STOCK PURCHASE AGREEMENT
AGREEMENT dated this 22nd day of November, 1999 by and among LV CAPITAL
USA, INC., a Delaware corporation and indirect subsidiary of LVMH Moet Xxxxxxxx
Xxxxx Vuitton, S.A. ("Purchaser"), with its executive offices at Xxx Xxxx
Xxxxxx, Xxxxx 0000 Xxx Xxxx, Xxx Xxxx 00000; XXXX XXXXX (sometimes "Madar"), an
individual residing at 0 xxx xx Xxxxxxxx Xxxxxxx, 00000 Xxxxx, Xxxxxx; XXXXXXXX
XXXXXXX (sometimes "Benacin"), an individual residing at 00 xxxxxx Xxxxxx,
00000, Xxxxx, Xxxxxx. Each of Madar and Benacin are sometimes individually
referred to as "Seller" or sometimes collectively as "Sellers").
W I T N E S S E T H:
WHEREAS, Sellers are the controlling shareholders and owners of shares
of common stock and options to purchase shares of common stock of Inter Parfums,
Inc., a Delaware corporation ("Company");
WHEREAS, Sellers desire to sell and Purchaser desires to purchase
certain of the shares of common stock owned by the Sellers or shares to be
acquired by Sellers upon exercise of certain outstanding stock options, upon the
terms and subject to the conditions hereinafter set forth;
WHEREAS, Purchaser desires to purchase from certain option holders of
the Company, shares to be acquired by such option holders upon exercise of
certain outstanding stock options, upon the terms and subject to the conditions
set forth therein; and
WHEREAS, simultaneously with the execution and delivery of this
Agreement, Purchaser and Sellers are entering into a Shareholders' Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, conditions
and promises contained herein, the parties hereto hereby agree as follows:
1. Sale and Purchase of the Shares. Upon the terms and subject to the
conditions of this Agreement, on the Closing Date (as hereinafter defined),
(a) each of Sellers hereby agrees to sell, transfer, assign and deliver
to Purchaser and Purchaser hereby agrees to purchase, the Sellers' respective
shares of common stock, $.001 par value per share, of Company ("Common Stock"),
as set forth in the annexed Schedule 1A, (collectively the "Shares"), free and
clear of all liens, encumbrances or restrictions of any kind whatsoever, except
with regard to restrictions upon transfer as imposed under the Securities Act of
1933, as amended (the "Securities Act"). Each of Sellers shall deliver to
Purchaser at the Closing certificates representing their respective Shares duly
endorsed in blank or accompanied by stock powers or other instruments of
transfer duly executed in blank, and shall have annexed
thereto all necessary stock transfer stamps or shall be accompanied by funds
sufficient for the purchase thereof by the Company;
(b) Purchaser hereby agrees to purchase from each of the several option
holders and other sellers ("Other Sellers") who have executed and delivered
letter agreements substantially in the form annexed hereto as Exhibit 1B (each,
a "Sales Agreement"), regarding the sale of their respective shares of Common
Stock, either outstanding or issuable upon exercise of the several options, as
set forth in the annexed Schedule 1B (collectively the "Other Shares"); and
(c) each of Sellers and Purchaser hereby agrees to execute and deliver
the Shareholders' Agreement, substantially in the form annexed hereto as Exhibit
1C.
2. Purchase Price. At Closing, Purchaser agrees to pay the purchase
price of $12.00 per share, $10,190,400 in the aggregate, payable in United
States dollars in cash, certified, bank or cashier's check or wire transfer of
immediately available funds to the Company as agent for each of the Sellers and
the Other Sellers. Sellers agree to use their best efforts to cause the Company
to promptly deliver to each Seller and each Other Seller such person's portion
of the purchase price. Notwithstanding anything herein to the contrary,
Purchaser's obligation to pay the purchase price for the Shares and the Other
Shares hereunder and under the Sales Agreements, as applicable, shall be
discharged and satisfied in full upon the payment of the purchase price for the
Shares and the Other Shares to the Company, and upon such payment Purchaser
shall have no further liability with respect to the purchase price and each
Seller and Other Seller shall look solely to the Company for the payment
thereof.
3. Closing. Subject to the fulfillment of the conditions precedent as
hereinafter set forth, the Closing under this Agreement shall take place at the
offices of the Company, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 3:00 P.M.
on November 22, 1999 or at such other time and at such other place as shall be
fixed by mutual consent of the parties hereto (the "Closing Date"), and the
effective date for all transactions contemplated by this Agreement shall be as
of the Closing Date.
4. Restricted Transferability. Purchaser acknowledges and understands
that it must bear the economic risk of an investment in the Shares and Other
Shares being acquired pursuant hereto for an indefinite period of time since
such securities have not been registered under the Securities Act and,
therefore, cannot be sold unless they are either subsequently registered under
the Securities Act or an exemption from such registration is available and
favorable opinions of counsel in form and substance reasonably satisfactory to
Company to that effect are obtained; are acquiring the Shares and Other Shares
for investment and not with a view towards distribution; (however, this shall
not preclude the resale of the Shares or the Other Shares to the public
subsequent to the Closing Date pursuant to an effective registration statement
as contemplated in the Shareholders Agreement; and the certificates representing
the Shares and Other Shares (unless such securities have been registered) shall
bear on their face a legend in substantially the following form:
"The shares represented by this Certificate have not been registered
under the Securities Act of 1933. They may not be transferred without an
effective registration statement for such shares under the Securities Act of
1933 or an opinion of counsel reasonably satisfactory to the Corporation that
registration is not required under such Act."
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5. Warranties and Representations of Sellers. Each Seller
represents and warrants to Purchaser as follows:
(a) Each Seller has, or will have at Closing, complete and unrestricted
power and authority and the unqualified right to sell, transfer, assign and
deliver to Purchaser valid and marketable title to the number of shares of
Common Stock set forth opposite each Seller's name on Schedule 1A hereto, free
and clear of all liens, encumbrances or restrictions of any kind whatsoever,
except with regard to restrictions upon transfer as imposed under the Securities
Act; and there are no outstanding options, warrants or rights to purchase or
acquire, or agreements relating to, any of the Shares of each such Seller.
(b) Each of this Agreement and the Shareholders Agreement constitutes a
valid and binding agreement of each Seller, enforceable against each in
accordance with its terms. With respect to the Shareholders Agreement, each of
Sellers covenant and agree with Purchaser that Sellers will use their best
efforts to cause the Corporation and its members of the Board of Directors to
act in a manner consistent with the provisions of the Shareholders Agreement.
Neither the execution of this Agreement and the Shareholders Agreement, nor the
consummation by Sellers of the transactions described herein and therein, will,
(i) contravene, conflict with, or result in any violation or breach of any
provision of the certificate of incorporation or bylaws of the Company, (ii)
assuming compliance with the matters referred to in Section 5(h), contravene,
conflict with, or result in a violation or breach of any provision of any
applicable law, statute, ordinance, rule, regulation, judgment, injunction,
order or decree, or (iii) constitute a violation of, or conflict with, or cause
a default or acceleration of any rights or obligations under, any contract,
commitment, agreement, understanding, arrangement, restriction, license, permit
or authorization of any kind whatsoever, to which such Seller or Company or its
subsidiaries is a party or by which any of their respective assets is bound.
(c) Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has the full corporate
power and authority to carry on its business as it is now being conducted and is
duly qualified to conduct business in each jurisdiction in which it conducts
business, except where the failure to be so qualified would not have a material
adverse effect on Company and its subsidiaries, taken as a whole. Sellers have
previously caused Company to deliver to Purchaser true and complete copies of
the certificate of incorporation and bylaws of Company as currently in effect.
(d) Each subsidiary of the Company is a corporation duly incorporated,
validly existing and in good standing under the laws of its jurisdiction of
incorporation, has all corporate powers and all governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted. Each such subsidiary is duly qualified to do business
as a foreign corporation and is in good standing in each jurisdiction where such
qualification is necessary, except for those jurisdictions where failure to be
so qualified would not have, individually or in the aggregate, have a material
adverse effect on Company. Except as set forth in Schedule 5D hereof, all
material subsidiaries of the Company and their respective jurisdictions of
incorporation are identified in the Company's Annual Report on Form 10-K filed
with the Securities and Exchange Commission ("SEC") under the Securities
Exchange Act of 1934 ("Exchange Act").
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(e) The authorized capital stock of Company consists of 30,000,000
shares of Common Stock, and 1,000,000 shares of Preferred Stock, $.001 par value
per share. As of November 11, 1999, 7,572,781 shares of Common Stock are
outstanding, and no shares of Preferred Stock are outstanding. All issued and
outstanding shares of Common Stock are validly issued, fully paid and
nonassessable.
(f) Except as set forth on Schedule 5F hereof, there are no outstanding
securities convertible or exchangeable for securities of Company or options,
warrants or other rights to purchase or subscribe to any securities of Company
or any of its subsidiaries or securities convertible into or exchangeable for
securities of Company or any of its subsidiaries or contracts, commitments,
agreements, understandings or arrangements of any kind relating to the issuance
of any securities of Company or any of its subsidiaries.
(g) Except as set forth in Schedule 5F and Schedule 5G hereof, all of
the outstanding capital stock of, or other voting securities or ownership
interests in, each subsidiary of the Company, is owned by the Company, directly
or indirectly, free and clear of any lien, charge or encumbrance of any kind and
free of any other limitation or restrictions (including any restriction on the
right to vote, sell or otherwise dispose of such capital stock or other voting
securities or ownership interests). Except as set forth in Schedule 5G hereof,
there are no outstanding obligations of the Company or any of its Subsidiaries
to repurchase, redeem or otherwise acquire any capital stock, or securities or
other rights convertible into or exercisable for capital stock, of any
subsidiary of the Company.
(h) Except as set forth in Paragraph 9(a), no consent of any person or
governmental authority is necessary for the consummation of the transactions
described herein on behalf of Sellers or Company.
(i) Sellers have heretofore delivered to Purchaser Company's (i) Annual
Report on Form 10-K for the year ended December 31, 1998 ("1998 10-K"); (ii)
Quarterly Reports on Form 10-Q for the three (3) month period ended March 31,
1999, for the six (6) month period ending June 30, 1999 and for the nine (9)
month period ended September 30, 1999; (iii) Current Reports on Form 8-K (dates
of events, July 14, 1999 and August 5, 1999), (iv) the Notice of Annual Meeting
and Proxy Statement dated June 11, 1999, related to the sole meeting of the
shareholders of Company held during the present fiscal year; and (v) all of its
other reports, statements, schedules and registration statements filed with the
SEC since December 31, 1998 (the documents referred to in this Paragraph 5(i),
collectively, the "Company SEC Documents"). As of the filing date, each Company
SEC Document complied (or will comply) as to form in all material respects with
the applicable requirements of the Securities Act or the Exchange Act, as the
case may be. As of their respective dates, such reports or statements do not
contain, and any such document so filed subsequent to the date hereof will not
contain, any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of circumstances in which they were made, not misleading. The audited
financial statements and unaudited interim financial statements of Company
included in such reports have been prepared in accordance with U.S. generally
accepted accounting principles applied on a consistent basis by Company and
accurately present the financial position of Company and its subsidiaries as of
the dates thereof and the results of the operations and changes in cash flows
for the periods then ended.
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(j) Except as set forth in Schedule 5J hereof, since September 30,
1999, the business of the Company and its subsidiaries has been conducted in the
ordinary course consistent with past practices and there has not been:
(1) any changes in the condition (financial or otherwise),
properties, assets, liabilities, business, operations or prospects of Company
which have been, in any case, singly or in the aggregate, materially adverse to
Company;
(2) any declaration, setting aside or payment of any dividend
or other distribution with respect to any shares of capital stock of Company, or
any repurchase, redemption or other acquisition by Company or any of its
subsidiaries of any outstanding shares of capital stock or other securities of,
or other ownership interests in, Company or any of its subsidiaries;
(3) any amendment of any material term of any outstanding
security of the Company or any of its subsidiaries;
(4) any incurrence, assumption or guarantee by Company or any
of its subsidiaries of any indebtedness for borrowed money other than in the
ordinary course of business and in amounts and on terms consistent with past
practices;
(5) any making of any loan, advance or capital contributions
to or investment in any person or entity other than loans, advances or capital
contributions to or investments in its wholly-owned subsidiaries made in the
ordinary course of business consistent with past practices;
(k) There are no material liabilities or obligations of Company or any
of its subsidiaries of any kind whatsoever, whether accrued, contingent,
absolute, determined, determinable or otherwise, and there is no existing
condition, situation or set of circumstances that could reasonably be expected
to result in any such liability, other than: (i) liabilities or obligations
disclosed and provided for in the September 30, 1999 balance sheet of Company or
in the notes thereto or in the Company SEC Documents filed prior to the date
hereof or (ii) incurred in the ordinary course of business after September 30,
1999 consistent with past practice of Company.
(l) The Company and each of its subsidiaries is and has been in
compliance in all material respects with, and to the knowledge of Company is not
under investigation with respect to and has not been threatened to be charged
with or given notice of any violation of, any applicable law, statute,
ordinance, rule, regulation, judgment, injunction, order or decree.
(m) Except as set forth in Schedule 5M or the Company SEC Documents
filed prior to the date hereof, there is no action, suit, investigation or
proceeding (or any basis therefor) pending against, or, to the knowledge of
Company, threatened against or affecting, Company, any of its subsidiaries, any
present or former officer, director or employee of the Company or any of its
subsidiaries or any other person or entity for whom the Company or any of such
subsidiary may be liable or any of their respective properties before any court
or arbitrator or before or by any governmental body, agency or official,
domestic or foreign, that, if determined or resolved adversely in accordance
with the plaintiff's demands, could reasonably be expected to have,
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individually or in the aggregate, a material adverse effect on the Company or
that in any manner challenges or seeks to prevent, enjoin, alter or materially
delay the transactions contemplated hereby.
(n) Company and each of its subsidiaries, and each affiliated group
(within the meaning of Section 1504 of the Internal Revenue Code of 1986, as
amended) of which Company or any subsidiary is or has been a member, has timely
filed (or has had timely filed on its behalf) or will file or cause to be timely
filed all material tax returns required by applicable law to be filed by it, and
all such tax returns are true and complete in all material respects. Company and
each of its subsidiaries has paid or, where payment is not yet due, has
established in accordance with US generally accepted accounting principles an
adequate accrual for the payment of, all taxes due with respect to any period
ending prior to or as of the Closing Date. There are no material liens or
encumbrances for taxes on any of the assets of Company or any of its
subsidiaries.
(o) Except as set forth in either Schedule 5O or the Company SEC
Documents filed prior to the date hereof no notice, notification, demand,
request for information, citation, summons or order has been received, no
complaint has been filed, no penalty has been assessed, and no investigation,
action, claim, suit, proceeding or review (or any basis therefor) is pending or,
to the knowledge of Company, is threatened by any governmental entity or other
person relating to or arising out of any law or regulation relating to the
environment or to pollutants, contaminants, wastes or hazardous substances.
6. Warranties and Representations of Purchaser. Purchaser hereby
warrants and represents to each of the Sellers as follows:
(a) The execution, delivery and performance of the transactions
contemplated by this Agreement by Purchaser has been duly authorized by the
Board of Directors of Purchaser, and will not contravene any provisions of law,
or an order of any court or other agency of government or of its Certificate of
Incorporation or By-laws.
(b) This Agreement constitutes the legal, valid and binding obligation
of Purchaser enforceable against it, in accordance with its terms.
(c) Except as set forth in Paragraph 9(a), no consent of any person or
governmental authority is necessary for the consummation of the transactions
described herein on behalf of Purchaser.
(d) (i) Purchaser, taking into account the personnel and resources it
can practically bring to bear on the purchase of the Shares and Other Shares
contemplated hereby, is knowledgeable, sophisticated and experienced in making,
and is qualified to make, decisions with respect to investments in Shares and
Other Shares presenting an investment decision like that involved in the
purchase of the Shares and Other Shares;
(ii) the Purchaser has had the opportunity to ask questions of
and receive answers from representatives of Company or persons acting on its
behalf concerning the terms and conditions of the proposed investment in
Company, has had the opportunity to obtain additional information necessary to
verify the accuracy of information previously furnished about Company,
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and has requested, received, reviewed and considered all information it deems
relevant in making an informed decision to purchase the Shares and the Other
Shares;
(iii) the Purchaser is an "accredited investor" as such term
is defined in Rule 501 of Regulation D promulgated under the Securities Act;
(iv) notwithstanding the provisions of Paragraph 4 above, the
Purchaser is acquiring the Shares and Other Shares for investment and with no
present intention of distributing or reselling any of such Shares (this
representation and warranty not limiting the Purchaser's right to sell pursuant
to a registration statement as contemplated pursuant to the Shareholders
Agreement); and
(v) Purchaser will not, directly or indirectly, voluntarily
offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to
buy, purchase or otherwise acquire or take a pledge of) any of the Shares or
Other Shares except in compliance with the Securities Act, and the rules and
regulations promulgated thereunder.
7. Conduct of Business Pending Closing. Pending the Closing, Sellers
covenant and agree with Purchaser that:
(a) Company shall carry on its business diligently and substantially in
the same manner as heretofore conducted. Company shall not institute any new
method of management, accounting or operation or engage in any transaction or
activity, enter into any agreement or make any commitment, except in the
ordinary course of business and consistent with past practice. Company shall
maintain its management structure substantially as in effect as of the date of
this Agreement including but not limited to maintaining the present Boards of
Directors, officers and management of Company.
(b) No change or amendment shall be made to the Articles of
Incorporation or By-Laws of Company.
(c) Except as contemplated herein and in Schedule 5E, Company shall not
issue or sell any shares of its capital stock or other securities, acquire
directly or indirectly by redemption or otherwise, any such capital stock,
reclassify or split, any such capital stock, declare or pay dividends thereon or
make any other distribution with respect thereto or grant or enter into any
options, warrants, calls or commitments of any kind with respect thereto.
(d) Company will not, and will not permit any of its subsidiaries to,
merge or consolidate with any other person or acquire a material amount of stock
or assets of any other person.
(e) Company will not, and will not permit any of its subsidiaries to,
sell, lease, license or otherwise dispose of any material subsidiary or material
amount of assets, securities or property except pursuant to existing contracts
or commitments and in the ordinary course of business consistent with past
practice.
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(f) Company will not, and will not permit any of its subsidiaries to,
take any action that would make any representation and warranty of Sellers
hereunder inaccurate in any respect at, or as of any time prior to, the Closing
Date or omit to take any action necessary to prevent any such representation or
warranty from being inaccurate in any respect at any such time.
(g) Company will not, and will not permit any of its subsidiaries to,
agree or commit to do any of the foregoing.
8. Obligations Pending Closing.
(a) Sellers shall afford to Purchaser and its authorized
representatives full access to the offices, properties, books and records and
employees, advisors and accountants of Company in order that Purchaser may have
full opportunity to make such investigations that it shall desire to make of the
affairs of Company.
(b) Purchaser shall hold, and shall cause all of its authorized
representatives to hold, in strict confidence, unless compelled to disclose by
judicial or administrative process or, in the opinion of its counsel, by other
requirements of law, all documents and information furnished to it or them in
connection with the transactions contemplated by this Agreement; provided that
the foregoing shall not apply to information that is (i) known to Purchaser
prior to its disclosure by Seller or Company hereunder (solely as evidenced by
the written records of Purchaser) or disclosed to Purchaser by a third party not
known by Purchaser to be under a legally binding obligation to keep such
information confidential, (ii) publicly disclosed other than by breach by
Purchaser of its obligations hereunder, or (iii) required by law, regulation or
the rules of any national securities exchange to be disclosed.
(c) Each of Purchaser and Sellers shall promptly prepare and file such
reports, forms, exhibits and documents with the Federal Trade Commission and the
Department of Justice, and Purchaser shall pay such fees, as may be required to
be paid by it in order to comply with the Xxxx Xxxxx Xxxxxx Antitrust
Improvements Act of 1976 (15 U.S.C. ss.18a, Xxxxxxx Act ss.7A) ("HSR Act") and
to supply as promptly as practicable any additional information and documentary
material that may be requested pursuant to the HSR Act and to take all other
actions necessary to cause the expiration or termination of the applicable
waiting periods under the HSR Act as soon as practicable.
(d) Subject to the terms and conditions of this Agreement, Sellers and
Purchaser will use their best efforts to take, or cause to be taken, all actions
and to do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate the transactions contemplated by
this Agreement.
(e) Purchaser and Sellers will, and Sellers will cause Company to,
consult with each other before issuing any press release or making any public
statement with respect to this Agreement or the transactions contemplated hereby
and, except as may be required by applicable law or any listing agreement with
any national securities exchange, will not issue any such press release or make
any such public statement prior to such consultation.
9. Conditions of Closing. No party hereto shall be required to
consummate any of the transactions described herein unless at Closing,
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(a) The waiting period under the HSR Act shall have expired or been
terminated.
(b) No suit, action, investigation, inquiry or other proceeding by any
governmental body or any other person or legal or administrative proceeding
shall have been instituted or threatened which may materially adversely affect
the financial conditions, assets, liabilities (absolute, accrued, contingent or
otherwise), reserves, business, operations or prospects of Company and its
subsidiaries taken as a whole or which questions the validity or legality of the
transactions described herein and no provision of any applicable law or
regulation and no judgment, injunction, order or decree shall prohibit the
consummation of the transactions, contemplated hereby.
(c) Purchaser shall have received an opinion from counsel to Company,
Nason, Yeager, Gerson, White and Xxxxx, P.A., as to the matters referred to in
Paragraphs 5(b), 5(c) and 5(e); that the transfer of the Shares from Sellers and
Other Shares to Purchaser will be exempt from the registration provisions of the
Act and will not violate the registration provisions of Section 5 of the
Securities Act; when paid for in accordance with the terms of the respective
option agreements, the shares issuable upon exercise of options held by Sellers,
and the Other Shares will be duly issued, fully paid and non-assessable; the
issuance of the shares issuable upon exercise of options held by Sellers, and
the Other Shares will be exempt from the registration provisions of the Act and
will not violate the registration provisions of Section 5 of the Securities Act;
and, upon payment of the purchase price therefor, to the knowledge of counsel,
the Shares and Other Shares will be owned by Purchaser free and clear of all
liens, encumbrances or restrictions of any kind whatsoever, except with regard
to restrictions upon transfer as imposed under the Securities Act.
(d) The Shareholders' Agreement, substantially in the form annexed
hereto as Exhibit 1C, shall be executed and delivered by Purchaser and Sellers,
simultaneously with the closing of this Agreement and the purchase of the
several Other Shares by Purchaser.
(e) The purchase of the several Other Shares by Purchaser, shall take
place simultaneously with the closing of this Agreement.
(f) In the case of Purchaser, Sellers shall have performed in all
material respects all of their obligations hereunder required to be performed by
them at or prior to the Closing Date, the representations and warranties of
Sellers contained in this Agreement and in any certificate or other writing
delivered by Sellers pursuant hereto shall be true in all material respects at
and as of the Closing Date as if made at and as of such time and Purchaser shall
have received a certificate signed by Sellers to the foregoing effect.
(g) In the case of Sellers, Purchase shall have performed in all
material respects all of its obligations hereunder required to be performed by
it at or prior to the Closing Date, the representations and warranties of
Purchaser contained in this Agreement and in any certificate or other writing
delivered by Purchaser pursuant hereto shall be true in all material respects at
and as of the Closing Date as if made at and as of such time and Sellers shall
have received a certificate signed by an officer of Purchaser to the foregoing
effect.
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10. Termination. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the Closing Date (i)
by mutual written agreement of Sellers and Purchaser; (ii) the Closing Date
shall not have occurred on or before December 31, 1999; or (iii) there shall be
any law or regulation that makes consummation of the transactions contemplated
hereby illegal or otherwise prohibited or any judgment, injunction, order or
decree of any court or governmental body having competent jurisdiction shall
enjoin the transactions contemplated hereby and such enjoin the transactions
contemplated hereby and such judgment, injunction, order or decree shall have
become final and non-appealable.
11. Survival of Representations and Warranties. All representations and
warranties made by the parties in this Agreement shall survive the closing under
for a period of two (2) years from the Closing Date.
12. Indemnification; Limitation of Liability. Sellers hereby jointly
and severally indemnify Purchaser and its affiliates against and agree to hold
each of them harmless from any and all damage, loss, liability and expense
(including, without limitation, reasonable expenses of investigation and
reasonable attorneys' fees and expenses in connection with any action, suit or
proceeding) ("Damages") incurred or suffered by Purchaser or any of its
affiliates arising out of any misrepresentation or breach of warranty, covenant
or agreement made or to be performed by Seller or an Other Seller pursuant to
this Agreement or a Sales Agreement. Purchaser hereby indemnifies Sellers, its
affiliates and the Other Sellers against and agrees to hold each of them
harmless from any and all Damages incurred or suffered by Sellers, any of their
affiliates or Other Sellers arising out of any misrepresentations or breach of
warranty, covenant or agreement made or to be performed by Purchaser pursuant to
this Agreement. Notwithstanding anything to the contrary contained herein, the
liability of each Seller and Other Seller to Purchaser arising under this
Agreement (whether for breach of warranty, representation, failure to fulfill
covenants or agreements, indemnity or for any other reason) shall not exceed the
amount of the purchase price actually received by each such Seller and Other
Seller hereunder.
13. No Waiver. The failure of any of the parties hereto to enforce any
provision hereof on any occasion shall not be deemed to be a waiver of any
preceding or succeeding breach of such provision or other provision.
14. Entire Agreement. This Agreement, together with the Shareholders'
Agreement and each of the several purchase agreements with the Option Sellers,
constitute the entire agreement and understanding of the parties hereto and no
amendment, modification or waiver of any provision herein shall be effective
unless in writing, executed by the party charged therewith.
15. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with and shall be governed by the laws of the State of
New York, without reference to the principles of conflicts laws, except as to
the valid issuance of the Shares and Other Shares, which shall be governed by
the laws of the State of Delaware, without reference to the principles of
conflicts laws.
16. Assignment. No party may assign its rights under this Agreement and
such attempted assignment shall be void of no force and effect; except that
Purchaser shall have the right to assign its rights and obligations hereunder to
LVMH Moet Xxxxxxxx Xxxxx Vuitton S.A. or any of its affiliates, subject to the
consent of the Sellers, which shall not be unreasonably withheld.
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17. Paragraph Headings. The paragraph headings herein have been
inserted for convenience of reference only, and shall in no way modify or
restrict any of the terms or provisions hereof.
18. Notices. Any notice or other communication under the provisions of
this Agreement shall be in writing, and shall be given by registered or
certified mail (postage prepaid), return receipt requested, by hand delivery
with return receipt requested, or by the Express Mail service offered by the
United States Post Office, directed to the address set forth above for Purchaser
and with respect to each of Sellers, to the Sellers at c/o Inter Parfums, Inc.,
000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, or to any new address in the City of New
York, Borough of Manhattan of which any party hereto shall have informed the
others by the giving of notice in the manner provided herein. Such notice or
communication shall be effective, if sent by mail, three (3) days after it is
mailed within the continental United States; if sent by Express Mail service,
one day after it is mailed; or by hand delivery, upon receipt.
19. Consent to Service of Process. Each party hereto hereby irrevocably
consents to the exclusive jurisdiction and venue of the courts of the State of
New York and of any United States District Court located within the City of New
York with regard to any and all actions or proceedings arising out of, or
relating to, this Agreement, and irrevocably waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of the venue of any such suit, action or proceeding in any such court or that
any such suit, action or proceeding which is brought in any such court has been
brought in an inconvenient forum, and agrees that service of process may be made
in the manner for providing notice, as specified in Paragraph 18 hereof.
20. Unenforceability; Severability. If any provision of this Agreement
is found to be void or unenforceable by a court of competent jurisdiction, then
the remaining provisions of this Agreement shall, nevertheless, be binding upon
the parties with the same force and effect as though the unenforceable part had
been severed and deleted. Upon such determination, the parties shall negotiate
in good faith to modify this Agreement so as to effect the original intent of
the parties as closely as possible in an acceptable manner so that the
transactions contemplated hereby shall be consummated as originally contemplated
to the fullest extent possible.
21. Brokers' Fees. Purchaser warrants to Sellers and to Option Holders
that they shall have no liability and each of Sellers warrant to Purchaser
warrants that Purchaser shall have no liability, with respect to any brokerage
fees or agents' commissions incurred in connection with the transactions
contemplated hereby.
22. Execution of Documents. At any time and from time to time
hereafter, the parties hereto will execute and deliver such further conveyances,
assignments and other written assurances as the other parties shall reasonably
request in order to vest and confirm title to the securities intended to be
transferred, assigned and conveyed hereunder.
23. Counterparts. This Agreement may be executed in counterparts, all
of which shall be deemed to be duplicate originals. Delivery by facsimile
transmission of an executed
11
signature page to this Agreement shall be effective as delivery of a manually
executed counterpart hereof.
IN WITNESS WHEREOF, the parties hereto have executed this instrument
the date first above written.
LV CAPITAL USA, INC.
By: /s/ Xxxx Xxxxxxxx
-------------
Name: Xxxx Xxxxxxxx
Title:
-----------------
/s/ Xxxx Xxxxx
----------
Xxxx Xxxxx
/s/ Xxxxxxxx Xxxxxxx
----------------
Xxxxxxxx Xxxxxxx
12
Schedule 1A
Name of Seller Number of Shares Number of Shares Exercise Date of Option Grant
Held Directly Underlying Options Price per Share and Date When First
Exercisable
Xxxx Xxxxx 210,000 50,000 $7.25 3 January 1995
Xxxxxxxx Xxxxxxx 210,000 50,000 $7.25 3 January 1995
1
Schedule 1B
NAME OF SELLER NUMBER OF NUMBER OF SHARES EXCERISE
SHARES HELD UNDERLYING STOCK PRICE DATE OF OPTION*
DIRECTLY OPTIONS PER SHARE GRANT
XXXX XXXXXXX 1,500 $8.625 - 7-Dec-1995
1,000 $6.500 - 16-Dec-1996
1,000 $6.750 - 22-Dec-1997
XXXXX XXXXXXX 500 $8.626 - 7-Dec-1995
500 $6.500 - 16-Dec-1996
750 $6.750 - 22-Dec-1997
XXXXXX XXXXX 500 $5.750 - 28-Dec-1998
XXXXX XXXXXXX 1,000 $8.625 - 7-Dec-1995
1,000 $6.500 - 16-Dec-I996
1,000 $6.750 - 22-Dec-1997
XXXXX XXXXXXX 83,000
XXXXXX VILLEDIEU 10,000 $5.750 - 5-Mar-1999
XXXXXX XXXXXX 400 $8.626 - 7-Dec-1995
400 $6.500 - 16-Dec-1996
500 $6.750 - 22-Dec-1997
XXXX XXXXXXXXX 500
XXXXXXX XXXXXX 150 $8.625 - 7-Dec-1995
200 $6.500 - 16-Dec-1996
300 $6.750 - 22-Dec-1997
XXXXX XXXXXXX 200 $8.625 - 7-Dec-1995
300 $6.500 - 16-Dec-1996
400 $6.750 - 22-Dec-1997
XXXXXX XXXXXXXX 500 $5.750 - 28-Dec-1998
XXXXXXX XXXXXXXXXX 1,000 $6.500 - 16-Dec-1996
1,000 $6.750 - 22-Dec-1997
XXXX XX XXXXXXXXXX 10,000 $5.750 - 0-Xxx-0000
XXXXXXXX XXXXXXXXX 1,000 1,000 $7.625 - 1-Feb-1995
1
1,000 $8.063 - 1-Feb-1996
1,000 $6.438 - 1-Feb-1997
XXXXXXXX XXXXXX XXXXXX 10,000 $5.750 - 5-Mar-1999
XXXXXX XXXXXXX 1,500 $8.625 - 7-Dec-1995
1,000 $6.500 - 16-Dec-1996
1,000 $6.750 - 22-Dec-1997
XXXXX XXXXXXXX 1,500 $8.625 - 7-Dec-1995
1,000 $6.500 - 16-Dec-1996
XXXXX XXXXX 500 $6.500 - 16-Dec-1996
1,000 $6.750 - 22-Dec-1997
XXXXXX XXXXXXX 400 $5.750 - 28-Dec-1998
XXXX XXXX 1,000 $6.938 - 27-Aug-1996
2,000 $6.000 - 13-Mar-1997
XXX XXXXXXX 17,000 15,000 $5.750 - 5-Mar-1999
XXX XXXXXXX 4,000 $8.063 - 1-Feb-1996
4,000 $6.438 - 1-Feb-1997
3,000 $6.500 - 26-Jan-1998
4,000 $6.969 - 1-Feb-1998
4.000 $6.438 - 1-Feb-1999
XXXX XXXXX 100 $5.750 - 28-Dec-1998
XXXX XXXXX 1,500 1,500 $8.625 - 7-Dec-1995
1,000 $6.500 - 16-Dec-1996
1,000 $6.750 - 22-Dec-1997
XXXX XXXXXXX 100 $6.500 - 16-Dec-1996
200 $6.750 - 22-Dec-1997
500 $5.750 - 28-Dec-1998
XXXXX XXXXXX 100 $6.750 - 22-Dec-1997
500 $5.750 - 28-Dec-1998
XXXXXXX XXXXXX 500 $8.625 - 7-Dec-1995
400 $6.600 - 16-Dec-1996
600 $6.750 - 22-Dec-1997
XXXXXXX XXXXXXXXX 1,500 $8.625 - 7-Dec-1995
1,000 $6.500 - 16-Dec-1996
1,000 $6.750 - 22-Dec-1997
XXXXXXX STERNBERGE 500 $8.625 - 7-Dec-1995
400 $6.500 - 16-Dec-1996
600 $6.750 - 22-Dec-1997
XXXXXX XXXXXXXXX 300 $8.625 - 7-Dec-1995
300 $6.500 - 16-Dec-1996
400 $6.750 - 22-Dec-1997
2
XXXX XXXXX 6,000
XXXXXX PAZORTIZ 400 $5.750 - 28-Dec-1998
XXXXXXXX XXXXX 10,000 $5.750 - 5-Mar-1999
XXXXXXX XXXXXXXX 500 $6,500 - 16-Dec-1996
1,000 $6,750 - 22-Dec-1997
XXXX XXXXX 300 $8.625 - 7-Dec-1995
300 $6.500 - 16-Dec-1996
400 $6.750 - 22-Dec-1997
XXXXXX XXXXXXXXXX 2,000 $6,000 - 13-Mar-1997
XXXXXXXX XXXXX 500 $5,750 - 28-Dec-1998
XXXXXXX XXXXXXXXX 4,000 4,500 $7.250 - 3-Jan-1995
4,500 $8.625 - 7-Dec-1995
6,000 $6.500 - 16-Dec-1996
22,500 $5,687 - 27-Apr-1997
XXXXXX XXXXXXX 300 $8.625 - 7-Dec-1995
200 $6.500 - 16-Dec-1996
300 $6.750 - 22-Dec-1997
XXXXXX XXXXXX 1,500 $8.625 - 7-Dec-1995
1,000 $6.500 - 16-Dec-1996
1,000 $6.750 - 22-Dec-1997
XXXXX XXXXXXXXX 4,000 4,500 $7,250 - 3-Jan-1995
4,500 $8.625 - 7-Dec-1995
6,000 $6,500 - 16-Dec-1996
25,500 $5.687 - 27-Apr-1997
6,500 $6.500 - 26-Jan-1998
XXXXXXX XXXXXXXX 1,500 $8.625 - 7-Dec-1995
1,000 $6,500 - 16-Dec-1996
1,000 $6,750 - 22-Dec-1997
---------------------------
TOTAL 117,000 212,200
===========================
*All options are exercisable immediately upon the date of grant.
3
Exhibit 1B: Form of Letter Agreement regarding Option Exercise and Sale of
Shares
November __, 1999
Inter Parfums, Inc.
000 Xxxxx Xxxxxx -- 00xx Xx.
Xxx Xxxx, XX 00000
LV Capital USA, Inc.
Xxx Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Re: Option Exercise and Sale of Shares
Gentlemen:
I understand that LV Capital USA, Inc. ("Buyer"), a Delaware
corporation and indirect subsidiary of LVMH Moet Xxxxxxxx Xxxxx Vuitton, S.A,.
advises me that it has or will shortly enter into an agreement with both Xxxx
Xxxxx and Xxxxxxxx Xxxxxxx (the "LVMH Purchase Agreement") to purchase shares of
common stock, $.001 par value per share ("Common Stock") of Inter Parfums, Inc.
(the "Company"), from Messrs. Madar and Benacin, others and holders of options
to purchase shares of Common Stock. After the closing of such transaction, Buyer
will own approximately 20% of the outstanding shares of Common Stock. Further,
Buyer has agreed to purchase the number of shares of Common Stock from me which
are either owned by me or issuable upon exercise of my stock option agreement(s)
as described below (collectively the "Option(s)"), subject to certain conditions
as set forth in the LVMH Purchase Agreement.
Accordingly, please be advised that simultaneously with the closing of
the LVMH Purchase Agreement, I agree to exercise my Option(s), if any, and
purchase the number of shares of Common Stock of the Company, as described
below. I also understand that Buyer is making the payment to the Company on my
behalf for the exercise price of my Option(s) in the amount set forth below. I
agree to sell the Shares I own to Buyer, and if I hold Option(s), to sell the
shares to be acquired upon exercise of my Options immediately thereafter to
Buyer, at the sales price of $12.00 per share.
I understand that Buyer will deliver the purchase price for the Shares
to the Company, as provided in Section 2 of the LVMH Purchase Agreement, and
that the exercise price of my Option(s) in the amount set forth below will be
paid by applying a portion of such monies received from Buyer with the remainder
to be delivered by the Company to me after deduction for applicable withholding
taxes.
I understand that the closing of the exercise of my Option(s) and sale
to Buyer is to take place, if at all, on or before December 31, 1999. Further,
the closing is conditioned upon, and will
1
not take place unless and until, the LVMH Purchase Agreement closes, and that
all agreements are to close simultaneously.
In connection with my sale of the Shares to Buyer, I warrant and
represent to both the Company and Buyer as follows:
1. Upon exercise of my Option(s), I will have the complete and
unrestricted power and the unqualified right to sell, transfer, assign and
deliver to Buyer and, upon Buyer's payment of the purchase price therefor, Buyer
shall receive valid and marketable title to the Shares, free and clear of all
liens, encumbrances and restrictions whatsoever, except as to restrictions on
resale as may be imposed by the Federal Securities laws against Buyer.
2. I have made no public solicitation or advertisement in connection
with the sale of the Shares to Buyer.
3. This Agreement constitutes a valid and binding agreement of me,
enforceable against me in accordance with its terms.
4. I hereby appoint the Company as my agent to receive the proceeds
from Buyer of my sale of the Shares and to disburse such proceeds to me, subject
to any applicable withholding for income taxes.
5. I will indemnify LV Capital and its affiliates against and hold them
harmless from any and all loss, liability and expenses (including, without
limitation, reasonable attorneys' fees and expenses) incurred or suffered by LV
Capital or its affiliates arising out of any misrepresentation or breach of my
covenants, warranties and representations herein. However, in any event, I shall
not be liable to Buyer for more than the amount of the purchase price paid.
Very truly yours,
Signature:
--------------------
Print Name:
--------------------
2
Total
-----
Option Agreement Dated
----------------------
Number of Shares Sold from
Exercise of Option or
Shares held directly
Exercise Price per Share
Total Sales Price to Buyer
Total Exercise Price Payable to the
Company
Amount of Taxes Withheld by Company
Net Amount of Check to Seller
3
Exhibit 1C: Shareholders' Agreement
Exhibit 4.20, Shareholders' Agreement among LV Capital USA, Inc., Xxxx Xxxxx and
Xxxxxxxx Xxxxxxx, dated November 22, 1999 is incorporated by reference herein.
1
Schedule 5D
Xxxx Philippe Fragrances, LLC, a New York limited liability company, conducts
the mass market operations of the Company as of August 16, 1999. Inter Parfums
Trademark, S.A., a French corporation, holds the trademark registrations for
trademarks used by Inter Parfums, S.A.
1
Schedule 5F
Share Repurchase Program
The Board of Directors has granted the Company the power to purchase up
to an aggregate of 3,500,000 shares of its Common Stock in the public market or
in privately negotiated transactions, as such prices in relation to the market
price as the Chief Executive Officer of the Company shall in his discretion
determine. As of the date hereof, the Company has purchased an aggregate of
3,102,505 shares at an average price of $7.06 per share.
Outstanding Options of the Company and Inter Parfums, S.A.
All outstanding options of Inter Parfums, Inc. are exercisable
immediately.
All outstanding options of Inter Parfums, S.A. are first exercisable
five (5) years after the date of grant. However, the administrator of the option
plan is permitted to make exceptions and to permit the options to be exercised
earlier.
1
Schedule 5G
The Company owns 100% of the outstanding capital stock of Inter Parfums
Holding, S.A., a French corporation, which owns 1,769,357 (approximately 79%) of
the 2,247,037 outstanding shares of capital stock of Inter Parfums, S.A., a
French corporation. Inter Parfums, S.A. owns 100% of the outstanding capital
stock of Inter Parfums Grand Public, S.A. and Inter Parfums Trademark, S.A.,
both French corporations.
Inter Parfums S.A. - list of convertible bond holders (conversion rate equals
86FF per share)
Name & address of bond holder Number of bonds held Number of shares needed for
conversion
Bensignor Xxxx Xxxxxxxx 43 86
00 xxx xx xx Xxxxx
00000 Xxxx
Mr. & Xxx. Xxxxxxxxx 2 4
Xxxxxxx & Xxxxxxx Xxxxxxxxx
Xxxxxxxxx born Xxxxxxxx
00 Xxxxxx xxx Xxxxxxxx
00000 Perrusson
Mr. Brivio Louis 7 14
00 xxx xx xx Xxxxxx
00000 Xxxxxx
Mr. Favelier Xxxxxx Xxxxxxx Xxxxxx 4 8
23 rue d'Alembeert
21100 Dijon
Mr. Xxxxxx Xxxxxx 15 30
00 xxx xx Xxxxxx
00000 Xxxxx
Lion Expansion P.M.E. 2078 4156
Represented by Xx. Xxxxxxxx
Xxxxx
00 Xxxx. Xxx Xxxxxxxx
00000 Xxxxx
Mr. Xxxxx Xxxxxx 4 8
00 xxx Xxxxxx Xxxxxx
00000 Ivry sur Seine
Xxxxxx Xxxxxxxx 10 20
Xxxxx Anais born Robinot
3 rue Xxxxxxx Xxxxxxxxxx
38000 Grenoble
Xx. Xxxxxxx Christelle 4 8
00 xxx Xxxxxx Xxxxxx
00000 Ivry sur Seine
Total 2167 4334
1
Schedule 5J
On July 14, 1999, the Company changed its name to Inter Parfums, Inc.
On August 16, 1999, the Company transferred for no consideration all of
its mass market business to Xxxx Philippe Fragrances, LLC, a wholly-owned New
York limited liability company.
Prior to September 30, 1999, the Board of Directors granted the Company
the power to purchase up to an aggregate of 3,500,000 shares of its Common Stock
in the public market or in privately negotiated transactions, at such prices in
relation to the market price as the Chief Executive Officer of the Company shall
in his discretion determine. From October 1, 1999 through the date hereof, the
Company has purchased an aggregate of 60,300 shares at an average price of $9.56
per share.
In addition, the Company is contemplating a forward 3:2 stock split on
or about the end of the first quarter of fiscal year ending December 31, 2000.
1
Schedule 5M
Xxxxx Xxxxxxx of Xxxxxxx Capital Management has demanded, by facsimile
dated October 11, 1999, and by telephone to Xx. Xxxx Xxxxx, to join in the sale
of shares of common stock to LV Capital, Inc. "in a friendly manner but will
pursue other means if necessary."
1
Schedule 5O
An environmental audit is required prior to the termination or
expiration of the lease for the Company's distribution center in South
Brunswick, New Jersey, and the Company is not aware of any basis with respect
thereto that could result in any material liability of the Company.
1
