REGISTRATION RIGHTS AGREEMENT
Exhibit 4.4
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of the 26th
day of August, 2010, by and among Bakers Footwear Group, Inc., a Missouri corporation (the
“Company”), and Xxxxxx Xxxxxx, Ltd., a Delaware corporation (the “Securityholder”).
W I T N E S S E T H:
WHEREAS, pursuant to that certain Debenture and Stock Purchase Agreement dated as of August
26, 2010 (the “Purchase Agreement”), by and between the Securityholder and the Company, the
Securityholder has purchased 1,844,860 shares of common stock of the Company, par value $0.0001 per
share (the “Shares”).
WHEREAS, as a condition to closing the transactions contemplated by the Purchase Agreement,
the parties agreed to execute and deliver this Agreement setting forth certain rights of the
Securityholder with respect to registration under the Securities Act of 1933, as amended, of the
Shares issued to the Securityholder.
NOW, THEREFORE, in consideration of these premises, the covenants and agreements herein
contained, and other good and valuable consideration, the receipt and sufficiency of which hereby
are acknowledged, the parties hereto agree as follows:
1. Certain Definitions. For purposes of this Agreement the following terms shall have the
following meanings:
(a) “Act” means the U.S. Securities Act of 1933, as amended, or any successor statute, and the
rules and regulations of the Commission issued under the Act.
(b) “Affiliate” means, with respect to any Person, any Person directly or indirectly
controlling, controlled by, or under common control with such Person.
(c) “Business Day” means any day except Saturday, Sunday and any day that is a federal legal
holiday or a day on which banking institutions in the State of New York and Missouri are authorized
or required by law or other governmental action to close.
(d) “Commission” means the U.S. Securities and Exchange Commission, or any other Federal
agency then administering the Act.
(e) “Common Stock” shall mean shares of the Company’s Common Stock, $0.0001 par value per
share.
(f) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successor
statute, and the rules and regulations of the Commission issued under the Exchange Act.
(g) “Free Writing Prospectus” shall have the meaning ascribed to such term in Rule 405 under
the Act.
(h) “Holder” means (a) the Securityholder, and (b) any other person holding Registrable
Securities to whom the registration rights set forth in this Agreement have been transferred
pursuant to Section 8.
(i) “Participating Holder” means any Holder of any Registrable Securities included in a
registration.
(j) “Person” means any individual, corporation, partnership, limited liability company, trust
or any other incorporated or unincorporated entity or organization of any kind.
(k) “Prospectus” means the prospectus included in any Registration Statement, as amended or
supplemented by any prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Securities covered by any Registration Statement and all other amendments and
supplements to the prospectus.
(l) “Register,” “registered” and “registration” refer to a registration effected by preparing
and filing a Registration Statement in compliance with the Act and the declaration or ordering of
effectiveness of such Registration Statement.
(m) “Registrable Securities” means the Shares (and any stock or securities issued with respect
to such Shares by reason of a stock dividend, stock split, combination of shares, recapitalization,
reclassification, merger, consolidation, corporate reorganization or otherwise); provided, however,
that Registrable Securities shall cease to be Registrable Securities upon any sale pursuant to a
Registration Statement or Section 4(1) of the Act or Rule 144 (or any combination thereof).
(n) “Registration Commencement Date” means the earlier of (i) May 1, 2012, and (ii) the date
of the end of employment of Xxxxx X. Xxxxxx as the Chief Executive Officer of the Company.
(o) “Registration Expenses” shall mean all reasonable and customary expenses of the Company
incident to performance of or compliance with this Agreement, including, without limitation: (i)
all Commission, stock exchange or Financial Industry Regulatory Authority registration and filing
fees; (ii) all fees and expenses incurred in connection with compliance with state securities or
“blue sky” laws (including reasonable fees and disbursements of counsel in connection with “blue
sky” qualification of any of the Registrable Securities and the preparation of a Blue Sky
Memorandum); (ii) all expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration
Statement, Prospectus, certificates and other documents relating to the performance
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of and
compliance with this Agreement; (iv) all fees and expenses incurred in connection with the listing,
if any, of any of the Registrable Securities on any securities exchange or exchanges or automated
quotation system; and (v) the fees and disbursements of counsel for the Company, the independent
public accountants of the Company and one counsel for the Holders of the Registrable Securities
included in such registration. Registration Expenses shall specifically exclude underwriting
discounts and commissions relating to the sale or disposition of Registrable Securities by the
Holders and transfer and income taxes, if any, relating to the sale or disposition of Registrable
Securities by the Holders.
(p) “Registration Statement” means any registration statement of the Company and any other
entity required to be a registrant with respect to such registration statement pursuant to the
requirements of the Act, including any Prospectus, and all amendments and supplements to any such
registration statement, including post-effective amendments, and all exhibits and all material
incorporated by reference in any such registration statement.
(q) “Rule 144” means Rule 144 under the Act (or any successor rule that may be adopted by the
Commission ).
(r) “Rule 145” means Rule 145 under the Act (or any successor rule that may be adopted by the
Commission ).
(s) “Rule 415” means Rule 415 under the Act (or any successor rule that may be adopted by the
Commission ).
(t) “Rule 424” means Rule 424 under the Act (or any successor rule that may be adopted by the
Commission ).
(u) “Shelf Registration” means a “shelf” registration statement on an appropriate form
pursuant to Rule 415.
(v) “Underwritten Offering” means an offering in which securities of the Company are sold to
an underwriter for reoffering to the public pursuant to an effective Registration Statement under
the Act.
2. Demand Registrations.
(a) Requests for Registration. At any time on or after the Registration Commencement Date,
until the tenth anniversary of the Registration Commencement Date, as set forth in this Section 2,
the Holders of a majority of the Registrable Securities may in writing request registration under
the Act of all or part of their Registrable Securities. Each request for registration shall state
that it is being made pursuant to this Section 2 and shall specify the number of Registrable
Securities requested to be registered. Within ten days after such notice has been given, the
Company shall give written notice to all other Holders, if any, of such requested registration.
Each such Holder shall have the right, by giving written notice to the
Company within 30 days after the Company gives its notice, to elect to have included in such
registration such of its Registrable Securities as such Holder may request in such notice of
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election. Upon a request for a Demand Registration, the Company shall use its reasonable best
efforts to effect as expeditiously as possible the registration, in accordance with Section 4, of
all Registrable Securities which the Company has been requested to so register; provided that the
Company shall within ninety (90) days of such request file with the Commission a Registration
Statement covering all securities to be included therein, unless the Company is otherwise permitted
hereunder to delay such filing. Each registration requested pursuant to this Section 2 is referred
to herein as a “Demand Registration.” If the Company notifies the Holders in writing, prior to a
request for a Demand Registration from the Holders, of the Company’s intent to register securities
with the Commission, and the Company effects a registration in accordance with Section 3, the
Holders’ request shall be governed by Section 3 and shall not constitute a Demand Registration.
The parties hereto acknowledge that the Company is a party to other registration rights agreements
and similar agreements, and that the Company shall be entitled to register under a Registration
Statement any other securities required to be registered pursuant to any other such agreements,
including pursuant to “piggy-back” rights granted prior to the date hereof.
(b) Limitations on Demand Registrations.
(A) The Company shall be required to effect an unlimited number of Demand
Registrations; provided, however, the maximum number of Demand Registrations
that the Company shall be required to effect during any period(s) when the
Company is not then eligible to utilize Form S-3, or any successor form, to
register the Registrable Securities shall be limited to two;
(B) If the Board of Directors of the Company, acting in good faith,
determines that the registration and distribution of Registrable Securities
(or the use of the Registration Statement or related Prospectus) resulting
from a Demand Registration would (A) materially and adversely interfere with
any previously announced business combination transaction involving the
Company, or (B) result in the premature disclosure of any material pending
financing, acquisition, corporate reorganization or any other corporate
development or other events involving the Company or any of its subsidiaries
that the Company has a bona fide business purpose for preserving as
confidential; then, in either such event, the Company shall promptly give
the Holders written notice of such determination. The Company shall
thereupon have the right to delay the filing or the effectiveness (but not
the preparation) of the Registration Statement for the Demand Registration
for a reasonable period of time, but in no event more than 90 days after the
date that the request for a Demand Registration was made; provided, however,
that the Company shall not register any securities for its own account or
that of any other stockholder during such
ninety (90) day period, other than pursuant to a Registration Statement on
Form S-8; and provided further that in the event of such delay, the Holders
of a majority of the Registrable Securities to be
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included in such Demand
Registration will be entitled to withdraw such request and, if such request
is withdrawn, such Demand Registration will not count as a Demand
Registration, and responsibility for Registration Expenses incurred by the
parties prior to such delay shall be allocated in accordance with Section
2(e). The Company may not exercise this right to delay a Demand
Registration more than once during any period of twelve consecutive months.
(c) Underwriting Requirements. In connection with any Demand Registration involving an
Underwritten Offering, the Company shall (together with all Holders proposing to distribute their
securities through such Underwritten Offering) enter into an underwriting agreement in customary
form with the representative of the underwriter or underwriters of recognized national or regional
standing selected for such Underwritten Offering by the Holders of a majority of the Registrable
Securities proposed to be sold pursuant to such Demand Registration and reasonably acceptable to
the Company. If a Demand Registration is an Underwritten Offering and the representative of the
underwriters advises the Holders in writing that marketing or other customary factors, including,
but not limited to, the price at which such securities will be sold, require a limitation of the
number of Registrable Securities to be included in the registration and Underwritten Offering,
then, the number of shares of Common Stock that may be included in an Underwritten Offering shall
be allocated among all Holders and all other participants in such Registration Statement in
proportion, as nearly as practicable, to the respective amounts of securities requested to be
included in the registration by such Holders and participants; provided that in no event shall the
Registerable Securities of the Securityholder included in such Registration Statement be less than
50% of the Registrable Securities requested to be included therein. Also, in the event that the
underwriter requires a limitation of 10% or more in the number of Registrable Securities to be
included in the registration and Underwritten Offering in an offering that would otherwise be
pursuant to a Demand Registration, such registration of shares shall not constitute a Demand
Registration.
(d) Expenses of Demand Registration. Except as provided in Section 2(e), all Registration
Expenses incurred in connection with a Demand Registration shall be borne by the Company.
Underwriting discounts and commissions relating to the sale or disposition of Registrable
Securities by the Holders and transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by the Holders, all shall be borne by the Holders. The cost of preparing
all documents incorporated by reference or otherwise required to be prepared in the ordinary course
of the Company’s business shall be borne by the Company. Expenses to be borne by the Holders shall
be allocated to each Holder in the same proportion as the amount of Registrable Securities owned by
such Holder which are included in the Demand Registration bears to the amount of Registrable
Securities owned by all Holders which are included in the Demand Registration.
(e) Withdrawal of Demand Registration. Holders of a majority of the Registrable Securities
proposed to be registered in a given Demand Registration may elect to withdraw such Demand
Registration at any time prior to registration by giving written notice thereof to the Company.
Any Demand Registration so withdrawn shall not constitute a Demand
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Registration hereunder. The
Registration Expenses incurred in any withdrawn Demand Registration shall be borne solely by the
Holders, unless (i) the Holders agree to forfeit their right to a Demand Registration, in which
case all such Registration Expenses shall be borne by the Company, (ii) the Demand Registration was
withdrawn as a result of the election of the Company to delay the registration in accordance with
Section 2(b)(B), in which case all such Registration Expenses shall be borne by the Company and, in
addition, the Company shall pay all of the reasonable fees and disbursements of counsel to the
Holders incurred prior to such delay, or (iii) the Company continues to pursue such registration
with respect to securities to be sold for the Company’s own account or the account of others, in
which case all such Registration Expenses shall be borne by the Company.
3. Piggyback Registrations.
(a) Company Obligations. If the Company proposes to register any of its Common Stock under the
Act and the registration form to be used can be used to register the resale of the Common Stock
(other than a Registration Statement: (A) on Form S-8 or any successor form relating to securities
issuable pursuant to any benefit plan; (B) on Form S-4, or any successor form relating to an
exchange offer or relating to a transaction pursuant to Rule 145; or (C) on Form S-3 or any
successor form with respect to securities registered in connection with dividend reinvestment plans
or similar plans only), the Company shall each such time promptly give the Holders written notice
of such determination to effect such a registration not later than 30 days prior to the anticipated
date of initial filing with the Commission of the Registration Statement. Upon the written request
of any of the Holders given within 20 days after the date that the Company gives its notice, as
part of the registration to which such notice relates, the Company shall use its reasonable best
efforts to effect as expeditiously as possible the registration of all Registrable Securities that
the Holders have requested to be registered. The Company’s obligations under this Section 3(a)
shall commence on the Registration Commencement Date and shall terminate on the tenth anniversary
of the Registration Commencement Date.
(b) Underwritten Offerings. If the registration of which the Company gives notice is for an
Underwritten Offering, then the Company shall so advise the Holders as a part of such written
notice. In such event, the right of the Holders to registration pursuant to this Section shall be
conditioned upon the Holders’ agreeing to participate in such Underwritten Offering upon the terms
and condition as shall be negotiated by the Company, and the inclusion of the Registrable
Securities in the Underwritten Offering to the extent provided herein. The Holders proposing to
distribute securities through such Underwritten Offering shall (together with the Company) enter
into an underwriting agreement in customary form with the underwriter or underwriters selected for
such Underwritten Offering by the Company. Notwithstanding any other provisions of this Section,
if the underwriter determines in writing, in its sole and absolute
discretion, that marketing or other customary factors, including the price at which such
securities will be sold, require a limitation of the number of shares to be underwritten, then the
underwriter may exclude some or all Registrable Securities from such registration and Underwritten
Offering in accordance with the provisions of this Section. The Company shall so advise the
Holders distributing securities through such Underwritten Offering, and the number of Registrable
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Securities that may be included in the registration and Underwritten Offering on behalf of the
Holders shall be allocated among the Holders in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities which the Holders requested to be included in the
registration; provided that in no event shall the Registerable Securities of the Securityholder to
be included in such Registration Statement be less than 50% of the Registrable Securities requested
to be included therein. If the Holders disapprove of the terms of any such Underwritten Offering,
then the Holders may elect to withdraw therefrom by giving written notice to the Company and the
underwriter. Any securities so excluded or withdrawn from such Underwritten Offering shall be
withdrawn from such registration.
(c) Expenses of Piggyback Registrations. In the case of any registration effected pursuant to
this Section 3, all Registration Expenses incurred in connection therewith shall be borne by the
Company, except that Underwriting discounts and commissions relating to the sale or disposition of
Registrable Securities by the Holders and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by the Holders, all shall be borne by the Holders. The cost
of preparing all documents incorporated by reference or otherwise required to be prepared in the
ordinary course of the Company’s business shall be borne by the Company. Expenses to be borne by
the Holders shall be allocated to each Holder in the same proportion which the Registrable
Securities owned by such Holder which are included in the registration bears to the Registrable
Securities owned by all Holders which are included in the registration.
4. Registration Procedures. If and whenever the Company shall be required to use its
reasonable best efforts to effect or cause the registration of any Registrable Securities under the
Act as provided in this Agreement, the Company shall as expeditiously as reasonably possible:
(a) prepare and file with the Commission a Registration Statement with respect to such
Registrable Securities on any form for which the Company then qualifies or that counsel for the
Company shall deem appropriate, and which form shall be available for the sale of the Registrable
Securities in accordance with the methods of distribution thereof intended by the Holders
participating in such registration, and use its reasonable best efforts to cause such Registration
Statement to become and remain effective;
(b) prepare and file with the Commission amendments and post-effective amendments to such
Registration Statement and such amendments and supplements to the Prospectus used in connection
therewith as may be necessary to maintain the effectiveness of such registration or as may be
required by the rules, regulations or instructions applicable to the registration form utilized by
the Company or by the Act for a Shelf Registration (if available) if requested by the Holders of a
majority of the Registrable Securities to be included in such registration, or otherwise necessary
to keep such Registration Statement effective to permit the
methods of distribution intended by the Holders participating in such registration for at
least 90 days and cause the Prospectus as so supplemented to be filed pursuant to Rule 424, and to
otherwise comply with the provisions of the Act with respect to the disposition of all securities
covered by such Registration Statement in the manner reasonably requested by the Holders of a
majority of the Registrable Securities to be included in such registration until the earlier of (x)
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such time as all of the Registrable Securities have been disposed of in accordance with the
intended methods of disposition, and (y) the expiration of nine months after the effective date of
such Registration Statement (it being understood that the Company at its option may determine to
maintain such effectiveness for a longer period, whether pursuant to a Shelf Registration or
otherwise); provided, however, that a reasonable time before filing a Registration Statement or
Prospectus, or any amendments or supplements thereto (other than reports required to be filed by it
under the Exchange Act), the Company shall furnish to the Participating Holders, the managing
underwriter, if any, and their respective counsel for review and comment, copies of all documents
proposed to be filed;
(c) furnish to the Participating Holders and to any underwriter in connection with an
Underwritten Offering such number of conformed copies of such Registration Statement and of each
amendment and post-effective amendment thereto (in each case including all exhibits) and such
number of copies of any preliminary Prospectus, Prospectus or Prospectus supplement and such other
documents as the Participating Holders or underwriter may reasonably request in order to facilitate
the disposition of the Registrable Securities by the Participating Holders or underwriters (the
Company hereby consenting to the use (subject to the limitations set forth in Section 4(h) hereof)
of the Prospectus or any amendment or supplement thereto in connection with such disposition);
(d) use its reasonable best efforts to register or qualify the sale of such Registrable
Securities covered by such Registration Statement under such other securities or “blue sky” laws of
such jurisdictions as the Participating Holders shall reasonably request, except that the Company
shall not for any such purpose be required to (i) qualify generally to do business as a foreign
corporation in any jurisdiction where, but for the requirements of this Section 4(d), it would not
be obligated to be so qualified, (ii) subject itself to taxation in any such jurisdiction, or (iii)
to consent to general service of process in any such jurisdiction;
(e) enter into an underwriting agreement in customary form as reasonably requested by Holders;
(f) cause the Company’s counsel and independent accountants to deliver to the underwriters
opinions and comfort letters in customary form as required by any underwriting agreement entered
into by the Holders and the Company;
(g) participate in “road shows” and similar presentations as reasonably requested by the
underwriters;
(h) notify the Participating Holders, at any time when a Prospectus relating thereto is
required to be delivered under the Act within the appropriate period mentioned in
Section 4(b) hereof, of the Company’s becoming aware that the Prospectus included in such
Registration Statement, as then in effect, includes an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing, and, at the request of any
Participating Holder, prepare and furnish to such Participating Holder a reasonable number of
copies of an
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amendment or supplement to such Registration Statement or related 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 not misleading in
light of the circumstances then existing;
(i) notify the Participating Holders as soon as reasonably possible:
(A) when the Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to the Registration Statement or
any post-effective amendment, when the same has become effective;
(B) of any request by the Commission or any other Federal or state
governmental authority for additional information;
(C) of any request by the Commission or any other Federal or state
governmental authority for amendments or supplements to the Registration
Statement or the Prospectus;
(D) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any order preventing the use
of a related Prospectus, or the initiation (or any overt threats) of any
proceedings for such purposes; and
(E) of the receipt by the Company of any written notification of the
suspension of the qualification of any of the Registrable Securities for
sale in any jurisdiction or the initiation (or overt threats) of any
proceeding for that purpose.
(j) use its reasonable best efforts to cause all such Registrable Securities to be listed or
quoted on a national securities exchange or automated quotation system on which the class of
Registrable Securities being registered is then listed or quoted, if such Registrable Securities
are not already so listed or quoted;
(k) in the event of the issuance of any stop order suspending the effectiveness of the
Registration Statement or of any order suspending or preventing the use of any related Prospectus
or suspending the qualification of any Registrable Securities included in the Registration
Statement for sale in any jurisdiction, use all commercially reasonable efforts promptly to obtain
its withdrawal.
5. Obligations of Holders.
(a) Each Holder shall furnish in writing to the Company such information regarding itself, the
Registrable Securities held by it and the intended method of disposition of the Registrable
Securities held by it, as shall be reasonably required to effect the registration
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(including
registration under “blue sky” laws) of such Registrable Securities and shall execute such documents
in connection with such registration as the Company may be reasonably required to effect such
registration. At least seven (7) business days prior to the first anticipated filing date of any
Registration Statement, the Company shall notify each Holder of the information the Company
requires from such Holder if such Holder elects to have any of the Registrable Securities included
in the Registration Statement. Each Holder shall provide such information to the Company at least
two (2) business days prior to the first anticipated filing date of such Registration Statement if
such Holder elects to have any of the Registrable Securities included in the Registration
Statement. If a Holder fails to fulfill its obligations under the preceding sentence, the Company
shall not be required to include the Registrable Securities of a Holder in a Registration
Statement.
(b) Each Holder, by its acceptance of the Registrable Securities, agrees to cooperate with the
Company as reasonably requested by the Company in connection with the preparation and filing of a
Registration Statement hereunder, unless such Holder has notified the Company in writing of its
election to exclude all of its Registrable Securities from such Registration Statement.
(c) Each Holder shall, upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 4(h) or 4(i)(C)-4(i)(E) hereof or the commencement of any
Black-Out Period (as defined herein), forthwith discontinue disposition of Registrable Securities
pursuant to the Prospectus or Registration Statement covering such Registrable Securities until
otherwise notified by the Company or until the Holders shall have received copies of the
supplemented or amended Prospectus contemplated by Section 4(h) or 4(i)(C)-4(i)(E) hereof, and, if
reasonably so directed by the Company, the Holders shall deliver to the Company (at the Company’s
expense) all copies, other than permanent file copies then in the Holders’ possession, of the
Prospectus covering such Registrable Securities current at the time of receipt of such notice.
Each Holder acknowledges and agrees that it will comply with any prospectus delivery requirements
of the Act as applicable to it in connection with sales of Registrable Securities.
6. Lock-Up Period Agreement. In consideration for the Company agreeing to its obligations
under this Agreement, the Holders agree in connection with any underwritten registration of the
Company’s securities (other than pursuant to a Registration Statement (A) on Form S-8 or any
successor form relating to securities issuable pursuant to any benefit plan; (B) on Form S-4, or
any successor form relating to an exchange offer or relating to a transaction pursuant to Rule 145
under the Act; or (C) on Form S-3 or any successor form with respect to securities registered in
connection with dividend reinvestment plans and similar plans only) and provided that (A) all
officers and directors of the Company and all other persons with registration rights enter into
similar agreements, and (B) nothing contained herein shall prohibit any holder of
Registrable Securities from transferring any Common Stock to a trust established for estate
planning purposes so long as the trust executes a similar undertaking, that, upon the request of
the underwriters managing any underwritten offering of the Company’s securities, not to sell, make
any short sale of, loan, grant any option for the purchase of, or otherwise dispose of any of the
Common Stock (other than those included in the registration) without the prior written
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consent of
such underwriters for up to 180 days after the effective date of such registration, provided,
however, that such transfer restrictions shall not apply to any privately negotiated transaction
that complies with applicable securities laws and to which the managing underwriters do not
reasonably object.. Notwithstanding anything to the contrary set forth herein, the terms of this
Section 6 may not be amended or modified, directly or indirectly, without the express written
consent of each Holder of Registrable Securities detrimentally affected by such amendment or
modification and any such amendment or modification made without such Holder’s consent shall not be
applicable to that Holder.
7. Rule 144 Reporting. With a view toward making available to the Holders the benefits of
certain rules and regulations of the Commission that may permit the sale of the Common Stock to the
public without registration, the Company agrees to use its reasonable best efforts to:
(a) make and keep current public information available, within the meaning of Rule 144 or any
similar or analogous rule promulgated under the Act until the earlier of: (A) six months after such
date as all of the Registrable Securities may be resold without any volume limitation or (B) such
date as all of the Registrable Securities shall have been resold;
(b) file with the Commission, in a timely manner, all reports and other documents required of
the Company under the Act and the Exchange Act; and
(c) so long as any party hereto owns any Registrable Securities, furnish to such party
forthwith upon request, a written statement by the Company as to its compliance with the reporting
requirements of Rule 144, the Act and the Exchange Act; a copy of the most recent annual or
quarterly report of the Company; and such other reports and documents as such party may reasonably
request in availing itself of any rule or regulation of the Commission allowing it to sell any such
securities without registration.
8. Transfer of Registration Rights. The provisions of this Agreement shall be binding upon
and inure to the benefit of the Holders and their respective successors and assigns. This Agreement
may not be assigned by any Holder (whether by operation of law or otherwise) without the prior
written consent of the Company, provided, however, that any Holder may transfer or assign, in whole
or from time to time in part, to one or more persons, which shall be an “accredited investor” as
defined in Rule 501(a) of Regulation D, as amended under the 1933 Act, and which shall agree in
writing to be bound by the terms and conditions of this Agreement, an executed counterpart of which
shall be furnished to the Company, its rights hereunder in connection with the transfer of
Registrable Securities by such Holder to such person, provided that such Holder complies with all
laws applicable thereto, provides written notice of assignment to the Company promptly after such
assignment is effected, and such transfer complies with any
transfer restrictions in the Purchase Agreement. This Agreement may not be assigned by the
Company (whether by operation of law or otherwise) without the prior written consent of the Holders
of a majority of Registrable Securities, provided, however, that the Company may assign its rights
and delegate its duties hereunder to any surviving or successor corporation in connection with a
merger or consolidation of the Company with another corporation, or a sale,
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transfer or other
disposition of all or substantially all of the Company’s assets to another corporation, without the
prior written consent of the Holders of a majority of the Registrable Securities, after notice duly
given by the Company to each Holder.
9. Black-Out Period. Notwithstanding anything to contrary herein, for not more than thirty
(30) consecutive days or for a total of not more than 60 days in any 12-month period, the Company
may delay, suspend the use of, or withdraw any Registration Statement or qualification of
Registrable Securities if the Company in good faith determines that any such Registration
Statement, or the use thereof, would materially and adversely affect any material corporate event
or would otherwise require disclosure of nonpublic information which the Company determines, in its
reasonable judgment, is not in the best interests of the Company at such time, or, in the Company’s
discretion, if the Company determines that an event described in Section 4(h) has occurred (a
“Black-Out Period”); provided, that the Company shall promptly (a) notify the Holders in writing of
the existence of (but in no event, without the prior written consent of an Holder, shall the
Company disclose to such Holder any of the facts or circumstances regarding) a Black-Out Period,
(b) advise the Holders in writing to cease all sales under the Registration Statement until the end
of the Black-Out Period and (c) use commercially reasonable efforts to terminate a Black-Out Period
as promptly as practicable.
10. Confidentiality. No Holder may use any confidential information received by it pursuant
to this Agreement or the Purchase Agreement (including notices pursuant to Sections 4(h) or 9
hereof) in violation of the Securities Exchange Act of 1934 or other applicable state or federal
securities law or reproduce, disclose, or disseminate such information to any other person (other
than his or her attorneys, agents and representatives having a need to know, and then only if they
expressly agree to be bound hereby), unless such information has been made available to the public
generally (other than by such recipient in violation hereof) or such recipient is required to
disclose such information by a governmental body or regulatory agency or by law in connection with
a transaction that is not otherwise prohibited hereby, and then only after reasonable notice to the
Company and it has been provided an opportunity to object to such disclosure, with the reasonable
cooperation and assistance of such Holder. Each Holder at the Company’s expense agrees to comply
with the Securities Act of 1933 and other applicable laws in connection with the offer or sale of
any Registrable Securities. The obligations in this Section 10 shall survive the expiration or
termination of this Agreement.
11. General Indemnification.
(a) In connection with any registration or qualification of the Registrable Securities under
this Agreement, (i) the Company shall indemnify and hold harmless each of the Holders, including
but not limited to each Person, if any, who controls a Holder within the meaning of Section 15 of
the Act, against all losses, claims, damages, liabilities and expenses
(including but not limited to reasonable expenses incurred in investigating, preparing and
defending against any claim) to which a Holder or such controlling person may become subject under
the Act, the Exchange Act or otherwise, insofar as the same arise out of or are based upon or are
caused by any untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus (as amended or supplemented if the Company shall have
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furnished
any amendments or supplements thereto) or Free Writing Prospectus furnished pursuant to this
Agreement or insofar as the same arise out of or are based upon or are 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 not misleading, except insofar as such losses, claims, damages,
liabilities or expenses are ultimately determined to have arisen out of or were based upon or were
caused by any untrue statement or alleged untrue statement or omission or alleged omission based
upon written information furnished to the Company by or on behalf of any Holder or any such control
person for inclusion in any Registration Statement, Prospectus (and any amendments or supplements
thereto) or Free Writing Prospectus, or to the extent that such information relates to such Holder
or such Holder’s proposed method of distribution of Registrable Securities and was reviewed and
approved by such Holder for use in the Registration Statement, such Prospectus or such form of
Prospectus or in any amendment or supplement thereto, or in the case of an occurrence of a Black
Out Period or of an event of the type specified in Section 4(h), the use by such Holder of an
outdated or defective Prospectus after the Company has notified such Holder in writing that the
Prospectus is outdated or defective and prior to the receipt by such Holder of an amended or
supplemented Prospectus, but only if and to the extent that following the receipt of such amended
or supplemented Prospectus the misstatement or omission giving rise to such liability would have
been corrected, and (ii) each Holder, severally and not jointly, shall indemnify the Company, its
affiliates, any person who signed any Registration Statement, and their respective officers,
directors and control persons against all such losses, claims, damages, liabilities and expenses
(including but not limited to reasonable expenses incurred in investigating, preparing and
defending against any claim) insofar as the same are ultimately determined to have arisen out of or
were based upon or were caused by any such untrue statement or alleged untrue statement or any such
omission or alleged omission based upon written information furnished to the Company by or on
behalf of such Holder or any such control person for the inclusion in any Registration Statement,
Prospectus (and any amendments or supplements thereto) or Free Writing Prospectus, or to the extent
that such information relates to such Holder or such Holder’s proposed method of distribution of
Registrable Securities and was reviewed and approved by such Holder for use in the Registration
Statement, such Prospectus or such form of Prospectus or in any amendment or supplement thereto, or
in the case of an occurrence of a Black Out Period or of an event of the type specified in Section
4(h), the use by such Holder of an outdated or defective Prospectus after the Company has notified
such Holder in writing that the Prospectus is outdated or defective and prior to the receipt by
such Holder of an amended or supplemented Prospectus, but only if and to the extent that following
the receipt of such amended or supplemented Prospectus the misstatement or omission giving rise to
such liability would have been corrected.
(b) Notice of, and Procedures for, Collecting Indemnification. Promptly upon receipt by a
party indemnified under this Agreement of notice of the commencement of any
action against such indemnified party in respect of which indemnity or reimbursement may be
sought against any indemnifying party under this Agreement, such indemnified party shall notify the
indemnifying party in writing of the commencement of such action, but the failure so to notify the
indemnifying party shall not relieve it of any liability which it may have to any indemnified party
under this Agreement unless such failure shall materially and adversely affect the defense of such
action. In case notice of commencement of any such action shall be given to
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the indemnifying party
as above provided, the indemnifying party shall be entitled to participate in and, to the extent it
may wish, jointly with any other indemnifying party similarly notified, to assume the defense of
such action at its own expense, with counsel chosen by it and reasonably satisfactory to such
indemnified party. The indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of such counsel
(other than reasonable expenses incurred in investigating, preparing and defending against any
claim) shall be paid by the indemnified party unless (a) the indemnifying party agrees to pay the
same, (b) the indemnifying party fails to assume the defense of such action with counsel reasonably
satisfactory to the indemnified party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party), or (c) the named
parties to any such action (including any impleaded parties) have been advised by such counsel that
representation of such indemnified party and the indemnifying party by the same counsel would be
inappropriate under applicable standards of professional conduct (in which case the indemnifying
party shall not have the right to assume the defense of such action on behalf of such indemnified
party). In the event that either of the circumstances described in clauses (b) and (c) of the
sentence immediately preceding shall occur, the indemnified party shall have the right to select a
separate counsel and to assume such legal defense and otherwise to participate in the defense of
any such action, with the reasonable expenses and fees of such separate counsel and other
reasonable expenses related to such participation to be reimbursed by the indemnifying party as
incurred. No indemnifying party shall be liable for any settlement entered into without its
consent, which consent shall not be unreasonably withheld or delayed.
(c) Contribution. If the indemnification provided for in this Section 11 is unavailable to an
indemnified party under paragraphs (a) and (b) hereof, other than as expressly set forth above, in
respect of any losses, claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims or damages (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Holder(s) on the other hand from the offering of the Registrable Securities, and any
other securities included in the Registration Statement which gave rise to such losses, claims,
damages, liabilities or expenses, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the Company on the one hand
and the Holder(s) on the other in connection with the statements or omissions that resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand and the Holder(s) on
the other shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received by the Company bears to
the total net proceeds from the offering (before deducting expenses) received by the Holder(s), in
each case as set forth in the table on the cover page of the prospectus. The relative fault of the
Company on the one hand and the Holder(s) on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
- 14 -
Company or by the Holder(s) and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
12. Notices. All notices or other communications or deliveries required or permitted to be
provided hereunder shall be in writing and shall be deemed given and effective on the earliest of
(a) the date of transmission, if such notice or communication is delivered via facsimile at the
facsimile number specified in this Section prior to 6:30 p.m. (Central Time) on a Business Day, (b)
the next Business Day after the date of transmission, if such notice or communication is delivered
via facsimile at the facsimile number or via e-mail at the e-mail address specified in this Section
on a day that is not a Business Day or later than 6:30 p.m. (Central Time) on any Business Day, (c)
the Business Day following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (d) upon actual receipt by the party to whom such notice is required to be
given. The addresses and facsimile numbers for such notices and communications shall be as
follows:
If to the Company:
Bakers Footwear Group, Inc.
0000 Xxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
0000 Xxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
With a copy to:
Xxxxx Xxxx LLP
One Metropolitan Square
000 Xxxxx Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: J. Xxxx Xxxxxx, Esq.
Xxxxxxx X. Xxxx, Esq.
One Metropolitan Square
000 Xxxxx Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: J. Xxxx Xxxxxx, Esq.
Xxxxxxx X. Xxxx, Esq.
If to a Holder:
To the address, facsimile number or e-mail address set forth under the Holder’s name on the
signature page hereto;
or such other address, facsimile number or e-mail as may be designated in writing hereafter,
in the same manner, by such Person.
13. Amendment and Waiver. Subject to the last sentence of Section 15 and except as otherwise
expressly provided herein, the provisions of this Agreement may be amended or waived only upon the
prior written consent of the Company and the Holders of a majority of the Registrable Securities.
- 15 -
14. Counterparts. This Agreement may be executed in two or more counterparts, all of which
taken together shall constitute one instrument.
15. Binding on Successors and Assigns. Except as set forth in Section 8, no party may assign
any of its rights or delegate any of its duties under this Agreement without the prior consent of
the other party. This Agreement shall be binding upon, inure to the benefit of and be enforceable
by and against the parties hereto and their respective successors and permitted assigns in
accordance with the terms hereof. Additional persons may join in this Agreement as Holders to the
extent provided in the Purchase Agreement.
16. Headings. The headings in the sections and subsections of this Agreement are inserted for
convenience only and in no way alter, amend, modify, limit or restrict the contractual obligations
of the parties.
17. Severability. Whenever possible, each provision of this Agreement will be interpreted in
such manner as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
18. Entire Agreement; Law Governing. All prior negotiations and agreements between the
parties hereto are superseded by this Agreement, and there are no representations, warranties,
understandings or agreements other than those expressly set forth herein, except as modified in
writing concurrently herewith or subsequent hereto. This Agreement shall be governed by and
construed and interpreted according to the internal laws of the State of New York, determined
without reference to conflicts of law principles.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly
authorized representatives as of the day and year first above written.
| BAKERS FOOTWEAR GROUP, INC.: | ||||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Name: Xxxxx X. Xxxxxx | ||||||
| Title: Chairman and Chief Executive Officer | ||||||
| XXXXXX XXXXXX, LTD.: | ||||||
| By: | /s/ Xxxxxx Xxxxxx | |||||
| Name: Xxxxxx Xxxxxx | ||||||
| Title: Chief Financial Officer | ||||||
| Address for Notice: | ||||||
| 00-00 Xxxxxxx Xxxxxx | ||||||
| Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000 | ||||||
| Facsimile: 000-000-0000 | ||||||
| Attn: Xxxxxx Xxxxxx | ||||||
| email: xxxxxxxxxxxx@xxxxxxxxxxx.xxx | ||||||
[Signature page to the Registration Rights Agreement]
