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EXHIBIT 99.1
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of November
__, 1996, is among Xxxxxxx Furniture Company, Inc., a Delaware corporation (the
"Company") and the Selling Stockholders listed on Schedule 1 hereto.
A. The Selling Stockholders own an aggregate of 2,758,902 shares
of common stock, $.02 par value, of the Company (the
"Shares");
B. The Selling Stockholders desire to sell the Shares in a
registered public offering pursuant to an Underwriting
Agreement (the "Underwriting Agreement") to be executed among
the Company, the Selling Stockholders and Xxxxxx, Read & Co.
Inc., Xxxxxxx Xxxxx & Associates, Inc. and Wheat, First
Securities, Inc. (the "Managing Underwriters") as
representatives of the several Underwriters named therein.
C. In the event that the Managing Underwriters do not exercise,
or do not exercise in full, the over-allotment option pursuant
to the Underwriting Agreement, the Company desires to purchase
the Shares on the terms and conditions hereinafter set forth.
In consideration of the mutual promises, representations, warranties,
covenants and conditions set forth in this Agreement, the parties to this
Agreement mutually agree as follows:
1. Purchase and Sale of Shares. Subject to the terms and
conditions herein provided, the Company hereby agrees to purchase and pay for,
and each of the Selling Stockholders hereby agrees to sell and transfer the
number of Shares set forth opposite the
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name of such Selling Stockholder on Schedule 1 hereto to the extent such Shares
are not acquired by the Underwriters pursuant to the Underwriting Agreement
upon exercise of the over-allotment option thereunder. The consideration for
the sale and transfer of the Shares shall be $ ____________ per Share. The
closing of the foregoing transactions (the "Closing") shall occur on the third
business day following the period specified in the Underwriting Agreement for
the exercise of the over-allotment option thereunder at such location as is
mutually agreable to the parties or at such other time and location as are
mutually agreeable to the parties. The Selling Stockholders shall make
delivery of the Shares to the Company at the Closing by delivering to the
Company, or its authorized representative, the certificates representing the
Shares duly endorsed or with stock powers attached thereto duly signed, against
payment of the purchase price in cash, check or by wire transfer.
2. Representations and Warranties of the Selling Stockholders.
(A) Each of the Selling Stockholders represents and warrants to the Company as
follows:
a. The execution and delivery of this Agreement and the
performance by such Selling Stockholder of such Selling Stockholder's
obligations hereunder have been duly authorized by all necessary
action by such Selling Stockholder and this Agreement is a legal,
valid and binding agreement of such Selling Stockholder, enforceable
against such Selling Stockholder in accordance with its terms.
b. The Shares set forth opposite such Selling
Stockholder in Schedule 1 hereto are owned beneficially and of record
by such Selling Stockholder, there exist no liens, options, charges,
adverse claims or encumbrances of any kind, including any margin
loans, affecting such Shares and upon delivery of such Shares, the
Company
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will own such Shares free and clear of any lien, option, charge,
adverse claim or encumbrance of any kind..
c. The consummation by such Selling Stockholder of the
transactions contemplated by this Agreement will not, as applicable,
violate any provision of the charter or governing documents of such
Selling Stockholder, or violate any provision of, or constitute a
default under, any mortgage, deed of trust, indenture, or other
agreement or instrument, to which such Selling Stockholder is a party
or by which any of its assets are bound, or violate or conflict with
any existing law, order, rule, regulation, writ, injunction, judgment
or decree of any government, governmental instrumentality, agency or
body, arbitration tribunal, or court, domestic or foregin, having
jurisdiction over such Selling Stockholder or such Selling
Stockholder's property.
(B) Each of the XX-Xxx Acquisition Fund, L.P., XX-Xxx Acquistion Fund
II, L.P. and XX-Xxx Acquisition Fund (Retirement Accounts) II, L.P. represents
that it has elected to operate as a "Business Development Company" within the
meaning of the Investment Company Act of 1940, as amended
3. Representations and Warranties of the Company. The Company
represents and warrants to the Selling Stockholders as follows:
a. The execution and delivery of this Agreement and the
performance by the Company of its obligations hereunder have been duly
authorized by all necessary action by the Company and this Agreement
is a legal, valid and binding agreement of the Company, enforceable
against it in accordance with its terms.
b. The consummation by the Company of the transactions
contemplated by this Agreement will not violate any provision of the
Certificate of Incorporation or Bylaws of the Company, or violate any
provision of, or constitute a default under, any mortgage, deed of
trust, indenture, or other agreement or instrument, to which the
Company is a party or by which any of its assets are bound, or violate
or conflict with any existing law, order, rule, regulation, writ,
injunction, judgement or decree of any government, governmental
instrumentality, agency or body, arbitration tribunal, or court,
domestic or foreign, having juridiction over the Company or the
Company's property.
4. Conditions. In addition to the other conditions contained
herein, the obligation of the Selling Stockholders to sell and transfer, and
the obligation of the Company to
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purchase and pay for, the Shares is subject to the meeting of each of the
following conditions at or prior to the Closing:
a. With respect to the obligations of the Company, each
of the representations and warranties of the Selling Stockholders
contained in this Agreement shall be true and correct in all respects
as of the date of this Agreement and as of the Closing.
b. With respect to the obligations of the Selling
Stockholders, each of the representations and warranties of the
Company contained in this Agreement shall be true and correct in all
respects as of the date of this Agreement and as of the Closing.
c. The Underwriting Agreement shall have been duly
executed and delivered.
d. The consummation and closing of the purchase of the
Firm Shares (as detailed in the Underwriting Agreement) shall have
occurred.
e. The Managing Underwriters shall have failed to
exercise, or failed to exercise in full, the over-allotment option
pursuant to the Underwriting Agreement by the date specified for such
exercise in the Underwriting Agreement.
f. Neither the Company nor the Selling Stockholders
shall be prohibited by any action, order, judgment or injunction of a
court of competent jurisdiction from purchasing or selling the Shares
under this Agreement.
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5. Termination. This Agreement shall terminate upon exercise in
full by the Underwriters of the over-allotment option under the Underwriting
Agreement. After expiration of the period specified in the Underwriting
Agreement for the exercise of the over-allotment option thereunder, this
Agreement may be terminated at any time prior to the Closing:
a. by the Company if any of the conditions specified in
Section 4 (except for the condition specified in Section 4(b)) of this
Agreement have not been met or waived by it pursuant to the terms of
this Agreement; or
b. by the Selling Stockholders if any of the conditions
specified in Section 4 (except for the condition specified in Section
4(a)) of this Agreement have not been met or waived by it pursuant to
the terms of this Agreement; provided, however, this Agreement may not
be terminated by virtue of the condition in Section 4(f) not being met
until any action, order, judgment or injunction referred to therein
becomes final and non-appealable.
6. Amendment. This Agreement may be amended at any time prior to
the Closing provided that any such amendment is approved in writing by each of
the parties. All representations and warranties of the Company and the Selling
Stockholders which are true and correct as modified and approved shall be
deemed true and correct for the purposes of Sections 2 and 3.
7. Extension; Waiver. At any time prior to the Closing either
party to this Agreement may (i) extend the time for the performance of any of
the obligations of the other party, (ii) waive a breach of a representation or
warranty of the other party, or (iii) waive compliance by the other party with
any of the agreements or conditions contained herein. Any such extension or
waiver shall be valid if set forth in a written instrument signed by the party
giving the extension or waiver.
8. Notices. All notices and other communications given hereunder
shall be in writing. Notices shall be effective when delivered, if delivered
personally. Otherwise, they shall be effective when sent to the parties at the
addresses or numbers listed below, as
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follows: (i) on the business day delivered (or the next business day following
delivery if not delivered on a business day) if sent by a local or long
distance courier, prepaid telegram, telefax or other facsimile means, or (ii)
three days after mailing if mailed by registered or certified U.S. mail,
postage prepaid and return receipt requested.
If to the Company to:
Xxxxxxx Furniture Company
P. X. Xxx 00
Xxxxxxx 00 Xxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Telefax No.: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxxxx, Esquire
McGuire, Woods, Battle & Xxxxxx, L.L.P.
Xxx Xxxxx Xxxxxx
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Telefax No.: (000) 000-0000
If to a Selling Stockholder to:
the address set forth for such Selling Stockholder
in Schedule 1 hereto,
with a copy to:
Xxxxxxx X. Xxxxxx, Esquire
Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telefax No.: (000) 000-0000
or to such other address or number as a party may designate by giving notice of
the change in the manner set forth above.
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9. Miscellaneous. This Agreement (i) constitutes the entire
agreement and supersedes all other prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof;
(ii) is not intended to and shall not confer upon any person or entity, other
than the parties hereto, any rights or remedies with respect to the subject
matter hereof; and (iii) shall not be assigned by operation of law or
otherwise.
10. Section Headings. Section headings are included solely for
convenience and are not to be considered to be part of this Agreement and are
not intended to be accurate descriptions of the contents thereof.
11. Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties thereto and their respective transferees, successors
and assigns; provided, however, no party may assign this Agreement without the
written consent of the other parties to this Agreement.
12. Counterparts. 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 instrument.
13. Choice of Law. All questions as to the interpretation and
effect of this Agreement shall be determined under the laws of the State of
Delaware, excluding the choice of law principles thereof.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed on and as of the date first written above.
XXXXXXX FURNITURE COMPANY, INC.
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Xxxxxx X. Xxxxxxxxx
President
XX-XXX ACQUISITION FUND, L.P.
By: Mezzanine Investments, L.P.
Its Managing General Partner
By: ML Mezzanine Inc.
Its General Partner
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Name
Title
XX-XXX ACQUISITION FUND II, L.P.
By: Mezzanine Investments II, L.P.
Its Managing General Partner
By: ML Mezzanine II Inc.
Its General Partner
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Name
Title
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XX-XXX ACQUISITION FUND
(RETIREMENT ACCOUNTS) II, L.P.
By: Mezzanine Investments II, L.P.
Its Managing General Partner
By: ML Mezzanine II Inc.
Its General Partner
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Name
Title
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, N.A., NOT
INDIVIDUALLY, BUT AS TRUSTEE FOR THE
1989 XXXXXX X. XXX NOMINEE TRUST,
DATED 9/29/89*
XXXXXX & CO.*
X. XXXXXX XXXX*
XXXX X. CHILDS*
XXXXX X. XXXXXXX*
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XXXXX X. XXXXXXX C/F XXXXXXX XXXXXXX*
XXXXX X. XXXXXXX C/F XXXXX XXXXXXX*
XXXXX X. XXXXXXXX*
XXXXX X. XXXXXX*
XXXXXX X. XXXXXXXX*
XXXXXXX X. XXXXXX*
*By:
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Name:
Attorney-in-Fact
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Schedule 1
Number of
Name and Address of Selling Stockholders Shares
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XX-Xxx Acquisition Fund, L.P. . . . . . . . . . . . . . . . . . . . . . . . 2,675,552
XX-Xxx Acquisition Fund II, L.P. . . . . . . . . . . . . . . . . . . . . . 23,105
XX-Xxx Acquisition Fund (Retirement Accounts) II, L.P. . . . . . . . . . . 18,511
X. Xxxxxx Xxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 774
Xxxx X. Childs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,936
Xxxxx X. Xxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,291
Xxxxx X. Xxxxxxx C/F Xxxxxxx Xxxxxxx . . . . . . . . . . . . . . . . . . . 1,000
Xxxxx X. Xxxxxxx C/F Xxxxx Xxxxxxx . . . . . . . . . . . . . . . . . . . . 1,000
State Street Bank and Trust Company of Connecticut, N.A.,
Not Individually, But as Trustee for the 1989 Xxxxxx X. Xxx
Nominee Trust, Dated 9/29/89 . . . . . . . . . . . . . . . . . . . . . . . 30,409
Xxxxx X. Xxxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,291
Xxxxx X. Xxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 774
Xxxxxx X. Xxxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . 645
Xxxxxx & Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,614
Xxxxxxx X. XxXxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,000
