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EXHIBIT 2.6
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION is dated as of October 17,
1997, by and among GREEN'S RACING SOUVENIRS, INC., a Virginia corporation
("GRS"); WHEELS SPORTS GROUP, INC., a North Carolina corporation ("WSG");
WHEELS SPORTS GROUP ACQUISITION III, INC., a North Carolina corporation
("Subsidiary Company"), which is a wholly owned subsidiary of WSG; and ▇▇▇▇▇▇
▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (hereinafter collectively referred to as the
"Shareholder").
The Shareholder owns all of the outstanding shares of common stock,
with par value per share of GRS ("GRS Common Stock"), constituting all of the
outstanding capital stock of GRS.
GRS and WSG have engaged in extensive discussions regarding the
combination of their respective businesses through a reverse triangular merger
(the "Merger") of GRS through Subsidiary Company, a wholly owned subsidiary of
WSG formed specifically to consummate the merger.
For federal income tax purposes, it is intended that the Merger shall
qualify as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"). Specifically, it is
intended that the Merger qualify as a reverse triangular reorganization under
Sections 368(a)(1)(A) and 368(a)(2)(E) of the Code.
NOW, THEREFORE, the parties hereto hereby approve and adopt this
Agreement as a Plan of Reorganization and do mutually covenant and agree as
follows:
I. MERGER OF GRS AND SURVIVING COMPANY
1.1 MERGER. On the Effective Date (as hereinafter defined),
Subsidiary Company shall be merged with and into GRS, which shall be the
surviving corporation ("Surviving Company"), pursuant to the Agreement and Plan
of Merger attached as Exhibit A hereto (the "Plan of Merger").
1.2 EFFECT OF THE MERGER. Upon the Merger becoming
effective, the separate existence of Subsidiary Company shall cease, and
Surviving Company shall succeed to and possess all the properties, rights,
privileges, powers, franchises and immunities, of a public as well as of a
private nature, and be subject to all the debts, liabilities, obligations,
restrictions, disabilities and duties of GRS, all without further act or deed,
as provided in the Business Corporation Act of the state of North Carolina.
1.3 NAME OF SURVIVING COMPANY. On the Effective Date, the
name of the Surviving Company shall be "Green's Racing Souvenirs, Inc.".
1.4 ARTICLES OF INCORPORATION AND BYLAWS. The Articles of
Incorporation and the Bylaws of Surviving Company as in effect on the Effective
Date shall be, from and after the Effective Date, the Articles of Incorporation
and Bylaws of Surviving Company until they are amended.
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1.5 DIRECTORS AND OFFICERS. Upon the Merger becoming
effective, the directors and officers of Surviving Company shall be as
identified on Schedule 1.5 hereto, and each shall hold office until his
successor is elected or qualified or until his earlier resignation or removal.
If on the Effective Date a vacancy exists on the Board of Directors of
Surviving Company or in any of the offices of Surviving Company, as the same
are specified on Schedule 1.5 such vacancies may thereafter be filled in the
manner provided by the Bylaws of Surviving Company.
1.6 SERVICE OF PROCESS. Surviving Company hereby agrees that
from and after the Effective Date it may be served with process in the State of
North Carolina in any proceeding for the enforcement of any obligation of GRS
and in any proceeding for the enforcement of the rights of any dissenting GRS
shareholder against Surviving Company. Surviving Company hereby irrevocably
appoints the North Carolina Secretary of State as its agent to accept service
of process in any such proceeding. Surviving Company further agrees that it
will pay to any dissenting shareholder of GRS the amount, if any, to which any
such dissenting shareholder shall be entitled under the North Carolina Business
Corporation Act with respect to the rights of dissenting shareholders, subject
to the limitations of a pooling-of- interest transaction.
1.7 EFFECTIVE DATE. The Merger shall become effective at the
time (the "Effective Time") GRS and Subsidiary Company file the Certificate of
Merger with the Secretary of State of the State of North Carolina and after all
applicable legal requirements have been fulfilled to consummate the Merger.
The parties shall use their best efforts to file the necessary merger documents
on the date of this Agreement to be effective on the date of this Agreement.
II. STATUS AND CONVERSION OF SECURITIES; SHAREHOLDER APPROVALS
2.1 CONVERSION OF GRS STOCK INTO WSG STOCK. Upon the
Effective Date, the GRS Common Stock issued and outstanding by reason of the
Merger and without any action on the part of the holders thereof, shall be
converted into 175,000 shares of WSG Common Stock, par value $.01 per share
("WSG Common Stock"), which shares of WSG Common Stock shall be issued to the
Shareholders as set forth on Schedule 2.1 hereto. Any shares of GRS Common
Stock held in the treasury of GRS shall be canceled and all rights in respect
thereof shall cease to exist and no cash or securities or other property shall
be issued in respect thereof.
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2.2 FRACTIONAL SHARES. No fractional shares of WSG Common
Stock or interests or rights therein shall be issued upon the conversion of GRS
Common Stock. Instead, any fractions existing upon conversion shall be rounded
up to the next whole share.
2.3 EXCHANGE OF CERTIFICATES. After the Effective Date, each
holder of certificates theretofore representing outstanding shares of GRS
Common Stock ("GRS Stock Certificates"), upon surrender thereof to such bank,
trust company or other person as shall be designated by WSG ("Exchange Agent"),
shall be entitled to receive in exchange therefor a certificate or certificates
representing the number of whole shares of WSG Common Stock into which the
shares of GRS Common Stock theretofore represented by such surrendered
certificate or certificates shall have been converted. After the Effective
Date and until so surrendered, each outstanding certificate theretofore
representing shares of GRS Common Stock shall be deemed for all purposes to
represent the number of whole shares of WSG Common Stock into which the shares
of GRS Common Stock theretofore represented thereby shall have been converted.
2.4 WSG TO MAKE SHARES AVAILABLE. By the Effective Date, WSG
shall make available by transferring to Surviving Company or by transferring
directly to the Exchange Agent, for the benefit of the Shareholders, such
number of shares of WSG Common Stock as shall be required for conversion in
accordance with this Agreement.
2.5 SURVIVING COMPANY CAPITAL STOCK. All authorized shares
of Surviving Company capital stock, par value $.01 per share whether issued or
unissued, outstanding or required, shall continue unchanged as shares of
capital stock of Surviving Company.
2.6 STATUS OF WSG COMMON STOCK. The shares of WSG Common
Stock to be issued to the Shareholders will be "Restricted Stock" and will not
have been registered under the Securities Act of 1933, as amended, or under any
laws of any state, and will bear the following legend in addition to any other
legends required by North Carolina law or by other agreements executed
contemporaneously herewith:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR ANY
STATE SECURITIES ACT, AND ARE "RESTRICTED SECURITIES" WITHIN
THE MEANING OF SUCH ACTS. THE SHARES MAY NOT BE SOLD,
TRANSFERRED, HYPOTHECATED OR OTHERWISE DISTRIBUTED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION UNDER SUCH ACTS OR THE
RECEIPT OF AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER
THAT SUCH REGISTRATION IS NOT REQUIRED.
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2.7 REGISTRATION RIGHTS. WSG shall file a Registration
Statement with the Securities and Exchange Commission registering the shares of
WSG Common Stock issued to the Shareholders upon request of the Shareholder
after the "lockup" period imposed by the underwriter expires, and shall use its
best efforts to cause the Registration Statement to be filed not more than six
months after the lockup period expires and to become effective as soon as
practicable thereafter. Furthermore, WSG shall maintain such effectiveness for
a period of two years. WSG shall pay all expenses incident to such
Registration Statement, except for any commissions or taxes related to the sale
of the shares thereunder. Such registration rights shall be in accordance
with, and subject to, the terms and provisions of the form of Registration
Rights Agreement attached as Exhibit B hereto. The remaining shares shall have
"piggy-back" rights, subject to the reasonable approval of any managing
underwriter, to be included in any Registration Statement filed by WSG within
two years as such registration statement relates to an underwritten public
offering of WSG's securities.
2.8 SHAREHOLDER APPROVALS. Meetings of the Shareholders and
the shareholders of the Surviving Company shall be held in accordance with the
laws of their respective states of incorporation concurrent with the effective
date of this Agreement (or such later date or dates as may be approved by their
Board of Directors), in each case, among other things, to consider and act upon
the adoption of this Agreement. In either case, the adoption of this Agreement
may be consented to in writing by the shareholders of the applicable
corporation.
III. REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATION AND WARRANTIES OF THE SHAREHOLDERS.
Except as otherwise set forth in the GRS Disclosures Schedule delivered by the
Shareholders to WSG and Subsidiary Company contemporaneously with the execution
and delivery of this Agreement and attached as Exhibit C hereto, and except for
intercompany transactions or matters among GRS, the Shareholders jointly and
severally represent and warrant to WSG and Subsidiary Company as follows:
(a) DUE INCORPORATION, GOOD STANDING AND
QUALIFICATION. GRS is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation with all
requisite corporate power and authority to own, operate and lease its
properties and to carry on its business as now being conducted. GRS is not
subject to any material disability by reason of the failure to be duly
qualified as a foreign corporation for the transaction of business or to be in
good standing under the laws of any jurisdiction except where such failure
would have a material adverse affect; GRS is not subject to any material
disability by reason of the failure to be duly qualified as a foreign
corporation for the transaction of business or to be in good standing under the
laws of any
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jurisdiction; GRS has heretofore delivered to WSG a list setting forth, as of
the date of this Agreement, each jurisdiction in which GRS is qualified to do
business.
(b) CORPORATE AUTHORITY. GRS has the corporate
power and authority to enter into this Agreement and (subject to the requisite
approval of the Shareholders) to carry out the transactions contemplated
hereby. The Board of Directors of GRS has duly authorized the execution,
delivery and performance of this Agreement and other documents executed in
connection with this Agreement, including without limitation, the Registration
Rights Agreement.
(c) ENFORCEABILITY. This Agreement and each of the
other agreements referenced herein to which GRS is a party have been duly
executed and delivered by GRS, and constitute legal, valid and binding
obligations of GRS, enforceable against it in accordance with their respective
terms except to the extent that enforceability may be subject to or limited by
bankruptcy, insolvency, reorganization, arrangement, moratorium or other
similar laws relating to or affecting the rights of creditors generally or may
be subject to general principles of equity.
(d) CAPITAL STOCK. As of the date hereof, GRS has
an authorized capital stock consisting of 500 Shares of GRS Common Stock, of
which 100 shares are issued and outstanding (collectively, the "GRS Capital
Stock"). As of such date, there are no shares of GRS Common stock reserved for
issuance upon the exercise of stock options. All of the issued and outstanding
shares of capital stock of GRS and of each of its subsidiaries have been
validly authorized and issued and are fully paid and nonassessable.
(e) OPTIONS, WARRANTS AND RIGHTS. GRS has no
outstanding options, warrants, or other rights to purchase, or convert any
obligation into, any shares of its capital stock.
(f) SUBSIDIARIES. GRS has no subsidiaries.
(g) FINANCIAL STATEMENTS. The Balance Sheet of GRS
and the Statement of Income and Retained Earnings of GRS for the year ended
December 31, 1996 have been delivered to WSG and Subsidiary Company prior to
the date of this Agreement. All of the foregoing financial statements have
been prepared in accordance with generally accepted accounting principles,
except as set forth in the compilation letter attached thereto, which are
applied on a consistent basis, are correct and complete and fairly and
accurately present the financial position, results of operations, and changes
of financial position of GRS as of their respective dates and for the periods
indicated. The foregoing financial statements as of December 31, 1996 have
been prepared by ▇▇▇▇▇▇▇ & ▇▇▇▇▇, CPA, independent public accountant. GRS does
not have any
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material liabilities or obligations of a type that would be included in a
balance sheet prepared in accordance with generally accepted accounting
principles, whether related to tax or non-tax matters, accrued or contingent,
due or not yet due, liquidated or unliquidated, or otherwise, except as and to
the extent disclosed or reflected in the Balance Sheet of GRS as of December
31, 1996 or incurred since then in the ordinary course of business.
(h) NO MATERIAL CHANGE. Since December 31, 1996,
there has not been and there is not threatened (i) any material adverse change
in the financial condition, business, properties, assets or results of
operations of GRS, (ii) any loss or damage (whether or not covered by
insurance) to any of the assets or properties of GRS that materially affects or
impairs its ability to conduct its businesses, (iii) any event or condition of
any character that has materially and adversely affected the business of GRS,
or (iv) any mortgage or pledge of any material amount of the assets or
properties of GRS, or any indebtedness incurred by GRS other than indebtedness,
not material in the aggregate, incurred in the ordinary course of business.
(i) TITLE TO PROPERTIES. GRS has good and
marketable title to all of its real and personal properties, including all
properties reflected in the Balance Sheet as of December 31, 1996, or acquired
subsequent to that date (except properties disposed of subsequent to that date
in the ordinary course of business or properties relating to discontinued
operations). Such assets and properties are not subject to any mortgage,
pledge, lien, claim, encumbrance, charge, security interest or title retention
or other security arrangement except for liens for the payment of federal,
state and other taxes, the payment of which is neither delinquent nor subject
to penalties, and except for other liens and encumbrances incidental to the
conduct of the business of GRS or the ownership of their assets or properties
which were not incurred in connection with the borrowing of money or the
obtaining of advances, and which do not in the aggregate materially detract
from the value of the assets or properties of GRS or materially impair the use
thereof in the operation of their respective businesses, except in each case as
disclosed in the Balance Sheet as of December 31, 1996. All leases pursuant to
which GRS or any of its subsidiaries leases any substantial amount of real or
personal property are valid and effective in accordance with their respective
terms.
(j) LITIGATION. There are no actions, suits,
proceedings or other litigation pending or, to the knowledge of GRS, threatened
against or affecting GRS, at law or in equity, or before or by any federal,
state, municipal or other governmental department, commission, board, bureau,
agency or instrumentality which, if determined adversely to GRS, would
individually or in the aggregate have a materially adverse effect on the
business assets, properties, operations or prospects or on the condition,
financial or otherwise, of GRS.
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(k) NO VIOLATION. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby
will not violate or result in a breach by GRS of, or constitute a default
under, or conflict with, or cause any acceleration of any obligation with
respect to (i) any provision or restriction of any charter, bylaw, loan,
indenture or mortgage of GRS, or (ii) any provision or restriction of any lien,
lease agreement, contract, instrument, order, judgment, award, decree,
ordinance or regulation or any other restriction of any kind or character to
which any assets or properties of GRS or any of its subsidiaries is subject or
by which GRS or any of its subsidiaries is bound.
(l) TAXES. GRS has filed all federal, state,
foreign, local and any other applicable tax returns, reports or extensions
required to be filed, and has paid in full all taxes and assessments shown due
thereon (together with all interest, penalties, assessments and deficiencies
assessed in connection therewith due through the date hereof). Such tax
returns and reports are correct in all material respects. Federal tax returns
of GRS have not been audited by the Internal Revenue Service. The Surviving
Company shall distribute cash or cash equivalent equal to the shareholder's
personal federal and state tax liability resulting from the inclusion in
shareholder's taxable income of the income of GRS on the period beginning
January 1, 1997 until the date of Closing. Such distribution shall be made by
April 10, 1998.
(m) CONTRACTS. GRS is not a party to (i) any plan
or contract providing for bonuses, pensions, options, stock purchases, deferred
compensation, retirement payments or profit sharing, (ii) any collective
bargaining or other contract or agreement with any labor union, (iii) any
lease, installment purchase agreement or other contract with respect to any
real or personal property used or proposed to be used in its operations,
except, in each case, items included within aggregate amounts disclosed in
GRS's December 31, 1996 Balance Sheet or incurred in its ordinary course of
business since December 31, 1996, (iv) any employment agreement or other
similar arrangement not terminable upon 30 days or less notice without penalty
to it, (v) any contract or agreement for the purchase of any commodity,
material, fixed asset or equipment in excess of $25,000, (vi) any contract or
agreement creating an obligation of $25,000 or more, (vii) any contract or
agreement which by its terms does not terminate or is not terminable without
penalty to it within one year after the date hereof, (viii) any loan agreement,
indenture, promissory note, conditional sales agreement or other similar type
of arrangement, (ix) any material license agreement. All contracts, agreements
and other arrangements to which GRS is a party are valid and enforceable
against GRS in accordance with their terms; GRS and, to
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GRS's actual knowledge all other parties to each of the foregoing have
performed all obligations required to be performed to date; neither GRS, to
GRS's actual knowledge, nor any such other party is in default or in arrears
under the terms of any of the foregoing; and, to GRS's actual knowledge no
condition exists or event has occurred which, with the giving of notice or
lapse of time or both, would constitute a default under any of them.
(n) COMPLIANCE WITH LAW AND OTHER REGULATIONS. GRS
is not subject to or has not been threatened by written notice with any
material fine, penalty, liability or disability as the result of its failure to
comply with any requirement of federal, state, local or foreign law or
regulation (including those relating to the employment of labor or
environmental matters) or any requirement of any governmental of any
governmental body or agency having jurisdiction over it, the conduct of its
business, the use of its assets and properties or any premises occupied by it.
GRS has complied in all material respects with all applicable provisions of the
Employment Retirement Income Security Act of 1974, as amended ("ERISA") and
with all other applicable federal, state and local laws relating to the
employment of labor including the provisions thereof relative to wages, hours,
collective bargaining, working conditions and payment of taxes of any kind
except where such occurrence would not have a material adverse impact on the
business of GRS. GRS is not liable for any material arrears of wages or any
taxes or penalties for failure to comply with any of the foregoing in any
material way or has any obligations for any vacation, sick leave or other
compensatory time except for such obligations created in the ordinary course of
business. GRS is not in violation of any applicable statute, law, or
regulation relating to the environment, storage of hazardous substances or
occupational health and safety, the violation of which might result in a
material adverse change in the assets, conditions or affairs of GRS, nor has
GRS received any official notice or citation that any of their respective
properties in any way contravenes any federal, state or local law or regulation
relating to environmental, health or safety matters, including without
limitation any requirements of the Comprehensive Environmental Response
Compensation and Liability Act ("CERCLA") or any OSHA requirements, and, to the
knowledge of GRS, no material expenditures are or will be required in order to
comply with any such existing statute, law or regulation. Without limiting the
foregoing, GRS has properly filed all reports, paid all monies and obtained all
licenses, permits, certificates and authorizations needed or required for the
conduct of its business and the use of its assets and properties and the
premises occupied by it in connection therewith and is in compliance in all
material respects with all conditions, restrictions and provisions of all of
the foregoing except where such occurrence would not have a material adverse
effect on the business of GRS.
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(o) ABSENCE OF PRODUCT OR SERVICE WARRANTIES.
Except in the ordinary course of business, to the best knowledge of GRS,
neither GRS nor any of its subsidiaries, nor any officer, director, employee or
agent thereof, has made any written warranties with respect to the quality or
absence of defects of the products or services that GRS has sold or performed,
and that are in force as of the date hereof. There are no material claims
pending or, to the best knowledge of GRS, threatened against GRS with respect
to the quality of or absence of defects in such products or services. GRS has
not been required to pay direct, incidental, or consequential damages to any
person in connection with any of such products or services at any time during
the five year period preceding the date hereof except for warranty remedies
provided in the ordinary course of business.
(p) INSURANCE. GRS maintains in full force and
effect insurance coverage on its assets, properties, premises, operations and
personnel in such amounts and against such risks and losses as are adequate and
customary for the businesses engaged in by GRS.
(q) MINUTE BOOK. The minute books of GRS accurately
record all actions taken by their respective stockholders and directors.
3.2 FURTHER REPRESENTATION AND WARRANTIES OF SHAREHOLDER.
Each Shareholder makes the following further representations and warranties as
to such Shareholder:
(a) OWNERSHIP OF CAPITAL STOCK OF GRS. Such
Shareholder owns the number of shares of GRS Common Stock set forth beside his
signature below. Such Shareholder has good, marketable and unencumbered title
to such shares, and there are no restrictions on such Shareholder's right to
transfer or exchange such shares pursuant to this Agreement, other than
compliance with applicable securities laws.
(b) RIGHTS TO ACQUIRE SHARES. Such Shareholder does
not have any outstanding options, warrants or other rights to purchase or
subscribe for, or contracts or commitments to sell, or any interests,
instruments, evidences of indebtedness or other securities convertible in any
manner into, shares of GRS's capital stock.
(c) POWER TO EXECUTE AGREEMENT. Such Shareholder
has full power and authority to execute, deliver and perform this Agreement and
each of the other agreements referred herein to which such Shareholder is a
party.
(d) ENFORCEABILITY. This Agreement and each of the
other agreements referenced herein to which such Shareholder is a party have
been duly executed and delivered by such Shareholder, and constitute legal,
valid and binding obligations of such Shareholder, enforceable against such
Shareholder in accordance
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with their respective terms except to the extent that enforceability may be
subject to or limited by bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar laws relating to or affecting the rights of
creditors generally or may be subject to general principles of equity.
(e) AGREEMENT NOT IN BREACH OF OTHER INSTRUMENTS.
The execution and delivery of this Agreement, the consummation of the
transactions hereby contemplated, and the fulfillment of the terms hereof, will
not result in the breach of any term or provision of, or constitute a default
under, or conflict with, or cause the acceleration of any obligation under, any
agreement or other instrument of any description to which such Shareholder is a
party or by which such Shareholder is bound, or any judgment, decree, order or
award of any court, governmental body or arbitrator, or any law, rule or
regulation applicable to such Shareholder.
(f) ABILITY TO BEAR RISK; BUSINESS AND FINANCIAL
KNOWLEDGE AND EXPERIENCE. Such Shareholder (i) can bear the economic risk of
the acquisition of the shares of WSG Common Stock to be issued to him (the "WSG
Shares"), including the complete loss of such Shareholder's investment, and
(ii) alone, or together with such Shareholder's purchaser or representative as
appointed in writing by the date of this Agreement, has sufficient knowledge
and experience in business and financial matters as to be capable of evaluating
the merits and risks of the acquisition of the WSG Shares.
(g) KNOWLEDGE RESPECTING WSG. Such Shareholder (i)
knows or has had the opportunity to acquire all information concerning the
business affairs, financial condition, plans and prospects of WSG that such
Shareholder deems relevant to make a fully informed decision respecting the
acquisition of the WSG Shares; (ii) has been encouraged and has had the
opportunity to rely upon the advice of such Shareholder's legal counsel and
accountants and other advisers with respect to the acquisition of the WSG
Shares; and (iii) has had the opportunity to ask such questions and receive
such answers and information respecting, among other things, the business,
affairs, financial condition, plans and prospects of WSG and the terms and
conditions of the acquisition of the WSG Shares as such Shareholder has
requested so as to more fully understand such Shareholder's investment.
Without limiting the foregoing, such Shareholder acknowledges that he has been
provided complete copies of all of the information identified on Schedule
3.2(g) attached hereto.
(h) ABSENCE OF REPRESENTATIONS AND WARRANTIES. Such
Shareholder confirms that neither WSG or Subsidiary Company, nor anyone
purportedly acting on behalf of WSG or Subsidiary Company, has made any
representations, warranties, agreements or statements other than those
contained herein respecting the
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business, affairs, financial condition, plans or prospects of WSG nor has such
Shareholder relied on any representations, warranties, agreements or statements
in the belief that they were made on behalf of the foregoing nor has such
Shareholder relied on the absence of any such representations, warranties,
agreements or statements in reaching such Shareholder's decision to acquire the
WSG Shares.
(i) NO DISTRIBUTION. Such Shareholder is acquiring
the WSG Shares for such Shareholder's own account without a view to public
distribution or resale, and such Shareholder has no contract, undertaking,
agreement or arrangement to transfer, sell or otherwise dispose of any of the
WSG Shares or any interest therein to any other person.
(j) SHARES TO BE RESTRICTED. Such Shareholder
understands that the WSG Shares will remain "restricted securities" within the
meaning of Rule 144 under the Securities Act of 1933, as amended (the "1933
Act") and within the "lockup agreement" required by the underwriter, such
shareholder may demand registration after July 16, 1998, when the lock-up
period ends, pursuant to the Registration Agreement attached hereto as Exhibit
B.
(k) NO REGISTRATION. Such Shareholder understands
that the WSG Shares will not be registered under the 1933 Act, the North
Carolina Securities Act (the "North Carolina Act") or the securities laws of
any other jurisdiction and must be held indefinitely without any transfer, sale
or other disposition unless the WSG Shares are subsequently registered under
the 1933 Act, the North Carolina Act and the securities laws of any other
applicable jurisdictions pursuant to any attaching "piggy-back" rights or, in
the opinion of counsel for WSG, registration is not required under such Acts or
laws as the result of an available exemption.
(l) LEGEND OF CERTIFICATES. Such Shareholder
understands that there shall be endorsed on the certificates evidencing the WSG
Shares a legend substantially to the following effect:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR ANY
STATE SECURITIES ACT, AND ARE "RESTRICTED SECURITIES" WITHIN
THE MEANING OF SUCH ACTS. THE SHARES MAY NOT BE SOLD,
TRANSFERRED, HYPOTHECATED OR OTHERWISE DISTRIBUTED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION UNDER SUCH ACTS OR THE
RECEIPT OF AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER
THAT SUCH REGISTRATION IS NOT REQUIRED."
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(m) RESTRICTIONS ON OTHER SECURITIES. Such
Shareholder understands that, except upon certain limited circumstances, the
restrictions on the sale, transfer and disposition of the WSG Shares will also
apply to any and all shares of capital stock or other securities issued or
otherwise acquired with respect to the WSG Shares including, without
limitation, shares and securities issued or acquired as a result of any stock
dividend, stock split or exchange or any distribution of shares or securities
pursuant to any corporate reorganization, reclassification or similar event.
(n) NO GOVERNMENTAL APPROVAL. Such Shareholder
understands that no federal or state agency has approved or disapproved the WSG
Shares, passed upon or endorsed the merits of the offering of the WSG Shares,
or made any finding or determination as to the fairness of the WSG Shares for
investment.
3.3 REPRESENTATION AND WARRANTIES OF WSG AND SUBSIDIARY
COMPANY. Except as otherwise set forth in the WSG and Subsidiary Company
Disclosure Schedule delivered by WSG to GRS contemporaneously with the
execution and delivery of this Agreement, and attached as Exhibit D hereto, and
except for matters disclosed in WSG's report filed with the Securities and
Exchange Commission, and except for intercompany transactions or matters among
WSG and/or its subsidiaries, WSG and Subsidiary Company jointly and severally
represent and warrant to GRS as follows:
(a) DUE INCORPORATION, GOOD STANDING AND
QUALIFICATION. WSG and each of its subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation with all requisite corporate power and
authority to own, operate and lease its properties and to carry on its business
as now being conducted. Neither WSG nor any of its subsidiaries is subject to
any material disability by reason of the failure to be duly qualified as a
foreign corporation for the transaction of business or to be in good standing
under the laws of any jurisdiction. WSG has heretofore delivered to GRS a list
setting forth, as of the date of this Agreement, each jurisdiction in which WSG
and its subsidiaries are qualified to do business. Subsidiary Company is a
wholly owned subsidiary of WSG and, apart from matters arising under this
Agreement, has no significant assets, liabilities or business, except as set
forth in this Agreement. (As used in this Agreement with reference to WSG, the
term "subsidiaries" shall include Subsidiary Company and all other direct or
indirect subsidiaries of WSG other than Subsidiary Company.)
(b) CORPORATE AUTHORITY. WSG and Subsidiary Company
have the corporate power and authority subject to requisite approval of
Subsidiary Company shareholder to carry out the transactions contemplated
hereby. The Boards of Directors of WSG and Subsidiary Company have duly
authorized the execution, delivery and performance of this Agreement.
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(c) ENFORCEABILITY. This Agreement and each of the
other agreements referenced herein to which WSG or any subsidiary of WSG is a
party have been duly executed and delivered by WSG or such subsidiary, and
constitute legal, valid and binding obligations of WSG or such subsidiary,
enforceable against is in accordance with their respective terms except to the
extent that enforceability may be subject to or limited by bankruptcy,
insolvency, reorganization, arrangement, moratorium or other similar laws
relating to or affecting the rights of creditors generally or may be subject to
general principles of equity.
(d) CAPITAL STOCK. As of the date hereof, WSG has
an authorized capital stock consisting of 15,000,000 shares of WSG Common
Stock, of which 4,080 are outstanding, and no shares of Preferred Stock, no par
value, of which none are issued and outstanding. As of such date, 1,502,500
shares of WSG Common Stock are reserved for issuance upon the exercise of
outstanding WSG stock options and warrants. All of the issued and outstanding
shares of capital stock of WSG and each of its subsidiaries have been validly
authorized and issued and are fully paid and nonassessable.
(e) OPTIONS, WARRANTS AND RIGHTS. Neither WSG nor
any of its subsidiaries has outstanding any options, warrants, or other rights
to purchase, or convert any obligation into, any shares of its capital stock,
other than those referred to in Section 3.3(d).
(f) SUBSIDIARIES. WSG has delivered to GRS a list
setting forth as of the date of this Agreement (i) the name, jurisdiction of
incorporation and list of shareholders of each subsidiary of WSG and (ii) the
name and description of every other person, corporation, partnership, joint
venture or other business association in which WSG directly or indirectly owns
a material interest. The outstanding shares of capital stock of the
subsidiaries of WSG owned by WSG or any of its subsidiaries are owned free and
clear of all claims, liens, charges and encumbrances.
(g) FINANCIAL STATEMENTS. The Consolidated Balance
Sheets of WSG and subsidiaries as of December 31, 1996 and March 31, 1997, and
the Consolidated Statements of Income, Shareholder's Investment and Cash Flows
of WSG and subsidiaries for the 3 months ended March 31, 1997 and the year
ended December 31, 1996, and all related Schedules and notes to the foregoing
were delivered to GRS prior to the date of this Agreement. All of the
foregoing financial statements have been prepared in accordance with generally
accepted accounting principles which were applied on a consistent basis, and
fairly present the financial position, results of operations and changes of
financial position of WSG and its consolidated subsidiaries as of their
respective dates and for the periods indicated. The foregoing financials
statements as of December 31, 1996 have been audited by Coopers & ▇▇▇▇▇▇▇,
L.L.P.,
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independent public accountants. Neither WSG nor any of its subsidiaries has
any material liabilities or obligations of a type which would be included in a
balance sheet prepared in accordance with generally accepted accounting
principles, whether related to tax or non-tax matters, accrued or contingent,
due or not yet due, liquidated or unliquidated or otherwise, except as and to
the extent disclosed or reflected in the Consolidated Balance Sheet of WSG and
its consolidated subsidiaries as of December 31, 1996, or incurred since March
31, 1997, in the ordinary course of business.
(h) NO MATERIAL CHANGE. Since March 31, 1997, there
has not been and there is not threatened (i) any material change in the
financial condition, business, properties, assets or results of operations of
WSG and its subsidiaries taken as a whole, (ii) any loss or damage (whether or
not covered by insurance) to any of the assets or properties of WSG or its
subsidiaries that materially affects or impairs their ability to conduct their
respective businesses, (iii) any event or condition of any character that has
materially and adversely affected the business or prospects (financial or
otherwise) of WSG and its subsidiaries taken as a whole, or (iv) any mortgage
or pledge of any material amount of the assets or properties of WSG or any of
its subsidiaries, or any indebtedness incurred by WSG or any of its
subsidiaries, other than indebtedness, not material in the aggregate, incurred
in the ordinary course of business.
(i) TITLE TO PROPERTIES. WSG and its subsidiaries
have good and marketable title to all of their respective real and personal
properties, including all properties reflected in the Consolidated Balance
Sheet as of December 31, 1996, or acquired subsequent to December 31, 1996
(except property disposed of subsequent to that date in the ordinary course of
business or property related to discontinued operations). Such assets and
properties are not subject to any mortgage, pledge, lien, claim, encumbrance,
charge, security interest or title retention or other security arrangement
except for liens for the payment of federal, state and other taxes, the payment
of which is neither delinquent nor subject to penalties and except for other
liens and encumbrances incidental to the conduct of the business of WSG and its
subsidiaries or the ownership of their assets or properties which were not
incurred in connection with the borrowing of money or the obtaining of
advances, and which do not in the aggregate materially detract from the value
of the assets or properties of WSG and its subsidiaries taken as a whole or
materially impair the use thereof in the operation of their respective
businesses, except in each case as disclosed in the Consolidated Balance Sheet
as of December 31, 1996. All leases pursuant to which WSG or any of its
subsidiaries leases any substantial amount of real or personal property are
valid and effective in accordance with their respective terms.
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(j) LITIGATION. There are no actions, suits,
proceedings or other litigation pending or, to the knowledge of WSG, threatened
against or affecting WSG or any of its subsidiaries, at law or in equity, or
before or by any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality which, if determined
adversely to WSG or its subsidiaries, would individually or in the aggregate
have a materially adverse effect on the business, assets, properties,
operations or prospects or on the condition, financial or otherwise, of WSG and
its subsidiaries, taken as a whole.
(k) RIGHTS AND LICENSES. Neither WSG nor any of its
subsidiaries is subject to any material disability or liability by reason of
its failure to possess any trademark, trademark right, trade name right or
license.
(l) NO VIOLATION. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby
will not violate or result in a breach by WSG or any of its subsidiaries of, or
constitute a default under, or conflict with or cause any acceleration of any
obligation with respect to (i) any provision or restriction of any charter,
bylaw, loan, indenture or mortgage of WSG or any of its subsidiaries, or (ii)
any provision or restriction of any lien, lease agreement, contract,
instrument, order, judgment, award, decree, ordinance or regulation or any
other restriction of any kind or character to which any assets or properties of
WSG or any of its subsidiaries is subject or by which WSG or any of its
subsidiaries is bound.
(m) TAXES. WSG and its subsidiaries have filed all
federal, state, foreign, local and any other applicable tax returns, reports or
extensions required to be filed, and have paid in full or adequately reserved
for all taxes shown due thereon (together with all interest, penalties,
assessments and deficiencies assessed in connection therewith due through the
date hereof). Such tax returns and reports are correct in all material
respects. Federal tax returns of WSG and its subsidiaries have not been
audited by the Internal Revenue Service.
(n) ACCOUNTS RECEIVABLE. The accounts receivable of
WSG and its subsidiaries have been acquired in the ordinary course of business,
are valid and enforceable and are fully collectible, subject to no known
defense, setoffs or counterclaims, except to the extent of the reserve
reflected in the books of WSG and its subsidiaries or in such other amount
which is not material in the aggregate.
(o) CONTRACTS. Neither WSG nor any of its
subsidiaries is a party to (i) any plan or contract providing for bonuses,
pensions, options, stock purchases, deferred compensation, retirement payments
or profit sharing, (ii) any collective bargaining or other contract or
agreement with any labor union, (iii) any lease, installment purchase agreement
or other contract
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with respect to any real or personal property used or proposed to be used in
its operations, except, in each case, items included within aggregate amounts
disclosed in WSG's 1996 Consolidated Balance Sheet, (iv) any contract or
agreement for the purchase of any commodity, material, fixed asset or equipment
in excess of $25,000, (v) any contract or agreement creating an obligation of
$25,000 or more, (vi) any contract or agreement which by its terms does not
terminate or is not terminable without penalty to it within one year after the
date hereof, (vii) any loan agreement, indenture, promissory note, conditional
sales agreement or other similar type of arrangement, (viii) any material
license agreement, or (ix) any contract which may result in a material loss or
obligation to it. All contracts, agreements and other arrangements to which
WSG or any of its subsidiaries is a party are valid and enforceable in
accordance with their terms; WSG, its subsidiaries and all other parties to
each of the foregoing have performed all obligations required to be performed
to date; neither WSG, nor any of its subsidiaries, nor any such other party is
in default or in arrears under the terms of any of the foregoing; and no
condition exists or event has occurred which, with the giving of notice or
lapse of time or both, would constitute a default under any of them.
(p) COMPLIANCE WITH LAW AND OTHER REGULATION.
Neither WSG nor any of its subsidiaries is subject to or has been threatened by
written notice with any material fine, penalty, liability or disability as the
result of its failure to comply with any requirement of federal, state, local
or foreign law or regulation (including those relating to the employment of
labor or environmental matters) or any requirement of any governmental body or
agency having jurisdiction over it, the conduct of its business, the use of its
assets and properties or any premises occupied by it. WSG and each of its
subsidiaries has complied in all material respects with all applicable
provisions of the Employment Retirement Income Security Act of 1974, as amended
("ERISA") and with all other applicable federal, state and local laws relating
to the employment of labor including the provisions thereof relative to wages,
hours, collective bargaining, working conditions and payment of taxes of any
kind except where such occurrence would not have a material adverse impact on
the business of WSG. Neither WSG nor any of its subsidiaries is liable for any
arrears of wages or any taxes or penalties for failure to comply with any of
the foregoing in any material way or has any obligations for any vacation, sick
leave or other compensatory time except for such obligations created in the
ordinary course of business. Neither WSG nor any of its subsidiaries is in
violation of any applicable statute law, or regulation relating to the
environment, storage of hazardous substances or occupational health and safety,
the violation of which might result in a material adverse change in the assets,
conditions or affairs of WSG, nor has WSG or any of its subsidiaries received
any official notice of citation that any of their respective properties in any
way contravenes any federal,
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state or local law or regulation relating to environmental, health or safety
matters, including without limitation any requirements of the Comprehensive
Environmental Response Compensation and Liability Act ("CERCLA") or any OSHA
requirements, and no material expenditures are or will be required in order to
comply with any such existing statute, law, or regulation. Without limiting
the foregoing, each of WSG, and its subsidiaries has properly filed all
reports, paid all monies and obtained all licenses, permits, certificates and
authorizations needed or required for the conduct of its business and the use
of its assets and properties and the premises occupied by it in connection
therewith and is in compliance in all material respects with all conditions,
restrictions and provisions of all of the foregoing except where such
occurrence would not have a material adverse effect on the business of WSG.
(q) ABSENCE OF PRODUCT OR SERVICE WARRANTIES.
Except in the ordinary course of business, to the best knowledge of WSG,
neither WSG nor any of its subsidiaries, nor any officer, director, employee or
agent thereof, has made any written warranties with respect to the quality or
absence of defects of the products or services that WSG or any of its
subsidiaries has sold or performed, and that are in force as of the date
hereof. There are no material claims pending or anticipated or, to the best
knowledge of WSG, threatened against WSG or any of its subsidiaries with
respect to the quality of or absence of defects in such products or services.
Neither WSG nor any of its subsidiaries has been required to pay direct,
incidental, or consequential damages to any person in connection with any of
such products or services at any time during the five year period preceding the
date hereof except for warranty remedies provided in the ordinary course of
business.
(r) INSURANCE. WSG and each of its subsidiaries
maintains in full force and effect insurance coverage on their assets,
properties, premises, operations and personnel in such amounts and against such
risks and losses as are adequate and customary for the respective businesses
engaged in by WSG and its subsidiaries.
(s) MINUTE BOOKS. The minutes books of WSG and each
of its subsidiaries accurately record all actions taken by their respective
shareholders and directors.
(t) SEC REPORTS. WSG's prospectus filed with the
Securities and Exchange Commission and all subsequent reports and proxy
statements filed by WSG thereafter pursuant to Section 13(a) or 14(a) of the
Securities Exchange Act of 1934, as amended, do not contain a misstatement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading as of the time the
document was filed.
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(u) STATUS OF WSG COMMON STOCK TO BE ISSUED. The
shares of WSG Common Stock into which the shares of Surviving Company stock
will be converted pursuant to this Agreement will be, when issued, validly
authorized and issued, fully paid and nonassessable.
(v) ACCURACY OF STATEMENTS. Neither this Agreement
nor any statement, list, certificate or other information furnished or to be
furnished by WSG or Subsidiary Company to GRS or the Shareholders in connection
with this Agreement or any of the transactions contemplated hereby contains or
will contain an untrue statement of a material fact or omits or will omit to
state a material fact necessary to make the statements contained herein or
therein, in light of the circumstances in which they are made, not misleading.
IV. JOINT OBLIGATIONS
4.1 JOINT OBLIGATIONS. The following shall be the
obligations of all of the parties hereto:
(a) NONDISCLOSURE/CONFIDENTIALITY. From and after
the date of this Agreement until the Effective Date, or in the event that the
Merger shall not occur, then thereafter, no party hereto shall disclose or use,
or permit the disclosure or use of, any proprietary or confidential information
to or by any person, firm, corporation, association or entity (except to its
authorized representatives for use in consummating the Agreement) without the
prior written consent of the other. Copies of all disclosures made by a party
hereto shall be provided to the other party hereto at the time of the
disclosure or, if impracticable, promptly thereafter. Furthermore, if
discussion or negotiations with regard to this Agreement are terminated each
party shall return, or cause to be returned, each to the other, the originals
and all documents containing such confidential information and shall use its
best efforts to keep and maintain confidential all such information.
(b) NOTICE. Each party shall promptly give the
other parties written notice of the existence or occurrence of any condition
that would make any representation or warranty of the notifying party untrue or
that might reasonably be expected to prevent the consummation of the Merger or
the other transactions contemplated herein.
(c) PERFORMANCE. No party shall intentionally
perform or omit to perform any act that, if performed or omitted, would prevent
or excuse the performance of this Agreement by any party hereto or that would
result in any representation or warranty contained herein of that party being
untrue in any material respect as of the date of this Agreement and as if
originally made on and as of the Effective Date.
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(d) PUBLIC ANNOUNCEMENTS. The parties hereto agree
that (i) the existence of this Agreement and the provisions hereof shall not be
disclosed to any person except upon the mutual agreement of WSG and GRS, and
(ii) the consent of all press releases and other communications relating to the
consent of this Agreement shall be subject to the mutual agreement of WSG and
GRS, except WSG may, after consultation with GRS regarding the consent of such
disclosure but without being required to obtain the agreement of GRS, disclose
information relating to the content of this Agreement that WSG determines is
required by applicable securities laws or rules and regulations or
interpretations of the Securities and Exchange Commission or The Nasdaq Stock
Exchange, Inc., WSG shall furnish to GRS copies of any disclosures made without
the agreement of GRS at the time of disclosure or as soon thereafter as may be
practicable.
V. CONDITIONS PRECEDENT TO OBLIGATIONS
5.1 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF WSG AND
SUBSIDIARY COMPANY. The obligations of WSG and Subsidiary Company under this
Agreement are, at the option of WSG and Subsidiary Company, subject to the
satisfaction of the following conditions on or before the Effective Date:
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of GRS herein contained shall have been true and
correct in all material respects when made, and, in addition, shall be true and
correct in all material respects on and as of the Effective Date with the same
force and effect as though made on and as of the Effective Date, except as
affected by transactions contemplated hereby.
(b) PERFORMANCE OF AGREEMENTS. GRS shall have in
all material respects performed all obligations and agreements and complied
with all covenants and conditions contained in this Agreement to be performed
and complied with by it on or prior to the Effective Date.
(c) CORPORATE APPROVALS. All necessary corporate
action on the part of the directors and shareholders of GRS adopting this
Agreement and approving the transactions contemplated hereby shall have been
taken by October 17, 1997.
(d) OPINION OF COUNSEL FOR GRS AND THE SHAREHOLDERS.
WSG shall have received an opinion of Tuch, Dillard, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel
for GRS and the Shareholders, dated the Effective Date, in form and substance
satisfactory to WSG and its counsel, to the effect that:
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(i) GRS is a corporation organized, validly
existing and in good standing under the laws of the State of Virginia, and has
the requisite corporate power and authority under the laws of such state to
own, lease and operate its properties, to carry on its business as then being
conducted and to consummate the Merger contemplated hereby;
(ii) all necessary corporate proceedings of
the Board of Directors and the shareholders of GRS to approve and adopt this
Agreement and to authorize the execution and delivery of this Agreement and the
consummation of the Merger contemplated hereby have been duly and validly
taken;
(iii) GRS has the corporate power and
authority to execute and deliver this Agreement and this Agreement has been
duly authorized, executed and delivered by GRS and each of the Shareholders and
constitutes its or their legal, valid and binding obligation;
(iv) Such counsel knows of no actions, suits
or proceedings pending or threatened against GRS, at law or in equity, or
before or by any federal, state, municipal or other governmental department,
commission, board, bureau, agency, or instrumentality that would result in a
breach of the representation and warranty set forth in Section 3.1(j) of this
Agreement; and
With respect to certain of the opinions expressed above, such opinion
may be based upon a certificate or certificates of the Shareholders and an
officer or officers of GRS and its subsidiaries, and such counsel may rely on
opinions of other counsel satisfactory to WSG delivered in connection with this
Agreement.
(e) NO MATERIAL ADVERSE CHANGE. There shall be no
material adverse change in the business, properties, or financial condition of
GRS.
(f) LITIGATION. No action or proceeding by any
governmental agency shall have been instituted or threatened which would
enjoin, restrain or prohibit, or might result in substantial damages in respect
of this Agreement or the consummation of the transactions contemplated by this
Agreement, and would in the reasonable judgment of WSG and Subsidiary Company
make it inadvisable to consummate such transaction, and no court order shall
have been entered in any action or proceeding instituted by any other party
which enjoins, restrains or prohibits this Agreement or consummation of the
transactions contemplated by this Agreement.
(g) PROCEEDINGS SATISFACTORY TO COUNSEL. All
proceedings taken by GRS and all instruments executed and delivered by GRS on
or prior to the Effective Date in connection with the transactions herein
contemplated shall be satisfactory in form and substance to counsel for GRS and
Surviving Company.
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(h) DISSENTER'S RIGHTS. Dissenter's right of
appraisal under North Carolina law shall not have been effectively preserved as
of the Effective Date by any owners of issued and outstanding shares of GRS
Common Stock.
(i) MERGER DOCUMENTS. The documents necessary to
effect the Merger shall have been filed with and accepted for filing by, the
North Carolina Secretary of State.
(j) POOLING-OF-INTERESTS STATUS. WSG and Surviving
Company shall have been advised by their independent public accountants that,
in such accountant's opinion, the Merger and the other transactions
contemplated herein meet the requirements for treatment as a
"pooling-of-interests" under generally accepted accounting principles, and as
is more specifically set forth in Opinion No. 16, as amended, of the Accounting
Principles of the Board of the American Institute of Certified Public
Accountants.
(k) WAIVER OF DIVIDENDS. All holders of GRS capital
stock as to which any unpaid dividends shall have accrued shall have, prior to
the Effective Date, for consideration satisfactory to such holders, waived and
released all rights to receive those dividends.
5.2 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF GRS. The
obligations of GRS under this Agreement are, at the option of GRS, subject to
the satisfaction of the following conditions on or before the Effective Date
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of WSG and Subsidiary Company herein contained
shall have been true and correct in all material respects when made and, in
addition, shall be true and correct in all material respects on and as of the
Effective Date with the same force and effect as though made on and as of the
Effective Date, except as affected by transactions contemplated hereby.
(b) PERFORMANCE OF AGREEMENTS. WSG and Subsidiary
Company shall have in all material respects performed all obligations and
agreements and complied with all covenants and conditions contained in this
Agreement to be performed and complied with by them or either of them on or
prior to the Effective Date.
(c) CORPORATE APPROVAL. All necessary corporation
action on the part of the directors and shareholders of WSG and Subsidiary
Company approving and adopting this Agreement and approving the transactions
contemplated hereby shall have been taken by October 16, 1997.
(d) Opinion of Counsel for WSG, GRS shall have
received an opinion of ▇▇▇▇, Layton, Kersh, Solomon, Sigmon, ▇▇▇▇ & ▇▇▇▇▇,
P.A., counsel for WSG and Subsidiary Company, dated the Effective Date,
satisfactory in form and substance to GRS and its counsel, to the effect that:
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(i) WSG and Subsidiary Company are
corporations organized, validly existing and in good standing under the laws of
the State of North Carolina, and have the requisite corporate power and
authority under the law of such state to own, lease and operate their
properties, to carry on their businesses as then being conducted and to
consummate the Merger contemplated hereby;
(ii) all necessary corporate proceedings of
the Boards of Directors and shareholders of WSG and Subsidiary Company to
authorize the execution and delivery of this Agreement and the consummation of
the Merger contemplated by this Agreement have been duly and validly taken;
(iii) WSG and Subsidiary Company have
corporate power and authority to execute and deliver this Agreement and this
Agreement has been duly authorized, executed and delivered by them and
constitutes their legal, valid and binding obligation;
(iv) such counsel knows of no actions, suits
or proceedings pending or threatened against WSG or any of its subsidiaries,
including Surviving Company, at law or in equity, or before or by any federal,
state, municipal or other governmental department, commission, board, bureau,
agency, or instrumentality that would result in a breach of the representation
and warranty set forth in Section 3.3(j) of this Agreement;
(v) the consummation of the transactions
contemplated by this Agreement will not violate or result in a breach of or
constitute a default under any provision of any indenture, mortgage, lien,
lease, agreement, contract, instrument, order, judgment, decree, award,
ordinance, regulation or any other restriction of any kind or character known
to such counsel, to which WSG or Subsidiary Company is a party or by which
either is bound;
(vi) the shares of WSG Common Stock to be
issued in accordance with this Agreement are duly authorized, and will be, upon
the effectiveness of the Merger, validly issued, fully paid, non-assessable.
With respect to certain of the opinions expressed in this
subparagraph, such opinion may be based upon a certificate or certificates of
an officer or officers of WSG or its subsidiaries, including Subsidiary
Company, and such counsel may rely on opinions of others satisfactory to GRS,
delivered in connection with this Agreement.
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(e) NO MATERIAL ADVERSE CHANGE. There shall be no
material adverse change in the business, properties or financial condition of
WSG or Subsidiary Company.
(f) LITIGATION. No action or proceeding by any
governmental agency shall have been instituted or threatened which would
enjoin, restrain or prohibit, or might result in substantial damages in respect
of this Agreement or the consummation of the transactions contemplated by this
Agreement, and would in the reasonable judgment of GRS make it inadvisable to
consummate such transaction, and no court order shall have been entered in any
action or proceeding instituted by any other party which enjoins, restrains or
prohibits this Agreement or consummation of the transactions contemplated by
this Agreement.
(g) PROCEEDINGS SATISFACTORY TO COUNSEL. All
proceedings taken by WSG and Subsidiary Company and all instruments executed
and delivered by WSG and Subsidiary Company on or prior to the Effective Date
in connection with the transactions herein contemplated shall be satisfactory
in form and substance to counsel for Subsidiary Company.
(h) EMPLOYMENT AGREEMENT. Subsidiary Company and
WSG shall recognize certain employment contracts between GRS and certain GRS
employees as set forth as Exhibit E hereto.
(i) DELIVERY OF CERTIFICATE. WSG shall deliver
stock certificates to shareholders on the date of this Agreement.
(j) REGISTRATION RIGHTS AGREEMENTS. WSG and each of
the holders of GRS Common Stock have entered into Registration Rights
Agreements substantially in the form set forth as Exhibit B hereto.
(k) MERGER DOCUMENTS. The documents necessary to
effect the Merger shall have been filed with and accepted for filing by, the
North Carolina Secretary of State.
VI. WAIVER, MODIFICATION, ABANDONMENT
6.1 WAIVERS. The failure of GRS to comply with any of its
obligations, agreements or conditions as set forth herein may be waived
expressly in writing by WSG and Subsidiary Company, by action of their
respective Boards of Directors without the requirement for a vote of
shareholders. The failure of WSG or Subsidiary Company to comply with any of
their obligations, agreements or conditions as set forth herein may be waived
expressly in writing by GRS, by action of its Board of Directors without the
requirement for a vote of shareholders.
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6.2 MODIFICATION. This Agreement may be modified at any time in any
respect by the mutual consent of all of the parties, notwithstanding prior
approval by the shareholders. Any such modification may be approved for any
party by its Board of Directors, without further shareholder approval, except
that the number of shares of WSG Common Stock to be issued in exchange for the
shares of GRS Common Stock may not be decreased without the consent of the
Shareholders given by the same vote as is required under applicable state law
for approval of this Agreement.
VII. GENERAL
7.1 CONTROLLING LAW; VENUE. This Agreement and all questions
relating to its validity, interpretation, performance and enforcement, shall be
governed by and construed in accordance with the laws of the state of North
Carolina notwithstanding any North Carolina or other conflict-of-law provisions
to the contrary. The parties agree that any action brought by any party
against any of the others in connection with any rights or obligations arising
out of this Agreement or any transaction contemplated hereby shall be
instituted properly in a United States Federal Court or State Court of
competent jurisdiction with venue only in the county of the principle place of
business of the defendant in such action. Each party hereto agrees to submit
personally to the jurisdiction of a court of competent subject matter
jurisdiction located in such county or federal district.
7.2 NOTICES. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made and received when delivered against
receipt or when deposited in the United States mails, first class postage
prepaid, addressed as set forth below:
If to WSG or Surviving Company:
Wheels Sports Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy given in the manner
prescribed above, to:
▇▇▇▇, Layton, Kersh, Solomon,
Sigmon, ▇▇▇▇ & ▇▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
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If to GRS:
Green's Racing Souvenirs, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy given in the manner
prescribed above, to:
Tuck, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Any party may alter the address to which communications or copies are
to be sent by giving notice to such of change of address in conformity with the
provisions of this paragraph for the giving notice.
7.3 BINDING NATURE OF AGREEMENT; NO ASSIGNMENT. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that no party may assign or transfer
its rights or obligations under this Agreement without the prior written
consent of the other parties hereto.
7.4 ENTIRE AGREEMENT. This Agreement together with the other
documents and agreements referenced herein, contains the entire understanding
among the parties hereto with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements and understandings,
inducements or conditions, express or implied, oral or written, except as
herein contained. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms
hereof. This Agreement may not be modified or amended other than by an
agreement in writing.
7.5 PARAGRAPH HEADING. The paragraph headings in this Agreement are
for convenience only; they form no part of this Agreement and shall not affect
its interpretation.
7.6 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. There are no
survival of representations and warranties.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the 17th day of October, 1997.
GREEN'S RACING SOUVENIRS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
President
ATTEST:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Secretary
WHEELS SPORTS GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
---------------------------
President
ATTEST:
/s/ ▇▇▇▇▇ ▇▇▇▇
----------------------
Assistant Secretary
WHEELS SPORTS GROUP ACQUISITION
III,INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
--------------------------
President
ATTEST:
/s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------
Assistant Secretary
(SEAL)
------------------------ ---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ No. of Shares
(SEAL)
------------------------ ---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ No. of Shares
26