Exhibit 1
STOCK PURCHASE AGREEMENT
Agreement, dated as of November 3, 1997, by and among Xxxxxxx X. Xxxxxx
("Buyer"), Xxxxxx Xxxxxx ("X. Xxxxxx") and Xxxxxx Xxxxxx ("X. Xxxxxx", and,
together with X. Xxxxxx, the "Sellers").
R E C I T A L S
A. The Sellers are the record and beneficial owners of an aggregate of
951,400 shares (the "Shares") of common stock, par value $.01 per share ("Common
Stock"), of Cygne Designs, Inc., a Delaware corporation (the "Company"); and
B. The Buyer has agreed to buy, and the Sellers have agreed to sell, the
Shares, subject to certain terms and conditions herein set forth.
THEREFORE, in consideration of the promises and the mutual covenants and
conditions herein contained, the Sellers and the Buyer hereby agree as follows:
ARTICLE ONE
(Purchase and Sale of Shares)
Subject to the terms and conditions hereof and in reliance upon the
representations, warranties and agreements contained herein, each Seller,
severally and not jointly, hereby agrees to transfer and sell to the Buyer, and
the Buyer hereby agrees to purchase from each Seller, that number of Shares set
forth opposite such Seller's name in Schedule A hereto at a purchase price of
$.40 per Share, or $380,560 in the aggregate.
ARTICLE TWO
(The Closing)
The closing of the sale and purchase of the Shares contemplated hereunder
(the "Closing") shall take place at the offices of Fulbright & Xxxxxxxx L.L.P.,
000 Xxxxx Xxxxxx, Xxx Xxxx, XX at 9:30 A.M. on December 3,1997 (the "Closing
Date"), or at such other time and place as may be mutually agreed upon in
writing by the parties. At the Closing (i) the Buyer shall deliver to each
Seller a certified or official bank check payable to the order of such Seller in
the amount of the purchase price for the Shares being sold by such Seller as set
forth in Schedule A hereto and (ii)
each Seller will deliver to the Buyer one or more stock certificates
representing the Shares purchased by the Buyer from such Seller as set forth
herein, with stock powers duly endorsed in blank attached thereto, and shall
take all such further actions as may reasonably be requested by the Company's
transfer agent in connection with the issuance to the Buyer of a certificate or
certificates, registered in the name of the Buyer, representing the Shares. The
Shares shall be transferred by each Seller to the Buyer free and clear of any
and all Encumbrances (as hereinafter defined). In addition, each Seller shall
affix to the stock certificates being delivered by such Seller, at such Seller's
expense, all requisite stock transfer tax stamps, if any.
ARTICLE THREE
(Certain Representations and Warranties of the Sellers)
Each Seller, severally and not jointly, hereby represents and warrants to,
and covenants with, the Buyer that:
3.1 Compliance. The execution, delivery by such Seller and performance by
such Seller of this Agreement and the sale and delivery of the Shares by such
Seller will not violate, conflict with or result in a breach of any agreement or
other document or undertaking to which such Seller is a party or by which such
Seller is bound or violate any law, regulation, order, writ, injunction or
decree of any court or administrative or governmental body by which such Seller
is bound.
3.2 Unencumbered Title. Such Seller is the sole record and beneficial
owner of the Shares to be transferred by such Seller to the Buyer. Such Shares
are not subject to any lien, claim, restriction or encumbrance or to any option
or right (collectively, "Encumbrances") that restricts such Seller from
transferring good and marketable title to such Shares to the Buyer, free and
clear of any Encumbrances.
3.3 Familiarity with the Company. Such Seller has relied upon independent
investigations made by such Seller or such Seller's representatives and such
Seller is fully familiar with the business, results of operations, financial
condition, prospects and other affairs of the Company. Such Seller acknowledges
that in connection with the sale of the Shares hereunder, neither the Company,
the Buyer nor anyone acting on their behalf or any other person has made, and
such Seller is not relying upon, any representations, statements or projections
concerning the Company, its present or projected results of operations, its
prospects, its present or future plans, its products, or the value of its shares
or business or any other matter in relation to its business or affairs.
3.4 Opportunity to Ask Questions. Such Seller has been given the
opportunity to ask questions of and to receive answers from the Company
regarding the business, results of operations, financial condition, prospects or
other affairs of the Company and to obtain such other information as such Seller
desired in order to evaluate such Seller's decision to sell the Shares.
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3.5 Professional Advice. Such Seller has received professional advice from
such Seller's counsel and accountants regarding such Seller's sale of the
Shares.
ARTICLE FOUR
(Certain Representations and Warranties of the Buyer)
The Buyer represents and warrants to the Sellers that:
4.1 Investment Intent, etc. He is acquiring the Shares to be purchased by
him for investment for his own account and not with the view to, or for resale
in connection with, any distribution thereof. He is an "accredited investor"
within the meaning of Regulation D under the Securities Act of 1933, as amended
(the "Securities Act"), and has such knowledge and experience in financial and
business matters that he is capable of evaluating the merits and risks of an
investment in the Shares. He understands that the Shares have not been
registered under the Securities Act or under the securities laws of any state
and, therefore, cannot be resold unless so registered or unless an exemption
from registration is available. The stock certificates will bear a legend to
that effect.
4.2 Familiarity with the Company. He is fully familiar with the business,
results of operations, financial condition, prospects and other affairs of the
Company. He acknowledges that in connection with his purchase of Shares
hereunder, neither the Company, the Sellers nor anyone acting on their behalf or
any other person has made, and he is not relying upon, any representations,
warranties, statements or projections concerning the Company, its present or
projected results of operations, its prospects, its present or future plans, its
products, or the value of its shares or business or any other matter in relation
to its business or affairs.
ARTICLE FIVE
(Conditions)
5.1 The obligation of the Buyer to purchase the Shares is subject to the
fulfillment of each of the following conditions:
(a) The representations and warranties of the Sellers contained in this
Agreement shall be true and correct in all material respects at the date hereof
and at and as of the Closing, with the same force and effect as if made at and
as of the Closing, and each Seller shall have performed or complied with all
agreements and covenants required by this Agreement to be performed or complied
with by such Seller on or prior to the Closing.
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5.2 The obligations of the Sellers to consummate the sale of the Shares are
subject to the fulfillment of each of the following conditions:
(a) The representations and warranties of the Buyer contained in this
Agreement shall be true and correct in all material respects at the date hereof
and at and as of the Closing, with the same force and effect as if made at and
as of the Closing, and the Buyer shall have performed or complied with all
agreements and covenants required by this Agreement to be performed or complied
with by the Buyer on or prior to the Closing.
ARTICLE SIX
(Miscellaneous)
6.1 Governing Law. This Agreement shall be governed in all respects by the
laws of the State of New York as such laws are applied to agreements between New
York residents entered into and to be performed entirely within New York.
6.2 Third Party Beneficiary. In permitting the transfer of the Shares
hereunder, the Company may rely upon, and shall be a third party beneficiary of,
the representations and warranties of the Sellers set forth in Article Three
hereof and the representations and warranties of the Buyer set forth in Article
Four hereof.
6.3 Survival. The representations, warranties, covenants and agreements
made herein shall survive the execution and delivery of this Agreement.
6.4 Successors and Assigns. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
6.5 Entire Agreement; Amendment. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof. Neither this Agreement nor any term hereof may be
amended, discharged or terminated except by a written instrument signed by the
parties hereto.
6.6 Delays or Omissions. The parties hereto agree that no delay or omission
to exercise any right, power or remedy accruing upon any breach or default under
this Agreement shall impair any such right, power or remedy, nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence
therein, or of any similar breach or default thereafter occurring; nor shall any
waiver of any single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver of any provisions or
conditions of this Agreement must be made in writing and shall be effective only
to the extent specifically set forth in such writing.
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All remedies, either under this Agreement or by law or otherwise afforded to any
party, shall be cumulative and not alternative.
6.7 Severability. In case any provision of the Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
6.8 Additional Acts. The parties hereto agree to sign such additional
documents and to take such additional actions as may reasonably be necessary of
any of them to accomplish the purposes of this Agreement.
6.9 Titles and Subtitles. The titles of the paragraphs and subparagraphs of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
6.10 Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall be deemed one original.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first written above.
/s/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx
/s/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx
/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
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SCHEDULE A
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Seller Number of Shares Sold Purchase Price
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Xxxxxx Xxxxxx 885,061 shares $354,024.40
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Xxxxxx Xxxxxx 66,339 shares $26,535.60
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Total 951,400 shares $380,560.00
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