SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report December 2, 1997
(Date of earliest event reported) November 17, 1997
ALL-AMERICAN BOTTLING CORPORATION
BROWNE BOTTLING COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 33-69832 73-1317652
73-1311569
(State or other juris- (Commission (IRS Employer
diction incorporation) File Number) Identification Number)
Colcord Building
15 North Robinson, Suite 1201
Oklahoma City, Oklahoma 73102
(Address of principal executive offices)
(405) 232-1158
Registrant's telephone number, including area code
(Former name or former address, if changed since last report)
<PAGE>
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On November 17, 1997, All-American Bottling Corporation (the "Company")
purchased 100% of the outstanding common stock of Full Service Beverage
Company ("FSB"), a soft drink bottler with operations in Kansas and
Colorado. FSB is 50% owned by Stephen B. Browne, President of the
Company and its parent, Browne Bottling Company ("BBC"), and majority
stockholder of BBC, and 50% owned by parties unrelated to the Com-
pany. The Company paid the unrelated parties $1.5 million for their
FSB stock, and entered into non-compete agreements with two of the un-
related parties, one for $1.8 million payable over 10 years and one for
$230,000 payable over three years. Mr. Browne contributed his FSB stock
to the Company without consideration. The purchase price was based
on fair market value determined by historical industry standards.
Funds for the acquisition were provided by a loan to the Company by
an entity owned by the Company's stockholders.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements of Business Acquired
(b) Pro Forma Financial Information
It is impracticable for the Company to provide at this time the required
financial statements and pro forma financial information for the business
acquired. The Company expects to file such financial statements and pro
forma financial information as an amendment to this Form 8-K by January
30, 1998.
(c) Exhibits
The following exhibits are filed herewith:
Exhibit No. Description
----------- ------------
10.23 Purchase Agreement dated as of November 17, 1997 by and
among the Company and John L.D. Frazier, Nancy Frazier,
and the persons identified on Exhibit A attached to the
Purchase Agreement and Lloyd Frazier.
10.24 Agreement Not To Compete dated as of November 17, 1997
by and between John L.D. Frazier and the Company.
10.25 Agreement Not To Compete dated as of November 17, 1997
by and between Lloyd Frazier and the Company.
<PAGE>
SIGNATURES
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 thereunto duly authorized.
ALL-AMERICAN BOTTLING CORPORATION
STEPHEN R. KERR
Date: December 2, 1997 Stephen R. Kerr
Vice President and
Chief Financial Officer
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION METHOD OF FILING
- ---------- ----------- ----------------
<S> <C> <C>
10.23 Purchase Agreement dated Filed herewith electronically
as of November 17, 1997 by
and among the Company and
John L.D. Frazier, Nancy
Frazier, and the persons
identified on Exhibit A
attached to the Purchase
Agreement and Lloyd Frazier
10.24 Agreement Not to Compete Filed herewith electronically
dated as of November 17,
1997 by and between John
L.D. Frazier and the
Company
10.25 Agreement Not to Compete Filed herewith electronically
dated as of November 17,
1997 by and between Lloyd
Frazier and the Company
</TABLE>
PURCHASE AGREEMENT
November 17, 1997
John L. D. Frazier
Nancy Frazier
Lloyd Frazier
Selling Stockholders as shown on Exhibit A, attached hereto.
1. This Purchase Agreement ("Agreement") sets forth the terms pursuant to
which All American Bottling Corporation, or it designee, ("AABC"), as
purchaser, and John L. D. Frazier and Nancy Frazier, individually,
("Frazier"), and the persons shown on Exhibit A attached hereto
("Sellers") and Lloyd Frazier, individually, ("Lloyd") shall be legally
bound. The parties enter into this agreement subject to the approval of
the lender of AABC, the parent franchise companies, and Finova Capital
Corporation.
2. Subject to the terms and provisions of this agreement, Frazier and
Sellers will sell and deliver to AABC, and AABC hereby agrees to purchase
good title to, and all beneficial interest in, all of the capital stock
owned by each Seller in Full Service Beverage Company, a Kansas
Corporation, consisting of 188 shares, to include the stock owned in all
subsidiaries. It is understood and agreed that all shares of stock are
pledged to Finova Capital Corporation and the obligations to sell and
deliver the same are contingent upon Finova Capital Corporation releasing
the same.
3. The purchase price will be the sum of $1,525,000 to be paid to Sellers as
set forth on schedule A attached hereto.
4. In connection with this purchase, Sellers and Lloyd, severally and
jointly, hereby make the following representations, warranties, and
covenants with respect to the Stock to be sold hereunder:
a. That Sellers own all beneficial interest in the stock to be
sold hereunder free and clear of all security interests and
encumbrances (other than the lien held by Finova Capital
Corporation) and have full power and authority to sell and
transfer the stock. Upon and subject to payment of the
purchase price by AABC, Sellers will deliver to the Purchaser
good title to, and all beneficial ownership interest in, the
Securities, free and clear of all liens, security interest,
restrictions (except as provided herein) and encumbrances.
b. The sale and transfer of the Shares has been duly authorized
by all required persons, and or entities.
c. That Frazier and Lloyd represent and warrant that, to the
best of their knowledge: (i) none of the financial
statements or other written information they have furnished
AABC is inaccurate in any material respect, and (ii) Full
Service Beverage Company has no material contingent
liabilities which have not been disclosed to AABC, and (iii)
they have made known to Full Service Beverage Company, it's
officers and directors all disclosures of material facts in
their possession, and within their knowledge, pertaining to
the assets and liabilities of Full Service Beverage Company
and it's subsidiaries and they are not aware of any facts,
not previously disclosed, which would materially affect the
assets and liabilities, provided however, that neither makes
any representation or warranty with respect to income tax
liabilities of Full Service Beverage Company.
5. Closing will take place on October 10, 1997 subject, of course, to the
approvals set forth above. AABC has the right to extend the closing date
an additional 30 days in the event all approvals are not obtained in time
for a October 10, 1997 closing.
6. In addition to the purchase price AABC will cause Full Service Beverage
Company to enter into a non-compete agreement with Frazier in the amount
of $1,750,000 and with Lloyd in the amount of $231,200 to be paid out
over time with interest in accordance with the schedules attached to the
non-compete agreements.
7. Upon the closing of this transaction, the payment of the consideration
and the delivery of the documents Frazier and Lloyd will resign,
effective the closing date, all positions they hold with the company,
it's subsidiaries, and the Boards of Directors, to include all trade and
industry groups, Beverage Cooperative Association and as service agent.
Frazier and Lloyd will receive their normal compensation up to the date
of closing and will waive any accrued but unused vacation and any
compensation for severance or termination, other than set forth in this
agreement. From and after the date of closing, other than the covenants
not to compete, both Frazier and Lloyd release AABC and Full Service
Beverage Company, and it's subsidiaries from and of any and all other
obligations and claims relating to their employment with Full Service
Beverage Company and it's subsidiaries.
8. At closing, AABC will cause Full Service Beverage Company to transfer the
Range Rover automobile in the possession of Lloyd to Lloyd or his
designee.
9. At, or prior to closing, Nancy Frazier will sell to AABC her bonds issued
by AABC at a price of par, plus accrued interest.
10. This agreement shall be binding upon the heirs, executors,
administrators, successors, legal representatives and assigns of the
parties hereto. This agreement may be executed in several counterparts
and it shall not be necessary for each party to execute each of such
counterparts, but when all of the parties have executed and delivered one
of such counterparts, the counterparts, when taken together, shall be
deemed to constitute one and the same instrument, enforceable against
each party in accordance with its terms.
11. The representations, warranties, covenants, and agreements contained
herein shall survive the completion of the transactions contemplated by
this agreement.
12. If any provision of this agreement shall be held to be void or
unenforceable under the laws of any place governing its construction or
enforcement, this agreement shall not be void but shall be construed to
be in force with the same effect as though such provisions were omitted.
13. This agreement shall be construed under the laws of the State of
Oklahoma.
14. AABC acknowledges that it's President, Stephen Browne, has been the
managing general partner of Full Service Management Company, LC, which
has had the right to manage the business affairs of Full Service Beverage
Company since April 16, 1996 and is familiar with the assets,
liabilities, results of operations, recent financial history, recent
industry trends, prospects and other matter relating to Full Service
Beverage Company. AABC further acknowledges that it has had full access
to the offices, facilities, books and records of Full Service Beverage
Company and has had a full opportunity to discuss all such matters
relating to Full Service Beverage with officers and employees.
15. The parties acknowledge that the Internal Revenue Service may in the
future assert income tax deficiencies against Full Service Beverage
Company, the resolution of which may affect the personal income tax
liabilities of one or more of the Sellers. AABC agrees that if any such
assertion is made, it will give prompt written notice thereof to Sellers
and will permit Sellers to participate in the resolution of such claim.
In the event the Internal Revenue Service may in the future assert claims
against the Sellers which may affect the tax liability of Full Service
Beverage Company, they will give prompt written notice thereto to Full
Service Beverage Company and will permit it to participate in the
resolution of such claim.
16. Upon closing each Seller does release all claims of any type they may
have against AABC and Full Service Beverage Company, and it's
subsidiaries, and AABC and Full Service Beverage Company, and it's
subsidiaries, does release each Seller from all claims of any type,
provided however that such release shall not release any party from (i)
any liability or responsibility under this Agreement; (ii) any agreement
being executed and delivered pursuant to this agreement, or (iii) any
contract, civil claim or tort claim which has not been previously
specifically disclosed.
THIS AGREEMENT is entered into, effective the day and year first above
written.
ALL AMERICAN BOTTLING CORPORATION
BY: STEPHEN R. KERR
Stephen R. Kerr
JOHN FRAZIER NANCY FRAZIER
John Frazier Nancy Frazier
LLOYD FRAZIER
Lloyd Frazier
GEORGIA FRAZIER GEORGE FRAZIER METCALF
Georgia Frazier George Frazier Metcalf
Fleta Frazier Metcalf Trust John C. Metcalf Trust
By: FLETA FRAZIER By: JOHN C. METCALF
Fleta Frazier John C. Metcalf
ANTHONY CHUTE METCALF ELIZABETH M. METCALF
Anthony Chute Metcalf Elizabeth M. Metcalf
GEORGE F. METCALF JUDY A. S. METCALF
George F. Metcalf Judy A. S. Metcalf
AGREEMENT NOT TO COMPETE
THIS AGREEMENT NOT TO COMPETE (hereinafter "the Agreement"), made this
17th day of November, 1997, is by and between John L. D. Frazier ("Frazier"),
and All American Bottling Corporation, a Delaware Corporation, hereinafter
referred to as "AABC".
WHEREAS, pursuant to an Purchase Agreement ("the PA") Frazier has agreed
to resign from all positions with AABC and;
WHEREAS, the parties desire to enter into this agreement.
NOW, THEREFORE, in consideration of the respective covenants and
agreements herein contained, the parties hereto, do hereby covenant and agree
as follows:
1. Term of Agreement: This Agreement shall commence on the date
hereof and continue thereafter for a period of ten (10) years until the 17th
day of November, 2007.
2. Agreement Not to Compete. Frazier agrees that he will not, for
himself, or on behalf of any other person, partnership, corporation or any
other entity, either as a principal, owner, agent, stockholder, partner or in
any other corporate or individual capacity whatsoever, within the States of
Kansas and Colorado where AABC currently conducts it's business,("the
territory") (a) interfere with AABC's, or any successor in interest's, conduct
of the Business by soliciting in the franchise area any customer that was a
customer of AABC, or potential customer on the date hereof, to sell or produce
products of types offered by AABC, (b) interfere with AABC's, or any successor
in interest's conduct of the business by persuading any Customer to discontinue
it's business with AABC, or any successor in interest thereto, (c) interfere
with AABC's, or any successor in interest's conduct of the business by
persuading any customer to do business with any other person, firm,
corporation, partnership, association in competition, with the Business as
conducted by AABC, or any successor in interest thereto, employees to work for,
or on behalf of, any person, firm, corporation, partnership, association or
entity other than AABC or otherwise to violate this covenant. This covenant
shall not prohibit Frazier from engaging in consulting work for others in the
beverage industry so long as such firms are not engaged in, or planning to be
engaged in, DSD operations., within the territory. The term "business" as used
in this section is the manufacture, sale and distribution of various drinks
pursuant to franchise or license agreements and distributor agreements within
certain defined territories within the States of Colorado and Kansas. Nothing
in this agreement shall prohibit the ownership of a minority interest in a
publicly traded company engaged in the same business as AABC.
3. Consideration. In consideration of this Agreement AABC shall pay
Frazier the sum of $1,750,000 with interest at the rate of 6.25% per annum, in
120 monthly installments each in the amount of $19,649.02, the first of which
shall be made on the 1st day of the month following the closing of the terms
and conditions of the purchase agreement. In the event any payment is not made
within 30 days of it's due date, at the option of Frazier, the entire remaining
amount may be declared due and payable.
4. Waiver of Breach. The failure of either party to prosecute, or
the waiver by either party of, any breach of any provision of this Agreement
by either party shall not operate as, or be construed, as a waiver of any
subsequent breach of this Agreement whether or not of the same or of a similar
nature.
5. Successors and Assigns. This Agreement shall inure to the benefit
of, and be binding upon, AABC and Frazier, and their successors, personal
representatives, heirs and assigns.
6. Applicable Law. This Agreement shall be governed and construed in
accordance with, the laws of the State of Oklahoma or the States of Kansas
and/or Colorado as may be selected by AABC.
7. Asset Purchase Agreement. At all times this Agreement shall be
construed in connection with the APA between Frazier and All American Bottling
Corporation. The terms and provisions of the APA are hereby incorporated by
reference.
8., 9., Intentionally omitted.
10. Miscellaneous.
10.1 Expenses. Each party hereto shall bear its or his own
expenses incurred pursuant to this Agreement.
10.2 Entire Agreement. This Agreement, together with any
documents referred to herein which are incorporated herein by reference, shall
constitute the entire agreement between the parties hereto with respect to the
transactions contemplated hereby.
10.4 Number and Gender of Words. When the context so requires in
this Agreement, words of gender shall include either or both of the other
genders and the singular number shall include the plural.
10.5 Assignment. This Agreement shall be binding upon the parties
hereto, their successors and assigns and may not be assigned by either party
without the other parties express written consent, provided that this
prohibition against assignment shall not apply to any transfer as the result of
the death of any party. Any permitted assignment of this agreement shall at
all times be subject to the terms and conditions of the purchase agreement.
10.6 Amendments. This Agreement may be amended only by a written
agreement executed by all of the parties hereto.
10.7 Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be delivered in person,
by facsimile transmission, overnight ccourier or by registered or certified
mail, return receipt requested, postage and fees prepaid, first class mail:
John Frazier
1424 Davin Lane
Wichita, KS 67206
Stephen B. Browne, President
All American Bottling Corporation
15 N. Robinson
Oklahoma City, Oklahoma 73102
Any party hereto may change the address or telecopy number designated for
mailing by written notice to the other party. All such notices shall be deemed
to be given when delivered in person or by facsimile transmission (with
confirmation of receipt), or if placed in the mail as aforesaid, then two (2)
days thereafter.
10.8 Authority. Each party executing this Agreement warrants his
authority to execute this Agreement.
10.9 Counterparts. This Agreement may be executed in several
counterparts and it shall not be necessary for each party to execute each of
such counterparts, but when both of the parties have executed and delivered one
of such counterparts, the counterparts, when taken together, shall be deemed to
constitute one and the same instrument, enforceable against each party in
accordance with its terms.
10.10 Severability. If any provision of this agreement shall be
held to be void or unenforceable under the llawsof any place governing its
construction or enforcement, this agreement shall not be void, but shall be
construed to be in force with the same effect as though such provisions were
omitted. In addition no partial invalidity will affect the obligation of AABC
to make the payments to Frazier.
IN WITNESS WHEREOF, AABC and Frazier have executed this Agreement on the
date first stated herein.
"Frazier"
BY JOHN FRAZIER
John Frazier
"AABC" All American Bottling Corporation
BY STEPHEN B. BROWNE
Stephen B. Browne, President
Guaranty of Performance
For good and valid consideration, the receipt and sufficiency of which is
hereby acknowledged, and in order to induce John L.D. Frazier ("Frazier") to
enter into the above and foregoing Agreement not to Compete (the "Agreement")
and in consideration thereof, Stephen B. Browne ("Browne") hereby
unconditionally guarantees to Frazier the full and prompt performance by All
American Bottling Corporation ("AABC" of all the covenants, conditions, and
agreements of AABC contained in the Agreement, including, without limitation,
the prompt payment of the monthly payments provided for therein. The guaranty
obligations of Browne hereunder is an absolute and unconditional guaranty of
payment (and not of collection) and of performance. This guaranty shall be
enforceable against Browne without necessity of any suit or proceeding
whatsoever against AABC or any other person and without the necessity of any
noticeof acceptance of this Guaranty or any other notice, proof, of demand to
which Browne might otherwise be entitled, all of which Browne hereby expressly
waives. Provided however that Frazier is required to provide notice of non-
payment to Browne prior to the time that Frazier has the right to declare the
entire balance due and payable. Browne agrees that the validity and
enforceability of his obligations under this Guaranty shall in no way be
terminated, affected, diminished, or impaired by reason of (a) the assertion or
the failure to assert by Frazier against AABC of any of the rights or remedies
of Frazier under the Agreement, any non-liability of AABC under the Agreement
on account of insolvency or bankruptcy, or (b) the partial or total invalidity
of the Agreement. It is agreed that the failure of Frazier to insist in any
one or more instances upon the strict performance or observance of any of the
terms, provisions, or covenants of the Agreement or to exercise any right
therein contained shall not be construed or deemed to be a waiver or
relinquishment for the future of such term, provisions, or covenant, or right,
but the same shall continue and remain in full force and effect.
Notwithstanding anything herein to the contrary, should Frazier to be obligated
by any bankruptcy or other law to repay to AABC or to Browne, or to any
trustee, receiver, or other representative of either of them, any preferential
payments or other similar amounts previously paid, this Guaranty shall be
reinstated in the amounts of such repayments. No waiver or modification of any
provision of this Guaranty shall be effective unless in writing signed by
Frazier; nor shall any such waiver be applicable except in the specific
instance for which given. This Guaranty shall be binding upon Browne and his
executors, administrators, heirs and beneficiaries and shall inure to the
benefit of, and may be enforced by Frazier and his executors, administrators,
personal representatives, heirs, beneficiaries, and assigns. Browne
acknowledges that he has a substantial economic interest in All-American
Bottling Corporation so as to anticipate deriving a substantial economic
benefit from the execution and delivery by Frazier of the Agreement. This
Guaranty Agreement shall be governed by the laws of the State of Kansas.
Notices to Browne may be personally delivered or mailed, by registered or
certified mail, return receipt requested, to 15 North Robinson, Oklahoma City,
Oklahoma 73102 or to such other address as he may have previously furnished to
Frazier.
DATED: November 17, 1997 STEPHEN B. BROWNE
Stephen B. Browne
"Browne"
AGREEMENT NOT TO COMPETE
THIS AGREEMENT NOT TO COMPETE (hereinafter "the Agreement"), made this
17th day of November, 1997, is by and between Lloyd Frazier ("Lloyd "), and
All American Bottling Corporation, a Delaware Corporation, hereinafter referred
to as "AABC".
WHEREAS, pursuant to an Purchase Agreement ("thePA") Lloyd has agreed to
resign from all positions with AABC and;
WHEREAS, the parties desire to enter into this agreement.
NOW, THEREFORE, in consideration of the respective covenants and
agreements herein contained, the parties hereto, do hereby covenant and agree
as follows:
1. Term of Agreement: This Agreement shall commence on the date
hereof and continue thereafter for a period of three (3) years until the 17th
day of November, 2007
2. Agreement Not to Compete. Lloyd agrees that he will not, for
himself, or on behalf of any other person, partnership, corporation or any
other entity, either as a principal, owner, agent, stockholder, partner or in
any other corporate or individual capacity whatsoever, within the States of
Kansas and Colorado where AABC currently conducts it's business, ("the
territory") (a) interfere with AABC's, or any successor in interest's,
conduct of the Business by soliciting in the franchise area any customer that
was a customer of AABC, or potential customer on the date hereof, to sell or
produce products of types offered by AABC, (b) interfere with AABC's, or any
successor in interest's conduct of the business by persuading any Customer to
discontinue it's business with AABC, or any successor in interest thereto, (c)
interfere with AABC's, or any successor in interest's conduct of the business
by persuading any customer to do business with any other person, firm,
corporation, partnership, association in competition, with the Business as
conducted by AABC, or any successor in interest thereto, employees to work for,
or on behalf of, any person, firm, corporation, partnership, association or
entity other than AABC or otherwise to violate this covenant. This covenant
shall not prohibit Lloyd from engaging in consulting work for others in the
beverage industry so long as such firms are not engaged in, or planning to be
engaged in, DSD operations within the territory. In addition this covenant
shall not prohibit Lloyd from working for any franchise companies, within the
territory, so long as such work does not involve contact with the "trade" as
that term is commonly used in the industry, on behalf of any competitor of AABC
in the territory. The term "business" as used in this section is the
manufacture, sale and distribution of various non alcoholic drinks pursuant to
franchise or license agreements and distributor agreements within certain
defined territories within the States of Colorado and Kansas. Nothing in this
agreement shall prohibit the ownership of a minority interest in a publicly
traded company engaged in the same business as AABC.
3. Consideration. In consideration of this Agreement AABC shall pay
Lloyd the sum of $231,200 with interest at the rate of 6.25% per annum, in
33 monthly installments as set forth on the schedule attached hereto. In the
event any payment is not made within 30 days of it's due date, at the option of
Lloyd, the entire remaining amount may be declared due and payable. The first
monthly payment shall be made on the closing of the purchase agreement. In
exchange for writing off the receivable due from Lloyd to FSB, Lloyd agrees
that the last payment due under this covenant will not be made.
4. Waiver of Breach. The failure of either party to prosecute, or
the waiver by either party of, any breach of any provision of this Agreement
by either party shall not operate as, or be construed, as a waiver of any
subsequent breach of this Agreement whether or not of the same or of a similar
nature.
5. Successors and Assigns. This Agreement shall inure to the benefit
of, and be binding upon, AABC and Lloyd, and their successors, personal
representatives, heirs and assigns.
6. Applicable Law. This Agreement shall be governed and construed in
accordance with, the laws of the State of Oklahoma or the States of Kansas
and/or Colorado as may be selected by AABC.
7. Asset Purchase Agreement. At all times this Agreement shall be
construed in connection with the APA between Lloyd and All American Bottling
Corporation. The terms and provisions of the APA are hereby incorporated by
reference.
8., 9., Intentionally omitted.
10. Miscellaneous.
10.1 Expenses. Each party hereto shall bear its or his own
expenses incurred pursuant to this Agreement.
10.2 Entire Agreement. This Agreement, together with any
documents referred to herein which are incorporated herein by reference, shall
constitute the entire agreement between the parties hereto with respect to the
transactions contemplated hereby.
10.4 Number and Gender of Words. When the context so requires in
this Agreement, words of gender shall include either or both of the other
genders and the singular number shall include the plural.
10.5 Assignment. This Agreement shall be binding upon the parties
hereto, their successors and assigns, and may not be assigned by either party
without the other parties express written consent, provided that this
prohibition against assignment shall not apply to any transfer as the result of
the death of any party. Any permitted assignment of this agreement shall at
all times be subject to the terms and conditions of the purchase agreement.
10.6 Amendments. This Agreement may be amended only by a written
agreement executed by all of the parties hereto.
10.7 Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be delivered in person,
by facsimile transmission, overnight cheerier, or by registered or certified
mail, return receipt requested, postage and fees prepaid, first class mail:
Lloyd Frazier
Cherry Creek Tower # 1106
3100 Cherry Creek South
Denver, CO 80209
Stephen B. Browne, President
All American Bottling Corporation
15 N. Robinson
Oklahoma City, Oklahoma 73102
Any party hereto may change the address or telecopy number designated for
mailing by written notice to the other party. All such notices shall be deemed
to be given when delivered in person or by facsimile transmission (with
confirmation of receipt), or if placed in the mail as aforesaid, then two (2)
days thereafter.
10.8 Authority. Each party executing this Agreement warrants his
authority to execute this Agreement.
10.9 Counterparts. This Agreement may be executed in several
counterparts and it shall not be necessary for each party to execute each of
such counterparts, but when both of the parties have executed and delivered one
of such counterparts, the counterparts, when taken together, shall be deemed to
constitute one and the same instrument, enforceable against each party in
accordance with its terms.
10.10 Severability. If any provision of this agreement shall be
held to be void or unenforceable under the laws of any place governing its
construction or enforcement, this agreement shall not be void, but shall be
construed to be in force with the same effect as though such provisions were
omitted. In addition no partial invalidity will affect the obligation of AABC
to make the payments to Lloyd.
IN WITNESS WHEREOF, AABC and Lloyd have executed this Agreement on the
date first stated herein.
"Lloyd "
BY LLOYD FRAZIER
Lloyd Frazier
"AABC" All American Bottling Corporation
BY STEPHEN B. BROWNE
Stephen B. Browne, President
Guaranty of Performance
For good and valid consideration, the receipt and sufficiency of which is
hereby acknowledged, and in order to induce Lloyd Frazier ("Lloyd") to enter
into the above and foregoing Agreement not to Compete (the "Agreement") and in
consideration thereof, Stephen B. Browne ("Browne") hereby unconditionally
guarantees to Lloyd the full and prompt performance by All American Bottling
Corporation ("AABC" of all the covenants, conditions, and agreements of AABC
contained in the Agreement, including, without limitation, the prompt payment
of the monthly payments provided for therein. The guaranty obligations of
Browne hereunder is an absolute and unconditional guaranty of payment (and not
of collection) and of performance. This guaranty shall be enforceable against
Browne without necessity of any suit or proceeding whatsoever against AABC or
any other person and without the necessity of any noticeof acceptance of this
Guaranty or any other notice, proof, of demand to which Browne might otherwise
be entitled, all of which Browne hereby expressly waives. Provided however
that Lloyd is required to provide notice of non-payment to Browne prior to the
time that Lloyd has the right to declare the entire balance due and payable.
Browne agrees that the validity and enforceability of his obligations under
this Guaranty shall in no way be terminated, affected, diminished, or impaired
by reason of (a) the assertion or the failure to assert by Lloyd against AABC
of any of the rights or remedies of Lloyd under the Agreement, any non-
liability of AABC under the Agreement on account of insolvency or bankruptcy,
or (b) the partial or total invalidity of the Agreement. It is agreed that the
failure of Lloyd to insist in any one or more instances upon the strict
performance or observance of any of the terms, provisions, or covenants of the
Agreement or to exercise any right therein contained shall not be construed or
deemed to be a waiver or relinquishment for the future of such term,
provisions, or covenant, or right, but the same shall continue and remain in
full force and effect. Notwithstanding anything herein to the contrary,
should Lloyd to be obligated by any bankruptcy or other law to repay to AABC or
to Browne, or to any trustee, receiver, or other representative of either of
them, any preferential payments or other similar amounts previously paid, this
Guaranty shall be reinstated in the amounts of such repayments. No waiver or
modification of any provision of this Guaranty shall be effective unless in
writing signed by Lloyd; nor shall any such waiver be applicable except in the
specific instance for which given. This Guaranty shall be binding upon Browne
and his executors, administrators, heirs and beneficiaries and shall inure to
the benefit of, and may be enforced by Lloyd and his executors, administrators,
personal representatives, heirs, beneficiaries, and assigns. Browne
acknowledges that he has a substantial economic interest in All-American
Bottling Corporation so as to anticipate deriving a substantial economic
benefit from the execution and delivery by Lloyd of the Agreement. This
Guaranty Agreement shall be governed by the laws of the State of Kansas.
Notices to Browne may be personally delivered or mailed, by registered or
certified mail, return receipt requested, to 15 North Robinson, Oklahoma City,
Oklahoma 73102 or to such other address as he may have previously furnished to
Lloyd.
DATED: November 17, 1997 STEPHEN B. BROWNE
Stephen B. Browne
"Browne"
