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EXHIBIT 10.12
AGREEMENT FOR PURCHASE AND SALE OF STOCK
AGREEMENT FOR PURCHASE AND SALE OF STOCK, dated as of April 14, 1998
(this Agreement"), by and among Collegiate Pacific Inc., a Pennsylvania
corporation ("CPI"), and Xxxxxxx Xxxxxxxxx and Xxxxx Xxxxxxxxx, the sole
stockholders (collectively "Stockholder") of Product Merchandising Inc., a
Delaware corporation (the "Company").
BACKGROUND
Stockholder is the record and beneficial owner of all of the issued and
outstanding capital stock of the Company, consisting of 100 shares (the
"Stock") of common stock, no par value per share (the "Company Common Stock").
CPI desires to purchase and Stockholder desires to sell all, but not
less than all, of the Stock, upon the terms and subject to the conditions set
forth in this Agreement.
THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, and agreements set forth in this
Agreement and other good and valuable consideration, the receipt and
sufficiency of which all parties mutually acknowledge, the parties, intending
to be legally bound, agree as follows:
ARTICLE I
THE PURCHASE AND SALE OF STOCK
SECTION 1.01. Purchase and Sale of Stock. At the Closing (as defined
below), Stockholder will sell, transfer, assign, and deliver to CPI, and CPI
will purchase, accept, assume, and receive the Stock, free and clear of any
liens, encumbrances, pledges, restrictive agreements, or adverse claims of any
nature whatsoever.
SECTION 1.02. Purchase Price. The aggregate purchase price for the
Stock will be $475,000 (the "Purchase Price"), which will be payable as
follows:
(a) $100,000 in immediately available funds delivered at Closing (the
"Initial Payment");
(b) $100,000 in immediately available funds to be delivered on or
before the ninetieth day following Closing (the "Subsequent
Payment"); and
(c) 137,500 shares (the "CPI Shares") of CPI common stock, $.01 par
value per share ("CPI Common Stock"), to be delivered within 10
days after Closing.
ARTICLE II
THE CLOSING
SECTION 2.01. Closing; Closing Date. The closing of the transactions
contemplated by this Agreement (the "Closing") will take place at the offices
of CPI, 00000 Xxxxxx, Xxxxx 000, Xxxxxxx Xxxxxx, Xxxxx 00000 on April 14, 1998
or as soon as practicable after the satisfaction or waiver of the conditions
set forth in Article VII, or at such other date not later than April 30, 1998,
time, and place as CPI and Stockholder agree. The date on which the Closing
takes place is referred to as the "Closing Date."
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SECTION 2.02. Deliveries by CPI. CPI will deliver or cause to be
delivered the following at Closing, and it will be a condition to the
Stockholder's obligations under this Agreement that all of the following be
delivered at Closing:
(a) A wire transfer for the Initial Payment in immediately available
funds to an account established for the benefit of Stockholder as
directed in writing by Stockholder.
(b) Executed Guaranty of Xxxxxxx X. Xxxxxxxxxx for the benefit of
Stockholder guaranteeing CPI's obligations for the Subsequent
Payment and CPI's obligations under Section 3.02 and Section
3.03(c) hereof, substantially in the form of Exhibit A.
(c) Such other documents and instruments as may be necessary or
appropriate to carry out the transactions contemplated by this
Agreement.
SECTION 2.03. Deliveries by Stockholder. Stockholder will deliver or
cause to be delivered the following at Closing, and it will be a condition to
CPI's obligations under this Agreement that all of the following be delivered
at Closing:
(a) Certificates, with fully executed stock powers and signature
guarantees, evidencing the Stock and any other documentation
necessary or appropriate to effect the transfer of ownership
thereof to CPI.
(b) Resignations from all of the Company's directors.
(c) Such other endorsements, instruments, or documents as may be
necessary to carry out the transactions contemplated hereby.
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ARTICLE III
PROVISIONS RELATING TO THE CPI SHARES
SECTION 3.01. Legend on CPI Shares. Each certificate representing the
CPI Shares to be issued pursuant to the terms of this Agreement will bear
substantially the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE APPLICABLE
SECURITIES LAWS OF ANY STATE, AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE
REQUIREMENTS OF SUCH LAWS.
SECTION 3.02. Registration of CPI Shares. Within six months after the
Closing Date, CPI covenants and agrees that it will use commercially reasonable
efforts to cause the preparation and filing of a registration statement on Form
S-3 (the "Resale Registration Statement") with the Securities and Exchange
Commission (the "SEC") for the purpose of registering the CPI Shares.
Stockholder shall cooperate with CPI in good faith in the registration process
including by assisting in the preparation of any information or financial
statements with respect to the Company required to be included in the Resale
Registration Statement. All costs of preparing and filing the registration
statement with the SEC will be borne by CPI. If the Resale Registration
Statement is not declared effective by the SEC within 210 days after the
Closing Date, Stockholder shall have the right to sell to CPI, and CPI shall
purchase from Stockholder upon three trading days prior written notice from
Stockholder of its election to sell to CPI, up to 20,000 shares of CPI Common
Stock at $2.00 per share (together with interest thereon at 9.5% per annum from
and including the day which is 211 days after the Closing Date) each month
thereafter until the Resale Registration Statement is declared effective.
SECTION 3.03. Restrictions on Transfer of CPI Shares.
(a) Except for Stockholder's right to sell CPI shares to CPI as
described in Section 3.02, Stockholder hereby covenants and
agrees that, during any time in which the Resale Registration
Statement has not been declared effective by the SEC, (i)
Stockholder will not sell or offer to sell or otherwise transfer
any of the CPI Shares received hereunder in the absence of an
effective registration statement for such CPI Shares under the
Securities Act of 1933, as amended (the "Securities Act"), or an
opinion of counsel reasonably acceptable to CPI to the effect
that such registration is not required; and (ii) CPI will not be
obligated to recognize any purported transfer in violation of
this Section 3.03(a), and, unless it elects to do otherwise, CPI
may treat any such purported transfer as null, void, and of no
effect.
(b) Stockholder hereby covenants and agrees that, for any period
during which the Resale Registration Statement is effective,
Stockholder will not, unless otherwise consented to by CPI, sell
or otherwise transfer more than 3,000 shares of CPI Common Stock
per trading day.
(c) Notwithstanding anything in the foregoing to the contrary, CPI
hereby covenants and agrees that, for a period beginning on the
date that the Resale Registration Statement is declared effective
by the SEC (the "Effective Date") and continuing until the forty-
sixth trading day after the Effective Date, CPI agrees that CPI
will deliver to Stockholder within three trading days of the end
of such forty-six day period in immediately available funds an
amount equal to (A) the amount by which the net sales proceeds
per share of CPI Common Stock (after deducting any customary
commissions) sold during such period is less than $2.00 times (B)
the number of shares of CPI Common Stock sold by Stockholder
during such period (which, in any event, shall not be more than
3,000 shares of CPI Common Stock sold on each trading day during
such period).
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to CPI as follows:
SECTION 4.01 Validity of Stock. The Stock is duly authorized, validly
issued, fully paid and nonassessable and was not issued in violation of any
preemptive subscription or other right of any Person to acquire securities of
the Company.
SECTION 4.02 Title to Stock. Stockholder has good and marketable title
to the Stock, and the Stock is, and when transferred to CPI under this
Agreement will be, free and clear of all claims, security interests, liens,
pledges, charges, escrows, options, proxies, rights of first refusal, security
agreements or any other limitation, encumbrance or restriction of any kind.
SECTION 4.03. Charter and Bylaws. Stockholder has furnished to CPI
true, complete, and correct copies of the certificate of incorporation and
bylaws of the Company, as amended or restated to the date of this Agreement.
The Company is not in violation of any of the provisions of its certificate of
incorporation or bylaws and such certificates and bylaws remain in full force
and effect.
SECTION 4.04. Capitalization.
(a) The authorized capital stock of the Company consists of 1,000
shares of Company Common Stock, of which 100 shares are issued
and outstanding. No shares of capital stock of the Company are
reserved for any purpose. Each of the outstanding shares of
capital stock of the Company is duly authorized, validly issued,
and fully paid and nonassessable, and has not been issued in
violation of (nor are any of the authorized shares of capital
stock of the Company subject to) any preemptive or similar rights
under the certificate of incorporation or bylaws of the Company,
federal or state securities laws, or any agreement to which the
Company is a party or by which it is bound.
(b) The Company does not (i) directly or indirectly own, (ii) have
any agreement to purchase or otherwise acquire, or (iii) hold any
interest convertible into or exchangeable or exercisable for, any
equity interest in any Person.
(c) There are no options, warrants, or other rights, agreements,
arrangements, or commitments of any character to which the
Company is a party or by which it is bound relating to the issued
or unissued capital stock or other securities of the Company or
obligating the Company to grant, issue, or sell any shares of its
capital stock or other securities. There are no agreements,
arrangements, or commitments of any character (contingent or
otherwise) pursuant to which any Person is or may be entitled to
receive any payment based on the revenues or earnings, or
calculated in accordance therewith, of the Company. There are no
voting trusts, proxies, or other agreements or understandings to
which the Company or Stockholder is a party or by which the
Company or Stockholder is bound with respect to the voting of any
shares of capital stock of the Company. Stockholder is the
record owner of all of the outstanding shares of Company Common
Stock, and no other Person has any options, warrants, claims, or
other rights, agreements or commitments, either from the Company
or Stockholder, to acquire any shares of Company Common Stock.
(d) No dividends, distributions or stock repurchases have been made
or are payable by the Company since December 31, 1997.
SECTION 4.05. Authority. Stockholder has full legal authority and
capacity to execute and deliver this Agreement, to perform his obligations
hereunder, and to consummate the transactions contemplated hereby. This
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Agreement has been duly executed and delivered by Stockholder and constitutes
the legal, valid, and binding obligations of Stockholder, enforceable in
accordance with its terms.
SECTION 4.06. Affiliates. The Company has no Subsidiaries. "Subsidiary"
means any corporation or other business entity, a majority of whose outstanding
equity securities is at the time owned, directly or indirectly, by the Company
and/or one or more subsidiaries of the Company.
SECTION 4.07. No Conflict. The execution and delivery of this Agreement
by Stockholder does not, and the consummation of the transactions contemplated
hereby will not, (i) conflict with or violate the certificate of incorporation
or bylaws, as amended or restated to the date of this Agreement, of the
Company; or (ii) result in any breach of or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or
give to any other Person any rights of termination, amendment, acceleration, or
cancellation of, or require payment under, or result in the creation of a lien
or encumbrance on any of the properties or assets of the Company pursuant to,
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise, or other instrument or obligation to which the Company is a
party or by or to which the Company or any of its properties are bound or
subject.
SECTION 4.08. Financial Statements. Stockholder has delivered to CPI
true, correct, and complete copies of unaudited financial statements of the
Company as of and for the year ended December 31, 1996 and 1997 and as of and
for the two months ended February 28, 1997 and 1998, including balance sheets
and statements of income, cash flows, and changes in stockholders' equity
(collectively, the "Financial Statements"). The Financial Statements present
fairly, in all material respects, the financial position of the Company at the
dates shown and the results of operations and cash flows for the periods
covered in accordance with generally accepted accounting principles applied on
a consistent basis. Except for liabilities reflected in the Financial
Statements, the Company has no material liabilities of any sort, whether
absolute or contingent, due or to become due, known or unknown, asserted or
unasserted.
SECTION 4.09. Absence of Certain Changes or Events. Since December 31,
1997, the Company has conducted its business only in the ordinary course and in
a manner consistent with past practice, and there has not been any change,
effect, or condition that, individually or when taken together with all other
such changes, effects, or conditions, would be materially adverse to the
business, operations, assets, financial condition, results of operations, or
prospects of the Company.
SECTION 4.10. Absence of Litigation. There is no claim, action, suit,
litigation, proceeding, or arbitration of any kind, at law or in equity,
including actions or proceedings seeking injunctive relief (collectively,
"Litigation"), pending and, to the knowledge of Stockholder, there is no
Litigation or investigation threatened, against the Company or any properties
or rights of the Company.
SECTION 4.11. Compliance. To the knowledge of Stockholder, the Company
is not in conflict with or in default or violation of any Law applicable to the
Company or by or to which any of its properties are bound or to which they may
be subject. The Company has not received any written notice with respect to
possible conflicts, defaults, or violations of Laws from any governmental
entity.
SECTION 4.12. Taxes. All returns and reports (the "Tax Returns") of or
with respect to any Tax that are required to be filed by or with respect to the
Company or its business or activities have been duly and timely filed. All
items of income, gain, loss, deduction, and credit or other items required to
be included in each such Tax Return have been included, and all information
provided in each such Tax Return is true, correct, and complete. All Taxes
that have been shown to be due on the Tax Returns have been timely paid in
full. All withholding Tax requirements imposed on or with respect to the
Company have been satisfied in full in all respects. No penalty, interest, or
other charge is due with respect to the late filing of any such Tax Return or
late payment of any such Tax. There are no pending undisclosed audits,
actions, proceedings, investigations, disputes, or claims with respect to or
against the Company for or with respect to any Taxes. The Company is a
Subchapter S corporation for Federal income tax purposes.
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SECTION 4.13. Properties. The Company does not own any real estate.
Except for liens arising in the ordinary course of business after the date of
this Agreement and properties and assets disposed of in the ordinary course of
business after December 31, 1997, the Company has good and marketable title,
free and clear of all liens and adverse claims, to all of their respective
properties and assets, whether tangible or intangible, reflected in the
Financial Statements as being owned by the Company as of such date or purported
to be owned on the date of this Agreement. All buildings and all fixtures,
equipment, and other property and assets that are material to the business of
the Company and are held under leases by the Company are held under valid
instruments enforceable by the Company in accordance with their respective
terms. The properties and equipment of the Company (a) have been well
maintained and are in good and serviceable condition, reasonable wear and tear
excepted, and (b) are adequate for the uses to which they are being put and,
following the sale of Stock and the consummation of the other transactions
contemplated hereby, will have sufficient capacity to conduct the Company's
business in the same manner and with the same degree of profitability as such
business is presently conducted.
SECTION 4.14 Contracts and Customers. None of the contracts of the
Company is terminable as the result of, or requires the consent or other
approval of any other Person with respect to or as a result of, the
transactions contemplated by this Agreement. The Company is in compliance in
all material respects under all leases, licenses, agreements, contracts,
permits, plans, and commitments by which any of its properties or assets is
bound and no event has occurred that constitutes a material violation or
material breach of or a material default (with the passage of time or the
giving of notice or both) in respect of any thereof, and each of the other
parties thereto or bound thereby has performed all the obligations required to
be performed by it to date and is not in default thereunder. Stockholder does
not know or have reason to know that any material client or customer intends to
terminate its relationship with the Company as a result of the sale of Stock or
any of the related transactions.
SECTION 4.15. Investment Intent and Access. Without intending to limit
Stockholder's rights under Section 3.02 and Section 3.03(c), Stockholder hereby
represents and warrants that (a) the CPI Shares are not being acquired with a
view to the resale or distribution of any part thereof in a manner which would
violate the registration provisions of the Securities Act or any applicable
state securities laws, (b) the Stockholder has received the Proxy Statement
dated January 30, 1998 from CPI, and (c) the Stockholder has had sufficient
access to the Company and its officers to ask questions related to such Proxy
Statement and the Company's business and operations.
SECTION 4.16. Information Supplied. Without limiting any of the
representations and warranties contained in this Agreement, no representation
or warranty of Stockholder, as of the date of such representation, warranty, or
statement, contains any untrue statement of material fact, or omits to state a
material fact necessary in order to make the statements contained therein, in
light of the circumstances under which such statements were made, not
misleading.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF CPI
CPI hereby represents and warrants to Stockholder as follows:
SECTION 5.01. Authority. CPI has all requisite corporate power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder, and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement, and the consummation by CPI of the
transactions contemplated hereby, have been duly authorized by all necessary
corporate action, and no other corporate proceedings on the part of CPI is
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
CPI and, assuming the due authorization, execution, and delivery of this
Agreement by Stockholder, constitutes the legal, valid, and binding obligations
of CPI, enforceable in accordance with its respective terms.
SECTION 5.02. No Conflict. The execution and delivery of this Agreement
by CPI does not, and the consummation of the transactions contemplated hereby
will not, conflict with or violate the certificate of incorporation or bylaws,
as amended or restated to the date of this Agreement, of CPI or any material
agreement of CPI.
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SECTION 5.03 Resale Registration Statement. CPI is not aware of any
fact that would prevent the timely filing or effectiveness of the Resale
Registration Statement.
SECTION 5.04. Information Supplied. Without limiting any of the
representations and warranties contained in this Agreement, no representation
or warranty of CPI, as of the date of such representation, warranty, or
statement contains any untrue statement of material fact, or omits to state a
material fact necessary in order to make the statements contained therein, in
light of the circumstances under which such statements were made, not
misleading.
ARTICLE VI
COVENANTS
SECTION 6.01 Release of the Stockholder. Effective upon the Closing,
Stockholder, for himself and his heirs, executors, administrators, successors,
and assigns, hereby fully and unconditionally releases and forever discharges
and holds harmless the Company and its employees, officers, directors,
successors, and assigns from any and all Claims of every kind and nature
whatsoever, whether or not now existing or known, relating in any way, directly
or indirectly, to the Company or the Stock, that such Stockholder may now have
or may hereafter claim to have against the Company or any of its employees,
officers, directors, successors, or assigns, arising prior to Closing.
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SECTION 6.02. Noncompetition.
(a) Stockholder acknowledges that this Section 6.02 is entered into
in connection with the sale of the Stock. Stockholder also
acknowledges that the nature of the business of CPI and the
Company is not confined by geography and that current technology
and business and communications methods enable and will enable
CPI and the Company to offer services, conduct business, make
contacts with customers, potential customers, vendors, potential
vendors, fellow employees, and other Persons having business
dealings with CPI and the Company without regard to geographic
location. Accordingly, and as a material inducement to CPI to
purchase the Stock and to enter into this Agreement, Stockholder
agrees to the provisions of this Section 6.02.
(b) Stockholder covenants and agrees, for a period beginning on the
Closing and ending on the first anniversary of the Closing (the
"Section 6.02(b) Applicable Date"), except with the prior written
consent of CPI, Stockholder will not engage, directly or
indirectly (whether as owner, partner, stockholder, investor
(except that he or she may beneficially own less than 3% of the
common equity of a publicly traded company), employee, advisor,
consultant, contracting party, or referring source, or
otherwise), in any business that is similar to or in competition
with the business conducted by the Company or CPI at any time
prior to the Section 6.02(b) Applicable Date, including, but not
limited to, the distribution of sporting goods equipment, in any
county or similar jurisdiction in the United States of America
(the "Protection Area"). In addition, and without limiting the
generality of the foregoing, Stockholder agrees for a period
beginning on the Closing Date and ending on the Section 6.02(b)
Applicable Date, he will not, without the prior express written
consent of CPI, directly or indirectly, solicit, attempt to
solicit, or accept within the Protection Area any business or
employment from any Person that such Stockholder or the Company
called upon, solicited, or conducted business with as of or prior
to the Section 6.02(b) Applicable Date, or recruit or hire,
attempt to or assist in any attempt to, recruit or hire, or
discuss employment or hiring with any Person who was or is an
employee of the Company or CPI.
(c) Stockholder's obligations under this Section 6.02 may not be
enforced by CPI if (i) the Subsequent Payment or any other
payment due under Section 3.02 or Section 3.03 is not paid when
due and such default continues for five days thereafter and (ii)
Stockholder is not already in breach of this Section 6.02 or in
breach of any other material provision of this Agreement.
(d) If any provision of this Section 6.02 should be found by any
court of competent jurisdiction to be unreasonable by reason of
its being too broad as to the period of time, territory, and/or
scope, then, and in that event, such provision will nevertheless
remain valid and fully effective, but will be considered to be
amended so that the period of time, territory, and/or scope set
forth will be changed to be the maximum period of time, the
largest territory, and/or the broadest scope, as the case may be,
which would be found reasonable and enforceable by such court.
SECTION 6.03. CPI Indemnification of Stockholder. CPI will indemnify
and hold Stockholder harmless from any and all Claims that Stockholder may
suffer or incur as a result of or relating to Stockholder's personal
endorsement on any contract by and between the Company and any vendor of the
Company dated as of or prior to this Agreement. Stockholder agrees to give CPI
prompt written notice upon the occurrence of any indemnifiable Claim or the
assertion of any Claim or the commencement of any proceeding or action in
respect of which such a Claim may reasonably be expected to occur. CPI may
elect to assume and control the defense of any Claim, including the employment
of counsel. In such event, CPI may settle such Claim without the consent of
Stockholder.
SECTION 6.04. Transaction Costs. Each party will pay prior to the
Closing all attorneys', accountants', finders', brokers', investment banking,
and other fees, costs and expenses incurred by such party in connection with
the preparation, negotiation, execution, and performance of this Agreement, or
any of the transactions contemplated by this Agreement.
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ARTICLE VII
CLOSING CONDITIONS
SECTION 7.01. Conditions to Obligations of CPI. The obligations of CPI
to purchase the Stock and the other transactions contemplated by this Agreement
are subject to the satisfaction at or prior to the Closing Date of the
following conditions, any or all of which may be waived in writing in the
absolute discretion of the CPI, in whole or in part:
(a) Each of the representations and warranties of Stockholder
contained in this Agreement must be true and correct in all
material respects as of the Closing Date as though made on and as
of the Closing Date.
(b) Stockholder must have performed or complied with all agreements
and covenants required by this Agreement to be performed or
complied with by them on or prior to the Closing Date.
(c) All contractual and governmental consents, approvals, and
notifications required must have been obtained or given.
(d) Each of the required items set forth in Section 2.03 hereof must
have been executed and delivered.
SECTION 7.02. Conditions to Obligations of Stockholder. The obligations
of Stockholder to effect the sale of Stock and the other transactions
contemplated by this Agreement are subject to the satisfaction at or prior to
the Closing Date of the following conditions, any or all of which may be waived
in writing in the absolute discretion of Stockholder, in whole or in part:
(a) Each of the representations and warranties of CPI contained in
this Agreement must be true and correct in all material respects
as of the Closing Date as though made on and as of the Closing
Date.
(b) CPI must have performed or complied with all agreements and
covenants required by this Agreement to be performed or complied
with by them on or prior to the Closing Date.
(c) All contractual and governmental consents, approvals, and
notifications must have been obtained or given.
(d) Each of the required items set forth in Section 2.02 hereof must
have been executed and delivered.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Survival. All representations and warranties made in or
pursuant to this Agreement will survive until the second anniversary of the
Closing. Each party agrees that no other party to this Agreement will be under
any duty, express or implied, to make any investigation of any representation
or warranty made by any other party to this Agreement, and that no failure to
so investigate will be considered negligent or unreasonable.
SECTION 8.02. Attorneys' Fees and Costs. If attorneys' fees or other
costs are incurred to secure performance of any obligations under this
Agreement, or to establish damages for the breach thereof or to obtain any
other appropriate relief, whether by way of prosecution or defense, the
prevailing party will be entitled to recover reasonable attorneys' fees and
costs incurred in connection therewith.
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SECTION 8.03. Further Assurances. Each party agrees to execute any and
all documents and to perform such other acts as may be necessary or expedient
to further the purposes of this Agreement and the transactions contemplated by
this Agreement.
SECTION 8.04. Counterparts. This Agreement may be executed in one or
more counterparts for the convenience of the parties to this Agreement, all of
which together will constitute one and the same instrument.
SECTION 8.05. Certain Definitions. For the purposes of this Agreement,
the following terms have the meanings specified:
(a) "Affiliate" means a Person that directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is
under common control with, the first mentioned Person.
(b) "Control" (including the terms "controlling," "controlled,"
"controlled by," and "under common control with") means the
possession, directly or indirectly, or as trustee or executor, of
the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of
securities, or as trustee or executor, by contract or credit
arrangement or otherwise.
(c) "Claim" means any and all liabilities, obligations, claims,
damages, diminution in value, costs and expenses (including all
court costs and reasonable attorneys fees) that any Person may
suffer.
(d) "Person" will be broadly construed to include to mean an
individual, corporation, partnership, association, trust,
unincorporated organization, Governmental Entity, other entity or
group (as used in Section l3(d) of the Exchange Act).
(e) "Tax" or "taxes" means any and all taxes, charges, fees, levies,
assessments, duties, or other amounts payable to any federal,
state, local, or foreign taxing government, authority, or agency,
including, without limitation, (i) income, franchise, profits,
gross receipts, minimum, alternative minimum, estimated, ad
valorem, value added, sales, use, service, real or personal
property, capital stock, license, payroll, withholding,
disability, employment, social security, workers compensation,
unemployment compensation, utility, severance, excise, stamp,
windfall profits, transfer, and gains taxes; (ii) customs,
duties, imposts, charges, levies, or other similar assessments of
any kind; and (iii) interest, penalties, and additions to tax
imposed with respect thereto.
SECTION 8.06. Notices. All demands, notices, and communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally, delivered by a national overnight delivery service,
telecopy or mailed by first class mail, postage prepaid, to the address of each
party set forth on the signature page of this Agreement, which address is the
principal place of business of such party unless otherwise indicated.
SECTION 8.07. Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement may be assigned or delegated by
Stockholder or CPI, without the prior written consent of the other party. This
Agreement is not intended to confer any rights or benefits to any Person other
than the parties to this Agreement.
SECTION 8.08. Entire Agreement. This Agreement contains the entire
understanding of the parties relating to the subject matter hereof and
supersedes all prior written or oral and all contemporaneous oral agreements
and understandings relating to the subject matter hereof. This Agreement
cannot be modified or amended except in writing signed by the party against
whom enforcement is sought.
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SECTION 8.09. Specific Performance. The parties hereby acknowledge and
agree that the failure of any party to perform its agreements and covenants
under this Agreement, including, without limitation, failure to take all
actions as are necessary on its part to consummate the sale of Stock, will
cause irreparable injury to the other parties for which damages, even if
available, will not be an adequate remedy. Accordingly, each party hereby
consents to the issuance of injunctive relief by any court of competent
jurisdiction to compel performance of such party's obligations and to the
granting by any court of the remedy of specific performance of its obligations
under this Agreement. Purchaser and Seller hereby waive the requirement of
posting of any bond to such court in connection with the issuance of injunctive
relief hereunder.
SECTION 8.10. GOVERNING LAW; JURISDICTION. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND THE
OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
PRINCIPLES THEREOF. EACH OF THE PARTIES EXPRESSLY CONSENTS TO THE PERSONAL
JURISDICTION OF THE COURTS OF THE STATES OF DELAWARE, TEXAS AND FLORIDA.
[remainder of page intentionally left blank]
12
SECTION 8.11. Remedies. Each party to this Agreement agrees that (a)
all rights and remedies under this Agreement are cumulative and that no
election or exercise of any right or remedy will be deemed an exclusion of any
other right or remedy; and (b) unless expressly stated, no right under this
Agreement will be deemed a limitation on any other right or remedy.
IN WITNESS WHEREOF, each of the parties to this Agreement has caused
this Agreement to be duly executed as of the date first written above.
COLLEGIATE PACIFIC INC.,
a Pennsylvania corporation
By: /s/ XXXXXXX X. XXXXXXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
Address: 13950 Senlac, Xxxxx 000
Xxxxxxx Xxxxxx, Xxxxx 00000
STOCKHOLDER
/s/ XXXXXXX XXXXXXXXX
-----------------------------------------
Xxxxxxx Xxxxxxxxx
Address:
---------------------------------
---------------------------------
---------------------------------
/s/ XXXXX XXXXXXXXX
-----------------------------------------
Xxxxx Xxxxxxxxx
Address:
---------------------------------
---------------------------------
---------------------------------
13
EXHIBIT A
GUARANTY OF XXXXXXX X. XXXXXXXXXX
GUARANTY
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is
hereby acknowledged, the undersigned (the "Guarantor") guarantees personally
and unconditionally the full and prompt performance and payment of the
Subsequent Payments ($375,000), including subsequent the $100,000 cash payment
and the $275,000 stock value, under the Agreement for Purchase and Sale of
Stock dated as of April 14, 1998 (the "Agreement") by and between Collegiate
Pacific Inc., a Pennsylvania corporation, and Xxxxxxx Xxxxxxxxx and Xxxxx
Xxxxxxxxx (collectively, "Stockholder"). Capitalized terms used herein but not
defined shall have the meaning assigned to such terms in the Agreement.
Guarantor represents to Stockholder that his net worth is sufficient to
meet his obligations under this Guaranty; acknowledges and represents that he
is receiving direct and indirect financial and other benefits as a result of
this Guaranty and the obligations secured hereunder; represents to Stockholder
that after giving effect to this Guaranty and the contingent obligations
evidenced hereby he is, and will be, solvent, and that he will use reasonable
efforts to maintain a net worth that is sufficient to meet his obligations
hereunder; acknowledges that this Guaranty is operative and binding as to him;
and acknowledges that Stockholder has not made any representation, warranty, or
statement to Guarantor to induce it to execute this Guaranty.
Notwithstanding any provision in the Agreement to the contrary,
Guarantor agrees to pay on demand all costs and expenses of every kind incurred
by Stockholder: (a) in enforcing this Guaranty, (b) in collecting on any
obligations of Guarantor, (c) in realizing upon or protecting any collateral
for this Guaranty, and (d) for any other purpose related to the this Guaranty.
This Guaranty shall inure to the benefit of and be binding upon
Stockholder and Guarantor and their respective successors and assigns.
THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE AND THE OBLIGATIONS, RIGHTS, AND REMEDIES PURSUANT TO THIS
GUARANTY SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT GIVING EFFECT
TO THE CONFLICT OF LAWS PRINCIPLES THEREOF. GUARANTOR EXPRESSLY CONSENTS TO
THE PERSONAL JURISDICTION OF THE COURTS OF THE STATES OF DELAWARE, TEXAS AND
FLORIDA.
Executed and delivered as of the 14th day of April, 1998.
GUARANTOR
------------------------------
Xxxxxxx X. Xxxxxxxxxx
WITNESS
----------------------------
