SHARE PURCHASE AGREEMENT
SHARE PURCHASE AGREEMENT, dated as of July 11, 2005, by and between
Xxxxxxx Xxxxxx, an individual residing at 0 Xxxx Xxxxx Xxxx, Xxxxxx, Xxx Xxxx
00000 ("Purchaser") and G-III Apparel Group, Ltd., a Delaware corporation
("Issuer").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Purchaser and Issuer desire to provide for the purchase by
Purchaser from Issuer of shares of its common stock, $.01 par value per share
(the "Common Stock") on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
1. Issuer hereby sells to Purchaser, and Purchaser hereby purchases from
Issuer, Thirty Thousand (30,000) shares of Common Stock (the "Shares") at a
purchase price of $7.50 per share (or aggregate consideration of Two Hundred
Twenty Five Thousand Dollars ($225,000)).
Issuer Representation and Warranty
----------------------------------
2. Issuer hereby represents and warrants to Purchaser that, when issued,
the Shares will be duly and validly authorized, fully paid and non-assessable
shares of Common Stock of the Issuer.
Purchaser Representations and Warranties
----------------------------------------
3. Purchaser acknowledges that his representations and warranties contained
herein are being relied upon by Issuer as a basis for the exemption of the
issuance of the Shares hereunder from the registration requirements of the
Securities Act of 1933, as amended (the "Securities Act") and any applicable
state securities laws.
4. Purchaser understands that (i) the Shares are not registered under the
Securities Act or any state securities laws by reason of their issuance in a
transaction exempt from the registration requirements of the Securities Act and
applicable state securities laws and (ii) the Shares must be held indefinitely
unless a subsequent disposition thereof is registered under the Securities Act
and applicable state securities laws or is exempt from such registration.
5. Purchaser is acquiring the Shares for his own account and not with a
view to, or for sale in connection with, directly or indirectly, any
distribution thereof that would require registration under the Securities Act or
applicable state securities laws or would otherwise violate the Securities Act
or such state securities laws.
6. Purchaser has relied upon independent investigations made by him or his
representatives and is fully familiar with the business, results of operations,
financial condition, prospects and other affairs of Issuer and realizes that the
Shares are a speculative investment involving a high degree of risk for which
there is no assurance of any return.
-1-
7. Purchaser has such knowledge and experience in financial and business
affairs, including investing in companies similar to Issuer, and is capable of
determining the information necessary to make an informed investment decision,
of requesting such information from the Issuer, and of utilizing the information
that it has received from the Issuer to evaluate the merits and risks of his
investment in the Shares and is able to bear the economic risk of his investment
in the Shares, and understands that he must do so for an indefinite period of
time.
8. Purchaser and his attorneys, accountants, investment and financial
advisors, if any, have been provided access to such information about the Issuer
as he or his advisors, if any, have requested.
9. Purchaser is an "accredited investor" as defined in Regulation D under
the Securities Act.
10. Purchaser understands that, until the Shares are registered under the
Securities Act or until a sale pursuant to the provisions of Rule 144 under the
Securities Act, the Shares will bear the following legend (or a substantially
similar legend):
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE SECURITIES LAWS. THE
SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED
OF WITHOUT SUCH REGISTRATION OR THE DELIVERY TO THE COMPANY OF AN
OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
DISPOSITION WILL NOT REQUIRE REGISTRATION OF SUCH SECURITIES UNDER THE
SECURITIES ACT OF 1933, AS AMENDED."
Delivery of Shares, Registration Rights and Indemnification
-----------------------------------------------------------
11. As soon as reasonably practicable following the date hereof, Issuer
will deliver to Purchaser a certificate representing the Shares and bearing the
legend set forth above.
(a) Issuer shall:
(i) as promptly as practicable after the date hereof (and in no
event more than 60 days from the date hereof), prepare and file with the
SEC a registration statement on Form S-3 or other appropriate form (the
"Registration Statement") relating to the resale of the Shares by
Purchaser;
(ii) use its reasonable efforts, subject to receipt of necessary
information from Purchaser, to cause the SEC to declare the Registration
Statement effective as promptly as practicable after the Registration
Statement is filed by Issuer;
(iii) promptly prepare and file with the SEC (and provide notice
to Purchaser of any such filing) such amendments and supplements to the
Registration Statement and the prospectus used in connection therewith as
may be necessary to keep the Registration Statement effective until the
earlier of (A) the date all of the Shares
-2-
covered by the Registration Statement have been sold by Purchaser, or (B)
the date that is the first anniversary of the date of this Agreement;
(iv) furnish to Purchaser such number of copies of prospectuses
as Purchaser may reasonably request in order to facilitate the public sale
or other disposition by Purchaser pursuant to the Registration Statement of
all or any of the Shares owned by Purchaser;
(v) notify Purchaser at any time when a prospectus relating to
the Shares is required to be delivered under the Securities Act of the
happening of any event as a result of which the prospectus included in such
Registration Statement, as then in effect, includes an untrue statement of
a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing. Issuer will use reasonable
efforts to amend or supplement such prospectus in order to cause such
prospectus not to include any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances
then existing; provided, however, that Issuer, in good faith, may delay the
filing of any such amendment or supplement for a reasonable period of time
in order to permit Issuer (A) to effect disclosure or disposition or
consummation of any transaction requiring confidential treatment which is
being actively pursued at such time and which would require disclosure in
the Registration Statement or (B) to negotiate, effect or complete any
transaction which Issuer reasonably believes might be jeopardized, delayed
or made more costly to Issuer by disclosure in the Registration Statement;
and
(vi) bear all expenses in connection with the procedures set
forth in this Section 11(a) and the registration of the Shares pursuant to
the Registration Statement, other than fees and expenses, if any, of
counsel and other advisers to Purchaser or underwriting discounts,
brokerage fees and commissions incurred by Purchaser, if any.
(b) (i) Notwithstanding the generality of the foregoing clauses,
Purchaser agrees that upon notice from Issuer at any time or from time to time
during the time the prospectus relating to the Shares covered by the
Registration Statement and proposed to be sold by Purchaser is required to be
delivered under the Securities Act of the happening of any event as a result of
which, in Issuer's opinion after consultation with its counsel, the prospectus
included in the Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing, Purchaser will forthwith discontinue
Purchaser's disposition of Shares pursuant to the Registration Statement until
the time of such Purchaser's receipt of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the purchaser
of Shares, such prospectus shall not include, in the Issuer's opinion after
consultation with its counsel, an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.
-3-
(ii) Purchaser shall furnish Issuer such information regarding
such Purchaser and the distribution of the Shares covered by the
Registration Statement as Issuer may from time to time reasonably request
in writing.
(iii) Purchaser agrees to give at least five (5) business days'
prior written notice to Issuer of any proposed sale of Shares covered by
the Registration Statement pursuant to the Registration Statement and not
to make such sale (A) unless such five (5) business days elapse without a
Response (as hereinafter defined) from Issuer, or (B) in the event that
during such five (5) business day period the Issuer sends Purchaser written
notice stating that an amendment to the Registration Statement or
supplement to the prospectus must be filed in accordance with the second
sentence of Section 11(a)(v)(a "Response"), until Issuer notifies Purchaser
that the Registration Statement has been amended or the prospectus
supplemented as required; provided, however, that Issuer agrees to file
such amendment or supplement promptly upon the resolution of the disclosure
issue necessitating such delay.
(c) Issuer will use reasonable efforts to cause the Shares covered by
and to be sold pursuant to the Registration Statement to be eligible for
quotation on the Nasdaq Stock Market or listed on any national securities
exchange on which shares of Common Stock are then quoted or listed.
(d) (i) In the event of a registration of any of the Shares under the
Securities Act pursuant to this Section 11, Issuer will, to the extent permitted
by applicable law, indemnify and hold harmless Purchaser against all losses,
claims, damages or liabilities, joint or several, to which Purchaser may become
subject under the Securities Act, the Exchange Act or any other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of Issuer), insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statement, including the prospectus, financial statements and schedules, and all
other documents filed as a part thereof, as amended at the time of effectiveness
of the Registration Statement, including any information deemed to be a part
thereof as of the time of effectiveness pursuant to paragraph (b) of SEC Rule
430A, or pursuant to SEC Rule 434, or the prospectus, in the form first filed
with the SEC pursuant to SEC Rule 424(b), or filed as part of the Registration
Statement at the time of effectiveness if no Rule 424(b) filing is required, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse Purchaser for any legal or other expenses reasonably incurred by
Purchaser in connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability or action; provided, however,
that Issuer will not be liable in any such case if and to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made in
conformity with information furnished in writing by Purchaser specifically for
use in such Registration Statement. For purposes of this Section 11(d), the term
"Registration Statement" shall include any final prospectus, exhibit, supplement
or amendment included in or relating to, and any document incorporated by
reference in, the Registration Statement referred to in Section 11(a).
-4-
(ii) Purchaser will, to the extent permitted by applicable law,
indemnify and hold harmless Issuer, each Person who controls Issuer within
the meaning of the Securities Act, each officer of Issuer who signs the
Registration Statement and each director of Issuer, against all losses,
claims, damages or liabilities, joint or several, to which Issuer or such
officer or director may become subject under the Securities Act, the
Exchange Act or any other federal or state statutory law or regulation, or
at common law or otherwise (including in settlement of any litigation, if
such settlement is effected with the written consent of Purchaser), insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement or any amendment or supplement thereof, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse Issuer and each such officer,
director or controlling Person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that Purchaser
will be liable hereunder in any such case if and only to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement of a material fact or omission
or alleged omission of a material fact made in reliance upon and in
conformity with information pertaining to Purchaser furnished in writing to
Issuer by Purchaser specifically for use in the Registration Statement; and
provided further, however, that the liability of Purchaser hereunder shall
not in any event exceed the proceeds received from the sale of Purchaser's
Shares covered by such Registration Statement.
(iii) Promptly after receipt by an indemnified party under this
Section 11(d) of notice of the threat or commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party under this Section 11(d), promptly notify the
indemnifying party in writing thereof, but the omission to so notify the
indemnifying party will not relieve it from any liability which it may have
to any indemnified party for contribution or otherwise than under the
indemnity agreement contained in this Section 11(d) to the extent it is not
prejudiced as a result of such failure. In case any such action is brought
against any indemnified party and such indemnified party seeks or intends
to seek indemnity from an indemnifying party, the indemnifying party will
be entitled to participate in, and, to the extent that it may wish, jointly
with all other indemnifying parties similarly notified, to assume the
defense thereof with counsel reasonably satisfactory to such indemnified
party; provided, however, if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be a conflict between the
positions of the indemnifying party and the indemnified party in conducting
the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different from
or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assume
such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the
indemnified party of counsel, the
-5-
indemnifying party will not be liable to such indemnified party under this
Section 11(d) for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (A) the
indemnified party shall have employed such counsel in connection with the
assumption of legal defenses in accordance with the proviso to the
preceding sentence or (B) the indemnified party shall not have employed
counsel reasonably satisfactory to the indemnifying party to represent the
indemnified party within a reasonable time after notice of commencement of
action, in each of which cases the reasonable fees and expenses of counsel
shall be at the expense of the indemnifying party.
(iv) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either (A)
any indemnified party exercising rights under this Agreement makes a claim
for indemnification pursuant to this Section 11(d) but it is judicially
determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the denial
of the last right of appeal) that such indemnification may not be enforced
in such case notwithstanding the fact that this Section 11 provides for
indemnification in such case, (B) contribution under the Securities Act may
be required on the part of any such indemnified party in circumstances for
which indemnification is provided under this Section 11, or (C) the
indemnification provided for by this Section 11 is insufficient to hold
harmless an indemnified party, other than by reason of the exceptions
provided therein, then, and in each such case, Issuer and Purchaser will
contribute to the aggregate losses, claims, damages or liabilities to which
they may be subject (after contribution from others) (x) in such proportion
as is appropriate to reflect the relative fault of the indemnifying party
on the one hand and the indemnified party on the other or (y) if the
allocation provided by clause (x) above is not permitted by applicable law,
or provides a lesser sum to the indemnified party than the amount
hereinafter calculated, in such proportion as is appropriate to reflect not
only the relative fault referred to in clause (x) above but also the
relative benefits received by the indemnifying party and the indemnified
party from the registration of the Shares as well as the statements or
omissions which resulted in such losses, claims, damages or liabilities and
any other relevant equitable considerations. Purchaser will not be required
to contribute any amount in excess of the proceeds received from the sale
of his Shares covered by the Registration Statement and no person or entity
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) will be entitled to contribution from any person or
entity who was not guilty of such fraudulent misrepresentation.
(v) The obligations of Issuer and Purchaser under this Section
11(d) shall survive completion of any offering of Shares pursuant to a
Registration Statement and the termination of Issuer's obligations under
Section 11(a). No indemnifying party, in the defense of any such claim or
litigation, shall, except with the consent of each indemnified party,
consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in
respect to such claim or litigation.
-6-
12. Each party hereto will execute and deliver to any other party, from
time to time, for no additional consideration and at no additional cost to the
requesting party, such further assignments, certificates, instruments, records,
and other documents, assurances or things as may be reasonably necessary, to
give full effect to this Agreement and to allow each party fully to enjoy and
exercise the rights accorded and acquired
13. Notices. All notices, claims, demands and other communications
hereunder shall be in writing and shall be deemed given: (i) in the case of a
facsimile transmission, upon the next business day following confirmation of
transmission, (ii) in the case of delivery by a standard overnight carrier, upon
the date of delivery indicated in the records of such carrier, (iii) in the case
of delivery by hand, when delivered by hand, or (iv) in the case of delivery by
first class mail, upon the expiration of five business days after the date
mailed by registered or certified mail (return receipt requested), addressed to
the respective parties at the addresses shown below.
(i) If to Issuer to:
G-III Apparel Group, Ltd.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxx
with a copy to:
Xxxx Xxxx, Esq.
Fulbright & Xxxxxxxx L.L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
(ii) If to Purchaser to:
Xxxxxxx Xxxxxx
0 Xxxx Xxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
with a copy to:
Xxxxxxx Xxxxxxxxx, Esq.
Xxxxxxxxxx Stonehill & Xxxxxxxxx, P.C.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx
or at such other address as a party shall specify by notice to the
other parties.
14. Headings and Entire Agreement. The section and subsection headings do
not constitute any part of this Agreement and are inserted herein for
convenience of reference only. This Agreement embodies the entire agreement
between the parties with respect to the subject
-7-
matter hereof and supersedes and preempts all prior oral and written
understandings and agreements with respect to the subject matter hereof. It may
not be amended, modified or changed orally, but only in writing signed by the
party against whom enforcement of any amendment, modification, change, waiver,
extension or discharge is sought.
15. Waiver. No waiver of a breach of, or default under, any provision of
this Agreement shall be deemed a waiver of such provision or of any subsequent
breach or default of the same or similar nature or of any other provision or
condition of this Agreement.
16. Binding Effect and Assignment. This Agreement shall be binding upon and
shall inure to the benefit of the parties and their successors and assigns. No
party may assign any obligation under this Agreement except with the prior
written consent of the other.
17. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which taken together shall
constitute one agreement.
18. Governing Law. This Agreement is to be governed by and interpreted
under the laws of the State of New York, without giving effect to the principles
of conflicts of laws thereof.
[remainder of this page intentionally left blank]
-8-
IN WITNESS WHEREOF, the parties hereto have executed this Share Purchase
Agreement on the day and year first written above.
G-III APPAREL GROUP, LTD.
/s/ Xxxxx Xxxxxx
-----------------------------------
By: Xxxxx X. Xxxxxx
Title: Chief Operating and
Financial Officer
/s/ Xxxxxxx Xxxxxx
-----------------------------------
Xxxxxxx Xxxxxx
-9-
