EXECUTION COPY
Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT ("Agreement"), dated as of
July 4, 1998, is between XXXXXXXX'X, INC., a Tennessee corporation
("Parent"), and certain specified stockholders of SAKS HOLDINGS,
INC., a Delaware corporation (the "Company").
WHEREAS, Parent and the Company have entered into an Agreement
and Plan of Merger (the "Merger Agreement") contemporaneously with
the execution of this Agreement pursuant to which stockholders of
the Company will receive Common Stock of the Parent ("Parent Common
Stock");
WHEREAS, following consummation of the transactions
contemplated by the Agreement and Plan of Merger (the "Merger"),
Parent will own 100% of the stock of the Company;
WHEREAS, the stockholders of the Company party hereto are the
only affiliates of the Company that will be limited under Rule 145
in their ability to dispose of their shares of Parent Common Stock
received in the Merger; and
WHEREAS, the parties hereto desire to enter into this
Agreement which sets forth the terms of certain registration rights
applicable to the Registrable Securities (as defined below)
subsequent to the Merger.
NOW, THEREFORE, upon the terms and conditions, and the mutual
promises herein contained, and for good and valuable consideration,
the receipt and adequacy of which are acknowledged, the parties
hereto agree as follows:
1. Certain Definitions. Capitalized terms not defined
herein shall have the same meaning as they have in the Merger
Agreement. As used in this Agreement, the following initially
capitalized terms shall have the following meanings:
(a) "Affiliate" means, with respect to any person, any other
person who, directly or indirectly, is in control of, is controlled
by or is under common control with the former person.
(b) "Holder" means any of the former stockholders of the
Company listed on Exhibit A attached hereto or their respective
successors, permitted transferees or assignees.
(c) "In Registration" means, with respect to the Parent, that
there has been an organizational meeting with underwriters
regarding a proposed public offering of Parent's securities.
(d) "Registrable Securities" means Parent Common Stock
received in the Merger, any stock or other securities into which or
for which such Parent Common Stock may hereafter be changed,
converted or exchanged, and any other securities issued to holders
of such Parent Common Stock (or such shares into which or for which
such shares are so changed, converted or exchanged) upon any
reclassification, share combination, share subdivision, share
dividend, merger, consolidation or similar transactions or events,
provided that (x) any such securities shall cease to be Registrable
Securities (i) if a registration statement with respect to the sale
of such securities (other than a registration statement relating to
the initial issuance of Parent Common Stock in the Merger) shall
have become effective under the Securities Act and such securities
are sold pursuant to such registration statement, (ii) if such
securities shall have been distributed pursuant to Rule 144, Rule
144A or Rule 145(d) and (y) all such securities held by any Holder
(and all other Holders with whom such Holder should aggregate sales
under Rule 144(e)) shall cease to be Registrable Securities if such
securities do not exceed the amount specified in Rule 144(e)(1)(i).
(e) "Registration Expenses" means all reasonable expenses in
connection with any registration of securities pursuant to this
Agreement including, without limitation, the following: (i) SEC
filing fees; (ii) the fees, disbursements and expenses of Parent's
counsel and accountants in connection with the registration of the
Registrable Securities to be disposed of under the Securities Act;
(iii) all expenses in connection with the preparation, printing and
filing of the registration statement, any preliminary prospectus or
final prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to any Holders,
underwriters and dealers and all expenses incidental to delivery of
the Registrable Securities; (iv) the cost of producing blue sky or
legal investment memoranda; (v) all expenses in connection with the
qualification of the Registrable Securities to be disposed of for
offering and sale under state securities laws, including the fees
and disbursements of counsel for the underwriters or Holders in
connection with such qualification and in connection with any blue
sky and legal investments surveys; (vi) the filing fees incident to
securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the
Registrable Securities to be disposed of; (vii) transfer agents',
depositaries' and registrars' fees and the fees of any other agent
appointed in connection with such offering; (viii) all security
engraving and security printing expenses; (ix) all fees and
expenses payable in connection with the listing of the Registrable
Securities on each securities exchange or inter-dealer quotation
system on which a class of common equity securities of Parent is
then listed and (x) courier, overnight, and delivery expenses;
provided further that Registration Expenses shall not include any
underwriting discounts, commissions or fees attributable to the
sale of the Registrable Securities.
(f) "Restricted Securities" has the same meaning as in Rule
144(a)(3) (as hereinafter defined).
(g) "Rule 144" means Rule 144 promulgated under the
Securities Act, or any successor rule to similar effect.
(h) "Rule 144A" means Rule 144A promulgated under the
Securities Act, or any successor rule to similar effect.
(i) "Rule 145" means Rule 145 promulgated under the
Securities Act, or any successor rule to similar effect.
(j) "SEC" means the United States Securities and Exchange
Commission.
(l) "Securities Act" means the Securities Act of 1933, as
amended, or any successor statute, and the rules and regulations of
the SEC promulgated thereunder.
2. Demand Registration.
(a) At any time after the publication by the Parent of
financial results covering at least 30 days of post Merger combined
operations, upon written notice from the Representatives (as
hereinafter defined) in the manner set forth in Section 11(h)
hereof requesting that the Parent effect the registration under the
Securities Act of any or all of the Registrable Securities, which
notice shall specify the intended method or methods of disposition
of such Registrable Securities, the Parent shall use its reasonable
best efforts to effect, in the manner set forth in Section 5, the
registration under the Securities Act of all of such Registrable
Securities for disposition in accordance with the intended method
or methods of disposition stated in such request, provided that:
(i) if, within 5 business days of receipt of a
registration request pursuant to this Section 2(a), Parent is
advised in writing (with a copy to the Holder requesting
registration) by the lead underwriter of the proposed offering
described below that, in such firm's good faith opinion, a
registration at the time and on the terms requested would
materially and adversely affect any immediately planned
offering of securities by Parent as to which Parent was In
Registration prior to receipt of notice requesting
registration pursuant to this Section 2(a) (a "Transaction
Blackout"), Parent shall not be required to effect a
registration pursuant to this Section 2(a) until the earliest
of (A) the abandonment of such offering or (B) 120 days after
receipt by the Holder requesting registration of the lead
underwriter's written opinion referred to above in this
subsection (i));
(ii) if, while a registration request is pending pursuant
to this Section 2(a), Parent has determined in good faith that
the filing of a registration statement would require the
disclosure of material non-public information that Parent has
a bona fide business purpose for preserving as confidential,
Parent shall not be required to effect a registration pursuant
to this Section 2(a) until the earlier of (1) the date upon
which such material information is otherwise disclosed to the
public or ceases to be material or Parent is able to so comply
with applicable SEC requirements, as the case may be, and (2)
90 days after Parent makes such good-faith determination;
(iii) Parent shall not be obligated to file a
registration statement relating to a registration request
pursuant to this Section 2: (A) if such registration request
is for a number of Registrable Securities with a then market
value of less than $150 million or (B) more than 36 months
have elapsed since the Effective Time;
(iv) at least four months have elapsed since the last
request made by the Representatives on behalf of any Holders;
and
(v) no more than three demands under this Section 2
shall be required to be honored.
(b) Notwithstanding any other provision of this Agreement to
the contrary:
(i) a registration requested on behalf of a Holder
pursuant to this Section 2, shall not be deemed to have been
effected (and, therefore, not requested for purposes of
subsection 2(a)), (A) unless the registration statement filed
with respect to such Holder's Registrable Securities has
become effective or (B) if after it has become effective such
registration is interfered with by any stop order, injunction
or other order or requirement of the SEC or other governmental
agency or court for any reason other than a misrepresentation
or an omission by such Holder and, as a result thereof, all of
the Registrable Securities requested to be registered cannot
be distributed in accordance with the plan of distribution set
forth in the related registration statement or (C) if the
conditions to closing specified in the purchase agreement or
underwriting agreement entered into in connection with such
registration are not satisfied (other than by reason of an act
or omission by such Holder) or waived by the underwriters; and
(ii) a registration requested by a Holder pursuant to
this Section 2 and later withdrawn at the request of such
Holder shall be deemed to have been effected (and, therefore,
requested for purposes of Section 2(a)), whether withdrawn by
the Holder prior to or after the effectiveness of such
requested registration, unless such request is withdrawn by a
Holder prior to the filing of a registration statement with
the SEC; and
(c) In the event that any registration pursuant to this
Section 2 shall involve, in whole or in part, an underwritten
offering, a Holder shall have the right to designate an underwriter
reasonably satisfactory to Parent as a co-manager of such
underwritten offering and Parent shall have the right to designate
the lead underwriter reasonably satisfactory to the Holder of such
underwritten offering.
(d) Parent shall have the right to cause the registration of
additional securities for sale for the account of any person
(including Parent) in any registration of Registrable Securities
requested by a Holder pursuant to Section 2(a); provided that
Parent shall not have the right to cause the registration of such
additional securities if such person is advised in writing (with a
copy to the Parent) by the lead underwriter that, in such firm's
good faith opinion, registration of such additional securities
would materially and adversely affect the offering and sale of the
Registrable Securities then contemplated by such Holder.
3. Piggyback Registration. If Parent at any time proposes
to register any of its Common Stock or any other of its common
equity securities, including any security convertible into or
exchangeable for any of its common equity securities (collectively,
"Other Securities") under the Securities Act (other than a
registration described in paragraph (c) of this Section), whether
or not for sale for its own account, in a manner which would permit
registration of Registrable Securities for sale for cash to the
public under the Securities Act, it will each such time give prompt
written notice to Investcorp Management Services, LTD., as
representative of the Holders (the "Representative") of its
intention to do so at least 20 business days prior to the
anticipated filing date of the registration statement relating to
such registration. Such notice shall offer Holders the opportunity
to include in such registration statement any or all of the
Registrable Securities owned by each such Holder. Upon the receipt
of Parent's notice (which request shall specify the number of
Registrable Securities intended to be disposed of and the intended
method of disposition thereof), Parent shall effect, in the manner
set forth in Section 5, in connection with the registration of the
Other Securities, the registration under the Securities Act of all
Registrable Securities which Parent has been so requested to
register, to the extent required to permit the disposition (in
accordance with such intended methods thereof) of the Registrable
Securities so requested to be registered, provided that:
(a) if at any time after giving written notice of its
intention to register other securities and prior to the effective
date of such registration, Parent shall determine for any reason
not to register or to delay registration of such securities, Parent
may, at its election, give written notice of such determination to
the Representative and, thereupon, (A) in the case of a
determination not to register, Parent shall be relieved of its
obligation to register any Registrable Securities in connection
with such registration and (B) in the case of a determination to
delay such registration, Parent shall be permitted to delay
registration of any Registrable Securities requested to be included
in such registration for the same period as the delay in
registering such Other Securities;
(b) (i) if the registration referred to in the first sentence
of this Section 3 is to be an underwritten primary registration on
behalf of Parent, and the managing underwriter advises Parent in
writing (with a copy to the Representative) that, in such firm's
good faith opinion, such offering would be materially and adversely
affected by the inclusion therein of the Registrable Securities
requested to be included therein, Parent shall include in such
registration: (1) first, all securities Parent proposes to sell for
its own account ("Parent Securities"), and (2) second, up to the
full number of (A) Registrable Securities held by Holders requested
to be included in such registration and (B) other securities, if
any, requested to be included therein by the holders thereof (the
"Other Holders"), in excess of the number or dollar amount of
securities Parent proposes to sell which, in the good-faith opinion
of the managing underwriter, can be so sold without so materially
and adversely affecting such offering (and, if less than the full
number of such Registrable Securities and securities held by Other
Holders, allocated pro rata among the Holders of such Registrable
Securities and the Other Holders on the basis of the number of
securities requested to be registered in such registration by each
such Holder and each such Other Holder); and (ii) if the
registration referred to in the first sentence of this Section 3 is
to be an underwritten secondary registration on behalf of Other
Holders and the managing underwriter of such secondary registration
on behalf of Other Holders and the managing underwriter of such
secondary offering advises Parent in writing that in its good-faith
opinion such offering would be materially and adversely affected by
the inclusion therein of the Registrable Securities requested to be
included therein, Parent shall include in such registration the
amount of securities (including Registrable Securities) that the
managing underwriter advises can be so sold without materially
affecting such offering, allocated pro rata among the Other Holders
and the Holders on the basis of the number of securities (including
Registrable Securities) requested to be included therein by each
Other Holder and each Holder.
(c) Parent shall not be required to effect any registration
of Registrable Securities under this Section 3 incidental to the
registration of any of its securities in connection with mergers,
acquisitions, exchange offers, subscription offers, dividend
reinvestment plans or stock option or other executive or employee
benefit or compensation plans; and
(d) no registration of Registrable Securities effected under
this Section 3, standing alone, shall relieve Parent of its
obligation to effect a registration of Registrable Securities
pursuant to Section 2 hereof.
4. Expenses, Underwriting Discounts, Commissions and Fees.
Parent agrees to pay all Registration Expenses with respect to an
offering pursuant to Section 2 hereof, provided that, Parent shall
have no obligation to pay any underwriting discounts, commissions
or fees or the fees and expenses of Holders' counsel relating to
Registrable Securities, all of which shall be borne by the Holders.
5. Registration and Qualifications. If and whenever Parent
is required to use its reasonable best efforts to effect the
registration of any Registrable Securities under the Securities Act
as provided in Section 2 or 3 hereof, Parent shall:
(a) prepare and file a registration statement under the
Securities Act relating to the Registrable Securities to be offered
as soon as practicable, but in no event later than 30 days (45 days
if the applicable registration form is other than Form S-3) after
the date notice is given, and use its reasonable best efforts to
cause the same to become effective within 60 days after the date
notice is given (90 days if the applicable registration form is
other than Form S-3);
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used
in connection therewith as may be necessary to keep such
registration statement effective for 90 days (or, in the case of an
underwritten offering, such shorter time period as the underwriters
may require);
(c) furnish to the Representative and to any underwriter of
such Registrable Securities such number of conformed copies of such
registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of
copies of the prospectus included in such registration statement
(including each preliminary prospectus and any summary prospectus),
in conformity with the requirements of the Securities Act, and such
other documents, as the Representative or such underwriter may
reasonably request in order to facilitate the public sale of the
Registrable Securities, and a copy of any and all transmittal
letters or other correspondence to, or received from the SEC or any
other governmental agency or self-regulatory body or other body
having jurisdiction (including any domestic or foreign securities
exchange) relating to such offering;
(d) use its reasonable best efforts to register or qualify
all Registrable Securities covered by such registration statement
under the securities or blue sky laws of such jurisdictions as may
be necessary to offer and sell the Registrable Securities in those
jurisdictions, and use its reasonable best efforts to obtain all
appropriate registration, permits and consents required in
connection therewith, and do any and all other acts and things
which may be necessary or advisable to enable the Holders or any
such underwriter to consummate the disposition in such
jurisdictions of its Registrable Securities covered by such
registration statement; provided that Parent shall not for any such
purpose be required to register or qualify generally to do business
as a foreign corporation in any jurisdiction wherein it is not so
qualified, or to subject itself to taxation in any such
jurisdiction, or to consent to general service of process in any
such jurisdiction;
(e) (i) use its reasonable best efforts to furnish an opinion
of counsel for Parent addressed to the underwriters and the
Representatives and dated the date of the closing under the
underwriting agreement (if any) (or if such offering is not
underwritten, dated the effective date of the registration
statement), and (ii) use its reasonable best efforts to furnish a
letter addressed to the Representative, if permissible under
applicable accounting practices, and signed by the independent
public accountants who have audited Parent's financial statements
included in such registration statement, in each such case covering
substantially the same matters with respect to such registration
statement (and the prospectus included therein) as are customarily
covered in opinions of issuer's counsel and in accountants' letters
delivered to underwriters in underwritten public offerings of
securities and such other matters as the Representative may
reasonably request and, in the case of such accountants' letter,
with respect to events subsequent to the date of such financial
statements;
(f) immediately notify each Holder of Registrable Securities
included in such registration (each a "Selling Holder") in writing
(i) at any time when a prospectus relating to a registration
pursuant to Section 2 or 3 hereof is required to be delivered under
the Securities Act of the happening of any event as a result of
which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of any material fact
or omits to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and (ii)
of any request by the SEC or any other regulatory body or other
body having jurisdiction in respect of any amendment of or
supplement to any registration statement or other document relating
to such offering, and in either such case (i) or (ii) at the
request of the Representative, prepare and furnish to the
Representative a reasonable number of copies of a supplement to or
an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they are made, not
misleading;
(g) furnish unlegended certificates representing ownership of
the Registrable Securities being sold in such denominations as
shall be requested by the Representative or the underwriters; and
(h) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the SEC relating to the
registration and distribution of the Registrable Securities, and
take all other reasonable steps necessary and appropriate to effect
all registrations in the manner contemplated by this Agreement.
6. Underwriting; Due Diligence.
(a) If requested by the underwriters for any underwritten
offering of Registrable Securities pursuant to a registration
requested under this Agreement, Parent shall enter into an
underwriting agreement with such underwriters for such offering,
such agreement to contain such representations and warranties by
Parent and such other terms and provisions as are customarily
contained in underwriting agreements with respect to secondary
distribution, including, without limitation, indemnities and
contribution substantially to the effect and to the extent provided
in Section 7 hereof and the provision of opinions of counsel and
accountants' letters to the effect and to the extent provided in
Section 5(e) hereof. The Selling Holders on whose behalf the
Registrable Securities are to be distributed by such underwriters
shall be parties to any such underwriting agreement and the
representations and warranties by, and the other agreements on the
part of, Parent to and for the benefit of such underwriters, shall
also be made to and for the benefit of such Selling Holders. Such
underwriting agreement shall also contain such representations and
warranties by the Selling Holders on whose behalf the Registrable
Securities are to be distributed as are customarily contained in
underwriting agreements with respect to secondary distributions.
(b) In the event that any registration pursuant to Section 3
shall involve, in whole or in part, an underwritten offering,
Parent may require the Registrable Securities requested to be
registered pursuant to Section 3 to be included in such
underwriting on the same terms and conditions as shall be
applicable to the other securities being sold through underwriters
under such registration. If requested by the underwriters for such
underwritten offering, the Selling Holders on whose behalf the
Registrable Securities are to be distributed shall enter into an
underwriting agreement with such underwriters, such agreement to
contain such representations and warranties by the Selling Holders
and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions,
including without limitation, indemnities and contribution
substantially to the effect and to the extent provided in Section
7 hereof. Such underwriting agreement shall also contain such
representations and warranties by Parent and such other person or
entity for whose account securities are being sold in such offering
as are customarily contained in underwriting agreements with
respect to secondary distributions.
(c) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the
Securities Act, Parent shall give the Representative and the
underwriters, if any, and their respective counsel and accountants,
such reasonable and customary access to its books and records and
such opportunities to discuss the business of Parent with its
officers and the independent public accountants who have certified
Parent's financial statements as shall be necessary, in the opinion
of the Representative and such underwriters or their respective
counsel, to conduct a reasonable investigation within the meaning
of the Securities Act.
7. Indemnification and Contribution.
(a) In the case of each offering of Registrable Securities
made pursuant to this Agreement, Parent agrees to indemnify and
hold harmless each Holder, its officers and directors, each
underwriter of Registrable Securities so offered and each person,
if any, who controls any of the foregoing persons within the
meaning of Section 15 of the Securities Act, from and against any
and all claims, liabilities, losses, damages, expenses and
judgments, joint or several, to which they or any of them may
become subject, under the Securities Act or otherwise, including
any amount paid in settlement of any litigation commenced or
threatened, and shall promptly reimburse them, as and when
incurred, for any reasonable legal or other expenses incurred by
them in connection with investigating any claims and defending any
actions, insofar as such losses, claims, damages, liabilities or
actions shall arise out of, or shall be based upon, any untrue
statement or alleged untrue statement of a material fact contained
in the registration statement (or in any preliminary or final
prospectus included therein, or any amendment thereto or supplement
thereto, or in any document incorporated by reference therein, or
any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading); provided, however, that Parent shall not
be liable to a particular Holder in any such case to the extent
that any such loss, claim, damage, liability or action arises out
of, or is based upon, any untrue statement or alleged untrue
statement, or any omission, if such statement or omission shall
have been made in reliance upon and in conformity with information
relating to such Holder furnished to Parent in writing by or on
behalf of such Holder specifically for use in the preparation of
the registration statement (or in any preliminary or final
prospectus included therein) or any amendment thereof or supplement
thereto. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of a Holder
and shall survive the transfer of such securities. The foregoing
indemnity agreement is in addition to any liability which Parent
may otherwise have to each Holder, its officers and directors,
underwriters of the Registrable Securities or any controlling
person of the foregoing; provided, further, that, as to any
underwriter or any person controlling any underwriter, this
indemnity does not apply to any loss, liability, claim, damage or
expense arising out of or based upon any untrue statement or
alleged untrue statement or omission or alleged omission in any
preliminary prospectus if a copy of a prospectus was not sent or
given by or on behalf of an underwriter to such person asserting
such loss, claim, damage, liability or action at or prior to the
written confirmation of the sale of the Registrable Securities as
required by the Securities Act and such untrue statement or
omission had been corrected in such prospectus.
(b) In the case of each offering made pursuant to this
Agreement, each Holder of Registrable Securities included in such
offering, by exercising its registration rights hereunder, agrees
to indemnify and hold harmless Parent, its officers and directors
and each person, if any, who controls any of the foregoing (within
the meaning of Section 15 of the Securities Act), from and against
any and all claims, liability, losses, damages, expenses and
judgments, joint or several, to which they or any of them may
become subject, under the Securities Act or otherwise, including
any amount paid in settlement of any litigation commenced, or
threatened, and shall promptly reimburse them, as and when
incurred, for any legal or other expenses incurred by them in
connection with investigating any claims and defending any actions,
insofar as any such losses, claims, damages, liabilities or actions
shall arise out of, or shall be based upon, any untrue statement or
alleged untrue statement of a material fact contained in the
registration statement (or in any preliminary or final prospectus
included therein) or any amendment thereof or supplement thereto,
or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the
extent that such untrue statement of a material fact is contained
in, or such material fact is omitted from, information relating to
such Holder furnished in writing to Parent by or on behalf of such
Holder specifically for use in the preparation of such registration
statement (or in any preliminary or final prospectus included
therein). The foregoing indemnity is in addition to any liability
which such Holder may otherwise have to Parent, or any of its
directors, officers or controlling persons; provided, however,
that, as to any underwriter or any person controlling any
underwriter, this indemnity does not apply to any loss, liability,
claim, damage or expense arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged
omission in any preliminary prospectus if a copy of a prospectus
was not sent or given by or on behalf of an underwriter to such
person asserting such loss, claim, damage, liability or action at
or prior to the written confirmation of the sale of the Registrable
Securities as required by the Securities Act and such untrue
statement or omission had been corrected in such prospectus. In no
event, however, shall a Holder be required to pay pursuant to this
Section 7(b) an amount in the aggregate in excess of the net
proceeds received by such Holder in connection with the sale of
Registrable Securities in the offering which is the subject of such
loss, claim, damage or liability.
(c) Procedure for Indemnification. Each party indemnified
under paragraph (a) or (b) of this Section 7 shall, promptly after
receipt of notice of any claim or the commencement of any action
against such indemnified party in respect of which indemnity may be
sought, notify the indemnifying party in writing of the claim or
the commencement thereof; provided that the failure to notify the
indemnifying party shall not relieve it from any liability which it
may have to an indemnified party on account of the indemnity
agreement contained in paragraph (a) or (b) of this Section 7,
except to the extent the indemnifying party was actually prejudiced
by such failure, and in no event shall relieve the indemnifying
party from any other liability which it may have to such
indemnified party. If any such claim or action shall be brought
against an indemnified party, and it shall notify the indemnifying
party thereof, the indemnifying party shall be entitled to
participate therein, and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party to assume the
defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided that each indemnified party, its officers
and directors, if any, and each person, if any, who controls such
indemnified party within the meaning of the Securities Act, shall
have the right to employ separate counsel reasonably approved by
the indemnifying party to represent them if the named parties to
any action (including any impleaded parties) include both such
indemnified party and an indemnifying party or an affiliate of an
indemnifying party, and such indemnified party shall have been
advised by counsel either (i) that there may be one or more legal
defenses available to such indemnified party that are different
from or additional to those available to such indemnifying party or
such affiliate or (ii) a conflict may exist between such
indemnified party and such indemnifying party or such affiliate,
and in that event the fees and expenses of one such separate
counsel for all such indemnified parties shall be paid by the
indemnifying party. An indemnified party will not enter into any
settlement agreement which is not approved by the indemnifying
party, which approval shall not to be unreasonably withheld. The
indemnifying party may not agree to any settlement of any such
claim or action which provides for any remedy or relief other than
monetary damages for which the indemnifying party shall be
responsible hereunder, without the prior written consent of the
indemnified party, which shall not be unreasonably withheld, and
any such settlement agreement shall contain a complete and
unconditional release from liability of each indemnified party.
Notwithstanding the foregoing, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated
by this Section 7, the indemnifying party agrees that it shall be
liable for any settlement effected without its written consent if
(i) such settlement is entered into more than 30 business days
after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date
of settlement. In any action hereunder as to which the
indemnifying party has assumed the defense thereof with counsel
reasonably satisfactory to the indemnified party, the indemnified
party shall continue to be entitled to participate in the defense
thereof, with counsel of its own choice, but, except as set forth
above, the indemnifying party shall not be obligated hereunder to
reimburse the indemnified party; for the costs thereof. In all
instances, the indemnified party shall cooperate fully with the
indemnifying party or its counsel in the defense of each claim or
action.
If the indemnification provided for in this Section 7 shall
for any reason be unavailable to an indemnified party in respect of
any loss, claim, damage or liability, or any action in respect
thereof, referred to herein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of
such loss, claim, damage or liability, or action in respect
thereof, in such proportion as shall be appropriate to reflect the
relative fault of the indemnifying party on the one hand and the
indemnified party on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant
equitable considerations. The relative fault shall be determined
by reference to whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material
fact relates to information supplied by the indemnifying party on
the one hand or the indemnified party on the other, the intent of
the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission, but
not by reference to any indemnified party's stock ownership in
Parent. In no event, however, shall a Holder be required to
contribute in excess of the amount of the net proceeds received by
such Holder in connection with the sale of Registrable Securities
in the offering which is the subject of such loss, claim, damage or
liability. The amount paid or payable by an indemnified party as
a result of the loss, claim, damage or liability, or action in
respect thereof, referred to above in this paragraph shall be
deemed to include, for purposes of this paragraph, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
8. Rules 144 and 145. Parent shall take such measures and
file such information, documents and reports as shall be required
by the SEC as a condition to the availability of Rules 144 and 145
(or any successor provisions).
9. No Transfer of Registration Rights.
(a) Holders may not transfer any portion of their rights
under this Agreement except that Holders may transfer such rights
to transferees who agree in writing to the terms and conditions of
this Agreement.
(b) No transfer of registration rights pursuant to this
Section shall be effective unless Parent has received written
notice of an intention to transfer of at least 10 days prior to
Holder's successor entering into a binding agreement to transfer
Registrable Securities. Such notice need not contain proposed
terms or name a proposed transferee. On or before the time of the
transfer, Parent shall receive a written notice stating the name
and address of any transferee and identifying the amount of
Registrable Securities with respect to which the rights under this
Agreement are being transferred and the nature of the rights to
transferred.
(c) After any such transfer, Holder shall retain its rights
under this Agreement with respect to all other Registrable
Securities owned by Holder.
(d) Upon the request of Holder's successor, Parent shall
execute a Registration Rights Agreement with such transferee or a
proposed transferee substantially similar to this Agreement, and
any demand registrations granted to such transferee shall limit the
demand registrations to which Holder is entitled under Section 2(a)
hereof.
10. Miscellaneous.
(a) Injunctions. Each party acknowledges and agrees that
irreparable damage would occur in the event that any of the
provisions of this Agreement was not performed in accordance with
its specific terms or was otherwise breached. Therefore, each
party shall be entitled to an injunction or injunctions to prevent
breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof in any court having
jurisdiction, such remedy being in addition to any other remedy to
which such party may be entitled at law or in equity. Each party
hereby irrevocably waives trial by jury.
(b) Severability. If any term or provision of this Agreement
held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms and provisions set forth
herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated, and each of the parties shall
use its reasonable best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that
contemplated by such term or provision.
(c) Further Assurances. Subject to the specific terms of
this Agreement, each of the parties hereto shall make, execute,
acknowledge and deliver such other instruments and documents, and
take all such other actions, as may be reasonably required in order
to effectuate the purposes of this Agreement and to consummate the
transactions contemplated hereby.
(d) Waivers, etc. No failure or delay on the part of either
party (or the intended third-party beneficiaries referred to
herein) in exercising any power or right hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps
to enforce such a right or power, preclude any other or further
exercise thereof or the exercise of any other right or power. No
modification or waiver of any provision of this Agreement nor
consent to any departure therefrom shall in any event be effective
unless the same shall be in writing and signed by an authorized
officer of each of the parties, and then such waiver or consent
shall be effective only in the specific instance and for the
purpose for which given.
(e) Entire Agreement. This Agreement contains the final and
complete understanding of the parties with respect to its subject
matter. This Agreement supersedes all prior agreements and
understandings between the parties, whether written or oral, with
respect to the subject matter hereof. The paragraph headings
contained in this Agreement are for reference purposes only, and
shall not affect in any manner the meaning or interpretation of
this Agreement.
(f) Counterparts. For the convenience of the parties, this
Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original but all of which together
shall be one and the same instrument.
(g) Amendment. This Agreement may be amended only by a
written instrument duly executed by an authorized officer of each
of the parties.
(h) Notices. Unless expressly provided herein, all notices,
claims, certificates, requests, demands and other communications
hereunder shall be in writing and shall be deemed to be duly given
(i) when personally delivered or (ii) if mailed, registered or
certified mail, postage prepaid, return receipt requested, on the
date the return receipt is executed or the letter refused by the
addressee or its agent or (iii) if sent by overnight courier which
delivers only upon the signed receipt of the addressee, on the date
the receipt acknowledgment is executed or refused by the addressee
or its agent:
(i) if to Parent:
Xxxxxxxx'x, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Mr. R. Xxxx Xxxxxx
Facsimile Number: (000) 000-0000
Xxxxxxxx'x, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxx, Esquire
Facsimile Number: (000) 000-0000
with copies to:
Xxxxx X. Strain, Esquire
Xxxxxx & Xxxxxxx, PC
4000 Bank Xxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile Number: (000) 000-0000
(ii) if to the Representative:
Investcorp Management Services, LTD.
X.X. Xxx 0000
Xxxx Xxxx Xxxxxxxx
Xxxx: H. Xxxxxxx Xxxxxx III
Facsimile Number: (000) 000-0000
With copies to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxx, Xxxx & Xxxxxxxx LLP
Xxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
and
(iii) if to a Holder of Registrable Securities, to the
Representative who shall provide such
communications to the Holders;
or to such other address as may have previously furnished to the
other party in writing in the manner set forth above.
(i) GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE INTERNAL LAWS OF THE STATE
OF DELAWARE.
(j) Assignment; Beneficiaries. Except as provided herein,
the parties may not assign their rights under this Agreement.
Parent may not delegate its obligations under this Agreement.
Notwithstanding the foregoing, it is expressly understood, intended
and agreed by the parties hereto that this Agreement is intended to
benefit the Holders and that each of the Holders, together with
such Holder's permitted successors, assigns and transferees, shall
be a beneficiary of the respective rights, obligations, duties,
privileges and responsibilities under this Agreement and shall be
entitled to enforce the provisions hereof as though such Holder
were a party hereto.
IN WITNESS WHEREOF, Parent and the Company have caused this
Agreement to be duly executed by their authorized representative as
of the date first above written.
PARENT:
XXXXXXXX'X, INC.,
by
Name:
Title:
SHAREHOLDERS:
SAKS FIFTH AVENUE HOLDINGS II LTD.,
by
Name:
Title:
SAKS FIFTH AVENUE INVESTMENTS II LTD.,
by
Name:
Title:
SFA FOLIO LIMITED,
by
Name:
Title:
SFA LABEL LIMITED,
by
Name:
Title:
SFA COLLECTION LIMITED,
by
Name:
Title:
SFA DESIGNER LIMITED,
by
Name:
Title:
FLAIR LIMITED,
by
Name:
Title:
CHEMICAL NOMINEES (GUERNSEY) LTD.,
by
Name:
Title:
SAKS INVESTMENTS LIMITED,
by
Name:
Title:
SAKS EQUITY LIMITED,
by
Name:
Title:
SFA CAPITAL LIMITED,
by
Name:
Title:
BALLET LIMITED,
by
Name:
Title:
DENARY LIMITED,
by
Name:
Title:
GLEAM LIMITED,
by
Name:
Title:
HIGHLANDS LIMITED,
by
Name:
Title:
NOBLE LIMITED,
by
Name:
Title:
OUTRIGGER LIMITED,
by
Name:
Title:
QUILL LIMITED,
by
Name:
Title:
RADIAL LIMITED,
by
Name:
Title:
SHORELINE LIMITED,
by
Name:
Title:
ZINNIA LIMITED,
by
Name:
Title:
EXHIBIT A
Saks Fifth Avenue Holdings II Ltd
Saks Fifth Avenue Investments II Ltd.
SFA Folio Limited
SFA Label Limited
SFA Collection Limited
SFA Designer Limited
Flair Limited
Chase Nominees (Guernsey) Ltd.
Saks Investments Limited
Saks Equity Limited
SFA Capital Limited
Ballet Limited
Denary Limited
Gleam Limited
Highlands Limited
Noble Limited
Outrigger Limited
Quill Limited
Radial Limited
Shoreline Limited
Zinnia Limited
