Exhibit 4.12
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (the "Agreement") is dated as of
this 26th day of February, 1997 among FS Equity Partners II, L.P., a California
limited partnership ("FSEP II"), FS Equity Partners III, L.P., a Delaware
limited partnership ("FSEP III"), FS Equity Partners International, L.P., a
Delaware limited partnership ("FSEP International") (FSEP II, FSEP III and FSEP
International are collectively referred to herein as the "FS Stockholders"), M&P
Distributing Company, a Nevada corporation ("Limited Stockholder"), The Limited,
Inc., a Delaware corporation, WearGuard Corporation, a Delaware corporation
("WearGuard"), The TJX Companies, Inc., a Delaware corporation ("TJX"), Leeway &
Co., a Massachusetts partnership, as nominee for the Long-Term Investment Trust,
a trust governed by the laws of the State of New York ("Leeway"), NYNEX Master
Trust, a trust governed by the laws of the State of New York ("NYNEX") and
Brylane Inc., a Delaware corporation (the "Company"). Each of the FS
Stockholders, the Limited Stockholder, WearGuard, TJX, Leeway, NYNEX and any
other Person who shall become a party to or agree to be bound by the terms of
this Agreement after the date hereof is sometimes hereinafter referred to as a
"Stockholder."
W I T N E S S E T H:
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A. The FS Stockholders, the Limited Stockholder, WearGuard, Leeway
and NYNEX have acquired common stock, par value $0.01 per share (the "Common
Stock"), of the Company in the manner contemplated by the Agreement of Limited
Partnership dated as of August 30, 1993, (as amended from time to time, the
"Partnership Agreement") among the Partners referred to therein.
B. TJX has or may acquire shares of Common Stock in a manner
contemplated by that certain First Amended and Restated Incorporation and
Exchange Agreement dated as of December 9, 1996 among the FS Stockholders,
Limited Stockholder, The Limited, Inc., WearGuard, Xxxxxxxx'x, Inc., a
Massachusetts corporation, Leeway, NYNEX and the Company (as amended from time
to time, the "Incorporation and Exchange Agreement"), including through the
conversion into Common Stock of a Convertible Subordinated Note due 2006 to be
jointly issued by the Company and the Partnership (the "Company Note") to TJX in
exchange for that certain Convertible Subordinated Note due 2006 in the original
principal amount of $20,000,000 issued by the Partnership to Xxxxxxxx'x, Inc.
(the "Partnership Note") and transferred to TJX on February 18, 1997, all
pursuant to the transactions described in and the terms of the Incorporation and
Exchange Agreement.
C. In connection with an Initial Public Offering (as defined in the
Partnership Agreement) of Common Stock, the FS Stockholders, the Limited
Stockholder, WearGuard, TJX, Leeway and NYNEX are to be granted certain rights
with respect to the Common Stock held by them (or to be held by it in the case
of TJX).
D. In order to ensure that such parties are granted such rights, the
parties hereto desire to enter into this Agreement.
A G R E E M E N T:
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NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
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SECTION 1.1 Definitions. Terms defined in the Stockholders Agreement
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(the "Stockholders Agreement") dated as of February 26, 1997 among the Company,
the FS Stockholders, the Limited Stockholder, WearGuard, TJX, Leeway, and NYNEX
are used herein as therein defined. In addition, the following terms shall have
the following meanings:
"Commission" means the Securities and Exchange Commission.
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"Demand Registration" means a Demand Registration as defined in
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Section 2.1.
"Excess Amount" means the number of Registrable Securities requested
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by a Minority Holder or Minority Holders or a Holder or Holders, as the case may
be, to be sold pursuant to Section 2.1 which the managing Underwriter or
Underwriters determines exceeds the largest number of Registrable Securities
which can successfully be sold in an orderly manner in such offering within a
price range acceptable to the Company.
"Holder" means the FS Stockholders, the Limited Stockholder, or any
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Affiliate of any of them which owns Common Stock.
"Includible Amount" means the number of Registrable Securities
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requested by a Minority Holder or Minority Holders and/or a Holder or Holders,
as the case may be, to be sold pursuant to Section 2.3(a) which the Minority
Holder who makes the Minority Holder Demand Registration request reasonably
determines in good faith is the largest number of Registrable Securities which
can successfully be sold in an orderly manner in such offering without adversely
affecting the offering.
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"Initial Public Offering" shall have the meaning set forth in the
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Partnership Agreement.
"Minority Holders" means WearGuard, Leeway, NYNEX, TJX (if it has
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acquired Common Stock, or any Affiliate of any of them which owns Common Stock;
provided that, for purposes of any provision pursuant to which notice is to be
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given to Minority Holders, TJX shall be treated as a Minority Holder if it then
holds Common Stock, the Company Note or the Partnership Note.
"Minority Holders Demand Registration" means, with respect to each of
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WearGuard, TJX, Leeway and NYNEX, a Demand Registration as defined in Section
2.3.
"1933 Act" means the Securities Act of 1933 and the rules and
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regulations thereunder.
"1934 Act" means the Securities Exchange Act of 1934 and the rules
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and regulations thereunder.
"Person" means an individual, a corporation, a partnership, an
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association, a trust or other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.
"Piggy-Back Registration" means a Piggy-Back Registration as defined
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in Section 2.2.
"Registrable Security" means any share of Common Stock outstanding
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until (i) a registration statement covering such Common Stock has been declared
effective by the Commission and it has been disposed of pursuant to such
effective registration statement, (ii) it is sold under circumstances in which
all of the applicable conditions of Rule 144 (or any similar provisions then in
force) under the 1933 Act ("Rule 144") are met or it may be sold pursuant to
Rule 144(k) under such Act or (iii) it has been otherwise Transferred, the
Company has delivered a new certificate or other evidence of ownership for it
not bearing the legend required pursuant to the Stockholders Agreement and it
may be resold without subsequent registration under the 1933 Act; provided that,
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notwithstanding the foregoing, shares of Common Stock held by TJX shall remain
Registrable Securities until the date that is three (3) years after the
completion of the Initial Public Offering.
"Requisite Share Number" means a number of Registrable Securities
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representing not less than 10% of the total number of shares of Common Stock
then outstanding or shares of Common Stock representing not less than
$15,000,000 in fair market value as determined by the Board, or such lesser
number as constitutes all shares of Common Stock then held by the relevant
Holder representing not less than 3% of the total number of shares of Common
Stock then outstanding.
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"Selling Holder" means a Holder or a Minority Holder who is proposing
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to sell, selling or causing its Affiliates to propose to sell or sell
Registrable Securities pursuant to a registration statement under the 1933 Act.
"Selling Holder Notice" means a Selling Holder Notice as defined in
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Section 2.1.
"Transfer" means any direct or indirect transfer, sale, assignment,
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pledge, hypothecation, encumbrance or other disposition of Common Stock.
"Underwriter" means a securities dealer who purchases any Registrable
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Securities as principal in an underwritten offering and not as part of such
dealer's market-making activities.
ARTICLE II
REGISTRATION RIGHTS
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SECTION 2.1 Demand Registration.
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(a) Request for Registration. At any time and from time to
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time on or after the date which is six (6) months following the closing of the
Initial Public Offering, any Holder, on behalf of itself or any of its
Affiliates owning, individually or in the aggregate, at least the Requisite
Share Number may make a written request for registration under the 1933 Act of
all or part of its or their Registrable Securities (a "Demand Registration");
provided that the Holder or Holders making such request are together
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requesting that the Requisite Share Number be registered, and provided, further,
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that the Company shall not be obligated to effect (i) more than two Demand
Registrations in any eighteen (18) month period or (ii) more than two Demand
Registrations (A) for the FS Stockholders and their Affiliates and (B) for the
Limited Stockholder and its Affiliates, in each case in the aggregate. Such
request will specify the number of shares of Registrable Securities proposed to
be sold and will also specify the intended method of disposition thereof. The
Company shall give written notice of such registration request within ten (10)
days after the receipt thereof to all other Holders and the Minority Holders.
Within twenty (20) days after receipt of such notice by any Holder and Minority
Holder, such Holder and Minority Holder may request in writing that Registrable
Securities be included in such registration and the Company shall include in the
Demand Registration the Registrable Securities of any such Holder or Minority
Holder, or any of such Holder's or Minority Holder's Affiliates, requested to be
so included. Each such request by such other Holders and Minority Holders
(each, a "Selling Holder Notice") shall specify the number of shares of
Registrable Securities proposed to be sold and the intended method of
disposition thereof. Unless the Holder making such Demand Registration shall
consent in writing, no other party, including the Company, shall be permitted to
offer securities under any such Demand Registration; provided, however, that in
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the case of a Demand Registration requested by the FS Stockholders ("FS Demand
Registration"), the FS
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Stockholders may include the Registrable Securities of Leeway and NYNEX prior to
and in preference of, and without incurring any obligation to include, any
Registrable Securities of the Company and any other Stockholder, notwithstanding
anything contained in this Section or in Section 2.2 hereof to the contrary.
Notwithstanding anything contained in this Section or in Section 2.2 to the
contrary, in any FS Demand Registration or in any Demand Registration requested
by the Limited Stockholder ("Limited Demand Registration") in which Registrable
Securities of the FS Stockholders are included, each of Leeway and NYNEX may, at
its option, include up to a percentage of its Registrable Securities equal to
the percentage of the FS Stockholders' Registrable Securities that is being sold
by the FS Stockholders in such FS Demand Registration or Limited Demand
Registration, as the case may be (with, in the case of a Limited Demand
Registration, the number of Registrable Securities to be included by the FS
Stockholders to be reduced to accommodate the inclusion of any Registrable
Securities held by Leeway or NYNEX).
(b) Effective Registration. A registration will not count as a
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Demand Registration until it has become effective.
(c) Underwritten Offering. If the Holder initiating a Demand
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Registration so elects, the offering of such Registrable Securities pursuant to
such Demand Registration shall be in the form of an underwritten offering. The
Company and such Holder shall select one or more nationally recognized firms of
investment bankers to act as the managing Underwriter or Underwriters in
connection with such offering and shall select any additional managers to be
used in connection with the offering.
SECTION 2.2 Piggy-Back Registration. If at any time ninety (90) days
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following the closing of the Initial Public Offering the Company proposes to
file a registration statement under the 1933 Act with respect to an offering by
the Company for its own account or for the account of any of its respective
securityholders of any class of security of the same class as the Registrable
Securities (other than a registration statement on Form S-4 or S-8 (or any
substitute form that may be adopted by the Commission) or a registration
statement filed in connection with an exchange offer or offering of securities
solely to the Company's existing securityholders), then the Company shall give
written notice of such proposed filing to the Holders and the Minority Holders
as soon as practicable (but in no event less than ten (10) days before the
anticipated filing date), and such notice shall offer the Holders and the
Minority Holders the opportunity to register such number of shares of
Registrable Securities as each such Holder or Minority Holder may request in
writing within five (5) days of receipt of such notice on behalf of itself or
its Affiliates (which request shall specify the Registrable Securities intended
to be disposed of by such Holder and its Affiliates, or such Minority Holder and
its Affiliates and the intended method of distribution thereof) (a "Piggy-Back
Registration"). The Company shall use its best efforts to cause the managing
Underwriter or Underwriters of a proposed underwritten offering to permit the
Registrable Securities requested to be included in a Piggy-Back Registration to
be included on the same terms and conditions as any similar securities of the
Company included therein to permit the sale or other disposition of such
Registrable Securities in accordance
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with the intended method of distribution thereof. Subject to Section 2.4(b),
any Holder or Minority Holder shall have the right to withdraw its request for
inclusion of its Registrable Securities in any Piggy-Back Registration by giving
written notice to the Company of its request to withdraw within twenty (20) days
of its request for inclusion. The Company may withdraw a Piggy-Back
Registration at any time prior to the time it becomes effective; provided that
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the Company shall reimburse Minority Holders, if applicable, or Holders of
Registrable Securities requested to be included in such Piggy-Back Registration
for all out-of-pocket expenses (including counsel fees and expenses) incurred
prior to such withdrawal. Notwithstanding the foregoing, if any Stockholder is
permitted to include shares of Common Stock in the Initial Public Offering or if
the Initial Public Offering consists solely of an offering by one or more
Stockholders, each of TJX, Leeway, and NYNEX shall be entitled to include its
shares on the same basis as such Stockholder.
SECTION 2.3 Minority Holder Demand Registration.
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(a) Request for Registration. At any time and from time to
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time on or after the date which is six (6) months following the closing of the
Initial Public Offering, the Minority Holders may each make a written request
for registration under the 1933 Act of all or part of their respective
Registrable Securities (which registration may be effected on Form S-3 if the
Company is eligible to use such Form) (with respect to each Minority Holder, a
"Minority Holder Demand Registration"); provided that each Minority Holder shall
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have only one Minority Holder Demand Registration right. The Company shall give
written notice of any such Minority Holder Demand Registration request within
ten (10) days after the receipt thereof to all Holders and to all other Minority
Holders, as applicable. Within twenty (20) days after receipt of such notice by
any Holder or Minority Holder, as applicable, such Holder or Minority Holder, as
applicable, may request in writing that Registrable Securities be included in
such registration and the Company shall include in the Minority Holder Demand
Registration the Registrable Securities of any such Holder or any of its
Affiliates or Minority Holder, or any of its Affiliates, requested to be so
included; provided that, unless the Minority Holder who has made such Minority
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Holder Demand Registration Request shall consent in writing, no other party,
including the Company, shall be permitted to offer securities under such
Minority Holder Demand Registration. Each Selling Holder Notice shall specify
the number of shares of Registrable Securities proposed to be sold and the
intended method of disposition thereof. No Minority Holder Demand Registration
shall be an underwritten offering.
(b) Effective Registration. A registration will not count as a
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Minority Holder Demand Registration until it has become effective and it has
remained effective until all Registrable Securities offered thereunder have been
sold or it has been effective for a total of six (6) months in the aggregate.
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(c) Termination.
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(1) Notwithstanding anything to the contrary contained
within this Section 2.3, the Minority Holder Demand Registration right with
respect to WearGuard shall immediately terminate with respect to WearGuard at
such time as WearGuard shall be eligible to sell its Registrable Securities
without restriction as to amount or manner of sale under Rule 144, or any
successor regulation, and the Company shall have delivered to WearGuard an
opinion of counsel with a national reputation, which may be counsel to the
Company, to that effect.
(2) The rights of each of TJX, Leeway and NYNEX pursuant to
Section 2.3 shall terminate on the date that is three (3) years after the
completion of the Initial Public Offering.
SECTION 2.4 Reduction of Offering.
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(a) Notwithstanding anything contained herein, if the managing
Underwriter or Underwriters of an offering described in Section 2.1 or 2.2
determine that the size of the offering that the Holders, the Company and/or
such other Persons intend to make is such that the success of the offering would
be materially and adversely affected by inclusion of the Registrable Securities
requested to be included, then (i) with respect to a Demand Registration, and
subject to the right of the Holder making such Demand Registration request to
exclude any securities not held by such Holder therefrom, if the size of the
offering is the basis of such Underwriter's or Underwriters' determination, the
Company shall not include in such registration an amount of Registrable
Securities requested to be included in such offering by all Holders and Minority
Holders, as the case may be, equal to the Excess Amount (such reduction to be
allocated pro rata among such Holders and Minority Holders, as the case may be,
according to the number of Registrable Securities requested for inclusion) and
(ii) in the case of a Piggy-Back Registration, if securities are being offered
for the account of other Persons as well as the Company, the securities the
Company seeks to include shall have priority over securities sought to be
included by any other Person (including the Holders and the Minority Holders)
and, with respect to the Registrable Securities intended to be offered by
Holders and Minority Holders, the proportion by which the amount of such class
of securities intended to be offered by Holders and Minority Holders is reduced
shall not exceed the proportion by which the amount of such class of securities
intended to be offered by such other Persons is reduced (it being understood
that with respect to the Holders, the Minority Holders and third parties, such
reduction may be all of such class of securities).
(b) If a Minority Holder who makes a Minority Holder Demand
Registration request described in Section 2.3(a) reasonably determines in good
faith that the success of the offering would be adversely affected by the
inclusion of the Registrable Securities requested to be included then, if the
size of the offering is the basis of such Minority Holder's determination, the
Company shall only include in such registration an
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amount of Registrable Securities requested to be included in such offering by
all Holders and Minority Holders, as the case may be, equal to the Includible
Amount, and with respect to the allocation of the Includible Amount (i) the
securities the Minority Holder who made the Minority Holder Demand Registration
request seeks to include shall have priority over securities sought to be
included by any other Person (including the Holders and the other Minority
Holders), (ii) the securities the Company seeks to include shall, after giving
effect to clause (i) of this Section 2.4(b), have priority over securities
sought to be included by any other Person (including the Holders and the other
Minority Holders) and (iii) after giving effect to clauses (i) and (ii) of this
Section 2.4(b), the remaining Includible Amount, if any, shall be allocated pro
rata among the Holders and other Minority Holders, as the case may be, according
to the number of Registrable Securities requested for inclusion.
(c) If, as a result of the proration provisions of Section
2.4(a) or 2.4(b), any Selling Holder shall not be entitled to include all
Registrable Securities in a Demand Registration or Piggy-Back Registration that
such Selling Holder has requested to be included, such Selling Holder may elect
to withdraw its request to include Registrable Securities in such registration
(a "Withdrawal Election"); provided, however, that a Withdrawal Election shall
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be irrevocable and, after making a Withdrawal Election, a Selling Holder shall
no longer have any right to include Registrable Securities in the registration
as to which such Withdrawal Election was made.
ARTICLE III
REGISTRATION PROCEDURES
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SECTION 3.1 Filings; Information. Whenever any Holder requests that
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any Registrable Securities be registered pursuant to a Demand Registration, or
when any Minority Holder requests that any Registrable Securities be registered
pursuant to a Minority Holder Demand Registration, the Company will use its best
efforts to effect the registration and the sale of such Registrable Securities
in accordance with the intended method of disposition thereof as quickly as
practicable, and:
(a) In connection with any Demand Registration request, the
Company will as expeditiously as possible prepare and file with the Commission a
registration statement on any form for which the Company then qualifies or which
counsel for the Company shall deem appropriate and which form shall be available
for the sale of the Registrable Securities to be registered thereunder in
accordance with the intended method of distribution thereof, and use its best
efforts to cause such filed registration statement to become and remain
effective until the earlier of (i) one hundred eighty (180) days from the date
such registration statement became effective or (ii) the date on which the sale
of Registrable Securities has been completed; provided that, if the Company
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shall furnish to any Holder making a request pursuant to Section 2.1 a
certificate signed by either its Chairman or the Vice Chairman stating that in
his good faith judgment it would be significantly disadvantageous to the
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Company for such a registration statement to be filed as expeditiously as
possible, the Company shall have a period of not more than ninety (90) days
within which to file such registration statement measured from the date of
receipt of the request in accordance with Section 2.1.
(b) In connection with a Minority Holder Demand Registration request,
the Company will as expeditiously as possible prepare and file with the
Commission a registration statement and use its best efforts to cause such filed
registration statement to become and remain effective until the earlier of (i)
one hundred eighty (180) days from the date such registration statement became
effective or (ii) the date on which the sale of Registrable Securities has been
completed; provided that, if the Company shall furnish to the Minority Holder
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making such Minority Holder Demand Registration request a certificate signed by
either its Chairman or the Vice Chairman stating that in his good faith judgment
it would be significantly disadvantageous to the Company for such a registration
statement to be filed as expeditiously as possible, the Company shall have a
period of not more than one hundred eighty (180) days within which to file such
registration statement measured from the date of receipt of such Minority Holder
Demand Registration request in accordance with Section 2.3; provided further
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that the Company's right under this Section 3.1(b) to delay the filing of a
registration statement for a Minority Holder Demand Registration may only be
exercised once in a 365-day period with respect to a specific Minority Holder.
(c) The Company will, prior to filing a registration statement or
prospectus or any amendment or supplement thereto, furnish to each Selling
Holder, counsel representing the Selling Holders, and each Underwriter, if any,
of the Registrable Securities covered by such registration statement, copies of
such registration statement as proposed to be filed, together with exhibits
thereto, which documents will be subject to prompt review and approval by the
foregoing, and thereafter furnish to such Selling Holder, counsel and
Underwriter, if any, such number of copies of such registration statement, each
amendment and supplement thereto (in each case including all exhibits thereto
and documents incorporated by reference therein), the prospectus included in
such registration statement (including each preliminary prospectus) and such
other documents as such Selling Holder or Underwriter may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by such
Selling Holder.
(d) After the filing of the registration statement, the Company will
promptly notify each Selling Holder of Registrable Securities covered by such
registration statement of any stop order issued or threatened by the Commission
and take all reasonable actions required to prevent the entry of such stop order
or to remove it if entered.
(e) The Company will use its best efforts to (i) register or qualify
the Registrable Securities under such other securities or blue sky laws of such
jurisdictions in the United States as any Selling Holder reasonably (in light of
such Selling Holder's intended plan of distribution) requests and (ii) cause
such Registrable Securities to be registered with or approved by such other
governmental agencies or authorities in the United States as may
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be necessary by virtue of the business and operations of the Company and do any
and all other acts and things that may be reasonably necessary or advisable to
enable such Selling Holder to consummate the disposition of the Registrable
Securities owned by such Selling Holder; provided that the Company will not be
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required to (A) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this paragraph (e), (B)
subject itself to taxation in any such jurisdiction or (C) consent to general
service of process in any such jurisdiction.
(f) The Company will immediately notify each Selling Holder of such
Registrable Securities, at any time when a prospectus relating thereto is
required to be delivered under the 1933 Act, of the occurrence of an event
requiring the preparation of a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such prospectus will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading and promptly make available to each
Selling Holder any such supplement or amendment.
(g) The Company will enter into customary agreements (including, if
applicable, an underwriting agreement in customary form) and take such other
actions as are reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities (the Selling Holders may, at their
option, require that any or all of the representations, warranties and covenants
of the Company to or for the benefit of such Underwriters also be made to and
for the benefit of such Selling Holders).
(h) The Chairman of the Board of Directors of the Company, the Chief
Executive Officer of the Company and other members of the management of the
Company will cooperate fully in any offering of Registrable Securities pursuant
to Section 2.1 hereof, including, without limitation, participation in meetings
with potential investors and preparation of all materials for such investors.
With respect to a Minority Holder Demand Registration requested by TJX, Leeway
or NYNEX or registration under Section 2.2 in which TJX, Leeway or NYNEX
participates, (i) the Company will cooperate to facilitate an orderly
distribution of the shares of TJX, Leeway or NYNEX, as the case may be, and TJX,
Leeway or NYNEX, as the case may be, will advise the Company of its intentions
with respect to any significant sale of Registrable Securities and (ii) the
Company will make management available at the Company's offices or by telephone,
upon reasonable notice and at reasonable times and for the seller's
representatives and a small number of potential purchasers and/or placement
agents, for marketing and diligence discussions regarding the Company and its
business.
(i) The Company will deliver promptly to each Selling Holder of such
Registrable Securities and each Underwriter, if any, subject to restrictions
imposed by the United States federal government or any agency or instrumentality
thereof, copies of all correspondence between the Commission and the Company,
its counsel or auditors and all memoranda relating to discussions with the
Commission or its staff with respect to the
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registration statement and make available for inspection by any Selling Holder
of such Registrable Securities, any Underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant or other
professional retained by any such Selling Holder or Underwriter (collectively,
the "Inspectors"), (it being understood that the Company is responsible for
payment of the reasonable fees and expenses of only one counsel (in addition to
counsel to the issuer) pursuant to clause (h) of Section 3.2) all financial and
other records, pertinent corporate documents and properties of the Company
(collectively, the "Records"), subject to restrictions imposed by any
governmental authority governing access to classified information, as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information reasonably requested by any Inspectors in connection with
such registration statement. Records which the Company determines, in good
faith, to be confidential and which it notifies the Inspectors are confidential
shall not be disclosed by the Inspectors unless (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in such
registration statement or (ii) the disclosure or release of such Records is
requested or required pursuant to oral questions, interrogatories, requests for
information or documents or a subpoena or other order from a court of competent
jurisdiction or other process; provided that prior to any disclosure or release
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pursuant to clause (ii), the Inspectors shall provide the Company with prompt
notice of any such request or requirement so that the Company may seek an
appropriate protective order or waive such Inspectors' obligation not to
disclose such Records; and provided, further, that if failing the entry of a
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protective order or the waiver by the Company permitting the disclosure or
release of such Records, the Inspectors, upon advice of counsel, are compelled
to disclose such Records, the Inspectors may disclose that portion of the
Records which counsel has advised the Inspectors that the Inspectors are
compelled to disclose. Each Selling Holder of such Registrable Securities
agrees that information obtained by it solely as a result of such inspections
(not including any information obtained from a third party who, insofar as is
known to the Selling Holder after reasonable inquiry, is not prohibited from
providing such information by a contractual, legal or fiduciary obligation to
the Company) shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of the Company or its
Affiliates unless and until such is made generally available to the public.
Each Selling Holder of such Registrable Securities further agrees that it will,
upon learning that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company, at its expense,
to undertake appropriate action to prevent disclosure of the Records deemed
confidential.
(j) The Company will use its reasonable best efforts to furnish to
each Selling Holder and to each Underwriter, if any, a signed counterpart,
addressed to such Selling Holder or Underwriter, of (i) an opinion or opinions
of counsel to the Company and (ii) a comfort letter or comfort letters from the
Company's independent public accountants, each in customary form and covering
such matters of the type customarily covered by opinions or comfort letters, as
the case may be, as the Selling Holders of Registrable Securities included in
such offering or the managing Underwriter therefor reasonably requests.
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(k) The Company will comply with all applicable rules and regulations
of the Commission, and make available to its securityholders, as soon as
reasonably practicable, an earnings statement covering a period of twelve (12)
months, beginning within three (3) months after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the 1933 Act.
(l) The Company will use its best efforts (i) to cause all such
Registrable Securities to be listed on a national securities exchange (if such
shares are not already so listed) and on each additional national securities
exchange on which similar securities issued by the Company are then listed (if
any), if the listing of such Registrable Securities is then permitted under the
rules of such exchange or (ii) to secure designation of all such Registrable
Securities covered by such registration statement as a NASDAQ "national market
system security" within the meaning of Rule 11Aa2-1 of the Commission or,
failing that, to secure NASDAQ authorization for such Registrable Securities
and, without limiting the generality of the foregoing, to arrange for at least
two market makers to register as such with respect to such Registrable
Securities with the NASD.
(m) The Company may require each Selling Holder of Registrable
Securities to promptly furnish in writing to the Company such information
regarding the distribution of the Registrable Securities as the Company may from
time to time reasonably request and such other information as may be legally
required in connection with such registration.
Each Selling Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3.1(f)
hereof, such Selling Holder will forthwith discontinue and, if applicable, cause
its Affiliates to discontinue disposition of Registrable Securities pursuant to
the registration statement covering such Registrable Securities until such
Selling Holder's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 3.1(f) hereof, and, if so directed by the Company, such
Selling Holder will deliver to the Company all copies, other than permanent file
copies then in such Selling Holder's possession, of the most recent prospectus
covering such Registrable Securities at the time of receipt of such notice. In
the event the Company shall give such notice, the Company shall extend the
period during which such registration statement shall be maintained effective
(including the period referred to in Section 3.1(a) hereof) by the number of
days during the period from and including the date of the giving of notice
pursuant to Section 3.1(f) hereof to the date when the Company shall make
available to the Selling Holders of Registrable Securities covered by such
registration statement a prospectus supplemented or amended to conform with the
requirements of Section 3.1(f) hereof.
SECTION 3.2 Registration Expenses. In connection with any Demand
---------------------
Registration pursuant to Section 2.1 hereof, any registration statement filed
pursuant to Section 2.2 hereof, and any Minority Holder Demand Registration
pursuant to Section 2.3 hereof, the Company shall pay the following registration
expenses incurred in connection with the registration hereunder, whether or not
such registration becomes effective (the
12
"Registration Expenses"): (a) all registration and filing fees, (b) fees and
expenses of compliance with securities or blue sky laws (including fees and
disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities), (c) printing expenses, (d) the Company's internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), (e) the fees and
expenses incurred in connection with the listing of the Registrable Securities,
(f) fees and disbursements of counsel for the Company and fees and expenses for
independent certified public accountants retained by the Company (including the
expenses of any comfort letters or costs associated with the delivery by
independent certified public accountants of a comfort letter or comfort letters
requested pursuant to Section 3.1(j) hereof), (g) the fees and expenses of any
special experts retained by the Company in connection with such registration,
and (h) reasonable fees and expenses of one counsel (who shall be reasonably
acceptable to the Company) for all of the Selling Holders (in addition to
counsel for the Company), provided that with respect to a Minority Holder Demand
Registration requested by TJX, Leeway or NYNEX and up to three (3) registrations
pursuant to Section 2.2 in which TJX, Leeway or NYNEX participates, the Company
shall also pay the reasonable fees and expenses of special counsel for TJX,
Leeway or NYNEX, as the case may be. The Company shall have no obligation to
pay any underwriting fees, discounts or commissions attributable to the sale of
Registrable Securities, or any other out-of-pocket expenses of the Holders or
the Minority Holders.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
--------------------------------
SECTION 4.1 Indemnification by the Company. The Company agrees to
------------------------------
indemnify and hold harmless each Selling Holder of Registrable Securities, its
officers, directors and agents, and each Person, if any, who controls such
Selling Holder within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act from and against any loss, claim, damage or liability and any
action in respect thereof to which such Selling Holder, its officers, directors
and agents, and any such controlling Person may become subject under the 1933
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained in any registration statement or
prospectus relating to the Registrable Securities (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or arises out of, or is based upon, any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and shall reimburse
each Selling Holder, its officers, directors and agents, and each such
controlling Person for any legal and other expenses reasonably incurred by that
Selling Holder, its officers, directors and agents, or any such controlling
Person in investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action. The Company also agrees to indemnify
any Underwriters of the Registrable Securities, their officers and
13
directors and each Person who controls such Underwriters on substantially the
same basis as that of the indemnification of the Selling Holders provided in
this Section 4.1; provided that the indemnity agreement contained in this
--------
Section 4.1 shall not apply to amounts paid in settlement of any such loss,
claim, damage or liability and any action in respect thereof if such settlement
is effected without the consent of the Company (which consent shall not be
unreasonably withheld), nor shall the Company be liable in any such case for any
loss, claim, damage, liability and any action in respect thereof to the extent
that it arises from or is based upon written information relating to a Person
furnished expressly for use in connection with such registration by such Person,
nor shall the Company be liable to any Person for any such loss, claim, damage
or liability and any action in respect thereof to the extent it arises from or
is based upon (a) any untrue statement or alleged untrue statement of a material
fact contained in any registration statement or prospectus relating to the
Registrable Securities delivered by such Person after such Person had received a
written notice provided by the Company that such registration statement or
prospectus contained such untrue statement or alleged untrue statement of a
material fact, (b) any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading after such Person had received a written notice provided by the
Company that such registration statement or prospectus contained such omission
or alleged omission, or (c) the failure of such Person to deliver any
preliminary or final prospectus, or any amendments or supplements thereto,
required under applicable securities laws, including the 1933 Act, to be so
delivered, provided that a sufficient number of copies thereof had been provided
by the Company to such Person.
SECTION 4.2 Indemnification by Selling Holders of Registrable Securities.
------------------------------------------------------------
Each Selling Holder agrees, severally but not jointly, to indemnify and hold
harmless the Company, its officers, directors and agents and each Person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act to the same extent as the foregoing indemnity from
the Company to such Selling Holder, but only with reference to information
related to such Selling Holder furnished in writing by such Selling Holder or on
such Selling Holder's behalf expressly for use in any registration statement or
prospectus relating to the Registrable Securities, or any amendment or
supplement thereto, or any preliminary prospectus. Each Selling Holder also
agrees to indemnify and hold harmless Underwriters of the Registrable
Securities, if any, their officers and directors and each Person who controls
such Underwriters on substantially the same basis as that of the indemnification
of the Company provided in this Section 4.2; provided that in no event shall any
--------
indemnity obligation under this Section 4.2 exceed the net proceeds from the
offering received by such Selling Holder.
SECTION 4.3 Conduct of Indemnification Proceedings. Promptly after
--------------------------------------
receipt by any person in respect of which indemnity may be sought pursuant to
Section 4.1 or 4.2 (an "Indemnified Party") of notice of any claim or the
commencement of any action, the Indemnified Party shall, if a claim in respect
thereof is to be made against the person against whom such indemnity may be
sought (an "Indemnifying Party"), notify the Indemnifying Party in writing of
the claim or the commencement of such action provided that the failure to
14
notify the Indemnifying Party shall not relieve it from any liability which it
may have to an Indemnified Party otherwise than under Section 4.1 or 4.2 and
except to the extent of any actual prejudice resulting therefrom. If any such
claim or action shall be brought against an Indemnified Party, and it shall
notify the Indemnifying Party thereof, the Indemnifying Party shall be entitled
to participate therein, and, to the extent that it wishes, jointly with any
other similarly notified Indemnifying Party, to assume the defense thereof with
counsel satisfactory to the Indemnified Party. After notice from the
Indemnifying Party to the Indemnified Party of its election to assume the
defense of such claim or action, the Indemnifying Party shall not be liable to
the Indemnified Party for any legal or other expenses subsequently incurred by
the Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation; provided that the Indemnified Party shall
--------
have the right to employ separate counsel to represent the Indemnified Party and
its controlling Persons who may be subject to liability arising out of any claim
in respect of which indemnity may be sought by the Indemnified Party against the
Indemnifying Party, but the fees and expenses of such counsel shall be for the
account of such Indemnified Party unless (a) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the retention of such counsel or
(b) based upon the written opinion of counsel of such Indemnified Party
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. The Indemnifying Party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settlement is made with such consent or if there be a
final judgment for the plaintiff, the Indemnifying Party shall indemnify the
Indemnified Party from and against any loss, claim, damage, or liability by
reason of such settlement or judgment. No Indemnifying Party shall, without the
prior written consent of the Indemnified Party, effect any settlement of any
claim or pending or threatened proceeding in respect of which the Indemnified
Party is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability arising out
of such claim or proceeding.
SECTION 4.4 Contribution. If the indemnification provided for in this
------------
Article IV is unavailable to the Indemnified Parties in respect of any losses,
claims, damages or liabilities referred to herein, then each such Indemnifying
Party, in lieu of indemnifying such Indemnified Party, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such losses,
claims, damages or liabilities (a) as between the Company and the Selling
Holders on the one hand and the Underwriters, if any, on the other, in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Holders on the one hand and the Underwriters on the
other from the offering of the Registrable Securities, or if such allocation is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits but also the relative fault of the Company and
the Selling Holders on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations and (b) as between the Company on the one hand and each Selling
Holder on the other, or as among the Selling Holders, as the case may be, in
such proportion as is appropriate to reflect the
15
relative fault of the Company and of each Selling Holder in connection with such
statements or omissions, as well as any other relevant equitable considerations;
provided, however, that no person found guilty of fraudulent misrepresentation
-------- -------
(within the meaning of Section 11(f) of the 0000 Xxx) by a court of competent
jurisdiction shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation). The relative benefits received by
the Company 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 the Company 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 the Company 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 or alleged omission to state a material fact relates to information
supplied by the Company and the Selling Holders or by the Underwriters. The
relative fault of the Company on the one hand and of each Selling Holder, and
with respect to the Selling Holders among themselves, on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by such party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Selling Holders agree that it would not be just and
equitable if contribution pursuant to this Section 4.4 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 4.4, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and 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 (less underwriting discounts and commissions) 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 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. Each Selling
Holder's obligations
16
to contribute pursuant to this Section 4.4 are several and not joint, and in no
event shall such obligation exceed the net proceeds of the offering received by
such Selling Holder.
ARTICLE V
MISCELLANEOUS
-------------
SECTION 5.1 Participation in Underwritten Registrations. No Person may
-------------------------------------------
participate in any underwritten registration hereunder unless such Person (a)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements and these
Registration Rights; provided that (i) if the FS Stockholders, the Limited
--------
Stockholder or any of their Affiliates, or any of the Minority Holders or any of
their Affiliates participates in such registration, they will not be required to
make any representations or warranties except those which relate solely to
themselves and (ii) the liability of the FS Stockholders, the Limited
Stockholder or any of their Affiliates, or any of the Minority Holders or any of
their Affiliates to any Underwriter under such underwriting agreement will be
limited to liability arising from misstatements in, or omissions from, written
information regarding such Person provided by or on behalf of such Person for
inclusion in the prospectus.
SECTION 5.2 Rule 144. The Company covenants that it will use its
--------
reasonable best efforts to file any reports required to be filed by it under the
1933 Act and the 1934 Act and that it will take such further action as any
Holder or Minority Holder may reasonably request, all to the extent reasonably
required from time to time to enable Holders and their Affiliates or Minority
Holders and their Affiliates to sell Registrable Securities without registration
under the 1933 Act within the limitation of the exemptions provided by (a) Rule
144 or Rule 144A under the 1933 Act, as such Rules may be amended from time to
time, or (b) any similar Rule or regulation hereafter adopted by the Commission.
Upon the request of any Holder or Minority Holder, the Company will deliver to
such Holder or Minority Holder a written statement as to whether it has complied
with such requirements.
SECTION 5.3 Holdback Agreements.
-------------------
(a) Restrictions on Public Sale by WearGuard, TJX or Holders of
-----------------------------------------------------------
Registrable Securities. To the extent not inconsistent with applicable law, and
----------------------
except with respect to a Minority Holder Demand Registration, each of the
Minority Holders and each Holder of Registrable Securities agrees not to effect
any sale or distribution or to permit any of its Affiliates to effect any sale
or distribution of the issue being registered or of a similar security of the
Company, or any securities convertible into or exchangeable or exercisable for
such securities, including a sale pursuant to Rule 144 or Rule 144A under the
1933 Act, during the fourteen (14) days prior to, and during the one hundred
twenty (120) day period
17
beginning on, the effective date of the registration statement filed by the
Company (except as part of such registration) if, and to the extent, requested
by the managing Underwriter or Underwriters in the case of an underwritten
public offering, provided that TJX's obligations with respect to any such
agreement shall terminate on the earlier of (i) the date that is three (3) years
from the date of issuance of the Partnership Note and (ii) such time as TJX owns
less than one percent (1%) of the Company's fully diluted common equity.
(b) Restrictions on Sale by the Company and Others. With respect to
----------------------------------------------
a Demand Registration effected pursuant to Section 2.1 hereof, the Company
agrees (i) not to effect any sale or distribution of any securities similar to
those being registered in accordance with Section 2.1 hereof, or any securities
convertible into or exchangeable or exercisable for such securities, during the
fourteen (14) days prior to, and during the one hundred twenty (120) day period
beginning on, the effective date of any registration statement (except as part
of a registration statement where the Holder making such Demand Registration
consents) or the commencement of a public distribution of Registrable
Securities; and (ii) that any agreement entered into after the date hereof
pursuant to which the Company issues or agrees to issue any privately placed
securities shall contain a provision under which holders of such securities
agree not to effect any sale or distribution of any such securities during the
periods described in (i) above, in each case including a sale pursuant to Rule
144 (except as part of any such registration, if permitted); provided, however,
-------- -------
that the provisions of this paragraph (b) shall not prevent the conversion or
exchange of any securities pursuant to their terms into or for other securities
and shall not prevent the issuance of securities by the Company under any
employee benefit, stock option or stock subscription plans or in private
placements.
SECTION 5.4 Stockholders Agreement. Notwithstanding anything above to
----------------------
the contrary, all Transfers of Registrable Securities subject to the
provisions of the Stockholders Agreement shall be made only in accordance with
such provisions.
SECTION 5.5 Successors and Assigns. This Agreement, and all
----------------------
obligations and rights hereunder, shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns; provided that no rights of any Stockholder under this Agreement may be
--------
assigned, except that (i) with respect to each Minority Holder, a Minority
Demand Registration and the right to participate in Piggy-back Registrations
pursuant to Section 2.1 and Section 2.2 hereof may be assigned by such Minority
Holder to one purchaser of more than 50% of the Registrable Securities then held
by such Minority Holder, (ii) any Stockholder may assign its rights hereunder to
an Affiliate of such Stockholder, provided that, prior to such assignment, such
--------
Affiliate shall enter into a written agreement to be bound by the terms and
conditions of this Agreement applicable to such Stockholder and (iii) Leeway may
assign its rights hereunder to a successor trust or plan (each a "Leeway
Assignee") in connection with a reorganization of the Long-Term Investment Trust
(or a constituent trust or plan or the sponsor of a constituent trust or plan),
provided that (A) such assignment shall not materially adversely affect the
--------
legal or tax status of the Company or the Partnership, (B) such assignment does
not result in an increase of more than one beneficial owner of Common Stock for
purposes of Section 3(c)(1) of the
18
Investment Company Act of 1940, (C) Leeway, its Affiliates and the Leeway
Assignees (collectively, the "Leeway Group") shall collectively have one
Minority Demand Registration in which all members of the Leeway Group may
participate (if they so choose) on a pro rata basis and each member of the
Leeway Group may participate in Piggy-back Registrations pursuant to the terms
of Section 2.1 and Section 2.2 hereof, (D) such Minority Demand Registration and
the right to participate in Piggy-back Registrations pursuant to Section 2.1 and
Section 2.2 hereof may be assigned to one purchaser of more than 50% of the
Registrable Securities then held by the Leeway Group, and (E) prior to any such
assignment, each such assignee Person shall enter into a written agreement to be
bound by the terms and conditions of this Agreement applicable to Leeway. For
purposes of this Section 5.5, any successor or assignee of NYNEX as a result of,
or in connection with, the consummation of the proposed merger of Xxxx Atlantic
and NYNEX Corporation shall be deemed to be an Affiliate of NYNEX.
SECTION 5.6 No Waivers; Amendments.
----------------------
(a) No failure or delay by any party in exercising any right, power,
or privilege hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
(b) This Agreement may not be amended, modified or supplemented other
than by a written instrument signed by each party hereto (except that none of
WearGuard, TJX, Leeway nor NYNEX shall be required to or entitled to approve any
amendment, modification or supplement to the Agreement, unless such amendment,
modification or supplement to the Agreement would adversely affect the rights of
WearGuard, TJX, Leeway or NYNEX, as the case may be, hereunder). With respect
to any grant of additional rights hereunder or in any other agreement covering
the matters contemplated by this Agreement, Leeway and NYNEX shall be treated
equally.
(c) Any provision of this Agreement may be waived if, but only if,
such waiver is in writing and is signed by the party against whom the
enforcement of such waiver is sought.
19
SECTION 5.7 Notices. All notices, requests, and other communications to
-------
any party hereunder shall be in writing (including telex, telecopy or similar
writing) and shall be given as follows:
If to the Brylane Inc.
Company, to: 000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
With a copy to: Xxxxxxx & XxXxxxxx
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
If to Limited The Limited, Inc.
Stockholder or to Three Limited Parkway
The Limited, to: Xxxxxxxx, Xxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
With a copy to: Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Xxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
If to the XX Xxxxxxx Spogli & Co. Incorporated
Stockholders, to: 00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
20
With a copy to: Xxxxxxx & XxXxxxxx
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
If to WearGuard: WearGuard Corporation
c/o ARAMARK Corporation
The ARAMARK Towers
0000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
If to TJX: The TJX Companies, Inc.
000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President and General Counsel
Telecopy: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxx, Esq.
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopy: (000) 000-0000
If to Leeway: Leeway & Co.
c/o AT&T Investment Management Corp.
Xxx Xxx Xxx, Xxxx 0XX000
Xxxxxxxx Xxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Telecopy: (000) 000-0000
With a copy to: Xxxxxxxxxx, Sandler, Kohl, et. al.
A Professional Corporation
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
21
If to NYNEX: Mellon Bank, N.A., as Trustee
for NYNEX Master Trust
One Mellon Bank Center
Room 3346
Pittsburgh, Pennsylvania 15258-0001
Attention: Xx. Xxxxxx X. Xxxx
Telecopy: (000) 000-0000
with a copy to: NYNEX Asset Management Company
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. A. Xxx Xxxxxxx
Xxxxx Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
and to: Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: I. Xxxxx Xxxxxxxxxx, Esq.
Telecopy: (000) 000-0000
or to such other address or telecopy number and with such other copies, as such
party may hereafter specify for the purpose of notice to the other parties.
Each such notice, request or other communication shall be effective (a) if given
by telecopy, when such telecopy is transmitted to the telecopy number specified
in this Section and evidence of receipt is received or (b) if given by any other
means, upon delivery or refusal of delivery at the address specified in this
Section 5.6.
SECTION 5.8 Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the state of Delaware (without regard
to the choice of law provisions thereof).
SECTION 5.9 Entire Agreement. This Agreement constitutes the entire
----------------
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersedes any and all prior agreements and understandings,
written or oral, relating to the subject matter hereof.
SECTION 5.10 Severability. Any term or provision of this Agreement
------------
which is invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdictions, it
being intended that all rights and obligations of the parties hereunder shall be
enforceable to the fullest extent permitted by law.
22
SECTION 5.11 Counterparts. This Agreement may be signed in counterparts,
------------
each of which shall constitute an original and which together shall constitute
one and the same agreement.
23
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth above.
FS EQUITY PARTNERS II, L.P.
By: Xxxxxxx Xxxxxx & Co.
Its: General Partner
By: /s/ Xxxx X. Xxxx
-----------------------------------
Name: Xxxx X. Xxxx
Title: General Partner
FS EQUITY PARTNERS III, L.P.
By: FS Capital Partners, L.P.
Its: General Partner
By: FS Holdings, Inc.
Its: General Partner
By: /s/ Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
FS EQUITY PARTNERS INTERNATIONAL, L.P.
By: FS&Co. International, L.P.
Its: General Partner
By: FS International Holdings Limited
Its: General Partner
By: /s/ Xxxx X. Xxxx
-------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
M&P DISTRIBUTING COMPANY
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Asst. Secretary
24
THE LIMITED, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President of Finance
BRYLANE INC.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President, Chief
Financial Officer, Secretary and
Treasurer
WEARGUARD CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
THE TJX COMPANIES, INC.
By: /s/ Xxx X. Xxxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxxx
Title: Senior Vice President
LEEWAY & CO.,
as nominee for the Long-Term Investment Trust
By: State Street Bank and Trust, as Trustee
for the Long-Term Investment Trust
By: /s/ Xxxxxx X. Xxxxx Xx.
----------------------------------------
Name: Xxxxxx X. Xxxxx Xx.
Title: Vice President
25
NYNEX MASTER TRUST
By: Mellon Bank, N.A., as Trustee for Nynex
Master Trust, as directed by NYNEX
Corporation
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Associate Counsel
26
