[Execution Copy]
SHARE PURCHASE AGREEMENT
SHARE PURCHASE AGREEMENT made as of July 17, 1998 (the
"Agreement") by and between THE ▇▇▇▇▇▇▇ FAMILY LIMITED PARTNERSHIP ("Seller"),
having an address at c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, and BAY HARBOUR MANAGEMENT, L.C. acting for its managed accounts
("Buyer"), a Florida limited liability company having an address at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS, Buyer has agreed to purchase from Seller and Seller
has agreed to sell to Buyer Two Hundred Thousand (200,000) shares (the "Shares")
of common stock, no par value (the "Common Stock") of Tops Appliance City, Inc.
(the "Corporation"), upon the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the mutual promises herein
set forth, and intending to be legally bound hereby, the parties do hereby agree
as follows:
1. Sale and Purchase of Shares.
(a) Seller agrees to sell to Buyer, and Buyer agrees to
purchase from Seller, at the Closing (as such term is defined in Paragraph 2
below), the Shares free and clear of all liens and encumbrances of any kind for
the Purchase Price provided in Subparagraph (b) below.
(b) The purchase price (hereafter referred to as the
"Purchase Price") to be paid to Seller by Buyer for the Shares shall be Three
Dollars ($3.00) per share for an aggregate amount of Six Hundred Thousand
($600,000) Dollars, payable by wire transfer pursuant to the wiring instructions
set forth in Schedule I hereto.
2. The Closing. Subject to the conditions
and provisions set forth herein, the closing under this Agreement (the
"Closing") shall be deemed to occur as of July 20, 1998 (the "Closing Date"), at
the offices of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ LLP, 1330 Avenue of the Americas, New York,
New York.
3. Representations.
(a) Seller represents and warrants as follows:
(i) the Shares shall be transferred to Buyer free and
clear of all liens, claims, debts, charges, restrictions, or encumbrances of any
kind.
(ii) the Shares are validly issued, fully paid and
non-assessable shares of Common Stock with no personal liability attaching to
the ownership thereof.
(iii) Seller has full power and legal right to sell,
transfer and deliver the Shares to Buyer in accordance with the terms of this
Agreement, and otherwise to execute and deliver this Agreement and to consummate
and close the transactions provided for in this Agreement in the manner and upon
the terms herein specified.
(iv) this Agreement has been duly authorized,
executed and delivered by Seller and, assuming due authorization, execution and
delivery by Buyer, constitutes a legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms, subject, as to
validity, binding effect and enforcement remedies, to applicable bankruptcy,
insolvency, reorganization and other laws affecting creditors' rights generally,
and to equitable principles.
(v) there is not pending, nor to Seller's knowledge
is there threatened, any suit, action or administrative, arbitration or other
proceeding which could adversely affect or materially impair the ability of
Seller to perform any of its obligations under this Agreement.
(vi) Seller understands that the law firm of
Greenbaum, Rowe, ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP is counsel to the Corporation,
and not in any way counsel to Seller, for the purpose of this Agreement, and
that Seller has retained its own counsel in connection with this transaction.
(vii) the execution, delivery and performance of this
Agreement by Seller and the sale and delivery of the Shares does not and will
not with the passage of time violate or conflict with (x) any applicable
provision of law, statute, rule or regulation, or any order, judgment or decree
of any court, arbitrator, governmental agency or the National Association of
Securities Dealers, Inc. ("NASD") applicable to Seller of which the Seller has
knowledge, or (y) any material contract, agreement or instrument to which Seller
is a party or by which it or any of its properties or assets are bound or
affected.
(viii) all clearances, approvals, authorizations and
consents, orders of, and designations by, any Governmental Entity (as defined
below) or NASD, required under the laws of the United States or the regulation
of NASD to be obtained by Seller for or in connection with the sale and delivery
of the Shares, and compliance with the terms of this Agreement have been
obtained and complied with, or will be obtained prior to Closing, and are in
full force and effect.
(ix) Seller shall defend, indemnify and hold harmless
Buyer from and against any loss or liability arising from any breach of the
representations and warranties of Seller contained herein.
(b) Buyer represents and warrants as follows:
(i) Buyer for itself and on behalf of its managed
accounts has full power and legal right to purchase the Shares from Seller in
accordance with the terms of this Agreement, and otherwise to execute and
deliver this Agreement and to consummate and close
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the transactions provided for in this Agreement in the manner and upon the terms
herein specified, and this Agreement and the transactions contemplated hereby
will not result in the violation of any other agreement to which Buyer is a
party or by which it is bound.
(ii) In purchasing the Shares, Buyer is not relying
on any representation or warranty made by Seller or the Corporation (other than
those made herein by Seller), but is relying on its own knowledge of the
financial outlook and affairs of the Corporation, and is satisfied that the
consideration Buyer is paying for the Shares is fair and just.
(iii) Buyer understands that the law firm of
Greenbaum, Rowe, ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP is counsel to the Corporation,
and not in any way counsel to Buyer, for the purpose of this Agreement, and that
Buyer has retained its own counsel in connection with this transaction.
(iv) this Agreement has been duly authorized,
executed and delivered by Buyer and, assuming due authorization, execution and
delivery by Seller, constitutes a legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms, subject, as to validity,
binding effect and enforcement remedies, to applicable bankruptcy, insolvency,
reorganization and other laws affecting creditors' rights generally, and to
equitable principles.
(v) there is not pending, nor to Buyer's knowledge is
there threatened, any suit, action or administrative, arbitration or other
proceeding which could adversely affect or materially impair the ability of
Buyer to perform any of its obligations under this Agreement.
(vi) Buyer is purchasing the Shares for investment
purposes only and not with a view towards reselling or otherwise distributing
the Shares.
(vii) Buyer acknowledges that, at Closing, the Shares
are not registered under the Securities Act of 1933, as amended or under any
State securities laws and that certain restrictions exist with regard to the
resale of the Shares.
(viii) Buyer shall defend, indemnify and hold
harmless Seller from and against any loss or liability arising from any breach
of the representations and warranties of Buyer contained herein.
(c) The representations made by the parties in this
Paragraph 3 shall survive the Closing for a period of two (2) years from the
Closing Date.
4. Closing. At the Closing, the following transactions shall occur,
all of which shall be deemed to occur simultaneously:
(a) Seller will deliver or cause to be delivered to
Buyer:
(i) this Agreement;
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(ii) a share certificate or certificates for the
Shares to be sold by Seller to Buyer, duly endorsed for transfer with stock
powers affixed thereto, which certificate(s) shall have affixed thereto or typed
thereon the following legend:
The securities represented hereby have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), or any
State securities laws. Neither this security nor any interest or
participation herein may be reoffered, sold, assigned, transferred,
pledged, encumbered or otherwise disposed of in the absence of such
registration or unless such transaction is exempt from, or not
subject to, registration.
and
(iii) all other documents set forth in Paragraph 6
hereof.
(b) Buyer will deliver or cause to be delivered to
Seller:
(i) this Agreement;
(ii) the sum of Six Hundred Thousand ($600,000)
Dollars in accordance with Paragraph 1(b); and
(iii) all other documents set forth in Paragraph 6
hereof.
5. Conditions to Closing.
(a) The obligation of Buyer to purchase the Shares
pursuant to Paragraph 1 hereof is subject to the satisfaction (or waiver by
Buyer in writing) of each of the following conditions precedent at the Closing:
(i) the representations and warranties of Seller made
in this Agreement shall be true and correct in all respects, as of the date
hereof, and at and as of the Closing as though then made.
(ii) Seller shall have performed or complied with all
of the covenants and agreements required to be performed or complied with by
Seller under this Agreement at or prior to Closing.
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(iii) Seller has obtained all consents, approvals,
orders, authorizations of, and registrations and filings with, any Federal,
state, local or foreign government or any court of component jurisdiction,
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign (a "Governmental Entity") or NASD, that are
required to be obtained or made by Seller, in connection with the execution,
delivery or performance of this Agreement by Seller or the consummation by
Seller of any of the transactions contemplated hereby.
(iv) no action or proceeding by or before any
Governmental Entity, or any other person shall be pending or to the Seller's
knowledge threatened challenging or seeking to restrain or prohibit the purchase
and sale of any of the Shares or any of the other transactions contemplated by
this Agreement or seeking to obtain damages from Buyer (or any of its
affiliates) in connection with the purchase and sale of the Shares or any of the
other transactions contemplated by this Agreement.
(v) no statute, rule, regulation, executive order,
decree, or temporary restraining order, preliminary injunction, permanent
injunction or other order of which Seller has knowledge, enacted, entered,
promulgated, enforced or issued by any Governmental Entity or other legal
restraint or prohibition preventing the purchase and sale of the Shares shall be
in effect.
(vi) Seller shall have delivered to Buyer:
(A) a certificate dated the Closing Date stating
that the conditions set forth in Paragraph 6(a)(i) through (v) have been
satisfied;
(B) the delivery of such additional certificates
and documents as Buyer may reasonably request.
(b) The obligation of Seller to sell the Shares pursuant
to Paragraph 1 hereof is subject to the satisfaction (or waiver by Seller in
writing) of each of the following conditions precedent at the Closing:
(i) the representations and warranties of Buyer made
in this Agreement shall be true and correct in all respects, as of the date
hereof, and at and as of the Closing as though then made.
(ii) Buyer shall have performed or complied with all
of the covenants and agreements required to be performed or complied with by
Buyer under this Agreement at or prior to Closing.
(iii) Buyer shall have delivered to Seller a
certificate dated the Closing Date stating that the conditions set forth in
Paragraph 6(b)(i) - (ii) have been satisfied.
6. Indemnity Against Brokerage Commissions. Each of Seller and Buyer
hereby represent and warrant that there is no corporation, firm or person
entitled to receive from
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it a brokerage commission or finder's fee in connection with this Agreement or
the transactions provided for herein. Seller and Buyer agree to indemnify and
save the other party hereto harmless from and against any claim for brokerage
commission or finder's fee based on any retention or alleged retention of a
broker or finder by the other. This provision shall survive the Closing.
7. Notices. All notices and other communications to be made hereunder
shall be in writing and shall be deemed to have been given when the same are
either (i) personally delivered or mailed, registered or certified mail, first
class postage prepaid return receipt requested, or (ii) delivered by a reputable
private overnight courier service utilizing a written receipt or other written
proof of delivery to the applicable party at the address set forth above. The
substance of any such notice shall be deemed to have been fully acknowledged in
the event of refusal of acceptance by the party to whom the notice is addressed.
8. Captions. All captions and headings of paragraphs, subparagraphs
and sections are not part of this Agreement and shall not be used for the
interpretation or determination of the validity of this Agreement or any
provision hereof.
9. Names and Entities. The masculine gender shall include the neuter
genders, and the word "person" shall include a corporation, firm, partnership or
other entity. Whenever the singular is used in this Agreement the same shall
include the plural when required by the context and vice versa.
10. Severability. In the event any one or more of the provisions of
this Agreement shall be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect other
provisions hereof, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision never had been contained herein.
11. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of New York without giving effect to the conflict of
law principles thereof.
12. Assignment. No party may assign its rights or obligations under
this Agreement without the prior written consent of other party hereto.
13. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
14. Consent To Jurisdiction. Each of the parties hereto irrevocably
submits to the non-exclusive jurisdiction of (a) the Supreme Court of the State
of New York, New York County, and (b) the United States District Court for the
Southern District of New York, for the purposes of any suit, action or other
proceeding arising out of this Agreement or any transaction contemplated hereby.
Each of the parties hereto further agrees that service of any process, summons,
notice or documents by United States registered mail, return receipt requested,
to such party's respective address set forth in the introduction of this
Agreement, shall be effective service of process for any action, suit or
proceeding in New York with respect to any matters to which it has submitted to
jurisdiction in this Paragraph 18. Each of the parties hereto irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding
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arising out of this Agreement or the transactions contemplated hereby in (x) the
Supreme Court of the State of New York, New York County, and (y) the United
States District Court for the Southern District of New York, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum.
15. Entire Agreement. This Agreement contains the entire
understanding and agreement of the parties hereto with respect to the matters
contained herein, and may not be amended or supplemented at any time unless by a
writing executed by each of the said parties.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
collectively shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
SELLER:
WITNESS: THE ▇▇▇▇▇▇▇ FAMILY LIMITED
PARTNERSHIP
/s/ Gaia ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- ---------------------------------
Gaia ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
BUYER:
ATTEST: BAY HARBOUR MANAGEMENT, L.C.,
for its managed accounts,
Signature illegible By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------- --------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Principal & Portfolio Manager
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