<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
---------------------------
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported):
DECEMBER 31, 1997
---------------------------
WHEELS SPORTS GROUP, INC.
(Exact name of registrant as specified in its charter)
NORTH CAROLINA 0-22321 56-2007717
(State of Incorporation) (Commission File No.) (I.R.S. Employer
Identification No.)
149 GASOLINE ALLEY DRIVE
MOORESVILLE, NORTH CAROLINA 28115
(Address of principal executive offices)
(704) 662-6442
(Registrant's telephone number, including area code)
1368 SALISBURY ROAD
MOCKSVILLE, NORTH CAROLINA 27028
(Former address, if changed since last report)
<PAGE> 2
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On December 31, 1997, Wheels Sports Group, Inc. (the "Company")
closed on its acquisition of Press Pass Partners, a Delaware general
partnership which manufactures and markets collectible sports trading cards,
primarily for the NASCAR market ("Press Pass"). The acquisition was completed
on December 31, 1997, on the terms summarized below and substantially as
disclosed in the Company's Form 8-K as filed on October 17, 1997.
The acquisition was completed through the merger of the two
corporate partners of Press Pass into newly formed subsidiaries of the Company
(the "Subsidiaries"). The consideration paid by the Company pursuant to the
Agreement consisted of cash in the amount of $3.1 million; 600,000 shares of
the Company's Common Stock; and promissory notes in the aggregate principal
amount of $1 million (the "Notes"). The Notes are secured by the assets of
Press Pass, are guaranteed by the Subsidiaries and bear interest at 8% per
annum. Principal and interest are due December 31, 1998, subject to prepayment
at the Company's option; provided, however, that the Company may make quarterly
payments of interest only, in which case the Notes bear interest at the rate of
4% per annum. The shares of Common Stock were issued without registration
under the Securities Act of 1933 (the "Act"), and the Company granted
"piggyback" registration rights to the holders of the Common Stock. The
Company also entered into employment agreements with two executives of Press
Pass, Victor H. Shaffer and Robert Bove. In addition, Mr. Shaffer was
appointed to the Company's Board of Directors.
In order to fund the cash payment, the Company obtained a credit
facility with Credit Agricole Indosuez on December 31, 1997. See "ITEM 5.
Other Events."
ITEM 5. OTHER EVENTS
On December 31, 1997, the Company established a credit facility
with Credit Agricole Indosuez (the "Credit Facility"). The Credit Facility
provides the Company with a $7.7 million term loan and up to $10 million in
revolving loans. The availability of revolving loans is determined by a
borrowing base comprised of eligible inventories and accounts receivable.
Borrowings under the Credit Facility are secured by substantially all of the
Company's assets.
Subject to certain mandatory and voluntary prepayments, the term loan
provides for quarterly payments of principal and interest commencing in
December 1998 and ending in September 2003, and all revolving loans are payable
in December 2002.
At the December 31, 1997 closing under the Credit Facility, the
Company obtained a $7.7 million term loan and $1.5 million in revolving loans.
The revolving loan proceeds, together with certain existing funds of the
Company, were used to repay $2.1 million in outstanding secured debt. The term
loan proceeds were used to fund the cash payment made in the Press Pass
acquisition (as described in ITEM 2 above); to pay certain expenses incurred in
connection with the Credit Facility and the acquisition of Press Pass and High
Performance Sports Marketing, Inc. ("High Performance"); and to fund a $3.3
million escrow account. Upon the occurrence of certain events, the funds held
in escrow will be released to the former
2
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shareholders of High Performance in payment of the remaining cash purchase
price incurred in the High Performance acquisition.
In connection with the Credit Facility, the Company granted to Credit
Agricole Indosuez a warrant to purchase 509,358 shares of Common Stock at a
price of $3.50 per share. The warrant is exercisable from March 31, 1998 to
December 31, 2007; provided, however, that if the Company completes its
previously announced merger with Racing Champions Corporation by March 31,
1998, then the warrant shall be cancelled. The Company has the right to extend
the March 31, 1998 date to April 30, 1998 upon the payment of $100,000. The
Company has granted "piggyback" and demand registration rights to the holder of
the warrant. The Company will generally bear the cost of any such
registration.
FORWARD LOOKING STATEMENTS
The statements contained in this report that are not purely
historical are forward looking statements within the meaning of Section 27A of
the Securities Act of 1933 and Section 21E of the Securities Exchange Act of
1934, including statements regarding the Company's expectations, hopes,
intentions or strategies regarding the future. Forward looking statements
include expectations of trends to continue through the remainder of the
forthcoming year. Forward looking statements involve a number of risks and
uncertainties. Among other factors that would cause actual results to differ
materially are the following: the inability to obtain the long-term financing
described above; the inability to close other acquisitions which may be
undertaken by the Company, including but not limited to the previously
announced acquisition of Press Pass Partners; business conditions and growth in
the markets for collectible sports trading cards and other NASCAR related
merchandise; competitive factors, such as the entry of new competitors into the
NASCAR trading card and merchandise markets; the loss of license agreements
with certain NASCAR drivers or team owners; inventory risks due to shifts in
market demand; changes in product mix; and the risk factors listed from time to
time in the Company's SEC reports, including but not limited to the Company's
reports on Form 10-QSB, 8-K, 10-KSB, Annual Reports to Shareholders, and
reports or other documents filed pursuant to the Securities Act of 1933 or the
Securities Exchange Act of 1934. All forward looking statements included
herein are based on information available to the Company on the date hereof,
and the Company assumes no obligation to update any such forward looking
statements. It is important to note that the Company's actual results could
differ materially from those in such forward looking statements due to the
factors cited above. As a result of these factors, there can be assurance the
Company will not experience material fluctuations in future operating results
on a quarterly or annual basis, which would materially and adversely affect the
Company's business, financial condition and results of operations.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) It is impracticable to provide the required financial
statements for Press Pass Partners at this time. In accordance with Item
7(a)(1) of Form 8-K, the Company will file the required financial statements as
an amendment to this Form 8-K as soon as practicable, but not
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later than 60 days after the date on which this report on Form 8-K must be
filed.
(b) It is impracticable to provide the required pro forma
financial information for Press Pass Partners and the Company at this time. In
accordance with Item 7(b)(2) of Form 8-K, the Company will file the required
pro forma financial information as an amendment to this Form 8-K as soon as
practicable, but not later than 60 days after the date on which this report on
Form 8-K must be filed.
(c) The following exhibits are furnished herewith in accordance
with the provisions of Item 601 of Regulation S-K:
<TABLE>
<CAPTION>
Reg. S-K
Exhibit No. Description Item No.
- ----------- ----------- --------
<S> <C> <C>
* 2.4 Merger Agreement and Plan of Reorganization among SM Acquisition 2
Company, J/B Acquisition Company, Wheels Sport Group, Inc.,
Synergy Marketing, Inc. and J/B Press Pass, Inc., dated
October 3, 1997.
o2.4.1 Amendment to Merger Agreement and Plan of Reorganization 2
among SM Acquisition Company, J/B Acquisition Company,
Wheels Sport Group, Inc., Synergy Marketing, Inc. and
J/B Press Pass, Inc., dated December 29, 1997.
o2.4.2 Registration Rights Agreement, dated December 31, 1997, by and 2
among the Company and the shareholders of the partners of Press
Pass.
o10.1.12 Employment Agreement, dated October 3, 1997 and effective 10
December 31, 1997, by and between Victor Shaffer and the Company.
o10.1.13 Employment Agreement, dated October 3, 1997 and effective 10
December 31, 1997, by and between Robert Bove and the Company.
o10.15.4 Form of Promissory Note, issued in the aggregate principal 10
amount of $1,000,000, dated December 31, 1997, from the Company to
shareholders of Synergy Marketing, Inc. and J/B Press Pass, Inc.
+10.16.1 Credit Agreement, dated December 31, 1997, among the Company 10
and Credit Agricole Indosuez, as agent, and the lending
institutions named therein.
+10.16.2 Warrant, dated December 31, 1997, granted by the Company to 10
Credit Agricole Indosuez, to purchase up to 509,358 shares of
Common Stock.
</TABLE>
* Previously filed with the Company's Form 8-K filed on October 17, 1997.
o Filed herewith.
+ To be filed by amendment.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
WHEELS SPORTS GROUP, INC.
Date: January 15, 1998 By: /s/ Howard L. Correll, Jr.
-----------------------------------------
Howard L. Correll, Jr., Chairman of the
Board, Chief Executive
Officer and President
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Reg. S-K
Exhibit No. Description Item No.
- ----------- ----------- --------
<S> <C> <C>
* 2.4 Merger Agreement and Plan of Reorganization among SM Acquisition 2
Company, J/B Acquisition Company, Wheels Sport Group, Inc.,
Synergy Marketing, Inc. and J/B Press Pass, Inc., dated
October 3, 1997.
o2.4.1 Amendment to Merger Agreement and Plan of Reorganization 2
among SM Acquisition Company, J/B Acquisition Company,
Wheels Sport Group, Inc., Synergy Marketing, Inc. and
J/B Press Pass, Inc., dated December 29, 1997.
o2.4.2 Registration Rights Agreement, dated December 31, 1997, by and 2
among the Company and the shareholders of the partners of Press
Pass.
o10.1.12 Employment Agreement, dated October 3, 1997 and effective 10
December 31, 1997, by and between Victor Shaffer and the Company.
o10.1.13 Employment Agreement, dated October 3, 1997 and effective 10
December 31, 1997, by and between Robert Bove and the Company.
o10.15.4 Form of Promissory Note, issued in the aggregate principal 10
amount of $1,000,000, dated December 31, 1997, from the Company to
shareholders of Synergy Marketing, Inc. and J/B Press Pass, Inc.
+10.16.1 Credit Agreement, dated December 31, 1997, among the Company 10
and Credit Agricole Indosuez, as agent, and the lending
institutions named therein.
+10.16.2 Warrant, dated December 31, 1997, granted by the Company to 10
Credit Agricole Indosuez, to purchase up to 509,358 shares of
Common Stock.
</TABLE>
* Previously filed with the Company's Form 8-K filed on October 17, 1997.
o Filed herewith.
+ To be filed by amendment.
<PAGE> 1
EXHIBIT 2.4.1
AMENDMENT
TO
MERGER AGREEMENT AND PLAN OF REORGANIZATION
AMENDMENT, dated as of December 29, 1997 (this "Amendment"), among SM
Acquisition Company, a North Carolina corporation ("ACQ1"), J/B Acquisition
Company, a North Carolina corporation ("ACQ2" and, collectively with ACQ1,
"Acquirors"), Wheels Sports Group, Inc., a North Carolina corporation (the
"Parent"), Synergy Marketing, Inc., a Texas corporation ("SMI") and J/B Press
Pass, Inc., a Delaware corporation ("J/B" and, collectively with SMI, the
"Targets").
WHEREAS, the Parent, the Acquirors and the Targets are parties to the
Merger Agreement and Plan of Reorganization, dated as of October 3, 1997 (as
amended, modified or supplemented from time to time, the "Merger Agreement";
all capitalized terms used herein but not otherwise defined herein shall have
the meanings set forth in the Merger Agreement);
WHEREAS, as consideration for the merger of SMI with and into ACQ1 and
the merger of J/B with and into ACQ2, Victor H. Shaffer and Robert Bove
(collectively, the "SMI Seller") and Peter T. Joseph, Ronald N. Beck and Neal
K. Aronson (collectively, the "J/B Seller" and, collectively with SMI Seller,
the "Sellers") are entitled to receive the aggregate consideration of
$8,300,000 (the "Mergers Consideration"), consisting of (i) the aggregate cash
consideration of $3,100,000, (ii) the aggregate share consideration of 600,000
shares of Parent Common Stock, representing $4,200,000 worth of Parent Common
Stock at an agreed value of $7.00 per share, and (iii) the aggregate note
consideration of $1,000,000, evidenced by promissory notes (the "Notes"),
payable to each Seller; and
WHEREAS, the Parent, the Acquirors and the Targets desire to amend the
Merger Agreement to clarify the allocation of the Mergers Consideration
pursuant to the terms and conditions of this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Amendment to Merger Agreement. The Merger Agreement is
hereby amended as follows:
(i) The preamble to the Merger Agreement is amended by
replacing "1,000" with "100" in the seventh line thereof;
(ii) Section 2.3 of the Merger Agreement is amended by
replacing the second reference to the word "Delaware" with
"North Carolina" in the third line thereof; and
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(iii) Section 2.6 of the Merger Agreement is amended in its
entirety to read as follows:
"2.6 Mergers Consideration. At the
Effective Time, the Sellers shall receive from the Surviving
Corporations the aggregate consideration of $8,300,000 (the
"Mergers Consideration"), without any interest thereon. The
Mergers Consideration consists of three components: cash
consideration, note consideration and share consideration, as
follows:
(a) The aggregate cash consideration shall be
$3,100,000, which shall include the payment of $100,000 to the
Targets for the extension of the Closing in accordance with
Section 11.1 herein (the "Cash Consideration"), and shall be
paid in full by the Surviving Corporation to Sellers at the
Closing, in immediately available funds by wire transfer to
Kaye, Scholer, Fierman, Hays & Handler, LLP for the benefit of
the Sellers;
(b) The aggregate note consideration shall be
$1,000,000 (the "Note Consideration"), evidenced by promissory
notes (each a "Note" and collectively, the "Notes"), payable
to each of Victor H. Shaffer, Robert Bove, Peter T. Joseph,
Ronald N. Beck and Neal K. Aronson in the original principal
amounts of $218,900, $40,000, $345,850, $345,850 and $49,400,
respectively;
(c) The aggregate share consideration shall be
600,000 shares of Parent Common Stock, representing $4,200,000
worth of Parent Common Stock at an agreed value of $7.00 per
share (the "Share Consideration"); and
(d) The Cash Consideration and Share
Consideration shall be allocated among the Sellers as they may
direct prior to Closing."
SECTION 2. Confirmation of Merger Agreement. The parties hereto
agree that except as expressly amended herein, the Merger Agreement is hereby
ratified and confirmed in all respects and shall remain in full force and
effect in accordance with its terms.
SECTION 3. Miscellaneous.
(i) Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
DELAWARE WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPALS.
(ii) Counterparts. This Amendment may be executed in two
or more counterparts, each of which shall constitute an original, but
all of which, when taken together, shall constitute one and the same
agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the day and year first above written.
ACQUIRORS:
SM ACQUISITION COMPANY
By: /s/ Howard L. Correll
------------------------------------
Name: Howard L. Correll
Title: President
J/B ACQUISITION COMPANY
By: /s/ Howard L. Correll
------------------------------------
Name: Howard L. Correll
Title: President
PARENT:
WHEELS SPORTS GROUP, INC.
By: /s/ Howard L. Correll
------------------------------------
Name: Howard L. Correll
Title: Chairman and President
TARGETS:
SYNERGY MARKETING, INC.
By: /s/ Victor H. Shaffer
------------------------------------
Name: Victor H. Shaffer
Title: President
J/B/ PRESS PASS, INC.
By: /s/ Ronald Beck
------------------------------------
Name: Ronald Beck
Title: President
<PAGE> 1
EXHIBIT 2.4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT dated as of December 31, 1997,
between WHEELS SPORTS GROUP, INC., a North Carolina corporation (the
"Company"), and the Holders listed on Schedule A attached hereto (the
"Holders").
Reference is made to the Merger Agreement and Plan of Reorganization,
dated October 3, 1997, among the Company, SM Acquisition Company, J/B
Acquisition Company, Synergy Marketing, Inc. and J/B Press Pass, Inc. (the
"Merger Agreement"), whereby the Company has agreed to provide the registration
rights set forth in this Agreement. The execution and delivery of this
Agreement is a condition to Closing under the Merger Agreement.
The parties hereto agree as follows:
SECTION 1. DEFINITIONS. For purposes of this Agreement:
(a) The term "Common Shares" means the Company's Common
Stock, $.01 par value;
(b) The term "Company" means Wheels Sports Group, Inc., a
North Carolina corporation, its successors and assigns, and any other
issuer of Registerable Securities;
(c) The term "Holders" has the meaning given to it in the
preamble;
(d) The term "Merger Agreement" has the meaning given to
it in the preamble;
(e) The term "Piggyback Registration" has the meaning
given to it in Section 2(a);
(f) The term "Registrable Securities" means (i) the Share
Consideration, as defined under the Merger Agreement, (ii) any Common
Shares of the Company issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as) a
dividend or other distribution with respect to, or in exchange for or
in replacement of, the Share Consideration, in each case held by any
Holder, and (iii) any security into which the Share Consideration or
any Common Shares described in clause (ii) of the Company may be
converted or exchanged in a merger or other business combination; and
(g) The terms "register," "registered," and
"registration" refer to a registration effected by preparing and
filing a registration statement or similar document in compliance with
the Securities Act, and the declaration or ordering of effectiveness
of such registration statement or document;
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(h) The term "Securities Act" means the Securities Act of
1933, as amended; and
(i) The term "Securities Exchange Act" means the
Securities Exchange Act of 1934, as amended.
SECTION 2. PIGGYBACK REGISTRATIONS.
(a) Right to Piggyback. Whenever the Company proposes to
register any of its securities under the Securities Act (including
secondary registrations on behalf of the holders of its securities)
and the registration forms to be used may be used for the registration
of Registrable Securities (a "Piggyback Registration"), the Company
shall give prompt written notice to all holders of Registrable
Securities of its intention to effect such a registration no less than
twenty (20) days prior to the date of filing of the registration
statement and shall include in such registration all Registrable
Securities with respect to which the Company has received written
requests for inclusion therein within fifteen (15) days after receipt
of the Company's notice.
(b) Piggyback Expenses. The expenses of registration of
the Holders of Registrable Securities shall be paid by the Company in
all Piggyback Registrations.
(c) Priority on Primary Registrations. If a Piggyback
Registration is an underwritten primary registration on behalf of the
Company, and the managing underwriter advises the Company in writing
that in its opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in such
offering without materially and adversely affecting the marketability
of the offering, the Company shall include in such registration,
first, the securities the Company proposes to sell and second, the
Registrable Securities requested to be included in such registration,
pro rata among the holders of such Registrable Securities and all
other selling shareholders participating in such offering, on the
basis of the number of shares owned by each such holder.
(d) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of
holders of the Company's securities, and the managing underwriter
advises the Company in writing that in its opinion the number of
securities requested to be included in such registration exceeds the
number which can be sold in such offering without materially and
adversely affecting the marketability of the offering, the Company
shall include in such registration, the securities requested to be
included therein by the holders requesting such registration and the
Registrable Securities requested to be included in such registration,
pro rata among the such requesting holders and the holders of such
Registrable Securities, on the basis of the number of shares owned by
each such holder.
(e) Termination of Registration. Notwithstanding the
rights granted hereunder to the Holders, the Company, in its sole
discretion, shall have the right to (i) withdraw any Piggyback
Registration prior to obtaining an order of effectiveness or (ii)
delay the effectiveness of any Piggyback Registration due to market
conditions or other circumstances which cause the Company to conclude
that it is inadvisable to
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proceed with registration at that time. Any such withdrawal or delay
may be made without the prior consent of the Holders and without
violation of any rights of the Holders hereunder.
SECTION 3. HOLDBACK AGREEMENT. The Company agrees not to effect
any public sale or distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for such securities, during the
seven (7) days prior to and during the ninety (90) day period beginning on the
effective date of any underwritten Piggyback Registration (except as part of
such underwritten registration or pursuant to registrations on Form S-8 or any
successor form), unless the underwriter managing the registered public offering
otherwise agrees.
SECTION 4. REGISTRATION PROCEDURE. Whenever required under this
Agreement to effect the registration of any Registrable Securities, the Company
shall use its best efforts to effect the registration of such Registrable
Securities in accordance with the intended method of disposition thereof and
shall, as expeditiously as is reasonably possible:
(a) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration
statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supplements
thereto, the Company will furnish to each Holder of Registrable
Securities, each underwriter participating in any disposition pursuant
to such registration and to the counsel selected by the holders of a
majority of the Registrable Securities covered by such registration
statement copies of all such documents proposed to be filed, which
documents will be subject to the review and, comment of such counsel
to the extent such documents relate, to the Holders or to the
Registrable Securities);
(b) prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for a period
of not less than six (6) months and comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers
thereof set forth in such registration statement;
(c) furnish to each Holder of Registrable Securities such
number of copies of such registration statement, each amendment and
supplement thereto, the prospectus included in such registration
statement (including each preliminary prospectus) and such other
documents as such Holder may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such Holder;
(d) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of
such jurisdictions as any Holder reasonably requests and do any and
all other acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such Holder
(provided that the Company shall not be required to (i) qualify
generally to do
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business in any jurisdiction where it would not otherwise be required
to qualify but for this subparagraph, (ii) subject itself to taxation
in any such jurisdiction, or (iii) consent to general service of
process in any such jurisdiction);
(e) notify each Holder of such Registrable Securities, at
any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any event as a
result of which the prospectus included in such registration statement
contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading, and, at the
request of any such Holder, the Company shall promptly prepare a
supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such
prospectus shall not contain an untrue statement of a material fact or
omit to state any fact necessary to make the statements therein not
misleading;
(f) cause all such Registrable Securities to be listed on
each securities exchange on which similar securities issued by the
Company are then listed;
(g) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such
registration statement;
(h) enter into such customary agreements (including
underwriting agreements in customary form) on terms and conditions
which are acceptable to the Company and take all such other actions as
the holders of a majority of the Registrable Securities being sold or
the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities;
(i) request that the underwriters for the Company or
other selling shareholders, if any, to include the Registrable
Securities in the offering on the same terms as those being sold by
the Company and the other selling shareholders;
(j) in the event of the issuance of any stop order
suspending the effectiveness of a registration statement, or of any
order suspending or preventing the use of any related prospectus or
suspending the qualification of any Common Shares included in such
registration statement for sale of any jurisdiction, the Company will
use its reasonable best efforts promptly to obtain the withdrawal of
such order;
(k) otherwise use its best efforts to comply with all
applicable rules and regulations of the Securities and Exchange
Commission, and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of
at least twelve (12) months beginning with the first day of the
Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(l) provide each Holder with a copy of all cold comfort
letters which are obtained by the Company or the underwriters, if any,
from the Company's independent public accountants in connection with
the registration statement and the offering of securities thereunder;
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(m) provide a legal opinion of the Company's outside
counsel with respect to the registration statement, each amendment and
supplement thereto, the prospectus included therein (including the
preliminary prospectus) and such other documents relating thereto in
such form as is delivered to the underwriter, if any, or other selling
shareholder, participating in such offering;
(n) if requested by the managing underwriter or
underwriters or a holder of Registrable Securities being sold in
connection with an underwritten offering, promptly incorporate in a
prospectus supplement or post-effective amendment such information as
the managing underwriters and the holders of a majority of the
Registrable Securities being sold agree should be included therein
relating to the plan of distribution with respect to such Registrable
Securities, including, without limitation, information with respect to
the number of Registrable Securities being sold to such underwriters,
the purchase price being paid thereof by such underwriters and with
respect to any other terms of the underwritten (or best efforts
underwriter) offering of the Registrable Securities to be sold in such
offering; and make all required filings of such prospectus supplement
or post-effective amendment as soon as notified of the matters to be
incorporated in such prospectus supplement or post-effective
amendment; and
(o) cooperate with the selling Holders of Registrable
Securities and the managing underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive
legends; and enable such Registrable Securities to be in such
denominations and registered in such names as the managing
underwriters may request at least two (2) business days prior to any
sale of Registrable Securities to the underwriters.
SECTION 5. FURNISH INFORMATION. The Holders shall promptly furnish
to the Company in writing such reasonable information regarding themselves, the
Registrable Securities held by them, and the intended method of disposition of
such securities as shall be required to effect the registration of their
Registrable Securities.
SECTION 6. EXPENSES OF REGISTRATION. All expenses, other than
underwriting discounts or selling commissions, relating to Registrable
Securities incurred in connection with registration, filing or qualification
pursuant to Section 2 of this Agreement, including (without limitation) all
registration, filing and qualification fees, printers' bills, mailing and
delivery expenses, accounting fees, and the fees and disbursements of counsel
for the Company, shall be borne by the Company.
SECTION 7. CURRENT PUBLIC INFORMATION. The Company will use
reasonable best efforts to file all reports required to be filed by it under
the Securities Act and the Securities Exchange Act and the rules and
regulations adopted by the Securities and Exchange Commission thereunder, and
will take such further action as any Holder or Holders of Registrable
Securities may reasonably request, all to the extent required to enable such
Holders to sell Registrable Securities pursuant to Rule 144 adopted by the
Securities and Exchange Commission under the Securities Act (as such rule may
be amended from time
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<PAGE> 6
to time) or any similar rule or regulation hereafter adopted by the Securities
and Exchange Commission.
SECTION 8. INDEMNIFICATION AND CONTRIBUTION. In the event any
Registrable Securities are included in a registration statement under this
Agreement:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, its officers and directors,
any underwriter (as defined in the Securities Act) for such Holder,
and each person, if any, who controls such Holder or underwriter
within the meaning of the Securities Act or the Securities Exchange
Act, against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the Securities Act,
the Exchange Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect
thereto) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto,
or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; and the
Company will reimburse each such Holder, underwriter or controlling
person for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the Company
shall not be liable in any such case for any such loss, claim, damage,
liability, or action to the extent that it arises out of or is based
upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, preliminary
prospectus or final prospectus or any amendment or supplement thereto
in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such
Holder, underwriter or controlling person; provided, further, however,
that if any losses, claims, damages or liabilities arise out of or are
based upon any untrue statement, alleged untrue statement, omission or
alleged omission contained in any preliminary prospectus which did not
appear in the final prospectus, the Company shall not have any such
liability with respect thereto to such Holder, or any person who
controls such Holder within the meaning of the Securities Act, if such
Holder delivered a copy of the preliminary prospectus to the person
alleging such losses, claims, damages or liabilities and failed to
deliver a copy of the final prospectus, as amended or supplemented if
it has been amended or supplemented, to such person at or prior to the
written confirmation of the sale to such person, provided that such
Holder had an obligation to deliver a copy of the final prospectus to
such person and was furnished copies of such final prospectus by the
Company; and
(b) To the extent permitted by law, each selling Holder
will severally indemnify and hold harmless the Company, each of its
directors, each of its officers who has signed the registration
statement, each person, if any, who controls the Company within the
meaning of the Securities Act, any underwriter and any other Holder
selling securities in such registration statement or any person who
controls such Holder or underwriter, against any losses, claims,
damages or liabilities (joint or several) to which the Company or any
such director, officer, controlling person, or
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<PAGE> 7
underwriter or controlling person, or other such Holder or controlling
person may become subject, under the Securities Act, the Exchange Act
or other federal or state law, insofar as such losses, claims, damages
or liabilities (or actions in respect thereto) arise out of or are
based upon any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, if the untrue statement or omission or alleged
untrue statement or omission in respect of which such loss, claim,
damage or liability is asserted was made in reliance upon and in
conformity with written information furnished by such Holder expressly
for use in connection with such registration; and each such Holder
will reimburse any legal or other expenses reasonably incurred by the
Company or any such director, officer, controlling person, underwriter
or controlling person, or other Holder or controlling person in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the obligation to
indemnify shall be individual to each Holder and the maximum liability
of any selling Holder under this Section 8(b) in regard to any
registration statement shall in no event exceed the amount of the net
proceeds received by such selling Holder from the sale of securities
under such registration statement; provided, further, however, that if
any losses, claims, damages or liabilities arise out of or are based
upon an untrue statement, alleged untrue statement, omission or
alleged omission contained in any preliminary prospectus which did not
appear in the final prospectus, such seller shall not have any such
liability with respect thereto to the Company, any person who controls
the Company within the meaning of the Securities Act, any officer of
the Company who signed the registration statement or any director of
the Company, if the Company delivered a copy of the preliminary
prospectus to the person alleging such losses, claims, damages or
liabilities and failed to deliver a copy of the final prospectus, as
amended or supplemented if it has been amended or supplemented, to
such person at or prior to the written confirmation of the sale to
such person, provided that the Company had an obligation to deliver a
copy of the final prospectus to such person.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under
this Section 8, deliver to the indemnifying party a written notice of
the commencement thereof, and the indemnifying party shall have the
right to participate in and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly notified,
to assume the defense thereof with counsel mutually satisfactory to
the parties. An indemnified party shall have the right to retain its
own counsel, however, the fees and expenses of such counsel shall be
at the expense of the indemnified party, unless (iii) the employment
of such counsel has been specifically authorized in writing by the
indemnifying party, (iv) the indemnifying party has failed to assume
the defense and employ counsel, or (v) the named parties to any such
action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have
been advised by such counsel that there may be one or more legal
defenses available to it which
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<PAGE> 8
are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not
have the right to assume the defense of such action on behalf of such
indemnified party, it being understood, however, that the
indemnifying party shall not, in connection with any one such action
or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more
than one separate firm of attorneys for all indemnified parties). The
failure to deliver written notice to the indemnifying party will not
relieve it of any liability that it may have to any indemnified party
under this Agreement.
(d) If it is judicially determined (by the entry of a
final judgment or decree of a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of
appeal) that the indemnification provided for in this Section 8 is
unenforceable, then each indemnifying party shall in lieu of
indemnifying such indemnified party contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages, liabilities or actions in such proportion as is appropriate
to reflect the relative fault of the Company, on the one hand, and
each selling Holder, on the other, in connection with the statements
or omissions which resulted in such losses, claims, damages,
liabilities or actions as well as any other relevant equitable
considerations, including the failure to give any required notice.
The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, on the one hand, or by
such selling Holders on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto acknowledge and agree
that it would not be just and equitable if contribution pursuant to
this subparagraph (d) were determined by pro rata allocation (even if
all of the selling Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this
subparagraph (d). The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities or actions in
respect thereof referred to above in this subparagraph (d) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subparagraph (d), the amount each selling Holder shall be required to
contribute shall not exceed the amount of the net proceeds received by
such selling Holder from the sale of securities hereunder exceeds the
amount of any damages which they would have otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission
or alleged omission, or other violation of law. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of fraudulent misrepresentation.
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<PAGE> 9
SECTION 9. MISCELLANEOUS.
(a) No Inconsistent Agreements. The Company will not
hereafter enter into any agreement with respect to its securities
which is inconsistent with or violates the rights granted to the
Holders of Registrable Securities in this Agreement.
(b) Adjustments Affecting Registrable Securities. The
Company will not take any action, or permit any change to occur, with
respect to its securities which would materially and adversely affect
the ability of the Holders of Registrable Securities to include such
Registrable Securities in a registration undertaken pursuant to this
Agreement or which would adversely affect the marketability of such
Registrable Securities in any such registration.
(c) Remedies. Any Person having rights under any
provision of this Agreement will be entitled to enforce such rights
specifically to recover damages caused by reason of any breach of any
provision of this Agreement and to exercise all other rights granted
by law. The parties hereto agree and acknowledge that money damages
may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party may in its sole discretion apply to any
court of law or equity of competent jurisdiction (without posting any
bond or other security) for specific performance and for other
injunctive relief in order to enforce or prevent violation of the
provisions of this Agreement.
(d) Successors and Assigns. All covenants and agreements
in this Agreement by or on behalf of any of the parties hereto will
bind and inure to the benefit of the respective successors and assigns
of the parties hereto whether so expressed or not. In addition,
whether or not any express assignment has been made, the provisions of
this Agreement which are for the benefit of Holders of Registrable
Securities are also for the benefit of, and enforceable by, any
subsequent holder of Registrable Securities. In the event of a merger
or business combination where the Common Shares of the Company are
converted into other securities, the Company will cause the issuer of
such securities to assume the Company's obligations under this
Agreement.
(e) Severability. Whenever possible, each provision of
this Agreement will be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Agreement
is held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition
or invalidity, without invalidating the remainder of this Agreement.
(f) Notices. Except as otherwise provided herein, any
notice, consent or request to be given in connection with any term or
provision of this Agreement shall be in writing and shall be deemed to
have been delivered if delivered personally, sent by registered or
certified mail, postage prepaid, or courier, postage prepaid (next day
delivery), to the Company or to each Holder at its address as
designated in, or from time to time pursuant to, Article 12.1 of the
Merger Agreement or to such other address as shall have been furnished
in writing.
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<PAGE> 10
(g) Integration. This Agreement and the Merger Agreement
contain the entire agreement between the parties with respect to the
transactions contemplated hereby and no party shall be bound by, nor
shall any party be deemed to have made, any covenants,
representations, warranties, undertakings or agreements except those
contained in such entire Agreement and the Merger Agreement. The
section and paragraph headings contained in this Agreement are for the
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same Agreement.
(i) Amendments and Waivers. The provisions of this
Agreement may be amended or waived only upon the prior written consent
of the Company and the holders of at seventy-five percent (75%) of the
Registrable Securities.
(j) Governing Law. This Agreement and the rights and
remedies of the parties hereto shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware without
regard to conflicts of laws principles.
IN WITNESS WHEREOF, this Agreement has been executed effective as of
the date first above written.
WHEELS SPORTS GROUP, INC.
By: /s/ Howard L. Correll, Jr.
-----------------------------------
Howard L. Correll, Jr.,
Chief Executive Officer
/s/ Victor H. Shaffer
----------------------------------------
Victor H. Shaffer
/s/ Robert Bove
----------------------------------------
Robert Bove
/s/ Peter T. Joseph
----------------------------------------
Peter T. Joseph
/s/ Ronald N. Beck
----------------------------------------
Ronald N. Beck
/s/ Neal K. Aronson
----------------------------------------
Neal K. Aronson
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<PAGE> 1
EXHIBIT 10.1.12
EXECUTIVE EMPLOYMENT AGREEMENT
EXECUTIVE EMPLOYMENT AGREEMENT effective October 2, 1997 (the
"Agreement") by and between WHEELS SPORTS GROUP, INC. (the "Company") with
principal offices located at 1368 Salisbury Road, Mocksville, North Carolina
27028 and VICTOR H. SHAFFER (the "Executive").
NOW THEREFORE, in consideration of the foregoing premises and mutual
covenants herein contained, the parties hereto agree as follows:
1. Employment. The Company hereby employs the Executive in the
position described on Schedule 1 hereto as an executive officer of the Company.
The Executive accepts such employment and agrees to perform the duties and
responsibilities assigned to him pursuant to this Agreement. The Company will
also appoint the Executive to serve on the Company's Board of Directors
effective as of the date of this Agreement, and during the term of this
Agreement the Board of Directors will use its best efforts (consistent with
their fiduciary duties) to cause Executive to be retained on the Board. The
Company will pay to the Executive, for so long as he serves on the Board of
Directors, all compensation and benefits which the Company pays to its other
inside directors.
2. Position and Responsibilities. The Executive shall hold the
position with the Company which is specified on Schedule 1, which is attached
hereto and incorporated herein by reference. The Executive shall exert his
best efforts and devote full time and attention to the affairs of the Company.
The Executive shall perform the duties set forth on Schedule 1 while employed
as an executive officer, and such further duties (consistent with the
Executive's position as an officer of the Company and his other duties and
responsibilities) as may be determined and assigned to him from time-to-time by
the Chief Executive Officer or the Board of Directors of the Company, and shall
have full authority and responsibility with respect thereto, subject to the
general direction, approval and control of the Board of Directors and to the
restrictions, limitations and guidelines set forth by the Board of Directors in
resolutions adopted in the minutes of the Board of Directors meetings, copies
of which will be provided to the Executive from time to time and will be
incorporated herein by reference.
3. Board of Directors. The Executive shall at all times discharge
his duties in consultation with and under the supervision of the Board of
Directors of the Corporation. The Executive shall make his principal office at
the corporate headquarters of the Company in Mocksville, North Carolina, or at
such other place or places as the Executive may designate with the Company's
approval, which shall not be unreasonably withheld.
<PAGE> 2
4. Term of Employment. The term of the Executive's employment under
this Agreement shall be deemed to have commenced on _____________, 1997 and
shall continue for a three-year period until _______________, 2000, subject to
extension as hereinafter provided or termination pursuant to the provisions set
forth hereafter. Provided that Executive is in compliance with all of his
obligations hereunder, the term of Executive's employment shall be
automatically extended for an additional one-year term upon expiration of the
initial three-year term or any renewal term, as the case may be, unless either
party hereto receives 90 days' prior written notice from the other electing not
to extend the Executive's employment.
5. Compensation. Commencing on the effective date of this Agreement,
the Company shall pay to the Executive as compensation for his services a base
salary of not less than the amount specified on Schedule 1, payable semi-
monthly, or such higher salary as may be from time to time approved by the
Board of Directors. Upon the parties' execution of this Agreement, the
Executive shall be entitled to receive options granted under the Company's 1996
Omnibus Stock Option Plan in accordance with the terms of Schedule 1 hereto.
The Executive shall receive such additional compensation and/or bonuses or
stock options as may be voted to him at the sole discretion of the Compensation
Committee of the Board of Directors.
6. Expense Reimbursement. The Company will reimburse the Executive,
at least monthly, for all reasonable and necessary expenses incurred by him in
carrying out his duties under this Agreement. The Executive shall present to
the Treasurer each month an account of such expenses in such form as is
reasonably required by the Board of Directors. Such expenses shall include
attorneys' fees and disbursements of Executive in connection with any legal
proceedings (including, but not limited to, arbitration), whether or not
instituted by the Company or Executive, relating to the interpretation or
enforcement of any provision of this Agreement; provided, however, that in the
case of any such proceeding to which the Company and the Executive are adverse
parties, the losing party shall reimburse the prevailing party for all costs
and expenses, including attorneys' fees and disbursements, incurred by the
prevailing party in defense or prosecution of any such proceeding. Prior to
advancing costs and expenses to Executive, the Board of Directors shall have
the right to obtain an agreement, and to require acceptable security therefor,
from Executive requiring him to repay Company for the same should it be
determined that Executive is not entitled to payment of such costs and
expenses.
In addition, the Company shall reimburse the Executive for all reasonable
relocation expenses incurred in relocating the Executive and his family from
Texas to North Carolina upon the presentation
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<PAGE> 3
of an itemized account of such expenses. A list of expenses eligible for
reimbursement is set forth on Schedule 1.
7. Medical and Dental Coverage. The Executive, his wife, and those
children who qualify will be entitled to participate in the Company's employee
group medical and other group insurance programs on the same basis as other
executives of the Company.
8. Medical Examination. The Executive agrees to submit himself for
physical examination on one occasion per year as requested by the Company for
the purpose of the Company's obtaining life insurance on the life of the
Executive for the benefit of the Company; provided, however, that the Company
shall bear the entire cost of such examinations and shall pay all premiums on
any key man life insurance obtained for the benefit of the Company as
beneficiary or with respect to any other designated beneficiary.
9. Automobile or Automobile Allowance. The Company will provide the
Executive with an automobile or with a monthly automobile allowance in the
amount of $700 for the duration of his employment with the Company under this
Agreement.
10. Vacation Time. The Executive shall be entitled to take three (3)
weeks paid vacation per calendar year. Such vacation may not be taken in any
greater than consecutive two (2) week increments. Vacation not used by the
Executive during the calendar year will be carried forward up to a maximum of
eight (8) weeks accrual going forward.
11. Benefits Payable on Disability. If the Executive becomes disabled
from properly performing services hereunder by reason of illness or other
physical or mental incapacity, the Company shall continue to pay the Executive
his then current salary hereunder for the first twelve (12) months of such
continuous disability commencing with the first date of such disability.
In the event the Company purchases Disability Insurance covering any of
its executive officers, and if the Executive qualifies for such coverage, then
during the term of this Agreement the Company shall purchase and maintain a
policy of Disability Insurance which, after twelve (12) continuous months of
disability, will pay up to $10,000 per month of the Executive's salary until
Executive reaches the age of 65. The Company has no obligation to supplement
or augment disability payments made under any such disability policy or plan or
make any other payment in connection with such disability.
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<PAGE> 4
If the Company is unable to obtain a policy of Disability Insurance, the
Company shall pay up to $8,000 per month to the Executive for a twelve (12)
month period from the twelfth to the twenty-fourth month from the first date of
such disability.
12. Obligations of Executive During and After Employment.
(a) The Executive agrees that during the term of his employment
under this Agreement, he will engage in no other business activities
directly or indirectly, which are competitive with or which might place
him in a competing position to that of the Company, or any affiliated
company.
(b) The Executive realizes that during the course of his
employment, Executive will have produced and/or have access to
confidential business plans, information, business opportunity records,
notebooks, data, formula, specifications, trade secrets, customer lists,
account lists and secret inventions and processes of the Company and its
affiliated companies. Therefore, during or subsequent to his employment
by the Company, or by an affiliated company, the Executive agrees to hold
in confidence and not to directly or indirectly disclose or use or copy
or make lists of any such information, except to the extent authorized by
the Company in writing. All records, files, business plans, documents,
equipment and the like, or copies thereof, relating to Company's
business, or the business of an affiliated company, which Executive shall
prepare, or use, or come into contact with, shall remain the sole
property of the Company, or of an affiliated company, and shall not be
removed from the Company's or the affiliated company's premises without
its written consent, and shall be promptly returned to the Company upon
termination of employment with the Company and its affiliated companies.
The restrictions and obligations of Executive set forth in this Section
12(b) shall not apply to (i) information that is or becomes generally
available and known to the sports trading card industry or the fantasy
game industry (other than as a result of a disclosure directly or
indirectly by Executive in violation of this Agreement); (ii) information
that was known to Executive prior to Executive's employment by the
Company or its predecessor; or (iii) information that is obtained by the
Executive from a third party who was not bound by a contractual, legal or
fiduciary duty of confidentiality to the Company or to any other party
with respect to such information.
(c) Because of his employment by the Company, Executive will
have access to trade secrets and confidential information about the
Company, its business plans, its business accounts, its business
opportunities, its expansion plans into other geographical areas and its
methods of doing business. Executive agrees that for a period of one (1)
year after termination or expiration of his employment (except if
termination is as a result of termination by Executive with cause under
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Section 16), he will not, directly or indirectly, compete with the
Company in the business of designing, marketing and/or distributing
NASCAR merchandise, collectible NASCAR-related sports trading cards and
related products within the United States.
(d) In the event a court of competent jurisdiction finds any
provision of this Section 12 to be so overbroad as to be unenforceable,
then such provision shall be reduced in scope by the court, but only to
the extent deemed necessary by the court to render the provision
reasonable and enforceable, it being the Executive's intention to provide
the Company with the broadest protection possible against harmful
competition.
13. Termination for Cause by the Company. During the term of this
Agreement there can be no termination of the Executive by the Company except
for "Termination for Cause" as outlined below:
(a) Notwithstanding anything herein to the contrary the Company
may, without liability, terminate the Executive's employment hereunder
for cause at any time upon written notice from the Board of Directors
specifying such cause, and thereafter the Company's obligations hereunder
shall cease and terminate; provided, however, that the Company shall pay
the Executive two (2) weeks pay and that such written notice shall not be
delivered until after the Board of Directors shall have given the
Executive written notice specifying the conduct alleged to have
constituted such cause and the Executive has failed to cure such conduct,
if curable, within fifteen (15) days following receipt of such notice.
(b) "Termination for Cause" consists of one or more of the
following:
i) A willful breach of duty by the Executive during the
course of his employment; and
ii) Disloyal, dishonest or illegal conduct of the
Executive in the performance of his duties under this Agreement.
14. Termination by the Executive without Cause. The Executive,
without cause, may terminate this Agreement upon 90 days' prior written notice
to the Company. In such event, the Executive shall be required to render the
services required under this Agreement during such 90-day period unless
otherwise directed by the Board of Directors. Compensation for vacation time
not taken by Executive shall be paid to the Executive at the date of
termination.
15. Termination by the Executive with Cause. The Executive may
terminate his employment with the Company at any time, upon 30-days' prior
written notice and opportunity for the Company to remedy
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<PAGE> 6
any non-compliance, by reason of (i) the Company's material failure to perform
its duties pursuant to this Agreement, (ii) any material diminishment in the
duties and responsibilities, working facilities, or compensation provided for
under this Agreement, or (iii) Executive's location of employment is moved more
than 50 miles from where it is on the date of this Agreement; provided that
such termination takes place within 90 days after receipt by Executive of
written notice of such relocation. Executive shall be entitled to all base
salary and benefits specified herein for the remaining term of this Agreement.
16. Termination upon Death of Executive. In addition to any other
provision relating to termination, this Agreement shall terminate upon the
Executive's death. In such event, the Company shall reimburse all outstanding
expenses and pay a severance allowance equal to six months' salary to the
Executive's estate.
17. Lump Sum Compensation. In the event of the occurrence of a
"Triggering Event" which shall be defined to include a non-negotiated (i)
change in ownership of 50% or more of the outstanding shares of the Company
subsequent to the Company's initial public offering, or (ii) merger,
consolidation, reorganization or liquidation of the Company, the Executive
shall receive lump sum compensation equal to 2.9 times his annual salary and
incentive or bonus payments, if any, as shall have been paid to the Executive
during the Company's most recent 12-month period within 30 days of the
Triggering Event. If the total amount of the change of control compensation
were to exceed three (3) times the Executive's base amount (the average annual
taxable compensation of the Executive for the five (5) years preceding the year
in which the change of control occurs), the Company and the Executive may agree
to reduce the lump sum compensation to be received by Executive in order to
avoid the imposition of the golden parachute tax as provided in the Tax Reform
Act of 1984, as amended by the Tax Reform Act of 1986.
In the event the Executive is required to hire counsel to negotiate on
his behalf in connection with his termination or resignation from the Company
upon the occurrence of a Triggering Event, or in order to enforce the
obligations of the Company as provided in this Paragraph, the Company shall
reimburse to the Executive all reasonable attorneys' fees and disbursements
which may be expended by the Executive in seeking to enforce the terms hereof.
Such reimbursement shall be paid every 30 days after the Executive provides
copies of invoices from the Executive's counsel to the Company. However, such
invoices may be redacted to preserve the attorney-client privilege, client
confidentiality or work product.
18. Arbitration. Any controversy, dispute or claim arising out of, or
relating to, this Agreement and/or its interpretation shall, unless resolved by
agreement of the parties, be settled by binding arbitration
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<PAGE> 7
in Charlotte, North Carolina in accordance with the Rules of the American
Arbitration Association then existing. This Agreement to arbitrate shall be
specifically enforceable under the prevailing arbitration law of the State of
North Carolina. The award rendered by the arbitrators shall be final and
judgment may be entered upon the award in any court of the State of North
Carolina having jurisdiction of the matter.
19. General Provisions.
(a) The Executive's rights and obligations under this Agreement
shall not be transferrable by assignment or otherwise, nor shall
Executive's rights be subject to encumbrance or to the claims of the
Company's creditors. Nothing in this Agreement shall prevent the
consolidation of the Company with, or its merger into, any other
corporation, or the sale by the Company of all or substantially all of
its property or assets.
(b) This Agreement constitutes the entire Agreement between the
parties hereto in respect of the employment of the Executive by the
Company and supersedes any and all other agreements either oral or in
writing between the parties hereto with respect to the employment of the
Executive.
(c) Executive shall have no duty to mitigate the payment due him
from Company pursuant to this Agreement and any money earned by Executive
from other sources after his employment with the Company terminates shall
not reduce the amount owed him by the Company pursuant to this Agreement.
(d) The provisions of this Agreement shall be regarded as
divisible, and if any of said provisions or any part thereof are declared
invalid or unenforceable by a court of competent jurisdiction or in an
arbitration proceeding, the validity and enforceability of the remainder
of such provisions or parts thereof and the applicability thereof shall
not be affected thereby.
(e) This Agreement may not be amended or modified except by a
written instrument executed by Company and Executive.
(f) This Agreement and the rights and obligations hereunder
shall be governed by and construed in accordance with the laws of the
State of North Carolina.
(g) Any notice required or permitted by this Agreement shall be
in writing and shall be sufficient if sent by registered mail, return
receipt requested, to the last known address of the party to whom such
notice is to be given. Any notice may be waived in writing by the party
entitled to receive it.
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(h) This Agreement shall be binding upon and shall inure to the
benefit of and be enforceable by the parties hereto and their respective
heirs, representatives, successors and permitted assigns.
20. Construction. Throughout this Agreement the singular shall
include the plural, and the plural shall include the singular, and the
masculine and neuter shall include the feminine, wherever the context so
requires.
21. Text to Control. The headings of paragraphs and sections are
included solely for convenience of reference. If any conflict between any
heading and the text of this Agreement exists, the text shall control.
22. Authority. The officer executing this agreement on behalf of the
Company has been empowered and directed to do so by the Board of Directors of
the Company.
23. Effective Date. This Agreement may be executed on the dates noted
below but shall only be effective on October 2, 1997.
FOR THE COMPANY: WHEELS SPORTS GROUP, INC.
DATED: October 3, 1997 By: /s/ Howard L. Correll, Jr.
---------------------------------
Title: Chief Executive Officer
------------------------------
FOR THE EXECUTIVE:
DATED: October 3, 1997 By: /s/ Victor H. Shaffer
---------------------------------
Victor H. Shaffer
8
<PAGE> 9
WHEELS SPORTS GROUP, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
SCHEDULE 1
DUTIES AND COMPENSATION
Executive: Victor H. Shaffer
Position: Executive Vice President Wheels Sports Group; President
Collectibles
Base Salary: $190,000 per year, payable bi-weekly
Bonus: As determined by the Board of Directors and in accordance
with Company-wide bonus plan.
Term: ________________, 2000, subject to automatic one (1) year
extensions.
Options: Upon execution of this Agreement, the Executive shall be
entitled to receive options granted under the Company's
1996 Omnibus Stock Option Plan to purchase 15,000 shares
of Common Stock at an exercise price of fair market value
on October 2, 1997.
Duties and
Responsibilities: Management of all of the Company's trading card and
collectibles operations.
Eligible
Reimbursement
Expenses: Such after-tax relocation expenses shall include, without
limitation, all moving, shipping, storage, handling and
transportation costs and expenses incurred by Executive
in moving the personal possessions of Executive and his
family from Texas to North Carolina, and all costs and
expenses (calculated on an after-tax basis), including
real estate agent or broker fees and commissions and
other closing costs and expenses incurred or associated
with the sale of Executive's personal residence in Texas
and the purchase of Executive's personal residence in
North Carolina. Executive and his spouse shall be
entitled to make two trips from Texas to North Carolina
for the purpose of obtaining housing. The Company shall
pay all costs and expenses incurred by the Executive and
his spouse in making such trips, including air fare,
ground transportation, lodging and food. In the event
the Executive and his spouse are unable to purchase a
personal residence in North Carolina, the Company shall
pay all rental charges, including all utility expenses,
incurred by Executive and his family for the lease of a
personal residence in North Carolina for a period of up
to two months. In the event the Executive is unable to
sell his personal residence in Texas, beginning on a date
mutually agreed upon by Executive and the Company for
Executive to
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<PAGE> 10
relocate to North Carolina and until such personal
residence is sold, the Company shall, at its option, (i)
make all payments of principal and interest on all notes
or other evidences of indebtedness relating thereto and
shall pay all property and other taxes and assessments
relating thereto or (ii) purchase the Executive's
personal residence for a sale price which is equal to the
sum of the price Executive paid therefor and the cost of
any documented improvements thereto (collectively, the
"Purchase Price"). In the event Executive's personal
residence in Texas is sold by Executive for a sale price
(the "Sale Price") which is less than the Purchase Price,
Company shall pay to the Executive an amount in cash
equal to the difference between the Purchase Price and
the Sale Price.
APPROVED:
THE COMPANY: EXECUTIVE:
By: /s/ Howard L. Correll, Jr. /s/ Victor H. Shaffer
----------------------------------------- ------------------------------
Howard L. Correll, Jr., Chief Executive Victor H. Shaffer
Officer
Date: October 3, 1997 Date: October 3, 1997
10
<PAGE> 1
EXHIBIT 10.1.13
EXECUTIVE EMPLOYMENT AGREEMENT
EXECUTIVE EMPLOYMENT AGREEMENT effective October 2, 1997 (the
"Agreement") by and between WHEELS SPORTS GROUP, INC. (the "Company") with
principal offices located at 1368 Salisbury Road, Mocksville, North Carolina
27028 and ROBERT BOVE (the "Executive").
NOW THEREFORE, in consideration of the foregoing premises and mutual
covenants herein contained, the parties hereto agree as follows:
1. Employment. The Company hereby employs the Executive in the
position described on Schedule 1 hereto as an executive officer of the Company.
The Executive accepts such employment and agrees to perform the duties and
responsibilities assigned to him pursuant to this Agreement.
2. Position and Responsibilities. The Executive shall hold the
position with the Company which is specified on Schedule 1, which is attached
hereto and incorporated herein by reference. The Executive shall exert his
best efforts and devote full time and attention to the affairs of the Company.
The Executive shall perform the duties set forth on Schedule 1 while employed
as an executive officer, and such further duties (consistent with the
Executive's position as an officer of the Company and his other duties and
responsibilities) as may be determined and assigned to him from time-to-time by
the Chief Executive Officer or the Board of Directors of the Company, and shall
have full authority and responsibility with respect thereto, subject to the
general direction, approval and control of the Board of Directors and to the
restrictions, limitations and guidelines set forth by the Board of Directors in
resolutions adopted in the minutes of the Board of Directors meetings, copies
of which will be provided to the Executive from time to time and will be
incorporated herein by reference.
3. Board of Directors. The Executive shall at all times discharge
his duties in consultation with and under the supervision of the Board of
Directors of the Corporation. The Executive shall make his principal office at
the corporate headquarters of the Company in Mocksville, North Carolina, or at
such other place or places as the Executive may designate with the Company's
approval, which shall not be unreasonably withheld.
4. Term of Employment. The term of the Executive's employment under
this Agreement shall be deemed to have commenced on __________________, 1997
and shall continue for a three-year period until ___________________, 2000,
subject to extension as hereinafter provided or termination pursuant to the
provisions set forth hereafter. Provided that Executive is in compliance with
all of his obligations
<PAGE> 2
hereunder, the term of Executive's employment shall be automatically extended
for an additional one-year term upon expiration of the initial three-year term
or any renewal term, as the case may be, unless either party hereto receives 90
days' prior written notice from the other electing not to extend the
Executive's employment.
5. Compensation. Commencing on the effective date of this Agreement,
the Company shall pay to the Executive as compensation for his services a base
salary of not less than the amount specified on Schedule 1, payable semi-
monthly, or such higher salary as may be from time to time approved by the
Board of Directors. Upon the parties' execution of this Agreement, the
Executive shall be entitled to receive options granted under the Company's 1996
Omnibus Stock Option Plan in accordance with the terms of Schedule 1 hereto.
The Executive shall receive such additional compensation and/or bonuses or
stock options as may be voted to him at the sole discretion of the Compensation
Committee of the Board of Directors.
6. Expense Reimbursement. The Company will reimburse the Executive,
at least monthly, for all reasonable and necessary expenses incurred by him in
carrying out his duties under this Agreement. The Executive shall present to
the Treasurer each month an account of such expenses in such form as is
reasonably required by the Board of Directors. Such expenses shall include
attorneys' fees and disbursements of Executive in connection with any legal
proceedings (including, but not limited to, arbitration), whether or not
instituted by the Company or Executive, relating to the interpretation or
enforcement of any provision of this Agreement; provided, however, that in the
case of any such proceeding to which the Company and the Executive are adverse
parties, the losing party shall reimburse the prevailing party for all costs
and expenses, including attorneys' fees and disbursements, incurred by the
prevailing party in defense or prosecution of any such proceeding. Prior to
advancing costs and expenses to Executive, the Board of Directors shall have
the right to obtain an agreement, and to require acceptable security therefor,
from Executive requiring him to repay Company for the same should it be
determined that Executive is not entitled to payment of such costs and
expenses.
In addition, the Company shall reimburse the Executive for all reasonable
relocation expenses incurred in relocating the Executive and his family from
California to North Carolina upon the presentation of an itemized account of
such expenses. A list of expenses eligible for reimbursement is set forth on
Schedule 1.
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<PAGE> 3
7. Medical and Dental Coverage. The Executive, his wife, and those
children who qualify will be entitled to participate in the Company's employee
group medical and other group insurance programs on the same basis as other
executives of the Company.
8. Medical Examination. The Executive agrees to submit himself for
physical examination on one occasion per year as requested by the Company for
the purpose of the Company's obtaining life insurance on the life of the
Executive for the benefit of the Company; provided, however, that the Company
shall bear the entire cost of such examinations and shall pay all premiums on
any key man life insurance obtained for the benefit of the Company as
beneficiary or with respect to any other designated beneficiary.
9. Automobile or Automobile Allowance. The Company will provide the
Executive with an automobile or with a monthly automobile allowance in the
amount of $500 for the duration of his employment with the Company under this
Agreement.
10. Vacation Time. The Executive shall be entitled to take three (3)
weeks paid vacation per calendar year. Such vacation may not be taken in any
greater than consecutive two (2) week increments. Vacation not used by the
Executive during the calendar year will be carried forward up to a maximum of
eight (8) weeks accrual going forward.
11. Benefits Payable on Disability. If the Executive becomes disabled
from properly performing services hereunder by reason of illness or other
physical or mental incapacity, the Company shall continue to pay the Executive
his then current salary hereunder for the first twelve (12) months of such
continuous disability commencing with the first date of such disability.
In the event the Company purchases Disability Insurance covering any of
its executive officers, and if the Executive qualifies for such coverage, then
during the term of this Agreement the Company shall purchase and maintain a
policy of Disability Insurance which, after twelve (12) continuous months of
disability, will pay up to $7,000 per month of the Executive's salary until
Executive reaches the age of 65. The Company has no obligation to supplement
or augment disability payments made under any such disability policy or plan or
make any other payment in connection with such disability.
If the Company is unable to obtain a policy of Disability Insurance, the
Company shall pay up to $5,000 per month to the Executive for a twelve (12)
month period from the twelfth to the twenty-fourth month from the first date of
such disability.
3
<PAGE> 4
12. Obligations of Executive During and After Employment.
(a) The Executive agrees that during the term of his employment
under this Agreement, he will engage in no other business activities
directly or indirectly, which are competitive with or which might place
him in a competing position to that of the Company, or any affiliated
company.
(b) The Executive realizes that during the course of his
employment, Executive will have produced and/or have access to
confidential business plans, information, business opportunity records,
notebooks, data, formula, specifications, trade secrets, customer lists,
account lists and secret inventions and processes of the Company and its
affiliated companies. Therefore, during or subsequent to his employment
by the Company, or by an affiliated company, the Executive agrees to hold
in confidence and not to directly or indirectly disclose or use or copy
or make lists of any such information, except to the extent authorized by
the Company in writing. All records, files, business plans, documents,
equipment and the like, or copies thereof, relating to Company's
business, or the business of an affiliated company, which Executive shall
prepare, or use, or come into contact with, shall remain the sole
property of the Company, or of an affiliated company, and shall not be
removed from the Company's or the affiliated company's premises without
its written consent, and shall be promptly returned to the Company upon
termination of employment with the Company and its affiliated companies.
The restrictions and obligations of Executive set forth in this Section
12(b) shall not apply to (i) information that is or becomes generally
available and known to the sports trading card industry or the fantasy
game industry (other than as a result of a disclosure directly or
indirectly by Executive in violation of this Agreement); (ii) information
that was known to Executive prior to Executive's employment by the
Company or its predecessor; or (iii) information that is obtained by the
Executive from a third party who was not bound by a contractual, legal or
fiduciary duty of confidentiality to the Company or to any other party
with respect to such information.
(c) Because of his employment by the Company, Executive will
have access to trade secrets and confidential information about the
Company, its business plans, its business accounts, its business
opportunities, its expansion plans into other geographical areas and its
methods of doing business. Executive agrees that for a period of one (1)
year after termination or expiration of his employment (except if
termination is as a result of termination by Executive with cause under
Section 16), he will not, directly or indirectly, compete with the
Company in the business of designing, marketing and/or distributing
NASCAR merchandise, collectible NASCAR-related sports trading cards and
related products within the United States.
4
<PAGE> 5
(d) In the event a court of competent jurisdiction finds any
provision of this Section 12 to be so overbroad as to be unenforceable,
then such provision shall be reduced in scope by the court, but only to
the extent deemed necessary by the court to render the provision
reasonable and enforceable, it being the Executive's intention to provide
the Company with the broadest protection possible against harmful
competition.
13. Termination for Cause by the Company. During the term of this
Agreement there can be no termination of the Executive by the Company except
for "Termination for Cause" as outlined below:
(a) Notwithstanding anything herein to the contrary the Company
may, without liability, terminate the Executive's employment hereunder
for cause at any time upon written notice from the Board of Directors
specifying such cause, and thereafter the Company's obligations hereunder
shall cease and terminate; provided, however, that the Company shall pay
the Executive two (2) weeks pay and that such written notice shall not be
delivered until after the Board of Directors shall have given the
Executive written notice specifying the conduct alleged to have
constituted such cause and the Executive has failed to cure such conduct,
if curable, within fifteen (15) days following receipt of such notice.
(b) "Termination for Cause" consists of one or more of the
following:
i) A willful breach of duty by the Executive during the
course of his employment; and
ii) Disloyal, dishonest or illegal conduct of the
Executive in the performance of his duties under this Agreement.
14. Termination by the Executive without Cause. The Executive,
without cause, may terminate this Agreement upon 90 days' prior written notice
to the Company. In such event, the Executive shall be required to render the
services required under this Agreement during such 90-day period unless
otherwise directed by the Board of Directors. Compensation for vacation time
not taken by Executive shall be paid to the Executive at the date of
termination.
15. Termination by the Executive with Cause. The Executive may
terminate his employment with the Company at any time, upon 30-days' prior
written notice and opportunity for the Company to remedy any non-compliance, by
reason of (i) the Company's material failure to perform its duties pursuant to
this Agreement, (ii) any material diminishment in the duties and
responsibilities, working facilities, or compensation provided for under this
Agreement, or (iii) Executive's location of employment is moved
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<PAGE> 6
more than 50 miles from where it is on the date of this Agreement; provided
that such termination takes place within 90 days after receipt by Executive of
written notice of such relocation. Executive shall be entitled to all base
salary and benefits specified herein for the remaining term of this Agreement.
16. Termination upon Death of Executive. In addition to any other
provision relating to termination, this Agreement shall terminate upon the
Executive's death. In such event, the Company shall reimburse all outstanding
expenses and pay a severance allowance equal to six months' salary to the
Executive's estate.
17. Lump Sum Compensation. In the event of the occurrence of a
"Triggering Event" which shall be defined to include a non-negotiated (i)
change in ownership of 50% or more of the outstanding shares of the Company
subsequent to the Company's initial public offering, or (ii) merger,
consolidation, reorganization or liquidation of the Company, the Executive
shall receive lump sum compensation equal to 1.0 times his annual salary and
incentive or bonus payments, if any, as shall have been paid to the Executive
during the Company's most recent 12-month period within 30 days of the
Triggering Event. If the total amount of the change of control compensation
were to exceed three (3) times the Executive's base amount (the average annual
taxable compensation of the Executive for the five (5) years preceding the year
in which the change of control occurs), the Company and the Executive may agree
to reduce the lump sum compensation to be received by Executive in order to
avoid the imposition of the golden parachute tax as provided in the Tax Reform
Act of 1984, as amended by the Tax Reform Act of 1986.
In the event the Executive is required to hire counsel to negotiate on
his behalf in connection with his termination or resignation from the Company
upon the occurrence of a Triggering Event, or in order to enforce the
obligations of the Company as provided in this Paragraph, the Company shall
reimburse to the Executive all reasonable attorneys' fees and disbursements
which may be expended by the Executive in seeking to enforce the terms hereof.
Such reimbursement shall be paid every 30 days after the Executive provides
copies of invoices from the Executive's counsel to the Company. However, such
invoices may be redacted to preserve the attorney-client privilege, client
confidentiality or work product.
18. Arbitration. Any controversy, dispute or claim arising out of, or
relating to, this Agreement and/or its interpretation shall, unless resolved by
agreement of the parties, be settled by binding arbitration in Charlotte, North
Carolina in accordance with the Rules of the American Arbitration Association
then existing. This Agreement to arbitrate shall be specifically enforceable
under the prevailing arbitration law of the State of North Carolina. The award
rendered by the arbitrators shall be final and judgment may
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<PAGE> 7
be entered upon the award in any court of the State of North Carolina having
jurisdiction of the matter.
19. General Provisions.
(a) The Executive's rights and obligations under this Agreement
shall not be transferrable by assignment or otherwise, nor shall
Executive's rights be subject to encumbrance or to the claims of the
Company's creditors. Nothing in this Agreement shall prevent the
consolidation of the Company with, or its merger into, any other
corporation, or the sale by the Company of all or substantially all of
its property or assets.
(b) This Agreement constitutes the entire Agreement between the
parties hereto in respect of the employment of the Executive by the
Company and supersedes any and all other agreements either oral or in
writing between the parties hereto with respect to the employment of the
Executive.
(c) Executive shall have no duty to mitigate the payment due him
from Company pursuant to this Agreement and any money earned by Executive
from other sources after his employment with the Company terminates shall
not reduce the amount owed him by the Company pursuant to this Agreement.
(d) The provisions of this Agreement shall be regarded as
divisible, and if any of said provisions or any part thereof are declared
invalid or unenforceable by a court of competent jurisdiction or in an
arbitration proceeding, the validity and enforceability of the remainder
of such provisions or parts thereof and the applicability thereof shall
not be affected thereby.
(e) This Agreement may not be amended or modified except by a
written instrument executed by Company and Executive.
(f) This Agreement and the rights and obligations hereunder
shall be governed by and construed in accordance with the laws of the
State of North Carolina.
(g) Any notice required or permitted by this Agreement shall be
in writing and shall be sufficient if sent by registered mail, return
receipt requested, to the last known address of the party to whom such
notice is to be given. Any notice may be waived in writing by the party
entitled to receive it.
(h) This Agreement shall be binding upon and shall inure to the
benefit of and be enforceable by the parties hereto and their respective
heirs, representatives, successors and permitted assigns.
20. Construction. Throughout this Agreement the singular shall
include the plural, and the plural shall include the singular, and the
masculine and neuter shall include the feminine, wherever the context so
requires.
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<PAGE> 8
21. Text to Control. The headings of paragraphs and sections are
included solely for convenience of reference. If any conflict between any
heading and the text of this Agreement exists, the text shall control.
22. Authority. The officer executing this agreement on behalf of the
Company has been empowered and directed to do so by the Board of Directors of
the Company.
23. Effective Date. This Agreement may be executed on the dates noted
below but shall only be effective on October 2, 1997.
FOR THE COMPANY: WHEELS SPORTS GROUP, INC.
DATED: October 3, 1997 By: /s/ Howard L. Correll, Jr.
-------------------------------------
Title: Chief Executive Officer
----------------------------------
FOR THE EXECUTIVE:
DATED: October 3, 1997 By: /s/ Robert Bove
-------------------------------------
Robert Bove
8
<PAGE> 9
WHEELS SPORTS GROUP, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
SCHEDULE 1
DUTIES AND COMPENSATION
Executive: Robert Bove
Position: __________________________________
Base Salary: $144,000 per year, payable bi-weekly
Bonus: As determined by the Board of Directors and in accordance
with Company-wide bonus plan.
Term: _________________, 2000, subject to automatic one (1)
year extensions.
Options: Upon execution of this Agreement, the Executive shall be
entitled to receive options granted under the Company's
1996 Omnibus Stock Option Plan to purchase 10,000 shares
of Common Stock at an exercise price of fair market value
on October 2, 1997.
Duties and
Responsibilities: Responsible for sales and marketing for the Company's
trading card and collectibles operations.
Eligible
Reimbursement
Expenses: Such relocation expenses shall include, without
limitation, all moving, shipping, storage, handling and
transportation costs and expenses incurred by Executive
in moving the personal possessions of Executive and his
family from California to North Carolina, and all costs
and expenses (calculated on an after-tax basis),
including real estate agent or broker fees and
commissions and other closing costs and expenses incurred
or associated with the sale of Executive's personal
residence in California and the purchase of Executive's
personal residence in North Carolina. Executive and his
spouse shall be entitled to make two trips from
California to North Carolina for the purpose of obtaining
housing. The Company shall pay all costs and expenses
incurred by the Executive and his spouse in making such
trips, including air fare, ground transportation, lodging
and food. In the event the Executive and his spouse are
unable to purchase a personal residence in North
Carolina, the Company shall pay all rental charges,
including all utility expenses, incurred by Executive and
his family for the lease of a personal residence in North
Carolina for a period of up to two months. In the event
the Executive is unable to sell his personal residence in
California, beginning on a date mutually agreed upon by
Executive and the Company for
9
<PAGE> 10
Executive to relocate to North Carolina and until such
personal residence is sold, the Company shall, at its
option, (i) make all payments of principal and interest
on all notes or other evidences of indebtedness relating
thereto and shall pay all property and other taxes and
assessments relating thereto or (ii) purchase the
Executive's personal residence for a sale price which is
equal to the sum of the price Executive paid therefor and
the cost of any documented improvements thereto
(collectively, the "Purchase Price"). In the event
Executive's personal residence in California is sold by
Executive for a sale price (the "Sale Price") which is
less than the Purchase Price, Company shall pay to the
Executive an amount in cash equal to the difference
between the Purchase Price and the Sale Price.
APPROVED:
THE COMPANY: EXECUTIVE:
By: /s/ Howard L. Correll /s/ Robert Bove
----------------------------------------- ------------------------------
Howard L. Correll, Jr., Chief Executive Robert Bove
Officer
Date: October 3, 1997 Date: October 3, 1997
10
<PAGE> 1
EXHIBIT 10.15.4
PROMISSORY NOTE
$______ New York, New York
December 31, 1997
FOR VALUE RECEIVED, Wheel Sports Group, Inc., a North Carolina
corporation with executive offices at 1368 Salisbury Road, Mocksville, North
Carolina 27028 (the "Maker"), promises to pay to the order of ___________ at
_______________________________________________ (the "Payee"), or at such other
place as the Payee may designate from time to time by notice in writing to the
Maker on December 31, 1998 (the "Maturity Date"), the principal sum of ______
________ DOLLARS ($______), together with all accrued and unpaid interest
thereon in lawful money of the United States of America. Subject to the terms
and conditions set forth below, the Maker shall have the right to prepay at any
time, without premium, all or any portion of the principal indebtedness
evidenced by this Note, together with accrued interest on the principal so
prepaid to the date of such prepayment.
This Note shall bear interest until maturity (whether by
acceleration or otherwise) at the rate of 8% per annum; provided, however, that
if, pursuant to the provisions of this Note, the Maker effectively elects to
prepay the principal indebtedness evidenced by this Note in quarterly
installments, this Note shall be deemed to have borne interest from the date
hereof until maturity (whether by acceleration or otherwise) at the rate of 4%
per annum; provided, further, that if the Maker shall default in the payment of
any such quarterly installment when due, the outstanding principal balance of
this Note (including, without limitation, the defaulted amount) shall be deemed
to have borne interest from the later of (x) the date hereof and (y) the date
the last quarterly installment (if any) was paid, in each case, until maturity
(whether by acceleration or otherwise) at a rate of 8% per annum. All accrued
but unpaid interest shall be due and payable on the Maturity Date. After
maturity (whether by acceleration or otherwise), this Note shall bear interest
at the rate of 16% per annum. In no event shall the rate of interest on this
Note exceed the maximum rate authorized by applicable law. Interest shall be
calculated on the basis of a 365 day year and actual days elapsed.
The Maker may elect, by providing written notice to the Payee
by no later than March 22, 1998, to prepay the outstanding principal
indebtedness evidenced by this Note, together with accrued and unpaid interest
thereon, in four equal quarterly installments of $10,000 on the twenty-eighth
business day of March, June, September and December, commencing on March 28,
1998. Each such installment of principal shall be accompanied by a payment of
accrued interest on the principal so prepaid. To the extent not previously
paid, the outstanding principal indebtedness evidenced by this Note shall be
due and payable on the Maturity Date.
This Note is secured by a Pledge Agreement, dated as of the
date hereof (the "Pledge Agreement"), of the Maker in favor of the Payee
covering the Pledged Securities (as defined in the Pledge Agreement), all as
more particularly described and provided therein, and is entitled to the
benefits thereof. The Maker's obligations under this Note, including without
limitation, payment of principal and interest in accordance with the terms
hereof, are guaranteed by that certain Guaranty, dated as of the date hereof
(the "Guaranty"), by Press Pass Partners, a Delaware general partnership (the
"Guarantor") in favor of the Payee. The Guarantor's obligations under the
Guaranty are secured by a Security Agreement, dated as of the date hereof (the
"Security Agreement"), made by the Guarantor in favor of the Payee covering the
Collateral
<PAGE> 2
(as defined in the Security Agreement), all as more particularly described and
provided therein. The Pledge Agreement, Guaranty and Security Agreement are
subject to the provisions of that certain Intercreditor Agreement, dated as of
the date hereof, between Credit Agricole Indosuez, as collateral agent (the
"Agent"), and Ronald N. Beck, as agent for himself and each of Victor H.
Shaffer, Robert Bove, Peter Joseph and Neal K. Aronson.
The holder of this Note may declare all indebtedness evidenced
by this Note to be immediately due and payable whenever such holder has the
right to do so under the Guaranty, the Security Agreement or other agreement,
now or hereafter in effect, pursuant to which payment of the indebtedness
evidenced by this Note is secured; or, irrespective of the terms or existence
of any such Security Agreement, Guaranty or other agreement, upon the happening
of any of the following events (each such event being an "Event of Default"):
(1) nonpayment when the same becomes due, whether by acceleration or otherwise,
of principal of, or interest on, this Note; provided, however, that a default
by the Maker in the payment of any quarterly installment (after effectively
electing to prepay the outstanding indebtedness evidenced by this Note in
quarterly installments) shall not constitute an "Event of Default" hereunder;
(2) the filing by or against the Maker of a request or petition for
liquidation, reorganization, arrangement, adjustment of debts, adjudication as
a bankrupt, relief as a debtor or other relief under the bankruptcy, insolvency
or similar laws of the United States or any state or territory thereof or any
foreign jurisdiction, now or hereafter in effect, which request or petition, if
not filed by the Maker, is not dismissed within 60 days following the filing or
institution thereof; (3) the making of any general assignment by the Maker for
the benefit of creditors; (4) the appointment of a receiver or trustee for the
Maker or for any assets of the Maker, including, without limitation, the
appointment of, or taking possession by, a "custodian", as defined in the Title
11 of the United States Code; (5) the occurrence of any event described in
clause (2), (3) or (4) of this paragraph with respect to any parent of Maker or
any significant subsidiary of Maker (including, without limitation, the
Guarantor) or such parent (such terms having the meanings given to them in
Regulation S-X of the Securities and Exchange Commission); (7) indebtedness
under the Credit Agreement, dated as of the date hereof (the "Credit
Agreement"), among the Maker and the Agent, as collateral agent for the lending
institutions listed therein, shall have been declared or become due and
payable, or if there is no indebtedness under the Credit Agreement, default
shall be made with respect to any indebtedness of the Maker, whose unpaid
principal amount exceeds (together with all other indebtedness in default under
this clause (7)) $1,000,000 in the aggregate at any time, if the effect of any
such default shall be to accelerate, or to permit the holder or obligee of any
such indebtedness at its option to accelerate, the maturity of such
indebtedness; or (8) if any representation or warranty of the Maker set forth
in the Pledge Agreement, Guaranty, Security Agreement, Merger Agreement and
Plan of Reorganization, dated as of October 3, 1997, among the Maker, SM
Acquisition Company, J/B Acquisition Company, Synergy Marketing, Inc. and J/B
Press Pass, Inc., as amended, or Registration Rights Agreement among the Maker,
Ronald N. Beck, Victor H. Shaffer, Robert Bove, Peter Joseph and Neal K.
Aronson, proves to have been false in any material respect at the time of which
the facts therein set forth were stated or certified.
No failure by the holder hereof to exercise, and no delay in
exercising, any right or remedy hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise by such holder of any right or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other right or remedy. The rights and remedies of the holder hereof as herein
specified are cumulative and not exclusive of any other rights or remedies
which such
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holder may otherwise have, including, without limitation, any rights or
remedies under the aforesaid Security Agreement.
No modification, rescission, waiver, forbearance, release or
amendment of any provision of this Note shall be made, except by a written
agreement duly executed by the undersigned and the holder hereof.
This Note shall be governed by and construed in accordance
with the laws of the State of Delaware (without giving effect to the conflicts
of law principles thereof), and shall be binding upon the successors and
assignees of the Maker and inure to the benefit of the Payee, its successors
and assignees. If any term or provisions of this Note shall be held invalid,
illegal or unenforceable, the validity of all other terms and provisions herein
shall in no way be affected thereby. The undersigned agrees to pay all costs
and expenses incurred by the holder hereof in enforcing this Note, including,
without limitation, actual attorneys' fees.
By executing this Note the individual signing below represents
and warrants that he has the power and authority to act for and bind the Maker
and that the Maker has duly authorized the execution and delivery of this Note,
and such individual agrees that the Payee is entitled to rely upon such
representation and warranty.
Any and all notices or other communications required or
permitted under this Note shall be in writing and shall be deemed given upon
(1) personal delivery, (2) upon the next business day if sent by overnight
courier service, or (3) upon the third business day next following the mailing
of such notice by certified or registered mail, return receipt requested, to
the respective addresses of the Maker and the Payee or to such other address as
the Maker or the Payee may specify by written notice given as aforesaid.
IN WITNESS WHEREOF, Maker has executed this Note as of the
date first written above.
WHEELS SPORTS GROUP, INC.
By: /s/ Howard L. Correll
-----------------------------------
Howard L. Correll
President
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