UNITED STATES
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 April 30, 1998
COMMISSION FILE NO. 0-24812
BRASSIE GOLF CORPORATION
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(Exact name of registrant as specified in its charter)
DELAWARE 56-1781650
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
One Tampa City Center, Suite 200, Tampa, FL 33602
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(Address of principal executive offices)
(813) 222-0611
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(Registrant's telephone number, including area code)
Check whether the registrant: (1) has filed all reports required to be filed by
Section 13 or 15 (d) of the Securities Exchange Act of 1934 during the preceding
12 months (or for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing requirements for the past
90 days. Yes |X| No |_|
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BRASSIE GOLF CORPORATION
FORM 8 - K
TABLE OF CONTENTS
Item 1. Changes in Control of Registrant - None
Item 2. Acquisition or Disposition of Assets - None
Item 3. Bankruptcy or Receivership - None
Item 4. Changes in Registrant's Certifying Accountant - None
Item 5. Other Events.....................................................Page 3
Item 6. Resignations of Registrant's Directors - None
Item 7. Financial Statements and Exhibits - None
Signatures................................................................Page 4
Exhibits
2.1 Stock Purchase Agreement effective as of April 15, 1998 by and among (i)
BRASSIE GOLF CORPORATION, a Delaware corporation ("Brassie"); (ii) DIVOT
GOLF CORPORATION, a Florida corporation (the "Acquired Entity"); and (iii)
JOSEPH R. CELLURA ("Cellura") an individual residing in the State of Florida
and who is the sole shareholder of the Acquired Entity (the "Seller")....Page 5
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ITEM 5. Other Events
On April 15, 1998, the Company completed its $500,000 stock acquisition of Divot
Golf Corporation ("Divot"), a Florida corporation. The Divot stock was acquired
from its sole shareholder, Joseph R. Cellura, for a combination of (i)$300,000
in cash and (ii) a short term promissory note in the principal amount of
$200,000 (the "Note"). The Note provides for interest to accrue at 6% per annum,
payable quarterly beginning June 30, 1998, with all principal and unpaid
interest due on October 15,1998. The Company had previously announced in a press
release on December 10, 1997 that a definitive agreement had been reached with
Divot and that the Company made a refundable cash deposit of $300,000 toward the
purchase price at that time. The assets of Divot include its name, certain
patent and licensing rights, and molds for producing a divot repair tool.
The Company will account for the transaction under the purchase method of
accounting, in accordance with generally accepted accounting principles.
Mr Cellura serves as Director, Chairman of the Board, and Chief Executive
Officer of the Company. The Board believes that the terms of this transaction
are commercially reasonable.
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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 herein duly authorized.
BRASSIE GOLF CORPORATION
By: /s/ Clifford F. Bagnall
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Clifford F. Bagnall
Chief Operating Officer
Date: April 30, 1998
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EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is entered into
effective as of April 15, 1998 by and among (i) BRASSIE GOLF CORPORATION, a
Delaware corporation ("Brassie"); (ii) DIVOT GOLF CORPORATION, a Florida
corporation (the "Acquired Entity"); and (iii) JOSEPH R. CELLURA ("Cellura") an
individual residing in the State of Florida and who is the sole shareholder of
the Acquired Entity (the "Seller").
RECITALS
A. Seller is presently the owner of all the shares of the voting
common capital stock of the Acquired Entity as represented by stock certificate
No. 1.
B. Seller desires to sell all of his shares of stock of the Acquired
Entity ("Purchased Shares") and Brassie desires to purchase the Purchased Shares
from Seller as a means of acquiring the Acquired Entity and its businesses,
rights and properties ("Business").
C. Brassie has determined that it is in the best interests of its
respective shareholders for Brassie to acquire all of the stock of the Acquired
Entity from the Seller as provided herein in order to effectuate the acquisition
of the businesses of the Acquired Entity. Simultaneously with such acquisition,
the Seller will then be delivered the Purchase Price as provided herein, in
consideration for the Purchased Shares of the Acquired Entity to be acquired.
TERMS OF AGREEMENT
In consideration of the mutual representations, warranties, covenants
and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
ACQUISITION; RELATED TRANSACTIONS; CLOSING
1.1 The Closing. Subject to the terms and conditions of this Agreement,
the consummation of the Acquisition (as defined below) and the other
transactions contemplated hereby shall be effective as of 11:59 p.m., on April
15, 1998, and shall take place at the offices of Brassie in Tampa, Florida, or
such other place and time as the parties may otherwise agree (the "Closing"),
and the date of Closing is referred to herein as the "Closing Date."
1.2 Acquisition. At Closing on the Closing Date, and upon all of the
terms and subject to all of the conditions of this Agreement, Seller shall sell,
assign, convey, transfer and deliver to Brassie, and Brassie shall purchase for
the consideration set forth in Section 1.3 below, all of the respective Seller's
right, title and interest, legal and equitable, in and to the Purchased
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Shares, free and clear of any and all claims, liens or encumbrances, except as
otherwise provided in this Agreement (the "Acquisition").
1.3 Purchase Price. For purposes of this Agreement, "Purchase Price"
means cash in the amount of Five Hundred Thousand and NO/100 Dollars
($500,000.).
Brassie has previously has delivered to Seller a good faith
non-refundable deposit of cash in the amount of Three Hundred Thousand and
No/100 Dollars ($300,000), which deposit shall be applied against and reduce
accordingly the Purchase Price to be paid hereunder.
1.4 Procedure at the Closing. At the Closing, the parties agree that
the following shall occur:
(a) The Acquired Entity and the Seller shall have satisfied
each of the conditions set forth in Article IV and shall deliver to Brassie the
documents, certificates, consents and letters required by Article IV.
(b) Seller shall transfer to Brassie an appropriate stock
assignment separate from certificate, representing the Purchased Shares of the
Acquired Entity being purchased hereunder.
(d) Brassie shall deliver to Seller a promissory note in the
principal amount of Two Hundred Thousand and No/100 Dollars ($200,000), in the
form attached as Schedule 1.4.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF BRASSIE
As a material inducement to the Acquired Entity and the Seller to enter
into this Agreement and to consummate the transactions contemplated hereby,
Brassie makes the following representations and warranties to the Acquired
Entity and the Seller:
2.1 Corporate Status. Brassie is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
authorized to do business in the State of Delaware, is qualified to do business
as a foreign corporation in all jurisdictions where it presently carries on
business, and has the requisite power and authority to own or lease its
properties and to carry on its business as presently conducted. There is no
pending or, to the knowledge of Brassie, threatened proceeding for the
dissolution, liquidation, insolvency or rehabilitation of Brassie.
2.2 Corporate Power and Authority. Brassie has the corporate power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. Brassie has
taken all corporate action necessary to
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authorize its execution and delivery of this Agreement, the performance of its
obligations hereunder and the consummation of the transactions contemplated
hereby.
2.3 Enforceability. This Agreement has been duly executed and delivered
by Brassie and constitutes its legal, valid and binding obligation enforceable
against Brassie in accordance with its terms, except as the same may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and general equitable
principles regardless of whether such enforceability is considered in a
proceeding at law or in equity.
2.4 No Violation. The execution and delivery of this Agreement by
Brassie, the performance by Brassie of its respective obligations hereunder and
the consummation by Brassie of the transactions contemplated by this Agreement
will not (a) contravene any provision of the Certificates or Articles of
Incorporation or Bylaws of Brassie, (b) violate or conflict with any law,
statute, ordinance, rule, regulation, decree, writ, injunction, judgment, ruling
or order of any Governmental Authority or of any arbitration award which is
either applicable to, binding upon, or enforceable against Brassie, (c) conflict
with, result in any breach of, or constitute a default (or an event which would,
with the passage of time or the giving of notice or both, constitute a default)
under, or give rise to a right to terminate, amend, modify, abandon or
accelerate, any Contract which is applicable to, binding upon or enforceable
against Brassie, (d) result in or require the creation or imposition of any Lien
upon or with respect to any of the property or assets of Brassie, (e) give to
any individual or entity a right or claim against Brassie, which would have a
Material Adverse Effect on Brassie, or (f), except as specifically set forth on
Schedule 2.4, require the consent, approval, authorization or permit of, or
filing with or notification to, any Governmental Authority, any court or
tribunal or any other Person, including, without limitation, (i) pursuant to the
Exchange Act and the Securities Act and applicable inclusion requirements of
Nasdaq, (ii) filings required under the securities or blue sky laws of the
various states, (iii) any filings or consents required to be made or obtained by
Brassie or (iv) any governmental permits or licenses required to operate the
businesses of the Acquired Entity.
2.5 Reports and Financial Statements. From January 1, 1998 to the date
hereof and at all other material times, except where failure to have done so did
not and would not have a Material Adverse Effect on Brassie, Brassie has filed
all reports, registrations and statements, together with any required amendments
thereto, that it was required to file with the SEC, including, but not limited
to Forms 10-K, Forms 10-Q, Forms 8-K and proxy statements (collectively, the
"Brassie Reports"). As of their respective dates (but taking into account any
amendments filed prior to the date of this Agreement), the Brassie Reports
complied in all material respects with all the rules and regulations promulgated
by the SEC and did not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The financial statements of Brassie included in the Brassie
Reports comply as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect
thereto, have been prepared in accordance with GAAP consistently applied during
the periods presented (except, as noted
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therein, or, in the case of the unaudited statements, as permitted by Form 10-Q
of the SEC) and fairly present (subject, in the case of the unaudited
statements, to normal audit adjustments) the financial position of Brassie and
its consolidated subsidiaries as of the date thereof and the results of their
operations and their cash flows for the periods then ended.
2.6 No Commissions. Brassie has not incurred any obligation for any
finder's or broker's or agent's fees or commissions or similar compensation in
connection with the transactions contemplated hereby.
2.7 Accuracy of Information Furnished. No representation, statement or
information contained in this Agreement (including, without limitation, the
various Schedules attached hereto) or any agreement executed in connection
herewith or in any certificate delivered pursuant hereto or thereto or made or
furnished to the Seller or his representatives by Brassie, contains or shall
contain any untrue statement of a material fact or omits or shall omit any
material fact necessary to make the information contained therein not
misleading. Brassie has provided the Acquired Entity or the Seller with true,
accurate and complete copies of all documents listed or described in the various
Schedules attached hereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE ACQUIRED ENTITY AND SELLER
As a material inducement to Brassie to enter into this Agreement and to
consummate the transactions contemplated hereby, the Acquired Entity and the
Seller, jointly and severally make the following representations and warranties
to Brassie:
3.1 Corporate Status. The Acquired Entity is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida and has the requisite power and authority to own or lease its properties
and to carry on its business as now being conducted. The Acquired Entity is not
required to qualify to do business as a foreign corporation in any jurisdiction.
The Acquired Entity has fully complied with all of the requirements of any
statute governing the use and registration of fictitious names, and has the
legal right to use the names under which it operates its businesses. There is no
pending or threatened proceeding for the dissolution, liquidation, insolvency or
rehabilitation of the Acquired Entity.
3.2 Power and Authority. The Acquired Entity has the corporate power
and authority to execute and deliver this Agreement, to perform its obligations
hereunder, and to consummate the transactions contemplated hereby. The Acquired
Entity has taken all corporate action necessary to authorize the execution and
delivery of this Agreement, the performance of its obligations hereunder, and
the consummation of the transactions contemplated hereby. The Seller has the
requisite competence and authority to execute and deliver this Agreement, to
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perform his respective obligations hereunder and to consummate the transactions
contemplated hereby.
3.3 Enforceability. This Agreement has been duly executed and delivered
by the Acquired Entity and by the Seller, and constitutes the legal, valid and
binding obligation of both of them, enforceable against both of them in
accordance with its terms, except as the same may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and general equitable principles
regardless of whether such enforceability is considered in a proceeding at law
or in equity.
3.4 Capitalization. Schedule 3.4(a) sets forth, as of the date hereof,
with respect to the Acquired Entity (a) the number of authorized shares of each
class of its capital stock, (b) the number of issued and outstanding shares of
each class of its capital stock and (c) the number of shares of each class of
its capital stock which are held in treasury. All of the issued and outstanding
shares of capital stock of the Acquired Entity (i) have been duly authorized and
validly issued and are fully paid and nonassessable, (ii) were issued in
compliance with all applicable state and federal securities laws and (iii) were
not issued in violation of any preemptive rights or rights of first refusal or
similar rights. Except for those matters provided on Schedule 3.4(b) which the
Seller agrees shall be terminated at or before the Closing, no preemptive rights
or rights of first refusal or similar rights exist with respect to any shares of
capital stock of the Acquired Entity and no such rights arise by virtue of or in
connection with the transactions contemplated hereby; there are no outstanding
or authorized rights, options, warrants, convertible securities, subscription
rights, conversion rights, exchange rights or other agreements or commitments of
any kind that could require the Acquired Entity to issue or sell any shares of
its capital stock (or securities convertible into or exchangeable for shares of
its capital stock); there are no outstanding stock appreciation, phantom stock,
profit participation or other similar rights with respect to the Acquired
Entity; there are no proxies, voting rights or other agreements or
understandings with respect to the voting or transfer of the capital stock of
the Acquired Entity; the Acquired Entity is not obligated to redeem or otherwise
acquire any of its outstanding shares of capital stock.
3.5 Shareholders of the Acquired Entity. Schedule 3.5(a) sets forth,
with respect to the Acquired Entity (i) the name, address and federal taxpayer
identification number of the Seller, and the number of outstanding shares of
each class of its capital stock owned by the Seller as of the close of business
on the date of this Agreement; and (ii) the name, address and federal taxpayer
identification number of, and number of shares of each class of its capital
stock beneficially owned by each beneficial owner of outstanding shares of
capital stock (to the extent that record and beneficial ownership of any such
shares or interests are different). The Seller constitutes the record and
beneficial holder of all issued and outstanding shares of capital stock of the
Acquired Entity, and the Seller owns such shares as is set forth on Schedule 3.5
free and clear of all Liens, restrictions and claims of any kind.
3.6 No Violation. Except for any approvals or consents required
with respect to those Material Contracts (as defined in Section 3.21) expressly
identified on Schedule 3.21 as requiring
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the consents of third parties, the execution and delivery of this Agreement by
the Acquired Entity and the Seller, the performance by the Acquired Entity and
the Seller of their obligations hereunder and the consummation by them of the
transactions contemplated by this Agreement will not (a) contravene any
provision of the Articles of Incorporation or Bylaws or other organizational or
governing document of the Acquired Entity, (b) violate or conflict with any law,
statute, ordinance, rule, regulation, decree, writ, injunction, judgment or
order of any Governmental Authority or of any arbitration award which is either
applicable to, binding upon or enforceable against the Acquired Entity and
Seller, (c) conflict with, result in any breach of, or constitute a default (or
an event which would, with the passage of time or the giving of notice or both,
constitute a default) under, or give rise to a right of payment under or the
right to terminate, amend, modify, abandon or accelerate, any Material Contract
which is applicable to, binding upon or enforceable against the Acquired Entity
or the Seller, (d) result in or require the creation or imposition of any Lien
upon or with respect to any of the properties or assets of the Acquired Entity
of the Seller, (e) give to any individual or entity a right or claim against the
Acquired Entity or the Seller or (f) require the consent, approval,
authorization or permit of, or filing with or notification to, any Governmental
Authority, any court or tribunal or any other Person, except any applicable SEC
and other filings required to be made by Brassie.
3.7 Records of the Acquired Entity. The copies of the Articles of
Incorporation, Bylaws and other documents and agreements of the Acquired Entity
which were provided to Brassie are true, accurate, and complete and reflect all
amendments made through the date of this Agreement. The minute books and other
records of corporate actions for the Acquired Entity made available to Brassie
for review were correct and complete as of the date of such review, no further
entries have been made through the date of this Agreement, such minute books and
records contain the true signatures of the persons purporting to have signed
them, and such minute books and records contain an accurate record of all
corporate actions of the shareholder and directors (and any committees thereof)
of the Acquired Entity taken by written consent or at a meeting or otherwise
since incorporation or formation. All corporate actions by the Acquired Entity
have been duly authorized or ratified. All accounts, books, ledgers and official
and other records of the Acquired Entity are accurate and complete, and there
are no inaccuracies or discrepancies of any kind contained therein. The stock
ledger of the Acquired Entity, as previously made available to Brassie, contains
accurate and complete records of all issuances, transfers and cancellations of
shares of the capital stock of the Acquired Entity.
3.8 Financial Reports. The Acquired Entity has delivered to Brassie all
filed federal and state tax returns of the Acquired Entity and management's
financial and profit and loss statements for the period ending
___________________, copies of which are attached as Schedule 3.8 (the
"Financial Reports"). The Financial Reports fairly present the financial
position of the Acquired Entity at each of the dates thereof and the results of
operations for the periods covered thereby. The books and records of the
Acquired Entity fully and fairly reflect all of its transactions, properties,
assets and liabilities. There are no material special or non-recurring items of
income or expense during the periods covered by the Financial Reports, and the
balance sheets included in the Financial Reports do not reflect any write-up or
revaluation increasing the book value of any assets. The Financial Reports
reflect all adjustments necessary for a fair presentation
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of the financial information contained therein, subject, in the case of
unaudited statements, to normal audit adjustments.
3.9 No Changes. Except as set forth on Schedule 3.9, since
_____________________, there has not been any:
(a) transaction by the Acquired Entity or the Seller except in
the ordinary course of business conducted as of that date;
(b) material adverse change in the financial condition,
liabilities, assets or results of operation of the business of the Acquired
Entity;
(c) indebtedness or liability, whether accrued, absolute,
contingent or otherwise incurred by the Acquired Entity except in the ordinary
course of business;
(d) default under any indebtedness of the Acquired Entity, or
any event which with the lapse of time or the giving of notice, or both, would
constitute such a default;
(e) amendment or termination of any Contract, lease or license
to which the Acquired Entity is a party;
(f) material increase in compensation paid, payable or to
become payable by the Acquired Entity to any of its employees;
(g) extraordinary losses (whether or not covered by insurance)
or waiver by the Acquired Entity of any extraordinary rights of value;
(h) commitment to or liability to any labor organization;
(i) lowering of the prices charged by the Acquired Entity for
goods or services in a manner not consistent with past practices;
(j) notice from any customer as to the customer's intention
not to conduct business with the Acquired Entity, the result of which loss or
losses of business, individually or in the aggregate, has had, or could
reasonably be expected to have, a material adverse effect on the business; or
(k) other event or condition of any character, other than
those matters generally known to the public, that has or might reasonably have
an adverse effect on the Acquired Entity's or the business' Assets, financial
condition, or business.
3.10 Liabilities. The Acquired Entity has no liabilities or
obligations, whether accrued, absolute, contingent or otherwise, except (a) to
the extent reflected on the Acquired Entity's Financial Reports and not paid or
discharged, (b) liabilities incurred in the ordinary course of
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business consistent with past practice since the date of the Acquired Entity's
Financial Reports (none of which relates to any breach of contract, breach of
warranty, tort, infringement or violation of law, or which arose out of any
action, suit, claim, governmental investigation or arbitration proceeding), and
(c) liabilities incurred in the ordinary course of business prior to the date of
the Acquired Entity's Financial Reports which, in accordance with GAAP
consistently applied, were not required to be recorded thereon and which, in the
aggregate, are not material (the liabilities and obligations referenced in (a),
(b) and (c) above are referred to as the "Designated Liabilities"). Schedule
3.10 lists, for the Acquired Entity, (i) all indebtedness of the Acquired Entity
for borrowed money and for capitalized equipment leases, and (ii) the account
numbers and names of each bank, broker or other depository institution and the
names of all persons authorized to withdraw funds from each such account.
3.11 Litigation. Except as provided on Schedule 3.11, there is no
action, suit or other legal or administrative proceeding or governmental
investigation pending, or, to the knowledge of the Acquired Entity and the
Seller, threatened, anticipated or contemplated (i) against, by or affecting the
Acquired Entity or the Seller (relating to the transactions herein or to the
Acquired Entity), or the Acquired Entity's properties or assets, except for
routine customer claims and complaints arising in the ordinary course consistent
with past practice which involve amounts less than $10,000 individually or
$75,000 in the aggregate, or (ii) which question the validity or enforceability
of this Agreement or the transactions contemplated hereby, and there is no basis
for any of the foregoing. There are no outstanding orders, decrees or
stipulations issued by any Governmental Authority in any proceeding to which the
Acquired Entity is or was a party which have not been complied with in full or
which continue to impose any material obligations on the Acquired Entity.
3.12 Business; Good Title to and Condition of Assets; Inventory.
(a) Upon the consummation of the transactions contemplated
hereby, Brassie will have acquired and own the Business of the Acquired Entity
and in connection therewith all of the Assets and any related rights and
interests thereto as specifically listed on Schedule 3.12(a) attached hereto.
The Acquired Entity has good and marketable title to all of its Assets free and
clear of any Liens, except as provided on Schedule 3.12(b).
(b) The Fixed Assets currently in use or necessary for the
business and operations of the Acquired Entity are in good operating condition,
normal wear and tear excepted, and have been maintained in accordance with all
applicable manufacturer's specifications and warranties. For purposes of this
Agreement, the term "Fixed Assets" means all vehicles, machinery, equipment,
tools, supplies, leasehold improvements, furniture and fixtures, owned, used by
or located on the premises of the Acquired Entity.
3.13 Compliance with Laws. The Acquired Entity and the Seller and their
Affiliates have been in compliance with all laws, regulations and orders
applicable to them, their business and operations (as conducted by them now and
in the past), the Assets, and any other properties and assets (in each case
owned or used by them now or in the past). The Acquired Entity has
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not been cited, fined or otherwise notified of any asserted past or present
failure to comply with any laws, regulations or orders and no proceeding with
respect to any such violation is pending or threatened. The Acquired Entity is
not subject to any Contract, decree or injunction to which it is a party which
restricts the continued operation of any business or the expansion thereof to
other geographical areas, customers and suppliers or lines of business. Neither
the Acquired Entity, nor any of its employees or agents, has made any payment of
funds in connection with its business which is prohibited by law, and no funds
have been set aside to be used in connection with its business for any payment
prohibited by law. The Acquired Entity is and at all times has been in full
compliance with the terms and provisions of the Immigration Reform and Control
Act of 1986, as amended (the "Immigration Act"). With respect to each Employee
(as defined in 8 C.F.R. 274a.1(f)) of the Acquired Entity for whom compliance
with the Immigration Act is required, the Acquired Entity has on file a true,
accurate and complete copy of (i) each Employee's Form I-9 (Employment
Eligibility Verification Form) and (ii) all other records, documents or other
papers prepared, procured and/or retained pursuant to the Immigration Act. The
Acquired Entity has not been cited, fined, served with a Notice of Intent to
Fine or with a Cease and Desist Order, nor has any action or administrative
proceeding been initiated or threatened against the Acquired Entity, by the
Immigration and Naturalization Service by reason of any actual or alleged
failure to comply with the Immigration Act.
3.14 Labor and Employment Matters. The Acquired Entity does not now
employ, nor has it ever employed, any individuals and there are no key
individuals or executives that are necessary for the Acquired Entity to continue
its Business as now being conducted.
3.15 Employee Benefit Plans
(a) Employee Benefit Plans. There is currently no, nor has
there ever been, any employee benefit plan or arrangement of the Acquired
Entity, including but not limited to employee pension benefit plans, as defined
in Section 3(2) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), multiemployer plans, as defined in Section 3(37) of ERISA,
employee welfare benefit plans, as defined in Section 3(1) of ERISA, deferred
compensation plans, stock option plans, bonus plans, stock purchase plans,
hospitalization, disability and other insurance plans, severance or termination
pay plans and policies, whether or not described in Section 3(3) of ERISA, in
which employees, their spouses or dependents, of the Acquired Entity participate
("Employee Benefit Plans").
(b) Multiemployer Plans. The Acquired Entity is not, nor has
it been, obligated with respect to any multiemployer plan as described in
Section 4001(a)(3) of ERISA ("MPPA Plan").
(c) Welfare Plans. (i) The Acquired Entity is not obligated
under any employee welfare benefit plan as described in Section 3(1) of ERISA
("Welfare Plan") to provide medical or death benefits with respect to any
employee or former employee of the Acquired Entity or its predecessors after
termination of employment; (ii) the Acquired Entity has complied with the notice
and continuation coverage requirements of Section 4980B of the Code and the
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regulations thereunder with respect to each Welfare Plan that is, or was during
any taxable year for which the statute of limitations on the assessment of
federal income taxes remains open, by consent or otherwise, a group health plan
within the meaning of Section 5000(b)(l) of the Code; and (iii) there are no
reserves, assets, surplus or prepaid premiums under any Welfare Plan which is an
Employee Benefit Plan. The consummation of the transactions contemplated by this
Agreement will not entitle any individual to severance pay, and, will not
accelerate the time of payment or vesting, or increase the amount of
compensation due to any individual.
(d) Controlled Group Liability. Neither the Acquired Entity,
nor any entity that would be aggregated with the Acquired Entity under Code
Section 414(b), (c), (m) or (o); (i) has ever terminated or withdrawn from an
employee benefit plan under circumstances resulting (or expected to result) in
liability to the Pension Benefit Guaranty Corporation ("PBGC"), the fund by
which the employee benefit plan is funded, or any employee or beneficiary for
whose benefit the plan is or was maintained (other than routine claims for
benefits); (ii) has any assets subject to (or expected to be subject to) a lien
for unpaid contributions to any employee benefit plan; (iii) has failed to pay
premiums to the PBGC when due (iv) is subject to (or expected to be subject) an
excise tax under Code Section 4971; (v) has engaged in any transaction which
would give rise to liability under Section 4069 or Section 4212(c) of ERISA; or
(vi) has violated Code Section 4980B or Section 601 through 608 of ERISA.
(e) Other Liabilities. (i) None of the Employee Benefit Plans
obligates the Acquired Entity to pay separation, severance, termination or
similar benefits solely as a result of any transaction contemplated by this
Agreement or solely as a result of a "change of control" (as such term is
defined in Section 280G of the Code); (ii) all required or discretionary (in
accordance with historical practices) payments, premiums, contributions,
reimbursements, or accruals for all periods ending prior to or as of the Closing
Date shall have been made or properly accrued on the Financial Reports or will
be properly accrued on the books and records of the Acquired Entity as of the
Closing Date; and (iii) none of the Employee Benefit Plans has any unfunded
liabilities which are not reflected on the Financial Reports or the books and
records of the Acquired Entity.
3.16 Tax Matters. All Tax Returns required to be filed prior to the
date hereof with respect to the Acquired Entity or any of its income,
properties, franchises or operations have been timely filed, each such Tax
Return has been prepared in compliance with all applicable laws and regulations,
and all such Tax Returns are true and accurate in all respects. All Taxes due
and payable by or with respect to the Acquired Entity have been paid or are
accrued on the applicable Financial Reports or will be accrued on the Acquired
Entity's books and records as of the Closing. Except as provided in Schedule
3.16, (i) with respect to each taxable period of the Acquired Entity, either
such taxable period has been audited by the relevant taxing authority or the
time for assessing or collecting Taxes with respect to each such taxable period
has closed and each taxable period is not subject to review by any relevant
taxing authority; (ii) no deficiency or proposed adjustment which has not been
settled or otherwise resolved for any amount of Taxes has been asserted or
assessed by any taxing authority against the Acquired Entity; (iii) the Acquired
Entity has not consented to extend the time in which any Taxes may be assessed
or
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collected by any taxing authority; (iv) the Acquired Entity has not requested or
been granted an extension of the time for filing any Tax Return to a date later
than the Closing; (v) there is no action, suit, taxing authority proceeding, or
audit or clam for refund now in progress, pending or threatened against or with
respect to the Acquired Entity regarding Taxes; (vi) the Acquired Entity has not
made an election or filed a consent under Section 341(f) of the Code (or any
corresponding provision of state, local or foreign law) on or prior to the
Closing Date; (vii) there are no Liens for Taxes (other than for current Taxes
not yet due and payable) upon the assets of the Acquired Entity; (viii) the
Acquired Entity will not be required (A) as a result of a change in method of
accounting for a taxable period ending on or prior to the Closing Date, to
include any adjustment under Section 481(c) of the Code (or any corresponding
provision of state, local or foreign law) in taxable income for any taxable
period (or portion thereof) beginning after the Closing Date or (B) as a result
of any "closing agreement," as described in Section 7121 of the Code (or any
corresponding provision of state, local or foreign law), to include any item of
income or exclude any item of deduction from any taxable period (or portion
thereof) beginning after the Closing Date; (ix) the Acquired Entity has not been
a member of an affiliated group (as defined in Section 1504 of the Code) or
filed or been included in a combined, consolidated or unitary income Tax Return;
(x) the Acquired Entity is not a party to or bound by any tax allocation or tax
sharing agreement and has no current or potential contractual obligation to
indemnify any other Person with respect to Taxes; (xi) no taxing authority will
claim or assess any additional Taxes against the Acquired Entity for any period
for which Tax Returns have been filed; (xii) the Acquired Entity has not made
any payments and is not and will not become obligated (under any contract
entered into on or before the Closing) to make any payments, that will be
non-deductible under Section 280G of the Code (or any corresponding provision of
state, local or foreign law); and (xiii) the Acquired Entity has not been a
United States real property holding corporation within the meaning of Section
897(c)(2) of the Code (or any corresponding provision of state, local or foreign
law) during the applicable period specified in Section 897(c)(1)(a)(ii) of the
Code (or any corresponding provision of state, local or foreign law); (xiv) no
claim has ever been made by a taxing authority in a jurisdiction where the
Acquired Entity does not file Tax Returns that the Acquired Entity is or may be
subject to Taxes assessed by such jurisdiction; (xv) the Acquired Entity does
not have any permanent establishment in any foreign country, as defined in the
relevant tax treaty between the United States of America and such foreign
country; (xvi) true, correct and complete copies of all income Tax Returns filed
by or with respect to the Acquired Entity for the past three years have been
furnished or made available to Brassie; (xvii) the Acquired Entity will not be
subject to any Taxes, for the period ending at the Closing for any period for
which a Tax Return has not been filed, imposed pursuant to Section 1374 or
Section 1375 of the Code (or any corresponding provision of state, local or
foreign law); and (xviii) no sales or use tax will be payable by the Acquired
Entity or Brassie or transferee as a result of this transaction, and there will
be no non-recurring intangible tax, documentary stamp tax other than on the
Brassie Shares (or the common stock acquired thereunder), or other excise tax
(or comparable tax imposed by any governmental entity) as a result of this
transaction. The Acquired Entity has timely and properly filed an S corporation
election under the Code and under applicable state and local Tax law for its
first taxable year, and no such S election has been revoked or terminated, and
neither the Acquired Entity nor the Seller has taken any action that would cause
a termination of such S election.
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3.17 Insurance. Schedule 3.17 lists all valid, outstanding enforceable
policies of insurance issued to the Acquired Entity by reputable insurers
covering its properties, assets and business insuring against such risks and in
such coverage amounts (the "Insurance Policies"). The Insurance Policies are in
full force and effect, and all premiums due thereon have been paid through the
date of this Agreement and will be paid through the Closing. The Acquired Entity
has complied with the provisions of such Insurance Policies applicable to it,
and has provided Brassie copies of all Insurance Policies and all amendments and
riders thereto. There are no pending claims under any of the Insurance Policies
for an amount in excess of $25,000 individually or $100,000 in the aggregate,
including any claim for loss or damage to the properties, assets or business of
the Acquired Entity. The Acquired Entity has not failed to give, in a timely
manner, any notice required under any of the Insurance Policies to preserve its
rights thereunder.
3.18 Licenses and Permits. The Acquired Entity possesses all licenses,
approvals, permits or authorizations from Governmental Authorities
(collectively, the "Permits") for its business and operations, including with
respect to the operations of each of the Company Owned Properties. Schedule 3.18
sets forth a true, complete and accurate list of all such Permits or
applications for such Permits, itemized for the Acquired Entity. All such
Permits are valid and in full force and effect, the Acquired Entity is in
compliance with the respective requirements thereof, and no proceeding is
pending or threatened to revoke or amend any of them. None of such Permits is or
will be impaired or in any way affected by the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
3.19 Adequacy of the Assets; Affiliated Transactions. The Assets and
other equipment leased by the Acquired Entity constitute, in the aggregate, all
of the assets and properties necessary for the conduct of the business of the
Acquired Entity in the manner in which and to the extent to which such business
is currently being conducted. Except as provided in Schedule 3.19, no officer,
director or shareholder of the Acquired Entity, nor any person related by blood
or marriage to any such person, nor any entity in which any such person owns any
beneficial interest, is a party to any Contract or transaction with the Acquired
Entity or has any interest in any property used by the Acquired Entity.
3.20 Intellectual Property. The Acquired Entity has full legal right,
title and interest in and to all trademarks, service marks, trade names,
copyrights, know-how, patents, trade secrets, licenses (including licenses for
the use of computer software programs), and other intellectual property used in
the conduct of its business as specifically listed on Schedule 3.20 hereof (the
"Intellectual Property"). The conduct of the business of the Acquired Entity as
presently conducted, and the unrestricted conduct and the unrestricted use and
exploitation of the Intellectual Property, does not infringe or misappropriate
any rights held or asserted by any Person and, to the knowledge of the Acquired
Entity and the Seller, no Person is infringing on any Intellectual Property. No
payments are required for the continued use of the Intellectual Property. None
of the Intellectual Property has ever been declared invalid or unenforceable, or
is the subject of any pending or threatened action for opposition, cancellation,
declaration,
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infringement, or invalidity, unenforceability or misappropriation or like claim,
action or proceeding.
3.21 Contracts. Schedule 3.21 sets forth a list of each Material
Contract (as defined below), true, correct and complete copies of which have
been provided to Brassie, and identifies those certain Material Contracts that
require the Consents of third parties to the transactions contemplated hereby.
The Acquired Entity has not violated any of the material terms or conditions of
any Material Contract or any term or condition which would permit termination or
material modification of any Material Contract, all of the covenants to be
performed by any other party thereto have been fully performed, and there are no
claims for breach or indemnification or notice of default or termination under
any Material Contract. To the knowledge of the Acquired Entity and the Seller,
no event has occurred which constitutes, or after notice or the passage of time,
or both, would constitute, a default by the Acquired Entity under any Material
Contract, and no such event has occurred which constitutes or would constitute a
default by any other party. As used in this Section 3.21 "Material Contracts"
shall mean formal or informal, written or oral, (a) loan agreements, indentures,
mortgages, pledges, hypothecations, deeds of trust, conditional sale or title
retention agreements, security agreements, equipment financing obligations or
guaranties, or other sources of contingent liability in respect of any
indebtedness or obligations to any other Person, or letters of intent or
commitment letters with respect to same (other than those which individually
provide for annual payments of less than $25,000); (b) contracts obligating the
Acquired Entity to provide or obtain products or services for a period of one
year or more, (c) leases of real property; (d) leases of personal property
(other than those which individually provide for annual payments of less than
$25,000); (e) distribution, sales agency or franchise or similar agreements, or
agreements providing for an independent contractor's services, or letters of
intent with respect to same (other than those which individually provide for
annual payments of less than $15,000); (f) employment agreements, management
service agreements, consulting agreements, confidentiality agreements,
non-competition agreements, employee handbooks, policy statements and any other
agreements relating to any employee, officer or director of the Acquired Entity;
(g) licenses, assignments or transfers of trademarks, trade names, service
marks, patents, copyrights, trade secrets or know how, or other agreements
regarding proprietary rights or intellectual property; (h) contracts relating to
pending capital expenditures by the Acquired Entity; (i) contracts obligating
the Acquired Entity to purchase parts, accessories, supplies, equipment,
advertising, media and media related services of any kind (other than those
which individually provide for annual payments of less than $15,000); (j)
non-competition agreements restricting the Acquired Entity in any manner, (k)
any contracts obligating the Acquired Entity to make payments in excess of
$25,000, in the aggregate, over the remaining term of such contract; and (1) all
other Contracts or understandings which are material to the Acquired Entity or
its Business, assets or properties, irrespective of subject matter and whether
or not in writing, and not otherwise disclosed on the Schedules.
3.22 Accuracy of Information Furnished. No representation, statement or
information contained in this Agreement (including, without limitation, the
various Schedules attached hereto) or any agreement executed in connection
herewith or in any certificate delivered pursuant hereto or thereto or made or
furnished to Brassie or its representatives by the Acquired
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Entity or the Seller, contains or shall contain any untrue statement of a
material fact or omits or shall omit any material fact necessary to make the
information contained therein not misleading. The Acquired Entity has provided
Brassie with true, accurate and complete copies of all documents listed or
described in the various Schedules attached hereto.
3.23 No Commissions. Neither the Acquired Entity nor the Seller has
incurred any obligation for any finder's or broker's or agent's fees or
commissions or similar compensation in connection with the transactions
contemplated hereby.
ARTICLE IV
CONDITIONS TO THE OBLIGATIONS OF BRASSIE
The obligations of Brassie to effect the Acquisition and the other
transactions contemplated hereby shall be subject to the fulfillment at or prior
to the Closing Date of the following conditions, any or all of which may be
waived in whole or in part by Brassie:
4.1 Corporate Certificate. The Acquired Entity and the Seller shall
have delivered to Brassie (i) copies of the Articles of Incorporation of the
Acquired Entity certified by the Florida Secretary of State no longer than
fifteen (15) days prior to the Closing Date and copies of the Bylaws of the
Acquired Entity as in effect immediately prior to the Closing Date, (ii) copies
of resolutions adopted by the Board of Directors and the shareholders of the
Acquired Entity authorizing the transactions contemplated by this Agreement, and
(iii) a certificate of good standing of the Acquired Entity issued by the State
of Florida and each other state in which it is qualified to do business as of a
date not more than five (5) days prior to the Closing Date, and all of such
documents as to the Acquired Entity shall be certified as of the Closing Date by
the Secretary of the Acquired Entity as being true, correct and complete.
4.2 Consents. The Acquired Entity, the Seller, and Brassie shall have
received consents to the Acquisition and other transactions contemplated hereby
and waivers of rights to terminate or modify any material rights or obligations
of the Acquired Entity or the Seller, from any Person from whom such consent or
waiver is required, including without limitation, under any Material Contract
listed or required to be listed in Schedule 3.21 or any other law or regulation
as of a date not more than five (5) days prior to the Closing, or who as a
result of the transactions contemplated hereby, would have such rights to
terminate or modify such Contracts or instruments, either by the terms thereof
or as a matter of law. Brassie shall have obtained other approvals required
under state laws and all other Governmental Authorities with respect to the
transactions contemplated hereby.
4.3 No Adverse Litigation. There shall not be pending or threatened any
action or proceeding by or before any court or other governmental body which
shall seek to restrain, prohibit, invalidate or collect damages arising out of
the Acquisition or other transactions
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hereunder, or which, in the reasonable judgment of Brassie, makes it inadvisable
to proceed with the transactions contemplated hereby.
ARTICLE V
INDEMNIFICATION
5.1 Agreement by the Seller for Indemnification. The Seller agrees to
indemnify and hold Brassie and its stockholders, directors, officers, employees,
attorneys, agents and Affiliates harmless from and against the aggregate of all
expenses, losses, costs, deficiencies, liabilities and damages (including,
without limitation, related counsel and paralegal fees and expenses) incurred or
suffered by Brassie arising out of, relating to, or resulting, from (i) any
breach of a representation or warranty made by the Acquired Entity or the Seller
in or pursuant to this Agreement, (ii) any breach of the covenants or agreements
made by the Acquired Entity or the Seller in or pursuant to this Agreement,
(iii) any inaccuracy in any certificate, instrument or other document delivered
by the Acquired Entity or the Seller as required by this Agreement; or (iv) any
Excluded Liabilities (collectively, "Indemnifiable Damages"). Without limiting
the generality of the foregoing, with respect to the measurement of
Indemnifiable Damages, Brassie, its stockholders, directors, officers,
employees, attorneys, agents, and Affiliates shall have the right to be put in
the same financial position as they would have been in if the breach or
inaccuracy referenced in the foregoing clauses (i), (ii), (iii) and (iv) that
caused such Indemnifiable Damages had not occurred, taking into consideration
insurance proceeds actually received by Brassie or agree to be paid to Brassie.
Notwithstanding the foregoing provisions, no claim for Indemnifiable Damages
(except for claims under clauses (ii) and (iv) of this Section 5.1 and claims
under Section 3.16, which may be asserted without regard to the Indemnification
Threshold) shall be asserted by Brassie or any other Person, until the aggregate
of all Indemnifiable Damages exceeds the sum of Twenty-five Thousand and No/100
Dollars ($25,000.00) (the "Indemnification Threshold"), in which case Brassie
shall be entitled to Indemnifiable Damages in excess of Fifteen Thousand and
No/100 Dollars ($15,000.00).
5.2 Survival of Representations and Warranties. Each of the
representations and warranties made by the Acquired Entity and the Seller in
this Agreement or pursuant hereto shall survive for two (2) years following the
Closing Date, except that the representations and warranties in Section 3.15,
and Section 3.16 shall survive for the respective statute of limitations. No
claim for the recovery of Indemnifiable Damages may be asserted by Brassie after
such representations and warranties shall thus have expired; provided, however,
that claims for Indemnifiable Damages first asserted within the applicable
period shall not thereafter be barred. Notwithstanding any knowledge of facts
determined or determinable by any party by investigation, each party shall have
the right to fully rely on the representations, warranties, covenants and
agreements of the other parties contained in this Agreement or in any other
documents or papers delivered in connection herewith. Each representation,
warranty, covenant and agreement of the parties contained in this Agreement is
independent of each other
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representation, warranty, covenant and agreement. Each of the representations
and warranties of Brassie shall expire on the Closing Date.
5.3 Remedies Cumulative; Waiver. The remedies provided herein shall be
the sole remedies for breach of contract, but shall not preclude Brassie from
asserting any other right, or seeking any other remedies against the Seller,
including remedies for fraud and injunctive relief. The Seller hereby waives any
right to contribution or any other similar right he may have against the
Acquired Entity as a result of his Agreement to Indemnify in this Article V.
5.4 Defense of Third Party Claims. With respect to each third party
claim for which Brassie seeks indemnification under this Article V (a "Third
Party Claim"), Brassie shall give prompt notice to the Seller of the Third Party
Claim, provided that failure to give such notice promptly shall not relieve or
limit the obligations of the Seller unless the Seller has been materially
prejudiced thereby (and such failure to notify the Seller will not relieve him
from any other liability he may have to Brassie). If the remedy sought in the
Third Party Claim is solely money damages, or if Brassie otherwise permits, then
the Seller at his sole cost and expense, may, upon notice to Brassie within
fifteen (15) days after the Seller receives notice of the Third Party Claim,
assume the defense of the Third Party Claim. If the Seller assumes the defense
of a Third Party Claim, then the Seller shall select counsel reasonably
satisfactory to Brassie to conduct the defense. The Seller shall not consent to
a settlement of, or the entry of any judgment arising from, any Third Party
Claim, unless (i) the settlement or judgment is solely for money damages and the
Seller admits in writing his liability to hold Brassie harmless from and against
any losses, damages, expenses and liabilities arising out of such settlement or
judgment or (ii) Brassie consents thereto, which consent shall not be
unreasonably withheld. The Seller shall provide Brassie with fifteen (15) days
prior notice before he consents to a settlement of, or the entry of a judgment
arising from, any Third Party Claim. Brassie shall be entitled to participate,
at its own expense, in the defense of any Third Party Claim, the defense of
which is assumed by the Seller with his own counsel and at his own expense. With
respect to Third Party Claims in which the remedy sought is not solely money
damages and Brassie does not permit the Seller to assume the defense, the Seller
shall, upon notice to Brassie within fifteen (15) days after the Seller receives
notice of the Third Party Claim, be entitled to participate in the defense with
his own counsel at his own expense. If the Seller does not assume or participate
in the defense of any Third Party Claim in accordance with the terms of this
Section, then the Seller shall be bound by the results obtained by Brassie with
respect to the Third Party Claim. The parties shall cooperate in the defense of
any Third Party Claim.
ARTICLE VI
DEFINITIONS
6.1 Defined Terms. As used herein, the following terms shall have the
following meanings:
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"Affiliate" shall have the meaning ascribed to it in Rule
12b-2 of the General Rules and Regulations under the Exchange Act, as
in effect on the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended.
"Contract" means any agreement, contract, lease, note,
mortgage, indenture, loan agreement, franchise agreement, covenant,
employment agreement, license, instrument, purchase and sales order,
commitment, undertaking, obligation, whether written or oral, express
or implied.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Excluded Liabilities" shall mean (i) any obligations and
liabilities of the Acquired Entity, absolute or contingent, known or
unknown, other than Designated Liabilities; (ii) any liability or
obligation of the Acquired Entity arising under this Agreement; (iii)
any liability or obligation of the Acquired Entity relating to any
default under any Designated Liability to the extent such default
existed and was not cured prior to the Closing; (iv) any liability or
obligation of the Acquired Entity with respect to, or arising out of,
any employee benefit plan, executive deferred compensation plan, or any
other plans or arrangements for the benefit of any employees or
officers of the Acquired Entity (except for those listed on Schedule
3.15); (v) any liability or obligation of the Acquired Entity to the
Seller or any Affiliate of the Acquired Entity or the Seller or to any
party claiming to have a right to acquire any shares of capital stock
or other securities convertible into or exchangeable for any shares of
capital stock of the Acquired Entity, and (vi) any Litigation Costs.
"GAAP" means generally accepted accounting principles in
effect in the United States of America from time to time.
"Governmental Authority" means any nation or government, any
state, regional, local or other political subdivision thereof, and any
entity or official exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including, but not limited to,
any conditional sale or other title retention agreement any lease in
the nature thereof, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code or comparable law
or any jurisdiction in connection with such mortgage, pledge, security
interest, encumbrance, lien or charge).
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"Litigation Costs" shall mean any and all expenses, costs,
damages, liabilities, or obligations (including, without limitation,
fees and expenses of counsel) incurred in connection with any action,
suit, or other legal or administrative proceeding or governmental
investigation arising as a result of events occurring or facts or
circumstances arising or existing on or prior to the Closing Date
(whether or not in the ordinary course of business), including those
matters set forth on Schedule 3.11.
"Material Adverse Change (or Effect)"means a change (or
effect), in the condition (financial or otherwise), properties, assets,
liabilities, rights, obligations, operations, business or prospects
which change (or effect) individually or in the aggregate, is
materially adverse to such condition, properties, assets, liabilities,
rights, obligations, operations, business or prospects.
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company, estate,
trust, unincorporated association, joint venture, Governmental
Authority or other entity, of whatever nature.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Tax Return" means any tax return, filing or information
statement required to be filed in connection with or with respect to
any Tax.
"Taxes" means all taxes, fees or other assessments, including,
but not limited to, income, excise, property, sales, use, franchise,
intangible, payroll, withholding, social security and unemployment
taxes imposed by any federal, state, local or foreign government
agency, and any interest or penalties related thereto.
6.2 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificates, reports or other documents made or
delivered pursuant hereto or thereto, unless the context otherwise requires.
(b) Terms defined in the singular shall have a comparable
meaning when used in the plural, and vice versa.
(c) All matters of an accounting nature in connection with
this Agreement and the transactions contemplated hereby shall be determined in
accordance with GAAP applied on a basis consistent with prior periods, where
applicable.
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(d) As used herein, the neuter gender shall also denote the
masculine and feminine, and the masculine gender shall also denote the neuter
and feminine, where the context so permits.
ARTICLE VII
GENERAL PROVISIONS
7.1 Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be deemed given if
delivered by certified or registered mail (first class postage prepaid),
guaranteed overnight delivery or facsimile transmission if such transmission is
confirmed by delivery by certified or registered mail (first class postage
prepaid) or guaranteed overnight delivery, to the following addresses and
telecopy numbers (or to such other addresses or telecopy numbers which any party
shall designate in writing to the other parties):
(a) if to Brassie to:
One Tampa City Center, Suite 200
Tampa, Florida 33602
Attn: Jeremiah M. Daly, President
Telecopy: (813) 222-3434
with a copy to:
Annis, Mitchell, Cockey, Edwards & Roehn
One Tampa City Center, Suite 2100
P.O. Box 3433
Tampa, FL 33601
Attn: Fred S. Ridley, Esquire
Telecopy: (813) 223-9067
(b) If to the Seller to:
Joseph R. Cellura
==========================
--------------------------
Telecopy: (813) __________
7.2 Entire Agreement. This Agreement (including the Schedules and
Exhibits attached hereto) and other documents delivered at Closing pursuant
hereto, contains the entire understanding of the parties in respect of its
subject matters and supersedes all prior agreements
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and understandings (oral or written) between or among the parties with respect
to such subject matter. The Schedules and Exhibits constitute a part hereof as
though set forth in full above.
7.3 Expenses. Except as otherwise provided herein, the Seller shall pay
his own and the Acquired Entity's fees and expenses, including counsel fees
incurred in connection with this Agreement or any transaction contemplated
hereby. Brassie shall pay its own fees and expenses, including its own counsel
fees.
7.4 Amendment: Waiver. This Agreement may not be modified, amended,
supplemented, canceled, or discharged, except by written instrument executed by
all parties. No failure to exercise, and no delay in exercising, any right,
power or privilege under this Agreement shall operate as a waiver, nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
the exercise of any other right, power or privilege. No waiver of any breach of
any provision shall be deemed to be a waiver of any preceding or succeeding
breach of the same or any other provision, nor shall any waiver be implied from
any course of dealing between the parties. No extension of time for performance
of any obligations or other acts hereunder or under any other agreement shall be
deemed to be an extension of the time for performance of any other obligations
or any other acts.
7.5 Binding Effect: Assignment. The rights and obligations of this
Agreement shall bind and inure to the benefit of the parties and their
respective successors and assigns. Nothing expressed or implied herein shall be
construed to give any other person any legal or equitable rights hereunder.
Except as expressly provided herein, the rights and obligations of this
Agreement may not be assigned or delegated by the Acquired Entity or the Seller
without the prior written consent of Brassie. Brassie may assign all or any
portion of its rights hereunder to one or more of its wholly owned subsidiaries.
7.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one and the same instrument.
7.7 Interpretation. When a reference is made in this Agreement to an
article, section, paragraph, clause, schedule or exhibit, such reference shall
be deemed to be to this Agreement unless otherwise indicated. The headings
contained herein and on the schedules are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement or the
schedules. Whenever, the words "include," "includes," or "including" are used in
this Agreement they shall be deemed to be followed by the words "without
limitation." Time shall be of the essence in this Agreement.
7.8 Governing Law: Interpretation. This Agreement shall be
construed in accordance with and governed for all purposes by the laws of the
State of Florida applicable to contracts executed and to be wholly performed
within such State.
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7.9 Jurisdiction.
(a) The parties to this Agreement agree that any suit, action
or proceeding arising out of, or with respect to, this Agreement or any judgment
entered by any court in respect thereof shall be brought in either the state
court of Florida or in the U.S. District Court for Florida, and the parties
hereby irrevocably accept the exclusive personal jurisdiction of those courts
for the purpose of any suit, action or proceeding.
(b) In addition, Brassie, the Acquired Entity and the Seller
each hereby irrevocably waives, to the fullest extent permitted by law, any
objection which it or he may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement or any
judgment entered by any court in respect thereof brought in such jurisdiction
and hereby further irrevocably waives any claim that any suit, action or
proceedings brought in any such court has been brought in an inconvenient forum.
7.10 Arm's Length Negotiations. Each party herein expressly represents
and warrants to all other parties hereto that (a) before executing this
Agreement, said party has fully informed itself of the terms, contents,
conditions, and effects of this Agreement; (b) said party has relied solely and
completely upon its own judgment in executing this Agreement; (c) said party has
had the opportunity to seek and has obtained the advise of counsel before
executing this Agreement; (d) said party has acted voluntarily and of its own
free will in executing this Agreement; (e) said party is not acting under
duress, whether economic or physical, in executing this Agreement; and (f) this
Agreement is the result of arm's length negotiations conducted by and among the
parties and their respective counsel.
The parties hereto have caused this Agreement to be duly executed and
delivered as of the day and year first above written.
BRASSIE GOLF CORPORATION
By:
Jeremiah M. Daly, President
DIVOT GOLF CORPORATION
By:
Name: Joseph R. Cellura
Title: President
Joseph R. Cellura, Individually
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