EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
October 2, 1998, is entered into between Xxxxxxx Jewelers, Inc., a Delaware
corporation (the "Company"), and each of the other persons or entities signatory
hereto (each of such other persons, a "Stockholder").
W I T N E S S E T H :
WHEREAS, the Original Disclosure Statement and Plan of
Reorganization, Dated April 30, 1998, Proposed by Barry's Jewelers, Inc. (the
"Plan") was confirmed on September 16, 1998 by order of the United States
Bankruptcy Court for the Central District of California in Xxxx Xx. XX 00-00000
XX;
WHEREAS, pursuant to the Plan, each Stockholder will receive at
least 10% of the aggregate shares of Common Stock (as hereinafter defined)
issuable under the Plan (such shares of Common Stock issued to the Stockholders,
collectively the "Shares");
WHEREAS, the Shares will be issued to the Stockholders pursuant to
the Plan without registration under the Securities Act (as hereinafter defined),
in reliance on applicable exemptions from such registration, and the Company and
the Stockholders desire to provide for the registration of the resale by the
Stockholders of Registrable Securities (as hereinafter defined) from time to
time as contemplated by the Plan, upon the terms and subject to conditions
hereinafter set forth; and
WHEREAS, it is intended by the Company and the Stockholders that
this Agreement shall become effective immediately as of the Effective Date.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and affirmed, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. DEFINITIONS.
All capitalized terms used but not defined in this Agreement have
the respective meanings assigned to such terms in the Plan. As used in this
Agreement,
HOFS04...:\01\21901\0001\2166\AGR4228S.20C
the following capitalized terms (in their singular and plural forms, as
applicable) have the following meanings:
"Affiliate" has the meaning assigned to such term in Rule 144(a)(1)
of the Securities Act.
"Agreement" has the meaning assigned to such term in the
introductory paragraph to this Agreement.
"Commission" means the United States Securities and Exchange
Commission and any successor United States federal agency or governmental
authority having similar powers.
"Common Stock" means the common stock, par value $0.001 per share,
of the Company, issued as of the Effective Date pursuant to the Plan.
"Company" has the meaning assigned to such term in the introductory
paragraph to this Agreement.
"Demand Registration" has the meaning assigned to such term in
Section 2(b).
"Demand Request" has the meaning assigned to such term in Section
2(b).
"Effective Period" has the meaning assigned to such term in Section
2(a)(ii).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
"Material Adverse Effect" has the meaning assigned to such term in
Section 2(b)(iv).
"Material Disclosure Event" means, as of any date of determination,
any pending or imminent event relating to the Company, which, in the good faith,
reasonable opinion of the Board of Directors of the Company (i) requires
disclosure of material, non-public information relating to such event in any
registration statement so that such registration statement would not be
materially misleading, (ii) is
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otherwise not required to be publicly disclosed at that time (e.g., on Form 8-K
or Form 10-Q) under applicable federal or state securities laws, and (iii) if
publicly disclosed at the time of such event, would have a material adverse
effect on the business, financial condition or prospects of the Company.
"Permitted Assignee" means any person or entity that (i) wholly
owns, is wholly owned by or is under common whole ownership with any Stockholder
and (ii) acquires, in a single transaction from any Stockholder, at least ten
percent of the Company's then-outstanding shares of Common Stock, such
percentage to be calculated immediately after such acquisition.
"Piggyback Registration" has the meaning assigned to such term in
Section 2(c)(i).
The terms "register," "registered" and "registration" means a
registration effected by preparing and filing with the Commission a registration
statement on an appropriate form in compliance with the Securities Act, and the
declaration or order of the Commission of the effectiveness of such registration
statement under the Securities Act.
"Registrable Securities" means the Shares (and any other securities
issued by the Company in respect thereof); provided, however, that as to any
Registrable Securities, such securities shall cease to constitute "Registrable
Securities" for purposes of this Agreement if and when (i) a registration
statement with respect to the sale of such securities shall have been declared
effective by the Commission and such securities shall have been sold pursuant
thereto in accordance with the intended plan and method of distribution therefor
set forth in the final prospectus forming part of such registration statement or
(ii) such securities shall have been sold in satisfaction of all applicable
resale provisions of Rule 144 under the Securities Act or (iii) such securities
have been transferred to any person or entity other than a Permitted Transferee
or (iv) such securities may be freely sold publicly without registration under
the Securities Act or compliance with Rule 144 under the Securities Act.
"Registration Expenses" means all reasonable expenses incurred by
the Company in complying with Section 2 hereof, including, without limitation,
all registration and filing fees (including fees and expenses associated with
filings required to be made with the National Association of Securities Dealers,
Inc. and any national securities exchange or U.S. automated inter-dealer
quotation system of a registered national securities association on which the
class of Registrable Securities is
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listed or otherwise admitted to unlisted trading privileges), printing expenses,
if any (including expenses of printing certificates for the Registrable
Securities being registered in a form eligible for deposit with The Depository
Trust Company and of printing registration statements and prospectuses), fees
and disbursements of counsel for the Company, fees and expenses of compliance
with state securities or "blue sky" laws (including reasonable fees and expenses
of one firm of counsel for all underwriters collectively, if any, in connection
with "blue sky" qualifications of the Registrable Securities being registered
and the determination of eligibility for investment under the laws of such
jurisdictions designated by the underwriters, if any), accountants' fees and
expenses (including the expenses of any special audits or "comfort" letters
incident to or required by any such registration), transfer taxes, fees of
transfer agents and registrars, and reasonable fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, but excluding
underwriting discounts and commissions and broker-dealer concessions,
commissions and allowances and marketing expenses.
"Required Filing Date" has the meaning assigned to such term in
Section 2(b).
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder.
"Shares" has the meaning assigned to such term in the recitals to
this Agreement.
"Shelf Registration Statement" has the meaning assigned to such term
in Sections 2(a)(i) and 2(d)(vi).
"Stockholder" has the meaning assigned to such term in the
introductory paragraph to this Agreement.
"Suspension Period" has the meaning assigned to such term in Section
2(a)(ii).
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2. REGISTRATION UNDER THE SECURITIES ACT, ETC.
(a) Shelf Registration.
(i) General. The Company shall use reasonable commercial
efforts to prepare and file with the Commission, and to cause to become
effective under the Securities Act, not later than the 90th day after the
Effective Date, a registration statement on Form S-3 or other applicable form
relating to the resale, from time to time, of the Registrable Securities by the
Stockholders in accordance with the plan and method of distribution set forth in
the prospectus forming part of such registration statement (a "Shelf
Registration Statement"). The Company shall provide each Stockholder with a
reasonable opportunity to review and comment on such Shelf Registration
Statement prior to the filing thereof with the Commission, and shall make all
changes thereto as any Stockholder may request in writing to the extent such
changes are required, in the judgment of the Company, by the Securities Act, and
shall not unreasonably decline to make such other appropriate changes thereto as
any Stockholder may reasonably request in writing.
(ii) Effective Period. The Company agrees to use reasonable
commercial efforts to keep the Shelf Registration Statement continuously
effective until the 12-month anniversary of the date on which the Shelf
Registration Statement shall have first been declared effective by the
Commission (subject to Suspension Periods (as hereinafter defined) and
extensions coincident with the length of such Suspension Periods), or the date
on which all Registrable Securities covered by the Shelf Registration Statement
have been sold thereunder in accordance with the plan and method of distribution
intended by the Stockholders and as disclosed in the prospectus forming part of
the Shelf Registration Statement (the "Effective Period").
(iii) Suspension Period. For purposes hereof, "Suspension
Period" shall mean a period of time commencing on the date on which the Company
provides notice that the Shelf Registration Statement is no longer effective,
that the prospectus included in the Shelf Registration Statement no longer
complies with the requirements therefor prescribed by Section 10(a) of the
Securities Act, or that there is a Material Disclosure Event and the Company has
elected to require the suspension of the sale by the Stockholders of Registrable
Securities pursuant to the Shelf Registration Statement, and shall end on the
date when the Stockholders either receive copies of the supplemented or amended
prospectus contemplated by Section 2(d)(vi) plus an additional five Business
Days or otherwise are advised in writing by the Company that use of the
prospectus may be resumed. Each of the Stockholders
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agrees that it will not sell any Registrable Securities pursuant to the Shelf
Registration Statement during any Suspension Period. The Company agrees to cause
each Suspension Period to end as soon as reasonably practicable. The Company
further agrees that no other holder of the Company's stock will be permitted to
sell shares of the Company's stock pursuant to a registration statement during a
Suspension Period. If one or more Suspension Periods occur, the Effective Period
shall be extended by such number of days equal to the aggregate number of days
included in all Suspension Periods.
(b) Demand Registration.
(i) Request for Registration. Commencing on the 91st day after
the Effective Date and ending on the first anniversary of the Effective Date,
any one or more of the Stockholders may request (collectively, the "Requesting
Stockholders," which term shall include parties deemed "Requesting Stockholders"
pursuant to Section 2(b)(vi) hereof) in writing (a "Demand Request"), that the
Company effect the registration under the Securities Act of that number of
Shares requested and owned by the Requesting Stockholders (a "Demand
Registration"). Notwithstanding anything to the contrary set forth in this
Agreement, the Company shall in no event be required to effect, in the aggregate
with respect to all of the Stockholders, more than one Demand Registration for
each of DDJ Capital Management, LLC and Xxxxxxxx Xxxxxxxx Asset Management,
Inc.; provided that, if any Registrable Securities requested to be registered
pursuant to a Demand Request under this Section 2(b)(i) are excluded from a
registration pursuant to Section 2(b)(iv) below, the Requesting Stockholders
shall have the right, with respect to each such exclusion, to one additional
Demand Registration under this Section 2(b)(i) with respect to such excluded
Registrable Securities. Subject to Section 2(b)(v), the Company shall file with
the Commission, within 90 days after receiving a Demand Request (the "Required
Filing Date"), a registration statement on an appropriate form under the
Securities Act providing for the sale or distribution of those Registrable
Securities subject to the Demand Registration, and shall thereafter use
reasonable commercial efforts to cause the same to be declared effective by the
Commission as promptly as practicable after such filing. Notwithstanding
anything to the contrary set forth in this Agreement, (1) no Stockholder may
make a Demand Request or participate in a Demand Registration unless, at the
time thereof, (a) such Stockholder owns at least 10% of the then-outstanding
shares of Common Stock or (b) certifies in writing to the Company that such
Stockholder may be deemed to be an affiliate of the Company under the Securities
Act; (2) the Company shall not be required to effect any Demand Registration
pursuant to any registration statement other than the Shelf Registration
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Statement at any time when the Shelf Registration Statement is effective and may
be used for such Demand Registration; and (3) the Company shall not be required
to effect any Demand Registration of an offering and sale that can otherwise be
effected in compliance with Rule 144 under the Securities Act.
(ii) Effective Registration and Expenses. A registration will
not count as a Demand Registration until it has become effective (unless the
Requesting Stockholders withdraw from such registration all their Registrable
Securities and the Company has performed its obligations hereunder in all
material respects, in which case such demand will count as a Demand Registration
unless the Requesting Stockholders pay all Registration Expenses in connection
with such withdrawn registration); provided that, if, after it has become
effective, an offering of Registrable Securities pursuant to such registration
is terminated by any stop order, injunction, or other order of the Commission or
other governmental agency or court, such registration will be deemed not to have
been effected and will not count as a Demand Registration.
(iii) Selection of Underwriters. Any offering of Registrable
Securities pursuant to a Demand Registration shall be in the form of a "firm
commitment" underwritten offering or such other lawful form as the Requesting
Stockholders may reasonably specify; provided however, that no such offering may
be in the form of a "best efforts" or similar type offering. With respect to any
offering of Registrable Securities pursuant to a Demand Registration in the form
of a "firm commitment" underwritten offering, the holders of a majority of the
Registrable Securities to be included in such offering and the Company shall
jointly select the investment banking firm or firms to manage the underwritten
offering.
(iv) Priority on Demand Registrations. No securities to be
sold for the account of any person or entity (including the Company) other than
a Requesting Stockholder shall be included in a Demand Registration unless the
managing underwriter or underwriters shall advise the Company or the Requesting
Stockholders in writing that the inclusion of such securities will not
materially and adversely affect the price or success of the offering (a
"Material Adverse Effect"). Furthermore, in the event that the managing
underwriter or underwriters shall advise the Company or the Requesting
Stockholders that even after exclusion of all securities of the other persons or
entities pursuant to the immediately preceding sentence, the amount of
Registrable Securities proposed to be included in such Demand Registration by
Requesting Stockholders is sufficiently large to cause a Material Adverse
Effect, the Registrable Securities of the Requesting Stockholders to be included
in such
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Demand Registration shall equal that number of Shares which the Company is so
advised can be sold in such offering without a Material Adverse Effect and such
Shares shall be allocated pro rata among the Requesting Stockholders on the
basis of the number of Shares requested to be included by each such Requesting
Stockholder.
(v) Deferral of Filing. If a Material Disclosure Event exists
as of the time the filing of a registration statement is otherwise required by
Section 2(b), the Company may defer such filing (but not the preparation) of
such registration statement until a date not later than 150 days after the
Required Filing Date. A deferral of the filing of a registration statement
pursuant to this Section 2(b)(v) shall be lifted, and the requested registration
statement shall be filed forthwith, if the Material Disclosure Event ceases. In
order to defer the filing of a registration statement pursuant to this Section
2(b)(v), the Company shall promptly (but in any event within 10 days), upon
determining to seek such deferral, deliver to each Requesting Stockholder a
certificate signed by an executive officer of the Company stating that the
Company is deferring such filing pursuant to this Section 2(b)(v) and a general
statement of the reason for such deferral (which statement need not include any
information which, in the opinion of the Company, constitutes material,
nonpublic information) and an approximation of the anticipated delay. Within 20
days after receiving such certificate, the holders of a majority of the
Registrable Securities beneficially owned by the Requesting Stockholders and for
which registration was previously requested may withdraw such Demand Request by
giving notice to the Company; if withdrawn, the Demand Request shall be deemed
not to have been made for all purposes of this Agreement.
(vi) Rights of Nonrequesting Stockholders. Upon receipt of any
Demand Request, the Company shall promptly, but in any event within 15 days,
give notice of such proposed Demand Registration to all other Stockholders, who
shall have the right, exercisable by written notice to the Company within 20
days of their receipt of the Company's notice, to elect to include in such
Demand Registration, all or any portion of their Registrable Securities (such
notice from any Stockholder shall state the number of shares of Common Stock
requested to be registered). All Stockholders requesting to have any of their
Registrable Securities included in a Demand Registration in accordance with the
preceding sentence shall be deemed to be "Requesting Stockholders" for purposes
of Section 2. The failure of any Stockholder to elect to include any of such
Stockholder's Registrable Securities in such Demand Registration pursuant to
this Section 2(b)(vi) shall not result in such Demand Registration failing to
count as one Demand Registration for all purposes of this Agreement.
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(c) Piggyback Registration.
(i) Right to Piggyback. Commencing on the 91st day after the
Effective Date and ending on the second anniversary of the Effective Date, each
time during such period that the Company proposes to register any of its Common
Stock under the Securities Act for sale pursuant to an underwritten public
offering for cash (whether for the account of the Company or the account of any
securityholder of the Company other than under Section 2(b)) and the form of
registration statement to be used permits the registration of Registrable
Securities (without limitation, Forms S-4 and S-8 and successor forms thereto
shall be deemed not to permit such registration), the Company shall give prompt
written notice to each Stockholder (which notice shall be given not less than 30
days prior to the effective date of the Company's registration statement), which
notice shall offer each Stockholder the opportunity to include any or all of
such Registrable Securities of such Stockholder in such registration statement,
subject to the limitations contained in Section 2(c)(ii) (a "Piggyback
Registration"). Each Stockholder that desires to have its Registrable Securities
included in such registration statement shall so advise the Company in writing
(stating the number of shares of Common Stock desired to be registered) within
20 days after the date of receipt of such notice from the Company. Any
Stockholder shall have the right to withdraw such Stockholder's request for
inclusion of such Stockholder's Registrable Securities in any registration
statement pursuant to this Section 2(c) by giving written notice to the Company
of such withdrawal not later than five days prior to the effective date of the
Company's registration statement. Subject to Section 2(c)(ii) below, the Company
shall include in such registration statement all such Registrable Securities so
requested to be included therein; provided, however, that the Company may at any
time withdraw or cease proceeding with any such registration if it shall at the
same time withdraw or cease proceeding with the registration of all the Common
Stock originally proposed to be registered. Notwithstanding anything to the
contrary set forth in this Agreement, no Stockholder may participate in a
registration under this Section 2(c) unless, at the time thereof, (1) such
Stockholder owns at least 5% of the then-outstanding shares of Common Stock or
(2) certifies in writing to the Company that such Stockholder may be deemed to
be an affiliate of the Company under the Securities Act.
(ii) Priority on Piggyback Registrations. If the Registrable
Securities requested to be included in the registration statement by any
Stockholder differ from the type of securities proposed to be registered by the
Company and the managing underwriter advises the Company that due to such
differences the inclusion of such Registrable Securities would cause a Material
Adverse Effect, then (1) the
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number of such Stockholder's or Stockholders' Registrable Securities to be
included in the Registration Statement shall be reduced to an amount which, in
the judgment of the managing underwriter, would eliminate such Material Adverse
Effect or (2) if no such reduction would, in the judgment of the managing
underwriter, eliminate such Material Adverse Effect, then the Company shall have
the right to exclude all such Registrable Securities from such registration
statement provided no other securities of such type are included and offered for
the account of any other person or entity in such registration statement. Any
partial reduction in the number of Registrable Securities to be included in the
registration statement pursuant to clause (1) of the immediately preceding
sentence shall be effected pro rata based on the ratio which such Stockholder's
requested securities bears to the total number of Shares requested to be
included in such registration statement by all persons or entities (including
Requesting Stockholders) who have requested (pursuant to contractual
registration rights) that their securities be included in such registration
statement. If the Registrable Securities requested to be included in the
registration statement are of the same type as the securities being registered
by the Company and the managing underwriter advises the Company that the
inclusion of such Registrable Securities would cause a Material Adverse Effect,
the Company will be obligated to include in such registration statement, as to
each Stockholder, only a portion of the Registerable Securities such Stockholder
has requested be registered equal to the ratio which such Stockholder's
requested securities bears to the total number of Shares requested to be
included in such registration statement by all persons or entities (including
Requesting Stockholders) who have requested (pursuant to contractual
registration rights) that their securities be included in such registration
statement. If as a result of the provisions of this Section 2(c)(ii) any
Stockholder shall not be entitled to include all Registrable Securities in a
registration that such Stockholder has requested to be so included, such
Stockholder may withdraw such Stockholder's request to include Registrable
Securities in such registration statement.
(d) Registration Procedures. The Company shall:
(i) provide the Stockholders with a reasonable opportunity
to review and comment on any registration statement to be filed pursuant to
Section 2 of this Agreement prior to the filing thereof with the Commission,
and shall make all changes thereto as any Stockholder may request in writing to
the extent such changes are required, in the judgment of the Company, by the
Securities Act, and shall not unreasonably decline to make such other
appropriate changes thereto as any Stockholder may reasonably request in
writing.
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(ii) cause any such registration statement and the related
prospectus and any amendment or supplement thereto, as of the effective date of
such registration statement, amendment or supplement, (A) to comply in all
material respects with the applicable requirements of the Securities Act and the
rules and regulations of the Commission promulgated thereunder and (B) not to
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
(iii) use reasonable commercial efforts to prepare and file
with the Commission such amendments and supplements to such registration
statement and the prospectus used in connection with such registration
statement, and take such other actions, as may be necessary to keep such
registration statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities
covered by such registration statement until, with respect to the Shelf
Registration Statement, the earlier of (a) such time as all such Registrable
Securities have been disposed of in accordance with the intended plan and method
of disposition by the Stockholders or (b) the 12-month anniversary of the date
on which such Shelf Registration Statement was first declared effective (subject
to Suspension Periods and extensions coincident with the length of such
suspensions), with respect to any registration statement filed under Section
2(b) of this Agreement, such time as all such Registrable Securities have been
disposed of in accordance with the intended plan and method of disposition by
the Stockholders but in no event more than 180 days after the first anniversary
of the Effective Date, and with respect to any registration statement filed
under Section 2(c) of this Agreement, such time as the Company determines to
withdraw or cease proceeding with any such registration pursuant to the terms
hereof, and will furnish to the Stockholders a copy of any amendment or
supplement to such registration statement or prospectus prior to filing the same
with the Commission and shall not file any such amendment or supplement to which
the Stockholders shall reasonably have objected in writing on the grounds that
such amendment or supplement does not comply in all material respects with the
requirements of the Securities Act or otherwise inaccurately describes
information pertaining to the Stockholders or to the intended plan and method of
disposition of Registrable Securities by the Stockholders;
(iv) furnish to the Stockholders such number of conformed
copies of such registration statement and of each such amendment and supplement
thereto (in each case including all exhibits thereto), such number of copies of
the prospectus included in such registration statement (including each
preliminary
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prospectus), and such number of the documents, if any, incorporated by reference
in such registration statement or prospectus, as the Stockholders reasonably may
request;
(v) use reasonable commercial efforts to register or
qualify the Registrable Securities covered by such registration statement under
such securities or "blue sky" laws of the states of the United States as the
Stockholders reasonably shall request, to keep such registration or
qualification in effect for so long as such registration statement remains in
effect, and to do any and all other acts and things which may be necessary or
advisable to enable the Stockholders to consummate the disposition in such
jurisdictions of the Registrable Securities covered by such registration
statement, except that the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any jurisdiction in
which it is not and would not, but for the requirements of this Section 2(d)(v),
be obligated to be so qualified, or to subject itself to taxation in any such
jurisdiction, or to consent to general service of process in any such
jurisdiction;
(vi) immediately notify the Stockholders, at any time when a
prospectus or prospectus supplement relating thereto is required to be delivered
under the Securities Act, upon discovery that, or upon the occurrence of any
event as a result of which, the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, which untrue statement or omission requires amendment of
the registration statement or supplementing of the prospectus, and, at the
request of the Stockholders, prepare and furnish to the Stockholders a
reasonable number of copies of a supplement to such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that with respect to
Registrable Securities registered pursuant to such registration statement, each
Stockholder agrees that it will not sell any Registrable Securities pursuant to
such registration statement during the time after the furnishing of the
Company's notice that the Company is preparing and filing with the Commission a
supplement to or an amendment of such prospectus or registration statement and,
with respect to a Shelf Registration Statement, such period shall be a
Suspension Period for purposes of determining the Effective Period hereunder;
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(vii) use reasonable commercial efforts to comply with all
applicable rules and regulations of the Commission, and make available to
holders of its securities, as soon as reasonably practicable, an earnings
statement covering the period of at least 12 months, but not more than 18
months, beginning with the first month of the first fiscal quarter after the
effective date of such registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act;
(viii) provide and cause to be maintained a transfer agent
and registrar for the Registrable Securities covered by such registration
statement from and after a date not later than the effective date of such
registration statement; it being hereby agreed that the Stockholders shall
furnish to the Company such information regarding the Stockholders and the plan
and method of distribution of Registrable Securities intended by the
Stockholders as the Company may from time to time reasonably request in writing
and as shall be required by law or by the Commission in connection therewith;
(ix) notify the Stockholders and the managing underwriters, if any,
promptly, and (if requested by any such person) confirm such notice in writing,
(A) when a prospectus, prospectus supplement or post-effective amendment related
to such registration statement has been filed, and, with respect to such
registration statement or any post-effective amendment thereto, when the same
has become effective, (B) of any request by the Commission or any other federal
or state governmental authority for amendments or supplements to such
registration statement or related prospectus, (C) of the issuance by the
Commission or any other federal or state governmental authority of any stop
order suspending the effectiveness of such registration statement or the
initiation of any proceedings for that purpose, and (D) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose;
(x) use reasonable commercial efforts to obtain the
withdrawal of any order suspending the effectiveness of such registration
statement, or the lifting of any suspension of the qualification (or exemption
from qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest possible moment;
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(xi) cooperate with the Stockholders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which certificates
will not bear any restrictive legends; and enable such Registrable Securities to
be in such authorized denominations and registered in such names as the managing
underwriters, if any, shall reasonably request at least two Business Days prior
to any sale of Registrable Securities to the underwriters; and
(xii) with respect to a "firm commitment" underwritten
offering, enter into an underwriting agreement in such form, scope and substance
as is customary in such underwritten offerings.
(e) Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement registering Registrable
Securities under the Securities Act as contemplated by this Agreement, the
Company shall give the Stockholders, their underwriters, if any, and the
Stockholders' counsel and accountants, the opportunity to review the Company's
preparation of such registration statement, each prospectus included in such
registration statement or filed with the Commission and each amendment or
supplement thereto, and the Company will give such person or persons such
reasonable access to the Company's books and records and such opportunities to
discuss the business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be necessary
for the Stockholders and such other persons to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act. To
minimize disruption and expense to the Company during the course of the
registration process, each Stockholder shall use reasonable commercial efforts
to coordinate its investigation and due diligence efforts and, to the extent
practicable, will act through a single firm of counsel for all Stockholders and
a single firm of accountants for all Stockholders and, if requested by the
Company, will enter into a confidentiality agreement with the Company in a form
reasonably satisfactory to the Company.
(f) Indemnification. (i) Indemnification by the Company. The Company
shall indemnify and hold harmless (x) each Stockholder and its affiliates, with
respect to any registration statement filed pursuant to this Agreement, (y) any
underwriter or selling agent selected by the Stockholders with respect to such
Registrable Securities and (z) each person who controls the Stockholder or
affiliate, including directors and officers of each Stockholder, and any
underwriter or selling agent, within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act, against any losses, claims, damages,
liabilities or expenses (each a
14
"Loss" and collectively "Losses"), joint or several, to which the Stockholder or
any such persons may become subject under the Securities Act or otherwise, to
the extent that such Losses (or related actions or proceedings) arise out of or
are based upon (A) any untrue statement or alleged untrue statement of any
material fact contained in an effective registration statement in which such
Registrable Securities were included for registration under the Securities Act,
any preliminary prospectus if used prior to the effective date of the
registration statement (unless such statement is corrected in the final
prospectus and the Company shall have furnished a sufficient number of copies
thereof to the Stockholder in a manner and at a time sufficient to permit
delivery of the same to prospective purchasers concurrently with or prior to the
sale of the related Registrable Securities), final prospectus (as supplemented,
if the Company shall have filed with the Commission any supplement thereto) if
used during the period in which the Company is required to keep the registration
statement to which such prospectus relates current and otherwise in compliance
with Section 10(a) of the Securities Act, or (B) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the Company shall
have no obligation to provide any indemnification hereunder if any such Losses
(or actions or proceedings in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, preliminary prospectus or final prospectus,
as the case may be, in reliance upon and in conformity with written information
furnished to the Company by the Stockholder or on the Stockholder's behalf for
inclusion in such registration statement; and provided, further, that the
Company shall have no obligation to provide any indemnification hereunder if any
such Losses arise out of or are based upon an untrue statement or alleged untrue
statement or omission or alleged omission in the final prospectus, if such
untrue statement or alleged untrue statement or omission or alleged omission
shall have been corrected in a supplement to the final prospectus and the
Stockholder or any such other person shall have failed to deliver such final
prospectus as so supplemented prior to or concurrently with the sale of the
Registrable Securities covered by a registration statement to the individual or
entity asserting such Losses after the Company shall have furnished the
Stockholder or any such other persons with a sufficient number of copies thereof
in a manner and at a time sufficient to permit such delivery of the same. The
indemnity provided in this Section 2(f)(i) shall remain in full force and effect
regardless of any investigation made by or on behalf of the Stockholder or any
such other persons and shall survive the transfer of the Registrable Securities
by the Stockholder or any such other persons.
15
(ii) Indemnification by the Stockholders. Each Stockholder
shall indemnify and hold harmless (in the same manner and to the same extent as
set forth in Section 2(f)(i) hereof) the Company, each director of the Company,
each officer of the Company who shall sign such registration statement and each
other person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, with respect to any
untrue statement in or omission from any registration statement filed by the
Company pursuant to this Agreement, any preliminary prospectus or any final
prospectus included in such registration statement, or any amendment or
supplement to such registration statement or prospectus, as the case may be, of
a material fact if such statement or omission was made in reliance upon and in
conformity with written information furnished to the Company or any of its
representatives by the Stockholder or such other persons, if any, who control
the Stockholder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, or on the Stockholder's behalf, for inclusion in
such registration statement, preliminary prospectus or final prospectus, as the
case may be.
(iii) Notice of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding (an
"Action") involving a claim referred to in Sections 2(f)(i) and 2(f)(ii) hereof,
such indemnified party shall, if indemnification is sought against an
indemnifying party, give written notice to the indemnifying party of the
commencement of such action; provided, however, that the failure of any
indemnified party to give said notice shall not relieve the indemnifying party
of its obligations under Sections 2(f)(i) or 2(f)(ii) hereof, except to the
extent that the indemnifying party is actually and materially prejudiced by such
failure. In case an Action is brought against any indemnified party, and such
indemnified party notifies an indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party. Notwithstanding
the foregoing, the indemnified party shall have the right to employ its own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party, unless (A) the employment of such counsel
shall have been authorized in writing by the indemnifying party, (B) the
indemnifying party shall not have employed counsel (reasonably satisfactory to
the indemnified party) to take charge of the defense of such Action, within a
reasonable time after notice of the commencement thereof, or (C) such
indemnified party reasonably shall have concluded that there may be defenses
available to it which are different from or
16
additional to those available to the indemnifying party which, if the
indemnifying party and the indemnified party were to be represented by the same
counsel, could result in a conflict of interest for such counsel or materially
prejudice the prosecution of the defenses available to such indemnified party.
If any of the events specified in clauses (A), (B) or (C) of the preceding
sentence shall have occurred or otherwise shall be applicable, then the fees and
expenses of one counsel (or firm of counsel) for the indemnified party shall be
borne by the indemnifying party. If, in any case, the indemnified party employs
separate counsel, the indemnifying party shall not have the right to direct the
defense of such action on behalf of the indemnified party. Anything in this
Section 2(f)(iii) to the contrary notwithstanding, an indemnifying party shall
not be liable for the settlement of any action effected without its prior
written consent (which consent in the case of an action exclusively seeking
monetary relief shall not unreasonably be withheld or delayed), but if settled
with the prior written consent of the indemnifying party, or if there be a final
judgment adverse to the indemnified party, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. No indemnifying party shall, without the prior
consent of the indemnified party, consent to entry of any judgment or enter into
any settlement which does not include as a term thereof the unconditional
release of the indemnified party from all liability in respect of such claim or
litigation.
(iv) Contribution. If the indemnification provided for in this
Section 2 is unavailable or insufficient to hold harmless an indemnified party
in respect of any Losses, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such Losses in such proportion as
appropriate to reflect the relative fault of the Company, on the one hand, and
the Stockholder, on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or mitigate the damage in
respect of or prevent any untrue statement or omission giving rise to such
indemnification obligation. The Company and the Stockholders agree that it would
not be just and equitable if contributions pursuant to this Section 2(f)(iv)
were determined by pro rata allocation or by any other method of allocation
which did not take account of the equitable considerations referred to above. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who is not guilty of such fraudulent misrepresentation.
(v) Indemnification Payments. Periodic payments of
amounts required to be paid pursuant to this Section 2 shall be made during the
17
course of the investigation or defense, as and when reasonably itemized bills
therefor are delivered to the indemnifying party in respect of any particular
Loss, damage or liability that is incurred.
(g) Registration Expenses. The Company shall bear all Registration
Expenses incurred in connection with the performance of its obligations under
Section 2 of this Agreement.
(h) Holdback Agreements.
(i) Restrictions on Public Sale by Stockholders. Each
Stockholder agrees not to effect any public sale or distribution of Registrable
Securities or similar securities of the Company, or any securities convertible
into or exchangeable or exercisable for such securities, including a sale
pursuant to Rule 144 under the Securities Act, during the 14 days prior to, and
during the period (not to exceed 90 days) beginning on, the commencement of an
underwritten public distribution of Registrable Securities under any
registration statement pursuant to this Agreement (except as part of such
underwritten public distribution), if and to the extent requested by the Company
or by the managing underwriter or underwriters.
(ii) Restrictions on Public Sale by the Company. The Company
agrees not to effect any public sale or distribution of any securities similar
to those being registered hereunder, or any securities convertible into or
exchangeable or exercisable for such securities, except in any case for any such
sale or distribution of such securities in connection with any merger or
consolidation involving the Company or any subsidiary thereof, the acquisition
by the Company or any subsidiary thereof of the capital stock or substantially
all of the assets of any other person or entity, any shelf registration, or any
employee or director benefit or similar plan or any dividend reinvestment plan),
during the 14 days prior to, and during the period (not to exceed 90 days)
beginning on, the commencement of an underwritten public distribution of
Registrable Securities, if and to the extent requested by the managing
underwriter or underwriters.
(i) Certain Obligations of Stockholders. The Company may require
each Stockholder of Registrable Securities as to which any registration is being
effected to furnish to the Company all such information regarding the
distribution of such Registrable Securities as the Company may from time to time
reasonably request in writing and such other information as may be legally
required in connection with such registration. Each Stockholder agrees that,
upon receipt of any notice from the
18
Company of the happening of any Material Disclosure Event, such Stockholder will
forthwith discontinue the offering and disposition of Registrable Securities
pursuant to any registration statement covering such Registrable Securities
until such Stockholder's receipt of the copies of any supplemented or amended
prospectus and until it is advised in writing by the Company that the use of the
prospectus may be resumed, and, if so directed by the Company, such Stockholder
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Stockholder's possession, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice. In the event the Company shall give any such notice, the Company shall
extend the period during which such registration statement shall be maintained
effective by the number of days during the period from and including the date of
the giving of such notice to and including the date when each Stockholder of
Registrable Securities covered by such registration statement shall have
received the copies of any supplemented or amended prospectus and such
notification from the Company permitting the resumption of the use of the
prospectus. No Stockholder may participate in any registration under this
Agreement (whether pursuant to the Shelf Registration Statement, a Demand
Registration or a Piggyback Registration) unless such Stockholder (1) agrees to
sell its Registrable Securities on the basis provided in any underwriting
arrangements approved by the Company; and (2) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements, and
other documents reasonably required under the terms of such underwriting
arrangements; provided, however, that no Stockholder shall be required to make
any representations or warranties in connection with any such registration other
than representations and warranties as to (a) its ownership of its Registrable
Securities to be sold or transferred free and clear of all liens, claims, and
encumbrances, (b) its power and authority to effect such transfer, and (c) such
matters pertaining to compliance with securities laws as may be reasonably
requested.
3. RULE 144.
The Company shall comply with the requirements of Rule 144(c) under
the Securities Act, as such Rule may be amended from time to time (or any
similar rule or regulation hereafter adopted by the Commission), regarding the
availability of current public information to the extent required to enable any
Stockholder to sell Registrable Securities without registration under the
Securities Act pursuant to the resale provisions of Rule 144 (or any similar
rule or regulation). Upon the request of any Stockholder, the Company will
deliver to such Stockholder a written statement as to whether it has complied
with such requirements and, upon such Stockholder's compliance with the
applicable provisions of Rule 144, will take such action as may
19
be required (including, without limitation, causing legal counsel to issue an
appropriate opinion) to cause its transfer agent to effectuate any transfer of
Registrable Securities properly requested by such Stockholder, in accordance
with the terms and conditions of Rule 144.
4. MISCELLANEOUS.
(a) Notice Generally. Any notice, demand, request, consent,
approval, declaration, delivery or other communication hereunder to be made
pursuant to the provisions of this Agreement shall specify the Section of this
Agreement pursuant to which it is given or being made and shall be sufficiently
given or made if in writing and signed by the party making the same, and either
delivered in person with receipt acknowledged or sent by registered or certified
mail, return receipt requested, postage prepaid, or by telecopy and confirmed by
telecopy answerback, addressed as follows:
(i) If to any Stockholder, at the address of such Stockholder as
set forth on the signature pages hereto; and
(ii) If to Company, at
Xxxxxxx Jewelers, Inc.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: E. Xxxxx Xxxxxx
Executive Vice President,
Chief Financial Officer and Secretary
Telecopy Number: (000) 000-0000
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged, telecopied and confirmed by telecopy
answerback or three Business Days after the same shall have been deposited in
the United States mail (by registered or certified mail, return receipt
requested, postage prepaid), whichever is earlier.
20
(b) Successors and Assigns. This Agreement (i) may not be assigned
by the Company or any Stockholder (except that this Agreement may be assigned by
any Stockholder to a Permitted Assignee in connection with the transaction
pursuant to which such Permitted Assignee becomes such, whereupon such Permitted
Assignee shall be deemed to be a Stockholder for all purposes of this Agreement)
and (ii) shall be binding on all successors to the Company and the Stockholders.
(c) Amendments. This Agreement may be amended or modified only by a
written agreement signed by each party hereto.
(d) Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
(e) Headings. The headings used in this Agreement are for the
convenience of reference only and shall not, for any purpose, be deemed a part
of this Agreement.
(f) Governing Law. This Agreement shall be governed by the laws of
the State of New York, without regard to the provisions thereof relating to
conflict of laws.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
(h) Entire Agreement. This Agreement embodies the entire agreement
and understanding between the Company and the Stockholders in respect of the
subject matter contained herein. This Agreement supersedes all prior agreements
and understandings between the parties with respect to the subject matter of
this Agreement.
(i) Specific Performance. The parties hereto acknowledge and agree
that they would not have adequate remedies at law and would be irreparably
21
harmed if any of the provisions of this Agreement were not performed by the
parties hereto in accordance with the specific terms hereof or were otherwise
breached, and that, in such case, it would be impossible to measure in money the
damages to such parties. It is accordingly agreed that the parties hereto shall
be entitled to injunctive relief or the enforcement of other equitable remedies,
without bond or other security, to compel performance and to prevent breaches of
this Agreement and specifically to enforce the terms and provisions hereof, in
addition to any other remedy to which they may be entitled, at law or in equity.
22
IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed and delivered as of the date first above
written.
XXXXXXX JEWELERS, INC.
By: /s/ E. Xxxxx Xxxxxx
-------------------------------------
Name: E. Xxxxx Xxxxxx
Title: Executive Vice President,
Chief Financial Officer and
Secretary
THE GALILEO FUND, L.P.
BY: DDJ GALILEO, LLC, ITS GENERAL
PARTNER
BY: DDJ CAPITAL MANAGEMENT, LLC,
MEMBER
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Member
Address: c/o DDJ Capital Management, LLC
000 Xxxxxx Xxxxxx, Xxxxx 0
Xxxxxxxxx, XX 00000-0000
B III CAPITAL PARTNERS, L.P.
BY: DDJ CAPITAL III, LLC, ITS GENERAL
PARTNER
BY: DDJ CAPITAL MANAGEMENT, LLC,
MANAGER
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Member
Address: c/o DDJ Capital Management, LLC
000 Xxxxxx Xxxxxx, Xxxxx 0
Xxxxxxxxx, XX 00000-0000
23
DDJ OVERSEAS CORPORATION
BY: DDJ CAPITAL MANAGEMENT, LLC,
ITS ATTORNEY-IN-FACT
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Member
Address: c/o DDJ Capital Management, LLC
000 Xxxxxx Xxxxxx, Xxxxx 0
Xxxxxxxxx, XX 00000-0000
24
PAINEWEBBER HIGH INCOME FUND
By: /s/ Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
Address:
MANAGED HIGH YEILD FUND INC.
By: /s/ Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
Address:
ALL-AMERICAN TERM TRUST INC.
By: /s/ Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
Address:
25
PAINEWEBBER OFFSHORE FUNDS PLC
THE HIGH INCOME FUND
By: /s/ Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
Address:
26
