sjsi13da_3113007.htm
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
13D/A
Under
the Securities Exchange Act of 1934
(Amendment
No. 3)*
ADAMS
GOLF, INC.
(Name
of
Issuer)
Common
Stock, $0.001 par value
(Title
of
Class Of Securities)
006228-10-0
(CUSIP
Number)
Linda
Crouch-McCreadie
Baker,
Donelson, Bearman, Caldwell & Berkowitz, PC
100
Med
Tech Parkway, Suite 200
Johnson
City, Tennessee 37602
(423)
928
0181
(Name,
Address and Telephone Numbers of Person
Authorized
to Receive Notices and Communications)
November
30, 2007
(Date
of
Event which Requires Filing of this Statement)
If
the filing person has previously
filed a statement on Schedule 13G to report the acquisition that is the subject
of this Schedule l3D, and is filing this schedule because of Rule 13d l(e),13d
l(f) or l3d-l(g), check the following box”o
Note.
Schedules
filed in paper format shall include a signed original and five copies of the
schedule, including all exhibits. See Rule 13d-7 for other parties to
whom copies are to be sent.
* The
remainder of this cover page shall be filled out for a reporting person’s
initial filing on this form with respect to the subject class of securities,
and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The
information required on the
remainder of this cover page shall not be deemed to be “filed” for the purpose
of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to
the
liabilities of that section of the Act but shall be subject to all other
provisions of the Act (however, see the Notes)
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CUSIP
No. 006228-10-0
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|
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1.
|
Names
of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
|
SJ
Strategic Investments LLC
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|
2.
|
Check
the Appropriate Box if a Member of
a Group (See Instructions)
|
(a)
(b) (x)
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|
3.
|
SEC
Use Only
|
|
|
4.
|
Source
of Funds (See Instructions)
|
WC
|
|
5.
|
Check
if Disclosure of Legal Proceedings is Required Pursuant to Items
2)d) or
2(e)
|
|
|
6.
|
Citizenship
or Place of Organization
|
United
States of America
|
|
Number
of Shares Beneficially Owned by Each Reporting Person With
|
7.
|
Sole
Voting Power
|
4,467,696
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|
8.
|
Shared
Voting Power
|
0
|
|
9.
|
Sole
Dispositive Power
|
4,467,696
|
|
10.
|
Shared
Dispositive Power
|
0
|
|
11.
|
Aggregate
Amount Beneficially Owned by Each Reporting Person
|
|
|
|
12.
|
Check
if the Aggregate Amount in Row(11) Excludes Certain Shares (See
Instructions)
|
|
|
|
13.
|
Percent
of Class Represented by Amount in Row (11)
|
|
18.12%
|
|
14.
|
Type
of Reporting Person (See Instructions)
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|
OO
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|
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CUSIP
No. 006228-10-0
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|
|
1.
|
Names
of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
|
John
M. Gregory
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|
2.
|
Check
the Appropriate Box if a Member of
a Group (See Instructions)
|
(a)
(b) (x)
|
|
3.
|
SEC
Use Only
|
|
|
4.
|
Source
of Funds (See Instructions)
|
OO
|
|
5.
|
Check
if Disclosure of Legal Proceedings is Required Pursuant to Items
2)d) or
2(e)
|
|
|
6.
|
Citizenship
or Place of Organization
|
United
States of America
|
|
Number
of Shares Beneficially Owned by Each Reporting Person With
|
7.
|
Sole
Voting Power
|
4,467,696
|
|
8.
|
Shared
Voting Power
|
0
|
|
9.
|
Sole
Dispositive Power
|
4,467,696
|
|
10.
|
Shared
Dispositive Power
|
0
|
|
11.
|
Aggregate
Amount Beneficially Owned by Each Reporting Person
|
|
|
|
12.
|
Check
if the Aggregate Amount in Row(11) Excludes Certain Shares (See
Instructions)
|
|
|
|
13.
|
Percent
of Class Represented by Amount in Row (11)
|
|
18.12%
|
|
14.
|
Type
of Reporting Person (See Instructions)
|
|
IN
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|
|
CUSIP
No. 006228-10-0
|
|
|
1.
|
Names
of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
|
Joan
P. Gregory
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|
2.
|
Check
the Appropriate Box if a Member
of
a Group (See Instructions)
|
(a)
(b) (x)
|
|
3.
|
SEC
Use Only
|
|
|
4.
|
Source
of Funds (See Instructions)
|
OO
|
|
5.
|
Check
if Disclosure of Legal Proceedings is Required Pursuant to Items
2)d) or
2(e)
|
|
|
6.
|
Citizenship
or Place of Organization
|
United
States of America
|
|
Number
of Shares Beneficially Owned by Each Reporting Person With
|
7.
|
Sole
Voting Power
|
4,467,696
|
|
8.
|
Shared
Voting Power
|
0
|
|
9.
|
Sole
Dispositive Power
|
4,467,696
|
|
10.
|
Shared
Dispositive Power
|
0
|
|
11.
|
Aggregate
Amount Beneficially Owned by Each Reporting Person
|
|
|
|
12.
|
Check
if the Aggregate Amount in Row(11) Excludes Certain Shares (See
Instructions)
|
|
|
|
13.
|
Percent
of Class Represented by Amount in Row (11)
|
|
18.12%
|
|
14.
|
Type
of Reporting Person (See Instructions)
|
|
IN
|
|
|
CUSIP
No. 006228-10-0
|
|
|
1.
|
Names
of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
|
Susan
Gregory
|
|
2.
|
Check
the Appropriate Box if a Member of
a Group (See Instructions)
|
(a)
(b) (x)
|
|
3.
|
SEC
Use Only
|
|
|
4.
|
Source
of Funds (See Instructions)
|
OO
|
|
5.
|
Check
if Disclosure of Legal Proceedings is Required Pursuant to Items
2)d) or
2(e)
|
|
|
6.
|
Citizenship
or Place of Organization
|
United
States of America
|
|
Number
of Shares Beneficially Owned by Each Reporting Person With
|
7.
|
Sole
Voting Power
|
4,467,696
|
|
8.
|
Shared
Voting Power
|
0
|
|
9.
|
Sole
Dispositive Power
|
4,467,696
|
|
10.
|
Shared
Dispositive Power
|
0
|
|
11.
|
Aggregate
Amount Beneficially Owned by Each Reporting Person
|
|
|
|
12.
|
Check
if the Aggregate Amount in Row(11) Excludes Certain Shares (See
Instructions)
|
|
|
|
13.
|
Percent
of Class Represented by Amount in Row (11)
|
|
18.12%
|
|
14.
|
Type
of Reporting Person (See Instructions)
|
|
IN
|
|
|
CUSIP
No. 006228-10-0
|
|
|
1.
|
Names
of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
|
James
M. Gregory
|
|
2.
|
Check
the Appropriate Box if a Member of
a Group (See Instructions)
|
(a)
(b) (x)
|
|
3.
|
SEC
Use Only
|
|
|
4.
|
Source
of Funds (See Instructions)
|
OO
|
|
5.
|
Check
if Disclosure of Legal Proceedings is Required Pursuant to Items
2)d) or
2(e)
|
|
|
6.
|
Citizenship
or Place of Organization
|
United
States of America
|
|
Number
of Shares Beneficially Owned by Each Reporting Person With
|
7.
|
Sole
Voting Power
|
4,467,696
|
|
8.
|
Shared
Voting Power
|
0
|
|
9.
|
Sole
Dispositive Power
|
4,467,696
|
|
10.
|
Shared
Dispositive Power
|
0
|
|
11.
|
Aggregate
Amount Beneficially Owned by Each Reporting Person
|
|
|
|
12.
|
Check
if the Aggregate Amount in Row(11) Excludes Certain Shares (See
Instructions)
|
|
|
|
13.
|
Percent
of Class Represented by Amount in Row (11)
|
|
18.12%
|
|
14.
|
Type
of Reporting Person (See Instructions)
|
|
IN
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|
|
CUSIP
No. 006228-10-0
|
|
|
1.
|
Names
of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
|
Joseph
R. Gregory
|
|
2.
|
Check
the Appropriate Box if a Member of
a Group (See Instructions)
|
(a)
(b) (x)
|
|
3.
|
SEC
Use Only
|
|
|
4.
|
Source
of Funds (See Instructions)
|
PF
|
|
5.
|
Check
if Disclosure of Legal Proceedings is Required Pursuant to Items
2)d) or
2(e)
|
|
|
6.
|
Citizenship
or Place of Organization
|
United
States of America
|
|
Number
of Shares Beneficially Owned by Each Reporting Person With
|
7.
|
Sole
Voting Power
|
4,478,694
|
|
8.
|
Shared
Voting Power
|
0
|
|
9.
|
Sole
Dispositive Power
|
4,478,694
|
|
10.
|
Shared
Dispositive Power
|
0
|
|
11.
|
Aggregate
Amount Beneficially Owned by Each Reporting Person
|
|
|
|
12.
|
Check
if the Aggregate Amount in Row(11) Excludes Certain Shares (See
Instructions)
|
|
|
|
13.
|
Percent
of Class Represented by Amount in Row (11)
|
|
18.16%
|
|
14.
|
Type
of Reporting Person (See Instructions)
|
|
IN
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This
Amendment to the Schedule 13D, filed previously on January 30, 2007, and amended
May 23, 2007 and November 6, 2007, relating to the Common Stock (as
defined below) of the Issuer (as defined below) is being filed to report the
acquisition of additional shares.
Item
1. Security
and Issuer
The
title
and class of equity securities to which this statement relates is the common
stock, $.001 par value (the "Common Stock") of Adams Golf, Inc. (the "Issuer").
The Issuer's principal executive offices are located at 300 Delaware Avenue,
Suite 572, Wilmington, Delaware 19801.
Item
2. Identity
and Background
(a)
Name:
This report is being filed by SJ Strategic Investments LLC, John M. Gregory,
Joan P. Gregory, husband and wife, Susan Gregory and James M. Gregory and
Joseph
R. Gregory (collectively, the "Reporting Persons"). SJ Strategic Investments
LLC
("SJSI") is a Tennessee limited liability company which has a principal business
of engaging in investment activities. The members of SJSI are John M. Gregory,
Joan P. Gregory, Susan Gregory and James M. Gregory. Susan Gregory and James
M.
Gregory are the children of John M. Gregory and Joan P. Gregory. Joseph R.
Gregory is a brother of John M. Gregory.
(b) Residence
or business address: The address for SJSI and its members is:
SJ
Strategic Investments LLC
340
Martin Luther King, Jr. Blvd., Suite 200
Bristol,
TN 37620
The
address for Joseph R. Gregory is:
Gregory
Management Co., LLC
620
Shelby Street
Bristol,
TN 37620
(c)
Present
Principal Occupation or Employment: John M. Gregory is the managing member
of
SJSI. Joan P. Gregory is a homemaker and is not presently employed in any
other
capacity. Susan Gregory is the Chief Investment Officer for SJSI. James M.
Gregory is a full time student. Joseph R. Gregory is the managing member
of
Gregory Management Co., LLC.
(d)
Criminal
Conviction: None of the Reporting Persons, during the last five years, has
been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e)
Court
or
Administrative Proceedings: None of the Reporting Persons, during the last
five
years, has been a party to a civil proceeding of a judicial or administrative
body of competent jurisdiction and as a result of such proceeding was or
is
subject to a judgment, decree or final order enjoining future violations
of, or
prohibiting or mandating activities subject to, federal or state securities
laws
or finding any violation with respect to such laws.
(f)
Citizenship:
All individuals are
citizens of the United States.
Item
3. Source and
Amount of Funds or Other Consideration:
The
securities acquired by SJSI and its members were acquired with working
capital
of SJSI. The aggregate purchase price of the additional securities acquired
by
SJSI and its members was approximately $1.6 million. The securities acquired
by
Joseph R. Gregory were acquired with personal funds. The aggregate purchase
price of the additional securities acquired by Joseph R. Gregory was
approximately $1.6 million.
Item
4. Purpose of Transaction
The
Reporting Persons have acquired the shares of Common Stock for investment
purposes and may acquire additional shares up to approximately 40% of
the Issuer's outstanding shares, or dispose of some or all of the shares
of
Common Stock, from time to time, depending upon price and market conditions,
evaluation of alternative investments and other factors including availability
of shares for purchase and compliance with the Issuer's insider trading
policies
and other rules and regulations pertaining to the purchase and sale
of
securities by affiliates of the Issuer. The Reporting Persons intend
to review
on a continuing basis their investment in the Common Stock, the Issuer's
business affairs and financial condition, as well as conditions in
the
securities markets and general economic and industry conditions.
Except
as
described in section (d) below, none of the Reporting Persons has any plan
or
proposal which relates to or which would result in:
(a)
The
acquisition by any person of additional securities of the issuer, or the
disposition of securities of the issuer;
(b)
An
extraordinary corporate transaction, such as a merger, reorganization or
liquidation, involving the issuer or any of its subsidiaries;
(c)
A
sale or
transfer of a material amount of assets of the issuer or any of its
subsidiaries;
(d)
Any
change in the present board of directors or management of the issuer, including
any plans or proposals to change the number or term of directors or to fill
any
existing vacancies on the board;
John
M. Gregory and
Joseph R. Gregory were appointed to the board of directors of the Issuer on
November 6, 2007.
(e)
Any
material change in the present capitalization or dividend policy of the
issuer;
(f)
Any
other
material change in the issuer's business or corporate structure including
but
not limited to, if the issuer is a registered closed-end investment company,
any
plans or proposals to make any changes in its investment policy for
which a vote is required by section 13 of the Investment Company Act of 1940;
(g)
Changes
in the issuer's charter, bylaws or instruments corresponding thereto or other
actions which may impede the acquisition of control of the issuer by any
person;
(h)
Causing
a
class of securities of the issuer to be delisted from a national securities
exchange or to cease to be authorized to be quoted in an inter-dealer quotation
system of a registered national securities association;
(i)
A
class
of equity securities of the issuer becoming eligible for termination of
registration pursuant to Section 12(g)(4) of the Act; or
(j)
Any
action similar to any of those enumerated above.
|
Item
5. Interest in Securities of the
Issuer.
|
| |
|
(a)
|
The
calculations in this Item are based on 24,660,813 shares of
Common Stock
issued and outstanding as of November 5, 2007 (based on
disclosures made by the Issuer in its quarterly report on Form
10-Q filed
on November 6, 2007. As of the date hereof, the Reporting
Persons beneficially owned 8,946,390 shares or 36.28 percent of the
outstanding shares of the outstanding Common Stock. The foregoing
calculation is made pursuant to Rule 13d-3 promulgated under
the
Act.
However,
the foregoing should not be construed
as an admission by SJSI, John M. Gregory, Joan P. Gregory,
Susan Gregory
or James M. Gregory that, for purposes of Section
13(d)
or 13(g) of the Act, they are the
beneficial owners of shares held by Joseph R. Gregory. Similarly,
the foregoing should not be considered an admission by Joseph
R. Gregory
that, for purposes of Section 13(d) or 13(g) of the Act, he is the
benefical owner of shares held by the other Reporting
Persons.
|
| |
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(b)
|
SJSI
has the sole power to vote or direct the vote of 4,467,696 shares and
the sole power to dispose or direct the disposition of 4,467,696
shares. Because John M. Gregory controls all of the voting
interests of
SJSI with respect to the securities, he may be deemed to have
the sole
power to vote and direct the vote of the 4,467,696 shares and the
sole power to dispose and direct the disposition of 4,467,696 shares.
Neither Joan P. Gregory, Susan Gregory nor James M. Gregory
presently have
the power to dispose, direct the disposition, vote or direct
the vote of
shares of Common Stock held by SJSI. However, they may be deemed
to
indirectly beneficially own shares of Common Stock of the Issuer
held by
SJSI due to their financial interests in SJSI. Joseph R. Gregory
has the
sole power to vote or direct the vote of 4,478,694 shares and the
sole power to dispose or direct the disposition of 4,478,694
shares.
|
| |
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(c)
|
During
the 60 day period ended as of the date hereof, the Reporting
Persons have
engaged in the following transaction, with the purchase having
been made
for cash.
|
| |
|
Transaction
Date
|
Shares
or Units
Purchased
(Sold)
|
Price
per
Share
or Unit
|
|
November
29, 2007
|
230,000
|
$2.25
|
|
November
30, 2007
|
1,216,509
|
$2.25
|
|
(d)
|
The
Reporting Persons affirm that no other person has the right
to receive or
the power to direct the receipt of dividends from, or the
proceeds from
the sale of, the shares of the Issuer's Common Stock beneficially
owned by
the Reporting Persons.
|
Item
6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
The Reporting Persons do not have any contract, arrangement, understandings,
or
relationships with respect to securities of the Issuer.
Item
7. Material to be Filed as Exhibits.
Exhibit
1 - Letter Agreement by and between SJ
Strategic Investments LLC and B.H. (Barney) Adams.
Exhibit
2 - Letter Agreement by and between Joseph R.
Gregory and B.H. (Barney) Adams.
Exhibit
3
- Stock Purchase Agreement by and between Joseph R. Gregory and ADGO
Investments, LLC, Richard L. Scott Revocable Trust and F. Arnette
Scott
Revocable Trust.
Exhibit
4
- Stock Purchase Agreement by and between SJ Strategic Investments
LLC
and ADGO Investments, LLC, Richard L. Scott Revocable Trust and F. Arnette
Scott Revocable Trust.
SIGNATURES
After
reasonable inquiry and to the
best of my knowledge and belief, I certify that the information set forth in
this statement is true, complete and correct.
Date: December
3,
2007 /s/
John M. Gregory
John
M.
Gregory
/s/
Joan P. Gregory
Joan P. Gregory
/s/
Susan Gregory
Susan Gregory
/s/
James M.
Gregory
James M. Gregory
/s/ Joseph R. Gregory
Joseph R. Gregory
SJ
Strategic
Investments LLC
By:
/s/ John M.
Gregory
John
M.
Gregory
Its:
Managing
Member
EXHIBIT
1
November
29, 2007
B.H.
(Barney) Adams
c/o
Adams
Golf, Inc.
2801
E.
Plano Parkway
Plano,
Texas 75074
The
undersigned (the “Investor”) hereby agrees to acquire from B.H.
(Barney) Adams (the “Seller”) the number of shares of Common
Stock, $0.001 par value per share, of Adams Golf, Inc., a Delaware corporation
(the “Issuer”), contemplated by the signature page hereto (the
“Securities”) for the consideration indicated on
the signature
page hereto. To induce the Seller to sell, and in connection with the
sale by the Seller of, the Securities to the Investor (the
“Sale”), the Investor made and makes, as applicable, the
following representations, warranties, and agreements to and with the Seller,
as
applicable, on and as of the date hereof and at and as of the time of the
Sale
to the same extent and with the same effect as if made at and as of the time
of
the Sale:
The
Investor is acquiring the Securities for the account of the Investor (and
not
for the account of any other person) for investment and not with a view to,
or
in connection with, any offer, sale, distribution, division, or disposition
of
the Securities in violation of the Securities Act of 1933, as amended (the
“Securities Act”), the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), or any other applicable law,
rule, or regulation (collectively, with the Securities Act and the Exchange
Act,
the “Law”). The Investor (i) is not acquiring,
offering, selling, or otherwise disposing for the Seller, the Issuer, or
any
person or otherwise in connection with any distribution of the Securities,
(ii)
does and shall not participate or have a direct or indirect participation
in any
such undertaking, and (iii) does and shall not participate or have a
participation in the direct or indirect underwriting of such an undertaking,
in
any case, in violation of the Law.
The
Investor is an “accredited investor” (as defined in Rule 501 under the
Securities Act) and able to bear the economic risk of the Securities and
has
such knowledge and experience in financial and business matters that the
Investor is capable of evaluating the merits and risks of an investment in
the
Securities.
At
a
reasonable time prior to the Sale, the Seller (i) furnished to the Investor
all
information that the Investor considers necessary, adequate, appropriate,
and/or
material to an understanding of the Issuer, the business, financial condition,
and results of operations of the Issuer, and the Securities and otherwise
in
connection with the Sale, (ii) made available to the Investor the opportunity
to
ask questions and receive answers concerning the Sale and to obtain any
additional information which the Seller possessed or could acquire without
unreasonable effort or expense that is necessary to verify the accuracy of
information furnished to Investor, and (iii) provided written disclosure
to, and
advised, the Investor of the limitations on resale of the Securities and
that
the Securities are restricted securities, have not been registered under
the
Securities Act and, therefore, cannot be resold unless they are registered
under
the Securities Act or unless an exemption from registration is available.
Stop-transfer orders may be issued with
respect to the Securities and legends may be placed on the certificate(s)
and
other document(s) that evidence(s) the Securities stating that the Securities
have not been registered under the Securities Act and setting forth or referring
to the restrictions on transferability and sale of the
Securities. Neither the Seller, the Issuer, nor any person acting on
behalf of the Seller or the Issuer solicited buy orders from the Investor
or
offered or sold the Securities to the Investor by any form of general
solicitation or general advertising.
The
Seller may have been and be or come to be an affiliate of the Issuer and
have
been and be or come to be aware of, and may have possessed and possess or
come
to possess, material nonpublic information (the “Information”)
about the Securities and the Issuer as of the Sale and such information could
be
material to an investment decision to purchase the Securities. The
Seller may (i) owe a duty of trust or confidence directly, indirectly, or
derivatively to the Issuer or the stockholders of the Issuer, or to any other
person who is the source of the Information and (ii) not have been or be
permitted to, and may not, have disclosed, furnished, or made available or
disclose, furnish, or make available the Information to the
Investor.
The
Investor has, on the basis of such information as the Investor deems necessary,
adequate, appropriate, and/or material, (i) independently investigated and
evaluated the Issuer, the Securities, and the merits and risks and value
of an
investment in the Securities without any reliance on the Seller, the Issuer,
or
any other person, (ii) decided not to require, request, or expect the Seller
to
disclose, furnish, or make available the Information to the Investor, and
(iii)
decided to purchase the Securities. The Investor expressly waives any
and all claims of reliance, and any duty, including any fiduciary duty, owed
by
the Seller or the Issuer, if any, in connection with or relating to the
Sale.
Remainder
of Page Intentionally Left Blank.
Signature
Page(s) to Follow.
IN
WITNESS WHEREOF, the undersigned has
caused this Investment Representation Letter Agreement to be executed and
effective as of the date first written above.
Shares
of Common
Stock: 115,000
Consideration: $258,750
($2.25 per share)
INVESTOR:
SJ
Strategic
Investments LLC
By: /s/ Gregory
J.
Tebeau
Name: Gregory
J.
Tebeau
Title: Chief
Financial
Officer
Signature
Page to Investment Representation Letter Agreement.
The
Seller hereby represents and warrants that (i) he owns all right, title and
interest in and to the Securities, free and clear of all liens, claims, charges,
security interests, options, encumbrances, or restrictions whatsoever, except
for restrictions imposed by applicable federal and state securities laws,
(ii)
he has the right, power and capacity to consummate the transactions contemplated
hereby, (iii) the consummation of the transactions contemplated hereby will
not,
with or without the giving of notice or the lapse of time, or both, (a) violate
any agreement to which the Seller is a party or by which the Seller is bound,
(b) violate any provision of law, statute, rule or regulation to which the
Seller is subject, (c) violate any order, judgment or decree applicable to
the
Seller, or (iv) result in the imposition of any lien, claim, charge, security
interest, option, encumbrance, or other restriction on the Securities. The
Seller hereby covenants and agrees that he will attempt reasonably and in
good
faith to take, or cause to be taken, all actions reasonably within his control
that are necessary, proper or advisable under applicable laws and regulations
to
consummate the transactions contemplated herein. This Investment
Representation Letter Agreement may be executed in one or more counterparts,
each of which shall for all purposes be deemed an original and all of which
shall constitute the same instrument.
AGREED
AND ACCEPTED:
/s/
B.H.
Adams
B.H.
Adams
Exhibit
2
November
29, 2007
B.H.
(Barney) Adams
c/o
Adams
Golf, Inc.
2801
E.
Plano Parkway
Plano,
Texas 75074
The
undersigned (the “Investor”) hereby agrees to acquire from B.H.
(Barney) Adams (the “Seller”) the number of shares of Common
Stock, $0.001 par value per share, of Adams Golf, Inc., a Delaware corporation
(the “Issuer”), contemplated by the signature page hereto (the
“Securities”) for the consideration indicated on
the signature
page hereto. To induce the Seller to sell, and in connection with the
sale by the Seller of, the Securities to the Investor (the
“Sale”), the Investor made and makes, as applicable, the
following representations, warranties, and agreements to and with the Seller,
as
applicable, on and as of the date hereof and at and as of the time of the
Sale
to the same extent and with the same effect as if made at and as of the time
of
the Sale:
The
Investor is acquiring the Securities for the account of the Investor (and
not
for the account of any other person) for investment and not with a view to,
or
in connection with, any offer, sale, distribution, division, or disposition
of
the Securities in violation of the Securities Act of 1933, as amended (the
“Securities Act”), the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), or any other applicable law,
rule, or regulation (collectively, with the Securities Act and the Exchange
Act,
the “Law”). The Investor (i) is not acquiring,
offering, selling, or otherwise disposing for the Seller, the Issuer, or
any
person or otherwise in connection with any distribution of the Securities,
(ii)
does and shall not participate or have a direct or indirect participation
in any
such undertaking, and (iii) does and shall not participate or have a
participation in the direct or indirect underwriting of such an undertaking,
in
any case, in violation of the Law.
The
Investor is an “accredited investor” (as defined in Rule 501 under the
Securities Act) and able to bear the economic risk of the Securities and
has
such knowledge and experience in financial and business matters that the
Investor is capable of evaluating the merits and risks of an investment in
the
Securities.
At
a
reasonable time prior to the Sale, the Seller (i) furnished to the Investor
all
information that the Investor considers necessary, adequate, appropriate,
and/or
material to an understanding of the Issuer, the business, financial condition,
and results of operations of the Issuer, and the Securities and otherwise
in
connection with the Sale, (ii) made available to the Investor the opportunity
to
ask questions and receive answers concerning the Sale and to obtain any
additional information which the Seller possessed or could acquire without
unreasonable effort or expense that is necessary to verify the accuracy of
information furnished to Investor, and (iii) provided written disclosure
to, and
advised, the Investor of the limitations on resale of the Securities and
that
the Securities are restricted securities, have not been registered under
the
Securities Act and, therefore, cannot be resold unless they are registered
under
the Securities Act or unless an exemption from registration is available.
Stop-transfer orders may be issued with
respect to the Securities and legends may be placed on the certificate(s)
and
other document(s) that evidence(s) the Securities stating that the Securities
have not been registered under the Securities Act and setting forth or referring
to the restrictions on transferability and sale of the
Securities. Neither the Seller, the Issuer, nor any person acting on
behalf of the Seller or the Issuer solicited buy orders from the Investor
or
offered or sold the Securities to the Investor by any form of general
solicitation or general advertising.
The
Seller may have been and be or come to be an affiliate of the Issuer and
have
been and be or come to be aware of, and may have possessed and possess or
come
to possess, material nonpublic information (the “Information”)
about the Securities and the Issuer as of the Sale and such information could
be
material to an investment decision to purchase the Securities. The
Seller may (i) owe a duty of trust or confidence directly, indirectly, or
derivatively to the Issuer or the stockholders of the Issuer, or to any other
person who is the source of the Information and (ii) not have been or be
permitted to, and may not, have disclosed, furnished, or made available or
disclose, furnish, or make available the Information to the
Investor.
The
Investor has, on the basis of such information as the Investor deems necessary,
adequate, appropriate, and/or material, (i) independently investigated and
evaluated the Issuer, the Securities, and the merits and risks and value
of an
investment in the Securities without any reliance on the Seller, the Issuer,
or
any other person, (ii) decided not to require, request, or expect the Seller
to
disclose, furnish, or make available the Information to the Investor, and
(iii)
decided to purchase the Securities. The Investor expressly waives any
and all claims of reliance, and any duty, including any fiduciary duty, owed
by
the Seller or the Issuer, if any, in connection with or relating to the
Sale.
Remainder
of Page Intentionally Left Blank.
Signature
Page(s) to Follow.
IN
WITNESS WHEREOF, the undersigned has
caused this Investment Representation Letter Agreement to be executed and
effective as of the date first written above.
Shares
of Common
Stock: 115,000
Consideration: $258,750
($2.25 per share)
INVESTOR:
/s/
Joseph R.
Gregory
Joseph
R. Gregory
Signature
Page to Investment Representation Letter Agreement.
The
Seller hereby represents and warrants that (i) he owns all right, title and
interest in and to the Securities, free and clear of all liens, claims, charges,
security interests, options, encumbrances, or restrictions whatsoever, except
for restrictions imposed by applicable federal and state securities laws,
(ii)
he has the right, power and capacity to consummate the transactions contemplated
hereby, (iii) the consummation of the transactions contemplated hereby will
not,
with or without the giving of notice or the lapse of time, or both, (a) violate
any agreement to which the Seller is a party or by which the Seller is bound,
(b) violate any provision of law, statute, rule or regulation to which the
Seller is subject, (c) violate any order, judgment or decree applicable to
the
Seller, or (iv) result in the imposition of any lien, claim, charge, security
interest, option, encumbrance, or other restriction on the Securities. The
Seller hereby covenants and agrees that he will attempt reasonably and in
good
faith to take, or cause to be taken, all actions reasonably within his control
that are necessary, proper or advisable under applicable laws and regulations
to
consummate the transactions contemplated herein. This Investment
Representation Letter Agreement may be executed in one or more counterparts,
each of which shall for all purposes be deemed an original and all of which
shall constitute the same instrument.
AGREED
AND ACCEPTED:
/s/
B.H.
Adams
B.H.
Adams
Exhibit
3
STOCK
PURCHASE AGREEMENT
THIS
STOCK PURCHASE AGREEMENT (this
“Agreement”) is made and entered into this 30th day of November, 2007 (the
“Agreement Date”) by and between Joseph R. Gregory, (the “Buyer”), ADGO Investments, LLC
(“ADGO”), a Delaware limited
liability company, Richard L. Scott Revocable Trust (“Scott Trust”), and F.
Annette Scott Revocable Trust (“Ann Trust”) (collective, ADGO, Scott Trust and
Ann Trust are referred to herein as the “Sellers” and each individually as a
“Seller”).
Statement
of Purpose
The
Sellers desire to sell to the
Buyer, and the Buyer desires to buy from the Sellers, an aggregate of 608,254
shares (the “Shares”) of the Common Stock, $.001 par value (the “Common Stock”),
of Adams Golf, Inc., a Delaware corporation (the “Company”), at a price of $2.25
per share, on the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the
Statement of Purpose and other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as
follows:
ARTICLE
I
PURCHASE
AND SALE OF SHARES
1.1 Purchase
and Sale of Common Stock. The Sellers hereby agree to sell,
assign, transfer and deliver the Shares to the Buyer and the Buyer hereby agrees
to purchase and acquire the Shares for consideration of Two and 25/100 Dollars
($2.25) per Share or an aggregate of One Million Three Hundred Sixty Eight
Thousand Five Hundred Seventy One and 50/100 Dollars ($1,368,571.50) (the
“Purchase Price”). The Purchase Price shall be paid by the Buyer by
wiring such amount, in immediately available funds, to the Sellers in accordance
with the instructions on Annex I hereto, upon execution hereof against delivery
to the Buyer of the stock certificates, and accompanying stock powers, for
the
Shares.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE SELLERS
The
Sellers hereby severally represent
and warrant to the Buyer as follows:
2.1 Title. The
Sellers own all right, title, and interest in and to the Shares, free and clear
of all liens, claims, charges, security interests, options, encumbrances, or
restrictions whatsoever, except for restrictions imposed by applicable federal
and state securities laws.
2.2 Power
and Authority. The Sellers have the right, power and capacity to
execute, deliver and perform this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly
executed and delivered by each Seller, constitutes the legal, valid and binding
obligation of each Seller and is enforceable against him in accordance with
its
provisions, except to the extent limited by bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting creditors' rights
generally or by general principles of equity. The execution, delivery
and performance by each Seller of this Agreement and the consummation of the
transactions contemplated hereby will not, with or without the giving of notice
or the lapse of time, or both, (i) violate any agreement to which a Seller
is a
party or by which a Seller is bound, (ii) violate any provision of law, statute,
rule or regulation to which a Seller is subject, (iii) violate any order,
judgment or decree applicable to a Seller, or (iv) result in the imposition
of
any lien, claim, charge, security interest, option, encumbrance, or other
restriction on the Shares.
2.3 No
Broker’s Fees. The Sellers have not authorized any person to act
as broker, finder or in any other similar capacity in connection with the
transactions contemplated by this Agreement.
2.4 Consents
and Approvals. To the actual knowledge of the Sellers, no
consent, approval, authorization of or declaration, filing, registration, or
similar action with any third party or any federal, state, county, local,
foreign or other governmental, public or regulatory agencies, authorities
(including self-regulatory authorities), courts, instrumentalities, commissions,
boards or bodies (each, a “Regulatory Authority”) having jurisdiction over the
Sellers is required in connection with the execution, delivery, and performance
by the Sellers of this Agreement or the consummation of the transactions
contemplated hereby.
2.5 Litigation. There
is no litigation, suit, proceeding, arbitration, or similar action pending
or
overtly threatened against the Sellers in respect of the consummation of the
transactions contemplated hereby.
2.6 “Big
Boy” Provision.
(a) The
Sellers hereby
acknowledge that the Buyer possesses, or may come to possess, material,
non-public information about the Company which is not known to the Sellers
and
which may be material to a decision to sell the Shares, including without
limitation, information received on a confidential basis (the “Information”),
and that the Sellers wish to proceed with the transactions contemplated hereby
without disclosure to the Sellers of such Information by the
Buyer. The Sellers also hereby acknowledge and agree that the Buyer
shall not have any obligation to disclose any of such Information to the
Sellers.
(b) The
Sellers further
acknowledge, agree and represent that they have adequate information concerning
the business and financial condition of the Company to make an informed
decision regarding the sale of the Sellers’ Shares and have independently and
without reliance upon either the Buyer or its agents
made
their own analysis and decision to sell, or cause the sale of, the Sellers’
Shares. The Buyer shall have no liability to the Sellers and the Sellers hereby
waive, release, acquit and forever discharge, to the fullest extent permitted
by
law, any and all claims and causes of action they have or may have as of the
Closing Date against the
Buyer and/or its respective employees, representatives and agents (collectively,
“Related Persons”), relating either directly or indirectly or arising out of
Buyer not disclosing the Information, including, without limitation, any claims
of detrimental reliance on such non-disclosure of the Information, the financial
condition or prospects of the Company or the value of the Shares.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE BUYER
The
Buyer hereby represents and
warrants to the Sellers as follows:
3.1 Authorization. The
Buyer is at least 21 years of age, has adequate means of providing for all
of
his current and foreseeable needs and personal contingencies and has no need
for
liquidity in this investment. The Buyer has the right, power and
capacity to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly and
validly executed and delivered by the Buyer, constitutes the legal, valid and
binding obligation of the Buyer and is enforceable against him in accordance
with its provisions, except to the extent limited by bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting creditors' rights
generally or by general principles of equity. The execution, delivery
and performance by the Buyer of this Agreement and the consummation of the
transactions contemplated hereby will not, with or without the giving of notice
or the lapse of time, or both, (i) conflict with, violate, or result in a breach
or acceleration of any of the terms or provisions of any agreement to which
the
Buyer is a party or by which the Buyer is bound, (ii) violate any provision
of
law, statute, rule or regulation to which the Buyer is subject or (iii) violate
any order, judgment or decree applicable to the Buyer.
3.3 Exemption
from Securities Registration. The Buyer understands that the
Shares are not registered under Securities Act of 1933, as amended (the
“Securities Act”), the Tennessee Securities Act of 1980, as amended (the
“Tennessee Act”), or other applicable state securities laws on the grounds that
the sale provided for in this Agreement is exempt from registration under the
Securities Act, the Tennessee Act and other applicable state securities
laws. The Buyer is acquiring the Shares for its own account, for
investment purposes only, and not with a view towards their distribution within
the meaning of Section 2(a)(11) of the Securities Act in any manner that would
be in violation of the Securities Act. The Buyer has had reasonable
access to, and has had sufficient opportunity to carefully review and analyze,
all material information about the Company’s business, financial condition,
operations and value that the Buyer believes to be relevant to its purchase
of
the Shares. The Buyer is an “accredited investor” within the meaning
of Securities and Exchange Commission Rule 501(a) and is sophisticated and
experienced in evaluating the merits and risks involving an investment in the
Company’s securities and the particulars of the purchase of the
Shares. The Buyer has the ability to bear the economic risks of its
purchase of the Shares and has been able to obtain all information and to ask
and receive satisfactory answers to all questions required in making an informed
decision regarding its investment in the Company. The foregoing,
however, does not limit or modify the representations and warranties of the
Sellers in Section 2 of this Agreement or the right of the Buyer to rely
thereon.
3.4 Restrictions
on Resale. The Buyer understands that the Shares may not be sold,
transferred or otherwise disposed of without registration under the Securities
Act and applicable state securities laws or an exemption therefrom, and that
in
the absence of an effective registration statement covering the Shares or an
available exemption from registration under the Securities Act and applicable
state securities laws, the Shares must be held indefinitely.
3.5 No
Brokers’ Fees. The Buyer has not authorized any person to act as
broker, finder or in any other similar capacity in connection with the
transactions contemplated by this Agreement.
3.6 Consents
and Approvals. No consent, approval, authorization of or
declaration, filing, registration or similar action with any third party or
any
Regulatory Authority having jurisdiction over the Buyer is required in
connection with the execution, delivery, and performance by the Buyer of this
Agreement or the consummation of the transactions contemplated
hereby.
3.7 Litigation. There
is no litigation, suit, proceeding, arbitration, or similar action pending
or
overtly threatened, against the Buyer in respect of the consummation of the
transactions contemplated hereby.
ARTICLE
IV
ADDITIONAL
COVENANTS OF THE PARTIES
The
Sellers and the Buyer hereby covenant to and agree with one another that,
subject to the terms and conditions herein provided, each will attempt
reasonably and in good faith to take, or cause to be taken, all actions
reasonably within their control that are necessary, proper or advisable under
applicable laws and regulations to consummate the transactions contemplated
by
this Agreement.
ARTICLE
V
INDEMNIFICATION
5.1 Indemnification.
(a) Except
as otherwise provided, the Sellers agree to indemnify and reimburse the Buyer,
its successors and assigns, and their respective officers, managers,
members, employees, agents and other related persons (the “Buyer Protected
Parties”) for any and all liabilities, damages (including fines, penalties and
civil or criminal judgments or settlements), costs (including court costs)
and
expenses (including reasonable attorneys’ fees and disbursements) (collectively,
“Loss” or “Losses”) incurred directly as a result of any breach of any
representation, warranty, covenant or agreement made by the Sellers in this
Agreement.
(b) Except
as otherwise provided, the Buyer agrees to indemnify and reimburse the Sellers,
their successors and assigns, and their respective officers, managers,
members, employees, agents and other related persons (the “Seller Protected
Parties,” and together with the Buyer Protected Parties, the “Protected
Parties”) for any and all Losses incurred directly as a result of any breach of
any representation, warranty, covenant or agreement made by the Buyer in this
Agreement.
5.2 Notice
of Claim. A Protected Party shall promptly notify the Sellers or
Buyer, as applicable, in writing of any claim for recovery, specifying in
reasonable detail the nature and date of the Loss, and, if known, the amount,
or
an estimate of the amount, of the liability arising therefrom. The
Protected Party shall provide to the Sellers or Buyer, as applicable, as
promptly as practicable thereafter information and documentation reasonably
requested by the Sellers or Buyer, as applicable, to support and verify the
claim asserted, provided
that the failure to give such prompt notice shall not affect the
Sellers’ or Buyer's, as applicable, obligation to indemnify a Protected
Party absent a showing of actual prejudice to the Sellers or Buyer, as
applicable. The Sellers and Buyer, as applicable, shall promptly and
fully reimburse the Protected Party to the fullest extent of the Loss following
receipt of such claim, but in no event more than thirty (30) days from the
receipt thereof, time being of the essence.
ARTICLE
VI
MISCELLANEOUS
6.1 Notices. Any
notice, request, instruction or other document to be given hereunder by any
party hereto to any other party hereto shall be in writing and delivered
personally or sent by registered or certified mail, return receipt requested,
postage prepaid:
| if
to the Sellers to: |
c/o
Richard L. Scott Investments, LLC |
| |
28
West 44th
Street, Suite 1111 |
| |
New
York, NY 10036 |
| |
Fax: (212) 398-2033 |
|
if to the Buyer to: |
Gregory
Management Co., LLC |
| |
Attn: Michael S. McKinney, Esq. |
| |
620 Shelby Street |
| |
Bristol, Tennessee 37620 |
| |
Fax: (423) 793-0129 |
or
at
such other address for a party as shall be specified by like
notice. Any notice which is delivered personally in the manner
provided herein shall be deemed to have been duly given to the party to whom
it
is directed upon actual receipt by such party (or its agent for notices
hereunder).
6.2 Further
Cooperation. From and after the Agreement Date, the parties will
each take all such action and deliver all such documents as shall be reasonably
necessary or appropriate to confirm and vest title to the Shares in the Buyer
and otherwise to enable the Buyer to enjoy the benefits contemplated by this
Agreement.
6.3 Entire
Agreement. This Agreement constitutes the sole understanding of
the parties with respect to the subject matter hereof. No amendment,
modification or alteration of the terms or provisions of this Agreement shall
be
binding unless the same shall be in writing and duly executed by the parties
hereto.
6.4 Waiver. Any
of the terms or conditions of this Agreement may be waived in writing at any
time by the party which is entitled to the benefits thereof. No
waiver of any of the provisions of this Agreement shall be deemed to or shall
constitute a waiver of any other provision hereof (whether or not
similar).
6.5 Expenses. The
Sellers and the Buyer shall each pay all costs and expenses incurred by it
or on
its behalf in connection with this Agreement and the transactions contemplated
hereby, including fees and expenses of its own financial consultants,
accountants and counsel.
6.6 Governing
Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of New York without giving effect to its
conflicts of law principles.
6.7 Attorneys’
Fees. In the event a party fails to perform, does not fully
perform or otherwise breaches its obligations under this Agreement, the
breaching party shall pay the reasonable attorneys’ fees, costs and expenses of
the non-breaching party resulting from such breach or failure.
6.8 No
Third-Party Beneficiaries. With the exception of the parties to
this Agreement, there shall exist no right of any person other than the Company
to claim a beneficial interest in this Agreement or any rights occurring by
virtue of this Agreement.
6.9
Successors and Assigns. The terms, conditions and obligations
of this Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties hereto. Neither the
Sellers nor the Buyer may assign its rights, duties or obligations hereunder
or
any part thereof to any other person or entity without the prior written consent
of the other party hereto.
6.10 Severability. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
6.11 Headings. The
headings of the Sections and paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement
or
to affect the construction hereof.
6.12 Construction. Words
of inclusion shall not be construed as terms of limitation herein, so that
references to “included” matters shall be regarded as nonexclusive,
noncharacterizing illustrations. The parties hereto acknowledge and
agree that (i) each party hereto and its counsel have reviewed the terms and
provisions of this Agreement and have contributed to its revision, (ii) the
normal rule of construction, to the effect that any ambiguities are resolved
against the drafting party, shall not be employed in the interpretation of
it,
and (iii) the terms and provisions of this Agreement shall be constructed fairly
as to all parties hereto and not in favor or against any party, regardless
of
which party was generally responsible for the preparation of this
Agreement.
6.13 References. Whenever
reference is made in this Agreement to any Article or Section, such reference
shall be deemed to apply to the specified Article or Section of this
Agreement.
6.14 Counterparts;
Facsimile. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument. Facsimile
copies of signatures hereto or e-mail of a PDF file containing a copy of an
executed agreement (or signature page thereto) shall be deemed as effective
as
originals.
[signatures
on following page]
IN
WITNESS WHEREOF, each of the parties
hereto has caused this Agreement to be executed by an authorized representative
as of the day and year first above written.
|
“SELLERS”
RICHARD
L. SCOTT REVOCABLE TRUST
By:
/s/ Richard L.
Scott
Name:
Richard L. Scott
Title:
Trustee
F. ANNETTE
SCOTT REVOCABLE TRUST
By:
/s/ F. Annette
Scott
Name:
F.
Annette Scott
Title:
Trustee
ADGO
INVESTMENTS, LLC
By:
/s/Richard L.
Scott
Name:
Richard L. Scott
Title:
Managing Member
|
“BUYER”
/s/Joseph
R. Gregory
Joseph
R. Gregory
|
Exhibit
4
STOCK
PURCHASE AGREEMENT
THIS
STOCK PURCHASE AGREEMENT (this
“Agreement”) is made and entered into this 30th day of November, 2007 (the
“Agreement Date”) by and between SJ Strategic Investments, LLC,
a Tennessee limited liability company, located at 340 Martin Luther King,
Jr.
Boulevard, Suite 200, Bristol, Tennessee 37620 (the “Buyer”), ADGO Investments,
LLC
(“ADGO”), a Delaware limited liability company, Richard L. Scott
Revocable Trust (“Scott Trust”), and F. Annette Scott Revocable
Trust (“Ann Trust”) (collective, ADGO, Scott Trust and Ann Trust are
referred to herein as the “Sellers” and each individually as a
“Seller”).
Statement
of Purpose
The
Sellers desire to sell to the
Buyer, and the Buyer desires to buy from the Sellers, an aggregate of 608,255
shares (the “Shares”) of the Common Stock, $.001 par value (the “Common Stock”),
of Adams Golf, Inc., a Delaware corporation (the “Company”), at a price of $2.25
per share, on the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the
Statement of Purpose and other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as
follows:
ARTICLE
I
PURCHASE
AND SALE OF SHARES
1.1 Purchase
and Sale of Common Stock. The Sellers hereby agree to sell,
assign, transfer and deliver the Shares to the Buyer and the Buyer hereby
agrees
to purchase and acquire the Shares for consideration of Two and 25/100 Dollars
($2.25) per Share or an aggregate of One Million Three Hundred Sixty Eight
Thousand Five Hundred Seventy Three and 75/100 Dollars ($1,368,573.75) (the
“Purchase Price”). The Purchase Price shall be paid by the Buyer by
wiring such amount, in immediately available funds, to the Sellers in accordance
with the instructions on Annex I hereto, upon execution hereof against delivery
to the Buyer of the stock certificates, and accompanying stock powers, for
the
Shares.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE SELLERS
The
Sellers hereby severally represent
and warrant to the Buyer as follows:
2.1 Title. The
Sellers own all right, title, and interest in and to the Shares, free and
clear
of all liens, claims, charges, security interests, options, encumbrances,
or
restrictions whatsoever, except for restrictions imposed by applicable federal
and state securities laws.
2.2 Power
and Authority. The Sellers have the right, power and capacity to
execute, deliver and perform this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly
executed and delivered by each Seller, constitutes the legal, valid and binding
obligation of each Seller and is enforceable against him in accordance with
its
provisions, except to the extent limited by bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting creditors' rights
generally or by general principles of equity. The execution, delivery
and performance by each Seller of this Agreement and the consummation of
the
transactions contemplated hereby will not, with or without the giving of
notice
or the lapse of time, or both, (i) violate any agreement to which a Seller
is a
party or by which a Seller is bound, (ii) violate any provision of law, statute,
rule or regulation to which a Seller is subject, (iii) violate any order,
judgment or decree applicable to a Seller, or (iv) result in the imposition
of
any lien, claim, charge, security interest, option, encumbrance, or other
restriction on the Shares.
2.3 No
Broker’s Fees. The Sellers have not authorized any person to act
as broker, finder or in any other similar capacity in connection with the
transactions contemplated by this Agreement.
2.4 Consents
and Approvals. To the actual knowledge of the Sellers, no
consent, approval, authorization of or declaration, filing, registration,
or
similar action with any third party or any federal, state, county, local,
foreign or other governmental, public or regulatory agencies, authorities
(including self-regulatory authorities), courts, instrumentalities, commissions,
boards or bodies (each, a “Regulatory Authority”) having jurisdiction over the
Sellers is required in connection with the execution, delivery, and performance
by the Sellers of this Agreement or the consummation of the transactions
contemplated hereby.
2.5 Litigation. There
is no litigation, suit, proceeding, arbitration, or similar action pending
or
overtly threatened against the Sellers in respect of the consummation of
the
transactions contemplated hereby.
2.6 “Big
Boy” Provision.
(a) The
Sellers hereby
acknowledge that the Buyer possesses, or may come to possess, material,
non-public information about the Company which is not known to the Sellers
and
which may be material to a decision to sell the Shares, including without
limitation, information received on a confidential basis (the “Information”),
and that the Sellers wish to proceed with the transactions contemplated hereby
without disclosure to the Sellers of such Information by the
Buyer. The Sellers also hereby acknowledge and agree that the Buyer
shall not have any obligation to disclose any of such Information to the
Sellers.
(b) The
Sellers further
acknowledge, agree and represent that they have adequate information concerning
the business and financial condition of the Company to make an informed
decision regarding the sale of the Sellers’ Shares and have independently and
without reliance upon either the Buyer or its agents
made
their own analysis and decision to sell, or cause the sale of, the Sellers’
Shares. The Buyer shall have no liability to the Sellers and the Sellers
hereby
waive, release, acquit and forever discharge, to the fullest extent permitted
by
law, any and all claims and causes of action they have or may have as of
the
Closing Date against the
Buyer and/or its respective employees, representatives and agents (collectively,
“Related Persons”), relating either directly or indirectly or arising out of
Buyer not disclosing the Information, including, without limitation, any
claims
of detrimental reliance on such non-disclosure of the Information, the financial
condition or prospects of the Company or the value of the Shares.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE BUYER
The
Buyer hereby represents and
warrants to the Sellers as follows:
3.1 Organization
and Qualification. The Buyer is a limited liability company duly
organized, validly existing and in good standing under the laws of the State
of
Tennessee. The Buyer is duly qualified and in good standing as a
foreign corporation in each of the jurisdictions where such qualification
is
required by law, except where the failure to so qualify would not have a
material adverse effect on the Buyer.
3.2 Power
and Authority. The Buyer has the right, power and capacity to
execute, deliver and perform this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been approved by all
necessary limited liability company action by the Buyer. This
Agreement has been duly and validly executed and delivered by the Buyer,
constitutes the legal, valid and binding obligation of the Buyer and is
enforceable against it in accordance with its provisions, except to the extent
limited by bankruptcy, insolvency, reorganization, moratorium, or similar
laws
affecting creditors' rights generally or by general principles of
equity. The execution, delivery and performance by the Buyer of this
Agreement and the consummation of the transactions contemplated hereby will
not,
with or without the giving of notice or the lapse of time, or both, (i) conflict
with, violate, or result in a breach or acceleration of any of the terms
or
provisions of any agreement to which the Buyer is a party or by which the
Buyer
is bound, (ii) violate any provision of law, statute, rule or regulation
to
which the Buyer is subject, (iii) violate any order, judgment or decree
applicable to the Buyer, or (iv) violate any provision of the articles or
organization or limited liability company agreement of the Buyer, as each
may be
amended.
3.3 Exemption
from Securities Registration. The Buyer understands that the
Shares are not registered under Securities Act of 1933, as amended (the
“Securities Act”), the Tennessee Securities Act of 1980, as amended (the
“Tennessee Act”), or other applicable state securities laws on the grounds that
the sale provided for in this Agreement is exempt from registration under
the
Securities Act, the Tennessee Act and other applicable state securities
laws. The Buyer is acquiring the Shares for its own account, for
investment purposes only, and not with a view towards their distribution
within
the meaning of Section 2(a)(11) of the Securities Act in any manner that
would
be in violation of the Securities Act. The Buyer has had reasonable
access to, and has had sufficient opportunity to carefully review and analyze,
all material information about the Company’s business, financial condition,
operations and value that the Buyer believes to be relevant to its purchase
of
the Shares. The Buyer is an “accredited investor” within the meaning
of Securities and Exchange Commission Rule 501(a) and is sophisticated and
experienced in evaluating the merits and risks involving an investment in
the
Company’s securities and the particulars of the purchase of the
Shares. The Buyer has the ability to bear the economic risks of its
purchase of the Shares and has been able to obtain all information and to
ask
and receive satisfactory answers to all questions required in making an informed
decision regarding its investment in the Company. The foregoing,
however, does not limit or modify the representations and warranties of the
Sellers in Section 2 of this Agreement or the right of the Buyer to rely
thereon.
3.4 Restrictions
on Resale. The Buyer understands that the Shares may not be sold,
transferred or otherwise disposed of without registration under the Securities
Act and applicable state securities laws or an exemption therefrom, and that
in
the absence of an effective registration statement covering the Shares or
an
available exemption from registration under the Securities Act and applicable
state securities laws, the Shares must be held indefinitely.
3.5 No
Brokers’ Fees. The Buyer has not authorized any person to act as
broker, finder or in any other similar capacity in connection with the
transactions contemplated by this Agreement.
3.6 Consents
and Approvals. No consent, approval, authorization of or
declaration, filing, registration or similar action with any third party or any
Regulatory Authority having jurisdiction over the Buyer is required in
connection with the execution, delivery, and performance by the Buyer of
this
Agreement or the consummation of the transactions contemplated
hereby.
3.7 Litigation. There
is no litigation, suit, proceeding, arbitration, or similar action pending
or
overtly threatened, against the Buyer in respect of the consummation of the
transactions contemplated hereby.
ARTICLE
IV
ADDITIONAL
COVENANTS OF THE PARTIES
The
Sellers and the Buyer hereby covenant to and agree with one another that,
subject to the terms and conditions herein provided, each will attempt
reasonably and in good faith to take, or cause to be taken, all actions
reasonably within their control that are necessary, proper or advisable under
applicable laws and regulations to consummate the transactions contemplated
by
this Agreement.
ARTICLE
V
INDEMNIFICATION
5.1 Indemnification.
(a) Except
as otherwise provided, the Sellers agree to indemnify and reimburse the Buyer,
its successors and assigns, and their respective officers, managers,
members, employees, agents and other related persons (the “Buyer Protected
Parties”) for any and all liabilities, damages (including fines, penalties and
civil or criminal judgments or settlements), costs (including court costs)
and
expenses (including reasonable attorneys’ fees and disbursements) (collectively,
“Loss” or “Losses”) incurred directly as a result of any breach of any
representation, warranty, covenant or agreement made by the Sellers in this
Agreement.
(b) Except
as otherwise provided, the Buyer agrees to indemnify and reimburse the Sellers,
their successors and assigns, and their respective officers, managers,
members, employees, agents and other related persons (the “Seller Protected
Parties,” and together with the Buyer Protected Parties, the “Protected
Parties”) for any and all Losses incurred directly as a result of any breach of
any representation, warranty, covenant or agreement made by the Buyer in
this
Agreement.
5.2 Notice
of Claim. A Protected Party shall promptly notify the Sellers or
Buyer, as applicable, in writing of any claim for recovery, specifying in
reasonable detail the nature and date of the Loss, and, if known, the amount,
or
an estimate of the amount, of the liability arising therefrom. The
Protected Party shall provide to the Sellers or Buyer, as applicable, as
promptly as practicable thereafter information and documentation reasonably
requested by the Sellers or Buyer, as applicable, to support and verify the
claim asserted, provided
that the failure to give such prompt notice shall not affect the
Sellers’ or Buyer's, as applicable, obligation to indemnify a Protected
Party absent a showing of actual prejudice to the Sellers or Buyer, as
applicable. The Sellers and Buyer, as applicable, shall promptly and
fully reimburse the Protected Party to the fullest extent of the Loss following
receipt of such claim, but in no event more than thirty (30) days from the
receipt thereof, time being of the essence.
ARTICLE
VI
MISCELLANEOUS
6.1 Notices. Any
notice, request, instruction or other document to be given hereunder by any
party hereto to any other party hereto shall be in writing and delivered
personally or sent by registered or certified mail, return receipt requested,
postage prepaid:
| if
to the Sellers to: |
c/o
Richard L. Scott Investments, LLC |
| |
28
West 44th
Street, Suite 1111 |
| |
New
York, NY 10036 |
| |
Fax:
(212) 398-2033 |
| if
to the Buyer to: |
SJ
Strategic Investments LLC |
| |
Attn:
Mark M. Manno, Esq. |
| |
340
Martin Luther King, Jr. Boulevard, Suite 200 |
| |
Bristol,
Tennessee 37620 |
or
at
such other address for a party as shall be specified by like
notice. Any notice which is delivered personally in the manner
provided herein shall be deemed to have been duly given to the party to whom
it
is directed upon actual receipt by such party (or its agent for notices
hereunder).
6.2 Further
Cooperation. From and after the Agreement Date, the parties will
each take all such action and deliver all such documents as shall be reasonably
necessary or appropriate to confirm and vest title to the Shares in the Buyer
and otherwise to enable the Buyer to enjoy the benefits contemplated by this
Agreement.
6.3 Entire
Agreement. This Agreement constitutes the sole understanding of
the parties with respect to the subject matter hereof. No amendment,
modification or alteration of the terms or provisions of this Agreement shall
be
binding unless the same shall be in writing and duly executed by the parties
hereto.
6.4 Waiver. Any
of the terms or conditions of this Agreement may be waived in writing at
any
time by the party which is entitled to the benefits thereof. No
waiver of any of the provisions of this Agreement shall be deemed to or shall
constitute a waiver of any other provision hereof (whether or not
similar).
6.5 Expenses. The
Sellers and the Buyer shall each pay all costs and expenses incurred by it
or on
its behalf in connection with this Agreement and the transactions contemplated
hereby, including fees and expenses of its own financial consultants,
accountants and counsel.
6.6 Governing
Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of New York without giving effect to its
conflicts of law principles.
6.7 Attorneys’
Fees. In the event a party fails to perform, does not fully
perform or otherwise breaches its obligations under this Agreement, the
breaching party shall pay the reasonable attorneys’ fees, costs and expenses of
the non-breaching party resulting from such breach or failure.
6.8 No
Third-Party Beneficiaries. With the exception of the parties to
this Agreement, there shall exist no right of any person other than the Company
to claim a beneficial interest in this Agreement or any rights occurring
by
virtue of this Agreement.
6.9
Successors and Assigns. The terms, conditions and
obligations of this Agreement shall inure to the benefit of and be binding
upon
the respective successors and assigns of the parties hereto. Neither
the Sellers nor the Buyer may assign its rights, duties or obligations hereunder
or any part thereof to any other person or entity without the prior written
consent of the other party hereto.
6.10 Severability. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
6.11
Headings. The headings of the Sections and paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction
hereof.
6.12
Construction. Words of inclusion shall not be construed as
terms of limitation herein, so that references to “included” matters shall be
regarded as nonexclusive, noncharacterizing illustrations. The
parties hereto acknowledge and agree that (i) each party hereto and its counsel
have reviewed the terms and provisions of this Agreement and have contributed
to
its revision, (ii) the normal rule of construction, to the effect that any
ambiguities are resolved against the drafting party, shall not be employed
in
the interpretation of it, and (iii) the terms and provisions of this Agreement
shall be constructed fairly as to all parties hereto and not in favor or
against
any party, regardless of which party was generally responsible for the
preparation of this Agreement.
6.13 References. Whenever
reference is made in this Agreement to any Article or Section, such reference
shall be deemed to apply to the specified Article or Section of this
Agreement.
6.14 Counterparts;
Facsimile. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument. Facsimile
copies of signatures hereto or e-mail of a PDF file containing a copy of
an
executed agreement (or signature page thereto) shall be deemed as effective
as
originals.
[signatures
on following page]
IN
WITNESS WHEREOF, each of the parties
hereto has caused this Agreement to be executed by an authorized representative
as of the day and year first above written.
|
“SELLERS”
RICHARD
L. SCOTT REVOCABLE TRUST
By:
/s/ Richard L.
Scott
Name:Richard
L. Scott
Title:
Trustee
F. ANNETTE
SCOTT REVOCABLE TRUST
By:
/s/ F. Annette
Scott
Name:
F. Annette Scott
Title:
Trustee
ADGO
INVESTMENTS, LLC
By:
/s/ Richard L.
Scott
Name:
Richard L. Scott
Title:
Managing Member
|
“BUYER”
SJ
STRATEGIC INVESTMENTS LLC
By: /s/Gregory
J.
Tebeau
Name: Gregory
J. Tebeau
Title: Chief
Financial Officer
|