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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (EVENT): October 25, 1996
THE PARTS SOURCE, INC.
(exact name of Registrant as specified in charter)
Florida 0-27864 59-3149403
- ------------------------ ------------------- ----------------
(State of Incorporation) (Commission File No.) (IRS Employer
Identification No.)
1751 South Missouri Avenue
Clearwater, Florida 34616
--------------------------
(address of principal executive offices)
(813) 588-0377
------------------------
(Registrant's Telephone number, including area code)
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Item 2. Acquisition of Assets
On October 25, 1996 The Parts Source, Inc., d/b/a/ Ace Auto Parts
(the "Company"), acquired from A.P.S., Inc. ("APS"), the business
of six auto parts stores located in the state of Florida. The six
auto parts stores are located in Ocala, Wildwood, Orlando, Cape
Canaveral and Belleview, Florida. Each of the new stores marks
the Company's first entry into the respective markets. As a result
of the acquisition, the Company now operates 33 auto parts stores,
all located in the state of Florida.
The purchase price of the stores was approximately $3.0 million.
As a part of the acquisition, Autoparts Finance Company, Inc. a
subsidiary of APS, purchased 227,273 shares of Common Stock of the
Company in a private transaction at a cost of $11.00 per share.
The balance of the purchase price was paid with cash available
from the Company's line of credit with the Barnett Bank, N.A.
The Company intends to continue the operations of each of the
acquired stores as auto parts stores.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
a. Financial Statements of Business Acquired.
It is impracticable at this time to provide the required
financial statements for the business acquired in the acquisition
described in Item 2 above. The Company is in the process of
preparing the appropriate financial statements. It is anticipated
that such financial statements will be available within 60 days
from the date of this report, and will be filed as an amendment to
this report as soon as practicable, but no later than 60 days
after this report has been filed.
b. Pro Forma Financial Information
No pro forma financial information with respect to the acquisition
described in Item 2 above is available at this time. It is
anticipated that the required pro forma financial information will
be available within 60 days from the date of this report, and will
be filed as an amendment to this report as soon as practicable,
but no later than 60 days after this report has been filed.
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<TABLE>
<CAPTION>
C. Exhibits.
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<S> <C>
10.1 Agreement of Sale by and Between The Parts
Source, Inc. (the "Purchaser") and A.P.S.
Inc. ("Seller")
10.2 Registration Rights Agreement
10.3 Investment Agreement
</TABLE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereto duly authorized.
THE PARTS SOURCE, INC.
-------------------------------------
(Registrant)
Dated: October 30, 1996 /s/ Thomas D. Cox
----------------------------------------
Thomas D. Cox, President and Chief
Executive Officer
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Exhibit Item 7 (c) 10.1
===========================================================================
AGREEMENT OF SALE
BY AND BETWEEN
THE PARTS SOURCE, INC. ("PURCHASER")
AND
A.P.S., INC. ("SELLER")
DATED AS OF: OCTOBER 22, 1996
===========================================================================
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AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement") is made and entered into as of
the 22nd day of October, 1996, by and between A.P.S., INC. a Delaware
corporation ("Seller"), which term shall include Seller's successors and assigns
wherever the context hereof so requires or admits, and THE PARTS SOURCE, INC., a
Florida corporation ("Purchaser"), which term shall include its successors and
assigns wherever the context hereof so requires or admits.
WHEREAS, Seller, through one or more subsidiaries, owns and operates a
business for the sale of automotive parts, accessories and supplies at the
locations set forth on EXHIBIT "A", (the "Business Locations", and Seller
desires to sell substantially all of the assets associated with the operation of
the businesses at the Business Locations upon the terms and conditions set forth
herein; and
WHEREAS, Purchaser desires to purchase such assets from Seller upon the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, Seller and Purchaser hereby agree as follows:
1. PURCHASE OF ASSETS
A. Subject to the terms and conditions of this Agreement, Seller
shall sell and deliver to Purchaser and Purchaser shall purchase and take
possession of the Business Locations, upon completion of the physical inventory
described in Section 3.A. hereof, to be completed on the Closing Date (as
hereinafter defined), free and clear of all liens, security interests, pledges
or encumbrances, all of the automotive inventory (including cores, warranty
merchandise, inventory in transit and finished goods) of Seller located at the
Business Locations, physically counted in accordance with the inventory
procedures described in Section 3.A. hereof (the "Inventory"), a complete list
of which shall be annexed to this Agreement as EXHIBIT "B" as promptly as
practicable but not later than the time of Closing (as hereinafter defined).
Excluded from the purchase provisions of this Agreement is any item of Inventory
identified by the manufacturer's then current published price sheet, and those
items of Inventory whose packaging is not in resalable condition by reason of
water or other damage. Inventory not purchased by Purchaser shall remain the
property of Seller and shall be promptly returned to Seller by Purchaser.
B. Subject to the terms and conditions of this Agreement, Seller
shall sell and deliver to Purchaser and Purchaser shall purchase and take
possession at the Business Locations as of Seller's close of business on the
Closing Date, free and clear of all liens, security interests, pledges or
encumbrances, all of the machinery, equipment, furniture, fixtures, signs,
vehicles and leasehold improvements located at the Business Locations on the
Closing Date, which are owned by Seller, a principal list of which is attached
as Exhibit "C" (excluding, however, certain computer
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equipment set forth as excluded) which list shall be supplemented by Seller, as
of the Closing Date, no later than the True-Up Date and the Purchase Price
shall be adjusted accordingly.
C. Subject to the terms and conditions of this Agreement, Seller
shall sell and convey to Purchaser and Purchaser shall purchase and receive from
Seller, all of the Seller's right, title and interest in and to the prepaid
expenses and other assets detailed on EXHIBIT "D".
D. Subject to the terms and conditions of this Agreement, Seller
shall convey to Purchaser and Purchase shall receive from Seller, all of
Seller's goodwill in the operation of the Business Locations as going concerns,
excluding, however, the trademarks or trade names used by Seller at the Business
Locations.
E. The assets described in Sections 1.A, 1.B., 1.C. and 1D. hereof
are herein both individually and collectively referred to as "Assets".
F. Except for the warranty of title set forth in Section 11.A.
hereof, the Assets are being sold "AS IS," "WHERE IS" and "WITH ALL FAULTS" and
Seller hereby expressly disclaims any and all other warranties both express and
implied.
2. PURCHASE PRICE
A. The purchase price for the Assets described in Section 1.A. hereof
is a sum of money equal to the aggregate value of the Inventory priced
according to Seller's "Net 15 Pricing Program". All Inventory for which there
is no "Net 15 Pricing Program" price sheet shall be marked up at the same
percentage rate from Seller's acquisition cost as Inventory that appears on a
"Net 15 Pricing Program" price sheet.
B. The purchase price for the Assets described in Section 1.B. hereof
shall be a sum of money equal to the aggregate of their net book values as set
forth on Seller's balance sheet for the Business Locations dated as of the
Closing Date.
C. The purchase price for the prepaid expenses, leasehold
improvements and other Assets detailed on Exhibit "D" shall be the aggregate of
their respective net book values as set forth on Seller's balance sheet for the
Business Locations dated as of the Closing Date.
D. The purchase price for the Assets described in Section 1.D. hereof
is the sum of One Million Thirty-Six Thousand and No/100 Dollars
($1,036,000.00).
E. The sum of money due Seller by Purchaser for the sale and purchase
respectively of the Assets, as adjusted either upward or downward according to
the provisions of this Agreement, is herein referred to as the "Purchase Price"
and shall be paid in cash by wire transfer or other immediately available funds
acceptable to Seller.
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3. PHYSICAL INVENTORY
A. A physical accounting of the Inventory shall be taken commencing
as of Seller's close of business on the Closing Date. Such physical inventory
shall be taken cooperatively by representatives of Seller and Purchaser and a
written itemized listing setting forth specifically all such items physically
counted shall be prepared by Seller, which written inventory shall be priced and
extended using the valuation methods described in Section 2.A. hereof.
Employees or independent contractors of Seller participating in the physical
inventory shall be compensated solely by Seller, and employees or independent
contractors of Purchaser participating in the physical inventory shall be
compensated solely by Purchaser.
B. Purchaser shall, on the Closing Date, deliver Seller immediately
available United States funds in an amount equal to one hundred percent (100%)
of the value of the Assets described in Sections 1.B., 1.C. and 1.D. hereof and
eighty percent (80%) of the value of the Inventory shown as being present in the
Business Locations on the financial books and records of Seller as of Seller's
then most recent completed fiscal month.
4. CLOSING
The time of closing of this Agreement shall be at 12:00 noon local time
on October 25, 1996, at the offices of Seller, 15710 John F. Kennedy Boulevard,
Suit 700, Houston, Texas 77032, or at such other time and place or places as the
parties may agree ("Closing" or "Closing Date").
5. TRUE-UP
A. It is understood between Seller and Purchaser that the calculation
of the Purchase Price cannot be completed by the time of Closing and as such the
determination of the Purchase Price shall be ascertained on or before seven (7)
calendar days immediately following the Closing Date ("True-Up Date"). On the
True-Up Date, Purchaser shall deliver Seller good funds in an amount necessary
to have, as of the True-Up Date, delivered Seller the Purchase Price (except as
contemplated by Section 5.B. below), or in the unlikely event the Purchase Price
is less than the amount therefore delivered Seller, the amount of any excess
shall be refunded to Purchaser by Seller's delivery of good funds in the
appropriate amount. In the event Seller and Purchaser cannot agree upon the
Purchase Price, any dispute shall be submitted to arbitration according to the
provisions of Section 5.B.
B. If, by the True-Up Date, Seller and Purchaser are unable to agree
to a purchase price for the Inventory, Purchaser shall have delivered to Seller
at Closing the sum of money set forth in Section 3.B. and on the True-Up Date
such sum of money as is mutually agreed upon as then being owed and, with
respect to all disputed items relating to the Inventory purchase price, submit,
within ten (10) days following True-Up, for review and resolution, such disputed
items along with work papers, price sheets and other applicable documents and
materials to a mutually acceptable "Big 6" accounting firm or, if such firm is
unable or unwilling to act, to any other accounting firm selected
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as hereinafter provided. The charges of such firm (or any other firm selected
as hereinafter provided) with respect to the services performed by it pursuant
to this Section 5.B shall be apportioned by such firm as it may determine on the
basis of each party bearing the expenses of that portion of the review that
relates to disputed items that are resolved not in favor of such party. If the
above firm is not willing or able to act as provided in this Section 5.B., then
for the purposes of resolving disputes under this Section 5.B. only, a firm of
independent Certified Public Accountants shall be selected by the then
Chair-person of the Florida Association of Certified Public Accountants, or if
such Chair-person is not willing or able to act, by the first in the order named
of the following then officers of the Florida Association of Certified Public
Accounts who is willing and able to act: President, Vice President (in order of
seniority if more than one), Treasurer or Secretary. The decision of the
arbitrating firm or individual as called for in this Section 5.B. shall be
conclusive and binding on Seller and Purchaser for the purposes of determining
the purchase price for the disputed items of Inventory set forth in Exhibit "B".
Purchaser and Seller shall each represent to the other that, to the best of each
such party's knowledge, the public accounting firm that will be recommended by
each has not performed services that could be considered a conflict of interest
to any arbitration work described in this Agreement. The use of arbitration in
this Agreement is limited solely to the purposes specifically set forth in this
Section 5.B.
6. TAXES
A. Purchaser hereby agrees to be solely responsible for and pay when
due any sales or other transfer tax or impositions and, except as otherwise set
forth in the immediately following sentence, any other tax or impositions that
may be applicable to the transfer of the Assets pursuant to this Agreement. All
personal property taxes shall be equitably prorated between Purchaser and Seller
as of the Closing Date and a corresponding adjustment to the Purchase Price
shall be made at Closing.
7. ASSUMPTION OF CERTAIN OBLIGATIONS; REIMBURSEMENT OF CERTAIN EXPENSES
A. Purchaser hereby specifically assumes all of the following
obligations of Seller with respect to the Business Locations:
(i) All operating and financing leases for vehicles,
telephones, photocopiers, fax machines, and all obligations with
respect to advertising arrangements (including yellow pages and
advertising), alarm systems and the like (but excluding computer
systems and software licenses), a list of all such material leases
and obligations is set forth in Exhibit "E-1" hereto.
(ii) All service and maintenance contracts such as utilities,
trash pick up, alarm monitoring, computer and other equipment
maintenance for such time as Purchaser shall use Seller's computer
system and software and the like, a list of all such material
service and maintenance contracts is set forth in EXHIBIT "E-2"
hereto.
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(iii) all returns of merchandise to the Business Locations
following the Closing Date for warranty reasons.
B. To the extent any operating or financing leases are not
assignable, in whole or in part, Seller will make available to Purchaser the use
of the leased property for a payment to Seller in an amount equivalent to what
the Business Locations (including home office) are being charged therefor.
C. The Purchase Price will be increased by one-half (1/2) of the cost
incurred by Seller in the audit of the business conducted by Seller at the
Business Locations prepared at the request of Purchaser for inclusion in
Purchaser's securities filings.
8. CONDUCT OF BUSINESS BY PURCHASER AND SELLER
The business at the Business Locations shall be conducted by the Seller
between the date of execution of this Agreement and the Closing Date according
to and in conformity with all material laws, rules and regulations of all
governmental authority.
9. ACCESS TO RECORDS
Between the date of this Agreement's execution and the Closing Date,
Seller shall grant Purchaser and its authorized representatives reasonable
access during normal business hours to the books, records, contracts and
documents of Seller relating to Seller's operation of the Business Locations.
10. RISK OF LOSS
Provided the transactions contemplated by this Agreement close, Purchaser
assumes all risk of loss, destruction or damage to the Assets purchased
hereunder due to fire or other casualty whatsoever effective as of 12:01 a.m. on
the Closing Date. Seller assumes all risk of loss, destruction or damage to the
Assets due to fire or other casualty whatsoever until 12:01 a.m. on the Closing
Date. In the event of destruction, damage or partial loss of or to any of the
Assets prior to the Closing Date, such Assets shall be excluded from the
purchase provisions of this Agreement.
11. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby makes the following representations and warranties:
A. Excluding only those Assets under lease, Seller has good title to
each, every and all of the Assets.
B. The Assets shall be transferred to Purchaser free and clear of any
and all liens, charges, encumbrances, pledges, security interests or rights of
third parties except with respect to
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current ad valorem personal property taxes.
C. Seller warrants and covenants that the execution and delivery of
this Agreement, and the consummation of the transactions herein contemplated
does not conflict with or constitute a default under any law or any order,
writ, injunction or decree of any court, governmental agency, bureau or
arbitration tribunal or of any contract, agreement or instrument by which
Seller is bound.
D. Seller is not a party to, subject to or bound by any judgment or
order of any court, agency or other governmental body that could or may prevent
the execution or consummation of the transactions contemplated in this
Agreement. Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated herein will violate or result in
a breach of or constitute a default under any judgment, order or decree of any
court or governmental agency to which Seller is subject.
E. There are no actions, suits, arbitrations or other legal or
administrative proceedings pending or, to the knowledge of Seller, threatened
against Seller that relate to the Assets, that could materially and adversely
affect Seller's performance of this Agreement and Seller does not know or have
reason to be aware of any basis for the same.
F. Seller has not made any written or oral agreement to pay any
individual or entity any brokerage commission or finder's fee in connection with
the transactions contemplated by this Agreement.
G. The execution, delivery and performance of this Agreement (and all
other agreements delivered pursuant to this Agreement) and the consummation of
the transactions contemplated hereby (thereby) by Seller have been duly and
validly authorized by all requisite corporate actions and proceedings on the
part of Seller including, without limitation, actions and proceedings of
Seller's board of directors. All documents required by this Agreement (and all
other agreements delivered pursuant to this Agreement) to be executed and
delivered by Seller to Purchaser constitute legally valid and binding
obligations of Seller enforceable according to their terms, except as such
obligations may be affected by laws regarding creditor's rights generally or the
application of general principles of equity.
H. Seller is a corporation duly organized, validly existing and in
good standing under and by virtue of the laws of the State of Delaware and has
all requisite power and authority to operate a business at the Business
Locations; and the execution, delivery and performance of this Agreement by
Seller will not result in or constitute a breach of any term, provision of,
or default under, Seller's Certificate of Incorporation or by-laws, or any other
agreement or understanding to which Seller is a party or by which it is bound.
12. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby makes the following representations and warranties:
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G. Purchaser has been provided all information, financial and
other, necessary for Purchaser to make a decision to enter into and perform,
pursuant to the terms of this Agreement (and all other agreements delivered
pursuant to this Agreement), and no representations have been made to Purchaser
by Seller or anyone else as to what the level of performance of Purchaser's
business shall be at the Business Locations.
13. CONDITIONS PRECEDENT TO SELLER'S PERFORMANCE
The performance of obligations of Seller under this Agreement are subject
to each, every and all of the following conditions:
A. Purchaser shall have performed and complied with all agreements
and conditions required by this Agreement to be performed and complied with by
it;
B. The representations and warranties of Purchaser set forth in
Section 12 hereof are, in all material respects, true and correct as of the
Closing Date;
C. No claim, action, suit, proceeding or investigation shall, to the
knowledge of Purchaser or Seller, be pending or threatened against Purchaser or
Seller which, if adversely determined, would prevent, hinder or invalidate the
consummation of the transactions contemplated by this Agreement, deprive Seller
of any right to be obtained hereunder, or result in the payment of damages by
Seller as a result of such transactions; and
D. Purchaser shall have delivered all of the documents, sums of
money, opinions and performed all other acts called for by the provisions of
this Agreement.
Purchaser's failure to meet any or all of the aforesaid conditions
precedent shall relieve Seller from any and all obligations of Seller under this
Agreement.
14. CONDITIONS PRECEDENT TO PURCHASER'S PERFORMANCE
The performance of obligations of Purchaser under this Agreement are
subject to each, every and all of the following conditions:
A. Seller shall have performed and complied with all material
agreements and conditions required by this Agreement to be performed and
complied with by it;
B. The representations and warranties of Seller set forth in Section
11 hereof are, in all material respects, true and correct as of the Closing
Date;
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C. No claim, action, suit, proceeding or investigation shall, to
the knowledge of Purchaser or Seller, be pending or threatened against Purchaser
or Seller which, if adversely determined, would prevent, hinder or invalidate
the consummation of the transactions contemplated by this Agreement, deprive
Purchaser of any right to be obtained hereunder, or result in the payment of
damages by Purchaser as a result of such transactions; and
D. Seller shall have delivered all of the documents and performed
all other acts called for by the provisions of this Agreement.
Seller's failure to meet any or all of the aforesaid conditions
precedent shall relieve Purchaser from any and all obligations of Purchaser
under this Agreement.
15. SELLER'S DELIVERY AT CLOSING
At the time of the closing, Seller shall deliver or have delivered to
Purchaser the following:
A. A bill of sale in the form of EXHIBIT "F", duly executed by
Seller;
B. A duly executed certificate of the duly authorized Corporate
Secretary of Seller evidencing that the transactions contemplated by this
Agreement are unconditionally authorized by all requisite authority of Seller's
board of directors;
C. Real property lease assignments and/or subleases in the forms
of EXHIBIT "G-1" thru EXHIBIT "G-6";
D. An opinion of counsel for Seller, addressed to Purchaser, in
the form of EXHIBIT "H-1";
E. An Investment Agreement and Registration Rights Agreement in
the forms of EXHIBITS "I-1" and "I-2"; and
F. Such other documents as may be reasonably necessary to transfer
the Assets or to grant Purchaser any of the rights intending to be given
Purchaser by the terms of this Agreement or any other agreement delivered
pursuant hereto (thereto).
16. PURCHASER'S DELIVERY AT CLOSING
At the time of closing, Purchaser shall perform or have performed the
following:
A. Deliver or have delivered to Seller U.S. funds in the form and
in the amount required by this Agreement;
B. Deliver to Seller a duly executed certificate of the Corporate
Secretary of Purchaser
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evidencing that the transactions contemplated by this Agreement are
unconditionally authorized by all requisite authority of Purchaser's board of
directors and shareholders;
C. Real property lease assignments and/or subleases in the forms
of Exhibit "G-1" thru Exhibit "G-6";
D. An opinion of counsel acceptable to Seller, addressed to
Seller, in the form of EXHIBIT "H-2";
E. An Investment Agreement and Registration Rights Agreement in
the forms of Exhibits "I-1" and "I-2"; and
F. Such other documents as may be called for by the terms of this
Agreement or any other agreement delivered pursuant thereto.
17. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties of each of the parties hereto shall
survive Closing.
18. SELLER'S INDEMNIFICATION, HOLD HARMLESS
Seller hereby indemnifies and holds Purchaser harmless from and against
any and all claims, judgments, actions, costs, liabilities, damages, debts,
dues, sums of money, accounts, controversies, reckonings, promises, agreements,
executions at law or in equity (whether direct or consequential) and expenses
whatsoever (including, without limitation, reasonable attorney's fees) that may
be based upon, arise out of or result from any actual or claimed breach of any
representation, warranty, covenant or undertaking of Seller made or pledged in
this Agreement.
19. PURCHASER'S INDEMNIFICATION, HOLD HARMLESS
Purchaser hereby indemnifies and holds Seller harmless from and against
any and all claims, judgments, actions, costs, liabilities, damages, debts,
dues, sums of money, accounts, controversies, reckonings, promises, agreements,
executions at law or in equity (whether direct or consequential) or expenses
whatsoever (including, without limitation, reasonable attorney's fees) that may
be based upon, arise out of or result from any actual or claimed breach of any
representation, warranty, covenant or undertaking of Purchaser (including
without limitation the assumption of those liabilities set forth in Section 7)
made or pledged in this Agreement.
20. EMPLOYMENT MATTERS
Purchaser shall have no obligation in respect of, and assumes no
responsibility for, accrued employment benefits of any kind claimed to belong or
belonging to Seller's employees except that Purchaser shall honor the vacation
earned by those employees of Seller (including any direct or
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indirect subsidiaries of Seller) employed by Purchaser or an affiliate of
Purchaser while in Seller's employ and Seller shall reduce the Purchase Price by
the value of such accrued vacation obligation.
21. CONDITION OF BUSINESS LOCATIONS
A. Between the date of execution of this Agreement and the Closing
Date, the Purchaser, its employees, agents and contractors may enter upon the
Business Locations at all reasonable times for the purpose of inspecting the
condition of such Business Locations. The Purchaser shall submit to the Seller
a detailed report identifying repairs and replacements (including the estimated
cost for completing such repairs or replacements) pertaining to the Business
Locations, whether interior or exterior, ordinary or extraordinary or structural
or non-structural, which repairs and replacements are necessary in order for the
Business Locations to be in the condition that the respective landlords would
reasonably require pursuant to the terms of the Business Locations' leases. The
Seller shall make all of the necessary repairs as herein required.
B. Between the date of execution of this Agreement and the Closing
Date, the Seller may make any alterations, additions or improvements to the
Business Locations. The Purchaser shall be under no obligation to reimburse the
Seller for any such alterations, additions or improvements to the Business
Locations unless Purchaser shall have given its prior written consent.
22. COOPERATION OF SELLER AND PURCHASER SUBSEQUENT TO CLOSING
Subsequent to the Closing Date, each of Purchaser and Seller, at the
request of the other, shall execute, deliver and acknowledge all such further
instruments and documents and do and perform all such other acts and deeds as
may be reasonably required to vest more effectively in each such party the
rights intended to be conferred upon such party pursuant to this Agreement.
23. WAIVER OF BULK SALES REQUIREMENT
Seller and Purchaser hereby agree to waive the bulk transfer provisions
of the Uniform Commercial Code as adopted by the State of Florida, if any,
subject only to the indemnification provisions of Section 18.
24. NOTICES
All notices, requests and other communications hereunder shall be in
writing and shall be deemed to have been given, if sent by certified mail,
return receipt requested, postage prepaid or by confirmed fax, as follows:
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If to Seller, to: A.P.S., Inc.
World Houston Plaza
15710 John F. Kennedy Boulevard,
Suite 700
Houston, Texas 77032
Attention: Vice President &
General Counsel
Fax number: (713) 507-1367
If to Purchaser, to: The Parts Source, Inc.
1751 South Missouri
Clearwater, Florida 34616
Attn: President
Fax number: (813) 559-8878
with a copy to: Schifino & Fleischer, P.A.
201 North Franklin Street
One Tampa City Center, Suite 2700
Tampa, Florida 33206
Attention: William Schifino, Esquire
Fax number: (813) 223-3070
or to such other address or addresses or fax numbers to which such parties shall
have notified the other in writing.
25. COUNTERPARTS
This Agreement may be executed simultaneously in any number of
counterparts each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
26. MODIFICATIONS
This Agreement constitutes the entire understanding between the parties
hereto with respect to the subject matter hereof and may not be amended or
modified in any respect except by an instrument in writing executed by each of
the parties hereto.
27. EXPENSES
Each party to this Agreement shall pay its own expenses (including,
without limitation, fees and expenses of auditors and legal counsel) incident to
the transactions contemplated by this Agreement.
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28. ENTIRE AGREEMENT
This instrument, together with any schedule or exhibits attached hereto
and made a part hereof, contains the entire agreement between the parties hereto
with respect to the sale by Seller and the purchase by Purchaser of the Assets
described herein and supersedes any and all prior agreements made by the parties
with respect thereto.
29. INVALIDITY
The invalidity of any provision of this Agreement shall not impair the
validity of any other provision. If any provision of this Agreement is
determined by a court of competent jurisdiction to be unenforceable, such
provision shall be deemed severable and this Agreement may be enforced with such
provision severed or as modified by such court.
30. EFFECT OF EXECUTION
Until executed by all parties, this is a draft and is neither an
agreement between the parties nor an embodiment of any prior oral agreement.
When and if this document is fully executed, it shall become the agreement of
the parties hereto.
31. SECTION AND OTHER HEADINGS
The section and other headings contained in this Agreement are for
reference purposes and shall not in any way affect the meaning or interpretation
of this Agreement. Reference to "Sections," "Exhibits" and "Schedules" refer to
Sections of this Agreement and Exhibits and Schedules attached or referred to in
this Agreement. Terms used in the Exhibits and Schedules that are defined in
this Agreement shall have the meaning given them in this Agreement.
32. INTERPRETATION
This Agreement is to be interpreted according to the laws of the State
of Florida.
33. GOVERNING LAW; COURTS
This Agreement shall be construed and enforced in accordance with the
laws of the State of Florida without regard to principles of conflicts of laws.
The parties agree that in any dispute between them relating to this Agreement,
exclusive jurisdiction shall be in the trial courts located within Orange
County, Florida, any objections as to jurisdiction or venue in such courts being
expressly waived.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and sealed as of the day and year first above written.
SELLER:
ATTEST:
A.P.S., INC.
/s/ By: /s/ E. Eugene Lauver
- ----------------------------------- -------------------------------------
E. Eugene Lauver
Assistant Secretary Vice President
PURCHASER:
ATTEST:
THE PARTS SOURCE, INC.
/s/ Robert Cox By: /s/ Thomas D. Cox
- ----------------------------------- -------------------------------------
Robert Cox Thomas D. Cox
Secretary President
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Exhibit Item 7 (c) 10.2
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement, dated as of October 22nd, 1996, among THE
PARTS SOURCE, INC., a Florida corporation (the "Company"), and AUTOPARTS FINANCE
COMPANY, INC., a Delaware corporation ("AFCO").
1. Definitions. For purposes of this Agreement, the following terms shall
have the following respective meanings:
"Acquisition": The Acquisition of The Parts Source, Inc. pursuant to the
Agreement of Sale.
"Acquisition Agreement": The Agreement of Sale, dated as of October 22,
1996, between The Parts Source, Inc., a Florida corporation, and AFCO.
"Common Stock": The common stock, par value $.001 per share, of the
Company.
"Exchange Act": The Securities Exchange Act of 1934, as amended, or any
successor Federal statute, and the rules and regulations thereunder which shall
be in effect at the time.
"NASD": National Association of Securities Dealers, Inc.
"Registrable Securities": Any Common Stock issued to AFCO pursuant to
the terms of the Acquisition Agreement and any securities issued or issuable
with respect to any Common Stock (i) by way of stock dividend or stock split,
(ii) in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or (iii) otherwise. As to any
particular Registrable Securities, once issued such securities shall cease to
be Registrable Securities when (a) a registration statement, (b) Rule 144 (or
any successor provision) under the Securities Act shall be available to AFCO
for distribution to the public of such portion of the Registrable Securities,
(c) subject to the provisions of Section 3.1(b) hereof, they shall have been
otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of them shall not require registration or qualification
of them under the Securities Act or any similar state law then in force, or (d)
they shall have ceased to be outstanding.
<PAGE> 2
"REGISTRATION EXPENSES": Any expenses incident to the Company's
performance of or compliance with Section 2 hereof, including, without
limitation, all registration and filing fees, all fees and expenses of
complying with securities or blue sky laws, fees and other expenses associated
with filings with the NASD, all printing expenses, the fees and disbursements
of counsel for the Company, but not including (a) the fees and expenses of any
"qualified independent underwriters" and its counsel, any fees associated with
any special auditing fees or disbursements of any counsel or advisors or AFCO,
or (b) any underwriting discounts or commissions or any transfer taxes incurred
with respect to the registration of the Registrable Securities pursuant to
Section 2 hereof.
"SECURITIES ACT": The Federal Securities Act of 1933, as amended, or
any similar Federal statute, and the rules and regulations thereunder which
shall be in effect at the time.
"SECURITIES AND EXCHANGE COMMISSION": The Securities and Exchange
Commission or any other Federal agency at the time administering the Securities
Act or Exchange Act.
2. REGISTRATION.
2.1. (a) REGISTRATION ON REQUEST: Subject to the provisions
of Section 2.6 hereof, at any time or from time to time commencing a date
("Rights Commencement Date") which is at least three hundred sixty-five (365)
calendar days following the Closing Date (as the term "Closing Date" is
defined in the Acquisition Agreement upon written notice from AFCO, AFCO shall
have the right to make one written request that the Company effect the
registration under the Securities Act of one-half or less of the Registrable
Securities of AFCO, which request shall specify the intended method of
disposition thereof by AFCO and the Company will thereupon use its best efforts
to effect the registration of the Registrable Securities under the Securities
Act which the Company has been so requested to register.
(b) REGISTRATION STATEMENT FORM. The registration
requested pursuant to this Section 2.1 shall be effected by the filing of a
registration statement on any of Form S-1, Form S-2 or Form S-3, as chosen by
the Company that is reasonably acceptable to AFCO (or any successor form of
registration statement or other form which includes substantially the same
information as would be required to be included in a registration statement on
such forms as presently constituted).
(c) EXPENSES. The Company will pay all amounts in respect
of (i) any allocation of salaries of Company personnel or other general
overhead expenses of the Company or other expenses for the preparation of
financial statements or other data normally prepared by the Company in the
ordinary course of its business, but not any expenses of AFCO's personnel or
other general overhead expenses of AFCO, (ii) the expenses of any officers' and
directors' liability insurance for the Company, (iii) the expense and fees for
listing the securities to be registered on each exchange on which similar
securities issued by the Company are then listed and (iv) all fees associated
with filings required to be made with the NASD (but not the fees and expenses
of any "qualified independent underwriter" and its counsel as may be required
by the rules and regulations of the NASD).
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<PAGE> 3
(d) INCLUSION OF OTHER SECURITIES. The Company may, at its
sole option or as may be required pursuant to any agreement with other holders
of the Company's securities (should there be any), register securities (other
than Registrable Securities) for sale for the account of the Company or any
person other than the Company in the registration of the Registrable
Securities. If such registration shall be in connection with an underwritten
public offering and the managing underwriters shall advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration (whether by the Company, pursuant to Section 2.1(a) or
pursuant to any other rights granted by the Company to a holder or holders of
its securities ("Other Holders") to request or demand such registration or
inclusion of any securities in any such registration) exceeds the number of
such securities which can be sold in such offering, the Company shall include
in such registration the number (if any) of securities of the Company so
requested to be included which in the opinion of such underwriters can be sold,
and the Registrable Securities requested by AFCO to be included therein and the
securities of the Company requested by the Other Holders to be included
therein shall be included therein pro rata (based on the number of shares if
the requested or demanded registration is to cover only Common Stock and, if
not, based on the proposed offering price of the total number of securities
included in such underwritten public offering requested to be included therein).
(e) EFFECTIVE REGISTRATION STATEMENT. A registration
requested pursuant to this Section 2.1 will not be deemed to have been effected
unless it has become effective for the period specified in Section 2.3(b)
hereof, provided that a registration which does not become effective after the
Company has filed a registration statement with respect thereto solely by reason
of the refusal or the inability to proceed by AFCO shall be deemed to have been
effected by the Company at the request of AFCO.
2.2. INCIDENTAL REGISTRATION. If the Company at any time prior to
the Rights Commencement Date proposes to register any of its equity securities
(as defined in the Exchange Act) under the Securities Act (other than pursuant
to Section 2.1 hereof), whether or not for sale for its own account, and the
registration form to be used may be used for the registration of Registrable
Securities, it will each such time give written notice to AFCO, at least thirty
(30) days prior to the date the registration statement for such registration is
filed with the Securities and Exchange Commission, of its intention to do so
and, upon the written request of AFCO within 30 days after the receipt of any
such notice (which request shall specify the Registrable Securities intended to
be disposed of by such holder and the intended method of disposition thereof),
the Company will use its best efforts to effect the registration under the
Securities Act of all Registrable Securities which the Company has been so
requested to register by AFCO, to the extent required to permit the disposition
(in accordance with the intended methods thereof as aforesaid) of the
Registrable Securities so to be registered, provided that:
(a) if, any time after giving written notice of its
intention to register any equity securities and prior to the effective
date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to
register such securities, the Company may, at its election, give
written notice of such determination to AFCO and,
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<PAGE> 4
thereupon, shall be relieved of its obligation to register any
Registrable Securities in connection with such registration (but not
from its obligation to pay the Registration Expenses incurred to the
date of the Company's election to not register the securities), without
prejudice, however, to the rights of AFCO to request that such
registration be effected as a registration under Section 3.1 hereof; and
(b) if such registration shall be in connection with an
underwritten public offering and the managing underwriters shall advise
the Company in writing that in their opinion the number of securities
requested to be included in such registration (whether by the Company,
pursuant to this Section 2.2 or pursuant to any other rights granted by
the Company to a holder or holders of its securities to request or
demand such registration or inclusion of any such securities in any
such registration) exceeds the number of such securities which can be
sold in such offering, the Company shall include in such registration
the number (if any) of securities requested to be included (the "Other
Registrable Securities"), which in the opinion of such underwriters
can be sold and shall not include in such registration any securities
(other than securities being sold by the Company, which shall have
priority in being included in such registration), including the
Registrable Securities, so requested to be included other than Other
Registrable Securities unless all Other Registrable Securities
requested to be so included are included therein (and, if in the
opinion of such underwriters, some but not all of the Other Registrable
Securities may be so included, the holders of such Other Registrable
Securities shall share pro rata in the number of shares of Other
Registrable Securities included in such underwritten public offering on
the basis of the number of Other Registrable Securities requested to be
included therein), and in the case of a registration initially
requested or demanded by a holder or holders of Other Registrable
Securities, the Company shall not register Registrable Securities for
sale in any such registration unless permitted to do so by the written
consent of holders holding at least a majority (by number of shares) of
the Other Registrable Securities proposing to sell their shares in such
registration. If AFCO requests the incidental registration of any or
all of the Registrable Securities pursuant to this Section 2.2 and if,
for any reason other than the fault or request of AFCO or the
provisions of this Section 2.2(b), any or all of the Registrable
Securities requested to be registered in the incidental registration
are not so registered, AFCO thereafter shall have the right, without
prejudice, to request under this Section 2.2 the incidental
registration of such Registrable Securities not so registered provided
the same limitations and restrictions set forth in this Section 2.2
apply in each such request.
The Company and, with respect to an underwritten offering, AFCO, shall pay all
Registration Expenses and expenses of an incidental registration of the
Registrable Securities under this Section 2.2 in the manner and to the same
extent as provided in Section 2.1(c) with respect to a registration on request.
2.3 REGISTRATION PROCEDURES. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Sections 2.1 and 2.2 hereof,
the Company will promptly:
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<PAGE> 5
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such securities, make all required
filings with the NASD, and use its best efforts to cause such registration
statement to become effective;
(b) prepare and file with the Securities and Exchange Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement until such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement, but in no event for a period
of more than six months after such registration statement becomes effective,
subject, however, to the last paragraph of this Section 2.3;
(c) furnish to counsel (if any) for AFCO, copies of all documents
proposed to be filed with the Securities and Exchange Commission in connection
with such registration, which documents will be subject to the review, but not
to any demands of such counsel;
(d) furnish to each seller of such securities such number of conformed
copies of such registration statement and of each such amendment and supplement
thereto (in each case including all exhibits, except that the Company shall not
be obligated to furnish any seller of securities with more than two copies of
such exhibits), such number of copies of the prospectus included in such
registration statement (including each preliminary prospectus and any summary
prospectus), in conformity with the requirements of the Securities Act, and such
other documents, as such seller may reasonably request in order to facilitate
the disposition of the securities owned by such seller;
(e) use its best efforts to register or qualify such securities
covered by such registration statement under such other securities or blue sky
laws of such jurisdictions as each seller shall reasonably request, and do any
and all other acts and things which may be necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of the securities
owned by such seller, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified, or to consent to general service of
process in any such jurisdiction;
(f) furnish to each seller a signed counterpart, addressed to the
sellers, of
(i) an opinion of counsel for the Company, dated the
effective date of the registration statement, and
(ii) a "comfort" letter signed by the independent public
accountants who have certified the Company's financial statements
included in the registration
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<PAGE> 6
statement,
covering substantially the same matters with respect to the registration
statement (and the prospectus included therein) and, in the case of such
accountants' letter, with respect to events subsequent to the date of
such financial statements, as are customarily covered in opinions of
issuer's counsel and in accountants' letter delivered to the
underwriters in underwritten public offerings of securities;
(g) notify each seller of any securities covered by such
registration statement, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, of the happening
of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and at the
request of any such seller, prepare and furnish to such seller a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact
required to be state therein or necessary to make the statements
therein not misleading in light of the circumstances then existing; and
(h) otherwise use its best efforts to comply with all
applicable rules and regulations of the Securities and Exchange
Commission.
The Company may require AFCO to furnish to the Company such information
regarding AFCO as the Company may from time to time reasonably request in
writing and as shall be required by law in connection therewith. AFCO hereby
agrees to furnish promptly to the Company all information reasonably requested
by the Company or required to be disclosed in order to make the information
previously furnished to the Company by AFCO not materially misleading.
AFCO hereby agrees that upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 2.3(g) hereof, AFCO
will promptly discontinue its disposition of Registrable Securities pursuant to
the registration statement covering such Registrable Securities until AFCO's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 2.3(g) hereof. If so directed by the Company, AFCO will deliver to the
Company all copies, other than permanent file copies, then in AFCO's possession
of the prospectus covering such Registrable Securities current at the time of
receipt of such notice. In the event the Company shall give any such
notice,the period mentioned in Section 2.3(b) hereof shall be extended by the
number of days equal to the number of days during the period from and including
the date of the giving of such notice to and including the date when each
seller of any Registrable Securities covered by such registration statement
shall have received the copies of the supplemented or amended prospectus
contemplated by Section 2.3(g) hereof. The Company hereby represents and
agrees that the Common Stock is registered under the Securities Exchange Act of
1934, as amended
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("Exchange Act"); as of April 8, 1997, the Company will have been subject to
the reporting reporting requirements of the Exchange Act for a period of at
least twelve (12) calendar months; the Company has filed in a timely manner all
reports required to be filed under the Exchange Act during the period from
April 8, 1996 to the date hereof; and the Company will send to AFCO all
reports and other documents (without exhibits) filed by the Company with the
Securities and Exchange Commission ("SEC") at the same time the Company sends
such reports and other documents to the SEC, provided, that the Company will
send to AFCO upon AFCO's request copies of all exhibits to such reports and
documents.
2.4. UNDERWRITTEN OFFERING.
(a) UNDERWRITTEN OFFERINGS EXCLUSIVE. Should AFCO's
request, pursuant to Section 2.1 hereof, include an underwritten offering, only
securities which are to be distributed by the underwriters may be included in
the registration. If AFCO determines, with respect to any such underwritten
offering, based on consultation with the managing underwriter or, in an
offering which is not underwritten, with an investment banker, that the number
of securities to be sold in any such offering should be limited due to market
conditions or otherwise, AFCO shall, at its sole option, either (i) limit its
sale of Registrable Securities to the number recommended by the managing
underwriters or investment banker, as the case may be or (ii) withdraw such
registration without prejudice to its right to request a registration under
Section 2.1 hereof.
(b) UNDERWRITING AGREEMENT. If requested by the
underwriters for AFCO, if Registrable Securities are to be offered through a
registration requested under Section 2.1 hereof, the Company and AFCO shall
enter into an underwriting agreement with such underwriters for such offering,
such agreement to be satisfactory in substance and form to the Company, AFCO and
to the underwriters and to contain such representations and warranties by the
Company and such other terms and provisions as are customarily contained in
agreements of this type, including, without limitation, indemnities to the
effect and to the extent provided in Section 2.7 hereof. AFCO shall be a party
to such underwriting agreement and may, at its sole option, require that any or
all of the representations and warranties by, and the agreements on the part
of, the Company to and for the benefit of such underwriters be made to and for
the benefit of AFCO and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement shall also
be conditions precedent to the obligations of AFCO.
(c) SELECTION OF UNDERWRITERS. Whenever a registration
requested pursuant to Section 2.1 hereof is for an underwritten offering, the
Company and AFCO shall select the managing underwriters mutually agreeable to
AFCO and the Company to administer the offering. If in connection with any such
underwritten offering, a "qualified independent underwriter" may be required by
the rules and regulations of the NASD, such qualified independent underwriter
shall be selected by the Company.
(d) INCIDENTAL UNDERWRITTEN OFFERINGS. Prior to the
Rights Commencement Date, subject to the provisions of the proviso to Section
2.2 hereof, and if the Company at any time
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proposes to register any of its securities under the Securities Act, whether or
not for its own account, and such securities are to be distributed by or
through one or more underwriters, the Company will use its best efforts, if
requested by AFCO to arrange for such underwriters to include the Registrable
Securities to be offered and sold by AFCO among those to be distributed by such
underwriters. AFCO shall be a party to the underwriting agreement. AFCO shall
not be required to make any representations or warranties other than AFCO's
intended method of distribution.
(e) HOLD BACK AGREEMENTS. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Sections 2.1 and 2.2 hereof,
AFCO hereby agrees not to effect any public sale or distribution, including any
sale pursuant to Rule 144 of the Securities Act, of any Registrable Securities,
and to use AFCO's best efforts not to effect any such public sale or
distribution of any other equity securities of the Company or any securities
convertible into or exchangeable or exercisable for any equity security of the
Company (other than as part of such underwritten public offering) within 30
days prior to and 90 days after the effective date of such registration
statement, and the Company agrees to cause each officer, director or any holder
of ten percent (10%) or more of any equity security, or of any security
convertible into or exchangeable or exercisable for any equity security, of the
Company to enter into a similar agreement with the Company. The Company further
agrees not to effect any public sale or distribution of its equity securities,
or any securities convertible into or exchangeable or exercisable for such
securities, within 30 days prior to and 90 days after the effective date of
such registration statement (except as part of such underwritten public
offering or pursuant to a registration on Form S-4, S-8 or any successor forms).
2.5. PREPARATION: REASONABLE INVESTIGATION. If AFCO should request
the registration of the Registrable Securities pursuant to Section 2.1 hereof,
AFCO shall have the right to select legal counsel (who is reasonably acceptable
to the Company), provided such counsel's work product is reviewed by separate
counsel chosen by the Company before the registration statement for such
registration is filed with the Securities and Exchange Commission, with AFCO's
counsel making such changes to the registration statement as the Company's
separate counsel shall advise, with all legal fees and expenses of AFCO's
counsel to be paid by AFCO, and all legal fees and expenses of the Company's
separate counsel to be paid by the Company. In addition, in connection with the
preparation and filing of a registration statement registering Registrable
Securities under the Securities Act, the Company will give AFCO and their
underwriters, if any, and their respective counsel and accountants, the
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Securities and Exchange
Commission, and each amendment thereof or supplement thereto, and will give
each of them such access to its books and records and such opportunities to
discuss the business of the Company with its officers and the independent
public accountants who have certified its financial statement as shall be
necessary, in the opinion of such holders' and such underwriters' respective
counsel, to conduct a reasonable investigation within the meaning of the
Securities Act.
2.6. OTHER REGISTRATIONS. If and whenever the Company is required
to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided
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in Sections 2.1 and 2.2 hereof, and if such registration shall not have been
withdrawn or abandoned, the Company shall not be obligated to and shall not
effect any registration of any of its securities (including Registrable
Securities) under the Securities Act, whether of its own accord or at the
request or demand of AFCO, until a period of six months shall have lapsed from
the effective date of such previous registration; and the Company shall so
provide in any registration agreement with respect to any of its securities.
2.7. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. In the event of any
registration of any Registrable Securities under the Securities Act pursuant to
Section 2.1 or 2.2 hereof, the Company will indemnify and hold harmless AFCO,
its directors, officers and employees, each other person who participates as an
underwriter, broker or dealer in the offering or sale of such securities and
each other person, if any, who controls AFCO or any such participating person
within the meaning of the Securities Act, against any losses, claims, damages
or liabilities, joint or several, to which AFCO or any such director, officer
or employee or participating person or controlling person may become subject
under the Securities Act, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or (ii) any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Company will reimburse AFCO and each such
director, officer, employee, participating person and controlling person for
any legal or any other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, liability, action or
proceeding, provided that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or omission made in such registration statement,
any such preliminary prospectus, final prospectus, summary prospectus, amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by AFCO or
participating person specifically stating that it is for use in the preparation
thereof or arises out of or is based on AFCO's or such participating person's
failure to deliver a copy of the registration statement or prospectus or any
amendment or supplement thereto after the Company has furnished AFCO with a
sufficient number of the same; and provided, further, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission in the prospectus, if
such untrue statement or alleged untrue statement or omission or alleged
omission is completely corrected in an amendment or supplement to the
prospectus and AFCO thereafter fails to deliver such prospectus as so amended
or supplemented prior to or concurrently with the sale of Registrable
Securities to the person asserting such loss, damage, liability or expense
after the Company had furnished AFCO with a significant number of copies of the
same or if AFCO received notice from the Company of the existence of such
untrue statement or alleged untrue statement or omission or alleged omission
and AFCO continued to dispose of
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Registrable Securities prior to the time of the receipt of either (aa) an
amended or supplemented prospectus which completely corrected such untrue
statement omission or (bb) a notice from the Company that the use of the
existing prospectus may be resumed. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of AFCO or any
such director, officer, employee, participating person or controlling person
and shall survive the transfer of such securities by AFCO.
(b) INDEMNIFICATION BY AFCO. In the event of any
registration of any Registrable Securities under the Securities Act pursuant to
Section 2.1 or 2.2 hereof, AFCO will indemnify and hold harmless the Company,
its directors, officers and employees, each other person who participates as an
underwriter, broker or dealer in the offering or sale of such securities and
each other person, if any, who controls the Company or any such participating
person within the meaning of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, to which the Company or any such
director, officer or employee or participating person or controlling person may
become subject under the Securities Act, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of a
material fact provided the Company by AFCO contained in any registration
statement under which such securities were registered under the Securities Act,
any preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or (ii) any omission or
alleged omission by AFCO to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and in such event
AFCO will reimburse the Company and each such director, officer, employee,
participating person and controlling person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceeding, provided that AFCO shall not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or omission made
in such registration statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement in reliance upon and in
conformity with written information furnished to AFCO through an instrument
duly executed by the Company or participating person specifically stating that
it is for use in the preparation thereof or arises out of or is based on the
Company's or such participating person's failure to deliver a copy of the
registration statement or prospectus or any amendment or supplement thereto
after AFCO has furnished the Company with a sufficient number of the same; and
provided, further, that AFCO shall not be liable in any such case to the extent
that any such loss, claim, damage or liability or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission in the prospectus, if such untrue statement or alleged untrue
statement or omission or alleged omission is completely corrected in an
amendment or supplement to the prospectus and the Company thereafter fails to
deliver such prospectus as so amended or supplemented prior to or concurrently
with the sale of Registrable Securities to the person asserting such loss,
damage, liability or expense after AFCO had furnished the Company with a
significant number of copies of the same or if the Company received notice from
AFCO of the existence of such untrue statement or alleged untrue statement or
omission or alleged omission and the Company continued to dispose of
Registrable Securities prior to the time of the receipt of either (aa) an
amended or supplemented prospectus which completely corrected such
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untrue statement or omission or (bb) a notice from AFCO that the use of the
existing prospectus may be resumed.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding paragraphs of this Section 2.7,
such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action, provided that the failure of any indemnified party
to give notice as provided therein shall not relieve the indemnifying party of
its obligations under the preceding paragraphs of this Section 2.7. In case any
such action is brought against an indemnified party, the indemnifying party
will be entitled to participate in and to assume the defense thereof, to the
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof, provided that if such indemnified party and the indemnifying
party reasonably determine, based upon advice of their respective independent
counsel, that a conflict of interest may exist between the indemnified party
and the indemnifying party with respect to such action and that it is thus
advisable for such indemnified party to be represented by separate counsel, such
indemnified party may retain other counsel, satisfactory to the indemnifying
party, to represent such indemnified party, and the indemnifying party shall
pay all reasonable fees and expenses of such counsel. No indemnifying party in
the defense of any such claim or litigation, shall, except with the consent of
such indemnified party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a release from all
liability in respect of such claim or litigation.
(d) OTHER INDEMNIFICATION. Indemnification similar to
that specified in the preceding paragraphs of this Section 2.7 (with
appropriate modifications) shall be given by the Company and AFCO with respect
to any required registration or other qualification of such Registrable
Securities under any Federal or state law or regulation or governmental
authority other than the Securities Act.
(e) OTHER REMEDIES. If for any reason the foregoing
indemnity is unavailable, or is insufficient to hold harmless and indemnified
party, then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party on the one hand and the
indemnified party on the other or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, or provides a lesser sum to the
indemnified party than the amount hereinafter calculated, in such proportion as
is appropriate to reflect not only the relative benefits received by the
indemnifying party on the other hand and the indemnified party on the other but
also the relative fault of the indemnifying party and the indemnified party as
well as any other relevant equitable considerations. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be
11
<PAGE> 12
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. No party shall be liable for contribution under this clause
(e) except to the extent and under such circumstances as such party would have
been liable to indemnify under this Section 2.7 if such indemnification were
enforceable under applicable law.
3. MISCELLANEOUS.
3.1. RULE 144: LEGENDED SECURITIES.
(a) The Company, in compliance with Section 12 of the
Exchange Act, covenants that it will continue to file the reports required to
be filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the Securities and Exchange Commission thereunder to
enable AFCO to sell shares of Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by (i) Rule
144 under the Securities Act, as such Rule may be amended from time to time,
without giving effect to Rule 144A, or (ii) any similar rule or regulation
hereafter adopted by the Securities and Exchange Commission. Should the Company
fail to timely file its reports under the Securities Act and the Exchange Act,
and certain less expensively prepared registration statements thereby becomes
unavailable for use notwithstanding AFCO's obligation with respect to
Registration Expenses, the Company will pay all costs of Registration Expenses
in excess of the cost of using the less expensive unavailable registration
statement.
(b) The Company agrees and AFCO understands that the
Company will not issue original or replacement certificates for shares of
Registrable Securities without a legend restricting further transfer unless
such shares have been sold to the public pursuant to an effective registration
statement under the Securities Act or Rule 144 thereunder, or unless otherwise
permitted under the Securities Act.
3.2 AMENDMENTS AND WAIVERS. This Agreement may be amended, and the
Company may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, only if the Company shall have obtained
the written consent to such amendment, action or omission to act, of AFCO.
3.3 SUCCESSORS, ASSIGNS AND TRANSFEREES. This Agreement and the
rights hereunder shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. In addition, and
whether or not any express assignment shall have been made, the provisions of
this Agreement which are for the benefit of the parties hereto other than the
Company shall also be for the benefit of and enforceable by any subsequent
holder of any Registrable Securities.
3.4 NOTICES. All notices, requests, demands or other
communications provided for hereunder shall be in writing and shall be deemed
to have been duly given to any party (i) when delivered personally (by courier
service or otherwise), (ii) when delivered by telex and confirmed
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<PAGE> 13
by receipt of the proper telex answer back, (iii) five days after being mailed
by first class mail, postage prepaid (registered or certified mail, return
receipt requested), (iv) when receipt acknowledged, if telecopied, or (v) the
next business day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery, in each case to the applicable
address set forth below, or to such other address as such party may have
designated to the other in writing,
The Parts Source, Inc.
1751 S. Missouri
Clearwater, FL 34616
Attn: Thomas D. Cox, President
or at such other address or addresses as the Company may have designated in
writing to the Company. A copy of any notice or other communication given under
the Agreement shall also be given to:
Schifino & Fleischer, P.A.
201 North Franklin Street
One Tampa City Center, Suite 2700
Tampa, Florida 33206
Attn: William Schifino, Esquire
All notices to AFCO shall be sent to:
Autoparts Finance Company, Inc.
c/o A.P.S., Inc.
15710 John F. Kennedy Boulevard
Suite 700
Houston, Texas 77032-2347
Attn: Vice President & General Counsel
or at such other address or addresses as AFCO may have designated in writing to
the Company.
3.5. DESCRIPTIVE HEADINGS. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for convenience only and
do not constitute a part of this Agreement.
3.6. GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the
internal laws of the State of Florida without regard to principles of conflicts
of laws.
3.7. COUNTERPARTS. This Agreement may be executed simultaneously
in one or more counterparts, and by different parties on separate counterparts,
each of which shall be deemed an original, but all such counterparts shall
together constitute one and the same instrument.
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<PAGE> 14
3.8. SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be executed on its behalf as of the date
first written above.
THE PARTS SOURCE, INC.
By: /s/ Thomas D. Cox
------------------------------
Name: Thomas D. Cox
-----------------------------
Title: President
---------------------------
AUTOPARTS FINANCE COMPANY, INC.
By: /s/ E. Eugene Lauver
------------------------------
Name: E. Eugene Lauver
-----------------------------
Title: Vice President
---------------------------
<PAGE> 1
EXHIBIT ITEM 7(c) 10.3
INVESTMENT AGREEMENT
THE PARTS SOURCE, INC., DBA ACE AUTO PARTS, a Florida corporation (the
"Company"), having its principal place of business at 1751 South Missouri
Avenue, Clearwater, Florida 34616, telephone (813) 588-0377, facsimile (813)
581-0695, and AUTOPARTS FINANCE COMPANY, INC., a Delaware corporation (the
"Investor"), having its principal place of business at 15710 John F. Kennedy
Boulevard, Suite 700, Houston, Texas 77032, telephone (713) 507-1135,
facsimile (713) 507-1367 hereby agree as follows:
PREAMBLE:
1. The Company has offered shares of its Common Stock, par value
$.001 per share (the "Common Stock") to the Investor.
2. The Common Stock is being offered pursuant to exemptions
provided by Section 4(2) of the Securities Act of 1933 (the "Securities Act"),
and the Common Stock issued will be subject to certain transfer restrictions as
set forth herein.
TERMS:
ARTICLE 1. OFFER AND ACCEPTANCE
Section 1.1. Offer. Subject to the terms and conditions of this
Agreement, the Investor hereby offers to purchase the number of shares of
Common Stock set forth below for and in consideration of the purchase price of
$2,500,000.00.
Number of Shares: 227,273
Per Share Purchase Price: $11.00
Section 1.2. Acceptance. The Company hereby accepts the Offer in
consideration of the purchase price specified in Section 1.1 of this Agreement.
Unless and until the Company accepts this Agreement and the Company receives
payment in full for the shares of Common Stock sold hereunder (the "Purchased
Shares"), the Investor will not become a holder of the Purchase Shares and such
securities will not be considered issued or outstanding.
ARTICLE 2. CLOSING DATE; DELIVERY
Section 2.1. Closing Date. The closing for the purchase and sale of
the Purchased Shares
<PAGE> 2
(the "Closing") shall be held at the offices of Schifino & Fleischer, P.A, One
Tampa City Center, Suite 2700, Tampa, Florida 33602 on or before October 25,
1996 at 10:00 a.m. or at such other time and place as the Company and the
Investor may from time to time in writing mutually agree (the "Closing Date").
Section 2.2. Closing. At the Closing, the Company will issue a
certificate registered in the name of the Investor representing the Purchased
Shares against payment of the purchase price therefor by wire transfer. The
Company will deliver such certificate to the Investor promptly after the
Closing.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Investors as follows:
Section 3.1. Organization and Standing. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Florida. The Company has all requisite corporate power to own
and operate its properties and assets, to carry on its business as presently
conducted, to execute and deliver this Agreement, to sell and issue the
Purchase Shares hereunder and to carry out and perform its obligations under
the terms of this Agreement.
Section 3.2. Authorization. All corporate action of the part of the
Company, its directors and stockholders necessary to authorize the execution
and delivery of this Agreement, the performance of the Company's obligations
hereunder and the sale and issuance of the Purchase Shares has been duly taken
or will be taken before the Closing. This Agreement has been duly executed and
delivered by the Company and is a valid and legally binding obligation of the
Company, which is enforceable against the Company in accordance with its terms.
The execution and delivery of this Agreement by the Company, the performance of
its obligations hereunder and the sale and issuance of the Purchased Shares
will not violate any law applicable to the Company or its Articles of
Incorporation or Bylaws or breach or be a default under (with or without the
giving of notice or the lapse of time) any material contract, agreement or
instrument to which the Company is a party. The Purchased Shares have been duly
authorized and, when issued and paid for in accordance with the terms of this
Agreement will be validly issued, fully paid and nonassessable and free and
clear of all liens, encumbrances and adverse claims other than restrictions on
transfer under this Agreement and applicable federal and state securities laws
or those that are imposed by or through the Investor.
Section 3.3. No Registration Requirement. Subject to the truth and
accuracy of the representations of the Investor set forth in Article 4 of this
Agreement, the offer, sale and issuance of the Purchased Shares as contemplated
by this Agreement are exempt from the registration and prospectus delivery
requirements of Section 5 of the Securities Act, and neither the Company nor
any person acting on its behalf will take any action hereafter that would cause
the loss of such exemption.
2
<PAGE> 3
Section 3.4. Disclosure. The Company has previously delivered to the
Investor a copy of its (i) Prospectus dated April 8, 1996; and (ii) Form 10-Q's
for the quarterly periods ended March 31, 1996 and June 30, 1996. There has
been no material adverse change in the Company's financial position or results,
business or prospects since the date thereof. Neither the representations or
warranties by the Company contained in this Agreement nor any other statement
or certificate furnished or to be furnished to the Investors pursuant hereto or
in connection with the transactions contemplated hereby by the Company (when
read together) contains or will contain any untrue statement of a material fact
or omits or will omit to state a material fact necessary to make the statements
contained therein or herein not misleading in light of the circumstances under
which they were made.
Section 3.5. Capital Stock of Company. Schedule A hereto sets forth a
true and complete list of the number of shares of all capital stock and options
authorized, issued and outstanding as of a recent date.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor hereby represents and warrants to the Company as follows:
Section 4.1. Private Offering. The Investor understands that the
Purchased Shares have not been registered under the Securities Act on the
ground that the sale provided for in this Agreement and the issuance of
Purchased Shares hereunder is exempt form registration under the Securities Act
pursuant to Section 4(2) thereof, that the Company's reliance on such exemption
is predicated on the Investor's representations set forth herein and that in
order to obtain such exemption, the transfer of such Purchased Shares is
restricted by Section 4.2. of this Agreement and the legend required by Section
4.2. of this Agreement.
Section 4.2. Transfer Restrictions. The Investor will not offer for
sale, sell or otherwise transfer any Purchased Shares unless such shares have
been registered under the Securities Act and under applicable state securities
laws or such shares or their offer, sale or transfer are exempt form such
registration and the Company has received an opinion of counsel, in form and
substance reasonable satisfactory to the Company, to the effect that such
shares or their offer, sale or transfer are so exempt. Any certificate
representing any Purchased Shares issued hereunder shall bear the following
legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. THESE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE
TRANSFERRED UNLESS THEY ARE REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THEY
OR SUCH OFFER, SALE OR TRANSFER ARE EXEMPT FROM SUCH REGISTRATION AND THE
COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY IN FORM AND SUBSTANCE TO THAT EFFECT.
3
<PAGE> 4
Section 4.3. Investment Intent. The Investor is purchasing the
Purchased Shares for the Investor's own account and not for other persons and
for investment and not with a view to the distribution of any of the Purchased
Shares.
Section 4.4. Information. The Investor has received a copy of the
items set forth on Schedule B hereto and has carefully reviewed such materials.
The Company has delivered no other material, nor made any oral or written
representations to any Investor regarding the Company or its prospects other
than those representations contained in this Agreement. The Investor has had an
opportunity to ask questions and receive answers from the Company regarding the
business, properties, financial condition and prospects of the Company and to
obtain additional information (to the extent the Company possessed such
information or could acquire it without unreasonable effort or expense)
necessary to verify the accuracy of any information furnished to the Investor.
Section 4.5. Investor Sophistication, Suitability. The Investor has
such knowledge and experience in financial and business matters that the
Investor is capable of evaluating the merits and risks of investment in the
Purchased Shares. The Investor has determined that the Purchased Shares are a
suitable investment for the Investor and that the Investor could bear the
complete loss of the Investor's investment in the Purchased Shares.
Section 4.6. Capacity; Enforceability. The Investor represents and
warrants that: (a) if it is executing this Agreement in a representative or
fiduciary capacity, it has full power and authority to execute and deliver this
Agreement in such capacity and on behalf of its principal; and (b) this
Agreement constitutes a valid and legally binding obligation of the Investor
enforceable against the Investor in accordance with its terms.
Section 4.7. Indemnification. The Investor shall indemnify the
Company against any and all claims, losses and liabilities (and actions and
proceedings in respect thereof) arising out of or related to any breach of any
warranty or agreement made by the Investor in this Article 4 or any
misrepresentation of the Investor contained herein and will reimburse the
Company for any legal or any other expense reasonably incurred in connection
with investigating or defending any such claim, loss, liability, action or
proceeding.
ARTICLE 5. CONDITIONS TO INVESTOR'S OBLIGATIONS AT CLOSING
The Investor's obligations to purchase the Purchased Shares at the
Closing are subject to the fulfillment on or before the Closing Date of the
following conditions to the extent not waived by the Investor:
Section 5.1. Representations and Warranties Correct. The
representations and warranties made by the Company in Article 3 hereof shall
be true and correct when made, and shall be true and correct on the Closing
Date.
<PAGE> 5
Section 5.2. Covenants. All covenants, agreements and conditions
contained in this Agreement to be performed by the Company on or prior to the
Closing Date shall have been performed or complied with in all respects.
Section 5.3. Closing Date. The Closing shall have occurred on or
before October 25, 1996, unless extended.
Section 5.4. Acquisition. The Agreement of Sale dated as of October
22, 1996, between the Company and A.P.S., Inc., a Delaware corporation, shall
have closed contemporaneously herewith.
Section 5.5. Compliance Certificate. The Company shall have delivered
to the Investor a certificate, executed by the President of the Company, dated
the Closing Date, certifying the fulfillment of the conditions specified in
Sections 5.1. and 5.2. of this Agreement.
Section 5.6. Legal Opinion. The Company shall have delivered to the
special counsel to the Investor a written legal opinion of its counsel,
Schifino & Fleischer, P.A. as to the matters in Sections 3.1., 3.2., and 3.3.,
subject to customary qualifications and assumptions.
Section 5.7. Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents and instruments incident to such transactions shall be reasonably
satisfactory in substance and form to the Investor, and the Investor shall have
received all such counterpart originals or certified or other copies of such
documents as they may reasonably request.
ARTICLE 6. CONDITIONS TO COMPANY'S OBLIGATIONS AT CLOSING
The Company's obligation to sell the Purchased Shares at the Closing
is subject to the fulfillment on or before the Closing Date of the following
conditions to the extent not waived by the Company.
Section 6.1. Receipt of Payment. The Company shall have received
payment for the Purchased Shares.
Section 6.2. Representations Correct. The representations made in
Article 4 hereof shall be true and correct when made, and shall be true and
correct on the Closing Date.
Section 6.3. Qualifications, Legal Investment. No stop order or other
order enjoining the sale of the Purchased Shares shall have been issued and no
proceedings for such purpose shall be pending or, to the knowledge of the
Company, threatened by any person or governmental authority. At the time of the
Closing, the sale and issuance of the Purchased Shares shall be legally
permitted by all laws and regulations to which the Investor and the Company are
subject.
5
<PAGE> 6
ARTICLE 7. BOARD PARTICIPATION
Section 7.1. Meetings of the Board of Directors. As long as the
Investor owns in excess of five percent (5%) of the issued and outstanding
shares of the Company, the Investor shall be entitled to select an authorized
representative to attend all regularly scheduled and all special meetings of
the Board of Directors of the Company. Any notice required in connection with
such meetings shall be sent to:
Autoparts Finance Company, Inc.
15710 John F. Kennedy Boulevard, Suite 700
Houston, Texas 77032
Attn: Vice President & General Counsel
Telephone: (713) 507-1135
Telecopy: (713) 507-1367
The Investor's representative shall not be a member of the Company's
Board of Directors.
Section 7.2. Copies of Documents. The Investor shall be provided with
(a) a copy of the minutes of all meetings of the Board of Directors of the
Company, and (b) a copy of any documents filed with the Securities and Exchange
Commission. Such documents shall be sent to the Investor, at the address
identified in Section 7.1 above, no later than 14 days following the meeting or
filing date.
ARTICLE 8. MISCELLANEOUS
Section 8.1. Survival. The representations, warranties, covenants and
agreements made by the parties herein shall survive any investigation made by
the Investor or the Company and shall survive the Closing of the transactions
contemplated hereby.
Section 8.2. Expenses. The Company and the Investor shall each bear its
own expenses and legal fees incurred on its behalf with respect to this
Agreement and the transactions contemplated hereby.
Section 8.3. Notices. Any notice, request or other communication
required or permitted to be given under this Agreement, except as otherwise
provided for in Section 7 hereof, shall be in writing and deemed to have been
properly given when delivered in person, or when sent by telecopy or other
electronic means and confirmation of receipt is received or two days after
being sent by certified or registered United States mail, return receipt
requested, postage prepaid, addressed (a) if to the Investor, at the address
set forth on Schedule A, or (b) if to the Company, at the address set forth
above. Any party may change its address for notices in the manner set forth
above.
6
<PAGE> 7
Section 8.4. Successors and Assigns. Except as otherwise provided
herein, the terms of this Agreement shall inure to the benefit of and be
binding upon the respective heirs, legal representatives and corporate or
partnership successors of the parties. The Investor may not assign its rights
to purchase Common Stock hereunder without the prior written consent of the
Company.
Section 8.5. This Agreement. This Agreement sets forth the entire
agreement of the parties with respect to the subject matter hereof and its
supersedes and discharges all prior negotiations and agreements (written or
oral) concerning such subject matter.
Section 8.6. Non-Waiver. Neither the failure of nor any delay by any
party to this Agreement to enforce any right hereunder or to demand compliance
with its terms is a waiver of any right hereunder or constitutes a course of
dealing that modified this Agreement.
Section 8.7. Waivers. No waiver of any right or remedy under this
Agreement shall be binding on any party unless it is in writing and is signed
by the party to be charged. No such waiver of any right or remedy under any
term of this Agreement shall in any event be deemed to apply to any subsequent
default under the same or any other term contained herein.
Section 8.8. Amendments. No amendment, modification or termination of
this Agreement shall be binding on any party hereto unless it is in writing and
is signed by the parties hereto.
Section 8.9. Severability. The terms of this Agreement are severable
and the invalidity of all or any part of any term of this Agreement shall not
render invalid the remainder of this Agreement or the remainder of such term.
If any term of this Agreement is so broad as to be unenforceable, such term
shall be interpreted to be only so broad as is enforceable.
Section 8.10. Third Parties. Nothing herein expressed or implied is
intended or shall be construed to give any person other than the parties hereto
any rights or remedies under this Agreement.
Section 8.11. Counterparts. This Agreement may be executed in any
number of counterparts, all of which shall constitute one and the same
instrument, and any party hereto may execute this Agreement by signing one or
more counterparts.
Section 8.12. Governing Law. The validity, terms, performance and
enforcement of this Agreement shall be governed by laws of the State of Florida
that are applicable to agreements negotiated, executed, delivered and performed
solely in the state of Florida.
7
<PAGE> 8
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its duly authorized officer on this 22nd day of October, 1996.
THE COMPANY:
THE PARTS SOURCE, INC.
DBA ACE AUTO PARTS
By: /s/ Thomas D. Cox
----------------------------
Name: Thomas D. Cox
Title: President
THE INVESTOR:
AUTOPARTS FINANCE COMPANY, INC.
By: /s/ E. Eugene Lauver
----------------------------
Name: E. Eugene Lauver
Title: Vice President
8
