EXHIBIT 4.9
CONVERTIBLE NOTE AND WARRANT PURCHASE AGREEMENT
THIS CONVERTIBLE NOTE PURCHASE AGREEMENT is made and entered into this
_____ day of _______________, 199__, by and between PREMIER CONCEPTS, INC., a
Colorado corporation (the "Company"), and ____________________ ("Purchaser").
ARTICLE I
PURCHASE, SALE AND TERMS OF NOTE
1.1 THE NOTE. The Company has authorized the issuance and sale of its
Convertible Note, due _______________, 19____ (the "Note", which term shall
also include any notes delivered in exchange or replacement therefor).
1.2 THE WARRANT. The Company has authorized the issuance and sale of
Class B Warrants (the "Warrant") exercisable to purchase shares of the
Company's Common Stock at an exercise price of $5.00 per share. Each Warrant
is automatically exchangeable for two public warrants (the "Public
Warrants"), if and when offered and sold by the Company in connection with a
registered underwritten public offering of its securities (the "Public
Offering").
1.3 THE CONVERTED SHARES. The Company has authorized and has reserved
and covenants to continue to reserve, free of preemptive rights and other
preferential rights, a sufficient number of its previously authorized but
unissued shares of its common stock to satisfy the rights of conversion of
the holder of the Note and the exercise of the Warrants. Any shares of
common stock issuable upon conversion of the Note or exercise of the Warrant,
and such shares when issued, are herein referred to as the "Converted Shares"
and "Warrant Shares," respectively.
1.4 PURCHASE AND SALE OF NOTE; CLOSING. The Company agrees to issue
and sell to the Purchaser, and, subject to and in reliance upon the
representations, warranties, covenants, terms and conditions of this
Agreement, the Purchaser agrees to purchase from the Company, the Note in
principal denomination of ______________________________ ($____________). The
purchase price shall be the principal amount of the Note so purchased. At
the Closing the Company will issue and deliver the Note to be sold at such
Closing to the Purchaser against payment of the purchase price thereof by a
check or checks payable to the order of the Company.
1.5 EXERCISE OF THE WARRANTS. The Company agrees to issue and sell to
the Purchaser one Warrant for every $5.60 in principal Note denomination. At
the closing, the Company will issue and deliver the Warrants to be sold
concurrently with the sale of the Note.
1.6 PAYMENT. Principal and interest shall be payable in lawful money
of the United States of America, in immediately available funds, at the
principal office of the Purchaser or at such other place as the legal holder
may designate from time to time in writing to the Company. Other terms and
conditions of payment are more fully set forth in the Convertible Note to be
delivered to Purchaser at Closing, which terms and conditions are hereby
incorporated herein by reference.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
In order to induce the Purchaser to enter into this Agreement, the
Company hereby represents, warrants to and agrees with the Placement Agent as
follows:
2.1 The Investment Term Sheet dated December 12, 1996 ("ITS") with
respect to the Notes and all exhibits thereto, copies of which have
heretofore been delivered by the Company to the Purchaser, has been carefully
prepared by the Company, all in compliance and conformity with Regulation D
(particularly Rule 506 thereof) promulgated pursuant to the Securities Act of
1933, as amended (the "Act"), and with comparable or similar provisions of
the state securities laws of Colorado, and it does not include any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein not misleading. Any additional written or oral
information provided by authorized persons to prospective purchasers as set
forth in the ITS will not contain any untrue statement of material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading.
2.2 The financial statements of the Company, together with related
schedules and notes, present fairly its results of operations and financial
position for the periods and as of the dates presented; such financial
statements have been prepared in accordance with generally-accepted
principles of accounting and all material adjustments necessary for a fair
presentation of the Company's results of operations and financial position
have been made as of and for each period presented.
2.3 Subsequent to the date of the ITS and during the term of the
Offering, the Company shall promptly notify the Purchaser and prepare an
amendment or a supplement to the ITS, if appropriate to discloseL (i) any
material adverse change in the condition, financial or otherwise, of the
Company or in its business taken as a whole; (ii) any material transaction
entered into by the Company other than transactions in the ordinary course of
business; and(ii) any material obligations, contingent or otherwise, which
are not otherwise disclosed in the ITS.
2.4 The Company is not in default in the performance of any obligation,
agreement or condition contained in any debenture, note or other evidence of
indebtedness or any indenture or loan agreement of the Company, other than as
set forth in the ITS. The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated, and compliance with the
terms of this Agreement will not conflict with or result in a breach of any
of the terms, conditions or provisions of, or constitute a default under, the
articles of incorporation, as amended, or bylaws, any note, indenture,
mortgage, deed of trust, or other agreement or instrument to which the
Company is a party or by which it or any of its property is bound, or any
existing law, order, rule, regulation, writ, injunction, or decree of any
government, governmental instrumentality, agency or body, arbitration
tribunal or court, domestic or foreign, having jurisdiction over the Company,
or its property. The consent, approval, authorization, or order of any court
or governmental instrumentality, agency or body is not required for the
consummation of the transactions herein contemplated except such as may be
required under the blue sky or securities laws of any state or jurisdiction.
2.5 The Company is duly incorporated and validly existing in good
standing as a corporation under the laws of the State of Colorado, with full
power and authority (corporate and other) to own property and conduct
business, present and proposed, as described in the ITS; the Company has full
power and authority to enter into this Agreement.
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2.6 The Notes have been duly and validly authorized and, when issued
and delivered against payment therefor as provided in this Agreement, will be
validly issued, fully paid and binding obligations of the Company in
accordance with the terms under which they are issued. The common stock into
which the Notes are convertible conforms to its description in the ITS.
2.7 There is no action, suit or proceeding before any court or
governmental agency, authority or body pending or to the knowledge of the
Company threatened that might result in judgments against the Company not
adequately covered by insurance that would materially adversely affect the
Company except those set forth in the ITS.
2.8 Except as otherwise set forth in or contemplated by the ITS, the
Company has good title, free and clear of all liens, encumbrances and
defects, except liens for current taxes not due and payable, to all property
and assets that are described in the ITS as being owned by the Company,
subject only to such exceptions as are not material and do not adversely
affect the present or prospective business of the Company; except for bank
debt referred to in the ITS.
2.9 Gross sales of the Company for its third fiscal quarter ended
October 27, 1996 were in excess of $2,300,000 and that no material
adjustments, extraordinary expenses or liabilities outside the ordinary
course of business have been made or incurred or are required to be made or
recognized.
2.10 The execution and delivery by the Company of this Agreement has
been duly authorized by all necessary corporate action and this Agreement is
the valid, binding and legally enforceable obligation of the Company.
2.11 The ITS contains any and all information that is specified in Rule
502(b) of Regulation D.
2.12 Neither the Company, nor any affiliate has, either directly or
through any agent, sold, offered for sale, solicited offers to buy, or
otherwise negotiated in respect of will, either directly or through an agent,
sell, offer for sale, solicit offers to buy, or otherwise approach or
negotiate in respect to securities which, together with the Notes, are or
will be an integrated offering that would require the registration of the
Offering contemplated by this Agreement pursuant to the Act.
2.13 The Company shall exercise reasonable care in accordance with
502(d) of Regulation D to assure that the purchaser of the Notes are not
underwriters within the meaning of Section 2(11) of the Act, and shall place
a legend on each certificate for the Notes stating that the Notes have not
been registered under the Act and setting forth or referring to the
restrictions on transferability and sale of the Notes.
ARTICLE III
COVENANTS OF THE COMPANY
3.1 AFFIRMATIVE COVENANTS OF THE COMPANY.
Without limiting any other covenants and provisions hereof, the
Company covenants and agrees that, so long as the Note is outstanding, it
will perform and observe the following covenants and provisions:
(a) PUNCTUAL PAYMENT. Pay the principal and interest on the Note
at the times and places and in the manner provided in the Note.
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(b) PRESERVATION OF CORPORATE EXISTENCE. Preserve and maintain
its corporate existence, rights, franchises and privileges in the
jurisdiction of its incorporation, PROVIDED, HOWEVER, that nothing
herein contained shall prevent any merger, consolidation or transfer of
assets. Preserve and maintain all licenses and other rights to use
patents, processes, licenses, trademarks, trade names or copyrights
owned or possessed by it and deemed by them to be necessary to the
conduct of business.
(c) COMPLIANCE WITH LAWS. Comply with the requirements of all
applicable laws, rules, regulations and orders of any governmental
authority, non-compliance with which could materially adversely affect
its business or condition, financial or other.
(d) INSPECTION. Permit, upon reasonable request, the Purchaser or
any agents or representatives thereof, to examine and make copies of and
extracts from the records and books of account of, and visit and inspect
the properties of the Company, and to discuss the affairs, finances and
accounts of the Company with any of its officers or directors and
independent accountants.
(e) RESERVATION OF COMMON STOCK. Reserve and keep available out
of the Company's authorized but unissued shares of common stock, solely
for the purpose of effecting the conversion of the Note and exercise of
the Warrant, such number of its shares of common stock as shall from
time to time be sufficient to effect the conversion of the Note and
exercise of the Warrant, and if at any time the number of authorized but
unissued shares of common stock shall not be sufficient to effect the
conversion of the Note and exercise of the Warrant, the Company shall
take such corporate action as may be necessary to increase its
authorized but unissued shares of common stock to such number of shares
as shall be sufficient for such purpose.
ARTICLE IV
CONVERSION OF NOTE
4.1 OPTIONAL CONVERSION RIGHT.
Subject to and in compliance with the provisions of this Article
IV, the principal amount outstanding on the Note may, at the option of
the holder thereof, be converted into fully-paid and non-assessable
shares of common stock of the Company ("Common Stock").
4.2 TIME OF OPTIONAL CONVERSION.
The date upon which the holder may convert the Note to common stock
shall be any time after the earlier of (i) one year from the date of the
Note or (ii) the effective date of a Registration Statement (the
"Registration Statement"), registering for sale under the Securities Act
of 1933, as amended (the "Securities Act"), the Conversion Shares;
provided, however, that in no event shall all or any portion of the Note
be convertible prior to April 1, 1997.
4.3 PREPAYMENT OF NOTE.
Notwithstanding the provisions of Sections 4.1 and 4.2 above, in
the event the Company elects to prepay all or any portion of the Note
prior to the Maturity Date, the Company shall send to Purchaser thirty
(30) days' prior written notice of such prepayment; whereupon Purchaser
may elect to
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convert all or a portion of the principal balance called for prepayment
at any time prior to the date next preceding the prepayment date, at the
Applicable Conversion Value then in effect.
4.4 AUTOMATIC CONVERSION.
In the event the one-time demand registration right granted to
Purchaser as part of the group of holders representing more than 50% of the
Notes in the Registration Rights Agreement more fully described in Article VI
hereof, then the exercise of such demand registration rights shall constitute
the irrevocable and unconditional agreement of the Purchaser to convert the
entire outstanding principal amount of the Note into shares of Common Stock
at the then applicable conversion value immediately following the effective
date of the Registration Statement filed pursuant to the exercise of such
demand registration rights; and such Note shall be deemed automatically
converted into shares of the Company's Common Stock at the then applicable
conversion value immediately following the effective date of such
Registration Statement.
4.5 APPLICABLE CONVERSION VALUE.
Subject to the adjustments provided for herein, the price per share
at which the Note may be converted into common stock (the "Applicable
Conversion Value") shall be $2.80 per share of Common Stock if converted
prior to the Maturity Date of the Note, and the Applicable Conversion Value
shall be reduced to $1.00 per share of Common Stock as to any unpaid portion
of the principal amount of the Note if either (i) the Company fails to
consummate a Public Offering of its securities on or before June 30, 1997, or
(ii) all or any portion of the outstanding balance of the Note is not paid on
or before the Maturity Date of the Note.
4.6 ADJUSTMENT FOR CAPITAL REORGANIZATION, RECLASSIFICATION OR TRANSFER
OF ASSETS.
In the event the Common Stock issuable upon conversion of the Note
shall be changed into the same or different number of shares of any class or
classes of stock, whether by capital reorganization, reclassification or
otherwise, or in the event the Company shall at any time issue Common Stock
by way of dividend or other distribution on any stock of the Company, or
subdivide or combine the outstanding shares of Common Stock, then in each
such event the noteholder shall have the right thereafter to exercise such
Note and receive the kind and amount of shares of stock and other securities
and property receivable upon such reorganization, reclassification or other
change by holders of the number of shares of Common Stock into which such
Note might have been exercised immediately prior to such reorganization,
reclassification or change. In the case of any such reorganization,
reclassification or change, the Conversion Value shall also be appropriately
adjusted so as to maintain the aggregate Conversion Value. Further, in case
of any consolidation or merger of the Company with or into another
corporation in which consolidation or merger the Company is not the
continuing corporation, or in case of any sale or conveyance to another
corporation of the property of the Company as an entirety, or substantially
as an entirety, the Company shall cause effective provision to be made so
that the noteholder shall have the right thereafter, by converting the Note,
to purchase the kind and amount of shares of stock and other securities and
property receivable upon such consolidation, merger, sale or conveyance by
holders of the number of shares of Common Stock into which such Note might
have been exercised immediately prior to such consolidation, merger, sale or
conveyance, which provision shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for
Agreement. The foregoing provisions shall similarly apply to successive
reclassifications, capital reorganizations and changes of shares of Common
Stock and to successive consolidations, mergers, sales or conveyances.
Notwithstanding the foregoing, no adjustment of the Conversion Value shall be
made
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as a result of or in connection with (1) the issuance of Common Stock of the
Company pursuant to options, warrants and share purchase agreements now in
effect or hereafter outstanding or created, (2) the establishment of option
plans of the Company, the modification, renewal or extension of any plan now
in effect or hereafter created, or the issuance of Common Stock upon exercise
of any options pursuant to such plans, (3) the issuance of Common Stock in
connection with an acquisition, consolidation or merger of any type in which
the Company is the continuing corporation, or (4) the issuance of Common
Stock in consideration of such cash, property or service as may be approved
by the Board of Directors of the Company and permitted by applicable law.
4.7 CONTINUATION OF TERMS.
Upon any reorganization, consolidation or merger referred to in
this Article IV, the Note shall continue in full force and effect until
conversion by the holder thereof and the terms hereof shall be applicable to
the shares of stock and other securities and property receivable on the
conversion of any Note after the consummation of such reorganization,
consolidation, merger or any similar event and shall be binding upon the
issuer of any such stock or other securities, including, in the case of any
such transfer, the person acquiring all or substantially all of the
properties or assets of the Company, whether or not such person shall have
expressly assumed the terms of the Note.
4.8 EXERCISE OF CONVERSION PRIVILEGE.
To exercise its conversion privilege or in the event of the
automatic conversion of the Note, the holder of the Note shall surrender such
Note being converted to the Company at its principal office, and shall give
written notice to the Company at that office that such holder is delivering
the Note for conversion. Such notice shall also state the name or names
(with address or addresses) in which the certificate or certificates for
shares of common stock issuable upon such conversion shall be issued. The
Note surrendered for conversion shall be accompanied by proper assignment
thereof to the Company or in blank.
4.9 NOTICE OF RECORD DATE.
In the event of:
(a) any taking by the Company of a record of the holders of any
class of securities for the purpose of determining the holders thereof
who are entitled to receive any dividend or other distribution, or any
right to subscribe for, purchase or otherwise acquire any shares of
stock of any class or any other securities or property, or to receive
any other right, or
(b) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the
Company, any merger or consolidating of the Company, or a transfer of
all or substantially all of the assets of the Company to any other
corporation, or any other entity or person, or
(c) any voluntary or involuntary dissolution, liquidation or
winding up of the Company,
then and in each such event the Company shall mail or cause to be mailed to
the holder a notice specifying (i) the date on which any such record is to be
taken for the purpose of such dividend, distribution or right and a
description of such dividend, distribution or right, (ii) the date on which
any
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such reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation or winding up is expected to
become effective and (iii) the time, if any, that is to be fixed, as to when
the holders of record of common stock (or other securities) shall be entitled
to exchange their shares of common stock (or other securities) for securities
or other property deliverable upon such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation
or winding up. Such notice shall be mailed at least thirty (30) days prior
to the date specified in such notice on which such action is to be taken.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As a material inducement to the Company to issue its Note to Purchaser
and to issue its Common Stock to Purchaser pursuant to the conversion rights
set forth in Article IV hereof, Purchaser represents and warrants to the
Company in connection with the investment in the Note and upon the exercise
of the conversion rights set forth in Article IV hereof (said Note and common
stock hereinafter collectively referred to as the "Securities") as follows:
5.1 Purchaser, by reason of his knowledge and experience in financial
and business matters, and/or such knowledge and experience of his purchaser
representative, if retained, believes himself capable of evaluating the
merits and risks of this investment.
5.2 In connection therewith, Purchaser represents and warrants his
understanding that his investment is extremely speculative and subject to a
high degree of risk. Purchaser further understands that because of the
speculative nature of his investment, he may lose his entire investment and
Purchaser represents that he has the economic wherewithal to absorb a total
loss of his investment.
5.3 Purchaser acknowledges receipt of such information as he and his
purchaser representative, if retained, deem necessary or appropriate as a
prudent and knowledgeable investor in evaluating the investment. Purchaser
acknowledges that the Company has made available to him or his purchaser
representative the opportunity to obtain additional information to evaluate
the merits and risks of this investment. Purchaser acknowledges that he and
his purchaser representative, if retained, had the opportunity to ask
questions of the Company, and, to the extent he or his offeree
representative, as the case may be, availed himself of such opportunity, he
received satisfactory answers from the Company, or its affiliates,
associates, or employees concerning the terms and conditions of the offering.
5.4 Based upon the foregoing, Purchaser acknowledges the risk and
highly speculative aspect of the securities he is acquiring in the Company,
and understands the proposed use of the funds by the Company, he is familiar
with the management, contemplated operations, financial conditions and all
other factors regarding the Company, and has fully satisfied himself with
respect to the nature of the investment, and has received no assurances of
any kind whatsoever relative thereto, nor have there been any other
representations made by the Company or any of its principals or affiliates
regarding any potential increment in value of the Company's stock which may
be acquired by Purchaser pursuant to the exercise of the conversion rights
contained herein.
5.5 Purchaser hereby represents, warrants and agrees that he is
acquiring the securities solely for his own account, for investment, and not
with a view to the distribution or resale thereof. The undersigned further
represents that his financial condition is such that he is not under any
present necessity or constraint to dispose of such shares to satisfy any
existing or contemplated debt or undertaking.
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5.6 PURCHASER IS AWARE OF THE FACT THAT THE SECURITIES (INCLUDING THE
NOTE, WARRANTS AND COMMON STOCK WHICH MAY BE ACQUIRED) HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND ACCORDINGLY, THAT SUCH
SECURITIES MUST BE HELD INDEFINITELY UNLESS THEY ARE SUBSEQUENTLY REGISTERED
UNDER SAID ACT OR UNLESS, IN THE OPINION OF COUNSEL FOR THE COMPANY, A SALE
OR TRANSFER MAY BE MADE WITHOUT REGISTRATION THEREUNDER. Purchaser is
further aware that he is not and may not ever be entitled to make any sales
or transfers of the securities pursuant to the exemption afforded by Rule 144
promulgated under said Act. Purchaser agrees that any certificate evidencing
the securities may bear a legend restricting the transfer thereof subject to
the approval of the Company that the transfer is lawful.
5.7 Purchaser agrees that the securities being acquired will not be
sold, transferred or assigned without a valid registration statement being in
effect or, in the opinion of counsel for the Company, pursuant to an
exemption from registration.
5.8 Purchaser understands that no federal or state agency has
recommended or endorsed the purchase of the shares or passed on the adequacy
of the information provided by the Company.
ARTICLE VI
REGISTRATION RIGHTS
At Closing, Purchaser shall execute a Registration Rights Agreement
granting to Purchaser, under certain circumstances and subject to certain
restrictions, a one-time demand and certain participatory or piggyback
registration right. Except as provided for therein, the Company shall have
no obligation to register the Conversion Stock under the Securities Act.
ARTICLE VII
EVENTS OF DEFAULT
7.1 EVENTS OF DEFAULT.
If any of the following events ("Events of Default") shall occur
and be continuing:
(a) The Company shall fail to pay any principal or interest on the
Note when due; or
(b) Any representation or warranty made by the Company in
connection with this Agreement, shall prove to have been incorrect when
made in any material respect; or
(c) The Company shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement or the Note on its
part to be performed or observed after written notice thereof shall have
been given to the Company by any registered holder of the Note;
(d) Any event which would constitute a default under the Security
Agreement or Financing Statement given by the Company to secure its
obligations under the Note; or
(e) The Company shall be involved in financial difficulties as
evidenced (i) by it admitting in writing its inability to pay its debts
generally as they become due; (ii) by its commencement of a voluntary
case under Title 11 of the United States Code as from time to time
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in effect, or by its authorizing, by appropriate proceedings of its
Board of Directors or other governing body, the commencement of such a
voluntary case; (iii) by the entry of an order by a court of competent
jurisdiction (a) finding it to be bankrupt or insolvent, or (b) ordering
or approving its liquidation, reorganization or any modification or
alteration of the rights of its creditors, or (iv) by its making an
assignment for the benefit of, or entering into a composition with, its
creditors, or appointing or consenting to the appointment of a receiver
or other custodian for all or a substantial part of its property.
7.2 RIGHTS UPON DEFAULT.
If an Event of Default shall occur and remain uncured after thirty
(30) days, then the holder may declare the entire Note, principal and
interest, to be due and payable at once.
ARTICLE VIII
MISCELLANEOUS
8.1 PAYMENT OF EXPENSES OF PREVAILING PARTY IN DISPUTE.
Unless otherwise specifically provided for herein, in the event
that there is a dispute concerning this Agreement, including, without
limitation, the issue of compliance with any term of this Agreement, the
court may in its discretion, direct that the prevailing party shall be
entitled to reimbursement from the other party of reasonable attorneys' fees
and other expenses incurred in resolving the said dispute.
8.2 SURVIVAL AND INCORPORATION OF REPRESENTATIONS.
The representations, warranties, covenants and agreements made
herein or in any certificates or documents executed in connection herewith
shall survive the execution and delivery thereof, and all statements
contained in any certificate or other document delivered by the company
hereunder or in connection herewith shall be deemed to constitute
representations and warranties made by the company in this Agreement.
8.3 INCORPORATION BY REFERENCE.
All appendices to this Agreement and all documents delivered
pursuant to or referred to in this Agreement are herein incorporated by
reference and made a part hereof.
8.4 PARTIES IN INTEREST.
All covenants, agreements, representations, warranties and
undertakings in this Agreement contained by and on behalf of any of the
parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether or not so expressed.
8.5 AMENDMENTS AND WAIVERS.
This Agreement may not be amended, nor may compliance with any
term, covenant, agreement, condition or provision set forth herein be waived
(either generally or in a particular instance and either retroactively or
prospectively) unless such amendment or waiver is agreed to in writing by all
parties hereto.
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8.6 WAIVER.
No waiver of any breach of any one of the agreements, terms,
conditions, or covenants of this Agreement by the parties shall be deemed to
imply or constitute a waiver of any other agreement, term, condition, or
covenant of this Agreement. The failure of either party to insist on strict
performance of any agreement, term, condition, or covenant, herein set forth,
shall not constitute or be construed as a waiver of the rights of either or
the other thereafter to enforce any other default of such agreement, term,
condition, or covenant; neither shall such failure to insist upon strict
performance be deemed sufficient grounds to enable either party hereto to
forego or subvert or otherwise disregard any other agreement, term,
condition, or covenants of this Agreement.
8.7 GOVERNING LAW.
This Agreement shall be construed and enforced in accordance with
and governed by the laws of the State of Colorado.
8.8 NOTICES.
All notices required or permitted hereunder shall be sufficient if
delivered personally or mailed to the parties at the address set forth above
or at such other address as either party may designate in writing from time
to time. Any notice by mailing shall be effective 96 hours after it has been
deposited in the United States certified mail, return receipt requested, duly
addressed and with postage prepaid.
8.9 FAX/COUNTERPARTS.
This Agreement may be executed by telex, telecopy or other
facsimile transmission, and may be executed in counterparts, each of which
shall be deemed an original, but all of which shall together constitute one
agreement.
8.10 CAPTIONS.
The caption and heading of various sections and paragraphs of this
Agreement are for convenience only and are not to be construed as defining or
limiting, in any way, the scope or intent of the provisions hereof.
8.11 SEVERABILITY.
Wherever there is any conflict between any provision of this
Agreement and any statute, law, regulation or judicial precedent, the latter
shall prevail, but in such event the provisions of this Agreement thus
affected shall be curtailed and limited only to the extent necessary to bring
it within the requirement of the law. In the event that any part, section,
paragraph or clause of this Agreement shall be held by a court of proper
jurisdiction to be invalid or unenforceable, the entire Agreement shall not
fail on account thereof, but the balance of the Agreement shall continue in
full force and effect unless such construction would clearly be contrary to
the intention of the parties or would result in unconscionable injustice.
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8.12 EXECUTION OF DOCUMENTS.
The parties hereto agree to execute and deliver any and all other
documents necessary and convenient to effectuate the sale and purchase herein
provided for, and both parties, as an inducing condition, represent that they
have the authority to enter into this Agreement and to make the foregoing
commitments for themselves.
8.13 TIME.
Time is of the essence of this Agreement and each of its provisions.
8.14 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement of the parties
hereto with respect to the subject matter hereof. There are no
representations, warranties, conditions, or obligations except as herein
specifically provided. Any amendment or modification hereof must be in
writing.
IN WITNESS WHEREOF, the parties have signed the Agreement the date and
year first above written.
PURCHASER
By:
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PREMIER CONCEPTS, INC.
Attest:
By:
-------------------------------- -------------------------------
Secretary Xxxxxx Xxxxxxxxx, President
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