REGISTRATION RIGHTS AGREEMENT
Exhibit
10.1
THIS REGISTRATION RIGHTS AGREEMENT, dated as of May
18, 2009 (the “Agreement”), is made by and between X. X. XXXXXX COMPANY, INC., a
Delaware corporation, having an office at 0000 Xxxxxx Xxxxx, Xxxxx, Xxxxx 00000
(the “Company”), and EVERCORE TRUST COMPANY, N.A., solely in its capacity as
duly appointed and acting investment manager (the “Manager”) of a segregated
account held in the X. X. PENNEY CORPORATION, INC. PENSION PLAN TRUST (the
“Trust”) created under the X. X. XXXXXX CORPORATION, INC. PENSION PLAN (the
“Plan”).
RECITALS
WHEREAS, the Company has
agreed to contribute an aggregate of 13,388,673 shares (the “Registrable Shares”),
of its Common Stock of 50¢ par value (“Common Stock”) to the Trust (the
“Contribution”); and
WHEREAS, the Registrable
Shares immediately following such Contribution will be held in a single
segregated account in the Trust (the “Segregated Account”); and
WHEREAS, pursuant to the
Investment Management Agreement, dated as of May 18, 2009, among the Manager,
the Benefit Plans Investment Committee (the “Committee”) of X. X.
Penney Corporation, Inc. (“JCPenney”), and JCPenney (the “Investment Management
Agreement”), the Manager has been appointed as a “fiduciary” of the
Trust, as defined in Section 3(21) of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”), but only to
the extent of the assets in the Segregated Account, with the authority to act on
behalf of the Trust with respect to all assets held in the Segregated Account;
and
WHEREAS, the Company has
agreed to grant certain registration rights with respect to the Registrable
Shares held in the Segregated Account, on the terms and subject to the
conditions set forth in this Agreement; and
WHEREAS, pursuant to the
Investment Management Agreement, the Manager has full power and authority to
execute and deliver this Agreement for the benefit of the Trust and to take any
actions required or permitted to be taken in connection with this
Agreement.
NOW, THEREFORE, in
consideration of the premises and mutual promises set forth herein, the parties
hereto hereby agree as follows:
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1.
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Registration;
Compliance With the Securities
Act.
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1.1 Registration Procedures and
Expenses. The Company hereby agrees that it
shall:
(a) prepare
and file with the Securities and Exchange Commission (the “SEC”), as soon as
reasonably practicable after the date of the Contribution, but in no event more
than 30 days after the Contribution, a shelf registration statement on Form S-3
covering the Registrable Shares, except to the extent it has an existing shelf
registration statement covering the Common Stock which may be used for the
purposes contemplated herein (such new or existing registration statement and
any successor registration statement filed under the Securities Act of 1933, as
amended (the “Securities Act”),
hereinafter referred to as the “Registration
Statement”), to enable the Manager to sell the Registrable Shares from
time to time in the manner contemplated by the plan of distribution set forth in
the Registration Statement, as amended by any prospectus supplement or
post-effective amendment thereto, and use its reasonable commercial efforts to
cause such Registration Statement, if not effective on the date of the
Contribution, to be declared effective as promptly as reasonably possible after
filing and to remain continuously effective until the earlier of (i) the date on
which all Registrable Shares are sold and (ii) the date which is 90 days after
the date on which the number of Registrable Shares held by the Trust is less
than one percent of the shares of Common Stock then outstanding (the “Registration
Period”); provided, however, that it
shall not be required to file such Registration Statement or cause such
Registration Statement to be declared effective during the pendency of any
suspension period pursuant to Sections 1.2(c) or (d)
below;
(b) prepare
and file with the SEC such amendments (including post-effective amendments) and
supplements to the Registration Statement and the prospectus filed with the SEC
pursuant to Rule 424(b) under the Securities Act, or if no such filing is
required, as included in the Registration Statement (the “Prospectus”), as may
be necessary to keep the Registration Statement effective at all times until the
end of the Registration Period; provided, however, that it
shall not be required to file any such amendment or prospectus supplement during
the pendency of any suspension period pursuant to Sections 1.2(c) or
(d)
below;
(c) furnish
the Manager with such reasonable number of copies of the Prospectus in
conformity with the requirements of the Securities Act, and such other documents
as the Manager may reasonably request, in order to facilitate the public sale or
other disposition of all or any of the Registrable Shares by the
Manager;
(d) use
its reasonable commercial efforts to file documents required of the Company for
normal blue sky clearance in such states as the Manager shall reasonably
designate in writing; provided, however, that the
Company shall not be required to qualify to do business or consent to service of
process in any jurisdiction in which it is not now so qualified or has not so
consented;
(e) use
its reasonable commercial efforts to cause the Registrable Shares to be listed
on the New York Stock Exchange (the “NYSE”) as soon as
reasonably practicable after the date of the Contribution; and
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(f) bear
all expenses in connection with the actions contemplated by paragraphs (a)
through (e) of
this Section
1.1 and the registration of the Registrable Shares pursuant to the
Registration Statement, including reasonable fees and expenses of legal counsel
to the Manager incurred in connection with the registration and sale of the
Registrable Shares, such fees and expenses of legal counsel not to exceed
$30,000 in the aggregate, but excluding underwriting discounts, brokerage fees
and commissions incurred by the Manager, the Trust or the Plan, if
any.
It
shall be a condition precedent to the obligations of the Company to take any
action pursuant to this Section 1.1 that the
Manager shall provide such reasonable assistance to the Company and furnish, or
cause to be furnished, to the Company in writing such information regarding the
Manager, the Registrable Shares to be sold, and the intended method or methods
of disposition of the Registrable Shares, as shall be required to effect the
registration of the Registrable Shares and as may be required from time to time
under the Securities Act and the rules and regulations thereunder.
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1.2
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Transfer of
Registrable Shares After Registration;
Suspension.
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(a) The
Manager agrees that it will not offer to sell or make any sale, assignment,
pledge, hypothecation or other transfer with respect to the Registrable Shares
that would constitute a sale within the meaning of the Securities Act except
pursuant to either (i) the Registration Statement referred to in Section 1.1, or (ii)
Rule 144 under the Securities Act or any successor rule thereto (as such rule
may be amended from time to time, “Rule 144”), and that
it will promptly notify the Company of any changes in the information set forth
in the Registration Statement regarding the Manager or the intended plan of
distribution of the Registrable Shares to the extent required by applicable
securities laws.
(b) The
Manager and the Company agree that the Registrable Shares may be sold in one or
more privately-negotiated block trades; provided, however, that no such
block trade may exceed 500,000 shares and provided further that no more
than one privately-negotiated block sale may be made to a single purchaser or
affiliates of such purchaser within a twelve-month period.
(c) In
addition to any suspension rights under paragraph (d) below,
the Company may, upon the happening of any event that, in the judgment of the
Company’s legal counsel, renders advisable the suspension of the disposition of
Registrable Shares covered by the Registration Statement or use of the
Prospectus due to pending corporate developments, public filings with the SEC or
similar events, suspend the disposition of Registrable Shares covered by the
Registration Statement or use of the Prospectus for a period of not more than
ninety (90) days on written notice to the Manager (which notice will not
disclose the content of any material non-public information and will indicate
the date of the beginning and end of the intended suspension, if known), in
which case the Manager, upon receipt of such written notice, shall discontinue
(or cause the Trust to discontinue) disposition of Registrable Shares covered by
the Registration Statement or use of the Prospectus until copies of a
supplemented or amended Prospectus are
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distributed
to the Manager or until the Manager is advised in writing by the Company that
the disposition of Registrable Shares covered by the Registration Statement or
use of the applicable Prospectus may be resumed; provided, that such
right to suspend the disposition of Registrable Shares covered by the
Registration Statement or use of the Prospectus shall not be exercised by the
Company for more than one hundred twenty (120) days in any twelve-month
period. The suspension and notice thereof described in this Section 1.2(c) shall
be held in confidence and not disclosed by the Manager, except as required by
law.
(d) Subject
to paragraph
(e) below, in the event of: (i) any request by the SEC or any
other federal or state governmental authority during the period of effectiveness
of the Registration Statement for amendments or supplements to a Registration
Statement or related Prospectus or for additional information; (ii) the issuance
by the SEC or any other federal or state governmental authority of any stop
order suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose; (iii) 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 Shares for sale in any jurisdiction
or the initiation of any proceedings for such purpose; or (iv) any event or
circumstance that necessitates the making of any changes in the Registration
Statement or Prospectus, or any document incorporated or deemed to be
incorporated therein by reference, so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of the Prospectus, it
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, then the Company shall deliver a certificate in writing to the
Manager (the “Suspension Notice”)
to the effect of the foregoing (which notice will not disclose the content of
any material non-public information and will indicate the date of the beginning
and end of the intended suspension, if known), and, upon receipt of such
Suspension Notice, the Manager will refrain (or cause the Trust to refrain) from
selling any Registrable Shares pursuant to the Registration Statement (a “Suspension”) until
the Manager’s receipt of copies of a supplemented or amended Prospectus prepared
and filed by the Company, or until it is advised in writing by the Company that
the current Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by reference
in any such Prospectus. In the event of any Suspension, the Company
will use its reasonable commercial efforts to cause the use of the Prospectus so
suspended to be resumed as soon as possible after delivery of a Suspension
Notice to the Manager. The Suspension and Suspension Notice described
in this Section
1.2(d) shall be held in confidence and not disclosed by the Manager,
except as required by law.
(e) The
Manager may sell Registrable Shares under the Registration Statement provided
that neither a Suspension nor a suspended disposition under Section 1.2(c) hereof
is then in effect, the Manager sells in accordance with the plan of distribution
in the Prospectus, and the Manager arranges for delivery of a current
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Prospectus
to any transferee receiving such Registrable Shares in compliance with the
Prospectus delivery requirements of the Securities Act.
1.3
Indemnification. For
the purpose of this Section 1.3, the term
“Registration
Statement” shall include any preliminary or final Prospectus, exhibit,
supplement or amendment included in or relating to the Registration Statement
referred to in Section
1.1.
(a) Indemnification by the
Company. The Company agrees to indemnify and hold harmless the
Manager (including, for purposes of this Section 1.3, the
officers, directors, employees and agents of the Manager), and each person, if
any, who controls the Manager within the meaning of either Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended
(the “Exchange
Act”), from and against any and all losses, claims, damages, liabilities
or expenses, joint or several, to which the Manager or such controlling person
may become subject under the Securities Act, the Exchange Act, or any other
federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected with
the written consent of the Company, which consent shall not be unreasonably
withheld or delayed), only to the extent such losses, claims, damages,
liabilities or expenses (or actions in respect thereof as contemplated below)
arise out of or are based upon (i) any failure on the part of the Company to
comply with the covenants and agreements contained in this Agreement, or (ii)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state in any of them a material fact required to be stated therein or necessary
to make the statements in any of them, in light of the circumstances under which
they were made, not misleading, and will reimburse the Manager and each such
controlling person for any legal and other expenses as such expenses are
reasonably incurred by the Manager or such controlling person in connection with
investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage, liability or expense arises out of or is based upon (i) an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, the Prospectus or any amendment or supplement of the
Registration Statement or Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by the Manager, (ii) any untrue
statement or omission of a material fact required to make such statement not
misleading in any Prospectus that is corrected in any subsequent Prospectus that
was delivered to the Manager before the pertinent sale or sales by the Manager,
or (iii) any untrue statement or alleged untrue statement or omission or alleged
omission in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, when used or distributed by the Manager during a period in
which the disposition of Registrable Shares is properly suspended under Section 1.2(c) or a
Suspension is properly in effect under Section
1.2(d). The Manager hereby agrees that if the Manager or any
of its controlling persons is not entitled to indemnification for any loss,
claim, damage, liability or expense pursuant to this Section 1.3(a) as a result
of Section 1.3(a)(i), (ii) or
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(iii)
above, then neither the Manager nor any of its controlling persons shall be
entitled to indemnification for such loss, claim, damage, liability or expense
pursuant to the terms of the indemnification provisions set forth in the
Investment Management Agreement or that certain engagement letter dated May 5,
2009 among JCPenney, the Manager and the Committee.
(b) Indemnification by the
Manager. To the extent permitted by applicable law, the
Manager will indemnify and hold harmless the Company, the Benefit Plans
Investment Committee of JCPenney, JCPenney, each of the Company’s and JCPenney’s
directors, each of the Company’s and JCPenney’s officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act (the “JCPenney Indemnitees”), from and against any and all losses,
claims, damages, liabilities or expenses to which the JCPenney Indemnitees may
become subject under the Securities Act, the Exchange Act, or any other federal
or state statutory law or regulation, or at common law or otherwise (including
in settlement of any litigation, if such settlement is effected with the written
consent of the Manager, which consent shall not be unreasonably withheld or
delayed) only to the extent such losses, claims, damages, liabilities or
expenses (or actions in respect thereof as contemplated below) arise out of or
are based upon (i) any failure on the part of the Manager to comply with the
covenants and agreements contained in this Agreement respecting the sale of the
Registrable Shares, or (ii) any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, the Prospectus, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state in any of them a material fact required to
be stated therein or necessary to make the statements in any of them not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in the Registration Statement, the Prospectus, or any amendment or supplement
thereto, in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of the Manager, and the Manager will
reimburse the JCPenney Indemnitees for any legal and other expenses as such
expenses are reasonably incurred by the JCPenney Indemnitees in connection with
investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action; provided, however, that the
Manager shall not be liable for any such untrue statement or alleged untrue
statement or omission or alleged omission with respect to which the Manager has
delivered to the Company in writing a correction before the occurrence of the
transaction from which such loss was incurred. In no event shall the
liability of the Manager under this Section 1.3 be
greater than the aggregate fees received by the Manager pursuant to the
Investment Management Agreement.
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(c)
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Indemnification
Procedure.
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(i) Promptly
after receipt by an indemnified party under this Section 1.3 of
written notice of the threat or commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party under this Section 1.3, promptly
notify the indemnifying party in writing of the claim; provided,
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however, that the
omission so to notify the indemnifying party will not relieve the indemnifying
party from any liability which it may have to any indemnified party under the
indemnity agreement contained in this Section 1.3 or
otherwise, to the extent it is not prejudiced as a result of such
failure.
(ii) In
case any such action is brought against any indemnified party and such
indemnified party seeks or intends to seek indemnity from an indemnifying party,
the indemnifying party will be entitled to participate in, and to the extent
that it may wish, jointly with all other indemnifying parties similarly
notified, to assume the defense thereof with counsel reasonably satisfactory to
such indemnified party; provided, however, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be a conflict between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there
may be legal defenses available to the indemnified party or other indemnified
parties that are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party or other
indemnified parties that are different from such indemnified party of
its election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 1.3 for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless:
(1) The
indemnified party shall have employed such counsel in connection with the
assumption of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel (other than local
counsel), approved by such indemnifying party representing all of the
indemnified parties who are parties to such action); or
(2) The
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action.
In
each such case, the reasonable fees and expenses of counsel shall be at the
expense of the indemnifying party.
(d) Contribution. If
the indemnification provided for in this Section 1.3 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, claim, damage, liability or expense referred to
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage, liability or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on
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the
other hand in connection with the statements or omissions that resulted in such
loss, claim, damage, liability or expense, as well as any other relevant
equitable considerations. The relative fault of the indemnifying
party and of the indemnified party 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 the indemnifying party or by the indemnified party and
the parties’ relative intent, knowledge, access to information, and opportunity
to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and
expenses referred to above shall be deemed to include, subject to the
limitations set forth in Section 1.3(c)
hereof, any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 1.3(d) were
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the provisions of
this Section
1.3(d), in no event shall the Manager be required to contribute any
amount in excess of the aggregate fees received by the Manager pursuant to the
Investment Management Agreement. 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 or entity who was not guilty
of such fraudulent misrepresentation.
(e) Surviving
Obligations. The obligations of the Company and the Manager
under this Section
1.3 shall survive the completion of the disposition of the Registrable
Shares under this Section 1, and
otherwise.
1.4
Rule 144
Information. For such period as the Trust or the Plan holds
any Registrable Shares received pursuant to the Contribution, the Company shall
use its reasonable best efforts to file all reports required to be filed by it
under the Securities Act, the Exchange Act and the rules and regulations
thereunder and shall use its reasonable best efforts to take such further action
to the extent required to enable the Manager to sell the Registrable Shares
pursuant to Rule 144.
1.5 Rights of the
Trust. All of the rights and benefits conferred on the Manager
pursuant to this Agreement (other than the right to indemnification provided in
Section 1.3)
are intended to inure to the benefit of the Trust.
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2.
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Miscellaneous.
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2.1 Governing
Law. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York, irrespective
of the choice of laws principles of the State of New York, as to all matters,
including matters of validity, construction, effect, enforceability, performance
and remedies.
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2.2 Force
Majeure. Neither party will have any liability for damages or
delay due to fire, explosion, lightning, pest damage, power failure or surges,
strikes or labor disputes, water or flood, acts of God, the elements, war, civil
disturbances, acts of civil or military authorities or the public enemy, acts or
omissions of communications or other carriers, or any other cause beyond a
party’s reasonable control (other than that which arises from the gross
negligence or willful misconduct of such party), whether or not similar to the
foregoing, that prevent such party from materially performing its obligations
hereunder.
2.3 Entire Agreement;
Modification; Waivers. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
shall supersede all previous negotiation, commitments and writings with respect
to the matters discussed herein. This Agreement may not be altered,
modified or amended except by a written instrument signed by all
parties. The failure of any party to require the performance or
satisfaction of any term or obligation of this Agreement, or the waiver by any
party of any breach of this Agreement, shall not prevent subsequent enforcement
of such term of obligation or be deemed a waiver of any subsequent
breach.
2.4 Severability. The
provisions of this Agreement are severable, and in the event that any one or
more provisions are deemed illegal or unenforceable the remaining provisions
shall remain in full force and effect unless the deletion of such provision
shall cause this Agreement to become materially adverse to either party, in
which event the parties shall use reasonable commercial efforts to arrive at an
accommodation that best preserves for the parties the benefits and obligations
of the offending provision.
2.5 Notices. Except
as otherwise expressly provided, any notice, request, demand or other
communication permitted or required to be given under this Agreement shall be in
writing, shall be sent by one of the following means to the Company or the
Manager at the addresses set forth below (or to such other address as shall be
designated hereunder by notice to the other parties and persons receiving
copies, effective upon actual receipt), and shall be deemed conclusively to have
been given: (a) on the first business day following the day timely
deposited with Federal Express (or other equivalent national overnight courier)
or United States Express Mail, with the cost of delivery prepaid or for the
account of the sender; (b) on the fifth business day following the day duly sent
by certified or registered United States mail, postage prepaid and return
receipt requested; or (c) when otherwise actually received by the addressee on a
business day (or on the next business day if received after the close of normal
business hours or on any non-business day).
If
to the Company:
X.
X. Xxxxxx Company, Inc.
0000
Xxxxxx Xxxxx
Mail
Stop 1304
Plano,
Texas 75024-3698
Attn: Xxxxxxx
X. Xxxxxx
Fax:
(000) 000-0000
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If
to the Manager:
Evercore
Trust Company, N. A.
0000
Xxx Xxxx Xxxxxx
0xx
Xxxxx
Xxxxxxxxxx,
XX 00000
Fax: (000)
000-0000
Attn: Xxxxxx
X. Xxxxxxxx
2.6 Title and
Headings. Titles and headings to sections herein are inserted
for convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.
2.7 Execution in
Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2.8 Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the Company and the Manager and their respective successors and
permitted assigns. None of the rights or obligations under this
Agreement shall be assigned by the Manager without the prior written consent of
the Company and the Trust in their sole discretion.
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IN
WITNESS WHEREOF, each of the Company and the Manager has caused this Agreement
to be duly executed on its behalf by its duly authorized officer as of the date
first written above.
| X. X. PENNEY COMPANY, INC. | |||
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By:
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/s/ Xxxxxx X. Xxxxxxxxx | |
| Name: Xxxxxx X. Xxxxxxxxx | |||
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Title: Executive
Vice President and
Chief
Financial Officer
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EVERCORE TRUST COMPANY, N.A.,
as Investment Manager of a Segregated
Account in the X. X. Xxxxxx Corporation,
Inc. Pension Plan Trust
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By:
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/s/ Xxxxxx X. Xxxxxxxx | |
| Name: Xxxxxx X. Xxxxxxxx | |||
| Title: Managing Director | |||
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