EXHIBIT 2.5
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement, dated as of August 13, 2003, is by and
among Finger Lake International, Inc., a New York corporation ("Seller"), Xxxxx
Xxxxxxxx, Xxxxx X. XxXxxxxx and Xxxx Xxxxxx, being all of the shareholders of
Seller (each, a "Shareholder" and collectively, the "Shareholders"), Boundless
Motor Sports Racing, Inc., a Colorado corporation ("Parent"), and Boundless
Track Operations, Inc., a Nevada corporation and wholly-owned subsidiary of
Parent ("Purchaser").
WITNESSETH:
WHEREAS, Seller desires to sell, and Purchaser desires to purchase,
substantially all of the assets of Seller;
NOW, THEREFORE, in consideration of the mutual representations,
warranties and covenants herein contained, and on the terms and subject to the
conditions herein set forth, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITION
Section 1.1. DEFINITIONS. As used in this Agreement, the following
terms shall have the meanings set forth below:
ARTICLE II
PURCHASE AND SALE
Section 2.1. PURCHASE AND SALE OF ASSETS. Subject to and upon the terms
and conditions contained herein, at the Closing, Seller shall sell, transfer,
assign, convey and deliver to Purchaser, free and clear of all security
interests, liens, claims and encumbrances and Purchaser shall purchase, accept
and acquire from Seller, the Assets.
Section 2.2. PURCHASE PRICE.
(a) TOTAL PURCHASE PRICE. The total purchase price for the Assets (the
"Purchase Price") shall be $1,650,000 (the "Purchase Price"), $900,000 of which
shall be due and payable at the Closing (the "Cash Consideration"), and the
remaining $750,000 of which shall be due and payable in shares (the "Shares") of
Parent Stock (valued at the Offering Price). Purchaser shall not assume or agree
to pay, perform or discharge any liabilities or obligations of Seller, whether
accrued, absolute, contingent or otherwise.
(b) ALLOCATION OF PURCHASE PRICE. The Purchase Price shall be allocated
among the Assets as set forth in Schedule 2.2(d), such allocation to be made as
provided in Section 1060 of the Internal Revenue Code of 1986 (the "Code").
Purchaser and Seller shall each file Form 8594 (Asset Acquisition Statement
Under Section 1060) on a timely basis reporting the allocation of the Purchase
Price consistent with the allocation in Schedule 2.2(d). Schedule 2.2(d) also
reflects the aggregate fair market values for each of Class I assets, Class II
assets and Class III assets, as such terms are defined in regulations
promulgated pursuant to Section 1060 of the Code. Purchaser and Seller shall
file on a timely basis any amendments required to such Form 8594 as a result of
a subsequent increase or decrease of the Purchase Price. Purchaser and Seller
shall not take any position on their respective income tax returns that is
inconsistent with the allocation of the Purchase Price as agreed to in Schedule
2.2(d) or as adjusted as a result of a subsequent increase or decrease in the
Purchase Price.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER AND THE SHAREHOLDERS
Seller and the Shareholders jointly and severally represent and warrant
that the following are true and correct as of the date hereof and will be true
and correct through the Closing Date as if made on that date (all Schedules
reference in this Article III are contained in the Seller Disclosure Schedule of
even date herewith):
Section 3.1. ORGANIZATION AND GOOD STANDING; QUALIFICATION. Seller is a
corporation duly organized, validly existing and in good standing under the laws
of its state of incorporation, with all requisite corporate power and authority
to carry on the business in which it is engaged, to own the properties it owns,
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. Seller is duly qualified and licensed to do business and is
in good standing in all jurisdictions where the nature of its business makes
such qualification necessary. Seller does not have any assets, employees or
offices in any state other than New York. Seller does not own, directly or
indirectly, any of the capital stock of any other corporation or any equity,
profit sharing, participation or other interest in any corporation, partnership,
joint venture or other entity.
Section 3.2. CORPORATE RECORDS. The copies of the Articles of
Incorporation and all amendments thereto and the Bylaws of Seller that have been
delivered to Purchaser are true, correct and complete copies thereof, as in
effect on the date hereof. The minute books of Seller, copies of which have been
delivered to Purchaser, contain accurate minutes of all meetings of, and
accurate consents to all actions taken without meetings by, the Board of
Directors (and any committees thereof) and the shareholders of Seller since the
formation of Seller.
Section 3.3. AUTHORIZATION AND VALIDITY. The execution, delivery and
performance by Seller of this Agreement and the other agreements contemplated
hereby, and the consummation of the transactions contemplated hereby and
thereby, have been duly authorized by Seller. This Agreement and each other
agreement contemplated hereby have been or will be as of the Closing Date duly
executed and delivered by Seller and the Shareholders and constitute or will
constitute (as the case may be) legal, valid and binding obligations of Seller
and the Shareholders, enforceable against Seller and the Shareholders in
accordance with their respective terms, except as may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally or
the availability of equitable remedies.
Section 3.4. NO VIOLATION. Neither the execution, delivery or
performance of this Agreement or the other agreements contemplated hereby nor
the consummation of the transactions contemplated hereby or thereby will (i)
conflict with, or result in a violation or
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breach of the terms, conditions or provisions of, or constitute a default under,
the Articles of Incorporation or Bylaws of Seller or any agreement, indenture or
other instrument under which Seller or any Shareholder is bound or to which any
of the Assets are subject, or result in the creation or imposition of any
security interest, lien, charge or encumbrance upon any of the Assets or (ii)
violate or conflict with any judgment, decree, order, statute, rule or
regulation of any court or any public, governmental or regulatory agency or body
having jurisdiction over Seller, any Shareholder or the Assets.
Section 3.5. CONSENTS. Except as set forth in Schedule 3.5, no consent,
authorization, approval, permit or license of, or filing with, any governmental
or public body or authority, any lender or lessor or any other person or entity
is required to authorize, or is required in connection with, the execution,
delivery and performance of this Agreement or the agreements contemplated hereby
on the part of Seller or any Shareholder.
Section 3.6. FINANCIAL STATEMENTS. Seller has furnished to Purchaser
Seller's audited balance sheet and related audited statements of income,
retained earnings and cash flows for the twelve-month periods ended December 31,
2000, 2001 and 2002, including the notes thereto, as well as unaudited balance
sheets and related unaudited statements of income, retained earnings and cash
flows for the six-month period ended June 30, 2003 (collectively, the "Financial
Statements"). The Financial Statements are in accordance with the books and
records of Seller, fairly present the financial condition and results of
operations of Seller as of the dates and for the periods indicated and have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis with prior periods.
Section 3.7. LIABILITIES AND OBLIGATIONS. Except as set forth in
Schedule 3.7, the Financial Statements reflect all liabilities of Seller,
accrued, contingent or otherwise (known or unknown and asserted or unasserted),
arising out of transactions effected or events occurring on or prior to the date
hereof. Except as set forth in the Financial Statements, Seller is not liable
upon or with respect to, or obligated in any other way to provide funds in
respect of or to guarantee or assume in any manner, any debt, obligation or
dividend of any person, corporation, association, partnership, joint venture,
trust or other entity, and Seller knows of no basis for the assertion of any
other claims or liabilities of any nature or in any amount.
Section 3.8. EMPLOYEE MATTERS.
(a) CASH COMPENSATION. Schedule 3.8(a) contains a complete and accurate
list of the names, titles and cash compensation, including without limitation
wages, salaries, bonuses (discretionary and formula) and other cash compensation
(the "Cash Compensation") of all employees of Seller who are currently
compensated at a rate in excess of $20,000 per year and who earned in excess of
such amount during Seller's preceding fiscal year. In addition, Schedule 3.8(a)
contains a complete and accurate description of (i) all increases in Cash
Compensation of employees of Seller during the current and immediately preceding
fiscal years of Seller and (ii) any promised increases in Cash Compensation of
employees of Seller that have not yet been effected.
(b) COMPENSATION PLANS. Schedule 3.8(b) contains a complete and
accurate list of all compensation plans, arrangements or practices (the
"Compensation Plans") sponsored by
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Seller or to which Seller contributes on behalf of its employees, other than
Employee Benefit Plans listed in Schedule 3.9(a). The Compensation Plans include
without limitation plans, arrangements or practices that provide for severance
pay, deferred compensation, incentive, bonus or performance awards, and stock
ownership or stock options.
(c) EMPLOYMENT AGREEMENTS. Schedule 3.8(c) contains a complete and
accurate list of all employment agreements (the "Employment Agreements") to
which Seller is a party with respect to its employees.
(d) EMPLOYEE POLICIES AND PROCEDURES. Schedule 3.8(d) contains a
complete and accurate list of all employee manuals, policies, procedures and
work-related rules (the "Employee Policies and Procedures") that apply to
employees of Seller.
(e) LABOR COMPLIANCE. Except as set forth in Schedule 3.8(e), Seller
(i) has been and is in compliance with all laws, rules, regulations and
ordinances respecting employment and employment practices, terms and conditions
of employment and wages and hours; and (ii) is not liable for any arrears of
wages or penalties for failure to comply with any of the foregoing. Seller has
not engaged in any unfair labor practice or discriminated on the basis of race,
color, religion, sex, national origin, age or handicap in its employment
conditions or practices. There are no (i) unfair labor practice charges or
complaints or racial, color, religious, sex, national origin, age or handicap
discrimination charges or complaints pending or threatened against Seller before
any federal, state or local court, board, department, commission or agency nor
does any basis therefor exist; or (ii) existing or threatened labor strikes,
disputes, grievances, controversies or other labor troubles affecting Seller,
nor does any basis therefor exist.
(f) UNIONS; ALIENS. Seller has never been a party to any agreement with
any union, labor organization or collective bargaining unit. No employees of
Seller are represented by any union, labor organization or collective bargaining
unit. To the best knowledge of Seller, the employees of Seller have no intention
to and have not threatened to organize or join a union, labor organization or
collective bargaining unit. All employees of Seller are citizens of, or are
authorized to be employed in, the United States.
Section 3.9. EMPLOYEE BENEFIT PLANS.
(a) IDENTIFICATION. Schedule 3.9(a) contains a complete and accurate
list of all employee benefit plans (the "Employee Benefit Plans") (within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA")) sponsored by Seller or to which Seller contributes on
behalf of its employees and all Employee Benefit Plans previously sponsored or
contributed to on behalf of its employees within the three years preceding the
date hereof. Each Employee Benefit Plan has been administered and maintained in
compliance with all laws, rules and regulations. No Employee Benefit Plan is
currently the subject of an audit, investigation, enforcement action or other
similar proceeding conducted by any state or federal agency.
(b) QUALIFICATION. Seller has received a favorable determination letter
or ruling from the Internal Revenue Service for each Employee Benefit Plan
intended to be qualified within the meaning of Section 401(a) of the Code and/or
tax-exempt within the meaning of Section 501(a)
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of the Code. No proceedings exist or have been threatened that could result in
the revocation of any such favorable determination letter or ruling. No
accumulated funding deficiency (within the meaning of Section 412 of the Code),
whether waived or unwaived, exists with respect to any Employee Benefit Plan or
any plan sponsored by any member of a controlled group (within the meaning of
Section 412(n)(6)(B) of the Code) in which Seller is a member (a "Controlled
Group"). With respect to each Employee Benefit Plan subject to Title IV of
ERISA, the assets of each such plan are at least equal in value to the present
value of accrued benefits determined on an ongoing basis as of the date hereof.
With respect to each Employee Benefit Plan described in Section 501(c)(9) of the
Code, the assets of each such plan are at least equal in value to the present
value of accrued benefits as of the date hereof. Neither Seller nor any member
of a Controlled Group has any liability to pay excise taxes with respect to any
Employee Benefit Plan under applicable provisions of the Code or ERISA. Neither
Seller nor any member of a Controlled Group is or ever has been obligated to
contribute to a multiemployer plan within the meaning of Section 3(37) of ERISA.
(c) PBGC. No facts or circumstances exist that would result in the
imposition of liability against Purchaser by the Pension Benefit Guaranty
Corporation as a result of any act or omission by Seller or any member of a
Controlled Group. No reportable event (within the meaning of Section 4043 of
ERISA) for which the notice requirement has not been waived has occurred with
respect to any Employee Benefit Plan subject to the requirements of Title IV of
ERISA.
(d) MEDICAL AND DENTAL CARE CLAIMS. Schedule 3.8(d) contains a complete
and accurate list of all claims made (without identifying specific individuals)
under any medical or dental care plan or commitment offered by Seller to its
employees involving hospitalization, medical or dental care claims that have
exceeded $5,000 per year for an individual during Seller's current fiscal year
or any of the three fiscal years preceding the date hereof.
Section 3.10. ABSENCE OF CERTAIN CHANGES. Except as set forth in
Schedule 3.10, since June 30, 2003, Seller has not: (i) suffered any material
adverse change, whether or not caused by any deliberate act or omission of
Seller, in its condition (financial or otherwise), operations, assets,
liabilities, business or prospects; (ii)contracted for the purchase of any
capital assets having a cost in excess of $50,000 or paid any capital
expenditures in excess of $50,000; (iii) incurred any indebtedness for borrowed
money or issued or sold any debt securities; (iv) incurred or discharged any
liabilities or obligations except in the ordinary course of business; (v) paid
any amount on any indebtedness prior to the due date, forgiven or cancelled any
debts or claims or released or waived any rights or claims; (vi) mortgaged,
pledged or subjected to any security interest, lien, lease or other charge or
encumbrance any of its properties or assets; (vii) suffered any damage or
destruction to or loss of any assets (whether or not covered by insurance) that
has materially and adversely affected, or could materially and adversely affect,
its business; (viii) acquired or disposed of any assets except in the ordinary
course of business; (ix) written up or written down the carrying value of any of
its assets; (x) changed the costing system or depreciation methods of accounting
for its assets; (xi) waived any material rights or forgiven any material claims;
(xii) lost or terminated any employee, customer or supplier, the loss or
termination of which has materially and adversely affected, or could materially
and adversely affect, its business or assets; (xiii) increased the compensation
of any director or officer; (xiv) increased the compensation of any employee
except in the ordinary course of business; (xv)
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made any payments to or loaned any money to any person or entity referred to in
Section 3.28; (xvi) formed or acquired or disposed of any interest in any
corporation, partnership, joint venture or other entity; (xvii) redeemed,
purchased or otherwise acquired, or sold, granted or otherwise disposed of,
directly or indirectly, any of its capital stock or securities or any rights to
acquire such capital stock or securities, or agreed to change the terms and
conditions of any such rights; (xviii) entered into any agreement with any
person or group, or modified or amended in any material respect the terms of any
such existing agreement except in the ordinary course of business; (xix) entered
into, adopted or amended any Employee Benefit Plan; or (xx) entered into any
other commitment or transaction or experienced any other event that is material
to this Agreement or to any of the other agreements and documents executed or to
be executed pursuant to this Agreement or to the transactions contemplated
hereby or thereby, or that has materially and adversely affected, or could
materially and adversely affect, the condition (financial or otherwise),
operations, assets, liabilities, business or prospects of Seller.
Section 3.11. TITLE; LEASED ASSETS.
(a) REAL PROPERTY. A description of all interests in real property
owned by Seller (collectively, the "Real Property") is set forth in Schedule
3.11(a). Except as set forth in Schedule 3.11(a), Seller has good, valid and
indefeasible title to all the Real Property. Upon consummation of the
transactions contemplated hereby, Purchaser shall receive good, valid and
marketable title to the Real Property free and clear of all liens, claims and
encumbrances other than those described in Schedule 3.11(a).
(b) PERSONAL PROPERTY. A description of all tangible and intangible
personal property owned by Seller (collectively, the "Personal Property") is set
forth in Schedule 3.11(b). Except as set forth in Schedule 3.11(b), Seller has
good, valid and marketable title to all the Personal Property. Upon consummation
of the transactions contemplated hereby, Purchaser shall receive good, valid and
marketable title to the Personal Property free and clear of all security
interests, liens, claims and encumbrances other than those described in Schedule
3.11(b).
(c) LEASES. A list and brief description of all leases of real and
personal property to which Seller is a party, either as lessor or lessee, are
set forth in Schedule 3.11 (c). All such leases are valid and enforceable in
accordance with their respective terms except as may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally or
the availability of equitable remedies.
(d) RIGHT TO USE ASSETS. Except for those assets acquired since June
30, 2003, all tangible assets used in the conduct of Seller's business are
reflected in the Financial Statements in a manner that is in conformity with
generally accepted accounting principles applied on a consistent basis with
prior periods. Seller owns, leases or otherwise possesses a transferable right
to use all assets used in the conduct of its business, and except for the
Excluded Assets, will transfer all of such rights to Purchaser at Closing.
Section 3.12. COMMITMENTS.
(a) COMMITMENTS; DEFAULTS. Except as set forth in Schedule 3.12(a),
Seller has not entered into, nor are the Assets or the business of Seller bound
by, whether or not in writing, any:
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(i) partnership or joint venture agreement; (ii) deed of trust or other security
agreement; (iii) guaranty or suretyship, indemnification or contribution
agreement or performance bond; (iv) employment, consulting or compensation
agreement or arrangement, including the election or retention in office of any
director or officer; (v) labor or collective bargaining agreement; (vi) debt
instrument, loan agreement or other obligation relating to indebtedness for
borrowed money or money lent or to be lent to another; (vii) deed or other
document evidencing an interest in or contract to purchase or sell real
property; (viii) agreement with dealers or sales or commission agents, public
relations or advertising agencies, accountants or attorneys; (ix) lease of real
or personal property, whether as lessor, lessee, sublessor or sublessee; (x)
agreement between Seller and any affiliate of Seller; (xi) agreement relating to
any material matter or transaction in which an interest is held by a person or
entity that is an affiliate of Seller; (xii) any agreement for the acquisition
of services, supplies, equipment or other personal property and involving more
than $25,000 in the aggregate; (xiii) powers of attorney; (xiv) contracts
containing noncompetition covenants; (xv) agreement relating to any material
matter or transaction in which an interest is held by any person or entity
referred to in Section 3.30; or (xvi) any other agreement or commitment not made
in the ordinary course of business or that is material to the business or
financial condition of Seller.
All of the foregoing are hereinafter collectively referred to as the
"Commitments." True, correct and complete copies of the written Commitments, and
true, correct and complete written descriptions of the oral Commitments, have
heretofore been delivered or made available to Purchaser. There are no existing
defaults, events of default or events, occurrences, acts or omissions that, with
the giving of notice or lapse of time or both, would constitute defaults by
Seller, and no penalties have been incurred nor are amendments pending, with
respect to the Commitments, except as described in Schedule 3.12(a). The
Commitments are in full force and effect and are valid and enforceable
obligations of the parties thereto in accordance with their respective terms,
and no defenses, off-sets or counterclaims have been asserted or, to the best
knowledge of Seller, may be made by any party thereto, nor has Seller waived any
rights thereunder. Seller has not received notice of any default with respect to
any Commitment.
(b) NO CANCELLATION OR TERMINATION OF COMMITMENT. Except as
contemplated hereby, Seller has not received notice of any plan or intention of
any other party to any Commitment to exercise any right to cancel or terminate
any Commitment or agreement, and Seller knows of no fact that would justify the
exercise of such a right. Seller does not currently contemplate, or have reason
to believe any other person or entity currently contemplates, any amendment or
change to any Commitment. None of the customers or suppliers of Seller has
refused, or communicated that it will or may refuse, to purchase or supply goods
or services, as the case may be, or has communicated that it will or may
substantially reduce the amounts of goods or services that it is willing to
purchase from, or sell to, Seller.
Section 3.13. ADVERSE AGREEMENTS. Seller is not a party to any
agreement or instrument or subject to any charter or other corporate restriction
or any judgment, order, writ, injunction, decree, rule or regulation that
materially and adversely affects, or so far as Seller can now foresee, may in
the future materially and adversely affect, the condition (financial or
otherwise), operations, assets, liabilities, business or prospects of Seller.
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Section 3.14. INSURANCE. Seller carries property, liability, workers'
compensation and such other types of insurance as is customary in Seller's
industry. A list and brief description of all insurance policies of Seller are
set forth in Schedule 3.14. All of such policies are valid and enforceable
policies, issued by insurers of recognized responsibility in amounts and against
such risks and losses as is customary in Seller's industry. Such insurance shall
be outstanding and duly in force without interruption up to and including the
Closing Date.
Section 3.15. PATENTS, TRADEMARKS, SERVICE MARKS AND COPYRIGHTS.
(a) OWNERSHIP. Seller owns all patents, trademarks, service marks and
copyrights, if any, necessary to conduct its business, or possesses adequate
licenses or other rights, if any, therefor, without conflict with the rights of
others. Set forth in Schedule 3.15 is a true and correct description of the
following ("Proprietary Rights"): (i) all trademarks, trade names, service marks
and other trade designations, including common law rights, registrations and
applications therefor, and all patents, copyrights and applications currently
owned, in whole or in part, by Seller with respect to the Assets and Seller's
business, and all licenses, royalties, assignments and other similar agreements
relating to the foregoing to which Seller is a party (including expiration date
if applicable); and (ii) all agreements relating to technology, know-how or
processes that Seller is licensed or authorized to use by others, or which it
licenses or authorizes others to use.
(b) CONFLICTING RIGHTS OF THIRD PARTIES. Seller has the sole and
exclusive right to use the Proprietary Rights without infringing or violating
the rights of any third parties. No consent of third parties will be required
for the transfer thereof to Purchaser or the use thereof by Purchaser upon
consummation of the transactions contemplated hereby and the Proprietary Rights
are freely transferable. No claim has been asserted by any person to the
ownership of or right to use any Proprietary Right or challenging or questioning
the validity or effectiveness of any license or agreement constituting a part of
any Proprietary Right, and Seller knows of no valid basis for any such claim.
Each of the Proprietary Rights is valid and subsisting, has not been cancelled,
abandoned or otherwise terminated and, if applicable, has been duly issued or
filed.
(c) CLAIMS OF OTHER PERSONS. Seller has no knowledge of any claim that,
or inquiry as to whether, any product, activity or operation of Seller infringes
upon or involves, or has resulted in the infringement of, any proprietary right
of any other person, corporation or other entity; and no proceedings have been
instituted, are pending or are threatened that challenge the rights of Seller
with respect thereto. Seller has not given and is not bound by any agreement of
indemnification for any Proprietary Right as to any property manufactured, used
or sold by Seller.
Section 3.16. TRADE SECRETS AND CUSTOMER LISTS. Seller has the right to
use, free and clear of any claims or rights of others, all trade secrets,
customer lists and proprietary information required for the marketing of all
merchandise and services formerly or presently sold or marketed by Seller.
Seller is not using or in any way making use of any confidential information or
trade secrets of any third party, including without limitation any past or
present employee of Seller.
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Section 3.17. TAXES.
(a) FILING OF TAX RETURNS AND PAYMENT OF TAXES. Seller has duly and
timely filed with the appropriate governmental agencies all income, excise,
corporate, franchise, property, sales, use, payroll, withholding and other tax
returns (including information returns) and reports required to be filed by the
United States or any state or any political subdivision thereof or any foreign
jurisdiction. All such tax returns or reports are complete and accurate and
properly reflect the taxes of Seller for the periods covered thereby. Seller has
paid or accrued all taxes, penalties and interest that have become due with
respect to any returns that it has filed and any assessments of which it is
aware. Seller is not delinquent in the payment of any tax, assessment or
governmental charge.
(b) NO PENDING DEFICIENCIES, DELINQUENCIES, ASSESSMENTS OR AUDITS. No
tax deficiency or delinquency has been asserted against Seller. There is no
unpaid assessment, proposal for additional taxes, deficiency or delinquency in
the payment of any of the taxes of Seller that could be asserted by any taxing
authority. There is no taxing authority audit of Seller pending or threatened,
and the results of any completed audits are properly reflected in the Financial
Statements. Seller has not granted an extension to any taxing authority of the
limitation period during which any tax liability may be assessed or collected.
(c) ALL WITHHOLDING REQUIREMENTS SATISFIED. All monies required to be
withheld by Seller and paid to governmental agencies for all income, social
security, unemployment insurance, sales, excise, use, and other taxes have been
(i) collected or withheld and either paid to the respective governmental
agencies or set aside in accounts for such purpose or (ii) properly reflected in
the Financial Statements.
(d) SAFE HARBOR LEASE; TAX EXEMPT ENTITY. None of the Assets constitute
property that Purchaser, or any affiliate of Purchaser, will be required to
treat as being owned by another person pursuant to the "Safe Harbor Lease"
provisions of Section 168(f)(8) of the Code prior to repeal by the Tax Equity
and Fiscal Responsibility Act of 1982. None of the Assets are or will be subject
to a lease to a "tax exempt entity" as such term is defined in Section 168(h)(2)
of the Code.
Section 3.18. COMPLIANCE WITH LAWS. Seller has complied with all laws,
regulations and licensing requirements and has filed with the proper authorities
all necessary statements and reports. There are no existing violations by Seller
of any federal, state or local law or regulation that could affect the property
or business of Seller. Seller possesses all necessary licenses, franchises,
permits and governmental authorizations to conduct its business as now
conducted.
Section 3.19. FINDER'S FEE. Except as set forth in Schedule 3.19,
neither Seller nor any Shareholder has incurred any obligation for any finder's,
broker's or agent's fee in connection with the transactions contemplated hereby.
Section 3.20. LITIGATION. There are no legal actions or administrative
proceedings or investigations instituted, or to the best knowledge of Seller
threatened, against or affecting, or that could affect, Seller, any of the
Assets, or the business of Seller. Seller is not (i) subject to any continuing
court or administrative order, writ, injunction or decree applicable
specifically to
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Seller or to its business, assets, operations or employees or (ii) in default
with respect to any such order, writ, injunction or decree. Seller does not know
of any basis for any such action, proceeding or investigation.
Section 3.21. ACCURACY OF INFORMATION FURNISHED. All information
furnished to Purchaser by Seller hereby or in connection with the transactions
contemplated hereby is true, correct and complete in all respects. Such
information states all facts required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which such
statements are made, true, correct and complete.
Section 3.22. CONDITION OF FIXED ASSETS. All of the plants, structures
and equipment included in the Assets are in good condition and repair for their
intended use in the ordinary course of business and conform in all material
respects with all applicable ordinances, regulations and other laws and there
are no known latent defects therein.
Section 3.23. INVENTORY. All of the inventory included in the Assets is
in good, current, standard and merchantable condition and is not obsolete or
defective. Purchase commitments for merchandise are not in excess of normal
requirements and, taken as a whole, are not at prices in excess of market
prices. Seller has presently, and at the Closing Date will have, the types and
quantities of inventories appropriate, taken as a whole, to conduct its business
consistently with past practices.
Section 3.24. BOOKS OF ACCOUNT. The books of account of Seller have
been kept accurately in the ordinary course of business, the transactions
entered therein represent bona fide transactions and the revenues, expenses,
assets and liabilities of Seller have been properly recorded in such books.
Section 3.25. ACCOUNTS RECEIVABLE. Schedule 3.25 sets forth the
accounts receivable of Seller's business from sales made as of August 11, 2003,
and the payments and rights to receive payments related thereto, is complete and
accurate. All such accounts receivable have arisen from bona fide transactions
in the ordinary course of business and are valid and enforceable claims subject
to no right of set-off or counterclaim.
Section 3.26. DISTRIBUTIONS AND REPURCHASES. No distribution, payment
or dividend of any kind has been declared or paid by Seller on any of its
capital stock at any time. No repurchase of any of Seller's capital stock has
been approved or effected by Seller at any time.
Section 3.27. BANKING RELATIONS. Set forth in Schedule 3.27 is a
complete and accurate list of all arrangements that Seller has with any bank or
other financial institution, indicating with respect to each relationship the
type of arrangement maintained (such as checking account, borrowing
arrangements, safe deposit box, etc.) and the person or persons authorized in
respect thereof.
Section 3.28. OWNERSHIP INTERESTS OF INTERESTED PERSONS. Except as set
forth in Schedule 3.28, no officer, supervisory employee, director or
shareholder of Seller, or their respective spouses or children, owns directly or
indirectly, on an individual or joint basis, any material interest in, or serves
as an officer or director of, any customer or supplier of Seller, or any
organization that has a material contract or arrangement with Seller.
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Section 3.29. ENVIRONMENTAL MATTERS. Neither Seller nor any of the
Assets are currently in violation of, or subject to any existing, pending or
threatened investigation or inquiry by any governmental authority or to any
remedial obligations under, any laws or regulations pertaining to health or the
environment (hereinafter sometimes collectively called "Environmental Laws"),
and this representation and warranty would continue to be true and correct
following disclosure to the applicable governmental authorities of all relevant
facts, conditions and circumstances, if any, pertaining to the Assets. To the
best knowledge of Seller, the Assets have never been used in a manner that would
be in violation of any of the Environmental Laws. Seller has not obtained and is
not required to obtain, and Seller has no knowledge of any reason Purchaser will
be required to obtain, any permits, licenses or similar authorizations to
construct, occupy, operate or use any buildings, improvements, fixtures and
equipment owned or leased by Seller by reason of any Environmental Laws. To the
best knowledge of Seller, none of the assets owned or leased by Seller are on
any federal or state "Superfund" list or subject to any environmentally related
liens.
Section 3.30. CERTAIN PAYMENTS. To the best knowledge of Seller,
neither Seller nor any director, officer or employee of Seller has paid or
caused to be paid, directly or indirectly, in connection with the business of
Seller: (i) to any government or agency thereof or any agent of any supplier or
customer any bribe, kick-back or other similar payment; or (b) any contribution
to any political party or candidate (other than from personal funds of
directors, officers or employees not reimbursed by their respective employers or
as otherwise permitted by applicable law).
Section 3.31. INFORMATION FURNISHED TO SHAREHOLDERS. Each Shareholder
has been provided with, and is familiar with, the financial and other
information regarding the business and operations of Purchaser and Parent that
such Shareholder deems necessary for evaluating the merits and risks of the
transactions contemplated by this Agreement. Each Shareholder is knowledgeable
and experienced in financial and business matters and are capable of evaluating
the merits and risks of the transactions contemplated by this Agreement.
Section 3.32. INVESTMENT PURPOSES. Each Shareholder is acquiring the
Parent Stock for investment purposes and not with a view toward resale or
distribution thereof, and have no present intention of selling, granting any
participation in, or otherwise distributing the Public Company Stock.
Section 3.33. RESTRICTED SECURITIES. Each Shareholder understands that
the shares of Parent Stock will be issued by Parent pursuant to an exemption
from the registration requirements of the Securities Act of 1933, as amended
(the "Securities Act"), and are characterized as "restricted securities" under
the Securities Act and may be resold without registration under the Securities
Act only in limited circumstances. In connection with the foregoing, each
Shareholder is familiar with Rule 144 and understand the resale limitations
imposed thereby on such shares of Parent Stock.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants that the following are true and
correct as of the date hereof and will be true and correct through the Closing
Date as if made on that date:
Section 4.1. ORGANIZATION AND GOOD STANDING. Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
state of Nevada, with all requisite corporate power and authority to carry on
the business in which it is engaged, to own the properties it owns, to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby.
Section 4.2. AUTHORIZATION AND VALIDITY. The execution, delivery and
performance by Purchaser of this Agreement and the other agreements contemplated
hereby, and the consummation of the transactions contemplated hereby and
thereby, have been duly authorized by Purchaser. This Agreement and each other
agreement contemplated hereby have been or will be as of the Closing Date duly
executed and delivered by Purchaser and constitute or will constitute (as the
case may be) legal, valid and binding obligations of Purchaser, enforceable
against Purchaser in accordance with their respective terms, except as may be
limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally or the availability of equitable remedies.
Section 4.3. NO VIOLATION. Neither the execution, delivery or
performance of this Agreement or the other agreements contemplated hereby nor
the consummation of the transactions contemplated hereby or thereby will (i)
conflict with, or result in a violation or breach of the terms, conditions and
provisions of, or constitute a default under, the Articles of Incorporation or
Bylaws of Purchaser or any agreement, indenture or other instrument under which
Purchaser is bound or (ii) violate or conflict with any judgment, decree, order,
statute, rule or regulation of any court or any public, governmental or
regulatory agency or body having jurisdiction over Purchaser or the properties
or assets of Purchaser.
Section 4.4. CONSENTS. No consent, authorization, approval, permit or
license of, or filing with, any governmental or public body or authority, any
lender or lessor or any other person or entity is required to authorize, or is
required in connection with, the execution, delivery and performance of this
Agreement or the agreements contemplated hereby on the part of Purchaser.
Section 4.5. FINANCIAL AND RELATED INFORMATION. Purchaser was formed
with the intent to acquire motor sport race tracks and racing operations. To
date, Purchaser has had limited operations.
Section 4.6. COMPLIANCE WITH LAWS. Purchaser has complied with all
laws, regulations and licensing requirements and has filed with the proper
authorities all necessary statements and reports. There are no existing
violations by Purchaser of any federal, state or local law or regulation that
could affect the property or business of Purchaser.
Section 4.7.
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Section 4.8.
ARTICLE V
COVENANTS OF SELLER AND THE SHAREHOLDERS
Seller and the Shareholders jointly and severally agree that between
the date hereof and the Closing:
Section 5.1. CONSUMMATION OF AGREEMENT. Seller and the Shareholders
shall use their respective best efforts to cause the consummation of the
transactions contemplated hereby in accordance with their terms and conditions.
Section 5.2. BUSINESS OPERATIONS. Seller shall operate its business in
the ordinary course and will not introduce any new method of management or
operation. Seller shall use its best efforts to preserve the business of Seller
intact, to retain its present customers and suppliers so that they will be
available to Purchaser after the Closing. Seller shall not take any action that
could adversely affect the condition (financial or otherwise), operations,
assets, liabilities, business or prospects of Seller without the prior written
consent of Purchaser or take or fail to take any action that would cause or
permit the representations made in Article III to be inaccurate at the time of
Closing or preclude Seller from making such representations and warranties at
the Closing.
Section 5.3. ACCESS. Seller shall permit Purchaser and its authorized
representatives full access to, and make available for inspection, all of the
assets and business of Seller, including its employees, customers and suppliers,
and permit Purchaser and its authorized representatives to inspect and make
copies of all documents, records and information with respect to the affairs of
Seller as Purchaser and its representatives may request, all for the sole
purpose of permitting Purchaser to become familiar with the business and assets
and liabilities of Seller.
Section 5.4. MATERIAL CHANGE. Seller shall promptly inform Purchaser in
writing of any material adverse change in the condition (financial or
otherwise), operations, assets, liabilities, business or prospects of Seller.
Notwithstanding the disclosure to Purchaser of any such material adverse change,
Seller shall not be relieved of any liability for, nor shall the providing of
such information by Seller to Purchaser be deemed a waiver by Purchaser of, the
breach of any representation or warranty of Seller contained in this Agreement.
Section 5.5. APPROVALS OF THIRD PARTIES. Seller shall use its best
efforts to secure, as soon as practicable after the date hereof, all necessary
approvals and consents of third parties to the consummation of the transactions
contemplated hereby.
Section 5.6. HIRING EMPLOYEES. Seller shall cooperate with all requests
made by Purchaser for the purpose of allowing Purchaser to hire those employees
of Seller designated by Purchaser, such employment to be effective as of the
Closing Date.
Section 5.7. EMPLOYEE MATTERS. Seller shall not, without the prior
written approval of Purchaser, except as required by law: (i) increase the Cash
Compensation of any employee of Seller; (ii) adopt, amend or terminate any
Compensation Plan; (iii) adopt, amend or terminate any Employment Agreement;
(iv) adopt, amend or terminate
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any Employee Policies and Procedures; (v) institute, settle or dismiss any
employment litigation; (vi) enter into, modify, amend or terminate any agreement
with any union, labor organization or collective bargaining unit; or (vii) take
or fail to take any action with respect to any past or present employee of
Seller that could adversely affect the business of Seller.
Section 5.8. EMPLOYEE BENEFIT PLANS. Seller shall not, without the
prior written approval of Purchaser, except as required by law: (i) adopt, amend
or terminate any Employee Benefit Plan; (ii) take any action that could deplete
the assets of any Employee Benefit Plan, other than payment of benefits in the
ordinary course to participants and beneficiaries; (iii) fail to pay any premium
or contribution due or with respect to any Employee Benefit Plan; (iv) fail to
file any return or report with respect to any Employee Benefit Plan; or (v) take
or fail to take any action that could adversely affect any Employee Benefit
Plan.
Section 5.9. CONTRACTS. Except with Purchaser's prior written consent,
Seller shall not waive any right or cancel any contract, debt or claim nor will
it assume or enter into any contract, lease, license, obligation, indebtedness,
commitment, purchase or sale except in the ordinary course of business.
Section 5.10. CHANGES IN INVENTORY. Seller shall not alter the physical
contents or character of its raw materials, work-in-process or finished goods
inventory or the mixture of products in its finished goods inventory so as to
affect the nature of Seller's business or result in a change in the total dollar
valuation thereof.
Section 5.11. CAPITAL ASSETS; PAYMENTS OF LIABILITIES. Seller shall
not, without the prior written approval of Purchaser (i) acquire or dispose of
any capital asset having an initial cost of $50,000 or more or (ii) discharge or
satisfy any lien or encumbrance or pay or perform any obligation or liability
other than (a) liabilities and obligations reflected in the Financial Statements
or (b) current liabilities and obligations incurred in the usual and ordinary
course of business of Seller since June 30, 2003 and, in either case (a) or (b)
above, only as required by the express terms of the agreement or other
instrument pursuant to which the liability or obligation was incurred.
Section 5.12. MORTGAGES, LIENS AND GUARANTIES. Seller shall not,
without the prior written approval of Purchaser, enter into or assume any
mortgage, pledge, conditional sale or other title retention agreement, permit
any security interest, lien, encumbrance or claim of any kind to attach to any
of its assets, whether now owned or hereafter acquired, or guarantee or
otherwise become contingently liable for any obligation of another, except
obligations arising by reason of endorsement for collection and other similar
transactions in the ordinary course of business, or make any capital
contribution or investment in any corporation, business or other person.
Section 5.13. NO NEGOTIATION WITH OTHERS. Neither Seller nor any
Shareholder shall solicit or participate in negotiations with (and Seller and
each Shareholder shall use their respective best efforts to prevent any
affiliate, shareholder, director, officer, employee or other representative or
agent of Seller from negotiating with, soliciting or participating in
negotiations
14
with) any third party with respect to the sale of the business of Seller or any
transaction inconsistent with those contemplated hereby.
Section 5.14. DISTRIBUTIONS AND REPURCHASES. No distribution, payment
or dividend of any kind will be declared or paid by Seller, nor will any
repurchase of any of Seller's capital stock be approved or effected.
ARTICLE VI
PURCHASER'S COVENANTS
Purchaser agrees that between the date hereof and the Closing:
Section 6.1. CONSUMMATION OF AGREEMENT. Purchaser shall use its best
efforts to cause the consummation of the transactions contemplated hereby in
accordance with their terms and conditions.
Section 6.2. EMPLOYEE MATTERS. No employee of Seller shall be
considered an employee of Purchaser until such employee begins performing
services for Purchaser.
ARTICLE VII
PURCHASER'S CONDITIONS PRECEDENT
Except as may be waived in writing by Purchaser, the obligations of
Purchaser hereunder are subject to the fulfillment at or prior to the Closing
Date of each of the following conditions:
Section 7.1. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Seller contained herein shall have been true and correct in all
respects when initially made and shall be true and correct in all respects as of
the Closing Date; and Purchaser shall have received a certificate of Seller's
President, dated as of the Closing Date, to the foregoing effect.
Section 7.2. COVENANTS AND CONDITIONS. Seller shall have performed and
complied with all covenants and conditions required by this Agreement to be
performed and complied with by Seller prior to the Closing Date; and Purchaser
shall have received a certificate of Seller's President, dated as of the Closing
Date, to the foregoing effect.
Section 7.3. PROCEEDINGS. No action, proceeding or order by any court
or governmental body or agency shall have been threatened orally or in writing,
asserted, instituted or entered to restrain or prohibit the carrying out of the
transactions contemplated hereby.
Section 7.4. NO MATERIAL ADVERSE CHANGE. No material adverse change in
the condition (financial or otherwise), operations, assets, liabilities,
business or prospects of Seller shall have occurred since the date of the most
recent audited balance sheet included in the Financial Statements, whether or
not such change shall have been caused by the deliberate act or omission of
Seller.
Section 7.5. DUE DILIGENCE REVIEW. Purchaser shall have completed a due
diligence review of the business, operations and financial statements of Seller,
the results of which shall be satisfactory to Purchaser in its sole discretion.
Such due diligence review shall include a Phase I
15
environmental study of the assets of the Corporation (and a Phase II
environmental study, if recommended in the Phase I study).
Section 7.6. CONSENTS. Purchaser shall have received all approvals,
consents and waivers from third parties which, in the view of Purchaser's
counsel are necessary or desireable to be obtained prior the consummation of the
transactions contemplated herein.
Section 7.7. OFFERING. The Offering shall have been consummated by
Public Company.
Section 7.8. STOCK PURCHASE AGREEMENT. The transactions contemplated by
that certain Stock Purchase Agreement, dated as of the date hereof, by and among
Purchaser, Parent, DIRT Motorsports, Inc., and Xxxxx Xxxxxxxx (the "Stock
Purchase Agreement") shall have occurred.
Section 7.9. CLOSING DELIVERIES. Purchaser shall have received all
documents, in form satisfactory to Purchaser and its counsel, referred to in
Section 9.1 below.
ARTICLE VIII
CONDITIONS PRECEDENT OF SELLER AND THE SHAREHOLDERS
Except as may be waived in writing by Seller and the Shareholders, the
obligations of Seller and the Shareholders hereunder are subject to fulfillment
at or prior to the Closing Date of each of the following conditions:
Section 8.1. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Purchaser contained herein shall be true and correct in all
respects as of the Closing Date; and Purchaser shall have delivered to Seller
and the Shareholders a certificate of Purchaser's President, dated as of the
Closing Date, to the foregoing effect.
Section 8.2. COVENANTS AND CONDITIONS. Purchaser shall have performed
and complied in all material respects with all covenants and conditions required
by this Agreement to be performed and complied with by it prior to the Closing
Date; and Purchaser shall have delivered to Seller and the Shareholders a
certificate of Purchaser's President, dated as of the Closing Date, to the
foregoing effect.
Section 8.3. PROCEEDINGS. No action, proceeding or order by any court
or governmental body or agency shall have been threatened in writing, asserted,
instituted or entered to restrain or prohibit the carrying out of the
transactions contemplated hereby.
Section 8.4. OFFERING. The Offering shall have been consummated by
Public Company.
Section 8.5. STOCK PURCHASE AGREEMENT. The closing of the transactions
contemplated by the Stock Purchase Agreement shall have occurred.
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Section 8.6. DELIVERIES OF PURCHASER. Seller or the Shareholders, as
the case may be, shall have received all documents, in form satisfactory to them
and their counsel, referred to in Section 9.2 below.
ARTICLE IX
CLOSING DELIVERIES
Section 9.1. DELIVERIES OF SELLER. At the Closing, Seller shall deliver
to Purchaser the following, all of which shall be in a form satisfactory to
counsel to Purchaser:
(a) a xxxx of sale conveying the Personal Property to Purchaser;
(b) an assignment of each lease under which Seller is lessee or lessor
assigning the interest of Seller therein to Purchaser, together with, in the
case of an assignment of a lessee's interest, an owner's policy of title
insurance showing the lessee's interest under the lease to be vested in
Purchaser;
(c) a deed, in a form satisfactory to counsel for Purchaser, conveying
each item of Real Property to Purchaser, together with the standard form owner's
title insurance policy for each item of Real Property insuring Purchaser that
good, valid and indefeasible title to such item of Real Property is vested in
Purchaser, subject only to standard form exclusions;
(d) assignments for all funds of Seller on deposit with banks or other
persons (other than Excluded Assets);
(e) an Assignment Agreement in the form attached as Exhibit B with
respect to all of Seller's rights and obligations under the Commitments (the
"Assignment");
(f) a copy of resolutions of the Board of Directors of Seller
authorizing the execution, delivery and performance of this Agreement and all
related documents and agreements, each certified by the Secretary of Seller as
being true and correct copies of the originals thereof subject to no
modifications or amendments;
(g) the certificates described in Sections 7.1 and 7.2 above;
(h) a certificate, dated within thirty days of the Closing Date, of the
Secretary of State of New York establishing that Seller is in existence, has
paid all franchise taxes and otherwise is in good standing to transact business
in its state of incorporation;
(i) all authorizations, consents, approvals, permits and licenses
referenced in Section 3.5;
(j) an executed three-year Noncompetition Agreement among Purchaser,
Seller and each Shareholder in the form attached as Exhibit C (the
"Noncompetition Agreement"); and
(k) such other instrument or instruments of transfer as shall be
necessary or appropriate, as Purchaser or its counsel shall reasonably request,
to vest in Purchaser good and
17
marketable title to the Assets that are personal property and good and
indefeasible title to the Assets that are real property.
Section 9.2. DELIVERIES OF PURCHASER. At the Closing, Purchaser shall
deliver to Seller:
(a) the Cash Consideration in immediately available funds;
(b) certificates representing the Shares;
(c) the Assignment;
(d) a copy of the resolutions of the Board of Directors of Purchaser
authorizing the execution, delivery and performance of this Agreement and all
related documents and agreements, each certified by Purchaser's Secretary as
being true and correct copies of the originals thereof subject to no
modifications or amendments;
(e) the certificates described in Sections 8.1 and 8.2 above;
(f) a certificate, dated within thirty days of the Closing Date, of the
Secretary of State of Nevada, establishing that Purchaser is in existence, has
paid all state taxes and otherwise is in good standing to transact business in
such state.
ARTICLE X
POST CLOSING MATTERS
Section 10.1. FURTHER INSTRUMENTS OF TRANSFER. Following the Closing,
at the request of Purchaser, Seller and the Shareholders shall deliver any
further instruments of transfer and take all reasonable action as may be
necessary or appropriate to (i) vest in Purchaser good and marketable title to
Assets that are personal property and good and indefeasible title to Assets that
are real property and (ii) transfer to Purchaser all licenses and permits
necessary for the operation of the Assets.
Section 10.2. EMPLOYEE BENEFIT PLAN CLAIMS INCURRED. After the Closing
Date, Seller shall remain liable under its medical and dental plans and
commitments for any claims incurred by its employees or their spouses and
dependents prior to the Closing Date. A claim shall be deemed to have been
incurred upon the occurrence of an injury or the diagnosis of an illness. An
incurred claim shall include any claim or series of claims related to a claim
incurred prior to the Closing Date. Seller shall retain all liability for
continuation coverage under Section 162(k) of the Code.
Section 10.3. EMPLOYEE BENEFIT PLAN TERMINATION. Within 60 days after
the Closing Date, Seller shall terminate any Employee Benefit Plan intended to
be a qualified plan within the meaning of Section 401(a) of the Code. Upon
termination, the rights of each participant in any such plan shall be fully
vested and nonforfeitable. In connection with the termination, Seller shall
undertake to obtain a favorable determination letter from the Internal Revenue
Service with respect to each terminated plan. Seller shall offer to distribute
the accrued benefit and/or account balance of each participant within 60 days
after receipt of a favorable determination letter.
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Section 10.4. SALES TAXES APPLICABLE TO SALES PRIOR TO OR ON THE
CLOSING DATE. Seller shall timely file all sales tax returns with respect to
sales occurring in connection with Seller's business prior to or on the Closing
Date. Seller shall timely pay all sales taxes applicable to the sales reported
on the tax returns referred to above. Seller shall be liable for and shall
indemnify Purchaser against all sales, transfer, use, excise, registration or
other taxes assessed or payable in connection with the transfer of the Assets
from Seller to Purchaser. Seller and Purchaser shall sign, and otherwise shall
cooperate in the preparation and filing with the appropriate governmental
agencies of, any affidavits or other transfer documents that are required in
connection with the transfer of vehicles or trailers that constitute part of the
Assets.
Section 10.5. RESTRICTION ON TRANSFER. The Shares will not be
registered under the Securities Act on the Closing Date and may not be
transferred, sold or otherwise disposed of by the Shareholders except pursuant
to an effective registration statement under the Securities Act or in accordance
with an exemption from the registration requirements of the Securities Act.
Section 10.6. RESTRICTIVE LEGEND. Each certificate representing Shares
shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND ARE
"RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE 144 UNDER THE
ACT, AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF BY THE
HOLDER EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FILED
UNDER THE ACT, AS AMENDED, AND IN COMPLIANCE WITH APPLICABLE SECURITIES
LAWS OF ANY STATE WITH RESPECT THERETO OR IN ACCORDANCE WITH AN OPINION
OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER THAT AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND ALSO MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF BY THE HOLDER WITHOUT COMPLIANCE
WITH THE APPLICABLE SECURITIES AND EXCHANGE COMMISSION RULES AND
REGULATIONS
ARTICLE XI
REMEDIES
Section 11.1. INDEMNIFICATION BY THE SHAREHOLDERS. Subject to the terms
and conditions of this Article, each Shareholder, jointly and severally shall
indemnify, defend and hold Purchaser and Parent, and their respective directors,
officers, agents, attorneys and affiliates harmless from and against all losses,
claims, obligations, demands, assessments, penalties, liabilities, costs,
damages, attorneys' fees and expenses (collectively, "Damages"), asserted
against or incurred by such indemnitees by reason of or resulting from (i) a
breach of any representation, warranty or covenant of the Corporation or
Shareholder contained herein, in any exhibit, schedule, certificate or financial
statement delivered hereunder, or in any agreement executed in connection with
the transactions contemplated hereby; or (ii) the matter identified on Schedule
3.19; provided, however, that no indemnification for Damages under this subpart
(i) of Section 11.1 shall be made until the aggregate amount of such Damages
under subpart (i) of this Section 11.1 exceeds $70,000.
19
Section 11.2. INDEMNIFICATION BY PURCHASER. Subject to the terms and
conditions of this Article, Purchaser shall indemnify, defend and hold the
Corporation and each Shareholder and its or their respective directors,
officers, agents, attorneys and affiliates harmless from and against all Damages
asserted against or incurred by any of such indemnitees by reason of or
resulting from a breach of any representation, warranty or covenant of Purchaser
or Parent contained herein or in any exhibit, schedule or certificate delivered
hereunder, or in any agreement executed in connection with the transactions
contemplated hereby; provided, however, that no indemnification for Damages
under this Section 11.2 shall be made until the aggregate amount of such Damages
exceeds $70,000
Section 11.3. CONDITIONS OF INDEMNIFICATION. The respective obligations
and liabilities of the Shareholders and Purchaser (the "indemnifying party") to
the other (the "party to be indemnified") under Section 11.1 and Section 11.2
with respect to claims resulting from the assertion of liability by third
parties shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid
prejudicing the indemnifying party's position) after receipt of notice of
commencement of any action evidenced by service of process or other legal
pleading, the party to be indemnified shall give the indemnifying party written
notice thereof together with a copy of such claim, process or other legal
pleading, and the indemnifying party shall have the right to undertake the
defense thereof by representatives of its own choosing and at its own expense;
provided that the party to be indemnified may participate in the defense with
counsel of its own choice, the fees and expenses of which counsel shall be paid
by the party to be indemnified unless (i) the indemnifying party has agreed to
pay such fees and expenses, (ii) the indemnifying party has failed to assume the
defense of such action or (iii) the named parties to any such action (including
any impleaded parties) include both the indemnifying party and the party to be
indemnified and the party to be indemnified has been advised by counsel that
there may be one or more legal defenses available to it that are different from
or additional to those available to the indemnifying party (in which case, if
the party to be indemnified informs the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the party to be indemnified, it being understood, however, that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for the party to be indemnified, which firm shall be designated in writing
by the party to be indemnified).
(b) In the event that the indemnifying party, by the 30th day after
receipt of notice of any such claim (or, if earlier, by the 10th day preceding
the day on which an answer or other pleading must be served in order to prevent
judgment by default in favor of the person asserting such claim), does not elect
to defend against such claim, the party to be indemnified will (upon further
notice to the indemnifying party) have the right to undertake the defense,
compromise or settlement of such claim on behalf of and for the account and risk
of the indemnifying party and at the indemnifying party's expense, subject to
the right of the indemnifying party to assume the defense of such claims at any
time prior to settlement, compromise or final determination thereof.
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(c) Notwithstanding the foregoing, the indemnifying party shall not
settle any claim without the consent of the party to be indemnified unless such
settlement involves only the payment of money and the claimant provides to the
party to be indemnified a release from all liability in respect of such claim.
If the settlement of the claim involves more than the payment of money, the
indemnifying party shall not settle the claim without the prior consent of the
party to be indemnified.
(d) The party to be indemnified and the indemnifying party will each
cooperate with all reasonable requests of the other.
Section 11.4. WAIVER. No waiver by any party of any default or breach
by another party of any representation, warranty, covenant or condition
contained in this Agreement, any exhibit or any document, instrument or
certificate contemplated hereby shall be deemed to be a waiver of any subsequent
default or breach by such party of the same or any other representation,
warranty, covenant or condition. No act, delay, omission or course of dealing on
the part of any party in exercising any right, power or remedy under this
Agreement or at law or in equity shall operate as a waiver thereof or otherwise
prejudice any of such party's rights, powers and remedies. All remedies, whether
at law or in equity, shall be cumulative and the election of any one or more
shall not constitute a waiver of the right to pursue other available remedies.
Section 11.5. REMEDIES NOT EXCLUSIVE. The remedies provided in this
Article shall not be exclusive of any other rights or remedies available to one
party against the other, either at law or in equity.
Section 11.6. COSTS, EXPENSES AND LEGAL FEES. Whether or not the
transactions contemplated hereby are consummated, each party hereto shall bear
its own costs and expenses (including attorneys' fees), except that each party
hereto agrees to pay the costs and expenses (including reasonable attorneys'
fees and expenses) incurred by the other parties in successfully (i) enforcing
any of the terms of this Agreement or (ii) proving that another party breached
any of the terms of this Agreement.
Section 11.7. SPECIFIC PERFORMANCE. Seller and the Shareholders
acknowledge that a refusal by Seller and/or the Shareholders to consummate the
transactions contemplated hereby will cause irreparable harm to Purchaser, for
which there may be no adequate remedy at law and for which the ascertainment of
damages would be difficult. Therefore, Purchaser shall be entitled, in addition
to, and without having to prove the inadequacy of, other remedies at law, to
specific performance of this Agreement, as well as injunctive relief (without
being required to post bond or other security).
ARTICLE XII
TERMINATION
Section 12.1. TERMINATION. This Agreement may be terminated:
(a) At any time prior to the Closing Date by mutual agreement of all
parties.
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(b) At any time prior to the Closing Date by Purchaser if any
representation or warranty of Seller or the Shareholders contained in this
Agreement or in any certificate or other document executed and delivered by
Seller or the Shareholders pursuant to this Agreement is or becomes untrue or
breached in any material respect or if Seller or the Shareholders fail to comply
in any material respect with any covenant contained herein, and any such
misrepresentation, noncompliance or breach is not cured, waived or eliminated
within twenty days.
(c) At any time prior to the Closing Date by Seller or the Shareholders
if any representation or warranty of Purchaser contained in this Agreement or in
any certificate or other document executed and delivered by Purchaser pursuant
to this Agreement is or becomes untrue or breached in any material respect or if
Purchaser fails to comply in any material respect with any covenant contained
herein, and any such misrepresentation, noncompliance or breach is not cured,
waived or eliminated within twenty days.
(d) At any time prior to the Closing Date by Purchaser if the
conditions stated in Article VII have not been satisfied by October 31, 2003.
(e) At any time prior to the Closing Date by Seller if the conditions
stated in Article VIII have not been satisfied by October 31, 2003.
In the event this Agreement is terminated pursuant to subparagraph (b), (c), (d)
or (e) above, Purchaser, Seller and the Shareholders shall each be entitled to
pursue, exercise and enforce any and all remedies, rights, powers and privileges
available at law or in equity; provided, however, in the event of a termination
of this Agreement pursuant to subparagraph (c) or (e), Purchaser shall pay
Seller $20,000 as liquidated damages, and Seller and Shareholders shall not be
entitled to any other remedy, rights, powers or privileges at law or in equity.
In the event of a termination of this Agreement under the provisions of this
Article, a party not then in material breach of this Agreement shall stand fully
released and discharged of any and all obligations under this Agreement.
ARTICLE XIII
MISCELLANEOUS
Section 13.1. AMENDMENT. This Agreement may be amended, modified or
supplemented only by an instrument in writing executed by all the parties
hereto.
Section 13.2. ASSIGNMENT. Neither this Agreement nor any right created
hereby or in any agreement entered into in connection with the transactions
contemplated hereby shall be assignable by any party hereto, except by Purchaser
to an affiliate of Purchaser.
Section 13.3. PARTIES IN INTEREST; NO THIRD PARTY BENEFICIARIES. Except
as otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective heirs, legal
representatives, successors and assigns of the parties hereto. Neither this
Agreement nor any other agreement contemplated hereby shall be deemed to confer
upon any person not a party hereto or thereto any rights or remedies hereunder
or thereunder.
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Section 13.4. ENTIRE AGREEMENT. This Agreement (including the Exhibits
attached hereto) and the agreements contemplated hereby constitute the entire
agreement of the parties regarding the subject matter hereof, and supersede all
prior agreements and understandings, both written and oral, among the parties,
or any of them, with respect to the subject matter hereof.
Section 13.5. SEVERABILITY. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under present or future laws effective
during the term hereof, such provision shall be fully severable and this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its severance
herefrom. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as part of this Agreement a
provision as similar in its terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
Section 13.6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
The representations, warranties and covenants contained herein shall survive the
Closing and all statements contained in any certificate, exhibit or other
instrument delivered by or on behalf of Seller or Purchaser pursuant to this
Agreement shall be deemed to have been representations and warranties by Seller
or Purchaser, as the case may be, and, notwithstanding any provision in this
Agreement to the contrary, shall survive the Closing for a period of two (2)
years, except for (i) representations and warranties with respect to any tax or
tax-related matters or any ERISA matters, which shall survive the Closing until
the running of any applicable statutes of limitation and (ii) indemnification
provisions for the violation of any Environmental Law, which shall survive the
Closing and shall continue indefinitely.
Section 13.7. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS (BUT NOT THE RULES GOVERNING
CONFLICTS OF LAWS) OF THE STATE OF TEXAS.
Section 13.8. CAPTIONS. The captions in this Agreement are for
convenience of reference only and shall not limit or otherwise affect any of the
terms or provisions hereof.
Section 13.9. CONFIDENTIALITY; PUBLICITY AND DISCLOSURES. Each party
shall keep this Agreement and its terms confidential, and shall make no press
release or public disclosure, either written or oral, regarding the transactions
contemplated by this Agreement without the prior knowledge and consent of the
other parties hereto; provided that the foregoing shall not prohibit any
disclosure (i) by press release, filing or otherwise that is required by federal
securities laws or the rules of any stock exchange or market, (ii) to attorneys,
accountants, investment bankers or other agents of the parties assisting the
parties in connection with the transactions contemplated by this Agreement and
(iii) by Purchaser in connection with obtaining financing for the transactions
contemplated by this Agreement and conducting an examination of the operations
and assets of Seller.
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Section 13.10. NOTICE. Any notice or communication hereunder or in any
agreement entered into in connection with the transactions contemplated hereby
must be in writing and given by depositing the same in the United States mail,
addressed to the party to be notified, postage prepaid and registered or
certified with return receipt requested, or by delivering the same in person.
Such notice shall be deemed received on the date on which it is hand-delivered
or on the third business day following the date on which it is so mailed. For
purposes of notice, the addresses of the parties shall be:
If to the Corporation or Finger Lake International, Inc.
Shareholder: X.X. Xxx 000
0 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxx, Esq.
00 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
If to Purchaser: Boundless Motor Sports Racing, Inc.
0000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
Attention: Xxx Xxxx, President
Facsimile: (000) 000-0000
With a copy to: Xxxxxxx Xxxxxx L.L.P.
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Any party may change its address for notice by written notice given to the other
parties in accordance with this Section.
Section 13.11. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
EXECUTED as of the date first above written.
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BOUNDLESS MOTOR SPORTS RACING, INC.
By:
-------------------------------------
Xxx Xxxx, President
FINGER LAKE INTERNATIONAL, INC.
By:
-------------------------------------
Its:
------------------------------------
----------------------------------------
Xxxxx Xxxxxxxx
----------------------------------------
Xxxxx XxXxxxxx
----------------------------------------
Xxxx Xxxxxx
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EXHIBIT A
DEFINITIONS
"ASSETS" shall mean, with respect to Seller, all of the business,
properties and assets (real and personal, tangible and intangible) of Seller of
every kind and wherever situated that are owned by Seller or in which it has any
right or interest (including without limitation and to the extent owned, its
business as a going concern, its goodwill, franchises and all right, title and
interest in and to the use of its corporate name and any derivatives or
combinations thereof; its trade-names, trademarks, trademark registrations and
trademark applications, service marks, service xxxx registrations and service
xxxx applications, copyrights, copyright registrations and copyright
applications, patents, patent registrations and patent applications, processes,
formulae, proprietary and technical information, computer software, know-how,
permits, licenses, trade secrets, inventions and royalties (including all rights
to xxx for past infringement of any of the foregoing); its lands, leaseholds and
other interests in land; its inventory of finished goods, work-in-process and
raw materials, backlog, equipment and supplies; its cash, money on deposit with
banks and others, certificates of deposit, commercial paper, stocks, bonds and
other investments; its accounts receivable; rights under its insurance policies
and warranties; its causes of action, judgments, claims and demands of whatever
nature; its deferred charges, advance payments, prepaid items, claims for
refunds, rights of offset and credits of all kinds; all credit balances of or
inuring to Seller under any state unemployment compensation plan or fund; its
rights under restrictive covenants and obligations of present and former
officers and employees and of individuals and corporations; its rights under
partnership or joint venture agreements or arrangements; its rights under all
agreements assumed by Purchaser; and its files, papers and records relating to
the aforesaid business, properties and assets) other than the Excluded Assets.
"CASH CONSIDERATION" shall have the meaning set forth in Section
2.2(a).
"CLOSING" shall mean the closing of the transactions contemplated by
this Agreement, which shall occur at 10:00 a.m., local time, on the Closing Date
in the offices of Xxxxxxx Xxxxxx L.L.P., Suite 6000, 000 Xxxx Xxxxxx, Xxxxxx,
Xxxxx 00000, or at such other time and place as shall be mutually agreed in
writing by the parties hereto.
"CLOSING DATE" shall mean the date on which the Closing occurs.
"CODE" shall have the meaning set forth in Section 2.2(b) above.
"COMMITMENTS" shall have the meaning set forth in Section 3.12(a).
"COMPENSATION PLANS" shall have the meaning set forth in Section
3.8(b).
"CONTROLLED GROUP" shall have the meaning set forth in Section 3.9(b).
"DAMAGES" shall have the meaning set forth in Section 11.1.
"EMPLOYEE BENEFIT PLAN" shall have the meaning set forth in Section
3.9(a).
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"EMPLOYEE POLICIES AND PROCEDURES" shall have the meaning set forth in
Section 3.8(d).
"EMPLOYMENT AGREEMENTS" shall have the meaning set forth in Section
3.8(c).
"ENVIRONMENTAL LAWS" shall have the meaning set forth in Section 3.29.
"EXCLUDED ASSETS" shall mean the following assets and properties: (i)
the consideration delivered to Seller pursuant to this Agreement for the Assets
sold, transferred, assigned, conveyed and delivered pursuant hereto; (ii)
Seller's right to enforce Purchaser's representations, warranties and covenants
hereunder and the obligations of Purchaser to pay, perform or discharge the
liabilities of Seller assumed by Purchaser pursuant to this Agreement and all
other rights, including rights of indemnification, of Seller under this
Agreement or any instrument executed pursuant hereto; (iii) Seller's
[CERTIFICATE OR ARTICLES] of Incorporation and all amendments thereto, Bylaws,
corporate seal, minute books, stock books and other corporate records having
exclusively to do with the corporate organization and capitalization of Seller;
(iv) Seller's books of account, but Seller agrees that Purchaser shall have the
right at Purchaser's request to inspect such books and make copies thereof; (v)
Seller's rights to claims for refunds of taxes which cannot be assigned by law;
(vi) Shares of the capital stock of Seller; and (vii) Unclaimed dividends and
other money and property that are held in trust by Seller or subject to escheat.
"FINANCIAL STATEMENTS" shall have the meaning set forth in Section 3.6.
"FIXED ASSETS" shall have the meaning set forth in Section 3.22.
"OFFERING" shall mean an offering by Parent of at least $5 million of
equity securities of Parent in either a private placement or a public offering.
"OFFERING PRICE" shall mean the per share price paid by investors in
the Offering.
"PARENT STOCK" shall mean the common stock of Parent.
"PERSONAL PROPERTY" shall have the meaning set forth in Section
3.11(b).
"PROPRIETARY RIGHTS" shall have the meaning set forth in Section
3.15(a)
"PURCHASE PRICE" shall have the meaning set forth in Section 2.2(a).
"REAL PROPERTY" shall have the meaning set forth in Section 3.11(a).
"SHARES" shall have the meaning set forth in Section 2.2(a).
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