Exhibit 10.2
STOCK EXCHANGE AGREEMENT
THIS AGREEMENT made and entered into as of the 27th day of May, 1997
by and among Wilsons The Leather Experts Inc., a Minnesota corporation (the
"Company"), and Leather Investors Limited Partnership II, a Minnesota limited
partnership (the "Shareholder").
WHEREAS, the Company has filed a registration statement for a public
offering of units consisting of its Common Stock, par value $.01 per share,
without designation as to class (the "Undesignated Common Stock") and warrants
to purchase Undesignated Common Stock ("Warrants"); and
WHEREAS, the Shareholder owns of record all 7,405 shares of the
Company's Series A Preferred Stock, par value $.01 per share (the "Preferred
Stock"), currently outstanding; and
WHEREAS, the Company has available for issuance shares of its Class A
Common Stock, par value $.01 per share (the "Common Stock"); and
WHEREAS, the Company and the Shareholder desire to facilitate said
public offering of units consisting of Undesignated Common Stock and Warrants
and to simplify the capital structure of the Company by exchanging the
Shareholder's shares of Preferred Stock for newly-issued shares of Common Stock;
and
WHEREAS, the Company and the Shareholder understand that in the event
the contemplated public offering is completed following the exchange of the
Preferred Stock for Common Stock, the shares of Common Stock to be issued to the
Shareholders in exchange for the 7,405 shares of Preferred Stock automatically
will be converted into Undesignated Common Stock as provided in the Amended
Articles of Incorporation of the Company.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
1. Delivery of Certificates. The Shareholder hereby agrees to
deliver to the Company stock certificates representing the 7,405 shares of
Preferred Stock held of record by the Shareholder in a form suitable for
surrender to the Company.
2. New Certificates. In consideration for such surrender, the
Company hereby agrees to issue in exchange for each such share of Preferred
Stock so surrendered 83 1/3 shares of Common Stock (with the total number of
shares of Common Stock so
issued to be rounded to the nearest whole share), such that a total of 617,083
shares of Common Stock shall be issued by the Company to the Shareholder in
exchange for the Shareholder's Preferred Stock. The Company agrees to issue to
the Shareholder a certificate or certificates registered in the Shareholder's
name representing such shares of Common Stock. Notwithstanding anything to the
contrary provided in the Amended Articles of Incorporation of the Company or
otherwise, no dividends, whether accumulated, cumulative, accrued or otherwise,
shall be paid with respect to the Preferred Stock, and the Shareholder waives,
effective upon consummation of the exchange, its rights to receive any such
dividends or any other payments or other distributions for or in respect of the
Preferred Stock, other than the 617,083 shares of Common Stock to be issued
pursuant to this Agreement in exchange for the Preferred Stock.
3. Consummation of Exchange. The transactions contemplated by
paragraphs 1 and 2 hereof shall be consummated immediately prior to the
effectiveness of the registration statement filed by the Company for the
proposed public offering of units consisting of Undesignated Common Stock and
Warrants, and shall not occur in the event such registration statement does not
become effective.
4. Representations and Warranties of the Shareholder. The
Shareholder hereby represents and warrants as follows:
(a) The Shareholder is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Minnesota and
has the partnership power and authority to own Preferred Stock and Common
Stock of the Company.
(b) The Shareholder has good and valid title to, and owns,
beneficially and of record, 7,405 shares of Preferred Stock, which
constitute all of the shares of Preferred Stock registered in its name on
the books of the Company, free and clear of any pledge, lien, charge,
encumbrance, adverse claim or other restriction thereon (other than
restrictions on transfer imposed by federal and state securities laws and
restrictions imposed by the Shareholder Agreement hereinafter referred to),
and the Shareholder has full power and authority to surrender such shares
to the Company hereunder in exchange for Common Stock.
(c) The execution, delivery and performance of this Agreement,
including the exchange of Preferred Stock for Common Stock pursuant to the
terms of this Agreement, have been duly authorized by all necessary
partnership action on the part of the Shareholder. This Agreement has been
duly executed and delivered by the Shareholder and, assuming due
authorization, execution and delivery of this Agreement by the Company,
constitutes a valid and binding obligation of the Shareholder, enforceable
against the Shareholder in accordance with its terms.
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(d) There is no legal action or suit or governmental proceeding or
investigation pending or, to the knowledge of the Shareholder, threatened
against the Shareholder or the shares of Preferred Stock owned of record by
the Shareholder which in any way adversely affects, limits or prevents the
exchange and delivery of the shares of Preferred Stock to the Company
hereunder.
(e) The execution, delivery and performance of this Agreement by the
Shareholder will not result in a breach or violation by the Shareholder of,
or constitute a default by the Shareholder under, any agreement, instrument
or order to which the Shareholder is a party or by which the Shareholder is
bound or under the limited partnership agreement of the Shareholder or
under any governmental statute, regulation or other law.
(f) Any and all shares of Common Stock received in exchange for
shares of Preferred Stock under this Agreement will be acquired by the
Shareholder for investment purposes only and not with a view to public
distribution in violation of the Securities Act of 1933, as amended (the
"Securities Act"), or any state securities laws. However, the Company
understands that in the event the proposed public offering of units
consisting of Undesignated Common Stock and Warrants is completed, the
Shareholder will be liquidated and the Common Stock received in exchange
for the Preferred Stock will be distributed in such liquidation to the
partners of the Shareholder. The Shareholder acknowledges that the Common
Stock being acquired by the Shareholder in exchange for the Preferred Stock
pursuant to the terms of this Agreement is being issued and sold under
exemptions from registration provided in the Securities Act and under
applicable state securities laws and, therefore, cannot be offered, sold,
transferred or otherwise disposed of by the Shareholder or its partners
following the liquidation of the Shareholder unless subsequently registered
under the Securities Act and all applicable state securities laws or unless
in the written opinion of counsel to the Shareholder reasonably acceptable
to the Company that is delivered to the Company an exemption from such
registration is available, and that the certificates representing the
shares of Common Stock to be issued pursuant to this Agreement will contain
a legend substantially to such effect. Each of the Shareholder and its
partners is an "accredited investor" as such term in defined in Regulation
D promulgated under the Securities Act. The Shareholder acknowledges that
it has been furnished with, and has distributed to each of its partners,
copies of a Preliminary Prospectus dated May 6, 1997 relating to the
proposed public offering by the Company of units consisting of Undesignated
Common Stock and Warrants, and that each of the Shareholder and such
partners has been given the opportunity to carefully review such
Preliminary Prospectus.
(g) No representation or warranty of the Shareholder made herein
contains any untrue statement of a material fact or omits to state any
material facts necessary to make the statements herein not misleading.
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5. Representations and Warranties of the Company. The Company
represents and warrants as follows:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Minnesota and has the
corporate power and authority to own and operate its properties and to
carry on its business.
(b) The Company has full power and authority to issue the shares of
Common Stock and to exchange and deliver such shares for the Shareholder's
shares of Preferred Stock pursuant to the terms of this Agreement.
(c) The execution, delivery and performance of this Agreement,
including the exchange of Common Stock for Preferred Stock pursuant to the
terms of this Agreement, have been duly authorized by all necessary
corporate action on the part of the Company. This Agreement has been duly
executed and delivered by the Company and, assuming due authorization,
execution and delivery of this Agreement by the Shareholder, constitutes a
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms.
(d) There is no legal action or suit or governmental proceeding or
investigation pending or, to the knowledge of the Company, threatened
against the Company which in any way adversely affects, limits or prevents
the exchange and delivery of the shares of Common Stock to the Shareholder
hereunder.
(e) The execution, delivery and performance of this Agreement by the
Company will not result in a breach or violation by it of, or constitute a
default by it under, any agreement, instrument or order to which the
Company is a party or by which the Company is bound or under the Amended
Articles of Incorporation or Bylaws of the Company or under any
governmental statute, regulation or other law.
(f) The shares of Common Stock being issued in exchange for the
Preferred Stock pursuant to the terms of this Agreement have been duly
authorized and are validly issued, fully paid and non-assessable and are
being issued by the Company free and clear of any restrictions imposed
thereon by the Company (other than restrictions imposed by the Shareholder
Agreement hereinafter referred to), and are not being issued in violation
of any preemptive rights.
(g) No representation or warranty of the Company made herein contains
any untrue statement of a material fact or omits to state any material
facts necessary to make the statements herein not misleading.
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6. Survival of Representations and Warranties. All representations
and warranties contained herein shall survive the execution of this Agreement
and the consummation of the exchange of the shares contemplated hereby.
7. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
8. Complete Agreement. This Agreement contains the complete
agreement between the parties hereto with respect to the exchange of the shares
and supersedes all prior agreements and understandings between the parties
hereto with respect thereto.
9. Amendment. This Agreement may be amended, modified or
supplemented only by written agreement of the Company and the Shareholder.
10. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Minnesota.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
shall constitute but one instrument.
12. Shareholder Agreement. The Shareholder acknowledges and agrees
that the shares of Common Stock being issued in exchange for the Preferred Stock
pursuant to the terms of this Agreement shall become subject immediately upon
such issuance to the terms of the Shareholder Agreement dated as of May 25, 1996
among the Company, the Shareholder, Leather Investors Limited Partnership I and
certain other shareholders of the Company and partners of the Shareholder and
Leather Investors Limited Partnership I, as from time to time amended, without
further action of the Shareholder or any other party thereto, and that the
certificates representing the shares of Common Stock to be issued pursuant to
this Agreement will contain a legend substantially to such effect.
13. Registration Rights Agreement. It is the intent of the parties
hereto that the Shareholder and its transferees shall be entitled, with respect
to the shares of Common Stock being issued in exchange for the Preferred Stock
pursuant to the terms of this Agreement, to the same rights under the
Registration Rights Agreement dated as of May 25, 1996 among CVS New York, Inc.
(formerly known as Melville Corporation), the Company, Leather Investors Limited
Partnership I and certain other shareholders of the Company and partners of
Leather Investors Limited Partnership I (the "Registration Rights Agreement") as
Leather Investors Limited Partnership I and its transferees have with respect to
the shares of Common Stock currently held by such partnership as if the Common
Stock being issued in exchange for the Preferred Stock pursuant to the terms of
this Agreement was outstanding as of the date of the Registration Rights
Agreement and
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owned by Leather Investors Limited Partnership I or its transferees. Any such
rights to demand registration or in respect of any such demand (herein, "demand
rights") shall be exercised jointly with Leather Investors Limited Partnership I
or its transferees (at the direction of the holders of a majority of the
outstanding shares of Common Stock being issued in exchange for the Preferred
Stock pursuant to the terms of this Agreement and the outstanding shares of
Common Stock currently held by Leather Investors Limited Partnership I), and
shall not be independent of or in addition to the demand rights held by Leather
Investors Limited Partnership I and its transferees. In the event the
Shareholder reasonably determines that the Registration Rights Agreement must be
amended to provide for such rights, the Company agrees to use its best efforts
to cause such an amendment to be entered into in accordance with the terms of
the Registration Rights Agreement. If, after using its best efforts, the Company
is unable to obtain such an amendment, the Company will enter into a separate
registration rights agreement with the Shareholder and/or its transferees, as
the case may be, providing for such rights (provided that Leather Investors
Limited Partnership I, unless it has previously liquidated, and its partners
and/or other transferees shall have consented in writing to such separate
registration rights agreement and agreed in writing to the joint exercise of
demand rights and other matters provided for in the second sentence of this
paragraph 13 notwithstanding anything to the contrary provided in the
Registration Rights Agreement).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above stated.
WILSONS THE LEATHER EXPERTS INC.
By /s/ Xxxx X. Xxxxxx
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Its Chief Executive Officer
LEATHER INVESTORS LIMITED
PARTNERSHIP II
By /s/ Xxxx Xxxxxx
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Its General Partner
And /s/ Xxxxxx Xxxxxxxx
---------------------------------
Its General Partner
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