Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of March 18,
2002 by and among XXXXX APPAREL GROUP, INC., a Pennsylvania corporation (the
"Company"), G.V. TRADEMARK INVESTMENTS LTD, a British Virgin Islands
corporation ("Seller"), and XXXXXX XXXXXXXXXX TRADEMARK B.V., a Netherlands
corporation ("Licensor", and, together with Seller, the "Shareholders").
RECITALS
WHEREAS, concurrently with the execution of this Agreement, the Company,
Xxxxx Apparel Group Holdings, Inc., a Delaware corporation, Xxxxxx Xxxxxxxxxx
Apparel Corp., a Delaware corporation, and Seller entered into a Stock
Purchase Agreement (the "Stock Purchase Agreement");
WHEREAS, pursuant to the Stock Purchase Agreement, Seller will receive on
the Closing Date (as defined in the Stock Purchase Agreement) shares of the
Company's Common Stock, par value $.01 per share (the "Common Stock"),
constituting the Seller Stock Closing Consideration (as defined in the Stock
Purchase Agreement) (the "Seller Closing Shares");
WHEREAS, concurrently with the execution of this Agreement, the Company,
Xxxxx Investment Co., Inc., a Delaware corporation, and Licensor entered into
an Asset Purchase Agreement (the "Asset Purchase Agreement");
WHEREAS, pursuant to the Asset Purchase Agreement, Licensor will receive
on the Closing Date (as defined in the Asset Purchase Agreement) shares of the
Common Stock constituting the Licensor Stock Closing Consideration (as defined
in the Asset Purchase Agreement) (the "Licensor Closing Shares" and, together
with the Seller Closing Shares, the "Closing Shares");
WHEREAS, pursuant to the Stock Purchase Agreement, Seller may receive
additional shares of the Common Stock in accordance with Section 2.4 and
Section 2.5 of the Stock Purchase Agreement (the "Contingent Shares" and,
collectively with the Closing Shares, the "Shares");
WHEREAS, the Company and the Shareholders desire to execute and deliver
this Agreement in order to provide the Shareholders with certain rights with
respect to the Shares;
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged the parties hereto agree as
follows:
1. Certain Definitions. As used herein, the following terms shall have
the following respective meanings:
"affiliate" of any person means another person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such first person.
"Closing Date" shall have the same meaning herein as in the Stock
Purchase Agreement.
"Commission" shall mean the Securities and Exchange Commission or any
other Federal agency at the time administering the Securities Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any successor Federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall from time to time be in
effect.
The terms "register", "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
"Registrable Securities" shall mean the Shares and any shares of the
Common Stock or other securities issued in respect of the Shares upon any
stock split, stock dividend, merger, consolidation, recapitalization or
similar event. Such securities shall cease to be Registrable Securities when
(i) a registration statement registering such securities shall have become
effective under the Securities Act and such securities have been sold pursuant
thereto, (ii) such securities shall have been sold under Rule 144 (or
successor provision) under the Securities Act, (iii) such securities shall
have been otherwise transferred and new certificates for them not bearing a
legend restricting further transfer shall have been delivered by the Company
or (iv) such securities shall have ceased to be outstanding.
"Registration Expenses" shall mean all fees and expenses incurred by the
Company in compliance with its obligations under Section 3.1 or Section 3.2,
including, without limitation, all registration and NYSE fees, filing fees,
printing expenses, fees and disbursements of counsel for the Company, and the
fees and expenses of the Company's accountants (including the costs of
obtaining any "comfort" letters) and auditors; provided, however, that
"Registration Expenses" shall not include (i) any transfer taxes relating to
the sale or disposition of the Registrable Securities, (ii) any Selling
Expenses or (iii) the fees and expenses of counsel and other advisors for any
Shareholder.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any successor Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall from time to time be in effect.
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all "road
show" and other marketing expenses incurred by the Company or any underwriters
participating in an underwritten offering pursuant to Section 3.3 which are
not otherwise paid for by such underwriters.
2
2. Restrictive Legend. Each certificate representing the Shares and any
other securities issued in respect of the Shares upon any stock split, stock
dividend, merger, consolidation, recapitalization or similar event shall
(unless otherwise permitted or unless the securities evidenced by such
certificate shall have been registered under the Securities Act) be stamped or
otherwise imprinted with a legend in the following form (in addition to any
legend required under applicable state securities laws):
The securities represented by this Certificate have not been
registered under the Securities Act of 1933, as amended, nor the
laws of any state. Accordingly, these securities may not be offered,
sold, transferred, pledged or hypothecated in the absence of
registration, or the availability, in the opinion of counsel for the
issuer, of an exemption from registration under the Securities Act
of 1933, as amended, or the laws of any state. Therefore the stock
transfer agent will effect transfer of this Certificate only in
accordance with the above instructions.
Upon request of a holder of such a certificate, the Company shall
remove the foregoing legend from the certificate or issue to such holder a new
certificate therefor free of any transfer legend if, with such request, the
Company shall have received an opinion of counsel reasonably satisfactory to
the Company to the effect that the securities represented by such certificate
have been registered under the Securities Act or may be sold publicly without
registration under the Securities Act.
3.1 Registration. Within thirty days from the Closing Date, the Company
shall file a registration statement on Form S-3 or any successor thereto (or
other form of registration statement if Form S-3 is not available) for the
public sale of all of the Closing Shares (the "Shelf Registration Statement"),
and thereafter shall use its reasonable efforts to have the Shelf Registration
Statement declared effective by the Commission. The Company shall amend the
Shelf Registration Statement (or file a new Shelf Registration Statement, if
required, in which case all references herein to the Shelf Registration
Statement shall include such new Shelf Registration Statement) within thirty
days of the issuance of the Contingent Shares, if any, to include such
Contingent Shares. The Company shall use its reasonable efforts to keep the
Shelf Registration Statement continuously effective, subject to Section 4
below, for a period of one year from the Closing Date (or, in the case of a
Shelf Registration Statement that includes the Contingent Shares, one year
from the issuance of the Contingent Shares) or until the Shareholders shall
have completed the distribution of all Registrable Securities described in the
Shelf Registration Statement, whichever occurs first.
3.2 Registration Procedures. In connection with the filing of the Shelf
Registration Statement, the Company will, subject to Section 4 below:
(i) Furnish each Shareholder whose Registrable Securities are
covered thereby, as updated from time to time, prior to the filing thereof
with the Commission, a copy of any Shelf Registration Statement (including any
preliminary prospectus contained therein), and each amendment thereto and each
amendment or supplement, if any, to the prospectus included therein and shall
reflect in each such document, when so filed with the Commission, such
comments pertaining to such Shareholder as such Shareholder may reasonably
propose in writing;
3
(ii) Prepare and file with the Commission such amendments and
supplements (including post-effective amendments and supplements) to the Shelf
Registration Statement and the prospectus used in connection therewith as may
be necessary to comply with the provisions of the Securities Act with respect
to the disposition of Registrable Securities covered by the Shelf Registration
Statement;
(iii) Furnish such number of copies of the prospectus and other
documents incident thereto, including any amendment of or supplement thereto,
as each Shareholder whose Registrable Securities are covered thereby from time
to time may reasonably request in writing;
(iv) Cause all Registrable Securities covered thereby to be listed
on each, if any, securities exchange on which similar securities issued by the
Company are then listed and use its reasonable efforts to register or qualify
such Registrable Securities under such applicable state securities or blue sky
laws as any Shareholder of such Registrable Securities may reasonably request
in writing; provided, however, that the Company shall not be required for any
such purpose to (A) qualify generally to do business as a foreign company,
entity or a broker-dealer in any jurisdiction wherein it would not otherwise
be required to qualify but for the requirements of this Agreement, (B) subject
itself to taxation in any such jurisdiction or (C) consent to general service
of process in any such jurisdiction;
(v) Provide a transfer agent and registrar for all such Registrable
Securities and a CUSIP number for all such Registrable Securities, in each
case not later than the effective date of such registration;
(vi) Upon appropriate prior written notice by a Shareholder of
Registrable Securities covered thereby, make available for inspection by such
Shareholder, any underwriter participating in any underwritten offering
pursuant to Section 3.3, and any attorney or accountant retained by such
Shareholder or underwriter, on reasonable prior notice and during normal
business hours, reasonable financial and other records, pertinent corporate
documents and properties of the Company, and use its reasonable efforts to
cause the Company's officers and directors to supply all information
reasonably requested in writing by any such Shareholder, underwriter, attorney
or accountant in connection with such registration statement; provided,
however, that any such Shareholder, underwriter, attorney or accountant shall
have agreed to keep confidential all information so provided, except as
required by law or administrative process and except for information that is
available to the public other than as a result of a breach of such
confidentiality obligation;
(vii) Furnish to each Shareholder whose Registrable Securities are
covered thereby a copy of all material documents filed with and all material
correspondence from or to the Commission relating to the Shelf Registration
Statement;
(viii) Otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the Commission;
(ix) In connection with any underwritten offering pursuant to
Section 3.3, to the extent applicable, furnish to each Shareholder whose
Registrable Securities are being
4
sold in such offering, a signed counterpart, addressed to such Shareholder, of
an opinion of counsel for the Company, dated the effective date of the Shelf
Registration Statement, and "comfort" letters signed by the Company's
independent public accountants who have examined and reported on the Company's
financial statements included in the Shelf Registration Statement, to the
extent permitted by the standards of the AICPA or other relevant authorities,
covering substantially the same matters with respect to the Shelf Registration
Statement (and the prospectus included therein) and, in the case of the
accountants' "comfort" letters, with respect to events subsequent to the date
of such financial statements, as are customarily covered in opinions of
issuer's counsel and in accountants' "comfort" letters delivered to the
underwriters in underwritten public offerings of securities; and
(x) In connection with any underwritten offering pursuant to Section
3.3, the Company will enter into any underwriting agreement reasonably
necessary to effect the offer and sale of the Registrable Securities to be
sold in such offering, provided that such underwriting agreement contains
customary underwriting provisions, and provided further that, if the
underwriter so requests, the underwriting agreement will contain customary
indemnification and contribution provisions.
3.3. Underwriting. (a) The Shareholders, on not more than one occasion
during the one year period(s) described in Section 3.1, shall have the right
to distribute all, but not less than all, of the Registrable Securities owned
by them which are covered by the Shelf Registration Statement by means of an
underwritten offering. If the Shareholders desire to sell their Registrable
Securities by means of an underwritten offering, they shall so advise the
Company by written notice, and the Company shall select an underwriter or
representative of underwriters reasonably acceptable to the Shareholders.
(b) If the Shareholders propose to sell their Registrable Securities
in an underwritten offering pursuant to Section 3.3(a), and the underwriter of
such offering shall inform the Company that the inclusion of all or a
specified number of such Registrable Securities) would interfere with the
successful marketing or pricing of such Registrable Securities, then the
Company shall reduce the number of each Shareholder's Registrable Securities
included in such offering pro rata to the extent necessary to eliminate such
effect. In the event that the number of Registrable Securities included in
such underwritten offering is reduced below 75% of the Registrable Securities
initially included in such offering, then such offering shall not be deemed to
have satisfied the requirement for the one underwritten offering to which the
Shareholders are entitled under paragraph (a) above.
(c) The Company shall file such amendments and supplements to the
Shelf Registration Statement as it deems necessary and use its reasonable
efforts to cause such underwritten offering to comply with all applicable
rules and regulations of the Commission. In addition, the Company shall assist
the Shareholders in marketing the Registrable Securities to be sold pursuant
to such underwritten offering, including by participating in "road shows" and
similar marketing efforts as reasonably requested by the Shareholders or the
underwriters, subject in all events to the reasonable availability of the
Company's officers and personnel. No Shareholder may participate in any
underwritten offering hereunder unless such Shareholder (A) agrees to sell
such Shareholder's Registrable Securities on the basis provided in customary
underwriting arrangements entered into in connection therewith and (B)
completes and executes
5
a customary underwriting agreement and all reasonable questionnaires, powers
of attorney, and other documents required under the terms of such underwriting
arrangements.
3.4 Expenses. The Company shall bear all Registration Expenses. The
Shareholders shall bear all Selling Expenses (in proportion, as nearly as
practicable, to the securities of each Shareholder being sold). Except as
provided in the preceding sentence, each party hereto shall bear its own costs
and expenses in connection with this Agreement and the transactions
contemplated hereby.
4. Sale Restrictions. (a) The Company shall advise each Shareholder in
writing of the commencement of any period in which the Company prohibits the
senior executives of the Company from purchasing or selling securities of the
Company in the open market in connection with the Company's filing of a Form
10-K or Form 10-Q with the Commission (any such period, a "Quarterly Blackout
Period"). No Shareholder shall sell, transfer or otherwise dispose of any
Registrable Securities pursuant to the Shelf Registration Statement, nor shall
they deliver a Sale Notice pursuant to paragraph (b) below, during a Quarterly
Blackout Period. Each Quarterly Blackout Period shall expire on the date on
which the Company no longer prohibits the senior executives of the Company
from purchasing or selling securities of the Company in the open market in
connection with the Company's filing of a Form 10-K or Form 10-Q with the
Commission, and the Company shall advise each Shareholder in writing of the
expiration of each Quarterly Blackout Period on the date that such period
expires.
(b) For any sale, transfer or other disposition of Registrable Securities
pursuant to the Shelf Registration Statement, each Shareholder shall give the
Company prior written notice of such sale, transfer or other disposition (any
such notice, a "Sale Notice"). Each Shareholder shall only be entitled to
submit twelve Sale Notices to the Company in any calendar year. Such
Shareholder shall not consummate the sale, transfer or other disposition of
Registrable Securities specified in a Sale Notice unless and until the Company
has advised such Shareholder whether an amendment or supplement to the Shelf
Registration Statement is necessary or appropriate in order for sales
thereunder to be made in compliance with the Commission's applicable rules and
regulations; provided that if the Company shall not have so advised such
Shareholder within three business days after a Sale Notice has been delivered,
the Company shall be deemed to have advised such Shareholder on such third
business day that no amendment or supplement to the Shelf Registration
Statement is required (a "Deemed Sale Advice") and such Shareholder may
consummate the sale, transfer or other disposition of Registrable Securities
described in such Sale Notice at any time during the five business day period
commencing on the first business day following the date on which such
Shareholder
6
received such Deemed Sale Advice. The Company shall use reasonable efforts to
advise any Shareholder that submits a Sale Notice whether the Company
considers it necessary or appropriate for the Shelf Registration Statement to
be amended or supplemented in order for sales thereunder to be made in
compliance with the Commission's applicable rules and regulations as promptly
as practicable after receipt of such Sale Notice. If, after receipt of a Sale
Notice from a Shareholder, the Company advises such Shareholder that no
amendment or supplement to the Shelf Registration Statement is necessary or
appropriate in order for sales thereunder to be made in compliance with the
Commission's applicable rules and regulations (a "Sale Advice"), such
Shareholder may consummate the sale, transfer or other disposition described
in such Sale Notice at any time during the five business day period commencing
on the first business day following the date on which such Shareholder
received such Sale Advice. If, after receipt of a Sale Notice from a
Shareholder, the Company advises such Shareholder in writing that the Company
considers it necessary or appropriate for the Shelf Registration Statement to
be amended or supplemented in order for sales thereunder to be made in
compliance with the Commission's applicable rules and regulations prior to
such Shareholder's receipt of a Sale Advice or Deemed Sale Advice with respect
to such Sale Notice, such Shareholder shall suspend the sale, transfer or
other disposition of its Registrable Securities described in such Sale Notice
until the Company advises such Shareholder that the Shelf Registration
Statement has been amended or supplemented and declared effective. The Company
shall use reasonable efforts to file any such amendment or supplement and
cause the Shelf Registration Statement to be declared effective as soon as
promptly as practicable; provided that if such amendment or supplement is not
filed, and the Shelf Registration Statement is not declared effective, within
five business days of the date that the Company advises a Shareholder that
such amendment or supplement is required, then the related Sale Notice given
by such Shareholder shall not count as one of the twelve Sale Notices that
such Shareholder is entitled to deliver to the Company in any calendar year.
Notwithstanding the preceding sentence, the Company may delay filing any
amendment or supplement to the Shelf Registration Statement, and may cause its
effectiveness to be delayed, if the Company advises such Shareholder in its
written notice that the Company has determined that the filing of such
amendment or supplement (or the declaration of its effectiveness) will (i)
interfere with or adversely affect the negotiation, completion, marketing or
pricing of any transaction, including, without limitation, any securities
offering, that is being contemplated by the Company (whether or not a final
decision has been made to undertake such a transaction) at the time the right
to delay is exercised, or (ii) involve initial or continuing disclosure
obligations not in the best interest of the Company; provided, however, that
(A) the Company shall not exercise its right to delay with respect to such
Shareholder on more than two occasions during any calendar year, (B) the
period of each such delay shall not exceed thirty days from the date of the
Company's written notice to such Shareholder, and (C) with respect to each
such delay, the Company shall use its reasonable efforts to minimize the
period of such delay. If the Company so notifies a Shareholder that the filing
of any amendment or supplement to the Shelf Registration Statement will be
delayed or that the effectiveness of the Shelf Registration Statement will be
delayed then the Sale Notice given by such Shareholder with respect to the
sale, transfer or other disposition that is suspended as a result of such
delay shall not count as one of the twelve Sale Notices that such Shareholder
is entitled to deliver to the Company in any calendar year.
5. Indemnification.
(a) The Company shall indemnify, to the fullest extent permitted by law,
each Shareholder whose Registrable Securities are covered by the Shelf
Registration Statement, each of their respective officers and directors, each
person controlling such Shareholder within the meaning of the Securities Act,
each underwriter participating in an underwritten offering pursuant to Section
3.3 (if any), and each person controlling any such underwriter within the
meaning of the Securities Act, against all claims, losses, damages and
liabilities (or actions or proceedings in respect thereof) arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact
contained in the Shelf Registration Statement (including the prospectus
contained therein), or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each such Shareholder,
each of its officers and directors, each person controlling
7
such Shareholder within the meaning of the Securities Act, each such
underwriter, and each person controlling each such underwriter within the
meaning of the Securities Act, for any legal and any other expenses as they
are reasonably incurred in connection with investigating and defending any
such claim, loss, damage, liability, action or proceeding, provided that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability (or action or proceeding in respect thereof) or
expense arises out of or is based on written information furnished to (or
information withheld from) the Company by such Shareholder or underwriter
specifically for inclusion therein or any grossly negligent or fraudulent
action or inaction of such Shareholder or underwriter.
(b) Each Shareholder will indemnify, to the fullest extent permitted
by law, the Company, its directors and officers and each person controlling
the Company within the meaning of the Securities Act, each other Shareholder
and each of their officers and directors, each person controlling such other
Shareholder within the meaning of the Securities Act, each underwriter
participating in an underwritten offering pursuant to Section 3.3 (if any),
and each person controlling any such underwriter within the meaning of the
Securities Act, against all claims, losses, damages and liabilities (or
actions or proceedings in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
the Shelf Registration Statement (including the prospectus contained therein),
or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company, such Shareholders, their
respective directors, officers, or control persons, each such underwriter, and
each person controlling each such underwriter within the meaning of the
Securities Act, for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability, action or proceeding, in each case to the extent that such untrue
statement (or alleged untrue statement) or omission (or alleged omission)
arises out of or is based upon written information furnished to (or
information withheld from) the Company by such Shareholder specifically for
inclusion therein or any grossly negligent or fraudulent action or inaction of
such Shareholder.
(c) Each party entitled to indemnification under this Section 5 (the
"Indemnified Party") shall give notice in writing to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has knowledge of any claim as to which indemnity may be
sought, provided, however, that the failure of any Indemnified Party to give
notice as provided herein shall not relieve the Indemnifying Party of its
obligations under the preceding paragraphs of this Section 5, except to the
extent the Indemnifying Party is prejudiced thereby. In case any such claim or
action is brought against an Indemnified Party, unless in the reasonable
judgment of such Indemnified Party's counsel, a conflict of interest between
such Indemnified and Indemnifying Parties exists in respect of such claim, the
Indemnifying Party will be entitled to participate in and, jointly with any
other Indemnifying Party similarly notified, to assume the defense thereof, to
the extent that it may wish, and after notice from the Indemnifying Party to
such Indemnified Party of its election so to assume the defense thereof, the
Indemnifying Party will not be liable to such Indemnified Party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof, and the Indemnifying Party will not be subject to any
liability for any settlement made without its consent (which consent shall not
be unreasonably withheld). No Indemnifying Party will consent to entry of any
judgment or enter into any settlement which does not include as an
8
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. Each Indemnified Party shall furnish such information regarding
itself or the claim in question as an Indemnifying Party may reasonably
request in writing and as shall be reasonably required in connection with the
defense of such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 5 is
unavailable to an Indemnified Party (other than as a result of the terms
hereof) in respect of any losses, claims, damages or liabilities referred to
therein, then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities
in such proportion as is appropriate to reflect the relative fault of the
Company, on the one hand, and the Shareholders whose Registrable Securities
were included in the Shelf Registration Statement (the "Selling
Shareholders"), on the other, in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative fault of the Company, on
the one hand, and the Selling Shareholders, on the other, shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by one of the
Selling Shareholders and the parties' relevant intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Selling Shareholders agree that it would not be just and
equitable if contribution pursuant to this Section 5(d) were based solely upon
the number of entities from whom contribution was requested or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this Section 5(d). The amount paid or
payable by an Indemnified Party as a result of the losses, claims, damages and
liabilities referred to above in this Section 5(d) shall be deemed to include
any legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or claim, subject
to the provisions of Section 5(d) hereof. No person guilty of fraudulent
misrepresentation (within the meaning of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation.
6. Information by Shareholder. Each Shareholder shall furnish to the
Company such information regarding such Shareholder and the distribution
proposed by such Shareholder as the Company may reasonably request in writing
and as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this Agreement.
7. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may permit the sale of
the Registrable Securities to the public without registration, the Company
agrees to use its reasonable efforts to (i) make available and keep public
information as those terms are understood and defined in Rule 144 under the
Securities Act and (ii) file with the Commission in a timely manner all
reports and other documents required of the Company under the Securities Act
and the Exchange Act.
8. Entire Agreement; Amendment; Waiver. This Agreement, the Stock
Purchase Agreement, and the Asset Purchase Agreement and all documents
required to be delivered hereto and thereto and the other documents and
certificates delivered pursuant to the terms hereof, set
9
forth the entire agreement and understanding of the parties hereto in respect
of the subject matter contained herein, and supersede all prior negotiations,
understandings, discussions, agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto whether written or
oral. This Agreement may be amended, modified or supplemented only by written
agreement of all the parties hereto. Any failure of any party hereto to comply
with any obligation, covenant, agreement or condition herein may be expressly
waived in writing by the other parties hereto, but such waiver or failure to
insist upon strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure.
9. Notices. All notices or other communications required or permitted to
be given pursuant to this Agreement shall be in writing and shall
be considered as duly given on the date of delivery, if delivered in person,
if sent by courier or Federal Express or other similar overnight delivery
service or on the date of transmission if sent by telecopier (which is
confirmed with a copy sent by other means of delivering notice hereunder), to
the party entitled to receive the same, at the address provided in this
Section 9.
Any party hereto may change its address by giving notice to the
other parties hereto stating its new address, all in the manner provided
herein. Such newly designated address shall thereafter be such party's address
for the purpose of all notices or other communications required or permitted
to be given pursuant to this Agreement.
(a) If to the Company, to:
Xxxxx Apparel Group, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx
and
Xxxxx Apparel Group, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
10
Attention: Xxx X. Xxxxxx, Esq.
with a copy to:
Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
(b) If to Seller, to:
G.V. Trademark Investments Ltd
0000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
(c) If to Licensor, to:
Xxxxxx Xxxxxxxxxx Trademark B.V.
00 Xxxxxx Xxxxxxx
X-0000 Xxxxxxxxxx
Fax: 000-000-000-0000000
11
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
and
Shiboleth, Yisraeli, Xxxxxxx & Xxxxxx, LLP
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
10. Successors and Assigns. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns, but neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any of the parties hereto without the prior written consent of the
other parties; provided that each Shareholder may assign its rights hereunder
to any of its affiliates in connection with the transfer, sale or other
disposition of Shares to such affiliate, provided further that (a) the Company
is given written notice at the time of such assignment, stating the name and
address of said assignee and identifying the Registrable Securities with
respect to which such rights are being assigned and (b) the assignee of such
rights has executed an agreement, satisfactory in all respects to the Company,
assuming the obligations under this Agreement as if originally a Shareholder
hereunder.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed entirely within such State, without regard
to the conflicts of law principles of such State.
12. Titles and Subtitles. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. When a reference is made in this Agreement
to a Section such reference shall be to a Section of this Agreement unless
otherwise indicated.
13. Severability. If any provision of this Agreement (or any portion
thereof) or the application of any such provision (or any portion thereof) to
any person or circumstance shall be held invalid, illegal or unenforceable in
any respect by a court of competent jurisdiction, such invalidity, illegality
or unenforceability shall not affect any other provision hereof (or the
remaining portion thereof) or the application of such provision to any other
persons or circumstances.
12
14. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more such counterparts have been signed by
each of the parties and delivered to the other parties.
15. Effectiveness. This Agreement shall only become effective upon the
occurrence of both (a) the Closing (as defined in the Stock Purchase
Agreement) and (b) the Closing (as defined in the Asset Purchase Agreement).
16. Jurisdiction; Consent to Service of Process. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the exclusive jurisdiction of any New York State court or Federal
court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of
or relating to this Agreement or the transactions contemplated hereby, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding shall be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(b) Each of the parties hereto hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby in any New York State or Federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) Each of the parties hereto irrevocably consents to service of
process in the manner provided for notices in Section 9. Nothing in this
Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
17. Specific Performance. The parties hereby declare that it is
impossible to measure in money the damages which will accrue to a party hereto
by reason of a failure to perform any of the obligations under this Agreement.
Therefore, all parties hereto shall be entitled to specific performance of the
obligations of the other parties under this Agreement.
13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
XXXXX APPAREL GROUP, INC.,
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President
G.V. TRADEMARK INVESTMENTS LTD,
By: /s/ Xxxx Etcheverrito
--------------------------------
Name: Xxxx Etcheverrito
Title: Director
XXXXXX XXXXXXXXXX TRADEMARK B.V.,
By: /s/ X. Xxxxxx
--------------------------------
Name: X. Xxxxxx
Title: Director
By: /s/ X. Xxxxxxxxx
--------------------------------
Name: X. Xxxxxxxxx
Title: Director
14
