Exhibit 99.1
STOCK PURCHASE AGREEMENT
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This Stock Purchase Agreement (the "Agreement") dated as of November ___,
2003, is by and among ▇▇▇▇▇ ▇'▇▇▇▇▇ ("▇▇▇▇▇▇"), ▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇"),
▇▇▇▇▇▇▇ ▇▇▇▇▇ ("WHITE"), ▇▇▇▇ ▇▇▇▇▇▇▇▇ ("BAVESTER"), ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇▇▇▇"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") (OGrady, Hopwood, White,
Bavester, ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ are each individually referred to as
"Purchaser" and collectively as "Purchasers") and ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ and
BRADCO SUPPLY CORPORATION, a New Jersey Corporation (each individually referred
to as "Seller" and collectively as "Sellers").
W I T N E S S E T H:
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WHEREAS, the Sellers collectively own 1,301,801 shares of the common stock,
par value $.01 per share (the "Common Stock"), of Wickes Inc., a Delaware
corporation (the "Company") (all of such shares are collectively referred to as
the "Shares");
WHEREAS, the Sellers desire to sell to Purchasers all of the Shares, which
constitute all of the shares of the Common Stock owned by the Sellers and their
controlled affiliates, at a purchase price of $0.50 per share, or a total of
$650,900.50 (the "Purchase Price") as set forth herein;
WHEREAS, OGrady, Hopwood, White, Bavester, ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ wish to
purchase the Shares from Sellers among them in the quantities and at the price
as shown on Exhibit A hereto;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE 1
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THE SHARES
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Section 1.1 Sale and Purchase of the Shares. In reliance upon the
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representations and warranties made herein and subject to the satisfaction or
waiver of the conditions set forth herein, Sellers agree to sell to Purchasers,
and Purchasers agrees to purchase from Sellers, the Shares.
Section 1.2 Closing.
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Section 1.3 The "Closing Date" shall be and the "Closing" will take place
at 10:00 a.m. at the offices of Schwartz, Cooper, ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Chtd.,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ on the later of (i) satisfaction or
waiver of the conditions precedent set forth in Article 3 hereto, or (ii) such
date as shall be agreed upon by the parties.
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(a) At the Closing, each Seller shall deliver or cause to be delivered to
Purchaser free and clear of any Encumbrances (as defined in Section 2.1), one or
more certificates representing the number of shares of Common Stock held of
record by such Seller, duly endorsed in blank or accompanied by stock powers or
other instruments of transfer executed by each such Seller in blank. The Shares
shall be allocated and delivered to the each Purchaser as reflected on Exhibit A
hereto.
(b) As payment in full for the Shares, and against delivery of the stock
certificates therefor on the Closing Date, the Purchasers shall pay the Purchase
Price by wire transfer of immediately available funds to an account designated
in writing by the Sellers, allocated among each Purchaser as reflected on
Exhibit A hereto.
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ARTICLE 2
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REPRESENTATIONS AND WARRANTIES
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Section 2.1 Representations and Warranties of Each Seller. Each Seller
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represents and warrants to Purchasers as follows as of the date of this
Agreement and as of the Closing Date (as if such representations and warranties
were made on the Closing Date):
(a) Title to Shares. At the Closing each Seller will convey to Purchasers
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legal and valid title to the Shares free and clear of any and all liens,
security interests, pledges, mortgages, charges, limitation, claims,
restrictions, restrictive legends, rights of first refusal, rights of first
offer, rights of first negotiation or other encumbrances of any kind or nature
whatsoever (collectively, "Encumbrances"). Sellers represent that neither they
nor any of their affiliates own any shares of the Company other than the Shares.
(b) Power and Authority of Sellers. Each Seller has all requisite power and
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authority to execute, deliver and perform this Agreement and to execute and
deliver the stock certificates or instruments to be executed and delivered
pursuant hereto by such Seller and to consummate the transactions contemplated
hereby. This Agreement has been duly and validly authorized, executed and
delivered by each Seller and constitutes the valid and binding obligation of
each Seller, enforceable against each Seller in accordance with its terms.
(c) No Conflicts, Consents. The execution, delivery and performance by each
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Seller of this Agreement and the consummation by each Seller of the transactions
contemplated hereby will not, with or without the giving of notice or the lapse
of time, or both, (i) violate or conflict with any provision of law, rule or
regulation to which any Seller is subject or by which any of the property of any
Seller is bound, (ii) violate or conflict with, or result in a breach or
violation of any of the terms or provisions of, or constitute a default under
any indenture, mortgage, deed of trust, lease or other agreement or instrument
to which any Seller is a party or by which any Seller or any of such Seller's
property is bound or (iii) violate or conflict with any order, judgment or
decree applicable to any Seller. As of the Closing, each Seller shall have
prepared and filed all documents required by the Securities Act of 1933, as
amended (the "Securities Act"), the Securities and Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations promulgated under
such acts. Except for the filings referred to in the preceding sentence, the
sale of the Shares pursuant to this Agreement does not require the consent,
approval, authorization, registration, filing or qualification of or with any
governmental authority by any Seller.
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Section 2.2 Representations and Warranties of Each Purchaser. Each
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Purchaser represents and warrants to Sellers as follows as of the date of this
Agreement and as of the Closing Date (as if such representations and warranties
were made on the Closing Date):
(a) Power and Authority of Purchasers. Each Purchaser has all requisite
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power and authority to execute, deliver and perform this Agreement and to
execute and deliver the stock certificates or instruments to be executed and
delivered pursuant hereto by such Purchaser and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly authorized,
executed and delivered by each Purchaser and constitutes the valid and binding
obligation of each Purchaser, enforceable against each Purchaser in accordance
with its terms.
(b) No Conflicts, Consents. The execution, delivery and performance by each
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Purchaser of this Agreement and the consummation by each Purchaser of the
transactions contemplated hereby will not, with or without the giving of notice
or the lapse of time, or both, (i) violate or conflict with any provision of
law, rule or regulation to which any Purchaser is subject or by which any of the
property of any Purchaser is bound, (ii) violate or conflict with, or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under any indenture, mortgage, deed of trust, lease or other agreement
or instrument to which any Purchaser is a party or by which any Purchaser or any
of such Purchaser's property is bound or (iii) violate or conflict with any
order, judgment or decree applicable to any Purchaser. As of the Closing, each
Purchaser shall have prepared and filed all documents required by the Securities
Act, the Exchange Act and the rules promulgated under both such acts. Except for
the filings referred to in the preceding sentence, the purchase of the Shares
pursuant to this Agreement does not require the consent, approval,
authorization, registration, filing or qualification of or with any governmental
authority by any Purchaser.
ARTICLE 3
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CONDITIONS AND COVENANTS OF THE PARTIES
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Section 3.1 Real Estate Sale and Leaseback. It is a condition precedent to
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the obligations of the Purchasers and Sellers to the closing of the transactions
described herein that prior to or concurrent with the Closing, Bradco Supply
Corporation and the Company shall consummate the real estate sale and leaseback
transactions described in that certain "Real Estate Sale and Leaseback
Agreement" of even date herewith whereby Bradco Supply Corporation agrees to
purchase the real estate of the Company located in Walden, NY and Exton, PA and
lease the same back to the Company.
Section 3.2 Lease. It is a condition precedent to the obligations of the
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Purchasers and Sellers to the closing of the transactions described herein that
prior to or concurrent with the Closing, Bradco Supply Corporation and the
Company shall have entered into a lease for the ▇▇▇▇▇▇ Parcel and a lease for
the Exton Parcel substantially in the forms appended as Schedule 19.1 and
Schedule 19.2 attached to the Real Estate Sale and Leaseback Agreement.
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Section 3.3 Note Exchange. It is a condition precedent to the obligations
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of the Purchasers and Sellers to the closing of the transactions described
herein that ▇▇▇▇▇ ▇▇▇▇▇ ("Noteholders") and the Company shall have consummated
the transactions described in that certain Exchange Agreement of even date
herewith (the "Exchange Agreement"), pursuant to which Noteholders agreed to
exchange Existing Notes (as defined in the Exchange Agreement) for the Cash and
New Note Option (as defined in the Exchange Agreement).
Section 3.4 Reaffirmation of Representations and Warranties The
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representations and warranties made by the parties hereto in this Agreement
shall be true and complete in all material respects on and as of the Closing
Date as if made at and as of such date.
ARTICLE 4
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INDEMNIFICATION
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Section 4.1 Indemnification by Sellers. The Sellers shall indemnify, defend
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and hold harmless each Purchaser and each Purchaser's successors and assigns
(each, a "Purchaser Indemnified Person") from and against any all damages,
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awards, judgments, payments, all interest thereon, all reasonable costs and
expenses of investigating any claim, lawsuit or arbitration and any appeal
therefrom, all actual reasonable attorneys' fees incurred in connection
therewith, and all amounts paid (with the indemnifying party's consent, which
consent shall not be unreasonably withheld) incident to any compromise or
settlement of any such claim, lawsuit or arbitration (individually a "Loss" and
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collectively, "Losses"), sustained by a Purchaser Indemnified Person by reason
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of, or arising out of, (i) the inaccuracy, untruth or breach of any
representation or warranty made by any Seller in this Agreement or (ii) the
breach of any covenant or agreement of any Seller contained in this Agreement.
Section 4.2 Indemnification by Purchasers. Purchasers shall indemnify,
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defend and hold harmless each Seller and each Seller's respective successors and
assigns (each, a "Seller Indemnified Person") from and against any and all
Losses sustained by a Seller Indemnified Person by reason of, or arising out of
(i) the inaccuracy, untruth or breach of any representation or warranty made by
any Purchaser in this Agreement or (ii) the breach of any covenant or agreement
of any Purchaser contained in this Agreement.
Section 4.3 Payment. Upon the determination of the liability for a Loss
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under this Article 4, the indemnifying party shall pay to the indemnified party,
as the case may be, within ten days after such determination, the amount of any
Loss so determined. In the event that the indemnified party is not paid in full
within such ten-day period then, in addition to any other rights that it may
have against any other person, firm or corporation for any such Loss, interest
shall accrue on the amount so required to be paid at the rate which is the
lesser of (i) a rate of 10% per annum, compounded annually or (ii) the maximum
rate of interest permitted under applicable law. In calculating the amount of
any indemnifiable Loss, there shall be deducted any actual tax benefit realized
by the Indemnified Party.
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ARTICLE 5
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Termination
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Section 5.1 Termination of Agreement. This Agreement may be terminated at
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any time prior to the Closing:
(a) by mutual consent of Sellers and Purchasers; and
(b) by either Sellers or Purchasers if the Closing shall not have occurred
on or before [DATE], unless the failure of the Closing to occur by such date
shall be due to the failure of the party seeking to terminate this Agreement to
perform or observe the covenants of such party set forth in this Agreement
Section 5.2 Effect of Termination. In the event of termination and
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abandonment of this Agreement pursuant to Section 5.1 hereof, written notice
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shall be given to the other parties, and the transactions contemplated by this
Agreement shall be terminated and abandoned, without further action by Sellers
or Purchasers.
ARTICLE 6
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MISCELLANEOUS
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Section 6.1 Expenses. Each party hereto shall pay its own expenses in
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connection with the transactions contemplated hereby, whether or not such
transactions shall be consummated.
Section 6.2 Further Assurances. At any time or from time to time after the
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Closing, each Seller and each Purchasers shall, at the reasonable request and
expense of the other party or its counsel (unless such request is occasioned by
the breach of a representation, warranty or covenant of the other party, in
which case it shall be at the expense of such breaching party), execute and
deliver any further instruments or documents and take all such further action in
order to evidence or otherwise facilitate the consummation of the transactions
contemplated hereby.
Section 6.3 Notices. All notices, requests, demands, waivers and other
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communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if (i) delivered
personally, (ii) mailed, certified or registered mail, with postage prepaid or
(iii) sent by next-day or overnight mail or delivery or sent during customary
business hours by telecopy, as follows:
(a) if to any Purchaser, to:
▇▇▇▇▇ ▇'▇▇▇▇▇
c/o Wickes Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(b) if to any Seller, to:
Bradco Supply Corporation
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Treasurer
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or, in each case, at such other address as may be specified in writing to the
other parties hereto.
All such notices, requests, demands, waivers and other communications shall
be deemed to have been received (i) if by personal delivery on the day after
such delivery, (ii) if by certified or registered mail, on the fifth business
day after the mailing thereof, (iii) if by next-day or overnight mail or
delivery, on the day delivered and (iv) if by telecopy, on the next day
following the day on which such telecopy was sent, provided that a copy is also
sent by certified or registered mail.
Section 6.4 Confidentiality and Public Announcements. Except as required by
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applicable law, no party hereto shall disclose or permit their respective
officers, directors, representatives, agents or employees to discuss the
existence or terms of this Agreement to any third party without the prior
written consent of the other parties hereto. The parties hereto will endeavor to
mutually agree in advance on the form, timing and contents of announcements and
disclosures regarding the proposed transaction. Subject to the forgoing
sentence, the parties hereto hereby authorize Wickes, Inc. to publicly disclose
the transactions described herein in the form of a press release, a current
report on Form 8-K, or such other manner as Wickes, Inc. determines is
recommended or required by applicable law.
Section 6.5 Governing Law. This Agreement shall be construed in accordance
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with and governed by the laws of the State of Illinois applicable to agreements
made and to be performed wholly within such jurisdiction.
Section 6.6 Jurisdiction for Disputes. Each Purchaser and each Seller
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hereby irrevocably submit to the non-exclusive jurisdiction of the courts of the
▇▇▇▇ County in the State of Illinois and the Federal courts of the United States
of America located in the Northern District of the State of Illinois in respect
of the interpretation and enforcement of the provisions of this Agreement and in
respect of the transactions contemplated hereby, and hereby waive, and agree not
to assert, as a defense in any action, suit or proceeding for the interpretation
or enforcement hereof or thereof, that it is not subject thereto or that such
action, suit or proceeding may not be brought or is not maintainable in said
courts or that the venue thereof may not be appropriate or that this Agreement
may not be enforced in or by such courts, and the parties hereto irrevocably
agree that all claims with respect to such actions or proceedings may be heard
and determined, non-exclusively, in such a Illinois or Federal court located in
the State of Illinois. Each Purchaser and each Seller consents to and grants any
such court jurisdiction over the person of such parties and over the subject
matter of any such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in Section
6.3 or in such other manner as may be permitted by law, shall be valid and
sufficient service thereof.
Section 6.7 Binding Effect; Assignment. This Agreement shall be binding
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upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. No party hereto may assign either this
Agreement or any of its rights, interests or obligations hereunder without the
prior written approval of each of the other parties hereto.
Section 6.8 No Third Party Beneficiaries. Nothing in this Agreement shall confer
any rights upon any person or entity other than the parties hereto and their
respective successors and permitted assigns.
Section 6.9 Amendment; Waivers, etc. No amendment, modification or
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discharge of this Agreement, and no waiver hereunder, shall be valid or binding
unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, discharge or waiver is sought. Any
such waiver shall constitute a waiver only with respect to the specific matter
described in such writing and shall in no way impair the rights of the party
granting such waiver in any other respect or at any other time. Neither the
waiver by any of the parties hereto of a breach of or a default under any of the
provisions of this Agreement, nor the failure by any of the parties, on one or
more occasions, to enforce any of the provisions of this Agreement or to
exercise any right or privilege hereunder, shall be construed as a waiver of any
other breach or default of a similar nature, or as a waiver of any of such
provisions, rights or privileges hereunder.
Section 6.10 Entire Agreement. This Agreement constitutes the entire
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agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof.
Section 6.11 Severability. If any provision, including any phrase,
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sentence, clause, section or subsection, of this Agreement is invalid,
inoperative or unenforceable for any reason, such circumstances shall not have
the effect of rendering such provision in question invalid, inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision herein contained invalid, inoperative or unenforceable to any extent
whatsoever; provided that the material economic terms of the transaction are not
materially modified by such circumstances.
Section 6.12 Readings. The headings contained in this Agreement are for
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purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement.
Section 6.13 Counterparts; Facsimile. This Agreement may be executed in
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several counterparts, each of which shall be deemed an original and all of which
shall together constitute one and the same instrument. The reproduction of
signatures by means of telecopying device shall be treated as though such
reproductions are executed originals.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
SELLERS:
▇▇▇▇▇ ▇▇▇▇▇: Bradco Supply Corporation ▇▇▇▇▇▇ ▇▇▇▇▇:
__________________ By: ___________________ _________________
Title:___________________
PURCHASERS:
▇▇▇▇▇ ▇'▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇:
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▇▇▇▇ ▇▇▇▇▇▇▇▇: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇:
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EXHIBIT A
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Name Purchase Price Number of Shares
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▇▇▇▇▇ ▇'▇▇▇▇▇ $244,088.00 488,176
▇▇▇▇▇ ▇▇▇▇▇▇▇ $81,362.50 162,725
▇▇▇▇▇▇▇ ▇▇▇▇▇ $81,362.50 162,725
▇▇▇▇ ▇▇▇▇▇▇▇▇ $81,362.50 162,725
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ $81,362.50 162,725
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ $81,362.50 162,725
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TOTAL: $650,900.50 1,301,801