Exhibit 10.5.2
January 13, 1998
Xx. Xxxxxx Xxxxxx
Chairman of the Board of Directors
Paisano Publications. Inc.
00000 Xxxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Dear Xx. Xxxxxx:
This letter is intended to set forth the principal terms and conditions upon
which Newriders, Inc., a Nevada corporation ("Purchaser") will acquire all the
common stock of Paisano Publications, Inc. ("Paisano"), a California
corporation, Easyriders of Columbus. Inc., an Ohio corporation, Easyriders
Franchising. Inc., a California corporation, Xxxxxx, Inc., a California
corporation (whose name will be changed prior to closing), Bros Club, Inc., a
California corporation and Associated Rodeo Riders On Wheels, a California
corporation from you ("Seller") as the sole shareholder of each of these
corporations. Paisano and the other above-listed corporations under common
ownership with Paisano are sometimes hereinafter referred to as The Paisano
Group.
This agreement contemplates a transaction in which Purchaser will purchase all
of the issued and outstanding stock of Paisano and all the above-named
corporations of The Paisano Group. It is contemplated that the closing of this
transaction will take place on or before February 27, 1998 or such other date
as we may mutually agree upon. On or before thirty days subsequent to the date
of this letter of intent, Purchaser will submit to Seller a definitive stock
purchase agreement ("Purchase Agreement") covering this transaction.
Once the Purchase Agreement has been executed, the transaction shall be
completed pursuant to the terms thereof. In the interim we would like to
confirm our agreement upon the following:
1. Consideration
The Seller will receive the following:
a. $30,000,000 in cash which will be paid by wire transfer to Seller at
closing.
b 7,500,000 shares of the common stock of Purchaser or 30% of the
authorized shares of Purchaser, whichever is greater, some or all of which
stock will be restricted for a period of one year. This stock is in addition
to the 1,000,000 shares of stock Seller had previously become entitled to
receive from the founding shareholders under a separate arrangement.
Newriders, Inc. 000 Xxx Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, XX 00000
* Phone: (000) 000-0000 * Fax: (000) 000-0000
Xx. Xxxxxx Xxxxxx
Paisano Publications, Inc.
January 13, 1998
Page 2
c. A promissory note in the amount of $10,000,000, the form of which
will be attached to the Purchase Agreement as an exhibit and if necessary,
subordinate to the Senior Credit Facility. The term of this note will be for a
period of five years from the date of closing or such other term as shall be
required by the issuer of the Senior Credit Facility defined below. Such note
shall provide for the accrual of compound annual interest to Seller as
follows:
Year I - 6%
Year 2 - 7%
Year 3 - 8%
Year 4 - 9%
Year 5 - 10% and subsequent years if necessary
During the first two years of the note's term, Purchaser shall have the right
to defer interest payment and if Purchaser elects to do so, such deferred
interest will be added to the principal on the Note's anniversary date and
bear interest in the third and succeeding years at the rates above specified.
Commencing with the first full quarter following the completion of the first
two years of the note term, Purchaser will commence making quarterly interest
payments to Seller at the rates above provided including interest on the
capitalized interest payments attributable to the first two years of the note
term. At the end of the five-year note term, Purchaser shall have the right to
defer payment of the note's principal amount for two additional years and up
to three more years if necessary to conform to the requirements of the Senior
Credit Facility provided all interest payments, including any deferred
interest, are paid in full to Seller prior to such extension. If Purchaser
elects to exercise its right to defer payment of the note's principal for an
additional period, interest on the note's principal will be paid quarterly to
Seller at the rate of 10% per annum during such extended period. Payment of
the principal and interest on the said promissory note will be personally and
unconditionally guaranteed by Xxxx X. Xxxxxx, Chairman of the Board of
Directors of Purchaser. Payment by Xx. Xxxxxx pursuant to such personal
guarantee will be required if such note is presented for payment to Purchaser
and payment is not made either at the end of the initial five-year term, or
any extended term. If payment under this guarantee is required, it will be
made within seven business days of the date on which an unsuccessful
presentment for payment was made to Purchaser. Xx. Xxxxxx will receive
consideration for the guaranty that is mutually acceptable to the parties.
In the alternative, Seller shall receive 11,250,000 or 45% of the stock,
whichever is greater. In that event, Seller will give Xxxx X. Xxxxxx an
irrevocable proxy to vote 3,715,000 or 15% of the common stock of Purchaser.
whichever is greater, for a period of five years from the date of closing
allowing Xxxx X. Xxxxxx to vote these shares at his discretion. Xxxx X. Xxxxxx
will have the option to purchase all or any portion of said 3,750,000 shares
of stock during this five-year period at $2.67 per share. At the end of said
five-year period. Seller will have a "put" personally and unconditionally
guaranteed by Xxxx X. Xxxxxx to require him to purchase the aforesaid bloc of
3,750,000 shares of stock at $2.67 per share. This "put" will be exercised by
making presentment to Xxxx X. Xxxxxx at any time after the expiration of said
five-year period, and Xx. Xxxxxx will complete the payment required by the
"put" within seven business days of the date on which the presentment was
made.
Purchaser and Seller may mutually agree on the selection of either of the
above alternatives, or any other alternative prior to the finalization of the
contemplated Purchase Agreement based on legal and tax considerations of the
interested parties.
Xx. Xxxxxx Xxxxxx
Paisano Publications, Inc.
January 13, 1998
Page 3
2. Proposed Financing
The Purchaser anticipates that it will fund the cash portion of the
consideration paid to the selling stockholder and the fees and expenses
associated with the transaction described herein with a $35,000,000 Senior
Credit Facility $33,000,000 drawn at close (the "Senior Credit Facility").
Based on further due diligence, the Purchaser with Seller's approval not to be
unreasonably withheld may choose to fund a portion of the cash consideration
with the private or public placement of securities consisting of common stock,
preferred stock and/or subordinated debt of the Purchaser (together with any
Senior Credit Facility, the "Financing").
3. Management Employment Contracts and Non-Compete Agreements
Seller will use its best efforts consistent with sound business practice to
cause Paisano to enter into employment contracts with key officers Xxxxx Xxxx,
Xxxxxx Xxxxx, Xxxxx Xxxx, and Xxxx Xxxxxx, which in form and substance will be
reasonably acceptable to Purchaser. A copy of this agreement form will be
prepared by Seller and submitted to Purchaser prior to closing. Seller will
enter into an employment contract with Purchaser pursuant to which Seller will
continue as Chairman and Publisher of Paisano. In that capacity Seller agrees
to render a level of service generally comparable to that rendered by him
during the year 1997. The nature of such services and the place of their
performance will be consistent with Seller's desire to continue as a resident
of the State of Florida. Seller will continue to have the use of his present
office and secretarial support during the term of such agreement. During the
term of this agreement, Seller will receive a salary equal to that drawn by
Xxxx X. Xxxxxx, Chairman of the Board of Purchaser. In addition, Seller will
enter into an appropriate covenant not to compete with Paisano for a period of
five years in the publication or distribution of magazines primarily devoted
to automotive, motorcycle, and tattoo subject matter which the parties agree
has a value of $25,000.00. It is specifically agreed that Seller shall have
the right to own, invest in, or render services in connection with magazines
devoted to subject matter which is not competitive with the magazines
published by Paisano such as boating and/or fishing magazines or to own,
invest in, or render services in connection with motorcycle and or automotive
related projects of a non-publishing nature which are not competitive with or
antithetical to the business activities of Purchaser. Purchaser agrees to the
extent reasonably practicable it will cooperate with and assist Seller in the
development of any such projects.
4. Property Acquired
a. This agreement contemplates that Purchaser, by acquiring all of
the issued and outstanding stock of the companies in The Paisano Group; will
thereby acquire the businesses, assets, and properties of these companies as
going concerns. Without limiting the generality of the foregoing, Purchaser,
when it acquires the companies of The Paisano Group, will acquire all working
capital including but not limited to cash and cash equivalents, accounts and
notes receivable, and inventory. It will also acquire all pre-press and
magazine publishing computer hardware and related software magazine publishing
software and data bases incidental to the Seller's businesses as well as all
intangible property relating to the business of The Paisano Group companies
including copyrights, trademarks, goodwill, technology, and other intellectual
property or usage rights owned or processed by these companies. Purchaser
shall be responsible for the payment of any sales tax on all tangible personal
property acquired pursuant to this agreement. As a result of this transaction,
Purchaser will acquire all Seller's right, title, and interest in the
following magazine and calendar titles:
Xx. Xxxxxx Xxxxxx
Paisano Publications, Inc.
January 13, 1998
Page 4
Easyriders Earlyriders American Rodder
Easyriders; V-Twin Quick Throttle American Rodder Calendar
In The Wind Tattoo Easyriders Calendar
Biker Tattoo Flash Tattoo Calendar
VQ Tattoo Savage The Eagle's Eye
Purchaser will also acquire all intellectual property relating to the above
titles anywhere in the world, including copyrights, service marks and
applications for the same and all tangible personal property such as
machinery, tools, computers, benches, cabinets, development, production and
administrative furniture and fixtures, office furniture and equipment except
for items of personal property specifically excluded below. Finally, Purchaser
will acquire all approvals, permits, licenses, orders, registrations,
certificates, variances, and similar rights obtained from governments and
government authorities as well as all books and records of The Paisano Group
companies or copies thereof.
b. Purchaser will not acquire any of the following (Excluded
Assets) when it purchases the stock of The Paisano Group companies:
1. All boats, certain automobiles, trucks and certain
motorcycles including the Streamliner and Buick motorcycles although Purchaser
shall continue to have the right to display these items in it's motorcycle
"theme" cafes at no cost to Purchaser until such time as Seller gives at least
90 days notice to deliver them to Seller.
2. Certain furniture, furnishings, fixtures, office equipment,
and memorabilia owned by Seller or his employees which are located at the
upper level executive area at 00000 Xxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxxxxx
00000.
3. Certain machinery located on the upper floor of the
Columbus, Ohio motorcycle shop beyond that required for the reasonable on-
going operation of such shop.
4. Certain receivables not to exceed $1,455,000 that were
carried on the books of The Paisano Group as receivables as of December 31,
1997, provided that, The Paisano Group's payables to Xxxxxx Xxxxxx in the
amount of $3,136,000 as of December 31, 1997 are contributed to capital of
The Paisano Group.
A complete and accurate list of such Excluded Assets will be attached as an
exhibit to the Purchase Agreement.
5. Leases
Seller will terminate its existing leases for the building structures and real
estate located at 00000 Xxxxxxx Xxxxx and 00000 Xxxxxxx Xxxxx, Xxxxxx Xxxxx,
Xxxxxxxxxx, 000 Xxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxxx, and 000 Xxxx Xxxxx
Xxxxxx, Xxxxxxxx, Xxxx. Seller will then offer Purchaser new leases for each
of these presently rented premises. The new leases will be standard triple net
leases with CPI adjustments for a five-year period with renewal options for
additional five-year periods after a review of comparable rents and
adjustments. Rent during the initial term would be the same as Paisano is
currently paying.
Xx. Xxxxxx Xxxxxx
Paisano Publications. Inc
January 13. 1998
Page 5
6. Break-up Fee
To the extent that Seller accepts a bid from any group other than Purchaser,
Seller agrees to promptly pay to Purchaser a "Break-up" fee of $500,000.
Likewise, to the extent that the Purchaser does not consummate the transaction
on the terms and conditions herein, for reasons other than a failure, any of
the conditions precedent contained in paragraph 8 (except that no party shall
be relieved of liability for the Break-up fee if it fails to act diligently
under paragraph 8a below). Purchaser will pay to Seller at the Seller's option
either $500,000 in cash or a number of shares of Purchaser's common stock
equal to $500,000 divided by the then market price of Purchaser's common
stock. The Purchaser shall not owe Seller the fee under this paragraph if the
closing occurs on a date later than February 27, 1998 if Purchaser is
continuing to work in good faith toward a closing of this transaction;
provided, however, that if this transaction fails to close by February 27,
1998. Seller shall have the right to terminate this agreement without payment
of a "Break-up" fee.
7. The Purchase Agreement
a. The Purchase Agreement will contain customary representations and
warranties usually included in stock purchase agreements but the existence of
such representations and warranties are not intended by the parties to be in
lieu of its due diligence obligations which will be completed by both parties
on or before February 12, 1998.
b. Without limiting the generality of the foregoing Seller will
specifically warrant that the Seller will fully fund the unfunded portion, if
any, of any liability owed or owing or reasonably expected to be owed under
any employee benefit, pension or profit-sharing plan maintained by it prior to
the closing of the transactions contemplated hereby; and that all tax
obligations have been paid and reported when due, and that any unpaid taxes
relating to periods for which tax returns have not yet been filed have been
fully booked and properly accrued on the books of the Seller.
c. Seller will warrant that at the time of closing that no
corporation of The Paisano Group will have any debt other than ordinary
course-of-business payables and any indebtedness of these corporations from
Seller or to Seller or between corporations of The Paisano Group will be
extinguished prior to closing, which debt extinguishment shall not be a
failure of the condition contained in paragraph 8c below.
d. Nothing herein contained is to be construed as a commitment by
Purchaser that it will continue any specific pension or other employee benefit
plans it being understood however that employees of The Paisano Group will
receive credit for their Paisano Group service in connection with any employee
benefit plan of Purchaser which is now in effect or subsequently adopted.
e. If Seller agrees, Purchaser and Seller will each make the
election to treat the transaction as an asset purchase as provided in the
Internal Revenue Code Section 338(h)(10), and report the transaction
accordingly.
f. The Purchase Agreement shall provide that the purchase price may
be adjusted upward or downward, dollar for dollar, based the amount by which
The Paisano Group's working capital exceeds or is less than such working
capital as it was represented in the estimated, consolidated balance sheet as
of December 31, 1997 as prepared by Purchaser's financial advisors from
material provided by Seller. Such purchase price adjustment will be subject to
a customary audit by a national accounting firm acceptable to both parties;
provided however, that any price adjustment will be net of any future tax
benefits or obligations related to such adjustment.
Xx. Xxxxxx Xxxxxx
Paisano Publications. In,
January 13, 1998
Page 6
8. Conditions
The closing of the contemplated transaction will be subject to satisfaction of
the following conditions:
a. Satisfactory completion of the due diligence examination by Seller
and Purchaser, including, among other things, review of tax returns,
evaluation of all aspects of each parties business and independent audits of
current and historical financial information;
b. prior to the closing, the business of both the Seller and the
Purchaser shall have been conducted in the ordinary course, and there shall
have been no material adverse change to the business of either party or their
prospects. In addition, there shall be no threatened or pending litigation
against either party which is material;
c. except for distribution of the Excluded Assets, there shall have
been no dividend, redemption or similar distribution, recapitalization or
stock issuance of any kind, by companies of The Paisano Group or Purchaser
since December 31, 1997.
d. all filings with and consents and approvals of third parties and
governmental agencies required for the consummation of the transactions
described herein and to be described in the Purchase Agreement will have been
obtained; and
e. consummation of the Financing.
9. Board of Directors
The Board of Directors of Purchaser will be increased to nine members and
subject to applicable corporate law, may not be increased beyond that number
without Seller's approval. Seller will, upon closing, become a member of
Purchaser's Board of Directors, and, in addition, Seller will have the right
to nominate himself and two outside individuals to become members of
Purchaser's said nine-member Board of Directors. Xxxx X. Xxxxxx agrees that
until payment in full of the portion of the purchase price described in
paragraph 1c above, (regardless of which alternative has been selected), he
will vote his shares of Purchaser's stock in favor of any person so nominated
by Seller. The outside directors designated by Seller will become members of
the Audit, Compensation and S8 Stock Committees of that Board. The Purchaser
represents that it presently has and will continue to maintain appropriate
officers and director's liability insurance.
10. Exclusivity
From the execution of this letter until February 27, 1998, Seller agrees that
it will use its best efforts consistent with sound business practice to cause
its officers, directors, employees, agents, and stockholders not to solicit or
encourage directly or indirectly, in any manner, any discussion with or
furnish or cause to be furnished any information to any person other than
Purchaser, in connection with, or negotiate for or otherwise pursue the sale
of the capital stock of any company of The Paisano Group, or all or
substantially all of the assets of any Paisano Group company or any business
combination or merger of any Paisano Group company with any other party.
Seller agrees to promptly inform Purchaser of any inquiries or proposals with
respect to the foregoing.
Xx. Xxxxxx Xxxxxx
Paisano Publications. Inc.
January 13, 1998
Page 7
11. General
Neither party to this agreement shall disclose to the public or to any third
party, except financial information reasonably required by Purchaser's
financing sources and their financial or legal advisors, the existence of this
agreement or the proposed sale described herein other than with the express
prior written consent of the other party, except as may be required by law.
Any public announcement or press release relating to this transaction must be
approved by both Seller and Purchaser, in writing before being made or
released. Purchaser shall have the right to issue a press release without
Seller's written approval if in the opinion of Purchaser's counsel such a
release is necessary to comply with SEC Rules and Regulations provided Seller
receives a copy of such prepared release for purposes of review at least 48
hours before it is issued. This 48 hour period may be shortened if in the
opinion of Purchaser's counsel it is absolutely required, provided Seller
receives a copy of such release before issue.
From and after the date hereof, upon reasonable prior notice and during normal
business hours, the Seller will grant to Purchaser and its agents, employees
and designees, full and complete access to the books and records and personnel
of The Paisano Group. Purchaser will give similar rights to Seller, its
agents, employees, and designees. Except as may be required by law or court
order, all information so obtained, not otherwise already public, will be
held in confidence.
Each party will be responsible for its own expenses in connection with all
matters relating to the transaction herein proposed. If this proposed
transaction shall not be consummated for any reason other than a violation of
the agreement not to solicit other offers or negotiate with other purchasers,
neither party will be responsible for any of the other's expenses except as
provided in paragraph 6.
Each party will indemnify, defend and hold harmless the other against the
claims of any brokers or finders claiming by, through or under the
indemnifying party. Both parties acknowledge that the fees of Imperial
Capital, LLC, as set forth in the Agreement, dated January 13, 1998, will be
paid at closing out of the proceeds of the Financing. Subject to the
conditions contained herein, this Agreement constitutes a binding legal
obligation upon execution by the parties hereto. Please sign this letter in
the space provided below and return an executed copy to us at any time prior
to the close of business 5:00 p.m. P.S.T., January 13, 1998. Upon your
execution of this letter, we will promptly commence the remaining portion of
due diligence and analysis required by our financing sources, lawyers, and
accountants and will proceed with the transaction on an expedited timetable.
Notwithstanding anything to the contrary herein contained, although the
parties recognize that the time constraints set forth in this agreement are of
extreme importance to Seller, they also recognize that even if reasonable best
efforts are used by both parties, the anticipated closing date may be delayed
for reasons beyond the parties' control, such as necessary regulatory
approval. Seller therefore agrees that he will not exercise his right of
termination if the closing is delayed for a modest period of time beyond the
anticipated
Xx. Xxxxxx Xxxxxx
Paisano Publications, Inc.
January 13, 1998
Page 8
closing date, if it reasonably appears that purchaser is acting in good faith
to expedite the closing, and that Imperial Capital, LLC has obtained an
expression of interest and term sheet from a lender offering a Senior Credit
Facility.
Very truly yours,
NEWRIDERS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxx
President & Chief Executive Officer
Accepted and agreed to:
XXXXXX XXXXXX
By: /s/ Xxxxxx Xxxxxx
--------------------------
Xxxxxx Xxxxxx
