EXHIBIT 10.10
AMENDMENT TO STOCK AND NOTE PURCHASE AGREEMENT
This AMENDMENT effective as of April 30, 2001 (the "Amendment"), by and
among Footwear Acquisition, Inc., a Delaware corporation (the "Company") and
Perseus Acquisition/ Recapitalization Fund, L.L.C. and any affiliates or
co-investors set forth on the signature page hereto, Union Overseas Holdings
Limited, cre-8-net Ventures L.L.C. and a Strategic Partner (each, a "Purchaser"
and collectively, the "Purchasers").
W I T N E S S E T H:
WHEREAS, the Company and the Purchasers are parties to the Stock and
Note Purchase Agreement dated April 5, 2001 (the "Agreement");
WHEREAS, the Company and the Purchasers contemplated the issuance of
senior notes and entering into a related security agreement in connection with
the transactions contemplated by the Agreement, and have determined not to issue
such notes or execute such security agreement, and the Company and the
Purchasers desire to amend the Agreement accordingly on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter contained and other good and valuable
consideration the receipt of which is hereby acknowledged and intending to be
legally bound, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used in this Amendment without other
definition shall have the meanings set forth in the Agreement.
2. CONSTRUCTION. The Agreement is amended to provide that references in the
Agreement to "this Agreement" or "the Agreement" (including indirect
references such as "hereunder," "hereby," "herein" and "hereof") shall be
deemed to be references to the Agreement as amended hereby.
3. AMENDMENTS.
(a) Section 1.1 (Authorization) is amended by deleting therefrom any
reference to the Senior Notes, including Exhibit C (form of Note), and
adding the following sentence:
"If Purchasers and the Company determine not to purchase and
sell any notes hereunder, the funds deposited for the purchase
any notes shall be returned to such Purchaser, plus any
accumulated interest thereon"
(b) The first sentence of Section 2.2 (Deliveries) is hereby amended
by deleting therefrom any reference to the Senior Notes.
(c) Section 2.3(xiii) (Opinion of Counsel) is hereby amended to
deleted therefrom any reference to the Senior Notes.
(d) Section 2.3(xiii) (Security Agreement) is hereby deleted in its
entirety.
(e) Schedule A is hereby deleted and replaced with Schedule A
attached hereto.
(f) Exhibit H (Form of Security Agreement) is hereby deleted.
4. COUNTERPARTS. This Amendment may be executed in one or more counterparts,
all of which shall be considered one and the same agreement, and shall
become effective when one or more such counterparts have been signed by
each of the parties and delivered to the other parties hereto.
5. ENTIRE AGREEMENT. This Amendment and the SPA contains the entire agreement
and understanding between the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings
relating to such subject matter.
6. EFFECT OF AMENDMENT. This Amendment does not, and shall not be construed
to, modify any term or condition of the Agreement other than those
specific terms and conditions expressly referenced in this Amendment.
Except as herein provided, the Agreement shall remain unchanged and in
full force and effect. In the event of any inconsistency or discrepancy
between this Amendment and the Agreement, the terms and conditions of this
Amendment shall control.
2
[Company Amendment to Stock Purchase Agreement Signature page]
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the
day and year first above written.
FOOTWEAR ACQUISITION, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
-----------------------------
Title: Executive Director
---------------------------
ADDRESS FOR NOTICE:
Xxx Xxxxxxx Xxxx
Xxxxx Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Phone: 000-000-0000
Fax: 000-000-0000
Attn: Xxxxxxx X. Xxxxx
With a copy to:
-----------------------------------
-----------------------------------
-----------------------------------
Facsimile No. :
-------------------
Attn:
-----------------------------
3
[cre-8-net Amendment to Stock Purchase Agreement Signature page]
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the
day and year first above written.
CRE-8-NET VENTURES L.L.C.
BY: /s/ Xxxxxxx X. Xxxxx
---------------------------------
NAME: Xxxxxxx X. Xxxxx
TITLE: Managing Member
ADDRESS FOR NOTICE:
Xxx Xxxxxxx Xxxx
Xxxxx Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Attn: Xxxxxxx X. Xxxxx
With a copy to:
XXXXXX XXXXXXX XXXXXXXX & XXXXXX, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (650) 496-408
Attn: Xxxx Xxxxxx, Esq.
4
[UOHL Amendment to Stock Purchase Agreement Signature page]
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the
day and year first above written.
UNION OVERSEAS HOLDINGS LIMITED
BY:_/s/ Xxxxxx X. Xx
------------------------------------
NAME: Xxxxxx X. Xx
TITLE: Director
ADDRESS FOR NOTICE:
Suite 306
Third Floor
Island Xxxxx Xxxxx
Xx. 000 Xxxx'x Xxxx, Xxxxx Xxxxx
Xxxx Xxxx
Facsimile No. 852-2907-8118
Attn: Xx. Xx Xx
With a copy to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxx Xxxxxx, Esq. and Xxxxxx Xxxxxxx, Esq.
[Perseus Investors Amendment to Stock Purchase Agreement Signature page]
IN WITNESS WHEREOF, the undersigned Perseus Stockholder has executed this
Agreement as of the day and year first above written.
PERSEUS ACQUISITION/RECAPITALIZATION
FUND L.L.C.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------
Title: Managing Director
-----------------------------
PERSEUS FOOTWEAR INVESTMENT, L.L.C.
By its Managing Member
PERSEUS ACQUISITION/RECAPITALIZATION MANAGEMENT, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------
Title: Managing Director
-----------------------------
PERSEUS 2000, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------
Title: Managing Director
-----------------------------
ADDRESS FOR NOTICE:
000 Xxxxxxx Xxxxxx, 00xx Xx.
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxx X. Xxxxxx, III
With a copy to:
Xxxxxx & Xxxxxx
000 Xxxxxxx Xxxxxx X.X.
Xxxxxxxxxx, X.X. 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxx, Esq.
2
SCHEDULE A TO STOCK AND NOTE PURCHASE AGREEMENT
NUMBER OF
NUMBER OF COMMON PREFERRED TOTAL
LIST OF INVESTORS COMMON (1) OWNERSHIP % (2) CONSIDERATION
----------------- ---------- ----------- --- -------------
PERSEUS INVESTORS
Perseus Acquisition/Recapitalization Fund,
L.L.C 3,249,892 262,293 $29,479,222.88
Perseus 2000, L.L.C 840,529 67,838 $ 7,624,296.82
Perseus Footwear Investors, L.L.C 839,870 67,784 $ 7,618,319.21
--------- ------- --------------
TOTAL PERSEUS INVESTORS 4,930,291 55.38% 397,915 $44,721,838.91
UNION OVERSEAS HOLDINGS LIMITED 1,527,037 17.15% 123,245 $13,851,543.75
CRE-8-NET VENTURES L.L.C 2,000,000 22.47% -- $ 0.00
ITOCHU CORPORATION (3) 445,123 5.00% -- $ 445,123.00
--------- ------ ------- --------------
TOTAL 8,902,451 100.00% 521,160 $59,018,451.00
========= ====== ======= ==============
NOTES:
1 - Purchase price per common share equals $1.00.
2 - Purchase price per preferred stock shares equals $100.00.
3 - Pursuant to Trademark and Stock Purchase Agreement between the Company
and Itochu Corporation dated February 24, 2001. Not a party to this
Agreement.
