EXHIBIT 10.1
MASTER SEPARATION AGREEMENT
BETWEEN
RETAIL VENTURES, INC.
AND
DSW INC.
TABLE OF CONTENTS
ARTICLE I DOCUMENTS AND ITEMS TO BE DELIVERED ON THE IPO DATE .......................................... 4
Section 1.1 DOCUMENTS TO BE DELIVERED BY RETAIL VENTURES ......................................... 4
Section 1.2 DOCUMENTS TO BE DELIVERED BY DSW ..................................................... 5
ARTICLE II THE IPO AND ACTIONS PENDING THE IPO; DISTRIBUTION ........................................... 5
Section 2.1 TRANSACTIONS PRIOR TO THE IPO ........................................................ 5
Section 2.2 COOPERATION .......................................................................... 6
Section 2.3 DEBT REORGANIZATION EVENTS ........................................................... 6
Section 2.4 CONDITIONS PRECEDENT TO CONSUMMATION OF THE IPO ...................................... 7
Section 2.5 DISTRIBUTION ......................................................................... 8
ARTICLE III COVENANTS AND OTHER MATTERS ................................................................ 9
Section 3.1 OTHER AGREEMENTS ..................................................................... 9
Section 3.2 FURTHER INSTRUMENTS .................................................................. 9
Section 3.3 AGREEMENT FOR EXCHANGE OF INFORMATION ................................................ 9
Section 3.4 AUDITORS AND AUDITS; FINANCIAL STATEMENTS; ACCOUNTING MATTERS ........................ 11
Section 3.5 CONFIDENTIALITY ...................................................................... 14
Section 3.6 PRIVILEGED MATTERS ................................................................... 16
Section 3.7 MAIL AND OTHER COMMUNICATIONS ........................................................ 18
Section 3.8 EMPLOYMENT MATTERS ................................................................... 18
Section 3.9 PAYMENT OF EXPENSES .................................................................. 18
Section 3.10 DISPUTE RESOLUTION ................................................................... 19
Section 3.11 GOVERNMENTAL APPROVALS ............................................................... 20
Section 3.12 NO REPRESENTATION OR WARRANTY ........................................................ 20
Section 3.13 COMPLIANCE WITH LEGAL POLICIES ....................................................... 21
Section 3.14 DEBT REORGANIZATION RELATED DOCUMENTS ................................................ 22
Section 3.15 NORTHLAND ............................................................................ 22
Section 3.16 GUARANTEES ........................................................................... 23
Section 3.17 RUN-OFF OF ACCOUNTS .................................................................. 23
ARTICLE IV REGISTRATION RIGHTS ......................................................................... 23
Section 4.1 DEMAND REGISTRATION .................................................................. 23
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Section 4.2 PIGGYBACK REGISTRATION ............................................................... 25
Section 4.3 EXPENSES ............................................................................. 27
Section 4.4 BLACKOUT PERIOD ...................................................................... 28
Section 4.5 SELECTION OF UNDERWRITERS ............................................................ 28
Section 4.6 OBLIGATIONS OF DSW ................................................................... 28
Section 4.7 OBLIGATIONS OF SELLING HOLDERS ....................................................... 30
Section 4.8 UNDERWRITING; DUE DILIGENCE .......................................................... 30
Section 4.9 INDEMNIFICATION AND CONTRIBUTION ..................................................... 31
Section 4.10 RULE 144 AND FORM S-3 ................................................................ 35
Section 4.11 HOLDBACK AGREEMENT ................................................................... 35
Section 4.12 TERM ................................................................................. 36
ARTICLE V MUTUAL RELEASES; INDEMNIFICATION ............................................................. 36
Section 5.1 RELEASE OF PRE-IPO DATE CLAIMS ....................................................... 36
Section 5.2 INDEMNIFICATION BY DSW ............................................................... 37
Section 5.3 INDEMNIFICATION BY RETAIL VENTURES ................................................... 38
Section 5.4 ANCILLARY AGREEMENT LIABILITIES ...................................................... 38
Section 5.5 OTHER AGREEMENTS EVIDENCING INDEMNIFICATION OBLIGATIONS .............................. 38
Section 5.6 REDUCTIONS FOR INSURANCE PROCEEDS AND OTHER RECOVERIES ............................... 38
Section 5.7 PROCEDURES FOR DEFENSE, SETTLEMENT AND INDEMNIFICATION OF THIRD PARTY CLAIMS ......... 40
Section 5.8 ADDITIONAL MATTERS ................................................................... 41
Section 5.9 SURVIVAL OF INDEMNITIES .............................................................. 42
ARTICLE VI INSURANCE MATTERS ........................................................................... 42
Section 6.1 DSW INSURANCE COVERAGE DURING THE INSURANCE TRANSITION PERIOD ........................ 42
Section 6.2 DSW INSURANCE COVERAGE AFTER THE INSURANCE TRANSITION PERIOD ......................... 42
ARTICLE VII MISCELLANEOUS .............................................................................. 42
Section 7.1 LIMITATION OF LIABILITY .............................................................. 42
Section 7.2 ENTIRE AGREEMENT ..................................................................... 43
Section 7.3 GOVERNING LAW AND JURISDICTION ....................................................... 43
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Section 7.4 TERMINATION; AMENDMENT ............................................................... 43
Section 7.5 NOTICES .............................................................................. 43
Section 7.6 COUNTERPARTS ......................................................................... 44
Section 7.7 BINDING EFFECT; ASSIGNMENT ........................................................... 44
Section 7.8 SEVERABILITY ......................................................................... 45
Section 7.9 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE ................................ 45
Section 7.10 AUTHORITY ............................................................................ 45
Section 7.11 INTERPRETATION ....................................................................... 45
Section 7.12 CONFLICTING AGREEMENTS ............................................................... 45
Section 7.13 THIRD PARTY BENEFICIARIES ............................................................ 46
ARTICLE VIII DEFINITIONS ............................................................................... 46
Section 8.1 DEFINED TERMS ........................................................................ 46
EXHIBITS AND SCHEDULES
Exhibit A IP License
Schedule 1.1(c) Certain Officers and/or Directors of Retail Ventures
Schedule 1.2(b) Certain Officers and/or Directors of DSW
Schedule 2.3(g) Cross-Factor Guaranty Agreements
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MASTER SEPARATION AGREEMENT
This Master Separation Agreement is dated as of the 5th day of July,
2005, between Retail Ventures, Inc., an Ohio corporation ("Retail Ventures"),
and DSW Inc., an Ohio corporation ("DSW," with Retail Ventures, each a "Party,"
and together, the "Parties"). Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to such terms in Article VIII hereof.
RECITALS
WHEREAS, Retail Ventures is the beneficial owner of all the issued and
outstanding common shares of DSW;
WHEREAS, Retail Ventures, through its wholly-owned subsidiary, DSW, is
engaged in the business of retailing specialty branded footwear (the "DSW
Business"), as more completely described in a Registration Statement on Form S-1
(File No. 333-123289) filed with the Securities and Exchange Commission
("Commission") under the Securities Act, as amended (the "IPO Registration
Statement");
WHEREAS, Retail Ventures and DSW currently contemplate that DSW will make
an initial public offering ("IPO") pursuant to the IPO Registration Statement of
an amount of its Class A common shares that will reduce Retail Ventures'
ownership of the combined voting power of the Class A common shares and Class B
common shares, voting together as a single class, to not less than 80.1%; and
WHEREAS, the Parties intend in this Agreement, including the Exhibits and
Schedules hereto, to set forth the principal arrangements between them regarding
the separation of the DSW Business from Retail Ventures.
NOW, THEREFORE, in consideration of the foregoing and the terms,
conditions, covenants and provisions of this Agreement, Retail Ventures and DSW
mutually covenant and agree as follows:
ARTICLE I
DOCUMENTS AND ITEMS TO BE
DELIVERED ON THE IPO DATE
Section 1.1 DOCUMENTS TO BE DELIVERED BY RETAIL VENTURES. On or
prior to the closing of the IPO (the "IPO Date"), Retail Ventures will deliver,
or will cause its appropriate Subsidiaries to deliver, to DSW all of the
following items and agreements:
(a) A duly executed Tax Separation Agreement substantially in
the form attached to the IPO Registration Statement as Exhibit 10.28 (the "Tax
Separation Agreement");
(b) A duly executed Shared Services Agreement, substantially
in the form attached to the IPO Registration Statement as Exhibit 10.27 (the
"Shared Services Agreement");
(c) The resignations of certain officers and/or directors of
Retail Ventures and/or any member of the Retail Ventures Group who will become
officers and/or directors of DSW and who are identified on Schedule 1.1(c);
(d) A duly executed agreement governing the continuing use of
United States Patent No. D495,172 and any patent that issues from Patent
Application No. 29/205,562 substantially in the form attached hereto as Exhibit
A (the "IP License");
(e) A duly executed Exchange Agreement substantially in the
form attached to the IPO Registration Statement as Exhibit 4.4 (the "Share
Exchange Agreement"); and
(f) Such other agreements, documents or instruments as the
Parties may agree are necessary or desirable in order to achieve the purposes
hereof.
Section 1.2 DOCUMENTS TO BE DELIVERED BY DSW. On or prior to the IPO
Date, DSW will deliver, or will cause its appropriate Subsidiaries to deliver,
to Retail Ventures all of the following items and agreements:
(a) In each case where DSW is a party to any agreement or
instrument referred to in Section 1.1, a duly executed counterpart of such
agreement or instrument;
(b) The resignations of certain officers and/or directors of
DSW and/or its Subsidiary who will become officers and/or directors of Retail
Ventures and/or any member of the Retail Ventures Group and who are identified
on Schedule 1.2 (b); and
(c) Such other agreements, documents or instruments as the
Parties may agree are necessary or desirable in order to achieve the purposes
hereof.
ARTICLE II
THE IPO AND ACTIONS PENDING THE IPO; DISTRIBUTION
Section 2.1 TRANSACTIONS PRIOR TO THE IPO. Subject to the occurrence
of the events described in this Article II, Retail Ventures and DSW intend to
consummate the IPO and to take, or cause to be taken, the actions specified in
this Section 2.1.
(a) REGISTRATION STATEMENT. DSW has filed the IPO Registration
Statement, and intends to file such amendments or supplements thereto as may be
necessary in order to cause the same to become and remain effective as required
by law or by the managing underwriters for the IPO (the "Underwriters"),
including, without limitation, filing such amendments or supplements to the IPO
Registration
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Statement as may be required by the underwriting agreement to be entered into
among DSW and the Underwriters (the "Underwriting Agreement"), the Commission or
federal, state or foreign securities laws. Retail Ventures and DSW also intend
to cooperate in preparing, filing with the Commission and causing to become
effective a registration statement registering the Class A common shares of DSW
under the Securities and Exchange Act of 1934, as amended (the "Exchange Act"),
and any registration statements or amendments thereof which are required to
reflect the establishment of, or amendments to, any employee benefit and other
plans necessary or appropriate in connection with the IPO or the other
transactions contemplated by this Agreement.
(b) UNDERWRITING AGREEMENT. DSW shall enter into the
Underwriting Agreement, in form and substance reasonably satisfactory to DSW and
comply with its obligations thereunder.
(c) NYSE LISTING. DSW intends to prepare, file and make
effective, an application for listing of its Class A common shares issued in the
IPO on the New York Stock Exchange ("NYSE"), subject to official notice of
issuance.
Section 2.2 COOPERATION. DSW shall consult with, and cooperate in
all respects with, Retail Ventures in connection with the pricing of the Class A
common shares of DSW to be offered in the IPO and shall, at Retail Ventures'
direction, promptly take any and all actions necessary or desirable to
consummate the IPO as contemplated by the IPO Registration Statement and the
Underwriting Agreement.
Section 2.3 DEBT REORGANIZATION EVENTS. Prior to, or concurrently
with, the IPO Date, Retail Ventures and DSW shall cause the following events to
occur (collectively, the "Debt Reorganization Events"), as more fully described
in the IPO Registration Statement:
(a) Retail Ventures will amend and restate the Loan and
Security Agreement, as amended, entered into with National City Commercial
Finance, Inc. (n/k/a National City Business Credit, Inc.), as administrative
agent, and the other parties named therein, dated June 11, 2002, and DSW and its
wholly-owned subsidiary, DSW Shoe Warehouse, Inc., a Missouri corporation
("DSWSW"), will be released from their obligations thereunder;
(b) Retail Ventures will amend the Financing Agreement, as
amended, among Cerberus Partners L.P., or Cerberus, as agent and lender,
Schottenstein Stores Corporation, an Ohio corporation ("SSC"), as lender, and
the other parties named therein, dated June 11, 2002;
(c) Retail Ventures will enter into a Second Amended and
Restated Senior Loan Agreement amending and restating the Amended and Restated
Senior Subordinated Convertible Loan Agreement, as amended, entered into with
Cerberus, as agent and lender, SSC, as lender, and the other parties named
therein, dated June 11, 2002; and DSW will be released from its obligations
thereunder;
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(d) Pursuant to the Second Amended and Restated Senior Loan
Agreement, Retail Ventures will amend and restate the outstanding warrants dated
as of September 26, 2002 ("Term Loan Warrants") and will issue "Conversion
Warrants" (as defined in the Second Amended and Restated Senior Loan Agreement)
(the Term Loan Warrants and the Conversion Warrants being referred to
collectively as the "Warrants");
(e) Retail Ventures will enter into a Second Amended and
Restated Registration Rights Agreement amending the Registration Rights
Agreement dated June 11, 2002;
(f) DSW will enter into a Registration Rights Agreement with
Cerberus and SSC;
(g) Retail Ventures and DSW will terminate the cross-factor
guaranty agreements listed on Schedule 2.3(g); and
(h) DSW will enter into a new five-year $150 million secured
revolving credit facility with National City Business Credit, Inc., as
administrative agent (the "DSW Credit Facility").
Section 2.4 CONDITIONS PRECEDENT TO CONSUMMATION OF THE IPO. The
obligations of the Parties to consummate the IPO shall be conditioned on the
satisfaction of the following conditions (collectively, the "IPO Conditions"):
(a) DEBT REORGANIZATION EVENTS. Retail Ventures and DSW shall
have consummated the Debt Reorganization Events;
(b) REGISTRATION STATEMENT. The IPO Registration Statement
shall have been filed and declared effective by the Commission, and there shall
be no stop-order in effect with respect thereto;
(c) BLUE SKY. The actions and filings with regard to
applicable securities and blue sky laws of any state (and any comparable laws
under any foreign jurisdictions) shall have been taken and, where applicable,
have become effective or been accepted;
(d) NYSE LISTING. The Class A common shares of DSW to be
issued in the IPO shall have been accepted for listing on the NYSE, on official
notice of issuance;
(e) UNDERWRITING AGREEMENT. DSW shall have entered into the
Underwriting Agreement and all conditions to the obligations of DSW and the
Underwriters shall have been satisfied or waived by the party that is entitled
to the benefit thereof;
(f) STOCK OWNERSHIP. Retail Ventures shall be satisfied, in
its sole discretion, that it will own at least 80.1% of the combined voting
power of the outstanding Class A common shares and Class B common shares, voting
together as a
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single class, and that DSW will have no class of DSW Capital Stock other than
the Common Shares outstanding, immediately following the IPO;
(g) NO LEGAL RESTRAINTS. No order, injunction or decree issued
by any court or agency of competent jurisdiction or other legal restraint or
prohibition preventing the consummation of the IPO or any of the other
transactions contemplated by this Agreement shall be in effect;
(h) DELIVERIES. Each Party shall have made the deliveries
required pursuant to Section 1.1 and Section 1.2, respectively; and
(i) OTHER ACTIONS. Such other actions as the Parties hereto
may, based upon the advice of counsel, reasonably request to be taken prior to
the IPO in order to assure the successful completion of the IPO, shall have been
taken.
Retail Ventures and DSW shall each use their reasonable best efforts to satisfy,
or cause to be satisfied, the IPO Conditions.
Section 2.5 DISTRIBUTION.
(a) DISTRIBUTION GENERALLY. At any time after the IPO Date, if
Retail Ventures, in its sole and absolute discretion, advises DSW that Retail
Ventures intends to pursue a Distribution, DSW agrees to take all action
reasonably requested by Retail Ventures to facilitate the Distribution.
(b) RETAIL VENTURES' SOLE DISCRETION. Retail Ventures shall,
in its sole and absolute discretion, determine whether to proceed with all or
part of a Distribution, the date of the consummation of the Distribution and all
terms of the Distribution, including, without limitation, the form, structure
and terms of any transaction(s) and/or offering(s) to effect the Distribution
and the timing of and conditions to the consummation of the Distribution. In
addition, Retail Ventures may at any time and from time to time until the
completion of the Distribution, modify or change the terms of the Distribution,
including, without limitation, by accelerating or delaying the timing of the
consummation of all or part of the Distribution. DSW shall cooperate with Retail
Ventures in all respects to accomplish the Distribution and shall, at Retail
Ventures' direction, promptly take any and all actions that Retail Ventures
deems reasonably necessary or desirable to effect the Distribution. Without
limiting the generality of the foregoing, DSW shall, at Retail Ventures'
direction, cooperate with Retail Ventures, and execute and deliver, or use its
best efforts to cause to have executed and delivered, all instruments, including
instruments of conveyance, assignment and transfer, and to make all filings
with, and to obtain all consents, approvals or authorizations of, any domestic
or foreign governmental or regulatory authority requested by Retail Ventures in
order to consummate and make effective the Distribution. If, in connection with
any Distribution, Retail Ventures makes a Request (as defined herein) for a
Demand Registration (as defined herein), the terms and the conditions set forth
in Article IV hereof shall govern.
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ARTICLE III
COVENANTS AND OTHER MATTERS
Section 3.1 OTHER AGREEMENTS. Retail Ventures and DSW agree to
execute or cause to be executed by the appropriate parties and deliver, as
appropriate, such other agreements, instruments and other documents as may be
necessary or desirable in order to effect the purposes of this Agreement and the
Inter-Company Agreements.
Section 3.2 FURTHER INSTRUMENTS. At the request of DSW, and without
further consideration, Retail Ventures will execute and deliver, and will cause
its applicable Subsidiaries to execute and deliver, to DSW such other
instruments of transfer, conveyance, assignment, substitution and confirmation
and take such action as DSW may reasonably deem necessary or desirable in order
to transfer, convey and assign to DSW and confirm DSW's title to any assets,
rights and other things of value used in the operation of the DSW Business prior
to the IPO Date or to be transferred to DSW pursuant to this Agreement, the
Inter-Company Agreements or any document referred to therein, to put DSW in
actual possession and operating control thereof and to permit DSW to exercise
all rights with respect thereto (including, without limitation, rights under
contracts and other arrangements as to which the consent of any third party to
the transfer thereof shall not have previously been obtained); provided,
however, that any such assets, rights or other things of value not reflected on
the DSW Balance Sheet shall only be transferred against payment by DSW to Retail
Ventures or its applicable Subsidiary of an amount equal to the book value
thereof. At the request of Retail Ventures and without further consideration,
DSW will execute and deliver to Retail Ventures and its Subsidiaries all
instruments, assumptions, novations, undertakings, substitutions or other
documents and take such other action as Retail Ventures may reasonably deem
necessary or desirable in order to have DSW fully and unconditionally assume and
discharge the DSW Liabilities. Except as hereinabove provided, neither Retail
Ventures nor DSW shall be obligated, in connection with the foregoing, to expend
money other than reasonable out-of-pocket expenses, attorneys' fees and
recording or similar fees, unless reimbursed by the other Party. Furthermore,
each Party, at the request of the other Party hereto, shall execute and deliver
such other instruments and do and perform such other acts and things as may be
necessary or desirable for effecting completely the consummation of the
transactions contemplated hereby.
Section 3.3 AGREEMENT FOR EXCHANGE OF INFORMATION.
(a) GENERALLY. Each of Retail Ventures and DSW agrees to
provide, or cause to be provided, to the other, at any time, as soon as
reasonably practicable after written request therefor, all reports and other
Information regularly provided by one Party to the other Party to Retail
Ventures prior to the IPO Date and any Information in the possession or under
the control of such Party that the requesting Party reasonably needs (i) to
comply with reporting, disclosure, filing or other requirements imposed on the
requesting Party (including under applicable securities laws) by a Governmental
Authority having jurisdiction over the requesting Party, (ii) for use in any
other judicial, regulatory, administrative or other proceeding or in order to
satisfy audit,
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accounting, claims, regulatory, litigation or other similar requirements, (iii)
to comply with its obligations under this Agreement, any Inter-Company Agreement
or the Warrants or (iv) during the period from the IPO Date until the
Distribution Date (the "Pre-Distribution Period") and thereafter to the extent
such Information and cooperation is necessary to comply with such reporting,
filing and disclosure obligations, for the preparation of financial statements
or completing an audit, and as reasonably necessary to conduct the ongoing
businesses of Retail Ventures or DSW, as the case may be; PROVIDED, HOWEVER,
that in the event that any Party determines that any such provision of
Information could be commercially detrimental, violate any law or agreement, or
waive any attorney-client privilege, the Parties shall take all reasonable
measures to permit the compliance with such obligations in a manner that avoids
any such harm or consequence. Each of Retail Ventures and DSW agree to make
their respective personnel available to discuss the Information exchanged
pursuant to this Section 3.3.
(b) INTERNAL ACCOUNTING CONTROLS; FINANCIAL INFORMATION.
Except as otherwise provided in the Shared Services Agreement, after the IPO
Date, (i) each Party shall maintain in effect at its own cost and expense
adequate systems and controls for its business to the extent necessary to enable
the other Party to satisfy its reporting, tax return, accounting, audit and
other obligations, and (ii) each Party shall provide, or cause to be provided,
to the other Party and its Subsidiaries in such form as such requesting Party
shall request, at no charge to the requesting Party, all financial and other
data and information as the requesting Party determines necessary or advisable
in order to prepare its financial statements and reports or filings with any
Governmental Authority. After the expiration of Retails Ventures' obligations to
provide internal auditing and related services pursuant to the Shared Services
Agreement, DSW shall be responsible its obligations under this Section 3.3(b).
(c) OWNERSHIP OF INFORMATION. Any Information owned by a Party
that is provided to a requesting Party pursuant to this Section 3.3 shall be
deemed to remain the property of the providing Party. Unless specifically set
forth herein, nothing contained in this Agreement shall be construed as granting
or conferring rights of license or otherwise in any such Information.
(d) RECORD RETENTION. To facilitate the possible exchange of
Information pursuant to this Section 3.3 and other provisions of this Agreement
after the Distribution Date, each Party agrees to use its best efforts until the
Distribution Date to retain all Information in its respective possession or
control substantially in accordance with its respective record retention
policies and/or practices as in effect on the IPO Date. However, except as set
forth in the Tax Separation Agreement, at any time after the Distribution Date,
each Party may amend its respective record retention policies at such Party's
discretion; PROVIDED, HOWEVER, that if a Party desires to effect the amendment
within three (3) years after the Distribution Date, the amending Party must give
thirty (30) days prior written notice of such change in the policy to the other
Party to this Agreement. No Party will destroy, or permit any of its
Subsidiaries to destroy, any Information that exists on the IPO Date (other than
Information that is permitted to be destroyed under the current respective
record retention policies of each Party) and that
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falls under the categories listed in Section 3.3(a), without first notifying the
other Party of the proposed destruction and giving the other Party the
opportunity to take possession or make copies of such Information prior to such
destruction.
(e) LIMITATION OF LIABILITY. Each Party will use its best
efforts to ensure that Information provided to the other Party hereunder is
accurate and complete; PROVIDED, HOWEVER, no Party shall have any liability to
any other Party in the event that any Information exchanged or provided pursuant
to this Section 3.3 is found to be inaccurate, in the absence of gross
negligence or willful misconduct by the party providing such Information. No
Party shall have any liability to any other Party if any Information is
destroyed or lost after the relevant Party has complied with the provisions of
Section 3.3(d).
(f) OTHER AGREEMENTS PROVIDING FOR EXCHANGE OF INFORMATION.
The rights and obligations granted under this Section 3.3 are subject to any
specific limitations, qualifications or additional provisions on the sharing,
exchange or confidential treatment of Information set forth in this Agreement
and any Inter-Company Agreement.
(g) PRODUCTION OF WITNESSES; RECORDS; COOPERATION. After the
IPO Date, except in the case of a legal or other proceeding by one Party against
another Party, each Party hereto shall use its commercially reasonable efforts
to make available to each other Party, upon written request, the former, current
and future directors, officers, employees, other personnel and agents of such
Party as witnesses and any books, records or other documents within its control
or which it otherwise has the ability to make available, to the extent that any
such person (giving consideration to business demands of such directors,
officers, employees, other personnel and agents) or books, records or other
documents may reasonably be required in connection with any legal,
administrative or other proceeding in which the requesting Party may from time
to time be involved, regardless of whether such legal, administrative or other
proceeding is a matter with respect to which indemnification may be sought
hereunder. The requesting Party shall bear all costs and expenses in connection
therewith.
Section 3.4 AUDITORS AND AUDITS; FINANCIAL STATEMENTS; ACCOUNTING
MATTERS.
Each Party agrees that:
(a) SELECTION OF AUDITORS. Until the first Retail Ventures
fiscal year end occurring after the Distribution Date, DSW shall provide Retail
Ventures as much prior notice as reasonably practical of any change in its
independent certified public accountants as of the Distribution Date ("DSW's
Auditors") for purposes of providing an opinion on its consolidated financial
statements.
(b) DATE OF AUDITORS' OPINION AND QUARTERLY REVIEWS. Until the
first Retail Ventures fiscal year end occurring after the Distribution
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Date and thereafter to the extent necessary for the purpose of preparing
financial statements or completing a financial statement audit, DSW shall use
its best efforts to enable the DSW Auditors to complete their audit such that
they will date their opinion on DSW's audited annual financial statements on the
same date that Retail Ventures' independent certified public accountants
("Retail Ventures' Auditors") date their opinion on Retail Ventures' audited
annual financial statements, and to enable Retail Ventures to meet its timetable
for the printing, filing and public dissemination of Retail Ventures' annual
financial statements. Until the first Retail Ventures fiscal year end occurring
after the Distribution Date and thereafter to the extent necessary for the
purpose of preparing financial statements or completing a financial statement
audit, DSW shall use its best efforts to enable the DSW Auditors to complete
their annual audit and quarterly review procedures such that they will provide
clearance on DSW's annual and quarterly financial statements on the same date
that Retail Ventures' Auditors provide clearance on Retail Ventures' annual and
quarterly financial statements.
(c) ANNUAL AND QUARTERLY FINANCIAL STATEMENTS. Until the
Distribution Date, DSW shall not change its fiscal year and, until the Retail
Ventures fiscal year end first occurring after the Distribution Date and
thereafter to the extent necessary for the purpose of preparing financial
statements or completing a financial statement audit, shall provide to Retail
Ventures on a timely basis all Information that Retail Ventures reasonably
requires to meet its schedule for the preparation, printing, filing, and public
dissemination of Retail Ventures' annual, quarterly and monthly financial
statements. Without limiting the generality of the foregoing, DSW will provide
all required financial Information with respect to DSW to DSW's Auditors in a
sufficient and reasonable time and in sufficient detail to permit DSW's Auditors
to take all steps and perform all reviews necessary to provide sufficient
assistance to Retail Ventures' Auditors with respect to financial Information to
be included or contained in Retail Ventures' annual, quarterly and monthly
financial statements. Similarly, Retail Ventures shall provide to DSW on a
timely basis all financial Information that DSW reasonably requires to meet its
schedule for the preparation, printing, filing, and public dissemination of
DSW's annual, quarterly and monthly financial statements. Without limiting the
generality of the foregoing, Retail Ventures will provide all required financial
Information with respect to Retail Ventures and its Subsidiaries to DSW's
Auditors in a sufficient and reasonable time and in sufficient detail to permit
DSW's Auditors to take all steps and perform all reviews necessary to provide
sufficient assistance to DSW's Auditors with respect to Information to be
included or contained in DSW's annual and quarterly financial statements.
(d) CERTIFICATIONS AND ATTESTATIONS. Until the first Retail
Ventures fiscal year end occurring after the Distribution Date and thereafter to
the extent necessary for the timely filing by Retail Ventures of annual and
quarterly reports under the Exchange Act, DSW shall cause its appropriate
officers and employees to provide to Retail Ventures on a timely basis any
certificates reasonably requested by Retail Ventures as support for the
certifications and attestations required by Sections 302, 906 and 404 of the
Xxxxxxxx-Xxxxx Act of 2002 to be filed with such annual and quarterly reports.
For so long as Retail Ventures is providing accounting and financial services
pursuant to the Shared Services Agreement and thereafter to the extent necessary
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for the timely filing by DSW of annual and quarterly reports under the Exchange
Act, Retail Ventures shall cause its appropriate officers and employees to
provide to DSW on a timely basis any certificates reasonably requested by DSW as
support for the certifications and attestations required by Sections 302, 906
and 404 of the Xxxxxxxx-Xxxxx Act of 2002 to be filed with such annual and
quarterly reports.
(e) COMPLIANCE WITH LAWS, POLICIES AND REGULATIONS. Until the
Distribution Date, DSW shall comply with all financial accounting and reporting
rules, policies and directives of Retail Ventures, and fulfill all timing and
reporting requirements, applicable to Retail Ventures' Subsidiaries that are
consolidated with Retail Ventures for financial statement purposes. Without
limiting the foregoing, DSW shall comply with all financial accounting and
reporting rules and policies, and fulfill all timing and reporting requirements,
under applicable federal securities laws and NYSE rules.
(f) IDENTITY OF PERSONNEL PERFORMING THE ANNUAL AUDIT AND
QUARTERLY REVIEWS. Until the Distribution Date and thereafter to the extent such
information and cooperation is necessary for the preparation of financial
statements or completing a financial statements audit, DSW shall authorize DSW's
Auditors to make available to Retail Ventures' Auditors both the personnel who
performed or will perform the annual audits and quarterly reviews of DSW and
work papers related to the annual audits and quarterly reviews of DSW, in all
cases within a reasonable time prior to DSW's Auditors' opinion date, so that
Retail Ventures' Auditors are able to perform the procedures they consider
necessary to take responsibility for the work of DSW's Auditors as it relates to
Retail Ventures' Auditors' report on Retail Ventures' financial statements, all
within sufficient time to enable Retail Ventures to meet its timetable for the
printing, filing and public dissemination of Retail Ventures' annual and
quarterly statements. Similarly, Retail Ventures shall authorize Retail
Ventures' Auditors to make available to DSW's Auditors both the personnel who
performed or will perform the annual audits and quarterly reviews of Retail
Ventures and work papers related to the annual audits and quarterly reviews of
Retail Ventures, in all cases within a reasonable time prior to Retail Ventures'
Auditors' opinion date, so that DSW's Auditors are able to perform the
procedures they consider necessary to take responsibility for the work of Retail
Ventures' Auditors as it relates to DSW's Auditors' report on DSW's statements,
all within sufficient time to enable DSW to meet its timetable for the printing,
filing and public dissemination of DSW's annual and quarterly financial
statements.
(g) ACCESS TO BOOKS AND RECORDS. Until the Distribution Date
and thereafter to the extent such information and cooperation is necessary for
the preparation of financial statements or completing a financial statements
audit, all governmental audits are complete and the applicable statute of
limitations for tax matters has expired, DSW shall provide Retail Ventures'
internal auditors, counsel and other designated representatives of Retail
Ventures access during normal business hours to (i) the premises of DSW and all
Information (and duplicating rights) within the knowledge, possession or control
of DSW and (ii) the officers and employees of DSW, so that Retail Ventures may
conduct reasonable audits relating to the financial statements provided by DSW
pursuant hereto as well as to the internal accounting controls and
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operations of DSW. Similarly, Retail Ventures shall provide DSW's internal
auditors, counsel and other designated representatives of DSW access during
normal business hours to (i) the premises of Retail Ventures and its
Subsidiaries and all Information (and duplicating rights with respect thereto)
within the knowledge, possession or control of Retail Ventures and its
Subsidiaries and (ii) the officers and employees of Retail Ventures and its
Subsidiaries, so that DSW may conduct reasonable audits relating to the
financial statements provided by Retail Ventures pursuant hereto as well as to
the internal accounting controls and operations of Retail Ventures and its
Subsidiaries.
(h) NOTICE OF CHANGE IN ACCOUNTING PRINCIPLES. Until the
Distribution Date and thereafter if a change in accounting principles by a Party
hereto would affect the historical financial statements of the other Party,
neither Party shall make or adopt any significant changes in its accounting
estimates or accounting principles from those in effect on the IPO Date without
first consulting with the other Party, and if requested by the other Party, such
Party's independent public accountants with respect thereto. Retail Ventures
shall give DSW as much prior notice as reasonably practical of any proposed
determination of, or any significant changes in, its accounting estimates or
accounting principles from those in effect on the IPO Date. Retail Ventures will
consult with DSW and, if requested by DSW, Retail Ventures will consult with
DSW's independent public accountants with respect thereto.
(i) CONFLICT WITH THIRD-PARTY AGREEMENTS. Nothing in Section
3.3 or Section 3.4 shall require DSW to violate any agreement with any third
party regarding the confidentiality of confidential and proprietary information
relating to that third party or its business; PROVIDED, HOWEVER, that in the
event that DSW is required under Section 3.3 or Section 3.4 to disclose any such
Information, DSW shall use its best efforts to seek to obtain such third party's
consent to the disclosure of such information.
Section 3.5 CONFIDENTIALITY.
(a) For a period beginning on the IPO date and continuing
until the second anniversary of the Distribution Date, Retail Ventures and DSW
shall hold and shall cause each of their respective Subsidiaries to hold, and
shall each cause their respective officers, employees, agents, consultants and
advisors to hold, in strict confidence and not to disclose or release without
the prior written consent of the other Party, any and all Confidential
Information (as defined herein) concerning the other Party; PROVIDED, that the
Parties may disclose, or may permit disclosure of, Confidential Information (i)
to their respective Affiliated Companies, auditors, attorneys, financial
advisors, bankers and other appropriate consultants and advisors who have a need
to know such information and are informed of their obligation to hold such
information confidential to the same extent as is applicable to the Parties
hereto and in respect of whose failure to comply with such obligations, DSW or
Retail Ventures, as the case may be, will be responsible or (ii) if the Parties
or any of their respective Affiliated Companies are compelled to disclose any
such Confidential Information by judicial or administrative process or, in the
opinion of independent legal counsel, by other requirements of law.
Notwithstanding the foregoing, in the event that any demand or
14
request for disclosure of Confidential Information is made pursuant to clause
(ii) above, Retail Ventures or DSW, as the case may be, shall promptly notify
the other of the existence of such request or demand and shall provide the other
a reasonable opportunity to seek an appropriate protective order or other
remedy, which both Parties will cooperate in obtaining. In the event that such
appropriate protective order or other remedy is not obtained, the Party whose
Confidential Information is required to be disclosed shall or shall cause the
other Party to furnish, or cause to be furnished, only that portion of the
Confidential Information that is legally required to be disclosed. As used in
this Section 3.5:
(i) "Confidential Information" shall mean Confidential
Business Information and Confidential Operational Information concerning
one Party which, prior to or following the IPO Date, has been disclosed by
Retail Ventures or its Subsidiaries on the one hand, or DSW or its
Subsidiaries, on the other hand, in written, oral (including by
recording), electronic, or visual form to, or otherwise has come into the
possession of, the other, including pursuant to the access provisions of
Section 3.3 or Section 3.4 hereof or any other provision of this Agreement
(except to the extent that such Information can be shown to have been (x)
in the public domain through no fault of such Party (or any Party's
Subsidiary) or (y) later lawfully acquired from other sources by the Party
(or any Party's Subsidiary) to which it was furnished; PROVIDED, HOWEVER,
in the case of (y) that such sources did not provide such Information in
breach of any confidentiality obligations).
(ii) "Confidential Operational Information" shall mean
all proprietary operational information, data or material including,
without limitation, (a) specifications, ideas and concepts for products
and services, (b) quality assurance policies, procedures and
specifications, (c) customer information, (d) computer software and
derivatives thereof, (e) training materials and information and (f) all
other know-how, methodology, procedures, techniques and trade secrets
related to design and development.
(iii) "Confidential Business Information" shall mean all
proprietary information, data or material other than Confidential
Operational Information, including, but not limited to (a) proprietary
earnings reports and forecasts, (b) proprietary macro-economic reports and
forecasts, (c) proprietary business plans, (d) proprietary general market
evaluations and surveys and (e) proprietary financing and credit-related
information.
(b) Notwithstanding anything to the contrary set forth herein,
(i) Retail Ventures and its Subsidiaries, on the one hand, and DSW and its
Subsidiary, on the other hand, shall be deemed to have satisfied their
obligations hereunder with respect to Confidential Information if they exercise
the same degree of care (but no less than a reasonable degree of care) as they
take to preserve confidentiality for their own similar
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Information and (ii) confidentiality obligations provided for in any agreement
between Retail Ventures or its Subsidiaries, or DSW or any of its Subsidiaries,
on the one hand, and any employee of Retail Ventures or any of its Subsidiaries,
or DSW or any of its Subsidiaries, on the other hand shall remain in full force
and effect. Confidential Information of Retail Ventures and its Subsidiaries, on
the one hand, or DSW, on the other hand, in the possession of and used by the
other as of the IPO Date may continue to be used by such Person in possession of
the Confidential Information in and only in the operation of the business of
Retail Ventures or the DSW Business, as the case may be, and may be used only so
long as the Confidential Information is maintained in confidence and not
disclosed in violation of Section 3.5(a). Such continued right to use may not be
transferred to any third party unless the third party purchases all or
substantially all of the business and assets in one transaction or in a series
of related transactions for which or in which the relevant Confidential
Information is used or employed. In the event that such right to use is
transferred in accordance with the preceding sentence, the transferring Party
shall not disclose the source of the relevant Confidential Information.
Section 3.6 PRIVILEGED MATTERS.
(a) Retail Ventures and DSW agree that their respective rights
and obligations to maintain, preserve, assert or waive any or all privileges
belonging to either corporation or their Subsidiaries with respect to the DSW
Business or the business of Retail Ventures, including but not limited to the
attorney-client and work product privileges (collectively, "Privileges"), shall
be governed by the provisions of this Section 3.6. With respect to Privileged
Information of Retail Ventures (as defined below), Retail Ventures shall have
sole authority in perpetuity to determine whether to assert or waive any or all
Privileges, and DSW shall take no action (nor permit any of its Subsidiaries to
take action) without the prior written consent of Retail Ventures that could
result in any waiver of any Privilege that could be asserted by Retail Ventures
or any of its Subsidiaries under applicable law and this Agreement. With respect
to Privileged Information of DSW (as defined below) arising after the IPO Date,
DSW shall have sole authority in perpetuity to determine whether to assert or
waive any or all Privileges, and Retail Ventures shall take no action (nor
permit any of its Subsidiaries to take action) without the prior written consent
of DSW that could result in any waiver of any Privilege that could be asserted
by DSW or any of its Subsidiaries under applicable law and this Agreement. The
rights and obligations created by this Section 3.6 shall apply to all
Information as to which Retail Ventures or DSW or their respective Subsidiaries
would be entitled to assert or has asserted a Privilege without regard to the
effect, if any, of the Distribution ("Privileged Information"). Privileged
Information of Retail Ventures includes but is not limited to (i) any and all
Information regarding the business of Retail Ventures and its Subsidiaries
(other than the DSW Business; PROVIDED that DSW has assumed and will be liable
on or after the IPO Date for any liability or claim arising with respect to such
Information), whether or not it is in the possession of DSW or any of its
Subsidiaries; (ii) all communications subject to a Privilege between counsel for
Retail Ventures (including in-house counsel) and any person who, at the time of
the communication, was an employee of Retail Ventures, regardless of whether
such employee is or becomes an employee of DSW or any of its Subsidiaries and
(iii) all Information generated, received or arising after the IPO Date that
refers or relates to
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Privileged Information of Retail Ventures generated, received or arising prior
to the IPO Date. Privileged Information of DSW includes but is not limited to
(x) any and all Information regarding the DSW Business, whether or not it is in
the possession of Retail Ventures or any of its Subsidiaries; PROVIDED that DSW
has assumed and will be liable on or after the IPO Date for any liability or
claim arising with respect to such Information; (y) all communications subject
to a Privilege occurring after the IPO Date between counsel for the DSW Business
(including in-house counsel and former in-house counsel who are employees of
Retail Ventures) and any person who, at the time of the communication, was an
employee of DSW, regardless of whether such employee was, is or becomes an
employee of Retail Ventures or any of its Subsidiaries and (z) all Information
generated, received or arising after the IPO Date that refers or relates to
Privileged Information of DSW generated, received or arising after the IPO Date.
(b) Upon receipt by Retail Ventures or DSW, as the case may
be, of any subpoena, discovery or other request from any third party that
actually or arguably calls for the production or disclosure of Privileged
Information of the other or if Retail Ventures or DSW, as the case may be,
obtains knowledge that any current or former employee of Retail Ventures or DSW,
as the case may be, has received any subpoena, discovery or other request from
any third party that actually or arguably calls for the production or disclosure
of Privileged Information of the other, Retail Ventures or DSW, as the case may
be, shall promptly notify the other of the existence of the request and shall
provide the other a reasonable opportunity to review the Information and to
assert any rights it may have under this Section 3.6 or otherwise to prevent the
production or disclosure of Privileged Information. Retail Ventures or DSW, as
the case may be, will not produce or disclose to any third party any of the
other's Privileged Information under this Section 3.6 unless (a) the other has
provided its express written consent to such production or disclosure or (b) a
court of competent jurisdiction has entered an order not subject to
interlocutory appeal or review finding that the Information is not entitled to
protection from disclosure under any applicable privilege, doctrine or rule.
(c) Retail Ventures' transfer of books and records pertaining
to the DSW Business and other Information to DSW, if any, Retail Ventures'
agreement to permit DSW to obtain Information existing prior to the IPO Date,
DSW's transfer of books and records and other Information pertaining to Retail
Ventures, if any, and DSW's agreement to permit Retail Ventures to obtain
Information existing prior to the IPO Date are made in reliance on Retail
Ventures' and DSW's respective agreements, as set forth in Section 3.5 and this
Section 3.6, to maintain the confidentiality of such Information and to take the
steps provided herein for the preservation of all Privileges that may belong to
or be asserted by Retail Ventures or DSW, as the case may be. The access to
Information, witnesses and individuals being granted pursuant to Section 3.3 and
Section 3.4 and the disclosure to DSW and Retail Ventures of Privileged
Information relating to the DSW Business or the business of Retail Ventures
pursuant to this Agreement shall not be asserted by Retail Ventures or DSW to
constitute, or otherwise deemed, a waiver of any Privilege that has been or may
be asserted under this Section 3.6 or otherwise. Nothing in this Agreement shall
operate to reduce, minimize or condition the rights granted to Retail Ventures
and DSW in, or the obligations imposed upon Retail Ventures and DSW by, this
Section 3.6.
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Section 3.7 MAIL AND OTHER COMMUNICATIONS. After the IPO Date, each
of Retail Ventures and DSW may receive mail, facsimiles, packages and other
communications properly belonging to the other. Accordingly, at all times after
the IPO Date, each of Retail Ventures and DSW authorizes the other to receive
and open all mail, telegrams, packages and other communications received by it
and not unambiguously intended for the other Party or any of the other Party's
officers or directors, and to retain the same to the extent that they relate to
the business of the receiving Party or, to the extent that they do not relate to
the business of the receiving Party, the receiving Party shall promptly deliver
such mail, telegrams, packages or other communications, including, without
limitation, notices of any liens or encumbrances on any asset transferred to DSW
in connection with its separation from Retail Ventures, (or, in case the same
relate to both businesses, copies thereof) to the other Party as provided for in
Section 7.5 hereof. The provisions of this Section 3.7 are not intended to, and
shall not, be deemed to constitute an authorization by either Retail Ventures or
DSW to permit the other to accept service of process on its behalf and neither
Party is or shall be deemed to be the agent of the other for service of process
purposes.
Section 3.8 EMPLOYMENT MATTERS.
(a) For a period of two years following the IPO Date, neither
the Retail Ventures Group nor the DSW Group will, directly or indirectly,
solicit active employees of the other without its consent; PROVIDED that each
Party agrees to give such consent if it believes, in good faith, that consent is
necessary to avoid the resignation of an employee from one Party that the other
Party would wish to employ.
(b) All outstanding options to purchase shares of Retail
Ventures and all other Retail Ventures equity awards held by DSW Group employees
at the IPO Date will continue to be outstanding until the earlier of (i) the
date the option or award is exercised or expires under the terms of the award
agreement or (ii) the date the DSW Group employee is deemed to have "terminated"
as defined in the plan under which the award was granted or, if later, the end
of any post-termination exercise period specified in the award agreement or by
the plans' administrative committees.
Section 3.9 PAYMENT OF EXPENSES. Except as otherwise provided in
this Agreement, the Inter-Company Agreements or any other agreement between the
Parties relating to the IPO or the Distribution, (i) all costs and expenses of
the Parties hereto in connection with the IPO (including costs associated with
drafting this Agreement, the Inter-Company Agreements and the documents relating
to the formation of DSW) shall be paid by DSW; (ii) all costs and expenses of
the Parties hereto in connection with the Distribution shall be paid by DSW; and
(iii) all costs and expenses of the Parties hereto in connection with any matter
not relating to the IPO or the Distribution shall be paid by the Party which
incurs such cost or expense. Notwithstanding the foregoing, DSW and Retail
Ventures shall each be responsible for their own internal fees, costs and
expenses (e.g., salaries of personnel) incurred in connection with the IPO and
the Distribution.
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Section 3.10 DISPUTE RESOLUTION.
(a) Any dispute, controversy or claim arising out of or
relating to this Agreement or the Inter-Company Agreements, other than the Tax
Separation Agreement, or the breach, termination or validity thereof ("Dispute")
which arises between the Parties shall first be negotiated between appropriate
senior executives of each Party who shall have the authority to resolve the
matter. Such executives shall meet to attempt in good faith to negotiate a
resolution of the Dispute prior to pursuing other available remedies, within ten
(10) days of receipt by a Party of notice of a Dispute, which date of receipt
shall be referred to herein as the "Dispute Resolution Commencement Date."
Discussions and correspondence relating to trying to resolve such Dispute shall
be treated as confidential information developed for the purpose of settlement
and shall be exempt from discovery or production and shall not be admissible in
any subsequent proceeding between the Parties.
(b) If the senior executives are unable to resolve the Dispute
within sixty (60) days from the Dispute Resolution Commencement Date, then, the
Dispute will be submitted to the Board of Directors of each Party.
Representatives of each Board shall meet as soon as practicable to attempt in
good faith to negotiate a resolution of the Dispute.
(c) If the representatives of the Boards of Directors are
unable to resolve the Dispute within one hundred twenty (120) days from the
Dispute Resolution Commencement Date, on the request of any Party, the Dispute
will be mediated by a mediator appointed pursuant to the mediation rules of the
American Arbitration Association ("AAA"). Both Parties will share the
administrative costs of the mediation and the mediator's fees and expenses
equally, and each Party shall bear all of its other costs and expenses related
to the mediation, including but not limited to attorney's fees, witness fees,
and travel expenses. The mediation shall take place in Franklin County, Ohio or
in whatever alternative forum on which the Parties may agree.
(d) Any Dispute which the Parties cannot resolve through
mediation within forty-five days of the appointment of the mediator, shall at
the request of any Party be submitted to final and binding arbitration under the
then current Commercial Arbitration Rules of the AAA in Franklin County, Ohio.
There shall be three (3) neutral arbitrators of whom Retail Ventures shall
appoint one and DSW shall appoint one within 30 days of the receipt by the
respondent of the demand for arbitration. The two arbitrators so appointed shall
select the chair of the arbitral tribunal within 30 days of the appointment of
the second arbitrator. If any arbitrator is not appointed within the time limit
provided herein, such arbitrator shall be appointed by the AAA by using a list
striking and ranking procedure in accordance with its rules. Any arbitrator
appointed by the AAA shall be a retired judge or a practicing attorney with no
less than fifteen (15) years of experience and an experienced arbitrator. The
prevailing Party in such arbitration shall be entitled to be awarded its
expenses, including its share of administrative and arbitrator fees and expenses
and reasonable attorneys' and other professional fees, incurred in connection
with the arbitration (but excluding any costs and fees associated with prior
negotiation or mediation). The decision of the arbitrators shall
19
be final and binding on the Parties and may be enforced in any court of
competent jurisdiction.
(e) By agreeing to arbitration, the Parties do not intend to
deprive any court of its jurisdiction to issue a pre-arbitral injunction,
pre-arbitral attachment, or other order in aid of arbitration proceedings and
the enforcement of any award. Without prejudice to such provisional remedies as
may be available under the jurisdiction of a court, the arbitral tribunal shall
have full authority to grant provisional remedies or modify or vacate any
temporary or preliminary relief issued by a court, to issue an award for
temporary or permanent injunctive relief (including specific performance) and to
award damages for the failure of any Party to respect the arbitral tribunal's
orders to that effect.
(f) Unless otherwise agreed in writing, the Parties will
continue to provide service and honor all other commitments under this Agreement
and each Inter-Company Agreement during the course of dispute resolution
pursuant to the provisions of this Section 3.10 with respect to all matters not
subject to such dispute, controversy or claim.
Section 3.11 GOVERNMENTAL APPROVALS. To the extent that any of the
transactions contemplated by this Agreement requires any Governmental Approvals,
the Parties will use their best efforts to obtain any such Governmental
Approvals.
Section 3.12 NO REPRESENTATION OR WARRANTY.
(a) Retail Ventures does not, in this Agreement or any other
agreement, instrument or document contemplated by this Agreement, make any
representation as to, warranty of or covenant with respect to:
(i) the value of any asset or thing of value
transferred, or to be transferred, to DSW;
(ii) the freedom from encumbrance of any asset or thing
of value transferred, or to be transferred, to DSW; PROVIDED, HOWEVER,
that Retail Ventures agrees to notify DSW promptly in the event Retail
Ventures receives any notice or claim of any encumbrance on or against any
asset or thing of value transferred, or to be transferred, to DSW;
(iii) the absence of defenses or freedom from
counterclaims with respect to any claim transferred, or to be transferred,
to DSW; PROVIDED, HOWEVER, that neither Retail Ventures nor its
Subsidiaries have any counterclaims with respect to any claim transferred,
or to be transferred, to DSW; or
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(iv) the legal sufficiency of any assignment, document
or instrument delivered hereunder to convey title to any asset or thing of
value upon its execution, delivery and filing.
Except as may expressly be set forth herein or in any Inter-Company
Agreement, all assets transferred, or to be transferred, to DSW have been, or
shall be, as the case may be, transferred "AS IS, WHERE IS" and DSW shall bear
the economic and legal risk that any conveyance shall prove to be insufficient
to vest in DSW good and marketable title, free and clear of any lien, claim,
equity or other encumbrance.
(b) DSW does not, in this Agreement or any other agreement,
instrument or document contemplated by this Agreement, make any representation
as to, warranty of or covenant with respect to:
(i) the value of any asset or thing of value
transferred, or to be transferred, to Retail Ventures:
(ii) the freedom from encumbrance of any asset or thing
of value transferred, or to be transferred, to Retail Ventures; PROVIDED,
HOWEVER, that DSW agrees to notify Retail Ventures promptly in the event
DSW receives any notice or claim of any encumbrance on or against any
asset or thing of value transferred, or to be transferred, to Retail
Ventures;
(iii) the absence of defenses or freedom from
counterclaims with respect to any claim transferred, or to be transferred,
to Retail Ventures; PROVIDED, HOWEVER, that neither DSW nor its
Subsidiaries have any counterclaims with respect to any claim transferred,
or to be transferred, to Retail Ventures; or
(iv) the legal sufficiency of any assignment, document
or instrument delivered hereunder to convey title to any asset or thing of
value upon its execution, delivery and filing.
Except as may expressly be set forth herein or in any Inter-Company
Agreement, all assets transferred, or to be transferred, to Retail Ventures have
been, or shall be, as the case may be, transferred "AS IS, WHERE IS" and Retail
Ventures shall bear the economic and legal risk that any conveyance shall prove
to be insufficient to vest in Retail Ventures good and marketable title, free
and clear of any lien, claim, equity or other encumbrance.
Section 3.13 COMPLIANCE WITH LEGAL POLICIES
(a) For so long as Retail Ventures is providing legal services
under the Shared Services Agreement, DSW shall comply with all policies and
directives identified by Retail Ventures as critical to legal and regulatory
compliance; PROVIDED, HOWEVER, that nothing contained herein shall require
compliance with policies or directives that, in the opinion of counsel to DSW,
do nor comply with then applicable
21
law. Until the Distribution Date, DSW shall not adopt policies or directives
relating to legal or regulatory compliance that are inconsistent with the
policies and directives identified by of Retail Ventures as critical to legal
and regulatory compliance PROVIDED, HOWEVER, that nothing contained herein shall
prevent adoption of policies or directives that, in the opinion of counsel to
DSW, are necessary or desirable to comply with then applicable law.
(b) For so long as Retail Ventures is providing services under
the Shared Services Agreement, it will take reasonable steps to assure that the
employees providing such services comply with all policies and directives
identified by DSW as critical to legal and regulatory compliance that are
applicable to such employees.
Section 3.14 DEBT REORGANIZATION RELATED DOCUMENTS. For so long as
any of the Warrants are outstanding, DSW will not, except with the prior written
consent of Retail Ventures, take any action that would: (a) result in an
adjustment of the DSW Stock Exercise Amount or the DSW Stock Purchase Price (as
defined in the Warrants) or (b) reduce Retail Ventures' ownership below
fifty-five percent (55%) of the value of the issued and outstanding Common
Shares.
Section 3.15 NORTHLAND. Retail Ventures is a party to a certain
lease agreement dated as of September 30, 2003 (but effective February 1, 2004),
between Northland Associates LLC, as landlord, and Retail Ventures, as tenant
(the "Lease") and to a certain sublease dated April 1, 2005, between Retail
Ventures as sublessor and the State of Ohio acting by and through the Department
of Administrative Services as sublessee (the "Sublease"). Both the Lease and
Sublease relate to property located at 0000 Xxxxx Xxxx, Xxxxxxxx, Xxxx
("Northland"), which, at one time, was intended to serve as new corporate
offices for DSW. Retail Ventures expended significant sums at Northland,
primarily in anticipation of its use by DSW, which sums are capitalized on the
books and records of Retail Ventures and will not be transferred to DSW. Retail
Ventures is and will remain liable for each and every obligation of the tenant
under the Lease and the sublessor under the Sublease and such obligations are
not DSW Liabilities. The foregoing notwithstanding, for so long as the Lease is
in effect:
(a) Retail Ventures shall prepare a monthly and annual
accounting of the revenues and expenses associated with Northland, the Lease and
the Sublease (the "Northland Accounting"), on the basis of generally accepted
accounting principles consistent with past Retail Ventures' practices; and the
net profit or loss so determined will be allocated two-thirds (2/3) to DSW and
one third (1/3) to Retail Ventures.
(b) Not later than ten (10) days after the end of each month
and ninety (90) days after the end of each fiscal year, Retail Ventures will
deliver a copy of the Northland Accounting to DSW, together with payment of an
amount equal to the profit allocated to DSW or an invoice for reimbursement of
an amount equal to the loss allocated to DSW, as the case may be. The fiscal
year end Northland Accounting will reflect monthly settlements during the
preceding accounting periods.
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(c) The foregoing notwithstanding, Retail Ventures may, at its
option, set off an amount equal to the profit or loss allocated to DSW against
any amounts owed to Retail Ventures by DSW or to DSW by Retail Ventures, as the
case may be, under any of the Inter-Company Agreements.
(d) The provisions of the second sentence of Section 3.4(g)
hereof shall continue to apply to the extent necessary for DSW to conduct
reasonable audits of the Northland Accounting.
Section 3.16 GUARANTEES. Each Party agrees that it will not renew or
extend any lease, contract or agreement guaranteed by the other party without
the consent of the guaranteeing Party.
Section 3.17 RUN-OFF OF ACCOUNTS. The Parties recognize that certain
accrued expenses, accounts payable and other Liabilities reflected on the DSW
Balance Sheet that were incurred in the ordinary course of business prior to the
IPO will continue to be billed to Retail Ventures after the IPO Date. Retail
Ventures will pay all such DSW Liabilities in a manner substantially similar to
and consistent with the payment practices used prior to the Offering Date and
will invoice or notify DSW, on a weekly basis in a manner substantially similar
to and consistent with the billing practices used prior to the Offering Date
(except as otherwise agreed), of the amounts so paid. DSW agrees to promptly
reimburse Retail Ventures for all such payments in a manner substantially
similar to and consistent with the payment practices used prior to the Offering
Date.
ARTICLE IV
REGISTRATION RIGHTS
Section 4.1 DEMAND REGISTRATION.
(a) The Holders shall have the right after the IPO Date to
request in writing (a "Request") (which request shall specify the Registrable
Securities intended to be disposed of by such Holders and the intended method of
distribution thereof, including in a Rule 415 Offering, if DSW is then eligible
to register such Registrable Securities on Form S-3 (or a successor form) for
such offering) that DSW register such portion of such Holders' Registrable
Securities as shall be specified in the Request (a "Demand Registration") by
filing with the Commission, as soon as practicable thereafter, but not later
than the 30th day (or the 45th day if the applicable registration form is other
than Form S-3) after the receipt of such a Request by DSW, a registration
statement (a "Demand Registration Statement") covering such Registrable
Securities, and DSW shall use its best efforts to have such Demand Registration
Statement declared effective by the Commission as soon as practicable
thereafter, but in no event later than the 75th day (or the 90th day if the
applicable registration form is other than Form S-3) after the receipt of such a
Request, and to keep such Demand Registration Statement Continuously Effective
for a period of at least twenty-four (24) months, in the case of a Rule 415
Offering, or, in
23
all other cases, for a period of at least 180 days following the date on which
such Demand Registration Statement is declared effective (or for such shorter
period which will terminate when all of the Registrable Securities covered by
such Demand Registration Statement shall have been sold pursuant thereto),
including, if necessary, by filing with the Commission a post-effective
amendment or a supplement to the Demand Registration Statement or the related
prospectus or any document incorporated therein by reference or by filing any
other required document or otherwise supplementing or amending the Demand
Registration Statement, if required by the rules, regulations or instructions
applicable to the registration form used by DSW for such Demand Registration
Statement or by the Securities Act, the Exchange Act, any state securities or
blue sky laws, or any rules and regulations thereunder; PROVIDED that such
period during which the Demand Registration Statement shall remain Continuously
Effective shall, in the case of an Underwritten Offering, be extended for such
period (if any) as the underwriters shall reasonably require, including to
satisfy, in the judgment of counsel to the underwriters, any prospectus delivery
requirements imposed by applicable law.
(b) DSW shall not be obligated to effect more than one (1)
Demand Registration in any calendar year. For purposes of the preceding
sentence, a Demand Registration shall not be deemed to have been effected (and,
therefore, not requested for purposes of paragraph (a) above), (i) unless a
Demand Registration Statement with respect thereto has become effective, (ii) if
after such Demand Registration Statement has become effective, the offer, sale
or distribution of Registrable Securities thereunder is prevented by any stop
order, injunction or other order or requirement of the Commission or other
governmental agency or court for any reason not attributable to any Holder and
such effect is not thereafter eliminated or (iii) if the conditions to closing
specified in the purchase agreement or underwriting agreement entered into in
connection with such registration are not satisfied or waived other than by
reason of a failure on the part of any Holder. If DSW shall have complied with
its obligations under ARTICLE IV, a right to a Demand Registration pursuant to
this Section 4.1 shall be deemed to have been satisfied upon the earlier of (x)
the date as of which all of the Registrable Securities included therein shall
have been sold to the underwriters or distributed pursuant to the Demand
Registration Statement and (y) the date as of which such Demand Registration
shall have been Continuously Effective for a period of at least twenty-four (24)
months, in the case of a Rule 415 Offering, or, in all other cases, for a period
of at least 180 days following the effectiveness of such Demand Registration
Statement.
(c) Any request made pursuant to this Section 4.1 shall be
addressed to the attention of the secretary of DSW, and shall specify (i) the
number of Registrable Securities to be registered (which shall be not less than
the lesser of (x) 5% of the total number of Registrable Securities outstanding
or (y) the remaining balance of the Registrable Securities then held by the
Holders.
(d) DSW may not include in a Demand Registration pursuant to
Section 4.1 hereof shares of DSW Capital Stock for the account of DSW or any
subsidiary of DSW, but, if and to the extent required by a contractual
obligation, may, subject to compliance with Section 4.1(e), include shares of
DSW Capital Stock for the
24
account of any other Person who holds shares of DSW Capital Stock entitled to be
included therein; PROVIDED, HOWEVER, that if the Underwriters' Representative of
any offering described in this Section 4.1 shall have informed DSW in writing
that in its judgment there is a Maximum Number of shares of DSW Capital Stock
that all Holders and any other Persons desiring to participate in such
Registration may include in such offering, then DSW shall include in such Demand
Registration all Registrable Securities requested to be included in such
registration by the Holders together with up to such additional number of shares
of DSW Capital Stock that any other Persons entitled to participate in such
registration desire to include in such registration up to the Maximum Number
that the Underwriters' Representative has informed DSW may be included in such
registration without materially and adversely affecting the success or pricing
of such offering; PROVIDED that the number of shares of DSW Capital Stock to be
offered for the account of all such other Persons participating in such
registration shall be reduced in a manner determined by DSW in its sole
discretion.
(e) No Holder may participate in any Underwritten Offering
under Section 4.1 hereof and no other Person shall be permitted to participate
in any such offering pursuant to Section 4.1 hereof unless it completes and
executes all customary questionnaires, powers of attorney, custody agreements,
underwriting agreements and other customary documents required under the
customary terms of such underwriting arrangements. In connection with any
Underwritten Offering under Section 4.1 hereof, each participating Holder and
DSW and, except in the case of a Rule 415 Offering hereof, each other Person
shall be a party to the underwriting agreement with the underwriters and may be
required to make certain customary representations and warranties and provide
certain customary indemnifications for the benefits of the underwriters;
PROVIDED that the Holders shall not be required to make representations and
warranties with respect to DSW or their business and operations and shall not be
required to agree to any indemnity or contribution provisions less favorable to
them than as are set forth herein.
Section 4.2 PIGGYBACK REGISTRATION.
(a) In the event that DSW at any time after the IPO Date
proposes to register any of its DSW Capital Stock, any other of its equity
securities or securities convertible into or exchangeable for its equity
securities (collectively, including DSW Capital Stock, "Other Securities") under
the Securities Act, either in connection with a primary offering for cash for
the account of DSW, a secondary offering or a combined primary and secondary
offering, DSW will each time it intends to effect such a registration, give
written notice (a "Company Notice") to all Holders of Registrable Securities at
least ten (10) business days prior to the initial filing of a registration
statement with the Commission pertaining thereto, informing such Holders of its
intent to file such registration statement and of the Holders' right to request
the registration of the Registrable Securities held by the Holders. Upon the
written request of the Holders made within seven (7) business days after any
such Company Notice is given (which request shall specify the Registrable
Securities intended to be disposed of by such Holder and, unless (i) the
Registrable Securities intended to be disposed of are Class A Common Shares and
(ii) the applicable registration is intended to effect a primary
25
offering of Class A common shares for cash for the account of DSW, the intended
distribution thereof), DSW will use its best efforts to effect the registration
under the Securities Act of all Registrable Securities which DSW has been so
requested to register by the Holders to the extent required to permit the
disposition (in accordance with the intended methods of distribution thereof or,
in the case of a registration which is intended to effect a primary offering for
cash for the account of DSW, in accordance with DSW's intended method of
distribution) of the Registrable Securities so requested to be registered,
including, if necessary, by filing with the Commission a post-effective
amendment or a supplement to the registration statement filed by DSW or the
related prospectus or any document incorporated therein by reference or by
filing any other required document or otherwise supplementing or amending the
registration statement filed by DSW, if required by the rules, regulations or
instructions applicable to the registration form used by DSW for such
registration statement or by the Securities Act, any state securities or blue
sky laws, or any rules and regulations thereunder; PROVIDED, HOWEVER, that if,
at any time after giving written notice of its intention to register any Other
Securities and prior to the Effective Date of the registration statement filed
in connection with such registration, DSW shall determine for any reason not to
register or to delay such registration of the Other Securities, DSW shall give
written notice of such determination to each Holder of Registrable Securities
and, thereupon, (i) in the case of a determination not to register, DSW shall be
relieved of its obligation to register any Registrable Securities in connection
with such registration (but not from its obligation to pay the Registration
Expenses incurred in connection therewith or from DSW's obligations with respect
to any subsequent registration) and (ii) in the case of a determination to delay
such registration, DSW shall be permitted to delay registration of any
Registrable Securities requested to be included in such registration statement
for the same period as the delay in registering such Other Securities.
(b) If, in connection with a Registration Statement pursuant
to this Section 4.2, the Underwriters' Representative of the offering registered
thereon shall inform DSW in writing that in its opinion there is a Maximum
Number of shares of DSW Capital Stock that may be included therein and if such
Registration Statement relates to an offering initiated by DSW of Common Shares
being offered for the account of DSW, DSW shall include in such registration:
(i) first, the number of shares DSW proposes to offer ("Company Securities"),
(ii) second, up to the full number of Registrable Securities held by Holders of
Registrable Securities that are requested to be included in such registration
(Registrable Securities that are so held being sometimes referred to herein as
"Retail Ventures Securities") to the extent necessary to reduce the respective
total number of shares of DSW Capital Stock requested to be included in such
offering to the Maximum Number recommended by such Underwriters' Representative
(and in the event that such Underwriters' Representative advises that less than
all of such Retail Ventures Securities may be included in such offering, the
Holders of Registrable Securities may withdraw their request for registration of
their Registrable Securities under this Section 4.2 and not less than 90 days
subsequent to the Effective Date of the registration statement for the
registration of such Other Securities request that such registration be effected
as a registration under Section 4.1 to the extent permitted thereunder) and
(iii) third, up to the full number of the Other Securities (other than Company
Securities), if any, in excess of the number of Company Securities and Retail
Ventures Securities to be
26
sold in such offering to the extent necessary to reduce the respective total
number of shares of DSW Capital Stock requested to be included in such offering
to the Maximum Number recommended by such Underwriters' Representative (and, if
such number is less than the full number of such Other Securities, such number
shall be allocated pro rata among the holders of such Other Securities (other
than Company Securities) on the basis of the number of securities requested to
be included therein by each such holder).
(c) If, in connection with a Registration Statement pursuant
to this Section 4.2, the Underwriters' Representative of the offering registered
thereon shall inform DSW in writing that in its opinion there is a Maximum
Number of shares of DSW Capital Stock that may be included therein and if such
Registration Statement relates to an offering initiated by any Person other than
DSW (the "Other Holders"), DSW shall include in such registration the number of
securities (including Registrable Securities) that such underwriters advise can
be so sold without adversely affecting such offering, allocated pro rata among
the Other Holders and the Holders of Registrable Securities on the basis of the
number of securities (including Registrable Securities) requested to be included
therein by each Other Holder and Holder of Registrable Securities.
(d) No Holder may participate in any Underwritten Offering
under Section 5.2 hereof and no other Person shall be permitted to participate
in any such offering pursuant to Section 5.2 hereof unless it completes and
executes all customary questionnaires, powers of attorney, custody agreements,
underwriting agreements and other customary documents required under the
customary terms of such underwriting arrangements. In connection with any
Underwritten Offering under Section 5.2 hereof, each participating Holder and
DSW and each other Person shall be a party to the underwriting agreement with
the underwriters and may be required to make certain customary representations
and warranties and provide certain customary indemnifications for the benefits
of the underwriters; PROVIDED that the Holders shall not be required to make
representations and warranties with respect to DSW or their business and
operations and shall not be required to agree to any indemnity or contribution
provisions less favorable to them than as are set forth herein.
(e) DSW shall not be required to effect any registration of
Registrable Securities under this Section 4.2 incidental to the registration of
any of its securities in connection with DSW's issuance of registered shares of
DSW Capital Stock in mergers, acquisitions, reorganizations, exchange offers,
subscription offers, dividend reinvestment plans or stock option or other
executive or employee benefit or compensation plans.
(f) The registration rights granted pursuant to the provisions
of this Section 4.2 shall be in addition to the registration rights granted
pursuant to Section 4.1. No registration of Registrable Securities effected
under this Section 4.2 shall relieve DSW of its obligation to effect a
registration of Registrable Securities pursuant to Section 4.1.
Section 4.3 EXPENSES. Except as provided herein, DSW shall pay all
Registration Expenses in connection with all registrations of Registrable
Securities.
27
Notwithstanding the foregoing, each Holder of Registrable Securities and DSW
shall be responsible for its own internal administrative and similar costs,
which shall not constitute Registration Expenses.
Section 4.4 BLACKOUT PERIOD. DSW shall be entitled to elect that a
Registration Statement not be usable, or that the filing thereof be delayed
beyond the time otherwise required, for a reasonable period of time (a "Blackout
Period"), if DSW determines in good faith that the registration and distribution
of Registrable Securities (or the use or filing of the IPO Registration
Statement or related prospectus) would interfere with any pending material
financing, merger, acquisition, consolidation, recapitalization, corporate
reorganization or any other material corporate development involving DSW or any
of its Subsidiaries or would require premature disclosure thereof that would be
detrimental to DSW and promptly gives the Holders of Registrable Securities
written notice of such determination, and if requested by Holders and to the
extent such action would not violate applicable law, DSW will promptly deliver
to the Holders a general statement of the reasons for such postponement or
restriction on use and to the extent practicable an approximation of the
anticipated delay.
Section 4.5 SELECTION OF UNDERWRITERS. If any Rule 415 Offering or
any offering pursuant to a Demand Registration Statement is an Underwritten
Offering, Retail Ventures will select a managing underwriter or underwriters to
administer the offering, which managing underwriter shall be reasonably
satisfactory to DSW. DSW shall have the right to select a managing underwriter
or underwriters to administer any Underwritten Offering contemplated by Section
5.2.
Section 4.6 OBLIGATIONS OF DSW. If and whenever DSW is required to
effect the registration of any Registrable Securities under the Securities Act
as provided in this ARTICLE IV, DSW shall as promptly as practicable:
(a) prepare, file and use its best efforts to cause to become
effective a registration statement under the Securities Act relating to the
Registrable Securities to be offered;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities until the earlier of (i) such time as
all of such Registrable Securities have been disposed of in accordance with the
intended methods of disposition set forth in such registration statement and
(ii) the expiration of one hundred eighty (180) days after such registration
statement becomes effective; PROVIDED, that such one hundred eighty (180) day
period shall be extended for such number of days that equals the number of days
elapsing from (x) the date the written notice contemplated by paragraph (f)
below is given by DSW to (y) the date on which DSW delivers to Holders of
Registrable Securities the supplement or amendment contemplated by paragraph (f)
below;
28
(c) furnish to Holders of Registrable Securities and to any
underwriter of such Registrable Securities such number of conformed copies of
such registration statement and of each such amendment and supplement thereto
(in each case including all exhibits), such number of copies of the prospectus
included in such registration statement (including each preliminary prospectus
and any summary prospectus), in conformity with the requirements of the
Securities Act, such documents incorporated by reference in such registration
statement or prospectus, and such other documents, as Holders of Registrable
Securities or such underwriter may reasonably request, and a copy of any and all
transmittal letters or other correspondence to or received from the Commission
or any other governmental agency or self-regulatory body or other body having
jurisdiction (including any domestic or foreign securities exchange) relating to
such offering;
(d) use its best efforts to register or qualify all
Registrable Securities covered by such registration statement under the
securities or blue sky laws of such jurisdictions as the Holders of such
Registrable Securities or any underwriter to such Registrable Securities shall
request, and use its best efforts to obtain all appropriate registrations,
permits and consents in connection therewith, and do any and all other acts and
things which may be necessary or advisable to enable the Holders of Registrable
Securities or any such underwriter to consummate the disposition in such
jurisdictions of its Registrable Securities covered by such registration
statement; PROVIDED, that DSW shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any such
jurisdiction wherein it is not so qualified or to consent to general service of
process in any such jurisdiction;
(e) (i) use its best efforts to furnish to each Holder of
Registrable Securities included in such registration (each, a "Selling Holder")
and to any underwriter of such Registrable Securities an opinion of counsel for
DSW addressed to each Selling Holder and dated the date of the closing under the
underwriting agreement (if any) (or if such offering is not underwritten, dated
the Effective Date of the registration statement) and (ii) use its best efforts
to furnish to each Selling Holder a "cold comfort" letter addressed to each
Selling Holder and signed by the independent public accountants who have audited
the financial statements of DSW included in such registration statement, in each
such case covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) as are customarily
covered in opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities and such other
matters as the Selling Holders may reasonably request and, in the case of such
accountants' letter, with respect to events subsequent to the date of such
financial statements;
(f) as promptly as practicable, notify the Selling Holders in
writing (i) at any time when a prospectus relating to a registration made
pursuant to Section 4.1 or Section 4.2 contains an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading due to the occurrence of any event and (ii)
of any request by the Commission or any other regulatory body or other body
having jurisdiction for any amendment of or supplement to
29
any registration statement or other document relating to such offering, and in
either such case, at the request of the Selling Holders prepare and furnish to
the Selling Holders a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading;
(g) if reasonably requested by the lead or managing
underwriters, use its best efforts to list all such Registrable Securities
covered by such registration on each securities exchange and automated
inter-dealer quotation system on which a class of common equity securities of
DSW is then listed;
(h) to the extent reasonably requested by the lead or managing
underwriters, send appropriate officers of DSW to attend any "road shows"
scheduled in connection with any such registration, with all out-of-pocket costs
and expense incurred by DSW or such officers in connection with such attendance
to be paid by DSW;
(i) furnish or cause to be furnished for delivery in
connection with the closing of any offering of Registrable Securities pursuant
to a registration effected pursuant to Section 4.1 or Section 4.2 unlegended
certificates representing ownership of the Registrable Securities being sold in
such denominations as shall be requested by the Selling Holders or the
underwriters; and
(j) use its best efforts to take all other reasonable and
customary steps typically taken by issuers to effect the registration and
disposition of such Registrable Securities as contemplated hereby.
Section 4.7 OBLIGATIONS OF SELLING HOLDERS. Each Selling Holder
agrees by having its securities treated as Registrable Securities hereunder
that, upon receipt of written notice from DSW specifying that the prospectus
relating to a registration made pursuant to Section 4.1 or Section 4.2 contains
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading due to the
occurrence of any event, such Selling Holder will forthwith discontinue
disposition of Registrable Securities until such Selling Holder is advised by
DSW that the use of the prospectus may be resumed and is furnished with a
supplemented or amended prospectus as contemplated by Section 4.6(f) hereof,
and, if so directed by DSW, such Selling Holder will deliver to DSW all copies
of the prospectus covering such Registrable Securities then in such Selling
Holder's possession at the time of receipt of such notice.
Section 4.8 UNDERWRITING; DUE DILIGENCE.
(a) If requested by the underwriters for any Underwritten
Offering of Registrable Securities pursuant to a registration requested under
this ARTICLE IV, DSW shall enter into an underwriting agreement in a form
reasonably
30
satisfactory to DSW with such underwriters for such offering, which agreement
will contain such representations and warranties by DSW and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions, including, without limitation, indemnification and
contribution provisions substantially to the effect and to the extent provided
in Section 4.9, and agreements as to the provision of opinions of counsel and
accountants' letters to the effect and to the extent provided in Section 4.6(e).
The Selling Holders on whose behalf the Registrable Securities are to be
distributed by such underwriters shall be a party to any such underwriting
agreement and the representations and warranties by, and the other agreements on
the part of, DSW to and for the benefit of such underwriters, shall also be made
to and for the benefit of such Selling Holders. Such underwriting agreement
shall also contain such representations and warranties by such Selling Holders
and such other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, indemnification and contribution provisions substantially to the
effect and to the extent provided in Section 4.9.
(b) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the Securities
Act pursuant to this ARTICLE IV, DSW shall give the Holders of such Registrable
Securities and the underwriters, if any, and their respective counsel and
accountants, such reasonable and customary access to its books and records and
such opportunities to discuss the business of DSW with its officers and the
independent public accountants who have certified the financial statements of
DSW as shall be necessary, in the opinion of such Holders and such underwriters
or their respective counsel, to conduct a reasonable investigation within the
meaning of the Securities Act; PROVIDED, that such Holders and the underwriters
and their respective counsel and accountants shall use their reasonable best
efforts to coordinate any such investigation of the books and records of DSW and
any such discussions with DSW's officers and accountants so that all such
investigations occur at the same time and all such discussions occur at the same
time.
Section 4.9 INDEMNIFICATION AND CONTRIBUTION.
(a) In the case of each offering of Registrable Securities
made pursuant to this ARTICLE IV, DSW agrees to indemnify and hold harmless, to
the extent permitted by law, each Selling Holder, each underwriter of
Registrable Securities so offered and each Person, if any, who controls any of
the foregoing Persons within the meaning of the Securities Act and the officers,
directors, affiliates, employees and agents of each of the foregoing, against
any and all losses, liabilities, costs (including reasonable attorney's fees and
disbursements), claims and damages, joint or several, to which they or any of
them may become subject, under the Securities Act or otherwise, including any
amount paid in settlement of any litigation commenced or threatened, insofar as
such losses, liabilities, costs, claims and damages (or actions or proceedings
in respect thereof, whether or not such indemnified Person is a party thereto)
arise out of or are based upon any untrue statement by DSW or alleged untrue
statement by DSW of a material fact contained in the registration statement (or
in any preliminary or final prospectus included therein) or in any offering
memorandum or other offering document relating to the
31
offering and sale of such Registrable Securities prepared by DSW or at its
direction, or any amendment thereof or supplement thereto, or in any document
incorporated by reference therein, or any omission by DSW or alleged omission by
DSW to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading; PROVIDED, that DSW shall not be
liable to any Person in any such case to the extent that any such loss,
liability, cost, claim or damage arises out of or relates to any untrue
statement or alleged untrue statement, or any omission, if such statement or
omission shall have been made in reliance upon and in conformity with
information relating to a Selling Holder or another holder of securities
included in such registration statement furnished to DSW by or on behalf of such
Selling Holder or underwriter, as the case may be, specifically for use in the
registration statement (or in any preliminary or final prospectus included
therein), offering memorandum or other offering document, or any amendment
thereof or supplement thereto. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of any Selling
Holder or any other holder and shall survive the transfer of such securities.
The foregoing indemnity agreement is in addition to any liability that DSW may
otherwise have to each Selling Holder, or other holder or underwriter of the
Registrable Securities or any controlling person of the foregoing and the
officers, directors, affiliates, employees and agents of each of the foregoing;
PROVIDED, further, that, in the case of an offering with respect to which a
Selling Holder has designated the lead or managing underwriters (or a Selling
Holder is offering Registrable Securities directly, without an underwriter),
this indemnity does not apply to any loss, liability, cost, claim or damage
arising out of or relating to any untrue statement or alleged untrue statement
or omission or alleged omission in any preliminary prospectus or offering
memorandum if a copy of a final prospectus or offering memorandum was not sent
or given by or on behalf of any underwriter (or such Selling Holder or other
holder, as the case may be) to such Person asserting such loss, liability, cost,
claim or damage at or prior to the written confirmation of the sale of the
Registrable Securities as required by the Securities Act and such untrue
statement or omission had been corrected in such final prospectus or offering
memorandum.
(b) In the case of each offering made pursuant to this
Agreement, each Selling Holder, by exercising its registration rights hereunder,
agrees to indemnify and hold harmless, and to cause each underwriter of
Registrable Securities included in such offering (in the same manner and to the
same extent as set forth in Section 4.9(a)) to agree to indemnify and hold
harmless to the extent permitted by law, DSW, each other underwriter who
participates in such offering, each other Selling Holder or other holder with
securities included in such offering and in the case of an underwriter, such
Selling Holder or other holder, and each Person, if any, who controls any of the
foregoing within the meaning of the Securities Act and the officers, directors,
affiliates, employees and agents of each of the foregoing, against any and all
losses, liabilities, costs, claims and damages to which they or any of them may
become subject, under the Securities Act or otherwise, including any amount paid
in settlement of any litigation commenced or threatened, insofar as such losses,
liabilities, costs, claims and damages (or actions or proceedings in respect
thereof, whether or not such indemnified Person is a party thereto) arise out of
or are based upon any untrue statement or alleged untrue statement by such
Selling Holder or underwriter, as the case may be, of a material fact contained
in the
32
registration statement (or in any preliminary or final prospectus included
therein) or in any offering memorandum or other offering document relating to
the offering and sale of such Registrable Securities prepared by DSW or at its
direction, or any amendment thereof or supplement thereto, or any omission by
such Selling Holder or underwriter, as the case may be, or alleged omission by
such Selling Holder or underwriter, as the case may be, of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that such untrue statement of a
material fact is contained in, or such material fact is omitted from,
information relating to such Selling Holder or underwriter, as the case may be,
furnished to DSW by or on behalf of such Selling Holder or underwriter, as the
case may be, specifically for use in such registration statement (or in any
preliminary or final prospectus included therein), offering memorandum or other
offering document. The foregoing indemnity is in addition to any liability which
such Selling Holder or underwriter, as the case may be, may otherwise have to
DSW, or controlling persons and the officers, directors, affiliates, employees,
and agents of each of the foregoing; PROVIDED, that, in the case of an offering
made pursuant to this Agreement with respect to which DSW has designated the
lead or managing underwriters (or DSW is offering securities directly, without
an underwriter), this indemnity does not apply to any loss, liability, cost,
claim, or damage arising out of or based upon any untrue statement or alleged
untrue statement or omission or alleged omission in any preliminary prospectus
or offering memorandum if a copy of a final prospectus or offering memorandum
was not sent or given by or on behalf of any underwriter (or DSW, as the case
may be) to such Person asserting such loss, liability, cost, claim or damage at
or prior to the written confirmation of the sale of the Registrable Securities
as required by the Securities Act and such untrue statement or omission had been
corrected in such final prospectus or offering memorandum.
(c) Each party indemnified under paragraph (a) or (b) above
shall, promptly after receipt of notice of a claim or action against such
indemnified party in respect of which indemnity may be sought hereunder, notify
the indemnifying party in writing of the claim or action; PROVIDED, that the
failure to notify the indemnifying party shall not relieve it from any liability
that it may have to an indemnified party on account of the indemnity agreement
contained in paragraph (a) or (b) above except to the extent that the
indemnifying party was actually prejudiced by such failure, and in no event
shall such failure relieve the indemnifying party from any other liability that
it may have to such indemnified party. If any such claim or action shall be
brought against an indemnified party, and it shall have notified the
indemnifying party thereof, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified party and indemnifying
parties may exist in respect of such claim, 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 under this Section 4.9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation. Any indemnifying party
against whom indemnity may be sought under this Section 4.9
33
shall not be liable to indemnify an indemnified party if such indemnified party
settles such claim or action without the consent of the indemnifying party. The
indemnifying party may not agree to any settlement of any such claim or action,
other than solely for monetary damages for which the indemnifying party shall be
responsible hereunder, the result of which any remedy or relief shall be applied
to or against the indemnified party, without the prior written consent of the
indemnified party, which consent shall not be unreasonably withheld. In any
action hereunder as to which the indemnifying party has assumed the defense
thereof with counsel satisfactory to the indemnified party, the indemnified
party shall continue to be entitled to participate in the defense thereof, with
counsel of its own choice, but the indemnifying party shall not be obligated
hereunder to reimburse the indemnified party for the costs thereof.
(d) If the indemnification provided for in this Section 4.9
shall for any reason be unavailable (other than in accordance with its terms) to
an indemnified party in respect of any loss, liability, cost, claim or damage
referred to therein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, cost, claim or damage (i)
as between DSW and the Selling Holders on the one hand and the underwriters on
the other, in such proportion as shall be appropriate to reflect the relative
benefits received by DSW and the Selling Holders on the one hand and the
underwriters on the other hand 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 DSW and the Selling Holders on
the one hand and the underwriters on the other with respect to the statements or
omissions which resulted in such loss, liability, cost, claim or damage as well
as any other relevant equitable considerations and (ii) as between DSW on the
one hand and each Selling Holder on the other, in such proportion as is
appropriate to reflect the relative fault of DSW and of each Selling Holder in
connection with such statements or omissions as well as any other relevant
equitable considerations. The relative benefits received by DSW and the Selling
Holders 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 DSW and the Selling Holders 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 DSW and the Selling
Holders 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 to state a material fact relates to
information supplied by DSW and the Selling Holders or by the underwriters. The
relative fault of DSW on the one hand and of each Selling Holder 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, but not by reference to any
indemnified party's stock ownership in DSW. The amount paid or payable by an
indemnified party as a result of the loss, cost, claim, damage or liability, or
action in respect thereof, referred to above in this paragraph (d) shall be
deemed to include, for purposes of this paragraph (d), any legal or other
expenses reasonably incurred by such
34
indemnified party in connection with investigating or defending any such action
or claim. DSW and the Selling Holders agree that it would not be just and
equitable if contribution pursuant to this Section 4.9 were determined by pro
rata allocation (even if the 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 this paragraph. Notwithstanding any
other provision of this Section 4.9, no Selling Holder shall be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities of such Selling Holder were offered to the public
exceeds the amount of any damages which such Selling 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) Indemnification and contribution similar to that specified
in the preceding paragraphs of this Section 4.9 (with appropriate modifications)
shall be given by DSW, the Selling Holders and any underwriters with respect to
any required registration or other qualification of securities under any state
law or regulation or governmental authority.
(f) The obligations of the parties under this Section 4.9
shall be in addition to any liability which any party may otherwise have to any
other party.
Section 4.10 RULE 144 AND FORM S-3. Commencing ninety (90) days
after the IPO Date, DSW shall use its best efforts to ensure that the conditions
to the availability of Rule 144 set forth in paragraph (c) thereof shall be
satisfied. Upon the request of any Holder of Registrable Securities, DSW will
deliver to such Holder a written statement as to whether it has complied with
such requirements. DSW further agrees to use its best efforts to cause all
conditions to the availability of Form S-3 (or any successor form) under the
Securities Act for the filing of registration statements under this Agreement to
be met as soon as practicable after the IPO Date.
Section 4.11 HOLDBACK AGREEMENT.
(a) If so requested by the Underwriters' Representative in
connection with an offering of securities covered by a registration statement
filed by DSW, whether or not Registrable Securities of the Holders are included
therein, each Holder shall agree not to effect any sale or distribution of the
Shares, including any sale under Rule 144, without the prior written consent of
the Underwriters' Representative (otherwise than through the registered public
offering then being made), within seven (7) days prior to or ninety (90) days
(or such lesser period as the Underwriters' Representative may permit) after the
Effective Date of the registration statement (or the commencement of the
offering to the public of such Registrable Securities in the case of Rule 415
Offerings). The Holders shall not be subject to the restrictions set forth in
this Section 4.11 for longer than ninety-seven (97) days during any 12-month
period and a Holder shall no longer be subject to such restrictions at such time
as such Holder shall own less than 10% of the then-outstanding Registrable
Securities on a fully-diluted basis.
35
(b) If so requested by the Underwriters' Representative in
connection with an offering of any Registrable Securities, DSW shall agree not
to effect any sale or distribution of DSW Capital Stock, without the prior
written consent of the Underwriters' Representative (otherwise than through the
registered public offering then being made or in connection with any acquisition
or business combination transaction and other than in connection with stock
options and employee benefit plans and compensation), within seven (7) days
prior to or ninety (90) days (or such lesser period as the Underwriters'
Representative may permit) after the Effective Date of the registration
statement (or the commencement of the offering to the public of such Registrable
Securities in the case of Rule 415 Offerings) and shall use its best efforts to
obtain and enforce similar agreements from any other Persons if requested by the
Underwriters' Representative; PROVIDED that DSW or such Persons shall not be
subject to the restrictions set forth in this Section 4.11 for longer than
ninety-seven (97) days during any twelve (12) month period.
(c) Notwithstanding anything else in this Section 4.11 to the
contrary, no Holder shall be precluded from distributing to any or all of its
stockholders any or all of the Registrable Securities.
Section 4.12 TERM. This ARTICLE IV shall remain in effect until all
Registrable Securities held by Holders have been transferred by them to other
Persons.
ARTICLE V
MUTUAL RELEASES; INDEMNIFICATION
Section 5.1 RELEASE OF PRE-IPO DATE CLAIMS.
(a) DSW RELEASE. Except as provided in Section 5.1(c), as of
the IPO Date, DSW does hereby, for itself and as agent for each member of the
DSW Group, remise, release and forever discharge the Retail Ventures Indemnitees
from any and all Liabilities whatsoever, whether at law or in equity (including
any right of contribution), whether arising under any contract or agreement, by
operation of law or otherwise, existing or arising from any past acts or events
occurring or failing to occur or alleged to have occurred or to have failed to
occur or any conditions existing or alleged to have existed on or before the IPO
Date, including in connection with the transactions and all other activities to
implement the IPO.
(b) RETAIL VENTURES RELEASE. Except as provided in Section
5.1(c), as of the IPO Date, Retail Ventures does hereby, for itself and as agent
for each member of the Retail Ventures Group, remise, release and forever
discharge the DSW Indemnitees from any and all Liabilities whatsoever, whether
at law or in equity (including any right of contribution), whether arising under
any contract or agreement, by operation of law or otherwise, existing or arising
from any past acts or events occurring or failing to occur or alleged to have
occurred or to have failed to occur or any conditions existing or alleged to
have existed on or before the IPO Date, including in connection with the
transactions and all other activities to implement the IPO.
36
(c) NO IMPAIRMENT. Nothing contained in Section 5.1(a) or
Section 5.1(b) shall limit or otherwise affect any Party's rights or obligations
pursuant to or contemplated by this Agreement or any Inter-Company Agreement, in
each case in accordance with its terms, including, without limitation, any
obligations relating to indemnification, including indemnification pursuant to
Section 5.2 and Section 5.3 of this Agreement, and any Insurance Proceeds under
any Retail Ventures Insurance Policies relating to the DSW Business which DSW is
entitled to be paid.
(d) NO ACTIONS AS TO RELEASED PRE-IPO DATE CLAIMS. DSW agrees,
for itself and as agent for each member of the DSW Group, not to make any claim
or demand, or commence any Action asserting any claim or demand, including any
claim of contribution or any indemnification, against Retail Ventures or any
member of the Retail Ventures Group, or any other Person released pursuant to
Section 5.1(a), with respect to any Liabilities released pursuant to Section
5.1(a). Retail Ventures agrees, for itself and as agent for each member of the
Retail Ventures Group, not to make any claim or demand, or commence any Action
asserting any claim or demand, including any claim of contribution or any
indemnification, against DSW or any member of the DSW Group, or any other Person
released pursuant to Section 5.1(b), with respect to any Liabilities released
pursuant to Section 5.1(b).
(e) FURTHER INSTRUMENTS. At any time, at the request of any
other Party, each Party shall cause each member of its respective Retail
Ventures Group or DSW Group, as applicable, to execute and deliver releases
reflecting the provisions hereof.
Section 5.2 INDEMNIFICATION BY DSW. Except as otherwise provided in
this Agreement, DSW shall, for itself and as agent for each member of the DSW
Group, indemnify, defend (or, where applicable, pay the defense costs for) and
hold harmless the Retail Ventures Indemnitees from and against, and shall
reimburse such Retail Ventures Indemnitees with respect to, any and all Losses
that any third party seeks to impose upon the Retail Ventures Indemnitees, or
which are imposed upon the Retail Ventures Indemnitees, and that relate to,
arise or result from, whether prior to or following the IPO Date, any of the
following items (without duplication):
(a) any DSW Liability;
(b) any breach by DSW or any member of the DSW Group of this
Agreement or any of the Inter-Company Agreements; and
(c) any IPO Liabilities, other than the Retail Ventures
Portions.
In the event that any member of the DSW Group makes a payment to the Retail
Ventures Indemnitees hereunder, and any of the Retail Ventures Indemnitees
subsequently diminishes the Liability on account of which such payment was made,
either directly or through a third-party recovery (other than a recovery
indirectly from Retail Ventures), Retail Ventures will promptly repay (or will
procure Retail Ventures Indemnitee to promptly repay) such member of the DSW
Group the amount by which the payment
37
made by such member of the DSW Group exceeds the actual cost of the associated
indemnified Liability.
Section 5.3 INDEMNIFICATION BY RETAIL VENTURES. Except as otherwise
provided in this Agreement, Retail Ventures shall, for itself and as agent for
each member of the Retail Ventures Group, indemnify, defend (or, where
applicable, pay the defense costs for) and hold harmless the DSW Indemnitees
from and against, and shall reimburse such DSW Indemnitee with respect to, any
and all Losses that any third party seeks to impose upon the DSW Indemnitees, or
which are imposed upon the DSW Indemnitees, and that relate to, arise or result
from, whether prior to or following the IPO Date, with any of the following
items (without duplication):
(a) any Liability of the Retail Ventures Group and all
Liabilities arising out of the operation or conduct of the Retail Ventures
Business (in each case excluding the DSW Liabilities);
(b) any breach by Retail Ventures or any member of the Retail
Ventures Group of this Agreement or any of the Inter-Company Agreements; and
(c) any IPO Liabilities with respect to the Retail Ventures
Portions only.
In the event that any member of the Retail Ventures Group makes a payment to the
DSW Indemnitees hereunder, and any of the DSW Indemnitees subsequently
diminishes the Liability on account of which such payment was made, either
directly or through a third-party recovery (other than a recovery indirectly
from DSW), DSW will promptly repay (or will procure a DSW Indemnitee to promptly
repay) such member of the Retail Ventures Group the amount by which the payment
made by such member of the Retail Ventures Group exceeds the actual cost of the
indemnified Liability.
Section 5.4 ANCILLARY AGREEMENT LIABILITIES. Notwithstanding any
other provision in this Agreement to the contrary, any Liability specifically
assumed by, or allocated to, a Party in any of the Inter-Company Agreements
shall be governed exclusively by the terms of such Inter-Company Agreement.
Section 5.5 OTHER AGREEMENTS EVIDENCING INDEMNIFICATION OBLIGATIONS.
Retail Ventures hereby agrees to execute, for the benefit of any DSW Indemnitee,
such documents as may be reasonably requested by such DSW Indemnitee, evidencing
Retail Ventures' agreement that the indemnification obligations of Retail
Ventures set forth in this Agreement inure to the benefit of and are enforceable
by such DSW Indemnitee. DSW hereby agrees to execute, for the benefit of any
Retail Ventures Indemnitee, such documents as may be reasonably requested by
such Retail Ventures Indemnitee, evidencing DSW's agreement that the
indemnification obligations of DSW set forth in this Agreement inure to the
benefit of and are enforceable by such Retail Ventures Indemnitee.
Section 5.6 REDUCTIONS FOR INSURANCE PROCEEDS AND OTHER RECOVERIES.
38
(a) INSURANCE PROCEEDS. The amount that any Indemnifying Party
is or may be required to provide indemnification to or on behalf of any
Indemnitee pursuant to Section 5.2 or Section 5.3, as applicable, shall be
reduced (retroactively or prospectively) by any Insurance Proceeds or other
amounts actually recovered from third parties by or on behalf of such Indemnitee
in respect of the related Loss. The existence of a claim by an Indemnitee for
monies from an insurer or against a third party in respect of any indemnifiable
Loss shall not, however, delay any payment pursuant to the indemnification
provisions contained herein and otherwise determined to be due and owing by an
Indemnifying Party. Rather, the Indemnifying Party shall make payment in full of
the amount determined to be due and owing by it against an assignment by the
Indemnitee to the Indemnifying Party of the entire claim of the Indemnitee for
Insurance Proceeds or against such third party. Notwithstanding any other
provisions of this Agreement, it is the intention of the Parties that no insurer
or any other third party shall be (i) entitled to a benefit it would not be
entitled to receive in the absence of the foregoing indemnification provisions,
or (ii) relieved of the responsibility to pay any claims for which it is
obligated. If an Indemnitee has received the payment required by this Agreement
from an Indemnifying Party in respect of any indemnifiable Loss and later
receives Insurance Proceeds or other amounts in respect of such indemnifiable
Loss, then such Indemnitee shall hold such Insurance Proceeds or other amounts
in trust for the benefit of the Indemnifying Party (or Indemnifying Parties) and
shall pay to the Indemnifying Party, as promptly as practicable after receipt, a
sum equal to the amount of such Insurance Proceeds or other amounts received, up
to the aggregate amount of any payments received from the Indemnifying Party
pursuant to this Agreement in respect of such indemnifiable Loss (or, if there
is more than one Indemnifying Party, the Indemnitee shall pay each Indemnifying
Party, its proportionate share (based on payments received from the Indemnifying
Parties) of such Insurance Proceeds).
(b) TAX COST/TAX BENEFIT. The amount that any Indemnifying
Party is or may be required to provide indemnification to or on behalf of any
Indemnitee pursuant to Section 5.2 or Section 5.3, as applicable, shall be (i)
increased to take account of any net Tax cost incurred by the Indemnitee arising
from the receipt or accrual of an indemnification payment hereunder (grossed up
for such increase) and (ii) reduced to take account of any net Tax benefit
realized by the Indemnitee arising from incurring or paying such loss or other
liability. In computing the amount of any such Tax cost or Tax benefit, the
Indemnitee shall be deemed to recognize all other items of income, gain, loss,
deduction or credit before recognizing any item arising from the receipt or
accrual of any indemnification payment hereunder or incurring or paying any
indemnified Loss. Any indemnification payment hereunder shall initially be made
without regard to this Section 5.6(b) and shall be increased or reduced to
reflect any such net Tax cost (including gross-up) or net Tax benefit only after
the Indemnitee has actually realized such cost or benefit. For purposes of this
Agreement, an Indemnitee shall be deemed to have "actually realized" a net Tax
cost or a net Tax benefit to the extent that, and at such time as, the amount of
Taxes payable by such Indemnitee is increased above or reduced below, as the
case may be, the amount of Taxes that such Indemnitee would be required to pay
but for the receipt or accrual of the indemnification payment or the incurrence
or payment of such Loss, as the case may be. The amount of any increase or
39
reduction hereunder shall be adjusted to reflect any Final Determination with
respect to the Indemnitee's liability for Taxes, and payments between such
indemnified parties to reflect such adjustment shall be made if necessary.
Notwithstanding any other provision of this Agreement, to the extent permitted
by applicable law, the Parties hereto agree that any Indemnity Payment made
hereunder shall be treated as a capital contribution or dividend distribution,
as the case may be, immediately prior to the IPO Date and, accordingly, not
includible in the taxable income of the recipient or deductible by the payor.
Section 5.7 PROCEDURES FOR DEFENSE, SETTLEMENT AND INDEMNIFICATION
OF THIRD PARTY CLAIMS.
(a) NOTICE OF CLAIMS. If an Indemnitee shall receive notice or
otherwise learn of the assertion by a Person (including any Governmental
Authority) who is not a member of the Retail Ventures Group or the DSW Group of
any claim or of the commencement by any such Person of any Action (collectively,
a "Third Party Claim") with respect to which an Indemnifying Party may be
obligated to provide indemnification, Retail Ventures and DSW (as applicable)
will ensure that such Indemnitee shall give such Indemnifying Party written
notice thereof within thirty (30) days after becoming aware of such Third Party
Claim. Any such notice shall describe the Third Party Claim in reasonable
detail. Notwithstanding the foregoing, the delay or failure of any Indemnitee or
other Person to give notice as provided in this Section 5.7(a) shall not relieve
the related Indemnifying Party of its obligations under this ARTICLE V, except
to the extent that such Indemnifying Party is actually and substantially
prejudiced by such delay or failure to give notice.
(b) DEFENSE BY INDEMNIFYING PARTY. An Indemnifying Party shall
be entitled to participate in the defense of any Third Party Claim and, to the
extent that it wishes, at its cost, risk and expense, to assume the defense
thereof, with counsel reasonably satisfactory to the party seeking
indemnification. After timely notice from the Indemnifying Party to the
Indemnitee of such election to so assume the defense thereof, the Indemnifying
Party shall not be liable to the party seeking indemnification for any legal
expenses of other counsel or any other expenses subsequently incurred by
Indemnitee in connection with the defense thereof. The Indemnitee agrees to
cooperate in all reasonable respects with the Indemnifying Party and its counsel
in the defense against any Third Party Claim. The Indemnifying Party shall be
entitled to compromise or settle any Third Party Claim as to which it is
providing indemnification, which compromise or settlement shall be made only
with the written consent of the Indemnitee, such consent not to be unreasonably
withheld.
(c) DEFENSE BY INDEMNITEE. If an Indemnifying Party fails to
assume the defense of a Third Party Claim within thirty (30) calendar days after
receipt of notice of such claim, Indemnitee will, upon delivering notice to such
effect to the Indemnifying Party, have the right to undertake the defense,
compromise or settlement of such Third Party Claim on behalf of and for the
account of the Indemnifying Party subject to the limitations as set forth in
this Section 5.7; PROVIDED, HOWEVER, that such Third Party Claim shall not be
compromised or settled without the
40
written consent of the Indemnifying Party, which consent shall not be
unreasonably withheld. If the Indemnitee assumes the defense of any Third Party
Claim, it shall keep the Indemnifying Party reasonably informed of the progress
of any such defense, compromise or settlement. The Indemnifying Party shall
reimburse all such costs and expenses of the Indemnitee in the event it is
ultimately determined that the Indemnifying Party is obligated to indemnify the
Indemnitee with respect to such Third Party Claim. In no event shall an
Indemnifying Party be liable for any settlement effected without its consent,
which consent will not be unreasonably withheld.
Section 5.8 ADDITIONAL MATTERS.
(a) COOPERATION IN DEFENSE AND SETTLEMENT. With respect to any
Third Party Claim that implicates both DSW and Retail Ventures in a material
fashion due to the allocation of Liabilities, responsibilities for management of
defense and related indemnities set forth in this Agreement or any of the
Inter-Company Agreements, the Parties agree to cooperate fully and maintain a
joint defense (in a manner that will preserve the attorney-client privilege,
joint defense or other privilege with respect thereto) so as to minimize such
Liabilities and defense costs associated therewith. The Party that is not
responsible for managing the defense of such Third Party Claims shall, upon
reasonable request, be consulted with respect to significant matters relating
thereto and may, if necessary or helpful, associate counsel to assist in the
defense of such claims.
(b) PRE-IPO DATE ACTIONS. Except with respect to matters
pertaining solely to, or solely in connection with, the DSW Business, Retail
Ventures may, in its sole discretion, have exclusive authority and control over
the investigation, prosecution, defense and appeal of all Actions pending at the
IPO Date relating to or arising in connection with, in any manner, the DSW
assets or the DSW Liabilities if Retail Ventures or a member of the Retail
Ventures Group is named as a party thereto; PROVIDED, HOWEVER, that Retail
Ventures must obtain the written consent of DSW, such consent not to be
unreasonably withheld, to settle or compromise or consent to the entry of
judgment with respect to such Action. After any such compromise, settlement,
consent to entry of judgment or entry of judgment, Retail Ventures shall
reasonably and fairly allocate to DSW and DSW shall be responsible for DSW's
proportionate share of any such compromise, settlement, consent or judgment
attributable to the DSW Business, the DSW assets or the DSW Liabilities,
including its proportionate share of the costs and expenses associated with
defending same.
(c) SUBSTITUTION. In the event of an Action in which the
Indemnifying Party is not a named defendant, if either the Indemnitee or the
Indemnifying Party shall so request, the Parties shall endeavor to substitute
the Indemnifying Party for the named defendant. If such substitution or addition
cannot be achieved for any reason or is not requested, the rights and
obligations of the Parties regarding indemnification and the management of the
defense of claims as set forth in this ARTICLE V shall not be altered.
41
(d) SUBROGATION. In the event of payment by or on behalf of
any Indemnifying Party to or on behalf of any Indemnitee in connection with any
Third Party Claim, such Indemnifying Party shall be subrogated to and shall
stand in the place of such Indemnitee, in whole or in part based upon whether
the Indemnifying Party has paid all or only part of the Indemnitee's Liability,
as to any events or circumstances in respect of which such Indemnitee may have
any right, defense or claim relating to such Third Party Claim against any
claimant or plaintiff asserting such Third Party Claim or against any other
person. Such Indemnitee shall cooperate with such Indemnifying Party in a
reasonable manner, and at the cost and expense of such Indemnifying Party, in
prosecuting any subrogated right, defense or claim.
Section 5.9 SURVIVAL OF INDEMNITIES. Subject to Section 5.5, the
rights and obligations of the members of the Retail Ventures Group and the DSW
Group under this ARTICLE V shall survive the sale or other transfer by any Party
of any assets or businesses or the assignment by it of any Liabilities or the
sale by any member of the Retail Ventures Group or the DSW Group of the capital
stock or other equity interests of any Subsidiary to any Person.
ARTICLE VI
INSURANCE MATTERS
Section 6.1 DSW INSURANCE COVERAGE DURING THE INSURANCE TRANSITION
PERIOD. As more fully provided in the Shared Services Agreement, Retail Ventures
shall maintain policies of insurance, including policies for the benefit of DSW
or any of its Subsidiaries, directors, officers, employees or other covered
parties (collectively, the "DSW Covered Parties"), and DSW and the DSW Covered
Parties shall promptly pay or reimburse Retail Ventures for premium expenses,
deductibles or retention amounts which Retail Ventures may incur in connection
with such insurance coverages.
Section 6.2 DSW INSURANCE COVERAGE AFTER THE INSURANCE TRANSITION
PERIOD. From and after expiration of the Shared Services Agreement, DSW shall be
responsible for obtaining and maintaining insurance programs for its risk of
loss and such insurance arrangements shall be separate and apart from Retail
Ventures' insurance programs.
ARTICLE VII
MISCELLANEOUS
Section 7.1 LIMITATION OF LIABILITY. IN NO EVENT SHALL ANY MEMBER OF
THE RETAIL VENTURES GROUP OR DSW GROUP BE LIABLE TO ANY OTHER MEMBER OF THE
RETAIL VENTURES GROUP OR DSW GROUP FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT,
INCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY
OF LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT,
WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;
PROVIDED, HOWEVER,
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THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT EACH PARTY'S INDEMNIFICATION
OBLIGATIONS FOR LIABILITIES AS SET FORTH IN THIS AGREEMENT OR IN ANY ANCILLARY
AGREEMENT.
Section 7.2 ENTIRE AGREEMENT. This Agreement, the Inter-Company
Agreements and the Exhibits and Schedules referenced or attached hereto and
thereto, constitute the entire agreement between the Parties with respect to the
subject matter hereof and thereof and shall supersede all prior written and oral
and all contemporaneous oral agreements and understandings with respect to the
subject matter hereof and thereof.
Section 7.3 GOVERNING LAW AND JURISDICTION. This Agreement shall be
construed in accordance with and all Disputes hereunder shall be governed by the
laws of the State of Ohio, excluding its conflict of law rules. The Parties
agree that the court of common pleas of Franklin County, Ohio, shall have
exclusive jurisdiction over all actions between the Parties for preliminary
relief in aid of arbitration pursuant to Section 3.10 herein, and non-exclusive
jurisdiction over any action for enforcement of an arbitral award.
Section 7.4 TERMINATION; AMENDMENT. This Agreement and all
Inter-Company Agreements may be terminated or amended by and in the sole
discretion of Retail Ventures, without the approval of DSW, at any time prior to
the IPO. This Agreement and any applicable Inter-Company Agreements may be
terminated or amended at any time after such date and before the Distribution
Date by mutual consent of Retail Ventures and DSW, evidenced by an instrument in
writing signed on behalf of each of the Parties. In the event of termination
pursuant to this Section 7.4, no Party shall have any liability of any kind to
the other Party.
Section 7.5 NOTICES. Notices, offers, requests or other
communications required or permitted to be given by either party pursuant to the
terms of this Agreement shall be given in writing to the respective Parties to
the following addresses:
if to Retail Ventures:
Retail Ventures, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. XxXxxxx, Chief Financial Office
Fax: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxx, General Counsel
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
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if to DSW:
DSW Inc.
0000 Xxxx 0xx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Chief Operating Officer
Fax: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxx, General Counsel
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
or to such other address or facsimile number as the party to whom notice is
given may have previously furnished to the other in writing as provided herein.
Any notice involving non-performance, termination, or renewal shall be sent by
hand delivery, recognized overnight courier or, within the United States, may
also be sent via certified mail, return receipt requested. All other notices may
also be sent by facsimile, confirmed by first class mail. All notices shall be
deemed to have been given when received, if hand delivered; when transmitted, if
transmitted by facsimile or similar electronic transmission method; one working
day after it is sent, if sent by recognized overnight courier; and three days
after it is postmarked, if mailed first class mail or certified mail, return
receipt requested, with postage prepaid.
Section 7.6 COUNTERPARTS. This Agreement, including the
Inter-Company Agreement and the Exhibits and Schedules hereto and thereto and
the other documents referred to herein or therein, may be executed in
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
Section 7.7 BINDING EFFECT; ASSIGNMENT. This Agreement shall inure
to the benefit of and be binding upon the Parties hereto and their respective
legal representatives and successors, and nothing in this Agreement, express or
implied, is intended to confer upon any other Person any rights or remedies of
any nature whatsoever under or by reason of this Agreement. This Agreement may
be enforced separately by each member of the Retail Ventures Group and each
member of the DSW Group. Neither party may assign this Agreement or any rights
or obligations hereunder, without the prior written consent of the other party,
and any such assignment shall be void; PROVIDED, HOWEVER, either party may
assign this Agreement to a successor entity in conjunction with such party's
reincorporation in another jurisdiction or into another business form.
44
Section 7.8 SEVERABILITY. If any term or other provision of this
Agreement or the Exhibits or Schedules attached hereto is determined by a court,
administrative agency or arbitrator to be invalid, illegal or incapable of being
enforced by any rule of law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to either party. Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the Parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the Parties as
closely as possible in an acceptable manner to the end that transactions
contemplated hereby are fulfilled to the fullest extent possible.
Section 7.9 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of either party hereto in the exercise of any
right hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or agreement herein,
nor shall any single or partial exercise of any such right preclude other or
further exercise thereof or of any other right. All rights and remedies existing
under this Agreement or the Exhibits or Schedules attached hereto are cumulative
to, and not exclusive of, any rights or remedies otherwise available.
Section 7.10 AUTHORITY. Each of the Parties hereto represents to the
other that (a) it has the corporate or other requisite power and authority to
execute, deliver and perform this Agreement, (b) the execution, delivery and
performance of this Agreement by it have been duly authorized by all necessary
corporate or other actions, (c) it has duly and validly executed and delivered
this Agreement, and (d) this Agreement is a legal, valid and binding obligation,
enforceable against it in accordance with its terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and general equity principles.
Section 7.11 INTERPRETATION. The headings contained in this
Agreement, in any Exhibit or Schedule hereto and in the table of contents to
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. Any capitalized term used in
any Exhibit or Schedule but not otherwise defined therein, shall have the
meaning assigned to such term in this Agreement. When a reference is made in
this Agreement to an Article or a Section, Exhibit or Schedule, such reference
shall be to an Article or Section of, or an Exhibit or Schedule to, this
Agreement unless otherwise indicated.
Section 7.12 CONFLICTING AGREEMENTS. None of the provisions of this
Agreement are intended to supersede any provision in any Inter-Company Agreement
or any other agreement with respect to the respective subject matters thereof.
In the event of conflict between this Agreement and any Inter-Company Agreement
or other agreement executed in connection herewith, the provisions of such other
agreement shall prevail.
45
Section 7.13 THIRD PARTY BENEFICIARIES. None of the provisions of
this Agreement shall be for the benefit of or enforceable by any third party,
including any creditor of any Person. No such third party shall obtain any right
under any provision of this Agreement or shall by reasons of any such provision
make any claim in respect of any Liability (or otherwise) against either Party
hereto.
ARTICLE VIII
DEFINITIONS
Section 8.1 DEFINED TERMS. The following capitalized terms shall
have the meanings given to them in this Section 8.1:
"AAA" has the meaning set forth in Section 3.10(c) of this Agreement.
"Action" means any demand, action, suit, countersuit, arbitration,
inquiry, proceeding or investigation by or before any federal, state, local,
foreign or international governmental authority or any arbitration or mediation
tribunal, other than any demand, action, suit, countersuit, arbitration,
inquiry, proceeding or investigation relating to Taxes.
"Affiliated Company" of any Person means any entity that controls, is
controlled by, or is under common control with such Person. As used herein,
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such entity, whether
through ownership of voting securities or other interests, by contract or
otherwise.
"Agreement" shall mean this Master Separation Agreement, together with the
Schedules and Exhibits hereto, as the same may be amended from time to time in
accordance with the provisions hereof.
"Blackout Period" shall have the meaning set forth in Section 4.4 of this
Agreement.
"Class A common shares" shall mean the Class A common shares, without par
value, of DSW.
"Class B common shares" shall mean the Class B common shares, without par
value, of DSW.
"Code" means the Internal Revenue Code of 1986 (or any successor statute),
as amended from time to time, and the regulations promulgated thereunder.
"Commission" shall have the meaning set forth in the preamble of this
Agreement.
"Common Shares" means the Class A and Class B common shares of DSW.
"Company Notice" shall have the meaning set forth in Section 4.2(a) of
this Agreement.
46
"Company Securities" shall have the meaning set forth in Section 4.2(b) of
this Agreement.
"Confidential Business Information" shall have the meaning set forth in
Section 3.5(a)(iii) of this Agreement.
"Confidential Information" shall have the meaning set forth in Section
3.5(a)(i) of this Agreement.
"Confidential Operational Information" shall have the meaning set forth in
Section 3.5(a)(ii) of this Agreement.
"Continuously Effective" with respect to a specified registration
statement, means that such registration statement shall not cease to be
effective and available for transfers of Registrable Securities in accordance
with the method of distribution set forth therein for longer than five (5)
business days during the period specified in the relevant provision of this
Agreement.
"Contract" means any contract, agreement, lease, license, sales order,
purchase order, instrument or other commitment that is binding on any Person or
any part of its property under applicable law.
"Conversion Warrants" shall have the meaning set forth in Section 2.1(c)
of this Agreement.
"Debt Reorganization Events" shall have the meaning set forth in Section
2.1(c) of this Agreement.
"Demand Registration" shall have the meaning set forth in Section 4.1(a)
of this Agreement.
"Demand Registration Statement" shall have the meaning set forth in
Section 4.1(a) of this Agreement.
"Dispute" has the meaning set forth in Section 3.10(a) of this Agreement.
"Dispute Resolution Commencement Date" has the meaning set forth in
Section 3.10(a) of this Agreement.
"Distribution" means the divestiture by Retail Ventures of all or a
significant portion of the Class B common shares of DSW owned by Retail
Ventures, which divestiture may be effected by Retail Ventures as a dividend, an
exchange with existing Retail Ventures stockholders for shares of Retail
Ventures capital stock, a spin-off or otherwise, as a result of which Retail
Ventures is no longer required to consolidate DSW's results of operations and
financial position (determined in accordance with generally accepted accounting
principles consistently applied).
47
"Distribution Date" means the date on which Retail Ventures is no longer
required to consolidate DSW's results of operations and financial position
(determined in accordance with generally accepted accounting principles
consistently applied).
"DSW" shall have the meaning set forth in the preamble to this Agreement.
"DSW Affiliate" means any corporation or other entity directly or
indirectly controlled by DSW.
"DSW's Auditors" shall have the meaning set forth in Section 3.4(a) of
this Agreement.
"DSW Balance Sheet" shall mean DSW's audited Consolidated Balance Sheet
included in the IPO Registration Statement on the date it is declared effective
by the Commission.
"DSW Business" shall have the meaning set forth in the preamble of this
Agreement.
"DSW Capital Stock" means all classes or series of capital stock of DSW.
"DSW Covered Parties" has the meaning set forth in Section 6.1 of this
Agreement.
"DSW Credit Facility" has the meaning set forth in Section 6.1 of this
Agreement.
"DSW Group" means the affiliated group (within the meaning of Section
1504(a) of the Code), or similar group of entities as defined under
corresponding provisions of the laws of other jurisdictions, of which DSW will
be the common parent corporation immediately after the Distribution, and any
corporation or other entity which may become a member of such group from time to
time.
"DSW Indemnitees" means DSW, each member of the DSW Group and each of
their respective directors, officers and employees.
"DSW Liabilities" shall mean (without duplication) the following
Liabilities:
(i) all Liabilities reflected in the DSW Balance Sheet;
(ii) all Liabilities of Retail Ventures or its
Subsidiaries that arise after the date of the DSW Balance Sheet that would
be reflected in a DSW balance sheet as of the date of such Liabilities, if
such balance sheet was prepared using the same principles and accounting
policies under which the DSW Balance Sheet was prepared;
48
(iii) all Liabilities that should have been reflected in
the DSW Balance Sheet but are not reflected in the DSW Balance Sheet due
to mistake or unintentional omission;
(iv) all Liabilities (other than Liabilities for Taxes,
which are governed by the Tax Separation Agreement), whether arising
before, on or after the IPO Date, that relate to, arise or result from:
(1) the operation of the DSW Business, as
conducted at any time prior to, on or after the IPO Date (including any
Liability relating to, arising out of or resulting from any act or failure
to act by any director, officer, employee, agent or representative
(whether or not such act or failure to act is or was within such Person's
authority)); or
(2) the operation of any business conducted by any
member of the DSW Group at any time after the IPO Date (including any
Liability relating to, arising out of or resulting from any act or failure
to act by any director, officer, employee, agent or representative
(whether or not such act or failure to act is or was within such Person's
authority));
(v) all Liabilities that relate to, arise or result from
the DSW Credit Facility;
(vi) all Liabilities that are expressly contemplated by
this Agreement, or any other Inter-Company Agreement (or the Schedules
hereto or thereto) as Liabilities to be assumed by DSW or any member of
the DSW Group; and
(vii) Liabilities of any member of the DSW Group under
this Agreement or any of the Inter-Company Agreements.
After the IPO Date, Retail Ventures and DSW may receive invoices
evidencing liabilities jointly incurred by or on behalf of both of them or
their respective Affiliates. Accordingly, each of Retail Ventures and DSW
agrees that such joint liabilities shall be divided among Retail Ventures,
DSW and their respective Affiliates consistent with past practice and "DSW
Liabilities" shall include the portion so allocated to DSW.
"DSWSW" shall have the meaning set forth in Section 2.1(c) of this
Agreement.
"Effective Date" means the date registration statement filed pursuant to
Article IV hereof is declared effective by the Commission.
"Exchange Act" shall have the meaning set forth in Section 2.1(a) of this
Agreement.
"Final Determination" has the meaning set forth in the Tax Separation
Agreement.
49
"Governmental Approvals" means any notices, reports or other filings to be
made, or any consents, registrations, approvals, permits or authorizations to be
obtained from, any Governmental Authority.
"Governmental Authority" shall mean any federal, state, local, foreign or
international court, government, department, commission, board, bureau, agency,
official or other regulatory, administrative or governmental authority.
"Holders" shall mean, collectively, Retail Ventures and its Affiliated
Companies (other than DSW) who from time to time own Registrable Securities,
each of such entities separately is sometimes referred to herein as a "Holder."
"Indemnifying Party" means any party which may be obligated to provide
indemnification to an Indemnitee pursuant to Section 5.2 or Section 5.3 hereof
or any other section of this Agreement or any Inter-Company Agreement.
"Indemnitee" means any party which may be entitled to indemnification from
an Indemnifying Party pursuant to Section 5.2 or Section 5.3 hereof or any other
section of this Agreement or any Inter-Company Agreement.
"Information" means information, whether or not patentable or
copyrightable, in written, oral, electronic or other tangible or intangible
forms, stored in any medium, including studies, reports, records, books,
contracts, instruments, surveys, discoveries, ideas, concepts, know-how,
techniques, designs, specifications, drawings, blueprints, diagrams, models,
prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes,
computer programs or other software, marketing plans, customer names,
communications by or to attorneys (including attorney-client privileged
communications), memos and other materials prepared by attorneys or under their
direction (including attorney work product), and other technical, financial,
employee or business information or data.
"Insurance Policies" means insurance policies pursuant to which a Person
makes a true risk transfer to an insurer.
"Insurance Proceeds" means those monies: (a) received by an insured from
an insurance carrier; or (b) paid by an insurance carrier on behalf of the
insured; or (c) from Insurance Policies.
"Insurance Transition Period" shall mean the period beginning on the IPO
Date and ending on the Distribution Date.
"Inter-Company Agreements" shall mean the IP License, the Share Exchange
Agreement, the Tax Separation Agreement and the Shared Services Agreement.
"IP License" shall have the meaning set forth in Section 2.1(c) of this
Agreement.
"IPO" shall have the meaning set forth in the preamble of this Agreement.
50
"IPO Date" shall have the meaning set forth Section 2.1(c) of this
Agreement.
"IPO Conditions" shall have the meaning set forth in Section 2.1(c) of
this Agreement.
"IPO Liabilities" means any Liabilities relating to, arising out of or
resulting from any untrue statement or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, with
respect to all information contained in the IPO Registration Statement or any
preliminary, final or supplemental prospectus forming a part of the IPO
Registration Statement.
"IPO Registration Statement" shall have the meaning set forth in the
preamble of this Agreement.
"Lease" has the meaning set forth in Section 3.10(a) of this Agreement.
"Liabilities" means all debts, liabilities, guarantees, assurances,
commitments and obligations, whether fixed, contingent or absolute, asserted or
unasserted, matured or unmatured, liquidated or unliquidated, accrued or not
accrued, known or unknown, due or to become due, whenever or however arising
(including, without limitation, whether arising out of any Contract or tort
based on negligence or strict liability) and whether or not the same would be
required by generally accepted principles and accounting policies to be
reflected in financial statements or disclosed in the notes thereto.
"Loss and Losses" mean any and all damages, losses, deficiencies,
Liabilities, obligations, penalties, judgments, settlements, claims, payments,
fines, interest, costs and expenses (including, without limitation, the costs
and expenses of any and all Actions and demands, assessments, judgments,
settlements and compromises relating thereto and the costs and expenses of
attorneys', accountants', consultants' and other professionals' fees and
expenses incurred in the investigation or defense thereof or the enforcement of
rights hereunder), including direct and consequential damages, but excluding
punitive damages (other than punitive damages awarded to any third party against
an indemnified party).
"Maximum Number" when used in connection with an Underwritten Offering,
shall mean the maximum number of shares of DSW Capital Stock (or amount of other
Registrable Securities) that the Underwriters' Representative has informed DSW
may be included as part of such offering without materially and adversely
affecting the success or pricing of such offering.
"Northland" has the meaning set forth in Section 3.10(a) of this
Agreement.
"Northland Accounting" has the meaning set forth in Section 3.10(a) of
this Agreement.
"NYSE" shall have the meaning set forth in Section 2.1(c) of this
Agreement.
51
"Other Holders" shall have the meaning set forth in Section 4.2(c) of this
Agreement.
"Other Securities" shall have the meaning set forth in Section 4.2(a) of
this Agreement.
"Party" or "Parties" shall have the meaning set forth in the preamble of
this Agreement.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or a governmental entity or any
department, agency or political subdivision thereof.
"Pre-Distribution Period" shall have the meaning set forth in Section
3.3(c) of this Agreement.
"Privileges" shall have the meaning set forth in Section 3.6(a) of this
Agreement.
"Privileged Information" shall have the meaning set forth in Section
3.6(a) of this Agreement.
"Registrable Securities" means (i) the Class B common shares held by
Retail Ventures immediately following the IPO Date (the "Shares"), (ii) any
other securities issued or distributed to Retail Ventures in respect of the
Class B common shares by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, reorganization, merger,
consolidation or otherwise, (iii) any Class A Common Shares or other securities
received by Retail Ventures into which or for which Class B common shares are
converted or exchanged or are convertible or exchangeable, (iv) any other Class
B common shares acquired by Retail Ventures prior to the Distribution Date, and
(v) any other successor securities received by Retail Ventures in respect of any
of the forgoing (i) through (iv); PROVIDED that in the event that any
Registrable Securities (as defined without giving effect to this proviso) are
being registered pursuant hereto, the Holder may include in such registration
(subject to the limitations of this Agreement otherwise applicable to the
inclusion of Registrable Securities) any Class B common or securities acquired
in respect thereof thereafter acquired by such Holder, which shall also be
deemed to be "Shares" and accordingly Registrable Securities, for purposes of
such registration. As to any particular Registrable Securities, such Registrable
Securities shall cease to be Registrable Securities when (w) a registration
statement with respect to the sale by Retail Ventures shall have been declared
effective under the Securities Act and such Shares shall have been disposed of
in accordance with such registration statement, (x) they shall have been
distributed to the public in accordance with Rule 144, (y) they shall have been
otherwise transferred by Retail Ventures to an entity or Person that is not an
Affiliated Company of Retail Ventures, new certificates for them not bearing a
legend restricting further transfer shall have been delivered by DSW and
subsequent disposition of them shall not require
52
registration or qualification of them under the Securities Act or any state
securities or blue sky law then in effect or (z) they shall have ceased to be
outstanding.
"Registration Expenses" means any and all out-of-pocket expenses incident
to performance of or compliance with ARTICLE IV of this Agreement, including,
without limitation, (i) all Commission registration and filing fees, (ii) all
fees and expenses of complying with securities or blue sky laws (including fees
and disbursements of counsel for any underwriters in connection with blue sky
qualifications of the Registrable Securities) or relating to the National
Association of Securities Dealers, Inc., (iii) all printing, messenger and
delivery expenses, (iv) all fees and expenses incurred in connection with
listing (or authorizing for quotation) the Registrable Securities on a
securities exchange or automated inter-dealer Quotation System pursuant to the
requirements hereof, (v) the fees and disbursements of counsel for DSW and of
its independent public accountants, (vi) all expenses in connection with the
preparation, printing and filing of the registration statement, any preliminary
prospectus or final prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to any Holders, underwriters and
dealers and all expenses incidental to delivery of the Registrable Securities,
(vii) the reasonable fees and disbursements of one firm of counsel, other than
DSW's counsel, selected by the Holders of Registrable Securities being
registered, (viii) any fees and disbursements of underwriters customarily paid
by the issuers or sellers of securities, and the reasonable fees and expenses of
any special experts retained in connection with the requested registration, but
excluding underwriting discounts and commissions and transfer taxes, if any, and
(ix) the expenses incurred in connection with making "road show" presentations
and holding meetings with potential investors to facilitate the distribution and
sale of Registrable Securities.
"Request" shall have the meaning set forth in Section 4.1(a) of this
Agreement.
"Retail Ventures" shall have the meaning set forth in the preamble to this
Agreement.
"Retail Ventures' Auditors" shall have the meaning set forth in Section
3.4(b) of this Agreement.
"Retail Ventures Business" means any business of Retail Ventures other
than the DSW Business.
"Retail Ventures Group" means the affiliated group (within the meaning of
Section 1504(a) of the Code), or similar group of entities as defined under
corresponding provisions of the laws of other jurisdictions, of which Retail
Ventures is the common parent corporation, and any corporation or other entity
which may be, may have been or may become a member of such group from time to
time, but excluding any member of the DSW Group.
"Retail Ventures Indemnitees" means Retail Ventures, each member of the
Retail Ventures Group and each of their respective directors, officers and
employees.
53
"Retail Ventures Portions" means all information set forth in, or
incorporated by reference into, the IPO Registration Statement, to the extent
such information relates exclusively to (a) Retail Ventures and the Retail
Ventures Group and (b) the Retail Ventures Business.
"Retail Ventures Securities" shall have the meaning set forth in Section
4.2(b) of this Agreement.
"Rule 144" means Rule 144 (or any successor rule to similar effect)
promulgated under the Securities Act.
"Rule 415 Offering" means an offering on a delayed or continuous basis
pursuant to Rule 415 (or any successor rule to similar effect) promulgated under
the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Selling Holder" shall have the meaning set forth in Section 4.6(e) of
this Agreement.
"Shared Services Agreement" shall have the meaning set forth in Section
2.1(c) of this Agreement.
"Share Exchange Agreement" shall have the meaning set forth in Section
2.1(c) of this Agreement.
"Shares" shall have the meaning set forth in the definition of Registrable
Securities.
"SSC" shall have the meaning set forth in Section 2.1(c) of this
Agreement.
"Subsidiary" of any Person means a corporation or other organization
whether incorporated or unincorporated of which at least a majority of the
securities or interests having by the terms thereof ordinary voting power to
elect at least a majority of the board of directors or others performing similar
functions with respect to such corporation or other organization is directly or
indirectly owned or controlled by such Person or by any one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries; PROVIDED,
HOWEVER, that no Person that is not directly or indirectly wholly-owned by any
other Person shall be a Subsidiary of such other Person unless such other Person
controls, or has the right, power or ability to control, that Person.
"Sublease" has the meaning set forth in Section 3.10(a) of this Agreement.
"Tax and Taxes" have the meaning set forth in the Tax Separation
Agreement.
"Tax Separation Agreement" shall have the meaning set forth in Section
2.1(c) of this Agreement.
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"Term Loan Warrants" shall have the meaning set forth in Section 2.1(c) of
this Agreement.
"Third Party Claim" has the meaning set forth in Section 5.1(a) of this
Agreement.
"Underwritten Offering" shall mean a registration in which securities of
DSW are sold to one or more underwriters for reoffering to the public.
"Underwriters" shall have the meaning set forth in Section 2.1(a) of this
Agreement.
"Underwriting Agreement" shall have the meaning set forth in Section
2.1(a) of this Agreement.
"Underwriters' Representative" when used in connection with an
Underwritten Offering, shall mean the managing underwriter of such offering, or,
in the case of a co-managed underwriting, the managing underwriters designated
as the Underwriters' Representative by the co-managers.
"Warrants" shall have the meaning set forth in Section 2.1(c) of this
Agreement.
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WHEREFORE, the Parties have signed this Master Separation Agreement
effective as of the date first set forth above.
RETAIL VENTURES, INC.
/s/ Xxxxx X. XxXxxxx
---------------------------------
Name: Xxxxx X. XxXxxxx
Title: CFO
DSW, INC.
/s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: COO, EVP
56
EXHIBIT A
IP LICENSE
SCHEDULE 1.1(c)
CERTAIN OFFICERS AND/OR DIRECTORS OF RETAIL VENTURES
SCHEDULE 1.2(b)
CERTAIN OFFICERS AND/OR DIRECTORS OF DSW
SCHEDULE 2.3(g)
1. DSW Inc. (formerly known as Shonac Corporation) and DSW Shoe Warehouse,
Inc. are parties to a Guaranty in favor of GMAC Commercial Credit LLC,
dated November 26, 2004.
2. DSW Inc. (formerly known as Shonac Corporation) and DSW Shoe Warehouse,
Inc. are parties to a Guaranty in favor of Capital Factors, Inc., dated
November 26, 2004.
3. DSW Inc. (formerly known as Shonac Corporation) and DSW Shoe Warehouse,
Inc. are parties to a Guaranty in favor of The CIT Group/Commercial
Services, Inc., dated November 26, 2004.
