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EXHIBIT 10.02
STOCK PURCHASE AGREEMENT
THIS IS A STOCK PURCHASE AGREEMENT (the "Agreement") dated March 18,
1999, by, between and among XXXXXXX HILLS, LTD., a Utah corporation (the
"Buyer") and H. XXXXX XXXXXXX ("Xxxxxxx"), XXXXXX XxXXX ("XxXxx) and XXXX X.
XXXXXX ("Xxxxxx"), jointly and severally, (the "Sellers"), with respect to the
purchase and sale of 100% of the issued and outstanding capital stock of BRIAR
& WOOD, INC., a New York corporation (the "Company"). Each of Xxxxxxx, XxXxx
and Xxxxxx are referred to herein individually as "Seller" and collectively as
the "Sellers".
PREAMBLE
A. The Sellers are the beneficial and record owners of all of the
issued and outstanding shares of the capital stock of the Company. The Shares
are held by the Sellers as follows:
Percentage of All Shares
Seller No. of Shares Issued and Outstanding
------ ------------- ----------------------
H. XXXXX XXXXXXX 46.25 46.25
XXXXXX XxXXX 46.25 46.25
XXXX X. XXXXXX 7.50 7.50
B. The Company has its principal offices and place of business at 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, and is primarily engaged in the business
of (a) producing and publishing a periodical (presently in four to six issues
per year) known as "The Golfer" and (b) selling advertising space in said
periodical to manufacturers and sellers of golfing equipment, apparel and
paraphernalia, operators of golf courses and country clubs, and others whose
products and services may be of interest to the subscribers and other readers
of the periodical (the "Business").
C. The Sellers wish to sell to the Buyer, and the Buyer wishes to
purchase from the Sellers, all of the Shares, upon the terms and subject to the
conditions of this Agreement. Certain terms used in this Agreement are defined
in Article 7 hereof.
NOW, THEREFORE, IN CONSIDERATION OF the mutual covenants contained
herein and other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
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ARTICLE 1
SALE OF THE SHARES
1.1 SALE AND PURCHASE OF SHARES. Each of the Sellers hereby agrees to
sell, assign, transfer, convey and deliver to the Buyer at the Closing (as
defined in Section 6.1) all of his or her right, title and interest in and to
the Shares, free and clear of all Liens, on the terms and conditions
hereinafter set forth. Purchaser, in reliance upon the representations,
warranties and agreements of the Sellers contained herein and subject to the
terms and conditions of this Stock Purchase Agreement (this "Agreement"),
hereby agrees to purchase the Shares from the Sellers, and non-competition
agreements from Xxxxxxx and XxXxx, for the Purchase Price as provided in
Article 2 hereof.
1.2 INCLUDED ASSETS. Except as may be specifically identified in
Schedule 1.2 ("Excluded Assets"), the Company is sold with all of its property
and assets of any kind, real or personal, tangible or intangible, including but
not limited to any and all of its inventory, pending orders, accounts
receivable, equipment, fixtures, leases, leasehold improvements, cash on hand,
deposits, contracts and contract rights, customer lists, contacts, advantageous
business relationships with vendors and other parties, computer software,
Internet web sites, trade names, trademarks, service marks and other
Proprietary Rights, business records, and good will. All utility and lease
deposits, accounts receivable and cash drawer amounts shall remain in place.
Any utility and lease deposits which were paid or advanced by Sellers will be
separately assigned by the Sellers to the Buyer at the Closing.
1.3 ALLOCATION OF PAYMENTS. Any and all payments to the Sellers pursuant
to Article 2 of this Agreement shall be allocated among the Sellers and paid to
them in proportion to their respective percentages of ownership of the Shares.
Provided, however, that $25,000 of the sum to be paid to Xxxxxxx on the date of
Closing shall be allocated to and deemed to constitute full payment for the
Non-competition Agreement to be executed by Xxxxxxx at Closing, and $25,000 of
the sum to be paid to DaRif on the date of Closing shall be allocated to and
deemed to constitute full payment for the Non-competition Agreement to be
executed by DaRif at Closing.
ARTICLE 2
CONSIDERATION AND MANNER OF PAYMENT
2.1 PURCHASE PRICE. The purchase price to be paid by Buyer to the
Sellers for the Shares and for the Non-competition Agreements by Xxxxxxx and
XxXxx (the "Purchase Price") shall be the total of the Initial Payments and the
Earnings Multiple Amount set forth in Section 2.2 and Section 2.3,
respectively, hereinbelow.
2.2 INITIAL PAYMENTS. The Buyer shall pay to the Sellers the sum of
$250,000 in cash at Closing, an additional $125,000 on September 1, 1999, and a
final initial payment of $125,000 on the first anniversary of this Agreement
("Initial Payments").
2.3 BALANCE OF PURCHASE PRICE. Subject to Section 2.5 hereinbelow,
(a) The Buyer shall also pay to the Sellers, as and for the Balance
of the Purchase Price
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of the Shares, a sum equal to a Multiple, as determined pursuant to Section
2.3(b) below, of the Company's net earnings before income taxes, depreciation
and allowances ("EBITDA") for the calendar year 2001 ("Year 2001 EBITDA"), less
the initial payments made pursuant to Section 2.2 above. Year 2001 EBITDA shall
be as determined by the Company's regularly engaged accountants in accordance
with generally accepted accounting principles consistently applied, but subject
to the following additional rules and adjustments:
(i) Year 2001 EBITDA shall be determined on a cash basis
(i.e., only sums actually received and paid during the calendar year 2001 shall
be taken into account), except as provided in (ii), (iii) and (iv) hereinbelow.
(ii) All income which shall be accrued but not yet received as
of December 31, 2001, shall be included if and to the extent actually received
on or before February 28, 2002. All expenses accrued but not yet paid as of
December 31, 2001 shall be included whether or not actually paid on or before
February 28, 2002.
(iii) Items received by the Company in the form of trade or
barter shall not be included.
The Balance of the Purchase Price shall be paid in installments as determined
pursuant to Section 2.3(c) below.
(b) The Multiple of the Year 2001 EBITDA which shall be utilized in
the calculation of the Balance of the Purchase Price shall depend upon the
Company's Gross Revenue for the calendar year 2001, in accordance with the
following schedule:
Year 2001 Gross Revenue Multiple
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$1,000,000 or Less 3
More than $1,000,000 but less than $2,000,000 3.5
More than $2,000,000 but less than $3,000,000 4
More than $3,000,000 but less than $4,000,000 4.5
More than $4,000,000 but less than $5,000,000 5
More than $5,000,000 but less than $6,000,000 5.5
More than $6,000,000 6
Gross Revenue, for purposes of this Agreement, shall be as determined by the
Company's regularly engaged accountants in accordance with generally accepted
accounting principles consistently applied, but subject to the following rules
and adjustments:
(i) Gross Revenue shall be determined on a cash basis (i.e.,
only sums actually received during the calendar year 2001 shall be taken into
account), except as provided in (iii), (iv) and (v) hereinbelow. and and shall
include all of the Company's receipts from circulation and sales
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of "The Golfer", from the sale of advertising space in "The Golfer", from any
license of the name "The Golfer", or from promotions and sales campaigns, and
any other revenues received by the Company in the ordinary course of the
Business.
(ii) Gross Revenue shall not include capital contributions,
the proceeds of any loan or of the sale of the Company's stock, assets or
business, income tax or other refunds, or the proceeds of any sale or other
transaction out of the ordinary course of the Business.
(iii) All revenue which shall be accrued but not yet
received as of December 31, 2001, shall be included if and to the extent
actually received on or before February 28, 2002.
(iv) Items received by the Company in the form of trade or
barter shall not be included.
(c) The Balance of the Purchase Price, as determined in accordance
with Sections 2.3(a), and (b) above, shall be paid by the Buyer to the Sellers
as follows:
(i) If the Balance of the Purchase Price shall equal or exceed
the sum of $5,000,000, $1,000,000 of the principal thereof shall be paid on or
before March 31, 2002; fifteen (15%) percent of the principal thereof shall be
paid in quarter-annual installments on June 30, 2002, September 30, 2002,
December 31, 2002 and March 31, 2003; an additional fifteen (15%) percent of
the principal thereof shall be paid in quarter-annual installments on June 30,
2003, September 30, 2003, December 31, 2003 and March 31, 2003; and the balance
of the principal thereof shall be paid in quarter-annual installments on June
30, 2004, September 30, 2004, December 31, 2004 and March 31, 2005. Each
payment of principal shall be accompanied by payment of interest in arrears in
accordance with (iv) hereinbelow.
(ii) If the Balance of the Purchase Price shall equal or
exceed the sum of $2,000,000 but shall be less than the sum of $5,000,000,
$1,000,000 of the principal thereof shall be paid on or before March 31, 2002;
twenty five (25%) percent of the principal thereof shall be paid in
quarter-annual installments on June 30, 2002, September 30, 2002, December 31,
2002 and March 31, 2003; an additional twenty five (25%) percent of the
principal thereof shall be paid in quarter-annual installments on June 30,
2003, September 30, 2003, December 31, 2003 and March 31, 2004; and the balance
of the principal thereof shall be paid in quarter-annual installments on June
30, 2004, September 30, 2004, December 31, 2004 and March 31, 2005. Each
payment of principal shall be accompanied by payment of interest in arrears in
accordance with (iv) hereinbelow.
(iii) If the Balance of the Purchase Price shall be less than
the sum of $2,000,000, fifty (50%) of the principal thereof or $1,000,000,
whichever shall be greater, shall be paid on or before March 31, 2002; and the
balance thereof shall be paid in quarter-annual installments on June 30, 2002,
September 30, 2002, December 31, 2002 and March 31, 2003. Each payment of
principal shall be accompanied by payment of interest in arrears in accordance
with (iv) hereinbelow.
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(iv) Interest shall be computed not more frequently than daily
on the principal amount outstanding at a rate equal to one (1%) percent over
the prime rate charged by Chase Bank, N.A. provided, however, that in the event
that Chase Bank, N.A. fails or ceases to publish a prime rate of interest for
any reason, then the applicable rate of interest shall be the prime rate as
published in the "Money Rates" section of the Wall Street Journal from time to
time.
2.4 TRANSFER TAXES. The Sellers shall promptly pay when due any stamp or
other sales, transfer or transaction tax ("Transfer Tax") imposed under the
laws of the United States or any state, county, municipality or other
subdivision thereof on the sale of the Shares by the Sellers to the Buyer.
2.5 LIMITATION OF BUYER'S LIABILITY.
(a) Pending full payment of all of the payments provided for in
this Article 2, the Shares shall be held in escrow pursuant to a Stock Pledge
Agreement in the form attached to this Agreement as Exhibit 5.
(b) Within fifteen (15) days after the determination of the Balance
of the Purchase Price by the Company's accountants, in accordance with Sections
2.3 of this Agreement, the Buyer shall have the right, upon written notice to
the Sellers, to inform Sellers of Buyer's intention not to pay the Balance of
the Purchase Price.
(i) If Buyer so notifies the Sellers, then the Shares shall be
released to the Sellers. In such event, the Buyer shall be deemed to have
forfeited any and all of right, title or interest which Buyer might otherwise
have had or claimed with respect to the Shares, and neither the Buyer nor the
Sellers shall have any further rights or liabilities with respect to the other.
(ii) If Buyer does not give Sellers timely notice of its
intention not to pay the Balance of the Purchase Price, Buyer shall make the
initial payment due pursuant to Section 2.3(c) and make and deliver to each
Seller a Promissory Note representing the such Seller's share of the remainder
of the Balance of the Purchase Price. Each Note shall be in the form of the
Promissory Note which is being delivered by the Company to the Buyer
contemporaneously herewith.
ARTICLE 3
SELLERS' REPRESENTATIONS AND WARRANTIES
The Sellers jointly and severally hereby represent, warrant and covenant
to the Buyer as follows:
3.1 AUTHORITY.
(a) Each Seller has full power, right and authority to enter
into, deliver and perform such
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Seller's obligations under this Agreement and the other agreements and
instruments to be executed and delivered by the Sellers pursuant to this
Agreement (the "Other Seller Documents").
(b) This Agreement and the Other Seller Documents have been duly
executed and delivered by each Seller and constitute the valid and legally
binding obligation of such Seller, enforceable in accordance with their
respective terms, subject to bankruptcy, insolvency or other similar laws of
general applicability relating to or affecting creditors' rights generally and
to general principles of equity.
(c) The execution and delivery by the Sellers of this Agreement
and the Other Seller Documents, the consummation of the transactions
contemplated by this Agreement and the performance by the Sellers of this
Agreement and each such other agreement and instrument in accordance with their
respective terms and conditions will not
(i) require the Sellers or the Company to obtain any consent,
approval, authorization or action (the "Consents") of any Governmental Body or
any other person except for the Consents set forth on Schedule 3.1 (which
Consents have been obtained prior to Closing) and except for those Consents the
failure to obtain which would not have a material adverse effect on the
Company's business, condition (financial or otherwise) or prospects;
(ii) violate, conflict with or result in the breach of any of
the terms and conditions of, result in a material modification of the effect
of, otherwise cause the termination of or give any other contracting party the
right to terminate, or constitute (or with notice of lapse of time or both
would constitute) a default under any Contracts to which the Sellers, the
Company or any of its properties may be bound or subject;
(iii) violate any Law or Order of any Governmental Body
applicable to the Company or any of its properties;
(iv) violate any provision of the Certificate of
Incorporation or By-laws (or comparable instruments) of the Company; or
(v) violate or result in the revocation or suspension of any
Permit.
3.2 ORGANIZATION OF THE COMPANY. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New York. The Company has all requisite power and authority to own, lease and
operate its properties and assets as now owned or leased and to carry on the
Business as and where it is now being and heretofore has been conducted.
3.3 QUALIFICATION. The Company is duly qualified or otherwise authorized
as a foreign corporation to transact business and is in good standing in each
of the jurisdictions listed on Schedule 3.3 and there are no other
jurisdictions in which the conduct of its businesses or activities or its
ownership of assets requires such qualification under applicable law, except
where the failure to be
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so qualified would not have a material adverse effect on the financial
condition of the Company.
3.4. MINUTE BOOK(S) AND STOCK RECORDS. The minute books of the Company
contain true and complete records of all meetings and consents in lieu of
meeting of the Company's Board of Directors and of the Company's stockholders
since the time of the Company's organization and accurately reflect all
transactions referred to in such minutes and consents in lieu of meeting. The
stock records of the Company (including stock certificate stubs, canceled stock
certificates and stock transfer ledger) are likewise complete and correct in
all material respects.
3.5 SUBSIDIARIES. The Company has no Subsidiaries and does not own, and
has not owned, directly or indirectly, any stock, partnership interest, joint
venture interest or other equity interest in any other corporation, trust,
partnership, joint venture or other entity, except as expressly set forth in
Schedule 3.5. Except as set forth in said Schedule, all of the issued and
outstanding capital stock or other ownership interests of each Subsidiary or
other entity set forth in said Schedule is owned by the Company, free and clear
of any Lien.
3.6 CERTIFICATE OF INCORPORATION, BYLAWS, OFFICERS AND DIRECTORS.
Accurate and complete copies of the Company's Certificate of Incorporation and
all amendments thereto to date, certified by the Secretary of State of the
State of New York, and Bylaws as amended to date, certified by an officer of
the Company, are attached hereto as Schedule 3.6. Said Schedule also contains
an accurate and complete list of all of the current directors and officers of
the Company.
3.7 CAPITAL STOCK. The Company's entire authorized capital stock
consists solely of 200 shares of Common Stock, no par value, 100 of which are
issued and presently outstanding and 100 of which are held in its treasury. All
of such outstanding shares have been duly authorized, validly issued and are
fully paid and non-assessable. The owners and holders of all of the issued and
outstanding capital stock of the Company, and the number of shares held by
each, are as stated in the Preamble of this Agreement.
3.8 OPTIONS, ETC. Except for the Shares, the Company does not have any
stock outstanding or other securities convertible into or exchangeable for
shares of its capital stock or containing profit participation features, and
the Company does not have any options, warrants or rights (preemptive or
otherwise) outstanding to subscribe for or to purchase its capital stock or any
stock or securities convertible into or exchangeable or its capital stock.
There are no voting agreements, voting trusts or other agreements (including,
without limitation, contractual or statutory preemptive rights or cumulative
voting rights), commitments or understandings with respect to the voting or
transfer of the capital stock of the Company.
3.9 TITLE TO THE SHARES. The Sellers are the sole record and beneficial
owners of the Shares as set forth in the Preamble of this Agreement, free and
clear of any Lien, security interest, restriction, encumbrance or claim. Upon
consummation of the transactions provided for in this Agreement, the Buyer will
receive good title to the Shares, free and clear of any Liens whatsoever, other
than any transfer restrictions under federal and state securities laws.
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3.10 FINANCIAL STATEMENTS. Attached to this Agreement as Exhibit 1 are
the following Financial Statements of the Company, all of which have been
prepared by the Company's regularly engaged accountants in accordance with
generally accepted accounting principles consistently applied, to wit: the
unaudited balance sheets of the Company for the fiscal years ended December 31,
1996, December 31, 1997 and December 31, 1998 and the related statements of
income and deficits for the year then ended. Each of the Financial Statements
included in Exhibit 1, and any and all other financial statements which have
been provided to the Buyer for purposes of the transactions contemplated by
this Agreement, whether prepared by the Company or by its accountants and/or
auditors, (a) are correct and complete, (b) fairly present the financial
condition, assets and liabilities of the Company as at their respective dates
and the results of their operations and changes in financial position for the
periods covered thereby and (c) have been prepared in accordance with generally
accepted accounting principles consistently maintained.
3.11 ABSENCE OF UNDISCLOSED LIABILITIES. The Company has no liability or
obligation of any nature (whether accrued, absolute, contingent, direct,
indirect, perfected, inchoate, unliquidated or otherwise, and whether due or to
become due), including liabilities for or in respect of federal, state and
local taxes and any interest or penalties relating thereto, except (i)
liabilities reflected or reserved against in the Financial Statements which
have been provided to the Buyer and (ii) liabilities incurred in the ordinary
course of business since the date of said Financial Statements and reflected on
the Company's books of account, or (iii) liabilities otherwise disclosed in
this Agreement or in any Exhibit or Schedule hereto. Sellers knows of no basis
for the assertion against the Company of any other liability of any nature.
3.12 INVENTORIES. The inventories of the Company, if any, (a) are
properly reflected on its books and records in accordance with generally
accepted accounting principles consistently applied, at the lower of cost or
market on a first-in, first-out basis, (b) are not obsolete or damaged (except
as such are properly reserved for in the December 31, 1998 Financial
Statements) and (c) consist of a quality and quantity useable and saleable in
the ordinary course of business without rework or discount except for obsolete
and damaged items which have been properly reserved for in the Financial
Statements.
3.13 TAXES.
(a) TIMELY PAYMENT. All Federal, state, county, local, foreign
and other taxes (including income, sales, use, payroll related, withholding,
employment, unemployment compensation, profits, premium, estimated, excise,
occupancy, gross receipts, franchise, ad valorem, severance, capital levy,
production, transfer, property taxes, import duties and other governmental
charges and assessments), whether or not measured in whole or in part by net
income, and including deficiencies, interest, additions to tax or interest, and
penalties with respect thereto, and including expenses associated with
contesting any proposed adjustment related to any of the foregoing
(collectively, "Taxes"), required to be paid by or with respect to the Company
on or before the date of this Agreement have been timely paid.
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(b) NO LIENS. There are no Liens for Taxes (other than for
current Taxes not yet due and payable) on the assets of the Company.
(c) TAX RETURNS. All returns and other reports required to be
filed by or with respect to the Company with respect to Taxes (collectively,
"Tax Returns") on or before the date hereof have been timely filed and were
prepared in compliance with applicable Laws and were true, complete and correct
in all material respects as of the date on which they were filed or as
subsequently amended. The Company has true, complete and correct copies of all
Tax Returns filed by the Company since its inception.
(d) WITHHOLDING. The Company has complied in all material
respects with all applicable Laws relating to the withholding of Taxes and have
timely collected or withheld and paid over to the proper governmental
authorities all amounts required to be so collected or withheld and paid over
for all periods up to the date hereof.
(e) EXTENSIONS AND WAIVERS. Except as set forth in Schedule
3.13(e), no extension of time is in force with respect to any date on which any
Tax Return was or is to be filed, and no waiver or agreement is in force for
the extension of time for the assessment or payment of any Tax.
(f) AUDITS. Except as set forth in Schedule 3.13(f), there are no
pending audits of any of the Company's Tax Returns which are pending, and no
prospective audits of which the Company has received notice.
(g) DEFICIENCIES, INTEREST AND PENALTIES. Except as set forth in
Schedule 3.13(g), there are no claimed deficiencies, additions to Tax, interest
and/or penalties that have been made, assessed or proposed with respect to any
of the Company's Tax Returns.
(h) JURISDICTIONS WHERE TAX RETURNS ARE REQUIRED. Schedule
3.13(h) contains a list of states, territories and jurisdictions (whether
foreign or domestic) in which the Company is required to file Tax Returns. No
claim has ever been made by a taxing authority in a jurisdiction where the
Company does not file Tax Returns that the Company is or may be subject to
taxation by such jurisdiction.
(i) EXISTING PARTNERSHIPS. The Company is not a partner in any
entity organized as a partnership under any state law in the United States or
the law of any foreign jurisdiction and has not received a "Schedule K-1" from
any such partnership asserting that the Company is a partner therein.
(j) AFFILIATED GROUP. The Company is not and has not been a
member of an Affiliated Group.
(k) COMPLIANCE. To the best of Sellers' knowledge, all Tax laws
to which the Company or its activities may be subject and all Tax agreements by
which the Company may be bound have been fully complied with.
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(l) CONSENTS UNDER SECTION 341(f)(1). The Company has not at any
time consented under Section 341(f)(1) (dealing with "collapsible
corporations") of the Internal Revenue Code of 1986, as amended (the "Code"),
to have the provisions of Section 341(f)(2) of the Code apply to any sale of
its capital stock.
(m) ADJUSTMENTS UNDER SECTION 481. The Company has not agreed to
make nor is it required to make, any adjustment under Section 481(a) of the
Code by reason of a change in accounting methods or otherwise.
3.14 CONTRACTS. Schedule 3.14 sets forth a complete list of all of the
following contracts, understandings, agreements, relationships and commitments,
whether written or oral, to which the Company is a party or by which it is
bound or subject (collectively, the "Contracts"), including a complete
description of all oral Contracts, wherein the actual or potential obligation
of the Company equals or exceeds the sum of $15,000:
(a) BORROWED MONEY. All Contracts relating to borrowing of money
or the encumbrance of assets in connection therewith, including all notes,
mortgages, indentures and other obligations and agreements and other
instruments for or relating to any lending or borrowing by the Company.
(b) GUARANTEES. All guarantees of any obligation.
(c) EMPLOYMENT CONTRACTS. All Contracts regarding the employment
of any officer, individual employee or other Person on a full-time, part-time,
consulting or other basis (other than oral contracts of employment at will).
(d) LEASES. All leases or agreements under which the Company is
lessee or holds or operates any property, real or personal, owned by another
party or under which the Company is lessor or permits any other party to hold
or operate any property, real or personal, owned or controlled by the Company,
in each case with annual payments of over $5,000 per year.
(e) NONCOMPETE AGREEMENTS. All Contracts prohibiting the Company
or its shareholders from freely engaging in any business or competing anywhere
in the world.
(f) LICENSES. All material assignments, licenses,
indemnifications or agreements with respect to any intangible property
(including, without limitation, any Intellectual Property Rights), including
any Contract under which the Company has granted or received a license or
sublicense or under which it is obligated to pay or has the right to receive a
royalty, license fee or similar payment.
(g) PURCHASE AGREEMENTS. All material Contracts relating to the
purchase or sale of materials, supplies, equipment, machinery, parts, products
or services, or distribution of products which are not terminable by the
Company within thirty (30) days upon written notice, without penalty or further
payment.
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(h) SALES AND ADVERTISING. All Contracts with any manufacturer's
representative or other sales agent, distributor or representative, or
advertising or marketing entity having a remaining term in excess of thirty
(30) days and which are not terminable by the Company within thirty (30) days
upon written notice, without penalty or further payment, or which require
payments in excess of $10,000 per year.
(i) CAPITAL EXPENDITURES. Any Contract for capital expenditures
or the acquisition or construction of fixed assets for or in respect of Real
Property in excess of $10,000 individually.
(j) INDEMNIFICATION. Any Contract providing for the
indemnification of any officer, director, employee or other person.
(k) INSURANCE. All existing insurance policies relating to the
Company, its assets or its business activities.
(l) OTHERS. All Contracts between the Company and any of the
Sellers or any related person, or between the Company and any of its officers,
directors and employees, and all other existing Contracts and agreements
material to the conduct of the Company's business as it has been and is now
being conducted.
Complete and accurate copies of all such Contracts and agreements, and of any
amendments thereto, have been provided to the Buyer by the Sellers prior to the
execution of this Agreement. Except as set forth in Schedule 3.14, all of such
Contracts are valid, in full force and effect, and binding upon each party
thereto, and no party is in default thereof, nor does any condition exist that
with notice or lapse of time or both would constitute a default thereunder.
3.15 REAL PROPERTY; LEASES. The Company owns no real property. There is
an existing lease in favor of the Company with respect to the Company's
business premises at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx. A true, complete
and correct copy of said lease (including any and all amendments) is attached
to this Agreement as Exhibit 2. Said lease is in full force and effect. Sellers
have no knowledge and are not on notice of any default which is claimed by or
against either party thereto. The sale of the Shares to the Buyer will not
constitute a default under the lease, or give rise to any termination thereof.
There are no other leases or subleases of real property to which the Company is
a party.
3.16 TANGIBLE PERSONAL PROPERTY OWNED BY THE COMPANY. Attached hereto as
Schedule 3.16 is list of the Company's furniture, furnishings, leasehold
improvements, equipment and other tangible personal property which is owned by
the Company or in which and used in connection with the Company's business and
operations. Said list is accurate in all particulars which it sets forth set
forth. The Company has good title to all of such property, free and clear of
any Liens, except such as are disclosed on Schedule 3.16. Except as set forth
in Schedule 3.16, none of such personal
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property is held under any security agreement, conditional sales contract or
other title retention or security arrangement or is located other than on the
premises of the Company.
3.17 TANGIBLE PERSONAL PROPERTY LEASED BY THE COMPANY. Attached hereto
as Schedule 3.17 is a list of all furniture, furnishings, leasehold
improvements, equipment and other tangible personal property which is leased by
the Company and used in connection with the Company's business and operations.
Said list is accurate in all particulars which it sets forth set forth. All of
the applicable leases are in full force and effect, and Sellers have no
knowledge and are not on notice of any default which is claimed by or against
any party thereto.
3.18 LITIGATION. Except as set forth in Schedule 3.18, (a) there are no
actions, suits, investigations, or proceedings of any kind pending or
threatened against or affecting the Company or any of its assets, or against
any of the officers, directors or employees of the Company with respect to
their business activities on behalf of the Company; (b) the Company is not
subject to any judgment, order or decree of any court or governmental agency
except to the extent that the same are not reasonably likely to have an adverse
effect on the Business or the financial condition of the Company; and (c) the
Company is not engaged in any legal action to recover monies due it or for
damages sustained by it.
3.19 COMPLIANCE WITH APPLICABLE LAWS. The Company is not in violation of
any applicable order, judgment, injunction, award, decree or writ
(collectively, "Orders), or any material law, statute, code, ordinance,
regulation or other requirement (collectively, "Laws") of any government or
political subdivision thereof, any board or organization or other
non-governmental regulating body (to the extent that the rules, regulations or
orders of such body have the force of law) or any court or arbitrator
(collectively, "Governmental Bodies"), and neither the Company nor any of the
Sellers has received notice that any such violation is being or may be alleged.
3.20 INTELLECTUAL PROPERTY RIGHTS. All trademarks, service marks, trade
names and copyrights (including computer software and data) used by the Company
in the conduct of its business are described and set forth with particularity
in Schedule 3.20, other than such trademarks, service marks, trade names and
copyrights which are not material to the operation of the Business, together
with information as to the Company's ownership thereof or licenses therein and
registration thereof. Except as set forth in Schedule 3.20, (a) the Company
owns and possesses all right, title and interest in and to, or has a valid
license to use, all of the Intellectual Property Rights necessary for the
operation of the Company's business as presently conducted, (b) neither the
Company nor the Sellers are aware of any claim made by any party contesting the
validity, enforceability, ownership or use of any such Intellectual Property
Rights which is currently outstanding or threatened and the Sellers are not
aware of any reasonable basis for any such claim, (c) neither the Company nor
the Sellers have received any notices of, nor, to their knowledge, is there any
reasonable basis for an allegation of, any infringement or misappropriation by,
or conflict with, any third party with respect to such Intellectual Property
Rights, nor have the Sellers or the Company received any notice of any claims
of infringement or misappropriation of or other conflict with any Intellectual
Property Rights of any third party, and (d) to the knowledge of the Sellers, no
third party has infringed, misappropriated or
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otherwise violated any Intellectual Property Rights of the Company. To the
Sellers' knowledge, no corporation or other entity, other than the Company, has
operated under the name "Briar & Wood", or publishes or has heretofore published
any periodical under the name "The Golfer".
3.21 OPERATIONS OF THE COMPANY. Except as set forth in Schedule 3.21,
since December 31, 1998, the Company has not (a) declared or paid any dividends
or declared or made any other distributions of any kind to its shareholders;
(b) except for short-term bank borrowings in the ordinary course of business,
incurred any indebtedness for borrowed money; (c) reduced its cash, other than
to meet cash needs arising in the ordinary course of business; (d) waived any
material right under any Contract or other agreement of the type required to be
set forth on any Schedule; (e) made any change in its accounting methods or
practices or made any change in depreciation or amortization policies or rates
adopted by it; (f) made any loan or advance other than in the ordinary course
of business; (g) except in the ordinary course of business, sold, abandoned or
made any other disposition of any of its properties or assets; (h) suffered the
loss of or adverse change in the Company's relationship with any customer,
advertiser, supplier or licensor which would have a material adverse effect on
the Business or the financial condition of the Company, (i) adopted, amended or
terminated any Employee Plan, which has resulted or may result in additional
liability to the Company exceeding $10,000 in the aggregate, (j) increased or
made any promise to increase the compensation payable by the Company to any
officers, directors or employees, or any bonus payment or arrangement, other
than in the ordinary course of business consistent with past practices; or (k)
engaged in any other material transaction other than in the ordinary course of
business.
3.22 MATERIAL ADVERSE CHANGE. Since the dates of the Financial
Statements attached hereto as Exhibit 1 , there has been no event, development
or condition of any character which has had or, to the Knowledge of any of the
Sellers could have, a material adverse effect on the properties, business,
prospects, results of operations or condition (financial or otherwise) of the
Company.
3.23 INSURANCE. Schedule 3.23 sets forth a list of all policies or
binders of fire, liability, worker's compensation, health, life, short-term and
long-term disability, vehicular and other insurance held by or on behalf of the
Company (collectively, the "Insurance Policies"). The Sellers have delivered or
has caused the Company to deliver to the Buyer a copy of each of the Insurance
Policies. Except as set forth in Schedule 3.23, all of the Insurance Policies
are and will be at the time of Closing in full force and effect, and there are
not and will not be at the time of Closing any premiums due but unpaid with
respect to any of them.
3.24 BANK ACCOUNTS. Schedule 3.24 is an accurate and complete list of
each bank in which the Company has an account or safe deposit box, the number
of each such account or box, and the names of all persons authorized to draw
thereon or to have access thereto.
3.25 LICENSES AND PERMITS. The Company has all licenses, permits,
exemptions, consents, waivers, certifications, authorizations, rights,
certificates of occupancy, franchises, orders or approvals of, and has made all
required registrations and filings with, any Governmental Body that are
material to the conduct of the Company's business (collectively, "Permits").
All of said Permits
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are listed in Schedule 3.25 and are in full force and effect; no violations are
or have been recorded in respect of any Permit, and no proceeding is pending or
threatened to revoke or limit any Permit. The execution, delivery and
performance of this Agreement will not have an adverse effect on any of such
Permits. To the knowledge of Sellers, no loss or expiration of any such Permit
is pending or overtly threatened, and Sellers are not aware of any reasonable
basis for any such loss or expiration.
3.26 EMPLOYEE BENEFIT PLANS.
(a) Except as set forth in Schedule 3.26, the Company is not and
has not been the sponsor of any Employee Plan or arrangement, whether subject
to ERISA or otherwise, and whether or not terminated, and has no liability,
actual or contingent, direct or indirect, in respect of any such Plan.
(b) No Employee Plan listed in Schedule 3.26 is a Welfare Plan
that provides benefits for retirees or their spouses or dependents (other than
any COBRA obligations), or a (pension or welfare) "multiemployer plan", as
defined in Section 4001 of ERISA, or "multiemployer plan" within the meaning of
Section 3(37) of ERISA.
(c) The Company has no existing or potential liability with
respect to its Employee Plans for all periods ending prior to or as of the date
of this Agreement (including periods from the first day of the then current
plan year to the date hereof) except, and only to the extent of, any liability
that:
(i) is specifically referenced in the Financial
Statements attached hereto as Exhibit 1;
(ii) is funded under a funding arrangement
(including any insurance contract or
arrangement) separate from the assets of the
Company or any Plan Affiliate;
(iii) relates to cash wages and related employment
taxes that are not yet due and payable in
accordance with normal payroll practices;
(iv) relates to premiums payable (and not yet
due) under any insured Welfare Plan;
(v) is described in Schedule 3.26;
(vi) is otherwise not in excess of $10,000.
For purposes of this Section 3.26(c), liability shall include any liability for
(or arising out of):
(i) any failure to comply in form and in
operation, administration, maintenance and
funding with any applicable requirements of
XXXXX,
00
00
the Code, the Americans with Disabilities
Act, 42 U.S.C. Section 12101 et. Seq., the
Family and Medical Leave Act, Pub. L. no.
103-3, Section 1862(b) of the Social Security
Act, 42 U.S.C. Section 1395y, or any other
federal, state or local statute, law,
ordinance, regulation or order;
(ii) any action, suit, investigation or claim
pending or, to the knowledge of the Sellers,
threatened with respect to the assets thereof
(other than routine claims for benefits), and
there are no facts which would give rise to
liability under any action suit,
investigation, or claim (other than routine
claims for benefits) against any Employee
Plan, any fiduciary with respect to any
Employee Plan, or the assets of any Employee
Plan;
(iii) any "prohibited transaction" as such term is
defined in ERISA or the Code, fiduciary
breach or COBRA Obligation; or
(iv) any payments, premiums, contributions,
expenses, retrospective or retroactive
adjustments, reimbursements or accruals.
(d) Each Employee Plan of the Company can be terminated within no
more than (30) days without liability or penalty to the Company, except for
liabilities accrued prior to the date of such termination.
(e) A listing of the number of all Employees as to whom the
Company has any liability under any Employee Plan is set forth on Schedule
3.26.
(f) Complete and correct copies of each written Employee Plan as
amended to the Closing Date, of each insurance contract, if any, with respect
to each such Employee Plan, and of any and all letters, rulings or notices
issued by any governmental agency with respect to such Employee Plan have been
delivered to the Buyer.
3.27 INTEREST OF THE SELLERS IN COMPETITORS, ETC. Except as stated in
this Section 3.27 or as set forth on Schedule 3.27, neither the Sellers nor any
of their Affiliates:
(a) owns, directly or indirectly, any interest in (except for
less than one percent stock holdings for investment purposes in securities of
publicly-held and -traded companies), or is an officer, director, employee or
consultant of, any person which is, or is engaged in business as, a competitor
of the Business;
(b) owns or holds, directly or indirectly, any tangible or
intangible property (other than immaterial items of personal property) used in
the conduct of the Business;
(c) is a party to any agreement, Contract, understanding,
commitment or transaction with the Company; or
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(d) has any cause of action or other claim whatsoever against, or
owes any money to, the Company.
It is acknowledged that the Sellers have been and are engaged, and will
continue to be engaged, in the publication of a magazine named "The Sporting
Life". The continued publication of said magazine will not be a violation of
this Section 3.27, or of any other agreement between the parties.
3.28 HEALTH, SAFETY AND ENVIRONMENT. The Company is in compliance with
all applicable federal, state and local laws, rules and regulations, ordinances
and requirements relating to public health and safety, worker health and safety
and pollution and protection of the environment, and the Company possesses all
required permits, licenses and certificates, and has filed all notices or
applications, required thereby.
3.29 LABOR MATTERS. The Company has no labor unions or collective
bargaining agreements with its employees. Except as set forth in Schedule 3.29,
there is no, and within the last three years the Company has not experienced
any, strike, picketing, boycott, work stoppage or slowdown or other labor
dispute or, to the knowledge of the Company, any union organizational activity
or any complaint of, or any allegation, charge or reasonable basis for any
allegation or charge of, any unfair labor practice, employment discrimination
or other matters relating to the employment of labor. The Company has complied
in all material respects with all applicable laws relating to the employment of
labor, including but not limited to those relating to wages, hours, equal
opportunity, collective bargaining, and the payment of social security and
other taxes.
3.30 RECEIVABLES.
(a) All of the Company's accounts and notes receivable reflected
in the Financial Statements attached hereto as Exhibit 1 (i) have arisen in the
ordinary course of the Company's business and (ii) subject only to a reserve
for bad debts computed in a manner consistent with past practice and reasonably
estimated to reflect the probable results of collection, have been collected or
are collectible in the ordinary course of business in the aggregate recorded
amounts thereof in accordance with their terms.
(b) Attached hereto as Schedule 3.30 is a current list of the
Company's accounts receivable prepared for purposes of this Agreement. Said
list is accurate in all particulars which it sets forth, and the total of the
Company's uncollected accounts receivable as of the execution of this Agreement
is not less than 97% of the total shown. All of said accounts receivable (i)
have arisen in the ordinary course of the Company's business and (ii) subject
only to a reserve for bad debts computed in a manner consistent with past
practice and reasonably estimated to reflect the probable results of
collection, are collectible in the ordinary course of business, in the amounts
stated and in accordance with their respective terms.
3.31 CLAIMS AND PROCEEDINGS. Except as set forth in Schedule 3.31, there
are no Claims (whether or not the defense thereof or liabilities in respect
thereof are covered by insurance) pending
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or, to the knowledge of any of the Sellers, threatened, against or involving the
Company or any of its properties and assets (i) where the claimant seeks
recovery in excess of $1,000, or where maximum exposure with respect to such
claim could reasonably be expected to exceed $1,000, or (ii) which relate to, or
could reasonably be expected to have any effect on, the transactions
contemplated by this Agreement.
3.32 TITLE TO PROPERTIES. The Company owns outright and has good title
to all of its properties and assets, including all of the assets reflected on
its Balance Sheet included in Exhibit 1, in each case free and clear of any
Lien, except for (a) Liens specifically described in Exhibit 1, (b) assets
disposed of in the ordinary course of business since the preparation of the
Financial Statements included in Exhibit 1 (c) Liens with respect to leased
equipment and (d) Liens, if any, set forth on Schedule 3.32.
3.33 FULL DISCLOSURE. No representation or warranty by the Sellers in
this Agreement, and no Exhibit, document, statement, certificate or Schedule
which has been furnished or to be furnished to Buyer pursuant hereto, or in
connection with the transactions contemplated hereby, contains or will contain
any untrue statement of a material fact, or omits or will omit to state a
material fact necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading.
3.34 NO BROKERS, FINDERS, ETC. No broker, finder, agent or similar
intermediary ("Broker") has acted on behalf of the Company or the Sellers, or
any of them, in connection with this Agreement or the transactions contemplated
hereby, and there are no brokerage commissions, finder's fees or similar fees
or commissions payable in connection therewith.
ARTICLE 4
BUYER'S REPRESENTATIONS AND WARRANTIES
The Buyer hereby represents, warrants and covenants to the Sellers,
jointly and severally, as follows:
4.1 BUYER'S ORGANIZATION. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the state of Utah, and has all
requisite power and authority to acquire the Shares.
4.2 AUTHORITY TO EXECUTE AND PERFORM AGREEMENT. The execution, delivery
and performance of this Agreement by Buyer have been duly authorized by all
necessary corporate action on the part of Buyer, and this Agreement constitutes
the legal, valid and binding obligation of Buyer, enforceable against Buyer in
accordance with its terms. The execution and delivery by the Buyer of this
Agreement and each and every agreement and instrument contemplated hereby to
which the Buyer is or will be a party, the consummation of the transactions
contemplated by this Agreement and the performance by the Buyer of this
Agreement and each such other agreement and instrument in accordance with their
respective terms and conditions will not (a) violate any provision of the
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organization documents of the Buyer, (b) require the Buyer to obtain any
consent, approval, authorization or action of, or make any filing with or give
any notice to, any Governmental Body or any other person, (c) violate, conflict
with or result in the breach of any of the terms and conditions of, result in a
material modification of the effect of, otherwise cause the termination of or
give any other contracting party the right to terminate, or constitute (or with
notice of lapse of time or both would constitute) a default under any Contracts
to which the Buyer is a party or to which the Buyer or any of its properties is
or may be bound or subject; or (d) violate any Law or Order of any Governmental
Body applicable to the Buyer.
4.3 PURCHASE FOR INVESTMENT. The Buyer is purchasing the Shares for its
own account for investment and not for resale or distribution.
4.4 NO BROKERS, FINDERS, ETC.
(a) No broker, finder, agent or similar intermediary ("Broker") has
acted on behalf of the Buyer in connection with this Agreement or the
transactions contemplated hereby, and there are no brokerage commissions,
finder's fees or similar fees or commissions payable in connection therewith.
(b) Buyer has consulted with Xxxx Xxxxxxxx in relation to the
matters encompassed by this Agreement. Buyer will be solely responsible for any
consulting or other fees which may be due to or claimed by said Xxxx Xxxxxxxx
or his company for their services to Buyer, and Buyer shall hold harmless and
indemnify the Sellers against any claims by Xxxx Xxxxxxxx or his company on
account thereof.
ARTICLE 5
INDEMNIFICATION
5.1 NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
(a) The representations, warranties, covenants and agreements of
the Buyers and the Sellers contained in this Agreement, and all statements
contained in this Agreement or any Exhibit or Schedule hereto or any
certificate, financial statement or report or other document delivered pursuant
to this Agreement or in connection with the transactions contemplated hereby,
will be deemed to constitute representations, warranties, covenants and
agreements of the respective party delivering the same.
(b) The Sellers acknowledge that their representations and
warranties in this Agreement will not be affected or mitigated by any
investigation conducted by Buyer or its representatives prior to Closing or any
knowledge of Buyer, except to the extent that Buyer or its officers, employees
and legal representatives shall be shown to have been provided with any
affirmative written disclosure at or prior to the Closing.
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(c) All representations, warranties, covenants and agreements
contained in this Agreement shall survive the execution and delivery of this
Agreement and the Closing hereunder for a period of five (5) years (the
"Survival Period") from the Closing Date, provided, however, that, any
representation, warranty, covenant or agreement which is the subject of a claim
or dispute asserted prior to the expiration of the Survival Period shall
survive with respect to such claim or dispute until final resolution thereof.
5.2 OBLIGATION OF SELLERS TO INDEMNIFY. Sellers agree to indemnify,
defend and hold harm-less the Buyer (and the Buyer's directors, officers,
employees, affiliates, successors and assigns) from and against all Claims,
losses, liabilities, damages, deficiencies, judgments, assessments, fines,
settlements, costs or expenses (including interest, penalties and fees,
expenses and disbursements of attorneys, experts and consultants) ("Losses")
incurred by the indemnified party in any action or proceeding between the
indemnifying party and the indemnified party, or between the indemnified party
and any third party, or otherwise based upon, arising out of or otherwise in
respect of any inaccuracy in or any breach of any representation, warranty,
covenant or agreement of the Sellers contained in this Agreement or in any
Documents delivered by the Sellers or the Company pursuant to this Agreement.
Provided, however, that the obligation of any one Seller to indemnify the Buyer
pursuant to this Section shall not exceed the total amount which such Seller
has received and is to receive (inclusive of said Seller's share of the Initial
Payments and said Seller's share of the Balance of the Purchase Price) under
this Agreement, and that any affirmative recovery by Buyer shall be limited to
the total of the sums actually received by said Seller as of the date the
recovery is obtained.
5.3 BUYER'S RIGHT OF OFFSET. Without limiting any other rights and
notwithstanding anything to the contrary set forth herein, any amounts due to
the Buyer (or its directors, officers, employees, affiliates, successors or
assigns) pursuant to Section 5.2 above may be offset by Buyer against any
unpaid balance of the Purchase Price due to Sellers pursuant to Article 2 of
this Agreement. The initial amount of such offset shall be in such amount as
the Buyer reasonably determines to be necessary in order to cover the
anticipated Loss to which it relates, and there shall be an appropriate
adjustment between the parties at such time as the actual amount of the Loss
has been finally determined.
5.4 OBLIGATION OF BUYER TO INDEMNIFY. Buyer agrees to indemnify, defend
and hold harmless the Sellers (and each of the Sellers' heirs executors
administrators, personal representatives and successors) from and against all
Claims, losses, liabilities, damages, deficiencies, judgments, assessments,
fines, settlements, costs or expenses (including interest, penalties and fees,
expenses and disbursements of attorneys, experts and consultants) ("Losses")
incurred by the indemnified party in any action or proceeding between the
indemnifying party and the indemnified party, or between the indemnified party
and any third party, or otherwise based upon, arising out of or otherwise in
respect of any inaccuracy in or any breach of any representation, warranty,
covenant or agreement of the Buyer contained in this Agreement or in any
Documents delivered by the Buyer pursuant to this Agreement.
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5.5 INSURANCE. A party's right to indemnification shall not be limited
or affected by the existence, non-existence or extent of any insurance coverage
which may be applicable.
5.6 NOTICE AND OPPORTUNITY TO DEFEND.
(a) NOTICE OF ASSERTED LIABILITY. If any action, suit or proceeding
shall be commenced against, or any Claim or demand be asserted against a party
who may be entitled to and seek indemnification with respect thereto pursuant
to any provision of this Agreement ("Indemnitee"), the person from whom
indemnification is sought ("Indemnitor"), shall be given written notice thereof
with reasonable promptness. The notice shall describe the asserted liability in
reasonable detail, and shall indicate the amount (estimated, if necessary and
to the extent feasible) of the Loss that has been or may be suffered by the
Indemnitee.
(b) OPPORTUNITY TO DEFEND. The Indemnitor shall have the right to
assume the entire defense of such action, suit, proceeding, or claim or demand
control thereof (including the selection of counsel), provided it shall post
security for the payment of any judgement or settlement in form and amount
reasonably satisfactory to Indemnitee, subject to the right of the Indemnitee
to participate at its expense (and with counsel of its choice) in the defense,
compromise or settlement thereof. In connection therewith, the Indemnitee shall
cooperate fully in all aspects with the Indemnitor in any such defense,
compromise or settlement, including, without limitation, by making available to
the Indemnitor all pertinent information under the control of the Indemnitee.
The Indemnitor will not compromise or settle any such action, suit, proceeding,
claim or demand without the prior written consent of the Indemnitee, which
consent shall not be unreasonably withheld; provided, however, that in the
event such approval is withheld, following written request therefor, then the
liability of the Indemnitor with respect to such action, suit, proceeding claim
or demand shall be limited to the total amount which would have been paid by
the Indemnitor with respect thereto if the proposed compromise or settlement
had been approved, including the amount of counsel fees and other legal
expenses attributable thereto which shall have accrued at the time such
approval is withheld.
ARTICLE 6
CLOSING
6.1 THE CLOSING. The closing of the purchase and sale of the Shares (the
"Closing") will take place on the date of this Agreement (the "Closing Date"),
at the offices of the Sellers' counsel. The parties hereby agree to treat the
Closing Date as the closing date of the transactions contemplated herein for
Federal, state and local income tax purposes.
6.2 DELIVERIES BY SELLERS. At the Closing, the Sellers shall deliver to
the Escrow Agents pursuant to the Stock Pledge Agreement stock certificates
representing the Shares, which shall be free and clear of all liens, security
interests, claims and encumbrances, and which shall be duly endorsed
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or accompanied by stock powers executed in blank and with all appropriate stock
transfer tax stamps affixed thereto. The Sellers will also deliver to Buyer the
Company's minute book(s), stock certificate book and stock transfer ledger.
6.3 DELIVERIES BY BUYER. At the Closing, the Buyer shall deliver to the
Sellers a check payable to the order of the Sellers in the amount of that part
of the Purchase Price which is to be paid at Closing, as specified in Section
2.2 of this Agreement, and a copy of resolutions of the Buyer's Board of
Directors, certified by an officer thereof as having been duly and validly
adopted and in full force and effect, authorizing the execution and delivery of
this Agreement and the performance by the Buyer of the transactions
contemplated by this Agreement.
6.4 ACTIONS TO BE TAKEN AT THE CLOSING; OTHER AGREEMENTS.
(a) FINANCING ARRANGEMENT. The Company and the Buyer will enter
into a Loan and Security Agreement in the form attached hereto as Exhibit 3,
and the Company will execute and deliver to the Buyer a Promissory Note in the
form attached hereto as Exhibit 4.
(b) STOCK PLEDGE AGREEMENT. The Buyer and the Sellers will enter
into Stock Pledge Agreement in the form attached hereto as Exhibit 5.
(c) EMPLOYMENT AGREEMENTS. The Company and each of Xxxxxxx and XxXxx
will enter into employment agreements in the forms attached hereto as Exhibits 6
and 7, respectively.
(d) NON-COMPETITION AGREEMENT. Each of the Sellers will execute and
deliver to the Buyer a Non-Competition Agreement in the form attached hereto as
Exhibit 8.
(e) OPINION OF COUNSEL. The Buyer shall receive an opinion of
counsel to the Sellers, dated as of the Closing Date, in the form attached
hereto as Exhibit 9.
(f) RESIGNATIONS. All of the directors and officers of the Company
shall deliver their written resignations, in the form attached hereto as
Exhibit 10.
ARTICLE 7
MISCELLANEOUS
7.1 CERTAIN DEFINITIONS. As used in this Agreement, the following terms
have the following meanings:
"Affiliate" means, with respect to any person, any other person
controlling, controlled by or under common control with, or the parents,
spouse, lineal descendants or beneficiaries of, such person.
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"Affiliated Group" means an affiliated group as defined in Section
1504 of the Code (or any analogous combined, consolidated or unitary group
defined under state, local or foreign income tax law) of which the Company is
or has been a member.
"Cash" means money or currency or a credit balance in a demand,
savings, passbook, money market or similar account maintained with a commercial
bank, savings and loan association or like institution, short-term certificates
of deposit that can be liquidated at par on the date of calculation and wire
transfers and deposits in transit on the date of calculation.
"Claim" means any action, cause of action, suit, claim, complaint,
demand, litigation or legal, administrative or arbitral proceeding or
investigation.
"COBRA Obligation" means the obligation imposed upon the Company's
Welfare Plans (if any) to meet the requirements of Section 4980(B) of the Code,
any applicable state law requiring medical continuation coverage, or Part 6 of
Title I of ERISA.
"Code" means the Internal Revenue Code of 1986, as amended.
"Contracts" include any contract, agreement, indenture, note, bond,
loan, instrument, lease, conditional sale contract, mortgage, license,
franchise, commitment or other binding arrangement.
"Copyrights" means any foreign or United States copyright
registrations and applications for registration thereof, and any non-registered
copyrights used in connection with the business of the Company.
"Documents" means all documents, Contracts, instruments,
certificates, notices, consents, affidavits, letters, telexes, faxes,
statements, schedules (including Schedules to this Agreement), exhibits
(including Exhibits to this Agreement) and any other papers whatsoever.
"Employee" means a current employee (including both active and
inactive employees) or a former employee (including a retiree, COBRA Obligation
continued or disabled employee of the Company or any Plan Affiliate).
"Employee Plan" means, with respect to employment of (or the
provision of services by or the termination of employment of (or termination of
the provision of services by) any Employee, non-Employee director or leased
employee (or the dependents or beneficiaries thereof), and in respect of which
the Company, any Subsidiary or any Plan Affiliate has any liability to pay any
amounts to or on behalf of any Participants, any of the following agreements,
plans, programs or arrangements (whether written or unwritten and whether or
not terminated):
(i) any employee welfare plan, as defined in Section 3(1) of
ERISA ("Welfare Plan"),
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including but not limited to any severance agreement or plan, any material
fringe benefit plan or program, any medical plan, life insurance plan,
short-term or long-term disability plan, dental plan, personnel policy, vacation
time, holiday pay, bonus program, service award, moving expense reimbursement
program and sick leave;
(ii) any employee pension benefit plan, as defined in
Section 3(2) of ERISA ("Pension Plan"), including but not limited to any
nonqualified deferred compensation or retirement plan or arrangement, excess
benefit plan, top hat plan or deferred compensation plan, or any qualified
defined contribution or defined benefit arrangement; or
(iii) any other plan, policy, program, arrangement or
agreement ("Other Plan"), including but not limited to any bonus or incentive
plan, stock option, restricted stock, stock bonus, deferred bonus plan, salary
reduction agreement, change-of-control agreement, retention agreement,
employment agreement or consulting agreement;
which could result in the Buyer having or incurring any liability, whether
direct or indirect.
"ERISA" means the Employment Retirement Income Security Act of
1974, as amended.
"Intellectual Property" includes all patents, trademarks service
marks, trade names, Copyrights, Software and other Proprietary Rights (as
defined hereinbelow) that are used in connection with the business of the
Company.
"IRS" means the Internal Revenue Service.
"Lien" means any lien, pledge, mortgage, deed of trust, security
interest, claim, lease, license, charge, option, right of first refusal,
easement, servitude, transfer restriction, encumbrance or any other restriction
or limitation whatsoever.
"person" means any individual, corporation, partnership, limited
liability company, firm, joint venture, association, joint-stock company,
trust, unincorporated organization, Governmental Body or other entity.
"property" or "properties" means real, personal or mixed property,
tangible or intangible.
"Proprietary Rights" means all patents, patent applications, patent
disclosures and inventions (whether or not patentable and whether or not
reduced to practice); all trademarks, service marks, trade names and corporate
names; all registered and unregistered statutory and common law copyrights; all
registrations, applications and renewals for any of the foregoing; all trade
secrets, confidential information, ideas, formulae, compositions, know-how,
manufacturing and production or layout processes and techniques, research and
development information, drawings, specifications, designs, plans,
improvements, proposals, technical and computer data, documentation and
software, financial business and marketing plans and customer and supplier
lists and related information.
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"Software" means any computer software programs, information
systems, source code, object code, data and documentation used in connection
with the business of the Company.
"Subsidiary" means any corporation of which the securities having a
majority of the ordinary voting power in electing the board of directors are,
at the time as of which any determination is being made, owned by the Company
either directly or through one or more Subsidiaries.
7.2 MANAGEMENT OF THE COMPANY AFTER CLOSING. It is acknowledged that the
amount of the consideration to be received by Sellers' for the sale of the
Shares to the Buyer will depend on the Company's gross revenues and EBITDA for
the calendar year 2001, and that the manner in which the Company is operated
from and after the Closing through and including the end of said calendar year
will be determinative of the outcome. Accordingly, the parties agree as
follows:
(a) Subject to the provisions contained in Section 7.2(b) below, so
long as Xxxxxxx shall remain employed as the Company's President and so long as
the Company shall be operated in conformity with the pro forma budget attached
to Xxxxxxx' Employment Agreement (as determined in accordance with the
provisions of that agreement), Xxxxxxx shall have the sole responsibility and
authority with respect to all aspects of the management and operation of the
Company's business, including but not limited to the following, except as
stated:
(i) the incurring of expenses, provided that the expenses
incurred are reasonably related to the promotion and operation of the Company's
present business, to wit, the publication of The Golfer Magazine and the sale
of advertising space in said magazine;
(ii) the hiring and firing of personnel;
(iii) the determination of employees' salaries, bonuses and
other benefits, and the determination of any sales representatives' commissions
or other compensation and benefits, provided that such authority shall not
include the authority to establish or increase any compensation or benefits to
any of the Sellers without the advance approval of the Buyer;
(iv) the content and design of The Golfer Magazine, provided
that the magazine remains consistent in its general content and quality with
the magazine as it is presently being published;
(v) the Company's methods of distribution;
(vi) the number of issues of The Golfer Magazine to be
published in any year, and decisions as to any special issues to be published,
provided that there shall be not less than 5 issues published in any calendar
year unless Buyer shall approve a lesser number;
(vii) promotional tie-ins;
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(viii) trade or barter transactions, subject to the condition
that any goods or services received in any such transaction shall enure solely
to the benefit of the Company and not to any individual person or other entity;
and
(ix) circulation and pricing.
(b) There shall be established an Advisory Board, of which there
shall be four (4) members comprised of Pickens, DaRif, a representative of the
Buyer, and a consultant who is knowledgeable concerning the magazine publishing
business and who is designated by the Buyer subject to Xxxxxxx' approval, which
approval Xxxxxxx shall not unreasonably withhold. Xxxxxxx' withholding of
approval shall be deemed not unreasonable in any case in which the consultant
designated by the Buyer shall not possess any national magazine experience.
Notwithstanding the provisions contained in Section 7.2(a) above, Xxxxxxx shall
not be authorized to make decisions or take actions of the following kinds
unless first considered by the Advisory Board and approved by not less than
three (3) of its members:
(i) the hiring or firing of any employee having an annual
salary equaling or exceeding $35,000, or the incurring of any other obligation
or expense (other than printing or other usual operating expenses of the
business) equaling or exceeding $20,000;
(ii) the making of any contract or other obligation having a
term or anticipated duration in excess of one year; or
(iii) the making of any decision or the taking of any action
outside the ordinary course of the Company's business as it has heretofore been
conducted.
(c) Nothing contained in this Section 7.2 is intended or shall be
construed or operate so as (i) to limit the right of the Buyer to cause the
Company to discharge Xxxxxxx as President and to terminate his employment
pursuant to his Employment Agreement, under any circumstances in which said
Employment Agreement affords the Company a specific right to terminate his
employment; (ii) to limit the right of the Buyer to vote the Shares for the
election of the Company's Board of Directors or on any other matters with
respect to which a vote of the Company's stockholders is necessary or
appropriate; or (iii) to limit the right of the Company's Board of Directors to
take any action which is not inconsistent with the provisions of this Section
7.2 and with respect to which a vote of the Company's Board of Directors is
necessary or appropriate.
(d) Notwithstanding any discharge of Xxxxxxx as the Company's
President, Xxxxxxx shall continue to be a member of the Advisory Board until all
payments pursuant to Article 2 of this Agreement have been made by the Buyer.
(e) In the event of Xxxxxxx' death before all of the Buyer's payment
obligations pursuant to Article 2 of this Agreement have been discharged, a new
President shall be selected by the Buyer and DaRif.
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(f) Any discharge of Xxxxxxx as President and termination of his
employment other than in accordance with the terms and provisions of his
Employment Agreement shall be deemed to be a breach of this Stock Purchase
Agreement, and shall afford to the Sellers the remedies provided for in the
Stock Pledge Agreement.
7.3 PUBLICATION OF THE SPORTING LIFE.
(a) Buyer shall be provided with two pages of advertising (for Buyer
and/or any of its affiliates) in each of the two issues of The Sporting Life
magazine to be published during the 12 months following the date of Closing, at
no cost to the Buyer. In consideration thereof, Buyer agrees that Company's
premises may continue to be utilized for the business of publishing The Sporting
Life on the same basis as prior to this Agreement. Sellers represent that such
operations will not unduly delay or interfere with the operations of the
Company, represent an undue burden upon the Company or its employees, or
materially increase the Company's operating expenses.
(b) In the absense of any further written agreement, upon the
expiration of 12 months following the date of Closing, Xxxxxxx shall cause any
and all activities in relation to the publication of The Sporting Life magazine
to be removed to other quarters.
7.4 COSTS, EXPENSES AND TAXES. The Sellers will pay all costs and
expenses, including Sellers' legal fees, in connection with their performance
of and compliance with this Agreement, and all transfer, documentary and
similar taxes in connection with the delivery of the Shares to be made
hereunder. Buyer will pay all costs and expenses, including legal fees, of
Buyers' performance of and compliance with this Agreement.
7.5 NOTICES. All notices, request, demands and other communications
hereunder will be in writing and will be deemed to have been duly given if
personally delivered or, if mailed, when mailed by United States first-class,
certified or registered mail, postage prepaid, to the other party at the
following addresses (or at such other address as will be given in writing by
any party to the other):
If to Buyer, to:
Xxxxxxx Hills, Ltd.
0000 Xxxxxxxxx Xxxx X.X., # X-000
Xxxxxxx, Xx. 00000
Attn: Xxxxxxx Xxxxxx, President
With a required copy to:
Xxxxx X. Xxxxxxxxx, Esq.
0X Xxxx Xxxxxx Xxx
Xxxxxxxxxx Xxxxx, X.X. 10510
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If to Sellers, to:
Xxxxx Xxxxxxx
00 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxx XxXxx
00 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxx X. Xxxxxx
000 Xxxx Xxxxx Xxxx
Xxxxxxxxxxxxx, X.X. 00000
With a required copy (in the case of any notice to Xxxxxxx or XxXxx) to:
Xxxx X. Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
7.6 RIGHTS TO NAME.
(a) From and after the Closing, Sellers shall be deemed to have
relinquished any rights which they might otherwise have had or claimed to the
name "The Golfer" and all derivatives thereof, and agree not to use such names
in connection with any business or in any other manner whatever without the
Company's and the Buyer's written consent in advance obtained.
(b) Buyer covenants and agrees that unless and until the Buyer
shall have paid all payments due to the Sellers pursuant to Article 2 of this
Agreement, it shall not sell, assign, license or make any other disposition of
the name "The Golfer" or of any right, title or interest therein, or cause the
Company to do so, without the written consent of the Sellers in advance
obtained. It is further understood that from and after any release of the
Shares to the Sellers in accordance with the terms of the Stock Pledge
Agreement, Buyer shall neither have nor claim any rights with respect to said
name.
(c) So long as the Buyer shall not be in default of any of its
obligations pursuant to Article 2 of this Agreement, the Buyer shall be
entitled to represent to third parties, and publish to the world at large, that
it is the owner of the Shares and that the Company (and the publisher of The
Golfer Magazine) is a wholly-owned subsidiary of the Buyer. Buyer shall be free
to use the name of the Company, and the name "The Golfer", in its public
relations activities, or in connection with any efforts to promote Buyer's
business and/or public image, provided that any such use shall be professional
and shall not in any way disparage or cast dishonor or disrepute upon the
Company, the magazine or any of the Sellers.
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7.7 RESOLUTION OF DISPUTES. The Sellers and the Purchaser hereby consent
to the jurisdiction of any state or federal court located within the County of
New York, State of New York and irrevocably agree that any and all actions and
proceedings arising out of or relating to this Agreement or any related
document, instrument or agreement shall be resolved by litigation in such
courts. In connection with any such proceedings, the prevailing party, as
determined by the court, shall be entitled to its attorney's fees and costs in
addition to any other relief granted.
7.8 ENTIRE AGREEMENT. This Agreement and the Schedules and Exhibits
hereto, each of which is hereby incorporated herein, set forth all of the
promises, covenants, agreements, conditions and undertakings between the
parties hereby with respect to the subject matter hereof, and supersede all
prior and contemporaneous agreements and understandings, inducements or
conditions, express or implied, oral or written.
7.9. MODIFICATIONS. This Agreement shall not be modified or modifiable
except in a writing signed by the party or parties to be charged therewith.
7.10 SUCCESSORS AND ASSIGNS. This Agreement, and all rights and powers
granted hereby, will bind and inure to the benefit of the Sellers and their
respective heirs, administrators, executors, personal representatives and
assigns, and the Buyer and its successors and assigns.
7.11 FURTHER ASSURANCES. Each party will cooperate and take such action
as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
7.12 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
7.13 COUNTERPARTS. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all, of the parties hereto.
7.14 SEVERABILITY OF PROVISIONS.
(a) If any provision or any portion of any provision of this
Agreement shall be held invalid or unenforceable, the remaining portion of such
provision and the remaining provisions of this Agreement shall not be affected
thereby.
(b) If the application of any provision or any portion of any
provision of this Agreement to any person or circumstance shall be held invalid
or unenforceable, the application of such provision or portion of such
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable shall not be affected thereby.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
ATTEST: BUYER: XXXXXXX HILLS, LTD.
/s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxxxxx Xxxxxx
--------------------------------- --------------------------------
Xxxxxxx Xxxxxxxx, Secretary Xxxxxxx Xxxxxx, President
WITNESS: SELLERS:
/s/ [ILLEGIBLE] /s/ H. Xxxxx Xxxxxxx
--------------------------------- --------------------------------
H. Xxxxx Xxxxxxx
/s/ Xxxxxx XxXxx
--------------------------------- --------------------------------
Xxxxxx XxXxx
/s/ Xxxx X. Xxxxxx
--------------------------------- --------------------------------
Xxxx X. Xxxxxx
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ACKNOWLEDGMENTS
STATE OF GEORGIA )
COUNTY OF XXXX )
On the 27 day of April, 1999, before me personally came Xxxxxxx Xxxxxx,
as President of Xxxxxxx Hills, Ltd., and attested to by Xxxxxxx Xxxxxxxx, as
Secretary, to me known and known to me to be the persons described in and who
executed the foregoing instrument, and they acknowledged that they executed the
same as the act and deed of said corporation, voluntarily and for the purpose
therein expressed.
/s/ Xxxxxx X. Xxxxxx
-------------------------------
NOTARY PUBLIC
Printed Name: Xxxxxx X. Xxxxxx
------------------
My Commission expires:
April 30, 0000
XXXXX XX XXX XXXX )
COUNTY OF NEW YORK )
On the 18th day of March, 1999, before me personally came H. Xxxxx
Xxxxxxx, to me known and known to me to be the person described in and who
executed the foregoing instrument, and he acknowledged that he executed the
same as his act and deed, voluntarily and for the purpose therein expressed.
/s/ Xxx X. Xxxx
-----------------------------
NOTARY PUBLIC
Printed Name: Xxx X. Xxxx
-------------
My Commission expires: January 31, 0000
XXXXX XX XXX XXXX )
COUNTY OF NEW YORK )
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On the 18th day of March, 1999, before me personally came Xxxxxx XxXxx,
to me known and known to me to be the person described in and who executed the
foregoing instrument, and she acknowledged that she executed the same as her
act and deed, voluntarily and for the purpose therein expressed.
/s/ Xxx X. Xxxx
----------------------------
NOTARY PUBLIC
Printed Name: Xxx X. Xxxx
-------------
My Commission expires: January 31, 0000
XXXXX XX XXX XXXX )
COUNTY OF NEW YORK )
On the 18th day of March, 1999, before me personally came Xxxx X.
Xxxxxx, to me known and known to me to be the person described in and who
executed the foregoing instrument, and he acknowledged that he executed the
same as his act and deed, voluntarily and for the purpose therein expressed.
/s/ Xxx X. Xxxx
----------------------------
NOTARY PUBLIC
Printed Name: Xxx X. Xxxx
-------------
My Commission expires: January 31, 2001
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