made herein.
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5. Additional Agreements.
5.1 Further Assurances. Each of the Parties shall from time to time,
at the request of the other party and without further consideration,
execute such further instruments of conveyance and take such other actions
as the requesting party may reasonably require to more effectively convey
and transfer the Shares to the Purchaser. The Parties will furthermore sign
all documents and do all things necessary to give effect to the transaction
contemplated by this Agreement, including, without limitation executing and
delivering such certificates, instruments and other documents necessary to
assure the proper transfer of the Shares from the Seller to the Purchaser
on the books and records of the Company.
6. General Provisions.
6.1 Survival of Representations and Warranties. The representations,
warranties and agreements of the Parties contained herein shall survive the
execution of this Agreement and shall continue to remain in full force and
effect.
6.2. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such State.
6.3. Binding. This Agreement shall inure to the benefit of and be
binding upon the Parties, their respective successors, administrators,
representatives, heirs and assigns.
6.4. Counterparts. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
6.5. Entire Agreement. This Agreement embodies the entire agreement
and understanding of the Parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, warranties,
covenants, or understandings, other than those expressly set forth or
referred to herein. This Agreement supersedes all prior agreements and
understandings between the Parties with respect to such subject matter. No
supplement, modification or amendment of this Agreement shall be binding
unless executed in writing by both Parties hereto.
7. Future Business Transactions. In the event that Seller, or any affiliate
of Seller, and Purchaser, or any affiliate of Purchaser, enter into any new
business transaction in the future, Seller agrees to credit for the benefit of
Purchaser, or Purchaser's affiliate, the sum of $25,000 against the fees
otherwise payable to Seller, or Seller's affiliate, associated with such new
business transaction. This provision is not intended to and does not constitute
a commitment or create an obligation on the part of either Seller or Purchaser
to enter into any future business transaction. The terms of any future
transaction will be subject to negotiation and acceptance by Seller and
Purchaser in their respective sole discretion.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
SELLER
BRAZOS RIVER LEASING, L.P.
By: Headwater Investments L.P.,
its general partner
By: Headwater Holdings, Inc.,
its general partner
By: /s/ Gregory C. Greene
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Gregory C. Greene
PURCHASER
Monro Muffler Brake, Inc.
By: /s/ Catherine D'Amico
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Name: Catherine D'Amico
Title: CFO
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