EXHIBIT 10.75
BRYLANE INC.
STOCK SUBSCRIPTION AGREEMENT
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THIS STOCK SUBSCRIPTION AGREEMENT (this "Agreement") is made and
entered into as of ________________, 199_ by and between Brylane Inc., a
Delaware corporation (the "Company"), and _______________ ("Purchaser").
R E C I T A L S:
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A. Purchaser previously purchased shares of Series A Convertible
Redeemable preferred stock of VP Holding Corporation pursuant to the terms of
that certain Stock Subscription Agreement dated as of December 9, 1996 between
VP Holding Corporation, a Delaware corporation ("VP Holding"), and Purchaser
(the "VP Holding Subscription Agreement").
B. Pursuant to the terms of Section 5(c) of the VP Holding
Subscription Agreement, Purchaser agreed in connection with the formation of
Newco (as defined in the VP Holding Subscription Agreement, with the term Newco
understood to refer to the Company) to exchange the shares of VP Holding
preferred stock held by Purchaser for shares of Series A Convertible Redeemable
Preferred Stock, $0.01 par value per share, of the Company (the "Preferred
Stock"). Purchaser further agreed in Section 5(d) of the VP Holding
Subscription Agreement to take such other actions and to execute such agreements
and documents as are necessary or desirable to consummate such exchange.
C. The Company now desires to issue 37,500 shares of Preferred Stock
to Purchaser in exchange for 37,500 shares of VP Holding preferred stock held by
Purchaser in the manner contemplated by and required under Section 5(c) of the
VP Holding Subscription Agreement. The date on which such exchange occurs shall
be referred to herein as the "Closing Date," with the exchange to occur
concurrently with the exchange of shares of VP Holding common stock by FSEP (as
hereinafter defined).
D. Pursuant to Section 5(c) of the VP Holding Subscription
Agreement, Purchaser agreed to hold such shares of Preferred Stock issued in
exchange for the shares of VP Holding preferred stock held by Purchaser subject
to the restrictions and interests created by the VP Holding Subscription
Agreement which are restated and set forth in this Agreement.
A G R E E M E N T:
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NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and conditions contained herein, the parties agree as follows:
1. Exchange of Stock. The Company will issue to Purchaser in
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exchange for the shares of VP Holding preferred stock held by Purchaser, subject
to the conditions and restrictions contained in this Agreement, 37,500 shares
(individually, a "Share," and collectively, the "Shares") of the Preferred Stock
of the Company, which for purposes of this Agreement shall be deemed to have
been issued at a price of $20.00 per Share, for an aggregate deemed exchange
price of $750,000 (the "Purchase Price"). The Purchase Price is equal to the
Purchase Price of the VP Holding preferred stock held by the Purchaser which was
paid by delivery of cash in the amount of $750,000. Purchaser agrees to be
bound by and fully perform all terms and conditions of this Agreement and agrees
that this Agreement constitutes full authorization to VP Holding to transfer the
shares of VP Holding preferred stock held by the Purchaser on its books and
records to reflect the Company as the transferee thereof.
2. Restriction on Transfer of the Shares.
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(a) Purchaser hereby agrees to execute and comply with the
provisions of a lock-up agreement in connection with an Initial Public Offering
containing the same terms and conditions as lock-up agreements executed by all
officers, directors and principal stockholders of the Company (the "Lock-up
Agreement").
(b) Purchaser may not sell, transfer, assign, pledge, hypothecate
or otherwise dispose of (collectively, "Transfer") any of the Shares, or any
right, title or interest therein, prior to the third anniversary of the Closing
Date and, thereafter, any Transfer must be in compliance with Sections 3 and 5
hereof.
(c) Any purported Transfer or Transfers (including involuntary
Transfers initiated by operation of legal process) of any of the Shares or any
right, title or interest therein, except in strict compliance with the terms and
conditions of this Agreement, shall be null and void.
3. Right of First Refusal.
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(a) Sales; Notice. At any time on or after the third anniversary
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of the Closing Date, Purchaser may Transfer for cash (and only for such form of
consideration) any or all of the Shares to any third party subject to the
provisions of this Section 3 and Section 4(c), 5(d) and 7(a) hereof. Prior to
any such intended Transfer, Purchaser shall first give at least 30
2.
days advance written notice (the "Notice") to the Company specifying (i)
Purchaser's bona fide intention to sell such Shares; (ii) the name(s) and
address(es) of the proposed transferee(s); (iii) the number of Shares Purchaser
proposes to Transfer (individually, an "Offered Share," and collectively, the
"Offered Shares"); (iv) the price for which Purchaser proposes to Transfer each
Offered Share (the "Proposed Purchase Price"); and (v) all other material terms
and conditions of the proposed transfer.
(b) Election by the Company. Within 20 days after receipt of the
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Notice, the Company (or its designee) may elect to purchase all of the Offered
Shares at the price and on the terms and conditions set forth in the Notice by
delivery of written notice of such election to Purchaser, specifying a day,
which shall not be more than 20 days after such notice is delivered, on or
before which Purchaser shall surrender (if Purchaser has not already done so)
the certificate or certificates representing the Offered Shares (duly endorsed
in blank for transfer) at the principal office of the Company. Within 20 days
after delivery of such notice to Purchaser, the Company shall deliver to
Purchaser a check, payable to Purchaser or to such person as Purchaser shall
request, in the amount equal to the product of the Proposed Purchase Price
multiplied by the number of Offered Shares (the "First Refusal Price") in
exchange for the Offered Shares. If Purchaser fails to so surrender such
certificate or certificates on or before such date, from and after such date the
Offered Shares shall be deemed to be no longer outstanding, and Purchaser shall
cease to be a stockholder with respect to such Shares and shall have no rights
with respect thereto except only the right to receive payment of the First
Refusal Price, without interest, upon surrender of the certificate or
certificates therefor duly endorsed in blank for Transfer. If the Company does
not elect to purchase all of the Offered Shares, Purchaser shall be entitled to
Transfer the Offered Shares, subject to Sections 5(d) and 7(a) of this
Agreement, to the transferee(s) named in the Notice at the Proposed Purchase
Price or at a higher price and on the terms and conditions set forth in the
Notice; provided, however, that such Transfer must be consummated within 90 days
after the date of the Notice and any proposed Transfer after such 90-day period
may be made only by again complying with the procedures set forth in this
Section 3.
4. Investment Representations. Purchaser represents and warrants to
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the Company as follows:
(a) Purchaser's Own Account. Purchaser is acquiring the Shares
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for Purchaser's own account and not with a view to or for sale in connection
with any distribution of the Shares.
(b) Access to Information. Purchaser (i) is familiar with the
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business of the Company and its direct or indirect, majority or wholly-owned
entities including Brylane, L.P. (the "Partnership") (a "Subsidiary" and
collectively "Subsidiaries"); (ii) has had an opportunity to discuss with
representatives of the Company and its Subsidiaries the condition of and
prospects for the continued operation and financing of the Company and its
Subsidiaries and
3.
such other matters as Purchaser has deemed appropriate in considering whether to
invest in the Shares; and (iii) has been provided access to all available
information about the Company and its Subsidiaries requested by Purchaser.
(c) Shares Not Registered. Purchaser understands that the Shares
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have not been registered under the Act or registered or qualified under the
securities laws of any state and that Purchaser may not Transfer the Shares
unless they are subsequently registered under the Act and registered or
qualified under applicable state securities laws, or unless an exemption is
available which permits Transfers without such registration and qualification
and the Company receives an opinion from Purchaser's counsel to such effect, in
form and substance reasonably satisfactory to the Company. Purchaser is an
"accredited investor" as defined in Rule 501 of Regulation D of the Act.
5. Obligation to Sell Securities; Other Obligations.
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(a) If FS Equity Partners II, L.P., a California limited
partnership, and FS Equity Partners III, L.P., a Delaware limited partnership
(collectively, "FSEP"), find a third-party buyer, for all of the shares of
Common Stock of the Company, VP Holding, VGP and/or VLP (the "Companies") held
by FSEP or for all of the Partnership units (the "Units") indirectly held by
FSEP or if the Company or FSEP are required to sell all shares of the Company
pursuant to the Partnership Agreement (whether such sale is by way of purchase,
exchange, merger or other form of transaction), upon the request of FSEP, the
Purchaser shall sell all of his or her Shares (on an as-converted basis if the
Shares have not yet been converted into common stock) on the same terms and
conditions as apply to the FSEP sale (except for differences based on the fact
that Partnership Units and not stock are being sold; provided that, prior to the
third anniversary of the date hereof, Purchaser shall not be required to receive
less than $20.00 per Share (as appropriately adjusted for stock dividends,
reclassifications or splits) under this provision. The Purchaser agrees to be
bound by the provisions of Section 9.05 of the Partnership Agreement in the same
manner and to the same extent as FSEP in the event FSEP is required to sell any
securities in accordance with such section.
(b) The Company may at any time by notice to the holder repurchase
any or all Unvested Shares (as defined in Section 8(a) of the Certificate of
Designation creating the Shares) of the Purchaser at a price of $20.00 per share
(as appropriately adjusted for stock dividends, reclassifications or splits). If
Purchaser fails to surrender certificates evidencing repurchased shares on date
set for repurchase in such notice, from and after such date the Shares which the
Company elected to repurchase shall be deemed to be no longer outstanding, and
Purchaser shall cease to be a stockholder with respect to such Shares and shall
have no rights with respect thereto except only the right to receive payment of
the repurchase price, without interest, upon surrender of the certificate or
certificates therefor (duly endorsed in blank for transfer).
4.
(c) The Purchaser agrees to consent to any sale, transfer,
reorganization, exchange, merger, combination or other form of transaction
described in this Section 5 or contemplated by Article X of the Partnership
Agreement and to execute such agreements, powers of attorney, voting proxies or
other documents and instruments as may be necessary or desirable to consummate
such sale, transfer, reorganization, exchange, merger, combination or other form
of transaction. Purchaser further agrees to timely take such other actions as
FSEP may reasonably request in connection with the approval of the consummation
of such sale, transfer, reorganization, exchange, merger, combination or other
form of transaction, including voting as a stockholder to approve any such sale,
transfer, reorganization, exchange, merger, combination or other form of
transaction and including the execution of a reasonable lock-up agreement in
connection with an Initial Public Offering.
(d) The obligations of Purchaser pursuant to Section 5 shall be
binding on any transferee of any of the Shares and Purchaser shall obtain and
deliver to the Company and FSEP a written commitment to be bound by such
provisions from such transferee prior to any transfer.
6. Effectiveness and Termination.
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(a) This Agreement shall become effective immediately prior to
the time that the Company completes an Initial Public Offering that results in
(i) receipt by the Company of at least $30,000,000 of gross proceeds from the
sale of newly issued stock or (ii) the sale of newly issued Common Stock
representing at least 20% of the outstanding Common Stock of the Company (after
giving effect to such offering); provided that such time must occur prior to
June 30, 1997; provided, further, that if the Company completes an Initial
Public Offering prior to June 30, 1997 that does not satisfy the requirements of
clause (i) or (ii) of this sentence, a new subscription agreement containing all
rights and obligations required to be contained therein pursuant to the VP
Holding Subscription Agreement will be executed by the Company and Purchaser.
Until such effective time occurs, the VP Holding Subscription Agreement shall
remain in effect.
(b) The provisions of Sections 2(b), 3, and 5 shall terminate
with respect to shares of Common Stock received upon conversion of Shares upon
completion of an Initial Public Offering satisfying the following requirements:
(i) the offering results in receipt by the Company of at least $30,000,000 of
gross proceeds from the sale of newly issued stock or (ii) the offering results
in the sale of newly issued common stock representing at least 20% of the
outstanding common stock of the Company (after giving effect to such offering).
7. Miscellaneous.
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(a) Legends on Certificates. Any and all certificates now or
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hereafter issued evidencing the Shares shall have endorsed upon them a legend
substantially as follows:
5.
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS UPON TRANSFER AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF, EXCEPT IN ACCORDANCE
WITH THE TERMS AND CONDITIONS OF THAT CERTAIN STOCK SUBSCRIPTION
AGREEMENT DATED AS OF _______________, 199_ BY AND BETWEEN BRYLANE
INC., A DELAWARE CORPORATION, AND THE ORIGINAL PURCHASER HEREOF, A
COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES
OF BRYLANE INC."
Such certificates shall also bear such legends and shall be subject to such
restrictions on transfer as may be necessary to comply with all applicable
federal and state securities laws and regulations.
(b) Further Assurances. Each party hereto agrees to perform any
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further acts and execute and deliver any documents which may be reasonably
necessary to carry out the intent of this Agreement.
(c) Notices. Except as otherwise provided herein, all notices,
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requests, demands and other communications under this Agreement shall be in
writing, and if given by telegram, telecopy or telex, shall be deemed to have
been validly served, given or delivered when sent, if given by personal
delivery, shall be deemed to have been validly served, given or delivered upon
actual delivery and, if mailed, shall be deemed to have been validly served,
given or delivered three Business Days after deposit in the United States mails,
as registered or certified mail, with proper postage prepaid and addressed to
the party or parties to be notified, at the following addresses (or such other
address(es) a party may designate for itself by like notice):
If to the Company:
Brylane Inc.
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If to Purchaser:
_________________________
_________________________
_________________________
6.
(d) Amendments. This Agreement may be amended only by a written
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agreement executed by both of the parties hereto.
(e) Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Delaware.
(f) Disputes. In the event of any dispute among the parties
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arising out of this Agreement, the prevailing party shall be entitled to recover
from the nonprevailing party the reasonable expenses of the prevailing party
including, without limitation, reasonable attorneys' fees.
(g) Entire Agreement. This Agreement constitutes the entire
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agreement and understanding among the parties pertaining to the subject matter
hereof and supersedes any and all prior agreements, whether written or oral,
relating hereto.
(h) Conversion, Recapitalizations or Exchanges Affecting the
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Company's Capital Stock; Issuances of Capital Stock. The provisions of this
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Agreement shall apply to any and all shares of capital stock or other securities
of the Company or any successor or assign of the Company, or the Partnership,
which may be issued in respect of, in exchange for or in substitution of, the
Shares by reason of any conversion, stock dividend, stock split, reverse split,
recapitalization, reclassification, combination, merger, consolidation or
otherwise, and such shares or other securities shall be encompassed within the
term "Shares" for purposes of this Agreement.
(i) No Rights as an Employee. Nothing in this Agreement shall
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affect in any manner whatsoever the rights of the Company or any of its
Subsidiaries to terminate Purchaser's employment for any reason, with or without
cause, subject to the terms and conditions of any employment agreement to which
Purchaser may be a party.
(j) Disclosure. The Company shall have no duty or obligation to
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affirmatively disclose to Purchaser, and Purchaser shall have no right to be
advised of, any material information regarding the Partnership, Company or any
of its Subsidiaries at any time prior to, upon or in connection with the
Company's repurchase of the Shares under this Agreement.
(k) Successors and Assigns. The Company may assign with absolute
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discretion any or all of its rights and/or obligations and/or delegate any of
its duties under this Agreement to any of its affiliates, successors and/or
assigns, and this Agreement shall inure to the benefit of, and be binding upon,
such respective affiliates, successors and/or assigns of the Company in the same
manner and to the same extent as if such affiliates, successors and/or assigns
were original parties hereto. Without limiting the foregoing, the Company may
assign the right of first refusal provided for in Section 3 of this Agreement or
the repurchase right
7.
contained in Section 5(b) of this Agreement, to any designee, including any of
its affiliates, successors and/or assigns. Unless specifically provided herein
to the contrary, Purchaser may not assign any or all of its rights and/or
obligations and/or delegate any or all its duties under this Agreement without
the prior written consent of the Company. Upon an assignment of any or all of
Purchaser's rights and/or obligations and/or a delegation of any or all of its
duties under this Agreement in accordance with the terms of this Agreement, this
Agreement shall inure to the benefit of, and be binding upon, Purchaser's
respective affiliates, successors and/or assigns in the same manner and to the
same extent as if such affiliates, successors and/or assigns were original
parties hereto.
(l) Headings. Introductory headings at the beginning of each
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section and subsection of this Agreement are solely for the convenience of the
parties and shall not be deemed to be a limitation upon or description of the
contents of any such section and subsection of this Agreement.
(m) Counterparts. This Agreement may be executed in two
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counterparts, each of which shall be deemed an original and both of which, when
taken together, shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
THE COMPANY:
BRYLANE INC.,
a Delaware corporation
By: _____________________________________________
Its: _________________________________________
PURCHASER:
___________________________________________________
___________________________________________________
8.