EXHIBIT 4.1
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (this "AGREEMENT") dated as of
January 10, 2002, is made and entered by and among Wilsons The Leather Experts
Inc., a Minnesota corporation (the "COMPANY"), and the purchasers identified on
the signature pages hereto (each, including its respective successors and
assigns, a "PURCHASER" and collectively the "PURCHASERS").
WHEREAS, subject to the terms and conditions set forth in this
Agreement and pursuant to Section 4(2) of the Securities Act of 1933, as amended
(the "SECURITIES ACT"), and Rule 506 promulgated thereunder, the Company desires
to issue and sell to the Purchasers, and the Purchasers, severally and not
jointly, desire to purchase from the Company, an aggregate of 1,900,000 shares
of Common Stock (as hereinafter defined) (the "SHARES").
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in
this Agreement, and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the Company and the Purchasers agree
as follows:
ARTICLE I.
DEFINITIONS
1.1 DEFINITIONS. As used in this Agreement, the following terms shall
have the meanings set forth in this Section 1.1:
"Affiliate" means any Person that, directly or indirectly through one
or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 144.
"Business Day" means any day except Saturday, Sunday and any day which
shall be a federal legal holiday or a day on which banking institutions in the
State of New York are authorized or required by law or other governmental action
to close.
"Closing" means the closing of the purchase and sale of the Shares
pursuant to Section 2.1.
"Closing Date" means the date of the Closing.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock of the Company, $0.01 par value
per share, and any securities into which such common stock may hereafter be
reclassified.
"Company Counsel" means Faegre & Xxxxxx LLP.
"Effective Date" means the date that the Registration Statement is
first declared effective by the Commission.
"Eligible Market" means any of the New York Stock Exchange, the
American Stock Exchange, the Nasdaq National Market or the Nasdaq SmallCap
Market.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Guidance Day" means the day in which the Company issues the Press
Release.
"Per Share Purchase Price" equals the lesser of (x) $11.00 (subject to
equitable adjustment in the event of stock splits, reverse stock splits and
similar events affecting the Common Stock prior to the Closing Date) and (y) the
lowest price at which the Common Stock is traded on the Guidance Day (if the
Press Release is issued earlier than 1:00 p.m. (New York time) on a Trading Day)
or if the Company issues the Press Release at 1:00 p.m. (New York time) or later
on a Trading Day or if such Press Release is not issued on a Trading Day, the
lowest price at which the Common Stock is traded on either the Guidance Day or
the Trading Day immediately following the Guidance Day.
"Person" means an individual or corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
"Press Release" means the press release issued by the Company setting
forth the Company's sales for the month of December 2001 and the forecast for
the fourth quarter of the fiscal year ending February 2, 2002.
"Proceeding" means an action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial proceeding, such as
a deposition), whether commenced or threatened in writing.
"Purchaser Counsel" means Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx
LLP.
"Purchaser Percentage" means, with respect to a Purchaser, the
percentage equal to a fraction, expressed as a percentage, the numerator of
which shall be the number of Shares issued to such Purchaser on the Closing and
the denominator of which shall be the total number of Shares issued to all
Purchasers on the Closing.
"Registration Statement" means a registration statement meeting the
requirements set forth in the Registration Rights Agreement and covering the
resale of the Shares by the Purchasers.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date of this Agreement, by and among the Company and
the Purchasers, in the form of Exhibit A.
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"Rule 144," means Rule 144 promulgated by the Commission pursuant to
the Securities Act, as such Rules may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means any subsidiary of the Company that is required to be
listed in Schedule 3.1(a).
"Trading Day" means (i) a day on which the Common Stock is traded on a
Trading Market, or (ii) if the Common Stock is not listed on a Trading Market, a
day on which the Common Stock is traded in the over-the-counter market, as
reported by the OTC Bulletin Board, or (iii) if the Common Stock is not quoted
on the OTC Bulletin Board, a day on which the Common Stock is quoted in the
over-the-counter market as reported by the National Quotation Bureau
Incorporated (or any similar organization or agency succeeding its functions of
reporting prices); provided, that in the event that the Common Stock is not
listed or quoted as set forth in (i), (ii) and (iii) hereof, then Trading Day
shall mean a Business Day.
"Trading Market" means the Nasdaq National Market or any other national
securities exchange, market or trading or quotation facility on which the Common
Stock is then listed or quoted.
"Transaction Documents" means this Agreement, the Registration Rights
Agreement and any other documents or agreements executed in connection with the
transactions contemplated hereunder.
ARTICLE II.
PURCHASE AND SALE
2.1 CLOSING.
(a) The Closing of the sale and purchase of the Shares shall
take place at the offices of Purchaser Counsel at 9:30 a.m. (New York
time) on (i) the second Trading Day immediately following the Guidance
Day, if the Press Release is issued earlier than 1:00 p.m. (New York
time) on a Trading Day or (ii) on the third Trading Day immediately
following the Guidance Day, if the Press Release is issued at 1:00 p.m.
(New York time) or later on a Trading Day or is not issued on a Trading
Day or (iii) on such date or at such location as the parties may agree.
(b) If the lowest price at which the Common Stock trades on
(x) if the Press Release is issued earlier than 1:00 p.m. (New York
time) on a Trading Day, the Guidance Day, or (y) if the Press Release
is issued at 1:00 p.m. (New York time) or later on a Trading Day or is
not issued on a Trading Day, either the Guidance Day or the Trading Day
immediately following the Guidance Day, is less than $9.00 (subject to
equitable adjustment in the event of stock splits,
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reverse stock splits and similar events affecting the Common Stock
prior to the Closing Date), then the Company may (subject to Section
2.1(c)) elect not to sell Shares under this Agreement (by delivery of
written notice to the Purchasers, not later than 8:00 a.m. (New York
time) on the Trading Day immediately following the Guidance Day, if the
Press Release is issued earlier than 1:00 p.m. (New York time) on a
Trading Day, or not later than 8:00 am. (New York time) on the second
Trading Day following the Guidance Day, if the Press Release is issued
at 1:00 p.m. (New York time) or later on a Trading Day or is not issued
on a Trading Day.
(c) Notwithstanding an election by the Company pursuant to
Section 2.1(b) not to sell Shares under this Agreement, a Purchaser may
require the Company to sell a number of Shares as is indicated in such
Purchaser's written notice (which notice shall be delivered to the
Company not later than 5:00 p.m. (New York time) on the Trading Day
immediately following the Guidance Day, if the Press Release is issued
earlier than 1:00 p.m. (New York time) on a Trading Day or not later
than 5:00 p.m. (New York time) on the second Trading Day following the
Guidance Day, if the Press Release is issued at 1:00 p.m. (New York
time) or later on a Trading Day or is not issued on a Trading Day) up
to such Purchaser's Purchaser Percentage multiplied by 1,900,000. The
Per Share Purchase Price for such Shares sold following a Purchaser's
election under this Section 2.1(c) will equal the greater of (x) $9.00
(subject to equitable adjustment in the event of stock splits, reverse
stock splits and similar events affecting the Common Stock prior to the
Closing Date) and (y) 92.5% of the closing sales price of the Common
Stock (as reported by Bloomberg, L.P. or the successor to its function
of reporting share prices) on the Trading Day immediately following the
Guidance Day or second Trading Day immediately following the Guidance
Day (as the case may be by reference to the time of the Press Release
as discussed above in this paragraph).
2.2 DELIVERIES.
(a) On the date that this Agreement is executed, (A) the
Company shall deliver to the Purchasers this Agreement and a
Registration Rights Agreement, each duly executed by the Company and
shall reimburse the Purchasers for the legal fees and expenses incurred
by them in connection with the preparation and negotiation of the
Transaction Documents by delivering $25,000 in cash to Purchaser
Counsel and (B) each Purchaser shall deliver to the Company this
Agreement and a Registration Rights Agreement, each duly executed by
such Purchaser.
(b) At the Closing, the Company shall deliver or cause to be
delivered to each Purchaser the following:
(i) a certificate evidencing the number of Shares
equal to (as applicable) (x) the number of Shares indicated
below such Purchaser's name on the signature page of this
Agreement or (y) the number of Shares indicated in the
Purchaser's notice delivered to the Company in accordance with
Section 2.1(c), in each case registered in the name of such
Purchaser; and
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(ii) a legal opinion of Company Counsel, in agreed
form, addressed to the Purchasers; and
(c) At the Closing, each Purchaser shall deliver or cause to
be delivered to the Company, in United States dollars in immediately
available funds by wire transfer to an account designated in writing by
the Company for such purpose, the Per Share Purchase Price for the
Shares being purchased by such Purchaser, as indicated on such
Purchaser's signature page to this Agreement or the Purchaser's notice
delivered to the Company in accordance with Section 2.1(c), as the case
may be.
2.3 CONDITIONS TO CLOSING. The obligation of the Purchasers to purchase
the Shares at the Closing is subject to satisfaction or waiver by each Purchaser
of each of the following conditions: (1) the Common Stock is listed for trading
on a Trading Market; (2) the representations and warranties reps of the Company
are true and correct on the Closing Date; (3) no Material Adverse Effect (as
hereinafter defined) has occurred or be continuing; and (4) the Company shall
have delivered an officer's certificate to the Purchasers confirming clauses
(1), (2) and (3) of this Section 2.3
2.4 OPTION.
(a) For a period commencing on the Closing Date through and
including the 75th calendar day following the Closing Date (such
period, the "OPTION PERIOD") and provided that the closing sales price
of the Common Stock on the Trading Day immediately preceding the
Exercise Notice (as hereinafter defined) exceeds the Per Share Purchase
Price paid by the Purchasers on the Closing Date, each Purchaser who
purchased Shares on the Closing Date (or its successor or assigns)
shall have the one-time right to deliver to the Company written notice
(an "EXERCISE NOTICE") exercising its right to purchase its Purchaser
Percentage of the amount of Option Shares (as hereinafter defined). The
maximum aggregate number of shares of Common Stock that the Company
shall be required to issue and sell to all the Purchasers pursuant to
all Exercise Notices shall be 100,000 shares (subject to equitable
adjustment in the event of stock splits, reverse stock splits and
similar events affecting the Common Stock prior to the Option Closing
Date (as hereinafter defined)) (the "OPTION SHARES"). The purchase
price per Option Share shall equal $11.00 per share (subject to
equitable adjustment in the event of stock splits, reverse stock splits
and similar events affecting the Common Stock prior to the Option
Closing Date).
(b) The closing for any purchase and sale of the Option Shares
(the "OPTION CLOSING DATE") shall occur on the 3rd Trading Day
following the delivery of the Exercise Notice.
(c) On the Option Closing Date, (i) the Company will, against
delivery of the amounts set forth in Section 2.4(c)(ii), deliver to
each Purchaser an original stock certificate representing a number of
Option Shares being purchased by each such Purchaser and (ii) each
Purchaser will deliver to the Company the purchase price for the Option
Shares being purchased
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in United States dollars in immediately available funds by wire
transfer to an account designated in writing by the Company for such
purpose.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
makes the following representations and warranties to the Purchasers:
(a) SUBSIDIARIES. The Company has no direct or indirect
subsidiaries other than those listed in SCHEDULE 3.1(a). Except as
disclosed in SCHEDULE 3.1(a), the Company owns, directly or indirectly,
all of the capital stock of each Subsidiary free and clear of any lien,
charge, security interest, encumbrance, right of first refusal or other
restriction (collectively, "LIENS"), and all the issued and outstanding
shares of capital stock of each Subsidiary are validly issued and are
fully paid, non-assessable and free of preemptive and similar rights.
If the Company has no subsidiaries, then references in the Transaction
Documents to the Subsidiaries will be disregarded.
(b) ORGANIZATION AND QUALIFICATION. Each of the Company and
the Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization (as applicable), with
the requisite power and authority to own and use its properties and
assets and to carry on its business as currently conducted. Neither the
Company nor any Subsidiary is in violation of any of the provisions of
its respective certificate or articles of incorporation, bylaws or
other organizational or charter documents. Each of the Company and the
Subsidiaries is duly qualified to conduct business and is in good
standing as a foreign corporation or other entity in each jurisdiction
in which the nature of the business conducted or property owned by it
makes such qualification necessary, except where the failure to be so
qualified or in good standing, as the case may be, could not,
individually or in the aggregate, (i) adversely affect the legality,
validity or enforceability of any Transaction Document, (ii) have or
result in a material adverse effect on the results of operations,
assets, prospects, business or condition (financial or otherwise) of
the Company and the Subsidiaries, taken as a whole, or (iii) adversely
impair the Company's ability to perform fully on a timely basis its
obligations under any Transaction Document (any of (i), (ii) or (iii),
a "MATERIAL ADVERSE EFFECT").
(c) AUTHORIZATION; ENFORCEMENT. The Company has the requisite
corporate power and authority to enter into and to consummate the
transactions contemplated by each of the Transaction Documents and
otherwise to carry out its obligations thereunder. The execution and
delivery of each of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated thereby have been
duly authorized by all necessary action on the part of the Company and
no further action is required by the Company. Each Transaction Document
has been (or upon delivery will have been) duly executed by the Company
and, when delivered in accordance with the terms hereof, will
constitute the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, subject to
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applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights
and remedies generally and general principles of equity. Neither the
Company nor any Subsidiary is in violation of any of the provisions of
its respective certificate or articles of incorporation, by-laws or
other organizational or charter documents.
(d) NO CONFLICTS. The execution, delivery and performance of
the Transaction Documents by the Company and the consummation by the
Company of the transactions contemplated thereby do not and will not
(i) conflict with or violate any provision of the Company's or any
Subsidiary's certificate or articles of incorporation, bylaws or other
organizational or charter documents, or (ii) conflict with, or
constitute a default (or an event that with notice or lapse of time or
both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without
notice, lapse of time or both) of, any agreement, credit facility, debt
or other instrument (evidencing a Company or Subsidiary debt or
otherwise) or other understanding to which the Company or any
Subsidiary is a party or by which any property or asset of the Company
or any Subsidiary is bound or affected, or (iii) result in a violation
of any law, rule, regulation, order, judgment, injunction, decree or
other restriction of any court or governmental authority to which the
Company or a Subsidiary is subject (including federal and state
securities laws and regulations), or by which any property or asset of
the Company or a Subsidiary is bound or affected; except in the case of
each of clauses (ii) and (iii), such as could not, individually or in
the aggregate, have or reasonably be expected to result in a Material
Adverse Effect.
(e) FILINGS, CONSENTS AND APPROVALS. The Company is not
required to obtain any consent, waiver, authorization or order of, give
any notice to, or make any filing or registration with, any court or
other federal, state, local or other governmental authority or other
Person in connection with the execution, delivery and performance by
the Company of the Transaction Documents, other than (1) the filing
with the Commission of the Registration Statement, and (2) the
application with the Trading Market for the listing of the Shares for
trading thereon in the time and manner required thereby (collectively,
the "REQUIRED APPROVALS").
(f) ISSUANCE OF THE SHARES AND OPTION SHARES. The Shares and
the Option Shares are duly authorized and, when issued and paid for in
accordance with this Agreement, will be duly and validly issued, fully
paid and nonassessable, free and clear of all Liens. The Company has
reserved from its duly authorized capital stock the maximum number of
shares of Common Stock issuable pursuant to this Agreement.
(g) CAPITALIZATION. The number of shares and type of all
authorized, issued and outstanding capital stock of the Company is set
forth in SCHEDULE 3.1(g). No securities of the Company are entitled to
preemptive or similar rights, and no Person has any right of first
refusal, preemptive right, right of participation, or any similar right
to participate in the transactions contemplated by the Transaction
Documents. Except as a result of the purchase and sale of the Shares
and except as disclosed in SCHEDULE 3.1(g), there are no outstanding
options, warrants, script rights to subscribe to, calls or commitments
of any character whatsoever relating to, or
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securities, rights or obligations convertible into or exchangeable for,
or giving any Person any right to subscribe for or acquire, any shares
of Common Stock, or contracts, commitments, understandings or
arrangements by which the Company or any Subsidiary is or may become
bound to issue additional shares of Common Stock, or securities or
rights convertible or exchangeable into shares of Common Stock. The
issue and sale of the Shares will not obligate the Company to issue
shares of Common Stock or other securities to any Person (other than
the Purchasers) and will not result in a right of any holder of Company
securities to adjust the exercise, conversion, exchange or reset price
under such securities.
(h) SEC REPORTS; FINANCIAL STATEMENTS. The Company has filed
all reports required to be filed by it under the Securities Act and the
Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for
the two years preceding the date hereof (or such shorter period as the
Company was required by law to file such material) (the foregoing
materials being collectively referred to herein as the "SEC REPORTS"
and, together with the Schedules to this Agreement, the "DISCLOSURE
MATERIALS") on a timely basis or has received a valid extension of such
time of filing and has filed any such SEC Reports prior to the
expiration of any such extension. The Company has delivered to the
Purchasers a copy of all SEC Reports filed within the 10 days preceding
the date hereof. As of their respective dates, the SEC Reports complied
in all material respects with the requirements of the Securities Act
and the Exchange Act and the rules and regulations of the Commission
promulgated thereunder, and none of the SEC Reports, when filed,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading. The financial statements of the Company
included in the SEC Reports comply in all material respects with
applicable accounting requirements and the rules and regulations of the
Commission with respect thereto as in effect at the time of filing.
Such financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
during the periods involved ("GAAP"), except as may be otherwise
specified in such financial statements or the notes thereto, and fairly
present in all material respects the financial position of the Company
and its consolidated subsidiaries as of and for the dates thereof and
the results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal, immaterial,
year-end audit adjustments.
(i) MATERIAL CHANGES. Since the date of the latest audited
financial statements included within the SEC Reports, except as
specifically disclosed in the SEC Reports, (i) there has been no event,
occurrence or development that has had or that could result in a
Material Adverse Effect (for purposes of this Section 3.1(i), the
Company's sales data set forth in the Press Release or the effect of
such sales data on the price of the Common Stock shall not constitute a
Material Adverse Effect), (ii) the Company has not incurred any
liabilities (contingent or otherwise) other than (A) trade payables and
accrued expenses incurred in the ordinary course of business consistent
with past practice and (B) liabilities not required to be reflected in
the Company's financial statements pursuant to GAAP or required to be
disclosed in filings made with the Commission, (iii) the Company has
not altered its method of accounting or the identity of its auditors,
(iv) the Company has not declared or made any dividend or
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distribution of cash or other property to its stockholders or
purchased, redeemed or made any agreements to purchase or redeem any
shares of its capital stock, and (v) the Company has not issued any
equity securities to any officer, director or Affiliate, except
pursuant to existing Company stock option plans. The Company does not
have pending before the Commission any request for confidential
treatment of information.
(j) LITIGATION. There is no action, suit, inquiry, notice of
violation, proceeding or investigation pending or, to the knowledge of
the Company, threatened against or affecting the Company, any
Subsidiary or any of their respective properties before or by any
court, arbitrator, governmental or administrative agency or regulatory
authority (federal, state, county, local or foreign) (collectively, an
"ACTION") which (i) adversely affects or challenges the legality,
validity or enforceability of any of the Transaction Documents or (ii)
could, if there were an unfavorable decision, individually or in the
aggregate, have or reasonably be expected to result in a Material
Adverse Effect. Neither the Company nor any Subsidiary, nor any officer
thereof, is or has been, nor any director thereof is or has been for
the last three years, the subject of any Action involving a claim of
violation of or liability under federal or state securities laws or a
claim of breach of fiduciary duty. There has not been, and, to the
knowledge of the Company, there is not pending or contemplated, any
investigation by the Commission involving the Company or any current or
former director that was a director of the Company at any time during
the last three years or officer of the Company. The Commission has not
issued any stop order or other order suspending the effectiveness of
any registration statement filed by the Company or any Subsidiary under
the Exchange Act or the Securities Act.
(k) LABOR RELATIONS. No material labor dispute exists or, to
the knowledge of the Company, is imminent with respect to any of the
employees of the Company.
(l) COMPLIANCE. Neither the Company nor any Subsidiary (i) is
in default under or in violation of (and no event has occurred that has
not been waived that, with notice or lapse of time or both, would
result in a default by the Company or any Subsidiary under), nor has
the Company or any Subsidiary received notice of a claim that it is in
default under or that it is in violation of, any indenture, loan or
credit agreement or any other agreement or instrument to which it is a
party or by which it or any of its properties is bound (whether or not
such default or violation has been waived), (ii) is in violation of any
order of any court, arbitrator or governmental body, or (iii) is or has
been in violation of any statute, rule or regulation of any
governmental authority, including without limitation all foreign,
federal, state and local laws relating to taxes, environmental
protection, occupational health and safety, product quality and safety
and employment and labor matters, except in each case as could not,
individually or in the aggregate, have or reasonably be expected to
result in a Material Adverse Effect.
(m) REGULATORY PERMITS. The Company and the Subsidiaries
possess all certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities
necessary to conduct their respective businesses as described in the
SEC Reports, except where the failure to possess such permits could
not, individually or in the aggregate, have or reasonably be expected
to result in a Material Adverse Effect ("MATERIAL
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PERMITS"), and neither the Company nor any Subsidiary has received any
notice of proceedings relating to the revocation or modification of any
Material Permit.
(n) TITLE TO ASSETS. The Company and the Subsidiaries have
good and marketable title in fee simple to all real property owned by
them that is material to the business of the Company and the
Subsidiaries and good and marketable title in all personal property
owned by them that is material to the business of the Company and the
Subsidiaries, in each case free and clear of all Liens, except for
Liens as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such
property by the Company and the Subsidiaries. Any real property and
facilities held under lease by the Company and the Subsidiaries are
held by them under valid, subsisting and enforceable leases of which
the Company and the Subsidiaries are in compliance.
(o) PATENTS AND TRADEMARKS. The Company and the Subsidiaries
have, or have rights to use, all patents, patent applications,
trademarks, trademark applications, service marks, trade names,
copyrights, licenses and other similar rights that are necessary or
material for use in connection with their respective businesses as
described in the SEC Reports and which the failure to so have could
have, or reasonably be expected to result in, a Material Adverse Effect
(collectively, the "INTELLECTUAL PROPERTY RIGHTS"). Neither the Company
nor any Subsidiary has received a written notice that the Intellectual
Property Rights used by the Company or any Subsidiary violates or
infringes upon the rights of any Person which if determined adversely
to the Company would, individually or in the aggregate have a Material
Adverse Effect. To the knowledge of the Company, all such Intellectual
Property Rights are enforceable and there is no existing infringement
by another Person of any of the Intellectual Property Rights.
(p) INSURANCE. The Company and the Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which the Company and the Subsidiaries are engaged.
Neither the Company nor any Subsidiary has any reason to believe that
it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business without a
significant increase in cost.
(q) TRANSACTIONS WITH AFFILIATES AND EMPLOYEES. Except as set
forth in SEC Reports, none of the officers or directors of the Company
and, to the knowledge of the Company, none of the employees of the
Company is presently a party to any transaction with the Company or any
Subsidiary (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental
of real or personal property to or from, or otherwise requiring
payments to or from any officer, director or such employee or, to the
knowledge of the Company, any entity in which any officer, director, or
any such employee has a substantial interest or is an officer,
director, trustee or partner.
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(r) INTERNAL ACCOUNTING CONTROLS. The Company and the
Subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with
management's general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(s) SOLVENCY. Based on the financial condition of the Company
as of the Closing Date, (i) the Company's fair saleable value of its
assets exceeds the amount that will be required to be paid on or in
respect of the Company's existing debts and other liabilities
(including known contingent liabilities) as they mature; (ii) the
Company's assets do not constitute unreasonably small capital to carry
on its business for the current fiscal year as now conducted and as
proposed to be conducted including its capital needs taking into
account the particular capital requirements of the business conducted
by the Company, and projected capital requirements and capital
availability thereof; and (iii) the current cash flow of the Company,
together with the proceeds the Company would receive, were it to
liquidate all of its assets, after taking into account all anticipated
uses of the cash, would be sufficient to pay all amounts on or in
respect of its debt when such amounts are required to be paid. The
Company does not intend to incur debts beyond its ability to pay such
debts as they mature (taking into account the timing and amounts of
cash to be payable on or in respect of its debt).
(t) CERTAIN FEES. Except for fees or commissions payable to
Granite Financial Group, Inc., no brokerage or finder's fees or
commissions are or will be payable by the Company to any broker,
financial advisor or consultant, finder, placement agent, investment
banker, bank or other Person with respect to the transactions
contemplated by this Agreement. The Purchasers shall have no obligation
with respect to any fees or with respect to any claims made by or on
behalf of other Persons for fees of a type contemplated in this Section
that may be due in connection with the transactions contemplated by
this Agreement.
(u) PRIVATE PLACEMENT. Assuming the accuracy of the Purchasers
representations and warranties set forth in Section 3.2(b)-(e), no
registration under the Securities Act is required for the offer and
sale of the Shares by the Company to the Purchasers as contemplated
hereby.
(v) FORM S-3 ELIGIBILITY. The Company is eligible to register
the resale of its Common Stock for resale by the Purchasers under Form
S-3 promulgated under the Securities Act.
(w) LISTING AND MAINTENANCE REQUIREMENTS. The Company has not,
in the two years preceding the date hereof, received notice (written or
oral) from any Eligible Market on which the Common Stock is or has been
listed or quoted to the effect that the Company is not in compliance
with the listing or maintenance requirements of such Eligible Market.
The Company
-11-
is, and has no reason to believe that it will not in the foreseeable
future continue to be, in compliance with all such listing and
maintenance requirements. The issuance and sale of the Shares hereunder
does not contravene the rules and regulations of the Trading Market and
no approval of the shareholders of the Company is required for the
Company to issue and deliver to the Purchasers the maximum number of
Shares and Option Shares contemplated by this Agreement.
(x) REGISTRATION RIGHTS. Except as described in SCHEDULE
3.1(x), the Company has not granted or agreed to grant to any Person
any rights (including "piggy-back" registration rights) to have any
securities of the Company registered with the Commission or any other
governmental authority that have not been satisfied.
(y) APPLICATION OF TAKEOVER PROTECTIONS. Assuming that no
Purchaser nor any affiliate of such Purchaser, beneficially owns 10% or
more of the Common Stock immediately after the purchase of the Shares
hereunder, the Company and its Board of Directors have taken all
necessary action, if any, in order to render inapplicable any control
share acquisition, business combination, poison pill (including any
distribution under a rights agreement) or other similar anti-takeover
provision under the Company's Certificate of Incorporation (or similar
charter documents) or the laws of its state of incorporation that is or
could become applicable to the Purchasers as a result of the Purchasers
and the Company fulfilling their obligations or exercising their rights
under the Transaction Documents, including without limitation the
Company's issuance of the Shares and the Purchasers' ownership of the
Shares.
(z) DISCLOSURE. The Company confirms that neither it nor any
other Person acting on its behalf has provided any of the Purchasers or
their agents or counsel with any information, that after the issuance
of the Press Release on the Guidance Day, the Company believes
constitutes material, non-public information. The Company understands
and confirms that the Purchasers will rely on the foregoing
representations in effecting transactions in securities of the Company.
All disclosure provided to the Purchasers regarding the Company, its
business and the transactions contemplated hereby, including the
Schedules to this Agreement, furnished by or on behalf of the Company
are true and correct and do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements made therein, in light of the circumstances under
which they were made, not misleading.
3.2 REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each Purchaser
hereby, for itself and for no other Purchaser, represents and warrants to the
Company as follows:
(a) ORGANIZATION; AUTHORITY. Such Purchaser is an entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite corporate or
partnership power and authority to enter into and to consummate the
transactions contemplated by the Transaction Documents and otherwise to
carry out its obligations thereunder. The execution, delivery and
performance by such Purchaser of the transactions contemplated by this
Agreement has been duly authorized by all necessary corporate
-12-
action on the part of such Purchaser. Each of this Agreement and the
Registration Rights Agreement has been duly executed by such Purchaser,
and, when delivered by such Purchaser in accordance with terms hereof,
will constitute the valid and legally binding obligation of such
Purchaser, enforceable against it in accordance with its terms.
(b) INVESTMENT INTENT. Such Purchaser is acquiring the Shares
as principal for its own account for investment purposes only and not
with a view to or for distributing or reselling such Shares or any part
thereof, without prejudice, however, to such Purchaser's right at all
times to sell or otherwise dispose of all or any part of such Shares in
compliance with applicable federal and state securities laws. Nothing
contained herein shall be deemed a representation or warranty by such
Purchaser to hold Shares for any period of time. Such Purchaser is
acquiring the Shares hereunder in the ordinary course of its business.
Such Purchaser does not have any agreement or understanding, directly
or indirectly, with any Person to distribute any of the Shares.
(c) PURCHASER STATUS. Such Purchaser is an "accredited
investor" as defined in Rule 501(a) under the Securities Act. Such
Purchaser is not a registered broker-dealer under Section 15 of the
Exchange Act.
(d) EXPERIENCE OF SUCH PURCHASER. Such Purchaser, either alone
or together with its representatives, has such knowledge,
sophistication and experience in business and financial matters so as
to be capable of evaluating the merits and risks of the prospective
investment in the Shares, and has so evaluated the merits and risks of
such investment. Such Purchaser is able to bear the economic risk of an
investment in the Shares and, at the present time, is able to afford a
complete loss of such investment.
(e) GENERAL SOLICITATION. To the knowledge of such Purchaser,
such Purchaser is not purchasing the Shares as a result of any
advertisement, article, notice or other communication regarding the
Shares published in any newspaper, magazine or similar media or
broadcast over television or radio or presented at any seminar or any
other general solicitation or general advertisement.
(f) ACCESS TO INFORMATION. Such Purchaser acknowledges that it
has reviewed the Disclosure Materials and has been afforded (i) the
opportunity to ask such questions as it has deemed necessary of, and to
receive answers from, representatives of the Company concerning the
terms and conditions of the offering of the Shares and the merits and
risks of investing in the Shares; (ii) access to information about the
Company and the Subsidiaries and their respective financial condition,
results of operations, business, properties, management and prospects
sufficient to enable it to evaluate its investment; and (iii) the
opportunity to obtain such additional information that the Company
possesses or can acquire without unreasonable effort or expense that is
necessary to make an informed investment decision with respect to the
investment. Neither such inquiries nor any other investigation
conducted by or on behalf of such Purchaser or its representatives or
counsel shall modify, amend or affect such Purchaser's right to
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rely on the truth, accuracy and completeness of the Disclosure
Materials and the Company's representations and warranties contained in
the Transaction Documents.
The Company acknowledges and agrees that each Purchaser does not make
or has not made any representations or warranties with respect to the
transactions contemplated hereby other than those specifically set forth in this
Section 3.2.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 TRANSFER RESTRICTIONS.
(a) Shares and Option Shares may only be disposed of in
compliance with state and federal securities laws. In connection with
any transfer of Shares or Option Shares other than pursuant to an
effective registration statement, to the Company, to an Affiliate of a
Purchaser who is an "accredited investor" as defined in Rule 501(a)
under the Securities Act or in connection with a pledge as contemplated
in Section 4.1(b), the Company may require the transferor thereof to
provide to the Company an opinion of counsel selected by the
transferor, the form and substance of which opinion shall be reasonably
satisfactory to the Company, to the effect that such transfer does not
require registration of such transferred Shares or Option Shares under
the Securities Act. As a condition of transfer, any such transferee
shall agree in writing to be bound by the terms of this Agreement and
shall have the rights of a Purchaser under this Agreement and the
Registration Rights Agreement. Notwithstanding the foregoing, each
Purchaser may transfer its right to purchase the Option Shares pursuant
to Section 2.4 to a Person who is an "accredited investor" as defined
in Rule 501(a) under the Securities Act without the consent or approval
of the Company and without any legal opinion.
(b) The Purchasers agree to the imprinting, so long as is
required by this SECTION 4.1(b), of the following legend on any the
Shares:
THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED WITH
THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL
OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THESE SHARES MAY BE PLEDGED
-14-
IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN
SECURED BY SUCH SHARES.
The Company acknowledges and agrees that a Purchaser may from
time to time pledge pursuant to a bona fide margin agreement or grant a
security interest in some or all of the Shares and Option Shares and,
if required under the terms of such arrangement, such Purchaser may
transfer pledged or secured Shares or Option Shares to the pledgees or
secured parties. Such a pledge or transfer would not be subject to
approval of the Company and no legal opinion of the pledgee, secured
party or pledgor shall be required in connection therewith. Further, no
notice shall be required of such pledge. At the appropriate Purchaser's
expense, the Company will execute and deliver such reasonable
documentation as a pledgee or secured party of Shares may reasonably
request in connection with a pledge or transfer of the Shares,
including the preparation and filing of any required prospectus
supplement under Rule 424(b)(3) of the Securities Act or other
applicable provision of the Securities Act to appropriately amend the
list of Selling Stockholders thereunder.
(c) Certificates evidencing Shares and Option Shares shall not
contain any legend (including the legend set forth in Section 4.1(b)),
(i) while a registration statement (including the Registration
Statement) covering the resale of such security is effective under the
Securities Act, or (ii) following any sale of such Shares or Option
Shares pursuant to Rule 144, or (iii) if such Shares are eligible for
sale under Rule 144(k), or (iv) if such legend is not required under
applicable requirements of the Securities Act (including judicial
interpretations and pronouncements issued by the Staff of the
Commission). The Company shall cause its counsel to issue the legal
opinion included in the Transfer Agent Instructions to the Company's
transfer agent on the Effective Date. The Company agrees that following
the Effective Date or at such time as such legend is no longer required
under this Section 4.1(c), it will, no later than five Trading Days
following the delivery by a Purchaser to the Company or the Company's
transfer agent of a certificate representing Shares issued with a
restrictive legend, deliver or cause to be delivered to such Purchaser
a certificate representing such Shares that is free from all
restrictive and other legends. The Company may not make any notation on
its records or give instructions to any transfer agent of the Company
that enlarge the restrictions on transfer set forth in this Section.
4.2 FURNISHING OF INFORMATION. As long as any Purchaser owns Shares or
Option Shares, the Company covenants to timely file (or obtain extensions in
respect thereof and file within the applicable grace period) all reports
required to be filed by the Company after the date hereof pursuant to the
Exchange Act. Upon the request of any such Person, the Company shall deliver to
such Person a written certification of a duly authorized officer as to whether
it has complied with the preceding sentence. As long as any Purchaser owns
Shares, if the Company is not required to file reports pursuant to such laws, it
will prepare and furnish to the Purchasers and make publicly available in
accordance with Rule 144(c) such information as is required for the Purchasers
to sell the Shares under Rule 144.
-15-
4.3 INTEGRATION. The Company shall not, and shall use its best efforts
to ensure that no Affiliate of the Company shall, sell, offer for sale or
solicit offers to buy or otherwise negotiate in respect of any security (as
defined in Section 2 of the Securities Act) that would be integrated with the
offer or sale of the Shares in a manner that would require the registration
under the Securities Act of the sale of the Shares to the Purchasers, or that
would be integrated with the offer or sale of the Shares for purposes of the
rules and regulations of any Trading Market, if such integration would result in
a violation of any such rule or regulation
4.4 SUBSEQUENT PLACEMENTS. From the date hereof through and including
the later of (x) the 30th calendar day following the Closing Date and (y) the
Business Day immediately following day that the Company files the Registration
Statement, the Company will not: (i) directly or indirectly, offer, sell or
grant any option to purchase (or announce any offer, sale, grant or any option
to purchase) any of its Common Stock or other securities which entitle the
holder thereof to receive Common Stock, including without limitation any debt,
preferred stock or other instrument or security that is, at any time during its
life and under any circumstances, convertible into or exchangeable for Common
Stock, except for the granting of options to employees, officers and directors
of the Company pursuant to any stock option or similar plan duly adopted by the
Company or the issuance of Common Stock upon exercise of such options.
4.5 SECURITIES LAWS DISCLOSURE; PUBLICITY. The Company shall, within
five Business Days after the Closing Date, issue a press release or file a
Current Report on Form 8-K reasonably acceptable to the Purchasers disclosing
all material terms of the transactions contemplated hereby. The Company and the
Purchasers shall consult with each other in issuing any press releases with
respect to the transactions contemplated hereby. Notwithstanding the foregoing,
other than in any registration statement filed pursuant to the Registration
Rights Agreement and filings related thereto, the Company shall not publicly
disclose the name of any Purchaser, or include the name of any Purchaser in any
filing with the Commission or any regulatory agency or Trading Market, without
the prior written consent of such Purchaser, except to the extent such
disclosure is required by law or Trading Market regulations, in which case the
Company shall provide the Purchasers with prior notice of such disclosure.
4.6 INDEMNIFICATION OF PURCHASERS. The Company will indemnify and hold
the Purchasers and their directors, officers, shareholders, partners, employees
and agents (each, a "PURCHASER PARTY") harmless from any and all losses,
liabilities, obligations, claims, contingencies, damages, costs and expenses,
including all judgments, amounts paid in settlements, court costs and reasonable
attorneys' fees and costs of investigation (collectively, "LOSSES") that any
such Purchaser Party may suffer or incur as a result of or relating to (a) any
misrepresentation, breach or inaccuracy, or any allegation by a third party
that, if true, would constitute a breach or inaccuracy, of any of the
representations, warranties, covenants or agreements made by the Company in this
Agreement or in the other Transaction Documents; or (b) any cause of action,
suit or claim brought or made against such Purchaser Party and solely arising
out of or solely resulting from the execution, delivery, performance or
enforcement of this Agreement or any of the other Transaction Documents. The
Company will reimburse such Purchaser for its reasonable legal and other
expenses (including the cost of any investigation, preparation and travel in
connection
-16-
therewith) incurred in connection therewith, as such expenses are incurred. The
Company and the Purchaser Party may not, without the prior written consent of
the other, agree to any settlement of any claim or action with respect to which
the Company is required to indemnify the Purchaser Party pursuant to this
Section 4.6.
4.7 SHAREHOLDERS RIGHTS PLAN. No claim will be made or enforced by the
Company or any other Person that any Purchaser is an "Acquiring Person" under
any shareholders rights plan or similar plan or arrangement in effect or
hereafter adopted by the Company, or that any Purchaser could be deemed to
trigger the provisions of any such plan or arrangement, by virtue of receiving
Shares under the Transaction Documents or under any other agreement between the
Company and the Purchasers.
4.8 NON-PUBLIC INFORMATION. The Company covenants and agrees that
neither it nor any other Person acting on its behalf will provide any Purchaser
or its agents or counsel with any information that the Company believes
constitutes material non-public information, unless prior thereto such Purchaser
shall have executed a written agreement regarding the confidentiality and use of
such information. The Company understands and confirms that each Purchaser shall
be relying on the foregoing representations in effecting transactions in
securities of the Company.
4.9 USE OF PROCEEDS. The Company shall use the net proceeds from the
sale of the Shares hereunder for working capital purposes and not for the
satisfaction of any portion of the Company's debt (other than payment of trade
payables in the ordinary course of the Company's business and prior practices),
to redeem any Company equity or equity-equivalent securities or to settle any
outstanding litigation.
ARTICLE V.
MISCELLANEOUS
5.1 FEES AND EXPENSES. Other than the amount required to be delivered
by the Company to Purchaser Counsel pursuant to Section 2.2(a) of this Agreement
and as contemplated in the Registration Rights Agreement, each party shall pay
the fees and expenses of its advisers, counsel, accountants and other experts,
if any, and all other expenses incurred by such party incident to the
negotiation, preparation, execution, delivery and performance of this Agreement.
The Company shall pay all stamp and other taxes and duties levied in connection
with the sale of the Shares.
5.2 ENTIRE AGREEMENT. The Transaction Documents, together with the
Exhibits and Schedules thereto, contain the entire understanding of the parties
with respect to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, exhibits and schedules.
5.3 NOTICES. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (a) the date of transmission, if
such notice or communication is delivered via facsimile at the
-17-
facsimile number specified in this Section prior to 6:30 p.m. (New York City
time) on a Trading Day, (b) the next Trading Day after the date of transmission,
if such notice or communication is delivered via facsimile at the facsimile
number specified in this Section on a day that is not a Trading Day or later
than 6:30 p.m. (New York City time) on any Trading Day, (c) the Trading Day
following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (d) upon actual receipt by the party to whom such notice is
required to be given. The address for such notices and communications shall be
as follows:
If to the Company: Wilsons The Leather Experts Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: Chief Financial Officer
Fax No.: (000) 000-0000
With a copy to: Faegre & Xxxxxx LLP
2200 Xxxxx Fargo Center
00 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxx, Esq.
Fax No.: (000) 000-0000
If to a Purchaser: To the address set forth under such Purchaser's
name on the signature pages hereof;
With a copy to: Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxx
Fax No.: 000-000-0000 and 000-000-0000
or such other address as may be designated in writing hereafter, in the same
manner, by such Person.
5.4 AMENDMENTS; WAIVERS. No provision of this Agreement may be waived
or amended except in a written instrument signed, in the case of an amendment,
by the Company and each of the Purchasers or, in the case of a waiver, by the
party against whom enforcement of any such waiver is sought. No waiver of any
default with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future or a waiver of
any subsequent default or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of either party to exercise
any right hereunder in any manner impair the exercise of any such right.
5.5 CONSTRUCTION. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof. The language
-18-
used in this Agreement will be deemed to be the language chosen by the parties
to express their mutual intent, and no rules of strict construction will be
applied against any party.
5.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties and their successors and permitted
assigns. The Company may not assign this Agreement or any rights or obligations
hereunder without the prior written consent of the Purchasers. Any Purchaser may
assign any or all of its rights under this Agreement to any Person to whom such
Purchaser assigns or transfers any Shares, provided such transferee agrees in
writing to be bound, with respect to the transferred Shares, by the provisions
hereof that apply to the "Purchasers." Notwithstanding the foregoing, each
Purchaser may assign or transfer its right to purchase the Option Shares
pursuant to Section 2.4 to any Person who is an "accredited investor" as defined
in Rule 501(a) under the Securities Act.
5.7 NO THIRD-PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person, except as otherwise set forth in Section 4.6.
5.8 GOVERNING LAW. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York, without regard to the principles of conflicts of law thereof. Each party
agrees that all Proceedings concerning the interpretations, enforcement and
defense of the transactions contemplated by this Agreement and any other
Transaction Documents (whether brought against a party hereto or its respective
affiliates, directors, officers, shareholders, employees or agents) shall be
commenced exclusively in the state and federal courts sitting in the City of New
York, Borough of Manhattan. Each party hereto hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in the City of
New York, Borough of Manhattan for the adjudication of any dispute hereunder or
in connection herewith or with any transaction contemplated hereby or discussed
herein (including with respect to the enforcement of the any of the Transaction
Documents), and hereby irrevocably waives, and agrees not to assert in any
Proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such Proceeding is improper. Each party hereto hereby
irrevocably waives personal service of process and consents to process being
served in any such Proceeding by mailing a copy thereof via registered or
certified mail or overnight delivery (with evidence of delivery) to such party
at the address in effect for notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. Each party hereto hereby
irrevocably waives, to the fullest extent permitted by applicable law, any and
all right to trial by jury in any legal proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby. If either party shall
commence a Proceeding to enforce any provisions of a Transaction Document, then
the prevailing party in such Proceeding shall be reimbursed by the other party
for its attorneys fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such Proceeding.
-19-
5.9 SURVIVAL. The representations, warranties, agreements and covenants
contained herein shall survive the Closing.
5.10 EXECUTION. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
5.11 SEVERABILITY. If any provision of this Agreement is held to be
invalid or unenforceable in any respect, the validity and enforceability of the
remaining terms and provisions of this Agreement shall not in any way be
affected or impaired thereby and the parties will attempt to agree upon a valid
and enforceable provision that is a reasonable substitute therefor, and upon so
agreeing, shall incorporate such substitute provision in this Agreement.
5.12 RESCISSION AND WITHDRAWAL RIGHT. Notwithstanding anything to the
contrary contained in (and without limiting any similar provisions of) the
Transaction Documents, whenever any Purchaser exercises a right, election,
demand or option under a Transaction Document and the Company does not timely
perform its related obligations within the periods therein provided, then such
Purchaser may rescind or withdraw, in its sole discretion from time to time upon
written notice to the Company, any relevant notice, demand or election in whole
or in part without prejudice to its future actions and rights.
5.13 REPLACEMENT OF SHARES AND OPTION SHARES. If any certificate or
instrument evidencing any Shares and Option Shares is mutilated, lost, stolen or
destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation thereof, or in lieu of and substitution
therefor, a new certificate or instrument, but only upon receipt of evidence
reasonably satisfactory to the Company of such loss, theft or destruction and
customary and reasonable indemnity, if requested. The applicants for a new
certificate or instrument under such circumstances shall also pay any reasonable
third-party costs associated with the issuance of such replacement Shares or
Option Shares.
5.14 REMEDIES. In addition to being entitled to exercise all rights
provided herein or granted by law, including recovery of damages, each of the
Purchasers and the Company will be entitled to specific performance under the
Transaction Documents. The parties agree that monetary damages may not be
adequate compensation for any loss incurred by reason of any breach of
obligations described in the foregoing sentence and hereby agrees to waive in
any action for specific performance of any such obligation the defense that a
remedy at law would be adequate.
5.15 INDEPENDENT NATURE OF PURCHASERS' OBLIGATIONS AND RIGHTS. The
obligations of each Purchaser under any Transaction Document are several and not
joint with the obligations of any other Purchaser, and no Purchaser shall be
responsible in any way for the performance of the
-20-
obligations of any other Purchaser under any Transaction Document. Nothing
contained herein or in any Transaction Document, and no action taken by any
Purchaser pursuant thereto, shall be deemed to constitute the Purchasers as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Purchasers are in any way acting in concert or as
a group with respect to such obligations or the transactions contemplated by the
Transaction Document. Each Purchaser shall be entitled to independently protect
and enforce its rights, including without limitation the rights arising out of
this Agreement or out of the other Transaction Documents, and it shall not be
necessary for any other Purchaser to be joined as an additional party in any
proceeding for such purpose.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Common Stock
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
WILSONS THE LEATHER EXPERTS INC.
By: /s/ Xxxxx X. Xxxxxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxxxxx,
Chief Financial Officer
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
-22-
BRICOLEUR CAPITAL MANAGEMENT L.L.C.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx X. Xxxxx, Managing Director
Number of Shares to be acquired at Closing
(assuming the price of the Common Stock is
such that the Company does not have the
right to elect not to sell Shares at the
Closing): 1,900,000
Address for Notice:
Bricoleur Capital Management LLC
00000 Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Facsimile No.:
Telephone No.:
Attn: Xxxxxx X. Xxxxx, Managing Director
With a copy to:
Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx
& Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000 and
(000) 000-0000
Attn: Xxxx X. Xxxxx, Esq.
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[Purchaser's Name]
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Number of Shares to be acquired at Closing
(assuming the price of the Common Stock is
such that the Company does not have the
right to elect not to sell Shares at the
Closing): _______
Address for Notice:
C/o
Facsimile No.:
Telephone No.:
Attn:
With a copy to:
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