EXHIBIT 10.129
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (the "Agreement") is made as of this 26th
day of January 2004, by and between TARRANT APPAREL GROUP, a California
corporation (the "Company"), and the investor identified on the signature page
to this Agreement (the "Investor").
W I T N E S S E T H:
WHEREAS, the Investor desires to purchase and acquire from the Company
and the Company desires to sell and issue to the Investor the number of shares
(the "Shares") of the Company's Common Stock, no par value (the "Common Stock"),
set forth on the signature page of this Agreement, upon the terms and conditions
and subject to the provisions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual premises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. PURCHASE AND SALE OF THE SHARES. The Investor hereby purchases
and acquires from the Company and the Company hereby sells and issues to the
Investor the Shares, at the purchase price set forth on the signature page of
this Agreement (the "Purchase Price").
2. DELIVERY OF PURCHASE PRICE AND CERTIFICATES. Contemporaneously
with the delivery of this Agreement, the Investor shall deliver to Sterling Bank
(the "Escrow Agent") the Purchase Price by wire transfer of immediately
available funds pursuant to wire transfer instructions given to the Investor by
the Company, which delivery to the Escrow Agent shall constitute payment in full
of the Purchase Price by the Investor. Contemporaneously with the delivery of
this Agreement, the Company shall instruct the transfer agent and registrar for
the Common Stock to issue and deliver to the Investor a stock certificate,
without restrictive legend, registered in the name of the Investor as set forth
on the signature page of this Agreement, representing the Shares acquired
hereunder, and the Company shall cause such certificate to be delivered to the
Investor as soon as practicable, but in no event later than the third business
day, following the delivery of this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. In order to
induce the Investor to enter into this Agreement, the Company represents and
warrants to the Investor the following:
(a) AUTHORITY. The Company is a corporation duly
organized, validly existing, and in good standing under the laws of the
State of California, and has all requisite right, power, and authority
to execute, deliver and perform this Agreement.
(b) REGISTRATION STATEMENT. The Company has prepared and
filed with the Securities and Exchange Commission (the "COMMISSION") a
registration statement (file number 333-111092) on Form S-3, including
a related base prospectus, for registration under the Securities Act of
1933, as amended (the "ACT"), of the securities of the Company
described therein with an aggregate offering price of up to $20,000,000
(the "INITIAL REGISTRATION STATEMENT"). At the effective date of the
Initial Registration Statement, the Company met the requirements for
use of Form S-3 under the Act. The Initial Registration Statement and
any post-effective amendment thereto, each in the form heretofore
delivered to you, have been declared effective by the Commission in
such form. Other than (i) documents incorporated by reference in the
base prospectus contained in the Initial Registration Statement, (ii)
any amendment or supplement filed thereto and any documents
incorporated by reference to such amendment or supplement, and (iii)
any acceleration request with respect to the Initial Registration
Statement, no other document with respect to the Initial Registration
Statement has heretofore been filed with the Commission. No stop order
suspending the effectiveness of the Initial Registration Statement or
any post-effective amendment thereto has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission.
The various parts of the Initial Registration Statement, including all
exhibits thereto and including (x) the information contained in the
form of a final prospectus supplement relating to this offering to the
base prospectus included in the Initial Registration Statement, which
will be filed with the Commission after the date hereof pursuant to
Rule 424(b) under the Act and (y) the documents incorporated by
reference in such final prospectus supplement are hereinafter
collectively called the "REGISTRATION STATEMENT." Such final prospectus
supplement, in the form first filed pursuant to Rule 424(b) under the
Act, together with the base prospectus included in the Initial
Registration Statement and any subsequently filed amendments,
supplements or other documents incorporated therein, is hereinafter
called the "PROSPECTUS." Any reference herein to the Prospectus shall
be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act, as of
the date of such Prospectus, as the case may be. Any reference to any
amendment or supplement to the Prospectus shall be deemed to refer to
and include any documents filed after the date of such Prospectus, as
the case may be, under the Securities Exchange Act of 1934, as amended,
and incorporated by reference in such Prospectus, as the case may be.
Any reference to any amendment or supplement to the Registration
Statement or Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the effective date
of the Initial Registration Statement or the date of the Prospectus, as
the case may be, deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be, as well
as the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Act.
(c) PROSPECTUS. No order preventing or suspending the use
of any Prospectus has been issued by the Commission. The Registration
Statement conforms, and the Prospectus and any further amendments or
supplements to the Registration
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Statement or the Prospectus will conform, in all material respects to
the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not: (i) with respect to the
Registration Statement, as of the applicable effective date as to the
Registration Statement and any amendment thereto contain 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 and (ii) with respect to the Prospectus, as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain 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, in the light of the
circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that the foregoing representations and warranties in this
Section 3(c) shall not apply to any statements or omissions made in
reliance upon and in conformity with information concerning the
Placement Agent furnished to the Company by the Placement Agent for use
therein.
(d) ENFORCEABILITY. The execution, delivery, and
performance of this Agreement by the Company have been duly authorized
by all requisite corporate action. This Agreement has been duly
executed and delivered by the Company, and, upon its execution by the
Investor, shall constitute the legal, valid, and binding obligation of
the Company, enforceable in accordance with its terms, except to the
extent that its enforceability is limited by bankruptcy, insolvency,
reorganization, or other laws relating to or affecting the enforcement
of creditors' rights generally and by general principles of equity.
(e) NO VIOLATIONS. The execution, delivery, and
performance of this Agreement by the Company (i) do not and will not
violate or conflict with any provision of the Company's Restated
Articles of Incorporation or Bylaws, (ii) do not and will not, with or
without the passage of time or the giving of notice, result in the
breach of, or constitute a default, cause the acceleration of
performance, or require any consent under (except such consents as have
been obtained as of the date hereof), or result in the creation of any
lien, charge or encumbrance upon any property or assets of the Company
pursuant to, any material instrument or agreement to which the Company
is a party or by which the Company or its properties are bound, except
such consents as have been obtained as of the date hereof, and (iii) do
not and will not result in the violation of any law, statute, order,
rule, administrative regulation, or decree of any court, or
governmental agency or body having jurisdiction over the Company or its
properties.
(f) APPROVALS. The execution, delivery, and performance
by the Company of this Agreement and the offer and sale of the Shares
require no consent of, action by or in respect of, or filing with, any
Person, governmental body, agency, or official other than the filing of
the Prospectus pursuant to Rule 424(b) promulgated under the Act, those
consents that have been obtained and filings that have been made
pursuant to applicable state and federal securities laws, and post-sale
filings pursuant to applicable state and federal securities laws, which
the Company undertakes to file within the
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applicable time period. The Company shall deliver a copy of the
Prospectus as filed with the Commission pursuant to Rule 424(b) to the
Investor no later than the next business day following filing with the
Commission.
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. In order to
induce the Company to enter into this Agreement, the Investor represents and
warrants to the Company the following:
(a) AUTHORITY. If a corporation, partnership, limited
partnership, limited liability company, or other form of entity, the
Investor is duly organized or formed, as the case may be, validly
existing, and in good standing under the laws of its jurisdiction of
organization or formation, as the case may be. The Investor has all
requisite individual or entity right, power, and authority to execute,
deliver, and perform this Agreement.
(b) ENFORCEABILITY. The execution, delivery, and
performance of this Agreement by the Investor have been duly authorized
by all requisite partnership or corporate action, as the case may be.
This Agreement has been duly executed and delivered by the Investor,
and, upon its execution by the Company, shall constitute the legal,
valid, and binding obligation of the Investor, enforceable in
accordance with its terms, except to the extent that its enforceability
is limited by bankruptcy, insolvency, reorganization, moratorium, or
other laws relating to or affecting the enforcement of creditors'
rights generally and by general principles of equity.
(c) NO VIOLATIONS. The execution, delivery, and
performance of this Agreement by the Investor do not and will not, with
or without the passage of time or the giving of notice, result in the
breach of, or constitute a default, cause the acceleration of
performance, or require any consent under, or result in the creation of
any lien, charge or encumbrance upon any property or assets of the
Investor pursuant to, any material instrument or agreement to which the
Investor is a party or by which the Investor or its properties may be
bound or affected, and, do not or will not violate or conflict with any
provision of the articles of incorporation or bylaws, partnership
agreement, operating agreement, trust agreement, or similar
organizational or governing document of the Investor, as applicable.
5. FURTHER ASSURANCES. The parties hereto will, upon reasonable
request, execute and deliver all such further assignments, endorsements and
other documents as may be necessary in order to perfect the purchase by the
Investor of the Shares.
6. ENTIRE AGREEMENT; NO ORAL MODIFICATION. This Agreement
contains the entire agreement among the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
with respect thereto and may not be amended or modified except in a writing
signed by both of the parties hereto.
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7. BINDING EFFECT; BENEFITS. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
successors and assigns; however, nothing in this Agreement, expressed or
implied, is intended to confer on any other person other than the parties
hereto, or their respective heirs, successors or assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
8. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
9. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the United States of
America and the State of California, both substantive and remedial. Any judicial
proceeding brought against either of the parties to this agreement or any
dispute arising out of this Agreement or any matter related hereto may be
brought in the courts of the State of Texas or in the United States District
Court for the Southern District of Texas and, by its execution and delivery of
this agreement, each party to this Agreement accepts the jurisdiction of such
courts.
10. PREVAILING PARTIES. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the prevailing party shall be entitled to receive
and the nonprevailing party shall pay upon demand reasonable attorneys' fees in
addition to any other remedy.
11. NOTICES. All communication hereunder shall be in writing and,
if sent to you shall be mailed, delivered, telegraphed or sent by facsimile or
electronic mail, and confirmed to an Investor at the address set forth on the
signature page of this Agreement, or if sent to the Company, shall be mailed,
delivered, telegraphed or sent by facsimile or electronic mail and confirmed to
the Company at 0000 Xxxx Xxxxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000,
Attention: Chief Financial Officer, facsimile number (000) 000-0000, electronic
mail "xxxxxxx.xxxx@xxxx.xxx."
12. HEADINGS. The section headings herein are included for
convenience only and are not to be deemed a part of this Agreement.
[Signature of following page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
TARRANT APPAREL GROUP, a California
corporation
By:
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Name: Xxxxxxx Xxxx
Its: Chief Financial Officer
INVESTOR
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By:
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Print Name and Title
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Principal Residence or Executive Office
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IRS Tax Identification No.
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Telephone Number
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Fax Number
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E-mail Address
________________ X $3.35 = ________________
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Number of Shares Price per Share Purchase Price
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