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Exhibit 10.1
PURCHASE/SALE AGREEMENT
AND
XXXX OF SALE
THIS AGREEMENT made as of the 28th day of June, 1996, by and
between National Golf Suppliers, Inc., a Delaware corporation ("Seller"), and
ProGroup, Inc. d/b/a The Xxxxxx Xxxxxx Golf Company, a Tennessee corporation
("Purchaser").
By this instrument Seller intends to transfer, convey and
deliver to Purchaser as of the date hereof all of the assets of Seller used in
the operation of its business (the "Business").
NOW, THEREFORE, for and in consideration of the issuance of
100,000 shares of the common stock, par value $.50 per share, of Purchaser (the
"Purchaser Shares") and for other good and valuable consideration, the receipt
and legal sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Seller hereby sells, transfers, assigns and conveys
to Purchaser, its successors and assigns forever, all of Seller's right, title
and interest, legal or equitable, in and to the assets listed in the Asset List
on Exhibit A attached hereto (the "Assets"). The Assets shall include without
limitation the following assets, properties and rights of Seller:
(i) all machinery, equipment, inventories,
supplies, personal property, furniture, fixtures and furnishings;
(ii) all trademarks, tradenames, including the
tradename "National Golf Suppliers" and any derivation thereof,
computer systems, software, operating manuals, trade secrets,
know-how, inventories, licenses, business permits and certificates (to
the extent transferable) and customer lists;
(iii) all inventories of the Business in the hands
of Seller or suppliers which the Seller is committed to purchase as of
the date hereof;
(iv) all cash held in the Bank as of the date of
this Agreement and all accounts receivable, excluding accounts
receivable from affiliates and accounts receivable more than 60 days
beyond their invoice dates, relating to, or arising from the operation
of the Business;
(v) all operating data and records of Seller used
in the Business, including information, files, records, data, employee
files, plans, contracts and recorded information, customer and
supplier lists, customer pricing information,
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credit records, correspondence, office supplies, budgets and similar
documents and records; and
(vi) all good will and customer relationships
applicable to the Business.
To Have and To Hold, all of the foregoing Assets, unto
Purchaser, its successors and assigns forever.
2. Seller does hereby warrant, covenant and agree that:
(i) Seller has the right, power and capacity to
sell, transfer, convey and assign the Assets; the execution and
delivery by Seller of this Xxxx of Sale and the consummation by Seller
of the transactions contemplated hereby have been duly approved, and
no other action on the part of Seller is necessary to approve and
authorize the execution and delivery of this Xxxx of Sale or to
consummate the transactions contemplated hereby.
(ii) At the closing, Seller will have good and
marketable title to the Assets free and clear of all liens,
encumbrances, interests, rights, claims or equities in favor of any
other person; will warrant and defend the sale of the Assets against
all and every person whomsoever claiming or to claim against any or
all of the Assets; will take all steps necessary to put Purchaser, its
successors and assigns, in actual possession and operating control of
the Assets; and will, from time to time, execute and deliver to
Purchaser such additional documents, certificates and conveyances as
Purchaser may reasonably require to accomplish or perfect the transfer
of the Assets.
(iii) The accounts receivable of the Seller listed
as part of the Assets on Exhibit A are valid and genuine; have arisen
solely out of bona fide sales and deliveries of goods, performance of
services and other business transactions in the ordinary course of
business consistent with past practice; are not subject to valid
defenses, discounts, set-offs or counterclaims, are no more than 60
days beyond their invoice dates.
3. Seller acknowledges and agrees that the parties
hereto intend to transfer to Purchaser the Business as a going concern. Seller
agrees that, at any time, and from time to time after the date hereof, it will,
upon the request of Purchaser, execute and deliver all such further documents
and take all such further actions as may be required for better conveyance,
transfer and assignment of the assets, properties and rights intended to be
conveyed, transferred and assigned.
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4. Seller understands and acknowledges that the
Purchaser Shares have not been, and will not be, registered under the
Securities Act of 1933, as amended (the "Securities Act"), or under any state
securities laws, and are being offered and sold in reliance upon federal and
state exemptions for transactions not involving any public offering. As a
result, the Purchaser Shares will be, when issued, "restricted securities" as
that term is defined in Rule 144 under the Securities Act, and must be held for
a minimum of two years from the date of issuance prior to any resale of the
Purchaser Shares in reliance on Rule 144 under the Securities Act. Seller is
(i) acquiring the Purchaser Shares solely for its own account for investment
purposes and not with a view to the distribution thereof, (ii) is a
sophisticated investor with knowledge and experience in business and financial
matters, (iii) has received certain information concerning the Purchaser and
has had the opportunity to obtain additional information as desired in order to
evaluate the merits and risks inherent in holding the Purchaser Shares and (iv)
is able to bear the economic risk and lack of liquidity inherent in holding the
Purchaser Shares. Seller understands that it has no right to demand that the
Purchaser register the Purchaser Shares under the Securities Act or under any
state securities laws, but Seller shall have an unlimited number of piggyback
registration rights with respect to registration statements filed by the
Purchaser on Forms S-2 or S-3 with respect to the Purchaser Shares until the
earlier to occur of (i) Seller owning in the aggregate less than 10,000
Purchaser Shares or (ii) Seller being able to sell the Purchaser Shares free of
the volume limitations of Rule 144. If Purchaser intends to file a registration
statement on Forms S-2 or S-3 while the piggyback registration rights granted
herein are in force, it shall so notify Seller and within 10 days of receipt of
such notice Seller shall advise Purchaser the number of Purchaser Shares, if
any, it wishes to include in the registration statement. Such shares shall
thereafter be included in such registration statement unless the underwriter
(if any) advises Purchaser that market conditions will not permit the inclusion
of all such shares in the registration statement in which case each person
(including Purchaser) intending to include shares for registration in such
registration statement shall have the number of shares to be registered
proportionately reduced. All the costs and expenses of the filing of a
registration statement as described herein shall be borne by Purchaser. If
Seller includes Purchaser Shares in a registration statement filed pursuant
hereto, Seller shall, if an underwritten public offering, sign the
underwriter's customary form of underwriting agreement and provide the
underwriter all information reasonably requested regarding Seller for inclusion
in the registration statement.
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5. (i) At any time until the second anniversary of this
Agreement, the Seller may make one request for registration under the
Securities Act of all or part of their Registrable Securities on the
applicable registration form of the Purchaser's choosing. A request
for a Demand Registration shall specify the approximate number of
Registrable Securities requested to be registered and the anticipated
per share price range for such offering. A registration requested
pursuant to this paragraph 5(i) is referred to herein as a "Demand
Registration."
(ii) The Seller will be entitled to request one
Demand Registration at any time until the second anniversary of this
Agreement in which it will pay all expenses up to $20,000. A
registration will not count as a permitted Demand Registration
hereunder until it has become effective and no Demand Registration
will count as a permitted Demand Registration unless the Seller is
able to register and sell at least 90% of the Registrable Securities
requested to be included in such registration; provided that in any
event the Seller will pay all Registration Expenses (as hereinafter
defined) up to a total amount of $20,000 in connection with any
registration initiated whether or not it has become effective.
(iii) The Purchaser will not include in any Demand
Registration any securities which are not Registrable Securities
without the prior written consent of the Seller. If a Demand
Registration is an underwritten offering and the managing underwriters
advise the Purchaser in writing that in their opinion the number of
Registrable Securities and, if permitted hereunder, other securities
requested to be included in such offering exceeds the number of
Registrable Securities and other securities, if any, which can be sold
therein without adversely affecting the marketability of the offering,
the Purchaser will include in such registration prior to the inclusion
of any securities which are not Registrable Securities the number of
Registrable Securities requested to be included which in the opinion
of such underwriters can be sold without adversely affecting the
marketability of the offering.
(iv) The Purchaser may postpone for up to six
months the filing or the effectiveness of a registration statement for
a Demand Registration if the Purchaser reasonably determines that such
Demand Registration would adversely affect any proposal or plan by the
Purchaser to engage in any acquisition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender
offer or similar transaction; provided that in such event, the Seller
will be entitled to withdraw its request, and, if such request is
withdrawn, such Demand Registration will not count as a
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permitted Demand Registration hereunder. The Seller still will pay all
Registration Expenses in connection with such registration.
(v) All expenses incident to the Purchaser's
performance of or compliance with its obligations concerning a Demand
Registration, including without limitation, all registration and
filing fees, fees and expenses of compliance with securities or blue
sky laws, printing expenses, messenger and delivery expenses, and fees
and disbursements of counsel for the Purchaser and all independent
certified public accountants, underwriters (excluding discounts and
commissions) and other professionals retained by the Purchaser (all
such expenses being herein called "Registration Expenses"), will be
borne by the Seller up to a total amount of $20,000, except that the
Purchaser will, in any event, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any
annual audit or quarterly review, the expense of any liability
insurance and the expenses and fees for listing the securities to be
registered on each securities exchange or which similar securities
issued by the Purchaser are then listed or on the NASD automated
quotation system.
IN WITNESS WHEREOF, Seller and Purchaser have caused this
Agreement to be executed effective as of the date first above written.
NATIONAL GOLF SUPPLIERS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Treasurer
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PROGROUP, INC., d/b/a
THE XXXXXX XXXXXX GOLF COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
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Title: President and COO
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