REGISTRATION RIGHTS AGREEMENT by and among Liz Claiborne, Inc. the Guarantors Listed on Schedule I hereto and Merrill Lynch, Pierce, Fenner & Smith Incorporated as representative of the several Initial Purchasers Dated as of April 7, 2011
Exhibit 4.2
by and among
Liz Claiborne, Inc.
the Guarantors Listed on Schedule I hereto
the Guarantors Listed on Schedule I hereto
and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
as representative of the several Initial Purchasers
Dated as of April 7, 2011
This Registration Rights Agreement (this “Agreement”) is made and entered into as of April 7,
2011, by and among Liz Claiborne, Inc., a Delaware corporation (the “Company”), the guarantors
listed on Schedule I hereto (collectively, the “Guarantors”) and Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, as representative of the several initial purchasers (collectively, the “Initial
Purchasers”), each of whom has agreed to purchase the Company’s 10.50% Senior Secured Notes due
2019 (the “Initial Notes”) fully and unconditionally guaranteed by the Guarantors (the
“Guarantees”) pursuant to the Purchase Agreements (as defined below). The Initial Notes and the
Guarantees attached thereto are herein collectively referred to as the “Initial Securities.”
This Agreement is made pursuant to the Purchase Agreement, dated April 1, 2011 and the
Purchase Agreement dated April 5, 2011 (collectively, the “Purchase Agreements”), by and among the
Company, the Guarantors and the Initial Purchasers (i) for the benefit of the Initial Purchasers
and (ii) for the benefit of the holders from time to time of Initial Securities, including the
Initial Purchasers. In order to induce the Initial Purchasers to purchase the Initial Securities,
the Company has agreed to provide the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the obligations of the Initial
Purchasers set forth in Section 5(f) of each Purchase Agreement. Capitalized terms used herein and
not otherwise defined shall have the meaning assigned to them in the Indenture, dated as of April
7, 2011 (as amended or supplemented from time to time, the “Indenture”), by and among the Company,
the Guarantors and U.S. Bank National Association, as trustee (the “Trustee”), relating to the
Initial Notes and the Exchange Notes (as defined below).
The parties hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following capitalized terms shall have
the following meanings:
Additional Interest: As defined in Section 5 hereof.
Advice: As defined in Section 6(d) hereof.
Affiliate: As defined in Rule 144.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: Any day other than a Saturday, Sunday or U.S. federal holiday or a day on which
banking institutions or trust companies located in New York, New York are authorized or obligated
to be closed. If the time to perform any action hereunder falls on a day that is not a Business
Day, such time will be extended to the next Business Day and no Additional Interest shall accrue
for the intervening period.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed “Consummated” for purposes of this Agreement
upon the occurrence of (i) the filing and effectiveness under the Securities Act of the Exchange
Offer Registration Statement relating to the Exchange Securities to be issued in the Exchange
Offer, (ii) the maintenance of such Exchange Offer Registration Statement continuously effective
and the keeping of the Exchange Offer open for a period not less than the minimum period required
pursuant to Section 3(b) hereof, and (iii) the delivery by the Company to the Registrar under the
Indenture of Exchange Securities in the same aggregate principal amount as the aggregate principal
amount of Initial Securities that were validly tendered (and not withdrawn) by Holders thereof
pursuant to the Exchange Offer.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Date: As defined in Section 3(a) hereto.
Exchange Offer: The registration by the Company under the Securities Act of the issuance of
the Exchange Securities pursuant to a Registration Statement pursuant to which the Company offers
the Holders of all outstanding Transfer Restricted Securities the opportunity to exchange all such
outstanding Transfer Restricted Securities held by such Holders for Exchange Securities in an
aggregate principal amount equal to the aggregate principal amount of the Transfer Restricted
Securities tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement relating to the Exchange
Offer, including the related Prospectus.
Exchange Securities or Exchange Notes: The 10.50% Senior Secured Notes due 2019, of the same
series under the Indenture as the Initial Notes and the Guarantees attached thereto, to be issued
to Holders in exchange for Transfer Restricted Securities pursuant to this Agreement.
FINRA: Financial Industry Regulatory Authority, Inc.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: As defined in the preamble hereto.
Initial Notes: As defined in the preamble hereto.
Initial Placement: The issuance and sale by the Company of the Initial Securities to the
Initial Purchasers pursuant to the Purchase Agreements.
Initial Purchasers: As defined in the preamble hereto.
Initial Securities: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the Securities.
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Person: An individual, partnership, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as amended or supplemented
by any prospectus supplement and by all other amendments thereto, including post-effective
amendments, and all material incorporated by reference into such Prospectus.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company and the Guarantors relating
to (a) an offering of Exchange Securities pursuant to an Exchange Offer or (b) the registration for
resale of Transfer Restricted Securities pursuant to the Shelf Registration Statement, in each
case, (i) that is filed pursuant to the provisions of this Agreement, (ii) including the Prospectus
included therein, and (iii) including all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by reference therein.
Rule 144: Rule 144 promulgated under the Securities Act.
Securities: The Initial Securities and/or the Exchange Securities, as applicable.
Securities Act: The Securities Act of 1933, as amended.
Shelf Effectiveness Deadline: As defined in Section 4(a) hereof.
Shelf Registration Statement: As defined in Section 4(a) hereof.
Transfer Restricted Securities: The Initial Securities; provided that the Initial Securities
shall cease to be Transfer Restricted Securities on the earliest to occur of (i) the date on which
a Registration Statement with respect to such Initial Securities has become effective under the
Securities Act and such Initial Securities have been exchanged or disposed of pursuant to such
Registration Statement or (ii) the date on which such Initial Securities cease to be outstanding.
Trust Indenture Act: The Trust Indenture Act of 1939, as amended.
Underwritten Registration or Underwritten Offering: A registration in which securities of the
Company are sold to an underwriter for reoffering to the public.
SECTION 2. Securities Subject to this Agreement.
(a) Transfer Restricted Securities. The securities entitled to the benefits of this Agreement
are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be a holder of Transfer
Restricted Securities (each, a “Holder”) whenever such Person owns Transfer Restricted Securities.
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SECTION 3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permissible under applicable law or Commission
policy (after the procedures set forth in Section 6(a)(i) hereof have been complied with), or there
are no Transfer Restricted Securities outstanding, the Company and the Guarantors shall (i) cause
the Exchange Offer Registration Statement to be filed with the Commission, (ii) use their
reasonable best efforts to cause such Exchange Offer Registration Statement to become effective,
(iii) in connection with the foregoing, use reasonable best efforts to (A) file all pre-effective
amendments to such Exchange Offer Registration Statement as may be necessary in order to cause it
to become effective, (B) file, if applicable, a post-effective amendment to such Exchange Offer
Registration Statement pursuant to Rule 430A under the Securities Act and (C) cause all necessary
filings, if any, in connection with the registration and qualification of the Exchange Securities
to be made under the state securities or blue sky laws of such jurisdictions as are necessary to
permit Consummation of the Exchange Offer, provided, however, that neither the Company nor any
Guarantor shall be required to take any action that would subject them to general service of
process or taxation in any jurisdiction where they are not already subject, and (iv) upon the
effectiveness of such Exchange Offer Registration Statement, commence the Exchange Offer. Each of
the Company and the Guarantors shall use their reasonable best efforts to Consummate the Exchange
Offer not later than 366 days following the Closing Date (such 366th day being the “Exchange
Date”). The Exchange Offer, if required pursuant to this Section 3(a), shall be on the appropriate
form permitting registration of the Exchange Securities to be offered in exchange for the Transfer
Restricted Securities and to permit resales of Initial Securities held by Broker-Dealers as
contemplated by Section 3(c) hereof.
(b) If an Exchange Offer Registration Statement is required to be filed and declared effective
pursuant to Section 3(a) above, the Company and the Guarantors shall use reasonable best efforts to
cause the Exchange Offer Registration Statement to be effective continuously, and shall keep the
Exchange Offer open for a period of not less than the minimum period required under applicable
federal and state securities laws to Consummate the Exchange Offer; provided, however, that in no
event shall such period be less than 20 Business Days after the date notice of the Exchange Offer
is mailed to the Holders. The Company shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the Exchange Securities shall be
included in the Exchange Offer Registration Statement.
(c) The Company shall indicate in a “Plan of Distribution” section contained in the Prospectus
forming a part of the Exchange Offer Registration Statement that any Broker-Dealer who holds
Transfer Restricted Securities that were acquired for its own account as a result of market-making
activities or other trading activities (other than Initial Securities acquired directly from the
Company), may exchange such Transfer Restricted Securities pursuant to the Exchange Offer. Such
“Plan of Distribution” section shall also contain all other information with respect to such
resales by Broker-Dealers that the Commission may require in order to permit such resales pursuant
thereto, but such “Plan of Distribution” shall not name any such Broker-Dealer or disclose the
amount of Transfer Restricted Securities held by any such Broker-Dealer except to the extent
required by the Commission as a result of a change in policy after the date of this Agreement.
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Because such Broker-Dealer may be deemed to be an “underwriter” within the meaning of the
Securities Act and must, therefore, deliver a prospectus meeting the requirements of the Securities
Act in connection with resales of any Exchange Securities received by such Broker-Dealer in the
Exchange Offer, the Company and the Guarantors shall permit the use of the Prospectus contained in
the Exchange Offer Registration Statement by such Broker-Dealer to satisfy such prospectus delivery
requirement. The Company and the Guarantors shall use their reasonable best efforts to keep the
Exchange Offer Registration Statement continuously effective, supplemented and amended as required
by the provisions of Section 6(c) hereof to the extent necessary to ensure that it is available for
resales of Transfer Restricted Securities acquired by Broker-Dealers for their own accounts as a
result of market-making activities or other trading activities, and to ensure that it conforms with
the requirements of this Agreement, the Securities Act and the policies, rules and regulations of
the Commission as announced from time to time, for a period ending on the earlier of (i) 180 days
from the date on which the Exchange Offer Registration Statement is declared effective and (ii) the
date on which a Broker-Dealer is no longer required to deliver a prospectus in connection with
market-making or other trading activities.
Upon request, the Company shall provide sufficient copies of the latest version of such
Prospectus to such Broker-Dealers within five Business Days after such request at any time during
such 180-day (or shorter, as provided in the foregoing sentence) period in order to facilitate such
resales.
SECTION 4. Shelf Registration.
(a) Shelf Registration. If (i) the Company and the Guarantors are not required to file an
Exchange Offer Registration Statement or to Consummate the Exchange Offer solely because the
Exchange Offer is not permitted by applicable law or Commission policy (after the procedures set
forth in Section 6(a)(i) hereof have been complied with), (ii) for any reason the Exchange Offer is
not Consummated by the Exchange Date, or (iii) prior to the Exchange Date, (A) the Initial
Purchasers request from the Company with respect to Transfer Restricted Securities not eligible to
be exchanged for Exchange Securities in the Exchange Offer or (B) any Holder of Transfer Restricted
Securities notifies the Company that (1) such Holder is prohibited by applicable law or Commission
policy from participating in the Exchange Offer, (2) such Holder may not resell the Exchange
Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and
that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder, or (3) such Holder is a Broker-Dealer and holds Transfer
Restricted Securities acquired directly from the Company or one of its Affiliates, then the Company
and the Guarantors shall use their reasonable best efforts to cause to be filed and declared
effective a shelf registration statement pursuant to Rule 415 under the Securities Act, which may
be an amendment to the Exchange Offer Registration Statement (in either event, the “Shelf
Registration Statement”) on or prior to the earlier of (i) the 90th day after the date such
obligation arises pursuant to this clause and (ii) the 90th day after the Closing Date (such later
date being the “Shelf Effectiveness Deadline”), which Shelf Registration Statement shall provide
for resales of all Transfer Restricted Securities the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof.
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Each of the Company and the Guarantors shall use their reasonable best efforts to keep such
Shelf Registration Statement continuously effective, supplemented and amended as required by the
provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is available
for resales of Transfer Restricted Securities by the Holders of such Securities entitled to the
benefit of this Section 4(a), and to ensure that it conforms with the requirements of this
Agreement in all material respect, the Securities Act and the policies, rules and regulations of
the Commission as announced from time to time, from the date on which the Shelf Registration
Statement is declared effective by the Commission until the expiration of the one-year period
referred to in Rule 144 applicable to securities held by non-affiliates under the Securities Act
(or shorter period that will terminate when all the Transfer Restricted Securities covered by such
Shelf Registration Statement have been sold pursuant to such Shelf Registration Statement).
(b) Provision by Holders of Certain Information in Connection with the Shelf Registration
Statement. No Holder of Transfer Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this Agreement unless and until such
Holder furnishes to the Company in writing, within 20 Business Days after receipt of a request
therefor, such information as required by Regulation S-K of the Securities Act or, reasonably
requested by the Company for use in connection with any Shelf Registration Statement or Prospectus
or preliminary Prospectus included therein. No Holder shall be entitled to Additional Interest
pursuant to Section 5 hereof unless and until (and from and after such time) such Holder shall have
provided all such information. Each Holder as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by such Holder not materially
misleading and shall promptly supply such other information as the Company may from time to time
reasonably request.
SECTION 5. Additional Interest. If (i) the Exchange Offer has not been Consummated by the
Exchange Date, (ii) any Shelf Registration Statement, if required hereby, has not been declared
effective by the Commission by the Shelf Effectiveness Deadline or (iii) any Registration Statement
required by this Agreement has been declared effective but ceases to be effective or otherwise
available at any time for more than 60 calendar days in a twelve month period during which it is
required to be effective under this Agreement (each such event referred to in clauses (i) through
(iii), a “Registration Default”), the Company hereby agrees that the interest rate borne by the
Transfer Restricted Securities shall be increased by 0.25% per annum during the 90-day period
immediately following the occurrence of any Registration Default and shall increase by 0.25% per
annum at the end of each subsequent 90-day period (such increase, “Additional Interest”), but in no
event shall such increase exceed 1.00% per annum on the principal amount of Transfer Restricted
Securities; provided that the Company and the Guarantors shall in no event be required to pay
Additional Interest for more than one Registration Default at any given time. At the cure of all
Registration Defaults relating to the particular Transfer Restricted Securities, the interest rate
borne by the relevant Transfer Restricted Securities will be reduced to the original interest rate
borne by such Transfer Restricted Securities.
All accrued Additional Interest shall be paid by the Company and the Guarantors (or the
Company and the Guarantors will cause the Paying Agent to make such payment on their behalf) to the
Holders entitled thereto, in the manner provided for the payment of interest in the Indenture,
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on each Interest Payment Date, as more fully set forth in the Indenture, the Initial
Notes and the Exchange Notes. All obligations of the Company and the Guarantors set forth in the
preceding paragraph that are outstanding with respect to any Transfer Restricted Security at the
time such security ceases to be a Transfer Restricted Security shall survive until such time as all
such obligations with respect to such security shall have been satisfied in full.
SECTION 6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with the Exchange Offer, if required
pursuant to Section 3(a) hereof, the Company and the Guarantors shall comply with all of the
provisions of Section 6(c) hereof, shall use their reasonable best efforts to effect such exchange
to permit the sale of Transfer Restricted Securities being sold in accordance with the intended
method or methods of distribution thereof, and shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the Company there is a question as to
whether the Exchange Offer is permitted by applicable law, each of the Company and the
Guarantors hereby agrees to use their reasonable best efforts to seek a no-action letter or
other favorable decision from the Commission allowing the Company and the Guarantors to
Consummate an Exchange Offer for such Transfer Restricted Securities. Each of the Company
and the Guarantors hereby agrees to pursue the issuance of such a decision to the Commission
staff level but shall not be required to take commercially unreasonable action to effect a
change of Commission policy. In connection with the foregoing, each of the Company and the
Guarantors hereby agrees, however, to (A) participate in telephonic conferences with the
Commission, (B) deliver to the Commission staff an analysis prepared by counsel to the
Company setting forth the legal bases, if any, upon which such counsel has concluded that
such an Exchange Offer should be permitted and (C) diligently pursue a resolution (which
need not be favorable and which need not be a written resolution) by the Commission staff of
such submission.
(ii) As a condition to its participation in the Exchange Offer pursuant to the terms of
this Agreement, each Holder of Transfer Restricted Securities (including, without
limitation, any Holder who is a Broker-Dealer) shall furnish, upon the request of the
Company, prior to the Consummation of the Exchange Offer, a written representation to the
Company and the Guarantors (which may be contained in the letter of transmittal contemplated
by the Exchange Offer Registration Statement) to the effect that (A) it is not an Affiliate
of the Company, (B) it is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any Person to participate in, a distribution of the
Exchange Securities to be issued in the Exchange Offer, (C) it is acquiring the Exchange
Securities in its ordinary course of business, and (D) only if such Holder is a
Broker-Dealer that will receive Exchange Securities in exchange for Initial Securities that
such Broker-Dealer acquired for its own private account as a result of market making or
other trading activities, it will deliver a Prospectus, as required by law, in connection
with any sale of such Exchange Securities. In addition, all such Holders of Transfer
Restricted Securities shall otherwise cooperate in the Company’s preparations for the
Exchange Offer. As a condition to its participation in the Exchange Offer, each Holder
hereby
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acknowledges and agrees that any Broker-Dealer and any such Holder using the Exchange
Offer to participate in a distribution of the securities to be acquired in the Exchange
Offer (1) could not, under Commission policy as in effect on the date of this Agreement,
rely on the position of the Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13,
1988), as interpreted in the Commission’s letter to Shearman & Sterling dated July
2, 1993, and similar no-action letters (which may include any no-action letter obtained
pursuant to clause (i) above), and (2) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with a secondary resale
transaction and that such a secondary resale transaction should be covered by an effective
registration statement containing the selling security holder information required by Item
507 or 508, as applicable, of Regulation S-K if the resales are of Exchange Securities
obtained by such Holder in exchange for Transfer Restricted Securities acquired by such
Holder directly from the Company.
(b) Shelf Registration Statement. If required pursuant to Section 4, in connection with the
Shelf Registration Statement, each of the Company and the Guarantors shall comply with all the
provisions of Section 6(c) hereof and shall use their reasonable best efforts to effect such
registration to permit the sale of the Transfer Restricted Securities being sold in accordance with
the intended method or methods of distribution thereof, and pursuant thereto each of the Company
and the Guarantors will as expeditiously as possible prepare and file with the Commission a
Registration Statement relating to the registration on any appropriate form under the Securities
Act, which form shall be available for the sale of the Transfer Restricted Securities in accordance
with the intended method or methods of distribution thereof.
(c) General Provisions. In connection with any Registration Statement and any Prospectus
required by this Agreement to permit the sale or resale of Transfer Restricted Securities
(including, without limitation, any Registration Statement and the related Prospectus required to
permit resales of Transfer Restricted Securities by Broker-Dealers), each of the Company and the
Guarantors shall:
(i) use their reasonable best efforts to keep such Registration Statement continuously
effective and provide all requisite financial statements (including, if required by the
Securities Act or any regulation thereunder, financial statements of the Guarantors) for the
period specified in Section 3 or 4 hereof, as applicable; upon the occurrence of any event
that would cause any such Registration Statement or the Prospectus contained therein (A) to
contain a material misstatement or omission or (B) not to be effective and usable for resale
of Transfer Restricted Securities during the period required by this Agreement, the Company
shall file promptly an appropriate amendment to such Registration Statement, in the case of
clause (A), correcting any such misstatement or omission, and, if Commission review is
required, use their reasonable best efforts to cause such amendment to be declared effective
and such Registration Statement and the related Prospectus to become usable for their
intended purpose(s) as soon as practicable thereafter;
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(ii) use their reasonable best efforts to prepare and file with the Commission such
amendments and post-effective amendments to the applicable Registration Statement
as may be necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as applicable, or such shorter period
as will terminate when all Transfer Restricted Securities covered by such Registration
Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities
Act, and to comply fully with the applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration Statement during
the applicable period in accordance with the intended method or methods of distribution by
the sellers thereof set forth in such Registration Statement or supplement to the
Prospectus;
(iii) advise each Holder whose Transfer Restricted Securities have been included in a
Shelf Registration Statement, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any Registration Statement or
any post-effective amendment thereto, when the same has become effective, (B) of any request
by the Commission for amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration Statement
under the Securities Act or of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the preceding purposes, (D) of
the happening of any event that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the making of any additions to or
changes in the Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state securities or blue sky laws,
each of the Company and the Guarantors shall use their reasonable best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(iv) in the case of a Shelf Registration Statement, furnish without charge, upon
request, to each selling Holder named in any Registration Statement, and each of the
underwriter(s), if any, before filing with the Commission, copies of any Registration
Statement or any Prospectus included therein or any amendments or supplements to any such
Registration Statement or Prospectus (including all documents incorporated by reference
after the initial filing of such Registration Statement), which documents will be subject to
the review and comment of such Holders and underwriter(s) in connection with such sale, if
any, for a period of at least three Business Days, and the Company will not file any such
Registration Statement or Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus (including all such documents incorporated by
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reference) to which a
Holder of Transfer Restricted Securities covered by such Registration Statement or the
underwriter(s), if any, shall reasonably object in writing within three
Business Days after the receipt thereof (such objection to be deemed timely made upon
confirmation of telecopy transmission within such period). The objection of an Initial
Purchaser or underwriter, if any, shall be deemed to be reasonable if such Registration
Statement, amendment, Prospectus or supplement, as applicable, as proposed to be filed,
contains a material misstatement or omission. Notwithstanding the foregoing, the Company
shall not be required to take any actions under this Section 6(c)(iv) that are not, in the
reasonable opinion of counsel for the Company, in compliance with applicable law;
(v) in the case of a Shelf Registration Statement, promptly prior to the filing of any
document that is to be incorporated by reference into a Registration Statement or Prospectus
in connection with such registration or sale, if any, provide copies of such document to
each selling Holder named in the Registration Statement in connection with such exchange,
registration or sale, if any, and to the underwriter(s), if any, make the Company’s and the
Guarantors’ representatives available for discussion of such document and other customary
due diligence matters subject to execution and delivery of customary confidentiality
agreements, and include such information in such document prior to the filing thereof as
such selling Holders or underwriter(s), if any, reasonably may request;
(vi) in the case of a Shelf Registration Statement, make available at reasonable times
for inspection by the selling Holders, the managing underwriter(s), if any, participating in
any disposition pursuant to such Registration Statement and any attorney or accountant
retained by such selling Holder or any of the underwriter(s), all financial and other
records, pertinent corporate documents and properties of each of the Company and the
Guarantors and cause the Company’s and the Guarantors’ officers, directors and employees to
supply all information reasonably requested by any such Holder, underwriter, attorney or
accountant in connection with such Registration Statement or any post-effective amendment
thereto subsequent to the filing thereof and prior to its effectiveness and to participate
in meetings with investors to the extent requested by the managing underwriter(s), if any;
provided that any Holder or representative thereof requesting or receiving such information
shall agree to be bound by reasonable confidentiality agreements and procedures with respect
thereto;
(vii) in the case of a Shelf Registration Statement, if requested by any selling
Holders or the underwriter(s), if any, promptly incorporate in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriter(s), if any, may reasonably request to
have included therein, including, without limitation, information relating to the “Plan of
Distribution” of the Transfer Restricted Securities, information with respect to the
principal amount of Transfer Restricted Securities being sold to such underwriter(s), the
purchase price being paid therefor and any other terms of the offering of the Transfer
Restricted Securities to be sold in such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as practicable after the Company
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is notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(viii) in the case of a Shelf Registration Statement, upon request, furnish to each
selling Holder and each of the underwriter(s), if any, without charge, at least one copy of
the Registration Statement, as first filed with the Commission, and of each amendment
thereto, including financial statements and schedules (without all documents incorporated by
reference therein or exhibits thereto, unless requested);
(ix) in the case of a Shelf Registration Statement, upon request, deliver to each
selling Holder and each of the underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or supplement thereto
as such Persons reasonably may request; provided, that if no Registration Statement is
effective or no Prospectus is usable in accordance with the provisions of Section 6(b)
hereof, the Company shall deliver to each selling Holder a notice to that effect in response
to such request; each of the Company and the Guarantors hereby consents to the use (in
accordance with law) of the Prospectus and any amendment or supplement thereto by each of
the selling Holders and each of the underwriter(s), if any, in connection with the offering
and the sale of the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(x) in the case of a Shelf Registration Statement, upon the reasonable request of such
Holder, enter into such agreements (including an underwriting agreement containing customary
terms), and make such representations and warranties, and take all such other actions in
connection therewith in order to expedite or facilitate the disposition of the Transfer
Restricted Securities pursuant to any Registration Statement contemplated by this Agreement,
all to such extent as may be customarily and reasonably requested by any Holder or Holders
of Transfer Restricted Securities or underwriter in connection with any sale or resale
pursuant to any Registration Statement contemplated by this Agreement; and whether or not an
underwriting agreement is entered into and whether or not the registration is an
Underwritten Registration, each of the Company and the Guarantors shall:
(A) upon the request of any Holder, furnish to each selling Holder and each
underwriter, if any, in such substance and scope as they may reasonably request and
as are customarily made by issuers to underwriters in primary underwritten
offerings, upon the date of the effectiveness of the Shelf Registration Statement:
(1) a certificate in customary form, dated the date of effectiveness of
the Shelf Registration Statement, as the case may be, signed by (y) the
Chief Executive Officer or any Vice President and (z) a principal financial
or accounting officer of the Company and such Guarantor, confirming, as of
the date thereof, the matters set forth in paragraphs (i) and (ii) of
Section 5(e) of the Purchase Agreements and such other matters as such
parties may reasonably request;
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(2) an opinion in customary form, dated the date of the effectiveness
of the Shelf Registration Statement of counsel for the Company and the
Guarantors, covering the matters customarily covered in opinions
request in similar underwritten offerings and such other matters as
such parties may reasonably request; and
(3) use reasonable best efforts to obtain a customary comfort letter,
dated the date of effectiveness of the Shelf Registration Statement, from
the Company’s independent accountants, in the customary form and covering
matters of the type customarily requested to be covered in comfort letters
by underwriters in connection with primary underwritten offerings, and
covering or affirming the matters set forth in the comfort letters delivered
pursuant to Section 5(a) of the Purchase Agreements, without exception;
(B) deliver such other documents and certificates as may be reasonably
requested by such parties to evidence compliance with Section 6(c)(x)(A) hereof and
with any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company or any of the Guarantors pursuant to this
Section 6(c)(x), if any.
(xi) prior to any public offering of Transfer Restricted Securities, cooperate with the
selling Holders, the underwriter(s), if any, and their respective counsel in connection with
the registration and qualification of the Transfer Restricted Securities under the state
securities or blue sky laws of such jurisdictions as the selling Holders or underwriter(s),
if any, may request and do any and all other acts or things necessary or advisable to enable
the disposition in such jurisdictions of the Transfer Restricted Securities covered by the
Shelf Registration Statement; provided, however, that none of the Company nor the Guarantors
shall be required to register or qualify as a foreign corporation where it is not then so
qualified or to take any action that would subject it to the service of process in suits or
to taxation, other than as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not then so subject;
(xii) shall issue, upon the request of any Holder of Transfer Restricted Securities
covered by the Shelf Registration Statement, Exchange Securities having an aggregate
principal amount equal to the aggregate principal amount of Transfer Restricted Securities
surrendered to the Company by such Holder in exchange therefor or being sold by such Holder,
such Exchange Securities to be registered in the name of such Holder or in the name of the
purchaser(s) of such Securities, as the case may be, and in return, the Transfer Restricted
Securities held by such Holder shall be surrendered to the Company for cancellation;
(xiii) cooperate with the selling Holders and the underwriter(s), if any, to facilitate
the timely preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and enable such Transfer
Restricted Securities to be in such denominations and registered in such names as the
-12-
Holders or the underwriter(s), if any, may request at least three Business Days prior to any
sale of Transfer Restricted Securities made by such Holders or underwriter(s);
(xiv) use their reasonable best efforts to cause the Transfer Restricted Securities
covered by the Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller or sellers
thereof or the underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in Section 6(c)(xii) hereof;
(xv) if any fact or event contemplated by Section 6(c)(iii)(D) hereof shall exist or
have occurred, prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements therein
not misleading;
(xvi) provide a CUSIP number for all Securities not later than the effective date of
the Registration Statement covering such Securities and provide the Trustee under the
Indenture with printed certificates for such Securities which are in a form eligible for
deposit with the Depository Trust Company and take all other action necessary to ensure that
all such Securities are eligible for deposit with the Depository Trust Company;
(xvii) cooperate and assist in any filings required to be made with FINRA and in the
performance of any due diligence investigation by any underwriter (including any “qualified
independent underwriter”) that is required to be retained in accordance with the rules and
regulations of FINRA;
(xviii) otherwise use their reasonable best efforts to comply with all applicable rules
and regulations of the Commission, and make generally available to its security holders, as
soon as practicable, a consolidated earnings statement meeting the requirements of Rule 158
under the Securities Act (which need not be audited) for the twelve-month period commencing
after the effective date of the Registration Statement;
(xix) cause the Indenture to be qualified under the Trust Indenture Act not later than
the effective date of the first Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the Holders of Securities to effect
such changes to the Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the Trust Indenture Act; and to execute and use its reasonable
best efforts to cause the Trustee to execute, all documents that may be required to effect
such changes and all other forms and documents required to be filed with the Commission to
enable such Indenture to be so qualified in a timely manner; and
(xx) provide promptly to each Holder upon request each document filed with the
Commission pursuant to the requirements of Section 13 and Section 15 of the Exchange Act.
-13-
(d) Restrictions on Holders. Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of the notice referred to in Section 6(c)(iii)(C) or any notice from
the Company of the existence of any fact of the kind described in Section 6(c)(iii)(D) hereof (in
each case, a “Suspension Notice”), such Holder will forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the applicable Registration Statement until (i) such Holder’s
receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(c)(xv)
hereof, or (ii) it is advised in writing (the “Advice”) by the Company that the use of the
Prospectus may be resumed, and has received copies of any additional or supplemental filings that
are incorporated by reference in the Prospectus. Each Holder receiving a Suspension Notice hereby
agrees that it will either (i) destroy any Prospectuses, other than permanent file copies, then in
such Holder’s possession which have been replaced by the Company with more recently dated
Prospectuses, or (ii) deliver to the Company (at the Company’s expense) all copies, other than
permanent file copies then in such Holder’s possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such notice. In the event the
Company shall give any such notice, the time period regarding the effectiveness of such
Registration Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended by the
number of days during the period from and including the date of the giving of such notice pursuant
to Section 6(c)(iii)(D) hereof to and including the date when each selling Holder covered by such
Registration Statement shall have received the copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xv) hereof or shall have received the Advice; provided, however, that
no such extension shall be taken into account in determining whether Additional Interest is due
pursuant to Section 5 hereof or the amount of such Additional Interest, it being agreed that the
Company’s option to suspend use of a Registration Statement pursuant to this paragraph shall be
treated as a Registration Default for purposes of Section 5 hereof.
SECTION 7. Registration Expenses.
(a) All expenses incident to the Company’s and the Guarantors’ performance of or compliance
with this Agreement will be borne by the Company and the Guarantors, jointly and severally,
regardless of whether a Registration Statement becomes effective, including, without limitation:
(i) all registration and filing fees and expenses (including filings made by any Initial Purchaser
or Holder with FINRA (and, if applicable, the fees and expenses of any “qualified independent
underwriter” and its counsel that may be required by the rules and regulations of FINRA)); (ii) all
fees and expenses of compliance with federal securities and state securities or blue sky laws;
(iii) all expenses of printing (including printing certificates for the Exchange Securities to be
issued in the Exchange Offer and printing of Prospectuses), messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for the Company and the Guarantors and,
subject to Section 7(b) hereof, reasonable and documented fees and disbursements for one counsel
for all of the Holders of Transfer Restricted Securities; (v) all application and filing fees in
connection with listing the Exchange Securities on a securities exchange or automated quotation
system pursuant to the requirements thereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company and the Guarantors (including the expenses of any
special audit and comfort letters required by or incident to such performance).
Each of the Company and the Guarantors will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and employees performing
-14-
legal or accounting duties), the expenses of any annual audit and the fees and expenses of any
Person, including special experts, retained by the Company or the Guarantors.
(b) In connection with any Registration Statement required by this Agreement (including,
without limitation, the Exchange Offer Registration Statement and the Shelf Registration
Statement), the Company and the Guarantors, jointly and severally, will reimburse the Initial
Purchasers and the Holders of Transfer Restricted Securities being tendered in the Exchange Offer
and/or resold pursuant to the “Plan of Distribution” contained in the Exchange Offer Registration
Statement or registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable and documented fees and disbursements of not more than one counsel, who shall be Xxxxxx
Xxxxxx & Xxxxxxx llp or such other counsel as may be chosen by the Holders of a majority
in principal amount of the Transfer Restricted Securities for whose benefit such Registration
Statement is being prepared.
SECTION 8. Indemnification.
(a) The Company and the Guarantors agree, jointly and severally, to indemnify and hold
harmless (i) each Initial Purchaser and each Holder and (ii) each Person, if any, who controls
(within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any
Initial Purchaser or any Holder (any of the Persons referred to in this clause (ii) being
hereinafter referred to as a “controlling person”) and (iii) the respective officers, directors,
partners, employees, representatives and agents of any Holder or any controlling person (any Person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an “Indemnified
Holder”), to the fullest extent lawful, from and against any and all losses, claims, damages,
liabilities, judgments, actions and expenses (including, without limitation, and as incurred,
reimbursement of all reasonable out-of-pocket costs of investigating, preparing, pursuing,
settling, compromising, paying or defending any claim or action, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, including the reasonable fees and
expenses of counsel to any Indemnified Holder), joint or several, directly or indirectly caused by,
related to, based upon, arising out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or Prospectus (or any
amendment or supplement thereto), or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses are caused by an untrue
statement or omission or alleged untrue statement or omission that is based upon information
relating to any of the Initial Purchasers or any of the Holders furnished in writing to the Company
by or on behalf of the Initial Purchasers or any of the Holders expressly for use therein. This
indemnity agreement shall be in addition to any liability which the Company or any of the
Guarantors may otherwise have.
In case any action or proceeding (including any governmental or regulatory investigation or
proceeding) shall be brought or asserted against any of the Indemnified Holders with respect to
which indemnity may be sought against the Company or the Guarantors, such Indemnified Holder (or
the Indemnified Holder controlled by such controlling person) shall promptly notify the Company and
the Guarantors in writing; provided, however, that the failure to give such notice shall not
relieve any of the Company or the Guarantors of its obligations pursuant to this
-15-
Agreement except to the extent that it had been materially prejudiced by such failure (through
forfeiture of substantive rights). Such Indemnified Holder shall have the right to employ its own
counsel in any such action and the fees and expenses of such counsel shall be paid, as incurred, by
the Company and the Guarantors. The Company and the Guarantors shall not, in connection with any
one such action or proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations or circumstances,
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 such Indemnified Holders, which firm shall be
designated by the Holders. The Company and the Guarantors shall be liable for any settlement of
any such action or proceeding effected with the Company’s and the Guarantors’ prior written
consent, which consent shall not be withheld unreasonably, and each of the Company and the
Guarantors agrees to indemnify and hold harmless any Indemnified Holder from and against any loss,
claim, damage, liability or reasonable out-of-pocket expense by reason of any settlement of any
action effected with the written consent of the Company and the Guarantors. The Company and the
Guarantors shall not, without the prior written consent of each Indemnified Holder, settle or
compromise or consent to the entry of judgment in or otherwise seek to terminate any pending or
threatened action, claim, litigation or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not any Indemnified Holder is a party thereto),
unless such settlement, compromise, consent or termination (i) includes an unconditional release of
each Indemnified Holder from all liability arising out of such action, claim, litigation or
proceeding and (ii) does not include a statement as to an admission of fault, culpability or a
failure to act, by or on behalf of the Indemnified Holder.
(b) By its acquisition of Transfer Restricted Securities each Holder of Transfer Restricted
Securities agrees, severally and not jointly, to indemnify and hold harmless the Company, the
Guarantors and their respective directors and officers of the Company and the Guarantors who sign a
Registration Statement, and any Person controlling (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) the Company or any of the Guarantors, and the
respective officers, directors, partners, employees, representatives and agents of each such
Person, to the same extent as the foregoing indemnity from the Company and the Guarantors to each
of the Indemnified Holders, but only with respect to claims and actions based on information
relating to such Holder furnished in writing by such Holder expressly for use in any Registration
Statement. In case any action or proceeding shall be brought against the Company, the Guarantors
or their respective directors or officers or any such controlling person in respect of which
indemnity may be sought against a Holder of Transfer Restricted Securities, such Holder shall have
the rights and duties given the Company and the Guarantors, and the Company, the Guarantors, their
respective directors and officers and such controlling person shall have the rights and duties
given to each Holder by the preceding paragraph.
(c) If the indemnification provided for in this Section 8 is unavailable to an indemnified
party under Section 8(a) or (b) hereof (other than by reason of exceptions provided in those
Sections) in respect of any losses, claims, damages, liabilities, judgments, actions or expenses
referred to therein, then each applicable 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 or expenses in such proportion as is
appropriate to reflect the relative benefits received by the Company and the Guarantors, on the one
hand, and the
-16-
Holders, on the other hand, from the Initial Placement (which in the case of the Company and
the Guarantors shall be deemed to be equal to the total gross proceeds to the Company and the
Guarantors from the Initial Placement), the amount of Additional Interest which did not become
payable as a result of the filing of the Registration Statement resulting in such losses, claims,
damages, liabilities, judgments actions or expenses, and such Registration Statement, or if such
allocation is not permitted by applicable law, the relative fault of the Company and the
Guarantors, on the one hand, and the Holders, on the other hand, in connection with the statements
or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative fault of the Company, on the one hand,
and of the Indemnified Holder, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the Company or any of
the Guarantors, on the one hand, or the Indemnified Holders, on the other hand, and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include, subject to the
limitations set forth in the second paragraph of Section 8(a) hereof, any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or defending any action
or claim.
The Company, the Guarantors and each Holder of Transfer Restricted Securities agree that it
would not be just and equitable if contribution pursuant to this Section 8(c) were determined by
pro rata allocation (even if the Holders 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 paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses 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
Xxxxxxx 0, xxxx of the Holders (and its related Indemnified Holders) shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the total discount
received by such Holder with respect to the Initial Securities exceeds the amount of any damages
which such Holder 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. The Holders’ obligations to
contribute pursuant to this Section 8(c) are several in proportion to the respective principal
amount of Initial Securities held by each of the Holders hereunder and not joint.
SECTION 9. Participation in Underwritten Registrations. No Holder may participate in any
Underwritten Registration hereunder unless such Holder (a) agrees to sell such Holder’s Transfer
Restricted Securities on the basis provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up
letters and other documents required under the terms of such underwriting arrangements.
-17-
SECTION 10. Selection of Underwriters. The Holders of Transfer Restricted Securities covered
by the Shelf Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the investment
banker(s) and managing underwriter(s) that will administer such offering will be selected by the
Holders of a majority in aggregate principal amount of the Transfer Restricted Securities included
in such offering; provided, however, that such investment banker(s) and managing underwriter(s)
must be reasonably satisfactory to the Company.
SECTION 11. Miscellaneous.
(a) Remedies. Each of the Company and the Guarantors hereby agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Each of the Company and the Guarantors will not on or after
the date of this Agreement enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with
the provisions hereof. Neither the Company nor any of the Guarantors has previously entered into
any agreement granting any registration rights with respect to its securities to any Person. The
rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of the Company’s or any of the Guarantors’ securities under
any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions hereof may not be given
unless the Company has (i) in the case of Section 5 hereof and this Section 11(c)(i), obtained the
written consent of Holders of all outstanding Transfer Restricted Securities and (ii) in the case
of all other provisions hereof, obtained the written consent of Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities (excluding any Transfer Restricted
Securities held by the Company or its Affiliates). Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the rights of Holders
whose securities are being tendered pursuant to the Exchange Offer and that does not affect
directly or indirectly the rights of other Holders whose securities are not being tendered pursuant
to such Exchange Offer may be given by the Holders of a majority of the outstanding principal
amount of Transfer Restricted Securities being tendered or registered; provided, however, that,
with respect to any matter that directly or indirectly affects the rights of any Initial Purchaser
hereunder, the Company shall obtain the written consent of each such Initial Purchaser with respect
to which such amendment, qualification, supplement, waiver, consent or departure is to be
effective.
(d) Notices. All notices and other communications provided for or permitted hereunder shall
be made in writing by hand-delivery, first-class mail (registered or certified, return receipt
requested), telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar under the Indenture; and
-18-
(ii) if to the Company:
Liz Claiborne, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxxx Xxxxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxxx Xxxxxx
With a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxxxx X. Wee
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxxxx X. Wee
All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if
telecopied; and on the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall be concurrently delivered by
the Person giving the same to the Trustee at the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of each of the parties, including, without limitation, and without the
need for an express assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that this Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired Transfer Restricted
Securities from such Holder.
(f) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW RULES THEREOF.
(i) Severability. In the event that any one or more of the provisions contained herein, or
the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity,
-19-
legality and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
(j) Entire Agreement. This Agreement is intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained herein. There are
no restrictions, promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and understandings between
the parties with respect to such subject matter.
-20-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| LIZ CLAIBORNE, INC. |
||||
| By: | /s/ Xxxxxxxx Xxxxxx | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Senior Vice President — Chief Legal Officer, General Counsel and Corporate Secretary |
|||
| BOODLE, INC. (F/K/A LCI LAUNDRY) DB NEWCO CORP. HAVANA, LLC JERG, INC. (F/K/A C&C California, Inc.) JUICY COUTURE, INC. XXXX SPADE LLC L.C. AUGUSTA, INC. L.C. CARIBBEAN HOLDINGS, INC. L.C. LIBRA, LLC L.C. LICENSING, INC. L.C. SERVICE COMPANY, INC. L.C. SPECIAL MARKETS, INC. LCI ACQUISITION U.S., INC. LCI HOLDINGS, INC. LCI INVESTMENTS, INC. LIZ CLAIBORNE ACCESSORIES, INC. LIZ CLAIBORNE ACCESSORIES-SALES, INC. LIZ CLAIBORNE COSMETICS, INC. LIZ CLAIBORNE EXPORT, INC. LIZ CLAIBORNE FOREIGN HOLDINGS, INC. LIZ CLAIBORNE JAPAN, INC. LIZ CLAIBORNE PUERTO RICO, INC. LIZ CLAIBORNE SALES, INC. LIZ CLAIBORNE SHOES, INC. LUCKY BRAND DUNGAREES, INC. LUCKY BRAND DUNGAREES STORES, INC. MONET INTERNATIONAL, INC. MONET PUERTO RICO, INC. NONEE I, LLC (F/K/A ENYCE LLC) NONEE I HOLDING, LLC (F/K/A ENYCE HOLDING, LLC) SEGRETS, INC. SKYLARK SPORT MARKETING CORPORATION WESTCOAST CONTEMPO PROMENADE, INC. WESTCOAST CONTEMPO RETAIL, INC. WESTCOAST CONTEMPO USA, INC. |
||||
| By: | /s/ Xxxxxxxx Xxxxxx | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Senior Vice President — Chief Legal Officer, General Counsel and Corporate Secretary |
|||
The foregoing Registration Rights Agreement is hereby confirmed and accepted as of the date
first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
| By: | Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
| By: | /s/ Xxxx X Xxxxx | |||
| Managing Director | ||||
Schedule I
LIST OF GUARANTORS
Boodle, Inc. (f/k/a LCI Laundry)
|
Delaware | |
DB Newco Corp.
|
Delaware | |
Havana, LLC
|
Delaware | |
Jerg, Inc.
|
California | |
Juicy Couture, Inc.
|
California | |
Xxxx Spade LLC
|
Delaware | |
L.C. Augusta, Inc.
|
Delaware | |
L.C. Caribbean Holdings, Inc.
|
Delaware | |
L.C. Libra, LLC
|
Delaware | |
L.C. Licensing, Inc.
|
Delaware | |
L.C. Service Company, Inc.
|
Delaware | |
L.C. Special Markets, Inc.
|
Delaware | |
LCI Acquisition U.S., Inc.
|
Delaware | |
LCI Holdings, Inc.
|
Delaware | |
LCI Investments, Inc.
|
Delaware | |
Liz Claiborne Accessories, Inc.
|
Delaware | |
Liz Claiborne Accessories-Sales, Inc.
|
Delaware | |
Liz Claiborne Cosmetics, Inc.
|
Delaware | |
Liz Claiborne Export, Inc.
|
Delaware | |
Liz Claiborne Foreign Holdings, Inc.
|
Delaware | |
Liz Claiborne Japan, Inc.
|
Delaware | |
Liz Claiborne Puerto Rico, Inc.
|
Delaware | |
Liz Claiborne Sales, Inc.
|
Delaware | |
Liz Claiborne Shoes, Inc.
|
Delaware | |
Lucky Brand Dungarees, Inc.
|
Delaware | |
Lucky Brand Dungarees Stores, Inc.
|
Delaware | |
Monet International, Inc.
|
Delaware | |
Monet Puerto Rico, Inc.
|
Delaware | |
Nonee I, LLC (f/k/a Enyce LLC)
|
Delaware | |
Nonee I Holding, LLC (f/k/a Enyce Holding, LLC)
|
Delaware | |
Segrets, Inc.
|
Delaware | |
Skylark Sport Marketing Corporation
|
California | |
Westcoast Contempo Promenade, Inc.
|
Washington | |
Westcoast Contempo Retail, Inc.
|
Washington | |
Westcoast Contempo USA, Inc.
|
Washington |
