0000950172-05-000247.txt : 20120628
0000950172-05-000247.hdr.sgml : 20120628
20050124172944
ACCESSION NUMBER: 0000950172-05-000247
CONFORMED SUBMISSION TYPE: SC 13D
PUBLIC DOCUMENT COUNT: 1
FILED AS OF DATE: 20050124
DATE AS OF CHANGE: 20050124
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: WET SEAL INC
CENTRAL INDEX KEY: 0000863456
STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-WOMEN'S CLOTHING STORES [5621]
IRS NUMBER: 330415940
STATE OF INCORPORATION: DE
FISCAL YEAR END: 0131
FILING VALUES:
FORM TYPE: SC 13D
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-41525
FILM NUMBER: 05545358
BUSINESS ADDRESS:
STREET 1: 26972 BURBANK
CITY: FOOTHILL RANCH
STATE: CA
ZIP: 92610
BUSINESS PHONE: 7145839029
MAIL ADDRESS:
STREET 1: 26972 BURBANK
CITY: FOOTHILL RANCH
STATE: CA
ZIP: 92610
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: GMM Capital LLC
CENTRAL INDEX KEY: 0001315159
IRS NUMBER: 726232404
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D
BUSINESS ADDRESS:
STREET 1: 950 THIRD AVENUE
STREET 2: SUITE 2805
CITY: NEW YORK
STATE: NY
ZIP: 10022
BUSINESS PHONE: 212-688-8288
MAIL ADDRESS:
STREET 1: 950 THIRD AVENUE
STREET 2: SUITE 2805
CITY: NEW YORK
STATE: NY
ZIP: 10022
SC 13D
1
ny495379.txt
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
Under the Securities Exchange Act of 1934
THE WET SEAL, INC.
_______________________________________________________________________________
(Name of Issuer)
CLASS A COMMON STOCK, PAR VALUE $0.10 PER SHARE
_______________________________________________________________________________
(Title of Class of Securities)
961840105
_______________________________________________________________________________
(CUSIP Number)
Isaac Dabah
GMM Capital LLC
950 Third Avenue, Suite 2805
New York, NY 10022
Facsimile: (212) 688-8268
_______________________________________________________________________________
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
With a copy to:
Thomas W. Greenberg, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
(212) 735-3000
January 14, 2005
_______________________________________________________________________________
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of sections 240.13d-1(e), 240.13d-1(f) or
240.13d-1(g), check the following box. [ ]
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") or otherwise subject to
the liabilities of that section of the Exchange Act but shall be subject to all
other provisions of the Exchange Act (however, see the Notes).
--------- ----------------------------------------------------------------------
1. Names of Reporting Persons. I.R.S. Identification Nos. of above
persons (entities only)
GMM Capital LLC
I.R.S. Identification No.: 72-6232404
--------- ----------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [ ]
--------- ----------------------------------------------------------------------
3. SEC USE ONLY
--------- ----------------------------------------------------------------------
4. Source of Funds (See Instructions)
AF
--------- ----------------------------------------------------------------------
5. Check if Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e)
[ ]
--------- ----------------------------------------------------------------------
6. Citizenship or Place of Organization
Delaware
--------- ------------------------------ --------- ---------------------------
7. Sole Voting Power
Number of 0
Shares --------- ---------------------------
Beneficially 8. Shared Voting Power
Owned by
Each 3,802,466*
Reporting --------- ---------------------------
Person with
9. Sole Dispositive Power
0
--------- ---------------------------
10. Shared Dispositive Power
3,802,466*
--------- ------------------------------ --------- ---------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
3,802,466*
--------- ----------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions)
[ ]
--------- ----------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
9.99%
--------- ----------------------------------------------------------------------
14. Type of Reporting Person (See Instructions)
OO
--------- ----------------------------------------------------------------------
* Includes 3,762,466 shares which are issuable upon the conversion of
convertible notes and the exercise of warrants (see Item 4 herein) held by
GMM Capital LLC.
--------- ----------------------------------------------------------------------
1. Names of Reporting Persons. I.R.S. Identification Nos. of above
persons (entities only)
GMM Trust
I.R.S. Identification No.: 72-6232404
--------- ----------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [ ]
--------- ----------------------------------------------------------------------
3. SEC USE ONLY
--------- ----------------------------------------------------------------------
4. Source of Funds (See Instructions)
OO
--------- ----------------------------------------------------------------------
5. Check if Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e)
[ ]
--------- ----------------------------------------------------------------------
6. Citizenship or Place of Organization
New Jersey
--------- ------------------------------ --------- ---------------------------
7. Sole Voting Power
Number of 0
Shares --------- ---------------------------
Beneficially 8. Shared Voting Power
Owned by
Each 3,802,466**
Reporting --------- ---------------------------
Person with 9. Sole Dispositive Power
0
--------- ---------------------------
10. Shared Dispositive Power
3,802,466**
--------- ------------------------------ --------- ---------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
3,802,466**
--------- ----------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions)
[ ]
--------- ----------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
9.99%
--------- ----------------------------------------------------------------------
14. Type of Reporting Person (See Instructions)
OO
--------- ----------------------------------------------------------------------
** Includes 3,762,466 are issuable upon the conversion of convertible notes and
the exercise of warrants (see Item 4 herein) held by GMM Capital LLC.
ITEM 1. SECURITY AND ISSUER.
This statement on Schedule 13D (the "Statement") relates to the Class
A common stock, par value $0.10 per share, of The Wet Seal, Inc., a Delaware
corporation (the "Company"). Unless the context otherwise requires, references
herein to the "Common Stock" are to such Class A common stock of the Company.
The Company's principal executive office is located at 26972 Burbank, Foothill
Ranch, California 92610.
ITEM 2. IDENTITY AND BACKGROUND.
(a) This Statement is being filed jointly on behalf of GMM Capital LLC
("GMM Capital"), a Delaware limited liability company, GMM Trust, a
trust formed under the laws of the State of New Jersey ("GMM Trust", together
GMM Capital, the "Reporting Persons"). GMM Trust is the sole member of GMM
Capital.
(b) The principal office of each of the Reporting Persons is located
at 950 Third Avenue, Suite 2805, New York, NY 10022. The names, business
addresses and present principal occupations or employment of the trustees of
GMM Trust are set forth on the attached Schedule I, which is incorporated
herein by reference.
(c) The principal business of GMM Capital is to invest in and trade
securities on behalf of the beneficiaries of GMM Trust. The principal business
of GMM Trust is to invest in and trade securities on behalf of the
beneficiaries of GMM Trust. The names and principal occupations or employment
of the directors and executive officers of GMM Capital and the trustees of GMM
Trust are set forth on the attached Schedule I, which is incorporated herein by
reference.
(d) None of the Reporting Persons has, during the last five years,
been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors). None of the persons identified on Schedule I hereto has,
during the last five years, been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors).
(e) None of the Reporting Persons has, during the last five years,
been a party to any civil proceeding as a result of which it was subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding
any violations with respect to such laws. None of the persons identified on
Schedule I hereto has, during the last five years, been a party to any civil
proceeding as a result of which such person was subject to a judgment, decree
or final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any
violations with respect to such laws.
(f) Except as noted on Schedule I, all directors and executive
officers of GMM Capital and the trustees of GMM Trust are citizens of the
United States.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
As of the date hereof, the Reporting Persons may, in the aggregate, be
deemed to beneficially own 3,802,466 shares of Common Stock, 3,762,466 of such
shares of Common Stock are issuable upon the conversion of the Convertible
Notes (as defined below) and the exercise of the Company Warrants (as defined
below) as described in Item 4 of this Statement.
The Convertible Notes and Company Warrants (collectively, the
"Purchased Securities") were acquired pursuant to the transactions more fully
described in Item 4 of this Statement, which is incorporated herein by
reference. The Purchased Securities were purchased by GMM Capital with capital
provided by and on behalf of GMM Trust. The 40,000 shares of Common Stock
currently owned by GMM Capital were purchased on the open market by GMM Capital
on July 21, 2004 and August 9, 2004 for an aggregate purchase price of $123,620
using capital provided by and on behalf of GMM Trust.
ITEM 4. PURPOSE OF TRANSACTION.
GMM Capital purchased the Purchased Securities because the Reporting
Persons believe that the Company represents an attractive investment. The
Reporting Persons believe that the Company should focus on causing the growth
of the Arden B. segment of the Company's business.
On November 9, 2004, GMM Capital entered into a securities purchase
agreement (the "Securities Purchase Agreement") with the Company and certain
other investors (such other investors, collectively, the "Other Investors")
pursuant to which GMM Capital agreed to purchase $7 million principal amount of
secured convertible notes, two additional investment rights to purchase
$1,732,500 and $1,041,250, respectively, of secured convertible notes, and four
tranches of warrants exercisable collectively into 4,760,000 shares of Common
Stock, for an aggregate purchase price of $14 million. In connection with
execution of the Securities Purchase Agreement, the Company issued to GMM
Capital a warrant exercisable for four years to purchase up to 402,500 shares
of Common Stock at an exercise price of $1.75 per share (the "Original
Warrant").
On December 13, 2004, GMM Capital, the Other Investors and certain new
investors (the "New Investors") (GMM Capital, collectively with the Other
Investors and the New Investors, the "Investors") entered into an Amended and
Restated Securities Purchase Agreement, dated as of December 13, 2004 (the
"Amended and Restated Securities Purchase Agreement"), in the form filed as
Exhibit 1 hereto, pursuant to which GMM Capital remained obligated to purchase
securities from the Company in the aggregate amount of $14 million.
Additionally, pursuant to the terms of the Amended and Restated Securities
Purchase Agreement, GMM Capital's additional investment right to purchase
secured convertible notes was eliminated and GMM Capital agreed to acquire
additional five year warrants which are exercisable to purchase shares of
Common Stock.
Concurrently with the execution, and pursuant to the terms, of the
Amended and Restated Securities Purchase Agreement, GMM Capital delivered to
the Company for cancellation the Original Warrant and received a new four year
warrant (the "Series A Warrant"), which is exercisable initially into 287,500
shares of Common Stock at an exercise price of $1.75 per share.
On January 14, 2005, the Investors and the Company entered into
Amendment No. 1 to the Amended and Restated Securities Purchase Agreement filed
as Exhibit 2 hereto (the "Amendment No. 1 to the Amended and Restated
Securities Purchase Agreement") and the closing of the transactions
contemplated by the Amended and Restated Securities Purchase Agreement, as
amended by Amendment No. 1 to the Amended and Restated Securities Purchase
Agreement occurred (the "Amended Transaction").
Pursuant to the terms of the Amended Transaction, on January 14, 2005,
the Company issued the following securities to GMM Capital for a gross purchase
price of $14 million (in addition to the Series A Warrants issued on December
13, 2004):
o the following notes:
o secured convertible seven year notes with a principal amount
of $7 million, which bear interest at 3.76% per annum,
payable in cash or in kind at the Company's option, which are
convertible initially into 4,666,667 shares of Common Stock
at an initial conversion price of $1.50 per share (the
"Convertible Notes") issued pursuant to an indenture (the
"Indenture"), by and among the Company and The Bank of New
York, as trustee (the "Trustee"); and
o the following tranches of warrants:
o (A) four year warrants with an exercise price of $2.25 per
share (exercisable initially into 425,000 shares of Common
Stock) (the "Series B Warrants");
o (B) five year warrants with an exercise price of $2.50 per
share (exercisable initially into 562,500 shares of Common
Stock) (the "Series C Warrants"); and
o (C) five year warrants with an exercise price of $2.75 per
share (exercisable initially into 587,500 shares of Common
Stock) (the "Series D Warrants" and collectively with the
Series A Warrants, the Series B Warrants and the Series C
Warrants (the "Company Warrants").
Pursuant to the terms of the Convertible Notes and the Company
Warrants, GMM Capital has the right to acquire initially up to 6,529,167 shares
of Common Stock in the aggregate. The form of Convertible Note is filed as
Exhibit 3 and is incorporated herein by reference. The form of Indenture is
filed as Exhibit 4 and is incorporated herein by reference. The forms of
Company Warrants are filed as Exhibits 5, 6, 7 and 8, respectively and are
incorporated herein by reference.
The Convertible Notes are secured by a third lien on substantially all
of the personal property of the Company and certain of its subsidiaries. The
Convertible Notes and the liens securing the Convertible Notes are fully
subordinated to the debt and liens in favor certain of the Company's lenders,
pursuant to the Subordination Agreement (as defined below) and the Bridge
Subordination Agreement (as defined below).
The Convertible Notes and Company Warrants have full ratchet
antidilution protection for any future stock issuances below their conversion
or exercise price, as the case may be.
GMM Capital is prohibited from converting the Convertible Notes or
exercising the Company Warrants if after such conversion or exercise, GMM
Capital would beneficially own more than 9.99% of the outstanding Common Stock
of the Company (the "Conversion Cap"). Such determination of beneficial
ownership is calculated by taking into account only that portion of such
Convertible Notes and/or Company Warrants which GMM Capital seeks to convert,
together with any shares of Common Stock held at such time by GMM Capital and
its affiliates.
The obligation of the Investors to consummate the Amended Transaction
was subject to a number of conditions, including, without limitation, reduction
in the size of the Company's board of directors from 11 directors to no more
than 9 directors, the resignation of the Company's former chief executive
officer, shareholder approval (including approval of the transaction and an
amendment to the Company's Certificate of Incorporation to increase the
authorized number of shares of Common Stock to accommodate the transaction) and
the holders of a majority of the securities issued pursuant to the Amended
Transaction being satisfied with the identity of one less than a majority of
the members of the Company's board of directors. Furthermore, the Company
agreed in the Amended and Restated Securities Purchase Agreement, as amended,
to use its reasonable best efforts to enter into consulting agreements with
Michael Gold and Tom Brosig (or his affiliate entity) and to engage a real
estate and lease appraisal consultant to evaluate and make recommendations
regarding lease terminations and modifications, in each case on terms
satisfactory to the Company's Board of Directors and a majority in interest of
the Investors.
On November 9, 2004, the Company and certain of its subsidiaries and
Wet Seal GC, Inc. entered into a Credit Agreement (the "Credit Agreement") with
SAC Capital, as administrative and collateral agent, GMM Capital and certain of
the Other Investors, as lenders (all such lenders, collectively, the "Bridge
Lenders") pursuant to which the Bridge Lenders severally and not jointly made a
secured term loan to the Company in the aggregate amount of $10 million bearing
interest at a rate of 25% per annum (the "Bridge Facility"). A copy of the
Credit Agreement is filed as Exhibit 9 and is incorporated herein by reference.
GMM Capital's commitment pursuant to the Credit Agreement was $1,750,000. The
Credit Agreement contains various affirmative and negative covenants, including
reporting requirements of the Company to the Bridge Lenders, and specifies
certain events of default. On December 13, 2004, SAC Capital assigned certain
of its rights and obligations as a lender under the Credit Agreement to the New
Investors pursuant to a series of assignment and acceptance agreements.
On January 14, 2005, the Company, the Bridge Lenders and the New
Investors entered into First Amendment to the Credit Agreement, which is filed
as Exhibit 10 and is incorporated herein by reference (the "First Amendment to
the Credit Agreement" and together with the Credit Agreement, the "Amended
Credit Agreement"). Pursuant to the First Amendment to the Credit Agreement,
the Bridge Facility has been amended (as amended, the "Amended Bridge
Facility") as follows:
o GMM Capital's commitment was reduced to $1,250,000.
o The maturity date of the Amended Bridge Facility has been
extended until March 31, 2005 with automatic one month renewals,
until a final maturity date of March 31, 2009, unless terminated
by SAC Capital with ten days prior written notice.
o The Company is required to make non-refundable additional
interest payments of (a) during the period from February 1, 2005
through and including February 28, 2005, 1.45% per month, (b)
during the period from March 1, 2005 though and including March
31, 2005, 0.7% per month, and (c) thereafter, 1.5% per month in
each case on the outstanding principal amount (including
capitalized interest), payable in advance on the first business
day of each month until the Amended Bridge Facility has been paid
off. These payments may be capitalized, increasing the
outstanding amount of the Amended Bridge Facility.
o The Amended Bridge Facility bears interest at a rate of 25% per
annum until July 31, 2005 and 30% per annum thereafter, in each
case in arrears. These payments may be capitalized, increasing
the outstanding amount of the Amended Bridge Facility.
o If in connection with any proposed amendment, waiver or consent
requiring the consent of all lenders the consent of the required
lenders, but not all lenders, is obtained, then SAC Capital has
the right to buy out the non-consenting lenders at a price equal
to the outstanding principal amount (including any capitalized
amounts), all accrued, but unpaid, interest and any other amounts
due on such date with respect to such non-consenting lender's
loans under the Amended Bridge Facility.
The Amended Credit Agreement also contains various affirmative and
negative covenants and specified events of default. On November 9, 2004, SAC
Capital, as collateral agent for the Bridge Lenders, the Company and certain of
its subsidiaries and the Company's senior lenders entered into an Intercreditor
and Lien Subordination Agreement (the "Intercreditor Agreement"), which is
filed as Exhibit 11 and is incorporated herein by reference. The Intercreditor
Agreement was amended on January 14, 2004 by the First Amendment to the
Intercreditor Agreement, which is filed as Exhibit 12 and is incorporated
herein by reference.
On November 9, 2004, S.A.C. Capital Associates, LLC ("SAC Capital"),
as collateral agent for GMM Capital and the Other Investors, the Company and
the Company's senior lenders entered into a subordination agreement, with
respect to all fees, costs, payments, expenses, concurrent or subsequent notes
or obligations of any form whatsoever relating thereto in favor of GMM Capital
or any of the Other Investors. As a condition to their consent to the Amended
and Restated Securities Purchase Agreement, on January 14, 2005, the Company's
senior lenders required that the Company, GMM Capital, the Trustee, the other
Investors and the Company's senior lenders enter into an Amended and Restated
Subordination Agreement, with respect to all fees, costs, payments, expenses,
concurrent or subsequent notes or obligations of any form whatsoever relating
thereto arising out of the Amended and Restated Securities Purchase Agreement,
as amended, in favor of SAC Capital, the Trustee or any of the Investors, which
is filed as Exhibit 13 and is incorporated herein by reference.
On January 14, 2005, SAC Capital, in its capacity as agent for the
Bridge Lenders and the New Investors (in their capacity as lenders under the
Amended Bridge Facility), the Investors (each in their capacity as a holder of
Convertible Notes), the Trustee and the Company entered into a Bridge
Subordination Agreement, with respect to all fees, costs, payments, expenses,
concurrent or subsequent notes or obligations of any form whatsoever relating
thereto in favor of GMM Capital or any of the Investors (in their capacities as
holders of Convertible Notes), which is filed as Exhibit 14 and is incorporated
herein by reference (the "Bridge Subordination Agreement"). The Bridge
Subordination Agreement confirms that no payment will be made by the Company to
GMM or any of the Investors (in their capacities as holders of Convertible
Notes) in respect of the Amended and Restated Securities Purchase Agreement,
the Convertible Notes and the Indenture until the Company has paid in full the
debt due pursuant to the Amended Bridge Facility.
On November 9, 2004, the Company, GMM Capital and the Other Investors
entered into a registration rights agreement. On December 13, 2004, in
connection with the execution of the Amended and Restated Securities Purchase
Agreement, the Company and the Investors entered into an Amended and Restated
Registration Right Agreement (the "Registration Rights Agreement"). Pursuant to
the Registration Rights Agreement, the Company has agreed to provide certain
registration rights with respect to the securities issued and to be issued
under the Amended and Restated Securities Purchase Agreement, including the
obligation of the Company to file with the SEC, as soon as practicable but in
no event later than February 14, 2005, as the case may be, a Registration
Statement on Form S-3 covering the resale of all such securities. A copy of the
Registration Rights Agreement is filed as Exhibit 15 and is incorporated herein
by reference.
Other than as set forth above, the Reporting Persons have no present
plans or intentions which would result in or relate to any of the transactions
described in subparagraphs (a) through (j) of Item 4 of Schedule 13D of the
Securities Exchange Act of 1934, as amended. However, the Reporting Persons
may, at any time and from time to time, review or reconsider their position
with respect to the Company, and formulate (and modify) plans or proposals with
respect to any such matters. The Reporting Persons intend to continue to review
and evaluate their investment in the Company. Depending on the price and
availability of funds, subsequent developments affecting the Company, the
Company's business, other investment and business opportunities available to
the Reporting Persons and general stock market, economic and other factors that
the Reporting Persons may deem relevant from time to time, the Reporting
Persons may maintain their investment at current levels or sell all or a part
of their investment, or acquire additional shares of Common Stock or other
securities of Company at any time, subject to the conditions and the ownership
limitation set forth in the Convertible Notes and the Company Warrants. Any
acquisition or disposition of shares of Common Stock by the Reporting Persons
may be effected through open market or privately negotiated transactions, or
otherwise.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) Based upon information set forth in the Company's Report on Form
10-Q for the quarterly period ended on October 30, 2004, there were 34,660,657
shares of Common Stock outstanding as of October 30, 2004. As of January 24,
2005, and taking into account the Conversion Cap, the Reporting Persons may be
deemed to have beneficial ownership of an aggregate of 3,802,466 shares of
Common Stock, or 9.99% of the shares of outstanding Common Stock. 3,768,440 of
such shares of Common Stock are issuable upon the conversion of Convertible
Notes (as defined below) and the exercise of Company Warrants (as defined
below) held by GMM Capital as described in Item 4 of this Statement.
(b) The Reporting Persons share the power to vote or to direct to vote
and the share the power to dispose or to direct the disposition of all of the
3,802,466 shares of Common Stock that may be deemed beneficially owned by them.
As a result of its ownership of GMM Capital, GMM Trust may be deemed to control
the power to vote or direct the disposition of such shares of Common Stock.
(c) Except for the transactions described in Item 4 of this Statement,
during the past sixty days, there were no purchases of the shares of Common
Stock, or securities convertible in to or exchangeable for shares of Common
Stock, by the Reporting Persons or any person or entity controlled by the
Reporting Persons or any person or entity for which the Reporting Persons
possess voting control over the securities thereof. During such sixty day
period, there were no sales of the shares of Common Stock, or securities
convertible into or exchangeable for shares of Common Stock, by the Reporting
Persons or any person or entity controlled by the Reporting Persons or any
person or entity for which the Reporting Persons possess voting control over
the securities thereof.
(d) No person (other than the Reporting Persons) is known by the
Reporting Persons to have the right to receive or the power to direct the
receipt of dividends from, or the proceeds from the sale of, the shares of
common stock represented by the Purchased Securities.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
As described in Item 4 of this Statement, (i) on November 9, 2004, the
GMM Capital entered into the Intercreditor Agreement, a copy of which is filed
as Exhibit 11 hereto; (ii) on December 13, 2004, the Company and the Investors
entered into the Amended and Restated Securities Purchase Agreement (which
includes as exhibits, the forms of Convertible Notes and Company Warrants) and
the Registration Rights Agreement, a copies of which are filed as Exhibits 1,
3, 5, 6, 7, 8 and 15 hereto, respectively; (iii) on December 13, 2004, the
Company issued the Series A Warrants to GMM Capital and similar warrants to the
other Investors; (iv) on January 14, 2005, the Company and the Investors
entered into the Amendment No. 1 to the Amended and Restated Securities
Purchase Agreement, the Indenture, the First Amendment to the Credit Agreement,
the First Amendment to the Intercreditor Agreement, the Subordination Agreement
and Bridge Subordination Agreement, copies of which are filed as Exhibits 2, 4,
10, 12, 13 and 14 hereto, respectively; and (v) on January 14, 2005, the
Company issued to the GMM Capital the Convertible Notes and the Company
Warrants and similar notes and warrants to the other Investors (other than the
Series A Warrants previously issued).
Except as otherwise set forth herein, there are no contracts,
arrangements, understandings or relationships (legal or otherwise) between the
Reporting Persons and any person, with respect to any securities of the
Company, including, but not limited to, transfer or voting of any of the
securities of the Company, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, division of profits or loss
or the giving or withholding of proxies.
Pursuant to Rule 13d-1(k) promulgated under the Exchange Act, the
Reporting Persons have entered into an agreement with respect to the joint
filing of this statement, and any amendment or amendments hereto, which is
attached as Exhibit 16 and is incorporated herein by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
1. Amended and Restated Securities Purchase Agreement, dated December
13, 2004, by and among the Company and the Investors (incorporated by reference
to Exhibit 10.1 to the Company's Current Report on Form 8-K, filed with the SEC
on December 14, 2004)
2. Amendment No. 1 to Amended and Restated Securities Purchase
Agreement, dated January 14, 2004, by and among the Company and the Investors
(incorporated by reference to Exhibit 10.6 to the Company's Current Report on
Form 8-K, filed with the SEC on January 21, 2005)
3. Form of Convertible Note (incorporated by reference to Exhibit 10.8
to the Company's Current Report on Form 8-K, filed with the SEC on January 21,
2005)
4. Indenture, dated as of January 14, 2005, between the Company and
the Trustee (incorporated by reference to Exhibit 10.7 to the Company's Current
Report on Form 8-K, filed with the SEC on January 21, 2005)
5. Form of Series A Warrant (incorporated by reference to Exhibit 10.4
to the Company's Current Report on Form 8-K, filed with the SEC on December 14,
2004)
6. Form of Series B Warrant (incorporated by reference to Exhibit 10.5
to the Company's Current Report on Form 8-K, filed with the SEC on December 14,
2004)
7. Form of Series C Warrant (incorporated by reference to Exhibit 10.6
to the Company's Current Report on Form 8-K, filed with the SEC on December 14,
2004)
8. Form of Series D Warrant (incorporated by reference to Exhibit 10.7
to the Company's Current Report on Form 8-K, filed with the SEC on December 14,
2004)
9. Credit Agreement, dated November 9, 2004, by and among the Company
and the Bridge Lenders (incorporated by reference to Exhibit 10.2 to the
Company's Current Report on Form 8-K, filed with the SEC on November 9, 2004)
10. First Amendment to Credit Agreement, dated as of January 14, 2005,
by and among the Company, the Bridge Lenders and the New Investors
(incorporated by reference to Exhibit 10.2 to the Company's Current Report on
Form 8-K, filed with the SEC on January 21, 2005)
11. Intercreditor and Lien Subordination Agreement, dated as of
November 9, 2004, by and among the Company, the Bridge Lenders and the
Company's senior lenders (incorporated by reference to Exhibit 10.13 to the
Company's Current Report on Form 8-K, filed with the SEC on November 9, 2004)
12. First Amendment to Intercreditor and Lien Subordination Agreement,
dated as of January 14, 2005, by and among the Company, the Bridge Lenders, the
New Investors and the Company's senior lenders (incorporated by reference to
Exhibit 10.3 to the Company's Current Report on Form 8-K, filed with the SEC on
January 21, 2005)
13. Amended and Restated Subordination Agreement, dated as of January
14, 2005, by and among the Investors and the Company's senior lenders
(incorporated by reference to Exhibit 10.4 to the Company's Current Report on
Form 8-K, filed with the SEC on January 21, 2005)
14. Bridge Subordination Agreement, dated as of January 14, 2005, by
and among the Company, the Investors (in their capacity as Investors) and the
Bridge Lenders and New Investors (in their capacity as lenders), (incorporated
by reference to Exhibit 10.6 to the Company's Current Report on Form 8-K, filed
with the SEC on January 21, 2005)
15. Amended and Restated Registration Rights Agreement, dated as of
December 13, 2004, by and among the Company and the Investors (incorporated by
reference to Exhibit 10.2 to the Company's Current Report on Form 8-K, filed
with the SEC on December 14, 2004)
16. Joint Filing Agreement, dated as of January 24, 2005, by and
between the Reporting Persons
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth herein is true, complete and correct.
GMM CAPITAL LLC
By: /s/ Isaac Dabah
------------------------------
Name: Isaac Dabah
Title: Executive Director
GMM TRUST
By: /s/ Isaac Dabah
------------------------------
Name: Isaac Dabah
Title: Trustee
Dated: January 24, 2005
Schedule I
OFFICERS AND DIRECTORS OF GMM CAPITAL AND TRUSTEES OF GMM TRUST
The names, present principal occupations and business addresses of the
officers and directors of GMM Capital and the trustees of GMM Trust are set
forth below. Except as set forth below, such individual's business address is
that of GMM Capital or GMM Trust, as applicable. Unless otherwise indicated,
each occupation set forth opposite an individual's name refers to such person's
position with GMM Capital or GMM Trust, as applicable.
------------------------------------------- ------------------------------- -------------------------------
Name Principal Occupation Business Address
------------------------------------------- ------------------------------- -------------------------------
Isaac Dabah, Executive Director of Private investor 950 Third Avenue, Suite 2805
GMM Capital and Trustee of GMM Trust New York, NY 10022
------------------------------------------- ------------------------------- -------------------------------
Ivette Dabah, Trustee of GMM Trust* Private investor 950 Third Avenue, Suite 2805
New York, NY 10022
------------------------------------------- ------------------------------- -------------------------------
Donald Hecht, Manager of GMM Capital and Certified Public Accountant 950 Third Avenue, Suite 2805
Administrative Trustee of GMM Trust New York, NY 10022
------------------------------------------- ------------------------------- -------------------------------
* Ivette Dabah is a citizen of Argentina.
EXHIBIT INDEX
1. Amended and Restated Securities Purchase Agreement, dated December
13, 2004, by and among the Company and the Investors (incorporated by reference
to Exhibit 10.1 to the Company's Current Report on Form 8-K, filed with the SEC
on December 14, 2004)
2. Amendment No. 1 to Amended and Restated Securities Purchase
Agreement, dated January 14, 2004, by and among the Company and the Investors
(incorporated by reference to Exhibit 10.6 to the Company's Current Report on
Form 8-K, filed with the SEC on January 21, 2005)
3. Form of Convertible Note (incorporated by reference to Exhibit 10.8
to the Company's Current Report on Form 8-K, filed with the SEC on January 21,
2005)
4. Indenture, dated as of January 14, 2005, between the Company and
the Trustee (incorporated by reference to Exhibit 10.7 to the Company's Current
Report on Form 8-K, filed with the SEC on January 21, 2005)
5. Form of Series A Warrant (incorporated by reference to Exhibit 10.4
to the Company's Current Report on Form 8-K, filed with the SEC on December 14,
2004)
6. Form of Series B Warrant (incorporated by reference to Exhibit 10.5
to the Company's Current Report on Form 8-K, filed with the SEC on December 14,
2004)
7. Form of Series C Warrant (incorporated by reference to Exhibit 10.6
to the Company's Current Report on Form 8-K, filed with the SEC on December 14,
2004)
8. Form of Series D Warrant (incorporated by reference to Exhibit 10.7
to the Company's Current Report on Form 8-K, filed with the SEC on December 14,
2004)
9. Credit Agreement, dated November 9, 2004, by and among the Company
and the Bridge Lenders (incorporated by reference to Exhibit 10.2 to the
Company's Current Report on Form 8-K, filed with the SEC on November 9, 2004)
10. First Amendment to Credit Agreement, dated as of January 14, 2005,
by and among the Company, the Bridge Lenders and the New Investors
(incorporated by reference to Exhibit 10.2 to the Company's Current Report on
Form 8-K, filed with the SEC on January 21, 2005)
11. Intercreditor and Lien Subordination Agreement, dated as of
November 9, 2004, by and among the Company, the Bridge Lenders and the
Company's senior lenders (incorporated by reference to Exhibit 10.13 to the
Company's Current Report on Form 8-K, filed with the SEC on November 9, 2004)
12. First Amendment to Intercreditor and Lien Subordination Agreement,
dated as of January 14, 2005, by and among the Company, the Bridge Lenders, the
New Investors and the Company's senior lenders (incorporated by reference to
Exhibit 10.3 to the Company's Current Report on Form 8-K, filed with the SEC on
January 21, 2005)
13. Amended and Restated Subordination Agreement, dated as of January
14, 2005, by and among the Investors and the Company's senior lenders
(incorporated by reference to Exhibit 10.4 to the Company's Current Report on
Form 8-K, filed with the SEC on January 21, 2005)
14. Bridge Subordination Agreement, dated as of January 14, 2005, by
and among the Company, the Investors (in their capacity as Investors) and the
Bridge Lenders and New Investors (in their capacity as lenders), (incorporated
by reference to Exhibit 10.6 to the Company's Current Report on Form 8-K, filed
with the SEC on January 21, 2005)
15. Amended and Restated Registration Rights Agreement, dated as of
December 13, 2004, by and among the Company and the Investors (incorporated by
reference to Exhibit 10.2 to the Company's Current Report on Form 8-K, filed
with the SEC on December 14, 2004)
16. Joint Filing Agreement, dated as of January 24, 2005, by and
between the Reporting Persons
Exhibit 16
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as
amended, the undersigned hereby agree to the joint filing on behalf of each of
them of a statement on Schedule 13D (including amendments thereto) with respect
to the Common Stock of The Wet Seal, Inc, and that this Agreement be included
as an Exhibit to such joint filing.
IN WITNESS WHEREOF, the undersigned hereby execute this Agreement this 24th day
of January, 2005.
GMM CAPITAL LLC
By: /s/ Isaac Dabah
------------------------------
Name: Isaac Dabah
Title: Executive Director
GMM TRUST
By: /s/ Isaac Dabah
------------------------------
Name: Isaac Dabah
Title: Trustee