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Exhibit 2.1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is entered into as of
August 18, 1997 by and between DSSI Corporation, a Pennsylvania corporation
(the "Company"), and Xxxxxxx X. Xxxxxxxxxx ("MJB") and Xxxx Xxxxxxxxxx
("Xxxx"). MJB and Xxxx are collectively referred to herein as the "Purchaser".
BACKGROUND
Purchaser, on the terms and subject to the conditions of this
Agreement, desires to purchase from the Company, and the Company desires to
issue and sell to Purchaser, an aggregate of 10,000,000 shares of the Company's
common stock, $.01 par value per share (the "Company Common Stock"), for an
aggregate purchase price of $2,000,000.
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 Company and
Purchaser hereby agree as follows:
ARTICLE I
THE PURCHASE AND SALE OF THE SHARES
1.01 Purchase and Sale of the Shares. At the Closing (as defined
below), and subject to the terms and conditions set forth in this Agreement,
Purchaser will purchase from the Company, and the Company will issue and sell
to Purchaser, 10,000,000 shares of the Company Common Stock (the "Shares"),
free and clear of any liens, encumbrances, pledges, restrictive agreements, or
adverse claims of any nature. The Shares will be purchased by MJB and Xxxx in
accordance with Schedule 1.01 hereto.
1.02 Purchase Price. The aggregate purchase price for the Shares
will be $2,000,000 (the "Purchase Price") in immediately available funds.
ARTICLE II
THE CLOSING
2.01 Closing; Closing Date. Unless this Agreement has been
terminated pursuant to Section 7.01, and subject to the satisfaction or waiver
of the conditions set forth in Article V, the issuance and sale of the Shares
contemplated by this Agreement (the "Closing") will take place at the offices
of the Company on September 2, 1997 (provided, that the conditions set forth in
Article V have been satisfied or waived at or prior to such time) or as soon as
practicable (but not later than five business days) after satisfaction of the
conditions set forth in Article V, or at such time, date, and place as the
Company and Purchaser agree. The date on which the Closing takes place is
referred to as the "Closing Date".
2.02 Deliveries by Purchaser. Purchaser will deliver or cause to
be delivered the following at Closing, and it will be a condition to the
Company's obligations under this Agreement that all of the following be
delivered at Closing:
(a) A wire transfer for the Purchase Price in immediately
available funds to the account established for the benefit of
the Company, titled "DSSI Corporation d/b/a Collegiate Pacific
Inc.", at BankOne Texas, N.A. in Dallas, Texas.
(b) Such other documents and instruments as may be necessary to
carry out the transactions contemplated by this Agreement.
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2.03 Deliveries by the Company. The Company will deliver or cause
to be delivered the following at Closing, and it will be a condition to
Purchaser's obligations under this Agreement that all of the following be
delivered at Closing:
(a) A certificate or certificates representing the Shares, in such
denominations and registered in such names as Purchaser shall
request at least two days prior to the Closing Date.
(b) Opinion of counsel for the Company, substantially in the form
of Exhibit A.
(c) A certificate of the secretary of the Company, substantially
in the form of Exhibit B.
(d) A closing certificate executed by an officer of the Company,
substantially in the form of Exhibit C.
(e) Such other documents and instruments as may be necessary to
carry out the transactions contemplated by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Purchaser that the
statements in this Article III are true and correct as of the date of this
Agreement.
3.01 Organization, Good Standing, and Qualification. The Company
is a corporation duly organized, validly existing, and in good standing under
the laws of the Commonwealth of Pennsylvania, has all requisite corporate power
and authority to own, lease, and operate its properties and to carry on its
business as presently conducted. The Company is qualified to do business and
is in good standing in each jurisdiction in which the failure to so qualify
would have a Material Adverse Effect. As used in this Agreement, "Material
Adverse Effect" means a material adverse effect on, or a material adverse
change in, or a group of such effects on or changes in, the business,
operations, financial condition, results of operations, assets, or liabilities
of the Company.
3.02 Authorization. The Company has all requisite 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 by the Company and the consummation by
the Company of the transactions contemplated hereby have been duly authorized
by all necessary corporate action, and no other corporate proceedings on the
part of the Company are required to authorize the transactions contemplated
hereby. This Agreement constitutes a legal, valid, and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except as may be limited by (a) applicable bankruptcy, insolvency,
reorganization, or other laws of general application relating to or affecting
the enforcement of creditors' rights generally and (b) the effect of rules of
law governing the availability of equitable remedies.
3.03 Capitalization.
(a) The authorized capital stock of the Company consists of (i)
20,000,000 shares of the Company Common Stock, of which
4,446,017 are issued and outstanding, and (ii) 2,000 shares of
Class "A" Preferred Stock, $.01 par value per share, none of
which are issued and outstanding. At Closing, in addition to
the issuance and sale of the Shares to Purchaser, the Company
will issue and sell 1,500,000 shares of the Company Common
Stock, at a purchase price of $.20 per share, to persons other
than Purchaser.
The Company has reserved 500,000 shares of the Company Common
Stock for issuance under the Company's 1994 Stock Option Plan
under which options to purchase 345,000 shares are
outstanding. The Company has issued and outstanding warrants
to purchase an aggregate of 408,998 shares of the Company
Common Stock. Except for shares reserved for issuance under
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the 1994 Stock Option Plan and for the outstanding warrants,
no other 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 subject to) any preemptive or similar rights.
(b) Except as provided in this Agreement or as set forth in
Schedule 3.03(b), there are no options, warrants, or other
rights, agreements, or commitments of any nature 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. Except as
set forth in Schedule 3.03(b), there are no agreements,
arrangements, or commitments of any nature pursuant to which
any person or entity is or may be entitled to receive any
payment based on the revenues or earnings, or calculated in
accordance therewith, of the Company.
(c) There are no obligations, contingent or otherwise, of the
Company to (i) repurchase, redeem, or otherwise acquire any
shares of the Company Common Stock or other capital stock or
securities of the Company; or (ii) provide material funds to,
or make any material investment in (in the form of a loan,
capital contribution, or otherwise), or provide any guarantee
with respect to the obligations of any person or entity.
3.04 Subsidiaries. The Company does not presently own or control,
directly or indirectly, any interest in any other corporation, partnership,
trust, joint venture, association, or other entity.
3.05 No Conflict. The execution, delivery, and performance of this
Agreement, and the consummation by the Company of the transactions contemplated
hereby, do not and will not (i) contravene or conflict with the Articles of
Incorporation or Bylaws of the Company; (ii) constitute a violation of any
provision of any federal, state, local, or foreign law binding upon or
applicable to the Company; or (iii) constitute a default or require any consent
under, give rise to any right of termination, cancellation or acceleration of,
or to a loss of any benefit to which the Company is entitled under, or result
in the creation or imposition of any lien, claim, or encumbrance on any assets
of the Company under, any contract to which the Company is a party or any
permit, license, or similar right relating to the Company or by which the
Company may be bound or affected.
3.06 Valid Issuance of Stock. The Shares, when issued, sold, and
delivered in accordance with the terms of this Agreement for the consideration
provided for herein, will be duly and validly issued, fully paid and
nonassessable.
3.07 Governmental Consents. Except as provided in Section 5.01(f)
and Section 5.01(g), no consent, approval, order, or authorization of, or
registration, qualification, designation, declaration, or filing with, any
federal, state, or local governmental authority on the part of the Company is
required in connection with the consummation of the transactions contemplated
by this Agreement.
3.08 Litigation. There is no claim, action, suit, litigation,
proceeding, arbitration, or investigation of any kind, at law or in equity
(including actions or proceedings seeking injunctive relief), pending or, to
the knowledge of the Company, threatened against the Company or any properties
or rights of the Company, or relating to this Agreement or the transactions
contemplated by this Agreement, including, without limitation, any claims for
indemnification raised by Casco Standards, Inc. against the Company pursuant to
the Purchase and Sale Agreement dated March 14, 1997. The Company is not
subject to any continuing order of, consent decree, settlement agreement, or
other similar written agreement with, or continuing investigation by, any
governmental entity, or any judgment, order, writ, injunction, decree, or award
of any governmental entity or arbitrator.
3.09 Permits; Compliance. The Company is in possession of all
franchises, grants, authorizations, licenses, permits, easements, variances,
exemptions, consents, certificates, approvals, and orders necessary to own,
lease, and operate its properties and to carry on its business as it is now
being conducted (collectively, the
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"Company Permits"), and there is no action, proceeding, or investigation
pending or threatened regarding suspension or cancellation of any of the
Company Permits.
3.10 Compliance with Law and Charter Documents. The Company is not
in violation or default of any provisions of its Articles of Incorporation or
Bylaws, both as amended to date. The Company has complied and is in compliance
in all material respects with all applicable statutes, laws, regulations, and
executive orders of the United States of America and all states, foreign
counties, and over governmental bodies and agencies having jurisdiction over
the Company's business or properties.
3.11 Registration Rights. The Company is not currently subject to
any grant or agreement to grant to any person or entity any rights (including
piggyback registration rights) to have any securities of the Company registered
with the United States Securities and Exchange Commission ("SEC") or any other
governmental authority.
3.12 Title to Property and Assets. Except as set forth on Schedule
3.12, the Company does not own any real property and does not have any assets.
With respect to the property and assets it leases, the Company is, except as
set forth in Schedule 3.12, in compliance with such leases in all material
respects.
3.13 Material Contracts. The Company has no (a) agreement,
contract, or other arrangement, whether written or oral, providing for the
payment by the Company of $25,000 or more or (b) other agreement, contract, or
other arrangement that is material to the business of the Company.
3.14 SEC Documents.
(a) The Company has furnished to Purchaser copies of the Company's
Annual Report on Form 10-KSB for the year ended June 30, 1996,
the Company's Quarterly Report on Form 10-QSB for the quarter
ended March 31, 1997, and the Company's Proxy Statement for
the Annual Meeting of the Shareholders dated May 23, 1997
(collectively, the "SEC Documents"). Each of the SEC
Documents, as of the respective date thereof, did not, and
each of the registration statements, reports, and proxy
statements filed by the Company with the SEC after the date
thereof and prior to the Closing will not, as of the date
thereof, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements made therein, in light of the circumstances under
which they are made, not misleading. The Company is not a
party to any material contract, agreement, or other
arrangement which was required to have been filed as an
exhibit to the SEC Documents that is not so filed.
(b) The SEC Documents include the Company's audited financial
statements (the "Audited Financial Statements") for the year
ended June 30, 1996 and its unaudited financial statements as
of and for the nine-month period ended March 31, 1997 (the
"Balance Sheet Date"). Since the Balance Sheet Date, the
Company has duly filed with the SEC all registration
statements, reports, and proxy statements required to be filed
by it under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the Securities Act of 1933, as
amended (the "Securities Act"). The audited and unaudited
financial statements of the Company included in the SEC
Documents filed prior to the date hereof fairly present, in
conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis (except as may be
indicated in the notes thereto), the financial position of the
Company as at the date thereof and the results of their
operations and cash flows for the periods then ended (subject
to normal year and audit adjustments in the case of unaudited
interim financial statements).
(c) Except as and to the extent reflected or reserved against in
the Company's unaudited financial statements for the
nine-month period ending March 31, 1997 (including the notes
thereto), the Company has no liabilities (whether accrued or
unaccrued, liquidated or unliquidated, secured or unsecured,
joint or several, due or to become due, vested or unvested,
executory, determined or
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determinable) other than: (i) liabilities incurred in the
ordinary course of business since the Balance Sheet Date, and
(ii) liabilities with respect to agreements listed in Schedule
3.14(c).
3.15 Employees; Employee Benefits.
(a) The Company has no employees other than those listed on
Schedule 3.15(a). The Company has not received any notice,
and has no knowledge of any threatened labor or civil rights
dispute, controversy, or grievance or any other unfair labor
practice proceeding or breach of contract claim or action with
respect to claims of, or obligations to, any present or former
employee or group of employees of the Company.
(b) Except as set forth on Schedule 3.15(b), the Company does not
maintain, sponsor, contribute to, or provide any benefits
under (i) any "employee benefit plan" (as defined in the
Employee Retirement Income Security Act of 1974, as amended);
(ii) any plan or policy providing for any "fringe benefits";
(iii) any bonus, incentive, compensation, deferred
compensation, profit sharing, stock, severance, retirement,
health, life, disability, group insurance, employment, stock
option, stock purchase, stock appreciation right, supplemental
unemployment, layoff, consulting, or other similar plan; or
(iv) any agreement, policy, or understanding (whether written
or oral, qualified or nonqualified, currently effective or
terminated) ((i) through (iv) are collectively referred to as
"Employee Plans"). There is no claim pending arising out of
or related to any Employee Plan by any person or entity
(including any governmental entity) against the Company nor is
any such claim threatened. The Company has no continuing
liability or other obligations arising under any previously
terminated or transferred Employee Plans.
3.16 Tax Matters.
(a) The Company has filed on a timely basis all Tax Returns
required to have been filed by it and has paid on a timely
basis all Taxes required to be shown thereon as due. All such
Tax Returns are true, complete, and correct in all material
respects. No director, officer, or employee of the Company
having responsibility for Tax matters has reason to believe
that any Taxing authority has valid grounds to claim or assess
any additional Tax with respect to the Company in excess of
the amounts shown in the financial statements delivered to
Purchaser for the periods covered thereby. As used in this
Agreement, (l) "Taxes" means (x) all federal, state, local,
foreign, and other net income, gross income, gross receipts,
sales, use, ad valorem, value added, intangible, unitary,
capital gain, transfer, franchise, profits, license, lease,
service, service use, withholding, backup withholding,
payroll, employment, estimated, excise, severance, stamp,
occupation, premium, property, prohibited transactions,
windfall or excess profits, customs, duties or other taxes,
fees, assessments or charges of any kind whatsoever together
with any interest and any penalties, additions to tax or
additional amounts with respect thereto, (y) any liability for
payment of amounts described in clause (x) whether as a result
of transferee liability, of being a member of an affiliated,
consolidated, combined, or unitary group for any period, or
otherwise through operation of law, and (z) any liability for
the payment of amounts described in clauses (x) or (y) as a
result of any tax sharing, tax indemnity or tax allocation
agreement or any other express or implied agreement to
indemnify any other person for Taxes; and the term "Tax" means
any one of the foregoing Taxes; and (2) "Tax Returns" means
all returns, reports, forms, or other information required to
be filed with respect to any Tax.
(b) With respect to all amounts in respect of Taxes imposed upon
the Company or for which the Company is or could be liable,
whether to Taxing authorities (as, for example, under law) or
to other persons or entities (as, for example, under tax
allocation agreements), and with respect to all taxable
periods or portions of periods ending on or before the Closing
Date, all applicable Tax laws and agreements have been fully
complied with, and all such amounts required to be paid by the
Company to taxing authorities or others have been paid.
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(c) The Company has not received notice that the Internal Revenue
Service or any other Taxing authority has asserted against the
Company any deficiency or claim for additional Taxes in
connection with any Tax Return, and no issues have been raised
(and are currently pending) by any taxing authority in
connection with any Tax Return. The Company has not received
notice that it is or may be subject to Tax in a jurisdiction
in which it has not filed or does not currently file Tax
Returns.
3.17 Indebtedness. The Company has no outstanding indebtedness
that the Company has directly or indirectly created, incurred, assumed, or
guaranteed.
3.18 Environmental Matters.
(a) During the period that the Company has leased or owned its
properties or owned or operated any facilities, there have
been no disposals, releases, or threatened releases of
Hazardous Materials (as defined below) on, from, or under such
properties or facilities in violation of applicable law. The
Company has no knowledge of any presence, disposals, releases,
or threatened releases of Hazardous Materials on, from, or
under any of such properties or facilities, which may have
occurred prior to the Company having taken possession of any
of such properties or facilities in violation of applicable
law. For purposes of this Agreement, the terms "disposal",
"release", and "threatened release" shall have the definitions
assigned thereto by the Comprehensive Environmental Response,
compensation and Liability Act of 1980, 42 U.S.C. Section 9601
et seq., as amended ("CERCLA"). For the purposes of this
Section 3.17, "Hazardous Materials" shall mean any hazardous
or toxic substance, material, or waste which is or becomes
prior to the Closing regulated under, or defined as a
"hazardous substance", "pollutant", "contaminant", "toxic
chemical", "hazardous material", "toxic substance", or
"hazardous chemical" under (1) CERCLA; (2) the Emergency
Planning and Community Right-to-Know Act, 42 U.S.C. Section
11001 et seq.; (3) the Hazardous Materials Transportation Act,
49 U.S.C. Section 1801, et seq.; (4) the Toxic Substances
Control Act, 15 U.S.C. Section 2601 et seq.; (5) the
Occupational Safety and Health Act of 1970, 29 U.S.C. Section
651 et seq.; or (6) regulations promulgated under any of the
above statutes.
(b) None of the Company's properties or facilities is in violation
of any federal, state, or local law, ordinance, regulation, or
order relating to industrial hygiene or to the environmental
conditions on, under, or about such properties or facilities,
including, but not limited to, soil and ground water
conditions. During the time that the Company has owned or
leased its properties and facilities, neither the Company nor,
to the Company's knowledge, any third party, has used,
generated, manufactured, or stored on, under, or about such
properties or facilities or transported to or from such
properties or facilities any Hazardous Materials in violation
of applicable law.
(c) During the time that the Company has owned or leased its
properties and facilities, there has been no litigation
brought or threatened against the Company, or any settlement
reached by the Company with, any party or parties alleging the
presence, disposal, release, or threatened release of any
Hazardous Materials on, from, or under any of such properties
or facilities.
(d) During the period that the Company has owned or leased its
properties and facilities, no Hazardous Materials have been
transported from such properties or facilities to any site or
facility now listed on the National Priorities List, at 40
C.F.R. Part 300, or any list with a similar scope or purpose
published by any state authority in violation of applicable
law.
3.19 Full Disclosure. The representations and warranties contained
in this Agreement, as modified or qualified by the Schedules, are true and
complete in all material respects and do not omit to state any materiel fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to the Company that the
statements in this Article IV are true and correct as of the date of this
Agreement.
4.01 Investment Intent. Purchaser is acquiring the Shares for his
own account for investment purposes and not with a view to the distribution
thereof within the meaning of the Securities Act.
4.02 Restricted Securities. Purchaser understands that the Shares
constitute "restricted securities" within the meaning of Rule 144 under the
Securities Act and may not be sold, pledged, or otherwise disposed of unless
they are subsequently registered under the Securities Act and applicable state
securities laws or unless an exemption from registration is available.
4.03 Accredited Investor. Purchaser is an "accredited investor"
within the meaning of Rule 501 under the Securities Act.
4.04 Restrictive Legend. Purchaser understands that each
certificate representing the Shares shall be stamped or otherwise imprinted
with a legend substantially in the following form (in addition to any legend
that may now or hereafter be required by applicable state law):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF ANY STATE. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED
OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE
ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL TO THE
ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN
COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
4.05 No Non-Competition Obligation. Purchaser is not a party to
any agreement, whether with Sports Supply Group, Inc. or any other entity,
pursuant to which he has agreed not to compete with such entity or pursuant to
which the transactions contemplated by this Agreement would be prohibited or
limited in any material manner.
ARTICLE V
CLOSING CONDITIONS
5.01 Conditions to Purchaser's Obligations at Closing. The
obligations of Purchaser to purchase the Shares and the other transactions
contemplated by this Agreement are subject to the fulfillment or waiver, on or
before the Closing, of each of the following conditions:
(a) Each of the representations and warranties of the Company
contained in this Agreement must be true and correct in all
material respects on and as of the Closing Date as though made
on and as of the Closing Date.
(b) The Company must have performed and complied in all material
respects with all agreements, obligations, and conditions
contained in this Agreement that are required to be performed
or complied with by it on or before the Closing and will have
obtained all approvals, consents, and qualifications necessary
to complete the purchase and sale of the Shares.
(c) Each of the required items set forth in Section 2.03 must have
been executed and delivered.
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(d) The Company's Board of Directors shall have taken such actions
so that, immediately after the Closing, the Board of Directors
shall consist of one designee of the existing Board of
Directors with the remaining members to consist of persons
designated by Purchaser (which shall in any event never be
less than two members of the Company's Board of Directors).
(e) The Company's Board of Directors must have taken all steps
required by the Pennsylvania Business Corporation Law to
propose and adopt an amendment to the Company's Articles of
Incorporation changing the name of the Company from "DSSI
Corporation" to "Collegiate Pacific Inc.", which shall be
conditioned upon and effective at Closing.
(f) The Company shall have complied with its obligations under
Section 14(f) of the Exchange Act.
(g) The Company must have taken all steps required by applicable
law, including the filing of a proxy statement with the SEC,
to seek shareholder approval of this Agreement and the
transactions contemplated hereby.
(h) The Company must have delivered to Purchaser audited financial
statements for the fiscal year ended June 30, 1997, including
balance sheets and statements of income, cash flow, and
changes in stockholders' equity for such period, prepared in
accordance with GAAP applied on a consistent basis throughout
such period, the results of which are not materially adverse
as compared with the results reported in the Audited Financial
Statements and the unaudited financial statements of the
Company as of and for the nine-month period ended March 31,
1997.
(i) The Company must have terminated all consulting, employment,
or other agreements, contracts, or understandings between the
Company and any person, including any agreement, whether
written or oral, between the Company and Xxxxxxx X. Xxxxxxx,
except that payments to, or on behalf of, Xx. Xxxxxxx may be
phased out during the thirty (30) day period following the
Closing Date as also provided in Section 6.06.
5.02 Conditions to the Company's Obligations at Closing. The
obligations of the Company to issue and sell the Shares and the other
transactions contemplated by this Agreement are subject to the fulfillment or
waiver, on or before the Closing, of each of the following conditions:
(a) Each of the representations and warranties of Purchaser
contained in this Agreement must be true and correct in all
material respects on and as of the Closing Date as though made
on and as of the Closing Date.
(b) Purchaser must have performed and complied in all material
respects with all agreements, obligations, and conditions
contained in this Agreement that are required to be performed
or complied with by it on or before the Closing and will have
obtained all approvals, consents, and qualifications necessary
to complete the purchase and sale of the Shares.
(c) Each of the required items set forth in Section 2.02 must have
been executed and delivered.
ARTICLE VI
COVENANTS
6.01 Affirmative Covenants of the Company. The Company hereby
covenants and agrees that, prior to the Closing, the Company, except as
otherwise contemplated by this Agreement, will (a) not purchase any assets in
excess of $10,000 or incur any liabilities in excess of $2,000 per month,
except as provided in Schedule 6.01(a); (b) not take or permit any action that
would cause the conditions on the obligations of the parties to effect the
transactions contemplated by this Agreement not to be fulfilled, including,
without limitation, by taking or causing to be taken any action that would
cause the representations and warranties made by the Company in this
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Agreement not to be true and correct; (c) not increase the compensation payable
to or to become payable to any stockholder, director, or officer of the
Company; (d) not declare or pay any dividend on, or make any other distribution
in respect of, outstanding shares of capital stock; (e) effect any
reorganization or recapitalization; (f) split, combine, or reclassify any of
its capital stock or issue or authorize or propose the issuance of any other
securities in respect of, in lieu of or in substitution for, shares of its
capital stock; (g) not issue, deliver, award, grant, or sell, or authorize or
propose the issuance, delivery, award, grant, or sale (including the grant of
any security interests, liens, claims, pledges, limitations in voting rights,
charges, or other encumbrances) of, any shares of any class of its capital
stock or other securities (including shares held in treasury), any securities
convertible into or exercisable or exchangeable for any such shares or other
securities, or any rights, warrants, or options to acquire any such shares or
other securities; (h) not acquire or agree to acquire, by merging or
consolidating with, by purchasing an equity interest in or a portion of the
assets of, or by any other manner, any business or any division thereof, or
otherwise acquire or agree to acquire any assets of any other entity; (i) not
adopt or propose to adopt any amendments to its Articles of Incorporation or
bylaws or similar organizational documents; (j) incur any obligation for
borrowed money indebtedness, whether or not evidenced by a note, bond,
debenture, or similar instrument; and (k) take all reasonable steps to cause to
be fulfilled the conditions precedent to Purchaser's obligations to consummate
the transactions contemplated by this Agreement that are dependent on the
actions of the Company.
6.02 Access and Information. The Company has caused and will,
until the Closing Date, continue to cause Purchaser to have reasonable access
to the Company's directors, officers, employees, agents, assets, and properties
and all relevant books, records, and documents of or relating to the business
and assets of the Company during normal business hours and will furnish to
Purchaser such information, financial records, and other documents relating to
the Company and its operations and business as Purchaser may reasonably
request.
6.03 Supplemental Disclosure. The Company will promptly supplement
or amend each of the Schedules with respect to any matter that arises or is
discovered after the date of this Agreement that, if existing or known at the
date of this Agreement, would have been required to be set forth or listed in
the Disclosure Schedule; provided that, for purposes of determining the rights
and obligations of the parties under this Agreement (other than the obligations
of the Company under this Section 6.03), any such supplemental or amended
disclosure will not be deemed to have been disclosed to Purchaser unless
Purchaser otherwise expressly consents in writing.
6.04 Publicity. Purchaser and the Company will cooperate with each
other in the development and distribution of all news releases and other public
disclosures relating to the transactions contemplated by this Agreement.
6.05 Reservation of Common Stock. Prior to Closing, the Company
will take all actions required by the laws of the Commonwealth of Pennsylvania
and the Company's Articles of Incorporation and Bylaws to reserve 400,000
shares of the Company Common Stock to be issued at Purchaser's discretion to
members of the Company's Board of Directors designated by Purchaser.
Section 6.06 Termination of COBRA Coverage with U.S. Healthcare.
Within thirty (30) days of Closing, the Company will take all steps required by
applicable law to terminate its agreement with U.S. Healthcare for the
provision of COBRA benefits to Company employees.
Section 6.07 Delivery of Proxy. Simultaneous with the execution
of this Agreement, the Company shall deliver the proxy from persons
representing a majority of the issued and outstanding shares of Company Common
Stock approving this Agreement and the transactions contemplated hereby,
including the proposed change in Company operations by Purchaser.
Section 6.08 Delivery of Information. Purchaser hereby covenants
and agrees to provide such information as may be reasonably requested by the
Company and as required by applicable law to enable the Company to fulfill its
obligations as set forth in Section 5.01(g).
10
ARTICLE VII
MISCELLANEOUS
7.01. Termination. This Agreement and the transactions contemplated
by this Agreement may be terminated and abandoned (a) at any time prior to the
Closing by mutual written consent of the Company and Purchaser; or (b) by
either Purchaser, on the one hand, or the Company, on the other hand, if a
condition to performance by the terminating party or parties under this
Agreement has not been satisfied or waived prior to September 30, 1997.
Notwithstanding the foregoing clause (b), (i) Purchaser may not terminate this
Agreement if the event giving rise to its termination right results from
Purchaser's willful failure to perform or observe any of its covenants or
agreements set forth in this Agreement or if Purchaser is, at such time, in
breach of this Agreement, and (ii) the Company may not terminate this Agreement
if the event giving rise to its termination right results from the willful
failure of the Company to perform or observe any of its covenants or agreements
set forth in this Agreement or if the Company is, at such time, in breach of
this Agreement. Upon termination of this Agreement pursuant to Section 7.01,
this Agreement (except for Section 7.02, Section 7.04, and Section 7.10) will
become void, there will be no liability on the part of the Purchaser, on the
one hand, or the Company, on the other hand, to the other and all rights and
obligations of each party to this Agreement will cease, except that nothing in
this Agreement will relieve any party of any liability for any willful breach
of such party's representations, warranties, covenants, or agreements contained
in this Agreement.
7.02 Notices. All notices that are required or may be given
pursuant to this Agreement must be in writing and delivered personally, by a
recognized courier service, by a recognized overnight delivery service, by
telecopy, or by registered or certified mail, postage prepaid, to the parties
at the following addresses (or to the attention of such other person or such
other address as any party may provide to the other parties by notice in
accordance with this Section 8.02):
If to Purchaser:
Xxxxxxx X. Xxxxxxxxxx
00000 Xxxxxx Xxxxx
Xxxxxxx Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
with a copy to:
Xxxx X. Xxxxxxxx
Xxxxxx & Xxxx, L.L.P.
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
If to the Company:
DSSI Corporation
X.X. Xxx 0000
Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx .
Telecopy: (000) 000-0000
11
with a copy to:
Xxxxxx X. Xxxxxx
Xxxxxxx & Masyr, LLP
000 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Any such notice or other communication will be deemed to have been given and
received (whether actually received or not) on the day it is personally
delivered or delivered by courier or overnight delivery service or sent by
telecopy or, if mailed, when actually received.
7.03 Survival of Representations and Warranties. All
representations and warranties made in or pursuant to this Agreement will
survive the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby and continue for a period ending on the
third anniversary of this Agreement. All statements contained in any schedule,
certificate, or other writing delivered in connection with this Agreement or
the transactions contemplated by this Agreement will constitute representations
and warranties under this Agreement. 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.
7.04 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.
7.05 Further Assurances. Each party agrees to execute any and all
documents and to perform such other acts as may be reasonably necessary or
expedient to further the purposes of this Agreement and the transactions
contemplated by this Agreement.
7.06 No Brokers. Each party to this Agreement represents to the
other party that it has not incurred and will not incur any liability for
brokerage fees or agents' commissions in connection with this Agreement or the
transactions contemplated by this Agreement, and agrees that it will indemnify
and hold harmless the other party against any claim for brokerage and finders'
fees or agents' commissions in connection with the negotiation or consummation
of the transactions contemplated by this Agreement.
7.07 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.
7.08 Assignment. Neither this Agreement nor any of the rights,
interests, or obligations under this Agreement will be assigned or delegated by
the Company or Purchaser, without the prior written consent of the other party;
provided, however, that Purchaser may assign its rights, but not the
liabilities, arising under this Agreement to an affiliate of Purchaser without
the prior written consent of the Company. This Agreement is not intended to
confer any rights or benefits to any person or entity other than the parties to
this Agreement.
7.09 Entire Agreement. This Agreement and the related documents
contained as Exhibits and Schedules to this Agreement or expressly contemplated
by this Agreement contain the entire understanding of the parties relating to
the subject matter hereof and supersede 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. The Exhibits and
Schedules to this Agreement are hereby incorporated by reference into and made
a part of this Agreement for all purposes.
12
7.10 GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS,
WITHOUT GIVING EFFECT TO ANY CONFLICTS-OF-LAW, RULE, OR PRINCIPLE THAT MIGHT
REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
IN WITNESSES WHEREOF, the parties have entered into this Agreement as
of the date first set forth above.
DSSI CORPORATION,
a Pennsylvania corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
PURCHASER:
/s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxxxx
/s/ Xxxx X. Xxxxxxxxxx
-------------------------------------
Xxxx X. Xxxxxxxxxx
13
EXHIBITS AND SCHEDULES
Exhibits
Exhibit A Legal Opinion of Counsel for the Company
Exhibit B Secretary Certificate
Exhibit C Closing Certificate
Schedules
Schedule 1.01 Allocation of Shares among Purchaser
Schedule 3.03(b) Rights to Acquire Capital Stock of the Company
Schedule 3.12 Properties and Assets
Schedule 3.14(c) Liabilities
Schedule 3.15(a) Employees
Schedule 3.15(b) Employee Benefits
Schedule 6.01(a) Company Obligations in Excess of $2,000 per month
14
EXHIBIT A
[Letterhead]
Xxxxxxx X. Xxxxxxxxxx
00000 Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Xx. Xxxxxxxxxx:
We have acted as counsel for DSSI Corporation, a Pennsylvania
corporation (the "Company"), in connection with the Stock Purchase Agreement
(the "Agreement"), dated as of August 12, 1997, by and among Xxxxxxx X.
Xxxxxxxxxx ("Purchaser") and the Company. This opinion is given pursuant to
Section 2.03 of the Agreement. Unless otherwise indicated, all capitalized
terms used in this opinion have the meanings assigned to them in the Agreement.
In so acting, we have examined such certificates of the Company and the
original or copies of other certificates, documents, records, and papers as we
have deemed relevant and necessary in order to give the opinions set forth
below. In this connection, we have assumed the genuineness of signatures on
and the authenticity of all documents so examined and the conformity to
original documents of all documents submitted to us as copies. We have also
relied upon certificates of public officials and such other certifications with
respect to the accuracy of factual matters contained therein, which were not
independently established.
Based on the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized, validly existing,
and in good standing under the laws of the Commonwealth of Pennsylvania, has
all requisite corporate power and authority to own, lease, and operate its
properties and to carry on its business as presently conducted. The Company is
qualified to do business and is in good standing in each jurisdiction in which
the failure to so qualify would have a Material Adverse Effect.
2. The authorized capital stock of the Company consists of (i)
20,000,000 shares of Company Common Stock of which 4,446,017 are issued and
outstanding, and (ii) 2,000 shares of Class "A" Preferred Stock, $.01 par value
per share, none of which are issued and outstanding. At Closing, in addition
to the issuance and sale of the Shares to Purchaser, the Company will issue and
sell 1,500,000 shares of Company Common Stock, at a purchase price of $.20 per
share, to persons other than Purchaser. The Company has reserved 500,000
shares of Company Common Stock for issuance under the Company's 1994 Stock
Option Plan under which options to purchase 345,000 shares are outstanding.
The Company has issued and outstanding warrants to purchase an aggregate of
408,998 shares of Company Common Stock. Except for shares reserved for
issuance under the 1994 Stock Option Plan and for the outstanding warrants, no
other 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
subject to) any preemptive or similar rights.
3. The Company has all requisite power and authority to execute
and deliver the Agreement, to perform its obligations thereunder, and to
consummate the transactions contemplated thereby. The execution and delivery
of the Agreement by the Company and the consummation by the Company of the
transactions contemplated thereby have been duly authorized by all necessary
corporate action, and no other corporate proceedings on the part of the Company
are required to authorize the transactions contemplated thereby. The Agreement
constitutes a legal, valid, and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as may be limited by
(a) applicable bankruptcy, insolvency, reorganization, or other laws of general
application relating to or affecting the enforcement of creditors' rights
generally and (b) the effect of rules of law governing the availability of
equitable remedies.
15
4. The execution, delivery, and performance of the Agreement, and
the consummation by the Company of the transactions contemplated thereby, do
not and will not (i) contravene or conflict with the Articles of Incorporation
or Bylaws of the Company; (ii) constitute a violation of any provision of any
federal, state, local, or foreign law binding upon or applicable to the
Company; or (iii) constitute a default or require any consent under, give rise
to any right of termination, cancellation or acceleration of, or to a loss of
any benefit to which the Company is entitled under, or result in the creation
or imposition of any lien, claim, or encumbrance on any assets of the Company
under, any contract to which the Company is a party or any permit, license, or
similar right relating to the Company or by which the Company may be bound or
affected.
5. There is no claim, action, suit, litigation, proceeding,
arbitration, or investigation of any kind, at law or in equity (including
actions or proceedings seeking injunctive relief), pending or, to our
knowledge, threatened against the Company or any properties or rights of the
Company, or relating to the Agreement or the transactions contemplated by the
Agreement, and the Company is not subject to any continuing order of, consent
decree, settlement agreement, or other similar written agreement with, or
continuing investigation by, any governmental entity, or any judgment, order,
writ, injunction, decree, or award of any governmental entity or arbitrator.
As used in this opinion, the phrases "to our knowledge" and words of
similar import refer to the conscious awareness of facts or other information,
without inquiry of persons or review of documents or any other form of
investigation (other than obtaining information and representations contained
in certificates of officers or representatives of the Company), by the lawyers
in our firm who have had active involvement in representing the Company in
connection with the Agreement.
This opinion is expressly limited to matters involving the laws of the
Commonwealth of Pennsylvania and the laws of the United States. To the extent
that the laws of any other jurisdiction govern other matters covered by this
opinion (other than matters governed by the laws of the Commonwealth of
Pennsylvania or the laws of the United States), we have assumed that the laws
of any such other jurisdiction are identical to the laws of the Commonwealth of
Pennsylvania.
We note that no member of this firm is admitted to practice in the
Commonwealth of Pennsylvania and that, to the extent deemed necessary, we
consulted with counsel admitted to practice in the Commonwealth of
Pennsylvania.
This letter is furnished by us to you as counsel for the Company, is
rendered solely for your benefit in connection with the Agreement and may not
be relied upon for any other purpose nor by any person other than you, without
the express written permission of this firm.
Very truly yours,
16
EXHIBIT B
CERTIFICATE OF SECRETARY
OF
DSSI CORPORATION
The undersigned, being the duly elected and qualified Secretary of
DSSI Corporation, a Pennsylvania corporation (the "Company"), hereby certifies,
on behalf of the Company, pursuant to Section 2.03 of the Stock Purchase
Agreement, dated August 12, 1997 (the "Agreement"), by and between Xxxxxxx X.
Xxxxxxxxxx and the Company, that:
1. Attached as Exhibit A is a true, correct, and
complete copy of the Articles of Incorporation and bylaws of the
Company, and such articles and bylaws are in full force and effect on
the date of this Certificate. No action has been taken for the
purpose of amending or modifying any of such bylaws.
2. Attached as Exhibit B are true, correct, and complete
copies of resolutions duly adopted by unanimous written consent of the
Board of Directors of the Company relating to the Agreement. Such
resolutions are the only resolutions relating to the Agreement, and
they have not been amended, modified, or rescinded since their
adoption and are still in full force and effect as of the date of this
Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Secretary on behalf of the Company as of ____________, 1997.
DSSI CORPORATION,
a Pennsylvania corporation
By:
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
17
EXHIBIT C
DSSI CORPORATION
CLOSING CERTIFICATE
The undersigned hereby certifies on behalf of DSSI Corporation, a
Pennsylvania corporation (the "Company"), pursuant to Section 2.03 of the Stock
Purchase Agreement, dated August 12, 1997 (the "Agreement"), by and between
Xxxxxxx X. Xxxxxxxxxx and the Company, that:
1. All representations and warranties of the Company
contained in the Agreement are true and correct at and as of the
Closing with the same effect as though such representations and
warranties were made at and as of the Closing.
2. The Company has performed and complied with all the
covenants and agreements and satisfied the conditions required by the
Agreement to be performed, complied with, or satisfied by them at or
prior to the Closing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of _________, 1997.
DSSI CORPORATION,
a Pennsylvania corporation
By:
-----------------------------------
Title:
--------------------------------
18
EXHIBIT 2.1
ADDENDUM TO
STOCK PURCHASE AGREEMENT
This Addendum is hereby incorporated into and made a part of the Stock
Purchase Agreement dated August 18, 1997 between Xxxxxxx X. Xxxxxxxxxx, Xxx
Xxxxxxxxxx, Xxxx Xxxxxxxxxx, and DSSI Corporation. Capitalized terms used
herein and not otherwise defined shall have the meanings assigned to such terms
in the Stock Purchase Agreement.
The Company and Purchaser hereby agree that any and all assets owned
by Collegiate Pacific Inc. f/k/a Nitro Sports Inc. ("Collegiate Pacific") and
acquired by Purchaser on behalf of Collegiate Pacific after April 1, 1997 will
be purchased by the Company promptly after the Closing at cost. Promptly after
Closing, Purchaser shall submit an itemized statement (the "Statement") of such
assets detailing the cost of such items to the Board of Directors of the
Company who shall meet within five (5) business days of the Company's receipt
of the Statement for the purpose of reviewing the assets and their value for
purchase. The Company and Purchaser shall use reasonable good faith efforts to
resolve any disputes regarding the value of any such assets. If such costs are
undisputed, the Board of Directors shall approve the purchase and payment of
such assets, which shall occur within three (3) business days of such Board
approval. Payment for the assets as set forth in the Statement shall be in
immediately available funds to an account designated in writing by Purchaser to
the Company.
Agreed and accepted:
--------------------
/s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxxxx
/s/ Xxxx Xxxxxxxxxx
------------------------------
Xxxx Xxxxxxxxxx
DSSI CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Title: Vice President
