STOCK PURCHASE AGREEMENT relating to AUTOMOTIVE INFORMATION SYSTEMS, INC. by and between MOBILE PRODUCTIVITY, INC. and CSK AUTO, INC. Dated as of _________ __, 2005 1 STOCK PURCHASE AGREEMENT TABLE OF CONTENTS

Exhibit 10.1

STOCK PURCHASE AGREEMENT

relating to

AUTOMOTIVE INFORMATION SYSTEMS, INC.

by and between

MOBILE PRODUCTIVITY, INC.

and

CSK AUTO, INC.

Dated as of _________ __, 2005

1

STOCK PURCHASE AGREEMENT
TABLE OF CONTENTS

Page

2

Exhibits and Schedules

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STOCK PURCHASE AGREEMENT

This STOCK PURCHASE AGREEMENT (this “Agreement”) is entered into as of the      day of      , 2005, by and between Mobile Productivity, Inc., a Delaware corporation (“Buyer”), and CSK Auto, Inc., an Arizona corporation (“Seller”). Buyer and Seller are referred to herein as a “Party” and together as the “Parties”. Capitalized terms are defined in Article 1.

RECITALS

A. Buyer desires to purchase from Seller, on the following terms and conditions, the Shares, which comprise all of the issued and outstanding capital stock of Automotive Information Systems, Inc., d/b/a Identifix, a Minnesota corporation (the “Company”); and

B. Seller desires to sell the Shares to Buyer on the following terms and conditions.

NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants, representations, warranties, conditions, and agreements hereinafter contained and contained in the Related Agreements, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties agree as follows:

ARTICLE 1

DEFINITIONS

1.1 Definitions. The following words shall have the respective meanings given to them in this Article 1.

1.1.2 “Action” has the meaning set forth in Section 3.11.

1.1.10 “Buyer Indemnified Persons” has the meaning set forth in Section 8.2.

1.1.17 “Company” has the meaning set forth in the Recitals.

1.1.21 “EPA” means the United States Environmental Protection Agency.

1.1.46 “Leased Real Property” has the meaning set forth in Section 3.12(b).

1.1.50 “Losses” has the meaning set forth in Section 8.2.

1.1.57 “Owned Real Property” has the meaning set forth in Section 3.12(a).

1.1.59 “PBGC” means the Pension Benefit Guaranty Corporation.

1.1.64 “Pre-Closing Periods” has the meaning set forth in Section 5.3(b).

1.1.65 “Purchase Price” has the meaning set forth in Section 2.2.

1.1.70 “Seller” has the meaning set forth in the first paragraph hereof.

1.1.76 “Straddle Period” has the meaning set forth in Section 5.3(c).

1.1.84 “VEBA” means voluntary employees’ beneficiary association.

1.2.2 Accounting Terms. All accounting terms used herein which are not expressly defined in this Agreement shall have the respective meanings given to them in accordance with GAAP.

ARTICLE 2

PURCHASE AND SALE OF SHARES

2.1 Transfer of Shares. Upon the terms and subject to the conditions of this Agreement, at the Closing on the Closing Date and as of the Effective Time, Seller shall sell, assign, transfer and convey to Buyer, and Buyer shall purchase, acquire and accept from Seller, all of Seller’s right, title and interest to and in the Shares free and clear of all Liens.

2.2 Consideration. The consideration that Buyer shall pay Seller for the Shares, the obligations of Seller under Article 5, and other rights of Buyer hereunder (the “Purchase Price”), shall be Twelve Million Eighteen Thousand Seven Hundred Sixteen Dollars ($12,018,716.00), representing the Book Value of the Company, paid by delivery to Seller of the Senior Secured 5% Convertible Promissory Note.

2.3 Closing. The execution of this Agreement by the Parties and the Closing shall take place at 9:00 a.m. (Phoenix, Arizona, time) on the Closing Date, effective as of the Effective Time, at the offices of Bryan Cave LLP, Two North Central Avenue, Suite 2200, Phoenix, Arizona 85004. At Closing, Seller shall deliver or cause to be delivered to Buyer the documents identified in Article 6 and Buyer shall deliver or cause to be delivered to Seller the documents identified in Article 7.

ARTICLE 3

REPRESENTATIONS AND WARRANTIES OF SELLER

Seller represents and warrants to Buyer that as of the date of this Agreement and the Closing the statements contained in this Article 3, when read together with and qualified by the Disclosure Letter delivered by Seller to Buyer in connection with this Agreement, are true and correct except for events, transactions or occurrences expressly contemplated or required by this Agreement.

The Disclosure Letter is divided into sections and subsections corresponding to the sections and subsections of Article 3 of this Agreement. Whether or not specifically required by the terms of this Article 3 or otherwise, Seller may modify Seller’s representations and warranties contained in this Agreement by disclosing relevant facts in the Disclosure Letter; provided, however, that for any such disclosure to be effective, it must indicate the specific sections or subsections of Article 3 to which it relates. The disclosure of any information in the Disclosure Letter shall not be deemed to constitute an acknowledgment that such information is required to be disclosed in connection with the representations and warranties made by Seller in Article 3 or that it is material, nor shall such information be deemed to establish a standard of materiality. Unless otherwise specifically defined therein or the context otherwise requires, capitalized terms set forth in the Disclosure Letter shall have the meanings ascribed to such terms in this Agreement.

3.1 Corporate Existence and Power.

3.2 Valid and Enforceable Agreement; Authorization; Non-contravention.

3.3 Capitalization and Ownership.

3.6 Undisclosed Liabilities.

3.7 Taxes.

3.11 Litigation.

3.12 Owned and Leased Real Property.

3.13 Personal Property; Title to Assets.

3.18 Environmental Matters.

3.19 Contracts and Commitments.

3.23 Employees, Officers, Directors and Consultants.

3.24 Bank Accounts of the Company. Set forth in Section 3.24 of the Disclosure Letter is a list of the locations and numbers of all bank accounts, investment accounts and safe deposit boxes maintained by the Company, together with the names of all persons who are authorized signatories or have access thereto or control thereunder. The Company is not a party to any lock-box or other similar arrangement, and all funds received by the Company in the Ordinary Course are entitled to be, and are, deposited in its operating account(s) identified in Section 3.24 of the Disclosure Letter.

3.25 Labor Matters.

(f) With respect to each such Plan:

3.29 Books and Records and Financial Controls.

ARTICLE 4

REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer represents and warrants to Seller that as of the date of this Agreement and the Closing the statements contained in this Article 4 are true and correct except for events, transactions or occurrences contemplated or required by this Agreement.

4.1 Corporate Existence and Power.

4.2 Valid and Enforceable Agreement; Authorization. This Agreement constitutes a legal, valid and binding obligation of Buyer, enforceable against it in accordance with its terms, except that such enforcement may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally and (ii) general principles of equity. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized, approved and ratified by all necessary action on the part of Buyer.

4.3 Brokers, Finders. No finder, broker, agent, or other intermediary, acting on behalf of Buyer, is entitled to a commission, fee, or other compensation or Liability in connection with the negotiation or consummation of this Agreement or any of the transactions contemplated hereby.

4.4 Solvency. As of the date hereof and the Closing, and the Effective Time (both before and after giving effect to the transactions contemplated by this Agreement), Buyer: (a) is and shall be solvent; (b) can and shall be able to meet its Liabilities as they become due (including the obligations contained in this Agreement and those Related Agreements to which it is a party); and (c) has or will have sufficient funds or binding credit arrangements available to it to meet and pay its Liabilities under this Agreement and those Related Agreements to which it is a party.

4.5 Investment Representation. Buyer is an “accredited investor” (as that term is defined in Regulation D promulgated under the United States Securities Act of 1933, as amended), and is acquiring the Shares for its own account, for investment and without any view to resale or distribution of the Shares or any portion thereof. Buyer acknowledges that the Shares are not registered under the United States Securities Act of 1933, as amended, any applicable state securities Laws or any applicable foreign securities Laws and that the Shares may not be transferred or sold except pursuant to the registration provisions of the United States Securities Act of 1933, as amended, and/or state securities Laws and foreign securities Laws as applicable or pursuant to an applicable exemption therefrom.

4.6 Independent Investigation. Buyer acknowledges that it has made its own independent investigation, analysis and evaluation of the Company and the Business and that it has had the opportunity to visit with representatives of Seller and the Company and discuss the Company and the Business. Buyer acknowledges that it has had the opportunity to and has undertaken such due diligence, including an investigation of the Business, as Buyer deems to be adequate and appropriate. Buyer further acknowledges that it has been provided with all materials and information requested by Buyer to Buyer’s satisfaction and, except as specifically set forth in Article 3 herein, Buyer is not relying on any representations or warranties made by Seller, Company, or its respective Affiliates, representatives, agents or employees.

4.7 Litigation and Arbitration / HSR Act.

ARTICLE 5

ADDITIONAL COVENANTS OF THE PARTIES

5.1 Confidentiality. In addition to the terms, provisions and covenants of the Confidentiality Agreement dated April 9, 2004 , between Buyer and Seller, which shall remain in full force and effect until Closing, Buyer acknowledges that, in the course of its investigations of the Company, Buyer and its representatives have and will become aware of confidential information and documents of the Company, and that its use of such confidential information and documents, or communication of such information to third parties, could be detrimental to the Company. Buyer covenants that prior to Closing all information and documents concerning the Company reviewed by Buyer or its representatives in connection with this Agreement or the transactions contemplated hereby shall be maintained in confidence and shall not be disclosed or used by Buyer or its representatives without Seller’ prior written consent, unless Buyer can demonstrate that such information is (a) otherwise publicly available, (b) in Buyer’s possession through disclosure by a third party not in violation of any confidentiality or other agreement or applicable Law, (c) required to be disclosed pursuant to judicial order, regulation or law, or (d) required to be disclosed by the rules of a securities exchange on which Buyer may from time to time be listed. In the event that Buyer or any of its representatives becomes legally compelled to disclose any such information or documents as referred to in this Section, Buyer shall, to the extent reasonably practicable, provide Seller with prompt written notice before such disclosure, in order that Seller may either seek a protective order, at Seller’s expense, or seek another appropriate remedy preventing or prohibiting such disclosure or to waive compliance with the provisions of this Section 5.1 or both. With respect to information and documents related to the Company, at Seller’s request, in the event that the Closing shall not occur, or as soon as practicable following termination of this Agreement, (a) Buyer shall, and shall cause its representatives to, promptly destroy all information and documents concerning the Company (including any copies thereof or extracts therefrom); (b) an officer of Buyer shall certify to Seller such destruction; and (c) Buyer shall and shall cause its representatives to keep confidential and not use any such information or documents unless required to disclose such information or documents pursuant to judicial order, regulation or law.

5.2 Covenant Not To Compete and Not to Solicit.

5.3 Taxes.

5.4 Books and Records. From and after the Closing, Buyer shall provide Seller and its representatives with reasonable access, for any reasonable purpose, including but not limited to (a) preparing Tax returns, or (b) defending any claim in respect of which a notice of claim has been served on Seller, during normal business hours, to all books and records of the Business, including, but not limited to, accounting and Tax records, sales and purchase documents, notes, memoranda, and any other electronic or written data (“Records”) pertaining or relating to the period prior to the Effective Time. To the extent deemed necessary by Seller with respect to its other business operations, Seller and its Affiliates may retain copies of such Records prior to providing the originals to Buyer, or, as soon as practicable after Closing, Buyer shall provide to Seller and its Affiliates, at Seller’s expense, copies of all or any portion of such Records as may reasonably be requested by Seller and its Affiliates. Unless otherwise consented to in writing by Seller, Buyer shall not, for a period of 10 years following the date hereof or such longer period as retention thereof is required by applicable Law, destroy, alter or otherwise dispose of (or allow the destruction, alteration or disposal of) any of the Records without first offering to surrender to Seller such Records.

5.5 Public Announcements. Except with the prior written consent of the other Parties, or as otherwise expressly permitted by this Agreement, or as may otherwise be reasonably determined by any Party as being required under Law or by stock exchange regulation, no Party nor any of its representatives will disclose to any Person any information about the terms of this Agreement or the transactions contemplated hereunder. In connection with the foregoing, the Parties agree to work together in good faith to reach a mutual agreement as to the content and form of any public announcement, press release or similar publicity. Notwithstanding anything set forth herein to the contrary or in any other agreement to which a Party hereto is bound, the Parties hereto (and any employee, representative or other agent of any of the Parties) are hereby expressly authorized to disclose the “tax treatment” or “tax structure” (as those terms are defined in Treasury Regulation Section 1.6011-4(c)(8) and (9), respectively) of the transactions contemplated by this Agreement and all materials of any kind (including opinions or other tax analyses) that are provided to the Parties relating to such “tax treatment” or “tax structure” of the contemplated transactions.

5.6 Filings. Prior to the Closing, the Parties shall proceed expeditiously and in good faith to make such filings and take such other actions as may be reasonably necessary to satisfy the conditions to Closing set forth in Sections 6.2 and 7.2.

5.7 Registration Rights Agreement and Stockholders Agreement. Seller shall execute the Form of First Amended and Restated Registration Rights Agreement and the First Amended and Restated Stockholders Agreement prior, and as a condition precedent, to the issuance of common stock of Buyer upon conversion of the Senior Secured 5% Convertible Promissory Note or otherwise.

5.8 Further Assurances; Cooperation. From and after the Closing, the Parties shall do such acts and execute such documents and instruments as may be reasonably required to make effective the transactions contemplated hereby. On or after the Closing Date, the Parties shall, on request, cooperate with one another by furnishing any additional information, executing and delivering any additional documents and instruments, including contract assignments, and doing any and all such other things as may be reasonably required by the Parties or its counsel to consummate or otherwise implement the transactions contemplated by this Agreement.

ARTICLE 6

CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER

The obligation of Buyer to proceed with the Closing shall be subject to the satisfaction, on or prior to the Closing Date, of each of the following conditions precedent, any of which may be waived in whole or in part by Buyer:

6.1 Accuracy of Representations and Warranties and Performance of Obligations. All representations and warranties made by Seller in or pursuant to this Agreement shall be true and correct in all material respects, except (a) for those representations and warranties that are qualified as to materiality which shall be true and correct in all respects, on and as of the Closing Date with the same effect as if such representations and warranties had been made on and as of the Closing Date, (b) to the extent that any such representation or warranty by its terms relates to an earlier date, or (c) where and to the extent that Buyer, as of the Effective Time, had Knowledge of any then-existing pending claim, breach or violation which would render any of the representations and warranties contained herein to be false or materially misleading, (provided, however, that (i) for purposes of determining the Knowledge of Buyer as of the Effective Time, the Knowledge of Jeff Sweet or any other employee of the Company shall be disregarded, and (ii) to the extent that Buyer or its representatives shall have investigated any such pending claim, breach or violation with Seller or its representatives, and Seller nevertheless makes a representation or warranty to the contrary, then the Knowledge of Buyer shall be disregarded), and Seller shall have performed or complied in all material respects with all covenants, agreements and conditions contained in this Agreement on its part required to be performed or complied with at or prior to the Closing. Seller shall deliver to Buyer at the Closing a certificate of an officer of Seller certifying that the conditions stated in this Section 6.1 have been fulfilled.

6.2 Consents and Approvals. All necessary filings with Government authorities or any other third parties shall have been made and any necessary authorizations, consents or approvals required from such authorities or third parties shall have been obtained and shall be in full force and effect.

6.3 No Litigation or Contrary Judgment. On the Closing Date there shall exist no valid Order, statute, rule, regulation, executive order, stay, decree, judgment or injunction which prohibits or prevents the consummation of the transactions contemplated by this Agreement that has not been vacated, dismissed or withdrawn by the Effective Time.

6.4 No Material Adverse Effect. There shall not have occurred, and/or be continuing at Closing, any event that has had or reasonably would be expected to have a Material Adverse Effect.

6.5 Deliveries of Seller at Closing. At Closing, Seller shall deliver or cause to be made available to Buyer the following original completed documents, dated as of the Closing Date (unless otherwise noted below), executed by Seller and/or Seller’s Affiliates or Seller’s Counsel who are parties thereto, as applicable:

(c) Seller’s Counsel Legal Opinion;

ARTICLE 7

CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER

The obligation of Seller to proceed with the Closing shall be subject to the satisfaction, on or prior to the Closing Date, of each of the following conditions precedent, any of which may be waived in whole or in part by Seller:

7.1 Accuracy of Representations and Warranties and Performance of Obligations. All representations and warranties made by Buyer in this Agreement shall be true and correct in all material respects, except for those representations and warranties that are qualified as to materiality which shall be true and correct in all respects, on and as of the Closing Date with the same effect as if such representations and warranties had been made on and as of the Closing Date, except to the extent that any such representation or warranty by its terms relates to an earlier date, and Buyer shall have performed or complied in all material respects with all covenants, agreements and conditions contained in this Agreement on its part required to be performed or complied with at or prior to the Closing. Buyer shall deliver to Seller at the Closing a certificate of an officer of Buyer certifying that the conditions stated in this Section 7.1 have been fulfilled.

7.2 Consents and Approvals. All required filings with Government authorities or any other third parties shall have been made and any necessary authorizations, consents or approvals required from such authorities or third parties shall have been obtained and shall be in full force and effect.

7.3 No Litigation or Contrary Judgment. On the Closing Date there shall exist no valid Order, statute, rule regulation, executive order, stay decree, judgment or injunction which prohibits or prevents the consummation of the transactions contemplated by this Agreement that has not been vacated, dismissed or withdrawn by the Effective Time.

7.4 Deliveries of Buyer at Closing. At Closing Buyer shall deliver or cause to be delivered to Seller the following original completed documents, dated as of the Closing Date (unless otherwise noted below), executed by all parties thereto other than Seller, the Company, Seller’s Affiliates or Seller’s Counsel:

(b) the other Related Agreements;

(c) Buyer’s Counsel Legal Opinion;

such other customary documents, instruments or certificates as shall be reasonably requested by Seller and as shall be consistent with the terms of this Agreement.

ARTICLE 8

INDEMNIFICATION

8.1 Survival of Representations and Warranties. All of the representations and warranties made by any Party in this Agreement, the Disclosure Letter or any certificates or documents delivered hereunder shall survive the Closing Date and consummation of the transaction contemplated hereby and will continue for a period of eighteen (18) months following the Closing Date at which time they shall expire unless and to the extent a notice of claim is made prior to such expiration with respect to any breach of such representation or warranty occurring prior to such expiration and set out in such notice of claim; provided, however, that the representations and warranties contained in (a) Section 3.1 (Corporate Existence and Power), Section 3.2 (Valid and Enforceable Agreement; Authorization; Non-Contravention), Section 3.3 (Capitalization and Ownership), Section 4.1 (Corporate Existence and Power), and Section 4.2 (Valid and Enforceable Agreement) shall survive the Closing Date without any time limit, (b) Section 3.7 (Taxes), Section 3.26 (Employee Benefit Matters), and Section 3.28 (Product Liability Claims) shall survive the Closing Date until the expiration of the applicable statutes of limitation, and (c) Section 3.18 (Environmental Matters) shall survive the Closing Date for a period of three (3) years following the Closing Date. No Indemnified Party shall be entitled to indemnification for breach of any representation and warranty unless a notice of claim of such breach has been given to the Indemnifying Party within the period of survival of such representation and warranty as set forth herein.

8.2 Indemnification by Seller. Subject to the terms and conditions of this Article 8, including the limitations set forth in Section 8.6 below from and after Closing, Seller shall indemnify and hold harmless Buyer and its Affiliates (including, from and after the Closing, the Company and its Affiliates) and the shareholders, directors, officers, partners, employees, successors, assigns, representatives and agents of each of them in their capacities as such (collectively, the “Buyer Indemnified Persons”), from and against, and Seller waives any claim for contribution or indemnity against the Company and its Affiliates with respect to, any and all claims, losses, monetary damages, Liabilities, fines, fees, penalties, expenses or costs (“Losses”), plus reasonable attorneys’ fees and expenses, including court costs and expert witness fees and costs, incurred in connection with Losses and/or enforcement of this Agreement (in all, “Indemnified Losses”) incurred or to be incurred by any of them resulting from or arising out of:

8.3 Indemnification by Buyer. Subject to the terms and conditions of this Article 8, Buyer shall indemnify and hold harmless each of Seller and its Affiliates and the shareholders, directors, officers, partners, employees, successors, assigns, representatives and agents of each of them in their capacities as such (the “Seller Indemnified Persons”) from and against any and all Indemnified Losses incurred or to be incurred by any of them, resulting from or arising out of:

8.4 Notice of Claim. In the event that Buyer seeks indemnification on behalf of a Buyer Indemnified Person, or Seller seeks indemnification on behalf of a Seller Indemnified Person, such Party seeking indemnification (the “Indemnified Party”) shall give reasonably prompt written notice to the indemnifying Party (the “Indemnifying Party”) specifying in reasonable detail the facts constituting the basis for such claim and the amount, to the extent known, of the claim asserted; provided, however, that the right of a Person to be indemnified hereunder shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually materially damaged thereby. Subject to the terms hereof, the Indemnifying Party shall pay the amount of any valid claim not more than 30 days after the Indemnified Party provides notice to the Indemnifying Party of such amount.

8.5 Right to Contest Claims of Third Persons. If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an indemnified Person hereunder) (“Third Person”), the Indemnified Party shall give the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party; provided, however, that the right of a Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually materially prejudiced thereby. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, contest, or settle the claim alleged by such Third Person (a “Third-Person Claim”), provided that the Indemnifying Party has unconditionally acknowledged to the Indemnified Party in writing its obligation to indemnify the persons to be indemnified hereunder with respect to such Third Person Claim and to discharge (and does in fact so discharge) any cost or expense arising out of such investigation, contest or settlement and such Indemnifying Party has presented evidence reasonably satisfactory to the Indemnified Party of its ability to discharge the obligations, including without limitation by establishment of an escrow account. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. Unless and until the Indemnifying Party so acknowledges its obligation to indemnify, the Indemnified Party shall have the right, at its option, to assume and control defense of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense. The failure of the Indemnifying Party to respond in writing to the aforesaid notice of the Indemnified Party with respect to such Third Person Claim within 20 days after receipt thereof shall be deemed an irrevocable election not to defend the same. If the Indemnifying Party does not so acknowledge its obligation to indemnify and assume the defense of any such Third Person Claim, (a) the Indemnified Party may defend against such claim using counsel of its choice, in such manner as it may reasonably deem appropriate, including, but not limited to, settling such claim, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may reasonably deem appropriate, and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such Third Person Claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by clear and convincing evidence that conduct of the Indemnified Party in the defense and/or settlement of such Third Person Claim constituted gross negligence or willful misconduct. The Parties shall make available to each other all relevant information in its possession relating to any such Third Person Claim and shall cooperate in the defense thereof.

8.6 Limitations on Indemnity.

8.7 Characterization of Indemnity Payments. Any indemnification payments, offsets or credits made pursuant to this Agreement shall be considered, to the extent permissible under Law, as adjustments to the Purchase Price for all Tax purposes.

8.8 Exclusive Remedy. In the absence of fraud, the indemnification provisions set forth in this Article 8 shall provide the exclusive remedy for breaches of any covenant, agreement, representation or warranty set forth in this Agreement. Notwithstanding the foregoing, each Party shall be entitled to such equitable remedies to which such Party may otherwise be entitled, including, without limitation, the ability to apply to any court of competent jurisdiction for specific performance or injunctive or other equitable relief.

8.9 Other Limitations. Notwithstanding anything to the contrary contained herein, no Party shall be liable to or otherwise responsible to any other Party hereto or any Affiliate of any other Party for consequential, incidental, punitive or special damages or for diminution in value or lost profits that arise out of or relate to this Agreement or any Related Agreement or the performance or breach hereof or any Liability retained or assumed hereunder or thereunder.

ARTICLE 9

MISCELLANEOUS PROVISIONS

9.1 Notice. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given (a) when delivered in person, (b) by facsimile, receipt confirmed, (c) on the next Business Day when sent by overnight courier, or (d) on the second succeeding Business Day when sent by registered or certified mail (postage prepaid, return receipt requested), to the respective Parties at the following addresses (or at such other address for a Party as shall be specified by like notice):

If to Buyer:

President and CEO

With a copy (which shall not constitute notice) to:

If to Seller:

With a copy to:

Bryan Cave LLP
Two North Central Avenue
Suite 2200
Phoenix, AZ 85004
Telephone: 602 ###-###-####
Telecopier: 602 ###-###-####
Attn: Frank M. Placenti, Esq.

9.2 Termination. This Agreement may be terminated at any time prior to the Effective Time only by mutual written consent of Seller and Buyer. In the event of any termination of this Agreement as provided in this Section 9.2, this Agreement shall forthwith become wholly void and of no further force and effect and there shall be no Liability on the part of Buyer or Seller, except that the provisions of Section 5.1 shall survive any such termination of this Agreement.

9.3 Entire Agreement. This Agreement and the Schedules and Exhibits hereto embody the entire agreement and understanding of the Parties hereto with respect to the subject matter hereof, and supersede all prior and contemporaneous agreements and understandings relative to such subject matter, including but not limited to the Summary of Potential Terms of Acquisition.

9.4 Amendment and Modification. To the extent permitted by applicable Law, this Agreement shall be amended, modified or supplemented only by a written agreement between Buyer and Seller.

9.5 Assignment; Binding Agreement. This Agreement and various rights and obligations arising hereunder shall inure to the benefit of and be binding upon the Parties hereto and their respective successors, and permitted assigns. Neither this Agreement nor any of the rights, interests, or obligations hereunder shall be transferred, delegated, or assigned (by operation of law or otherwise), by the Parties hereto without the prior written consent of the other Parties, except that Seller shall have the right to assign its rights to receive payments, but not its obligations, hereunder.

9.6 Waiver of Compliance; Consents. Any failure of either Seller, on the one hand, or Buyer, on the other hand, to comply with any obligation, covenant, agreement or condition herein may be waived by Buyer, on the one hand, or Seller, on the other hand, only by a written instrument signed by the Party granting such waiver, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. Whenever this Agreement requires or permits consent by or on behalf of any Party hereto, such consent shall be given in writing in a manner consistent with the requirements for a waiver of compliance as set forth in this Section 9.6.

9.7 Expenses. All costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the Party incurring such costs or expenses.

9.8 Equitable Relief. The Parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with its specific terms or were otherwise breached. Accordingly, the Parties further agree that each Party shall be entitled to an injunction or restraining order to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other right or remedy to which such Party may be entitled under this Agreement, at Law or in equity.

9.9 Counterparts, Facsimiles. This Agreement may be executed in multiple counterparts, and on separate counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Facsimiles containing original signatures shall be deemed for all purposes to be originally signed copies of the documents which are the subject of such facsimiles.

9.10 Severability. Subject to the provisions set forth in Section 5.2 regarding judicial modification of the covenant not to compete, if any other provision of this Agreement shall be determined to be contrary to Law and unenforceable by any court of Law, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby are not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

9.11 Governing Law. This Agreement shall in all respects be construed in accordance with and governed by the substantive laws of the State of Arizona, without reference to its choice of law rules.

9.12 No Third Party Beneficiaries or Other Rights. Nothing herein shall grant to or create in any Person not a Party hereto, or any such Person’s dependents or heirs, any right to any benefits hereunder, and no such Party shall be entitled to sue any Party to this Agreement with respect thereto. The representations and warranties contained in this Agreement are made for purposes of this Agreement only and shall not be construed to confer any additional rights on the Parties under applicable state and federal securities laws.

9.13 Submission to Jurisdiction. Each of the Parties hereto irrevocably submits to the exclusive jurisdiction of (a) the circuit courts located in Maricopa County, Arizona, and (b) the United States District Court for the District of Arizona for the purposes of any suit, action or other proceeding arising out of this Agreement or any transaction contemplated hereby. Each of the Parties agrees to commence any action, suit or proceeding relating hereto in the United States District Court for the District of Arizona or if such suit, action or other proceeding may not be brought in such court for jurisdictional reasons, in the circuit courts located in Maricopa County, Arizona. Each of the Parties further agrees that service of any process, summons, notice or document by United States registered mail to such Party’s respective address set forth above shall be effective service of process for any action, suit or proceeding in Arizona with respect to any matters to which it has submitted to jurisdiction in this Section 9.13. Each of the Parties irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby in (i) the circuit courts located in Maricopa County, Arizona, or (ii) the United States District Court for the District of Arizona, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum or to raise any similar defense or objection.

9.14 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (a) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (b) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (c) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (d) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS IN THIS SECTION 9.14.

9.15 Further Assurances. Each party hereto shall execute and/or cause to be delivered to each other party hereto such instruments and other documents, and shall take such other actions, as such other party may reasonably request (prior to, at or after the Effective Date) for the purpose of carrying out or evidencing any of the transactions contemplated herein.

IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be executed as of the date first above written.

MOBILE PRODUCTIVITY, INC.

CSK AUTO, INC.

By:
Name:
Title:

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