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EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
Dated as of October 17, 1997
by and among
J. Crew Group, Inc.
and
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Chase Securities Inc.
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This Registration Rights Agreement (this "Agreement") is
made and entered into as of October 17, 1997 by and among J. Crew
Group, Inc., a New York corporation (the "Company") and
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation and Chase
Securities Inc. (each an "Initial Purchaser" and, collectively,
the "Initial Purchasers"), each of whom has agreed to purchase
the Company's 13 1/8% Series A Senior Discount Debentures due 2008
(the "Series A Debentures") pursuant to the Purchase Agreement
(as defined below).
This Agreement is made pursuant to the Purchase
Agreement, dated October 14, 1997 (the "Purchase Agreement"), by
and between the Company and the Initial Purchasers. In order to
induce the Initial Purchasers to purchase the Series A
Debentures, the Company has agreed to provide the registration
rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial
Purchasers set forth in Section 3 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized
terms shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Business Day: Any day except a Saturday, Sunday or other
day in the City of New York, or in the city of the corporate
trust office of the Trustee, on which banks are authorized to
close.
Broker-Dealer: Any broker or dealer registered under
the Exchange Act.
Broker-Dealer Transfer Restricted Securities: Series B
Debentures that are acquired by a Broker-Dealer in the Exchange
Offer in exchange for Series A Debentures that such Broker-
Dealer acquired for its own account as a result of market making
activities or other trading activities (other than Series A
Debentures acquired directly from the Company or any of its
affiliates).
Certificated Securities: As defined in the Indenture.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (a) the
filing and effectiveness under the Act of the Exchange Offer
Registration Statement relating to the Series B Debentures to be
issued in the Exchange Offer, (b) the maintenance of such
Registration Statement continuously effective and the keeping of
the Exchange Offer open for a period not less than the minimum
period required pursuant to Section 3(b) hereof and (c) the
delivery by the Company to the Registrar under the Indenture of
Series B Debentures in the same aggregate principal amount as the
aggregate principal amount of Series A Debentures tendered by
Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Series A
Debentures, each Interest Payment Date.
Debentures: The Series A Debentures and the Series B
Debentures.
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Exchange Act: The Securities Exchange Act of 1934,
as amended.
Exchange Offer: The registration by the Company under
the Act of the Series B Debentures pursuant to the Exchange Offer
Registration Statement pursuant to which the Company shall offer
the Holders of all outstanding Transfer Restricted Securities the
opportunity to exchange all such outstanding Transfer Restricted
Securities for Series B Debentures in an aggregate principal
amount equal to the aggregate principal amount of the Transfer
Restricted Securities tendered in such exchange offer by such
Holders.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the related
Prospectus.
Exempt Resales: The transactions in which the Initial
Purchasers propose to sell the Series A Debentures to certain
"qualified institutional buyers," as such term is defined in Rule
144A under the Act, and outside the United States pursuant to
Regulation S under the Act.
Global Noteholder: As defined in the Indenture.
Holders: As defined in Section 2 hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated the Closing Date,
between the Company and State Street Bank and Trust Company, as
trustee (the "Trustee"), pursuant to which the Debentures are to
be issued, as such Indenture is amended or supplemented from time
to time in accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture and
the Debentures.
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, trust,
unincorporated organization, or a government or agency or
political subdivision thereof.
Prospectus: The prospectus included in a Registration
Statement at the time such Registration Statement is declared
effective, as amended or supplemented by any prospectus
supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by
reference into such Prospectus.
Record Holder: With respect to any Damages Payment Date,
each Person who is a Holder of Debentures on the record date with
respect to the Interest Payment Date on which such Damages
Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of
the Company relating to (a) an offering of Series B Debentures
pursuant to an Exchange Offer or (b) the registration for resale
of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, in each case, (i) which is filed pursuant
to the provisions of this Agreement and (ii) including the
Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits
and material incorporated by reference therein.
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Restricted Broker-Dealer: Any Broker-Dealer which holds
Broker-Dealer Transfer Restricted Securities.
Series B Debentures: The Company's 13 1/8% Series B Senior
Discount Debentures due 2008 to be issued pursuant to the
Indenture (i) in the Exchange Offer or (ii) upon the request of
any Holder of Series A Debentures covered by a Shelf Registration
Statement, in exchange for such Series A Debentures.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Debenture, until
the earliest to occur of (a) the date on which such Debenture is
exchanged in the Exchange Offer and entitled to be resold to the
public by the Holder thereof without complying with the
prospectus delivery requirements of the Act, the date on which
such Debenture has been disposed of in accordance with a Shelf
Registration Statement, (c) the date on which such Debenture is
disposed of by a Broker-Dealer pursuant to the "Plan of
Distribution" contemplated by the Exchange Offer Registration
Statement (including delivery of the Prospectus contained
therein) or (d) the date on which such Debenture is distributed
to the public pursuant to Rule 144 under the Act.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted
Securities (each, a "Holder") whenever such Person owns Transfer
Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by
applicable federal law (after the procedures set forth in Section
6(a)(i) below have been complied with), the Company shall (i)
cause to be filed with the Commission as soon as practicable
after the Closing Date, but in no event later than 60 days after
the Closing Date, the Exchange Offer Registration Statement, (ii)
use its best efforts to cause such Exchange Offer Registration
Statement to become effective at the earliest possible time, but
in no event later than 135 days after the Closing Date, (iii) in
connection with the foregoing, (A) file all pre-effective
amendments to such Exchange Offer Registration Statement as may
be necessary in order to cause such Exchange Offer Registration
Statement to become effective, (B) file, if applicable, a
post-effective amendment to such Exchange Offer Registration
Statement pursuant to Rule 430A under the Act and (C) cause all
necessary filings, if any, in connection with the registration
and qualification of the Series B Debentures to be made under the
Blue Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer, and (iv) upon the
effectiveness of such Exchange Offer Registration Statement,
commence and Consummate the Exchange Offer. The Exchange Offer
shall be on the appropriate form permitting registration of the
Series B Debentures to be offered in exchange for the Series A
Debentures that are Transfer Restricted Securities and to permit
sales of Broker-Dealer Transfer Restricted Securities by
Restricted Broker-Dealers as contemplated by Section 3(c) below.
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(b) The Company shall use its best efforts to cause the
Exchange Offer Registration Statement to be effective
continuously, and shall keep the Exchange Offer open for a period
of not less than the minimum period required under applicable
federal and state securities laws to Consummate the Exchange
Offer; provided, however, that in no event shall such period be
less than 20 Business Days. The Company shall cause the Exchange
Offer to comply with all applicable federal and state securities
laws. No securities other than the Debentures shall be included
in the Exchange Offer Registration Statement. The Company shall
use its best efforts to cause the Exchange Offer to be
Consummated on the earliest practicable date after the Exchange
Offer Registration Statement has become effective, but in no
event later than 30 Business Days thereafter.
(c) The Company shall include a "Plan of Distribution"
section in the Prospectus contained in the Exchange Offer
Registration Statement and indicate therein that any Restricted
Broker-Dealer who holds Series A Debentures that are Transfer
Restricted Securities and that were acquired for the account of
such Broker-Dealer as a result of market-making activities or
other trading activities, may exchange such Series A Debentures
(other than Transfer Restricted Securities acquired directly from
the Company or any Affiliate of the Company) pursuant to the
Exchange Offer; however, such Broker-Dealer may be deemed to be
an "underwriter" within the meaning of the Act and must,
therefore, deliver a prospectus meeting the requirements of the
Act in connection with its initial sale of each Series B Debenture
received by such Broker-Dealer in the Exchange Offer, which
prospectus delivery requirement may be satisfied by the delivery
by such Broker-Dealer of the Prospectus contained in the Exchange
Offer Registration Statement. Such "Plan of Distribution" section
shall also contain all other information with respect to such
sales of Broker-Dealer Transfer Restricted Securities by
Restricted Broker-Dealers that the Commission may require in
order to permit such sales pursuant thereto, but such "Plan of
Distribution" shall not name any such Broker-Dealer or disclose
the amount of Debentures held by any such Broker-Dealer, except
to the extent required by the Commission as a result of a change
in policy after the date of this Agreement.
The Company shall use its best efforts to keep the
Exchange Offer Registration Statement continuously effective,
supplemented and amended as required by the provisions of Section
6(c) below to the extent necessary to ensure that it is available
for sales of Broker-Dealer Transfer Restricted Securities by
Restricted Broker-Dealers, and to ensure that such Registration
Statement conforms with the requirements of this Agreement, the
Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of one year from the
date on which the Exchange Offer is Consummated.
The Company shall promptly provide sufficient copies of
the latest version of such Prospectus to such Restricted
Broker-Dealers promptly upon request, and in no event later than
one day after such request, at any time during such one-year
period in order to facilitate such sales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company is not
required to file an Exchange Offer Registration Statement with
respect to the Series B Debentures because the Exchange Offer is
not permitted by applicable law (after the procedures set forth
in Section 6(a)(i) below have been complied with) or (ii) if any
Holder of Transfer Restricted Securities shall notify the Company
within 20 Business Days following the Consummation of the
Exchange Offer that (A) such Holder was prohibited by law or
Commission policy from participating in the Exchange Offer or (B)
such Holder may not resell the Series B Debentures acquired by it
in the Exchange Offer to the public without delivering a
prospectus and the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available
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for such resales by such Holder or (C) such Holder is a
Broker-Dealer and holds Series A Debentures acquired directly
from the Company or one of its affiliates, then the Company shall
(x) cause to be filed on or prior to 30 days after the date on
which the Company determines that it is not required to file the
Exchange Offer Registration Statement pursuant to clause (i)
above or 60 days after the date on which the Company receives the
notice specified in clause (ii) above a shelf registration
statement pursuant to Rule 415 under the Act (which may be an
amendment to the Exchange Offer Registration Statement (in either
event, the "Shelf Registration Statement"), relating to all
Transfer Restricted Securities the Holders of which shall have
provided the information required pursuant to Section 4(B)
hereof, and shall (y) use its best efforts to cause such Shelf
Registration Statement to become effective on or prior to 135
days after the date on which the Company becomes obligated to
file such Shelf Registration Statement. If, after the Company has
filed an Exchange Offer Registration Statement which satisfies
the requirements of Section 3(a) above, the Company is required
to file and make effective a Shelf Registration Statement solely
because the Exchange Offer shall not be permitted under
applicable federal law, then the filing of the Exchange Offer
Registration Statement shall be deemed to satisfy the
requirements of clause (x) above. Such an event shall have no
effect on the requirements of clause (y) above. The Company shall
use its best efforts to keep the Shelf Registration Statement
discussed in this Section 4(a) continuously effective,
supplemented and amended as required by and subject to the
provisions of Sections 6(b) and (c) hereof to the extent
necessary to ensure that it is available for sales of Transfer
Restricted Securities by the Holders thereof entitled to the
benefit of this Section 4(a), and to ensure that it conforms with
the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to
time, for a period of at least two years (as extended pursuant to
Section 6(c)(i)) following the date on which such Shelf
Registration Statement first becomes effective under the Act.
(b) Provision by Holders of Certain Information in
Connection with the Shelf Registration Statement. No Holder of
Transfer Restricted Securities may include any of its Transfer
Restricted Securities in any Shelf Registration Statement
pursuant to this Agreement unless and until such Holder furnishes
to the Company in writing, within 20 days after receipt of a
request therefor, such information specified in item 507 of
Regulation S-K under the Act for use in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus
included therein. No Holder of Transfer Restricted Securities
shall be entitled to Liquidated Damages pursuant to Section 5
hereof unless and until such Holder shall have used its best
efforts to provide all such information. Each Holder as to which
any Shelf Registration Statement is being effected agrees to
furnish promptly to the Company all information required to be
disclosed in order to make the information previously furnished
to the Company by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this
Agreement is not filed with the Commission on or prior to the
date specified for such filing in this Agreement, (ii) any such
Registration Statement has not been declared effective by the
Commission on or prior to the date specified for such
effectiveness in this Agreement, (iii) the Exchange Offer has not
been Consummated within 180 days after the Closing Date or (iv)
any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective
or fail to be usable for its intended purpose without being
succeeded immediately by a post-effective amendment to such
Registration Statement that cures such failure and that is itself
declared effective immediately (each such event referred to in
clauses (i) through (iv), a "Registration Default"), then the
Company hereby agrees to pay liquidated damages to each Holder of
Transfer Restricted Securities with respect to the first 90-day
period immediately following the occurrence of such Registration
Default, in an amount equal to $.05 per week per $1,000 principal
amount of Transfer Restricted Securities held by such Holder for
each week or portion thereof that the Registration
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Default continues. The amount of the liquidated damages shall
increase by an additional $.05 per week per $1,000 in principal
amount of Transfer Restricted Securities with respect to each
subsequent 90-day period until all Registration Defaults have
been cured, up to a maximum amount of liquidated damages of $.25
per week per $1,000 principal amount of Transfer Restricted
Securities. Notwithstanding anything to the contrary set forth
herein, (1) upon filing of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (i) above, (2) upon the effectiveness
of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement), in the case of
(ii) above, (3) upon Consummation of the Exchange Offer, in the
case of (iii) above, or (4) upon the filing of a post-effective
amendment to the Registration Statement or an additional
Registration Statement that causes the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf
Registration Statement) to again be declared effective or made
usable in the case of (iv) above, the liquidated damages payable
with respect to the Transfer Restricted Securities as a result of
such clause (i), (ii), (iii) or (iv), as applicable, shall cease.
All accrued liquidated damages shall be paid to the
Global Note Holder by wire transfer of immediately available
funds or by federal funds check and to Holders of Certificated
Securities by mailing checks to their registered addresses on
each Damages Payment Date. All obligations of the Company set
forth in the preceding paragraph that are outstanding with
respect to any Transfer Restricted Security at the time such
security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to
such security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection
with the Exchange Offer, the Company shall comply with all
applicable provisions of Section 6(c) below, shall use its best
efforts to effect such exchange and to permit the sale of
Broker-Dealer Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution
thereof, and shall comply with all of the following provisions:
(i) If, following the date hereof there has been
published a change in Commission policy with respect to
exchange offers such as the Exchange Offer, such that in the
reasonable opinion of counsel to the Company there is a
substantial question as to whether the Exchange Offer is
permitted by applicable federal law, the Company hereby
agrees to seek a no-action letter or other favorable decision
from the Commission allowing the Company to Consummate an
Exchange Offer for such Series A Debentures. The Company
hereby agrees to pursue the issuance of such a decision to
the Commission staff level. In connection with the foregoing,
the Company hereby agrees to take all such other actions as
are requested by the Commission or otherwise required in
connection with the issuance of such decision, including
without limitation (A) participating in telephonic
conferences with the Commission, (B) delivering to the
Commission staff an analysis prepared by counsel to the
Company setting forth the legal bases, if any, upon which
such counsel has concluded that such an Exchange Offer should
be permitted and (C) diligently pursuing a resolution (which
need not be favorable) by the Commission staff of such
submission.
(ii) As a condition to its participation in the
Exchange Offer pursuant to the terms of this Agreement, each
Holder of Transfer Restricted Securities shall furnish, upon
the request of the Company, prior to the Consummation of the
Exchange Offer, a written representation to the Company
(which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to
the effect that (A) it is not an affiliate of the Company,
(B) it is not engaged in, and does not intend to engage in,
and has no arrangement or understanding with any
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person to participate in, a distribution of the Series B Debentures
to be issued in the Exchange Offer and (C) it is acquiring the
Series B Debentures in its ordinary course of business. Each
Holder hereby acknowledges and agrees that any Broker-Dealer
and any such Holder using the Exchange Offer to participate
in a distribution of the securities to be acquired in the
Exchange Offer (1) could not under Commission policy as in
effect on the date of this Agreement rely on the position of
the Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2,
1993, and similar no-action letters (including, if
applicable, any no-action letter obtained pursuant to clause
(i) above), and (2) must comply with the registration and
prospectus delivery requirements of the Act in connection
with a secondary resale transaction and that such a secondary
resale transaction must be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of
Regulation S-K if the resales are of Series B Debentures
obtained by such Holder in exchange for Series A Debentures
acquired by such Holder directly from the Company or an
affiliate thereof.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company shall provide a
supplemental letter to the Commission (A) stating that the
Company is registering the Exchange Offer in reliance on the
position of the Commission enunciated in Exxon Capital
Holdings Corporation (available May 13, 1988), Xxxxxx Xxxxxxx
and Co., Inc. (available June 5, 1991) and, if applicable,
any no-action letter obtained pursuant to clause (i) above,
(B) including a representation that the Company has not entered
into any arrangement or understanding with any Person to distribute
the Series B Debentures to be received in the Exchange Offer
and that, to the best of the Company's information and
belief, each Holder participating in the Exchange Offer is
acquiring the Series B Debentures in its ordinary course of
business and has no arrangement or understanding with any
Person to participate in the distribution of the Series B
Debentures received in the Exchange Offer and (C) any other
undertaking or representation required by the Commission as
set forth in any no-action letter obtained pursuant to clause
(i) above.
(b) Shelf Registration Statement. In connection with the
Shelf Registration Statement, the Company shall comply with all
the provisions of Section 6(c) below and shall use its best
efforts to effect such registration to permit the sale of the
Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof (as indicated
in the information furnished to the Company pursuant to Section
4(b) hereof), and pursuant thereto the Company will prepare and
file with the Commission a Registration Statement relating to the
registration on any appropriate form under the Act, which form
shall be available for the sale of the Transfer Restricted
Securities in accordance with the intended method or methods of
distribution thereof within the time periods and otherwise in
accordance with the provisions hereof.
(c) General Provisions. In connection with any
Registration Statement and any related Prospectus required by
this Agreement to permit the sale or resale of Transfer
Restricted Securities (including, without limitation, any
Exchange Offer Registration Statement and the related Prospectus,
to the extent that the same are required to be available to
permit sales of Broker-Dealer Transfer Restricted Securities by
Restricted Broker-Dealers), the Company shall:
(i) use its best efforts to keep such Registration
Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or
4 of this Agreement, as applicable. Upon the occurrence of
any event that would cause any such Registration Statement or
the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and
usable for resale of Transfer Restricted Securities during
the period required by this Agreement, the Company shall file
promptly an appropriate amendment to such Registration
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Statement, (1) in the case of clause (A), correcting any such
misstatement or omission, and (2) in the case of clauses (A)
and (B), use its best efforts to cause such amendment to be
declared effective and such Registration Statement and the
related Prospectus to become usable for their intended
purpose(s) as soon as practicable thereafter. Notwithstanding
anything to the contrary set forth in this Agreement, the
Company's obligation to use its best efforts to keep the
Shelf Registration Statement continuously effective,
supplemented and amended shall be suspended in the event
continued effectiveness of the Shelf Registration Statement
would, in the opinion of counsel to the Company, require the
Company to disclose a material financing, acquisition or
other corporate transaction, and the Board of Directors shall
have determined in good faith that such disclosure is not in
the best interests of the Company, but in no event will any
such suspension, individually or in the aggregate, exceed
ninety (90) days since the Closing Date.
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration
Statement effective for the applicable period set forth in
Section 3 or 4 hereof, or such shorter period as will
terminate upon the earlier of the following (A) when all
Transfer Restricted Securities covered by such Registration
Statement have been sold and (B) when, in the written opinion
of counsel to the Company, all outstanding Transfer
Restricted Securities held by persons that are not affiliates
of the Company may be resold without registration under the
Act pursuant to Rule 144(k) under the Act or any successor
provision thereto; cause the Prospectus to be supplemented by
any required Prospectus supplement, and as so supplemented to
be filed pursuant to Rule 424 under the Act, and to comply
fully with Rules 424, 430A and 462, as applicable, under the
Act in a timely manner; and comply with the provisions of the
Act with respect to the disposition of all securities covered
by such Registration Statement during the applicable period
in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling
Holders promptly and, if requested by such Persons, confirm
such advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with
respect to any Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request
by the Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional
information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by any
state securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction,
or the initiation of any proceeding for any of the preceding
purposes, (D) of the existence of any fact or the happening of
any event that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or
supplement thereto or any document incorporated by reference
therein untrue, or that requires the making of any additions to
or changes in the Registration Statement in order to make the
statements therein not misleading, or that requires the making of
any additions to or changes in the Prospectus in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading. If at any time the
Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue
an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state
securities or Blue Sky laws, the Company shall use its best
efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
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(iv) furnish to the Initial Purchaser(s), each selling
Holder named in any Registration Statement or Prospectus and
each of the underwriter(s) in connection with such sale, if
any, before filing with the Commission, copies of any
Registration Statement or any Prospectus included therein or
any amendments or supplements to any such Registration
Statement or Prospectus (including all documents incorporated
by reference after the initial filing of such Registration
Statement), which documents will be subject to the review and
comment of such Holders and underwriter(s) in connection with
such sale, if any, for a period of at least five Business
Days, and the Company will not file any such Registration
Statement or Prospectus or any amendment or supplement to any
such Registration Statement or Prospectus (including all such
documents incorporated by reference) to which the selling
Holders of the Transfer Restricted Securities covered by such
Registration Statement or the underwriter(s) in connection
with such sale, if any, shall reasonably object within five
Business Days after the receipt thereof. A selling Holder or
underwriter, if any, shall be deemed to have reasonably
objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as
proposed to be filed, contains a material misstatement or
omission or fails to comply with the applicable requirements
of the Act;
(v) promptly prior to the filing of any document that
is to be incorporated by reference into a Registration
Statement or Prospectus, provide copies of such document to
the selling Holders and to the underwriter(s) in connection
with such sale, if any, make the Company's representatives
available for discussion of such document and other customary
due diligence matters, and include such information in such
document prior to the filing thereof as such selling Holders
or underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times for inspection by
the selling Holders, any managing underwriter participating in
any disposition pursuant to such Registration Statement and
any attorney or accountant retained by such selling Holders
or any of such underwriter(s), all financial and other
records, pertinent corporate documents and properties of the
Company and cause the Company's officers, directors and
employees to supply all information reasonably requested by
any such Holder, underwriter, attorney or accountant in
connection with such Registration Statement or any
post-effective amendment thereto subsequent to the filing
thereof and prior to its effectiveness;
(vii) if requested by any selling Holders or the
underwriter(s) in connection with such sale, if any, promptly
include in any Registration Statement or Prospectus, pursuant
to a supplement or post-effective amendment if necessary,
such information as such selling Holders and underwriter(s),
if any, may reasonably request to have included therein,
including, without limitation, information relating to the
"Plan of Distribution" of the Transfer Restricted Securities,
information with respect to the principal amount of Transfer
Restricted Securities being sold to such underwriter(s), the
purchase price being paid therefor and any other terms of the
offering of the Transfer Restricted Securities to be sold in
such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to
be included in such Prospectus supplement or post-effective
amendment;
(viii) furnish to each selling Holder and each of the
underwriter(s) in connection with such sale, if any, without
charge, at least one copy of the Registration Statement, as
first filed with the Commission, and of each amendment
thereto, including all documents incorporated by reference
therein and all exhibits (including exhibits incorporated
therein by reference);
(ix) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably
may request; the Company hereby consents to the
9
use (in accordance with law) of the Prospectus and any amendment
or supplement thereto by each of the selling Holders and each of
the underwriter(s), if any, in connection with the offering
and the sale of the Transfer Restricted Securities covered by
the Prospectus or any amendment or supplement thereto;
(x) enter into such agreements (including an
underwriting agreement) and make such representations and
warranties and take all such other actions in connection
therewith in order to expedite or facilitate the disposition
of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement as may
be reasonably requested by any Holder of Transfer Restricted
Securities or underwriter in connection with any sale or
resale pursuant to any Registration Statement contemplated by
this Agreement, and in such connection, whether or not an
underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, the Company
shall:
(A) furnish (or in the case of paragraphs (2) and (3),
use its best efforts to furnish) to each selling Holder and
each underwriter, if any, upon the effectiveness of the
Shelf Registration Statement and to each Restricted
Broker-Dealer upon Consummation of the Exchange Offer:
(1) a certificate, dated the date of Consummation
of the Exchange Offer or the date of effectiveness of
the Shelf Registration Statement, as the case may be,
signed on behalf of the Company by (x) the President
or any Vice President and (y) a principal financial or
accounting officer of the Company, confirming, as of
the date thereof, the matters set forth in paragraphs
(a) through (d) of Section 9 of the Purchase Agreement
and such other similar matters as the Holders,
underwriter(s) and/or Restricted Broker Dealers may
reasonably request;
(2) an opinion, dated the date of Consummation of
the Exchange Offer or the date of effectiveness of the
Shelf Registration Statement, as the case may be, of
counsel for the Company covering matters similar to
those set forth in paragraph (e) of Section 9 of the
Purchase Agreement and such other matter as the
Holders, underwriters and/or Restricted Broker Dealers
may reasonably request, and in any event including a
statement to the effect that such counsel has
participated in conferences with officers and other
representatives of the Company, representatives of the
independent public accountants for the Company and
have considered the matters required to be stated
therein and the statements contained therein, although
such counsel has not independently verified the
accuracy, completeness or fairness of such statements;
and that such counsel advises that, on the basis of
the foregoing (relying as to materiality to a large
extent upon facts provided to such counsel by officers
and other representatives of the Company and without
independent check or verification), no facts came to
such counsel's attention that caused such counsel to
believe that the applicable Registration Statement, at
the time such Registration Statement or any
post-effective amendment thereto became effective and,
in the case of the Exchange Offer Registration
Statement, as of the date of Consummation of the
Exchange Offer, contained an untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, or that the
Prospectus contained in such Registration Statement as
of its date and, in the case of the opinion dated the
date of Consummation of the Exchange Offer, as of the
date of Consummation, contained an untrue statement of
a material fact or omitted to state a material fact
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made, not misleading. Without limiting the foregoing,
such counsel may state further that such counsel
assumes no responsibility for,
10
and has not independently verified, the accuracy, complete-
ness or fairness of the financial statements, notes and
schedules and other financial and statistical data
included in any Registration Statement contemplated by
this Agreement or the related Prospectus; and
(3) a customary comfort letter, dated as of the date
of effectiveness of the Shelf Registration Statement
or the date of Consummation of the Exchange Offer, as
the case may be, from the Company's independent
accountants, in the customary form and covering
matters of the type customarily covered in comfort
letters to underwriters in connection with primary
underwritten offerings, and affirming the matters set
forth in the comfort letters delivered pursuant to
Section 9 of the Purchase Agreement, without
exception;
(B) set forth in full or incorporate by reference in
the underwriting agreement, if any, in connection with any
sale or resale pursuant to any Shelf Registration Statement
the indemnification provisions and procedures of Section 8
hereof with respect to all parties to be indemnified
pursuant to said Section; and
(C) deliver such other documents and certificates as
may be reasonably requested by the selling Holders, the
underwriter(s), if any, and Restricted Broker Dealers, if
any, to evidence compliance with clause (A) above and with
any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company
pursuant to this clause (x).
The above shall be done at each closing under such
underwriting or similar agreement, as and to the extent required
thereunder, and if at any time the representations and warranties
of the Company contemplated in (A)(1) above cease to be true and
correct, the Company shall so advise the underwriter(s), if any,
the selling Holders and each Restricted Broker-Dealer promptly
and if requested by such Persons, shall confirm such advice in
writing;
(xi) prior to any public offering of Transfer
Restricted Securities, cooperate with the selling Holders,
the underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue
Sky laws of such jurisdictions as the selling Holders or
underwriter(s), if any, may request and do any and all other
acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted
Securities covered by the applicable Registration Statement;
provided, however, that the Company shall not be required to
register or qualify as a foreign corporation where it is not
now so qualified or to take any action that would subject it
to the service of process in suits or to taxation, other than
as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so
subject;
(xii) issue, upon the request of any Holder of Series
A Debentures covered by any Shelf Registration Statement
contemplated by this Agreement, Series B Debentures having an
aggregate principal amount equal to the aggregate principal
amount of Series A Debentures surrendered to the Company by
such Holder in exchange therefor or being sold by such
Holder; such Series B Debentures to be registered in the name
of such Holder or in the name of the purchaser(s) of such
Debentures, as the case may be; in return, the Series A
Debentures held by such Holder shall be surrendered to the
Company for cancellation;
(xiii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer
being Transfer Restricted Securities, cooperate with the
selling Holders and the underwriter(s), if any, to facilitate
the timely preparation and delivery of certificates
11
representing Transfer Restricted Securities to be sold and
not bearing any restrictive legends; and to register such
Transfer Restricted Securities in such denominations and such
names as the Holders or the underwriter(s), if any, may
request at least two Business Days prior to such sale of
Transfer Restricted Securities;
(xiv) use its best efforts to cause the disposition of
the Transfer Restricted Securities covered by the
Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the
underwriter(s), if any, to consummate the disposition of such
Transfer Restricted Securities, subject to the proviso
contained in clause (xi) above;
(xv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or
have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus
or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to
the purchasers of Transfer Restricted Securities, the
Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(xvi) provide a CUSIP number for all Transfer
Restricted Securities not later than the effective date of a
Registration Statement covering such Transfer Restricted
Securities and provide the Trustee under the Indenture with
printed certificates for the Transfer Restricted Securities
which are in a form eligible for deposit with the Depository
Trust Company;
(xvii) cooperate and assist in any filings required to
be made with the NASD and in the performance of any due
diligence investigation by any underwriter (including any
"qualified independent underwriter") that is required to be
retained in accordance with the rules and regulations of the
NASD, and use its best efforts to cause such Registration
Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Securities to
consummate the disposition of such Transfer Restricted
Securities;
(xviii) otherwise use its best efforts to comply with
all applicable rules and regulations of the Commission, and
make generally available to its security holders with regard
to any applicable Registration Statement, as soon as
practicable, a consolidated earnings statement meeting the
requirements of Rule 158 (which need not be audited) covering
a twelve-month period beginning after the effective date of
the Registration Statement (as such term is defined in
paragraph (c) of Rule 158 under the Act);
(xix) cause the Indenture to be qualified under the
TIA not later than the effective date of the first Registration
Statement required by this Agreement and, in connection
therewith, cooperate with the Trustee and the Holders of
Debentures to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance
with the terms of the TIA; and execute and use its best
efforts to cause the Trustee to execute, all documents that
may be required to effect such changes and all other forms
and documents required to be filed with the Commission to
enable such Indenture to be so qualified in a timely manner;
and
(xx) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the
requirements of Section 13 or Section 15(d) of the Exchange
Act.
12
(d) Restrictions on Holders. Each Holder agrees by
acquisition of a Transfer Restricted Security that, upon receipt
of the notice referred to in Section 6(c)(i) or any notice from
the Company of the existence of any fact of the kind described in
Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities
pursuant to the applicable Registration Statement until such
Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(xv) hereof, or until it
is advised in writing by the Company that the use of the
Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by
reference in the Prospectus (the "Advice"). If so directed by the
Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such
Transfer Restricted Securities that was current at the time of
receipt of either such notice. In the event the Company shall
give any such notice, the time period regarding the effectiveness
of such Registration Statement set forth in Section 3 or 4
hereof, as applicable, shall be extended by the number of days
during the period from and including the date of the giving of
such notice pursuant to Section 6(c)(i) or Section 6(c)(iii)(D)
hereof to and including the date when each selling Holder covered
by such Registration Statement shall have received the copies of
the supplemented or amended Prospectus contemplated by Section
6(c)(xv) hereof or shall have received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance
of or compliance with this Agreement will be borne by the
Company, regardless of whether a Registration Statement becomes
effective, including without limitation: (i) all registration and
filing fees and expenses (including filings made by any Purchaser
or Holder with the NASD (and, if applicable, the fees and
expenses of any "qualified independent underwriter") and its
counsel that may be required by the rules and regulations of the
NASD); (ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws; (iii) all
expenses of printing (including printing certificates for the
Series B Debentures to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for the
Company and the Holders of Transfer Restricted Securities; and
(v) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special
audit and comfort letters required by or incident to such
performance).
The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties),
the expenses of any annual audit and the fees and expenses of any
Person, including special experts, retained by the Company.
(b) In connection with any Registration Statement
required by this Agreement (including, without limitation, the
Exchange Offer Registration Statement and the Shelf Registration
Statement), the Company will reimburse the Initial Purchasers and
the Holders of Transfer Restricted Securities being tendered in
the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration
Statement or registered pursuant to the Shelf Registration
Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, who shall be chosen
by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration
Statement is being prepared.
13
SECTION 8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless
(i) each Holder and (ii) each person, if any, who controls (within
the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) any Holder (any of the persons referred to in this
clause (ii) being hereinafter referred to as a "controlling
person") and (iii) the respective officers, directors, partners,
employees, representatives and agents of any Holder or any
controlling person (any person referred to in clause (i), (ii) or
(iii) may hereinafter be referred to as an "Indemnified Holder"),
to the fullest extent lawful, from and against any and all
losses, claims, damages, liabilities, judgments, actions and
expenses (including without limitation and as incurred,
reimbursement of all reasonable costs of investigating,
preparing, pursuing or defending any claim or action, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, including the reasonable fees and
expenses of counsel to any Indemnified Holder) directly or
indirectly caused by, related to, based upon, arising out of or
in connection with any untrue statement or alleged untrue
statement of a material fact contained in any Registration
Statement, preliminary prospectus or Prospectus (or any amendment
or supplement thereto), or 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, except
insofar as such losses, claims, damages, liabilities or expenses
are caused by an untrue statement or omission or alleged untrue
statement or omission that is made in reliance upon and in
conformity with information relating to any of the Holders
furnished in writing to the Company by any of the Holders
expressly for use therein; provided, however, that the foregoing
indemnification with respect to any untrue statement or alleged
untrue statement or omission or alleged omission in any
preliminary prospectus or Prospectus, shall not inure to the
benefit of any Indemnified Holder from whom the person asserting
such loss, claim, damage, liability or expense purchased any of
the Debentures if a copy of the Prospectus (or any amendment or
supplement thereto) was not sent or given on behalf of such
Indemnified Holder to such person at or prior to the written
confirmation of the sale of such Debentures to such person and if
the Prospectus (or the Prospectus, as so amended or supplemented)
would have cured the defect giving rise to such loss, claim,
damage, liability or expense.
In case any action or proceeding (including any
governmental or regulatory investigation or proceeding) shall be
brought or asserted against any of the Indemnified Holders with
respect to which indemnity may be sought against the Company,
such Indemnified Holder (or the Indemnified Holder controlled by
such controlling person) shall promptly notify the Company in
writing (provided, that the failure to give such notice shall not
relieve the Company of their obligations pursuant to this
Agreement). Such Indemnified Holder shall have the right to
employ its own counsel in any such action and the fees and
expenses of such counsel shall be paid, as incurred, by the
Company (regardless of whether it is ultimately determined that
an Indemnified Holder is not entitled to indemnification
hereunder). The Company shall not, in connection with any one
such action or proceeding or separate but substantially similar
or related actions or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) at
any time for such Indemnified Holders, which firm shall be
designated by the Holders. The Company shall be liable for any
settlement of any such action or proceeding effected with the
Company's prior written consent, which consent shall not be
withheld unreasonably, and the Company agrees to indemnify and
hold harmless each Indemnified Holder from and against any loss,
claim, damage, liability or expense by reason of any settlement
of any action effected with the written consent of the Company.
The Company shall not, without the prior written consent of each
Indemnified Holder, settle or compromise or consent to the entry
of judgment in or otherwise seek to terminate any pending or
threatened action, claim, litigation or proceeding in respect of
which indemnification or contribution may be sought hereunder
(whether or not any Indemnified Holder is a party thereto),
unless such settlement, compromise, consent or termination
includes an
14
unconditional release of each Indemnified Holder from all
liability arising out of such action, claim, litigation or
proceeding.
(b) Each Holder of Transfer Restricted Securities
agrees, severally and not jointly, to indemnify and hold harmless
the Company, and its directors, officers, and any person
controlling (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) the Company, and the respective
officers, directors, partners, employees, representatives and
agents of each such person, to the same extent as the foregoing
indemnity from the Company to each of the Indemnified Holders,
but only with respect to claims and actions based on information
relating to such Holder furnished in writing by such Holder
expressly for use in any Registration Statement. In case any
action or proceeding shall be brought against the Company or its
directors or officers or any such controlling person in respect
of which indemnity may be sought against a Holder of Transfer
Restricted Securities, such Holder shall have the rights and
duties given the Company, and the Company, such directors or
officers or such controlling person shall have the rights and
duties given to each Holder by the preceding paragraph. In no
event shall any Holder be liable or responsible for any amount in
excess of the amount by which the total received by such Holder
with respect to its sale of Transfer Restricted Securities
pursuant to a Registration Statement exceeds (i) the amount paid
by such Holder for such Transfer Restricted Securities and (ii)
the amount of any damages which such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
(c) If the indemnification provided for in this Section
8 is unavailable to an indemnified party under Section 8(a) or
Section 8(b) hereof (other than by reason of exceptions
provided in those Sections) in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses in such proportion as is
appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Holders, on the other hand,
from the issuance and sale of the Debentures by the Company or if
such allocation is not permitted by applicable law, the relative
fault of the Company, on the one hand, and of the Indemnified
Holder, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one
hand, and of the Indemnified Holder, on the other hand, 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 Company or by the Indemnified Holder
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 the second paragraph of Section 8(a), any legal or other
fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim.
The Company and each Holder of Transfer Restricted
Securities agree that it would not be just and equitable if
contribution pursuant to this Section 8(c) were determined by pro
rata allocation (even if the Holders were treated as one entity
for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to in
the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims,
damages, liabilities or expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Holder or
its related Indemnified Holders shall be required to contribute,
in the aggregate, any amount in excess of the amount by which the
total received by such Holder with respect
15
to the sale of its Transfer Restricted Securities pursuant to a
Registration Statement exceeds the sum of (A) the amount paid by
such Holder for such Transfer Restricted Securities plus (B) the
amount of any damages which such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 8(c) are
several in proportion to the respective principal amount of
Series A Debentures held by each of the Holders hereunder and not
joint.
SECTION 9. RULE 144A
The Company hereby agrees with each Holder, for so long
as any Transfer Restricted Securities remain outstanding and
during any period in which the Company is not subject to
Section 13 or 15(d) of the Securities Exchange Act, to make
available, upon request of any Holder of Transfer Restricted
Securities, to any Holder or beneficial owner of Transfer
Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities
designated by such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit
resales of such Transfer Restricted Securities pursuant to Rule
144A.
SECTION 10. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten
Registration hereunder unless such Holder (a) agrees to sell such
Holder's Transfer Restricted Securities on the basis provided in
customary underwriting arrangements entered into in connection
therewith and (b) completes and executes all reasonable
questionnaires, powers of attorney, and other documents required
under the terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
For any Underwritten Offering, the investment banker or
investment bankers and manager or managers for any Underwritten
Offering that will administer such offering will be selected by
the Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities included in such offering. Such
investment bankers and managers are referred to herein as the
"underwriters."
SECTION 12. MISCELLANEOUS
(a) Remedies. Each Holder, in addition to being entitled
to exercise all rights provided herein, in the Indenture, the
Purchase Agreement or granted by law, including recovery of
liquidated or other 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 them of the
provisions of this Agreement and hereby agree to waive the
defense in any action for specific performance that a remedy at
law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on
or after the date of this Agreement, enter into any agreement
with respect to its securities that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise
conflicts with the provisions hereof. The rights
16
granted to the Holders hereunder do not in any way conflict with
and are not inconsistent with the rights granted to the holders
of the Company's securities under any agreement in effect on the
date hereof.
(c) Adjustments Affecting the Debentures. The Company
will not take any action, or voluntarily permit any change to
occur, with respect to the Debentures that would materially and
adversely affect the ability of the Holders to Consummate any
Exchange Offer.
(d) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers
or consents to or departures from the provisions hereof may not be
given unless (i) in the case of Section 5 hereof and this Section
12(d)(i), the Company has obtained the written consent of Holders
of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the
written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities.
Notwithstanding the foregoing, a waiver or consent to departure
from the provisions hereof that relates exclusively to the rights
of Holders whose securities are being tendered pursuant to the
Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being
tendered pursuant to such Exchange Offer may be given by the
Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities subject to such Exchange Offer.
(e) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, first-class mail (registered or certified, return
receipt requested), telex, telecopier, or air courier
guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to the
Registrar under the Indenture; and
(ii) if to the Company:
J. Crew Group, Inc.
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
With a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxx X. Xxxx, Esq.
All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in
the mail, postage prepaid, if mailed; when receipt acknowledged,
if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
17
Copies of all such notices, demands or other
communications shall be concurrently delivered by the Person
giving the same to the Trustee at the address specified in the
Indenture.
(f) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns
of each of the parties, including without limitation and without
the need for an express assignment, subsequent Holders of
Transfer Restricted Securities; provided, however, that this
Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such
successor or assign acquired Transfer Restricted Securities
directly from such Holder.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in
any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to
be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or
referred to herein with respect to the registration rights
granted with respect to the Transfer Restricted Securities. This
Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
J. Crew Group, Inc.
By: /s/ Xxxxxxx X. XxXxxx
----------------------------
Name:
Title:
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
Chase Securities Inc.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
------------------------------
Name:
Title:
