Exhibit 10.12
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT dated as of September
___, 1997 among THE CHILDREN'S PLACE RETAIL STORES, INC., a Delaware
corporation (the "Company"), THE SK EQUITY FUND, L.P., a Delaware limited
partnership ("SK"), SK INVESTMENT FUND, L.P., a Delaware limited partnership
("SKIF"), XXXXX XXXXXXXX, each of the Persons listed on Schedule 1 and as
signatory hereto (each, a "Management Stockholder" and, collectively, the
"Management Stockholders"), and XXXX XXXXX XXXX XXXXXX, INCORPORATED, a
Maryland corporation ("Xxxx Xxxxx") (all such Persons, other than the
Company, the "Stockholders").
RECITALS
A. The Company and the Stockholders entered into a Registration Rights
Agreement dated as of June 28, 1996 (the "Original Registration Rights
Agreement"), setting forth certain obligations of the Company in respect of
the registration of shares of its Common Stock under the Securities Act of
1933, as amended.
B. The Company and the Stockholders have now agreed that, in connection
with the Company's initial public offering, it is desirable and in the best
interest of the Company that the Original Registration Rights Agreement be
amended and restated in its entirety to read as hereinafter set forth.
NOW, THEREFORE, the parties hereto agree that the Original Registration
Rights Agreement is hereby amended and restated in its entirety, effective as
of the Effective Date (as defined below), to read in its entirety as follows:
I. DEFINITIONS
1.l Definitions. (a) In addition to the terms defined elsewhere
herein, the following terms have the following meanings when used herein with
initial capital letters:
"Affiliate" means, with respect to any Person, any other Person directly
or indirectly controlling, controlled by or under common control with, such
Person. For the purposes of this definition, "control" when used with
respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agreement" means this Agreement, as the same may be amended from time to
time.
"Board of Directors" means the Board of Directors of the Company.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in the City of New York are authorized by law to close.
"Charter" means the Amended and Restated Certificate of Incorporation of
the Company, as amended from time to time.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Common Stock, par value $0.10 per share, of the
Company.
"Director" means a member of the Board of Directors.
"Effective Date" means the date of consummation of the Company's initial
public offering under the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Initial Investment" means the investment of $20,505,712 by SK, SKIF, and
Xxxxx Xxxxxxxx in the Company.
"Xxxx Mason Holder" means Xxxx Xxxxx or any Transferee thereof.
"LM Agreement" means the letter agreement dated January 25, 1996 by and
between the Company and Xxxx Xxxxx, as amended to the date hereof.
"Management Permitted Transferee" means with respect to any Management
Stockholder, (i) any spouse or lineal descendant of such Management
Stockholder, (ii) any trust all of the beneficial interests in which is held
by such Management Stockholder and/or such Management Stockholder's spouse
and/or lineal descendants and (iii) any other Management Stockholder;
provided, however, that each such Transferee will be a Management Permitted
Transferee for purposes of this Agreement only if such Transferee shall have
executed and delivered to the Company an instrument reasonably satisfactory
to the SK Holders pursuant to which the Transferee shall have agreed to be
bound by the terms of this Agreement applicable to its Transferor.
"Management Stockholder Group" means each of the Management Stockholders
or any Management Permitted Transferee.
"Person" means an individual, corporation, partnership, trust,
association or any other entity or organization, including without limitation
a government or political subdivision or an agency or instrumentality thereof.
"pro rata" means, with respect to any offer including Common Stock, an
offer based on the relative percentages of Common Stock then held by all of
the holders of Common Stock to whom such offer is made.
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"Public Offering" means any primary or secondary public offering of
Common Stock of the Company pursuant to an effective registration statement
under the Securities Act, other than pursuant to a registration statement on
Form S-4 or Form S-8 or any successor or similar form.
"Qualified Underwriter" means a firm listed on Schedule 2 or otherwise
selected by mutual agreement of the SK Holders and the Company.
"Registrable Securities" means, as the context requires, (a) with respect
to the SK Holders, the shares of Common Stock then held by the SK Holders,
and any additional shares of Common Stock ("Additional Shares") subsequently
paid, issued or distributed in respect of such shares of Common Stock by way
of stock dividend or distribution or stock split or in connection with a
combination of shares, recapitalization, reorganization, merger,
consolidation, pursuant to the Charter or otherwise, (b) with respect to the
Management Stockholders, the shares of Common Stock held as of the Effective
Date and any Additional Shares issued in respect thereof and any Additional
Shares issued upon exercise of stock options granted to any such Management
Stockholder, and (c) with respect to Xxxx Xxxxx, the shares of Common Stock
held as of the Effective Date and any Additional Shares issued in respect
thereof. Registrable Securities will cease to be Registrable Securities when
and to the extent that (i) a registration statement relating to such
securities has been declared effective under the Securities Act and such
Registrable Securities have been disposed of pursuant to such effective
Registration Statement, (ii) such Registrable Securities have been
transferred to a party in violation of the Stockholders Agreement, (iii) such
Registrable Securities have ceased to be outstanding, or (iv) such securities
may be sold in a single transaction without registration pursuant to Rule 144.
"Registration Expenses" means all (i) registration and filing fees with
the Commission, (ii) fees and expenses of compliance with state securities or
blue sky laws (including without limitation reasonable fees and disbursements
of a qualified independent underwriter, if any, counsel in connection
therewith and the reasonable fees and disbursements of counsel in connection
with blue sky qualifications of the Registrable Securities), (iii) printing
expenses, (iv) internal expenses of the Company (including without limitation
all salaries and expenses of officers and employees performing legal or
accounting duties), (v) fees and expenses of counsel and independent public
accountants for the Company, (vi) fees and expenses of any additional experts
retained by the Company in connection with such registration, (vii) fees and
expenses of listing the Registrable Securities, if any, (viii) transfer
taxes, and (ix) reasonable fees and expenses of one counsel for the
Stockholders, which counsel will be selected by the Stockholders holding a
majority of Registrable Securities included in the registration.
"Regulation D" means Regulation D under the Securities Act.
"Rule 144" means Rule 144 under the Securities Act, as such rule may be
amended from time to time.
"Securities Act" means the Securities Act of 1933, as amended.
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"Shelf Registration" means a registration statement on the appropriate
form pursuant to Rule 415 under the Securities Act (or any successor rule
that may be adopted by the Commission).
"XX Xxxxxx" means SK, SKIF or Xxxxx Xxxxxxxx or any Transferee thereof.
For purposes of this Agreement, any action contemplated to be taken by the SK
Holders will be effective if approved by the XX Xxxxxx which owns the largest
portion of the Common Stock owned by all SK Holders as of the relevant time.
"SK Limit" means an amount of Registrable Securities equal to the lesser
of (x) an amount comprising 50% of the aggregate amount of Registrable
Securities to be sold by all stockholders pursuant to the registration
statement in question and (y) an amount of Registrable Securities having a
market value equal to the Initial Investment.
"Stockholders Agreement" means the Amended and Restated Stockholders
Agreement dated as of the date hereof by and among the Company, SK, SKIF,
Xxxxx Xxxxxxxx and the Management Stockholders.
"Transferee" means any Person to whom any Stockholder transfers any
Common Stock (other than in a sale pursuant to an effective registration
statement under the Securities Act or without registration pursuant to Rule
144) in accordance with the Stockholders Agreement and who agrees in writing
to be bound by and to comply with all applicable provisions of this
Agreement.
"Underwriter" means a securities dealer who purchases any
Registrable Securities as a principal in connection with a distribution of
such Registrable Securities and not as part of such dealer's market-making
activities.
II. REGISTRATION RIGHTS
2.1 SK Demand Registration. (a) At any time and from time to time
following the nine month anniversary of the Effective Date, the SK Holders
may make written requests for registration under the Securities Act of all or
part of the SK Holders' Registrable Securities (a "SK Demand Registration");
provided, however, that the Company will not be obligated to effect an SK
Demand Registration on more than 3 occasions. Such request will specify the
number of shares of Registrable Securities proposed to be offered for sale by
the SK Holders and will also specify the intended method of disposition
thereof. In connection therewith, the Company will give the notices required
by Section 2.2(a) but as applied to an SK Demand Registration.
(b) If the SK Holders so elect, the offering of the SK Holders'
Registrable Securities pursuant to such SK Demand Registration will be in the
form of an underwritten offering. The SK Holders will select a Qualified
Underwriter as the managing Underwriter and, subject to the LM Agreement, any
additional underwriters in connection with the offering. A registration will
not count as an SK Demand Registration until it has become effective.
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(c) If, in connection with any SK Demand Registration, the Company or
any other Stockholders also propose to sell securities and the managing
Underwriter of an offering described in this Section 2.1 advises the Company,
the SK Holders and such other Stockholders in writing that the success or
pricing of the offering would be materially and adversely affected by the
inclusion of all of the securities requested to be included, then the Company
will include in such registration (i) first, the Registrable Securities
requested to be included by the SK Holders, which number of securities to be
registered will be reduced to the extent necessary to reduce the total amount
of securities to be included in such offering to the amount recommended by
such managing Underwriter, (ii) second, such number of other Registrable
Securities as the Management Stockholders and the Xxxx Xxxxx Xxxxxx propose
to offer for sale and the managing Underwriter recommends be included in such
offering, allocated pro rata among such Stockholders, which number of
securities to be registered will be reduced to the extent necessary to reduce
the total amount of Securities to be included in such offering to the amount
recommended by such managing underwriter, (iii) third, the securities the
Company proposes to offer for sale, which number of securities to be
registered will be reduced to the extent necessary to reduce the total amount
of securities to be included in such offering to the amount recommended by
such managing Underwriter and (iv) fourth, such number of other Registrable
Securities as the Stockholders propose to offer for sale and the managing
Underwriter recommends be included in such offering, allocated pro rata among
such Stockholders.
(d) Notwithstanding the foregoing provisions of this Section 2.1, the
SK Holders may not request an SK Demand Registration (i) if a registration
statement has been filed by the Company with the Commission, unless such
registration statement has been withdrawn or has been effective for a period
of 90 calendar days, or (ii) if an underwritten offering of Common Stock
(whether for the account of the Company or any other security holders) has
been consummated within the preceding nine months; provided, however, the
limitations in this sentence will not apply if the SK Holders were not given
the opportunity, in accordance with Section 2.2, to include their Registrable
Securities in the registration statement described in clause (i) or the
underwritten offering described in clause (ii) (as applicable).
(e) Notwithstanding the foregoing provisions of this Section 2.1, in
the event the Company receives notice of an SK Demand Registration, the
Company may elect once, and only once, by written notice to the SK Holders
within 20 days after receipt of such notice, to proceed with a registration
of Common Stock for the Company's account in lieu of proceeding with the SK
Demand Registration, in which case the provisions of Section 2.2 (and not
this Section 2.1) will apply. If the Company exercises the right described
in the preceding sentence, the SK Holders will not be deemed (for purposes of
determining the number of future SK Demand Registrations that may be demanded
under the terms of this Agreement) to have exercised the right to request an
SK Demand Registration unless at least 80% of the Registrable Securities that
the SK Holders desired to include in such registration were included pursuant
to Section 2.2.
2.2 Piggyback Rights. (a) If the Company proposes to file a
registration statement under the Securities Act with respect to an offering
of any shares of Common Stock (i) for its own account (other than a
registration statement on Form S-4 or S-8 (or any substitute form that may be
adopted by the Commission)) or (ii) for the account of any holder of its
securities,
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including without limitation an SK Demand Registration or a Nomura Demand
Registration or a registration of shares to be sold by the Management
Stockholders, who will have the right to demand such registration at any time
and from time to time, subject to the rights of the Company and the other
Stockholders hereunder, or a registration of shares to be sold by the Xxxx
Xxxxx Xxxxxx, then the Company will give written notice of such proposed
offering to the holders of Registrable Securities as soon as practicable
(provided that holders of Registrable Securities will be given such notice
not less than 20 calendar days prior to the deadline set by the Company for
electing to include Registrable Securities in such offering), and such notice
will offer such holders the opportunity, in accordance with Section 2.2(b),
to register such number of shares of Registrable Securities as such holders
may request on the same terms and conditions as the registration of the
Company's or such other holders' securities. If the Company so elects, the
offering contemplated by this Section 2.2 will be in the form of an
underwritten offering. The Company will select a Qualified Underwriter as
the managing Underwriter and, subject to the LM Agreement, any additional
underwriters in connection with the offering.
(b) Whenever the Company proposes to file a registration statement in
accordance with Section 2.2(a) (except in the case of an SK Demand
Registration, for which Section 2.1(c) will govern), the Company will include
in such registration all Registrable Securities which any Stockholder
requests to be included therein; provided, however, that if the managing
Underwriter of an underwritten offering under this Section 2.2 advises the
Company and such Stockholders in writing that the number of securities
requested to be included in such registration exceeds the number of shares of
Common Stock which can be sold in such offering or would have an adverse
impact on the price of such securities, then the Company will include in such
registration (i) first, the securities the Company proposes to sell and (ii)
second, the Registrable Securities of the Stockholders requested to be
included in such registration, allocated in accordance with Section 2.4.
(c) A request by any Stockholder to include Registrable Securities in a
proposed underwritten offering pursuant to this Section 2.2 will not be
deemed to be a request for a demand registration pursuant to Section 2.1.
2.3 Certain Limitations. Notwithstanding any other provision hereof,
(i) neither the Company nor any Stockholder will have the right to initiate
or demand a registration hereunder unless (x) it proposes to include therein
Registrable Securities which it believes in good faith to have a value of at
least $30,000,000 or (y) in the case of any Stockholder, not less than 80% of
the Registrable Securities owned by the SK Holders or the Management
Stockholders are to be included therein and (ii) the managing Underwriter and
any co-managing underwriter of any offering hereunder must be a Qualified
Underwriter.
2.4 Allocation of Registrable Securities Among Stockholders. In the
event of any registration to which the proviso to Section 2.2(b) applies,
after all securities that the Company proposes to sell are included in such
registration, Registrable Securities of the stockholders requested to be
included in such registration will be included therein according to the
following priorities: (i) first, the Registrable Securities proposed to be
included by the SK Holders will be included, up to the SK Limit (after giving
effect to all prior sales of Registrable Securities of the
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SK Holders), which number of securities to be registered will be reduced to
the extent necessary to reduce the total amount of securities to be included
in such offering to the amount recommended by such managing Underwriter, (ii)
second, any Registrable Securities proposed to be included by the Management
Stockholders and the Xxxx Xxxxx Xxxxxx, up to an amount equal to the number
of Registrable Securities to be included for the account of the SK Holders,
allocated pro rata among such Stockholders, which number of securities to be
registered will be reduced to the extent necessary to reduce the total amount
of securities to be included in such offering to the amount recommended by
such managing Underwriter, and (iii) third, any remaining Registrable
Securities proposed to be included by the Stockholders which the managing
Underwriter recommends be included shall be included, allocated pro rata
among such stockholders.
III. REGISTRATION PROCEDURES
3.1 Filings; Information. Whenever a Stockholder (the "Registering
Stockholder") requests that any Registrable Securities be registered pursuant
to Article II, the Company will use its best efforts to effect the
registration of such Registrable Securities to the extent required by Article
II, as promptly as is practicable, and in connection with any such request:
(a) The Company will as expeditiously as possible prepare and file with
the Commission a registration statement on any form for which the Company
then qualifies and which counsel for the Company deems appropriate and
available for the sale of the Registrable Securities to be registered
thereunder in accordance with the intended method of distribution thereof,
and use its best efforts to cause such filed registration statement to become
and remain effective for a period of not less than 90 calendar days or, if
less, the period required for such Registrable Securities to be sold;
provided, however, that if the Company furnishes to the Registering
Stockholder a certificate signed by the Company's Chief Executive Officer
stating that the Board of Directors has determined that it would be
materially detrimental or otherwise materially disadvantageous to the Company
or its Stockholders (whether because of any proposed material transaction or
otherwise) for such a registration statement to be filed as expeditiously as
possible, the Company will have a period of not more than 120 calendar days
within which to file such registration statement measured from the date of
the Company's receipt of the Registering Stockholder's request for
registration.
(b) The Company will, if requested, prior to filing such registration
statement or any amendment or supplement thereto, furnish to the Registering
Stockholder and each applicable Underwriter, if any, copies thereof, and
thereafter furnish to the Registering Stockholder and each such Underwriter,
if any, such number of copies of such registration statement, amendment and
supplement thereto (in each case including all exhibits thereto and documents
incorporated by reference therein) and the prospectus included in such
registration statement (including each preliminary prospectus) as the
Registering Stockholder or each such Underwriter may reasonably request in
order to facilitate the sale of the Registrable Securities.
(c) After the filing of the registration statement, the Company will
promptly notify the Registering Stockholder of any stop order issued or, to
the Company's knowledge, threatened
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to be issued by the Commission or any state securities agency or authority
and take all reasonable actions required to prevent the entry of such stop
order or to remove it if entered.
(d) The Company will endeavor to qualify the Registrable Securities for
offer and sale under such other securities or blue sky laws of such
jurisdictions in the United States as the Registering Stockholder reasonably
requests; provided, however, that the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subsection (d), (ii) subject
itself to taxation in any such jurisdiction, or (iii) consent to general
service of process in any such jurisdiction.
(e) The Company will as promptly as is practicable notify the
Registering Stockholder, at any time when a prospectus relating to the sale
of the Registrable Securities is required by law to be delivered in
connection with sales by an Underwriter or dealer, of the occurrence of any
event requiring the preparation of a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such 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, in the light of the
circumstances under which they were made, not misleading and promptly make
available to the Registering Stockholder and to the Underwriters any such
supplement or amendment. The Registering Stockholder agrees that, upon
receipt of any notice from the Company of the occurrence of any event of the
kind described in the preceding sentence, the Registering Stockholder will
forthwith discontinue the offer and sale of Registrable Securities pursuant
to the registration statement covering such Registrable Securities until
receipt by the Registering Stockholder and the Underwriters of the copies of
such supplemented or amended prospectus and, if so directed by the Company,
the Registering Stockholder will deliver to the Company all copies, other
than permanent file copies then in the Registering Stockholder possession, of
the most recent prospectus covering such Registrable Securities at the time
of receipt of such notice. In the event the Company gives such notice, the
Company will extend the period during which such registration statement will
be effective as provided in Section 3.1(a) by the number of days during the
period from and including the date of the giving of such notice to the date
when the Company will make available to the Registering Stockholder such
supplemented or amended prospectus.
(f) The Company will enter into customary agreements (including in the
case of an underwritten offering an underwriting agreement in customary form)
and the Company and its officers will take such other actions as are
reasonably required in order to expedite or facilitate the sale of such
Registrable Securities, including participation in any "road show" undertaken
in connection with such sale.
(g) The Company will furnish to the Registering Stockholder and to each
Underwriter a signed counterpart, addressed to the Registering Stockholder or
such Underwriter, of (i) an opinion or opinions of counsel to the Company and
(ii) a comfort letter or comfort letters from the Company's independent
public accountants, each in customary form and covering such matters of the
type customarily covered by opinions or comfort letters, as the case may be,
as the Registering Stockholder or the managing Underwriter may reasonably
request.
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(h) The Company will make generally available to its security holders,
as soon as reasonably practicable, an earnings statement covering a period of
12 months, beginning within three months after the effective date of the
registration statement, which earnings statement will satisfy the provisions
of Section 11(a) of the 1933 Act and the rules and regulations of the
Commission thereunder.
(i) The Company will use its reasonable efforts to cause all such
Registrable Securities to be listed on each securities exchange on which
securities of the same class issued by the Company are then listed.
(j) The Company may require the Registering Stockholder promptly to
furnish in writing to the Company such information regarding the Registering
Stockholder, the plan of distribution of the Registrable Securities and other
information as the Company may from time to time reasonably request or as may
be legally required in connection with such registration. The furnishing of
such information will be a condition to the Company's obligations hereunder.
3.2 Registration Expenses. Registration Expenses incurred in connection
with any registration made or requested to be made pursuant to Article II
will be borne by the Company, whether or not any such registration statement
becomes effective, to the extent permitted by applicable law. The
Registering Stockholder will pay, on a pro rata basis, any underwriting fees,
discounts or commissions attributable to the sale of the Registrable
Securities.
3.3 Indemnification by the Company. The Company agrees to indemnify and
hold harmless each Registering Stockholder, its officers and directors, and
each Person, if any, who controls each such Registering Stockholder within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages, liabilities and
expenses caused by any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or prospectus relating
to the Registrable Securities (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or expenses are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by or on behalf of such
Registering Stockholder expressly for use therein; provided, however, that
the foregoing indemnity agreement with respect to any preliminary prospectus
will not inure to the benefit of any Registering Stockholder if a copy of the
current prospectus was not provided to the applicable purchaser by such
Registering Stockholder and such current copy of the prospectus would have
cured the defect giving rise to such loss, claim, damage, liability or
expenses. The Company also agrees to indemnify any Underwriters of the
Registrable Securities, their officers and directors and each Person who
controls such underwriters on substantially the same basis as that of the
indemnification of the Registering Stockholders provided in this Section 3.3.
3.4 Indemnification by Registering Stockholders. Each Registering
Stockholder registering shares pursuant to Article II agrees, severally but
not jointly, to indemnify and hold
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harmless the Company, its officers and Directors 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 to the same extent as the
foregoing indemnity from the Company to such Registering Stockholder, but
only with reference to information related to such Registering Stockholder
furnished in writing by or oh behalf of such Registering Stockholder
expressly for use in any registration statement or prospectus relating to the
Registrable Securities, or any amendment or supplement thereto or any
preliminary prospectus; provided, however, that in no event will the
liability of any Registering Stockholder under this Section 3.4 be greater in
amount than the dollar amount of the proceeds received by such holder upon
the sale of the Registrable Securities giving rise to such indemnification
obligation. Each such Registering Stockholder also agrees to indemnify and
hold harmless any Underwriters of the Registrable Securities, their officers
and directors and each Person who controls such Underwriters on such terms as
provided for in underwriting agreement relating to such offering.
3.5 Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) is instituted involving any person
in respect of which indemnity may be sought pursuant to Section 3.3 or
Section 3.4, such Person will promptly notify the Person against whom such
indemnity may be sought in writing and the indemnifying party upon request of
the indemnified party will retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and will pay the fees and
disbursements of such counsel related to the proceeding; provided, however,
that the failure to so notify the indemnifying Person shall not relieve the
indemnifying party from any liability that it may otherwise have to such
indemnified Person, except to the extent the indemnifying Person shall have
been materially prejudiced by such failure. In any such proceeding, any
indemnified party will have the right to retain its own counsel, but the fees
and expenses of such counsel will be at the expense of such indemnified party
unless (a) the indemnifying party and the indemnified party have mutually
agreed to the retention of such counsel or (b) the named parties to any such
proceeding (including any impleaded parties) include both the indemnified
party and the indemnifying party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them, in which case the fees and expenses of such counsel
will be paid by the Company. It is understood that the indemnifying party
will not, in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the reasonable fees and expenses of more
than one separate firm of attorneys (in addition to any local counsel) at any
time for all such indemnified parties, and that all such reasonable fees and
expenses will be reimbursed as they are incurred. In the case of the
retention of any such separate firm for the indemnified parties, such firm
will be designated in writing by the indemnified parties. The indemnifying
party will not be liable for any settlement of any proceeding effected
without its consent, but if settled with such consent, or if there be a final
judgment for the plaintiff, the indemnifying party will indemnify and hold
harmless such indemnified parties from and against any loss or liability (to
the extent stated above) by reason of such settlement or judgment.
3.6 Contribution. (a) If the indemnification provided for herein is for
any reason unavailable to the indemnified parties in respect of any losses,
claims, damages or liabilities referred to herein, then each such
indemnifying party, in lieu of indemnifying such indemnified
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party, will contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the Company,
the Registering Stockholders and any Underwriter in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company, the Registering Stockholders and the
Underwriter will be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
such party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(b) The Company and each Registering Stockholder agree that it would not
be just and equitable if contribution pursuant to this Section 3.6 were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to in the
immediately preceding subsection. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the immediately preceding subsection will 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 3.6, no Registering Stockholder will be required
to contribute any amount by reason of such untrue or alleged untrue statement
or omission or alleged omission in excess of the amount received by such
Registering Stockholder upon the sale of the Registrable Securities giving
rise to such contribution obligation. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
3.7 Participation in Underwritten Registrations. Notwithstanding any
other provision of this Agreement, no Person may participate in any
underwritten registration hereunder unless such Person (a) agrees to sell
such Person's securities on the basis provided in any reasonable underwriting
arrangements approved by the Company or other Persons entitled hereunder to
approve such arrangements and (b) completes and executes all customary
questionnaires, powers of attorney, indemnities, underwriting agreements,
"lock-up" agreements and other documents reasonably required under the terms
of such underwriting arrangements and these registration rights.
3.8 Rule 144. The Company will file any reports required to be filed by
it under the Securities Act and the Exchange Act and will take such further
action as any Stockholder may reasonably request to the extent required from
time to time to enable the Stockholders to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 under the Exchange Act, as such Rule may be
amended from time to time, or other appropriate rule or regulation adopted by
the Commission. Upon the request of any Stockholder, the Company will
deliver to the Stockholder a written statement as to whether the Company has
complied with such reporting requirements.
-11-
3.9 Restrictions on Public Sale by Holders of Registrable Securities.
(a) If and to the extent requested by the managing Underwriter or
Underwriters in the case of an underwritten Public Offering, each of the
Stockholders agrees not to effect, except as part of such registration, any
sale of the shares of Common Stock or a similar security of the Company, or
any securities convertible into or exchangeable or exercisable for such
securities during such time period to which the Company agrees not to effect
any sale of securities in connection therewith, or to which the Registering
Stockholder agrees if the Company does not include any securities therein.
In addition, each of the Stockholders agrees to execute any customary lock-up
agreement reasonably requested by the managing Underwriter to confirm its
agreement in accordance with the preceding sentence, but only if identical
lock-up agreements are required of all Stockholders.
(b) Nothing in this Agreement will diminish or otherwise affect the
restrictions on transfer contained in the Stockholders Agreement.
3.10 Limitation on Future Registration Rights. So long as the SK
Holders continue to own Common Stock, the Company will not grant or agree to
grant registration rights in respect of any Common Stock of the Company (or
securities convertible or exchangeable into or exercisable for Common Stock)
to any other Person which would interfere with the rights of the SK Holders
hereunder, without the prior written consent of the SK Holders. The
provisions of this Section 3.10 will cease to apply with respect to the SK
Holders once the shares of Common Stock beneficially owned by the SK Holders
represent less than 10% of the shares of Common Stock beneficially owned by
the SK Holders on the Effective Date.
IV. MISCELLANEOUS
4.1 Headings. The headings in this Agreement are for convenience of
reference only and will not control or affect the meaning or construction of
any provisions hereof.
4.2 Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter of this Agreement. This
Agreement supersedes all prior agreements and understandings, both oral and
written, among the parties with respect to the subject matter of this
Agreement. This Agreement is not intended to confer upon any Person other
than the parties hereto and thereto any rights or remedies hereunder or
thereunder.
4.3 Notices. Any notice, request, instruction or other document
required or permitted to be given hereunder by any party hereto to another
party hereto will be in writing and will be given to such party at its
address set forth in Annex I attached hereto, with, in the case of the
Company, a copy sent to the Company's Secretary at the Company's principal
executive offices or to such other address as the party to whom notice is to
be given may provide in a written notice to the party giving such notice, a
copy of which written notice will be on file with the Secretary of the
Company. Each such notice, request or other communication will be effective
(a) if given by certified mail, 96 hours after such communication is
deposited in the mails with certified postage prepaid addressed as aforesaid,
(b) one Business Day after being furnished to a nationally recognized
overnight courier for next Business Day delivery, and (c) on the date sent if
sent by electronic facsimile transmission, receipt confirmed.
-12-
4.4 Governing Law. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York without regard to the
conflict of laws rules of such state, provided, however, that to the extent
any of the respective rights or obligations of the parties relate to matters
of the General Corporation Law of the State of Delaware (the "GCL"), the
provisions of the GCL shall govern in respect thereof.
4.5 Severability. The invalidity or unenforceability of any provisions
of this Agreement in any jurisdiction will not affect the validity, legality
or enforceability of the remainder of this Agreement in such jurisdiction or
the validity, legality or enforceability of this Agreement, including any
such provision, in any other jurisdiction, it being intended that all rights
and obligations of the parties hereunder will be enforceable to the fullest
extent permitted by law.
4.6 Termination. All rights and obligations hereunder will extend and
continue to apply until such time as all Registrable Securities may be
offered and sold without registration under the Securities Act.
4.7 Successors, Assigns and Transferees. The provisions of this
Agreement will be binding upon and inure to the benefit of the parties hereto
and their respective heirs, successors, assigns and permitted Transferees.
Except as expressly contemplated hereby, neither this Agreement nor any
provision hereof will be construed so as to confer any right or benefit upon
any Person other than the parties to this Agreement and their respective
successors and permitted assigns.
4.8 Amendments; Waivers. (a) No failure or delay on the part of any
party in exercising any right, power or privilege hereunder will operate as a
waiver thereof, nor will any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies herein provided will be cumulative and
not exclusive of any rights or remedies provided by law.
(b) Neither this Agreement nor any term or provision hereof may be
amended or waived except by an instrument in writing signed, by (i) the
Company, (ii) the SK Holders owning a majority of the Common Stock then held
by the SK Holders and entitled to the benefits of this Agreement, and (iii)
the Stockholders, other than the SK Holders, owning a majority of the
Registrable Securities then held by such Stockholders and entitled to the
benefits of this Agreement.
4.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
4.10 Remedies. The parties hereby acknowledge that money damages would
not be adequate compensation for the damages that a party would suffer by
reason of a failure of any other party to perform any of the obligations
under this Agreement. Therefore, each party hereto agrees that specific
performance is the only appropriate remedy under this Agreement and hereby
waives the claim or defense that any other party has an adequate remedy at
law.
-13-
4.11 Consent to Jurisdiction. Each of the parties hereto irrevocably
submits to the exclusive jurisdiction of either (i) any court located in the
Borough of Manhattan or the United States Federal Court sitting in the
Southern District of New York or (ii) any court located in the State of
Delaware or the United States District Court for the District of Delaware
(including any appellate court therefrom) over any suit, action or proceeding
arising out of or relating to this Agreement. Each of the parties hereto
consents to process being served in any such suit, action or proceeding by
serving a copy thereof upon the agent for service of process, provided that
to the extent lawful and possible, written notice of such service will also
be mailed to such party, as the case may be. Each of the parties hereto
agrees that such service will be deemed in every respect effective service of
process upon such party hereto, in any such suit, action or proceeding and
will be taken and held to be valid personal service upon such party. Nothing
in this subsection will affect or limit any right to serve process in any
manner permitted by law, to bring proceedings in the courts of any
jurisdiction or to enforce in any lawful manner a judgment obtained in one
jurisdiction in any other jurisdiction. Each of the parties hereto waives
any right it may have to assert the doctrine of forum non conveniens or to
object to venue to the extent any proceeding is brought in accordance with
this Section 4.11. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
-14-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
THE CHILDREN'S PLACE RETAIL STORES, INC.
By:_____________________________________________
Name: Xxxx Xxxxx
Title:
THE SK EQUITY FUND, L.P.
By: SKM Partners, L.P., its General Partner
By:_____________________________________________
Name:
Title:
SK INVESTMENT FUND, L.P.
By: SKM Partners, L.P., its General Partner
By:_____________________________________________
Name:
Title:
_____________________________________________
Xxxxx Xxxxxxxx
XXXX XXXXX XXXX XXXXXX, INCORPORATED
By:_____________________________________________
Name:
Title:
MANAGEMENT STOCKHOLDERS:
________________________________________________
Xxxx Xxxxx
________________________________________________
Xxxxx Xxxxx
-15-
________________________________________________
Xxxxxx Xxxxx
________________________________________________
Xxxxxxx Xxxxxxxxxxx
________________________________________________
Xxxxxxx Xxxxxx
________________________________________________
Xxxxxxx Xxxxx
________________________________________________
Xxxxxx Xxxxxx
________________________________________________
Xxxxxxx X. Xxxxxx
________________________________________________
Xxxxxxx X. Xxxxxxxx
________________________________________________
Xxxxxx Xxxxxxxxx
Xxxx Xxxxx Grantor Trust
By:_____________________________________________
Name:
Title: Trustee
Xxxx Xxxxx and Xxxx Xxxxx as Trustees
u/a/d 8/25/88 f/b/o Xxxxxx Xxxxx Xx.
By:_____________________________________________
Name:
Title: Trustee
-16-
Xxxx Xxxxx and Xxxx Xxxxx as Trustees
u/a/d 8/25/88 f/b/o Xxxxxxx Xxxxx
By:_____________________________________________
Name:
Title: Trustee
Xxxx Xxxxx and Xxxx Xxxxx as Trustees
u/a/d 8/25/88 f/b/o Xxx Xxxxx
By:_____________________________________________
Name:
Title: Trustee
Xxxx Xxxxx and Xxxxx Xxxxx as Custodians
under the UGMA f/b/o Xxxx Xxxxx
By:_____________________________________________
Name:
Title: Custodian
Xxxx Xxxxx and Xxxxx Xxxxx as Custodians
under the UGMA f/b/o Xxxxxx Xxxxx
By:_____________________________________________
Name:
Title: Custodian
Xxxxxx Xxxxx as Trustee
u/a/d 8/29/88 f/b/o Xxxxxx Xxxxx Xx.
By:_____________________________________________
Name:
Title: Trustee
Xxxxxx Xxxxx as Trustee
u/a/d 8/29/88 f/b/o Xxxxxxx Xxxxx
By:_____________________________________________
Name:
Title: Trustee
-17-
Xxxxxx Xxxxx as Trustee
u/a/d 8/29/88 f/b/o Xxx Xxxxx
By:_____________________________________________
Name:
Title: Trustee
Xxxxxx Xxxxx as Trustee
u/a/d 8/29/88 f/b/o Xxxxxxx Xxxxx
By:_____________________________________________
Name:
Title: Trustee
Xxxx Xxxxx and Xxxx Xxxxx as Trustees
u/a/d 8/31/92 f/b/o Xxxxxxx Xxxxx
By:_____________________________________________
Name:
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxx Xxxxx
By:_____________________________________________
Name:
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxxx Xxxxx
By:_____________________________________________
Name:
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxxx Xxxxxxxxxxx
By:_____________________________________________
Name:
Title: Trustee
-18-
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxxxxx Xxxxxxxxx
By:_____________________________________________
Name:
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxxxx Xxxx
By:_____________________________________________
Name:
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxxxx Xxxxx
By:_____________________________________________
Name:
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxx Xxxxx
By:_____________________________________________
Name:
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxx Xxxxx
By:_____________________________________________
Name:
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
x/x/x 0/0/00 x/x/x Xxxxx Xxxxx
By:_____________________________________________
Name:
Title: Trustee
-19-
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxxx Xxxxx
By:_____________________________________________
Name:
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxxxx Xxxxx
By:_____________________________________________
Name:
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxxx Xxxxxxxxxxx
By:_____________________________________________
Name:
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxxxxxx Xxxxxx
By:_____________________________________________
Name:
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxxxxxxxx Xxxxxx
By:_____________________________________________
Name:
Title: Trustee
Xxxxx Xxxxx and Xxxxx Xxxxxxxxxxx, Trustees
u/a/d 2/2/97 f/b/o Xxx Xxxxx
By:_____________________________________________
Name:
Title: Trustee
-20-
Xxxxx Xxxxx and Xxxxx Xxxxxxxxxxx, Trustees
u/a/d 2/2/97 f/b/o Xxxx Xxxxx
By:_____________________________________________
Name:
Title: Trustee
Xxxxx Xxxxx and Xxxxx Xxxxxxxxxxx, Trustees
u/a/d 2/2/97 f/b/o Xxxxx Xxxxx
By:_____________________________________________
Name:
Title: Trustee
Xxxxx Xxxxx and Xxxxx Xxxxxxxxxxx, Trustees
u/a/d 2/2/97 f/b/o Xxxxx Xxxxx
By:_____________________________________________
Name:
Title: Trustee
Xxxxx Xxxxx and Xxxxx Xxxxxxxxxxx, Trustees
u/a/d 2/2/97 f/b/o Xxxxxx Xxxxx
By:_____________________________________________
Name:
Title: Trustee
-21-
Schedule 1
Management Stockholders
1. Xxxx Xxxxx
2. Xxxxx Xxxxx
3. Xxxxxxx Xxxxx
4. Xxxxxx Xxxxx
5. Xxxxxxx Xxxxxx
6. Xxxxxxx Xxxxxxxxxxx
7. Xxxxxx X. Xxxxxx
8. Xxxxxx X. Xxxxxx
9. Xxxxxxx X. Xxxxxxxx
10. Xxxxxx Xxxxxxxxx
11. Xxxx Xxxxx Grantor Trust
12. Xxxx Xxxxx and Xxxxx Xxxxx as custodians under the UGMA, F/B/O Xxxx
Xxxxx.
00. Xxxx Xxxxx and Xxxxx Xxxxx as custodians under the UGMA, F/B/O Xxxxxx
Xxxxx.
00. Xxxx Xxxxx and Xxxx Xxxxx as Trustees, U/A/D 8/25/88, F/B/O Mac Xxxxx.
00. Xxxx Xxxxx and Xxxx Xxxxx as Trustees, U/A/D 8/25/88, F/B/O Xxxxxxx
Xxxxx.
16. Xxxx Xxxxx and Xxxx Xxxxx as Trustees, U/A/D 8/25/88, F/B/O Xxxxxx Xxxxx,
Xx.
17. Xxxx Xxxxx and Xxxx Xxxxx as Trustees U/A/D 8/31/92, F/B/O Xxxxxxx Xxxxx.
00. Xxxxxx Xxxxx as Trustee U/A/D 8/29/88, F/B/O Xxxxxxx Xxxxx.
00. Xxxxxx Xxxxx as Trustee U/A/D 8/29/88, F/B/O Xxxxxx Xxxxx, Xx.
20. Xxxxxx Xxxxx as Trustee U/A/D 8/29/88, F/B/O Mac Xxxxx.
00. Xxxxxx Xxxxx as Trustee U/A/D 8/29/88, F/B/O Xxxxxxx Xxxxx.
-22-
22. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees U/A/D 2/2/97, F/B/O Xxxx
Xxxxx.
23. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees U/A/D 2/2/97, F/B/O Xxxxx
Xxxxx.
00. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees U/A/D 2/2/97, F/B/O Xxxxx
Xxxxxxxxxxx.
25. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees U/A/D 2/2/97, F/B/O Xxxxxxx
Xxxxxxxxx.
26. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees U/A/D 2/2/97, F/B/O Xxxxxx
Xxxx.
27. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees U/A/D 2/2/97, F/B/O Xxxxxx
Xxxxx.
28. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees X/X/X 0/0/00, X/X/X Xxx
Xxxxx.
29. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees X/X/X 0/0/00, X/X/X Xxxx
Xxxxx.
30. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees X/X/X 0/0/00, X/X/X Xxxxx
Xxxxx.
31. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees X/X/X 0/0/00, X/X/X Xxxxx
Xxxxx.
32. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees X/X/X 0/0/00, X/X/X Xxxxxx
Xxxxx.
33. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees U/A/D 2/2/97, F/B/O Xxxxx
Xxxxxxxxxxx.
34. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees U/A/D 2/2/97, F/B/O Xxxxxxxx
Xxxxxx.
35. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees U/A/D 2/2/97, F/B/O
Xxxxxxxxxx Xxxxxx.
36. Xxxxx Xxxxx and Xxxxx Xxxxxxxxxxx as Trustees X/X/X 0/0/00 X/X/X Xxx
Xxxxx.
37. Xxxxx Xxxxx and Xxxxx Xxxxxxxxxxx as Trustees X/X/X 0/0/00 X/X/X Xxxx
Xxxxx.
38. Xxxxx Xxxxx and Xxxxx Xxxxxxxxxxx as Trustees X/X/X 0/0/00 X/X/X Xxxxx
Xxxxx.
39. Xxxxx Xxxxx and Xxxxx Xxxxxxxxxxx as Trustees X/X/X 0/0/00 X/X/X Xxxxx
Xxxxx.
40. Xxxxx Xxxxx and Xxxxx Xxxxxxxxxxx as Trustees X/X/X 0/0/00 X/X/X Xxxxxx
Xxxxx.
-23-
Schedule 2
Qualified Underwriters
Xxxxxxxxxx Securities
Xxxx Xxxxx & Sons
Xxxxx Xxxxxx
Xxxxxx Xxxxxxx
Xxxxxxx Xxxxx
Bear Xxxxxxx
Xxxx Xxxxx Xxxx Xxxxxx
Xxxxxxxxx Xxxxxx & Xxxxxxxx
Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxxx
Xxxxxx Brothers
CS First Boston
Xxxxx Xxxxxx
Xxxxxx Xxxx
Xxxxxxx Brothers
-24-
