STOCK PURCHASE AGREEMENT
This Agreement, entered into this 1st day of August 1997, is by and between
Merchants T&F, Inc., a New York corporation (the "Seller"), and Xxxxxx X.
Xxxxxx, an individual (the "Purchasers").
RECITALS:
WHEREAS, the Seller is the owner of 1,500 shares of common stock of Xxxx
Jewelery, Inc., a Delaware corporation (the "Issuer"); and
WHEREAS, the Seller is willing to sell, and the Purchaser wishes to buy,
said shares pursuant to the terms of this Agreement;
NOW, THEREFORE, in consideration of the mutual terms and conditions set
forth herein, the parties hereto agree as follows:
1. Shares to be Sold. Seller hereby bargains, sells, transfers, and assigns
to Purchaser, and Purchaser hereby acquires from the Seller, 1,500 shares of
common stock of the Issuer (hereinafter the "Shares").
2. Consideration. In payment for the Shares, the Purchaser hereby pays to
Seller $393,432, in the form of a promissory note (the "Note") payable not later
than one year from the date of this Agreement together with interest at the rate
of eight percent (8%) per annum. The receipt and sufficiency of the Note is
hereby acknowledged by the Seller. A copy of the form of the Note is attached
hereto as Exhibit "A" and incorporated herein.
3. Representations and Warranties of the Seller. Seller represents and
warrants as follows:
a. The Seller has good and marketable title to the Shares subject to no
pledge, lien, encumbrance, security interest, or charge.
b. This Agreement has been duly authorized by all necessary corporate
actions of Seller, and has been validly executed and constitutes a valid and
binding obligation enforceable in accordance with its terms. The execution,
delivery, and performance by Seller of the Agreement will not (i) conflict with
or result in any breach or violation of or default (or give rise to any right or
termination, cancellation, or acceleration) under its bylaws or its charter or
any amendments thereto, or any note, bond, mortgage, indenture, lease, license,
permit, agreement, or other instrument
or obligation to which Seller is a party or by which it is bound; or (ii)
violate any law, order, rule, or regulation applicable to Seller. No consent or
approval by any governmental authority is required in connection with the
execution, delivery and performance of this Agreement by Seller.
c. The terms and conditions of this Agreement and all other instruments and
agreements to be delivered by Seller to Purchaser pursuant to the terms of this
Agreement are valid, binding, and enforceable against Seller in accordance with
their terms, subject only to the applicable bankruptcy, moratorium, and other
laws generally affecting the rights and remedies of creditors.
d. The Seller represents that no commission is due from Seller or Purchaser
to any brokers, agents, or finders as a result of the sale of the Shares.
e. No representation or warranty made to Purchaser, nor any written
statement or certificate furnished or to be furnished to Purchaser in connection
with the transaction contemplated by this Agreement, contains or will contain,
to the knowledge of Seller or its officers, any untrue statement of a material
fact, or omits or will omit to state, to the knowledge of Seller or its
officers, any material fact necessary to make the representations, warranty,
written statement or certificate not misleading.
4. Representations and Warranties of the Purchaser. Purchaser represents
and warrants as follows:
a. Purchaser understands and acknowledges that the Shares have not been
registered and are restricted securities as that term is defined in Rule 144
promulgated by the Securities and Exchange Commission.
b. Purchaser is not acquiring the Shares with a view to, or for sale in
connection with, any distribution thereof under such circumstances as would
constitute a public offering within the contemplation of the Securities Act of
1933, as amended (the "Securities Act"). Purchaser shall not sell or otherwise
dispose of the Shares unless a registration statement under the Securities Act
is in effect with respect thereto, or unless he shall receive an opinion from
counsel that the contemplated sale or other disposition will not require
registration under the Securities Act.
c. No representation or warranty made to Seller, nor any written statement
or certificate furnished or to be furnished to Seller in connection with the
transaction contemplated by this Agreement, contains or will contain, to the
knowledge of Seller or its officers, any untrue statement of a material fact, or
omits or will omit to state, to the knowledge of Seller, any material fact
necessary to make the representations, warranty, written statement or
certificate not misleading.
5. Seller's Indemnity. Seller shall defend, indemnify, and hold harmless
Purchaser, his agents, servants, and employees, and their respective heirs,
personal and legal representatives, guardians, successors and assigns, from and
against any and all claims, threats, liabilities, taxes, interest, fines,
penalties, suits, actions, proceedings, demands, damages, losses, costs, and
expenses
-2-
(including attorneys' and experts' fees and court costs) of every kind and
nature arising out of, resulting from, or in connection with:
a. Any misrepresentation or breach by Seller of any representation or
warranty contained in this Agreement.
b. Any non-performance, failure to comply or breach by the Seller of any
covenant, promise, or agreement of Seller contained in this Agreement.
c. Any debts, obligations, duties, and/or liabilities of the Seller.
6. Purchaser's Indemnity. Purchaser shall defend, indemnify, and hold
harmless Seller, its officers, directors, shareholders, agents, servants, and
employees, and their respective heirs, personal and legal representatives,
guardians, successors and assigns, from and against any and all claims, threats,
liabilities, taxes, interest, fines, penalties, suits, actions, proceedings,
demands, damages, losses, costs, and expenses (including attorneys' and experts'
fees and court costs) of every kind and nature arising out of, resulting from,
or in connection with:
a. Any misrepresentation or breach by Purchaser of any representation or
warranty contained in this Agreement.
b. Any non-performance, failure to comply or breach by the Purchaser of any
covenant, promise, or agreement of Purchaser contained in this Agreement.
7. Governing Law. This Agreement and the rights and duties of the parties
hereto shall be construed and determined in accordance with the laws of the
State of New York, and any and all actions to enforce the provisions of this
Agreement, shall be brought in a court of competent jurisdiction in the State of
New York and in no other place.
8. Successors and Assigns. This Agreement shall be binding upon the parties
and their successors and assigns and shall inure to the benefit of the other
parties and successors and assigns.
9. Counterparts. This Agreement may be executed in any number of
counterparts and all such counterparts taken together shall be deemed to
constitute one instrument.
10. Entire Agreement. This Agreement constitutes the entire understanding
between the parties hereto with respect to the subject matter hereof and
supersedes all negotiations, representations, prior discussions, and preliminary
agreements between the parties hereto relating to the subject matter of this
Agreement.
11. Survival of Covenants. Etc. All covenants, representations and
warranties made herein shall survive the making of this Agreement and shall
continue in full force and effect until the obligations of this Agreement have
been fully satisfied.
-3-
12. Partial Invalidity. If any term of this Agreement shall be held to be
invalid or unenforceable, such term shall be deemed to be severable and the
validity of the other terms of this Agreement shall in no way be affected
thereby.
13. Headings. The descriptive headings of the various Sections or parts of
this Agreement are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
document effective the day and year first above written.
Seller: Merchants T&F, Inc.
By /s/ Xxxxxx Xxxxxxxx
-------------------------------
Xxxxxx Xxxxxxxx, Vice-President
Purchaser: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Xxxxxx X. Xxxxxx
-4-
