PURCHASE AND SALE AGREEMENT
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This PURCHASE AND SALE AGREEMENT (the "Agreement") is made and entered
into as of the 23rd day of April, 1997 by and between XXXX X. XXXXX, an
individual residing at 0000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000 (the
"Seller"), TRIATHLON SPORTS PROGRAMMING, INC., a Delaware corporation having
its principal place of business at 000 X Xxxxxx, Xxxxx 0000, Xxx Xxxxx,
Xxxxxxxxxx 00000 ("Triathlon Sports"), and TSPN, INC., a Delaware corporation
having its principal place of business at 000 X Xxxxxx, Xxxxx 0000, Xxx Xxxxx,
Xxxxxxxxxx ("TSPN"; and together with Triathlon Sports, the "Buyers").
WHEREAS, the Seller and Xxxx X. Xxxxxx are the sole members (together,
the "Members", and individually, a "Member") of Pinnacle Sports Productions,
L.L.C. ("Pinnacle"), a Nebraska limited liability company organized under
Sections 21-2601 to 21-2645 of the Nebraska statutes (the "Limited Liability
Company Act"); and
WHEREAS, the Seller desires to sell and the Buyers desire to purchase
all of the Seller's membership interest in Pinnacle (the "Membership
Interest");
NOW THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements contained herein, and upon the terms and
subject to the conditions hereinafter set forth, the parties hereby agree as
follows:
ARTICLE 1
PURCHASE AND SALE
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1.1 Purchase and Sale of Membership Interest. On the Closing Date (as
defined in Section 3.1), the Seller shall sell to the Buyers, and the Buyers
shall purchase from the Seller, the Seller's Membership Interest in Pinnacle in
accordance with the terms of this Agreement and in the respective percentages
set forth on Schedule I hereto. At the Closing (as defined in Section 3.1), the
Seller shall deliver to the Buyers such certificates or other documents
evidencing his Membership Interest in Pinnacle duly endorsed for transfer.
ARTICLE 2
CONSIDERATION
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2.1 Purchase Price. The purchase price (the "Purchase Price") for the
acquisition of the Seller's Membership Interest shall be Three Hundred Thirteen
Thousand Three Hundred Thirty-Nine and 26/100ths Dollars ($313,339.26), plus
ten percent (10%) of Pinnacle's cash, pre-paid expenses and accounts receivable
as of the Closing Date, less ten percent (10%) of Pinnacle's trade payables
(including all amounts due to Havelock Bank under Pinnacle's $2,000,000.00 Note
dated April 29, 1996, but excluding the $1,675,000.00 Letter of Credit Note to
Havelock Bank, both of which are described in the Disclosure Schedule) as of
the Closing Date (the "Fixed Purchase Price"), plus the Contingent Payment, if
the Buyers are required to pay the same pursuant to the provisions of Section
2.2 below (the Fixed Purchase Price and the Contingent Payment being
hereinafter collectively
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referred to as the "Total Purchase Price"). The Fixed Purchase Price shall be
paid as follows:
(a) The sum of One Hundred Thirty Thousand Dollars ($130,000.00), plus
ten percent (10%) of Pinnacle's cash, pre-paid expenses and accounts receivable
as of the Closing Date, less ten percent (10%) of Pinnacle's trade payables
(including all amounts due to Havelock Bank under Pinnacle's $2,000,000.00 Note
dated April 29, 1996, but excluding the $1,675,000.00 Letter of Credit Note to
Havelock Bank, both of which are described in the Disclosure Schedule) as of
the Closing Date, all of which shall be paid at Closing;
(b) The principal sum of Eighty-Eight Thousand Nine Hundred
Ninety-Nine and 64/100ths Dollars ($88,999.64), together with interest on the
unpaid balance of the Fixed Purchase Price at the rate of six percent (6%) per
annum from the Closing Date to the first anniversary of the Closing Date shall
be paid on the first anniversary of the Closing Date; and
(c) The sum of Ninety Four Thousand Three Hundred Thirty-Nine and
62/100ths Dollars ($94,339.62), together with interest on the unpaid principal
balance of the Fixed Purchase Price at the rate of six percent (6%) per annum
from the first anniversary of the Closing Date to the second anniversary of the
Closing Date shall be paid on the second anniversary of the Closing Date. The
obligation of the Buyers to make the installments to the Seller under
subsections (b) and (c) shall be evidenced by the Promissory Note and Guaranty
(the "Promissory Note and Guaranty") of the Buyers and Triathlon Broadcasting
Company ("Triathlon"), the Buyers' parent corporation, in the form of Exhibit A
hereto and shall be secured by the Membership Interest which is being acquired
by the Buyers pursuant to a pledge agreement (the "Pledge Agreement") in the
form of Exhibit B hereto.
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2.2 Contingent Payment. In addition to the three (3) installment
payments of the Fixed Purchase Price set forth in Section 2.1, in the event
Pinnacle executes an extension of the current radio broadcast rights agreement
dated May 23, 1996 (the "Rights Agreement") between Pinnacle and the University
of Nebraska (the "University") which grants to Pinnacle the radio broadcast
rights to the University's men's varsity football and basketball games, or a
new rights agreement similar to the existing Rights Agreement, prior to or
following the expiration of Pinnacle's current Rights Agreement with the
University, the Seller shall receive as part of the Total Purchase Price the
sum of Twenty Seven Thousand Seven Hundred Seventy-Seven and 78/100ths Dollars
($27,777.78) for each year that the rights granted to Pinnacle under the Rights
Agreement is renewed, up to a maximum of Eighty Seven Thousand Three Hundred
Thirty-Three and 33/100ths Dollars ($87,333.33) (the "Contingent Payment"). The
Contingent Payment shall be paid to the Seller upon the signing of an extension
to the existing Rights Agreement or the new rights agreement with the
University in accordance with the terms and provisions of this Agreement and
the Promissory Note and Guaranty. For the purposes of this Section 2.2,
references to "Pinnacle" shall be deemed to include the Buyers, Triathlon, The
Sillerman Companies, Inc., or any subsidiary or affiliate or radio station
owned or controlled by any of the foregoing, whether singly or in combination.
2.3 Payment. Payment by the Buyers of all sums due to the Seller under
Article 2 of this Agreement shall be made by wire transfer of immediately
available funds to a bank or banks designated in writing by the Seller. Any
wire transfer fees charged or assessed to the Buyer by the Buyer's bank for
originating any wire transfers shall be at the expense of the Buyer.
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2.4 Escrow Account. The Buyers shall deposit cash or an irrevocable
stand-by letter of credit in the sum of Fifteen Thousand Dollars ($15,000.00)
into an escrow account (the "Escrow Account") with Havelock Bank of Lincoln,
Nebraska (the "Escrow Agent"), to be held in escrow in accordance with the
terms of an escrow agreement (the "Escrow Agreement") between the parties
substantially in the form of Exhibit C hereto. The Seller acknowledges that he
has already received a non-refundable deposit in the sum of Five Thousand
Dollars ($5,000.00) which is being held in escrow and which will be applied to
the Purchase Price in accordance with the terms of the Extension and
Modification Agreement between Triathlon, the Seller and Xxxx X. Xxxxxx.
ARTICLE 3
CLOSING
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3.1 Closing. Except as otherwise mutually agreed upon by the Seller
and the Buyers, the consummation of the Buyers' acquisition of the Membership
Interest (the "Closing") shall occur on or prior to May 1, 1997 (the "Closing
Date"). If, through no fault of the Seller, the Buyer fails to close the
acquisition of the Membership Interest on or before May 1, 1997, the Fixed
Purchase Price shall be increased by the amount of One Hundred Dollars
($100.00) per day for each and every day after May 1, 1997 through May 15,
1997. If, through no fault of the Seller, the Buyer fails to close the
acquisition of the Membership Interest on or before May 15, 1997, this
Agreement shall be null and void and the Buyer shall forfeit all amounts
deposited into escrow by the Buyer.
The Closing shall be held at the offices of the Seller's counsel
or at such other place
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as the Buyers and the Seller shall mutually agree.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE BUYERS
--------------------------------------------
The Buyers hereby make the following representations and warranties to
the Seller, each of which is true and correct on the date hereof, shall remain
true and correct to and including the Closing Date, shall be unaffected by any
notice to the Seller and shall survive the Closing.
4.1 Organization and Standing. Each of the Buyers is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and is duly qualified to transact business as a foreign
corporation in the State of Nebraska. Each of the Buyers hereby acknowledges
that it is aware of all of the laws, rules and regulations applicable to
Nebraska Limited Liability Companies, and that the Membership Interest to be
purchased by the Buyers from the Seller pursuant to this Agreement has not been
registered under any federal or state securities laws, rules or regulations.
Each of the Buyers further hereby acknowledges and agrees that it has received
and reviewed copies of all contracts described in Section 1 of the Seller's
Disclosure Schedule (the "Reviewed Contracts"), and that each of the Buyers
accepts the terms of the Reviewed Contracts as presented to it. Each of the
Buyers further acknowledges and agrees that it will maintain in full force and
effect, through Pinnacle, the Rights Agreement currently existing between
Pinnacle and the University, and covenants and agrees that it will not allow
Pinnacle to cease to exist as a Nebraska limited liability company as long as
the Buyers owe any money to Seller under the terms and
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provisions of this Agreement, the Promissory Note and Guaranty and the Pledge
Agreement.
4.2 Authorization and Binding Obligation. Each of the Buyers has all
necessary power and authority to enter into and perform this Agreement and the
transactions contemplated hereby, and to own the Membership Interest and to
carry on the business of Pinnacle as it is now being conducted, and each
Buyer's execution, delivery and performance of this Agreement and the
transactions contemplated hereby have been duly and validly authorized by all
necessary action on its part. This Agreement has been duly executed and
delivered by each of the Buyers, and this Agreement constitutes, and the other
agreements to be executed in connection herewith will constitute, the valid and
binding obligation of each of the Buyers, enforceable in accordance with their
terms, except as limited by laws affecting the enforcement of creditors' rights
or equitable principles generally.
4.3 Litigation and Compliance with Law. There is no litigation,
administrative, arbitration or other proceeding, or petition, complaint or to
the best of the Buyers' knowledge investigation before any court or
governmental body, pending against the Buyers or any of their principals that
would adversely affect the Buyers' ability to perform their obligations
pursuant to this Agreement or the agreements to be executed in connection
herewith. To the best of the Buyers' knowledge, there is no violation of any
law, regulation or ordinance or any other requirement of any governmental body
or court which would have a material adverse effect on the Buyers or their
ability to perform its obligations pursuant to this Agreement or the agreements
to be executed in connection herewith.
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4.4 Accuracy of Information. No written statement made by the Buyers
herein and no information provided by the Buyers herein or in the documents,
instruments or other written communications made or delivered directly by the
Buyers to the Seller in connection with the negotiations covering the purchase
and sale of the Membership Interest contains any untrue statement of a material
fact or omits a material fact necessary to make the statements contained
therein or herein not misleading, and there is no fact known to the Buyers
which relates to any information contained in any such written document,
instrument or communications which the Buyers have not disclosed to the Seller
in writing which could materially affect adversely Pinnacle. To the extent that
a representation or other information is made to the Buyers' knowledge or is
otherwise qualified by its terms, this representation shall not be interpreted
to expand such limitations or qualifications.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE SELLER
--------------------------------------------
The Seller hereby makes the following representations and warranties
to the Buyers, each of which is true and correct on the date hereof, shall
remain true and correct to and including the Closing Date, shall be unaffected
by any notice to the Buyers other than in the Disclosure Schedule (as defined
herein) and shall survive the Closing. Such representations and warranties are
subject to, and qualified by, any fact or facts disclosed in the separate
Disclosure Schedule which is annexed hereto (the "Disclosure Schedule").
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5.1 Organization and Standing of Pinnacle. Pinnacle is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Nebraska and has the power and authority to own, lease
and operate its assets and to carry on its business as now being conducted and
as proposed to be conducted by Pinnacle between the date hereof and the Closing
Date.
5.2 Authorization and Binding Obligation. The Seller has the power and
authority to enter into and perform this Agreement and the transactions
contemplated hereby. This Agreement has been duly executed and delivered by the
Seller, and this Agreement constitutes, and the other agreements to be executed
in connection herewith will constitute, the valid and binding obligation of the
Seller, enforceable in accordance with their terms, except as limited by laws
affecting the enforcement of creditor's rights or equitable principles
generally.
5.3 Membership Interests in Pinnacle. The Seller and Xxxx X. Xxxxxx
("Xxxxxx") are the sole Members of Pinnacle. Except for this Agreement and the
Purchase and Sale Agreement between Triathlon Sports and Xxxxxx, there is
outstanding no security, option, right, call, subscription, agreement,
commitment or understanding of any nature whatsoever, fixed or contingent, that
directly or indirectly (i) calls for the issuance, sale, pledge or other
disposition of any membership interest in Pinnacle, including the Membership
Interest, or any securities convertible into, or other rights to acquire, any
such membership interest; or (ii) obligates any of Pinnacle or the Seller to
grant, offer or enter into any of the foregoing; or (iii) relates to the voting
or control of the Membership Interest.
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5.4 Title to Membership Interest. The sale and delivery of the
Membership Interest to the Buyers pursuant to this Agreement shall vest in the
Buyers legal and valid title to the Membership Interest, free and clear of all
security interests, mortgages, pledges, conditional sales agreements, or other
liens or encumbrances (collectively, "Encumbrances"), other than Encumbrances
created by the Buyers.
5.5 Absence of Conflicting Agreements or Required Consents. Except as
set forth in Section 4.1 of this Agreement and in the Disclosure Schedule, the
execution, delivery and performance of this Agreement by the Seller: (a) does
not require the consent of any third party; (b) will not violate any applicable
law, judgment, order, injunction, decree, rule, regulation or ruling of any
governmental authority to which the Seller is a party or by which the Seller or
Pinnacle, is bound; (c) will not, either alone or with the giving of notice or
the passage of time, or both, conflict with, constitute grounds for termination
of or result in a breach of the terms, conditions or provisions of, or
constitute a default under, any contract, agreement, instrument, license or
permit to which the Seller or Pinnacle, is now subject; and (d) will not result
in the creation of any lien, charge or Encumbrance on Pinnacle or the
Membership Interest.
5.6 Government Authorizations. The Reviewed Contracts or the
Disclosure Schedule contain a true and complete list of all material licenses,
permits or other authorizations from governmental and regulatory authorities
which are required for the lawful conduct of the business and operations of
Pinnacle in the manner and to the full extent they are presently conducted.
Pinnacle is the authorized legal holder of the licenses, permits and
authorizations described in the
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Reviewed Contracts or on Disclosure Schedule, none of which is subject to any
restrictions or condition which would limit in any respect the full operation
of Pinnacle as now operated except as set forth therein. Except as set forth in
the Disclosure Schedule, there are no applications, complaints or proceedings
pending or, to the best of the Seller's knowledge, threatened as of the date
hereof relating to the business or operations of Pinnacle.
5.7 Affiliates. Pinnacle does not own any equity ownership interest,
directly or indirectly, in any person, corporation or other entity.
5.8 Taxes. Except as described on the Disclosure Schedule, Pinnacle
has filed all federal, state, local and foreign income, franchise, sales, use,
property, excise, payroll and other tax returns required by law and has paid in
full all taxes, estimated taxes, interest, assessments, and penalties due and
payable. All returns and forms which have been filed have been true and correct
in all material respects and no tax or other payment in a material amount other
than as shown on such returns and forms are required to be paid and have been
paid by Pinnacle. There are no present disputes as to taxes of any nature
payable by Pinnacle.
5.9 Personal Property. The Reviewed Contracts or the Disclosure
Schedule contain a list of all material tangible personal property and assets
owned or held by Pinnacle and used primarily or exclusively in the conduct of
Pinnacle's business and operations (the "Personal Property"). Except as
disclosed in the Disclosure Schedule or in the Reviewed Contracts, and except
as may be subject to lease agreements of Pinnacle specifically identified in
the Disclosure Schedule or in the
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Reviewed Contracts, Pinnacle owns and has, and will on the Closing Date have,
good and marketable title to all such property (and to all other tangible and
intangible personal property and assets including cash and receivables to be
transferred to the Buyers hereunder), and none of such property is, or at the
Closing will be, subject to any Encumbrance other than as set forth in the
Disclosure Schedule. All of the items of tangible personal property and assets
included in the Disclosure Schedule are in all respects in good operating
condition (ordinary wear and tear excepted) and are available for immediate use
in the conduct of the business and operations of Pinnacle. The technical
equipment constituting a part of the tangible personal property has been
properly maintained by Pinnacle and is in good operating condition. The
properties listed in the Disclosure Schedule include all such properties used
and necessary to conduct in all material respects the business and operations
of Pinnacle as now conducted.
5.10 Real Property. The Reviewed Contracts or the Disclosure Schedule
contain a complete and accurate list of all real property owned and/or leased
by Pinnacle and used by Pinnacle in its business and operations, together with
all agreements, leases and contracts of Pinnacle relating thereto
(collectively, the "Real Estate Contracts"). The Real Estate Contracts
comprising a part of the Reviewed Contracts or listed in the Disclosure
Schedule constitute valid and binding obligations of Pinnacle and, to the best
of the Seller's knowledge, of all other persons purported to be parties thereto
and are in full force and effect as of the date hereof and will on the Closing
Date constitute valid and binding obligations of Pinnacle and, to the best of
the Seller's knowledge, of all other persons purported to be parties thereto
and shall be in full force and effect. Except as set forth in the Disclosure
Schedule, Pinnacle is not in default under any of the Real Estate Contracts,
nor has
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Pinnacle received or given written notice of any default thereunder from or to
any of the other parties thereto.
5.11 Contracts. The Reviewed Contracts or the Disclosure Schedule list
all written and oral contracts (the "Contracts") as of the date of this
Agreement for which Pinnacle shall continue to be liable as of the Closing
Date, except contracts entered into in the ordinary course of business (i) of
less than three (3) months duration and which impose monetary obligations of no
more than Five Thousand Dollars ($5,000) in the aggregate, or (ii) which are
currently scheduled to expire prior to the Closing Date and for which Pinnacle
will no longer be liable. Those contracts described on the Disclosure Schedule
in Sections A, C, D and E.4 are critical to the consummation of the
transactions contemplated hereby and are identified as "Material Contracts".
5.12 Status of Contracts. Except as noted in the Disclosure Schedule,
the Seller has delivered to the Buyers true and complete copies of all written
Material Contracts, including any and all amendments and other modifications to
such Material Contracts. All Material Contracts were validly and duly executed
by Pinnacle. To the best of the Seller's knowledge, Pinnacle has complied in
all material respects with all Material Contracts and is not in default beyond
any applicable grace periods under any of the Material Contracts, and no other
contracting party is in default under any of the Material Contracts.
5.13 Environmental Matters. Pinnacle has not unlawfully disposed of
any hazardous waste or hazardous substance including Polychlorinated Byphenyls
("PCBs") in a manner which has
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caused, or could cause, the Buyers to incur a material liability under
applicable law in connection therewith. To the best of the Seller's knowledge,
Pinnacle has complied in all material respects with all federal, state and
local environmental laws, rules and regulations applicable to Pinnacle's
business and operations. No hazardous waste has been disposed of by Pinnacle,
and to the best of the Seller's knowledge no hazardous waste has been disposed
of by any other person on the real estate owned and/or leased by Pinnacle. As
used herein, the term "hazardous waste" shall mean as defined in the Resource
Conservation and Recovery Act (RCRA) as amended and in the equivalent state
statute under applicable state law.
5.14 Copyrights, Trademarks and Similar Rights. The Disclosure
Schedule lists, in all material respects, all copyrights, trademarks, trade
names, licenses, patents, permits and other similar intangible property rights
and interests applied for, issued to or owned by Pinnacle or under which
Pinnacle is a licensee or franchisee and which are used exclusively or
primarily in the conduct of the business and operations of Pinnacle. Except as
set forth in the Disclosure Schedule, all of such rights and interests are
issued to or owned by Pinnacle, or if licensed or franchised to Pinnacle, to
the best of the Seller's knowledge, are valid and in good standing and
uncontested. The Seller has delivered or made available to the Buyers copies of
all material documents, if any, establishing such rights, licenses or other
authority. Pinnacle has not received any written notice with respect to, nor
has it any knowledge of, any infringements or unlawful use of such property.
The properties listed in the Disclosure Schedule include all such properties
necessary to conduct in all material respects the business and operations of
Pinnacle as now conducted.
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5.15 Personnel Information. The Disclosure Schedule contains a true
and complete list of all persons employed by Pinnacle, and the Reviewed
Contracts or the Disclosure Schedule describe the material compensation
arrangements and employee benefit plans and other terms of any and all
agreements affecting such persons.
5.15.1 Pinnacle is not a party to any contract with any labor
organization, nor has any Pinnacle agreed to recognize any union or other
collective bargaining unit, nor has any union or other collective bargaining
unit been certified as representing any of Pinnacle's employees. The Seller has
no knowledge of any organizational effort currently being made or threatened by
or on behalf of any labor union with respect to employees of Pinnacle.
5.15.2 Except as disclosed in the Disclosure Schedule, Pinnacle
has complied in all material respects with all laws relating to the employment
of labor, including, without limitation, the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and those laws relating to wages,
hours, collective bargaining, unemployment insurance, workers' compensation,
equal employment opportunity, sexual harassment and payment and withholding of
taxes. More specifically, Pinnacle has substantially complied with and is not
in default in any material respect under any laws, rules and regulations
relating to employment of labor, including those relating to wages, hours,
equal employment opportunities, sexual harassment, employment of protected
minorities (including women and persons over 40 years of age), collective
bargaining and the withholding and payment of taxes and contributions and has
withheld all amounts required or agreed to be withheld from wages and salaries
of its employees, and is not liable for any arrearage of wages
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or for any tax or penalty or failure to comply with the foregoing. There are no
claims or complaints pending or, to the knowledge of the Seller, threatened
against any Pinnacle before any court or governmental agency and involving any
alleged unlawful employment practices, whether or not relating to the laws
described above. Pinnacle has not consented to any decree involving any claim
of unfair labor practice nor been held in any judicial proceeding to have
committed any unfair labor practice, and there are no material controversies
pending or threatened between Pinnacle and any of its employees.
5.16 Financial Statements. The Seller has delivered to the Buyers
complete copies of the reviewed balance sheet of Pinnacle as of December 31,
1996 and the reviewed statements of income of Pinnacle for the fiscal year
ended December 31, 1996, including the notes thereto (the "Reviewed
Statements"). A copy of the internally prepared and unaudited balance sheet and
statements of income of Pinnacle for the two (2) month period ending February
28, 1997 (the "Interim Statements"; and together with the Reviewed Statements,
the "Financial Statements"), shall be contained in the Disclosure Schedule.
Except as noted therein, the Reviewed Statements fairly present the
consolidated financial position of Pinnacle and its results of operations as of
those dates in conformity with generally accepted accounting principles
consistently applied for such period. Pinnacle has not acquired, either
directly or indirectly, any other corporation, business or assets with respect
to which there is not available financial information.
5.17 Liabilities. Except as described in the Reviewed Contracts or as
set forth in the Disclosure Schedule and the Financial Statements, Pinnacle has
no debts, obligations or liabilities
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of any kind or nature, either direct or indirect, absolute or contingent,
matured or unmatured.
5.18 Absence of Certain Changes or Events. Except as described in the
Reviewed Contracts or as set forth in the Disclosure Schedule or except as
otherwise contemplated by this Agreement, since February 28, 1997, there has
not been (a) any damage, destruction or casualty loss to the physical
properties of Pinnacle (whether covered by insurance or not); (b) any material
change in the business, operations or financial condition of Pinnacle; (c) any
entry into any transaction, commitment or agreement (including without
limitation any borrowing or capital expenditure) material to Pinnacle's course
of business; (d) any setting aside or payment of any distribution in cash or
property with respect to the Seller's Membership Interest; (e) any increase in
the rate or terms of compensation payable or to become payable by Pinnacle to
its Members, officers or employees or any increase in the rate or terms of any
bonus, pension, insurance or other employee benefit plan, payment or
arrangement made to, for or with any such Member, officers or key employees;
(f) any change in or acceleration of sales, or reduction of aggregate
administrative, marketing, advertising and promotional expenses or research
expenditures other than in the ordinary course of business; (g) any sale,
transfer or other disposition of any asset of Pinnacle to any party, including
the Seller, except for payment of third-party obligations incurred in the
ordinary course of business in accordance with Pinnacle's regular payment
practices; (h) any termination or waiver of any rights of value to the business
of Pinnacle; or (i) any failure by Pinnacle to pay its accounts payable or
other obligations in the ordinary course of business consistent with past
practices.
5.19 Title to Properties. Except as described in the Reviewed
Contracts or as set forth on
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the Disclosure Schedule, Pinnacle has good and marketable title to all of the
assets and properties which it purports to own and which are reflected on the
Financial Statements, free and clear of all Encumbrances, except for (a) liens
for current taxes not yet due and payable or for taxes the validity of which is
being contested in good faith by appropriate proceedings, and (b) Encumbrances
which individually or in the aggregate do not materially and adversely affect
the business, operations or financial condition of Pinnacle.
5.20 Litigation. Except as set forth in the Disclosure Schedule, (a)
Pinnacle is not subject to a judgment, award, order, writ, injunction,
arbitration decision or decree materially adversely affecting the conduct of
Pinnacle's business or operations, and there is no litigation, arbitration,
administration or other proceeding or, to the best of the Seller's knowledge,
investigation pending or any basis for any person to assert a claim or, to the
best of the Seller's knowledge, threatened against Pinnacle in any federal,
state or local court, or before any administrative agency or arbitrator, or
before any other tribunal duly authorized to resolve disputes, which would
reasonably be expected to have any material adverse effect upon the business,
property, assets or condition (financial or otherwise) of Pinnacle or which
seeks to enjoin or prohibit, or otherwise questions the validity of, any action
taken or to be taken pursuant to or in connection with this Agreement; and (b)
in particular, but without limiting the generality of the foregoing, there are
no applications, complaints or proceedings pending or, to the best of the
Seller's knowledge, threatened before any governmental organization with
respect to or adverse to the business or operations of Pinnacle.
5.21 Compliance With Laws. Except as set forth in the Disclosure
Schedule, (a) Pinnacle
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has not received any notice asserting any non-compliance by it in connection
with the business or operation of Pinnacle with any applicable statute, rule or
regulation, whether federal, state or local; (b) Pinnacle is not in default
with respect to any judgment, order, injunction or decree of any court,
administrative agency or other governmental authority or any other tribunal
duly authorized to resolve disputes in any respect material to the transactions
contemplated hereby; and (c) Pinnacle is in compliance with all material laws,
regulations and governmental orders applicable to the conduct of the business
and operations of Pinnacle, the failure to comply with which would have a
material adverse effect on the business, operations or financial condition of
Pinnacle, and its present use of its assets does not violate any of such laws,
regulations or orders, violation of which would have a material adverse effect
on Pinnacle's operations.
5.22 Insurance. All insurance policies with respect to the properties,
assets, operations and business of Pinnacle (the "Insurance Policies") are in
full force and effect. Except as set forth in the Disclosure Schedule, there
are no pending claims against the Insurance Policies by Pinnacle as to which
the insurers have denied liability and with respect to which there is a
reasonable likelihood of a settlement or determination adverse to Pinnacle. To
the best of the Seller's knowledge, there are no circumstances existing which
would enable the insurers to avoid liability under the Insurance Policies, nor
are there any other parties having an interest under the Insurance Policies.
Except as set forth in the Disclosure Schedule, (i) there exist no material
claims under the Insurance Policies that have not been properly filed by
Pinnacle; (ii) no insurance company has refused to renew any material insurance
policy of Pinnacle during the past eighteen (18) months; and (iii) there have
been no material rate or premium increases or written notice of prospective
changes therein on general
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liability, property or directors and officers liability Insurance Policies
during the past eighteen (18) months. The Reviewed Contracts or the Disclosure
Schedule contain a list that includes all Insurance Policies.
5.23 Accuracy of Information. No written statement made by the Seller
herein and no information provided by the Seller herein or in the documents,
instruments or other written communications made or delivered directly by the
Seller to the Buyers in connection with the negotiations covering the purchase
and sale of the Membership Interest contains any untrue statement of a material
fact or omits a material fact necessary to make the statements contained
therein or herein not misleading and there is no fact known to the Seller which
relates to any information contained in any such written document, instrument
or communications which the Seller has not disclosed to the Buyers in writing
which materially affects adversely Pinnacle. To the extent that a
representation or other information is made to the Seller's knowledge or is
otherwise qualified by its terms, this representation shall not be interpreted
to expand such limitations or qualifications.
5.24 Accounts Receivable. All accounts receivable reflected on the
Interim Statements represent sales actually made or services actually rendered
in the ordinary course of business on or prior to February 28, 1997; all
accounts receivable of Pinnacle as of the Closing Date will represent sales
actually made or services actually rendered in the ordinary course of business
consistent with past practices prior to the Closing Date.
20
ARTICLE 6
COVENANTS OF THE BUYERS
-----------------------
6.1 Closing. On the Closing Date, the Buyers shall purchase the
Membership Interest from the Seller as provided in Article 1 hereof and shall
deliver or cause to be delivered to the Seller the Purchase Price as provided
in Article 2 hereof.
6.2 Notification. The Buyers shall notify the Seller of any
litigation, arbitration or administrative proceeding pending or, to its
knowledge, threatened against the Buyers which challenges the transactions
contemplated hereby.
6.3 No Inconsistent Action. The Buyers shall not take any other action
which is materially inconsistent with its obligations under this Agreement.
6.4 Required Consents. On the Closing Date, the Buyers shall deliver
any and all necessary third party consents to the execution, delivery and
performance of this Agreement by the Buyers.
6.5 Maintenance of Legal Existence. From and after the Closing Date,
the Buyers shall maintain Pinnacle in good standing under the laws of the State
of Nebraska, and shall maintain the Buyers' corporate existence in good
standing as foreign corporations duly qualified to transact business under the
laws of the State of Nebraska, until all payments due and owing from the Buyers
21
to the Seller pursuant to this Agreement, the Promissory Note and Guaranty and
the Pledge Agreement have been paid in full.
6.6 No Assignment, Transfer or Sale. From and after the Closing Date,
the Buyers shall not, without the Seller's prior written consent, sell,
transfer, assign or otherwise encumber all or any portion of the Membership
Interest sold by the Seller to the Buyers pursuant to this Agreement, until all
amounts due and owing from the Buyers to the Seller hereunder and under the
terms and provisions of the Promissory Note and Guaranty or the Pledge
Agreement have been paid in full.
6.7 Maintenance of Rights Agreement. From and after the Closing Date,
the Buyers shall maintain, and cause Pinnacle to maintain, in full force and
effect, and perform and discharge and cause Pinnacle to perform and discharge,
on a timely basis, all duties and obligations imposed upon Pinnacle pursuant to
and in accordance with the terms and provisions of the Rights Agreement between
Pinnacle and the University, as identified on the Disclosure Schedule.
6.8 Bankruptcy. From and after the Closing Date, the Buyers shall not
file any voluntary petition in bankruptcy, nor allow Pinnacle to file any
voluntary petition in bankruptcy.
6.9 Release of Seller as Guarantor. On or before the Closing Date, the
Buyers shall deliver to the Seller a written release from Havelock Bank of
Lincoln, Nebraska ("Havelock"), pursuant to which the Seller, as guarantor,
shall have been forever released and discharged from all guarantees executed by
the Seller pursuant to which the Seller has guaranteed any of the debts,
22
liabilities, duties or obligations of Pinnacle to Havelock, including, but not
limited to, Pinnacle's debts and Letters of Credit Notes with Havelock.
6.10 Event of Default/Acceleration of Obligations. In the event that
the Buyers default on any of the terms or provisions of Sections 6.5 through
6.9, the Buyers shall be deemed to be in default under the terms and provisions
of the Promissory Note and Guaranty and this Agreement, and the Seller shall
have the immediate right to declare all amounts due and owing to the Seller
under the terms and provisions of the Promissory Note and Guaranty, plus any
amounts due and owing as a Contingent Payment, payable in full. Regardless of
anything else set forth herein, the provisions set forth in Sections 6.5
through 6.10 shall survive the Closing and remain in full force and effect
until payment of all amounts due to the Seller under the Promissory Note and
Guaranty or the Pledge Agreement.
ARTICLE 7
COVENANTS OF THE SELLER
-----------------------
7.1 Pre-Closing Covenants. The Seller covenants and agrees that
between the date hereof and the Closing Date, except as expressly permitted by
this Agreement or with the prior written consent of the Buyers, he and Pinnacle
shall act in accordance with the following:
7.1.1 Pinnacle shall conduct its business and operations in the
ordinary and prudent course of business and with the intent of preserving the
ongoing operations and assets of Pinnacle,
23
including, but not limited to, using its reasonable best efforts to retain the
services of its employees and keeping in good standing all licenses, permits
and authorizations.
7.1.2 Pinnacle shall use reasonable efforts to preserve its
operations intact and to preserve the business of its customers, suppliers,
affiliates and others having business relations with Pinnacle and continue to
conduct the financial operations of Pinnacle, including its credit and
collection policies, in the ordinary course of business with substantially the
same effort, and to substantially the same extent and in the same manner, as in
the prior conduct of the business and operations of Pinnacle.
7.1.3 Pinnacle shall not other than in the ordinary course of
business or in accordance with a pre-existing plan or arrangement described in
the Reviewed Contracts or listed in the Disclosure Schedule (i) sell or dispose
of or commit to sell or dispose of any of its assets; (ii) grant or agree to
grant any general increases in the rates of salaries or compensation payable to
employees of Pinnacle; (iii) grant or agree to grant any specific bonus or
increase to any executive or management employee of Pinnacle; or (iv) provide
for any new pension, retirement or other employment benefits for employees of
Pinnacle or any increases in any existing benefits
7.1.4 On the Closing Date, the Seller shall provide the Buyers
with written notice of any change in any of the information contained in the
representations and warranties made in Article 5 hereof or any Exhibits or the
Disclosure Schedule herein or attached hereto.
24
7.2 Notification. The Seller shall notify the Buyers of any material
litigation, arbitration or administrative proceeding pending or, to his
knowledge, threatened against the Seller which challenges the transactions
contemplated hereby.
7.3 No Inconsistent Action. The Seller shall take no action which is
materially inconsistent with his obligations under this Agreement.
7.4 Closing Covenant. On the Closing Date, the Seller shall sell and
deliver the Membership Interest to the Buyers as provided in Article 1 of this
Agreement.
ARTICLE 8
JOINT COVENANTS
---------------
The Buyers and the Seller covenant and agree that between the date
hereof and the Closing Date, they shall act in accordance with the following:
8.1 Conditions. Except as otherwise provided in this Agreement, if any
event should occur, either within or without the control of any party hereto,
which would prevent fulfillment of the conditions upon the obligations of any
party hereto to consummate the transactions contemplated by this Agreement, the
parties hereto shall use their reasonable best efforts to cure the event as
expeditiously as possible; provided, however, that the Buyers' failure to pay
the portion of the Fixed Purchase Price due on the Closing Date, or to execute
and deliver the Promissory Note and Guaranty
25
and the Pledge Agreement on the Closing Date, shall not give rise to a delay in
the Closing to cure such failure.
8.2 Confidentiality. The Buyers and the Seller shall each keep
confidential all information obtained by it or them with respect to the other
in connection with this Agreement and the negotiations preceding this
Agreement, and will use such information solely in connection with the
transactions contemplated by this Agreement, and if the transactions
contemplated hereby are not consummated for any reason, each shall return to
the other, without retaining a copy thereof, any schedules, documents or other
written information obtained from the other in connection with this Agreement
and the transactions contemplated hereby. Notwithstanding the foregoing, no
party shall be required to keep confidential or return any information which
(i) is known or available through other lawful sources, not bound by a
confidentiality agreement with the disclosing party, (ii) is or becomes
publicly known through no fault of the receiving party or its agents, (iii) is
required to be disclosed pursuant to an order or request of a judicial or
governmental authority or because of the rules and regulations of the SEC
(provided the other parties are given reasonable prior notice), or (iv) is
developed by the receiving party independently of the disclosure by the
disclosing party.
8.3 Cooperation. The Buyers and the Seller shall cooperate fully with
each other in taking any actions, including actions to obtain the required
consent of any governmental instrumentality or any third party necessary or
helpful to accomplish the transactions contemplated by this Agreement;
provided, however, that no party shall be required to take any action which
would have a material adverse effect upon it or any affiliated entity.
26
ARTICLE 9
CONDITIONS OF CLOSING BY THE BUYERS
-----------------------------------
The obligations of the Buyers hereunder are, at their option, subject
to satisfaction, at or prior to the Closing Date, of each of the following
conditions:
9.1 Representations, Warranties and Covenants.
9.1.1 All representations and warranties of the Seller made in
this Agreement shall be true and complete in all material respects as of the
date hereof and on and as of the Closing Date as if made on and as of that
date.
9.1.2 All of the terms, covenants and conditions to be complied
with and performed by the Seller on or prior to Closing Date shall have been
complied with or performed in all material respects.
9.1.3 The Buyers shall have received a certificate, dated as of
the Closing Date, executed by the Seller, to the effect that his
representations and warranties contained in this Agreement are true and
complete in all material respects on and as of the Closing Date as if made on
and as of that date, and that he has complied with or performed all terms,
covenants and conditions to be complied with or performed by him in all
material respects on or prior to the Closing Date.
27
9.2 Adverse Proceedings. No suit, action, claim or governmental
proceeding shall be pending against, and no order, decree or judgment of any
court, agency or other governmental authority shall have been rendered against,
any party hereto which would render it unlawful, as of the Closing Date, to
effect the transactions contemplated by this Agreement in accordance with its
terms.
9.3 Legal Opinion. The Seller shall have delivered to the Buyers a
written opinion of his counsel, dated as of the Closing Date, substantially in
the form attached hereto as Exhibit D.
9.4 Delivery of Certificates. On the Closing Date, the Buyers shall
have received such certificates or documents as shall be required to assign to
the Buyers the Seller's Membership Interest.
9.5 Acquisition of Other Membership Interests. On the Closing Date,
Triathlon Sports shall have consummated its acquisition of Xxxxxx'x membership
interest in Pinnacle (the "Xxxxxx Acquisition") on the terms and conditions set
forth in the Purchase and Sale Agreement between Triathlon Sports and Xxxxxx
which is being entered into simultaneously with this Agreement.
9.6 Employment Agreement. On the Closing Date, Pinnacle and the Seller
shall have entered into an employment agreement (the "Employment Agreement") on
terms mutually acceptable to both parties. The Employment Agreement shall be
for a term ending July 31, 2001, and shall provide, among other things, for the
payment to the Seller of a bonus in the amount of Two
28
Hundred Eighty-Eight Thousand Eight Hundred Eighty-Eight and 89/100ths Dollars
($288,888,89) for each year that the Rights Agreement referred to in Section
2.2 of this Agreement is extended or renewed, or a new rights agreement between
Pinnacle and the University is entered into, up to a maximum of Eight Hundred
Sixty-Six Thousand Six Hundred Sixty-Six and 67/100ths Dollars ($866,666.67),
which bonus shall be paid to the Seller regardless of whether or not the Seller
is employed by the Buyers or Pinnacle at the time that the Contingent Payment
becomes due under Section 2.2 of this Agreement.
9.7 Closing Documents. On the Closing Date, the Seller shall have
delivered or caused to be delivered to the Buyers each of the documents
required to be delivered by the Seller pursuant to Article 12.
ARTICLE 10
CONDITIONS OF CLOSING BY THE SELLER
-----------------------------------
The obligations of the Seller hereunder are, at his option, subject to
satisfaction, at or prior to the Closing Date, of each of the following
conditions:
10.1 Representations, Warranties and Covenants.
10.1.1 All representations and warranties of the Buyers shall be
true and complete in all material respects as of the date hereof and on and as
of the Closing Date as if made on and as
29
of that date.
10.1.2 All the terms, covenants and conditions to be complied
with and performed by the Buyers on or prior to the Closing Date shall have
been complied with or performed in all material respects.
10.1.3 The Seller shall have received a certificate, dated as of
the Closing Date, executed by a duly qualified officer of each of the Buyers,
to the effect that the representations and warranties of each of the Buyers
contained in this Agreement are true and complete in all material respects on
and as of the Closing Date as if made on and as of that date, and that each of
the Buyers has complied with or performed all terms, covenants and conditions
to be complied with or performed by it in all material respects on or prior to
the Closing Date.
10.2 Adverse Proceedings. No suit, action, claim or governmental
proceeding shall be pending against, and no other, decree or judgment of any
court, agency or other governmental authority shall have been rendered against
any party hereto which would render it unlawful, as of the Closing Date, to
effect the transactions contemplated by this Agreement in accordance with its
terms.
10.3 Legal Opinion. The Buyers shall have delivered to the Seller an
opinion of their corporate counsel, dated as of the Closing Date, substantially
in the form attached hereto as Exhibit E.
30
10.4 Payment of Purchase Price. The Buyers shall have delivered or
caused to be delivered to the Seller the Purchase Price in accordance with the
terms of Article 2 hereof.
10.5 Closing Documents. On the Closing Date, the Buyers shall have
delivered or caused to be delivered to the Seller each of the documents
required to be delivered by the Buyers pursuant to Article 12.
ARTICLE 11
FEES AND EXPENSES
-----------------
11.1 Expenses. Each party hereto shall be solely responsible for all
costs and expenses incurred by it in connection with the negotiation,
preparation and performance of and compliance with the terms of this Agreement;
provided, however, that any legal or accounting fees incurred by the Seller in
connection with the preparation and closing of this Agreement shall be paid by
Pinnacle and be considered a trade payable of Pinnacle as of the Closing Date.
ARTICLE 12
DOCUMENTS TO BE DELIVERED AT CLOSING
------------------------------------
12.1 The Seller's Documents. At the Closing, the Seller shall deliver
or cause to be delivered to the Buyers the following:
31
12.1.1 A certificate, dated the Closing Date, by the Seller in
the form described in Section 9.1.3 above;
12.1.2 Governmental certificates showing that Pinnacle is duly
organized as a limited liability company and is in good standing in the State
of Nebraska, dated not more than forty-five (45) calendar days before the
Closing Date;
12.1.3 Copies of the Articles of Organization and Operating
Agreement of Pinnacle, with all amendments thereto, certified by the Managing
Member as of the Closing Date;
12.1.3 The opinion letter, dated the Closing Date, referenced in
Section 10.3 above;
12.1.4 Certificates or other required documentation evidencing
assignment of the Seller's Membership Interest to the Buyers;
12.1.5 The Employment Agreement; and
12.1.6 Such additional information and material as the Buyers
shall have requested in a timely manner in writing and which is reasonably
necessary for the Closing.
12.2 The Buyers' Documents. At the Closing, the Buyers shall deliver
or cause to be delivered to the Seller the following:
32
12.2.1 The Purchase Price in accordance with Section 2.1 hereof.
12.2.2 A certificate, dated the Closing Date, by each of the
Buyers in the form described in Section 9.1.3 above.
12.2.3 The opinion of the Buyers' corporate counsel, dated the
Closing Date, referenced in Section 9.4;
12.2.4 Governmental certificates showing that each of the Buyers
and Triathlon is duly incorporated and in good standing in the State of
Delaware, and that each of the Buyers is duly qualified to transact business in
the State of Nebraska, in each case dated not more than forty-five (45)
calendar days before the Closing Date;
12.2.5 Certified resolutions of the Board of Directors of the
Buyers and Triathlon approving the execution and delivery of this Agreement and
each of the other documents and agreements referred to herein and authorizing
the consummation of the transactions contemplated hereby and thereby;
12.2.6 Copies of the Articles of Incorporation and Bylaws of the
Buyers, and all amendments thereto, certified by the Buyers' corporate
secretary as of the Closing Date;
12.2.7 The Promissory Note and Guaranty, the Pledge Agreement and
the
33
Employment Agreement; and
12.2.8 Such additional information and material as the Seller
shall have requested in a timely manner in writing and which is reasonably
necessary for the Closing.
ARTICLE 13
INDEMNIFICATION
13.1 The Seller's Indemnities. The Seller hereby agree to indemnify,
defend and hold the Buyers harmless with respect to any and all demands,
claims, actions, suits, proceedings, assessments, judgments, costs, losses,
damages, liabilities and expenses (including, without limitation, reasonable
attorneys' fees) asserted against, resulting from, imposed upon or incurred by
the Buyers directly or indirectly relating to or arising out of the inaccuracy
of any representation or warranty, or the breach of any covenant or agreement,
contained herein or in any instrument or certificate delivered pursuant hereto.
13.2 The Buyers' Indemnities. The Buyers hereby agree to indemnify,
defend and hold the Seller harmless with respect to any and all demands,
claims, actions, suits, proceedings, assessments, judgments, costs, losses,
damages, liabilities and expenses (including, without limitation, reasonable
attorneys' fees) asserted against, resulting from, imposed upon or incurred by
the Seller directly or indirectly relating to or arising out of the inaccuracy
of any representation or warranty, or the breach of any covenant or agreement,
contained herein or in any instrument or certificate delivered pursuant
34
hereto, or arising from and after the Closing under Pinnacle's lease for its
offices located in Elkhorn, Nebraska.
13.3 Rights. The Buyers and the Seller agree that the rights of
indemnification provided in this Article 13 are exclusive of and in addition to
any and all other such rights of the Buyers and the Seller hereunder.
13.4 Survival of Representations and Warranties. Except for the
provisions set forth in Sections 6.5 through 6.10 of this Agreement, which
shall survive the Closing until the Seller is paid in full for all amounts due
and owing under this Agreement, the Promissory Note and Guaranty and the Pledge
Agreement, all other representations and warranties contained herein shall
survive the Closing for the period from the Closing Date through and including
December 31, 1997 (the "Claims Period"). Any claim for indemnification
hereunder which arises during the Claims Period must be asserted by the party
seeking indemnification within forty-five (45) days after such claim arose, or
within forty-five (45) days after the date on which the party seeking
indemnification, through reasonable diligence, should have discovered such
claim, whichever occurs last, and upon the expiration of such forty-five (45)
day period such claim shall lapse and be of no further effect.
13.5 Limitation on Indemnity. Notwithstanding anything to the contrary
contained in this Agreement, and subject to the proviso set forth in this
Section 13.5, neither the Buyers nor the Seller shall have any liability or
obligation to the other for breach of any representation, warranty, covenant or
agreement of such other party made in this Agreement except to the extent that
the aggregate of
35
all claims by such other party for such breaches exceed Twenty Thousand Dollars
($20,000) (the "Threshold Amount") in the aggregate, in which event the party
so liable shall then be liable for all claims for any such breaches, including
the sums constituting the Threshold Amount.
13.6 Procedures.
13.6.1 Promptly after the receipt by any party (the "Indemnified
Party") of notice of (A) any claim or (B) the commencement of any action or
proceeding which may entitle such party to indemnification under this Section,
such party shall give the other party (the "Indemnifying Party") written notice
of such claim or the commencement of such action or proceeding and shall permit
the Indemnifying Party to assume the defense of any such claim or any
litigation resulting from such claim. The failure to give the Indemnifying
Party timely notice under this clause shall not preclude the Indemnified Party
from seeking indemnification from the Indemnifying Party unless such failure
has materially prejudiced the Indemnifying Party's ability to defend the claim
or litigation, except as set forth in Section 13.4 of this Agreement.
13.6.2 If Indemnifying Party assumes the defense of any such
claim or litigation resulting therefrom with counsel reasonably acceptable to
Indemnified Party, the obligations of the Indemnifying Party as to such claim
shall be limited to taking all steps necessary in the defense or settlement of
such claim or litigation resulting therefrom and to holding the Indemnified
Party harmless from and against any losses, damages and liabilities caused by
or arising out of any settlement approved by the Indemnifying Party or any
judgment in connection with such claim or
36
litigation resulting therefrom; however, the Indemnified Party may participate,
at its or his expense, in the defense of such claim or litigation provided that
the Indemnifying Party shall direct and control the defense of such claim or
litigation. The Indemnified Party shall cooperate and make available all books
and records reasonably necessary and useful in connection with the defense. The
Indemnifying Party shall not, in the defense of such claim or any litigation
resulting therefrom, consent to entry of any judgment, except with the written
consent of the Indemnified Party, or enter into any settlement, except with the
written consent of the Indemnified Party, which does not include as an
unconditional term thereof the giving by the claimant or the plaintiff to the
Indemnified Party of a release from all liability in respect of such claim or
litigation.
13.6.3 If the Indemnifying Party shall not assume the defense of
any such claim or litigation resulting therefrom, the Indemnified Party may,
but shall have no obligation to, defend against such claim or litigation in
such manner as it may deem appropriate, and the Indemnified Party may
compromise or settle such claim or litigation without the Indemnifying Party's
consent. The Indemnifying Party shall promptly reimburse the Indemnified Party
for the amount of all expenses, legal or otherwise, incurred by the Indemnified
Party in connection with the defense against or settlement of such claim or
litigation if, and only if, the Indemnifying Party has failed to assume the
defense of such claim or litigation pursuant to Section 13.6.2. If no
settlement of the claim or litigation is made, the Indemnifying Party shall
promptly reimburse the Indemnified Party for the amount of any judgment
rendered with respect to such claim or in such litigation and of all expenses,
legal or otherwise, incurred by the Indemnified Party in the defense against
such claim or litigation if, and only if, the Indemnifying Party has failed to
assume the defense of such claim or
37
litigation pursuant to Section 13.6.2.
ARTICLE 14
TERMINATION RIGHTS
------------------
14.1 Termination. This Agreement may be terminated by either the
Buyers or the Seller if the party seeking to terminate is not in material
default or breach of this Agreement, upon written notice to the other upon the
occurrence of any of the following:
(a) if, on or prior to the Closing Date, a party defaults in any
material respect in the observance or in the due and timely performance of any
of its or their covenants or agreements herein contained and such material
default shall not be cured within ten (10) calendar days of the date of written
notice of default served by the party claiming such material default; or
(b) if there shall be in effect any judgment, final decree or
order that would prevent or make unlawful the Closing of this Agreement; or
(c) by the Buyers only, if Triathlon Sports has not consummated
the Xxxxxx Acquisition due to a default by Xxxxxx; or
(d) as provided in Section 15.2 or any other Section of this
Agreement which specifically provides for termination.
38
14.2 Liability. The termination of this Agreement under Section 14.1
shall not relieve any party of any liability for breach of this Agreement prior
to the date of termination.
ARTICLE 15
OTHER PROVISIONS
----------------
15.1 Liquidated Damages. If the parties hereto shall fail to
consummate this Agreement due to the Buyers' breach of any material
representation, warranty, covenant or condition hereunder, and the Seller is
not at that time in breach of any material representation, warranty, covenant
or condition hereunder, then the Seller would suffer direct and substantial
damages, which damages cannot be determined within reasonable certainty.
Therefore, because of the expense and delay which would be incurred in such
event by Seller, the Buyers shall pay to the Seller the amount of Twenty
Thousand Dollars ($20,000.00), which amount shall constitute liquidated
damages. Five Thousand Dollars ($5,000.00) of such amount has already been
delivered to the Seller, and an additional Fifteen Thousand Dollars
($15,000.00) shall be delivered to the Seller by the Escrow Agent from the
Escrow Account. It is understood and agreed that such liquidated damage amount
represents the Buyers' and the Seller's reasonable estimate of actual damages
and does not constitute a penalty. Recovery of liquidated damages of Twenty
Thousand Dollars ($20,000.00) shall be the sole and exclusive remedy of the
Seller against the Buyers for failing to consummate this Agreement on the
Closing Date and shall be applicable regardless of the actual amount of damages
sustained.
15.2 Risk of Loss. The risk of loss or damage to the assets of
Pinnacle prior to the Closing
39
Date shall be upon the Seller. The Seller agrees that Pinnacle shall repair,
replace and restore any such damaged or lost asset to its prior condition, as
soon as possible and in no event later than the Closing Date. Except as
provided below, if Pinnacle fails to restore or replace any such asset having a
value exceeding Ten Thousand Dollars ($10,000.00) and such loss is not insured
by Pinnacle for its full replacement value, the Buyers may elect either to
terminate this Agreement pursuant to Article 14 hereof or to consummate the
Closing on the Closing Date. If Pinnacle fails to restore or replace such asset
and the Buyers do not elect to terminate this Agreement, the Seller shall cause
Pinnacle to assign to the Buyers at Closing its rights under any insurance
policy or pay over to the Buyers all proceeds of insurance covering such
asset's damage, destruction or loss. If the restoration and replacement of any
damaged or destroyed property has not been completed at the time the Closing
would otherwise be held, then unless the Seller and the Buyers otherwise agree,
the Closing Date shall be delayed and shall take place within fifteen (15)
calendar days after the Seller gives written notice to the Buyers of completion
of the restoration or replacement of such asset.
15.3 Specific Performance. In the event of a material breach by the
Seller of his representations and obligations hereunder, not cured within ten
(10) calendar days after written notice to that effect from the Buyers, the
Buyers shall have the right to bring an action to enforce the terms of this
Agreement by decree of specific performance, it being agreed that the
Membership Interest to be transferred hereunder is unique and not readily
available in the open market, and the Seller thereby further agrees to waive
any and all defenses against any such action for specific performance based on
the grounds that there is an adequate remedy for money damages available.
40
15.4 Further Assurances. After the Closing, the Seller shall from time
to time, at the request of and without further cost or expense to the Buyers,
execute and deliver such other instruments of conveyance and transfer and take
such other actions as may reasonably be requested in order to more effectively
consummate the transactions contemplated hereby to vest in the Buyers good and
marketable title to the Membership Interest being transferred hereunder.
15.5 Benefit and Assignment. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns. No party may voluntarily or involuntarily
assign its interest under this Agreement without the prior written consent of
the other party.
15.6 Entire Agreement. This Agreement, the Disclosure Schedule and the
Exhibits hereto embody the entire agreement and understanding of the parties
hereto and supersede any and all prior agreements, arrangements and
understandings relating to the matters provided for herein. In the event of a
conflict between the terms of this Agreement and any other agreement executed
in connection herewith, the terms of this Agreement shall prevail. No
amendment, waiver of compliance with any provision or condition hereof or
consent pursuant to this Agreement shall be effective unless evidenced by an
instrument in writing signed by the party against whom enforcement of any
waiver, amendment, change, extension or discharge is sought.
15.7 Headings. The headings set forth in this Agreement are for
convenience only and will not control or affect the meaning or construction of
the provisions of this Agreement.
41
15.8 Governing Law. The construction and performance of this Agreement
shall be governed by the laws of the State of Nebraska without giving effect to
the choice of law provisions thereof. The parties hereto hereby acknowledge and
agree that the sole and only forum for litigating any issues which may arise
between the parties under this Agreement shall be the District Court of
Lancaster County, Nebraska.
15.9 Notices. Any notice, demand or request required or permitted to
be given under the provisions of this Agreement shall be in writing and shall
be deemed to have been duly delivered and received on the date of personal
delivery or on the date of receipt, if mailed by registered or certified mail,
postage prepaid and return receipt requested, or on the date of a stamped
receipt, if sent by an overnight delivery service, or on the date of written
confirmation of delivery by facsimile or telecopy transmission, and shall be
addressed to the following addresses, or to such other address as any party may
request, in the case of the Seller, by notifying the Buyers, and in the case of
the Buyers, by notifying the Seller:
To the Seller: Xxxx X. Xxxxx
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy No.
With a Copy to: W. Xxxxxxx Xxxxxx, Esq.
Xxxxxx, Poppe, Otte, Watermeier & Xxxxxxxx, P.C.
000 Xxxxx 0xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telecopy No. (000) 000-0000
42
To the Buyers: Triathlon Sports Programming, Inc.
TSPN, Inc.
Symphony Towers
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Att: Xx. Xxxxxx Xxxxx
President
Telecopy No. (000) 000-0000
With a Copy to: Xxxxxxx X. Xxxxx, Esq.
The Sillerman Companies
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No. (000) 000-0000
15.10 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which
together will constitute one and the same instrument.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
43
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
TRIATHLON SPORTS PROGRAMMING, INC.
By:
--------------------------------
Xxxxxx Xxxxx
President
TSPN, INC.
By:
--------------------------------
Xxxxxx Xxxxx
President
-----------------------------------
Xxxx X. Xxxxx
44
