Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
This Agreement (this "Agreement") is made as of June 9, 1998 by and
among Mothers Work, Inc. a Delaware corporation (the "Company"), and Xxxxxx
Investment Management, Inc. on behalf of the registered investment companies
identified below its name on the signature page hereof, The Xxxxxx Advisory
Company, Inc. on behalf of the institutional accounts identified below its name
on the signature page hereof, Xxxxxx Fiduciary Trust Company on behalf of the
registered investment and institutional account identified below its name on the
signature page hereof, CypressTree Investment Partners I, Ltd, Fidelity High
Yield Bond (Cayman Island) Trust, Fidelity Advisor World Global High Income
Fund, Variable Insurance Products Fund: High Income Portfolio, Fidelity Puritan
Trust: Fidelity Puritan Fund, Fidelity Advisor Series II: Fidelity Advisor
Balanced Fund and Variable Insurance Products Fund III: Balanced Portfolio, as
such registered investment companies, institutional accounts and portfolios are
holders (the "Xxxxxx and Fidelity Noteholders") of the Company's 12 5/8% Senior
Notes due 2005 (the "Notes") and each Holder who shall become a signatory hereto
by virtue of such Holder's consent pursuant to the terms of that certain Consent
Solicitation Statement dated May 28, 1998 relating to the Notes. In order to
induce the Xxxxxx and Fidelity Noteholders to consent to a proposed amendment to
the Indenture dated as of August 1, 1995 pertaining to the Notes, the Company
has agreed, pursuant to the terms of a letter agreement dated as of April 28,
1998 among the Company and the Xxxxxx and Fidelity Noteholders (a) to pay each
holder of any of the Notes who consents, under the terms of a consent
solicitation promptly to be commenced by the Company (the "Consent
Solicitation") to such amendment a fee consisting of a cash payment and certain
shares of the Company's common stock, par value $.01 per share, and (b) to
provide certain registration rights with respect to such shares as set forth in
this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and
obligations contained herein, the parties agree as follows:
1. Definitions.
1.1 "Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in New York, New York are
authorized or obligated by law or executive order to close.
1.2 "Commission" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act or the
Exchange Act.
1.3 "Common Stock" means the Common Stock, $.01 par value, of the
Company.
1.4 "Exchange Act" means the Securities Exchange Act of 1934 and the
rules and regulations of the Commission thereunder, and any successor to such
statute or such rules and regulations.
1.5 "Effectiveness Period" means the period commencing with the date
hereof and ending on the date that all Registrable Securities have ceased to be
Registrable Securities.
1.6 "Form S-1", "Form S-3", "Form S-4" and "Form S-8" mean respective
forms under the 1933 Act and any successor registration forms.
1.7 "Holder" means any person owning Registrable Securities or any
assignee thereof.
1.8 "Notice Holder" means each Holder who has given notice of
intention to distribute such Holder's Registrable Securities in accordance with
Section 2.4 hereof.
1.9 "Person" means any natural person or any corporation, association,
partnership, joint venture, limited liability, joint stock or other company,
business trust, trust or organization.
1.10 "Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
1.11 "Register", "registered", and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933, as amended (the
"1933 Act"), and the automatic effectiveness or the declaration or ordering of
effectiveness of such registration statement or document.
1.12 "Registrable Securities" means (i) any Common Stock issued or
issuable to each Person who consented under the terms of the Consent
Solicitation to the proposed amendment to the Indenture pertaining to the Notes
or (ii) any common stock or other securities issued or issuable with respect to
any Registrable Securities by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization or otherwise. Registrable Securities shall cease to be
Registrable Securities when (i) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such registration
statement or (ii) such securities are saleable by the holder thereof pursuant to
Rule 144 under the Securities Act. For purposes of this Agreement, the number of
shares of Registrable Securities outstanding at any time shall be determined by
adding the number of shares of Common Stock outstanding which are, and the
maximum number of shares of
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Common Stock issuable pursuant to then convertible or exercisable securities
which upon issuance would be, Registrable Securities.
1.13 "Registration Expenses" means all expenses incident to
performance of or compliance with Sections 2 and 3 hereof by the Company,
including without limitation all registration and filing fees, all listing fees,
all fees and expenses of complying with securities or blue sky laws, all
printing and automated document preparation expenses, all messenger and delivery
expenses, the fees and disbursements of counsel for the Company and of its
independent public accountants, including the expenses of any special audits
required by or incident to such performance and compliance, and the fees and
disbursements of one counsel for the Holders on whose behalf Registrable
Securities are being registered, but excluding applicable transfer taxes, if
any, which shall be borne by the sellers of the Registrable Securities in all
cases.
1.14 "Requisite Information" is defined in Section 2.4 hereof.
1.15 "Rule 144" means Rule 144 promulgated under the Securities Act,
and any successor rule or regulation thereto, and in the case of any referenced
section of such rule, any successor section thereto, collectively and as from
time to time amended and in effect.
1.16 "Securities Act" means the Securities Act of 1933 or any
successor federal statute, and the rules and regulations of the Commission
thereunder, and in the case of any referenced section of any such statute, rule
or regulation, any successor section thereto, collectively and as from time to
time amended and in effect.
2. Shelf Registration.
2.1 Registration Statement. The Company shall prepare and file with
the Commission, as soon as practicable but in any event on or prior to the date
thirty (30) days following the date of expiration of the solicitation period in
connection with the Consent Solicitation (the "Filing Date"), a Registration
Statement for an offering to be made on a continuous basis pursuant to Rule 415
of the Securities Act (a "Shelf Registration") registering the resale from time
to time by Holders thereof of all of the Registrable Securities (the "Initial
Shelf Registration"). The Initial Shelf Registration shall be on Form S-3 or
another appropriate form permitting registration of such Registrable Securities
for resale by the Holders in the manner or manners designated by them. The
Company shall use its best efforts to cause the Initial Shelf Registration
Statement to be declared effective under the Securities Act as soon as
practicable and keep the Initial Shelf Registration Statement continuously
effective under the Securities Act until the earlier of the expiration of the
Effectiveness Period or the date a Subsequent Shelf Registration, as defined
below, covering all of the Registrable Securities has been declared effective
under the Securities Act.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish the Company such information
regarding such seller and
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the distribution of such securities as the Company may from time to time
reasonably request in writing and which shall be required by the Securities Act
(or similar state laws) or by the Commission in connection therewith.
2.2 Withdrawal of Stop Orders; Subsequent Registration Statements. If
the Initial Shelf Registration or any Subsequent Shelf Registration, as defined
below, ceases to be effective for any reason as a result of the issuance of a
stop order by the Commission at any time during the Effectiveness Period, the
Company shall use its best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within fifteen (15)
days of such cessation of effectiveness amend the Shelf Registration in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration covering all of
the Registrable Securities (a "Subsequent Shelf Registration"). If a Subsequent
Shelf Registration is filed, the Company shall use its best efforts to cause the
Subsequent Shelf Registration to be declared effective as soon as practicable
after such filing and to keep such Registration Statement continuously effective
until the end of the Effectiveness Period.
2.3 Supplements and Amendments. The Company shall supplement and amend
the Shelf Registration if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration, if required by the Securities Act, or if reasonably requested by
the Holders of a majority of the Registrable Securities covered by such
Registration Statement.
At any time when the Prospectus is required to be delivered under the
Securities Act, the Company shall notify each Holder upon discovery that, or
upon the happening of any event as a result of which, the Prospectus, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, in the light of the circumstances under which they were
made, and shall promptly (and, in any event, no longer than five days after such
discovery or happening) prepare and furnish to it a reasonable number of copies
of a supplement to or an amendment of such Prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such securities, such
Prospectus shall not include 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 the light of the circumstances under which
they were made. Each Holder agrees that upon receipt of any notice from the
Company of the happening of any event of the kind described in the immediately
preceding sentence, it will forthwith discontinue its disposition of Shares
pursuant to the Registration Statement until its receipt of the copies of the
supplemented or amended Prospectus.
If the Company determines that the filing of any amendment or
supplement would require disclosure of any information which would, in the good
faith determination of the Company's Board of Directors, materially adversely
impact any active negotiations or planning for a proposed or pending, material,
public or private financing, merger, stock or asset acquisition or
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sale of all or substantially all of the Company's assets, then the Company may
defer the filing of such amendment or supplement until it determines in good
faith that no material adverse impact would result, but in no event longer than
30 days during the Effectiveness Period. In such event, the Company shall notify
the Holders that although an amendment or supplement is required to be filed,
the Company is deferring the filing of the required amendment or supplement
pursuant to this Section 2.3 (and shall, on receipt of a Holder's written
request, deliver a copy of the resolution of the Board of Directors of the
Company to such effect to such Holder), and the Holders shall thereafter refrain
from making any further offers of sales of Shares pursuant to the Prospectus
until the earlier of (i) 30 days after such deferral notification, (ii) public
disclosure of such pending material corporate development or (iii) notice from
the Company of its determination that no material adverse impact would result
from such disclosure.
2.4 Sales by Holders under the Registration Statement. Each Holder of
Registrable Securities agrees that if such Holder wishes to sell its Registrable
Securities pursuant to a Shelf Registration and related Prospectus, it will do
so only in accordance with this Section 2.4. Each Holder of Registrable
Securities agrees to give written notice to the Company at least five Business
Days prior to any intended distribution of Registrable Securities under the
Shelf Registration, which notice shall provide such information with respect to
such Holder and the intended distribution of Registrable Securities by such
Holder as may be required to amend the Registration Statement or supplement the
related Prospectus with respect to such intended distribution of Registrable
Securities by such Holder (the "Requisite Information"). In the event the Holder
fails to provide the Requisite Information in its initial notice of its
intention to distribute the Registrable Securities pursuant to the Registration
Statement, the Company will promptly request such Holder to provide such
Requisite Information. As soon as practicable after the date such notice and
Requisite Information is provided, and in any event within six Business Days
after such date, the Company shall:
(i) If necessary, prepare and file with the Commission a
post-effective amendment to the Shelf Registration or a supplement to
the related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required document
so that such Registration Statement will not 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 so that, as thereafter delivered to purchasers of the
Registrable Securities being sold thereunder, such Prospectus will
comply in all material respects with the rules and requirements under
the Securities Act and will not 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 light of the
circumstances under which they were made, not misleading;
(ii) provide each Notice Holder copies of any documents filed pursuant
to Section 2.4(i); and
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(iii) inform each Notice Holder that the Company has complied with its
obligations in Section 2.4(i) (or that, if the Company has filed a
post-effective amendment to the Shelf Registration which has not yet
been declared effective, the Company will notify the Notice Holder to
that effect, will use its reasonable efforts to secure the
effectiveness of such post-effective amendment and will promptly
notify the Notice Holder when the amendment has become effective).
3. Registration Procedures. In connection with the Company's registration
obligations under Section 2 hereof, the Company shall effect such registrations
to permit the sale of the Registrable Securities in accordance with the intended
method or methods of disposition thereof, and pursuant thereto the Company shall
as expeditiously as possible:
3.1 Registration Statement. Prepare and file with the Commission a
Registration Statement or Registration Statements on any appropriate form under
the Securities Act available for the sale of the Registrable Securities by the
Holders thereof in accordance with the intended method or methods of
distribution thereof, and use its best efforts to cause each such Registration
Statement to become effective and remain effective as provided herein; provided,
that before filing any such Registration Statement or Prospectus or any
amendments or supplements thereto (other than documents that would be
incorporated or deemed to be incorporated therein by reference and that the
Company is required by applicable securities laws or stock exchange requirements
to file) the Company shall furnish to each Holder named in such Registration
Statement, Prospectus, supplement or amendment copies of all such documents
proposed to be filed, which documents will be subject to the review of such
Holder, and the Company shall not file any such Registration Statement or
amendment thereto or any Prospectus or any supplement thereto (other than such
documents which, upon filing, would be incorporated or deemed to be incorporated
by reference therein and that the Company is required by applicable securities
laws or stock exchange requirements to file) to which any such Holder shall
reasonably object in writing within two full Business Days.
3.2 Amendments and Supplements to Registration Statement. Prepare and
file with the Commission such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such Registration Statement
continuously effective for the applicable period specified in Section 2; cause
the related Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) under the Securities Act; and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement and Prospectus during the
applicable period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Registration Statement as so amended or such
Prospectus as so supplemented.
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3.3 Cooperation. Use its best efforts to cooperate with the Holder in
the disposition of the Common Stock covered by such registration statement.
3.4 Furnishing of Copies of Registration Statements and Other
Documents. Furnish to each seller of such Registrable Securities such number of
conformed copies of such registration statement, Prospectus and of each such
amendment and supplement thereto (in each case including all exhibits, except
that the Company shall not be obligated to furnish any such seller with more
than two copies of such exhibits other than incorporated documents), such number
of copies of the prospectus included in such registration statement (including
each preliminary prospectus and any summary prospectus), each in conformity with
the requirements of the Securities Act, such documents incorporated by reference
in such registration statement or prospectus and such other documents as such
seller may reasonably request in order to facilitate the disposition of its
Registrable Securities covered by such registration statement.
3.5 State Securities Laws. Use its best efforts to register or qualify
such Registrable Securities under such securities or blue sky laws of such
jurisdictions as the sellers shall reasonably request, and do any and all other
acts and things which may be necessary or advisable to enable each seller to
consummate the disposition in such jurisdictions of its Registrable Securities
covered by such registration statement; provided, however, that the Company
shall not be obligated to file any general consent to service of process or to
qualify as a foreign corporation or subject the Company to taxation in any
jurisdiction in which it is not so qualified.
3.6 Notification. Immediately notify each seller of Registrable
Securities covered by such registration statement, (i) when a Prospectus, any
Prospectus supplement, a Registration Statement or a post-effective amendment to
a Registration Statement has been filed with the Commission, and, with respect
to a Registration Statement or any post-effective amendment, when the same has
become effective, (ii) of any request by the Commission or any other federal or
state governmental authority for amendments or supplements to a Registration
Statement or related Prospectus or for additional information, (iii) of the
suspension of the effectiveness of a Registration Statement or the initiation or
threatening of any proceedings for that purpose, (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose, and (v) 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 any material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing, and at the request
of any such seller prepare and furnish to such seller a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be necessary
so that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not include 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 the light of the circumstances
then existing.
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3.7 General Compliance with Federal Securities Laws; Section 11(a)
Earning Statement. Otherwise use its best efforts to comply with the Securities
Act, the Exchange Act and any other applicable rules and regulations of the
Commission, and make available to its securities holders, as soon as reasonably
practicable, an earning statement covering the period of at least 12 months
after the effective date of such registration statement, which earning statement
shall satisfy Section 11(a) of the Securities Act and any applicable regulations
thereunder, including Rule 158.
3.8 Exchange Listing. Use its best efforts to list such Registrable
Securities on each securities exchange on which any equity security of the
Company is then listed, if such securities are not already so listed.
3.9 Transfer Agent. Provide a transfer agent and registrar for all
such Registrable Securities not later than the effective date of such
registration statement.
3.10 Participation by Selling Security Holders. In connection with the
preparation and filing of each registration statement registering Registrable
Securities under the Securities Act, and before filing any such registration
statement or any other document in connection therewith, give the Xxxxxx and
Fidelity Noteholders, and, to the extent that any other Holder is named therein,
such Holder, and their respective counsel and accountants, the opportunity to
participate in the preparation of such registration statement, each prospectus
included therein or filed with the Commission, each amendment thereof or
supplement thereto or other document to be filed and give each of the
aforementioned Persons such access to its books and records (the "Records") and
such opportunities to discuss the business of the Company with its officers and
the independent public accountants who have certified its financial statements
as shall be reasonably necessary, in the opinion of such Holders, counsel or
accountants, to conduct a reasonable investigation within the meaning of the
Securities Act; provided that such Holders will use reasonable efforts to
coordinate the inspection of such Holders' counsel and accountants so as to
minimize any disruption to the business of the Company. Records which the
Company determines, in good faith, to be confidential and which it notifies such
requesting Holder are confidential shall not be disclosed to such Holder unless
(i) in the reasonably judgment of counsel to the Company the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in such
registration statement or (ii) the release of such Records is ordered pursuant
to subpoena or other order from a court of competent jurisdiction. Each Holder
agrees that information obtained by such Holder as a result of such inspections
shall be deemed confidential, shall not be disclosed to third parties and shall
not be used by such Holder as the basis for any transactions in the securities
of the Company, unless and until such information (a) is made generally
available to the public; or (b) is required to be disclosed by judicial process.
Each Holder further agrees that such Holder shall not engage in any transaction
in the securities of the Company while in the possession of material non-public
information where such transaction may violate applicable securities laws.
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3.11 Obtaining Withdrawal of Stop Orders. Use its best efforts to
obtain the withdrawal of any order suspending the effectiveness of a
Registration Statement, or the lifting of any suspension of the qualification
(or exemption for qualification) of any of the Registrable Securities for sale
in any jurisdiction, at the earliest possible moment.
3.12 NASD Filings. Cooperate and assist in any filings required to be
made with the National Association of Securities Dealers, Inc.
4. Payment of Expenses. The Company hereby agrees to pay all Registration
Expenses in connection with all registrations effected pursuant to Section 2.
5. Indemnification and Contribution.
5.1 Indemnities of the Company and the Issuer. In the event of any
registration of any Registrable Securities under the Securities Act pursuant to
Section 2 hereof, the Company will, and hereby does, indemnify and hold harmless
each Holder and each seller of Registrable Securities, their respective
partners, directors and officers, and each other Person, if any, who controls
any such Holder or seller within the meaning of Section 15 of the Securities Act
(each such Person being referred to herein as a "Covered Person"), against any
losses, claims, damages or liabilities, joint or several, to which such Covered
Person may be or become subject under the Securities Act, the Exchange Act, any
other securities or other law of any jurisdiction, common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained or
incorporated by reference in any registration statement under the Securities
Act, any preliminary prospectus or final prospectus included therein, or any
related summary prospectus, or any amendment or supplement thereto, or any
document incorporated by reference therein, or (ii) any 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 such
Covered Person for any legal or any other expenses incurred by it in connection
with investigating or defending any such loss, claim, damage, liability, action
or proceeding; provided, however, that the Company shall not be liable to any
Covered Person in any such case for any such loss, claim, damage, liability,
action or proceeding (i) to the extent that it arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement or incorporated
document, in reliance upon and in conformity with written information furnished
to the Company or on behalf of such Covered Person expressly for inclusion
therein or (ii) in the case of a sale directly by a Holder of Registrable
Securities (including a sale of such Registrable Securities through any
underwriter retained by such Holder engaging in a distribution solely on behalf
of such Holder), such untrue statement or alleged untrue statement or omission
or alleged omission was contained in a preliminary prospectus and corrected in a
final or amended prospectus, and such Holder failed to deliver a copy of the
final or amended prospectus at or prior to the confirmation of the sale of the
Registrable Securities to the person asserting any such
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loss, claim, damage or liability in any case in which such delivery is required
by the Securities Act. The indemnities of the Company contained in this Section
6 shall remain in full force and effect regardless of any investigation made by
or on behalf of such Covered Person and shall survive any transfer of
Registrable Securities.
5.2 Indemnities to the Company. In the event of any registration of
Registrable Securities pursuant to Section 2 or 3, each selling Holder will, and
hereby does, indemnify and hold harmless (in the same manner and to the same
extent as set forth in Section 5.1 hereof) the Company, each director of the
Company, each officer of the Company who shall sign such registration statement
and each other Person (other than such seller), if any, who controls the Company
within the meaning of Section 15 of the Securities Act, with respect to any
statement in or omission from such registration statement, any preliminary
prospectus or final prospectus included therein, or any amendment or supplement
thereto, or any document incorporated therein, if such statement or omission was
made in reliance upon and in conformity with written information furnished to
the Company by or on behalf of such seller expressly for inclusion therein,
provided that the Holder shall not be liable to the Company in any case in which
such untrue statement or alleged untrue statement or omission or alleged
omission was contained in a preliminary prospectus and corrected in a final or
amended prospectus, and the Company failed to deliver a copy of the final or
amended prospectus at or prior to the confirmation of the sale of the securities
to the person asserting any such loss, claim, damage or liability in any case in
which such delivery is required by the Securities Act. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Company or any such director, officer or controlling Person and
shall survive any transfer of Registrable Securities.
5.3 Indemnification Procedures. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim of the type referred to in the foregoing provisions of this
Section 5, such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party, give written notice to each such
indemnifying party of the commencement of such action; provided, however, that
the failure of any indemnified party to give notice to such indemnifying party
as provided herein shall not relieve such indemnifying party of its obligations
under the foregoing provisions of this Section 6, except and solely to the
extent that such indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
each indemnifying party will be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly notified,
to the extent that it may wish, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to such an indemnifying party), and after notice from an
indemnifying party to such indemnified party of its election so to assume the
defense thereof, such indemnifying party will not be liable to such indemnified
party for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof; provided, however, that (i) if the
indemnified party reasonably determines that there may be a conflict between the
positions of such indemnifying party and the indemnified party in conducting the
defense of such action or that there may be defenses available to such
indemnified party different from or in addition to those
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available to such indemnifying party, then counsel for the indemnified party
shall conduct the defense to the extent reasonably determined by such counsel to
be necessary to protect the interests of the indemnified party and such
indemnifying party shall employ separate counsel for its own defense, (ii) in
any event, the indemnified party shall be entitled to have counsel chosen by
such indemnified party participate in, but not conduct, the defense and (iii)
the indemnifying party shall bear the legal expenses incurred in connection with
the conduct of, and the participation in, the defense as referred to in clauses
(i) and (ii) above. If, within a reasonable time after receipt of the notice,
such indemnifying party shall not have elected to assume the defense of the
action, such indemnifying party shall be responsible for any legal or other
expenses incurred by such indemnified party in connection with the defense of
the action, suit, investigation, inquiry or proceeding. No indemnifying party
will 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.
5.4 Contribution. If the indemnification provided for in Sections 5.1
or 5.2 hereof is unavailable to a party that would have been an indemnified
party under any such Section in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each party that would have been an indemnifying party thereunder shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative fault of such indemnifying party on the
one hand and such indemnified party on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof). The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such indemnifying
party or such indemnified party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The parties agree that it would not be just and equitable if
contribution pursuant to this Section 5.4 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the preceding sentence. The amount paid
or payable by a contributing party as a result of the losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to above in
this Section 5.4 shall include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
5.5 Limitation on Liability of Holders of Registrable Securities. The
liability of each Holder in respect of any indemnification or contribution
obligation of such holder arising under this Section 5 shall not in any event
exceed an amount equal to the net proceeds to such Holder (after deduction of
all underwriters' discounts and commissions and all other expenses paid by
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such Holder in connection with the registration in question) from the
disposition of the Registrable Securities disposed of by such Holder pursuant to
such registration.
6. Reports Under Securities Exchange Act of 1934. With a view to making
available to the Holders the benefits of Rule 144 promulgated under the 1933 Act
("Rule 144") and any other rule or regulation of the Commission that may at any
time permit a Holder to sell securities of the Company to the public without
registration, and with a view to making it possible for Holders to register the
Registrable Securities pursuant to a registration on Form S-3, the Company
agrees to:
(a) use its best efforts to make and keep public information
available, as those terms are understood and defined in Rule 144, at
all times;
(b) take such action as will permit Holders to use Form S-3
for the sale of their Registrable Securities;
(c) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company
under the 1933 Act and the 1934 Act; and
(d) furnish to any Holder forthwith upon request (1) a
written statement by the Company as to its compliance with the
reporting requirements of Rule 144, the 1933 Act and the 1934 Act or
as to its qualification as a registrant whose securities may be resold
pursuant to Form S-3, (2) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents
so filed by the Company, and (3) such other information as may be
reasonably requested in availing any Holder of any rule or regulation
of the Commission which permits the selling of any such securities
without registration or pursuant to such form.
7. Assignment of Registration Rights. The rights to cause the Company to
register Registrable Securities pursuant to Section 2 may be assigned by any
Holder to a transferee, and by such transferee to a subsequent transferee. Any
transferee to whom rights under this Agreement are transferred shall (i) be
bound by the obligations imposed upon Holders under this Agreement to the same
extent as if such transferee were a Holder under this Agreement and (ii) be
deemed to be a Holder hereunder.
8. Third Party Beneficiaries. The Company expressly acknowledges and agrees that
this Agreement is intended for the benefit of the Holders and their respective
successors and assigns.
9. Future Changes in Registration Requirements. In the event that the
registration requirements under the Securities Act are amended or eliminated to
accommodate a "Company registration" or similar approach, this Agreement shall
be deemed amended to the extent necessary to reflect such changes and the intent
of the parties hereto with respect to the benefits and obligations of
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the parties, and in such connection, the Company shall use reasonable efforts to
provide Holders of Registrable Securities equivalent benefits to those provided
under this Agreement.
10. Notices. All notices, requests, consents and demands shall be in writing and
shall be personally delivered, mailed, postage prepaid, telecopied or
telegraphed or delivered by any nationally recognized overnight delivery service
to the Company at:
Mothers Work, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxx, Chief Financial Officer
Fax No: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxxx LLP
3000 Two Xxxxx Square
Eighteenth and Arch Streets
Philadelphia, PA 19103-2799
Attn: Xxxx Xxxxxxxx III, Esq.
Fax No.: (000) 000-0000
and to the Xxxxxx and Fidelity Noteholders:
XXXXXX INVESTMENT MANAGEMENT
Xxx Xxxx Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
Fax No.: (000) 000-0000
FIDELITY INVESTMENTS
Fidelity Management and Research Company
00 Xxxxxxxxxx Xxxxxx
X00X
Xxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxx
Fax No.: (000) 000-0000
with a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
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Attn: Xxxxxx X. Xxxx, Esq.
Fax No.: (000) 000-0000
to each other Holder at the most current address given by the Holder to the
Company
or such other address as may be furnished in writing to the other parties
hereto. All such notices, requests, demands and other communication shall, when
mailed (registered or certified mail, return receipt requested, postage
prepaid), personally delivered, or telegraphed, be effective four days after
deposit in the mails, when personally delivered, or when delivered to the
telegraph company, respectively, addressed as aforesaid, unless otherwise
provided herein and, when telecopied or delivered by any nationally recognized
overnight delivery service, shall be effective upon actual receipt.
11. Entire Agreement. This Agreement constitutes the entire understanding of the
parties with respect to the subject matter hereof and thereof and supersede any
and all prior understandings and agreements, whether written or oral, with
respect to such subject matter.
12. Amendments, Waivers and Consents. Any provision in this Agreement may be
made, and the observance thereof may be waived, if the Company (a) shall obtain
consent thereto in writing from persons holding a majority of the Registrable
Securities then outstanding and (b) shall deliver copies of such consent to any
Holders who did not execute the same; provided, however, that, without a
Holder's consent, any such amendment or waiver shall not treat such Holder
differently from any other Holder.
13. Binding Effect; Assignment. This Agreement shall be binding upon and inure
to the benefit of the personal representatives, successors and assigns of the
respective parties hereto. Notwithstanding the foregoing sentence, the Company
shall not have the right to assign its obligations hereunder or any interest
herein without obtaining the prior written consent of the Holders holding a
majority of the Registrable Securities then outstanding, provided in accordance
with Section 12.
14. Remedies. In the event of a breach by the Company of its obligations under
this Agreement, each Holder of Registrable Securities, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
15. General. The headings contained in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement. This Agreement shall be governed by and construed in accordance with
the laws of the state of Delaware.
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16. Severability. If any provision of this Agreement shall be found by any court
of competent jurisdiction to be invalid or unenforceable, the parties hereby
waive such provision to the extent that it is found to be invalid or
unenforceable. Such provision shall, to the maximum extent allowable by law, be
modified by such court so that it becomes enforceable, and, as modified, shall
be enforced as any other provision hereof, all the other provisions hereof
continuing in full force and effect.
17. Counterparts. This Agreement may be executed (including by facsimile) in
counterparts, all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the Company and the Advisors have executed this
Agreement as of the date and year first above written.
[Corporate Seal] COMPANY:
MOTHERS WORK, INC.
By: /s/ Xxxxxx Xxxxx
-------------------------------
Title: Chief Financial Officer
Xxxxxx Investment Management, Inc. on behalf of:
Xxxxxx Balanced Retirement Fund
Xxxxxx Convertible Opportunities and Income Trust
Xxxxxx Diversified Income Trust
Xxxxxx Equity Income Fund
Xxxxxx Funds Trust-Xxxxxx High Yield Trust II
The Xxxxxx Xxxxxx Fund of Boston
Xxxxxx High Income Convertible and Bond Fund
Xxxxxx High Yield Advantage Fund
Xxxxxx High Yield Trust
Xxxxxx Income Fund
Putnam Managed High Yield Trust
Xxxxxx Master Income Trust
Xxxxxx Master Intermediate Income Trust
Xxxxxx Premier Income Trust
Xxxxxx Strategic Income Fund
Xxxxxx Variable Trust-PVT Diversified Income Fund
Xxxxxx Variable Trust-PVT High Yield Fund
Travelers Series Fund Inc.-Xxxxxx Diversified Income Portfolio
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
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The Xxxxxx Advisory Company, Inc. on behalf of:
Xxxxxx Offshore Funds (Cayman) Ltd. - Xxxxxx Diversified
Income Fund
Xxxx Xxxxxx Cancer Institute
Employees' Retirement Plan of Agway, Inc.
Xxxxxx Laboratories Annuity Retirement Plan
Ameritech Corporation Pension Plan
Mobil Oil Corporation Retirement Plans
CBO Limited I
CBO Limited II
By: /s/ Xxxx X. Xxxxxx
----------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
Xxxxxx Fiduciary Trust Company on behalf of:
Xxxxxx High Yield Managed Trust
Xxxxxx High Yield Fixed Income Fund, LLC
By: /s/ Xxxx X. Xxxxxx
-------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
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FIDELITY ADVISOR SERIES II:
Fidelity Advisor Balanced Fund
By: /s/ Xxxx Xxxxxxxx
---------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Treasurer
VARIABLE INSURANCE PRODUCTS FUND III:
Balanced Portfolio
By: /s/ Xxxx Xxxxxxxx
---------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Treasurer
CYPRESS TREE INVESTMENT PARTNERS I, LTD
By: /s/ Xxxxx Xxxxxxx
---------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
FIDELITY HIGH YIELD BOND (CAYMAN ISLAND)
TRUST
By: /s/ Xxxxx Xxxxxxx
---------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
VARIABLE INSURANCE PRODUCTS FUND:
High Income Portfolio
By: /s/ Xxxx Xxxxxxxx
---------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Treasurer
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FIDELITY PURITAN TRUST:
Fidelity Puritan Fund
By: /s/ Xxxx Xxxxxxxx
---------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Treasurer
FIDELITY ADVISOR WORLD GLOBAL HIGH
INCOME FUND
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
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