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EXHIBIT 10.19
STOCK PURCHASE AGREEMENT
among
TBA ENTERTAINMENT CORPORATION,
▇▇▇▇ ▇▇▇▇▇▇
and
▇▇▇▇ ▇▇▇▇▇▇ MANAGEMENT, INC.
December 6, 1999
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TABLE OF CONTENTS
Page
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ARTICLE 1 - PURCHASE AND SALE OF SHARES......................................................1
1.1 Purchase and Sale.............................................................1
1.2 Purchase Price................................................................1
1.3 Closing.......................................................................2
1.4 Further Action................................................................2
ARTICLE 2 - REPRESENTATIONS AND WARRANTIES OF TBA............................................2
2.1 Organization and Qualification................................................2
2.2 Authority Relative to this Agreement..........................................3
2.3 Certain Corporate Matters.....................................................3
2.4 Broker's Fees.................................................................3
2.5 Disclosure....................................................................4
2.6 No Actions Pending............................................................4
2.7 Investment Intent.............................................................4
2.8 Information...................................................................4
2.9 Sophistication of TBA.........................................................4
2.10 Accredited Investor...........................................................4
2.11 TBA 10-KSB....................................................................4
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF
THE SHAREHOLDER..............................................................................5
3.1 Organization, Qualification and Corporate Power...............................5
3.2 Capitalization................................................................5
3.3 Authorization of Transaction..................................................6
3.4 Subsidiaries..................................................................6
3.5 Financial Statements..........................................................7
3.6 Events Subsequent to Financial Statements.....................................7
3.7 Undisclosed Liabilities.......................................................9
3.8 Tax Returns and Audits........................................................9
3.9 Books and Records............................................................11
3.10 Real Property................................................................11
3.11 Tangible Property............................................................11
3.12 Intellectual Property........................................................11
3.13 Contracts....................................................................13
3.14 Suppliers and Customers......................................................14
3.15 Notes; Accounts Receivable...................................................14
3.16 Powers of Attorney...........................................................14
3.17 Condition of Property........................................................14
3.18 Insurance....................................................................14
3.19 Litigation...................................................................15
3.20 Employees....................................................................15
3.21 Employee Benefit Plans.......................................................15
3.22 Guarantees...................................................................16
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TABLE OF CONTENTS
(Continued)
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3.23 Legal Compliance.............................................................16
3.24 Certain Business Relationships...............................................17
3.25 Broker's Fees................................................................17
3.26 Environment, Health and Safety...............................................17
3.27 Year 2000....................................................................17
3.28 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Management Agreement..........................................18
3.29 Disclosure...................................................................18
ARTICLE 4 - ADDITIONAL REPRESENTATIONS AND
WARRANTIES OF THE SHAREHOLDER...............................................................18
4.1 Representations Regarding Shares of ▇▇▇▇▇▇ Management........................18
4.2 Authorization................................................................18
ARTICLE 5 - [INTENTIONALLY OMITTED].........................................................19
ARTICLE 6 - ADDITIONAL AGREEMENTS...........................................................19
6.1 Expenses.....................................................................19
6.2 Taking of Necessary Action...................................................19
6.3 Press Releases...............................................................20
6.4 Employee Matters.............................................................20
6.5 Tax Matters..................................................................20
6.6 Section 338(h)(10) Election..................................................21
6.7 Adjustment to Purchase Price.................................................21
6.8 Separate Subsidiary..........................................................22
6.9 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Management Agreement..........................................22
6.10 Investment Partnerships......................................................22
6.11 No Deficit Working Capital...................................................22
ARTICLE 7 - CONDITIONS TO CLOSING...........................................................22
7.1 Conditions to Obligations of Each Party to Effect the Closing................22
7.2 Additional Conditions to TBA's Obligations...................................22
7.3 Additional Conditions to the Obligations of ▇▇▇▇▇▇
Management and the Shareholder...............................................24
ARTICLE 8 - TERMINATION, AMENDMENT AND WAIVER...............................................26
8.1 Termination..................................................................26
8.2 Amendment....................................................................26
8.3 Waiver.......................................................................26
8.4 Effect of Termination........................................................27
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TABLE OF CONTENTS
(Continued)
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ARTICLE 9 - INDEMNIFICATION.................................................................27
9.1 By TBA, ▇▇▇▇▇▇ Management and the Shareholder................................27
9.2 Claims for Indemnification...................................................27
9.3 Defense by Indemnifying Party................................................28
9.4 Payment of Indemnification Obligation........................................28
9.5 Limitations..................................................................28
ARTICLE 10 - GENERAL PROVISIONS.............................................................29
10.1 Survival of Representations and Warranties...................................29
10.2 Effect of Due Diligence......................................................29
10.3 Specific Performance.........................................................29
10.4 Notices......................................................................29
10.5 Interpretation...............................................................31
10.6 Severability.................................................................31
10.7 Miscellaneous................................................................31
10.8 Material Adverse Breach......................................................31
10.9 Limitation of Liability......................................................32
10.10 Waiver of Purchase Right.....................................................32
10.11 Effective Time...............................................................32
SCHEDULE 1 Disclosure Schedule
EXHIBIT A Form of Adjustable Promissory Note
EXHIBIT B Form of Non-Adjustable Promissory Note
EXHIBIT C Form of Employment Agreement
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STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT, dated December 6, 1999 (this
"Agreement"), is by and among TBA Entertainment Corporation, a Delaware
corporation ("TBA"), ▇▇▇▇ ▇▇▇▇▇▇, an individual and sole shareholder of ▇▇▇▇
▇▇▇▇▇▇ Management, Inc. (the "Shareholder"), and ▇▇▇▇ ▇▇▇▇▇▇ Management, Inc., a
Tennessee corporation ("▇▇▇▇▇▇ Management").
RECITALS
WHEREAS, the Shareholder owns all of the issued and outstanding common
stock (the "Shares") of ▇▇▇▇▇▇ Management;
WHEREAS, TBA, ▇▇▇▇▇▇ Management and the Shareholder each desire for TBA
to acquire (the "Acquisition") all of the Shares pursuant to the terms and
conditions of this Agreement, as a result of which ▇▇▇▇▇▇ Management will become
a wholly owned subsidiary of TBA;
NOW, THEREFORE, in consideration of the foregoing premises, the
representations, warranties and agreements herein contained and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and subject to the conditions set forth herein, the parties hereto
agree as follows:
ARTICLE 1
PURCHASE AND SALE OF SHARES
1.1 Purchase and Sale. Subject to the terms and conditions of this
Agreement, the Shareholder agrees to sell, assign, transfer and deliver to TBA
at the Closing (as hereinafter defined), and TBA agrees to purchase from the
Shareholder at the Closing, the Shares, free and clear of any and all charges,
claims, community property interests, equitable interests, mortgages, liens,
security interests, pledges, charges, rights of assignment, rights of purchase,
rights of first offer or refusal, options, warrants or encumbrances of any
nature (collectively, "Liens").
1.2 Purchase Price. The aggregate purchase price (the "Purchase Price")
for the Shares shall be equal to One Million Four Hundred Thousand Dollars
($1,400,000), subject to possible adjustment as provided in the Adjustable Note
(hereinafter defined), and shall be paid or delivered to the Shareholder at the
Closing as follows:
(a) TBA shall deliver to the Shareholder by wire transfer to one
or more accounts designated in writing by the Shareholder to TBA prior
to the Closing cash in an amount equal to One Thousand Dollars ($1,000)
(the "Cash Portion");
(b) TBA shall deliver to the Shareholder a promissory note (the
"Adjustable Note") in the initial principal amount of Seven Hundred
Thousand Dollars ($700,000) (the "Adjustable Note Portion"), subject to
possible adjustment as set forth in the Adjustable Note, in the form of
Exhibit A attached hereto (the "Form of Adjustable Note").
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(c) TBA shall deliver to the Shareholder a promissory note (the
"Non-Adjustable Note") in the principal amount of Six Hundred
Ninety-Nine Thousand Dollars ($699,000) (the "Non-Adjustable Note
Portion") in the form of Exhibit B attached hereto (the "Form of
Non-Adjustable Note").
Except as set forth in Section 6.7 hereof, any adjustment to the
Purchase Price hereunder shall be accomplished only through adjustment to
payments under the Adjustable Note as set forth in the Adjustable Note, and the
Cash Portion and the Non-Adjustable Note Portion of the Purchase Price shall not
be adjusted subsequent to Closing.
1.3 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") will take place at the offices of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ P.C., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, on December
6, 1999, or as soon as reasonably practicable thereafter as the conditions set
forth in Article 7 have been satisfied or waived (the "Closing Date"). At the
Closing:
(a) TBA will (i) pay to the Shareholder the Cash Portion by wire
transfer of immediately available funds, (ii) execute and deliver to the
Shareholder the Adjustable Note and the Non-Adjustable Note, and (iii)
execute and deliver to the Shareholder such other documents and
instruments required to be executed and delivered by TBA under the terms
of this Agreement; and
(b) The Shareholder will deliver to TBA (i) a certificate
representing the Shares, duly endorsed, and (ii) such other documents
and instruments required to be delivered by the Shareholder under the
terms of this Agreement or reasonably requested by TBA.
1.4 Further Action. If, at any time after the Closing Date, any further
action is necessary or desirable to carry out the purposes of this Agreement or
to vest TBA with full right, title and possession and all rights, privileges and
immunities with respect to any or all of the Shares, the Shareholder shall take
all such action.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF TBA
TBA hereby represents and warrants to ▇▇▇▇▇▇ Management and the
Shareholder as follows:
2.1 Organization and Qualification. TBA has been duly organized and is
validly existing as a corporation and in good standing under the laws of the
State of Delaware and has full corporate power and authority to own and use the
properties owned and used by it and to carry on its business as now conducted.
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2.2 Authority Relative to this Agreement. TBA has the requisite
corporate power and authority to execute and deliver this Agreement, to carry
out its obligations hereunder and to consummate the transactions contemplated on
its part hereby. The execution, delivery and performance of this Agreement by
TBA and the consummation by TBA of the transactions contemplated on its part
hereby have been duly authorized by the Board of Directors of TBA, and no other
corporate proceedings on the part of TBA are necessary to authorize the
execution and delivery of this Agreement and the transactions contemplated
hereby. This Agreement has been duly executed and delivered by TBA and
constitutes the legal, valid and binding obligation of TBA, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally or by general principles of equity. None of the
execution and delivery of this Agreement by TBA, the performance by TBA of its
obligations hereunder or the consummation of the transactions contemplated
hereby by TBA will require any consent, approval or notice under, or violate,
breach, be in conflict with or constitute a default (or an event that, with
notice or lapse of time or both, would constitute a default) under, or permit
the termination of, or result in the creation or imposition of any lien upon any
properties, assets or business of TBA under any note, bond, indenture, mortgage,
deed of trust, lease, franchise, permit, authorization, license, contract,
instrument or other agreement or commitment or any order, judgment or decree to
which TBA is a party or by which TBA or any of its assets or properties is bound
or encumbered, except those that have already been given, obtained or filed. No
authorization, consent or approval of, or filing or registration with, any
public body, court or governmental or regulatory authority is necessary on the
part of TBA for the consummation by TBA of the transactions contemplated by this
Agreement.
2.3 Certain Corporate Matters. TBA is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction in which the
ownership of its properties, the employment of its personnel or the conduct of
its business requires it to be so qualified, other than in such jurisdictions
where the failure to so qualify would not, individually or in the aggregate,
have a materially adverse effect on TBA and its subsidiaries, taken as a whole.
TBA has full corporate power and authority and all authorizations, licenses and
permits necessary to carry on the business in which it engages or in which it
proposes presently to engage and to own and use the properties owned and used by
it. TBA has delivered to ▇▇▇▇▇▇ Management and the Shareholder true, accurate
and complete copies of its charter documents and bylaws which reflect all
amendments made thereto at any time prior to the date of this Agreement. The
minute books containing the records of meetings of the shareholders and board of
directors of TBA are accurate and complete in all material respects. All
material corporate actions taken by TBA since its date of incorporation have
been duly authorized and/or subsequently ratified, as necessary. TBA is not in
default under or in violation of any material provision of its charter or
bylaws.
2.4 Broker's Fees. Neither TBA nor anyone on its behalf has any
liability to any broker, finder, investment banker or similar agent, or has
agreed to pay any brokerage fees, finder's fees or commissions, or to reimburse
any expenses of any broker, finder, investment banker or similar agent in
connection with the Acquisition or any similar transaction.
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2.5 Disclosure. The representations and warranties and statements of
fact made by TBA in this Agreement and in certificates and other written
statements or agreements delivered or to be delivered pursuant to this Agreement
are accurate, correct and complete on the date of this Agreement and will,
except as contemplated hereby, be accurate, correct and complete at the Closing
and do not and will not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make such representations and
warranties and statements and information contained herein or therein not
misleading.
2.6 No Actions Pending. There are no actions, claims, complaints,
grievances, suits, governmental inquiries, governmental investigations or
proceedings pending or, to the knowledge of TBA, threatened, and to the
knowledge of TBA, there are no investigations pending or threatened, which in
any manner challenge or seek to prevent, enjoin, alter or materially delay the
transactions contemplated by this Agreement, by or before any court, arbitrator
or administrative or governmental body.
2.7 Investment Intent. TBA is acquiring the Shares for its own account
for the purpose of investment and not with a view to, or for sale in connection
with, any distribution thereof within the meaning of the Securities Act of 1933,
as amended (the "Securities Act"). TBA will not sell or otherwise dispose of any
Shares in a manner which would require registration under the Securities Act or
any applicable blue sky law unless such registrations are effected.
2.8 Information. TBA has had an opportunity to ask questions of, and
receive answers from, the Shareholder concerning the Shares, and the operations,
financial condition and prospects of ▇▇▇▇▇▇ Management.
2.9 Sophistication of TBA. TBA has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of an investment in the Shares.
2.10 Accredited Investor. TBA is an "accredited investor" as that term
is defined in regulations promulgated by the Securities and Exchange Commission.
2.11 TBA 10-KSB. TBA has furnished the Shareholder with a true and
complete copy of its Form 10-KSB for the year ended December 31, 1998 (the "Form
10-KSB"). As of its date, such Form 10-KSB was in compliance, in all material
respects, with the requirements of its form. The financial statements of TBA
included in such Form 10-KSB complied, at the time of filing with the SEC, as to
form, in all material respects, with applicable accounting requirements and
published rules and regulations of the SEC with respect thereto, were prepared
in accordance with GAAP, applied on a consistent basis during the periods
involved, and fairly presented, in all material respects the financial position
of TBA as and at the dates thereof and the results of its operations and cash
flows for the period then ended.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF
THE SHAREHOLDER
Except as set forth in the correspondingly numbered section of the
disclosure schedule attached hereto as Schedule 1 and incorporated herein by
this reference (the "Disclosure Schedule"), the Shareholder hereby represents
and warrants to TBA as follows:
3.1 Organization, Qualification and Corporate Power. ▇▇▇▇▇▇ Management
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Tennessee. ▇▇▇▇▇▇ Management is duly qualified to do
business as a foreign corporation and is in good standing in the jurisdictions
in which the ownership of its properties, the employment of its personnel or the
conduct of its business requires that it be so qualified or where a failure to
be so qualified or licensed would have a material adverse effect on its
financial condition, results of operation or business. ▇▇▇▇▇▇ Management has
full corporate power and authority and all authorizations, licenses and permits
necessary to carry on the business in which it is engaged or in which it
proposes presently to engage and to own and use the properties owned and used by
it. ▇▇▇▇▇▇ Management has delivered to TBA true, accurate and complete copies of
its charter and bylaws which reflect all amendments made thereto at any time
prior to the date of this Agreement. The minute books containing the records of
meetings of the shareholders and Board of Directors of ▇▇▇▇▇▇ Management, the
stock certificate books and the stock record books of ▇▇▇▇▇▇ Management are
complete and correct in all material respects. The stock record books of ▇▇▇▇▇▇
Management and the shareholder lists of ▇▇▇▇▇▇ Management which ▇▇▇▇▇▇
Management has previously furnished to TBA are complete and correct in all
respects and accurately reflect the record and beneficial ownership of all the
outstanding shares of ▇▇▇▇▇▇ Management's capital stock and all other
outstanding securities issued by ▇▇▇▇▇▇ Management. All material corporate
actions taken by ▇▇▇▇▇▇ Management since incorporation have been duly authorized
and/or subsequently ratified as necessary. ▇▇▇▇▇▇ Management is not in default
under or in violation of any provision of its charter or bylaws. ▇▇▇▇▇▇
Management is not in default or in violation of any restriction, lien,
encumbrance, indenture, contract, lease, sublease, loan agreement, note or other
obligation or liability by which it is bound or to which any of its assets is
subject.
3.2 Capitalization. ▇▇▇▇▇▇ Management's entire authorized capital stock
consists of 1,000 shares of common stock ("▇▇▇▇▇▇ Management Common Stock"), of
which 100 shares are issued and outstanding and 100 shares will be issued and
outstanding immediately prior to the Closing Date. All of the issued and
outstanding shares of ▇▇▇▇▇▇ Management Common Stock have been and, as of the
Closing Date, will be duly authorized and are and, as of the Closing Date, will
be validly issued, fully paid and nonassessable and have not been and, as of the
Closing Date, will not be issued in violation of any pre-emptive rights. Other
than this Agreement, there are no outstanding or authorized options, rights,
warrants, calls, convertible securities, rights to subscribe, conversion rights
or other agreements or commitments to which ▇▇▇▇▇▇ Management is a party or
which are binding upon ▇▇▇▇▇▇ Management providing for the issuance or transfer
by ▇▇▇▇▇▇ Management of additional shares of its capital stock and ▇▇▇▇▇▇
Management has not reserved any
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shares of its capital stock for issuance, nor are there any outstanding stock
option rights, contracts, arrangements or commitments based upon the book value,
income or other attribute of ▇▇▇▇▇▇ Management. There are no voting trusts or
any other agreements or understandings with respect to the voting of ▇▇▇▇▇▇
Management's capital stock. Upon consummation of the Acquisition, TBA will own
the entire equity interest in ▇▇▇▇▇▇ Management and ▇▇▇▇▇▇ Management will not
have outstanding any stock or securities convertible or exchangeable for any
shares of its capital stock, nor have outstanding any rights, options,
agreements or arrangements to subscribe for or to purchase its capital stock or
any stock or securities convertible into or exchangeable for its capital stock.
The Shareholder is the only holder of capital stock of ▇▇▇▇▇▇ Management. All
capital stock, options, warrants and other securities issued by ▇▇▇▇▇▇
Management were issued in compliance, in all respects, with all applicable
federal and state securities laws.
3.3 Authorization of Transaction. ▇▇▇▇▇▇ Management has the requisite
corporate power and authority to execute and deliver this Agreement, perform its
obligations hereunder and to consummate the transactions contemplated on its
part hereby. The execution, delivery and performance of this Agreement by ▇▇▇▇▇▇
Management and the consummation by ▇▇▇▇▇▇ Management of the transactions
contemplated on its part hereby have been duly authorized by the Board of
Directors of ▇▇▇▇▇▇ Management. No other corporate approval on the part of
▇▇▇▇▇▇ Management (other than shareholder approval) will be necessary to
authorize the execution and delivery of this Agreement and the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
▇▇▇▇▇▇ Management and, upon approval hereof by the sole shareholder of ▇▇▇▇▇▇
Management, will constitute the legal, valid and binding obligation of ▇▇▇▇▇▇
Management, enforceable in accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally or by general principles of equity.
None of the execution and delivery of this Agreement by ▇▇▇▇▇▇ Management, the
performance by ▇▇▇▇▇▇ Management of its obligations hereunder or the
consummation of the transactions contemplated hereby by ▇▇▇▇▇▇ Management will
require any consent, approval or notice under, or violate, breach, be in
conflict with or constitute a default (or an event that, with notice or lapse of
time or both, would constitute a default) under, or permit the termination of,
or result in the creation or imposition of any lien upon any properties, assets
or business of ▇▇▇▇▇▇ Management under any note, bond, indenture, mortgage, deed
of trust, lease, franchise, permit, authorization, license, contract, instrument
or other agreement or commitment or any order, judgment or decree to which
▇▇▇▇▇▇ Management is a party or by which ▇▇▇▇▇▇ Management or any of its assets
or properties is bound or encumbered, except those that have already been given,
obtained or filed, all as set forth in Section 3.3 of the Disclosure Schedule.
No notice to, filing or registration with or authorization, consent or approval
of any public body or governmental or regulatory authority is necessary for the
consummation by ▇▇▇▇▇▇ Management of the transactions contemplated by this
Agreement.
3.4 Subsidiaries. ▇▇▇▇▇▇ Management does not own and is not obligated to
purchase any equity interest in or any other interest convertible into or
exchangeable for an equity interest in any entity.
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3.5 Financial Statements. ▇▇▇▇▇▇ Management has delivered to TBA (a)
unaudited balance sheets as of December 31, 1998 and 1997, (b) unaudited
statements of operations for each of the years in the two-year period ended
December 31, 1998, (c) unaudited balance sheets as of August 31, 1999, and (d)
unaudited statements of operations for the eight (8) months ended August 31,
1999, for ▇▇▇▇▇▇ Management (collectively, the "Financial Statements"). The
Financial Statements have been prepared on the accrual basis of accounting,
which basis of accounting has been applied consistently for all periods and
present fairly in all material respects the financial condition of ▇▇▇▇▇▇
Management as of such dates and the results of its operations and cash flows for
such periods. Since December 31, 1997, there have been no changes in ▇▇▇▇▇▇
Management's method of accounting for tax purposes.
3.6 Events Subsequent to Financial Statements. Except as disclosed in
the Financial Statements, permitted in this Agreement or specified in Section
3.6 of the Disclosure Schedule, since December 31, 1998, there has not been:
(a) any materially adverse change in the financial condition,
results of operations or business of ▇▇▇▇▇▇ Management;
(b) other than (i) the distribution by ▇▇▇▇▇▇ Management to the
Shareholder of an investment asset valued at approximately $100,000,
(ii) the payment by ▇▇▇▇▇▇ Management to the Shareholder of a cash bonus
not in excess of $40,000, and (iii) the distribution by ▇▇▇▇▇▇
Management to the Shareholder its interests in the Investment
Partnerships (herein so called) established between the Shareholder and
artists under the Shareholder's management, any sale, lease, transfer,
license or assignment of any material assets, tangible or intangible, of
▇▇▇▇▇▇ Management, other than in the ordinary course of business;
(c) any damage, destruction or property loss, whether or not
covered by insurance, affecting materially adversely the properties or
business of ▇▇▇▇▇▇ Management;
(d) any declaration or setting aside or payment of any dividend
or distribution with respect to the shares of capital stock of ▇▇▇▇▇▇
Management or any redemption, purchase or other acquisition of any such
shares;
(e) any mortgage or pledge of, or subjection to any material
lien, charge, security interest or encumbrance of any kind on, any of
the assets, tangible or intangible, of ▇▇▇▇▇▇ Management (other than
liens arising by operation of law which secure obligations which are not
yet due and payable);
(f) any incurrence of indebtedness or liability or assumption of
obligations by ▇▇▇▇▇▇ Management other than (i) those incurred in the
ordinary course of business, (ii) those which do not exceed $10,000 in
the aggregate, and (iii) those incurred in the course of negotiating,
documenting and consummating the transactions contemplated by this
Agreement;
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(g) any cancellation or compromise by ▇▇▇▇▇▇ Management of any
material debt or claim, except for adjustments made in the ordinary
course of business which, in the aggregate, are not material;
(h) any waiver or release by ▇▇▇▇▇▇ Management of any right of
any material value;
(i) except licenses of software made in the ordinary course of
business, consistently with past practice, any sale, assignment,
transfer or grant by ▇▇▇▇▇▇ Management of any rights under any
concessions, leases, licenses, agreements, patents, inventions,
trademarks, trade names or copyrights or with respect to any know-how or
other intangible assets;
(j) any material arrangement, agreement or undertaking entered
into by ▇▇▇▇▇▇ Management not terminable on 30 days or less notice
without cost or liability (including, without limitation, any payment of
or promise to pay any bonus or special compensation) with employees or
any increase in compensation or benefits to officers or directors of
▇▇▇▇▇▇ Management, other than in the ordinary course of business;
(k) any change made or authorized in the charter or bylaws of
▇▇▇▇▇▇ Management;
(l) any issuance, sale or other disposition by ▇▇▇▇▇▇ Management
of any shares of its capital stock or other equity securities, or any
grant of any options, warrants or other rights to purchase or obtain
(including upon conversion or exercise) shares of its capital stock or
other equity securities;
(m) any loan to or other transaction with any officer, director
or shareholder of ▇▇▇▇▇▇ Management giving rise to any claim or right of
▇▇▇▇▇▇ Management against any such person or of such person against
▇▇▇▇▇▇ Management;
(n) any payment to or other transaction with any officer,
director or shareholder of ▇▇▇▇▇▇ Management involving an amount in
excess of $5,000, individually or in the aggregate, other than the
payment of monthly compensation consistent with customary practice;
(o) any acceleration, termination, modification or cancellation
or threat thereof by any party of any contract, lease or other agreement
or instrument to which ▇▇▇▇▇▇ Management is a party or by which it is
bound so as to affect, materially and adversely, the properties or
business of ▇▇▇▇▇▇ Management; or
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13
(p) any other material transaction or commitment entered into
other than in the ordinary course of business by ▇▇▇▇▇▇ Management.
3.7 Undisclosed Liabilities. ▇▇▇▇▇▇ Management has no material liability
or obligation whatsoever, known or unknown, either accrued, absolute, contingent
or otherwise, except to the extent shown on the Financial Statements, incurred
in the normal and ordinary course of business of ▇▇▇▇▇▇ Management since January
1, 1999 (provided that, liabilities or obligations incurred in connection with
the termination of employees shall not be considered liabilities incurred in the
ordinary course of business), or incurred in the course of negotiating,
documenting and consummating the transactions contemplated by this Agreement.
Except as specified in Section 3.7 of the Disclosure Schedule, ▇▇▇▇▇▇ Management
is not indebted, directly or indirectly, to any person who is an officer,
director or shareholder of ▇▇▇▇▇▇ Management or any affiliate of any such person
in any amount whatsoever other than for salaries for services rendered or
reimbursable business expenses, and no such officer, director, shareholder or
affiliate is indebted to ▇▇▇▇▇▇ Management, except for advances made to
employees of ▇▇▇▇▇▇ Management in the ordinary course of business to meet
reimbursable business expenses anticipated to be incurred by such obligor.
▇▇▇▇▇▇ Management has no liability, known or unknown, either accrued, absolute,
contingent or otherwise, arising out of the management of the assets comprising
the Investment Partnerships.
3.8 Tax Returns and Audits.
(a) The taxable year of ▇▇▇▇▇▇ Management ends December 31.
▇▇▇▇▇▇ Management has duly and timely filed or caused to be filed all
tax returns (the "Tax Returns") required to be filed on behalf of itself
and has paid in full or fully reserved against in the Financial
Statements all taxes, interest, penalties, assessments and deficiencies
due or claimed to be due on behalf of itself to foreign, federal, state
or local taxing authorities (including taxes on properties, income,
franchises, licenses, sales, use and payrolls). Such Tax Returns are
correct in all material respects, and ▇▇▇▇▇▇ Management is not required
to pay any other taxes for such periods except as shown in such Tax
Returns. The income tax returns filed by ▇▇▇▇▇▇ Management have not
been, and are not being, to the knowledge of ▇▇▇▇▇▇ Management, examined
by the Internal Revenue Service or other applicable taxing authorities
for any period. All taxes or estimates thereof that are due, or are
claimed or asserted by any taxing authority to be due, have been timely
and appropriately paid so as to avoid penalties for underpayment. Except
for amounts not yet due and payable, all tax liabilities to which the
properties of ▇▇▇▇▇▇ Management may be subject have been paid and
discharged. The provisions for income and other taxes payable reflected
in the Financial Statements make adequate provision for all then accrued
and unpaid taxes of ▇▇▇▇▇▇ Management. There are no tax liens (other
than liens for taxes which are not yet due and payable) on any of the
property of ▇▇▇▇▇▇ Management, nor are there any pending or threatened
examinations or tax claims asserted. ▇▇▇▇▇▇ Management has not granted
any extensions of limitation periods applicable to tax claims or filed a
consent under Section 341(f) of the Code relating to collapsible
corporations. Except in jurisdictions in which ▇▇▇▇▇▇ Management
voluntarily files tax returns, no claim has ever been made by a taxing
authority that ▇▇▇▇▇▇ Management is or may be subject to taxation by
that jurisdiction. True
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14
and correct copies of all federal, foreign, state and local income and
other tax returns, notices from foreign, federal, state and local taxing
authorities, tax examination reports and statements of deficiencies
assessed against or agreed to by ▇▇▇▇▇▇ Management since January 1,
1995, have been delivered to TBA, and the same are listed in Section 3.8
of the Disclosure Schedule. ▇▇▇▇▇▇ Management is not a party to, or
bound by, any tax indemnity, tax sharing or tax allocation agreement.
▇▇▇▇▇▇ Management is not a party to any agreement that has resulted or
would result in the payment of any "excess parachute payments" within
the meaning of Section 280G of the Code. ▇▇▇▇▇▇ Management has never
been a member of an "affiliated group," as defined in Section 1504(a) of
the Code. All positions taken on federal Tax Returns that could give
rise to a penalty for substantial understatement pursuant to Section
6662(d) of the Code have been disclosed on such Tax Returns. ▇▇▇▇▇▇
Management is not is a United States real property holding corporation
as defined in Section 897 of the Code. No shareholder of ▇▇▇▇▇▇
Management is a foreign person within the meaning of Section 1445(b)(2)
of the Code. ▇▇▇▇▇▇ Management has not made any tax elections under any
section of the Code (other than its election to be taxed as an "S"
corporation under Section 1362), including, without limitation under any
of Sections 108, 168, 338, 441, 463, 472, 1017, 1033 or 4977 of the Code
(or any predecessor thereof). None of the assets and properties of
▇▇▇▇▇▇ Management is an asset or property that TBA or any of its
affiliates is or will be required to treat as being (i) owned by any
other Person pursuant to the provisions of Section 168(f)(8) of the
Internal Revenue Code of 1954 as amended, and in effect immediately
before the enactment of the Tax Reform Act of 1986, or (ii) tax-exempt
use property within the meaning of Section 168(h)(1) of the Code. No
closing agreement pursuant to Section 7121 of the Code (or any
predecessor provision) or any similar provision of any state, local, or
foreign law has been entered into by or with respect to ▇▇▇▇▇▇
Management or any assets thereof. ▇▇▇▇▇▇ Management has not agreed to or
is not required to make any adjustment pursuant to Section 481(a) of the
Code (or any predecessor provision) by reason of any change in any
accounting method of ▇▇▇▇▇▇ Management, ▇▇▇▇▇▇ Management has no
applications pending with any taxing authority requesting permission for
any changes in any accounting method of ▇▇▇▇▇▇ Management, and the
Internal Revenue Service has not proposed any such adjustment or change
in accounting method therefor. ▇▇▇▇▇▇ Management has not been or is not
in violation (or with notice or lapse of time or both, would be in
violation) of any applicable law relating to the payment or withholding
of taxes. ▇▇▇▇▇▇ Management has duly and timely withheld from salaries,
wages and other compensation and paid over to the appropriate taxing
authorities all amounts required to be so withheld and paid over for all
periods under all applicable laws.
(b) ▇▇▇▇▇▇ Management has been a validly electing S corporation
within the meaning of Code Sections 1361 and 1362 since June 12, 1996,
and ▇▇▇▇▇▇ Management will be an S corporation up to and including the
day before the Closing Date. Except as set forth in Section 3.8 of the
Disclosure Schedule, ▇▇▇▇▇▇ Management would not be liable for any tax
under Code Section 1374 if its assets were sold for their fair market
value as of January 1, 1999.
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15
3.9 Books and Records. The general ledgers and books of account of
▇▇▇▇▇▇ Management, all federal, state and local income, franchise, property and
other tax returns filed by ▇▇▇▇▇▇ Management, with respect to its assets, and
all other books and records of ▇▇▇▇▇▇ Management are in all material respects
complete and correct and have been maintained in accordance with good business
practice and in accordance with all applicable procedures required by laws and
regulations in all material respects.
3.10 Real Property. Set forth in Section 3.10 of the Disclosure Schedule
is a complete and accurate list and a brief description of all real property
owned or leased by ▇▇▇▇▇▇ Management. With respect to each lease so set forth:
(a) the lease has been validly executed and delivered by ▇▇▇▇▇▇ Management and,
to the knowledge of ▇▇▇▇▇▇ Management, by the other party or parties thereto and
is in full force and effect; (b) neither ▇▇▇▇▇▇ Management nor, to the knowledge
of ▇▇▇▇▇▇ Management, any other party to the lease is in material breach or
default, and no event has occurred on the part of ▇▇▇▇▇▇ Management or, to the
knowledge of ▇▇▇▇▇▇ Management, on the part of any other party which, with
notice or lapse of time, would constitute such a breach or default or permit
termination, modification or acceleration under the lease; (c) ▇▇▇▇▇▇ Management
has not repudiated and, to the knowledge of ▇▇▇▇▇▇ Management, no other party to
the lease has repudiated any provision thereof; and (d) there are no disputes,
oral agreements or delayed payment programs in effect as to the lease.
3.11 Tangible Property. Except as specified in Section 3.11 of the
Disclosure Schedule, ▇▇▇▇▇▇ Management has good and marketable title to, or a
valid leasehold interest in, each item of tangible property, whether real,
personal or mixed, reflected on its books and records as owned or used by it,
subject to no material encumbrances, loans, security interests, mortgages or
pledges.
3.12 Intellectual Property.
(a) Section 3.12(a) of the Disclosure Schedule sets forth a list
of intellectual property owned by ▇▇▇▇▇▇ Management including all
patents, patent applications, trademarks, service marks, trade dress,
trade names, trade secrets, corporate names, customer lists, copyrights,
mask works, technology or intellectual property that are material to the
business of ▇▇▇▇▇▇ Management and registrations or applications to
register any of the foregoing and a list of all licenses or other
contracts related thereto (collectively, the "Intellectual Property").
With respect to each such item of Intellectual Property:
(i) ▇▇▇▇▇▇ Management is the sole and exclusive owner
and has the sole and exclusive right to use the item in the
conduct of its business;
(ii) no proceedings have been instituted, are pending or
are threatened which challenge the validity, enforceability, use
or ownership thereof;
(iii) the item (A) does not infringe upon or otherwise
violate the rights of others, (B) to the knowledge of ▇▇▇▇▇▇
Management is not being infringed upon by
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16
others and (C) is not subject to any outstanding order, decree,
judgment, stipulation or charge;
(iv) no license, sublicense or agreement pertaining to
the item has been granted by ▇▇▇▇▇▇ Management;
(v) ▇▇▇▇▇▇ Management has not received any charge of
interference or infringement with respect to the item;
(vi) except in the ordinary course of business, ▇▇▇▇▇▇
Management has not agreed to indemnify any person or entity for
or against any infringement with respect to the item;
(vii) the transactions contemplated by this Agreement
will have no material adverse effect on the right, title and
interest of ▇▇▇▇▇▇ Management in the item;
(viii) ▇▇▇▇▇▇ Management has taken all steps which are
commercially reasonable to protect the rights set forth in
Section 3.12(a) of the Disclosure Schedule and will continue to
use commercially reasonable efforts to maintain those rights
prior to the Closing Date so as to not materially adversely
affect the validity or enforcement of such rights; and
(ix) ▇▇▇▇▇▇ Management has supplied TBA with true and
complete copies of all written documentation evidencing its
ownership of the item and of all licenses and other contracts
related thereto.
(b) Section 3.12(b) of the Disclosure Schedule sets forth a list
describing all patents, trademarks, trade names, service marks,
copyrights, trade secrets and mask works of others which ▇▇▇▇▇▇
Management practices or uses that are material to ▇▇▇▇▇▇ Management.
With respect to each such item of intellectual property:
(i) any license agreement covering the item is a valid
and binding agreement and, to the knowledge of the Shareholder,
is in full force and effect;
(ii) no event has occurred which constitutes a breach of
such license agreement, ▇▇▇▇▇▇ Management has not repudiated
and, to the knowledge of Atkins the Shareholder, no other party
thereto has repudiated any provision thereof and there are no
disputes, oral arrangements or delayed payment programs in
effect as to any such license agreement;
(iii) ▇▇▇▇▇▇ Management has supplied TBA with a true and
complete copy of the license agreement;
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17
(iv) the transactions contemplated by this Agreement
will have no material adverse effect on the ability of ▇▇▇▇▇▇
Management to continue using or practicing each such item; and
(v) ▇▇▇▇▇▇ Management is not aware of any claim that the
exercise of the rights granted to ▇▇▇▇▇▇ Management with respect
to such item infringes upon the intellectual property rights of
any third party.
(c) To the knowledge of the Shareholder, ▇▇▇▇▇▇ Management has
not infringed, misappropriated or otherwise violated any intellectual
property rights of any third party. The Shareholder is not aware of any
infringement, misappropriation or violation with respect to intellectual
property which will occur as a result of the continued operation of the
business of ▇▇▇▇▇▇ Management as now conducted or as presently proposed
to be conducted.
(d) ▇▇▇▇▇▇ Management has taken commercially reasonable security
measures to protect the security, confidentiality and value of all the
material intellectual property owned by it.
3.13 Contracts. Section 3.13 of the Disclosure Schedule lists the
following contracts and written arrangements, true and complete copies of which
have been delivered to TBA, to which ▇▇▇▇▇▇ Management is a party:
(a) all artist management contracts to which ▇▇▇▇▇▇ Management
is a party;
(b) any contract for the lease of personal property from or to
third parties providing for lease payments in excess of $5,000.00 per
annum;
(c) any contract for the purchase or sale of supplies or other
personal property or for the furnishing or receipt of services which
contract calls for performance over a period of more than one year or
which involves more than the sum of $5,000.00;
(d) any joint venture or partnership agreement;
(e) any agreement or instrument under which ▇▇▇▇▇▇ Management is
or may become indebted for borrowed money;
(f) any noncompetition agreement;
(g) any other contract in which the consequences of a default or
termination would have a materially adverse effect on the financial
condition of ▇▇▇▇▇▇ Management or on the prospects or the conduct of the
business of ▇▇▇▇▇▇ Management;
(h) any standard form of license agreement; and
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18
(i) any other contract or arrangement not entered into in the
ordinary course of business.
All contracts and arrangements listed in Section 3.13 of the Disclosure Schedule
are valid and binding agreements of ▇▇▇▇▇▇ Management. Neither ▇▇▇▇▇▇ Management
nor, to the knowledge of the Shareholder, any other party is in breach or
default, and no event has occurred on the part of ▇▇▇▇▇▇ Management or, to the
knowledge of the Shareholder, on the part of any other party to any such
contract or arrangement which with notice or lapse of time would constitute a
breach or default or permit termination under any such contract or arrangement.
To the knowledge of the Shareholder, none of such contracts or arrangements will
be terminated or modified by the consummation of the Acquisition. ▇▇▇▇▇▇
Management has previously made available to TBA all of the material service
agreements of ▇▇▇▇▇▇ Management with its customers. Except as specified in
Section 3.13 of the Disclosure Schedule, ▇▇▇▇▇▇ Management is not a party to any
verbal contract or arrangement which, if reduced to written form, would be
required to be listed in Section 3.13 of the Disclosure Schedule under the terms
of subsections (a)-(i) of this Section 3.13.
3.14 Suppliers and Customers. Section 3.14 of the Disclosure Schedule is
a true and correct list of all suppliers of ▇▇▇▇▇▇ Management to whom ▇▇▇▇▇▇
Management made payments, during the fiscal year ended December 31, 1998, in
excess of one percent of ▇▇▇▇▇▇ Management's gross revenues as reflected in the
Financial Statements for such year and all customers or clients of ▇▇▇▇▇▇
Management that paid ▇▇▇▇▇▇ Management, during the fiscal year ended December
31, 1998, more than two percent of the gross revenues of ▇▇▇▇▇▇ Management as
reflected in the Financial Statements for such year. Since December 31, 1998, no
material customer or client of ▇▇▇▇▇▇ Management has notified ▇▇▇▇▇▇ Management
that it will substantially decrease or cease doing business with ▇▇▇▇▇▇
Management.
3.15 Notes; Accounts Receivable. As of the Closing Date, all notes
payable to and accounts receivable of ▇▇▇▇▇▇ Management will be properly
reflected on their respective books and records and will be valid receivables
subject to no setoffs or counterclaims (other than in the ordinary course of
business).
3.16 Powers of Attorney. There are no outstanding material powers of
attorney or similar instruments executed by ▇▇▇▇▇▇ Management in favor of any
third party.
3.17 Condition of Property. Each building, fixture, machine and piece of
equipment (having a net book value of $5,000.00 or more) owned or used by ▇▇▇▇▇▇
Management is in good operating condition and repair, subject to normal wear and
tear, and, to the knowledge of the Shareholder, is in compliance with all
zoning, building and fire codes in all material respects. ▇▇▇▇▇▇ Management owns
or leases under valid lease all buildings, machinery, equipment and other
tangible assets used in the conduct of its business as presently conducted.
3.18 Insurance. ▇▇▇▇▇▇ Management is insured under the policies listed
in Section 3.18 of the Disclosure Schedule (the "Insurance Policies"). The
Insurance Policies are in full force and
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19
effect. All premiums due on the Insurance Policies or renewals thereof have been
paid and there is no default by ▇▇▇▇▇▇ Management under any of the Insurance
Policies.
3.19 Litigation. Section 3.19 of the Disclosure Schedule sets forth any
instances in which (a) ▇▇▇▇▇▇ Management is subject to any judgment or order
(other than orders of general applicability) of any court or quasi-judicial or
administrative agency of any jurisdiction, domestic or foreign, or where there
is any charge, complaint, lawsuit or governmental investigation pending or, to
the knowledge of the Shareholder, threatened against ▇▇▇▇▇▇ Management; or (b)
▇▇▇▇▇▇ Management is a plaintiff in any action, domestic or foreign, judicial or
administrative, or any such action exists in which a counterclaim against ▇▇▇▇▇▇
Management is pending or, to the knowledge of the Shareholder, might be brought.
None of the actions, suits, proceedings or investigations set forth in Section
3.19 of the Disclosure Schedule could result in any adverse change in the
condition, financial or otherwise, of ▇▇▇▇▇▇ Management, the same being fully
reserved against in the Financial Statements. There are no unsatisfied
judgments, orders (other than orders of general applicability), decrees or
stipulations affecting ▇▇▇▇▇▇ Management or to which ▇▇▇▇▇▇ Management is a
party and there is no reason to believe that any such action, suit, proceeding
or investigation will be brought or threatened against ▇▇▇▇▇▇ Management.
3.20 Employees. ▇▇▇▇▇▇ Management has listed in Section 3.20 of the
Disclosure Schedule and has furnished to TBA true and complete copies of: (a)
any written employment agreements with officers and directors of ▇▇▇▇▇▇
Management currently in effect; and (b) any written employment agreements with
its employees currently in effect which by their terms may not be terminated by
▇▇▇▇▇▇ Management at will or which ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ payments. ▇▇▇▇▇▇ Management
has not entered into any similar oral employment agreements that are currently
in effect. To the Shareholder's knowledge, no key employee or group of employees
has any plans to terminate employment with ▇▇▇▇▇▇ Management. ▇▇▇▇▇▇ Management
is not a party to or bound by any collective bargaining agreement. Except as
specified in Section 3.20 of the Disclosure Schedule, there are no loans or
other obligations payable or owing by ▇▇▇▇▇▇ Management to any shareholder,
officer, director or employee of ▇▇▇▇▇▇ Management (except salaries and wages
incurred and accrued in the ordinary course of business), nor are there any
loans or debts payable or owing by any of such persons to ▇▇▇▇▇▇ Management or
any guarantees by ▇▇▇▇▇▇ Management of any loan or obligation of any nature to
which any such person is a party. ▇▇▇▇▇▇ Management has complied in all material
respects with all laws and regulations which relate to the employment of labor,
employee civil rights or equal employment opportunities.
3.21 Employee Benefit Plans. ▇▇▇▇▇▇ Management has listed in Section
3.21 of the Disclosure Schedule and has furnished to TBA true and complete
copies of (a) any nonqualified deferred or incentive compensation or retirement
plans or arrangements, (b) any qualified retirement plans or arrangements, (c)
any other employee compensation, severance or termination pay or welfare benefit
plans, programs or arrangements and (d) any related trusts, insurance contracts
or other funding arrangements maintained, established or contributed to by
▇▇▇▇▇▇ Management or to which ▇▇▇▇▇▇ Management is a party or otherwise is bound
("▇▇▇▇▇▇ Management Employee Benefit Plans"). Except as required by law, ▇▇▇▇▇▇
Management does not maintain or contribute or has ever maintained or contributed
to any funded or unfunded medical, health or life insurance plan or
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20
arrangement for retirees or terminated employees. ▇▇▇▇▇▇ Management does not
contribute or have any obligation to make and has never contributed or had any
obligation to make any payment or contribution to a "multiemployer plan," as
that term is defined in Section 3(37) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), and ▇▇▇▇▇▇ Management has no actual or
potential liability under Section 4201 of ERISA for any complete or partial
withdrawal from a multiemployer plan. Except as listed on Section 3.21 of the
Disclosure Schedule, ▇▇▇▇▇▇ Management neither maintains, contributes to or has
any liability with respect to any employee pension benefit plan (as defined in
Section 3(2) of ERISA) which is intended to meet the requirements of a qualified
plan under Section 401(a) of the Code. ▇▇▇▇▇▇ Management neither maintains,
contributes to or has any liability with respect to a plan which is subject to
Title IV of ERISA or Section 412 of the Code. With respect to the employee
benefit plans listed in Section 3.21 of the Disclosure Schedule, ▇▇▇▇▇▇
Management has furnished to TBA true and complete copies of (i) any summary plan
description or other employee communication materials, (ii) the latest financial
statements and annual reports, and (iii) all documents filed with the Internal
Revenue Service or the Department of Labor since December 31, 1995. All employee
benefit plans and related trusts listed in Section 3.21 of the Disclosure
Schedule and maintained or contributed to by ▇▇▇▇▇▇ Management or with respect
to which ▇▇▇▇▇▇ Management now has or has ever had any liability or potential
liability comply in form and in operation with all requirements of ERISA and the
Code. All required reports with respect to such plans required by applicable law
have been filed and all contributions or payments presently anticipated
hereunder have been made or properly accrued. No applications for rulings,
determination letters, advisory opinions or prohibited transaction exemptions
are currently pending before the Internal Revenue Service, the Department of
Labor or the Pension Benefit Guaranty Corporation with respect to any such
employee benefit plans or arrangements or any related trusts. None of such
employee benefit plans or arrangements, any related trusts, the trustees of any
related trusts or the directors, officers and employees of ▇▇▇▇▇▇ Management is
the subject of any lawsuit, arbitration or to the knowledge of the Shareholder
other proceeding concerning any benefit claim or other benefit-related matter
(other than routine claims in the ordinary course of business), and there have
been no prohibited transactions as described in Section 406 of ERISA or as
defined in Section 4975 of the Code with respect to any such plan. Neither
▇▇▇▇▇▇ Management, its directors, officers and employees nor any other
fiduciary, as such term is defined in Section 3 of ERISA, has committed any
breach of fiduciary responsibility imposed by ERISA or any other applicable law
which would subject ▇▇▇▇▇▇ Management or its directors, officers and employees
to liability under ERISA or any applicable law.
3.22 Guarantees. ▇▇▇▇▇▇ Management is not a guarantor or otherwise
liable for any material indebtedness of any other person, firm or corporation
other than endorsements for collection in the ordinary course of business.
3.23 Legal Compliance. ▇▇▇▇▇▇ Management and, to the knowledge of the
Shareholder, each of its respective directors, officers and employees (the
individuals only in their capacities as representatives of ▇▇▇▇▇▇ Management)
has complied in all material respects with all applicable laws and regulations
of foreign, federal, state and local governments and all agencies thereof, and
no claim has been filed (with notice to ▇▇▇▇▇▇ Management) against ▇▇▇▇▇▇
Management alleging a violation of any such laws or regulations. ▇▇▇▇▇▇
Management holds all of the material permits,
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21
licenses, certificates or other authorizations of foreign, federal, state or
local governmental agencies required for the conduct of its business as
presently conducted or proposed to be conducted. Neither ▇▇▇▇▇▇ Management, nor,
to the knowledge of the Shareholder, any director, officer, agent, partner or
employee thereof or any other person acting for or on behalf of ▇▇▇▇▇▇
Management has directly or indirectly (a) made or agreed to make any
contribution, gift, bribe, rebate, payoff, influence payment, kickback or other
payment (whether in cash or otherwise) to any person, private or public,
regardless of form, whether in money, property, or services, in violation of any
applicable law, rule or regulation (i) to obtain favorable treatment in securing
business, (ii) to pay for favorable treatment for business secured, (iii) to
obtain special concessions or for special concessions already obtained, for or
in respect of ▇▇▇▇▇▇ Management, or (iv) to pay for any lobbying or similar
services or (b) except as specified in Section 3.23 of the Disclosure Schedule,
established or maintained any fund or asset that has not been recorded in the
books and records of ▇▇▇▇▇▇ Management.
3.24 Certain Business Relationships. Except as specified in Section 3.24
of the Disclosure Schedule, to the knowledge of the Shareholder, none of the
present or former shareholders, directors, officers or employees of ▇▇▇▇▇▇
Management owns, directly or indirectly, any interest in any business,
corporation or other entity (other than investments in publicly held companies)
which, on the date hereof or within the past 12 months, has been involved in any
manner in any business arrangement or relationship with ▇▇▇▇▇▇ Management, and
none of the foregoing persons owns any property or rights, tangible or
intangible, which are used in the business of ▇▇▇▇▇▇ Management.
3.25 Broker's Fees. Neither ▇▇▇▇▇▇ Management nor anyone on its behalf
has any liability to any broker, finder, investment banker or similar agent, or
has agreed to pay any brokerage fees, finder's fees or commissions, or to
reimburse any expenses of any broker, finder, investment banker or similar agent
in connection with the Acquisition or any similar transaction.
3.26 Environment, Health and Safety. ▇▇▇▇▇▇ Management is in compliance
with all environmental, health and safety laws, and no action, suit, proceeding,
hearing, investigation, charge, complaint, claim, demand or notice has been held
or commenced against ▇▇▇▇▇▇ Management alleging any failure so to comply. ▇▇▇▇▇▇
Management has obtained and been in compliance with all of the material terms
and conditions of all permits, licenses and other authorizations which are
required under, and have complied with all other material limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules, laws, and timetables which are contained in, all applicable
environmental, health and safety laws.
3.27 Year 2000. The computer programs and technical systems of ▇▇▇▇▇▇
Management used by ▇▇▇▇▇▇ Management are year 2000 compliant, will function and
operate prior to, during and after the calendar year 2000 in accordance with
their specifications and will provide the required output without experiencing
abnormal ending dates and/or invalid or incorrect years and shall incorporate
century recognition date data, calculations that use same century and
multi-century formulas and date values that reflect the current century in all
transactions. In addition, all such computer programs and technical systems will
process, manage and manipulate data involving dates, including single century
and multi-century formulas, and will not cause an abnormally ending scenario
within the application or generate incorrect values or invalid results involving
such dates.
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3.28 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Management Agreement. Except as specified in Section
3.28 of the Disclosure Schedule, no portion of the compensation, fees,
commissions, income or other consideration received by "Manager" pursuant to the
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Management Agreement (as such term and such agreement are further
defined in Section 6.9 hereof), is payable to any party other than "Manager"
including, without limitation, ▇▇▇▇▇▇ ▇▇▇▇ or any entity controlled by or
affiliated with ▇▇▇▇▇▇ ▇▇▇▇.
3.29 Disclosure. The representations and warranties and statements of
fact made by the Shareholder in this Agreement, in the Disclosure Schedule and
in certificates and other written statements or agreements delivered or to be
delivered pursuant to this Agreement are accurate, correct and complete in all
material respects on the date of this Agreement and will, except as contemplated
hereby, be accurate, correct and complete in all material respects on the
Closing Date and do not and will not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements and information contained herein or therein not misleading.
ARTICLE 4
ADDITIONAL REPRESENTATIONS AND
WARRANTIES OF THE SHAREHOLDER
Except as set forth in the correspondingly numbered section of the
Disclosure Schedule, the Shareholder represents and warrants to TBA as follows:
4.1 Representations Regarding Shares of ▇▇▇▇▇▇ Management.
(a) The Shareholder is the record and beneficial owner of and has good
title to the Shares, free and clear of any and all Liens. The Shares are all of
the shares of capital stock of ▇▇▇▇▇▇ Management owned by the Shareholder, and
the Shares collectively represent all the issued and outstanding capital stock
of ▇▇▇▇▇▇ Management.
(b) The Shareholder has the full right, power and authority to enter
into this Agreement.
(c) The Shareholder is not a party to, subject to or bound by any
agreement or any judgment, order, writ, prohibition, injunction or decree of any
court or other governmental body which would prevent the execution or delivery
of this Agreement by the Shareholder.
(d) No broker or finder has acted for the Shareholder in connection with
this agreement or the transactions contemplated hereby, and no broker or finder
is entitled to any brokerage or finder's fee or other commissions in respect of
such transactions based upon agreements, arrangements or understandings made by
or on behalf of the Shareholder.
4.2 Authorization. This Agreement and all such other agreements and
obligations entered into and undertaken in connection with the transactions
contemplated hereby to which the
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Shareholder is a party constitute the valid and legally binding obligations of
the Shareholder, enforceable against the Shareholder in accordance with their
respective terms, except as enforceability may be limited or affected by
applicable bankruptcy, insolvency, moratorium, reorganization or other laws of
general application relating to or affecting creditors' rights generally.
Except as specified on Section 4.2 of the Disclosure Schedule, the
execution, delivery and performance by the Shareholder of this Agreement and the
agreements provided for herein, and the consummation by the Shareholder of the
transactions contemplated hereby and thereby, will not, with or without the
giving of notice or the passage of time or both, (a) violate the provisions of
any law, rule or regulation applicable to the Shareholder; (b) violate any
judgment, decree, order or award of any court, governmental body or arbitrator;
or (c) conflict with or result in the breach or termination of any term or
provision of, or constitute a default under, or cause any acceleration under, or
cause the creation of any lien, charge or encumbrance upon the properties or
assets of the Shareholder pursuant to, any indenture, mortgage, deed of trust or
other instrument or agreement to which the Shareholder is a party or by which
the Shareholder or any of his properties is or, to the knowledge of the
Shareholder, may be bound, except for violations or conflicts which individually
or in the aggregate would not have a material adverse effect on ▇▇▇▇▇▇
Management's financial condition or results of operation.
ARTICLE 5
[INTENTIONALLY OMITTED]
ARTICLE ARTICLE 6
ADDITIONAL AGREEMENTS
6.1 Expenses. Except as otherwise provided herein, all costs and
expenses incurred in connection with this Agreement and the other agreements
contemplated hereby and the transactions contemplated hereby and thereby shall
be paid by the party incurring such expenses.
6.2 Taking of Necessary Action. Following the Closing Date, subject to
the terms and conditions of this Agreement, each of the parties hereto agrees,
subject to applicable laws, to use all reasonable efforts promptly to take or
cause to be taken all action and promptly to do or cause to be done all things
necessary, proper or advisable under applicable laws and regulations to evidence
or make effective the transactions contemplated by this Agreement. Without
limiting the foregoing, ▇▇▇▇▇▇ Management and TBA shall use commercially
reasonable efforts to maintain and make all filings with and obtain all
consents, approvals, and/or assurances from third parties and appropriate
governmental agencies and authorities necessary or, in the opinion of ▇▇▇▇▇▇
Management or TBA, advisable for the consummation of the transactions
contemplated by this Agreement. Each party shall cooperate with the other in
good faith to help the other satisfy its obligations in this Section 6.2.
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6.3 Press Releases. ▇▇▇▇▇▇ Management and TBA shall consult with each
other as to the form and substance of any press release or other public
disclosure of matters related to this Agreement or any of the transactions
contemplated hereby; provided, however, that nothing in this Section 6.3 shall
be deemed to prohibit any party hereto from making any disclosure that is
required to fulfill such party's disclosure obligations imposed by law,
including, without limitation, federal securities laws; provided further,
however, that neither this Agreement nor any other document or agreement
delivered in connection with this Agreement may be disclosed or made public
unless legal counsel to the disclosing party shall have first reasonably
determined that such disclosure is required by applicable law.
6.4 Employee Matters. TBA and ▇▇▇▇▇▇ Management agree that all employees
of ▇▇▇▇▇▇ Management immediately prior to the Closing shall be employed by
▇▇▇▇▇▇ Management immediately after the Closing at such level of pay which is
mutually agreed upon between each employee and ▇▇▇▇▇▇ Management, it being
understood that ▇▇▇▇▇▇ Management shall not have any obligations to continue
employing such employees for any length of time or at any level of pay for any
length of time thereafter. Each of the five (5) full-time employees of ▇▇▇▇▇▇
Management shall be issued a "cardkey" granting such employee access to the
access-controlled surface parking lot immediately adjacent to the TBA office at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, and each such employee shall be
allowed to park their personal automobile in such lot while performing their
employment duties to ▇▇▇▇▇▇ Management. ▇▇▇▇▇▇ Management shall terminate the
▇▇▇▇ ▇▇▇▇▇▇ Management, Inc. 401(k) Profit Sharing Plan (the "Atkins Plan")
effective at 5:00 p.m. on the Closing Date. All employees of ▇▇▇▇▇▇ Management
covered by the Atkins Plan shall, for purposes of eligibility under the TBA
Entertainment Corporation 401(k) Profit Sharing Plan, be credited with their
period of service with ▇▇▇▇▇▇ Management. Upon Closing and thereafter, TBA shall
assume all responsibility with respect to the terminated Atkins Plan. Until
complete liquidation of the trust funding the ▇▇▇▇▇▇ Plan, TBA shall maintain
the ▇▇▇▇▇▇ Plan in compliance with the Code, ERISA, other applicable law, and
its terms. TBA, at its expense, shall apply to the Internal Revenue Service for
a determination that the termination of the ▇▇▇▇▇▇ Plan does not adversely
affect its qualification under Sections 401(a) and 501(a) of the Code and upon
receipt of such favorable determination shall distribute the assets of the trust
to the participants of the ▇▇▇▇▇▇ Plan in accordance with its terms. TBA shall
take all necessary steps to amend the ▇▇▇▇▇▇ Plan to conform to the General
Agreement on Tariffs and Trade, the Small Business Job Protection Act of 1996,
the Tax Reform Act of 1997, and other applicable laws and take other reasonable
steps as necessary to obtain such favorable determination from the Internal
Revenue Service.
6.5 Tax Matters. From and after the Closing, TBA, on the one hand, and
the Shareholder, on the other hand, shall cooperate fully with each other and
make available or cause to be made available to each other for consultation,
inspection and copying (at such other party's expense) in a timely fashion such
personnel, tax data, tax returns and filings, files, books, records, documents,
financial, technical and operating data, computer records and other information
as may be reasonably required (1) for the preparation by either of them of any
Tax Returns, elections, consents or certificates required to be prepared and
filed by such parties or (2) in connection with any audit or proceeding relating
to taxes relating to the assets of ▇▇▇▇▇▇ Management. TBA agrees to retain all
books and records with respect to tax matters pertinent to ▇▇▇▇▇▇ Management
relating to any taxable
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period beginning before the Closing Date until the expiration of the statute of
limitations of the respective taxable periods, and to abide by all record
retention agreements entered into with any taxing authority. None of the parties
hereto shall cause an election to be made, an accounting for tax purposes to be
adopted, or a position to be taken on any tax return, or in any tax proceeding,
that is inconsistent with the provisions of this Agreement. In addition, as
custodian of the books and records of ▇▇▇▇▇▇ Management as of the Closing Date,
TBA, or its authorized representatives, shall be responsible for closing such
books and records as of the Closing Date for state and federal income tax and
financial reporting purposes. TBA and the Shareholder shall cooperate fully with
each other in connection with such closing and TBA shall make available to the
Shareholder all financial and income tax data, statements, reports and
information relating to such closing of the books and records as of the Closing
Date.
6.6 Section 338(h)(10) Election. TBA and the Shareholder shall jointly
elect to treat the Acquisition as a "qualified stock purchase" within the
meaning of Section 338 of the Code and shall timely prepare and file with the
Internal Revenue Service a Section 338(h)(10) election on Form 8023. TBA
indemnifies the Shareholder for the amount by which the Shareholder's combined
state and federal income and excise tax liability arising as a result of the
sale of the Shares in accordance with the Section 338(h)(10) election exceeds
the combined state and federal income and excise tax liability the Shareholder
would have incurred had TBA and the Shareholder not filed the Section 338(h)(10)
election. Any payment due by TBA to the Shareholder hereunder shall be paid,
without right of offset, within thirty (30) days following the agreement of the
parties hereto as to the amount of indemnification payment payable hereunder.
Should the parties disagree with respect to such calculation, an office of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP other than the office normally used by TBA shall calculate
promptly the indemnification payment due hereunder, if any, and the parties
shall be bound by such determination. Sections 10.8 and 10.9 of this Agreement
shall not apply to the indemnification obligation of TBA under this Section 6.6.
6.7 Adjustment to Purchase Price. Notwithstanding the provisions of
Section 1.2(a) hereof, (i) should the Shareholder voluntarily terminate his
employment relationship with ▇▇▇▇▇▇ Management prior to the end of the five-year
term of his Employment Agreement (as defined in Section 7.2(e) hereof), other
than upon his death, for "Good Reason" or upon the Shareholder's "Disability"
(as such terms are defined in such Employment Agreement), or (ii) should ▇▇▇▇▇▇
Management terminate the employment relationship of the Shareholder as a result
of the fraud, embezzlement or other criminal act by the Shareholder involving
TBA or ▇▇▇▇▇▇ Management, or upon termination of the Employment Agreement by
▇▇▇▇▇▇ Management due to the conviction of, or a plea of nolo contendere to, a
felony crime involving moral turpitude by the Shareholder, the Shareholder shall
be obligated to pay to TBA, within fifteen (15) days of the date of such
termination of employment, a dollar amount in cash equal to the excess of (a)
the aggregate purchase price theretofore paid to the Shareholder by TBA for the
Shares over (b) the aggregate adjusted net income realized from the "book of
business" (as such term is generally understood in the artist management
business) of ▇▇▇▇▇▇ Management during the period in which the Shareholder was an
employee of ▇▇▇▇▇▇ Management pursuant to the Employment Agreement, or any
amendment thereto.
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6.8 Separate Subsidiary. TBA shall operate ▇▇▇▇▇▇ Management as a
separate, incorporated subsidiary of TBA for the period beginning on the Closing
Date and ending on the final payment made under the Adjustable Note. TBA shall
use reasonable efforts to economically and managerially support and enhance the
continued development of the business of ▇▇▇▇▇▇ Management.
6.9 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Management Agreement. TBA and Shareholder acknowledge
that the Management Agreement (herein so called) with ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, executed
in January of 1997, is by and between ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as "Artist," and ▇▇▇▇
▇▇▇▇▇▇ Management, Inc./▇▇▇▇ ▇▇▇▇▇▇, jointly as "Manager." All compensation,
fees, commissions, income or other consideration of any kind earned by Manager
pursuant to the Management Agreement shall vest solely in ▇▇▇▇▇▇ Management, and
should Shareholder receive any compensation, fees, commissions, income or other
consideration as Manager pursuant to the Management Agreement, Shareholder shall
hold such compensation, fees, commissions, income or other consideration in
trust for and as agent of ▇▇▇▇▇▇ Management and shall promptly deliver, convey,
assign and pay over to ▇▇▇▇▇▇ Management any such compensation, fees,
commissions, income or other consideration received by Shareholder pursuant to
the Management Agreement.
6.10 Investment Partnerships. ▇▇▇▇▇▇ Management shall have no liability
or obligation to make any contribution, deposit or payment of any kind to any
Investment Partnership on or after the Closing Date.
6.11 No Deficit Working Capital. Notwithstanding any other provision of
this Agreement, on the Closing Date, the balance sheet of ▇▇▇▇▇▇ Management
shall reflect total net assets equal to or greater than total liabilities, and
it is expressly contemplated by the parties that, on or prior to Closing, ▇▇▇▇▇▇
Management will distribute assets so that the net assets of ▇▇▇▇▇▇ Management
approximate the total liabilities of ▇▇▇▇▇▇ Management.
ARTICLE 7
CONDITIONS TO CLOSING
7.1 Conditions to Obligations of Each Party to Effect the Closing. The
respective obligations of each party to effect the Closing shall be subject to
the fulfillment at or prior to the Closing Date of the following condition:
(a) no order shall have been entered and remain in effect in any
action or proceeding before any foreign, federal or state court or
governmental agency or other foreign, federal or state regulatory or
administrative agency or commission that would prevent or make illegal
the consummation of the transactions contemplated hereby.
7.2 Additional Conditions to TBA's Obligations. The obligations of TBA
to effect the Closing are subject to the satisfaction of the following
conditions on or before the Closing Date:
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(a) Except for breaches which do not constitute a Material
Adverse Breach (as defined in Section 10.8 of this Agreement) by ▇▇▇▇▇▇
Management or the Shareholder, the representations and warranties set
forth in Articles 3 and 4 of this Agreement (without regard to any
amendments or modifications of the Disclosure Schedule by ▇▇▇▇▇▇
Management after the time TBA has signed this Agreement) will be true
and correct in all material respects as of the date hereof and at and as
of the Closing Date, as though then made and as though the Closing Date
were substituted for the date of this Agreement throughout such
representations and warranties and with appropriate modifications of
tense with respect to representations and warranties made as of a
specified date;
(b) ▇▇▇▇▇▇ Management shall have performed, in all material
respects, each obligation and agreement and complied, in all material
respects, with each covenant to be performed and complied with by it
under this Agreement, including, without limitation, all of its
agreements contained in Article 6 of this Agreement;
(c) Except as otherwise disclosed on the Disclosure Schedule, all
consents by governmental or regulatory agencies or otherwise that are
required for the consummation of the transactions contemplated hereby or
that are required for TBA to own, operate or control ▇▇▇▇▇▇ Management
or any portion of the assets of ▇▇▇▇▇▇ Management or to prevent a breach
of or a default under or a termination of any agreement material to
▇▇▇▇▇▇ Management to which ▇▇▇▇▇▇ Management is a party or to which any
material portion of the assets of ▇▇▇▇▇▇ Management is subject, will
have been obtained;
(d) No action or proceeding before any court or governmental body
will be pending or threatened wherein a judgment, decree or order would
prevent any of the transactions contemplated hereby or cause such
transactions to be declared unlawful or rescinded or which would
adversely affect the right of TBA to own, operate or control ▇▇▇▇▇▇
Management or any material portion of the assets of ▇▇▇▇▇▇ Management or
the value of the assets of ▇▇▇▇▇▇ Management;
(e) On or prior to the Closing Date, the Shareholder shall have
entered into an employment agreement with ▇▇▇▇▇▇ Management in the form
of Exhibit C attached hereto dated as of the Closing Date (the
"Employment Agreement") and, except as specified on Section 7.2(e) of
the Disclosure Schedule, the Shareholder shall have terminated any
employment, compensation, consulting, fee, services or other similar
agreements payable to him, or to his affiliated entities, if any;
(f) At the Closing, ▇▇▇▇▇▇ Management will have delivered to TBA
the following:
(i) a certificate executed on behalf of ▇▇▇▇▇▇
Management by its President stating that the conditions set
forth in Sections 7.2(a) through 7.2(d) of this Agreement have
been satisfied;
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(ii) certified copies of the resolutions duly adopted by
▇▇▇▇▇▇ Management's Board of Directors authorizing the
execution, delivery and performance of this Agreement and the
other agreements contemplated hereby and thereby;
(iii) good standing or comparable certificates for
▇▇▇▇▇▇ Management from the jurisdiction of its incorporation and
from every jurisdiction where a failure to be qualified or
licensed would have a material adverse effect on the
consolidated financial condition, results of operations or
business of ▇▇▇▇▇▇ Management, dated not earlier than ten (10)
days prior to the Closing Date;
(iv) copies of all third party and governmental consents
(or other evidence satisfactory to TBA) that ▇▇▇▇▇▇ Management
is required to obtain in order to effect the transactions
contemplated by this Agreement;
(v) a copy of ▇▇▇▇▇▇ Management's charter certified by
the Secretary of State of the State of Tennessee;
(vi) certificates evidencing the Shares, duly endorsed;
(vii) a copy of the written correspondence from ▇▇▇▇▇▇
Management to ▇▇▇▇▇▇ ▇▇▇▇ and Muse & Associates, Inc.
terminating as of the Closing Date (i) the oral office lease
agreement by and between ▇▇▇▇▇▇ Management and Muse &
Associates, Inc., and (ii) the oral agreement of ▇▇▇▇▇▇
Management to pay one-half of the salary and benefits of ▇▇▇▇
▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇;
(viii) a certified copy of the resolution duly adopted
by ▇▇▇▇▇▇ Management's Board of Directors terminating the ▇▇▇▇
▇▇▇▇▇▇ Management, Inc. 401(k) Profit Sharing Plan effective at
5 p.m. on the Closing Date; and
(ix) such other documents as TBA may reasonably request
in connection with the transactions contemplated hereby;
(g) All proceedings to be taken by ▇▇▇▇▇▇ Management in
connection with the consummation of the Acquisition at the Closing and
the other transactions contemplated hereby and all documents required to
be delivered by ▇▇▇▇▇▇ Management in connection with the Acquisition and
the other transactions contemplated hereby will be reasonably
satisfactory in form and substance to TBA.
7.3 Additional Conditions to the Obligations of ▇▇▇▇▇▇ Management and
the Shareholder. The obligations of ▇▇▇▇▇▇ Management and the Shareholder to
effect the Closing are subject to the satisfaction of the following conditions
on or before the Closing Date;
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(a) Except for breaches which do not constitute a Material
Adverse Breach (as defined in Section 10.8 of this Agreement) by TBA,
the representations and warranties set forth in Article 2 of this
Agreement will be true and correct as of the date hereof and at and as
of the Closing Date, as though then made and as though the Closing Date
were substituted for the date of this Agreement throughout such
representations and warranties and with appropriate modifications of
tense with respect to representations and warranties made as of a
specified date;
(b) TBA shall have performed, in all material respects, each
obligation and agreement and complied, in all material respects, with
each covenant required to be performed and complied with by it under
this Agreement prior to the Closing Date;
(c) No action or proceeding before any court or government body
will be pending or threatened wherein a judgment, decree or order would
prevent any of the transactions contemplated hereby or cause such
transactions to be declared unlawful or rescinded;
(d) At the Closing, TBA will have delivered to ▇▇▇▇▇▇ Management
and the Shareholder the following:
(i) a certificate executed on behalf of TBA by its Chief
Executive Officer stating that the conditions set forth in
Sections 7.3(a) through (c) of this Agreement have been
satisfied;
(ii) certified copies of the resolutions duly adopted by
TBA's board of directors authorizing the execution, delivery and
performance of this Agreement;
(iii) good standing certificates for TBA from the
Secretary of State of the State of Delaware dated not earlier
than ten (10) days prior to the Closing Date;
(iv) copies of all third party and governmental or
regulatory consents (or other evidence satisfactory to ▇▇▇▇▇▇
Management) that TBA are required to obtain in order to effect
the transactions contemplated by this Agreement;
(v) copies of TBA's charter certified by the Secretary
of State of the State of Delaware;
(vi) the Cash Portion, the Adjustable Note and the
Non-Adjustable Note; and
(vii) such other documents as ▇▇▇▇▇▇ Management or the
Shareholder may reasonably request in connection with the
transactions contemplated hereby;
(e) All proceedings to be taken by TBA in connection with the
consummation of the Acquisition at the Closing and all documents
required to be delivered by TBA in
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connection with the transactions contemplated hereby will be reasonably
satisfactory in form and substance to ▇▇▇▇▇▇ Management and the
Shareholder;
(f) Except as otherwise disclosed to ▇▇▇▇▇▇ Management and the
Shareholder, all consents by governmental or regulatory agencies or
otherwise that are required for the consummation of the transactions
contemplated hereby or that are required for TBA to own, operate or
control ▇▇▇▇▇▇ Management or any portion of the assets of ▇▇▇▇▇▇
Management or to prevent a breach of or a default under or a termination
of any agreement material to ▇▇▇▇▇▇ Management to which ▇▇▇▇▇▇
Management is a party or to which any material portion of the assets of
▇▇▇▇▇▇ Management is subject, will have been obtained; and
(g) The Employment Agreement will have been executed and
delivered by the Closing Date and there will not have been any changes,
amendments or modifications to, or termination of, such agreement.
ARTICLE 8
TERMINATION, AMENDMENT AND WAIVER
8.1 Termination. This Agreement may be terminated at any time prior to
the Closing Date:
(a) by the mutual written consent of the Shareholder and TBA;
(b) by TBA if there has been a misrepresentation or breach of a
representation or warranty or a failure to perform a covenant on the
part of ▇▇▇▇▇▇ Management or the Shareholder with respect to their
representations, warranties and covenants set forth in this Agreement
and any such breach or failure constitutes a Material Adverse Breach;
and
(c) by ▇▇▇▇▇▇ Management if there has been a misrepresentation or
a breach of a representation or warranty or a failure to perform a
covenant on the part of TBA with respect to their representations,
warranties and covenants set forth in this Agreement and any such breach
or failure constitutes a Material Adverse Breach.
8.2 Amendment. This Agreement may not be amended except by an instrument
signed by each of the parties hereto.
8.3 Waiver. At any time prior to the Closing Date, (a) TBA may (i)
extend the time for the performance of any of the obligations or other acts of
▇▇▇▇▇▇ Management and/or the Shareholder or (ii) waive compliance with any of
the agreements of ▇▇▇▇▇▇ Management and/or the Shareholder or with any
conditions to its own obligations, and (b) ▇▇▇▇▇▇ Management and/or the
Shareholder may (i) extend the time for the performance of any of the
obligations or other acts of TBA or (ii) waive compliance with any of the
agreements of TBA or with any conditions to their own
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obligations in each case only to the extent such obligations, agreements and
conditions are intended for their benefit.
8.4 Effect of Termination. If this Agreement is terminated as provided
in Section 8.1, this Agreement shall become void and there shall be no liability
or further obligation on the part of any party hereto or any of their respective
shareholders, officers or directors, except (a) that nothing herein and no
termination pursuant hereto will relieve any party from liability for any breach
of this Agreement and (b) the provisions of Section 6.6 and any confidentiality
agreements by and between TBA and ▇▇▇▇▇▇ Management will survive such
termination.
ARTICLE 9
INDEMNIFICATION
9.1 By TBA, ▇▇▇▇▇▇ Management and the Shareholder. TBA on the one hand
and ▇▇▇▇▇▇ Management and the Shareholder on the other hand each hereby agree to
indemnify and hold harmless the other against all claims, damages, losses,
liabilities, costs and expenses (including, without limitation, settlement costs
and any legal, accounting or other expenses for defending any actions or
threatened actions) (collectively "Damages") reasonably incurred by TBA, ▇▇▇▇▇▇
Management and the Shareholder in connection with each and all of the matters
set forth below to the extent they constitute a Material Adverse Breach.
(a) Any breach by the Indemnifying Party (as defined below) of
any representation or warranty made by such Indemnifying Party in this
Agreement;
(b) Any breach of any covenant, agreement or obligation of the
Indemnifying Party contained in this Agreement or any other agreement,
instrument or document contemplated by this Agreement; and
(c) Any misrepresentation contained in any statement, certificate
or schedule furnished by the Indemnifying Party pursuant to this
Agreement or in connection with the transactions contemplated by this
Agreement.
9.2 Claims for Indemnification. Whenever any claim shall arise for
indemnification hereunder, the party seeking indemnification (the "Indemnified
Party") shall promptly notify the party from whom indemnification is sought (the
"Indemnifying Party") of the claim and, when known, the facts constituting the
basis for such claim. In the event of any such claim for indemnification
hereunder resulting from or in connection with any claim or legal proceedings by
a third party, the notice to the Indemnifying Party shall specify, if known, the
amount or an estimate of the amount of the liability arising therefrom. The
Indemnified Party shall not settle or compromise any claim by a third party for
which it is entitled to indemnification hereunder without the prior written
consent of the Indemnifying Party, which shall not be unreasonably withheld,
unless suit shall have been instituted against it and the Indemnifying Party
shall not have taken control of
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such suit after notification thereof as provided in Section 9.3 of this
Agreement in which case the Indemnified Party may settle or compromise such
claim without the prior consent of the Indemnifying Party. If the Indemnified
Party fails to give prompt notice of any claim and such failure prejudices the
Indemnifying Party's position or its ability to defend the claim, the
Indemnifying Party's liability to the Indemnified Party shall be reduced by the
amount, if any, demonstrated to be directly attributable to the failure to give
such notice in a timely manner.
9.3 Defense by Indemnifying Party. In connection with any claim giving
rise to indemnity hereunder resulting from or arising out of any claim or legal
proceeding by a person who is not a party to this Agreement, the Indemnifying
Party at its sole cost and expense may, upon written notice to the Indemnified
Party, assume the defense of any such claim or legal proceeding if it
acknowledges to the Indemnified Party in writing its obligations to indemnify
the Indemnified Party with respect to all elements of such claim. The
Indemnified Party shall be entitled to participate in (but not control) the
defense of any such action, with its counsel and at its own expense. If the
Indemnifying Party does not assume the defense of any such claim or litigation
resulting therefrom within thirty (30) days after the date such claim is made,
(a) the Indemnified Party may defend against such claim or litigation, in such
manner as it may deem appropriate, including, but not limited to, settling such
claim or litigation, after giving notice of the same to the Indemnifying Party,
on such terms as the Indemnified Party may deem appropriate, and (b) the
Indemnifying Party shall be entitled to participate in (but not control) the
defense of such action, with its counsel and at its own expense. If the
Indemnifying Party thereafter seeks to question the manner in which the
Indemnified Party defended such third party claim or the amount or nature of any
such settlement, the Indemnifying Party shall have the burden to prove by a
preponderance of the evidence that the Indemnified Party did not defend or
settle such third party claim in a reasonably prudent manner.
9.4 Payment of Indemnification Obligation. All indemnification by TBA,
▇▇▇▇▇▇ Management or the Shareholder hereunder shall be effected by payment by
wire transfer or delivery of a cashier's or certified check in the amount of the
indemnification liability.
9.5 Limitations. EXCEPT IN CASES OF FRAUD, WHERE SPECIFIC PERFORMANCE IS
AVAILABLE AS A REMEDY OR AS PROVIDED IN SECTION 6.7 OF THIS AGREEMENT, THE
PARTIES AGREE AND ACKNOWLEDGE THAT THE INDEMNIFICATION RIGHTS PROVIDED IN THIS
ARTICLE 9 SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF SUCH PARTIES TO THIS
AGREEMENT FOR CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ALL
DISPUTES ARISING OUT OF OR RELATING TO ANY OTHER AGREEMENTS OR DOCUMENTS SIGNED
OR EXECUTED IN RELATION TO THE CLOSING (EXCEPT FOR THE EMPLOYMENT AGREEMENT,
NON-ADJUSTABLE NOTE AND ADJUSTABLE NOTE, THE TERMS OF WHICH SHALL CONTROL CLAIMS
ARISING OUT OF SUCH RESPECTIVE AGREEMENTS). EXCEPT IN CASES OF FRAUD, WHERE
SPECIFIC PERFORMANCE IS AVAILABLE AS A REMEDY OR AS PROVIDED IN SECTION 6.7 OF
THIS AGREEMENT, THE AGGREGATE, MAXIMUM LIABILITY OF EACH OF THE SHAREHOLDER AND
TBA UNDER THIS ARTICLE 9 SHALL BE AN AMOUNT EQUAL TO $700,000.
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ARTICLE 10
GENERAL PROVISIONS
10.1 Survival of Representations and Warranties. The representations and
warranties set forth in this Agreement shall survive the Closing for a period of
one (1) year. Notwithstanding the above, claims resulting from any breach of any
representation or warranty concerning tax or ▇▇▇▇▇▇ Management Employee Benefit
Plan matters shall expire one hundred twenty (120) days after the expiration of
any applicable statute of limitations. Any litigation between the parties hereto
arising out of or attributable to a breach of any representation, warranty or
covenant contained herein must be commenced within the applicable period
described above. If not commenced within the applicable period, any such claim
will thereafter conclusively be deemed to be waived regardless of when such
claim is or should have been discovered.
10.2 Effect of Due Diligence. No investigation by TBA or ▇▇▇▇▇▇
Management into the business, operations and condition of the other shall
diminish in any way the effect of any representations or warranties made by
either party in this Agreement or shall relieve such party of any of its
obligations under this Agreement.
10.3 Specific Performance. TBA, ▇▇▇▇▇▇ Management and the Shareholder
understand and agree that the covenants and undertakings on each of their parts
herein contained are uniquely related to the desire of TBA, ▇▇▇▇▇▇ Management
and the Shareholder to consummate the Acquisition, that the Acquisition is a
unique business opportunity for ▇▇▇▇▇▇ Management, TBA, and the Shareholder and
that, although monetary damages may be available for the breach of such
covenants and undertakings, monetary damages would be an inadequate remedy
therefor. Accordingly, ▇▇▇▇▇▇ Management, TBA and the Shareholder agree that TBA
shall be entitled to obtain specific performance by ▇▇▇▇▇▇ Management and the
Shareholder of every such covenant and undertaking contained herein to be
performed by ▇▇▇▇▇▇ Management and the Shareholder and that ▇▇▇▇▇▇ Management
and the Shareholder shall be entitled to obtain specific performance from TBA of
each and every covenant and undertaking herein contained to be observed or
performed by TBA.
10.4 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered personally,
sent by telex, telecopy, facsimile or overnight courier, or mailed by registered
or certified mail (postage prepaid and return receipt requested), to the party
to whom the same is so delivered, sent or mailed at the following addresses (or
at such other address for a party as shall be specified by like notice):
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(a) if to TBA:
TBA Entertainment Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C.
5400 Renaissance Tower
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to ▇▇▇▇▇▇ Management:
▇▇▇▇ ▇▇▇▇▇▇ Management, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇
A Professional Limited Liability Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to the Shareholder:
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇
A Professional Limited Liability Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Notices delivered personally or by telex, telecopy or facsimile shall be deemed
delivered as of actual receipt, mailed notices shall be deemed delivered three
days after mailing and overnight courier notices shall be deemed delivered one
day after the date of sending.
10.5 Interpretation. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. References to Sections and Articles refer to
sections and articles of this Agreement unless otherwise stated.
10.6 Severability. If any term, provision, covenant or Agreement is held
by a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants, and restrictions of this
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated and the parties shall negotiate in good faith to modify
the Agreement to preserve each party's anticipated benefits under the Agreement.
10.7 Miscellaneous. This Agreement (together with all other documents
and instruments referred to herein): (a) except for any confidentiality
agreements executed in connection with the transactions contemplated hereby,
constitutes the entire agreement and supersedes all other prior agreements and
undertakings, both written and oral, among the parties with respect to the
subject matter hereof; (b) except as expressly set forth herein, is not intended
to confer upon any person not party to this Agreement any rights or remedies
hereunder; (c) shall not be assigned by operation of law or otherwise, except
that TBA may assign all or any portion of their rights under this Agreement to
any wholly owned subsidiary but no such assignment shall relieve TBA of its
obligations hereunder, and except that this Agreement may be assigned by
operation of law to any corporation with or into which TBA may be merged; and
(d) shall be governed in all respects, including validity, interpretation and
effect, by the internal laws of the State of Tennessee, without giving effect to
the principles of conflict of laws thereof. The parties consent to and agree to
submit to the jurisdiction of such courts. This Agreement may be executed in two
or more counterparts which together shall constitute a single agreement.
10.8 Material Adverse Breach. Breaches of representations, warranties
and covenants by either party hereto which (a) individually results in damages
to the other party in excess of $20,000 or (b) in the aggregate result in
damages to the other party in excess of $75,000, shall constitute, for purposes
of this Agreement, a "Material Adverse Breach."
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10.9 Limitation of Liability. Neither TBA, ▇▇▇▇▇▇ Management, nor the
Shareholder shall have any liability for breach of the representations,
warranties and covenants made by them and contained in this Agreement unless
such breach is a Material Adverse Breach.
10.10 Waiver of Purchase Right. ▇▇▇▇▇▇ Management hereby waives the
right of first refusal in its favor with respect to the transfer of the Shares
contemplated in this Agreement.
10.11 Effective Time. The transactions contemplated hereby shall be
effective for all purposes at 12:01 a.m. on December 7, 1999.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
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STOCK PURCHASE AGREEMENT
Signature Page
IN WITNESS WHEREOF, TBA, the Shareholder and ▇▇▇▇▇▇ Management have
caused this Agreement to be executed on the date first written above by their
respective officers duly authorized.
TBA ENTERTAINMENT CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III
------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III,
Chief Executive Officer
▇▇▇▇ ▇▇▇▇▇▇ MANAGEMENT, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇, President
/s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
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SCHEDULE 1
DISCLOSURE SCHEDULE
39
EXHIBIT A
FORM OF ADJUSTABLE PROMISSORY NOTE
40
EXHIBIT B
FORM OF NON-ADJUSTABLE PROMISSORY NOTE
41
EXHIBIT C
FORM OF EMPLOYMENT AGREEMENT