Exhibit 7
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of this
3rd day of April, 1998 among Brylane Inc., a Delaware corporation (the
"Company") and Pinault Printemps-Redoute, S.A., a company organized under the
laws of France (the "Stockholder").
W I T N E S S E T H:
A. The Stockholder or its affiliate (as defined below) has acquired shares
of common stock, par value $0.01 per share, of the Company (the "Common Stock")
in the manner contemplated by those certain Stock Purchase Agreements dated as
of February 19, 1998, among FS Equity Partners II, L.P., a California limited
partnership, FS Equity Partners III, L.P., a Delaware limited partnership, FS
Equity Partners International, L.P., a Delaware limited partnership and the
Stockholder and between M&P Distributing Company, a Nevada corporation and the
Stockholder as well as certain additional shares of Common Stock pursuant to
offers extended to certain other shareholders as contemplated by said Stock
Purchase Agreements.
B. It is a condition to the closing of the Stock Purchase Agreements (the
"Closing") that the Company grant to the Stockholder certain registration rights
with respect to all of the shares of the Common Stock it purchases thereunder or
as contemplated thereby.
C. In order to evidence such registration rights, the parties hereto
desire to enter into this Agreement.
A G R E E M E N T:
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION I.1 Definitions. The following terms shall have the following
meanings:
"Affiliate" means with respect to any Person, any Person directly or
indirectly
controlling, controlled by, or under common control with such other Person. For
purposes of this definition, "control" when used with respect to any Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Board" means the Board of Directors of the Company.
"Commission" means the Securities and Exchange Commission.
"Common Stock" shall have the meaning set forth in the Preamble.
"Demand Registration" means a Demand Registration as defined in Section
2.1.
"Excess Amount" means the number of Registrable Securities requested by
the Stockholder or other Persons to be sold pursuant to Section 2.1 or a demand
registration granted in a Registration Rights Agreement with the Company, as the
case may be, which the managing Underwriter or Underwriters determines exceeds
the largest number of Registrable Securities which can successfully be sold in
an orderly manner in such offering within a price range acceptable to the
Company.
"1933 Act" means the Securities Act of 1933 and the rules and regulations
thereunder.
"1934 Act" means the Securities Exchange Act of 1934 and the rules and
regulations thereunder.
"Person" means an individual, a corporation, a partnership, an
association, a trust or other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.
"Piggy-Back Registration" shall have the meaning set forth in Section 2.2.
"Registrable Security" means any share of Common Stock outstanding until
(i) a registration statement covering such Common Stock has been declared
effective by the Commission and it has been disposed of pursuant to such
effective registration statement, (ii) it is sold under circumstances in which
all of the applicable conditions of Rule 144 (or any similar provisions then in
force) under the 1933 Act ("Rule 144") are met or it may be sold pursuant to
Rule 144(k) or (iii) (a) it has been otherwise Transferred, (b) the Company has
delivered a new certificate or other evidence of ownership for it not bearing
the legend required pursuant to the Stock Purchase Agreements or other
applicable agreement of the Company and (c) it may be resold without subsequent
registration under the 1933 Act.
2.
"Requisite Share Number" means a number of Registrable Securities
representing not less than 10% of the total number of shares of Common Stock
then outstanding or shares of Common Stock representing not less than
$15,000,000 in fair market value as determined by the Board, or such lesser
number as constitutes all shares of Common Stock then held by the Stockholder
representing not less than 3% of the total number of shares of Common Stock then
outstanding.
"Transfer" means any direct or indirect transfer, sale, assignment,
pledge, hypothecation, encumbrance or other disposition of Common Stock.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal in an underwritten offering and not as part of such
dealer's market-making activities.
ARTICLE II
REGISTRATION RIGHTS
SECTION II.1 Demand Registration.
(a) Request for Registration. At any time and from time to time, the
Stockholder, on behalf of itself or any of its Affiliates owning, individually
or in the aggregate, at least the Requisite Share Number, may make a written
request for registration under the 1933 Act of all or part of its or their
Registrable Securities (a "Demand Registration"); provided that the Company
shall not be obligated to effect (i) more than three demand registrations in any
eighteen (18) month period for all holders of Common Stock with demand
registration rights (including the Stockholder and its Affiliates) or (ii) more
than two Demand Registrations in total for the Stockholder and its Affiliates.
Such request will specify the number of shares of Registrable Securities
proposed to be sold and will also specify the intended method of disposition
thereof. Unless the Stockholder shall consent in writing, no other party,
including the Company, shall be permitted to offer securities under any such
Demand Registration.
(b) Effective Registration. A registration will not count as a Demand
Registration until it has become effective.
(c) Underwritten Offering. If the Stockholder so elects, the offering
of such Registrable Securities pursuant to such Demand Registration shall be in
the form of an underwritten offering. The Stockholder shall select one or more
nationally recognized firms of investment bankers to act as the managing
Underwriter or Underwriters in connection with such offering and shall select
any additional managers to be used in connection with the offering which
selection shall be subject to the Company's approval which shall not be
3.
unreasonably withheld.
SECTION II.2 Piggy-Back Registration. If at any time the Company proposes
to file a registration statement under the 1933 Act with respect to an offering
by the Company for its own account or for the account of any of its respective
securityholders of the same class as the Registrable Securities (other than a
registration statement on Form S-4 or S-8 (or any substitute form that may be
adopted by the Commission) or a registration statement filed in connection with
an exchange offer or offering of securities solely to the Company's existing
securityholders), then the Company shall give written notice of such proposed
filing to the Stockholder as soon as practicable (but in no event less than ten
(10) days before the anticipated filing date), and such notice shall offer the
Stockholder the opportunity to register such number of shares of Registrable
Securities as the Stockholder may request in writing within five (5) days of
receipt of such notice on behalf of itself or its Affiliates (which request
shall specify the Registrable Securities intended to be disposed of by the
Stockholder and its Affiliates and the intended method of distribution thereof)
(a "Piggy-Back Registration"). The Company shall use its best efforts to cause
the managing Underwriter or Underwriters of a proposed underwritten offering to
permit the Registrable Securities requested to be included in a Piggy-Back
Registration to be included on the same terms and conditions as any similar
securities of the Company included therein to permit the sale or other
disposition of such Registrable Securities in accordance with the intended
method of distribution thereof. Subject to Section 2.4(b), the Stockholder shall
have the right to withdraw its request for inclusion of its Registrable
Securities in any Piggy-Back Registration by giving written notice to the
Company of its request to withdraw within twenty (20) days of its request for
inclusion. The Company may withdraw a Piggy-Back Registration at any time prior
to the time it becomes effective; provided that the Company shall reimburse the
Stockholder of Registrable Securities requested to be included in such
Piggy-Back Registration for all out-of-pocket expenses (including counsel fees
and expenses) incurred prior to such withdrawal.
SECTION II.3 Reduction of Offering.
(a) Notwithstanding anything contained herein, if the managing
Underwriter or Underwriters of an offering described in Section 2.2 determine
that the size of the offering that the Stockholder, the Company and/or another
Person having registration rights and electing to participate in the offering
intends to make is such that the success of the offering would be materially and
adversely affected by inclusion of the Registrable Securities requested to be
included, then (i) with respect to a demand registration initiated by a Person
other than the Company, and subject to the right of the Person making such
demand (the "Initiating Person") to request to exclude any securities not held
by such Person therefrom, if the size of the offering is the basis of such
Underwriter's or Underwriters' determination, the Company shall not include in
such registration an amount of Registrable Securities requested to be included
in such offering by the Stockholder and such other stockholders (other than the
Initiating Person) requesting to be included, as the case may be, equal to the
Excess Amount (such reduction to be allocated pro rata among the Stockholder and
such other stockholders (other than the Initiating Person) requesting to be
included, as the case may be,
4.
according to the number of Registrable Securities requested for inclusion) and
(ii) in the case of a registration by the Company covering securities to be sold
by it, if securities are being offered for the account of the Stockholder and
other Persons as well as the Company, the securities the Company seeks to
include shall have priority over securities sought to be included by any other
Person (including the Stockholder and its Affiliates) and the proportion by
which the amount of securities intended to be offered by the Stockholder and its
Affiliates is reduced shall not exceed the proportion by which the amount of
securities intended to be offered by such other Persons is reduced.
(b) If, as a result of the proration provisions of Section 2.3(a),
the Stockholder shall not be entitled to include all Registrable Securities in a
Demand Registration or Piggy-Back Registration that the Stockholder has
requested to be included, the Stockholder may elect to withdraw its request to
include Registrable Securities in such registration (a "Withdrawal Election");
provided, however, that a Withdrawal Election shall be irrevocable and, after
making a Withdrawal Election, the Stockholder shall no longer have any right to
include Registrable Securities in the registration as to which such Withdrawal
Election was made.
ARTICLE III
REGISTRATION PROCEDURES
SECTION III.1 Filings; Information. Whenever the Stockholder requests that
any Registrable Securities be registered pursuant to a Demand Registration, the
Company will use its best efforts to effect the registration and the sale of
such Registrable Securities in accordance with the intended method of
disposition thereof as quickly as practicable, and:
(a) In connection with any Demand Registration request, the Company
will as expeditiously as possible prepare and file with the Commission a
registration statement on any form for which the Company then qualifies or which
counsel for the Company shall deem appropriate and which form shall be available
for the sale of the Registrable Securities to be registered thereunder in
accordance with the intended method of distribution thereof, and use its best
efforts to cause such filed registration statement to become and remain
effective until the earlier of (i) one hundred eighty (180) days from the date
such registration statement became effective or (ii) the date on which the sale
of Registrable Securities has been completed; provided that, if the Company
shall furnish to the Stockholder a certificate signed by either its Chairman or
the Vice Chairman (if any) stating that in his good faith judgment it would be
significantly disadvantageous to the Company for such a registration statement
to be filed as expeditiously as possible, the Company shall have a period of not
more than ninety (90) days within which to file such registration statement
measured from the date of
5.
receipt of the request in accordance with Section 2.1.
(b) The Company will, prior to filing a registration statement or
prospectus or any amendment or supplement thereto, furnish to the Stockholder,
counsel representing the Stockholder, and each Underwriter, if any, of the
Registrable Securities covered by such registration statement, copies of such
registration statement as proposed to be filed, together with exhibits thereto,
which documents will be subject to prompt review and approval by the foregoing,
and thereafter furnish to the Stockholder, counsel and each Underwriter, if any,
such number of copies of such registration statement, each amendment and
supplement thereto (in each case including all exhibits thereto and documents
incorporated by reference therein), the prospectus included in such registration
statement (including each preliminary prospectus) and such other documents as
the Stockholder or Underwriter may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by the Stockholder and/or its
Affiliates.
(c) After the filing of the registration statement, the Company will
promptly notify the Stockholder of any stop order issued or threatened by the
Commission and take all reasonable actions required to prevent the entry of such
stop order or to remove it if entered.
(d) The Company will use its best efforts to (i) register or qualify
the Registrable Securities under such other securities or blue sky laws of such
jurisdictions in the United States as the Stockholder reasonably (in light of
the Stockholder's intended plan of distribution) requests and (ii) cause such
Registrable Securities to be registered with or approved by such other
governmental agencies or authorities in the United States as may be necessary by
virtue of the business and operations of the Company and do any and all other
acts and things that may be reasonably necessary or advisable to enable the
Stockholder to consummate the disposition of the Registrable Securities owned by
the Stockholder; provided that the Company will not be required to (A) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this paragraph (d), (B) subject itself to taxation
in any such jurisdiction or (C) consent to general service of process in any
such jurisdiction.
(e) The Company will immediately notify the Stockholder at any time
when a prospectus relating thereto is required to be delivered under the 1933
Act, of the occurrence of an event requiring the preparation of a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and
promptly make available to the Stockholder any such supplement or amendment.
(f) The Company will enter into customary agreements (including, if
applicable, an underwriting agreement in customary form) and take such other
actions as are
6.
reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities (the Stockholder may, at its option, require that any or
all of the representations, warranties and covenants of the Company to or for
the benefit of such Underwriters also be made to and for the benefit of the
Stockholder).
(g) The Chairman of the Board of the Company, the Chief Executive
Officer of the Company and other members of the management of the Company will
cooperate fully in any offering of Registrable Securities pursuant to Section
2.1 hereof, including, without limitation, participation in meetings with
potential investors and preparation of all materials for such investors.
(h) The Company will deliver promptly to the Stockholder and each
Underwriter, if any, subject to restrictions imposed by the United States
federal government or any agency or instrumentality thereof, copies of all
correspondence between the Commission and the Company, its counsel or auditors
and all memoranda relating to discussions with the Commission or its staff with
respect to the registration statement and make available for inspection by the
Stockholder, any Underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other professional
retained by the Stockholder or Underwriter (collectively, the "Inspectors"), (it
being understood that the Company is responsible for payment of the reasonable
fees and expenses of only one counsel (in addition to counsel to the issuer)
pursuant to clause (h) of Section 3.2) all financial and other records,
pertinent corporate documents and properties of the Company (collectively, the
"Records"), subject to restrictions imposed by any governmental authority
governing access to classified information, as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and cause the
Company's officers, directors and employees to supply all information reasonably
requested by any Inspectors in connection with such registration statement.
Records which the Company determines, in good faith, to be confidential and
which it notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such registration statement or (ii) the
disclosure or release of such Records is requested or required pursuant to oral
questions, interrogatories, requests for information or documents or a subpoena
or other order from a court of competent jurisdiction or other process; provided
that prior to any disclosure or release pursuant to clause (ii), the Inspectors
shall provide the Company with prompt notice of any such request or requirement
so that the Company may seek an appropriate protective order or waive such
Inspectors' obligation not to disclose such Records; and provided, further, that
if failing the entry of a protective order or the waiver by the Company
permitting the disclosure or release of such Records, the Inspectors, upon
advice of counsel, are compelled to disclose such Records, the Inspectors may
disclose that portion of the Records which counsel has advised the Inspectors
that the Inspectors are compelled to disclose. The Stockholder agrees that
information obtained by it solely as a result of such inspections (not including
any information obtained from a third party who, insofar as is known to the
Stockholder after reasonable inquiry, is not prohibited from providing such
7.
information by a contractual, legal or fiduciary obligation to the Company)
shall be deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Company or its Affiliates unless
and until such information is made generally available to the public. The
Stockholder further agrees that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to the
Company and allow the Company, at its expense, to undertake appropriate action
to prevent disclosure of the Records deemed confidential.
(i) The Company will use its reasonable best efforts to furnish to
the Stockholder and to each Underwriter, if any, a signed counterpart, addressed
to the Stockholder or Underwriter, of (i) an opinion or opinions of counsel to
the Company and (ii) a comfort letter or comfort letters from the Company's
independent public accountants, each in customary form and covering such matters
of the type customarily covered by opinions or comfort letters, as the case may
be, as the Stockholder included in such offering or the managing Underwriter
therefor reasonably requests.
(j) The Company will comply with all applicable rules and regulations
of the Commission, and make available to its securityholders, as soon as
reasonably practicable, an earnings statement covering a period of twelve (12)
months, beginning within three (3) months after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the 1933 Act.
(k) The Company will use its best efforts (i) to cause all such
Registrable Securities to be listed on a national securities exchange (if such
shares are not already so listed) and on each additional national securities
exchange on which similar securities issued by the Company are then listed (if
any), if the listing of such Registrable Securities is then permitted under the
rules of such exchange or (ii) to secure designation of all such Registrable
Securities covered by such registration statement as a NASDAQ "national market
system security" within the meaning of Rule 11Aa2-1 of the Commission or,
failing that, to secure NASDAQ authorization for such Registrable Securities
and, without limiting the generality of the foregoing, to arrange for at least
two market makers to register as such with respect to such Registrable
Securities with the NASD.
(l) The Company may require the Stockholder to promptly furnish in
writing to the Company such information regarding the distribution of the
Registrable Securities as the Company may from time to time reasonably request
and such other information as may be legally required in connection with such
registration.
The Stockholder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3.1(e)
hereof, the Stockholder will forthwith discontinue and, if applicable, cause its
Affiliates to discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable
8.
Securities until the Stockholder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 3.1(e) hereof, and, if so directed by
the Company, the Stockholder will deliver to the Company all copies, other than
permanent file copies then in the Stockholder's possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt of such
notice. In the event the Company shall give such notice, the Company shall
extend the period during which such registration statement shall be maintained
effective (including the period referred to in Section 3.1(a) hereof) by the
number of days during the period from and including the date of the giving of
notice pursuant to Section 3.1(e) hereof to the date when the Company shall make
available to the Stockholder a prospectus supplemented or amended to conform
with the requirements of Section 3.1(e) hereof.
SECTION III.2 Registration Expenses. In connection with any Demand
Registration pursuant to Section 2.1 hereof and any registration statement filed
pursuant to Section 2.2 hereof, the Company shall pay the following registration
expenses incurred in connection with the registration hereunder, whether or not
such registration becomes effective (the "Registration Expenses"): (a) all
registration and filing fees, (b) fees and expenses of compliance with
securities or blue sky laws (including fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable Securities), (c)
printing expenses, (d) the Company's internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), (e) the fees and expenses incurred in connection
with the listing of the Registrable Securities, (f) fees and disbursements of
counsel for the Company and fees and expenses for independent certified public
accountants retained by the Company (including the expenses of any comfort
letters or costs associated with the delivery by independent certified public
accountants of a comfort letter or comfort letters requested pursuant to Section
3.1(i) hereof), (g) the fees and expenses of any special experts retained by the
Company in connection with such registration, and (h) reasonable fees and
expenses of one counsel (who shall be reasonably acceptable to the Company) for
the Stockholder as well as all of the other Persons selling Common Stock in
connection with the registration (in addition to counsel for the Company).
Except as set forth in the first sentence of this Section 3.2, the Company shall
have no obligation to pay any underwriting fees, discounts or commissions
attributable to the sale of Registrable Securities, or any other out-of-pocket
expenses of the Stockholder.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
SECTION IV.1 Indemnification by the Company. The Company agrees to
indemnify and hold harmless the Stockholder, its officers, directors and agents,
and each Person, if any, who controls the Stockholder within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act from and against any
loss, claim, damage or liability and any
9.
action in respect thereof to which the Stockholder, its officers, directors and
agents, and any such controlling Person may become subject under the 1933 Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or prospectus relating to
the Registrable Securities (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary prospectus,
or arises out of, or is based upon, any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse the Stockholder, its
officers, directors and agents, and each such controlling Person for any legal
and other expenses reasonably incurred by the Stockholder, its officers,
directors and agents, or any such controlling Person in investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action. The Company also agrees to indemnify any Underwriters of the
Registrable Securities, their officers and directors and each Person who
controls such Underwriters on substantially the same basis as that of the
indemnification of the Stockholder provided in this Section 4.1; provided that
the indemnity agreement contained in this Section 4.1 shall not apply to amounts
paid in settlement of any such loss, claim, damage or liability and any action
in respect thereof if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any loss, claim, damage, liability and
any action in respect thereof to the extent that it arises from or is based upon
written information relating to a Person furnished expressly for use in
connection with such registration by such Person, nor shall the Company be
liable to any Person for any such loss, claim, damage or liability and any
action in respect thereof to the extent it arises from or is based upon (a) any
untrue statement or alleged untrue statement of a material fact contained in any
registration statement or prospectus relating to the Registrable Securities
delivered by such Person after such Person had received a written notice
provided by the Company that such registration statement or prospectus contained
such untrue statement or alleged untrue statement of a material fact, (b) 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 after
such Person had received a written notice provided by the Company that such
registration statement or prospectus contained such omission or alleged
omission, or (c) the failure of such Person to deliver any preliminary or final
prospectus, or any amendments or supplements thereto, required under applicable
securities laws, including the 1933 Act, to be so delivered, provided that a
sufficient number of copies thereof had been provided by the Company to such
Person.
SECTION IV.2 Indemnification by the Stockholder of Registrable Securities.
The Stockholder agrees to indemnify and hold harmless the Company, its officers,
directors and agents and each Person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act to the
same extent as the foregoing indemnity from the Company to the Stockholder, but
only with reference to information related to the Stockholder furnished in
writing by the Stockholder expressly for use in any
10.
registration statement or prospectus relating to the Registrable Securities, or
any amendment or supplement thereto, or any preliminary prospectus. The
Stockholder also agrees to indemnify and hold harmless Underwriters of the
Registrable Securities, if any, their officers and directors and each Person who
controls such Underwriters on substantially the same basis as that of the
indemnification of the Company provided in this Section 4.2; provided that in no
event shall any indemnity obligation under this Section 4.2 exceed the net
proceeds from the offering received by the Stockholder.
SECTION IV.3 Conduct of Indemnification Proceedings. Promptly after
receipt by any person in respect of which indemnity may be sought pursuant to
Section 4.1 or 4.2 (an "Indemnified Party") of notice of any claim or the
commencement of any action, the Indemnified Party shall, if a claim in respect
thereof is to be made against the person against whom such indemnity may be
sought (an "Indemnifying Party"), notify the Indemnifying Party in writing of
the claim or the commencement of such action provided that the failure to notify
the Indemnifying Party shall not relieve it from any liability which it may have
to an Indemnified Party otherwise than under Section 4.1 or 4.2 and except to
the extent of any actual prejudice resulting therefrom. If any such claim or
action shall be brought against an Indemnified Party, and it shall notify the
Indemnifying Party thereof, the Indemnifying Party shall be entitled to
participate therein, and, to the extent that it wishes, jointly with any other
similarly notified Indemnifying Party, to assume the defense thereof with
counsel satisfactory to the Indemnified Party. After notice from the
Indemnifying Party to the Indemnified Party of its election to assume the
defense of such claim or action, the Indemnifying Party shall not be liable to
the Indemnified Party for any legal or other expenses subsequently incurred by
the Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation; provided that the Indemnified Party shall
have the right to employ separate counsel to represent the Indemnified Party and
its controlling Persons who may be subject to liability arising out of any claim
in respect of which indemnity may be sought by the Indemnified Party against the
Indemnifying Party, but the fees and expenses of such counsel shall be for the
account of such Indemnified Party unless (a) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the retention of such counsel or
(b) based upon the written opinion of counsel of such Indemnified Party
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. The Indemnifying Party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settlement is made with such consent or if there be a
final judgment for the plaintiff, the Indemnifying Party shall indemnify the
Indemnified Party from and against any loss, claim, damage, or liability by
reason of such settlement or judgment. No Indemnifying Party shall, without the
prior written consent of the Indemnified Party, effect any settlement of any
claim or pending or threatened proceeding in respect of which the Indemnified
Party is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability arising out
of such claim or proceeding.
SECTION IV.4 Contribution. If the indemnification provided for in this
11.
Article IV is unavailable to the Indemnified Parties in respect of any losses,
claims, damages or liabilities referred to herein, then each such 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 or liabilities (a) as between the Company, the Stockholder and
other Persons selling Common Stock, if any, on the one hand and the
Underwriters, if any, on the other, in such proportion as is appropriate to
reflect the relative benefits received by the Company, the Stockholder and other
Persons selling Common Stock, if any, on the one hand and the Underwriters on
the other from the offering of the Registrable Securities, or if such allocation
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits but also the relative fault of the
Company, the Stockholder and other Persons selling Common Stock, if any, on the
one hand and of the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations and (b) as between the
Company on the one hand and the, the Stockholder and other Persons selling
Common Stock, if any, on the other, in such proportion as is appropriate to
reflect the relative fault of the Company and of, the Stockholder and other
Persons selling Common Stock, if any, in connection with such statements or
omissions, as well as any other relevant equitable considerations; provided,
however, that no person found guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) by a court of competent jurisdiction
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation). The relative benefits received by the Company,
the Stockholder and other Persons selling Common Stock, if any, on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company, the
Stockholder and other Persons selling Common Stock, if any, bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the prospectus. The relative
fault of the Company, the Stockholder and other Persons selling Common Stock, if
any, on the one hand and of the Underwriters on the other 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, and the Stockholder and other
Persons selling Common Stock, if any, or by the Underwriters. The relative fault
of the Company on the one hand and of the Stockholder and other Persons selling
Common Stock, if any, and with respect to the Stockholder and other Persons
selling Common Stock, if any, among themselves, on the other shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by such party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Stockholder agree that it would not be just and
equitable if contribution pursuant to this Section 4.4 were determined by pro
rata allocation (even if the
12.
Underwriters 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 or
liabilities 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 4.4, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Registrable Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and the Stockholder shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities of the Stockholder were offered to the
public (less underwriting discounts and commissions) exceeds the amount of any
damages which the Stockholder 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 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. In no event shall the
Stockholder's obligation to contribute pursuant to this Section 4.4 exceed the
net proceeds of the offering received by the Stockholder.
ARTICLE V
MISCELLANEOUS
SECTION V.1 Participation in Underwritten Registrations. The Stockholder
may not participate in any underwritten registration under Section 2.2 unless it
(a) agrees to sell its securities on the basis provided in any underwriting
arrangements that will also be applicable to the Company or other Person
initiating the registration in which the Stockholder wishes to participate and
(b) completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements and these Registration Rights; provided that
(i) the Stockholder will not be required to make any representations or
warranties except those which relate solely to the Stockholder and (ii) the
liability of the Stockholder or any of its Affiliates to any Underwriter under
such underwriting agreement will be limited to liability arising from
misstatements in, or omissions from, written information regarding the
Stockholder provided by the Stockholder for inclusion in the prospectus.
SECTION V.2 Rule 144. The Company covenants that it will use its
reasonable best efforts to file any reports required to be filed by it under the
1933 Act and the 1934 Act and that it will take such further action as the
Stockholder may reasonably request, all to the
13.
extent reasonably required from time to time to enable the Stockholder to sell
Registrable Securities without registration under the 1933 Act within the
limitation of the exemptions provided by (a) Rule 144 or Rule 144A under the
1933 Act, as such Rules may be amended from time to time, or (b) any similar
Rule or regulation hereafter adopted by the Commission. Upon the request of the
Stockholder, the Company will deliver to the Stockholder a written statement as
to whether it has complied with such requirements.
SECTION V.3 Holdback Agreements.
(a) Restrictions on Public Sale. To the extent not inconsistent with
applicable law, the Stockholder agrees not to effect any sale or distribution or
to permit any of its Affiliates to effect any sale or distribution of the issue
being registered or of a similar security of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, including a
sale pursuant to Rule 144 or Rule 144A under the 1933 Act, during the fourteen
(14) days prior to, and during the one hundred twenty (120) day period beginning
on, the effective date of the registration statement filed by the Company
(except as part of such registration) if, and to the extent, requested by the
managing Underwriter or Underwriters in the case of an underwritten public
offering.
(b) Restrictions on Sale by the Company and Others. With respect to a
Demand Registration effected pursuant to Section 2.1 hereof, the Company agrees
(i) not to effect any sale or distribution of any securities similar to those
being registered in accordance with Section 2.1 hereof, or any securities
convertible into or exchangeable or exercisable for such securities, during the
fourteen (14) days prior to, and during the one hundred twenty (120) day period
beginning on, the effective date of any registration statement (except as part
of a registration statement where the Stockholder consents) or the commencement
of a public distribution of Registrable Securities if, and to the extent,
requested by the managing Underwriters or Underwriters in the case of an
underwritten public offering, and (ii) that any agreement entered into after the
date hereof pursuant to which the Company issues or agrees to issue any
privately placed securities shall contain a provision under which holders of
such securities agree not to effect any sale or distribution of any such
securities during the periods described in (i) above, in each case including a
sale pursuant to Rule 144 (except as part of any such registration, if
permitted); provided, however, that the provisions of this paragraph (b) shall
not prevent the conversion or exchange of any securities pursuant to their terms
into or for other securities and shall not prevent the issuance of securities by
the Company under any employee benefit, stock option or stock subscription plans
or in private placements.
SECTION V.4 Successors and Assigns. This Agreement, and all obligations
and rights hereunder, shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted assigns;
provided that no rights of the Stockholder under this Agreement may be assigned,
except that the Stockholder may assign its rights hereunder to an Affiliate,
provided that, prior to such assignment, such Affiliate shall enter
14.
into a written agreement to be bound by the terms and conditions of this
Agreement applicable to the Stockholder.
SECTION V.5 No Waivers; Amendments.
(a) No failure or delay by any party in exercising any right, power,
or privilege hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
(b) This Agreement may not be amended, modified or supplemented other
than by a written instrument signed by each party hereto.
(c) Any provision of this Agreement may be waived if, but only if,
such waiver is in writing and is signed by the party against whom the
enforcement of such waiver is sought.
SECTION V.6 Notices. All notices, requests, and other communications to
any party hereunder shall be in writing (including telex, telecopy or similar
writing) and shall be given as follows:
If to the Brylane Inc.
Company, to: 000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
If to the Pinault Printemps-Redoute, S.A.
Stockholder: 00, Xxxxx Xxxxx Xxxxxxx
00000 Xxxxx CEDEX 08
Attention: Xxxxx Xxxxxxxx
Telecopy: 011-331-44-90-62-93
With a Wachtell, Lipton, Xxxxx & Xxxx
copy to: 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
or to such other address or telecopy number and with such other copies, as such
party may hereafter specify for the purpose of notice to the other parties. Each
such notice, request or
15.
other communication shall be effective (a) if given by telecopy, when such
telecopy is transmitted to the telecopy number specified in this Section and
evidence of receipt is received or (b) if given by any other means, upon
delivery or refusal of delivery at the address specified in this Section 5.6.
SECTION V.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the state of Delaware (without regard
to the choice of law provisions thereof).
SECTION V.8 Entire Agreement. This Agreement constitutes the entire
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersedes any and all prior agreements and understandings,
written or oral, relating to the subject matter hereof.
SECTION V.9 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdictions, it being intended that
all rights and obligations of the parties hereunder shall be enforceable to the
fullest extent permitted by law.
SECTION 5.10 Counterparts. This Agreement may be signed in counterparts,
each of which shall constitute an original and which together shall constitute
one and the same agreement.
16.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth above.
PINAULT PRINTEMPS-REDOUTE, S.A.
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Chairman and Chief Executive Officer
BRYLANE INC.
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President, Chief
Financial Officer, Secretary and
Treasurer
