EXCHANGE AGREEMENT (Unrestricted Stock)
Exhibit 10.2
EXCHANGE AGREEMENT
(Unrestricted Stock)
(Unrestricted Stock)
(including
any other persons or entities exchanging Debentures hereunder
for whom the undersigned Holder holds contractual and investment authority, the “Holder”)
enters into this Exchange Agreement (the “Agreement”) with Genesco Inc. (the
“Company”) on April ___, 2009 whereby on the date hereof the Holder will exchange (the
“Exchange”) the Company’s 4.125% Convertible Subordinated Debentures due June 15, 2023 (the
“Debentures”) for shares of the Company’s common stock, par value $1.00 per share (the
“Common Stock”).
Article I: Exchange of the Debentures for Common Stock
The Holder hereby agrees to exchange and deliver to the Company the following Debentures, and
in exchange therefor the Company hereby agrees to issue to the Holder the number of shares of
Common Stock described below and to pay in cash the following accrued but unpaid interest on such
Debentures:
Principal Amount of Debentures to be Exchanged: $ (the “Exchang
ed
Debentures”).
Number of Shares of Common Stock to be issued in Exchange:
shares (the
“Shares”).
Cash Payment of Accrued but Unpaid Interest on Exchanged Debentures: $ .
The Holder shall deliver or cause to be delivered to the Company all right, title and interest
in and to the Exchanged Debentures free and clear of any mortgage, lien, pledge, charge, security
interest, encumbrance, title retention agreement, option, equity or other adverse claim thereto,
together with any documents of conveyance or transfer that the Company may deem necessary or
desirable to transfer to and confirm in the Company all right, title and interest in and to the
Exchanged Debentures.
Article II: Representations and Warranties of the Holder
The Holder hereby covenants, and makes the following representations and warranties, to the
Company, Lazard Frères & Co. LLC and Lazard Capital Markets LLC, each of which is true and correct
on the date hereof and shall survive the Exchange.
Section 2.1 Power and Authorization. The Holder is duly organized, validly existing
and in good standing, and has the power, authority and capacity to execute and deliver this
Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated
hereby. If the Holder that is signatory hereto is executing this Agreement to effect the exchange
of Exchanged Debentures beneficially owned by one or more other persons or entities (who are thus
included in the definition of “Holder” hereunder), (a) such signatory Holder has all requisite
discretionary authority to enter into this Agreement on behalf of, and bind, each other person or
entity that is a beneficial owner of Exchanged Debentures, and (b) Schedule A to this
Agreement is a true, correct and complete list of (i) the name of each person or entity delivering
(as beneficial owner) Exchanged Debentures hereunder, (ii) the principal amount of such party’s
Exchanged Debentures, and (iii) the number of shares of Common Stock to be issued to such party in
respect of its Exchanged Debentures.
Section 2.2 Valid and Enforceable Agreement; No Violations. This Agreement has been
duly executed and delivered by the Holder and constitutes a legal, valid and binding obligation of
the Holder, enforceable against the Holder in accordance with its terms, except that such
enforcement may be subject to (a) bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting or relating to enforcement of creditors’ rights generally, and (b) general
principles of equity. Consummation of the Exchange will not violate or conflict with the Holder’s organizational documents or any
agreement or instrument to which the Holder is a party or by which the Holder or any of its assets
are bound.
Section 2.3 Title to the Debentures. The Holder is, and has been for the consecutive
six month period preceding the date hereof, the sole legal and beneficial owner of the Exchanged
Debentures, and the Holder has good, valid and marketable title to the Exchanged Debentures, free
and clear of any mortgage, lien, pledge, charge, security interest, encumbrance, title retention
agreement, option, equity or other adverse claim thereto. The Holder has not, in whole or in part,
(a) assigned, transferred, hypothecated, pledged or otherwise disposed of any of the Exchanged
Debentures or its rights in the Exchanged Debentures, or (b) given any person or entity any
transfer order, power of attorney or other authority of any nature whatsoever with respect to the
Exchanged Debentures.
Section 2.4 Accredited Investor. The Holder is an “accredited investor” within the
meaning of Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended (the
“Securities Act”).
Section 2.5 No Affiliate Status. The Holder is not, and has not been during the
consecutive three month period preceding the date hereof, an “affiliate” of the Company within the
meaning of Rule 144 promulgated under the Securities Act.
Section 2.6 No Illegal Transactions. The Holder has not, directly or indirectly, and
no person acting on behalf of or pursuant to any understanding with the Holder has, engaged in any
transactions in the securities of the Company (including, without limitation, any Short Sales (as
defined below) involving any of the Company’s securities) since the time that such Holder was first
contacted by either the Company, Lazard Frères & Co. LLC or Lazard Capital Markets LLC or any other
person regarding an investment in the Company. Such Holder covenants that neither it nor any
person acting on its behalf or pursuant to any understanding with such Holder will engage, directly
or indirectly, in any transactions in the securities of the Company (including Short Sales) prior
to the time the transactions contemplated by this Agreement are publicly disclosed. “Short
Sales” include, without limitation, all “short sales” as defined in Rule 200 of Regulation SHO
promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and
all types of direct and indirect stock pledges, forward sale contracts, options, puts, calls, short
sales, swaps, derivatives and similar arrangements (including on a total return basis), and sales
and other transactions through non-U.S. broker-dealers or foreign regulated brokers.
Section 2.7 No Reliance. The Holder acknowledges that it is not relying, and has not
relied, upon any statement, advice (whether legal, tax, financial, accounting or other),
representation or warranty made by the Company or any of its affiliates or representatives
including, without limitation, Lazard Frères & Co. LLC and Lazard Capital Markets LLC, except for
(a) the publicly available filings made by the Company with the Securities and Exchange Commission
under the Exchange Act and (b) the representations and warranties made by the Company in this
Agreement.
Article III: Representations and Warranties of the Company
The Company hereby covenants, and makes the following representations and warranties, to the
Holder, Lazard Frères & Co. LLC and Lazard Capital Markets LLC, each of which is true and correct
on the date hereof and shall survive the Exchange.
Section 3.1 Power and Authorization. The Company is duly incorporated, validly
existing and in good standing, and has the power, authority and capacity to execute and deliver
this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated
hereby.
Section 3.2 Valid and Enforceable Agreement; No Violations. This Agreement has been
duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms, except that such
enforcement may be subject to (a) bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting or relating to enforcement of creditors’ rights generally, and (b) general
principles of equity. Consummation of the Exchange will not
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violate or conflict with the Company’s charter or bylaws or any agreement or instrument to which the Company is a party or by which the
Company or any of its assets are bound.
Section 3.3 Valid Issuance of the Common Stock. The Shares (a) are duly authorized
and, upon their issuance pursuant to the Exchange against delivery of the Exchanged Debenture, will
be validly issued, fully paid and non-assessable, and (b) assuming the accuracy of the Holder’s
representations and warranties hereunder, (i) will be free of any restrictions on resale by the
Holder under Rule 144 promulgated under the Securities Act, and (ii) will be issued in compliance
with all applicable state and federal laws concerning the issuance of the Shares and all
pre-emptive, participation, rights of first refusal and other similar rights applicable to the
Shares.
Article IV: Miscellaneous
Section 4.1 Entire Agreement. This Agreement and any documents and agreements
executed in connection with the Exchange embody the entire agreement and understanding of the
parties hereto with respect to the subject matter hereof and supersede all prior and
contemporaneous oral or written agreements, representations, warranties, contracts, correspondence,
conversations, memoranda and understandings between or among the parties or any of their agents,
representatives or affiliates relative to such subject matter, including, without limitation, any
term sheets, emails or draft documents.
Section 4.2 Construction. References in the singular shall include the plural, and
vice versa, unless the context otherwise requires. References in the masculine shall include the
feminine and neuter, and vice versa, unless the context otherwise requires. Headings in this
Agreement are for convenience of reference only and shall not limit or otherwise affect the
meanings of the provisions hereof. Neither party, nor its respective counsel, shall be deemed the
drafter of this Agreement for purposes of construing the provisions of this Agreement, and all
language in all parts of this Agreement shall be construed in accordance with its fair meaning, and
not strictly for or against either party.
Section 4.3 Governing Law. This Agreement shall in all respects be construed in
accordance with and governed by the substantive laws of the State of New York, without reference to
its choice of law rules.
Section 4.4 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which taken together shall constitute one and the
same instrument. Any counterpart or other signature hereon delivered by facsimile shall be deemed
for all purposes as constituting good and valid execution and delivery of this Agreement by such
party.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed as of
the date first above written.
| “HOLDER”: | “COMPANY”: | |||||||
| GENESCO INC. | ||||||||
By:
|
By: | |||||||
Name:
|
Name: | |||||||
Title:
|
Title: | |||||||
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SCHEDULE A
Exchanging Beneficial Owners
Exchanging Beneficial Owners
| Name of | Principal Amount of | Number of Shares of | ||
| Beneficial Owner | Exchanged Debentures | Common Stock | ||
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