Exhibit 4.1
REGISTRATION AGREEMENT
REGISTRATION AGREEMENT (this "Agreement") dated as of August 16, 2001,
between Charming Shoppes, Inc., a Pennsylvania corporation (the "Company"), and
The Limited, Inc., a Delaware corporation ("Shareholder").
ARTICLE 1
Definitions
Section 1.01. Definitions. All terms used but not defined in this
Agreement have the meanings ascribed to them in the Stock Purchase Agreement
dated as of July 9, 2001, among the Company, Venice Acquisition Corporation,
LFAS, Inc. and Shareholder (the "Stock Purchase Agreement"). In addition, the
following terms, as used herein, have the following meanings:
"Registrable Securities" means the Stock Consideration and the Adjustment
Stock Consideration beneficially owned by Shareholder (or an Affiliate of
Shareholder); provided that shares of Stock Consideration and Adjustment Stock
Consideration shall cease to be Registrable Securities (x) when such shares have
been sold or otherwise transferred by Shareholder (or an Affiliate of
Shareholder) pursuant to an effective registration statement under the 1933 Act
or otherwise or (y) following the date all of the Registrable Securities are
freely transferable pursuant to Rule 144(k) under the 1933 Act or any successor
rule; provided that, for purposes of such determination, Shareholder (or, if
applicable, any Affiliate of Shareholder) is deemed not to be an "affiliate" of
the Company for purposes of such rules.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal and not as part of such dealer's market-making
activities.
ARTICLE 2
Registration Rights
Section 2.01. Shelf Registration. (a) The provisions of Section 6.10(a)
of the Stock Purchase Agreement are incorporated herein by reference.
(b) If the aggregate proceeds from an offering of Registrable Securities
pursuant to the Shelf Registration Statement are expected to be more than $25
million and if Shareholder so elects, such offering may be in the form of an
underwritten offering solely of Registrable Securities. Shareholder shall select
the managing Underwriters and any additional investment bankers and managers to
be used in connection with such offering; provided that such managing
Underwriters and additional investment bankers must be reasonably satisfactory
to the Company. The Company shall not be obligated to arrange for more than two
underwritten offerings of Registrable Securities pursuant to this Agreement.
ARTICLE 3
Registration Procedures
Section 3.01. Filings; Information. In connection with the Shelf
Registration Statement pursuant to Section 2.01 hereof, the Company and
Shareholder agree as follows:
(a) Shareholder will notify Company in writing of its intention to sell
Registrable Securities pursuant to the Shelf Registration Statement at least 10
days prior to the proposed date of such sale. The Company shall be entitled, by
notifying Shareholder within 5 days of receiving the aforementioned notice from
Shareholder, to postpone or suspend for a reasonable period of time (in no event
to exceed 45 days) the offering or sale of any Registrable Securities, or the
filing of any amendment or supplement to the Shelf Registration Statement, if
the Company shall determine in good faith that (i) such offering, sale or filing
will interfere with any pending or contemplated financing, merger, sale or
acquisition of assets, recapitalization or other material corporate action of
the Company or (ii) the filing of such amendment or supplement would require the
Company to include therein material information that has not theretofore been
made public and which the Company is not then reasonably prepared to disclose.
If the Company elects to so postpone or suspend the offering or sale of any
Registrable Securities, or the filing of any amendment or supplement to the
Shelf Registration Statement, the Company shall, to the extent necessary, amend
or supplement the Shelf Registration Statement to permit the offering and sale
of Registrable Securities within 45 days of receiving the aforementioned notice
from Shareholder.
(b) The Company will, if requested, prior to filing the Shelf Registration
Statement or any amendment or supplement thereto, furnish to Shareholder and
each applicable managing Underwriter, if any, without charge, copies thereof,
and thereafter furnish to Shareholder and each such Underwriter, if any, without
charge, such number of copies of such registration statement, amendment and
supplement thereto (in each case including all exhibits thereto and documents
incorporated by reference therein) and the prospectus included in such
registration statement (including each preliminary prospectus) as Shareholder or
each such Underwriter may reasonably request in order to facilitate the sale of
the Registrable Securities.
(c) After the filing of the Shelf Registration Statement, the Company will
promptly notify Shareholder of any stop order issued or, to the Company's
knowledge, threatened to be issued by the Commission and use its reasonable best
efforts to prevent the entry of such stop order or to remove it if entered at
the earliest possible date.
2
(d) The Company will use its reasonable best efforts in cooperation with
Shareholder and the applicable Underwriters or agents, as the case may be, to
qualify the Registrable Securities for offer and sale under such other
securities or blue sky laws of such jurisdictions in the United States as
Shareholder reasonably requests in writing; provided that the Company will not
be required to (1) qualify generally to do business in any jurisdiction as a
foreign corporation or as a dealer in securities where it would not otherwise be
required to qualify but for this paragraph (d), (2) subject itself to taxation
in any such jurisdiction or (3) consent to general service of process in any
such jurisdiction.
(e) The Company will as promptly as is practicable notify Shareholder, at
any time when a prospectus relating to the sale of Registrable Securities is
required to be delivered under the 1933 Act, upon the occurrence of any
circumstances or events requiring the preparation of a supplement or amendment
to the Shelf Registration Statement or the prospectus included therein so that,
as thereafter delivered to the purchasers of such Registrable Securities, such
Shelf Registration Statement and 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 (in the light of the
circumstances under which they were made) not misleading and shall as promptly
as practicable make available to Shareholder and to the Underwriters, if
applicable, any such supplement or amendment. Shareholder agrees that, upon
receipt of any notice from the Company of the occurrence of any circumstance or
event of the kind described in the preceding sentence, Shareholder will
forthwith discontinue the offer and sale of Registrable Securities pursuant to
the Shelf Registration Statement until receipt by Shareholder and the
Underwriters, if applicable, of the copies of such supplemented or amended Shelf
Registration Statement and/or prospectus and, if so directed by the Company,
Shareholder will deliver to the Company all copies, other than permanent file
copies then in Shareholder's possession, of the most recent prospectus covering
such Registrable Securities at the time of receipt of such notice.
(f) The Company will deliver to Shareholder and each Underwriter or agent
participating in an offering pursuant to the Shelf Registration Statement,
without charge, as many copies of each preliminary prospectus as Shareholder or
such Underwriter or agent may reasonably request in writing, and the Company
hereby consents (except during the continuance of any circumstance or event
described in Sections 3.01(a), (c) or (e)) to the use of such copies for
purposes permitted by the 1933 Act. The Company will deliver to Shareholder and
each Underwriter or agent participating in such offering, without charge, from
time to time during the period when a prospectus is required to be delivered
under the 1933 Act, such number of copies of such prospectus (as supplemented or
amended) as Shareholder or such Underwriter or agent may reasonably request in
writing.
(g) The Company will use its reasonable best efforts to comply with the
1933 Act and the rules and regulations of the Commission thereunder, and the
3
1934 Act and the rules and regulations of the Commission thereunder so as to
permit the completion of the distribution of the Registrable Securities pursuant
to the Shelf Registration Statement in accordance with the intended method or
methods of distribution contemplated in the prospectus relating thereto.
(h) Upon the written request of Shareholder or the managing Underwriter or
agent, as the case may be, or if required by the rules, regulations or
instructions applicable to the registration form used by the Company, or by the
1933 Act or by any other rules and regulations thereunder in connection with the
offering of Registrable Securities pursuant to the Shelf Registration Statement,
the Company will prepare a prospectus supplement that complies with the 1933 Act
and the rules and regulations of the Commission thereunder and that sets forth
the aggregate amount of the Registrable Securities being sold, the name or names
of any Underwriters or agents participating in the offering, the price at which
the Registrable Securities are to be sold, any discounts, commissions or other
items constituting compensation, and such other information as Shareholder or
the managing Underwriter or agent, as the case may be, and the Company deem
appropriate in connection with the offering and sale of the Registrable
Securities prior to its being used or filed with the Commission.
(i) The Company may require Shareholder to promptly furnish in writing to
the Company such information regarding the Shareholder, the distribution of the
Registrable Securities and other matters as may be required by applicable law,
rule or regulation for inclusion in the Shelf Registration Statement (or any
amendment or supplement thereto).
(j) The Company will enter into customary agreements (including an
underwriting agreement in customary form in the event of an underwritten
offering pursuant to Section 2.01(b)) and take such other actions as are
reasonably required in order to expedite or facilitate the sale of such
Registrable Securities.
(k) The Company will furnish to Shareholder and to each Underwriter in an
underwritten offering a signed counterpart, addressed to Shareholder or such
Underwriter, of (1) an opinion or opinions of counsel to the Company and (2) 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 in similar registered
offerings, as the case may be, as Shareholder or the managing Underwriter
reasonably requests.
(l) The Company will make generally available to its security holders, as
soon as reasonably practicable, an earnings statement covering a period of 12
months, beginning within three months after the effective date of the Shelf
Registration Statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the 1933 Act and the rules and regulations of the Commission
thereunder.
4
(m) The Company will use its reasonable efforts to cause all such
Registrable Securities to be listed for trading on the Nasdaq National Market or
on each securities exchange on which similar securities issued by the Company
are then listed.
Section 3.02. Registration Expenses. In connection with the Shelf
Registration Statement, the Company shall pay the following expenses incurred in
connection with such registration: (1) filing fees with the Commission, (2) fees
and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel for the Company in connection with
blue sky qualifications of the Registrable Securities), (3) printing expenses,
(4) fees and expenses incurred in connection with the listing of the Registrable
Securities, (5) fees and expenses of counsel and independent certified public
accountants for the Company and (6) the reasonable fees and expenses of any
additional experts retained by the Company in connection with such registration.
Shareholder shall pay any underwriting fees, discounts or commissions
attributable to the sale of Registrable Securities and any out-of-pocket
expenses of Shareholder, including fees and expenses of counsel for Shareholder
and any Underwriters.
Section 3.03 Termination. The registration rights set forth in this
Agreement shall cease to be available to Shareholder when all of the shares of
Stock Consideration and Adjustment Stock Consideration cease to be Registrable
Securities hereunder. Upon termination of such registration rights in accordance
with this Section 3.03, the obligations of the Company to continue the
effectiveness of the Shelf Registration Statement shall terminate.
ARTICLE 4
Indemnification And Contribution
Section 4.01. Indemnification By The Company. The Company agrees to
indemnify and hold harmless Shareholder, its officers and directors, and each
Person, if any, who controls Shareholder within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act from and against any and all
losses, claims, damages and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in the Shelf Registration
Statement or any prospectus contained therein, or any amendment or supplement
thereto, or caused by 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, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission (A) made in reliance upon and in conformity with written information
furnished to the Company by Shareholder for use in the Shelf Registration
Statement or any prospectus (or any amendment or supplement thereto) or the plan
of distribution furnished in writing to the Company by or on behalf of
Shareholder expressly for use therein or (B) that was corrected in an amendment
or supplement to the Shelf Registration
5
Statement or a prospectus and the Company had furnished copies thereof to the
Shareholder or the managing Underwriter prior to the relevant date of sale by
the Shareholder or managing Underwriter to the Person asserting such loss,
claim, damage or liability. The Company also agrees to indemnify any
Underwriters of the Registrable Securities, their officers and directors and
each Person who controls such Underwriters (within the meaning of either Section
15 of the 1933 Act or Section 20 of the 0000 Xxx) on substantially the same
basis as that of the indemnification of Shareholder provided in this Section
4.01.
Section 4.02. Indemnification By Shareholder. Shareholder agrees to
indemnify and hold harmless the Company, its officers and directors, and each
Person, if any, who controls the Company within the meaning of either 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 Shareholder, but only with reference to
any untrue statement or omission or alleged untrue statement or omission (A)
made in reliance upon and in conformity with written information furnished by
Shareholder to the Company for use in the Shelf Registration Statement or any
prospectus (or any amendment or supplement thereto) or the plan of distribution
furnished in writing to the Company by or on behalf of Shareholder expressly for
use therein or (B) that was corrected in an amendment or supplement to the Shelf
Registration Statement or a prospectus and the Company had furnished copies
thereof to the Shareholder or the managing Underwriter prior to the relevant
date of sale by the Shareholder or managing Underwriter to the Person asserting
such loss, claim, damage or liability. Shareholder also agrees to indemnify and
hold harmless any Underwriters of the Registrable Securities, their officers and
directors and each person who controls such Underwriters (within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 0000 Xxx) on
substantially the same basis as that of the indemnification of the Company
provided in this Section 4.02.
Section 4.03. Conduct of Indemnification Proceedings. In case any
proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
Section 4.01 or Section 4.02, such Person (the "Indemnified Party") shall
promptly notify the Person against whom such indemnity may be sought (the
"Indemnifying Party") in writing and the Indemnifying Party, upon the request of
the Indemnified Party, shall retain counsel reasonably satisfactory to such
Indemnified Party to represent such Indemnified Party and any others the
Indemnifying Party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (1) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (2) the
named parties to any such proceeding (including any impleaded parties) include
both the Indemnified Party and the Indemnifying Party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing
6
interests between them. It is understood that the Indemnifying Party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
of attorneys (in addition to any local counsel) at any time for all such
Indemnified Parties, and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the Indemnified
Parties, such firm shall be designated in writing by the Indemnified Parties.
The Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent, or if
there be a final judgment for the plaintiff, the Indemnifying Party shall
indemnify and hold harmless such Indemnified Parties from and against any loss
or liability (to the extent stated above) by reason of such settlement or
judgment.
Section 4.04. Contribution. If the indemnification provided for in this
Article 4 is unavailable to an Indemnified Party in respect of any losses,
claims, damages or liabilities referred to herein, then in lieu of such
indemnification (1) as between the Company, on the one hand, and Shareholder, on
the other hand, the Company and Shareholder shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
such indemnity incurred by the Company and Shareholder, as incurred, in such
proportion as is appropriate to reflect the relative fault of the Company, on
the one hand, and of Shareholder, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations and
(2) as between the Company and Shareholder, on the one hand, and the
Underwriters or agents, on the other hand, the Company, Shareholder,
Underwriters and agents shall contribute to such aggregate losses, liabilities,
claims, damages and expenses in proportion such that (x) the Underwriters and
agents are responsible for that portion represented by the percentage that the
underwriting discounts and commissions for the offering appearing on the cover
page of the relevant prospectus (or, if not set forth on the cover page, that
are applicable to the relevant offering) bear to the initial public offering
price appearing on the cover page (or, if not set forth on the cover page, that
are applicable to the relevant offering), and (y) Shareholder and the Company
are responsible to contribute pro rata, based upon the amount of net proceeds
realized by each, in respect of the balance.
The relative fault of the Company on the one hand and Shareholder on the
other hand shall be determined by reference to, among other things, whether any
such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by or on behalf of Shareholder and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and Shareholder agree that it would not be just and equitable
if contribution pursuant to this Section 4.04 were determined by pro rata
allocation or by any other method of allocation that does not take account of
7
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 Article 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 Shareholder shall
not be required to contribute any amount in excess of the amount by which the
proceeds of the offering (before deducting expenses or Underwriter's discounts
or commissions) exceeds the amount of any damages which Shareholder 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.
ARTICLE 5
Miscellaneous
Section 5.01. Rule 144. The Company covenants that it will file any
reports required to be filed by it under the 1934 Act and that it will take such
further action as Shareholder may reasonably request to the extent required from
time to time to enable Shareholder to sell Registrable Securities without
registration under the 1933 Act within the limitation of the exemptions provided
by Rule 144 under the 1933 Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission. Upon the
request of Shareholder, the Company will deliver to Shareholder a written
statement as to whether it has complied with such reporting requirements.
Section 5.02. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission) and
shall be given,
if to the Company, to:
Charming Shoppes, Inc.
000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Fax: (000) 000-0000
8
with a copy (which shall not constitute notice) to:
Drinker Xxxxxx & Xxxxx LLP
One Xxxxx Square
00xx xxx Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Fax: (000) 000-0000
if to The Limited, to:
The Limited, Inc.
Three Limited Parkway
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax: (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 by notice to the other parties. All
such notices, requests and other communications shall be deemed received on the
date of receipt by the recipient thereof if received prior to 5 p.m. in the
place of receipt and such day is a Business Day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding Business Day in the place of receipt.
Each such notice, request or other communication shall be effective (1) if given
by telecopy, when such telecopy is transmitted to the telecopy number specified
in this Section and evidence of receipt is received or (2) if given by any other
means, upon delivery or refusal of delivery at the address specified in this
Section 5.02.
Section 5.03. Amendments and Waivers. (a) Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed, in the case of an amendment, by each party to this
Agreement, or in the case of a waiver, by the party against whom the waiver is
to be effective.
(b) 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
9
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.
Section 5.04. Expenses. Except to the extent otherwise expressly provided
herein, all costs and expenses incurred in connection with this Agreement shall
be paid by the party incurring such cost or expense.
Section 5.05. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that neither the Company nor the
Shareholder may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the written consent of the other party,
except that Shareholder may, in whole or in part, transfer its rights under this
Agreement to an Affiliate of Shareholder that beneficially owns Registrable
Securities.
Section 5.06. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of New York, without regard to
the conflicts of law rules of such state.
Section 5.07. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 5.08. Counterparts; Third Party Beneficiaries. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by the other party hereto. No
provision of this Agreement is intended to confer upon any Person other than the
parties hereto any rights or remedies hereunder.
Section 5.09. Entire Agreement. This Agreement constitute the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter of this
Agreement. No representation, inducement, promise, understanding, condition or
warranty not set forth herein has been made or relied upon by any party hereto.
Section 5.10. Captions; Certain Terms. The captions herein are included
for convenience of reference only and shall be ignored in the construction or
interpretation hereof. All references to "$" or "dollars" shall be to United
States dollars and all references to "days" shall be to calendar days unless
otherwise specified. Whenever the words "include", "includes" or "including" are
used in this
10
Agreement, they shall be deemed to be followed by the words "without
limitation".
[Remainder of page intentionally left blank; next page is signature page]
11
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
CHARMING SHOPPES, INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
THE LIMITED, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President - Treasury,
Mergers and Acquisitions
12
