STOCK PURCHASE AGREEMENT
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STOCK PURCHASE AGREEMENT (the "Agreement") dated as of August
31, 1999, by and among XXXXXX XXXXXXXXXX, INC., a Delaware corporation (the
"Purchaser"), and PERFUMANIA, INC., a Florida corporation (the "Seller").
WHEREAS, the Purchaser, desires to acquire from the Seller
1,512,406 shares of the Seller's common stock, par value $.01 per share, (the
"Stock"), and the Seller desires to sell the Stock to the Purchaser in
consideration for a partial reduction of outstanding trade indebtedness due from
the Seller to the Purchaser in the amount of $4,506,970;
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein, the Purchaser and the Seller agree as follows:
ARTICLE I
PURCHASE AND SALE
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1.1 The Purchase. (a) Upon satisfaction of all conditions precedent set
forth herein, on the Closing Date (as defined below), the Seller shall sell and
deliver the Stock to the Purchaser in consideration of a cancellation of the
amount of trade indebtedness owed by the Seller to the Purchaser in the amount
of $4,506,970.
(b) At the Closing, the Seller shall deliver to the Purchaser
a certificate representing the Stock which the Purchaser is purchasing and the
Purchaser shall deliver to the Seller an instrument executed by the Purchaser
cancelling $4,506,970 of trade indebtedness owed by the Seller to the Purchaser.
The certificate representing the Stock shall bear the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES COMMISSION OF ANY
STATE UNDER ANY STATE SECURITIES LAW. THE SECURITIES MAY NOT BE
OFFERED, SOLD OR OTHERWISE DISTRIBUTED IN THE UNITED STATES OR TO ANY
U.S. PERSONS UNLESS THE SECURITIES ARE REGISTERED UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS, OR SUCH OFFERS, SALES AND TRANSFERS
ARE MADE PURSUANT TO AVAILABLE EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF THE ACT AND THOSE LAWS.
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(c) The Seller acknowledges and agrees that the trade
indebtedness to be canceled shall be comprised of the indebtedness which has
been outstanding for the longest period.
1.2 Closing. The Closing of the transactions described in Section 1.1
shall take place at the offices of the Seller, on September 3, 1999 (the
"Closing Date") or such other date, time, and place as may be agreed upon by the
Purchaser and the Seller.
ARTICLE II
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REPRESENTATIONS AND WARRANTIES OF THE SELLER
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The Seller represents and warrants to the Purchaser that at the Closing
Date:
2.1 Due Incorporation; Organization. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida. Each of the Seller's significant subsidiaries (within the meaning of
Regulation S-X under the Securities Exchange Act of 1934, as amended, (the
"Significant Subsidiaries")) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation.
The Seller and each of the Significant Subsidiaries has the requisite corporate
power and authority to own, operate or lease its assets and properties and to
carry on its business as it is now being conducted, and is duly qualified or
licensed to do business, and is in good standing, in each jurisdiction in which
the nature of its business or the properties owned, operated or leased by it
makes such qualification, licensing or good standing necessary, except where the
failure to have such power or authority, or the failure to be so qualified,
licensed or in good standing, would not have a Material Adverse Effect. The term
"Material Adverse Effect" as used in this Agreement, means any change in or
effect on the business, operations or financial condition of the Seller or any
of its subsidiaries that is materially adverse to the Seller and its
subsidiaries taken as a whole except for (i) any change or effect resulting from
general economic, financial or market conditions or (ii) any change or effect
resulting from conditions or circumstances generally effecting the fragrance and
cosmetics industry.
2.2 Certificate of Incorporation and By-Laws. The Seller has heretofore
made available to Purchaser a complete and correct copy of the certificate of
incorporation and the by-laws, each as amended to the date hereof, of the Seller
and no action to amend or modify either thereof has been taken.
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2.3 Capitalization; Shares. (a) The authorized capital stock of the
Seller consists of 25,000,000 common shares, par value $.01 per share. The
Seller has 7,644,028 shares of common stock outstanding and 1,512,406 shares of
common stock held as treasury stock as of July 31, 1999.
(b) The Stock when issued, sold and delivered in accordance
with the terms and for the consideration expressed in this Agreement, shall be
duly and validly issued, fully-paid and nonassessable.
2.4 Authority Relative to this Agreement. The Seller has all necessary
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by the Seller and the consummation by the Seller of the
transactions contemplated hereby have been duly and validly authorized and
approved by the Board of Directors of the Seller and no other corporate
proceedings on the part of the Seller are necessary to authorize or approve this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by the Seller and constitutes a
valid and binding obligation of the Seller enforceable against the Seller in
accordance with its terms, except that such enforceability (i) may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting or relating
to the enforcement of creditor's rights generally and (ii) is subject to general
principles of equity.
2.5 No Conflict; Required Filings and Consents. (a) None of the
execution and delivery of this Agreement by the Seller, the consummation by the
Seller of the transactions contemplated hereby or compliance by the Seller with
any of the provisions hereof will (i) conflict with or violate the certificate
of incorporation or by-laws of the Seller or the comparable organizational
documents of any of its Significant Subsidiaries, (ii) conflict with or violate
any statute, ordinance, rule, regulation order, judgment or decree applicable to
the Seller or its Significant Subsidiaries, or by which any of them or any of
their respective properties or assets may be bound or affected, or (iii) result
in a violation or breach of or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, or result
in any loss of any material benefit, or the creation of any lien on any of the
property or assets of the Seller or any of its Significant Subsidiaries (any of
the foregoing referred to in clause (ii) or this clause (iii) being a
"Violation") pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which the Seller or any of its Significant Subsidiaries is a party or by
which the Seller or any of its subsidiaries or any of their respective
properties may be bound or affected, except in the case of the foregoing clauses
(ii) or (iii) for any such Violations which would not have a Material Adverse
Effect.
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(b) None of the execution and delivery of this Agreement by
the Seller, the consummation by the Seller of the transactions contemplated
hereby or compliance by the Seller with any of the provisions hereof will
require any consent, waiver, approval, authorization or permit of, or
registration or filing with or notification to (any of the foregoing being a
"Consent"), any government or subdivision thereof, or any administrative,
governmental or regulatory authority, agency, commission, tribunal or body,
domestic, foreign or supranational (a "Governmental Entity"), except for (i)
compliance with any applicable requirements of the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act") or (ii)
consents the failure of which to obtain or make would not have a Material
Adverse Effect or materially adversely effect the ability of the Seller to
consummate the transactions contemplated hereby.
2.6 SEC Reports and Financial Statements. (a) The Seller has filed with
the SEC all forms, reports, schedules, registration statements and definitive
proxy statements (the "SEC Reports") required to be filed by the Seller with the
Securities and Exchange Commission (the "SEC"). As of their respective dates,
the SEC Reports complied in all material respects with the requirements of the
Exchange Act or the Securities Act and the rules and regulations of the SEC
promulgated thereunder applicable, as the case may be, to such SEC Reports, and
none of the SEC Reports contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances under which they
were made, not misleading.
(b) The consolidated balance sheets as of January 30, 1999 and
the related consolidated statements of operations, common shareholders' equity
and cash flows for each of the three fiscal years in the period ended January
30, 1999 (including the related notes and schedules thereto) of the Seller
contained in the Seller's Form 10-K for the year ended January 30, 1999 included
in the SEC Reports present fairly, in all material respects, the consolidated
financial position and the consolidated results of operations and cash flows of
the Seller and its consolidated subsidiaries as of the dates or for the periods
presented therein in conformity with United States generally accepted accounting
principles applied on a consistent basis ("GAAP") during the periods involved
except as otherwise noted therein, including the related notes.
(c) The consolidated balance sheets and the related statements
of operations and cash flows (including in each case the related notes thereto)
of the Seller contained in the Form 10-Q for the period ended May 1, 1999
included in the SEC Reports (collectively, the "Quarterly Financial Statement")
have been prepared in accordance with the requirements for interim financial
statements contained in Regulation S-X. The Quarterly Financial Statement
reflects all adjustments, which include only normal recurring adjustments,
necessary to present fairly, in all material respects, the consolidated
financial position, results of operations and cash flows of the Seller for the
period presented therein in conformity with GAAP except as otherwise noted
therein, including the related notes.
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2.7 Litigation. As of the date hereof, there is no suit, action or
proceeding pending or, to the knowledge of the Seller, threatened against or
affecting the Seller or any of its subsidiaries that, individually or in the
aggregate, would have a Material Adverse Effect, nor is there any judgment,
decree, injunction or order of any Governmental Entity or arbitrator outstanding
against the Seller or any of its subsidiaries that would have, individually or
in the aggregate, a Material Adverse Effect.
2.8 Compliance with Applicable Laws. To the knowledge of the Seller,
the Seller and its subsidiaries are in substantial compliance with all laws,
regulations and orders of any Governmental Entity applicable to it or such
subsidiaries, except for such failures so to comply which would not have a
Material Adverse Effect. To the knowledge of the Seller, the business operations
of the Seller and its subsidiaries are not being conducted in violation of any
law, ordinance or regulation of any Governmental Entity, except for possible
violations which, individually or in the aggregate, would not have a Material
Adverse Effect on the Seller.
2.9 Material Adverse Change. Between May 1, 1999 and the date hereof,
there has not been any change in the business, operations or financial condition
of the Seller or any of its subsidiaries that is materially adverse to the
Seller and its subsidiaries taken as a whole, except for (i) any change
resulting from general economic, financial or market conditions or (ii) any
change resulting from conditions or circumstances generally affecting the
perfume industry.
2.10 Solvency. As of the date of this Agreement the Seller is Solvent.
For the purposes of this Agreement, "Solvent" means with respect to the Seller
on a particular date, that on such date (i) the fair value of the property of
the Seller is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of the Seller, (ii) the present fair
saleable value of the assets of the Seller is not less than the amount that will
be required to pay the probable liability of the Seller on its debts as they
become absolute and matured, (iii) the Seller is able to realize upon its assets
and pay its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (iv) the Seller
does not intend to, and does not believe that it will, incur debts or
liabilities beyond the Seller's ability to pay as such debts and liabilities
mature, and (v) the Seller is not engaged in business or a transaction, and is
not about to engage in business or a transaction, for which the Seller's
property would constitute unreasonably small capital after giving due
consideration to the prevailing practice in the industry in which the Seller is
engaged. In computing the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount which, in light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability taking
into account any subrogation and contribution rights.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
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3.1 Due Organization. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
with all requisite power and authority to own and operate its assets and
properties as they are now being owned and operated.
3.2 Due Authorization. (a) Purchaser has duly and validly executed and
delivered this Agreement. This Agreement constitutes the legal, valid and
binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms.
(b) The Purchaser has full power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby.
3.3 Consents and Approvals; Authority Relative to This Agreement.
Neither the execution and delivery of this Agreement, nor the consummation of
the transactions contemplated hereby will (a) violate any provisions of the
certificate of incorporation or by-laws of the Purchaser, (b) with or without
the giving of notice or passage , or both, violate , or be in conflict with, or
constitute a default, or permit the termination of, or cause the acceleration of
the maturity of, any agreement, instrument, contract, debt or obligation of the
Purchaser, (c) require the consent of any party to any agreement or commitment
to which the Purchaser is a party, or by which the Purchaser or its properties
or assets is bound, or (d) violate any regulation or any judgment or decree of
any court or authority to which the Purchaser is subject. No consent, approval
or authorization of, or declaration, filing or registration with, any
Governmental Entity is required to be made or obtained by the Purchaser in
connection with the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby or thereby.
3.4 No Registration, Etc. The Purchaser acknowledges that the offering
and sale of the Stock pursuant to this Agreement (i) has not been registered
under the Securities Act, or under the securities or "blue sky" laws, rules
or regulations of any State (collectively, the "Securities Laws") and (ii) is
intended to be exempt from registration under the Securities Act, by virtue of
Section 4(2) of the Act and the provisions of Rule 506 of Regulation D
promulgated thereunder by the SEC. In furtherance thereof, the Purchaser
represents and warrants to the Seller that it is an "accredited investor", as
defined in Rule 501 of Regulation D promulgated under the Securities Act. The
Purchaser has been afforded, prior to the execution of this Agreement, the
opportunity to ask questions of, and to receive answers from, the Seller and its
management, and it has had access to all documents and information which is
deemed material to an investment decision with respect to the purchase of the
Stock hereunder. The Stock is being purchased for its own account, for
investment and not for distribution or resale to others. The Purchaser agrees
that it will not transfer the Stock unless the Stock is registered under any
applicable Securities Laws or the transfer is otherwise exempt therefrom. The
Purchaser further acknowledges that it is aware that it may be considered an
"affiliate" of the Seller for purposes of the Securities Act and, accordingly,
that any public sales of the Securities by the Purchaser will be subject to Rule
144 promulgated under the Securities Act.
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ARTICLE IV
CONDITIONS PRECEDENT TO OBLIGATIONS
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OF PURCHASER
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The obligations of the Purchaser to purchase the Stock and to
consummate at Closing the transactions contemplated hereby is subject to the
satisfaction or waiver by the Purchaser of the following conditions precedent on
or before the Closing Date:
4.1 Representations and Warranties. The representations and warranties
of the Seller contained in this Agreement shall be accurate, true and correct on
and as of the Closing Date.
4.2 Compliance with Agreements and Covenants. The Seller shall have
performed and complied in all material respects with all of the covenants,
obligations and agreements contained in this Agreement to be performed and
complied with by the Seller on or prior to the Closing Date.
4.3 Required Consents. All material consents, authorizations and
approvals from, and all material declarations, filings and registrations with,
Governmental Entities or third parties required to consummate the transactions
contemplated by this Agreement or permit the Seller to continue its business
consistent with its prior practice without a Material Adverse Effect shall have
been obtained or made and delivered to the Purchaser, in form and substance to
the reasonable satisfaction of the Purchaser.
4.4 No Prohibition. No action or proceeding by any Authority shall have
been instituted or threatened that would enjoin, restrain, or prohibit the
consummation of the transactions as contemplated by this Agreement, or that
would, in the reasonable judgment of the Purchaser, make it inadvisable to
consummate such transactions, and no court order shall have been entered in any
action or proceeding instituted by any party that enjoins, restrains or
prohibits this Agreement or the complete consummation of the transactions
contemplated by this Agreement.
4.5 No Material Adverse Change. There shall not have occurred any
material adverse change (taken together with all other developments) since the
date of this Agreement that would have a Material Adverse Effect.
4.6 Documents. The Purchaser shall receive in form and substance
satisfactory to it:
(a) A certificate, dated the Closing Date, of the Seller
substantially to the effect set forth in Sections 4.1 and 4.2 with respect to
the representations, warranties and covenants of the Seller; and
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(b) A legal opinion from counsel to the Seller, dated the Closing
Date, in substantially the form of Exhibit A hereto.
4.7 Registration Rights. The Purchaser and the Seller shall have
executed and delivered a Registration Rights Agreement in form and substance
satisfactory to the Purchaser.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF
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THE SELLER
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The obligations of the Seller at the Closing Date under this Agreement
are subject to the satisfaction or waiver by the Seller of the following
conditions precedent on or before the Closing Date:
5.1 Representations and Warranties. The representations and warranties
of the Purchaser contained in this Agreement shall have been accurate, true and
correct in all material respects on and as of the date of this Agreement and
shall also be accurate, true and correct in all material respects on as of the
Closing Date with the same force and effect as though made on and as of the
Closing Date.
5.2 Compliance with Agreements and Covenants. The Purchaser shall have
performed and complied in all material respects with all of the covenants,
obligations and agreements contained in this Agreement to be performed and
complied with by the Purchaser on or prior to the Closing Date.
5.3 Required Consents. All material consents, authorizations and
approvals from, and all material declarations, filings and registrations with,
Governmental Entities or third parties required to consummate the transactions
contemplated by this Agreement shall have been obtained or made and delivered to
the Seller, in form and substance to the reasonable satisfaction of the Seller.
5.4 No Prohibition. No action or proceeding by any authority shall have
been instituted or threatened that would enjoin, restrain, or prohibit the
consummation of the transactions as contemplated by this Agreement, or that
would, in the reasonable judgment of the Seller, make it inadvisable to
consummate such transactions, and no court order shall have entered in any
action or proceeding instituted by any party that enjoins, restrains or
prohibits this Agreement or the complete consummation of the transactions as
contemplated by this Agreement.
5.5 Documents. The Seller shall receive, in form and substance
satisfactory to them a certificate, dated the Closing Date, of Purchaser
substantially to the effect set forth in Sections 5.1 and 5.2.
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ARTICLE VI
MISCELLANEOUS
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6.1 Termination. This Agreement may be terminated at any time on or
prior to the Closing Date:
(a) With the mutual consent of the Seller and the Purchaser;
(b) By written notice from the Seller or the Purchaser to the
other, if the Closing shall not have taken place on or before September 30,
1999; provided, however, that the right to terminate this Agreement under this
Section 6.1 shall not be available to any party whose failure to perform any
obligation under this Agreement has been the cause of or resulted in the failure
of the Closing to occur on or before such date;
(c) By the Purchaser, if there shall have been a material
breach of any covenant, representation or warranty of the Seller hereunder, and
such breach shall not have been remedied within thirty (30) business days after
receipt by the Seller of a notice in writing from the Purchaser specifying the
breach and requesting such be remedied;
(d) By the Seller, if there shall have been a material breach
of any covenant, representation or warranty of the Purchaser hereunder, and such
breach shall not have been remedied within thirty (30) business days after
receipt by the Purchaser of notice in writing from the Seller specifying the
breach and requesting such be remedied;
(e) By written notice from the Seller or the Purchaser to the
other, if any court of competent jurisdiction or other governmental body shall
have issued an order, decree or ruling or taken any other action permanently
restraining, enjoining or otherwise prohibiting the transactions contemplated by
this Agreement and such order, decree, ruling or other action shall have become
final and nonappealable; or
(f) Effect of Termination. If this Agreement is terminated
pursuant to Section 6.1(a), or (e) all obligations of the parties hereunder
shall terminate without liability of any party (or any stockholder, affiliate,
director, officer, employee, agent, consultant or representative of any party).
No termination pursuant to Section 6.1(b), or (d) shall relieve any party from
liability for any willful breach of this Agreement prior to such termination,
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and the willfully breaching party shall be fully liable for any and all losses
sustained or incurred by any other party from such breach.
6.2 Public Announcements. So long as this Agreement is in effect, the
Purchaser and the Seller agree to use reasonable efforts to consult with each
other before issuing any press release or otherwise making any public statement
with respect to the transactions contemplated by this Agreement.
6.3 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF FLORIDA
WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
6.4 Amendment; Effective Date. This Agreement may be amended, modified
or supplemented but only in writing signed by the Seller and the Purchaser.
6.5 Notices. Any notice, request, instruction or other document to be
given hereunder by a party hereto shall be in writing and shall be deemed to
have been given, (a) when received if given in person or by courier or a courier
service, or (b) on the business day after deposit with a reputable overnight
delivery service for next business day delivery.
6.6 Waivers. The failure of a party hereto at any time or times to
require performance of any provision hereof shall in no manner affect its right
at a later time to enforce the same. No waiver by a party of any condition or
any breach of any term, covenant, representation or warranty contained in this
Agreement shall be effective unless in writing, and no waiver in any one or more
instances shall be deemed to be a further or continuing waiver of any such
condition or breach in other instances or a waiver of any other condition or
breach of any other term, covenant, representation or warranty.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
XXXXXX XXXXXXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxxx
Title: Executive VP and CFO
PERFUMANIA, INC.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: President
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