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EXHIBIT 4(b)
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
as of this [_____] day of [__________], 1997, between THE XXXXX-XXXXXXX STORES
CORP., an Ohio corporation (the "Company"), and [_______________] ("Holder").
WHEREAS, on October 17, 1995, each of the Company and six of its
subsidiaries, The El-Bee Chargit Corp., The Bee-Gee Shoe Corp., Margo's LaMode,
Inc., XxXxxx Wholesale Corp., E-B Community Urban Redevelopment Corp. and EBA,
Inc. filed with the United States Bankruptcy Court for the Southern District of
Ohio, Western Division (the "Bankruptcy Court") voluntary petitions for relief
under chapter 11 of the United States Bankruptcy Code;
WHEREAS, the execution and delivery of this Agreement is contemplated
by the Joint Plan of Reorganization of The Xxxxx-Xxxxxxx Stores Corp. and Its
Subsidiaries, confirmed by an order entered by the Bankruptcy Court on
[__________], 1997 (the "Plan"); and
WHEREAS, to further the purposes of the Plan, the Company has agreed to
provide the registration rights set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
1. DEFINITIONS. In addition to the terms that are defined above,
capitalized terms not defined herein shall have the meanings ascribed thereto in
the Plan and the following terms shall have the following meanings as used in
this Agreement:
"Affiliate" shall mean any Person that directly or indirectly
controls, is controlled by, or is under common control with, such
Person. A Person shall be deemed to control another Person if such
Person owns 10% or more of any equity interest in the "controlled"
Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the "controlled"
Person, whether through ownership of stock or partnership interests, by
contract, agreement or understanding (whether oral or written), or
otherwise.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Form S-3" shall mean a Registration Statement on Form S-3 as
promulgated by the SEC or any successor form that is substantially
similar thereto.
"Holders" shall mean Holder, any Affiliate of Holder (other
than the Company) and any transferees of Holder who are holders of
record of any Registrable Shares, and any combination of them.
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"NASD" shall have the meaning set forth in Section 5(a)(xv)
hereof.
"New Common Stock" shall mean the New Common Stock, par value
$[_____] per share, of the Company.
"Other Holders" shall mean Persons who are holders of record
of equity securities of the Company who, subsequent to the date hereof,
acquire outstanding shares of New Common Stock pursuant to a
transaction with the Company and to whom the Company grants
registration rights pursuant to a written agreement and in accordance
with the terms hereof.
"Person" shall mean any individual, corporation, association,
partnership, group (as defined in Section 13(d)(3) of the Exchange
Act), limited liability company, joint venture, business trust or
unincorporated organization, or a government or any agency or political
subdivision thereof.
"Prospectus" shall mean 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 Shares covered by such Registration Statement and all
other amendments and supplements to the prospectus, including
post-effective amendments and all material incorporated by reference in
such prospectus.
"Registrable Shares" shall mean: (i) any New Common Stock
issued to Holder pursuant to the Plan; and (ii) any equity securities
of the Company issued or distributed after the date hereof in respect
of the New Common Stock referred to in clause (i) above by way of any
stock dividend, stock split or other distribution, recapitalization or
reclassification, and any equity securities of the Company acquired by
a Holder upon exercise or conversion of any such securities. As to any
particular Registrable Share, such Registrable Share shall cease to be
a Registrable Share when (A) it shall have been sold, transferred or
otherwise disposed of or exchanged pursuant to a Registration Statement
under the Securities Act or (B) it shall have been distributed to the
public pursuant to Rule 144 (or any successor provision) under the
Securities Act.
"Registration Expenses" shall have the meaning set forth in
Section 7(b) hereof.
"Registration Statement" shall mean any appropriate
Registration Statement, including, without limitation, and subject to
the terms and provisions contained herein, a Registration Statement on
Form X-0, Xxxx X-0 or Form S-3 or any successor form thereto, of the
Company in a registration that covers the sale of any of the
Registrable Shares pursuant to the provisions of Sections 2 or 4 of
this Agreement, including the Prospectus, amendments and supplements to
such Registration Statement, post-effective amendments, all exhibits
and all material incorporated by reference in such Registration
Statement.
"SEC" shall mean the Securities and Exchange Commission or
any successor agency thereto.
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"Securities Act" shall mean the Securities Act of 1933, as
amended.
2. INCIDENTAL REGISTRATIONS
(a) RIGHT TO INCLUDE REGISTRABLE SHARES. Each time the Company
shall determine to file a registration statement under the Securities Act in
connection with the proposed offer and sale for cash of any New Common Stock
(other than registration statements on Form X-0, Xxxx X-0 or Form S-3 relating
to a dividend reinvestment plan) either by it or by any holders of its
outstanding New Common Stock, the Company will give prompt written notice of its
determination to each Holder and of such Holder's rights under this Section 2,
at least [30] days prior to the anticipated filing date of such Registration
Statement. Upon the written request of each Holder made within [21] days after
the receipt of any such notice from the Company, (which request shall specify
the Registrable Shares intended to be disposed of by such Holder), the Company
will use its best efforts to effect the registration under the Securities Act of
all Registrable Shares which the Company has been so requested to register by
the Holders thereof; provided, however, that (i) if, at any time after giving
written notice of its intention to register any securities and prior to the
effective date of the Registration Statement filed in connection with such
registration, the Company shall determine for any reason not to proceed with the
proposed registration of the securities to be sold by it, the Company may, at
its election, give written notice of such determination to each Holder of
Registrable Shares and thereupon shall be relieved of its obligation to register
any Registrable Shares in connection with such registration (but not from its
obligation to pay the Registration Expenses in connection therewith); and (ii)
if such registration involves an underwritten offering, all Holders of
Registrable Shares requesting to be included in the Company's registration must
sell their Registrable Shares to the underwriters on the same terms and
conditions as apply to the Company, with such differences, including any with
respect to indemnification and liability insurance, as may be customary or
appropriate in combined primary and secondary offerings. If a registration
requested pursuant to this Section 2(a) involves an underwritten offering, any
Holder of Registrable Shares requesting to be included in such registration may
elect, in writing prior to the effective date of the Registration Statement
filed in connection with such registration, not to register such securities in
connection with such registration. No registration effected under this Section 2
shall relieve the Company of its obligations to effect registrations upon
request under Section 4 hereof.
(b) PRIORITY IN INCIDENTAL REGISTRATION. If a registration
pursuant to this Section 2 involves an underwritten offering and the managing
underwriter or underwriters in good faith advises the Company in writing that,
in its opinion, the number of securities requested and otherwise proposed to be
included in such registration exceeds the largest number which can be sold in
such offering without having an adverse effect on such offering (including the
price at which such securities can be sold), the Company will include in such
registration, to the extent of the number which the Company is so advised can be
sold in such offering (i) if the registration is a primary registration on
behalf of the Company, (A) first, the securities proposed to be registered by
the Company, and (B) second, the Registrable Shares and the securities held by
other Persons requested to be included in such registration pro rata in
accordance with the numbers of securities requested to be included by all
Holders of Registrable Shares and other Persons requesting to be included; and
(ii) if the registration is a secondary registration on behalf of other Persons,
the Registrable Shares and securities of the other Persons included in such
registration pro rata in accordance with the
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numbers of securities requested to be included by the holders of Registrable
Shares and the numbers of other securities proposed to be registered by the
other Persons. The Company will not grant any registration rights having
priorities that conflict or are otherwise inconsistent with this Section 2(b).
3. HOLDBACK AGREEMENTS.
(a) If any registration of Registrable Shares shall be in
connection with an underwritten public offering, the Holders agree not to effect
any public sale or distribution (except in connection with such public
offering), of any equity securities of the Company, or of any security
convertible into or exchangeable or exercisable for any equity security of the
Company (in each case, other than as part of such underwritten public offering),
during the [90]-day period (or such lesser period as the managing underwriter or
underwriters may permit) beginning on the effective date of such registration,
if, and to the extent, the managing underwriter or underwriters of any such
offering determines such action is necessary or desirable to effect such
offering; provided, however, that each Holder has received the written notice
required by Section 2(a) hereof; and provided, further, that each Holder shall
not be obligated to comply with such restrictions arising as a result of an
underwritten public offering subject to Section 2 hereof more than once in any
twelve-month period.
(b) If any registration of Registrable Shares shall be in
connection with any underwritten public offering, the Company agrees not to
effect any public sale or distribution (except in connection with such public
offering) of any of its equity securities or of any security convertible into or
exchangeable or exercisable for any of its equity securities (in each case other
than as part of such underwritten public offering) during the [90]-day period
(or such lesser period as the managing underwriter or underwriters may permit)
beginning on the effective date of such registration, and the Company also
agrees to use reasonable efforts to cause each member of the management of the
Corporation who holds any equity security and each other holder of [5]% or more
of the outstanding shares of any equity security, or of any security convertible
into or exchangeable or exercisable for any equity security, of the Company
purchased from the Company (at any time other than in a public offering) to
agree not to effect any public sale or distribution of any equity securities of
the Company (except in connection with such offering) or any security
convertible into or exchangeable or exercisable for any equity security of the
Company (in each case, other than as part of such underwritten offering), during
the [90]-day period (or such lesser period as the managing underwriter or
underwriters may permit) beginning on the effective date of such registration.
4. REGISTRATION ON REQUEST.
(a) REQUEST BY HOLDERS. At such time that the Company
qualifies for the use of Form S-3 and upon the written request of the Holders of
at least [25]% of the Registrable Shares that the Company effect the
registration under the Securities Act of all or part of such Holders'
Registrable Shares, and specifying the amount (which shall not be less than
[50]% of the outstanding Registrable Shares held by each Holder that requests
registration) and intended method of disposition thereof, the Company will
promptly give notice of such requested registration to all other Holders of
Registrable Shares and, as expeditiously as possible, use its best efforts to
effect the registration under the Securities Act of: (i) the Registrable Shares
which the Company has been so requested to register by Holders of at least [25]%
of the Registrable Shares; and (ii) all other
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Registrable Shares which the Company has been requested to register by any other
Holder thereof by written request received by the Company within 21 days after
the giving of such written notice by the Company (which request shall specify
the intended method of disposition of such Registrable Shares); provided,
however, that the Company shall not be required to effect more than one
registration during any twelve-month period pursuant to this Section 4; and
provided, further, that the Company shall not be obligated to file a
Registration Statement relating to a registration request under this Section 4
within a period of three months after the effective date of any other
Registration Statement of the Company; and provided, further, that in no event
shall the Company be required to effect more than three registrations pursuant
to this Section 4. Promptly after the expiration of the [21]-day period referred
to in clause (ii) above, the Company will notify all the Holders to be included
in the registration of the other Holders and the number of shares of Registrable
Shares requested to be included therein. The Holders initially requesting a
registration pursuant to this Section 4 may, at any time prior to the effective
date of the Registration Statement relating to such registration, revoke such
request by providing a written notice to the Company revoking such request;
provided, however, that, in the event the Holders shall have made a written
request for a demand registration (i) which is subsequently withdrawn by the
Holders after the Company has filed a Registration Statement with the SEC in
connection therewith which has been declared effective by the SEC or (ii) which
is not declared effective solely as a result of the failure of Holders to take
all actions reasonably required in order to have the registration and the
related Registration Statement declared effective by the SEC, then, in any such
event, such demand registration shall be counted as a demand registration for
purposes of this Section 4(a).
(b) EFFECTIVE REGISTRATION STATEMENT. A registration requested
pursuant to this Section 4 will not be deemed to have been effected unless it
has become effective under the Securities Act and has remained effective for 90
days or such shorter period as all the Registrable Shares included in such
registration have actually been sold thereunder. In addition, if within 60 days
after it has become effective, the offering of Registrable Shares pursuant to
such registration is interfered with by any stop order, injunction or other
order or requirement of the SEC or other governmental agency or court, such
registration will be deemed not to have been effected for purposes of this
Section 4.
(c) PRIORITY IN REQUESTED REGISTRATIONS. If a requested
registration pursuant to this Section 4 involves an underwritten offering and
the managing underwriter or underwriters in good faith advises the Company in
writing that, in its opinion, the number of securities requested to be included
in such registration (including securities of the Company which are not
Registrable Shares) exceeds the largest number of securities which can be sold
in such offering without having an adverse effect on such offering (including
the price at which such securities can be sold), then the Company will include
in such registration to the extent of the number which the Company is so advised
can be sold in such offering (i) first, Registrable Shares requested to be
included in such registration by any Holder and the securities held by other
Persons requested to be included in such registration pro rata among such
Holders and other Persons on the basis of the number of securities requested to
be included by such Holders and other Persons and (ii) second, securities of the
Company proposed by the Company to be sold for its own account.
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5. REGISTRATION PROCEDURES.
(a) If and whenever the Company is required by the provisions
of Sections 2 or 4 hereof to use its best efforts to effect or cause the
registration of Registrable Shares, the Company shall as expeditiously as
possible:
(i) prepare and, in any event within [60] days after
the end of the period within which a request for registration may be
given to the Company, file with the SEC a Registration Statement with
respect to such Registrable Shares and use its best efforts to cause
such Registration Statement to become effective; provided, however,
that before filing such Registration Statement, the Company will
furnish to one counsel selected by the Holders of a majority of the
Registrable Shares covered by such Registration Statement copies of the
Registration Statement;
(ii) 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 a period not in excess of 90 days and to comply
with the provisions of the Securities Act, the Exchange Act and the
rules and regulations promulgated thereunder with respect to the
disposition of all the securities covered by such Registration
Statement during such period in accordance with the intended methods of
disposition by the Holders thereof set forth in such Registration
Statement; provided, however, that (A) before filing any such
amendments or supplements thereto, the Company will furnish to one
counsel selected by the Holders of a majority of the Registrable Shares
covered by such Registration Statement copies of all documents proposed
to be filed and (B) the Company will notify each Holder of Registrable
Shares covered by such Registration Statement of any stop order issued
or threatened by the SEC, any other order suspending the use of any
preliminary prospectus or of the suspension of the qualification of the
Registration Statement for offering or sale in any jurisdiction, and
take all reasonable actions required to prevent the entry of such stop
order, other order or suspension or to remove it if entered;
(iii) furnish to each Holder and each underwriter, if
applicable, of Registrable Shares covered by such Registration
Statement such number of copies of the Registration Statement and of
each amendment and supplement thereto (in each case including all
exhibits), such number of copies of the Prospectus included in such
Registration Statement, in conformity with the requirements of the
Securities Act, and such other documents as each Holder of Registrable
Shares covered by such Registration Statement may reasonably request in
order to facilitate the disposition of the Registrable Shares by such
Holder;
(iv) use its best efforts to register or qualify such
Registrable Shares covered by such resignation statement under the
state securities or blue sky laws of such jurisdictions as each Holder
of Registrable Shares covered by such Registration Statement and, if
applicable, each underwriter, may reasonably request, and do any and
all other acts and things which may be reasonably necessary to
consummate the disposition in such jurisdictions of the Registrable
Shares owned by such Holder (provided, however, that the
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Company will not be required to (A) qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify
but for this clause (iv), (B) subject itself to taxation in any such
jurisdiction or (C) consent to general service of process in any such
jurisdiction);
(v) use its best efforts to cause such Registrable
Shares covered by such Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the Holders thereof to consummate the disposition
of such Registrable Shares;
(vi) if, at any time when a Prospectus relating to
the Registrable Shares is required to be delivered under the Securities
Act, any event shall have occurred as the result of which any such
Prospectus as then in effect would include an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
immediately give written notice thereof to each Holder and the managing
underwriter or underwriters, if any, of such Registrable Shares and
prepare and furnish to each such Holder a reasonable number of copies
of an amended or supplemental Prospectus as may be necessary so that,
as thereafter delivered to the purchasers of such Registrable Shares,
such Prospectus shall not include an untrue statement of material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(vii) use its best efforts to list such Registrable
Shares on any securities exchange on which similar securities of the
Company are then listed, and enter into customary agreements including
a listing application and indemnification agreement in customary form,
provided that the applicable listing requirements are satisfied, and
provide a transfer agent and registrar for such Registrable Shares
covered by such Registration Statement not later than the effective
date of such Registration Statement;
(viii) enter into such customary agreements
(including an underwriting agreement in customary form) and take such
other actions as each Holder of Registrable Shares being sold or the
underwriter or underwriters, if any, reasonably request in order to
expedite or facilitate the disposition of such Registrable Shares,
including customary indemnification and opinions;
(ix) use its best efforts to obtain a "cold comfort"
letter or letters from the Company's independent public accountants in
customary form and covering matters of the type customarily covered by
"cold comfort" letters as the Holders of at least [25]% of the
Registrable Shares being sold or the underwriters retained by such
Holders shall reasonably request;
(x) make available for inspection by representatives
of any Holder of Registrable Shares covered by such Registration
Statement, by any underwriter participating in any disposition to be
effected pursuant to such Registration Statement and by any attorney,
accountant or other agent retained by such Holders or any such
underwriter, all financial and other records, pertinent corporate
documents and properties of the Company and its
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subsidiaries' officers, directors and employees to supply all
information and respond to all inquiries reasonably requested by such
Holders or any such representative, underwriter, attorney, accountant
or agent in connection with such Registration Statement;
(xi) promptly prior to the filing of any document
which is to be incorporated by reference into the Registration
Statement or the Prospectus (after initial filing of the Registration
Statement), provide copies of such document to counsel to the Holders
of Registrable Shares covered by such Registration Statement and to the
managing underwriter or underwriters, if any any make the Company's
representatives available for discussion of such document;
(xii) otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC, and make available to
its security holders, as soon as reasonably practicable after the
effective date of the Registration Statement, an earnings statement
which shall satisfy the provisions of Section 11(a) of the Securities
Act and the rules and regulations promulgated thereunder;
(xiii) use its best efforts to provide a CUSIP number
for all Registrable Shares not later than the effective date of the
applicable Registration Statement, and provide the applicable transfer
agents with printed certificates for the Registrable Shares which are
in a form eligible for deposit with the Depository Trust Company;
(xiv) notify counsel for the Holders of Registrable
Shares included in such Registration Statement and the managing
underwriter or underwriters, if any, immediately and confirm the notice
in writing, (A) when the Registration Statement, or any post-effective
amendment to the Registration Statement, shall have become effective,
or any supplement to the Prospectus or any amendment Prospectus shall
have been filed, (B) of the receipt of any comments from the SEC and
(C) of any request of the SEC to amend the Registration Statement or
amend or supplement the Prospectus or for additional information;
(xv) cooperate with each seller of Registrable Shares
and each underwriter, if any, participating in the disposition of such
Registrable Shares and their respective counsel in connection with any
filings required to be made with the National Association of Securities
Dealers, Inc. (the "NASD"); and
(xvi) during the period when the Prospectus is
required to be delivered under the 1933 Act, promptly file all
documents required to be filed with the SEC pursuant to Section 13(a),
13(c), 14 or 15(d) of the 0000 Xxx.
(b) Each Holder of Registrable Shares hereby agrees that, upon
receipt of any notice from the Company of the happening of any event of the type
described in Section 5(a)(vi) hereof, such Holder shall forthwith discontinue
disposition of such Registrable Shares covered by such Registration Statement or
related Prospectus until such Holder's receipt of the copies of the supplemental
or amended Prospectus contemplated by Section 5(a)(vi) hereof, and, if so
directed by the Company, such Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such
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Registrable Shares at the time of receipt of such notice. In the event the
Company shall give any such notice, the period mentioned in Section 5(a)(ii)
hereof shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to Section 5(a)(vi)
hereof and including the date when such Holder shall have received the copies of
the supplemental or amended Prospectus contemplated by Section 5(a)(vi) hereof.
If for any other reason the effectiveness of any Registration Statement filed
pursuant to Section 4 hereof is suspended or interrupted prior to the expiration
of the time period regarding the maintenance of the effectiveness of such
Registration Statement required by Section 5(a)(ii) hereof so that Registrable
Shares may not be sold pursuant thereto, the applicable time period shall be
extended by the number of days equal to the number of days during the period
beginning with the date of such suspension or interruption to and ending with
the date when the sale of Registrable Shares pursuant to such Registration
Statement may be recommenced.
(c) Each Holder hereby agrees to provide the Company, upon
receipt of its request, with such information about such Holder to enable the
Company to comply with the requirements of the Securities Act and to execute
such certificates as the Company may reasonably request in connection with such
information and otherwise to satisfy any requirements of law.
6. UNDERWRITTEN REGISTRATIONS. Subject to the provisions of Sections 2,
3 and 4 hereof, any of the Registrable Shares covered by a Registration
Statement may be sold in an underwritten offering at the discretion of the
Holder thereof. In the case of an underwritten offering pursuant to Section 2
hereof, the managing underwriter or underwriters that will administer the
offering shall be selected by the Company. In the case of any underwritten
offering pursuant to Section 4 hereof, the managing underwriter or underwriters
that will administer the offering shall be selected by the Holders of a majority
of the Registrable Shares to be registered, provided, that such underwriter or
underwriters are reasonably satisfactory to the Company.
7. EXPENSES.
(a) The fees, costs and expenses of all registrations in
accordance with Section 2 and Section 4 hereof shall be borne by the Company,
subject to the provisions of Section 7(b) hereof.
(b) The fees, costs and expenses of registration to be borne
as provided in Section 7(a) hereof shall include, without limitation, all
expenses incident to the Company's performance of or compliance with this
Agreement, including without limitation all SEC and stock exchange or NASD
registration and filing fees and expenses, reasonable fees and expenses of any
"qualified independent underwriter" and its counsel as may be required by the
rules of the NASD, fees and expenses of compliance with securities or blue sky
laws (including without limitation reasonable fees and disbursements of counsel
for the underwriters, if any, or for the selling Holders, in connection with
blue sky qualifications of the Registrable Shares), rating agency fees, printing
expenses (including expenses of printing certificates for Registrable Shares and
Prospectuses), messenger, telephone and delivery expenses, the fees and expenses
incurred in connection with the listing of the securities to be registered on
each securities exchange or national market system on which similar securities
issued by the Company are then listed, fees and disbursements of counsel for the
Company and all independent certified public accountants (including the expenses
of any annual audit, special audit and "cold comfort" letters required by or
incident to such performance
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and compliance), securities laws liability insurance (if the Company in its sole
discretation decides to obtain such insurance), the fees and disbursements of
underwriters customarily paid by issuers or sellers of securities (including,
without limitation, expenses relating to "road shows" and other marketing
activities), the reasonable fees of one counsel for the Holders in connection
with each such registration retained by the Holders of a majority of the
Registrable Shares being registered, the reasonable fees and expenses of any
special experts retained by the Company in connection with such registration,
and fees and expenses of other persons retained by the Company (but not
including any underwriting discounts or commissions or transfer taxes, if any,
attributable to the sale of Registrable Shares by such Holders) (collectively,
"Registration Expenses").
8. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. In the event of any
registration of any securities of the Company under the Securities Act pursuant
to Sections 2 or 4 hereof, the Company will, and it hereby does, indemnify and
hold harmless, to the extent permitted by law, each of the Holders of any
Registrable Shares covered by such Registration Statement, each Affiliate of
such Holder and their respective directors and officers or general and limited
partners (and the directors, officers, general and limited partners, affiliates
and controlling Persons thereof), each other Person who participates as an
underwriter in the offering or sale of such securities and each other Person, if
any, who controls such Holder or any such underwriter within the meaning of the
Securities Act (collectively, the "Indemnified Parties"), against any and all
losses, claims, damages or liabilities, joint or several, and expenses
(including any amounts paid in any settlement effected with the Company's
consent) to which any Indemnified Party may become subject under the Securities
Act, state securities or blue sky laws, common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof, whether or not such Indemnified Party is a party thereto) or expenses
arise out of or are based upon: (i) any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement under
which such securities were registered under the Securities Act, any preliminary,
final or summary Prospectus contained therein, or any amendment or supplement
thereto; (ii) 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; or (iii) any violation by the Company of any federal, state or
common law rule or regulation applicable to the Company and relating to action
required of or inaction by the Company in connection with any such registration,
and the Company will reimburse such Indemnified Party for any legal or any other
expenses reasonably incurred by it in connection with investigating or defending
any such loss, claim, liability, action or proceeding; provided, however, that
the Company shall not be liable to any Indemnified Party in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in such
Registration Statement or amendment or supplement thereto or in any such
preliminary, final or summary Prospectus in reliance upon and in conformity with
written information with respect to such Holder furnished to the Company by such
Holder for use in the preparation thereof; provided, further, however, that the
Company shall not be liable to any Indemnified Party in any such case to the
extent any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of or is based upon the failure of an
Indemnified Party to deliver any amendment or supplement to a Registration
Statement which corrects any untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement to which such
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amendment or supplement pertains. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such Holder or
any Indemnified Party and shall survive the transfer of such securities by such
Holder.
(b) INDEMNIFICATION BY THE HOLDERS AND UNDERWRITERS. The
Company may require, as a condition to including any Registrable Shares in any
Registration Statement filed in accordance with Sections 2 or 4 hereof, that the
Company shall have received an undertaking reasonably satisfactory to it from
the Holders of such Registrable Shares or any underwriter to indemnify and hold
harmless (in the same manner and to the same extent as set forth in Section 8(a)
hereof) the Company with respect to any statement or alleged statement in or
omission or alleged omission from such Registration Statement, any preliminary,
final or summary Prospectus contained therein, or any amendment or supplement,
if such statement or alleged statement or omission or alleged omission was made
in reliance upon and in conformity with information with respect to the Holders
of the Registrable Shares being registered or such underwriter furnished to the
Company by such Holders or such underwriter for use in the preparation of such
Registration Statement, preliminary, final or summary Prospectus or amendment or
supplement, or a document incorporated by reference into any of the foregoing.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any of the Holders, or any
of their respective Affiliates, directors, officers or controlling Persons, and
shall survive the transfer of such securities by such Holder.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party hereunder of written notice of the commencement of any action
or proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 8, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
latter of the commencement of such action; provided, however, that the failure
of the indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under this Section 8, except to the extent
that the indemnifying party is actually materially prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
the indemnifying party will be entitled to participate in and to assume the
defense thereof, with counsel satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the indemnified party shall have the
right to employ counsel to represent the indemnified party and its respective
controlling persons, directors, officers, general or limited partners, employees
or agents who may be subject to liability arising out of any claim in respect of
which indemnity may be sought by the indemnified party against such indemnifying
party under this Section 8 if: (i) the employment of such counsel shall have
been authorized in writing by such indemnifying party in connection with the
defense of such action; (ii) the indemnifying party shall not have within a
reasonable time employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action or counsel; or (iii) any indemnified
party shall have reasonably concluded based upon written advice of counsel that
there may be defenses available to such indemnified party or its respective
controlling persons, directors, officers, employees or agents which are in
conflict with those available to an indemnifying party; provided, however, that
the indemnifying party shall not be obligated to pay for more than the expenses
of one firm of separate
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counsel for the indemnified party (in addition to the reasonable fees and
expenses of one firm serving as local counsel). No indemnifying party will
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in respect to such
claim or litigation.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 8 shall for any reason be unavailable to any indemnified party under
Section 8(a) or 8(b) hereof or is insufficient to hold it harmless in respect of
any loss, claim, damage or liability, or any action in respect of any loss,
claim, damage or liability, or any action in respect thereof referred to
therein, then each indemnifying party shall 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 (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the indemnified party
and indemnifying party 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) but also the relative
fault of the indemnified party and indemnifying party 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. Notwithstanding any other provision of this Section 8(d), no
Holder of Registrable Shares shall be required to contribute an amount greater
than the dollar amount of the net proceeds received by such Holder with respect
to the sale of any such Registrable Shares. 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.
(e) OTHER INDEMNIFICATION. Indemnification similar to that
specified in the preceding subdivisions of this Section 8 (with appropriate
modifications) shall be given by the Company and each Holder of Registrable
Shares with respect to any required registration or other qualification of
securities under any federal or state law or regulation or governmental
authority other than the Securities Act.
9. RULE 144. The Company covenants that it will file in a timely manner
the reports required to be filed by it under the Securities Act and the Exchange
Act and the rules and regulations promulgated thereunder (or, if the Company is
not required to file such reports, it will, upon the request of any Holder of
Registrable Shares, make publicly available such information), and it will take
such further action as any Holder of Registrable Shares may reasonably request,
all to the extent required from time to time to enable such Holder to sell
Registrable Shares without registration under the Securities Act within the
limitation of the exemptions provided by (i) Rule 144 under the Securities Act,
as such Rule may be amended from time to time or (ii) any similar rule or
regulation hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Shares, the Company will deliver to such Holder a written statement
as to whether it has complied with such requirements.
10. LIMITED LIABILITY. Notwithstanding any other provision of this
Agreement, neither the general partners, limited partners or managing directors,
or any directors or officers of any general or limited partners, nor any future
general partners, limited partners or managing directors, if any, of the Holders
shall have any personal liability for performance of any obligation of the
Holders under this Agreement.
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11. ASSIGNABILITY. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
permitted assigns. In addition, and whether or not any express assignment shall
have been made, the provisions of this Agreement which are for the benefit of
the parties hereto other than the Company shall also be for the benefit of and
enforceable by any subsequent Holder of any Registrable Shares. The Company may
not assign any of its rights or delegate any of its duties under this Agreement
without the prior written consent of the Holders of a majority of the
Registrable Shares. Any purported assignment in violation of this Section 11
shall be void.
12. NOTICES. Any and all notices, designations, consents, offers,
acceptances or any other communication shall be in writing and shall be
delivered by certified or registered mail (first class postage prepaid),
guaranteed overnight delivery or confirmed by facsimile:
(a) If to the Company, at:
The Xxxxx-Xxxxxxx Stores Corp.
[ADDRESS]
Attention:
Telephone:
Facsimile:
With a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
[ADDRESS]
Attention:
Telephone:
Facsimile:
(b) If to any Holder, to the address appearing on the books of
the Company or of the transfer agent and registrar for its New Common Stock.
All such notices and communications shall be deemed to have been duly
given and effective: when delivered by hand, if personally delivered; two
business days after being deposited in the mail, postage prepaid, if mailed; and
when receipt acknowledged, if telecopied.
13. NO INCONSISTENT AGREEMENTS. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with the
rights granted to the Holders in this Agreement.
14. RELATIONSHIP TO PLAN. The principal purpose of this Agreement is to
aid in the implementation of the Plan and, therefore, this Agreement
incorporates and is subject to, the provisions of the Plan and the Confirmation
Order. To that end, the Company shall have full power and authority to take any
action consistent with the purpose and provisions of the Plan and the
Confirmation Order. In the event that any provisions of this Agreement are found
to be inconsistent with the provisions of the Plan or the Confirmation Order,
the provisions of the Plan or the
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Confirmation Order shall control; provided, however, that provisions of this
Agreement adopted by amendment following substantial consummation (as such term
is used in Section 1127(b) of the Bankruptcy Code) of the Plan shall control
over provisions of the Plan or the Confirmation Order.
15. SPECIFIC PERFORMANCE. The Company acknowledges that the rights
granted to the Holders in this Agreement are of a special, unique and
extraordinary character, and that any breach of this Agreement by the Company
could not be compensated for by damages. Accordingly, if the Company breaches
its obligations under this Agreement, the Holders shall be entitled, in addition
to any other remedies that they may have, to enforcement of this Agreement by a
decree of specific performance requiring the Company to fulfill its obligations
under this Agreement.
16. ENFORCEMENT OF WARRANT. All disputes arising in connection with
this Warrant shall be brought before and finally determined by The United States
District Court for the Southern District of Ohio. The Company consents to
personal jurisdiction in any action arising in connection with this Warrant
brought in the United States District Court for the Southern District of Ohio
and to service of process upon it in the manner set forth in Section 12 hereof.
17. SEVERABILITY. If any provision of this Agreement or any portion
thereof is finally determined to be unlawful or unenforceable, such provision or
portion thereof shall be deemed not to be a part of this Agreement and any
portion of such invalidated provision that is not invalidated by such a
determination, shall remain in full force and effect.
18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which,
together, shall constitute one and the same instrument.
19. DEFAULTS. A default by any party to this Agreement in such party's
compliance with any of the conditions or covenants hereof or performance of any
of the obligations of such party hereunder shall not constitute a default by any
other party.
20. AMENDMENTS, WAIVERS. This Agreement may not be amended, modified or
supplemented and no waivers of or consents to departures from the provisions
hereof may be given unless consented to in writing by the Company and the
holders of a majority of the Registrable Shares; provided, however, that no such
amendment, supplement, modification or waiver shall deprive any Holder of any
rights under Sections 2 or 4 hereof without the consent of such Holder.
21. CAPTIONS. The captions contained in this Agreement are for
reference purposes only and are not part of this Agreement.
22. ATTORNEYS' FEES. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the successful party shall be entitled to recover reasonable
attorneys' fees in addition to any other available remedy.
23. ENTIRE AGREEMENT. This Agreement contains the entire agreement
among the parties hereto with respect to the transactions contemplated herein
and understandings among the parties relating to the subject matter hereof. Any
and all previous agreements and understandings between
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or among the parties hereto regarding the subject matter hereof are, whether
written or oral, superseded by this Agreement.
24. GOVERNING LAW. This Agreement is made pursuant to and shall be
construed in accordance with the laws of the State of Ohio, without regard to
that state's conflicts of laws principles. The parties hereto submit to the
non-exclusive jurisdiction of the courts of the State of Ohio in any action or
proceeding arising out of or relating to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized officers as of the date aforesaid.
THE XXXXX-XXXXXXX STORES CORP.
By:
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Name:
Title:
[---------------]
By:
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Name:
Title:
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