[Execution Copy]
SHARE PURCHASE AGREEMENT
SHARE PURCHASE AGREEMENT, dated as August 6, 1998 (the
"Agreement") by and between MELLON BANK, N.A., AS TRUSTEE UNDER THE WESTINGHOUSE
ELECTRIC CORPORATION MASTER TRUST AGREEMENT FOR THE WESTINGHOUSE PENSION PLAN
("Seller"), having an address at 3700 One Mellon Bank Center, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000, and BAY HARBOUR MANAGEMENT, L.C. acting for its managed
accounts ("Buyer"), a Florida limited liability company, having an address at
000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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 Three Hundred Thousand (300,000) 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), with Buyer acquiring 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 Nine Hundred Thousand
($900,000) 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 6, 1998 (the "Closing Date"), at the offices of Xxxxxx, Xxxxx &
Xxxxx LLP, 1330 Avenue of the Americas, New York, New York.
3. Representations.
(a) Seller represents and warrants as follows:
(i) Buyer will acquire the Shares free and clear of
all liens, claims, debts, charges, restrictions, or encumbrances of any kind
other than such as may be created by Buyer and other than the restrictions
contemplated by paragraphs 3(b)(iv) and 3(b)(v) hereof.
(ii) 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.
(iii) 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.
(iv) 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.
(v) the execution, delivery and performance of this
Agreement 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") 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.
(vi) all clearances, approvals, authorizations and
consents, orders of, and designations by, any Governmental Entity (as defined
below) or NASD, 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.
(vii) 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 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) 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
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applicable bankruptcy, insolvency, reorganization and other laws affecting
creditors' rights generally, and to equitable principles.
(iii) 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.
(iv) Buyer has extensive experience in investing in
equity securities and possesses the financial sophistication to evaluate an
investment in the Shares. Buyer has had access to all information deemed by it
to be necessary or appropriate to make a decision to purchase the Shares. Buyer
is purchasing the Shares for investment purposes only and not with a view
towards reselling or otherwise distributing the Shares.
(v) 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. Buyer agrees that the certificates representing the
Shares, to be issued to Buyer upon transfer of the Shares will 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.
(vi) 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.
(vii) Buyer has no notice of any liens, claims,
debts, charges, restrictions or encumbrances of any kind affecting the Shares,
other than (x) the restrictions contemplated by paragraphs 3(b)(iv), 3(b)(v) and
4(a)(ii) hereof and (y) restrictions applicable to restricted securities imposed
under the federal and state securities laws.
(c) The representations or warranties made by the parties
in this Paragraph 3 shall survive the Closing for a period of two (2) years from
the Closing Date. The obligations to defend, indemnify and hold harmless any
person pursuant to Paragraph 3 shall terminate when the applicable
representation or warranty terminates pursuant to this clause (c); provided,
however, that such obligations to indemnify and hold harmless shall not
terminate with respect to any item as to which the person to be indemnified or
the related party thereto shall have, before the expiration of the applicable
period, previously made a claim by delivering a notice of such claim (stating in
reasonable detail the basis of such claim) to the indemnifying party.
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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; and
(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 and evidence of the authority of the signatory of the
stock power.
(b) Buyer will deliver or cause to be delivered to
Seller:
(i) this Agreement; and
(ii) the sum of Nine Hundred Thousand ($900,000)
Dollars in accordance with Paragraph 1(b).
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.
(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.
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(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.
(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.
6. Indemnity Against Brokerage Commissions. Each of Seller and Buyer
hereby represents and warrants that there is no corporation, firm or person
entitled to receive from it a brokerage commission or finder's fee in connection
with this Agreement or the transactions provided for herein. Each of 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 it. 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
feminine, 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.
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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 hall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
14. 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.
15. 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.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
SELLER:
MELLON BANK, N.A., as Trustee under
the Westinghouse Electric Corporation
Master Trust Agreement for the
Westinghouse Pension Plan
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
BUYER:
BAY HARBOUR MANAGEMENT, L.C.,
for its managed accounts,
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Principal & Portfolio Manager
