STOCK PURCHASE AGREEMENT
AGREEMENT, dated as of this 13th day of February 1998 (the
"Agreement"), by and among Andal Corp., a New York corporation (the "Company"),
and SO Charitable Trust (the "Seller").
Seller owns beneficially and of record 5,143 shares of common stock,
par value twenty ($20.00) dollars a share, of the Company (the "Shares").
Upon the terms, and subject to the conditions hereinafter set forth,
Seller desires to sell, and the Company desires to purchase, the Shares from the
Seller.
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein, and in reliance upon the representations and warranties made herein, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 TERMS.
The following terms as used in this Agreement shall have the
meanings as set forth below:
"Agreement" shall have the meaning set forth in the preamble.
"Closing" shall have the meaning set forth in Section 3.1
hereof.
"Closing Date" shall have the meaning set forth in 3.1 hereof.
"Company" shall have the meaning set forth in the preamble.
"Purchase Price" shall have the meaning set forth in Section
2.2 hereof.
"Seller" shall have the meaning set forth in the preamble.
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"Shares" shall have the meaning set forth in the preamble.
ARTICLE II
SALE AND PURCHASE OF SHARES
2.1 PURCHASE OF SHARES.
On the Closing Date (as hereinafter defined), the Seller shall
sell assign, transfer, convey and deliver to Company, and Company shall purchase
and accept, the Shares.
2.2 PURCHASE PRICE.
The purchase price for the Shares shall be:
(A) The total number of Shares multiplied by $33.00, an
aggregate of $169,719, payable in cash at the Closing PLUS
(B) 4,179 shares of common stock, of Integrated Brands, Inc.
(the "Integrated Shares"), free and clean of any liens or encumbrances
whatsoever (such cash payment and such shares of common stock are collectively
referred to herein as the "Purchase Price.")
ARTICLE III
CLOSING
3.1 THE CLOSING.
The closing of the sale and purchase of the Shares (the
"Closing") shall take place at the offices of Gold, Xxxxxxx & Marks, 00 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on February 13, 1998, or at such other place
and time as the Company and the Seller may agree (the "Closing Date").
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3.2 DELIVERIES AT CLOSING BY SELLERS.
At the Closing, the Seller shall deliver to the Company
certificates representing all the Shares, together with duly executed stock
powers with guaranteed signatures by a commercial bank or by a member from the
New York Stock Exchange sufficient to transfer ownership of such Shares to the
Company.
3.3 DELIVERIES AT CLOSING BY COMPANY.
At the Closing, the Company shall cause the cash portion of
the Purchase Price to be delivered to the Seller by wire transfer upon
instructions to be delivered by the Seller to the Company. Seller shall have
delivered to the Company the portion of the Purchase Price consisting of the
Integrated Shares, to be delivered to the Seller at the Closing or as soon
thereafter as practicable certificates representing the Integrated Shares
accompanied by duly executed stock power endorsing transfer in blank.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS, WARRANTIES, AND COVENANTS OF THE COMPANY.
The Company represents and warrants to the Seller, and
covenants that:
(A) ORGANIZATION AND STANDING. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of New York. The Company has full corporate power and authority to own and
operate its properties and assets, and to carry on its business as presently
conducted. The authorized equity securities of the Company consist of
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1,500,000 shares of common stock, par value twenty ($20.00) dollars per share,
of which 434,078 shares are issued and outstanding as of January 20, 1998.
(B) CORPORATE POWER. The Company has all requisite legal and
corporate power and authority to execute and deliver this Agreement and to
purchase the Shares hereunder and to carry out and perform its obligations under
the terms of this Agreement.
(C) AUTHORIZATION. All corporate action on the part of the
Company necessary for the authorization, execution, delivery and performance of
this Agreement by the Company, including, without limitation, the ability to
purchase the Shares, has been taken or will be taken prior to the Closing. This
Agreement, when executed and delivered by it, will constitute a valid and
binding obligation of the Company, enforceable against it in accordance with its
terms.
(D) NO CONSENT. Except as referred to in Section 4.1(C)
hereof, no consent, approval or authorization of any person or governmental
authority is required on the part of the Company in connection with the
execution and delivery of this Agreement, or the purchase of the Shares.
(E) TITLE TO THE INTEGRATED SHARES. The Company is the owner
beneficially and of record of 352,700 outstanding shares of common stock of
Integrated Brands, Inc., and no more, and on the Closing Date, upon the
consummation of the transactions contemplated hereby, will have delivered to the
Seller, good and marketable title to the Integrated Shares free and clear,
subject to the requirements of Federal and state securities laws, of all liens
and encumbrances or rights of any other person whomsoever.
(F) COMPLIANCE WITH OTHER INSTRUMENTS. Neither the execution,
delivery, nor performance of this Agreement by the Company shall (1) violate any
order, judgment, or
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decree applicable to the Company; or (2) violate, conflict with, result in a
breach of any provision of, constitute a default (or an event that, with notice
or lapse of time or both, would constitute a default) under, result in the
termination of, accelerate the performance required by, or result in a right of
termination or acceleration, or the creation of any lien, security interest,
charge, or encumbrance upon any of the Integrated Shares under any of the terms,
conditions, or provisions of (a) its articles of incorporation or bylaws, or (b)
any note, bond, mortgage, indenture, deed of trust, license, or other contract
or obligation to which the Company is a party, by which the Company may be
bound, or to which the Company, its respective properties, or its respective
assets may be subject.
4.2 REPRESENTATIONS AND WARRANTIES OF THE SELLER.
Seller represents, warrants to the Company and covenants that:
(A) CONVEYANCE OF SHARES. The Seller has, and on the Closing
Date, upon the consummation of the transaction contemplated hereby, will have
conveyed to the Company, the full beneficial ownership to the number of Shares
set forth in the preamble hereto, free and clear, subject to the requirements of
Federal and state securities laws, of all liens and encumbrances or rights of
any other person whomsoever.
(B) ACCESS TO DATA. The Seller is (1) an "accredited investor"
(as such term is defined in Regulation D promulgated under the Securities Act of
1933, as amended (the "Securities Act")) and (2) a sophisticated investor with
knowledge and experience in business matters who (a) has had the opportunity to
discuss the Company's business and financial affairs with the Company's
management, (b) has had the opportunity to review the Company's business
affairs, and (c) has had the opportunity to obtain additional information as
desired in order to
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evaluate the terms of the sale of the Shares for the Purchase Price (including
the receipt of the Integrated Shares). The Purchase Price has been determined by
arms-length negotiation between the Company and the Seller.
(C) AUTHORIZATION. All action on its part necessary for the
authorization, execution, delivery and performance of this Agreement by it, and
the performance of each of the Seller's obligations hereunder have been taken or
will be taken prior to the Closing Date. This Agreement, when executed and
delivered by it, will constitute a valid and legally binding obligation of it,
enforceable in accordance with its terms and subject to laws of general
application relating to bankruptcy, insolvency, and the relief of debtors and
rules of law governing specific performance, injunctive relief or other
equitable remedies. Each trustee of the Seller has been duly and validly
appointed and authorized in accordance with the Trust Agreement (as defined
below) and the EPTL (as defined below).
(D) COMPLIANCE WITH OTHER INSTRUMENTS. Neither the execution,
delivery, nor performance of this Agreement by the Seller shall (1) violate any
provision of the New York Estates, Powers and Trusts Law ("EPTL") or any Federal
or state tax law applicable to the Seller; (2) violate any order, judgment, or
decree applicable to the Seller; (3) violate, conflict with, or result in a
breach or default under, or cause the termination of, any term or condition of
any court order, agreement, document, or other instrument to which the Seller is
a party or by which the Seller or any of its properties or assets may be bound,
including, without limitation, that certain charitable trust agreement, dated
December 1, 1980 (the "Trust Agreement"); or (4) violate, conflict with, result
in a breach of any provision of, constitute a default (or an event that, with
notice or lapse of time or both, would constitute a default) under, result in
the termination of,
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accelerate the performance required by, or result in a right of termination or
acceleration, or the creation of any lien, security interest, charge, or
encumbrance upon any of the Shares under any of the terms, conditions, or
provisions of (a) the Trust Agreement or any other governing instrument or
document of the Seller, or (b) any note, bond, mortgage, indenture, deed of
trust, license, or other contract or obligation to which the Seller is a party,
by which the Seller may be bound, or to which the Seller, its properties, or
assets may be subject.
(E) NO CONSENT. No notice to, filing with, authorization of,
exemption by, or consent or approval of any public body or authority or any
other third party, including, without limitation, the Attorney General of the
State of New York, the United States Internal Revenue Service or any New York
State Court, is necessary for the Seller's execution, delivery and performance
of this Agreement of any other agreement or document contemplated hereunder or
the consummation by the Seller of the transactions contemplated herein.
(F) VALID EXISTENCE. The Seller is a charitable trust duly
organized, validly existing and in good standing under the laws of the State of
New York and the laws of the United States, and has full power and authority to
carry on its businesses and to own or lease all of its properties and assets as
and in the places such businesses are now conducted, and such properties are now
owned, leased or operated.
(G) INVESTMENT INTENT. The Seller is acquiring the Integrated
Shares, paid as part of the Purchase Price, for its own account and not with a
view to the distribution thereof within the meaning of the Securities Act, any
state securities law, or any regulation of any of the foregoing.
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(H) NO SALE OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS. The
sale of the Shares by the Seller does not constitute a sale of all or
substantially all of its assets under the Trust Agreement or any federal or
state law or regulation, including, without limitation, the EPTL.
ARTICLE V
CONDITIONS TO CLOSING
5.1 CONDITIONS TO CLOSING OF COMPANY.
The Company's obligations to purchase the Shares at the Closing are, at
the option of Company, subject to the fulfillment of the following conditions:
(A) REPRESENTATIONS AND WARRANTIES CORRECT. The
representations and warranties made by Seller, in Article IV hereof, shall have
been true and correct when made and shall be true and correct as of the Closing
Date.
(B) CONDITIONS. All agreements and conditions contained in
this Agreement to be performed by the Seller on or prior to the Closing Date
shall have been performed or complied with in all material respects.
5.2 CONDITIONS TO CLOSING OF SELLER.
The Seller's obligations to sell and deliver the Shares on the Closing
Date are, at the option of the Seller, subject to the fulfillment as of the
Closing Date of the following conditions:
(A) REPRESENTATIONS. The representations and warranties made
by the Company in Article IV hereof shall have been true and correct when made,
and shall be true and correct on the Closing Date.
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(B) COVENANTS. All agreements and conditions contained in this
Agreement to be performed by the Company on or prior to the Closing Date shall
have been performed or complied with in all material respects.
ARTICLE VI
MISCELLANEOUS
6.1 GOVERNING LAW.
This Agreement shall be governed in all respects by the laws of the
state of New York, without regard to principles of conflicts of laws.
6.2 SURVIVAL.
All representations and warranties shall survive the Closing Date. Any
representation or warranty as to which a claim with respect to which specific
notice has been given is unresolved at the time of the expiration of the
applicable period shall survive such expiration until resolved.
6.3 TRANSACTION PAYMENTS BY COMPANY.
Company shall reimburse Seller for all expenses Seller may reasonably
incur in connection with the transactions contemplated by this Agreement,
including, without limitation, all legal fees and related disbursements.
6.4 SUCCESSORS AND ASSIGNS.
Except as otherwise provided herein, the provisions hereof shall inure
to the benefit of, and be binding upon, the successors, assigns, heirs,
executors, and administrators of the parties hereto.
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6.5 ENTIRE AGREEMENT; AMENDMENT.
This Agreement and any other documents delivered pursuant hereto,
constitute the full and entire understanding and agreement between the parties
with regard to the subject matter hereof. Except as expressly provided herein,
neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver or discharge or termination is sought.
6.6 NOTICES.
All notices and other communications required or permitted hereunder
shall be in writing and shall be mailed by registered or certified mail, postage
prepaid, or otherwise delivered by hand or by messenger addressed (a) if to
Seller c/o Alpine Capital Group, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX
00000, or at such other address as Seller shall have furnished to the Company in
writing with a copy to Xxxxxxx X. Xxxxxx, Esq., Gold, Xxxxxxx & Marks, 00
Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000; or (b) if to the Company, to Andal Corp.,
000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, and addressed to the attention of Xxxx X.
Xxxxx and Xxxxxx X. Xxxxxxx with a copy to Xxx X. Xxxxxx Esq., Esanu Katsky
Xxxxxx & Siger, LLP, 000 Xxxxx Xxx., Xxx Xxxx, Xxx Xxxx 00000, or to such other
address or addresses as a party may have been furnished by notice to the other
party. Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered
personally, or, if sent by mail, at the earlier of its receipt or five (5) days
after the same has been deposited in the United States mail, addressed and
mailed as aforesaid.
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6.7 COUNTERPARTS.
This Agreement may be executed in counterparts, each of which shall be
enforceable against the party actually executing such counterparts, and all of
which together shall constitute one instrument.
6.8 SEVERABILITY.
In the event that any provisions of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provisions provided that no such severability shall be effective if it
materially changes the economic benefit of this Agreement to any party.
6.9 TITLES AND SUBTITLES.
The titles and subtitles used in this Agreement are used for
convenience only and are not considered in construing or interpreting this
Agreement.
6.10 RESTRICTIONS ON THE SHARES OF INTEGRATED BRANDS INC.
The Company agrees to notify the Seller prior to selling or otherwise
transferring all or any portion of the shares of common stock of Integrated
Brands, Inc. owned by the Company. Seller agrees that it will not sell or
transfer the Integrated Shares, it receives as part of the Purchase Price
pursuant to Section 3.3. hereof prior to the earlier to occur of:
(A) the sale or distribution by the Company of all or any
portion of the shares of common stock of Integrated Bands, Inc. that it now owns
to persons other than the Seller; or
(B) the one-hundred twenty-first day next following the
Closing Date.
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6.11 FURTHER ASSURANCES.
At any time and from time to time from and after the Closing Date, the
Seller will, at the request of the Company and without further consideration,
execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, such instruments and other documents and perform or cause to be
performed such acts and provide such information, as may reasonably be required
by the Company to evidence or effectuate the sale, conveyance, transfer,
assignment and delivery to the Company of the Shares or for the performance by
the Seller or the Company of any of their respective obligations under this
Agreement.
6.12 INDEMNIFICATION BY SELLER.
The Seller shall indemnify the Company and all of its officers and
directors (the "Indemnified Parties") against and agree to hold the Indemnified
Parties harmless from any and all claims, damage, loss, liability and expense
(including, without limitation, reasonable expenses of investigation and
reasonable attorneys' fees and expenses) ("Damages") incurred or suffered by any
of the Indemnified Parties on or after the Closing Date arising out of any
misrepresentation, inaccuracy or breach of any representation, warranty,
covenant or promise by the Seller contained in this Agreement (or in any
certificate, document, list or schedule delivered to the Company by the Seller
hereunder).
6.13 INDEMNIFICATION BY COMPANY.
The Company shall indemnify the Seller against and agree to hold the
Seller harmless from any and all Damages, loss incurred or suffered by the
Seller on or after the Closing Date arising out of any misrepresentation,
inaccuracy or breach of any representation, warranty, covenant or
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promise by the Company contained in this Agreement (or in any certificate,
document, list or schedule delivered to the Seller by the Company hereunder).
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
ANDAL CORP. ("Company")
BY: /s/ XXXX XXXXX
--------------------------------
ITS: PRESIDENT
--------------------------------
SO CHARITABLE TRUST
BY: /s/ XXXX XXXXXX
--------------------------------
Xxxx Xxxxxx, Trustee
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