EXHIBIT 99.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT ("Agreement"), dated as of July 4,
1998, is between XXXXXXXX'X, INC., a Tennessee corporation ("Parent"), and
certain specified stockholders of SAKS HOLDINGS, INC., a Delaware
corporation (the "Company").
WHEREAS, Parent and the Company have entered into an Agreement and
Plan of Merger (the "Merger Agreement") contemporaneously with the
execution of this Agreement pursuant to which stockholders of the Company
will receive Common Stock of the Parent ("Parent Common Stock");
WHEREAS, following consummation of the transactions contemplated by
the Agreement and Plan of Merger (the "Merger"), Parent will own 100% of
the stock of the Company;
WHEREAS, the stockholders of the Company party hereto are the only
affiliates of the Company that will be limited under Rule 145 in their
ability to dispose of their shares of Parent Common Stock received in the
Merger; and
WHEREAS, the parties hereto desire to enter into this Agreement which
sets forth the terms of certain registration rights applicable to the
Registrable Securities (as defined below) subsequent to the Merger.
NOW, THEREFORE, upon the terms and conditions, and the mutual promises
herein contained, and for good and valuable consideration, the receipt and
adequacy of which are acknowledged, the parties hereto agree as follows:
1. Certain Definitions. Capitalized terms not defined herein shall
have the same meaning as they have in the Merger Agreement. As used in
this Agreement, the following initially capitalized terms shall have the
following meanings:
(a) "Affiliate" means, with respect to any person, any other person
who, directly or indirectly, is in control of, is controlled by or is under
common control with the former person.
(b) "Holder" means any of the former stockholders of the Company
listed on Exhibit A attached hereto or their respective successors,
permitted transferees or assignees.
(c) "In Registration" means, with respect to the Parent, that there
has been an organizational meeting with underwriters regarding a proposed
public offering of Parent's securities.
(d) "Registrable Securities" means Parent Common Stock received in
the Merger, any stock or other securities into which or for which such
Parent Common Stock may hereafter be changed, converted or exchanged, and
any other securities issued to holders of such Parent Common Stock (or such
shares into which or for which such shares are so changed, converted or
exchanged) upon any reclassification, share combination, share subdivision,
share dividend, merger, consolidation or similar transactions or events,
provided that (x) any such securities shall cease to be Registrable
Securities (i) if a registration statement with respect to the sale of such
securities (other than a registration statement relating to the initial
issuance of Parent Common Stock in the Merger) shall have become effective
under the Securities Act and such securities are sold pursuant to such
registration statement, (ii) if such securities shall have been distributed
pursuant to Rule 144, Rule 144A or Rule 145(d) and (y) all such securities
held by any Holder (and all other Holders with whom such Holder should
aggregate sales under Rule 144(e)) shall cease to be Registrable Securities
if such securities do not exceed the amount specified in Rule 144(e)(1)(i).
(e) "Registration Expenses" means all reasonable expenses in
connection with any registration of securities pursuant to this Agreement
including, without limitation, the following: (i) SEC filing fees; (ii) the
fees, disbursements and expenses of Parent's counsel and accountants in
connection with the registration of the Registrable Securities to be
disposed of under the Securities Act; (iii) all expenses in connection with
the preparation, printing and filing of the registration statement, any
preliminary prospectus or final prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to any Holders,
underwriters and dealers and all expenses incidental to delivery of the
Registrable Securities; (iv) the cost of producing blue sky or legal
investment memoranda; (v) all expenses in connection with the qualification
of the Registrable Securities to be disposed of for offering and sale under
state securities laws, including the fees and disbursements of counsel for
the underwriters or Holders in connection with such qualification and in
connection with any blue sky and legal investments surveys; (vi) the filing
fees incident to securing any required review by the National Association
of Securities Dealers, Inc. of the terms of the sale of the Registrable
Securities to be disposed of; (vii) transfer agents', depositaries' and
registrars' fees and the fees of any other agent appointed in connection
with such offering; (viii) all security engraving and security printing
expenses; (ix) all fees and expenses payable in connection with the listing
of the Registrable Securities on each securities exchange or inter-dealer
quotation system on which a class of common equity securities of Parent is
then listed and (x) courier, overnight, and delivery expenses; provided
further that Registration Expenses shall not include any underwriting
discounts, commissions or fees attributable to the sale of the Registrable
Securities.
(f) "Restricted Securities" has the same meaning as in Rule 144(a)(3)
(as hereinafter defined).
(g) "Rule 144" means Rule 144 promulgated under the Securities Act,
or any successor rule to similar effect.
(h) "Rule 144A" means Rule 144A promulgated under the Securities Act,
or any successor rule to similar effect.
(i) "Rule 145" means Rule 145 promulgated under the Securities Act,
or any successor rule to similar effect.
(j) "SEC" means the United States Securities and Exchange Commission.
(l) "Securities Act" means the Securities Act of 1933, as amended, or
any successor statute, and the rules and regulations of the SEC promulgated
thereunder.
2. Demand Registration.
(a) At any time after the publication by the Parent of financial
results covering at least 30 days of post Merger combined operations, upon
written notice from the Representatives (as hereinafter defined) in the
manner set forth in Section 11(h) hereof requesting that the Parent effect
the registration under the Securities Act of any or all of the Registrable
Securities, which notice shall specify the intended method or methods of
disposition of such Registrable Securities, the Parent shall use its
reasonable best efforts to effect, in the manner set forth in Section 5,
the registration under the Securities Act of all of such Registrable
Securities for disposition in accordance with the intended method or
methods of disposition stated in such request, provided that:
(i) if, within 5 business days of receipt of a registration
request pursuant to this Section 2(a), Parent is advised in writing
(with a copy to the Holder requesting registration) by the lead
underwriter of the proposed offering described below that, in such
firm's good faith opinion, a registration at the time and on the terms
requested would materially and adversely affect any immediately
planned offering of securities by Parent as to which Parent was In
Registration prior to receipt of notice requesting registration
pursuant to this Section 2(a) (a "Transaction Blackout"), Parent shall
not be required to effect a registration pursuant to this Section 2(a)
until the earliest of (A) the abandonment of such offering or (B) 120
days after receipt by the Holder requesting registration of the lead
underwriter's written opinion referred to above in this subsection
(i));
(ii) if, while a registration request is pending pursuant to
this Section 2(a), Parent has determined in good faith that the filing
of a registration statement would require the disclosure of material
non-public information that Parent has a bona fide business purpose
for preserving as confidential, Parent shall not be required to effect
a registration pursuant to this Section 2(a) until the earlier of (1)
the date upon which such material information is otherwise disclosed
to the public or ceases to be material or Parent is able to so comply
with applicable SEC requirements, as the case may be, and (2) 90 days
after Parent makes such good-faith determination;
(iii) Parent shall not be obligated to file a registration
statement relating to a registration request pursuant to this Section
2: (A) if such registration request is for a number of Registrable
Securities with a then market value of less than $150 million or (B)
more than 36 months have elapsed since the Effective Time;
(iv) at least four months have elapsed since the last request
made by the Representatives on behalf of any Holders; and
(v) no more than three demands under this Section 2 shall be
required to be honored.
(b) Notwithstanding any other provision of this Agreement to the
contrary:
(i) a registration requested on behalf of a Holder pursuant to
this Section 2, shall not be deemed to have been effected (and,
therefore, not requested for purposes of subsection 2(a)), (A) unless
the registration statement filed with respect to such Holder's
Registrable Securities has become effective or (B) if after it has
become effective such registration is interfered with by any stop
order, injunction or other order or requirement of the SEC or other
governmental agency or court for any reason other than a
misrepresentation or an omission by such Holder and, as a result
thereof, all of the Registrable Securities requested to be registered
cannot be distributed in accordance with the plan of distribution set
forth in the related registration statement or (C) if the conditions
to closing specified in the purchase agreement or underwriting
agreement entered into in connection with such registration are not
satisfied (other than by reason of an act or omission by such Holder)
or waived by the underwriters; and
(ii) a registration requested by a Holder pursuant to this
Section 2 and later withdrawn at the request of such Holder shall be
deemed to have been effected (and, therefore, requested for purposes
of Section 2(a)), whether withdrawn by the Holder prior to or after
the effectiveness of such requested registration, unless such request
is withdrawn by a Holder prior to the filing of a registration
statement with the SEC; and
(c) In the event that any registration pursuant to this Section 2
shall involve, in whole or in part, an underwritten offering, a Holder
shall have the right to designate an underwriter reasonably satisfactory to
Parent as a co-manager of such underwritten offering and Parent shall have
the right to designate the lead underwriter reasonably satisfactory to the
Holder of such underwritten offering.
(d) Parent shall have the right to cause the registration of
additional securities for sale for the account of any person (including
Parent) in any registration of Registrable Securities requested by a Holder
pursuant to Section 2(a); provided that Parent shall not have the right to
cause the registration of such additional securities if such person is
advised in writing (with a copy to the Parent) by the lead underwriter
that, in such firm's good faith opinion, registration of such additional
securities would materially and adversely affect the offering and sale of
the Registrable Securities then contemplated by such Holder.
3. Piggyback Registration. If Parent at any time proposes to
register any of its Common Stock or any other of its common equity
securities, including any security convertible into or exchangeable for any
of its common equity securities (collectively, "Other Securities") under
the Securities Act (other than a registration described in paragraph (c) of
this Section), whether or not for sale for its own account, in a manner
which would permit registration of Registrable Securities for sale for cash
to the public under the Securities Act, it will each such time give prompt
written notice to Investcorp Management Services, LTD., as representative
of the Holders (the "Representative") of its intention to do so at least 20
business days prior to the anticipated filing date of the registration
statement relating to such registration. Such notice shall offer Holders
the opportunity to include in such registration statement any or all of the
Registrable Securities owned by each such Holder. Upon the receipt of
Parent's notice (which request shall specify the number of Registrable
Securities intended to be disposed of and the intended method of
disposition thereof), Parent shall effect, in the manner set forth in
Section 5, in connection with the registration of the Other Securities, the
registration under the Securities Act of all Registrable Securities which
Parent has been so requested to register, to the extent required to permit
the disposition (in accordance with such intended methods thereof) of the
Registrable Securities so requested to be registered, provided that:
(a) if at any time after giving written notice of its intention to
register other securities and prior to the effective date of such
registration, Parent shall determine for any reason not to register or to
delay registration of such securities, Parent may, at its election, give
written notice of such determination to the Representative and, thereupon,
(A) in the case of a determination not to register, Parent shall be
relieved of its obligation to register any Registrable Securities in
connection with such registration and (B) in the case of a determination
to delay such registration, Parent shall be permitted to delay registration
of any Registrable Securities requested to be included in such registration
for the same period as the delay in registering such Other Securities;
(b) (i) if the registration referred to in the first sentence of this
Section 3 is to be an underwritten primary registration on behalf of
Parent, and the managing underwriter advises Parent in writing (with a copy
to the Representative) that, in such firm's good faith opinion, such
offering would be materially and adversely affected by the inclusion
therein of the Registrable Securities requested to be included therein,
Parent shall include in such registration: (1) first, all securities Parent
proposes to sell for its own account ("Parent Securities"), and (2) second,
up to the full number of (A) Registrable Securities held by Holders
requested to be included in such registration and (B) other securities, if
any, requested to be included therein by the holders thereof (the "Other
Holders"), in excess of the number or dollar amount of securities Parent
proposes to sell which, in the good-faith opinion of the managing
underwriter, can be so sold without so materially and adversely affecting
such offering (and, if less than the full number of such Registrable
Securities and securities held by Other Holders, allocated pro rata among
the Holders of such Registrable Securities and the Other Holders on the
basis of the number of securities requested to be registered in such
registration by each such Holder and each such Other Holder); and (ii) if
the registration referred to in the first sentence of this Section 3 is to
be an underwritten secondary registration on behalf of Other Holders and
the managing underwriter of such secondary registration on behalf of Other
Holders and the managing underwriter of such secondary offering advises
Parent in writing that in its good-faith opinion such offering would be
materially and adversely affected by the inclusion therein of the
Registrable Securities requested to be included therein, Parent shall
include in such registration the amount of securities (including
Registrable Securities) that the managing underwriter advises can be so
sold without materially affecting such offering, allocated pro rata among
the Other Holders and the Holders on the basis of the number of securities
(including Registrable Securities) requested to be included therein by each
Other Holder and each Holder.
(c) Parent shall not be required to effect any registration of
Registrable Securities under this Section 3 incidental to the registration
of any of its securities in connection with mergers, acquisitions, exchange
offers, subscription offers, dividend reinvestment plans or stock option or
other executive or employee benefit or compensation plans; and
(d) no registration of Registrable Securities effected under this
Section 3, standing alone, shall relieve Parent of its obligation to effect
a registration of Registrable Securities pursuant to Section 2 hereof.
4. Expenses, Underwriting Discounts, Commissions and Fees. Parent
agrees to pay all Registration Expenses with respect to an offering
pursuant to Section 2 hereof, provided that, Parent shall have no
obligation to pay any underwriting discounts, commissions or fees or the
fees and expenses of Holders' counsel relating to Registrable Securities,
all of which shall be borne by the Holders.
5. Registration and Qualifications. If and whenever Parent is
required to use its reasonable best efforts to effect the registration of
any Registrable Securities under the Securities Act as provided in Section
2 or 3 hereof, Parent shall:
(a) prepare and file a registration statement under the Securities
Act relating to the Registrable Securities to be offered as soon as
practicable, but in no event later than 30 days (45 days if the applicable
registration form is other than Form S-3) after the date notice is given,
and use its reasonable best efforts to cause the same to become effective
within 60 days after the date notice is given (90 days if the applicable
registration form is other than Form S-3);
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for 90
days (or, in the case of an underwritten offering, such shorter time period
as the underwriters may require);
(c) furnish to the Representative and to any underwriter of such
Registrable Securities such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus included
in such registration statement (including each preliminary prospectus and
any summary prospectus), in conformity with the requirements of the
Securities Act, and such other documents, as the Representative or such
underwriter may reasonably request in order to facilitate the public sale
of the Registrable Securities, and a copy of any and all transmittal
letters or other correspondence to, or received from the SEC or any other
governmental agency or self-regulatory body or other body having
jurisdiction (including any domestic or foreign securities exchange)
relating to such offering;
(d) use its reasonable best efforts to register or qualify all
Registrable Securities covered by such registration statement under the
securities or blue sky laws of such jurisdictions as may be necessary to
offer and sell the Registrable Securities in those jurisdictions, and use
its reasonable best efforts to obtain all appropriate registration, permits
and consents required in connection therewith, and do any and all other
acts and things which may be necessary or advisable to enable the Holders
or any such underwriter to consummate the disposition in such jurisdictions
of its Registrable Securities covered by such registration statement;
provided that Parent shall not for any such purpose be required to register
or qualify generally to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified, or to subject itself to
taxation in any such jurisdiction, or to consent to general service of
process in any such jurisdiction;
(e) (i) use its reasonable best efforts to furnish an opinion of
counsel for Parent addressed to the underwriters and the Representatives
and dated the date of the closing under the underwriting agreement (if any)
(or if such offering is not underwritten, dated the effective date of the
registration statement), and (ii) use its reasonable best efforts to
furnish a letter addressed to the Representative, if permissible under
applicable accounting practices, and signed by the independent public
accountants who have audited Parent's financial statements included in such
registration statement, in each such case covering substantially the same
matters with respect to such registration statement (and the prospectus
included therein) as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to underwriters in
underwritten public offerings of securities and such other matters as the
Representative may reasonably request and, in the case of such accountants'
letter, with respect to events subsequent to the date of such financial
statements;
(f) immediately notify each Holder of Registrable Securities included
in such registration (each a "Selling Holder") in writing (i) at any time
when a prospectus relating to a registration pursuant to Section 2 or 3
hereof is required to be delivered under the Securities Act of the
happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of
any 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, and (ii) of any
request by the SEC or any other regulatory body or other body having
jurisdiction in respect of any amendment of or supplement to any
registration statement or other document relating to such offering, and in
either such case (i) or (ii) at the request of the Representative, prepare
and furnish to the Representative a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading;
(g) furnish unlegended certificates representing ownership of the
Registrable Securities being sold in such denominations as shall be
requested by the Representative or the underwriters; and
(h) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC relating to the registration
and distribution of the Registrable Securities, and take all other
reasonable steps necessary and appropriate to effect all registrations in
the manner contemplated by this Agreement.
6. Underwriting; Due Diligence.
(a) If requested by the underwriters for any underwritten offering of
Registrable Securities pursuant to a registration requested under this
Agreement, Parent shall enter into an underwriting agreement with such
underwriters for such offering, such agreement to contain such
representations and warranties by Parent and such other terms and
provisions as are customarily contained in underwriting agreements with
respect to secondary distribution, including, without limitation,
indemnities and contribution substantially to the effect and to the extent
provided in Section 7 hereof and the provision of opinions of counsel and
accountants' letters to the effect and to the extent provided in Section
5(e) hereof. The Selling Holders on whose behalf the Registrable
Securities are to be distributed by such underwriters shall be parties to
any such underwriting agreement and the representations and warranties by,
and the other agreements on the part of, Parent to and for the benefit of
such underwriters, shall also be made to and for the benefit of such
Selling Holders. Such underwriting agreement shall also contain such
representations and warranties by the Selling Holders on whose behalf the
Registrable Securities are to be distributed as are customarily contained
in underwriting agreements with respect to secondary distributions.
(b) In the event that any registration pursuant to Section 3 shall
involve, in whole or in part, an underwritten offering, Parent may require
the Registrable Securities requested to be registered pursuant to Section 3
to be included in such underwriting on the same terms and conditions as
shall be applicable to the other securities being sold through underwriters
under such registration. If requested by the underwriters for such
underwritten offering, the Selling Holders on whose behalf the Registrable
Securities are to be distributed shall enter into an underwriting agreement
with such underwriters, such agreement to contain such representations and
warranties by the Selling Holders and such other terms and provisions as
are customarily contained in underwriting agreements with respect to
secondary distributions, including without limitation, indemnities and
contribution substantially to the effect and to the extent provided in
Section 7 hereof. Such underwriting agreement shall also contain such
representations and warranties by Parent and such other person or entity
for whose account securities are being sold in such offering as are
customarily contained in underwriting agreements with respect to secondary
distributions.
(c) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the
Securities Act, Parent shall give the Representative and the underwriters,
if any, and their respective counsel and accountants, such reasonable and
customary access to its books and records and such opportunities to discuss
the business of Parent with its officers and the independent public
accountants who have certified Parent's financial statements as shall be
necessary, in the opinion of the Representative and such underwriters or
their respective counsel, to conduct a reasonable investigation within the
meaning of the Securities Act.
7. Indemnification and Contribution.
(a) In the case of each offering of Registrable Securities made
pursuant to this Agreement, Parent agrees to indemnify and hold harmless
each Holder, its officers and directors, each underwriter of Registrable
Securities so offered and each person, if any, who controls any of the
foregoing persons within the meaning of Section 15 of the Securities Act,
from and against any and all claims, liabilities, losses, damages, expenses
and judgments, joint or several, to which they or any of them may become
subject, under the Securities Act or otherwise, including any amount paid
in settlement of any litigation commenced or threatened, and shall promptly
reimburse them, as and when incurred, for any reasonable legal or other
expenses incurred by them in connection with investigating any claims and
defending any actions, insofar as such losses, claims, damages, liabilities
or actions shall arise out of, or shall be based upon, any untrue statement
or alleged untrue statement of a material fact contained in the
registration statement (or in any preliminary or final prospectus included
therein, or any amendment thereto or supplement thereto, or in any document
incorporated by reference therein, or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading); provided, however, that Parent
shall not be liable to a particular Holder in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement, or any
omission, if such statement or omission shall have been made in reliance
upon and in conformity with information relating to such Holder furnished
to Parent in writing by or on behalf of such Holder specifically for use in
the preparation of the registration statement (or in any preliminary or
final prospectus included therein) or any amendment thereof or supplement
thereto. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of a Holder and shall survive the
transfer of such securities. The foregoing indemnity agreement is in
addition to any liability which Parent may otherwise have to each Holder,
its officers and directors, underwriters of the Registrable Securities or
any controlling person of the foregoing; provided, further, that, as to any
underwriter or any person controlling any underwriter, this indemnity does
not apply to any loss, liability, claim, damage or expense arising out of
or based upon any untrue statement or alleged untrue statement or omission
or alleged omission in any preliminary prospectus if a copy of a prospectus
was not sent or given by or on behalf of an underwriter to such person
asserting such loss, claim, damage, liability or action at or prior to the
written confirmation of the sale of the Registrable Securities as required
by the Securities Act and such untrue statement or omission had been
corrected in such prospectus.
(b) In the case of each offering made pursuant to this Agreement,
each Holder of Registrable Securities included in such offering, by
exercising its registration rights hereunder, agrees to indemnify and hold
harmless Parent, its officers and directors and each person, if any, who
controls any of the foregoing (within the meaning of Section 15 of the
Securities Act), from and against any and all claims, liability, losses,
damages, expenses and judgments, joint or several, to which they or any of
them may become subject, under the Securities Act or otherwise, including
any amount paid in settlement of any litigation commenced, or threatened,
and shall promptly reimburse them, as and when incurred, for any legal or
other expenses incurred by them in connection with investigating any claims
and defending any actions, insofar as any such losses, claims, damages,
liabilities or actions shall arise out of, or shall be based upon, any
untrue statement or alleged untrue statement of a material fact contained
in the registration statement (or in any preliminary or final prospectus
included therein) or any amendment thereof or supplement thereto, or any
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that such untrue statement
of a material fact is contained in, or such material fact is omitted from,
information relating to such Holder furnished in writing to Parent by or on
behalf of such Holder specifically for use in the preparation of such
registration statement (or in any preliminary or final prospectus included
therein). The foregoing indemnity is in addition to any liability which
such Holder may otherwise have to Parent, or any of its directors, officers
or controlling persons; provided, however, that, as to any underwriter or
any person controlling any underwriter, this indemnity does not apply to
any loss, liability, claim, damage or expense arising out of or based upon
any untrue statement or alleged untrue statement or omission or alleged
omission in any preliminary prospectus if a copy of a prospectus was not
sent or given by or on behalf of an underwriter to such person asserting
such loss, claim, damage, liability or action at or prior to the written
confirmation of the sale of the Registrable Securities as required by the
Securities Act and such untrue statement or omission had been corrected in
such prospectus. In no event, however, shall a Holder be required to pay
pursuant to this Section 7(b) an amount in the aggregate in excess of the
net proceeds received by such Holder in connection with the sale of
Registrable Securities in the offering which is the subject of such loss,
claim, damage or liability.
(c) Procedure for Indemnification. Each party indemnified under
paragraph (a) or (b) of this Section 7 shall, promptly after receipt of
notice of any claim or the commencement of any action against such
indemnified party in respect of which indemnity may be sought, notify the
indemnifying party in writing of the claim or the commencement thereof;
provided that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have to an indemnified party on
account of the indemnity agreement contained in paragraph (a) or (b) of
this Section 7, except to the extent the indemnifying party was actually
prejudiced by such failure, and in no event shall relieve the indemnifying
party from any other liability which it may have to such indemnified party.
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 reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 7 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 each indemnified party,
its officers and directors, if any, and each person, if any, who controls
such indemnified party within the meaning of the Securities Act, shall have
the right to employ separate counsel reasonably approved by the
indemnifying party to represent them if the named parties to any action
(including any impleaded parties) include both such indemnified party and
an indemnifying party or an affiliate of an indemnifying party, and such
indemnified party shall have been advised by counsel either (i) that there
may be one or more legal defenses available to such indemnified party that
are different from or additional to those available to such indemnifying
party or such affiliate or (ii) a conflict may exist between such
indemnified party and such indemnifying party or such affiliate, and in
that event the fees and expenses of one such separate counsel for all such
indemnified parties shall be paid by the indemnifying party. An
indemnified party will not enter into any settlement agreement which is not
approved by the indemnifying party, which approval shall not to be
unreasonably withheld. The indemnifying party may not agree to any
settlement of any such claim or action which provides for any remedy or
relief other than monetary damages for which the indemnifying party shall
be responsible hereunder, without the prior written consent of the
indemnified party, which shall not be unreasonably withheld, and any such
settlement agreement shall contain a complete and unconditional release
from liability of each indemnified party. Notwithstanding the foregoing,
if at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of counsel
as contemplated by this Section 7, the indemnifying party agrees that it
shall be liable for any settlement effected without its written consent if
(i) such settlement is entered into more than 30 business days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of settlement. In any
action hereunder as to which the indemnifying party has assumed the defense
thereof with counsel reasonably satisfactory to the indemnified party, the
indemnified party shall continue to be entitled to participate in the
defense thereof, with counsel of its own choice, but, except as set forth
above, the indemnifying party shall not be obligated hereunder to reimburse
the indemnified party; for the costs thereof. In all instances, the
indemnified party shall cooperate fully with the indemnifying party or its
counsel in the defense of each claim or action.
If the indemnification provided for in this Section 7 shall for any
reason be unavailable to an indemnified party in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
herein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, in such proportion as shall be appropriate to
reflect the relative fault of the indemnifying party on the one hand and
the indemnified party on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or
action in respect thereof, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to
whether the 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 indemnifying party on the one hand or the
indemnified party on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such statement or omission, but not by reference to any indemnified
party's stock ownership in Parent. In no event, however, shall a Holder be
required to contribute in excess of the amount of the net proceeds received
by such Holder in connection with the sale of Registrable Securities in the
offering which is the subject of such loss, claim, damage or liability.
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above
in this paragraph shall be deemed to include, for purposes of this
paragraph, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
8. Rules 144 and 145. Parent shall take such measures and file such
information, documents and reports as shall be required by the SEC as a
condition to the availability of Rules 144 and 145 (or any successor
provisions).
9. No Transfer of Registration Rights.
(a) Holders may not transfer any portion of their rights under this
Agreement except that Holders may transfer such rights to transferees who
agree in writing to the terms and conditions of this Agreement.
(b) No transfer of registration rights pursuant to this Section shall
be effective unless Parent has received written notice of an intention to
transfer of at least 10 days prior to Holder's successor entering into a
binding agreement to transfer Registrable Securities. Such notice need not
contain proposed terms or name a proposed transferee. On or before the
time of the transfer, Parent shall receive a written notice stating the
name and address of any transferee and identifying the amount of
Registrable Securities with respect to which the rights under this
Agreement are being transferred and the nature of the rights to
transferred.
(c) After any such transfer, Holder shall retain its rights under
this Agreement with respect to all other Registrable Securities owned by
Holder.
(d) Upon the request of Holder's successor, Parent shall execute a
Registration Rights Agreement with such transferee or a proposed transferee
substantially similar to this Agreement, and any demand registrations
granted to such transferee shall limit the demand registrations to which
Holder is entitled under Section 2(a) hereof.
10. Miscellaneous.
(a) Injunctions. Each party acknowledges and agrees that irreparable
damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. Therefore, each party shall be entitled to an
injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof in
any court having jurisdiction, such remedy being in addition to any other
remedy to which such party may be entitled at law or in equity. Each party
hereby irrevocably waives trial by jury.
(b) Severability. If any term or provision of this Agreement held by
a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms and provisions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated,
and each of the parties shall use its reasonable best efforts to find and
employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term or provision.
(c) Further Assurances. Subject to the specific terms of this
Agreement, each of the parties hereto shall make, execute, acknowledge and
deliver such other instruments and documents, and take all such other
actions, as may be reasonably required in order to effectuate the purposes
of this Agreement and to consummate the transactions contemplated hereby.
(d) Waivers, etc. No failure or delay on the part of either party
(or the intended third-party beneficiaries referred to herein) in
exercising any power or right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No modification or waiver of any provision of this
Agreement nor consent to any departure therefrom shall in any event be
effective unless the same shall be in writing and signed by an authorized
officer of each of the parties, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which
given.
(e) Entire Agreement. This Agreement contains the final and complete
understanding of the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings between the
parties, whether written or oral, with respect to the subject matter
hereof. The paragraph headings contained in this Agreement are for
reference purposes only, and shall not affect in any manner the meaning or
interpretation of this Agreement.
(f) Counterparts. For the convenience of the parties, this Agreement
may be executed in any number of counterparts, each of which shall be
deemed to be an original but all of which together shall be one and the
same instrument.
(g) Amendment. This Agreement may be amended only by a written
instrument duly executed by an authorized officer of each of the parties.
(h) Notices. Unless expressly provided herein, all notices, claims,
certificates, requests, demands and other communications hereunder shall be
in writing and shall be deemed to be duly given (i) when personally
delivered or (ii) if mailed, registered or certified mail, postage prepaid,
return receipt requested, on the date the return receipt is executed or the
letter refused by the addressee or its agent or (iii) if sent by overnight
courier which delivers only upon the signed receipt of the addressee, on
the date the receipt acknowledgment is executed or refused by the addressee
or its agent:
(i) if to Parent:
Xxxxxxxx'x, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Mr. R. Xxxx Xxxxxx
Facsimile Number: (000) 000-0000
Xxxxxxxx'x, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxx, Esquire
Facsimile Number: (000) 000-0000
with copies to:
Xxxxx X. Strain, Esquire
Xxxxxx & Xxxxxxx, PC
4000 Bank Xxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile Number: (000) 000-0000
(ii) if to the Representative:
Investcorp Management Services, LTD.
X.X. Xxx 0000
Xxxx Xxxx Xxxxxxxx
Xxxx: H. Xxxxxxx Xxxxxx III
Facsimile Number: (000) 000-0000
with copies to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxx, Xxxx & Xxxxxxxx LLP
Xxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
and
(iii) if to a Holder of Registrable Securities, to the
Representative who shall provide such communications
to the Holders;
or to such other address as may have previously furnished to the other
party in writing in the manner set forth above.
(i) GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WIT H AND BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF DELAWARE.
(j) Assignment; Beneficiaries. Except as provided herein, the
parties may not assign their rights under this Agreement. Parent may not
delegate its obligations under this Agreement. Notwithstanding the
foregoing, it is expressly understood, intended and agreed by the parties
hereto that this Agreement is intended to benefit the Holders and that each
of the Holders, together with such Holder's permitted successors, assigns
and transferees, shall be a beneficiary of the respective rights,
obligations, duties, privileges and responsibilities under this Agreement
and shall be entitled to enforce the provisions hereof as though such
Holder were a party hereto.
IN WITNESS WHEREOF, Parent and the Company have caused this Agreement
to be duly executed by their authorized representative as of the date first
above written.
PARENT:
XXXXXXXX'X, INC.,
by /s/ R. Xxxx Xxxxxx
---------------------------------
Name: R. Xxxx Xxxxxx
Title: Chairman of the Board and
Chief Executive Officer
STOCKHOLDERS:
SAKS FIFTH AVENUE HOLDINGS II LTD.,
by /s/ Xxx Xxxxxxxxx
---------------------------------
Name: The Director Ltd.
Title: Director
SAKS FIFTH AVENUE INVESTMENTS II LTD.,
by /s/ Xxx Xxxxxxxxx
---------------------------------
Name: The Director Ltd.
Title: Director
SFA FOLIO LIMITED,
by /s/ Xxx Xxxxxxxx
---------------------------------
Name: Martonmere Services Ltd.
Title: Director
SFA LABEL LIMITED,
by /s/ Xxx Xxxxxxxx
---------------------------------
Name: Martonmere Services Ltd.
Title: Director
SFA COLLECTION LIMITED,
by /s/ Xxx Xxxxxxxx
---------------------------------
Name: Martonmere Services Ltd.
Title: Director
SFA DESIGNER LIMITED,
by /s/ Xxx Xxxxxxxx
---------------------------------
Name: Martonmere Services Ltd.
Title: Director
FLAIR LIMITED,
by /s/ Xxx Xxxxxxxxx
---------------------------------
Name: The Director Ltd.
Title: Director
CHEMICAL NOMINEES (GUERNSEY) LTD.,
by /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director
SAKS INVESTMENTS LIMITED,
by /s/ Xxx Xxxxxxxxx
---------------------------------
Name: The Director Ltd.
Title: Director
SAKS EQUITY LIMITED,
by /s/ Xxx Xxxxxxxxx
---------------------------------
Name: The Director Ltd.
Title: Director
SFA CAPITAL LIMITED,
by /s/ Xxx Xxxxxxxxx
---------------------------------
Name: The Director Ltd.
Title: Director
BALLET LIMITED,
by /s/ H. Xxxxxxx Xxxxxx, III
---------------------------------
Name: H. Xxxxxxx Xxxxxx, III
Title: Authorized Signatory
DENARY LIMITED,
by /s/ H. Xxxxxxx Xxxxxx, III
---------------------------------
Name: H. Xxxxxxx Xxxxxx, III
Title: Authorized Signatory
GLEAM LIMITED,
by /s/ H. Xxxxxxx Xxxxxx, III
---------------------------------
Name: H. Xxxxxxx Xxxxxx, III
Title: Authorized Signatory
HIGHLANDS LIMITED,
by /s/ H. Xxxxxxx Xxxxxx, III
---------------------------------
Name: H. Xxxxxxx Xxxxxx, III
Title: Authorized Signatory
NOBLE LIMITED,
by /s/ H. Xxxxxxx Xxxxxx, III
---------------------------------
Name: H. Xxxxxxx Xxxxxx, III
Title: Authorized Signatory
OUTRIGGER LIMITED,
by /s/ H. Xxxxxxx Xxxxxx, III
---------------------------------
Name: H. Xxxxxxx Xxxxxx, III
Title: Authorized Signatory
QUILL LIMITED,
by /s/ H. Xxxxxxx Xxxxxx, III
---------------------------------
Name: H. Xxxxxxx Xxxxxx, III
Title: Authorized Signatory
RADIAL LIMITED,
by /s/ H. Xxxxxxx Xxxxxx, III
---------------------------------
Name: H. Xxxxxxx Xxxxxx, III
Title: Authorized Signatory
SHORELINE LIMITED,
by /s/ H. Xxxxxxx Xxxxxx, III
---------------------------------
Name: H. Xxxxxxx Xxxxxx, III
Title: Authorized Signatory
ZINNIA LIMITED,
by /s/ H. Xxxxxxx Xxxxxx, III
---------------------------------
Name: H. Xxxxxxx Xxxxxx, III
Title: Authorized Signatory
EXHIBIT A
Saks Fifth Avenue Holdings II Ltd
Saks Fifth Avenue Investments II Ltd.
SFA Folio Limited
SFA Label Limited
SFA Collection Limited
SFA Designer Limited
Flair Limited
Chemical Nominees (Guernsey) Ltd.
Saks Investments Limited
Saks Equity Limited
SFA Capital Limited
Ballet Limited
Denary Limited
Gleam Limited
Highlands Limited
Noble Limited
Outrigger Limited
Quill Limited
Radial Limited
Shoreline Limited
Zinnia Limited
