ASSET AND USISL STOCK PURCHASE AGREEMENT
as of
November __, ▇▇▇▇
▇▇▇▇▇ INTERNATIONAL, INC. -- Seller
VARSITY SPIRIT FASHIONS & SUPPLIES, INC. -- Buyer
CERTAIN PROVISIONS OF THIS AGREEMENT ARE SUBJECT TO ARBITRATION PURSUANT TO THE
UNIFORM ARBITRATION ACT ss. 15-48-10 ET SEQ. OF THE CODE OF LAWS OF SOUTH
CAROLINA.
INVENTORY AND USISL STOCK PURCHASE AGREEMENT
TABLE OF CONTENTS
Article 1 PURCHASE AND SALE OF ASSETS.................................... 1
1.1 Purchase and Sale of Assets............................. 1
Article 2 PURCHASE PRICE OF ASSETS....................................... 1
2.1. Purchase Price.......................................... 1
2.2 Payment of Purchase Price............................... 2
Article 3 REPRESENTATIONS AND WARRANTIES OF SELLER....................... 2
3.1. Organization............................................ 2
3.2. Power and Authority..................................... 2
3.3. Title to Property....................................... 2
3.4. Inventory............................................... 2
3.5 Broker's or Finder's Fees............................... 3
3.6 No Conflict............................................. 3
3.7 Materiality Defined..................................... 3
Article 4 REPRESENTATIONS AND WARRANTIES OF BUYER........................ 3
4.1 Organization............................................ 3
4.2 Power and Authority..................................... 3
4.3 Broker's or Finder's Fee................................ 4
4.4 No Conflict............................................. 4
- i -
Article 5 CONDITIONS TO SELLER'S OBLIGATIONS.............................. 4
5.1 License Agreement....................................... 4
5.2 USISL Agreement......................................... 4
Article 6 CONDITIONS TO BUYER'S OBLIGATIONS............................... 4
6.1 License Agreement....................................... 4
6.2 USISL Agreement......................................... 4
Article 7 CLOSING......................................................... 5
7.1 Closing................................................. 5
7.2 Actions at Closing...................................... 5
a. Certificates..................................... 5
b. Resolutions...................................... 5
c. License Agreement................................ 5
d. USISL Agreement.................................. 5
e. Other Documents.................................. 5
Article 8 COVENANTS OF SELLER AND BUYER FOLLOWING CLOSING................ 5
8.1 Accounts Receivable..................................... 5
8.2 MIS..................................................... 6
8.3 Personnel and Office Space.............................. 6
8.4 Miscellaneous........................................... 6
Article 9 INDEMNITY...................................................... 6
9.1 Indemnification by Seller............................... 6
9.2 Indemnification by Buyer................................ 7
- ii -
9.3 Notice of Claim......................................... 7
9.4 Defense................................................. 7
9.5 Limitations............................................. 7
a. Thresholds....................................... 7
b. Time of Assertion................................ 8
c. Exclusive Remedy................................. 8
9.6 Recovery of Attorney Fees For Frivolous Actions......... 8
Article 10 MISCELLANEOUS.................................................. 8
10.1 Entire Agreement........................................ 8
10.2 Parties Bound by Agreement; Successors and Assigns......
10.3 Counterparts............................................ 8
10.4 Headings................................................ 8
10.5 Modification and Waiver................................. 9
10.6 Expenses................................................ 9
10.7 Notices................................................. 9
10.8 Governing Law and Arbitration........................... 10
10.9 Public Announcements.................................... 11
10.10 Third Party Beneficiaries............................... 11
10.11 "Including"............................................. 11
10.12 References.............................................. 11
10.13 Survival of Agreements.................................. 11
10.14 Severability............................................ 11
- iii -
ASSET AND USISL STOCK PURCHASE AGREEMENT
THIS ASSET AND USISL STOCK PURCHASE AGREEMENT (this "Agreement"), made and
entered into as of November __, 1998, by and between UMBRO INTERNATIONAL, INC.,
a South Carolina corporation ("Seller"), and VARSITY SPIRIT FASHIONS & SUPPLIES,
INC., a Minnesota corporation ("Buyer");
WITNESSETH:
WHEREAS, the business conducted by Seller consists primarily of the design,
development, manufacturing and/or sourcing and marketing of soccer related
apparel, footwear, equipment and accessories (the "Business");
WHEREAS, Seller owns sixty (60) shares of the capital stock of U.S.I.S.L.,
Inc. (the "USISL"), constituting 60% of all of the issued and outstanding shares
of capital stock of the USISL (the "Seller Shares"); and
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from
Seller, certain team inventory products existing in Seller's inventory (the
"Inventory"), certain items used in the conduct of Seller's U.S. Business
described in Section 8.5 (the "Promotional Materials"), fifteen (15) of the
Seller Shares (the "Buyer Shares"), and an option to purchase an additional five
(5) of the Seller Shares described in Section 8.9 (the "Option Shares") upon the
terms and conditions and subject to the limited exceptions set forth herein;
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants, and agreements of the parties hereinafter set forth, the parties
hereto, intending to be legally bound, do hereby agree as follows:
Article 1
PURCHASE AND SALE OF ASSETS
1.1 Purchase and Sale of Assets. Upon the terms and subject to the
conditions of this Agreement, Buyer agrees to purchase, accept, and acquire from
Seller, and Seller agrees to sell, transfer, assign, convey, and deliver to
Buyer, all right, title, and interest of Seller in and to the Inventory listed
on Schedule 1.1 attached hereto, the Promotional Material, the Buyer Shares and
the Option Shares (together, the "Assets"). The parties hereby agree and
acknowledge that Buyer is not assuming any past, present, future, contingent or
other liability of Seller or any of its Affiliates.
CERTAIN PROVISIONS OF THIS AGREEMENT ARE SUBJECT TO ARBITRATION PURSUANT TO THE
UNIFORM ARBITRATION ACT ss. 15-48-10 ET SEQ. OF THE CODE OF LAWS OF SOUTH
CAROLINA.
1.2 Storage and Distribution of Inventory.
a. Segregation of Inventory. Seller shall segregate the Inventory from
all other inventory controlled by Seller in its Greenville, South Carolina
warehouse.
b. Lease of Warehouse. For the storage and distribution of the
Inventory, unless purchased and paid for by Buyer, Seller will make its
warehouse facilities available to Buyer at no charge; provided, however,
Buyer removes all Inventory from Seller's warehouse facilities within
fourteen (14) days after the Closing Date. In the event Buyer does not
remove the Inventory from Seller's warehouse facilities within fourteen
(14) days after the Closing Date, Buyer shall pay to Selle a lease rate of
$2,000/month plus forty percent (40%) of Seller's actual expenses (the
"Lease Rate") until the Inventory is removed from the Seller's warehouse so
long as the warehouse is available to Seller. Buyer agrees to pay the Lease
Rate upon receipt of an invoice from Seller.
c. Ownership and Movement of Inventory. From the Closing Date until
April 1, 1999, the Inventory will be owned by Seller, whether the Inventory
is held in Seller's warehouse or another warehouse, until purchased and
paid for by Buyer. Within five business days following shipment by Buyer to
end customers or distributors, or from the Buyer's Memphis warehouse, the
Inventory will be purchased and paid for. If and when the Inventory is held
in a warehouse other than the Seller warehouse, Buyer will make
arrangements to provide the same insurance, reports and security interest
to Seller's lenders that Seller has been required to provide; provided,
however, Seller shall retain ownership of such Inventory until purchased
and paid for by Buyer. Buyer shall accept delivery of Inventory which must
be moved to a warehouse designated by Buyer to avoid double shipping costs.
Buyer shall have the risk of loss with regard to the Inventory upon receipt
of the Inventory is its own warehouse or the warehouse designated by Buyer.
d. Counting of Inventory. In conjunction with the delivery of the
Inventory from Seller to Buyer's Memphis warehouse, Buyer will retain an
independent third-party reasonably acceptable to Seller to examine the
Inventory as it is removed from Seller's delivery vehicles (the "Inventory
Counter"). The Inventory Counter will be responsible for confirming the
Inventory is actually delivered by Seller in the quantity described in
Schedule 1.1 and is not damaged. The Inventory Counte shall be the sole
entity to determine the quantity and condition of Inventory delivered by
Seller to Buyer and shall be authorized to modify Schedule 1.1 accordingly.
If the Inventory Counter provides written notice of a deficiency in the
number of products delivered or that products are damaged, then Buyer shall
give Seller written notice of the deficiencies and indicate which of the
following options applies: If the Inventory Counter determined that any
items in the Inventory were missing, the Purchas Price and the letter of
credit described in Section 1.2(d) shall be reduced by the cost of the
missing goods. If the Inventory Counter determined that any items in the
Inventory were damaged in such a manner that can reasonably be expected to
negatively affect the resale value of the goods, then Buyer may at its
option (i) return the damaged goods to Seller in which event the Purchase
Price and letter of credit will be reduced by the cost of the returned
Inventory or (ii) retain the damaged goods in
- 2 -
which event the Purchase Price and letter of credit will be reduced by such
amounts as Buyer and Seller agree. Seller reserves the right to observe the
Inventory Counter.
e. Letters of Credit. Buyer will provide letters of credit in favor of
Seller's lenders to secure any Assets not purchased as of January 1, 1999
in a form reasonably acceptable to Seller's lenders.
Article 2
PURCHASE PRICE OF ASSETS
2.1 Purchase Price. The aggregate purchase price for the Assets shall be
equal to US$3,385,940.07, subject to any adjustments under Section 1.2(d) (the
"Purchase Price").
2.2 Payment of Purchase Price. The Purchase Price shall be paid as follows:
a. Initial Payment. Buyer shall pay to Seller US$300,000 in immediately
available funds at the Closing (the "Initial Payment").
b. Second Payment. Buyer shall pay to Seller US$350,000 in immediately
available funds on January 5, 1999 (the "January Payment").
c. Third Payment. Buyer shall pay to Seller US$350,000 in immediately
available funds on April 1, 1999 (the "April Payment").
d. Final Payment for Inventory. Buyer shall pay to Seller, in immediately
available funds, Seller's cost of Inventory as listed in Schedule 1.1 within
five (5) business days after such Inventory is shipped by Buyer to customers or
distributors (the "Inventory Payments"). On April 1, 1999, Buyer shall pay to
Seller, in immediately available funds, the Purchase Price less the Initial
Payment, January Payment, April Payment and Inventory Payments.
Article 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as follows:
3.1 Organization. Seller is a corporation validly existing and in good
standing under the laws of the State of South Carolina with the corporate power
and authority to conduct the Business and to own and lease its properties and
assets.
3.2 Power and Authority. Seller has the power and authority to execute,
deliver, and perform this Agreement and the other agreements and instruments to
be executed and delivered by it in connection with the transactions contemplated
hereby and thereby, and has taken all necessary corporate action to authorize
the execution and delivery of this Agreement and such other agreements and
instruments and the consummation and performance of the transactions
contemplated hereby and thereby. This Agreement is, and the other agreements and
instruments to be executed and delivered by Seller in connection with the
transactions
- 3 -
contemplated hereby shall be the legal, valid, and binding obligations of
Seller, enforceable in accordance with their terms.
3.3 Title to Property. At the time Buyer purchases the Inventory set forth
in Schedule 1.1 and makes the Inventory Payments, Buyer shall obtain good and
marketable title to items purchased, free and clear of all title defects, liens,
restrictions, claims, charges, security interests, or other encumbrances of any
nature whatsoever, including any mortgages, leases, chattel mortgages,
conditional sales contracts, collateral security arrangements, or other title or
interest retention arrangements.
3.4 Inventory. Subject to Section 1.2(d), as of the Closing Date and as of
the date the Inventory is purchased by Buyer, THE INVENTORY SOLD TO BUYER HEREIN
IS SOLD "AS IS, WHERE IS," WITHOUT ANY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. The Inventory sold hereunder is not slow moving,
damaged or obsolete nor was sold by Seller prior to Closing to the trade at a
discount from the wholesale price set forth on Schedule 1.1. Any information
regarding number, type, cost or value of the Inventory , and any other financial
or business information of any kind whatsoever, that has heretofore been
provided by Seller to Buyer has been produced in good faith, but Seller shall
have no responsibility or obligation for the accuracy or use of any information
that has been provided or is obtained by Buyer from any source.
3.5 Broker's or Finder's Fees. Seller has not authorized any person to act
as broker or finder or in any other similar capacity in connection with the
transactions contemplated by this Agreement.
3.6 No Conflict. Neither the execution and delivery by Seller of this
Agreement and of the other agreements and instruments to be executed and
delivered by Seller in connection with the transactions contemplated hereby or
thereby, nor the consummation or performance by Seller of the transactions
contemplated hereby or thereby will violate or conflict with (1) any federal,
state, or local law, regulation, ordinance, governmental restriction, order,
judgment, or decree applicable to Seller, (2) any provision of any articles or
certificate of incorporation, charter, bylaw, or other governing or
organizational instrument of Seller or USISL, or (3) any contract or agreement
between Seller and any third party, except where any such violation or conflict
would not prohibit, invalidate, impede or delay Seller's ability to perform its
duties under this Agreement.
3.7 USISL.
a. Organization and Good Standing. USISL is a corporation duly
organized, validly existing, and in good standing under the laws of
Delaware, with full corporate power and authority to conduct its business
as it is now being conducted and to own or use the property and assets that
it owns or uses. To the knowledge of Umbro, USISL is duly qualified to do
business as a foreign corporation and is in good standing under the laws of
each state in which either the ownership or use of the properties or
- 4 -
assets owned or used by it, or the nature of the activities conducted by
it, requires such qualification and in which the failure to be so qualified
would have a Material adverse effect.
b. Capitalization.
(i) The issued and outstanding shares of USISL consists of one
hundred (100) shares of no par value common voting stock of which one
hundred (100) shares are issued and outstanding;
(ii) All of the Seller Shares are duly authorized, validly issued and
outstanding, fully paid and nonassessable. Seller owns the Seller Shares
beneficially and of record and has good and marketable title to such
Seller Shares and owns such Seller Shares free and clear of all
encumbrances or other restrictions or claims by any other person. The
Seller Shares constitute Sixty percent (60%) of all of the issued and
outstanding Shares. Except for the transactions contemplated by this
Agreement, neither Seller nor USISL has any commitment or obligation to
issue or sell any issued and outstanding shares of USISL or any
securities or obligations convertible into or exchangeable for, or
giving any person any right to subscribe for, purchase or otherwise
acquire from the USISL or Seller (whether by preemptive right, right of
first refusal or otherwise), any issued and outstanding shares of USISL
and no such securities or obligations are issued or outstanding.
c. Financial Statements. To the knowledge of Seller, the financial
statements previously provided to Buyer and set forth on Schedule 3.7(c)
are in accordance with the books and records of USISL, have been prepared
in accordance with U.S. GAAP consistently applied throughout the periods
indicated and fairly present the financial position of USISL and the
results of its operations as of the dates and throughout the periods
indicated and there has been no Material adverse change in the financial
position of USISL from that reflected in the financial statements except as
described in the resolutions of the board of directors of USISL dated
November 9, 1998 and the amendment to the sponsorship agreement between the
USISL and Seller effective as of January 1, 1998, both included in Schedule
3.7(c).
d. Agreements. Except as set forth on Schedule 3.7(d), there are no
other shareholder agreements, registration rights agreements or other
agreements relating to the ownership of the issued and outstanding shares
of USISL.
3.8 Consents. No approval, authorization, consent, permission, or
waiver to or from, or notice, filing, or recording to or with, any person,
governmental, public or self-regulatory body or authority is necessary for (1)
the execution and delivery of this Agreement and the other agreements and
instruments to be executed and delivered in connection with the transactions
- 5 -
contemplated hereby or thereby by Seller or the consummation by Seller of the
transactions contemplated hereby; or (2) the transfer and assignment to Buyer at
Closing of the Assets.
3.9 Litigation. No claim, action, suit, proceeding, inquiry, hearing,
arbitration, administrative proceeding, claim, or investigation (collectively,
"Litigation") is pending, or, to Seller's knowledge, threatened against Seller,
its present or former directors, officers, or employees, affecting, involving,
or relating to the Assets. Seller knows of no facts that could reasonably be
expected to serve as the basis for Litigation against itself (or the Buyer upon
acquisition of the Assets), it present or former directors, officers, or
employees, affecting, involving, or relating to the Assets.
3.9 Insolvency. There are no bankruptcy or insolvency proceedings pending
against Seller, the Assets, or, to the best of Seller's knowledge, the USISL.
Seller represents it is receiving reasonably equivalent value from Buyer in
exchange for the Assets.
3.10 Bulk Sales. The sale of the Assets hereunder is not a "bulk sale" as
that term is defined under the Uniform Commercial Code - Bulk Transfer Act of
the South Carolina Code ("Bulk Transfers Act") and Buyer need not comply with
any requirements under the Bulk Transfers Act.
3.11 Liabilities. Buyer will not be responsible for any liability arising
out of Seller's operation of the Business or ownership of the Assets prior to
the Closing, whether accrued, contingent or otherwise, including but not limited
to, any state taxes or product liability claims.
3.12 Materiality Defined. For purposes of this Agreement, each reference to
any "Material" adverse effect upon the Assets or any other reference to a
"Material" deviation, item or circumstance, shall be construed to include any
act, omission, event, or circumstances that would entail loss, liability,
damage, or expense to Buyer (with respect to the rights and benefits expected by
Buyer to be obtained under this Agreement) equal to or in excess of $50,000 in
any single event or circumstance, or $100,000 in the aggregate, whether under
one or more representations, warranties, covenants, or agreements contained
herein, or taken as a whole under all representations, warranties, covenants,
and agreements contained herein. Notwithstanding the foregoing, failure of
Seller to deliver any of the Inventory shall be deemed "Material".
Article 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
4.1 Organization. Buyer is a corporation validly existing and in good
standing under the laws of the State of Minnesota with the corporate power and
authority to conduct its business and to own and lease its properties and
assets.
- 6 -
4.2 Power and Authority. Buyer has the power and authority to execute,
deliver, and perform this Agreement and the other agreements and instruments to
be executed and delivered by it in connection with the transactions contemplated
hereby and thereby, and has taken all necessary corporate action to authorize
the execution and delivery of this Agreement and such other agreements and
instruments and the consummation of the transactions contemplated hereby and
thereby. This Agreement is, and, the other agreements and instruments to be
executed and delivered by Buyer in connection with the transactions contemplated
hereby shall be the legal, valid, and binding obligation of Buyer, enforceable
in accordance with their terms.
4.3 Broker's or Finder's Fees. Buyer has not authorized any person to act
as broker, finder, or in any other similar capacity in connection with the
transactions contemplated by this Agreement.
4.4 No Conflict. Neither the execution and delivery by Buyer of this
Agreement and of the other agreements and instruments to be executed and
delivered by Buyer in connection with the transactions contemplated hereby or
thereby, nor the consummation or performance by Buyer of the transactions
contemplated hereby or thereby will violate or conflict with (1) any federal,
state, or local law, regulation, ordinance, governmental restriction, order,
judgment, or decree applicable to Buyer, (2) any provision of any articles or
certificate of incorporation, charter, bylaw, or other governing or
organizational instrument of Buyer, or (3) any contract or agreement between
Buyer and any third party, except where any such violation or conflict would not
prohibit, invalidate, impede or delay Buyer's ability to perform its duties
under this Agreement.
4.5 Knowledge; No Reliance. Buyer acknowledges that it possesses such
information as it deems necessary to cause it to make an informed decision to
consummate the transactions contemplated by this Agreement. Accordingly, Buyer
is not relying upon any representations or warranties of any kind whatsoever,
except for those set forth in this Agreement and the Schedules.
4.6 Undisclosed Principals or Agencies. Buyer intends to, and will,
consummate the transactions contemplated by this Agreement for its own account
and is not acting as an agent, broker, "straw-man" or other intermediary or
Representative for any undisclosed Person.
4.7 Financing. Buyer has the financial ability to, or presently has
available to it cash or binding debt/or equity financing commitments sufficient
to, discharge and otherwise pay the Purchase Price in accordance with the terms
and conditions set forth herein and to otherwise consummate the transactions
contemplated by this Agreement in strict accordance with the terms and
conditions of this Agreement.
4.8 Investment Representations.
a. Buyer understands that Seller proposes to deliver to the Buyer the
Buyer Shares without compliance with the registration requirements of
the Securities Act of 1933, as amended (the "Securities Act"), that for
such purpose Seller will rely upon the representations, warranties,
covenants and agreements contained herein, and that such
- 7 -
non-compliance with registration is not permissible unless such
representations and warranties are correct and such covenants and
agreements performed.
b. Buyer is a sophisticated investor familiar with the type of risks
inherent in the acquisition of restricted securities such as the Buyer
Shares and Buyer's financial position is such that it can afford to
retain the Buyer Shares for an indefinite period of time without
realizing any direct or indirect cash return on its investment.
c. Buyer is acquiring the Buyer Shares for its own account and not
with a view to, or for sale in connection with, the distribution thereof
within the meaning of the Securities Act.
Article 5
CONDITIONS TO SELLER'S OBLIGATIONS
Each of the obligations of Seller to be performed hereunder shall be
subject to the satisfaction (or the written waiver by Seller) on the Closing
Date of each of the following conditions:
5.1 Representations and Warranties True. Buyer's representations and
warranties contained in this Agreement shall be true in all Material respects on
and as of the Closing Date. Buyer shall have delivered to Seller a certificate
dated the Closing Date and signed by a duly authorized officer of Buyer to all
such effects.
5.2 Performance. Buyer shall have performed and complied with all
covenants, agreements, obligations, and conditions required by this Agreement to
be performed or complied with by it at or prior to the Closing. Buyer shall have
delivered to Seller a certificate dated the Closing Date and signed by a duly
authorized officer of Buyer to all such effects.
5.3 License Agreement. Buyer shall have entered a license agreement with
Seller in a form substantially similar to the license set forth in Schedule 5.3
(the "Varsity License Agreement) contemporaneously with the Closing under this
Agreement.
5.4 USISL Agreement. Buyer shall have entered into an agreement with Seller
and Signal Apparel Company, Inc. ("Signal") in a form substantially similar to
the agreement set forth in Schedule 5.4 (the "USISL Shareholders' Agreement")
contemporaneously with the Closing under this Agreement.
5.5 Signal Agreement. Seller and Signal shall have entered into the Signal
Asset and USISL Stock Purchase Agreement and the Signal License Agreement
contemporaneously with the Closing under this Agreement.
- 8 -
Article 6
CONDITIONS TO BUYER'S OBLIGATIONS
Each of the obligations of Buyer to be performed hereunder shall be subject
to the satisfaction (or the written waiver by Buyer) on the Closing Date of each
of the following conditions:
6.1 Representations and Warranties True. Seller's representations and
warranties contained in this Agreement shall be true in all Material respects on
and as of the Closing Date. Seller shall have delivered to Buyer a certificate
dated the Closing Date and signed by a duly authorized officer of Seller to all
such effects.
6.2 Performance. Seller shall have performed and complied with all
covenants, agreements, obligations, and conditions required by this Agreement to
be performed or complied with by it at or prior to the Closing. Seller shall
have delivered to Buyer a certificate dated the Closing Date and signed by a
duly authorized officer of Seller to all such effects.
6.3 No Litigation. No Litigation shall be threatened or pending against
Buyer or Seller before any court or governmental agency that, in the reasonable
opinion of counsel for Seller, could result in the restraint or prohibition of
any such party, or the obtaining of damages or other relief from such party in a
material amount, in connection with this Agreement or the consummation of the
transactions contemplated hereby.
6.4 Material Adverse Change.
a. USISL. There shall have been no Material adverse change to USISL
or its business, assets, financial condition, results of operation or
prospects, assets or liabilities (absolute, contingent or otherwise)
between August 1, 1998 and the Closing Date, other than in the ordinary
course of business or as described in the resolutions of the board of
directors of the USISL dated November 9, 1998 and the amendment to the
sponsorship agreement between USISL and Seller effective as of January
1, 1998, both included in Schedule 3.7(c) nor has the USISL declared a
dividend or entered into any Material agreements between August 1, 1998
and the Closing Date, other than in the ordinary course of business.
b. Inventory. There shall have been no Material adverse change to the
Inventory from August 1, 1998 to the Closing Date.
6.5 License Agreement. Buyer and Seller shall have entered into the Varsity
License Agreement contemporaneously with the Closing under this Agreement.
6.6 USISL Agreement. Buyer, Seller and Signal shall have entered into the
USISL Shareholders' Agreement contemporaneously with the Closing under this
Agreement.
- 9 -
6.7 Signal Agreement. Seller and Signal shall have entered into the Signal
Asset and USISL Stock Purchase Agreement and the Signal License Agreement
contemporaneously with the Closing under this Agreement.
Article 7
CLOSING
7.1 Closing. The closing of the purchase and sale of the Assets (the
"Closing") shall take place at the offices of ▇▇▇▇▇▇ & Bird, L.L.P., One
Atlantic Center, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ at 5:00
p.m. Eastern Standard Time on November __, 1998, or at such earlier time, date,
and place as the parties may agree (the "Closing Date").
7.2 Actions at Closing. At the Closing, Buyer and Seller shall take the
following actions, in addition to such other actions as may otherwise be
required under this Agreement:
a. Certificates. Each party shall deliver the certificates from the
secretary or other authorized officer of each party (i) certifying the
accuracy of the representations and warranties contained herein, the
compliance with the covenants and agreements contained herein, and the
satisfaction of the conditions to Closing contained herein and (ii)
certifying the names and signatures of the party's officers authorized
to sign this Agreement, the Varsity License Agreement, the USISL
Shareholders' Agreement and any other documents to be executed at
Closing.
b. Resolutions. Each party shall deliver copies of resolutions of the
shareholders, board of directors or any authorized committee thereof
(all of which to the extent necessary), approving, or a certification
from a duly elected officer certifying that the respective body has
approved, the entering into of this Agreement, the Varsity License
Agreement, the USISL Shareholders' Agreement and any other documents to
be executed at Closing.
c. License Agreement. Buyer and Seller shall each deliver to the
other the Varsity License Agreement in the form attached hereto as
Schedule 5.3.
d. USISL Agreement. Buyer and Seller shall each deliver to the other
the USISL Shareholders' Agreement in the form attached hereto as
Schedule 5.4.
e. Other Documents. Buyer and Seller shall deliver other documents as
reasonably requested by the other party to complete the Closing under
the conditions of this Agreement.
f. Buyer Shares. Seller shall deliver the original stock certificates
representing all of the Buyer Shares accompanied by a duly executed
stock transfer powers endorsed in blank
- 10 -
g. Initial Payment. Buyer shall pay to Seller the Initial Payment in
immediately available funds.
h. Super Show Costs. Buyer shall pay to Seller US$24,310, which is
Buyer's reimbursement to Seller of one-third of the total amount of
exhibition space, rental, storage and other similar direct costs paid by
Seller for the 1999 SuperShow as of the Closing Date which total amount
is US$72,930.
Article 8
COVENANTS OF SELLER AND BUYER FOLLOWING CLOSING
8.1 Accounts Receivable. At Seller's option, Seller may seek the assistance
of Buyer in collecting Seller's accounts receivable existing as of the Closing
Date. In the event Seller makes such request of Buyer, Buyer shall use its
commercially reasonable efforts to collect and remit to Seller all accounts
receivable of Seller for a period of 120 days following the Closing Date for a
3% fee; provided, however, Buyer shall not be liable to Seller for any
write-offs approved in writing by Seller. At the end of the 120 day collection
period, Seller may, at its option, assume the collection of its accounts
receivable or negotiate whether Buyer will continue collectively and remitting
Seller accounts receivable and under what terms.
8.2 MIS. Seller will use its commercially reasonable efforts to make the
computer software and hardware used in the Business in the United States
available to Buyer and Signal so long as available at a cost to Buyer not to
exceed 40% Seller's current costs for such items (approximately $12,000/month).
In the event such computer software and hardware must be relocated to a
different facility, the costs of such relocation shall be borne jointly by Buyer
and Signal. If necessary, and to the extent contractually allowable, Buyer and
Signal shall have the option to assume to the cost of any software and hardware
leases in the event such assumption is required under the terms of any software
or hardware lease or by a provider of services to the software or hardware. In
the event Buyer purchases computer software and hardware other than that
software and hardware used by Seller in the Business, Seller agrees to consult
with Buyer regarding Seller's management information systems used by Seller in
the Business at Buyer's reasonable request.
8.3 Personnel and Office Space. Seller will provide access to all current
United States employees of Seller to facilitate interviews in hiring of all
needed personnel. Seller will provide office space for up to 35 persons in
Seller's United States facilities as long as available to facilitate Buyer's
operations through that date. The Seller's United States telephone system will
remain available through November 30, 1998 at no charge other than long distance
costs. After November 30, 1998 Buyer shall obtain other commercial telephone
service at its own expense. Seller shall maintain ownership of the existing
Seller dedicated telephone numbers "▇-▇▇▇-▇▇▇▇▇▇" and "▇-▇▇▇-▇▇▇-▇▇▇▇". Seller
will allow Buyer and Signal to use these telephone numbers subject to an
agreement between Buyer and Signal on such use. The right to use these telephone
numbers will terminate with the termination the Varsity License Agreement.
- 11 -
8.4 Warehouse Employees. Buyer shall pay to Seller forty percent (40%) of
the gross pay paid by Seller to its warehouse employees from the date of this
Agreement until all Inventory is transferred from Seller's warehouse to Buyer's
warehouse or a warehouse designated by Buyer. Seller shall invoice Buyer on the
first and fifteenth day of each month after the Closing Date for forty percent
(40%) of the gross pay paid by Seller's to its warehouse employees during the
preceding pay period Buyer shall pay Seller the invoice amount within ten (10)
days of the receipt of such invoice.
8.5 Miscellaneous. Seller shall provide for Buyer's use all designs,
patterns, line drawings, artwork, hangtags, posters, and other materials used by
Seller in connection with the Seller's U.S. Business, which are on hand as of
the Closing Date, the copyrights of which shall remain owned by Seller. Buyer
may use and freely copy the advertising, promotional and other materials
described above.
8.6 Insurance. Seller agrees all insurance policies relating to the
Inventory existing as of the Closing shall remain in existence until the
Inventory is shipped to Buyer's warehouse or a warehouse designated by Buyer.
Buyer agrees that, upon receipt of the Inventory in its warehouse or a warehouse
designated by Buyer, Buyer will provide similar insurance coverage for the
Inventory.
8.7 Access. Seller hereby grants Buyer reasonable access to Seller's
warehouse after Closing for the purpose of processing, distributing and shipping
the Inventory and Buyer shall be able to move the Inventory from Seller's
warehouse under the terms and conditions of this Agreement immediately after the
Closing.
8.8 Buyer not Successor to Seller. The Seller covenants and agrees that,
notwithstanding the execution and delivery of this Agreement and the
consummation and performance of the transactions contemplated hereby, Buyer is
not and under no circumstance or event shall Buyer be considered or deemed to
be, a successor in interest to, or otherwise an affiliate of, Seller. Seller
shall not, and Seller shall not cause or assist any other person or entity to,
make any statement, representation, argument or otherwise conduct itself in any
manner inconsistent with this section.
8.9 Option for USISL Shares. Subject to the terms and conditions of the
USISL Shareholders' Agreement, and at its option, Buyer will receive the Option
Shares if Buyer funds 40% of the USISL's promotional activities from January 1,
2000 through December 31, 2000 in an amount similar to, but not to exceed, the
amount funded by Buyer during calendar year 1999. Buyer may exercise this option
under the terms and conditions set forth in the USISL Shareholders Agreement by
giving written notice to Seller no later than June 30, 1999.
- 12 -
Article 9
INDEMNITY
9.1 Indemnification by Seller. Seller shall indemnify, defend, and hold
harmless Buyer and its directors, officers, employees, and agents (collectively,
the "Buyer Group"), at, and at any time after, the Closing, pursuant to the time
limits in Section 9.5, from and against any and all demands, claims, actions, or
causes of action, assessments, losses, damages, liabilities, costs, and
expenses, including reasonable fees and expenses of counsel, other expenses of
investigation, handling, and litigation, and settlement amounts, together with
interest and penalties (collectively, a "Loss" or "Losses"), asserted against,
resulting to, imposed upon, or incurred by the Buyer Group, directly or
indirectly, by reason of, resulting from, or arising in connection with
a. any breach of any representation, warranty, covenant or agreement
of Seller contained in this Agreement that survives the Closing; or
b. any past, present, future, known, contingent or other liability of
Seller or any of its Affiliates; or
c. Any alleged violation of the Bulk Transfers Act by Buyer.
Buyer shall be entitled, at Buyer's option, to offset such
Indemnification Claims to be paid by Seller to Buyer against royalty payments
due Seller from Buyer under the Varsity License Agreement upon terms and
conditions as agreed to between Buyer and Seller in writing.
9.2 Indemnification by Buyer. Buyer shall indemnify, defend, and hold
harmless Seller and its successors, assigns and affiliates and the directors,
officers, employees, and agents of each (collectively, the "Seller Group"), at,
and at any time after, the Closing, pursuant to the time limits in Section 9.5,
from and against any and all Losses asserted against, resulting to, imposed
upon, or incurred by the Seller Group, to the extent arising from any breach of
any representation, warranty, or agreement of Buyer contained in this Agreement
or Buyer's ownership, use, operation or sale of the Inventory from and after the
Closing Date. Notwithstanding the foregoing, Seller shall indemnify Buyer with
respect to manufacturing or design defects occurring in the Inventory to the
same extent as set forth in Section 13.4 of the Varsity License Agreement.
9.3 Notice of Claim. The party entitled to indemnification hereunder (the
"Claimant") shall promptly deliver to the party liable for such indemnification
hereunder (the "Obligor") notice in writing (the "Required Notice") of any claim
for recovery under Section 9.1 or Section 9.2, specifying in reasonable detail
the nature of the Loss, and, if known, the amount, or an estimate of the amount,
of the liability arising therefrom (the "Indemnification Claims"). The Claimant
shall provide to th Obligor as promptly as practicable thereafter information
and documentation reasonably requested by the Obligor to support and verify the
claim asserted, provided that, in so doing, it may restrict or condition any
disclosure in the interest of preserving privileges of importance in any
foreseeable litigation.
- 13 -
9.4 Defense. If the facts pertaining to the Loss arise out of the claim of
any third party (other than a member of the Buyer Group or Seller Group,
whichever is entitled to indemnification for such matter) available by virtue of
the circumstances of the Loss, the Obligor may assume the defense or the
prosecution thereof, including the employment of counsel or accountants, at its
cost and expense. The Claimant shall have the right to employ counsel separate
from counsel employed by the Obligor in any such action and to participate
therein, but the fees and expenses of such counsel employed by the Claimant
shall be at its expense. The Claimant shall have the right to determine and
adopt (or, in the case of a proposal by Obligor, to approve) a settlement of
such matter in its reasonable discretion, except that Claimant need not consent
to any settlement that (1) imposes any nonmonetary obligation or (2) Obligor
does not agree to pay in full. The Obligor shall not be liable for any
settlement of any such claim effected without its prior written consent, which
shall not be unreasonably withheld. Whether or not the Obligor chooses to so
defend or prosecute such claim, all the parties hereto shall cooperate in the
defense or prosecution thereof and shall furnish such records, information, and
testimony, and attend such conferences, discovery proceedings, hearings, trials,
and appeals, as may be reasonably requested in connection therewith.
9.5 Limitations. Notwithstanding anything in this Article 9 to the
contrary:
a. Thresholds. Except for indemnification under Section 9.1(b) and
the last sentence of Section 9.2, no indemnification or any other
Indemnification Claims under this Agreement or any other instrument or
agreement to be executed and delivered by either party in connection
with the transactions contemplated hereby shall be payable until (and
then only to the extent that) the total of all Losses giving rise to
such claim(s) equals or exceeds $25,000.00. Furthermore, except as set
forth in Section 9.5(c), the parties agree that the indemnification
liability of Seller with respect to those items indemnified pursuant to
Section 9.1., and of Buyer with respect to those items indemnified
pursuant to Section 9.2., shall not exceed (a) $500,000 for
Indemnification Claims arising out of Buyer's purchase of the Inventory,
other than Seller's failure to deliver the Inventory as set forth in
Schedule 1.1 or (b) $200,000 for all other Indemnification Claims.
b. Time of Assertion. Except as set forth in Section 9.5(c), no
indemnification shall be payable by either party with respect to
Indemnification Claims as to which the obligor has not received Required
Notice from the Claimant on or before May 1, 1999 except for
Indemnification Claims regarding the purchase of the Buyer's Shares
which Notice must be given by Claimant on or before May 1, 2000.
c. Notwithstanding anything herein to the contrary, Seller shall
indemnify the Buyer Group in full without regard to any limitation
described in Section 9.5(a) or 9.5(b) with respect to the indemnities
provided by Seller under Section 9.1(b) and the last sentence of Section
9.2.
d. Exclusive Remedy. The parties hereto acknowledge and agree that
this Article 9 is the exclusive remedy of the parties hereto for damages
for breach or misrepresentation of or under this Agreement.
- 14 -
9.6 Recovery of Attorney Fees For Frivolous Actions. Claimant shall be
entitled to recover its reasonable out-of-pocket costs (including court costs
and actual attorney fees) incurred in pursuing any Indemnification Claims
defended by the Obligor on frivolous grounds or opposed for the purpose of delay
or harassment.
Article 10
MISCELLANEOUS
10.1 Entire Agreement. This Agreement (including the Schedules), and the
other certificates, agreements, and other instruments to be executed and
delivered by the parties in connection with the transactions contemplated
hereby, constitute the sole understanding of the parties with respect to the
subject matter hereof. No amendment, modification, or alteration of the terms or
provisions of this Agreement shall be binding unless the same shall be in
writing and duly executed by the parties hereto.
10.2 Parties Bound by Agreement; Successors and Assigns. The terms,
conditions, and obligations of this Agreement shall inure to the benefit of and
be binding upon the parties hereto and the respective successors and assigns
(including but not limited to any trustee or receiver) thereof. Notwithstanding
the execution and delivery of this Agreement and the consummation and
performance of the transactions contemplated hereby, Buyer is not and under no
circumstance or event shall Buyer be considered or deemed to be, a successor in
interest to, or otherwise an affiliate of, Seller. The parties hereto each
acknowledge that they have read this Agreement and have had effective assistance
of counsel in negotiating and drafting the provisions hereof; therefore, each
party agrees that there shall be no presumption regarding any ambiguous term or
provision and the construction or interpretation to be given thereto.
10.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
10.4 Headings. The headings of the Articles and paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction hereof.
10.5 Modification and Waiver. Any of the terms or conditions of this
Agreement may be waived in writing at any time by the party that is entitled to
the benefits thereof. No waiver of any of the provisions of this Agreement shall
be deemed to or shall constitute a waiver of any other provision hereof (whether
or not similar).
10.6 Expenses. Except as otherwise expressly set forth in this Agreement,
Seller and Buyer shall each pay all costs and expenses incurred by it or on its
behalf in connection with this Agreement and the transactions contemplated
hereby, including fees and expenses of its own financial consultants,
accountants, and counsel.
- 15 -
10.7 Notices. Any notice, consent or approval required or permitted to be
given by Buyer under any terms of this Agreement shall be valid (and Seller
shall be entitled to rely thereon) only if given in writing signed by an
executive officer of Buyer; any other purported notice, consent or approval
shall be null and void. Any notice, request, instruction, or other document to
be given hereunder by any party hereto to any other party hereto shall be in
writing and delivered personally, via Federal Express or other similar delivery
service, via facsimile or sent by registered or certified mail, postage prepaid:
If to Seller to:
UMBRO INTERNATIONAL, INC.
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Roundthorn Industrial Estate, Wythenshawe
▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇.
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & Bird, L.L.P.
One Atlantic Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to Buyer to:
Varsity Spirit Fashions and Supply, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ Sports, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
- 16 -
or at such other address for a party as shall be specified by like notice. Any
notice that is delivered personally, via delivery service or facsimile in the
manner provided herein shall be deemed to have been duly given to the party to
whom it is directed upon actual receipt by such party (or its agent for notices
hereunder) . Any notice that is addressed and mailed in the manner herein
provided shall be conclusively presumed to have been duly given to the party to
which it is addressed at the close of business, local time of the recipient, on
the fourth business day after the day it is so placed in the mail.
10.8 Governing Law and Arbitration.
a. This Agreement shall be construed in accordance with and governed
by the laws of the State of South Carolina without giving effect to the
principles of conflicts of law thereof.
b. Any dispute between Buyer or any member of the Buyer Group and
Seller or any member of the Seller Group arising from or in any way
relating to this Agreement or otherwise, shall be resolved by binding
arbitration conducted by the American Arbitration Association ("AAA"),
in accordance with the rules then in effect, conducted in Atlanta,
Georgia. The parties expressly consent to exclusive jurisdiction in
Atlanta, Georgia for such proceeding.
c. Arbitration hereunder shall be the sole and exclusive forum for
the resolution of such disputes, controversies or claims, but each party
retains the right to seek judicial assistance (i) to compel arbitration,
(ii) to obtain interim measures of protection pending arbitration, and
(iii) to enforce any decision of the arbitrators, including the final
award.
d. At such time as arbitration is demanded, the parties shall
endeavor to select a single arbitrator to conduct the arbitration, but
if the parties cannot agree on the identity of a single arbitrator
within thirty (30) days of receipt of the arbitration demand, the
arbitrator in question shall be appointed by the AAA in accordance with
the Rules.
e. It is the intention of the parties that the arbitrator shall
forthwith determine the merits of the claim, controversy or dispute, and
shall deliver its decision within ninety (90) days of the date of
receipt of the arbitration demand specifying such remedy (including
money damages) as shall fully implement the intent and purposes of this
Agreement.
f. In addition to the authority conferred on the arbitrator by the
Rules, the arbitrator shall have the authority to order such discovery
and production of documents, including the deposition of party
witnesses, as it may deem just and equitable.
- 17 -
g. The arbitral award shall be in writing and shall be final and
binding on the parties and may include an award of costs, including
reasonable attorneys' fees and disbursements.
h. Judgment upon the award may be entered by any court having
jurisdiction thereof or having jurisdiction over the parties or their
assets.
10.9 Public Announcements. Seller and Buyer shall consult with each other
before issuing any press releases or otherwise making any public statements with
respect to this Agreement and the transactions contemplated hereby. Neither
Seller nor Buyer shall issue any such press release or make any public statement
without the agreement of the other party, except as such party's counsel advises
in writing may be required by law.
10.10 Third-Party Beneficiaries. With the exception of (1) the parties to
this Agreement and (2) the Buyer Group and the Seller Group with respect to the
matters inuring to their benefit under Article 9, there shall exist no right of
any person to claim a beneficial interest in this Agreement or any rights
occurring by virtue of this Agreement.
10.11 "Including." Words of inclusion shall not be construed as terms of
limitation herein, so that references to "included" matters shall be regarded as
non-exclusive, noncharacterizing illustrations.
10.12 References. Whenever reference is made in this Agreement to any
Article, Section, or Schedule, such reference shall be deemed to apply to the
specified Article or Section of this Agreement or the specified Schedule to this
Agreement.
10.13 Survival of Agreements. All covenants, agreements, representations,
and warranties made herein shall survive the execution and delivery of this
Agreement and the Closing in accordance with the terms hereof.
10.14 Severability. If any term or other provision of this Agreement is
invalid, illegal or unenforceable, all other provisions of this Agreement shall
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby are not affected in any manner Materially
adverse to any party.
- 18 -
IN WITNESS WHEREOF, each of the parties hereto has caused this Asset and
USISL Stock Purchase Agreement to be executed on its behalf as of the date
indicated irrespective of the actual date of execution and delivery hereof.
UMBRO INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Title: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, CEO
VARSITY SPIRIT FASHIONS & SUPPLIES,
INC.
By: /s/
---------------------------------
Title: EVP
- 19 -
SCHEDULE 1.1
(ATTACHED)
- 20 -