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EXHIBIT 10.1
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT ("the Agreement") is entered into as of
December 24, 1999 by and between R. Terrance Leiweke ("Leiweke") and Cragar
Industries, Inc., a Delaware corporation ("Cragar").
RECITALS
A. Leiweke is the record and beneficial owner of 315,000 shares of
Common Stock, par value $.01 per share (the "Common Shares"), and 312,500
shares of Series A Preferred Stock, par value $.01 per share (the "Preferred
Shares") of Wrenchead.com, Inc. ("Wrenchead").
B. The Common Shares and the Preferred Shares are together referred to
as the "Shares."
C. Leiweke is a party to a Right of First Refusal and Co-Sale Agreement
among Wrenchhead.com, Inc. and its stockholders, which prohibits the sale or
transfer of the Shares, except upon satisfaction of certain specified
conditions, including among other actions, Leiweke's obligation to notify
Wrenchead and the parties to that agreement of his intent to transfer an
interest in the Shares, a copy of which is attached as Exhibit A to this
Agreement.
D. Leiweke desires to grant an option to Cragar to purchase the Shares
from Leiweke, and Cragar desires to acquire the option from Leiweke to
purchase the Shares on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, and the covenants, obligations and undertakings of the parties
hereinafter set forth, it is hereby agreed by and between the parties hereto
agree as follows:
SECTION 1--GRANT OF OPTION
1.1 GRANT OF OPTION. Leiweke grants an irrevocable option to Cragar to
purchase the Shares on April 27, 2000 on the terms and conditions described
in this Agreement. As consideration for granting this option, Cragar will pay
$300,000 to Leiweke payable by delivery of a check payable to Leiweke upon
the earlier to occur of the date the notice periods provided for in the Right
of First Refusal and Co-Sale Agreement expire and December 24, 1999. If
Cragar exercises the option as provided in this Agreement, the $300,000 will
be regarded as a portion of the total purchase price for the Shares acquired
pursuant to exercise of the option.
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1.2 EXERCISE OF OPTION. Cragar may not exercise the option to acquire
the Shares until April 27, 2000. If Cragar elects to exercise the option to
acquire the Shares, Cragar must notify Leiweke in writing of its intention to
do so by April 17, 2000 and:
(a) pay to Leiweke, on April 27, 2000 (the "Option Exercise
Date"), $5,070,000 in immediately available, same day funds, less the
$300,000 paid pursuant to Section 1.1; and
(b) issue to Leiweke, on the Option Exercise Date, 75,000 shares
of Cragar's Common Stock, par value $.01 per share (the "Cragar Shares"),
which will be subject to the terms and conditions of Sections 1.6 and 1.7
of this Agreement.
1.3 FAILURE TO EXERCISE OPTION. If Cragar declines or otherwise fails
to exercise the options to purchase the Shares by the Option Exercise Date,
which it has the right to do in its sole and absolute discretion, Leiweke may
keep the $300,000 as a nonrefundable deposit. In that event, Cragar will have
no other obligations to Leiweke under this Agreement.
1.4 TERM OF THE OPTION. The option will expire at 5:00 p.m., Phoenix
local time on April 27, 2000 unless Leiweke agrees to extend the option to a
later date.
1.5 DELIVERY OF STOCK CERTIFICATES. With respect to any Shares
transferred by Leiweke to Cragar, Leiweke must deliver to Cragar, against
payment of the option exercise price on the Option Exercise Date,
certificates representing all of the Shares transferred, duly endorsed in
blank for transfer or with stock powers attached duly executed in blank,
together with any such documents as may be required to transfer to Cragar
good and marketable title to those Shares, free and clear of any and all
liens, security interests, restrictions, encumbrances, pledges, claims or
charges or any nature.
1.6 If, by the six month anniversary of the Option Exercise Date,
Cragar has not:
(a) completed the registration of the Shares for resale by Leiweke
as contemplated by Section 1.7 of this Agreement;
(b) sold all or substantially all of its assets in an all or
substantially all cash transaction or for consideration consisting
substantially of publicly-traded securities; or
(c) been merged or otherwise acquired in a cash transaction and/or
for consideration consisting substantially of publicly-traded securities;
then Leiweke may, upon written notice to Cragar delivered within 60 days
after the six month anniversary, require Cragar, and Cragar will be required
to repurchase from Leiweke, all or any portion of the Shares for a price
equal to $4.00 per Share. If Leiweke exercises this put right, Cragar must
pay at least one-third of the total repurchase price not later than the nine
month anniversary of the Option Exercise Date and the remaining repurchase
price not later than the one year anniversary of the Option Exercise Date,
together with interest on the unpaid amount at the prime rate in effect on
such six month anniversary as published by The Wall Street Journal plus 2%,
payable quarterly commencing on the one month anniversary of the date of
notice referred to above. Cragar may pay the total repurchase price at any
time prior to these dates
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without premium or penalty. Until the repurchase price is paid in full, the
unpaid amount will be secured by a pledge to Leiweke of the Shares being
repurchased, which Shares may not be concealed, otherwise encumbered or
retired. Leiweke (or his successor in interest) will be permitted only a
single exercise of this put right, which will expire to the extent not
exercised within 60 days after the six month anniversary of the Option
Exercise Date.
1.7 REGISTRATION RIGHTS. If Cragar exercises its option to acquire the
Shares as contemplated by Section 1.2 of this Agreement, Cragar will be
required to issue 75,000 shares of its Common Stock subject to the
registration rights described below:
(a) AUTOMATIC REGISTRATION. Cragar must effect the registration
under the Securities Act of 1933 (the "Securities Act") of the Cragar
Shares issued to Leiweke (the "Registrable Securities) not later than
the six month anniversary of the Option Exercise Date. In that event,
Cragar will, as expeditiously as possible, prepare and file with the
Securities and Exchange Commission (the "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 for the period commencing on the effective date of
the registration statement and ending on the earlier of
(i) the date on which the sale of all Registrable Securities
covered thereby is completed, and
(ii) 180 days after such effective date,
and comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such registration
statement in accordance with the intended method of disposition set forth in
such registration statement for such period.
(b) REGISTRATION PROCEDURES. If required to register the Cragar
Shares pursuant to Section 1.7(a), Cragar will:
(i) prepare and file with the Commission a registration
statement with respect to the Registrable Securities as
expeditiously as possible, but in no event later than 90 days after
the Option Exercise Date, unless Cragar furnishes Leiweke a
certificate signed by Cragar's President stating that (A) in the
good faith judgment of Cragar's Board of Directors it would be
seriously detrimental to Cragar for such registration statement to
be filed by such date and it is therefore essential to defer the
filing or effectiveness of such registration statement; or (B) in
the good faith judgment of Cragar's Board of Directors a delay of
such filing or effectiveness of such registration statement is
necessary in light of pending financial transactions, corporate
registrations or other events involving Cragar, in which case
Cragar will have an additional period of not more than 60 days to
file such registration statement or delay its effectiveness after
filing, and use its best efforts to cause such registration
statement to become effective under the Securities Act not later
than six months after the Option Exercise Date. The registration
statement must remain effective for the lesser of 180 days or until
all Registrable Securities included in such registration statement
have been sold ("Requisite Period");
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(ii) promptly prepare and file with the 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 for the Requisite Period and comply
with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities;
(iii) promptly furnish to Leiweke and to each underwriter, if any,
such number of copies of the registration statement and the prospectus
included therein (including any preliminary prospectus) as Leiweke may
reasonably request in order to facilitate the intended disposition of
the Registrable Securities;
(iv) use its best efforts (A) to register or qualify the
Registrable Securities under the securities or "blue sky" laws of such
jurisdictions as Leiweke may reasonably request; (B) to prepare and file
in those jurisdictions such amendments (including post effective
amendments) and supplements, and take such other actions, as may be
necessary to maintain such registration and qualification in effect at
all times for the Requisite Period; and (C) to take such further action
as may be necessary or advisable to enable the disposition of the
Registrable Securities in such jurisdictions; provided that Cragar shall
not for any such purpose to be required to qualify generally to transact
business as a foreign corporation in any jurisdiction where it is not so
qualified or to consent to general service of process in any
jurisdiction;
(v) promptly notify Leiweke and, if applicable, each underwriter
participating in the offering 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 of which Cragar
has knowledge as a result of which the prospectus contained in such
registration statement, as then in effect, includes any untrue statement
of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing and promptly
amend or supplement such registration statement to correct any such
untrue statement or omission;
(vi) promptly notify Leiweke of the issuance by the Commission of
any stop order suspending the effectiveness of the registration
statement or the initiation of any proceedings for that purpose and use
its best efforts to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest
possible time;
(vii) permit a single firm of counsel and a single accounting firm
designated by Leiweke to review the registration statement and all
amendments and supplements thereto for a reasonable period of time prior
to their filing and not file any document in a form to which such
counsel reasonably objects; provided, however, that in no event will
Cragar be required to reimburse Leiweke for legal and accounting fees.
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(viii) if the offering is an underwritten offering, enter into a
written agreement with the managing underwriter in such form and
containing such provisions as are usual and customary in the securities
business for such an arrangement between such underwriter and companies
of Cragar's size and investment stature, including without limitation,
customary indemnification and contribution provisions;
(ix) if the offering is an underwritten offering, at the request
of Leiweke, use its best efforts to furnish to Leiweke on the date that
securities are delivered to the underwriter(s) for sale pursuant to such
registration: (A) a copy of an opinion dated such date of counsel
representing Cragar for the purposes of such registration, addressed to
the underwriter(s), reasonably satisfactory to Leiweke and such
underwriter(s) and (B) a copy of a letter dated such date from the
independent public accountants retained by Cragar, addressed to the
underwriter(s), reasonably satisfactory to Leiweke and such
underwriter(s);
(x) make available for inspection by Leiweke, any underwriter
participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by
Leiweke or underwriter, all financial and other records, pertinent
corporate documents and properties of Cragar, and cause Cragar's
officers, directors and employees to supply all information reasonably
requested by Leiweke, or such underwriter, attorney, accountant or agent
in connection with such registration statement;
(xi) provide a transfer agent and registrar, which may be a
single entity, for the Registrable Securities not later than the
effective date of the registration statement;
(xii) take all actions reasonably necessary to facilitate the
timely preparation and delivery of certificates (not bearing any legend
restricting the sale or transfer of such securities) representing the
Registrable Securities and to enable such certificates to be in such
denominations and registered in such names as Leiweke or any underwriter
may reasonably request; and
(xiii) take all other reasonable actions necessary to expedite and
facilitate the registration of the Registrable Securities.
(c) REGISTRATION EXPENSES. All expenses incurred by Cragar in
complying with this Section 1.7, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
Cragar's counsel and Cragar's independent public accountants, fees and
expenses (including Cragar's counsel fees) incurred in connection with
complying with state securities or "blue sky" laws, and fees of transfer
agents and registrars shall be borne by Cragar, provided that in an
underwritten offering, Leiweke must pay any commissions or discounts
associated with the number of Registrable Securities included in such
registration statement and must pay any expenses if a registration was begun
pursuant to Section 1.7(a), but is subsequently withdrawn by Leiweke.
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(d) OTHER AGREEMENTS. In connection with any registration pursuant to
this Section 1.7, Leiweke and Cragar hereby agree to execute such agreements
as are usual and customary in a transaction of this nature, including,
without limitation, agreements relating to holdback periods, indemnification
and contribution. Leiweke must furnish in writing to Cragar such information
regarding Leiweke, the Shares held by Leiweke and the distribution proposed
by Leiweke as Cragar may reasonably request.
SECTION 2 -- REPRESENTATIONS AND WARRANTIES OF LEIWEKE
2.1 MAKING OF REPRESENTATIONS AND WARRANTIES. Leiweke makes the
representations and warranties set forth in this Section 2 for the benefit of
Cragar.
2.2 CAPITAL STOCK. To Leiweke's best knowledge, as of the date of this
Agreement, the authorized capital stock of Wrenchead consists of 15,000,000
shares of Common Stock, par value $.01 per share, of which 5,365,800 shares
are outstanding, fully paid and non-assessable and 3,834,271 shares of
Preferred Stock, par value $.01 per share, of which 3,834,270 shares are
outstanding, fully paid and nonassessable. Leiweke owns beneficially and of
record all of the Shares, free and clear of any liens, security interests,
restrictions, encumbrances, pledges, claims or charges of any nature
whatsoever, other than the obligations represented by the Wrenchead.com, Inc.
Right of First Refusal and Co-Sale Agreement, the N.F. Shops.com, LLC
Operating Agreement dated August 7, 1998, and the Withdrawal Agreement
between Leiweke and NFShops.com LLC. Upon delivery to Cragar of the
certificates representing the Shares duly endorsed in blank or with stock
powers attached duly executed in blank, in proper form for transfer, good and
marketable title thereto will be transferred to Cragar. Leiweke is and will
be on the Option Exercise Date the record and beneficial owner and holder of
the Shares, free and clear of any liens or encumbrances other than a legend
indicating only that the Shares have not been registered under the Securities
Act of 1933 or any state securities act.
2.3 AUTHORITY TO TRANSFER SHARES.
(a) Leiweke has full right, authority, power and capacity to enter
into this Agreement and each agreement, document and instrument to be
executed and delivered by him pursuant to this Agreement and to carry out
the transactions contemplated hereby and thereby. This Agreement and each
agreement, document and instrument executed and delivered by Leiweke
pursuant to this Agreement constitutes, or when executed and delivered will
constitute, valid and binding obligations of Leiweke enforceable in
accordance with their respective terms. The execution, deliver and
performance by Leiweke of this Agreement and each such agreement, document
and instrument:
(i) does not require Leiweke to obtain any approval, consent
or waiver of, or make any filing with, any person that has not been
obtained, or made on or before the Option Exercise Date; and
(ii) does not and will not violate any provision of, result in
a breach of, constitute a default under, accelerate any obligation
under or give rise to a right of termination of any indenture or loan
or credit agreement or any other agreement, contract, instrument,
mortgage, lien, lease, permit, authorization, order, writ,
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judgment, injunction, decree, determination or arbitration award to
which Leiweke or Wrenchead is a party, or result in the creation or
imposition of any mortgage, pledge, lien, security interest or other
charge or encumbrance on any of the Shares.
(b) The execution, delivery and performance by Leiweke of this
Agreement and each agreement, document and instrument executed and
delivered by Leiweke pursuant to this Agreement:
(i) does not and will not violate any provision of
Wrenchead's Articles of Incorporation, as amended or restated to
date, or Wrenchead's by-laws, as amended to date; and
(ii) to the knowledge of Leiweke, does not and will not
violate any United States law or law of the jurisdiction of
incorporation of Wrenchead or of any other jurisdiction applicable to
Wrenchead or require Wrenchead to obtain any approval, consent or
waiver of, or make any filing with, any person that has not been
obtained or made.
2.4 INVESTMENT INTENT. If Cragar issues the Cragar Shares to
Leiweke, Leiweke acknowledges that he is acquiring the Cragar Shares for his
own account for investment and not with any present intention to effect a
distribution thereof, and any attempted assignment of Leiweke's rights under
this Agreement to any party or person without the express written permission
of Cragar will violate this Agreement and Cragar will have the right to
terminate this Agreement by written notice to Leiweke.
2.5 DISCLOSURE. Neither this Agreement nor any of the schedules or
exhibits to this Agreement contains or will contain on the Option Exercise
Date any untrue statement of a material fact or omit to state a material fact
necessary to make the statements contained herein or therein, in light of the
circumstances in which they were made, not misleading, and there is no fact
which has not been disclosed in writing to Cragar by Leiweke that would
materially and adversely affect or could reasonably be anticipated to
materially and adversely affect the grant of the option or the transfer of
the Shares as described in this Agreement, or the assets, business, financial
condition or results of operations, customer, employee or supplier relations,
or prospects of Wrenchead.
SECTION 3 - REPRESENTATIONS AND WARRANTIES OF CRAGAR.
3.1 MAKING OF REPRESENTATIONS AND WARRANTIES. Cragar hereby makes
the representations and warranties contained in this Section 3 for the
benefit of Leiweke.
3.2 AUTHORITY. Cragar has full right, authority, power and capacity
to enter into this Agreement and each agreement, document and instrument to
be executed and delivered by it pursuant to this Agreement and to carry out
the transactions contemplated hereby and thereby. This Agreement and each
agreement, document and instrument executed and delivered by Cragar pursuant
to this Agreement constitutes, or when executed and delivered will
constitute, valid and binding obligations of Cragar enforceable in accordance
with their respective terms. The execution, delivery and performance by
Cragar of this Agreement and each such agreement, document and instrument:
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(a) does not require Cragar to obtain any approval, consent or
waiver of, or make any filing with, any person that has not been obtained
or made; and
(b) does not and will not violate any provision of, result in
a breach of, constitute a default under, accelerate any obligation under or
give rise to a right of termination of any indenture or loan or credit
agreement or any other agreement, contract instrument, mortgage lien, lease,
permit, authorization, order, writ, judgment, injunction, decree,
determination or arbitration award to which Cragar is a party.
3.3 INVESTMENT INTENT. Cragar is acquiring the Shares for its own
account for investment and not with any present intention to effect a
distribution thereof and any attempted assignment of Cragar's rights under
this Agreement to any party or person without the express written permission
of Leiweke will violate this Agreement and Leiweke will have the right to
terminate this Agreement by written notice to Cragar.
3.4 DISCLOSURE. Neither this Agreement nor any of the schedules or
exhibits to this Agreement contains or will contain on the Option Exercise
Date any untrue statement of a material fact or omit to state a material fact
necessary to make the statements contained herein or therein, in light of the
circumstances in which they were made, not misleading, and there is no fact
which has not been disclosed in writing to Leiweke by Cragar that would
materially and adversely affect or could reasonably be anticipated to
materially and adversely affect the assets, business, financial condition or
results of operations, customer, employee or supplier relations, or prospects
of Cragar.
SECTION 4 - INDEMNIFICATION
4.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Except as otherwise
set forth herein, the representations and warranties of each of Leiweke and
Cragar will survive the execution and delivery of this Agreement and the
Closing, provided, however, the representations and warranties of Leiweke and
Cragar will terminate and expire one year after the Option Exercise Date.
4.2 OBLIGATION OF LEIWEKE TO INDEMNIFY. Cragar and its employees,
agents, affiliates, successors and assigns) will be indemnified, defended and
held harmless by Leiweke from and against all liability, losses, demands,
claims, actions or causes of action, suits, proceedings, investigations,
deficiencies, fines, penalties, costs, damages and expenses whatsoever,
including without limitation, all reasonable legal, accounting and other
professional fees, disbursements and expenses incurred by Cragar, including
the investigation, collection, prosecution and defense of claims and amounts
paid in settlements (collectively, the "Losses") based upon or arising out of
any breach or inaccuracy of any representation or warranty of Leiweke
contained in this Agreement.
4.3 OBLIGATION OF CRAGAR TO INDEMNIFY. Leiweke will be indemnified,
defended and held harmless by Cragar from and against Losses based upon or
arising out of any inaccuracy in or breach of any representation or warranty
of Cragar contained in this Agreement.
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4.4 NOTICE AND OPPORTUNITY TO DEFEND.
(a) Promptly after (i) receipt by any party hereto ("the
Indemnitee") of notice of any demand, claim or circumstances (written or
oral) which, with the lapse of time, would or might give rise to claim or the
commencement (or threatened commencement) of any action, proceeding or
investigation, or (ii) a party obtaining knowledge of any inaccuracy in or
breach of a representation or warranty contained in this Agreement that may
result in a Loss (an "Asserted Liability"), the Indemnitee shall give notice
thereof (the "Claims Notice") to the party obligated to provide
indemnification pursuant to Sections 4.2 or 4.3 (the "Indemnifying Party"),
provided, however, the failure to so notify the Indemnifying Party promptly
shall not relieve such party from any liability which such party may have
under this Section 4 unless such failure prejudices the Indemnifying Party in
fulfilling its obligations. The Claims Notice must describe the Asserted
Liability in reasonable detail, and must indicate the amount (estimated, if
necessary and to the extent feasible) of the Loss that has been or may be
suffered by the Indemnitee.
(b) To the extent that the Asserted Liability is a result of a
claim by a third party the Indemnifying Party may elect to compromise or
defend, at its own expense and by its own counsel, any such Asserted
Liability and to prosecute by way of counterclaim or third party complaint
any claim arising out of or relating to any Asserted Liability. If the
Indemnifying Party elects to compromise or defend such Asserted Liability, it
must within thirty (30) days (or sooner, if the nature of the Asserted
Liability so requires) notify the Indemnitee of its intent to do so, and the
Indemnitee will cooperate, at the expense of the Indemnifying Party, in the
compromise of, or defense against, such Asserted Liability. If the
Indemnifying Party elects not to compromise or defend the Asserted Liability
or fails to notify the Indemnitee of its election as herein provided, the
Indemnitee may pay, compromise or defend such Asserted Liability. If the
Indemnifying Party elects to defend an Asserted Liability but contests its
obligation to indemnify against such Asserted Liability, the Indemnifying
Party must carry on such defense in good faith. Notwithstanding the
foregoing, neither the Indemnifying Party nor the Indemnitee may settle or
compromise any claim over the objection of the other; provided, however, (i)
consent to settlement or compromise must not be unreasonably withheld, and
(ii) if the Indemnifying Party contests its obligation to indemnify against
an Asserted Liability, consent to settlement or compromise may be withheld in
the absolute discretion of the Indemnitee. In any event, the Indemnitee and
the Indemnifying Party may participate, at their own expense, in the defense
of such Asserted Liability. If the Indemnifying Party chooses to defend any
claim, the Indemnitee must make available to the Indemnifying Party and
books, records or other documents within its control that are necessary or
appropriate for such defense.
(c) To the extent that the Asserted Liability is a Loss other
than as a result of a claim by a third party, the Indemnifying Party will
promptly cooperate with the Indemnitee to establish the legitimacy of and the
amount of such Loss. Any such Loss will be paid within 15 days of the Claims
Notice.
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SECTION 5 - CONDITIONS TO CLOSING.
5.1 CONDITIONS TO EACH PARTY'S OBLIGATION. The respective obligations
of each party to effect the transfer of the Shares are subject to the
satisfaction or waiver on or prior to the Option Exercise Date of the
following conditions:
(a) No statute, rule, regulation or order shall have been
enacted, promulgated, entered or enforced by any court or governmental
authority that would prohibit consummation by such party of the
transactions contemplated hereby.
(b) No party shall have been prohibited by any order, ruling,
consent, decree, judgment or injunction of a court or regulatory agency
of competent jurisdiction from consummating the transactions
contemplated hereby.
5.2 CONDITIONS TO OBLIGATIONS OF CRAGAR. The obligation of Cragar to
close the transactions contemplated hereby are subject to the fulfillment,
and satisfaction or waiver on prior to the Option Exercise Date, of the
following conditions:
(a) Neither Wrenchead nor any stockholder of Wrenchead shall have
exercised any right under the Right of First Refusal and Co-Sale
Agreement to acquire any of the Shares or sell any Wrenchead shares to
Cragar.
(b) The representations and warranties of Leiweke set forth in
Section 2 are true and correct in all material respects as of the date
of this Agreement and as of the Option Exercise Date, except as
otherwise contemplated by this Agreement.
(c) Any consents or approvals required for the transfer of the
Shares to Cragar shall have been obtained.
(d) Cragar shall have delivered the notice of its intention to
exercise the option as contemplated by Section 1.2.
5.3 CONDITIONS TO OBLIGATIONS OF LEIWEKE.
The obligation of Leiweke to close the transactions contemplated hereby
are subject to the fulfillment, and satisfaction or waiver, on or prior to
the Option Exercise Date, of the following conditions:
(a) The representations and warranties of Cragar set forth in
Section 3 shall have been true and correct in all material respects as
of the date of this Agreement and as of the Option Exercise Date, except
as otherwise contemplated by this Agreement.
(b) Cragar shall have delivered the notice of its intent to
exercise the option as contemplated by Section 1.2.
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SECTION 6 - MISCELLANEOUS.
6.1 LAW GOVERNING. This Agreement and the documents contemplated
hereby shall be construed under and governed by the laws of the State of New
York, without regard to its principles of conflict of laws.
6.2 NOTICES. All notices, requests, demands and other communications
hereunder shall be deemed to have been duly given if delivered personally or
mailed by registered or certified mail, postage prepaid, return receipt
requested, as follows:
TO CRAGAR: Dr. Michael L. Hartzmark
4636 N. 43rd Avenue
Phoenix, AZ 85031
Fax: 623-846-0684
with copies to: Richard B. Stagg
Snell & Wilmer
One Arizona Center
Phoenix, AZ 85004-2202
Fax: 602-382-6070
TO LEIWEKE: R. Terrance Leiweke
37 Newton Lane
East Hampton, NY 11937
Fax: 516-324-4238
with copies to: Richard A. Friedman, Esq.
Sichenzia, Ross & Friedman
135 W. 50th Street
20th Floor
New York, NY 10020
Fax: 212-664-7329
or to such other address of which any party may notify the other parties as
provided above.
6.3 ENTIRE AGREEMENT; PRIOR AGREEMENTS SUPERSEDED. This Agreement
(including the attached exhibits and schedules) constitutes the entire
agreement between the parties hereto with respect to the subject matter
hereof, and supersedes all prior understandings and agreements, written and
oral, among the parties relating to the subject matter hereof. There are no
representations, warranties, covenants, promises or undertakings, other than
those expressly set forth or referred to herein.
6.4 ASSIGNABILITY. This Agreement may not be assigned by either party
without the prior written consent of the other party hereto except that this
provision will not apply to the resale of any shares acquired pursuant to the
terms of this Agreement. This Agreement shall be binding upon and enforceable
by, and shall inure to the benefit of, the parties hereto and their
respective heirs, personal representative, executors, administrators and
permitted assigns.
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6.5 CONFIDENTIALITY, PUBLICITY AND DISCLOSURES. The existence of this
Agreement (as well as any ancillary agreements related hereto) must remain
confidential between the parties and the parties agree to keep the existence
of and the terms of this Agreement confidential except as otherwise permitted
or set forth herein or as required by federal securities laws. Neither party
shall be permitted to make any press releases and other disclosures of the
transactions contemplated by this Agreement without the consent of the other
party except for such disclosures to lenders, creditors and others who may be
required to consent to the transactions contemplated by this agreement.
6.6 CAPTIONS AND GENDER. The captions and headings in this Agreement
are for convenience only and shall not affect the construction or
interpretation of any term or provision hereof. The use in this Agreement of
the masculine pronoun in reference to a party hereto shall be deemed to
include the feminine or neuter pronoun, as the context may require.
6.7 EXECUTION IN COUNTERPARTS; FACSIMILE SIGNATURES. For the
convenience of the parties and to facilitate execution, this Agreement may be
executed in two counterparts, each of which shall be deemed an original, but
all of which shall constitute one and the same document. Signatures on this
Agreement may be by facsimile, with original signature pages to be
substituted therefor.
6.8 AMENDMENTS; WAIVERS. This Agreement may not be amended or modified
except by a writing duly and validly executed by each party hereto.
Compliance with any condition or covenant set forth herein may not be waived
except by a writing duly and validly executed by the party or parties to be
bound. No delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver
on the part of any party of any such right, power or privilege, or any single
or partial exercise of any such right, power or privilege, preclude any
further exercise thereof or the exercise of any other such right, power or
privilege.
6.9 EXPENSES. Whether or not this Agreement is consummated, each party
hereto must bear his own expenses in connection with due diligence,
execution, delivery and performance of this Agreement, including without
limitation, all fees and expenses of its agents, representatives, counsel
and accountants.
6.10 SURVIVAL; MERGER. Those sections of this Agreement which, by the
nature of the obligations and responsibilities set forth therein, cannot or
are not intended to be performed prior to the Closing or which otherwise
contain obligations, responsibilities or covenants which will be performed
subsequent to the Closing, shall survive the Closing of the transaction
contemplated by this Agreement and shall not be merged thereon.
6.11 EXHIBITS. Any item disclosed on or in one Exhibit attached hereto
shall deemed disclosed in all Exhibits hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth above.
/s/ R. Terrance Leiweke
------------------------------------
R. Terrance Leiweke
CRAGAR INDUSTRIES, INC.
By: /s/ Michael L. Hartzmark
------------------------------------
Michael L. Hartzmark
Chairman and Chief Executive Officer
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