AMENDMENT NO. 2 TO AMENDED AND RESTATED SECURITIES PURCHASE AGREEMENT
Exhibit 10.1
AMENDMENT NO. 2 TO AMENDED AND RESTATED
This AMENDMENT NO. 2, dated as of October 18, 2005 (this “Amendment”), to the AMENDED AND RESTATED SECURITIES PURCHASE AGREEMENT (the “Purchase Agreement”) dated as of December 13, 2004, is made by and among The Wet Seal, Inc., a Delaware corporation, with headquarters located at ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Company”) and the undersigned purchaser of Notes and Warrants (the “Purchaser”) under the Purchase Agreement. Unless otherwise defined herein or the context otherwise requires, capitalized terms used herein and defined in the Purchase Agreement shall be used herein as therein defined.
A. Pursuant to the Purchase Agreement, the Buyers purchased from the Company the Notes and Warrants, upon the terms and subject to the conditions set forth therein.
B. Pursuant to Section 10(e) of the Purchase Agreement, any provision of the Purchase Agreement may be amended with the written consent of the Company and the Majority Buyers, and any such amendment shall be binding on all Buyers and holders of Securities, as applicable.
C. The parties hereto now desire to amend the Purchase Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual representations, warranties, covenants and agreements set forth in this Amendment and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. AMENDMENT. Section 4(u) of the Purchase Agreement is hereby deleted and replaced in its entirety with the following:
“Sales by Officers and Directors. Until the later of (i) the Trigger Date and (ii) 180 Trading Days after the Closing Date, the Company shall not, directly or indirectly, permit any officer or director of the Company or any of its Subsidiaries to sell any Class A Common Stock pursuant to a contract, instruction or plan in accordance with Rule 10b5-1 of the 1934 Act, except pursuant to a registration statement on Form S-3 for the registration of 250,000 shares of restricted Class A Common Stock granted to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇.”
2. MISCELLANEOUS
(a) Effective Time. Upon the execution hereof by the Company and the Majority Buyers, this Amendment shall become effective as of the date first written above.
(b) General. The provisions of Section 10 of the Purchase Agreement shall apply to this Amendment, except that references therein to the Purchase Agreement shall be deemed references to the Purchase Agreement as amended by this Amendment.
(c) Counterparts. This Amendment may be executed in counterparts, all of which 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; provided that a facsimile signature
shall be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original, not a facsimile signature.
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IN WITNESS WHEREOF, each of the Company and the Buyer has caused its signature page to this Amendment to be duly executed and delivered as of the date first written above.
| COMPANY | |
| THE WET SEAL, INC. | |
| By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Title: President and Chief Executive Officer |
IN WITNESS WHEREOF, each of the Company and the Buyer has caused its signature page to this Amendment to be duly executed and delivered as of the date first written above.
| S.A.C. CAPITAL ASSOCIATES, LLC | |
| By: S.A.C. Capital Advisors, LLC | |
| By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Title: General Counsel |
IN WITNESS WHEREOF, each of the Company and the Buyer parties listed below has caused its signature page to this Amendment to be duly executed and delivered as of the date first written above.
| PRENTICE CAPITAL PARTNERS QP, LP | |
| By: Prentice Capital GP, LLC, its general partner | |
| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Title: Managing Director |
| PRENTICE CAPITAL PARTNERS, LP | |
| By: Prentice Capital GP, LLC, its general partner | |
| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Title: Managing Director |
| PRENTICE CAPITAL OFFSHORE, LTD | |
| By: Prentice Capital Management, LP, the Investment Manager | |
| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Title: CFO |
| GPC XLIII, LLC | |
| By: Prentice Capital Management, LP, its advisor | |
| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Title: CFO |
IN WITNESS WHEREOF, each of the Company and the Buyer parties listed below has caused its signature page to this Amendment to be duly executed and delivered as of the date first written above.
| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
| UBS FINANCIAL SERVICES AS CUSTODIAN FBO ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ROLLOVER ▇▇▇ | |
| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Title: |