STOCK PURCHASE AGREEMENT
AGREEMENT, dated as of this 13th day of February 1998 (the
"Agreement"), by and among Andal Corp., a New York corporation (the "Company"),
and those persons and entities named on Schedule A to this Agreement (each
individually sometimes referred to as a "Seller" and collectively as the
"Sellers").
Sellers collectively own the entire beneficial interest in 100,232
shares of common stock, par value twenty ($20.00) dollars a share, of the
Company (the "Shares"), each such Seller owning the number of Shares set forth
opposite his or its name on Schedule A hereto.
Upon the terms, and subject to the conditions hereinafter set forth,
Sellers desire to sell, and the Company desires to purchase, the Shares from the
Sellers.
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.
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"Milsteins" shall mean, collectively, Xxxx Xxxxxxxx and Xxxxxxx
Xxxxxxxx.
"Xxxxxxxx Group" shall mean the group of Sellers represented by the
Milsteins
"Purchase Price" shall have the meaning set forth in Section 2.2
hereof.
"Seller" and "Sellers" shall have the meaning set forth in the
preamble.
"Sellers' 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 Sellers 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 $3,307,656 payable in cash at the Closing PLUS
(B) 81,441 shares of common stock of Integrated Brands, Inc.
(the "Integrated Shares") free and clear of any liens or encumbrances whatsoever
(such cash payment and such shares of common stock are collectively referred to
herein as the "Purchase Price.")
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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 February 13, 1998 or at such other place and
time as the Company and the Sellers may agree (the "Closing Date").
3.2 DELIVERIES AT CLOSING BY SELLERS.
At the Closing, the Sellers 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 Sellers by wire transfer upon
instructions to be delivered by the Sellers to the Company, and the portion of
the Purchase Price consisting of the Integrated Shares by delivery to the
Sellers' Representative at the Closing or as soon thereafter as practicable of
certificates representing such Shares accompanied by duly executed stock powers
with signatures guaranteed endorsing transfer in blank.
3.4 DELAYED DELIVERIES.
In the event that Sellers are delayed in their ability to
deliver any of the Shares at Closing, they will deliver such Shares to the
Company as soon thereafter as practicable, and the Company
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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, Xxxx Xxxxxxxx and
Xxxxxxx Xxxxxxxx, each acting singly, as its agent and attorney-in-fact (the
"Sellers' Representative") to perform any act required of or 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 Sellers, 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.
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(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.
(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 Sellers 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
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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 properties, or its assets may be subject.
4.2 REPRESENTATIONS AND WARRANTIES OF THE SELLERS.
Each of the non-individual Sellers, other than Xxxx Xxxxxxxx
and Xxxxxxx Xxxxxxxx, represents and warrants and covenants, severally, and Xxxx
Xxxxxxxx and Xxxxxxx Xxxxxxxx, represent and warrant, jointly and severally with
respect to all Sellers, to the Company and covenant that:
(A) CONVEYANCE OF SHARES. Each of the Sellers has, and on the
Closing Date will have conveyed to the Company, the full beneficial ownership to
the number of Shares set opposite each Seller's name on Schedule A 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. Each of the Sellers 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 Sellers.
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(C) AUTHORIZATION. All action on each of the Seller's part
necessary for the authorization, execution, delivery and performance of this
Agreement by the Sellers through the Sellers' representative , and the
performance of each 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 each
of the Sellers, 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 equitable remedies. The Sellers' Representative has been duly and validly
appointed and authorized by each of the Sellers in accordance with their
respective governing instruments, and any applicable state or federal law or
regulation, including, without limitation, the New York Not-for-Profit
Corporation Law ("NPCL") and the New York Partnership Law ("NYPL").
(D) COMPLIANCE WITH OTHER INSTRUMENTS. Neither the execution,
delivery, nor performance of this Agreement by the Sellers through the Sellers'
Representative shall (1) violate any provision of the NPCL, the NYPL, or any
other corporate statute or any federal or state tax law aplliacable to the
Seller; (2) violate any order, judgment, or decree applicable to any of the
Sellers; or (3) 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 of (a) the articles
of incorporation, bylaws, partnership agreement or any other organizational
document of any of the
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non-individual Sellers, or (b) any note, bond, mortgage, indenture, deed of
trust, license, or other contract or obligation to which any of the Sellers is a
party, by which any of the Sellers may be bound, or to which any of the Sellers,
their respective properties, or their 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 Service or any New York
State court, is necessary for the Sellers' execution, delivery and performance
of this Agreement or any other agreement or document contemplated hereunder or
the consummation, by any of the Sellers of the transactions contemplated herein.
(F) VALID EXISTENCE. Each of the non-individual Sellers 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 their
respective business and to own or lease all of their respective 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. Each of the Sellers is acquiring the
Integrated Shares, paid as part of the Purchase Price, for his or 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.
(H) NO SALE OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS. The
sale of the Shares by each of the non-individual Sellers does not constitute a
sale of all or substantially all of their
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respective assets under any federal or state law or regulation, including,
without limitation, the NPCL.
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 each Seller, in Article IV hereof, shall
have been true and correct when made and shall be true and correct as of the
Closing Date.
(B) CONDITIONS. All agreements and conditions contained in
this Agreement to be performed by the Sellers 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 Sellers' obligations to sell and deliver the Shares on the
Closing Date are, at the option of the Sellers, 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.
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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, 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.
6.3 TRANSACTION PAYMENTS BY COMPANY.
Company shall reimburse Sellers for all expenses Sellers 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.
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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 a Seller, at the Seller's address set forth on Schedule A, annexed
hereto, or at such other address as such 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 with a copy to Xxx X. Xxxxxx,
Esq., Esanu Katsky Xxxxxx & Siger, L.L.P., 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 a of the United States mail,
addressed and mailed as aforesaid.
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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 Sellers prior to selling or
otherwise transferring all or any portion of the shares of common stock of
Integrated Brands, Inc. owned by the Company. Sellers agree that they will not
sell or transfer the Integrated Shares they receive 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 Companyof all or any
portion of the shares of common stock of Integrated Brands, Inc. that it now
owns to persons other than the Sellers; or
(B) the one-hundred twenty-first day next following the
Closing Date.
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6.11 FURTHER ASSURANCES.
At any time and from time to time and after the Closing Date, each of
the Sellers 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 reasonable
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 Sellers or the Company of any of their respective
obligations under this Agreement.
6.12 INDEMNIFICATION BY SELLERS.
(A) Each of the Sellers, other than Xxxx Xxxxxxxx and Xxxxxxx
Xxxxxxxx, severally, shall 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) (collectively, "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 any such Seller contained in this Agreement (or
in any certificate, document, list or schedule delivered hereunder to the
Company by any of the Sellers, except for Xxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx).
(B) Xxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx, jointly and severally,
shall indemnify the Indemnified Parties against and agree to hold the
Indemnified Parties harmless from any and all Damages incurred or suffered by
any of the Indemnified Parties on or after the Closing Date
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arising out of any misrepresentation, inaccuracy or breach of any
representation, warranty, covenant or promise by any of the Sellers contained in
this Agreement (or in any certificate, document, list or schedule delivered to
the Company by any of the Sellers hereunder).
6.13 INDEMNIFICATION BY COMPANY.
The Company shall indemnify the Sellers against and agree to hold the
Sellers harmless from any and all Damages incurred or suffered by the Sellers 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 Sellers 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/ XXXX XXXXX
-----------------------------------
ITS PRESIDENT
SELLERS:
Xxxx Xxxxxxxx, PIM Holding Company,
Xxxxxx Xxxxxxx, Builtland Partners,
Xxxxxx Xxxxx, Xxxxxx X. Xxxxxxxx
and Xxxxxxxx Family Foundation, Inc.
BY: /s/ XXXX XXXXXXXX
-----------------------------------
Xxxx Xxxxxxxx, individually, and
as agent for PIM Holding Company,
Xxxxxx Xxxxxxx, Builtland Partners,
Xxxxxx Xxxxx, Xxxxxx X. Xxxxxxxx
and Xxxxxxxx Family Foundation, Inc.
And
BY: /s/ XXXXXXX XXXXXXXX
-----------------------------------
Xxxxxxx Xxxxxxxx, as agent for
PIM Holding Company,Xxxxxx Xxxxxxx,
Builtland Partners, Xxxxxx Xxxxx
Xxxxxx X. Xxxxxxxx and Xxxxxxxx
Family Foundation, Inc.
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ANDAL CORP
SCHEDULE A
NAME AND ADDRESS OF SELLER FEDERAL ID/ CERTIFICATE NUMBER OF SHARES CASH AT $33 PER SHARES OF
SOCIAL NUMBER(S) SHARE INTEGRATED
SECURITY BRANDS, INC.
NUMBER
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Xxxx Xxxxxxxx A567 15,000 $ 495,000 12,188
00 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
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PIM Holding Company A652 8,050 534,534 13,161
1271 Avenue of the Americas A663-A683 8,148
Xxx Xxxx, XX 00000
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Xxxxxx Xxxxxxx JU4702 25 825 20
000 X'Xxxxxxxx Xxxxx
Xxxxxxxx Xxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
Builtland Partners A313 34,456 2,085,257 51,294
1271 Avenue of the Americas A649 28,673
Xxx Xxxx, XX 00000
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Xxxxxx Xxxxx A110 1,030 33,990 837
00 Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
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Xxxxxx & Xxxx Xxxxxxxx Jt Ten
000 Xxxx Xxxxxx A688 5 165 4
Xxx Xxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx Family Foundation, Inc. A658 4,845 159,885 3,937
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
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TOTAL FOR SHARES RECEIVED 100,232 $3,307,656 81,441
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