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EXHIBIT 10.11
SAMUELS JEWELERS, INC.
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement") is made as of July ___,
2000 between Samuels Jewelers, Inc., a Delaware corporation (the "Company"), and
________________ (the "Purchaser"). In consideration of the agreements contained
herein, the parties agree as follows:
1. Issuance. The Company agrees to issue to Purchaser, and Purchaser
hereby agrees to purchase from the Company on the date hereof _________________
shares of common stock of the Company at a per share price equal to $5.25 (the
"Purchased Shares") for a total purchase price of $____________________.
Purchaser's rights as a shareholder with respect to the Purchased Shares are
subject to restrictions and conditions imposed by this Agreement.
2. Loans in Connection with the Purchased Shares. The Company agrees to
initially lend to Purchaser for the purpose of acquiring the Purchased Shares an
amount not to exceed 90% of the purchase price (the "Loan"). Purchaser shall
execute a promissory note in favor of the Company (the "Note") in substantially
the form of Exhibit A attached hereto in a principal amount equal to the amount
of such Loan, contemporaneously with the execution of this Agreement. The Note
shall be 100% recourse as to the accrued interest and 25% recourse as to the
principal on the Note.
3. Purchaser Representations and Agreements. Purchaser hereby
represents and warrants to, and agrees with, the Company as set forth below.
(a) Purchaser has full power and authority to execute, deliver
and perform Purchaser's obligations under this Agreement and
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this Agreement is a valid and binding obligation of Purchaser,
enforceable in accordance with its terms. Purchaser is not
subject to any restriction on Purchaser's ability to acquire
the Purchased Shares being acquired pursuant to this
Agreement.
(b) Purchaser has reviewed this Agreement and all annexes,
schedules and exhibits attached hereto, and has received all
such business, financial and other information as Purchaser
deems necessary and appropriate to enable Purchaser to
evaluate the financial risk inherent in making an investment
in the Purchased Shares.
(c) Purchaser has been furnished access to the business
records of the Company and such additional information and
documents as Purchaser has requested and has been afforded an
opportunity to ask questions of and receive answers from
representatives of the Company concerning the business,
operations, market potential, capitalization, financial
condition and prospects, and all other matters deemed relevant
by Purchaser.
(d) Purchaser is acquiring the Purchased Shares acquired
hereunder with Purchaser's own property for investment, for
Purchaser's own account, and not as a nominee or agent for any
other person, firm or corporation, and not with a view to the
sale or distribution of all or any part thereof. Purchaser
does not have any contract, undertaking, agreement or
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arrangement with any person, firm or corporation to sell,
transfer or grant participation to such person, firm or
corporation, with respect to any of the Purchased Shares.
(e) If the Purchased Shares sold to the Purchaser are not
covered by a valid registration statement and cannot be freely
transferred without such a registration statement in place,
the Company shall use all reasonable efforts to register such
Purchased Shares on whatever form it deems appropriate.
(f) Purchaser (i) has such knowledge and experience in
financial and business matters as to be capable of evaluating
the merits and risks of his or her investment in the Company;
(ii) has the ability to bear the economic risks of its
investment for an indefinite period of time; and (iii) has
either a pre-existing personal or business relationship with
the Company or any of the Company's officers, directors, or
controlling persons, or by reason of Purchaser's business or
financial experience or the business or financial experience
of Purchaser's professional advisors who are unaffiliated with
and who are not compensated by the Company or any affiliate or
selling agent of the Company, directly or indirectly, could be
reasonably assumed to have the capacity to protect Purchaser's
own interest in connection with the transaction.
4. Restriction on Sale or Transfer. Except as provided herein, none
of the Purchased Shares (or any beneficial interest therein) shall be sold,
transferred, assigned or pledged (including transfer by operation of law)
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and any attempt to make any such sale, transfer, assignment or pledge shall be
null and void and of no effect unless such transfer complies with all applicable
law, including, without limitation, securities law. The Company shall not be
required (a) to transfer on its books any Purchased Shares which shall have been
sold, pledged or disposed of in violation of any of the provisions of this
Agreement or (b) to treat as owner of such Purchased Shares or to accord the
right to vote or to pay dividends to any purported transferee of Purchased
Shares in violation of this Agreement.
5. Injunctive Relief. Purchaser acknowledges that (i) the provisions
of Section 4 are reasonable and necessary to protect the legitimate interests of
the Company, and (ii) any violation of Section 4 will result in irreparable
injury to the Company, the exact amount of which will be difficult to ascertain,
and that the remedies at law for any such violation would not be reasonable or
adequate compensation to the Company for such a violation. Accordingly,
Purchaser agrees that if Purchaser violates the provisions of Section 4, in
addition to any other remedy which may be available at law or in equity, the
Company shall be entitled to specific performance and injunctive relief, without
posting bond or other security, and without the necessity of proving actual
damages.
6. Legends. The certificates representing the Purchased Shares will
bear substantially the following legends:
(a) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN
CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH
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SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER THE SECURITIES ACT OF 1933."
(b) "THE SHARES RESPRESENTED BY THIS CERTIFICATE MAY BE
TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT
BETWEEN SAMUELS JEWELERS, INC AND THE SHAREHOLDER, A COPY OF
WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY."
7. Tax Matters. Purchaser understands that Purchaser (and not the
Company) shall be responsible for and will pay any federal, state, local or
foreign tax liability and any of Purchaser's other tax consequences that may
arise as a result of the transactions contemplated by this Agreement, including
the acquisition and disposition of Purchased Shares. Purchaser shall rely solely
on the determinations of Purchaser's tax advisors or his or her own
determinations, and not on any statements or representations by the Company or
any of its agents, with regard to all such tax matters.
8. General Provisions.
(a) No Assignments. Except as specifically provided to the
contrary in this Agreement, neither party shall transfer,
assign or encumber any of its or his or her rights,
privileges, duties or obligations under this Agreement without
the prior written consent of the other party, and any attempt
to so transfer, assign or encumber shall be void; provided,
however, that the Company may assign this Agreement and its
rights hereunder in connection with a sale or exchange of its
voting stock or a sale or exchange of all or substantially all
of the assets of the Company.
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(b) Notices. All notices, requests, consents and other
communications required or permitted hereunder shall be in
writing and shall be deemed to have been duly given and made
and served either by personal delivery to the person for whom
it is intended or by telecopy, receipt of which is
acknowledged by the telecopy number set forth below for the
applicable addressee, or if deposited, postage prepaid,
registered or certified mail, return receipt requested, in the
United States mail:
(i) if to Purchaser, addressed to Purchaser at his or
her address shown on the stock register maintained by
the Company, or at such other address as Purchaser
may specify by written notice to the Company, or
(ii) if to the Company, addressed to the Company at
2914 Montopolis Drive, Suite 200, Attention:
Secretary, or at such other address as the Company
may specify by written notice to Purchaser.
Each such notice, request, consent and other communication
shall be deemed to have been given upon receipt thereof as set
forth above or, if sooner, three days after deposit as
described above. The addresses for the purposes of this
Section 8(b) may be changed by giving written notice
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of such change in the manner provided herein for giving
notice. Unless and until such written notice is received, the
addresses provided herein shall be deemed to continue in
effect for all purposes hereunder.
(c) Choice of Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas
without giving effect to conflict of law principles.
(d) Severability. The parties hereto agree that the terms and
provisions in this Agreement are reasonable and shall be
binding and enforceable in accordance with the terms hereof
and, in any event, that the terms and provisions of this
Agreement shall be enforced to the fullest extent permissible
under law. In the event that any term or provision of this
Agreement shall for any reason be adjudged to be unenforceable
or invalid, then such unenforceable or invalid term or
provision shall not affect the enforceability or validity of
the remaining terms and provisions of this Agreement, and the
parties hereto agree to replace such unenforceable or invalid
term or provision with an enforceable and valid arrangement
which in its economic effect shall be as close as possible to
the unenforceable or invalid term or provision.
(e) Parties in Interest. All of the terms and provisions of
this Agreement shall be binding upon and inure to the benefit
of and be enforceable by the respective permitted successors
and assigns of the parties hereto.
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(f) Modification, Amendment and Waiver. No modification,
amendment or waiver of any provision of this Agreement shall
be effective against the Company or Purchaser unless approved
in writing by the parties, and, in the case of the Company,
authorized by its Board. The failure at any time to enforce
any of the provisions of this Agreement shall in no way be
construed as a waiver of such provisions and shall not affect
the right of any of the parties thereafter to enforce each and
every provision hereof in accordance with its terms.
(g) Integration. This Agreement, including all exhibits
attached hereto, constitutes the entire agreement of the
parties with respect to the subject matter hereof and
supersedes all prior negotiations, understandings and
agreements, written or oral.
(h) Headings. The headings of the sections and paragraphs of
this Agreement have been inserted for convenience of reference
only and do not constitute a part of this Agreement.
(i) Counterparts. This Agreement may be executed in
counterpart with the same effect as if all parties had signed
the same document. All such counterparts shall be deemed an
original, shall be construed together and shall constitute one
and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
SAMUELS JEWELERS, INC.
By:
Name: Dwayne A. Cooper
Title: Vice President & Treasurer
PURCHASER:
Name:
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