Exhibit 10.9
EXECUTION COPY
THE WHITE HOUSE, INC.
REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT (this "Agreement" )is made as of January
19, 1999, among The White House, Inc., a Maryland corporation (the "Company"),
each of the investors listed on the SCHEDULE OF INVESTORS attached hereto
(collectively, the "Investors"), and each of the executives listed on the
SCHEDULE OF EXECUTIVES attached hereto (collectively, the "Executives"). Unless
otherwise provided in this Agreement, capitalized terms used herein shall have
the meanings set forth in paragraph 8 hereof.
WHEREAS, the Company and the Investors are parties to a Stock Purchase
Agreement of even date herewith (the "Purchase Agreement"). In order to induce
the Investors to enter into the Purchase Agreement, the Company has agreed to
provide the Investors the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the Initial Closing
under the Purchase Agreement.
WHEREAS, the Executives are currently stockholders of the Company.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. At any time after the earlier of
(i) the second anniversary of the Initial Closing under the Purchase Agreement
or (ii) the Company's initial public offering of its Common Stock under the
Securities Act, the holders of a majority of the Investor Registrable Securities
may request registration under the Securities Act of all or any portion of their
Investor Registrable Securities on Form S-I or any similar long-form
registration ("Long-Form Registrations"); provided, that if such Long-Form
Registration request is prior to the Company's initial public offering of its
Common Stock, such Long-Form Registration must qualify as a "Qualified Public
Offering" (as defined herein), and the holders of a majority of the Investor
Registrable Securities may request registration under the Securities Act of all
or any portion of their Investor Registrable Securities on Form S-2 or S-3 or
any similar short-form registration ("Short-Form Registrations"), if available.
All registrations requested pursuant to this paragraph 1(a) are referred to
herein as "Demand Registrations". Each request for a Demand Registration shall
specify the approximate number of Investor Registrable Securities requested to
be registered and the anticipated per share price range for such offering.
Within ten days after receipt of any such request, the Company shall give
written notice of such requested registration to all other holders of Investor
Registrable Securities and, subject to the terms of paragraph l(d) hereof,
shall include in such
registration all Investor Registrable Securities with respect to which the
Company has received written requests for inclusion therein within 15 days after
the receipt of the Company's notice.
(b) LONG-FORM REGISTRATIONS. The holders of Investor Registrable
Securities shall as a group be entitled to request (i) two Long-Form
Registrations in which the Company shall pay all Registration Expenses as set
forth in paragraph 5 hereof ("Company-paid Long-Form Registrations") and (ii) an
unlimited number of Long-Form Registrations in which the Company shall not be
required to pay the Registration Expenses except as provided in paragraph 5 and
the holders of Investor Registrable Securities shall pay their share of the
Registration Expenses as set forth in paragraph 5 hereof. A registration shall
not count as one of the permitted Company-paid Long-Form Registrations until it
has become effective, and the Second Company-paid Long-Form Registration shall
not count as one of the permitted Company-paid Long-Form Registrations unless
the holders of Investor Registrable Securities are able to register at least 80%
of the Investor Registrable Securities requested to be included in such
registration; provided that in any event the Company shall pay all Registration
Expenses in connection with any registration initiated as a Company-paid
Long-Form Registration whether or not it has become effective and whether or not
such registration has counted as one of the permitted Company-paid Long-Form
Registrations. All Long-Form Registrations shall be underwritten registrations
unless otherwise agreed to by the holders of a majority of Investor Registrable
Securities.
(c) SHORT-FORM REGISTRATIONS. In addition to the Long-Form
Registrations provided pursuant to paragraph l(b), the holders of Investor
Registrable Securities shall be entitled to request an unlimited number of
Short-Form Registrations in which the Company shall pay all Registration
Expenses. Demand Registrations shall be Short-Form Registrations whenever the
Company is permitted to use any applicable short form and the managing
underwriters (if any) agree to the use of a Short-Form Registration. After the
Company has become subject to the reporting requirements of the Securities
Exchange Act, the Company shall use its best efforts to make the Company
eligible to use Short-Form Registrations for the sale of Investor Registrable
Securities.
(d) PRIORITY ON DEMAND REGISTRATIONS. The Company shall not
include in any Demand Registration any securities which are not Investor
Registrable Securities without the prior written consent of the holders of a
majority of the Investor Registrable Securities initially requesting such
registration. If a Demand Registration is an underwritten offering and the
managing underwriters advise the Company in writing that in their opinion the
number of Investor Registrable Securities and, if permitted hereunder, other
securities requested to be included in such offering exceeds the number of
Investor Registrable Securities and other securities, if any, which can be sold
therein without adversely affecting the marketability of the offering, the
Company shall include in such registration prior to the inclusion of any
securities which are not Investor Registrable Securities the number of Investor
Registrable Securities requested to be included which in the opinion of such
underwriters can be sold without adversely affecting the marketability of the
offering, pro rata among the respective holders thereof on the basis of the
amount of Investor Registrable Securities owned by each such holder.
(e) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company shall not be
obligated to effect any Demand Registration within 180 days after the effective
date of a previous Demand
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Registration or a previous registration in which the holders of Investor
Registrable Securities were given piggyback rights pursuant to paragraph 2. In
addition, the Company may postpone for up to 180 days the filing or the
effectiveness of a registration statement for a Demand Registration if the
Company's Board of Directors (including the Investor Directors (as defined in
the Stockholders Agreement)) reasonably determines in good faith that such
Demand Registration would reasonably be expected to have a material adverse
effect on any proposal or plan by the Company to engage in any acquisition of
assets (other than in the ordinary course of business) or any merger,
consolidation, tender offer, reorganization or similar transaction; provided
that in such event, the holders of Investor Registrable Securities initially
requesting such Demand Registration shall be entitled to withdraw such request
and, if such request is withdrawn, such Demand Registration shall not count as
one of the permitted Demand Registrations hereunder and the Company shall pay
all Registration Expenses in connection with such registration. The Company may
delay a Demand Registration hereunder only once in any twelve-month period.
(f) SELECTION OF UNDERWRITERS. The holders of a majority of the
Investor Registrable Securities included in any Demand Registration shall have
the right to select the investment banker(s) and manager(s) to administer the
offering, subject to the Company's prior written approval which shall not be
unreasonably withheld or delayed.
(g) OTHER REGISTRATION RIGHTS. Except as provided in this
Agreement, the Company is not a party, or otherwise subject, to any agreement
granting registration rights to any Person with respect to any securities of the
Company. Except as provided in this Agreement, the Company shall not grant to
any Persons the right to request the Company to register any equity securities
of the Company, or any securities convertible or exchangeable into or
exercisable for such securities, without the prior written consent of the
holders of a majority of the Investor Registrable Securities; provided that the
Company may grant rights to other Persons to participate in Piggyback
Registrations so long as such rights are subordinate to the rights of the
holders of Registrable Securities with respect to such Piggyback Registrations
as set forth in paragraphs 2(c) and 2(d).
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to register
any of its securities under the Securities Act (other than pursuant to a Demand
Registration prior to the initial public offering by the Company of its Common
Stock) and the registration form to be used may be used for the registration of
Registrable Securities (a "Piggyback Registration"), the Company shall give
prompt written notice to all holders of Registrable Securities of its intention
to effect such a registration and, subject to the terms of paragraph 2(c) and
2(d) hereof, shall include in such registration all Registrable Securities with
respect to which the Company has received written requests for inclusion therein
within 20 days after the receipt of the Company's notice.
(b) PIGGYBACK EXPENSES. The Registration Expenses of the holders
of Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration
is an underwritten primary registration on behalf of the Company, and the
managing underwriters advise
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the Company in writing that in their opinion the number of securities requested
to be included in such registration exceeds the number which can be sold in such
offering without adversely affecting the marketability of the offering, the
Company shall include in such registration (i) first, the securities the Company
proposes to sell, (ii) second, the Investor Registrable Securities requested to
be included in such registration, pro rata among the holders of such Investor
Registrable Securities on the basis of the number of shares owned by each such
holder, (iii) third, the Executive Registrable Securities requested to be
included in such registration, pro rata among the holders of such Executive
Registrable Securities on the basis of the number of shares owned by each Such
holder, and (iv) fourth, other securities requested to be included in such
registration.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in such offering
without adversely affecting the marketability of the offering, the Company shall
include in such registration (i) first, the securities requested to be included
therein by the holders requesting such registration and the Investor Registrable
Securities requested to be included in such registration, pro rata among the
holders of such securities on the basis of the number of shares owned by each
such holder, (ii) second, the Executive Registrable Securities requested to be
included in such registration, pro rata among the holders of such securities on
the basis of the number of shares owned by each such holder, and (iii) third,
other securities requested to be included in such registration.
(e) SELECTION OF UNDERWRITERS AND COUNSEL. The Company's board of
directors shall select the investment banker(s) and manager(s) to administer the
offering, unless the offering is pursuant to paragraph 1 above.
(f) OTHER REGISTRATIONS. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
paragraph 1 or pursuant to this paragraph 2, and if such previous registration
has not been withdrawn or abandoned, the Company shall not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-8 or any successor form), whether on its
own behalf or at the request of any holder or holders of such securities, until
a period of at least 90 days has elapsed from the effective date of such
previous registration.
3. HOLDBACK AGREEMENTS.
(a) Each holder of Investor Registrable Securities shall not
effect any public sale or distribution (including sales pursuant to Rule 144) of
equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, during a lockup period to be
negotiated between the Investors and the underwriters of any offering or
registration for any underwritten Demand Registration or any underwritten
Piggyback Registration in which Registrable Securities are included (except as
part of such underwritten registration).
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(b) The Company shall not effect any public sale or distribution
of their equity securities, or any securities convertible into or exchangeable
or exercisable for such securities, during the seven days prior to and during
the 180-day period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to registrations on Form S-8 or any
successor form), unless the underwriters managing the registered public offering
otherwise agree.
4. REGISTRATION PROCEDURES. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company shall
as expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective (provided
that before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company shall furnish to the counsel selected by the
holders of a majority of the Investor Registrable Securities covered by such
registration statement copies of all such documents proposed to be filed, which
documents shall be subject to the reasonable review and comment of such
counsel);
(b) notify each holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and prepare and
file with the Securities and Exchange Commission such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for a period
of not less than 180 days and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number
of copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that the Company shall 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 subparagraph, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
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(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company shall
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD automated quotation
system and, if listed on the NASD automated quotation system, use its best
efforts to secure designation of all such Registrable Securities covered by such
registration statement as a NASDAQ "national market system security" within the
meaning of Rule 11Aa2-l of the Securities and Exchange Commission or, failing
that, to secure NASDAQ authorization for such Registrable Securities and,
without limiting the generality of the foregoing, to arrange for at least two
market makers to register as such with respect to such Registrable Securities
with the NASD;
(g) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities (including effecting a stock split or a combination of
shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which holder, in
its sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company,
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to participate in the preparation of such registration or comparable statement
and to require the insertion therein of material, furnished to the Company in
writing, which in the reasonable judgment of such holder and its counsel should
be included;
(1) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order; and
(m) use its reasonable efforts to obtain a cold comfort letter
from the Company's independent public accountants in customary form and covering
such matters of the type customarily covered by cold comfort letters as the
holders of a majority of the Registrable Securities being sold reasonably
request (provided that such Registrable Securities constitute at least 10% of
the securities covered by such registration statement).
5. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and disbursements
of custodians, and fees and disbursements of counsel for the Company and all
independent certified public accountants, underwriters (excluding discounts and
commissions) and other Persons retained by the Company (all such expenses being
herein called "Registration Expenses"), shall be borne as provided in this
Agreement, except that, notwithstanding anything herein to the contrary, the
Company shall pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or quarterly review, the
expense of any liability insurance and the expenses and fees for listing the
securities to be registered on each securities exchange on which similar
securities issued by the Company are then listed or on the NASD automated
quotation system.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company shall reimburse the holders of Registrable Securities
included in such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Investor Registrable
Securities included in such registration.
(c) To the extent Registration Expenses are not required to be
paid by the Company, each holder of securities included in any registration
hereunder shall pay those Registration Expenses allocable to the registration of
such holder's securities so included, and any Registration Expenses not so
allocable shall be borne by all sellers of securities included in such
registration in proportion to the aggregate selling price of the securities to
be so registered.
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(d) Any Persons, other than holders of Investor Registrable
Securities, who participate in Demand Registrations which are not at the
Company's expense must pay their share of the Registration Expenses as provided
in paragraph 5(c) above.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted by
law, each holder of Registrable Securities, its officers and directors and each
Person who controls such holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such holder expressly for use
therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company shall indemnify
such underwriters, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the holders of
Registrable Securities.
(b) In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder shall
furnish to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such registration statement
or prospectus and, to the extent permitted by law, shall indemnify the Company,
its directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by such holder; provided that the obligation to indemnify
shall be individual, not joint and several, for each holder and shall be limited
to the net amount of proceeds received by such holder from the sale of
Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder shall (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification (provided that the failure to give prompt
notice shall not impair any Person's right to indemnification hereunder to the
extent such failure has not prejudiced the indemnifying party) and (ii) unless
in such indemnified party's reasonable judgment a conflict of interest between
such indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably
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withheld). An indemnifying party who is not entitled to, or elects not to,
assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement shall
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling Person
of such indemnified party and shall survive the transfer of securities. The
Company also agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Company's
indemnification is unavailable for any reason.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. Notwithstanding
any provision of this Agreement to the contrary, no Person may participate in
any registration hereunder which is underwritten unless such Person (i) agrees
to sell such Person's securities on the basis provided in any underwriting
arrangements approved by the Person or Persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements; provided that no holder of
Registrable Securities included in any underwritten registration shall be
required to make any representations or warranties to the Company or the
underwriters (other than representations and warranties regarding such holder
and such holder's intended method of distribution) or to undertake any
indemnification obligations to the Company or the underwriters with respect
thereto, except as otherwise provided in paragraph 6 hereof.
8. DEFINITIONS.
(a) "COMMON STOCK" means the Company's Class A Common, Class B
Common, or Class C Common, as applicable, and any securities into which such
Class A Common, Class B Common or Class C Common shall have been changed or any
securities resulting from any reclassification or recapitalization of such
Common Stock.
"EXECUTIVE REGISTRABLE SECURITIES" means (i) any shares of Class A
Common issued to the Executives, (ii) any shares of Class A Common or other
Common Stock issued or issuable directly or indirectly with respect to the
securities referred to in clause (i) by way of stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization, and (iii) any other shares of Class A
Common or other Common Stock held by Persons holding securities described in
clauses (i) and (ii), inclusive, above (including, but not limited to, shares of
Common Stock issued or issuable upon exercise of any options granted under the
Option Plan). As to any particular Executive Registrable Securities, such
securities shall cease to be Executive Registrable Securities when they have
been distributed to the public pursuant to a offering registered under the
Securities Act or sold to the public through a broker, dealer or market maker in
compliance with Rule 144 under the Securities Act (or any similar rule then in
force).
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"INVESTOR REGISTRABLE SECURITIES" means (i) any shares of Class C
Common issued pursuant to the Purchase Agreement and the Secondary Purchase
Agreement, (ii) any shares of Class C Common or other Common Stock issued or
issuable with respect to the securities referred to in clause (i) by way of a
stock, dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization, and (iii) any
other shares of Common Stock held by Persons holding securities described in
clauses (i) and (ii), inclusive, above (including, but not limited to, shares of
Common Stock issued or issuable upon exercise of the Warrants). For purposes of
this Agreement, a Person shall be deemed to be a holder of Investor Registrable
Securities, and the Investor Registrable Securities shall be deemed to be in
existence, whenever such Person has the right to acquire directly or indirectly
such Investor Registrable Securities (upon conversion or exercise in connection
with a transfer of securities or otherwise), whether or not such acquisition has
actually been effected, and such Person shall be entitled to exercise the rights
of a holder of Investor Registrable Securities hereunder. As to any particular
Investor Registrable Securities, such securities shall cease to be Investor
Registrable Securities when they have been distributed to the public pursuant to
a offering registered under the Securities Act or sold to the public through a
broker, dealer or market maker in compliance with Rule 144 under the Securities
Act (or any similar rule then in force).
"QUALIFIED PUBLIC OFFERING" means the sale in an underwritten public
offering registered under the Securities Act of shares of the Company's Common
Stock (i) having an aggregate offering value of at least $15 million and (ii) at
an offering price of at least $3.51 (as adjusted for stock splits, stock
combinations, recapitalizations and other similar transactions).
"REGISTRABLE SECURITIES" means, collectively, the Executive
Registrable Securities and the Investor Registrable Securities.
"STOCKHOLDERS AGREEMENT" means that certain Stockholders Agreement
dated as of the date hereof, by and among the Company and its stockholders
listed therein, as may be amended, modified or supplemented from time to time.
"WARRANTS" mean the Stock Purchase Warrants dated as of the date
hereof, issued to the Investors pursuant to the Purchase Agreement, as may be
amended, modified or supplemented from time to time.
(b) Unless otherwise stated, other capitalized terms contained
herein have the meanings set forth in the Purchase Agreement.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company shall not hereafter
enter into any agreement with respect to its securities which is inconsistent
with or violates the rights granted to the holders of Registrable Securities in
this Agreement.
(b) REMEDIES. Any Person having rights under any provision of this
Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any
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breach of any provision of this Agreement and to exercise all other rights
granted by law. The parties hereto agree and acknowledge that money damages may
not be an adequate remedy for any breach of the provisions of this Agreement and
that, in addition to any other rights or remedies existing in its favor, any
party shall be entitled to seek specific performance and/or other injunctive
relief from any court of law or equity of competent jurisdiction (without
posting any bond or other security) in order to enforce or prevent violation of
the provisions of this Agreement.
(c) AMENDMENTS AND WAIVERS. Except as otherwise provided herein,
the provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and the holders of a majority of the Investor
Registrable Securities; provided, that, no modification, amendment or waiver of
paragraph 2 of this Agreement, this paragraph 9(c) or any of the definitions
herein pertaining to "Executive Registrable Securities" which adversely affects
the holders of Executive Registrable Securities shall be effective against such
holders unless such modification, amendment or waiver is approved in writing by
the holders of a majority of the Executive Registrable Securities.
(d) SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any permitted subsequent holder of Registrable Securities.
(e) SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(f) COUNTERPARTS. This Agreement may be executed simultaneously
in two or more counterparts (including by telecopied signature pages), any one
of which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same Agreement.
(g) RULES OF CONSTRUCTION. The word "including" (in its various
forms) means "including without limitation." Words, terms, and titles (including
terms defined herein) in the singular form shall be construed to include the
plural and vice versa, unless the context otherwise expressly requires. The
descriptive headings of this Agreement are inserted for convenience only and do
not constitute a part of this Agreement.
(h) GOVERNING LAW. ALL ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT AND THE
EXHIBITS AND SCHEDULES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF MARYLAND, WITHOUT GIVING EFFECT TO ANY CHOICE OF
LAW OR
-11-
CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF MARYLAND OR ANY
OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF MARYLAND.
(i) NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally, telecopied
(with a confirming copy sent by other permitted means), sent by Federal Express
or other reputable overnight courier, or mailed by registered or certified mail
(return receipt requested). Such notices, demands and other communications shall
be sent to each Investor at the address indicated on the Schedule of Investors
and to the Company at the address indicated below:
The White House, Inc.
0000 Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attn: President
with a copy to:
Xxxxxxx, Xxxxxxx and Xxxxxx, LLP
1800 Mercantile Bank & Trust Building
Xxx Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx, Xx., Esq.
Any address may be changed at any time by notice given as provided above;
provided, however, that any such notice of change of address shall be effective
only upon receipt. All notices and other communications given in accordance
herewith shall be deemed received on the date of delivery, if hand delivered; on
the date of receipt, if telecopied; three business days after the date of
mailing, if mailed by registered or certified mail, return receipt requested;
and one business day after the date of sending, if sent by Federal Express or
other reputable overnight courier.
* * * * *
-12-
IN WITNESS WHEREOF, the parties have executed this Registration
Agreement as of the date first written above.
THE WHITE HOUSE, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxx
---------------------------------
Its: President
---------------------------------
XXXXXXXX-XXXXX SPECIALTY RETAIL
GROUP III, L.P.
By: Xxxxxxxx-Xxxxx Management Company
L.P.
Its: General Partner
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
---------------------------------
Its: General Partner
/s/ Xxxxx Xxxxx
--------------------------------------
Xxxxx Xxxxx
CHANCELLOR PRIVATE CAPITAL
PARTNERS III, L.P.
By: CPCP Associates, L.P.
Its: General Partner
By: INVESCO Private Capital, Inc.
Its: General Partner
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
---------------------------------
Its:
---------------------------------
[Continuation of Signature Page to Registration Agreement]
CITIVENTURE 96 PARTNERSHIP, L.P.
By: INVESCO (NY), Inc.
Its: Investment Advisor
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
---------------------------------
Its:
---------------------------------
CHANCELLOR PRIVATE CAPITAL
OFFSHORE PARTNERS II, L.P.
By: CPCO Associates, L.P.
Its: Investment General Partner
By: INVESCO Private Capital, Inc.
Its: General Partner
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
---------------------------------
Its:
---------------------------------
CHANCELLOR PRIVATE CAPITAL
OFFSHORE PARTNERS I, C.V.
By: Chancellor KME IV Partner, L.P.
Its: Investment General Partner
By: INVESCO Private Capital, Inc.
Its: General Partner
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
---------------------------------
Its:
---------------------------------
(Continuation of Signature Page to Registration Agreement]
/s/ Xxxxxxx Xxxxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxxxx
/s/ Xxxxxxxx Xxxxxx-Xxxxx
--------------------------------------
Xxxxxxxx Xxxxxx-Xxxxx
/s/ Xxxxxxx Xxxxx
--------------------------------------
Xxxxxxx Xxxxx
SCHEDULE OF INVESTORS
Xxxxxxxx-Xxxxx Specialty Retail Group III, L.P.
c/o Xxxxxxxx-Xxxxx Management Company, L.P.
0000 Xxxxxxxx Xxxxx
Xxxxx 000 Xxxx
Xxxxxx, XX 00000
Xxxxx Xxxxx
c/o Xxxxxxxx-Xxxxx Management Company, L.P.
0000 Xxxxxxxx Xxxxx
Xxxxx 000 Xxxx
Xxxxxx, XX 00000
Chancellor Private Capital Partners III, L.P.
c/o Invesco (NY), Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx
Citiventure 96 Partnership, L.P.
c/o Invesco (NY), Inc.
1166 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx
Chancellor Private Capital Offshore Partners II, L.P.
c/o Invesco (NY), Inc.
1166 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx
Chancellor Private Capital Offshore Partners I, C.V.
c/o Invesco (NY), Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx
SCHEDULE OF EXECUTIVES
Xxxxxxx Xxxxxxxxx
c/o The White House, Inc.
0000 Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000-0000
Xxxxxxxx Xxxxxx-Xxxxx
c/o The White House, Inc.
0000 Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000-0000
Xxxxxxx Xxxxx
c/o The White House, Inc.
0000 Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000-0000
