Exhibit 1
AGREEMENT
AGREEMENT made this 9th day of October, 1995 by and between ALISON
COSMETICS, INC. ("Alison"), a New York Corporation with principal offices
located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, New York, New York, and
XXXX SOLUTIONS, INC. ("Xxxx"), a Delaware corporation with principal offices
located at 00 Xxxxx 00 Xxxxx, Xxxxxxx, Xxx Xxxxxx 00000.
WHEREAS, Xxxx is the owner of all of the issued and outstanding common
stock of Xxx-Xxx Cosmetics, Ltd. ("Xxx-Xxx"), Xxx-Xxx South, Inc. ("Xxx-Xxx
South") and Bar-Lor West, Inc. ("Bar-Lor West"), hereinafter collectively
called the "Xxx-Xxx Group," which companies operate as wholly owned
subsidiaries of Xxxx; and
WHEREAS, Xxxx is desirous of disposing of the Xxx-Xxx Group; and
WHEREAS, Alison is desirous of acquiring the Xxx-Xxx Group, including all
of the assets subject to assumption by Alison of all of the outstanding
liabilities.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties agree as follows:
1. Purchase Price. At the Closing, as defined herein, Alison shall pay
to Xxxx the sum of One Hundred Thousand
($100,000.00) Dollars in good federal funds in form of a certified check or
cashier's check made payable to Xxxx, and Xxxx shall deliver to Alison all of
the outstanding shares of common stock (the "Capital Stock") of each of
Xxx-Xxx, Xxx-Xxx South and Bar-Lor West together with duly executed stock
powers and signature guarantees.
2. Delivery of Books and Records. At the Closing, Xxxx shall deliver
to Alison all of the books and records of the Xxx-Xxx Group in Mark's
possession together with all resignations of Mark's representatives who
currently serve as officers and/or directors of the Xxx-Xxx Group.
3. Assumption of Liabilities. Alison agrees to assume all debts and
liabilities of the Xxx-Xxx Group, presently known or unknown as of the date of
this Agreement, and Alison agrees to pay and discharge all such debts and
liabilities subject to any adjustment as may be agreed upon by Alison and any
creditor. Alison further agrees, to observe, perform and fulfill the terms
and conditions of all lawful executory contracts, licenses, leases,
commitments and undertakings.
4. Indemnification. From and after the Closing Date and in the event
any claims are made upon Xxxx or any of its directors or officers, employees
or agents, which claims arise (i) from any failure by Alison to pay any
creditor; (ii) from any
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product liability claim in connection with the cosmetics sold and distributed
by the Xxx-Xxx Group; (iii) from any claim of patent or copyright infringement
by the Xxx-Xxx Group; (iv) from any claim against the Xxx-Xxx Group from any
governmental authority, either federal or state, including any taxing
authority arising from or out of the conduct of the Xxx-Xxx Group's business
prior to the date of Closing, then Alison shall indemnify and save and hold
Xxxx and any director, officer, employee or agent harmless from and against
all loss, cost, damage (including reasonable attorneys' fees) or other
expenses whatsoever arising out of or in connection with any of the foregoing
claims or in connection with any claims arising from any non-compliance with
any bulk transfer provisions of the relevant Uniform Commercial Code or any
related statutes as the same may be applied to the transfers contemplated by
this Agreement.
5. Claims. In the event a claim is made or a suit, action or
proceeding is commenced against Xxxx or its directors, officers, employees or
agents, and such claim or action, suit or proceeding is based on or arises out
of one of the enumerated claims contained in paragraph 4 above, then Xxxx
shall give prompt notice in writing to Alison of such claim or the institution
of any action, suit or proceeding before the earlier of (i) the thirtieth
(30th) day after receipt of such notice or the third (3rd) day before the date
of answer or similar response to an initiation of judicial proceedings is due.
If Alison fails to defend any such
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claim or action, suit or proceeding, then Xxxx upon written notice to Alison
shall have the right to undertake at Alison's expense the defense compromise
or settlement of such claim subject to the right of Alison to assume the
defense of such claim at any time prior to settlement compromise or final
determination thereof. In the event Xxxx is required to defend the action
suit of proceedings, Xxxx shall not compromise or settle the action, suit or
proceedings without Alison's prior written consent. Alison shall not be
liable for any indemnification of any settlement or compromise of any such
action or proceeding effected without its written consent but if settled with
its written consent or if there be a final judgment for the plaintiff in any
such action or proceeding, Alison shall indemnify and hold harmless Xxxx, its
officers, directors, agents and employees for such loss or liability by reason
of such settlement or judgment including reasonable attorneys' fees.
6. Assets. Alison acknowledges that its purchase of all of the issued
and outstanding Capital Stock of the Xxx-Xxx Group confers to Alison control
of all of the assets of the Xxx-Xxx Group. Alison further acknowledges that
it has examined and has had full opportunity to examine all of the books,
records, files, financial statements, physical inventions, fixed assets and
other assets of the Xxx-Xxx Group and is fully familiar therewith and is not
relying on any written or oral representations, promises or warranties of Xxxx
with respect to any of the foregoing. Xxxx disclaims any and all
representations promises or warranties
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reflecting the financial condition, assets, liabilities or any other
circumstances respecting the Xxx-Xxx Group.
7. Closing. The closing of this Agreement including the delivery of
the Capital Stock, payment by Xxxx, the assumption of the Xxx-Xxx liabilities
by Alison and delivery of corporate books and records and resignations shall
be held at the offices of XxXxxxxxxx & Xxxxx, LLP, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx at 1:00 o'clock on October 10, 1995.
8. Representations of Xxxx. Xxxx represents and warrants to Alison as
follows, (with regards to (a) (b) and (c) below such warranties are based on
the representations contained in section 10 hereof):
(a) Xxxx owns all of the issued and outstanding capital stock of
Xxx-Xxx, Xxx-Xxx South and Bar-Lor West.
(b) The capital stock of Xxx-Xxx, Xxx-Xxx South and Bar-Lor West owned
by Xxxx represents all of the issued and outstanding shares of the respective
entities and there exists no encumbrance or other restriction prohibiting any
transfer by Xxxx.
(c) Each of the entities comprising the Xxx-Xxx Group are corporations
duly organized, validly existing and in good standing under the laws of their
respective states of incorporation and are entitled to carry on their
respective businesses and to own or lease their properties and in the places
where such businesses are now conducted and such properties are now owned,
leased or
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operated. Each of the entities are duly qualified to do business in
each state in which the nature of their respective assets and the conduct of
their respective businesses require them to be qualified to do business.
(d) Xxxx has obtained requisite authority from Mark's Board of Directors
and its stockholders to authorize, adopt and approve this Agreement and the
transactions contemplated hereby.
(e) Neither the execution and delivery of this Agreement and delivery of
the Capital Stock will require the consent or approval of other action by way
of governmental agency or body or any other entity or person nor will such
execution and delivery and consummation of this Agreement violate any
provision of any state or local ordinance or conflict with or result in any
breach of any of the terms, conditions or provisions of, or constitute a
default under or result in the creation of any lien, charge or encumbrance
upon any of the properties or assets of the Xxx-Xxx Group pursuant to Mark's
corporate charter or by laws or any indenture, lease, mortgage, deed of trust,
loan agreement or any other instrument to which Xxxx is a party or may be
otherwise bound or effected.
(f) This Agreement and any other documents to be executed and delivered
by Xxxx in accordance herewith will constitute valid and binding obligations
of Xxxx enforceable in accordance with their terms.
9. Representations of Alison. Alison represents and warrants to Xxxx:
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(a) Alison is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
(b) Alison has received requisite authorization for the adoption and
approval of this Agreement and the transactions contemplated hereby.
(c) Alison is not relying on any representations or provisions of any
kind whatsoever by Xxxx to enter into this Agreement or to purchase the
Capital Stock of the Xxx-Xxx Group.
(d) This Agreement and any other instruments to be executed and
delivered by Alison in accordance herewith will constitute valid and binding
obligations of Alison enforceable in accordance with their terms.
10. Representations of Xxxx X. Xxxxxxx. Xxxx X. Xxxxxxx ("Xxxxxxx")
represents and warrants to Xxxx and to Alison:
(a) Xxxxxxx is the President of the Xxx-Xxx Group and is the former
President of the Xxx-Xxx Group's parent Corporation "Showcase Cosmetics, Inc."
through November 10, 1993, the effective date of the reorganization of Xxxx
and the Xxx-Xxx Group.
(b) Immediately preceding the consummation of the reorganization,
Showcase Cosmetics, Inc. owned all of the outstanding stock of Xxx-Xxx,
Xxx-Xxx South and Bar-Lor West.
(c) Xxxxxxx is a shareholder and officer of Alison and is fully aware of
all operations and actions of the Xxx-Xxx Group both before and since the
reorganization.
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(d) Xxx-Xxx, Bar-Lor West and Xxx-Xxx South are corporations duly
organized and validly existing and in good standing under the laws of their
respective states of incorporation.
11. Conditions to Closing as to Alison. The obligations of Alison to
purchase all of the Capital Stock of the Xxx-Xxx Group and to assume all
liabilities of the Xxx-Xxx Group is subject to the following conditions:
(a) Xxxx will have delivered to Alison on the date of the Closing an
opinion of counsel to the effect that (i) Xxxx is in good standing under the
laws of the State of Delaware; (ii) Xxxx has all requisite authority from its
Board of Directors and its stockholders to enter into this Agreement and the
transaction contemplated hereby; (iii) that their exists no encumbrance or
other restrictions prohibiting the transfer of the Capital Stock and (iv) that
since the reorganization on November 10, 1993 no Capital Stock of the Xxx-Xxx
Group has been issued.
(b) Xxxx will have delivered to Alison copies of all corporate
resolutions or other corporate action of Mark's Board of Directors and its
stockholders authorizing approval of this Agreement and the transactions
contemplated hereby, certified by Mark's Secretary as duly adopted and in full
force and effect.
12. Conditions of Closing as to Xxxx. The obligations of Xxxx to sell
to Alison all of the capital stock of the Xxx-Xxx Group is subject to the
following conditions:
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(a) Alison will have delivered to counsel for Xxxx on the date of the
Closing an opinion of counsel to the effect that (I) Alison is in good
standing under the laws of the State of New York; and (ii) that Alison has all
requisite authority from its Board of Directors to enter into this Agreement
and the transactions contemplated hereby.
(b) Alison will have delivered to Xxxx copies of all corporate
resolutions authorizing approval of this Agreement and the transactions
contemplated hereby, certified by Alison's Secretary as duly adopted and in
full force and effect.
13. Availability of Equitable Remedies. Since a breach of the
provisions of this Agreement could not fully and adequately be compensated by
money damages, any party shall be entitled, either before or after the
Closing, in addition to any other right or remedy available to it, to an
injunction restraining the breach or threatened breach and to specific
performance of any provision of this Agreement, and, in either case, no bond
or other security shall be required in connection therewith.
14. Survival. The covenants, agreements, representations, and
warranties contained in or made pursuant to this Agreement by each party shall
survive the Closing for 12 months.
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15. Entire Agreement; Modification. This Agreement sets forth the
entire understanding of the parties with respect to the subject matter hereof,
supersedes all existing agreements among them concerning the subject matter,
and may be modified only by a written instrument duly executed by each party.
16. Notices. Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be deemed given when mailed
by certified mail, return receipt requested, or personally delivered to the
party to whom it is to be given, at the following addresses:
In the case of Alison to:
Xxxx Xxxxx
000 Xxxxx Xxx.
Xxx Xxxx, XX 00000
Xxxxxxx X. Xxxxxxxx, Esq.
XxXxxxxxxx & Xxxxx, LLP
Counsel to Alison Cosmetics, Inc.
000 Xxxxxxxxx Xxx.
Xxx Xxxx, XX 00000
In the case of Xxxx to:
Xxxx Xxxxxxx
Xxxx Solutions, Inc.
00 Xxxxx 00 Xxxxx
Xxxxxxx, XX 00000
Xxxxxxx XxXxxxxxx, Esq.
Counsel to Xxxx Solutions, Inc.
00 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
17. Headings. The headings in this Agreement are solely for the
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
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18. Counterparts; Governing Law. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York without giving effect to conflict of laws.
19. Attorneys' Fees. In the event any action is commenced to enforce
the terms hereof, the prevailing party shall be entitled to an award of
reasonable attorney's fees and costs incurred, which shall include those
attorneys fees and costs incurred in any appeal and/or collection of judgment.
Each party shall bear its own costs and expenses, including attorney's fees,
in connection with this Agreement, if the transaction contemplated hereby is
not consummated.
IN WITNESS WHEREOF, the parties have caused their respective officers
thereunto duly authorized to execute this Agreement as of the day and year
first above written.
XXXX SOLUTIONS, INC.
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx, President
ALISON COSMETICS, INC.
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx, President
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
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