PURCHASE AND SALE AGREEMENT
Exhibit
10.1
THIS
PURCHASE AND SALE AGREEMENT (this “Agreement”), is
executed as of November 10, 2008, by and between Cygne Designs, Inc., a Delaware
corporation (“Seller”), and Xxxxxxx
Xxxxxx (“Buyer”).
RECITALS:
WHEREAS,
Seller desires to sell, and Buyer desires to purchase, certain assets,
properties and rights of Seller related to Seller’s ownership interests in its
Guatemalan subsidiaries, namely, JMB Internacional, S.A., Cygne Guatemala, S.A.
and MBS Internacional, S.A. and their respective assets, including without
limitation, all prepaid expenses and accounts receivable relating thereto (the
“Purchased
Stock”) (but no other assets, operations or business of Seller), subject
to the assumption by Buyer of certain liabilities and obligations of Seller
related to such Purchased Stock, upon the terms and subject to the limitations
and conditions hereinafter set forth; and
WHEREAS,
the parties anticipate that Seller will continue to conduct its business after
the consummation of the sale of the Purchased Stock as provided
herein.
NOW,
THEREFORE, in consideration of the mutual covenants of the parties set forth in
this Agreement and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1, Sale and Transfer of the
Assets; Excluded Assets. Subject to and upon the terms and
conditions of this Agreement, Seller hereby agrees to sell, convey, transfer,
assign and deliver to Buyer all of Seller’s right, title and interest in and to
the Purchased Stock, and Buyer hereby agrees to purchase the Purchased Stock,
consistent with the terms and conditions of this Agreement. Notwithstanding
anything to the contrary contained herein, the Purchased Stock shall not
include, with respect to Seller, any other assets used by Seller in the
operation of its business or Seller’s rights under this Agreement.
2. Purchase
Price. The aggregate purchase price to be paid by Buyer for
the Purchased Stock (the “Purchase Price”)
shall be $10,000, payable to Seller by check or wire transfer.
3. Conditions. The
obligations of the parties to consummate and effect this Agreement and the
transactions contemplated hereby shall be subject to the satisfaction of the
following: (i) upon payment of the Purchase Price by Buyer, Seller shall
transfer the Purchase Price to Comerica Bank, Seller’s lender (the “Lender”); and (ii)
the Lender shall consent to this Agreement and the transactions contemplated
hereby, and shall agree to release its lien on the Purchased Stock and related
assets. In the event that either of the foregoing conditions is not met, Seller
shall return the Purchase Price to Buyer and this Agreement shall be null and
void and of no further force or effect without any action on the
parties.
4. Mutual
Release. Subject to satisfaction of the conditions of Section
3 hereof and consummation of the transactions contemplated hereby, (i) Seller
hereby releases, relinquishes and discharges any and all of Seller’s right,
title, ownership and any other interest in and to the Purchased Stock, including
without limitation, any accounts receivable and prepaid expenses relating
thereto; and (ii) Buyer hereby releases Seller from any and all liabilities and
obligations related to the Purchased Stock.
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5. General
Provisions.
a) Counterparts. This
Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other parties, it being understood that all parties need not sign the same
counterpart.
b) Entire Agreement;
Non-assignability; Parties in Interest. This Agreement shall
constitute the full and entire understanding and agreement among the parties
with respect to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof.
c) Severability. In
the event that any provision of this Agreement, or the application thereof
becomes or is declared by a court of competent jurisdiction to be illegal, void
or unenforceable, the remainder of this Agreement will continue in full force
and effect and the application of such provision to other persons or
circumstances will be interpreted so as reasonably to effect the intent of the
parties hereto. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of such void or unenforceable provision.
d) Governing Law. This
Agreement shall be governed by the laws of the State of California, without
regard to its conflicts of law principles. Each party hereto hereby irrevocably
submits and consents to the jurisdiction of any California state or federal
court located in Los Angeles County over any action or proceeding arising out of
or relating to this Agreement and hereby irrevocably agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
California state or federal court.
e) No Third Party
Beneficiaries. This Agreement is for the sole benefit of the
parties hereto and their permitted assigns and nothing herein, express or
implied, is intended to or shall confer upon any other person any legal or
equitable right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
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IN
WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the
date set forth above.
CYGNE
DESIGNS, INC.
By: /s/ Xxxxxx X. Xxxxxx,
Xx.
Xxxxxx X.
Xxxxxx, Xx., President and CEO
/s/ Xxxxxxx Xxxxxx
Xxxxxxx
Xxxxxx
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