EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
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This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is
entered into as of August 26, 1997 between Weiner's Stores, Inc., a Delaware
corporation (the "Company"), and Texas Commerce Bank N.A., a national banking
association ("TCB").
W I T N E S S E T H:
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WHEREAS, the Company has authorized 50,000,000 shares of
Common Stock, par value $0.01 per share (the "Common Stock");
WHEREAS, the Plan of Reorganization under Chapter 11 of title
11 of the United States Code for the Company (the "Plan") was confirmed on
August 13, 1997 (the "Effective Date") by order of the United States Bankruptcy
Court for the District of Delaware in Case No. 95-417 (PJW);
WHEREAS, TCB is receiving shares of Common Stock pursuant to
the Plan;
WHEREAS, this Agreement is entered into pursuant to and in
accordance with Section 5.8 of the Plan; and
WHEREAS, in connection with the consummation of the
transactions contemplated by the Plan, the parties hereto are entering into this
Agreement in order to define certain rights and obligations of such parties.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations hereinafter set forth, the parties hereto, intending to be legally
bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
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1.1 Certain Terms. In addition to the terms defined elsewhere
herein, when used herein the following terms shall have the meanings indicated:
"Affiliate" means, with respect to any Person, any Person
controlling, controlled by, or under common control with such Person. For the
purposes of this definition, "control" means the possession of the power to
direct or cause the direction of management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
With respect to any shares of Common Stock, "beneficial"
ownership or "beneficially" owned shall have the same meaning as in Rule 13d-3
under the Exchange Act.
"Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in Houston, Texas are authorized by law to
close.
"Capital Stock" means any and all shares, interests,
participations, or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than
a corporation), and any and all warrants, options, or other rights to purchase
or acquire any of the foregoing.
"Demand Registration" has the meaning set forth in Section 2.1
(a) below.
"Demand Request" has the meaning set forth in Section 2.1(a)
below.
"Effective Date" has the meaning set forth in the recitals to
this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Holder" means a Person who holds Registrable Securities.
"Indemnified Party" has the meaning set forth in Section 7.3
below.
"Indemnifying Party" has the meaning set forth in Section 7.3
below.
"Inspectors" has the meaning set forth in Section 5.10 below.
"Member of Management" means (i) the President, Chief
Executive Officer, Chief Financial Officer and Vice-President -- Marketing and
Sales Promotion of the Company or (ii) any Person holding an office equivalent
or senior to any of the foregoing (but not the Chairman of the Board unless such
Person is otherwise a Member of Management) or (iii) any other Person designated
a Member of Management by the Board of Directors.
"Person" means any natural person, corporation, limited
partnership, general partnership, joint stock company, joint venture,
association, company, trust, bank, trust company, land trust, business trust, or
other organization, whether or not a legal entity, and any government or agency
or political subdivision thereof.
"Records" has the meaning set forth in Section 5.10 below.
"Registrable Securities" means the Common Stock received by
TCB pursuant to the Plan and any other securities issued or issuable with
respect to such Common Stock by way of a share dividend or share split or in
connection with a combination of shares, recapitalization, merger, consolidation
or reorganization; provided, that any Registrable Security will cease to be a
Registrable Security when (a) a registration statement covering such Registrable
Security has been declared effective by the SEC and it has been disposed of
pursuant to such effective registration statement, (b) it is sold under
circumstances in which all of the applicable conditions of Rule 144 (or any
similar provisions then in force) under the Securities Act are met, (c) (i) it
has been otherwise transferred and (ii) the Company has delivered a new
certificate or other evidence of ownership for it not bearing the legend
required pursuant to Section VIII of the Plan and (iii) it may be resold without
subsequent registration under the Securities Act or (d) when all of such
securities may be freely sold publicly without registration pursuant to Rule 144
under the Securities Act or otherwise.
"Registration Expenses" has the meaning set forth in Article
VI below.
"Requesting Holder" means TCB and any other Person who has the
contractual right (whether exercisable alone or in conjunction with other
rights) to require the Company to file a registration statement in respect of
such Person's Registrable Securities.
"SEC" means the Securities and Exchange Commission or any
successor governmental agency.
"Securities Act" means the Securities Act of 1933, as amended,
or any successor federal statute, and the rules and regulations of the
Securities and Exchange Commission thereunder, all as the same shall be in
effect at the time.
Exhibit 4.1 - Page 2
"Subsidiary" means (i) any corporation or other entity a
majority of the Capital Stock of which having ordinary voting power to elect a
majority of the board of directors or other Persons performing similar functions
is at the time owned, directly or indirectly, with power to vote, by the Company
or any direct or indirect Subsidiary of the Company or (ii) a partnership in
which the Company or any direct or indirect Subsidiary is a general partner.
"Suspension Period" means a period of time commencing on the
date on which the Company provides written notice to TCB that there is a
material event pending with respect to the Company and the Company has elected
to require the suspension of the sale by TCB of Registrable Securities pursuant
to any Demand Registration, and ending on the date when TCB is advised in
writing by the Company that such Suspension Period has been terminated.
"Termination Date" has the meaning set forth in Section 9.13
below.
"Underwriter" means a securities dealer which purchases any
Registrable Securities as principal and not as part of such dealer's
market-making activities.
ARTICLE II
DEMAND REGISTRATION
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2.1 Request for Registration. (a) At any time after the date
that is (i) 24 months after the Effective Date and prior to the Termination
Date, TCB may make a written request of the Company (a "Demand Request") for
registration under the Securities Act (a "Demand Registration") of all or part
of TCB's Registrable Securities and (ii) 60 months after the Effective Date and
prior to the Termination Date, TCB may make an additional Demand Request for a
Demand Registration of all or part of TCB's Registrable Securities; provided
that in each case the number of Registrable Securities proposed to be sold by
TCB must be equal to no less than 20% of the number of Registrable Securities
received by TCB pursuant to the Plan.
(b) Each Demand Request shall specify the number of
shares of Registrable Securities proposed to be sold. Subject to Section 4.3,
the Company shall file the Demand Registration within 90 days after receiving a
Demand Request (the "Required Filing Date") and shall use reasonable efforts to
cause the same to be declared effective by the SEC as promptly as practicable
after such filing.
(c) Notwithstanding anything to the contrary
contained in this Agreement, (i) the Company shall not be required to register
TCB's Registrable Securities pursuant to a Demand Registration unless TCB
accepts the terms of the underwriting agreement between the Company and the
managing Underwriter or Underwriters and otherwise complies with the provisions
of Article VIII below and (ii) the Company shall not be required to register any
Registrable Securities pursuant to a Demand Registration more than once in any
one-year period.
2.2 Effective Registration and Expenses. A registration will
not count as a Demand Registration until it has become effective pursuant to the
Securities Act (unless TCB withdraws all its Registrable Securities, in which
case such demand will count as a Demand Registration unless TCB pays all
Registration Expenses in connection with such withdrawn registration), provided
that if, after it has become effective, an offering of Registrable Securities
pursuant to a registration is materially 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.
2.3 Selection of Underwriters. The offering of Registrable
Securities pursuant to a Demand Registration shall be in the form of a "firm
commitment" underwritten offering. The Company, in its sole discretion, shall
select the book-running managing Underwriter and such additional Underwriters to
be used in
Exhibit 4.1 - Page 3
connection with the offering. In the event of any such offering, such
Underwriters and managers and the Company will enter into an agreement
appropriate to the circumstances, containing provisions for, among other things,
compensation, indemnification, contribution, and representations and warranties,
which are usual and customary for similar agreements entered into by investment
bankers of international standing acting in similar transactions.
2.4 Priority on Demand Registrations. No securities to be sold
for the account of any Person (including the Company) other than a Requesting
Holder shall be included in a Demand Registration unless the managing
Underwriter or Underwriters shall advise the Company in writing that the
inclusion of such securities will not potentially impede or interfere with the
offering. Furthermore, in the event the managing Underwriter or Underwriters
shall advise the Requesting Holders that even after exclusion of all securities
of other Persons pursuant to the immediately preceding sentence, the amount of
Registrable Securities proposed to be included in such Demand Registration by
Requesting Holders is sufficiently large to potentially impede or interfere with
the offering, the Registrable Securities of Requesting Holders to be included in
such Demand Registration shall be allocated pro rata among the Requesting
Holders on the basis of the number of shares of Common Stock requested to be
included in such registration by each such Requesting Holder.
2.5 Multiple Demands. If the Company shall receive, within a
period of 30 days, a request to file a registration statement from more than one
Person who has the contractual right (whether exercisable alone or in
conjunction with other rights) to require the Company to file a registration
statement, all such requesting Persons shall be considered "Requesting Holders"
for purposes of this Article II. In the event the Company shall receive a
request to file a Demand Registration statement from any Persons who have the
contractual right to cause the Company to do so other than TCB, the Company
shall promptly (and in any event within five (5) days after its receipt of such
request) notify TCB thereof.
ARTICLE III
PIGGY-BACK REGISTRATION
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3.1 Piggyback Registration Rights. Subject to the provisions
of this Agreement, if the Company proposes to file a registration statement
under the Securities Act with respect to an offering of any equity securities by
the Company for its own account or for the account of any of its equity holders
(other than a registration statement on Form S-4 or Form S-8 or any substitute
form(s) that may be adopted by the SEC or any registration statement filed in
connection with an exchange offer or offering of securities solely to the
Company's existing security holders), then the Company shall give written notice
of such proposed filing to TCB as soon as practicable (but in no event less than
30 days before the anticipated effective date of such registration statement),
and such notice shall offer TCB the opportunity to register such number of
Registrable Securities as TCB may request (a "Piggyback Registration"). Subject
to Section 3.2 hereof, the Company shall include in each such Piggyback
Registration all Registrable Securities requested to be included in the
registration for such offering; provided, that TCB must notify the Company in
writing no later that 15 days after TCB's receipt of such notice from the
Company that TCB is exercising its right under this Section 3.1 to include
Registrable Securities in the Piggyback Registration (which notice shall specify
the number of Registrable Securities so to be included), or else such right
shall be deemed to have been waived by TCB. TCB shall be permitted to withdraw
all or part of TCB's Registrable Securities from a Piggyback Registration at any
time prior to the effective date thereof.
3.2 Selection of Underwriters; Cut-Backs. The Company shall,
in its sole and absolute discretion, select the book-running managing
Underwriter and such additional Underwriters to be used in connection with the
offering. In the event of any such offering, the Company will enter into an
agreement appropriate to the circumstances, containing provisions for, among
other things, compensation, indemnification, contribution, and representations
and warranties, which are usual and customary for similar agreements entered
into by investment bankers of international standing acting in similar
transactions. The Company shall use reasonable efforts to cause the managing
Underwriter of a proposed underwritten offering to permit the
Exhibit 4.1 - Page 4
Registrable Securities requested to be included in the registration statement
for such offering under Section 3.1 or pursuant to other piggyback registration
rights granted by the Company ("Piggyback Securities") to be included on the
same terms and conditions as any similar securities included therein.
Notwithstanding the foregoing, the Company shall not be required to include any
Holder's Piggyback Securities in such offering unless such Holder accepts the
terms of the underwriting agreement between the Company and the managing
Underwriter or Underwriters, and otherwise complies with the provisions of
Article VIII below. If the managing Underwriter or Underwriters of a proposed
underwritten offering advise the Company in writing that in their opinion the
total amount of securities, including Piggyback Securities, to be included in
such offering is sufficiently large to potentially impede or interfere with the
offering, then in such event the securities to be included in such offering
shall be allocated first to the Company and then, to the extent that any
additional securities can, in the opinion of such managing Underwriter or
Underwriters, be sold without any such potential to impede or interfere with the
offering, pro rata among the Holders of Piggyback Securities on the basis of the
number of shares of Common Stock requested to be included in such registration
by each such Holder.
ARTICLE IV
HOLDBACK AGREEMENTS
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4.1 Restrictions on Public Sale by Holder of Registrable
Securities. TCB agrees not to effect any public sale or distribution of the
issue being registered or of any securities convertible into or exchangeable or
exercisable for such securities, including a sale pursuant to Rule 144 under the
Securities Act, during the 14 days prior to, and during the 90-day period
beginning on the effective date of a registration statement filed pursuant
hereto except as part of such registration if and to the extent requested by the
Company in the case of a non-underwritten public offering or if and to the
extent requested by the managing Underwriter or Underwriters in the case of an
underwritten public offering.
4.2 Restrictions on Public Sale by the Company and Others. The
Company agrees (a) not to effect any public sale or distribution of any
securities similar to those being registered, or any securities convertible into
or exchangeable or exercisable for such securities, during the 14 days prior to,
and during the 90- day period beginning on, the effective date of any
registration statement which includes Registrable Securities (unless such sale
or distribution is pursuant to such registration statement and either (i) TCB
consents thereto or (ii) Holders are participating pursuant to Article III
hereof or pursuant to other piggyback registration rights granted by the Company
in such registration statement, such registration statement was filed by the
Company with respect to the sale of securities by the Company and TCB is not
simultaneously participating in a registration statement pursuant to Article II
hereof); and (b) that any agreement entered into after the date of this
Agreement pursuant to which the Company issues or agrees to issue any privately
placed securities shall contain a provision under which holders of such
securities agree not to effect any public sale or distribution of any such
securities during the period described in (a) above, including a sale pursuant
to Rule 144 under the Securities Act (except as part of any such registration,
if permitted); provided, however, that the provisions of this Section 4.2 shall
not prevent the conversion or exchange of any securities pursuant to their terms
into or for other securities.
4.3 Deferral of Filing. The Company may, in its sole and
absolute discretion, defer the filing (and the preparation) of a registration
statement required by Article II if (a) at the time the Company receives the
Demand Request, the Company or any of its Subsidiaries are engaged in
confidential negotiations or other confidential business activities, disclosure
of which would be required in such registration statement (but would not be
required if such registration statement were not filed), and the Board of
Directors of the Company determines that such disclosure would be detrimental to
the Company and its stockholders or (b) prior to receiving the Demand Request,
the Board of Directors had determined to effect a registered underwritten public
offering of the Company's equity securities for the Company's account and the
Company had taken steps and is proceeding with reasonable diligence to effect
such offering. A deferral of the filing of a registration statement pursuant to
this Section 4.3 shall be lifted, and the requested registration statement shall
be filed forthwith, if, in the case of a deferral pursuant to clause (a) of the
preceding sentence, the negotiations or other activities are disclosed or
Exhibit 4.1 - Page 5
terminated, or, in the case of a deferral pursuant to clause (b) of the
preceding sentence, the proposed registration for the Company's account is
abandoned. In order to defer the filing of a registration statement pursuant to
this Section 4.3, the Company shall promptly, upon determining to seek such
deferral, deliver to TCB a certificate signed by the President and CEO of the
Company stating that the Company is deferring such filing pursuant to this
Section 4.3 and the basis therefor in reasonable detail. Within twenty (20) days
after receiving such certificate, TCB, with respect to the Registrable
Securities held by TCB for which registration was previously requested, may
withdraw such request by giving notice to the Company; if withdrawn, such Demand
Request shall be deemed not to have been made for all purposes of this
Agreement. The Company may defer the filing of a particular registration
statement pursuant to this Section 4.3 without limitation as to the number or
length of any such deferrals.
ARTICLE V
REGISTRATION PROCEDURES
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Whenever TCB has requested that any Registrable Securities be
registered pursuant to Article II hereof, the Company will, at its expense, use
reasonable efforts to effect the registration and the sale of such Registrable
Securities under the Securities Act in accordance with the intended method of
disposition thereof as quickly as reasonably practicable, and in connection with
any such request, the Company will:
5.1 prepare and file with the SEC a registration statement on
any form for which the Company then qualifies or which counsel for the Company
shall deem appropriate and which form shall be available for the sale of the
Registrable Securities to be registered thereunder in accordance with the
intended method of distribution thereof, and use reasonable efforts to cause
such filed registration statement to become effective under the Securities Act;
provided that before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company will furnish to TCB and to its
counsel copies of all such documents proposed to be filed, which documents will
be subject to the review of such counsel; provided, that in connection with a
Demand Registration, the Company shall not file any registration statement or
prospectus, or any amendments or supplements thereto, if TCB, its counsel, or
the managing Underwriters shall reasonably object thereto, in writing, on a
timely basis;
5.2 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
pursuant to Article II, subject to any Suspension Periods, for a period (except
as provided in the last paragraph of this Article V) of not less than 365
consecutive days or, if shorter, the period terminating when all Registrable
Securities covered by such registration statement have been sold (but not before
the expiration of the applicable period referred to in Section 4(3) of the
Securities Act and Rule 174 thereunder, if applicable) (the "Effective Period")
and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during such
period in accordance with the intended methods of disposition by TCB set forth
in such registration statement; provided, that in connection with a Demand
Registration, (i) TCB agrees that it will not sell any Registrable Securities
pursuant to a Demand Registration during any Suspension Period and (ii) the
Company agrees that no Suspension Period shall exceed 30 consecutive days and
that there shall be no more than three (3) Suspension Periods during any one
Demand Registration; provided further, that if one or more Suspension Periods
occur, the Effective Period of the applicable Demand Registration shall be
extended by the number of days equal to the aggregate number of days included in
all Suspension Periods effected with respect to such Demand Registration;
5.3 furnish to TCB such number of copies of such registration
statement, each amendment and supplement thereto (in each case including all
exhibits thereto), the prospectus included in such registration statement
(including each preliminary prospectus) and such other documents as TCB may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by TCB;
Exhibit 4.1 - Page 6
5.4 notify TCB promptly, and (if requested by TCB) confirm
such notice in writing, (a) when a prospectus or any prospectus supplement or
post-effective amendment has been filed, and, with respect to a registration
statement or any post-effective amendment, when the same has become effective
under the Securities Act and each applicable state law, (b) of any request by
the SEC or any other Federal or state governmental authority for amendments or
supplements to a registration statement or related prospectus or for additional
information, (c) of the issuance by the SEC of any stop order suspending the
effectiveness of a registration statement or the initiation of any proceedings
for that purpose, (d) if at any time the representations or warranties of the
Company or any Subsidiary contained in any agreement (including any underwriting
agreement) contemplated by Section 5.9 below cease to be true and correct in any
material respect, (e) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (f) of the
happening of any event which makes any statement made in such registration
statement or related prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires the making of any changes in such registration statement, prospectus or
documents so that, in the case of the registration statement, it will not
contain any 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, and that in the case of the prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading and (g) of the
Company's reasonable determination that a post-effective amendment to a
registration statement would be appropriate;
5.5 use reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of a registration statement, or the lifting
of any suspension of the qualification (or exemption from qualification) of any
of the Registrable Securities for sale in any jurisdiction, at the earliest
practicable moment;
5.6 cooperate with TCB and the managing Underwriter or
Underwriters to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold, which certificates shall not
bear any restrictive legends and shall be in a form eligible for deposit with
The Depository Trust Company; and enable such Registrable Securities to be
registered in such names as the managing Underwriter or Underwriters may request
at least two (2) business days prior to any sale of Registrable Securities;
5.7 use reasonable efforts to register or qualify such
Registrable Securities as promptly as reasonably practicable under such other
securities or blue sky laws of such jurisdictions as TCB or the managing
Underwriter reasonably (in light of the intended plan of distribution) requests
and do any and all other acts and things which may be reasonably necessary or
advisable to enable TCB or such managing Underwriter to consummate the
disposition in such jurisdictions of the Registrable Securities owned by TCB;
provided that the 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 Section 5.7, (b) subject itself to taxation in any such
jurisdiction or (c) consent to general service of process in any such
jurisdiction;
5.8 use reasonable efforts to cause such Registrable
Securities to be registered with or approved by such other governmental agencies
or authorities as may be necessary by virtue of the business and operations of
the Company to enable TCB to consummate the disposition of such Registrable
Securities;
5.9 enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of such Registrable
Securities;
5.10 make available for inspection by TCB, any Underwriter
participating in any disposition pursuant to such registration statement and any
attorney, accountant or other professional retained, and paid, by TCB or any
such Underwriter (collectively, the "Inspectors"), all financial and other
records, pertinent corporate documents and properties of the Company
(collectively, the "Records") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company's officers,
directors and employees to
Exhibit 4.1 - Page 7
supply all information reasonably requested by any such Inspectors in connection
with such registration statement. Records which the Company determines, in good
faith, to be confidential shall not be disclosed by the Inspectors unless (i)
the disclosure of such Records is necessary to avoid or correct a misstatement
or omission in such registration statement or (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a court of competent
jurisdiction. TCB agrees that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of the Company or its
Affiliates unless and until such is made generally available to the public. TCB
further agrees that it will, as soon as practicable upon learning that
disclosure of such Records is sought in a court of competent jurisdiction, give
notice to the Company and allow the Company at its expense to undertake
appropriate action to prevent disclosure of the Records deemed confidential;
5.11 use reasonable efforts to obtain a comfort letter or
comfort letters from the Company's independent public accountants in customary
form and covering such matters of the type customarily covered by comfort
letters as TCB or the managing Underwriter or Underwriters reasonably requests;
5.12 otherwise use reasonable efforts to comply with all
applicable rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering a
period of twelve (12) months, beginning within three (3) months after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act;
5.13 use reasonable efforts to cause all such Registrable
Securities to be quoted on any inter-dealer quotation system on which similar
securities issued by the Company are then quoted;
5.14 if any event contemplated by Section 5.4(f) above shall
occur, as promptly as practicable prepare a supplement or amendment or
post-effective amendment to such registration statement or the related
prospectus or any document incorporated therein by reference or promptly file
any other required document so that, as thereafter delivered to the purchasers
of the Registrable Securities, the prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading;
5.15 cooperate and assist in any filing required to be made
with the National Association of Securities Dealers, Inc. and in the performance
of any due diligence investigation by any underwriter, including any "qualified
independent underwriter," or TCB; and
5.16 cooperate fully with the marketing and sale of securities
in accordance with this Agreement including, without limitation, providing
marketing support and causing the appropriate Member(s) of Management to
participate in "road show" presentations and attend meetings with Underwriters
as requested by TCB or the Underwriters.
The Company may require TCB to promptly furnish in writing to
the Company such information regarding the distribution of the Registrable
Securities as it may from time to time reasonably request and such other
information as may be legally required in connection with such registration.
Notwithstanding anything herein to the contrary, the Company shall have the
right to exclude from any offering the Registrable Securities of TCB if TCB does
not comply with the provisions of the immediately preceding sentence.
TCB agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 5.4(f) hereof,
TCB will forthwith discontinue disposition of Registrable Securities pursuant to
the registration statement covering such Registrable Securities until TCB's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 5.4(f) hereof, and, if so directed by the Company, TCB will deliver to
the Company all copies, other than permanent file copies, then in TCB's
possession, of the most recent prospectus covering such Registrable Securities
at the time of receipt of such notice. In the event the Company shall give such
notice, the Company shall extend the period during which such registration
statement shall be maintained effective (including the period referred to in
Section 5.2 hereof) by the number of days during
Exhibit 4.1 - Page 8
the period from and including the date of the giving of notice pursuant to
Section 5.4(f) hereof to the date when the Company shall make available to TCB a
prospectus supplemented or amended to conform with the requirements of Section
5.4(f) hereof.
ARTICLE VI
REGISTRATION EXPENSES
---------------------
Subject to the provisions in Section 2.2 above with respect to
a Demand Registration, in connection with any registration statement required to
be filed hereunder, the Company shall pay the following registration expenses
(the "Registration Expenses"): (a) all registration and filing fees (including,
without limitation, with respect to filings to be made with the National
Association of Securities Dealers, Inc.), (b) fees and expenses of compliance
with securities or blue sky laws (including reasonable fees and disbursements of
counsel in connection with blue sky qualifications of the Registrable
Securities), (c) printing expenses, (d) internal expenses of the Company
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), (e) the fees and expenses
incurred in connection with the listing on an exchange of the Registrable
Securities if the Company shall choose, or be required pursuant to Section 5.13
to list such Registrable Securities, (f) fees and disbursements of counsel for
the Company and customary fees and expenses for independent certified public
accountants retained by the Company (including the expenses of any comfort
letters requested pursuant to Section 5.11 hereof), (g) the fees and expenses of
any special experts retained by the Company in connection with such registration
and (h) fees and expenses of any "qualified independent underwriter" or other
independent appraiser participating in an offering pursuant to Rule 2720(c) of
the National Association of Securities Dealers, Inc. The Company shall not have
any obligation to pay any underwriting fees, discounts, or commissions
attributable to the sale of Registrable Securities or, except as provided by
clause (b) or (h) above, any out-of-pocket expenses of TCB (or the agents who
manage TCB's accounts) or the fees and disbursements of counsel for any
Underwriter.
ARTICLE VII
INDEMNIFICATION; CONTRIBUTION
-----------------------------
7.1 Indemnification by the Company. The Company agrees to
indemnify and hold harmless TCB, each Person, if any, who controls TCB within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, and the officers, directors, agents, general and limited partners, and
employees of TCB and each such controlling person from and against any and all
losses, claims, damages, liabilities, and expenses (including reasonable costs
of investigation) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any registration statement or
prospectus relating to the Registrable Securities or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses arise
out of, or are based upon, any such untrue statement or omission or allegation
thereof based upon information furnished in writing to the Company by TCB or on
TCB's behalf expressly for use therein; provided, however, that with respect to
any untrue statement or omission or alleged untrue statement or omission made in
any preliminary prospectus, the indemnity agreement contained in this Section
7.1 shall not apply to the extent that any such loss, claim, damage, liability
or expense results from the fact that a current copy of the prospectus was not
sent or given to the Persons asserting any such loss, claim, damage, liability
or expense at or prior to the written confirmation of the sale of the
Registrable Securities concerned to such Person if it is determined that (a) it
was the responsibility of TCB or any Underwriter or dealer for TCB to provide
such Person with a current copy of the prospectus, (b) TCB was provided with a
current copy of the prospectus prior to the written confirmation of sale and (c)
such current copy of the prospectus would have cured the defect giving rise to
such loss, claim, damage, liability or expense. The Company also agrees to
indemnify any Underwriters of the Registrable
Exhibit 4.1 - Page 9
Securities, their officers and directors and each Person who controls such
Underwriters on substantially the same basis as that of the indemnification of
TCB provided in this Section 7.1.
7.2 Indemnification by TCB. TCB agrees to indemnify and hold
harmless the Company, and each Person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act and the officers, directors, agents and employees of the Company
and each such controlling Person to the same extent as the foregoing indemnity
from the Company to TCB, but only with respect to information furnished in
writing by TCB or on TCB's behalf expressly for use in any registration
statement or prospectus relating to the Registrable Securities. The liability of
TCB under this Section 7.2 shall be limited to the aggregate cash and property
received by TCB pursuant to the sale of Registrable Securities covered by such
registration statement or prospectus.
7.3 Conduct of Indemnification Proceedings. If any action or
proceeding (including any governmental investigation) shall be brought or
asserted against any Person entitled to indemnification under Section 7.1 or 7.2
above (an "Indemnified Party") in respect of which indemnity may be sought from
any party who has agreed to provide such indemnification under Section 7.1 or
7.2 above (an "Indemnifying Party"), the Indemnified Party shall give prompt
notice to the Indemnifying Party and the Indemnifying Party shall assume the
defense thereof, including the employment of counsel reasonably satisfactory to
such Indemnified Party, and shall assume the payment of all reasonable expenses
of such defense. Such Indemnified Party shall have the right to employ separate
counsel in any such action or proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (a) the Indemnifying Party has agreed to pay such
fees and expenses or (b) the Indemnifying Party fails promptly to assume the
defense of such action or proceeding or fails to employ counsel reasonably
satisfactory to such Indemnified Party or (c) the named parties to any such
action or proceeding (including any impleaded parties) include both such
Indemnified Party and Indemnifying Party (or an Affiliate of the Indemnifying
Party), and such Indemnified Party shall have been advised by counsel that there
is a conflict of interest on the part of counsel employed by the Indemnifying
Party to represent such Indemnified Party and such counsel reasonably determines
that it is inappropriate for such counsel to represent both the Indemnifying
Party (or such Affiliate of the Indemnifying Party) and the Indemnified Party
(in which case, if such Indemnified Party notifies the Indemnifying Party in
writing that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the right to assume
the defense of such action or proceeding on behalf of such Indemnified Party).
Notwithstanding the foregoing, the Indemnifying Party shall not, in connection
with any one such action or proceeding or separate but substantially similar
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable at any time for the fees and
expenses of more than one separate firm of attorneys (together in each case with
appropriate local counsel). The Indemnifying Party shall not be liable for any
settlement of any such action or proceeding effected without its written consent
(which consent will not be unreasonably withheld), but if settled with its
written consent, or if there be a final judgment for the plaintiff in any such
action or proceeding, the Indemnifying Party shall indemnify and hold harmless
such Indemnified Party from and against any loss or liability (to the extent
stated above) by reason of such settlement or judgment. The Indemnifying Party
shall not consent to entry of any judgment or enter into any settlement that
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release, in form and substance
satisfactory to the Indemnified Party, from all liability in respect of such
action or proceeding for which such Indemnified Party would be entitled to
indemnification hereunder.
7.4 Contribution. If the indemnification provided for in this
Article VII is unavailable to the Indemnified Parties in respect of any losses,
claims, damages, liabilities or judgments referred to herein, then each such
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages, liabilities and judgments as between the
Company on the one hand and TCB on the other, in such proportion as is
appropriate to reflect the relative fault of the Company and of TCB in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Company on the one hand and
of TCB on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged
Exhibit 4.1 - Page 10
omission to state a material fact relates to information supplied by such party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and TCB agree that it would not be just and
equitable if contribution pursuant to this Section 7.4 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7.4, TCB shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities of TCB were offered to the public exceeds the amount
of any damages which TCB has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
ARTICLE VIII
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
-------------------------------------------
TCB may not participate in any underwritten registration
hereunder unless TCB (a) agrees to sell TCB's Registrable Securities on the
basis provided in any underwriting arrangements approved by the Person entitled
hereunder to approve such arrangements, (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements and this Agreement, and (c) if requested by another Person
participating in such underwritten registration, provides that all securities
convertible or exchangeable into Common Stock that are included in such
underwritten registration shall be so converted or exchanged on or prior to the
consummation thereof.
ARTICLE IX
MISCELLANEOUS
-------------
9.1 Amendment. Any provision of this Agreement may be altered,
supplemented, amended, or waived only by the written consent of each of (i) the
Company and (ii) TCB.
9.2 Specific Performance. TCB and the Company recognize that
the obligations imposed on them in this Agreement are special, unique, and of
extraordinary character, and that in the event of breach by any party, damages
will be an insufficient remedy; consequently, it is agreed that TCB and the
Company may have specific performance and injunctive relief (in addition to
damages) as a remedy for the enforcement hereof, without proving damages.
9.3 Assignment. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
assigns of the Company. This Agreement may not be assigned by TCB. Any purported
assignment made in violation of this Section 9.3 shall be void and of no force
and effect.
9.4 Notices. Any and all notices, designations, consents,
offers, acceptances, or other communications provided for herein (each a
"Notice") shall be given in writing by overnight courier, telegram, or telecopy
which shall be addressed, or sent, to the respective addresses as follows (or
such other address as the Company or TCB may specify to the other by Notice):
Exhibit 4.1 - Page 11
The Company: Weiner's Stores, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxx, Esq.
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
TCB: Texas Commerce Bank N.A.
000 Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Manager, Special Loans Group
Telecopy No.: (000) 000-0000
with a copy to:
General Counsel
Texas Commerce Bank N.A.
000 Xxxx Xxxxxx, 26 TCB-E45
Xxxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
All Notices shall be deemed effective and received (a) if given by telecopy,
when such telecopy is transmitted to the telecopy number specified above and
receipt thereof is confirmed; (b) if given by overnight courier, on the business
day immediately following the day on which such Notice is delivered to a
reputable overnight courier service; or (c) if given by telegram, when such
Notice is delivered at the address specified above.
9.5 Counterparts. This Agreement may be executed in two or
more counterparts and each counterpart shall be deemed to be an original and
which counterparts together shall constitute one and the same agreement of the
parties hereto.
9.6 Section Headings. Headings contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit, or extend
the scope or intent of this Agreement or any provisions hereof.
9.7 Choice of Law. This Agreement, including, without
limitation, the interpretation, construction, validity and enforceability
thereof, shall be governed by the internal laws of the State of Texas without
regard to the principles of conflict of laws thereof.
9.8 Entire Agreement. This Agreement contains the entire
understanding of the parties hereto respecting the subject matter hereof and
supersedes all prior agreements, discussions and understandings with respect
thereto.
9.9 Cumulative Rights. The rights of TCB and the Company under
this Agreement are cumulative and in addition to all similar and other rights of
the parties under other agreements.
Exhibit 4.1 - Page 12
9.10 Severability. If any term, provision, covenant, or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void, or unenforceable, the remainder of the terms, provisions,
covenants, and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired, or invalidated.
9.11 Submission to Jurisdiction (a) Any legal action or
proceeding with respect to this Agreement, the Common Stock or any document
related thereto may be brought in the courts of the State of Texas or of the
United States of America for the Southern District of Texas, and, by execution
and delivery of this Agreement, each of the Company and TCB hereby accepts for
itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. The parties hereto hereby irrevocably
waive any objection, including, without limitation, any objection to the laying
of venue or based on the grounds of forum non conveniens, which any of them may
now or hereafter have to the bringing of any such action or proceeding in such
respective jurisdictions.
(b) The Company and TCB irrevocably consent to the service of
process of any of the aforesaid courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
the Company or TCB, respectively, at its address provided herein.
(c) Nothing contained in this Section 9.11 shall affect the
right of any party hereto to serve process in any other manner permitted by law.
9.12 Waiver of Jury Trial. Each of the parties hereto waives
any right it may have to trial by jury in respect of any litigation based on, or
arising out of, under or in connection with this Agreement, any Common Stock or
any course of conduct, course of dealing, verbal or written statement or action
of any party hereto.
9.13 Termination. This Agreement shall terminate on (the
"Termination Date") the earlier of (a) the date on which TCB ceases to own any
Registrable Securities and (b) the date that is seven (7) years after the
Effective Date. Notwithstanding the foregoing and anything herein to the
contrary, the provisions of Article I, Article VII and Article IX of this
Agreement shall survive any termination of this Agreement.
Exhibit 4.1 - Page 13
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first above written.
WEINER'S STORES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
President & Chief Executive Officer
TEXAS COMMERCE BANK, N.A.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Exhibit 4.1 - Page 14
