EXHIBIT 2.1
XXXX OF SALE AND CONTRIBUTION AND ASSUMPTION AGREEMENT
Dated December 18, 1996
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The parties to this xxxx of sale and contribution and assumption
agreement (this "Agreement") are DELIA'S LLC, a New York limited liability
company (the "Transferor"), and xXXxX*s INC., a Delaware corporation (the
"Transferee").
The Transferee wishes to acquire, and the Transferor wishes to
transfer, convey, assign, and contributes to the Transferee, all the assets,
properties, interests in properties and rights of the Transferor (other than the
Excluded Assets (as defined in Section 2)) in exchange for shares of 10,000,000
common stock of Transferee, and the Transferee wishes to assume all the
liabilities and obligations of the Transferor (other than the liabilities and
obligations specified in clauses (i) and (ii) of the proviso in Section 3).
Accordingly, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1. Transferor hereby transfers, assigns, conveys, and
contributes to the Transferee all the assets, properties, interests and rights
of the Transferor, of every kind and description, wherever located, other than
the Excluded Assets.
SECTION 2. Excluded from the assets, properties, interests in
properties and rights of the Transferor to be transferred, conveyed, assigned
and contributed pursuant to Section 1, are the following ("Excluded Assets"):
(a) the rights of the Transferor pursuant to this Agreement;
(b) $4,000,000 in cash;
(c) all refunds, credits and other rights of the Transferor in
respect of taxes on the Transferor's income attributable to the assets
transferred pursuant to this Agreement for any period ending on or before
the date hereof; and
(d) assets set forth on exhibit A.
SECTION 3. The Transferee assumes, and agrees to pay, perform and
discharge, indemnify and hold the Transferor harmless from and against all
liabilities and obligations of the Transferor, whether actual or contingent,
known or unknown, arising out of any facts, events or circumstances on or before
the date of this Agreement; provided, however, that the liabilities and
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obligations assumed do not include (i) any obligations or liabilities pursuant
to or arising under the Transferor's amended and restated operating agreement or
(ii) any liabilities or obligations arising from taxes on the Transferor's
income.
SECTION 4. Transferor hereby subscribes for 10,000,000 shares of
Common Stock (par value $.01 per share) of Transferee (the "Shares"). The
Corporation accepts the subscription and shall issue the Shares on the date
hereof.
SECTION 5. The parties will use all reasonable efforts to carry out
the purposes of this Agreement.
SECTION 6. No amendment to this Agreement shall be binding on either
party unless such amendment is in writing and executed by both parties.
SECTION 7. This Agreement shall be governed by the law of the state
of New York without regard to the conflict of laws rules of such state.
* * *
TRANSFEREE:
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XXXXX*S INC.
By:/s/Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: President
TRANSFEROR:
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DELIA'S LLC
By:/s/Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: President
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EXHIBIT A
Transferor's company seals, minute books, membership interest books, articles of
organization, operating agreements, qualification to conduct business as a
foreign limited liability company, arrangements with registered agents relating
to foreign qualifications, taxpayer and other identification numbers, income tax
returns and such other books and records as pertain to the organization,
existence and equity capitalization of the Transferor (it being understood that
all of Transferor's other books and records are being transferred to the
Transferee).
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