EXHIBIT 10.81
REPURCHASE AGREEMENT
This Repurchase Agreement (this "Agreement") is made as of September 29,
1997 by and between Brylane Inc., a Delaware corporation (the "Company"), and
("Seller").
BACKGROUND
A. The Company has filed a Registration Statement on Form S-1 with the
Securities and Exchange Commission (the "Registration Statement") with respect
to the sale of certain shares of common stock of the Company (the "Common
Stock") by the Selling Stockholders (as defined therein).
B. Seller is the [record and beneficial] owner of shares of Common
Stock.
C. Simultaneously with, and contingent upon, the closing of the sale of
Common Stock pursuant to the Registration Statement (the "Offering") and the
closing of an amendment to the Company's existing bank credit facility in
order to finance the Repurchase (the "Amendment"), Seller desires to sell, and
the Company desires to repurchase, up to shares of Common Stock (the
"Repurchase Shares") upon the terms and subject to the conditions of this
Agreement (the "Repurchase").
TERMS OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
contained herein, and for good and valuable consideration, the adequacy and
receipt of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Transfer Restrictions. During the term of this Agreement, Seller shall
not convey, give, assign, sell, distribute, dispose or otherwise transfer any
Repurchase Shares or any interest therein, except as provided herein.
2. Repurchase Obligations. Subject to the terms hereof, the Company shall
have the obligation to repurchase all of the Repurchase Shares from Seller,
and Seller shall have the obligation to sell all of the Repurchase Shares to
the Company, on the following terms and conditions:
(a) The price per Repurchase Share shall be the Price to Public as set
forth on the cover page of the Final Prospectus (the "Repurchase Price");
(b) The Repurchase shall occur simultaneously with, and is contingent
upon, the closings of both the Offering and the Amendment (collectively,
the "Closing");
(c) The number of Repurchase Shares actually repurchased by the Company
is subject to cut back (on a pro rata basis with the other stockholders of
the Company that participate in the Repurchase) as may be deemed desirable
by the Company in connection with the Offering and the Repurchase; and
(d) Upon the Closing, Seller must sell, and (subject to the provisions of
subparagraph (c) of this Section 2) the Company must repurchase, all of the
Repurchase Shares.
3. Closing.
(a) Seller's Obligation. Upon Closing, Seller (or, pursuant to the
arrangement between Seller and the Attorney-in-Fact specified in that
certain Power of Attorney and Custody Agreement of even date herewith that
may have been entered into between Seller and the Attorney-in-Fact, the
Attorney-in-Fact) shall deliver to the Company one or more certificates
representing the Repurchase Shares, duly endorsed for transfer, with
appropriate stock powers attached, properly signed and with any necessary
documentary or transfer tax stamps duly affixed and cancelled; free and
clear of any claims, liens, security interests, restrictions, pledges and
encumbrances of any kind (except for such restrictions on transfer as may
exist generally under applicable federal and state securities laws).
(b) Company's Obligation. Upon Closing, the Company shall deliver to
Seller (or, pursuant to the arrangement between Seller and the Attorney-in-
Fact specified in that certain Power of Attorney and Custody Agreement of
even date herewith that may have been entered into between Seller and the
Attorney-in-Fact, the Attorney-in-Fact) via wire-transfer, to an account
designated by Seller in writing on or before the second business day prior
to the Closing, the product of the number of Repurchase Shares actually
purchased by the Company, and the Repurchase Price (expressed in U.S.
Dollars).
4. Rights as a Stockholder. Prior to the Repurchase, and except as set forth
in Section 1 hereof, Seller shall retain all rights as a stockholder of the
Company with respect to the Repurchase Shares, including, without limitation,
the right to vote the Repurchase Shares and the right to receive and retain
any dividends thereon. Upon the Repurchase, the Company shall acquire all
rights as a stockholder of the Company with respect to the Repurchase Shares
upon the recording of the transfer of the Repurchase Shares to the Company in
the books of the Company.
5. Representations and Warranties of Seller. Seller hereby represents and
warrants to the Company as follows:
(a) Good and Marketable Title. Seller has good and valid title to the
Repurchase Shares being sold pursuant to this Agreement, free and clear of
all liens, encumbrances, security interests and claims whatsoever; and upon
sale and delivery of, and payment for, such Repurchase Shares, as provided
herein, at the Closing, Seller will convey to the Company good and valid
title to such Repurchase Shares, free and clear of all liens, encumbrances
and security interests.
(b) Authorization of Agreement. This Agreement has been duly authorized
by Seller.
(c) Absence of Violations; No Conflicts. The execution and delivery of
this Agreement by or on behalf of Seller, the sale of the Repurchase Shares
by Seller, the consummation of any of the other transactions contemplated
herein, and the fulfillment of the terms hereof, has not violated and will
not violate the organizational documents of Seller, any provision of law or
material contract to which Seller is subject, or any order or decree of any
governmental authority to which Seller is subject.
(d) Accuracy of Information Regarding Seller. Seller has reviewed the
Registration Statement and the Prospectuses, and such parts of the
Registration Statement and the Prospectuses comprising information under
the caption "Principal and Selling Stockholders" which specifically relates
to Seller will not, at the date the Registration Statement becomes
effective, contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading and, at the date of the Prospectuses, at
the Closing Time and each Date of Delivery (if any) (as defined in the
Purchase Agreement), will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they are made, not misleading.
(e) Absence of Proceedings. No actions, suits or proceedings before or by
any court or governmental agency, body or authority, or arbitrator are
pending or, to the best of Seller's knowledge, threatened or contemplated,
seeking to prevent the sale of the Repurchase Shares or the consummation of
the transactions contemplated by this Agreement.
(f) Absence of Manipulation. Seller has not taken and will not take,
directly or indirectly, any action designed to or which has constituted or
which might reasonably be expected to cause or result, under the Securities
Exchange Act of 1934 or otherwise, in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of
the Repurchase Shares.
(g) Absence of Solicitation. Seller has not been solicited by the Company
or any other person in connection with the Repurchase.
(h) Due Execution of Power of Attorney and Custody Agreement. Seller has
duly executed and delivered, in the form heretofore furnished to the U.S.
Representatives, the Power of Attorney and Custody Agreement with Xxxxxx
Xxxxx (or in certain circumstances, others) of Xxxxxxxxxx, Sandler, Kohl,
Xxxxxx &
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Xxxxxx, as attorney-in-fact (the "Attorney-in-Fact"); the Attorney-in-Fact
is authorized to deliver or cause to be delivered the Repurchase Shares to
be sold by such Seller hereunder and to accept or direct payment therefor,
to execute and deliver this Agreement, on behalf of Seller, to sell, assign
and transfer to the Company the Repurchase Shares to be sold by Seller
hereunder, to determine the purchase price to be paid by the Company to
Seller as provided in Section 3(b) hereof, and otherwise to act on behalf
of Seller in connection with this Agreement. The representations and
warranties of Seller in the Power of Attorney and Custody Agreement are,
and at the Closing Time and as of each Date of Delivery (if any), will be,
true and correct. The parties hereto agree that the Attorney-in-Fact shall
have no liability as a result of any inaccuracy or breach of a
representation or warranty by Seller.
(i) Certificates Suitable for Transfer. Certificates for all of the
Repurchase Shares to be sold by Seller pursuant to this Agreement, in
suitable form for transfer by delivery or accompanied by duly executed
instruments of transfer or assignment in blank with signatures guaranteed,
have been placed in custody with the Attorney-in-Fact.
6. Representations and Warranties of the Company. The Company hereby
represents and warrants to Seller as follows:
(a) Authorization of Agreement. This Agreement has been duly authorized
by the Company.
(b) Absence of Violations; No Conflicts. The execution and delivery of
this Agreement by or on behalf of the Company, the purchase of the
Repurchase Shares by the Company, the consummation of any of the other
transactions contemplated herein, or the fulfillment of the terms hereof,
has not violated and will not violate the organizational documents of the
Company, any provision of law or material contract to which the Company is
subject, or any order or decree of any governmental authority to which the
Company is subject.
(c) Common Stock Repurchase. As of the date hereof, after giving effect
to the consummation of the Offering and the Repurchase (including the
incurrence of $117.4 million in indebtedness pursuant to the Amendment in
connection with the Repurchase), and assuming that the price of the shares
sold by the Selling Stockholders in the Offering and repurchased by the
Company in the Repurchase is equal to the closing price of the Company's
Common Stock on the New York Stock Exchange as of September 26, 1997, the
Company is not "insolvent". For purposes of this representation,
"insolvent" with respect to the Company means that the sum of the present
fair saleable value of its assets exceeds its debts and other probable
liabilities, and the term "debts" includes any liability, whether or not
reduced to judgment, or matured or unmatured, liquidated or unliquidated,
absolute, fixed or contingent, disputed or undisputed, legal, equitable, or
secured or unsecured. The Repurchase has been approved by a committee of
the Board of Directors of the Company comprised solely of directors that do
not have a relationship which, in the opinion of the Board of Directors of
the Company, would interfere with the exercise of independent judgment by
such person in carrying out his responsibilities as a director of the
Company with respect to the Repurchase.
7. Expenses. Each of the Company and Seller agrees to bear its own fees and
expenses relating to the Repurchase.
8. Termination. This Agreement may be terminated:
(a) By mutual agreement of the Company and Seller; or
(b) By either the Company or Seller if the Closing shall not have
occurred on or before November 21, 1997.
9. Specific Performance; Limitation on Liability. The parties acknowledge
and agree that in the event of any breach of this Agreement, the parties would
be irreparably harmed and could not be made whole by monetary damages. It is
accordingly agreed that each of the Company and Seller, in addition to any
other remedy to which they may be entitled at law or in equity, shall be
entitled to compel specific performance of the transactions
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contemplated by this Agreement. Notwithstanding the foregoing, the liability
of Seller for the breach of any representation or warranty contained in this
Agreement in an action at law shall be limited to an amount equal to the
proceeds received by such Seller from the sale of the Repurchase Shares by
such Seller to the Company pursuant to the terms and provisions of this
Agreement.
10. Governing Law. This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of New York, without
reference to the choice of law principles thereof.
11. Entire Agreement. This Agreement constitutes the entire and final
agreement and understanding between the parties with respect to the subject
matter hereof and supersedes all prior agreements relating to the subject
matter hereof which are of no further force or effect.
12. Amendments. No amendment or modification of this Agreement shall be
effective unless set forth in writing and signed by the parties hereto.
13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14. Bringdown Certificate. The Company agrees, on the closing date of the
Offering and the Repurchase, to provide Seller with a certificate of an
executive officer of the Company that, based upon the actual incurrence of
indebtedness pursuant to the Amendment in connection with the Repurchase, and
the actual price of the shares sold by the Selling Stockholders in the
Offering and purchased by the Company in the Repurchase, the Company will not
be "insolvent", as such term is defined in subparagraph (c) of Section 6 of
this Agreement.
IN WITNESS WHEREOF, the parties hereto hereby execute this Agreement as of
the date first above written.
THE COMPANY
BRYLANE INC.
By: _________________________________
Xxxxxx X. Xxxxxxxx
Chief Financial Officer
SELLER
SELLER
By: _________________________________
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