STOCK PURCHASE AGREEMENT
AGREEMENT, dated as of this 20th day of February 1998 (the
"Agreement"), by and among Andal Corp., a New York corporation (the "Company"),
and Xxxxx Xxxxxx ("Xxxxxx") and Benhome Associates L.P. ("Benhome") (Benach and
Benhome are hereinafter collectively referred to as the "Seller").
Seller collectively owns beneficially and of record 1,995 shares of
common stock, par value twenty ($20.00) dollars a share, of the Company (the
"Shares").
Upon the terms, and subject to the conditions hereinafter set forth,
Seller desires to sell, and the Company desires to purchase, the Shares from the
Seller.
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein, and in reliance upon the representations and warranties made herein, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 TERMS.
The following terms as used in this Agreement shall have the
meanings as set forth below:
"Agreement" shall have the meaning set forth in the preamble.
"Closing" shall have the meaning set forth in Section 3.1
hereof.
"Closing Date" shall have the meaning set forth in 3.1 hereof.
"Company" shall have the meaning set forth in the preamble.
"Purchase Price" shall have the meaning set forth in Section
2.2 hereof.
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"Seller" shall have the meaning set forth in the preamble.
"Seller's Representative" shall have the meaning set forth in
Section 3.5 hereof.
"Shares" shall have the meaning set forth in the preamble.
ARTICLE II
SALE AND PURCHASE OF SHARES
2.1 PURCHASE OF SHARES.
On the Closing Date (as hereinafter defined), the Seller shall
sell assign, transfer, convey and deliver to Company, and Company shall purchase
and accept, the Shares.
2.2 PURCHASE PRICE.
The purchase price for the Shares shall be:
(A) The total number of Shares multiplied by $33.00, an
aggregate of $65,835 payable in cash at the Closing PLUS
(B) 1,621 shares of common stock of Integrated Brands, Inc.
(the "Integrated Shares"), free and clean of any liens or encumbrances
whatsoever (such cash payment and such shares of common stock are collectively
referred to herein as the "Purchase Price.")
ARTICLE III
CLOSING
3.1 THE CLOSING.
The closing of the sale and purchase of the Shares (the
"Closing") shall take place at the offices of Gold, Xxxxxxx & Marks, 00 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on
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February 20, 1998, or at such other place and time as the Company and the Seller
may agree (the "Closing Date").
3.2 DELIVERIES AT CLOSING BY SELLERS.
At the Closing, the Seller shall deliver to the Company
certificates representing all the Shares, together with duly executed stock
powers with signatures guaranteed by a commercial bank or by a member firm of
the New York Stock Exchange sufficient to transfer ownership of such Shares to
the Company.
3.3 DELIVERIES AT CLOSING BY COMPANY.
At the Closing, the Company shall cause the cash portion of
the Purchase Price to be delivered to the Seller by wire transfer upon
instructions to be delivered by the Seller to the Company. Seller shall have
delivered to the Company the portion of the Purchase Price consisting of the
Integrated Shares, to be delivered to the Seller at the Closing or as soon
thereafter as practicable certificates representing the Integrated Shares
accompanied by duly executed stock power endorsing transfer in blank.
3.4 DELAYED DELIVERIES.
In the event that Seller is delayed in its ability to deliver
any of the Shares at Closing, it will deliver such Shares to the Company as soon
thereafter as practicable, and the Company may withhold the pro-rata portion of
the Purchase Price applicable to such Shares until they are delivered.
3.5 POWER OF ATTORNEY.
Each Seller hereby appoints Xxxx Xxxxxx and Xxxxx Xxxxxx, each
acting singly, as its agent and attorney-in-fact (the "Seller's Representative")
to perform any act required of or
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permitted by a Seller under this Agreement, including the making and accepting
of deliveries called for hereby and the execution and delivery of this Agreement
on such Seller's behalf.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS, WARRANTIES, AND COVENANTS OF THE COMPANY.
The Company represents and warrants to the Seller, and
covenants that:
(A) ORGANIZATION AND STANDING. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of New York. The Company has full corporate power and authority to own and
operate its properties and assets, and to carry on its business as presently
conducted. The authorized equity securities of the Company consist of 1,500,000
shares of common stock, par value twenty ($20.00) dollars per share, of which
434,078 shares are issued and outstanding as of January 20, 1998.
(B) CORPORATE POWER. The Company has all requisite legal and
corporate power and authority to execute and deliver this Agreement and to
purchase the Shares hereunder and to carry out and perform its obligations under
the terms of this Agreement.
(C) AUTHORIZATION. All corporate action on the part of the
Company necessary for the authorization, execution, delivery and performance of
this Agreement by the Company, including, without limitation, the ability to
purchase the Shares, has been taken or will be taken prior to the Closing. This
Agreement, when executed and delivered by it, will constitute a valid and
binding obligation of the Company, enforceable against it in accordance with its
terms.
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(D) NO CONSENT. Except as referred to in Section 4.1(C)
hereof, no consent, approval or authorization of any person or governmental
authority is required on the part of the Company in connection with the
execution and delivery of this Agreement, or the purchase of the Shares.
(E) TITLE TO THE INTEGRATED SHARES. It is the owner
beneficially and of record of 352,700 shares of common stock of Integrated
Brands, Inc., and no more, and on the Closing Date, upon the consummation of the
transactions contemplated hereby, will have delivered to the Seller, good and
marketable title to the Integrated Shares free and clear, subject to the
requirements of Federal and state securities laws, of all liens and encumbrances
or rights of any other person whomsoever.
(F) COMPLIANCE WITH OTHER INSTRUMENTS. Neither the execution,
delivery, nor performance of this Agreement by the Company shall (1) violate any
order, judgment, or decree applicable to the Company; or (2) violate, conflict
with, result in a breach of any provision of, constitute a default (or an event
that, with notice or lapse of time or both, would constitute a default) under,
result in the termination of, accelerate the performance required by, or result
in a right of termination or acceleration, or the creation of any lien, security
interest, charge, or encumbrance upon any of the Integrated Shares under any of
the terms, conditions, or provisions of (a) its articles of incorporation or
bylaws, or (b) any note, bond, mortgage, indenture, deed of trust, license, or
other contract or obligation to which the Company is a party, by which the
Company may be bound, or to which the Company, its respective properties, or its
respective assets may be subject.
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4.2 REPRESENTATIONS AND WARRANTIES OF THE SELLER.
The Seller represents and warrants to the Company and
covenants that:
(A) CONVEYANCE OF SHARES. The Seller has, and on the Closing
Date will have conveyed to the Company, the full beneficial ownership to the
number of Shares set forth in the preamble hereto, free and clear, subject to
the requirements, of Federal and State securities laws, of all liens and
encumbrances or rights of any other person whomsoever.
(B) ACCESS TO DATA. The Seller is (1) an "accredited investor"
(as such term is defined in Regulation D promulgated under the Securities Act of
1933, as amended (the "Securities Act")) and (2) a sophisticated investor with
knowledge and experience in business matters who (a) has had the opportunity to
discuss the Company's business, management and financial affairs with the
Company's management, (b) has had the opportunity to review the Company's
business affairs and (c) has had the opportunity to obtain additional
information as desired in order to evaluate the terms of the sale of the Shares
for the Purchase Price (including the receipt of the Integrated Shares). The
Purchase Price has been determined by arms-length negotiation between the
Company and the Seller.
(C) AUTHORIZATION. All action on the Seller's part necessary
for the authorization, execution, delivery and performance of this Agreement by
the Seller through the Seller's representative, and the performance of the
Seller's obligations hereunder, have been taken or will be taken prior to the
Closing Date. This Agreement, when executed and delivered by it, will constitute
a valid and legally binding obligation of the Seller, enforceable in accordance
with its terms and subject to laws of general application relating to
bankruptcy, insolvency, and the relief of debtors and rules of law governing
specific performance, injunctive relief or other
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equitable remedies. The Seller's Representative has been duly and validly
appointed and authorized by the Seller in accordance with its governing
instrument, if any, and any applicable state or federal law or regulation,
including, without limitation, the New York Partnership Law ("NYPL").
(D) COMPLIANCE WITH OTHER INSTRUMENTS. Neither the execution,
delivery, nor performance of this Agreement by the Seller through the Seller's
Representative, shall (1) violate any provision of the NYPL or any other
applicable partnership statute if any; (2) violate any order, judgment, or
decree applicable to the Seller; (3) violate, conflict with, or result in a
breach or default under, or cause the termination of, any term or condition or
any court order, agreement, document, or other instrument to which the Seller is
a party or by which the Seller or any of its respective properties or respective
assets may be bound; or (4) violate, conflict with, result in a breach of any
provision of, constitute a default (or an event that, with notice or lapse of
time or both, would constitute a default) under, result in the termination of,
accelerate the performance required by, or result in a right of termination or
acceleration, or the creation of any lien, security interest, charge, or
encumbrance upon any of the Shares under any of the terms, conditions, or
provisions or (a) its partnership agreement or any other organizational document
of the non-individual Seller, or (b) any note, bond, mortgage, indenture, deed
of trust, license, or other contract or obligation to which the Seller is a
party, by which the Seller may be bound, or to which the Seller, its respective
properties, or its respective assets may be subject.
(E) NO CONSENT. No notice to, filing with, authorization of,
exemption by, or consent or approval of any public body or authority or any
other third party, including, without limitation, the Attorney General of the
State of New York, the United States Internal Revenue
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Service or any New York State court is necessary for the Seller's execution,
delivery and performance of this Agreement or any other agreement or document
contemplated hereunder or the consummation, by a Seller of the transactions
contemplated herein.
(F) VALID EXISTENCE. The non-individual Seller is an entity
duly organized, validly existing and in good standing under the laws of the
State of New York, and has full power and authority to carry on its business and
to own or lease all of its properties and assets as and in the places such
businesses are now conducted, and such properties are now owned, leased or
operated.
(G) INVESTMENT INTENT. The Seller is acquiring the Integrated
Shares, paid as part of the Purchase Price, for its own account and not with a
view to the distribution thereof within the meaning of the Securities Act, any
state securities law, or any regulation of any of the foregoing.
ARTICLE V
CONDITIONS TO CLOSING
5.1 CONDITIONS TO CLOSING OF COMPANY.
The Company's obligations to purchase the Shares at the Closing are, at
the option of Company, subject to the fulfillment of the following conditions:
(A) REPRESENTATIONS AND WARRANTIES CORRECT. The
representations and warranties made by Seller, in Article IV hereof, shall have
been true and correct when made and shall be true and correct as of the Closing
Date.
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(B) CONDITIONS. All agreements and conditions contained in
this Agreement to be performed by the Seller on or prior to the Closing Date
shall have been performed or complied with in all material respects.
5.2 CONDITIONS TO CLOSING OF SELLER.
The Seller's obligations to sell and deliver the Shares on the Closing
Date are, at the option of the Seller, subject to the fulfillment as of the
Closing Date of the following conditions:
(A) REPRESENTATIONS. The representations and warranties made
by the Company in Article IV hereof shall have been true and correct when made,
and shall be true and correct on the Closing Date.
(B) COVENANTS. All agreements and conditions contained in this
Agreement to be performed by the Company on or prior to the Closing Date shall
have been performed or complied with in all material respects.
ARTICLE VI
MISCELLANEOUS
6.1 GOVERNING LAW.
This Agreement shall be governed in all respects by the laws of the
State of New York, without regard to principles of conflicts of laws.
6.2 SURVIVAL.
All representations and warranties shall survive the Closing Date. Any
representation or warranty as to which a claim with respect to which specific
notice has been given is unresolved at the time of the expiration of the
applicable period shall survive such expiration until resolved.
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6.3 TRANSACTION PAYMENTS BY COMPANY.
Company shall reimburse Seller for all expenses Seller may reasonably
incur in connection with the transactions contemplated by this Agreement,
including, without limitation, all legal fees and related disbursements.
6.4 SUCCESSORS AND ASSIGNS.
Except as otherwise 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 and any other documents delivered pursuant hereto,
constitute the full and entire understanding and agreement between the parties
with regard to the subject matter hereof. Except as expressly provided herein,
neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver or discharge or termination is sought.
6.6 NOTICES.
All notices and other communications required or permitted hereunder
shall be in writing and shall be mailed by registered or certified mail, postage
prepaid, or otherwise delivered by hand or by messenger addressed (a) if to
Seller Xxxxx Xxxxxx 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, or at such
other address as Seller shall have furnished to the Company in writing with a
copy to Xxxxxxx X. Xxxxxx, Esq., Gold, Xxxxxxx & Marks, 00 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000; or (b) if to the Company, to Andal Corp., 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and addressed to the attention of Xxxx X.
Xxxxx and Xxxxxx X. Xxxxxxx
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with a copy to Xxx X. Xxxxxx, Esq., Esanu Katsky Xxxxxx & Siger, LLP, 000 Xxxxx
Xxx., Xxx Xxxx, Xxx Xxxx 00000, or to such other address or addresses as a party
may have been furnished by notice to the other party. Each such notice or other
communication shall for all purposes of this Agreement be treated as effective
or having been given when delivered personally, or, if sent by mail, at the
earlier of its receipt or five (5) days after the same has been deposited in the
United States mail, addressed and mailed as aforesaid.
6.7 COUNTERPARTS.
This Agreement may be executed in counterparts, each of which shall be
enforceable against the party actually executing such counterparts, and all of
which together shall constitute one instrument.
6.8 SEVERABILITY.
In the event that any provisions of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provisions provided that no such severability shall be effective if it
materially changes the economic benefit of this Agreement to any party.
6.9 TITLES AND SUBTITLES.
The titles and subtitles used in this Agreement are used for
convenience only and are not considered in construing or interpreting this
Agreement.
6.10 RESTRICTIONS ON THE SHARES OF INTEGRATED BRANDS INC.
The Company agrees to notify the Seller prior to selling or otherwise
transferring all or any portion of the shares of common stock of Integrated
Brands, Inc. owned by the Company.
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Seller agrees that it will not sell or transfer the Integrated Shares, it
receives as part of the Purchase Price pursuant to Section 3.3. hereof prior to
the earlier to occur of:
(A) the sale or distribution by the Company of all or any
portion of the shares of common stock of Integrated Bands, Inc. that it now owns
to persons other than the Seller; or
(B) the one-hundred twenty-first day next following the
Closing Date.
6.11 FURTHER ASSURANCES.
At any time and from time to time and after the Closing Date, the
Seller will, at the request of the Company and without further consideration,
execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, such instruments and other documents and perform or cause to be
performed such acts and provide such information, as may reasonably be required
by the Company to evidence or effectuate the sale, conveyance, transfer,
assignment and delivery to the Company of the Shares or for the performances by
and of the Seller or the Company of any of their respective obligations under
this Agreement.
6.12 INDEMNIFICATION BY SELLER.
Each Seller shall, jointly and severally, indemnify the Company and all
of its officers and directors (the "Indemnified Parties") against and agree to
hold the Indemnified Parties harmless from any and all claims, damage, loss,
liability and expense (including, without limitation, reasonable expenses of
investigation and reasonable attorneys' fees and expenses)("Damages") incurred
or suffered by any of the Indemnified Parties on or after the Closing Date
arising out of any misrepresentation, inaccuracy or breach of any
representation, warranty, covenant or promise by the Seller (or either of them)
contained in this Agreement (or in any certificate, document, list or schedule
delivered to the Company by the Seller (or either of them) hereunder).
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6.13 INDEMNIFICATION BY COMPANY.
The Company shall indemnify the Seller against and agree to hold the
Seller (or either of them) harmless from any and all Damages incurred or
suffered by the Seller (or either of them) on or after the Closing Date arising
out of any misrepresentation, inaccuracy or breach of any representation,
warranty, covenant or promise by the Company contained in this Agreement (or in
any certificate, document, list or schedule delivered to the Seller (or either
of them) by the Company hereunder).
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed and delivered
this Agreement as of the date first above written.
ANDAL CORP. ("Company")
BY: /s/ XXXXXX X. XXXXXXX
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ITS: CHIEF EXECUTIVE OFFICER
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/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
BENHOME ASSOCIATES L.P.
BY: /s/ XXXXX XXXXXX
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(A General Partner)
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