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Exhibit 10.6
EXECUTION COPY
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the "Amended and
Restated Registration Rights Agreement") dated as of June 5, 1998 by and among
Gerber Childrenswear, Inc., a Delaware corporation (the "Company"), GCIH, Inc.,
a Delaware corporation ("GCIH") and owner of 100% of the capital stock of the
Company, Citicorp Venture Capital, Ltd., a New York corporation ("CVC"),
Citicorp Mezzanine Partners, L.P., a Delaware limited partnership ("CMP"), CCT
III Partners, L.P., a Delaware limited partnership ("CCT"), Xxxxxx Xxxxxxxxx,
Xxxxxxx Solar, and Xxxxx Xxxx (such three individuals, collectively, the
"Executive Officers").
WHEREAS, GCIH, CVC, CMP, CCT, the Executive Officers, and certain
others are parties to a registration rights agreement dated as of January 22,
1996, and as amended from time to time (the "Original Registration Rights
Agreement");
WHEREAS, the parties hereto constitute holders of a majority of
Registrable Securities (as such term is defined in the Original Registration
Rights Agreement), and such parties wish to amend and restate the Original
Registration Rights Agreement in its entirety;
WHEREAS, the Boards of Directors of GCIH and the Company have
approved a merger of GCIH into the Company, with the Company as the surviving
corporation (the "Merger"), whereby (a) holders of the Series A Preferred Stock,
par value $0.01 per share of GCIH shall receive either Class B Common Stock of
the Company or the right to receive cash, (b) the holders of shares of Class A
Common Stock, par value $0.01 per share of GCIH shall become holders of the
Class B Common Stock (as defined in Section 1 hereof), of the Company, (c) the
holders of the shares of Class B Common Stock, par value $0.01 per share of GCIH
shall become holders of the Common Stock (as defined in Section 1 hereof) of the
Company, (d) holders of the Class C Common Stock, par value $0.01 per share of
GCIH shall become holders of shares of Common Stock of the Company, and (e) the
holders of warrants to purchase the Class D Common Stock, par value $0.01 per
share of GCIH (the "CMP Warrants") shall become holders of warrants to purchase
the Class B Common of the Company;
WHEREAS, immediately following the consummation of the Merger, the
Company intends to file a Form S-1 under the Securities Act (as hereinafter
defined) for registration of certain shares of its Common Stock (the "Initial
Public Offering"); and
WHEREAS, in order to provide for and to clarify and restate the
rights and obligations of the parties hereto upon consummation of the Merger and
the Initial Public Offering, the parties hereto have entered into this
agreement, which shall become effective upon consummation of the Merger (such
consummation, the "Effective Time"), and immediately prior to the Initial Public
Offering and upon its effectiveness shall cause the Original Registration Rights
Agreement to cease to exist and be amended and restated in its entirety;
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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. Definitions. As used herein, the following terms shall have the following
meanings.
"CMP Registrable Securities" means (i) any shares of Common Stock
issued or issuable upon exercise of any portion of the CMP Warrants or acquired
by CMP, its affiliates (other than CVC, CCT and the Individual Purchasers) or
their respective affiliates on or after January 22, 1996 and (ii) any shares of
capital stock of the Company 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, in each of case (i) and (ii), which shares have not
been registered under the Securities Act. For purposes of this Agreement, a
Person will be deemed to be a holder of CMP Registrable Securities whenever such
Person has the right to acquire directly or indirectly such CMP Registrable
Securities (upon conversion or exercise in connection with a transfer of
securities or otherwise, but disregarding any restrictions or limitations upon
the exercise of such right), whether or not such acquisition has actually been
effected.
"Class B Common" means, collectively, (i) the Class B Common Stock
of the Company, par value $0.01 per share, and (ii) any capital stock of the
Company issued or issuable with respect to the securities referred to in clause
(i) by way of a stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization.
"Common Stock" means, collectively, (i) the Common Stock of the
Company, par value $0.01 per share, and (ii) any capital stock of the Company
issued or issuable with respect to the securities referred to in clause (i) by
way of a stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization.
"CVC Registrable Securities" means (i) any shares of Stock of the
Company acquired by CVC or its affiliates (other than CMP and the Individual
Purchasers) on or after January 22, 1996, and (ii) any shares of capital stock
of the Company issued or issuable with respect to the securities referred to in
clause (i) above by way of a stock dividend or stock split or in connection with
a combination of shares, recapitalization, merger, consolidation or other
reorganization, in each of case (i) and (ii), which shares have not been
registered under the Securities Act. For purposes of this Agreement, a Person
will be deemed to be a holder of CVC Registrable Securities whenever such Person
has the right to acquire directly or indirectly such CVC Registrable Securities
(upon conversion or exercise in connection with a transfer of securities or
otherwise, but disregarding any restrictions or limitations upon the exercise of
such right), whether or not such acquisition has actually been effected.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Executive Registrable Securities" means (i) any shares of Common
Stock issued or issuable to the Executives on or after January 22, 1996, if and
to the extent such shares of
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Common Stock have vested pursuant to the terms of the Executive Stock Purchase
Agreements executed by such Executives and the Company and (ii) any shares of
capital stock of the Company issued or issuable with respect to the securities
referred to in clause (i) above by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization, in each of case (i) and (ii), which shares have not
been registered under the Securities Act. For purposes of this Agreement, a
Person will be deemed to be a holder of Executive Registrable Securities
whenever such Person has the right to acquire directly or indirectly such
Executive Registrable Securities (upon conversion or exercise in connection with
a transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected.
"Executives" means collectively the Executive Officers and certain
executives of the Company who have acquired or will acquire capital stock of the
Company and who have executed or will execute a joinder to the Original
Registration Rights Agreement or this Amended and Restated Registration Rights
Agreement, as the case may be.
"Holders Securities" means any securities held by CVC or any of its
affiliates (other than CMP) which are exchangeable, convertible or otherwise
similarly exercisable into Registrable Securities.
"Individual Purchasers" means Xxxxxxx Xxxxxx, 63 BR Partnership,
Xxxxxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxx X. Xxxx, Xxxxx X. Xxxxx,
Alchemy, L.P., M. Xxxxxx Xxxxxxxx, Xxxxx X. Xxxxxx, and Xxxx Xxxxx.
"Investor" means Xxxxxxxx X. Xxxxx.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a limited liability company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Purchaser Registrable Securities" means (i) any shares of Common
Stock issued or issuable to the Individual Purchasers or the Investor or
acquired by, or issued or issuable to, the Individual Purchasers or the Investor
by way of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization, in each
of case (i) and (ii), which shares have not been registered under the Securities
Act. For purposes of this Agreement, a Person will be deemed to be a holder of
Purchaser Registrable Securities whenever such Person has the right to acquire
directly or indirectly such Purchaser Registrable Securities (upon conversion or
exercise in connection with a transfer of securities or otherwise, but
disregarding any restrictions or limitations upon the exercise of such right),
whether or not such acquisition has actually been effected.
"Qualified Public Offering" means the sale, in an underwritten
public offering registered under the Securities Act, of shares of the Company's
Common Stock having an aggregate value of at least $30 million.
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"Registrable Securities" means, collectively, the CVC Registrable
Securities, the Purchaser Registrable Securities, the CMP Registrable
Securities, and the Executive Registrable Securities.
"Registration Expenses" means 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,
and fees and disbursements of counsel for the Company and all independent
certified public accountants, underwriters (excluding discounts and commissions
and other similar fees described in the underwriting agreement) and other
Persons retained by the Company.
"Rule 144" means Rule 144 under the Securities Act (or any similar
rule then in force).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Stock" means collectively, (i) the Common Stock and Class B Stock,
and (ii) any capital stock of the Company issued or issuable with respect to the
securities referred to in clause (i) by way of a stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization.
2. Demand Registrations.
(a) Requests for Registration. Subject to Section 2(b) below, (i) at
any time and from time to time, the holders of a majority of the CVC Registrable
Securities and (ii) at any time after the earlier of (x) the fifth anniversary
hereof or (y) the six month anniversary of the consummation of a Qualified
Public Offering, the holders of a majority of the CMP Registrable Securities,
respectively, may request registration, whether underwritten or otherwise, under
the Securities Act of all or part of their Registrable Securities on Form S-1 or
any similar long-form registration ("Long-Form Registrations") or on Form S-2 or
S-3 or any similar short-form registration ("Short-Form Registrations") if
available. In addition, subject to Section 2(g) below, the holders of a majority
of the CVC Registrable Securities may request that the Company file with the SEC
a registration statement under the Securities Act on any applicable form
pursuant to Rule 415 under the Securities Act (a "415 Registration"). Each
request for a Long-Form Registration or Short-Form Registration shall specify
the approximate number of 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 for a Long-Form Registration or Short-Form
Registration, the Company will give written notice of such requested
registration to all other holders of Registrable Securities and will include
(subject to the provisions of this Agreement) 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.
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All registrations requested pursuant to in this Section 2(a) are referred to
herein as "Demand Registrations". The Company acknowledges that the holders of
the CVC Registrable Securities may request a Demand Registration in connection
with a public offering of Holders Securities.
(b) Long-Form Registrations. (i) The holders of a majority of the
CVC Registrable Securities will be entitled to request up to five (5) Long-Form
Registrations and (ii) the holders of a majority of the CMP Registerable
Securities will be entitled to request one (1) Long-Form Registration,
respectively, in which the Company will pay all Registration Expenses. A
registration will not count as the permitted Long-Form Registration until it has
become effective and unless the holders of Registrable Securities are able to
register and sell at least 90% of the Registrable Securities requested to be
included in such registration.
(c) Short-Form Registrations. In addition to the Long-Form
Registrations provided pursuant to Section 2(b), (i) the holders of the CVC
Registrable Securities will be entitled to request an unlimited number of
Short-Form Registrations and (ii) the holders of a majority of CMP Registerable
Securities will be entitled to request an unlimited number of Short-Form
Registrations, respectively, in which the Company will pay all Registration
Expenses. Demand Registrations (other than 415 Registrations) will be Short-Form
Registrations whenever the Company is permitted to use any applicable short
form. After the Company has become subject to the reporting requirements of the
Exchange Act, the Company will use its best efforts to make Short-Form
Registrations available for the sale of Registrable Securities.
(d) Priority on Demand Registrations. The Company will not include
in any Long-Form Registration or Short-Form Registration any securities which
are not Registrable Securities without the prior written consent of the holders
of at least a majority of the Registrable Securities included in such
registration. If a Long-Form Registration or a Short-Form Registration is an
underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, which
can be sold therein without adversely affecting the marketability of the
offering, the Company will include in such registration (i) first, the number of
Registrable Securities requested to be included in such registration pro rata,
if necessary, among the holders of Registrable Securities based on the number of
shares of Registrable Securities owned by each such holder and (ii) second, any
other securities of the Company requested to be included in such registration
pro rata, if necessary, on the basis of the number of shares of such other
securities owned by each such holder. Any Persons other than holders of
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 Section 6 hereof.
(e) Restrictions on Demand Registrations. The Company will not be
obligated to effect any Demand Registration within six months after the
effective date of a previous Demand Registration.
(f) Selection of Underwriters. In the case of a Demand Registration
for an underwritten offering, the holders of a majority of the Registrable
Securities to be included in such
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Demand Registration will have the right to select the investment banker(s) and
manager(s) to administer the offering, which investment banker(s) and manager(s)
will be nationally recognized, subject to (i) the Company's approval which will
not be unreasonably withheld and (ii) the negotiation of an underwriting
agreement reasonably acceptable to the Company.
(g) 415 Registrations.
(i) The holders of a majority of the CVC Registrable
Securities will be entitled to request one (1) 415 Registration in which the
Company will pay all Registration Expenses. Subject to the availability of
required financial information, within 45 days after the Company receives
written notice of a request for a 415 Registration, the Company shall file with
the SEC a registration statement under the Securities Act for the 415
Registration. The Company shall use its best efforts to cause the 415
Registration to be declared effective under the Securities Act as soon as
practical after filing, and once effective, the Company shall (subject to the
provisions of clause (ii) below) cause such 415 Registration to remain effective
for such time period as is specified in such request, but for no time period
longer than the period ending on the earlier of (i) the third anniversary of the
date of filing of the 415 Registration or (ii) the date on which all CVC
Registrable Securities have been sold pursuant to the 415 Registration or (iii)
the date as of which there are no longer any CVC Registrable Securities in
existence.
(ii) If the holders of a majority of the CVC Registrable
Securities notify the Company in writing that they intend to effect the sale of
all or substantially all of the CVC Registrable Securities held by such holders
pursuant to a single integrated offering pursuant to a then effective
registration statement for a 415 Registration (a "Takedown"), the Company and
each holder of Registrable Securities (other than the Individual Purchasers)
shall not effect any public sale or distribution of its equity securities, or
any securities convertible into or exchangeable or exercisable for its equity
securities, during the 90-day period beginning on the date such notice of a
Takedown is received.
(iii) If in connection with any Takedown the managing
underwriters (selected in accordance with clause (iv) below) advise the Company
that, in its opinion, the inclusion of any other securities other than CVC
Registrable Securities would adversely affect the marketability of the offering,
then no such securities shall be permitted to be included. Additionally, if in
connection with such an offering, the number of CVC Registrable Securities and
other securities (if any) requested to be included in such Takedown exceeds the
number of CVC Registrable Securities and other securities which can be sold in
such offering without adversely affecting the marketability of the offering, the
company shall include in such Sale (i) first, the CVC Registrable Securities
requested to be included in such Takedown, pro rata among the holders of such
Registrable Securities on the basis of the number of CVC Registrable Securities
owned by each such holder, and (ii) second, other securities requested to be
included in such Takedown to the extent permitted hereunder.
(iv) The holders of a majority of the CVC Registrable
Securities shall have the right to retain and select an investment banker and
manager to administer the 415
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Registration and any Takedown pursuant thereto, subject to the Company's
approval which will not be unreasonably withheld.
(v) In addition to the provisions in Section 6 below, all
expenses incurred in connection with the management of the 415 Registration
(whether incurred by the Company or the holders of the CVC Registrable
Securities) shall be borne by the Company (including, without limitation, all
fees and expenses of the investment banker and manager) (excluding discounts and
commissions and other similar fees described in the underwriting agreement).
(h) Other Registration Rights. Except as provided in this Agreement,
the Company will 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 CVC Registrable Securities.
3. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register
any of its Stock under the Securities Act (other than (i) pursuant to a Demand
Registration, (ii) pursuant to a registration statement on Form S-8 or S-4 or
any similar form, (iii) in connection with a registration the primary purpose of
which is to register debt securities (i.e., in connection with a so-called
"equity kicker") or (iv) in connection with the Initial Public Offering and a
registration form to be used may be used for the registration of Registrable
Securities (a "Piggyback Registration"), the Company will give prompt written
notice to all holders of Registrable Securities of its intention to effect such
a registration and will 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 will 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 (other than the
Initial Public Offering), the Company will include in such registration all
securities requested to be included in such registration; provided, that if 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 will include in such registration (i)
first, the securities the Company proposes to sell, (ii) second, the Registrable
Securities requested to be included in such registration, pro rata among the
holders of such Registrable Securities on the basis of the number of shares of
Registrable Securities owned by each such holder, and (iii) third, other
securities, if any, requested to be included in such registration.
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(d) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities (which registration was consented to pursuant to Section 2(h) above),
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 will include in such
registration (i) first, the securities requested to be included therein by the
holders requesting such registration, (ii) second, the Registrable Securities
requested to be included in such registration, pro rata among the holders of
such Registrable Securities on the basis of the number of shares of Registrable
Securities owned by each such holder, and (iii) third, other securities
requested to be included in such registration not covered by clause (i) above.
(e) Selection of Underwriters. If any Piggyback Registration is an
underwritten offering, the investment banker(s) and manager(s) for the offering
will be selected by the Company.
(f) Other Registrations. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to this
Section 3, and if such previous registration has not been withdrawn or
abandoned, the Company will 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 Forms S-4 or S-8 or any successor forms), whether on its own
behalf or at the request of any holder or holders of such securities, until a
period of at least six months has elapsed from the effective date of such
previous registration.
4. Holdback Agreements.
(a) Each holder of Registrable Securities (other than the Individual
Purchasers) hereby agrees not to 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 the seven days prior to and the 180-day period beginning on
the effective date of any Demand Registration (other than a 415 Registration) or
Piggyback Registration for a public offering to be underwritten on a firm
commitment basis in which Registrable Securities are included (except as part of
such underwritten registration), unless the underwriters managing the registered
public offering otherwise agree.
(b) The Company agrees (i) not to effect any public sale or
distribution of its 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 (other than a 415 Registration) or Piggyback
Registration (except as part of such underwritten registration or pursuant to
registrations on Forms S-4 or S-8 or any successor forms), unless the
underwriters managing the registered public offering otherwise agree, and (ii)
to cause each holder of Registrable Securities (other than the Individual
Purchasers) and each other holder of at least 5% (on a fully diluted basis) of
Common Stock, or any securities convertible into or exchangeable or exercisable
for Common Stock,
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purchased from the Company at any time after the date of this Agreement (other
than in a registered public offering) to agree not to effect any public sale or
distribution (including sales pursuant to Rule 144) of any such securities
during such period (except as part of such underwritten registration, if
otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.
5. Registration Procedures. Whenever the holders of Registrable Securities have
requested that any Registrable Securities be registered pursuant to this
Agreement, the Company will 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 will as expeditiously
as possible:
(a) prepare and file with the SEC 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 will furnish to the counsel selected by the holders of a majority of
the Registrable Securities covered by such registration statement copies of all
such documents proposed to be filed);
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for a period of
not less than six months 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 will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subsection, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process (i.e., service of
process which is not limited solely to securities law violations) in any such
jurisdiction);
(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
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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 will promptly prepare a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such prospectus will not contain an untrue statement of a material fact or omit
to state any 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 Nasdaq National Market
("Nasdaq Market") and, if listed on the Nasdaq Market, 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 11Aa2-1 of the SEC or, failing that, to secure Nasdaq Market
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 National
Association of Securities Dealers;
(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, without limitation, 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 SEC, and make available to its security holders, as
soon as reasonably practicable, an earning 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
earning statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 promulgated 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, 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;
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(l) 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 will use its reasonable best efforts promptly to
obtain the withdrawal of such order;
(m) use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
sellers thereof to consummate the disposition of such Registrable Securities;
and
(n) 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.
If any such registration or comparable statement refers to any holder by name or
otherwise as the holder of any securities of the Company and if, in its sole and
exclusive judgment, such holder is or might be deemed to be a controlling person
of the Company, such holder shall have the right to require (i) the insertion
therein of language, in form and substance satisfactory to such holder and
presented to the Company in writing, to the effect that the holding by such
holder of such securities is not to be construed as a recommendation by such
holder of the investment quality of the Company's securities covered thereby and
that such holding does not imply that such holder will assist in meeting any
future financial requirements of the Company, or (ii) in the event that such
reference to such holder by name or otherwise is not required by the Securities
Act or any similar Federal statute then in force, the deletion of the reference
to such holder; provided that with respect to this clause (ii) such holder shall
furnish to the Company an opinion of counsel to such effect, which opinion and
counsel shall be reasonably satisfactory to the Company.
6. 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, and fees and
disbursements of counsel for the Company and all independent certified public
accountants, underwriters (excluding discounts and commissions and other similar
fees described in the underwriting agreement) and other Persons retained by the
Company will be borne by the Company.
(b) In connection with each Demand Registration, each Piggyback
Registration and each 415 Registration, the Company will reimburse the holders
of Registrable Securities covered by such registration for the reasonable fees
and disbursements of one counsel chosen by the holders of a majority of the
Registrable Securities initially requesting such registration.
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7. 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 arising out of or
based upon 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, and shall reimburse such holder, director, officer or
controlling person for any legal or other expenses reasonably incurred by such
holder, director, officer or controlling person in connection with the
investigation or defense of such loss, claim, damage, liability or expense,
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 will 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 will 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, will 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
will be individual to each holder and will 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 will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification 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 will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
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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 will
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 will 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.
8. Participation in Underwritten Registrations. No Person may participate in any
registration hereunder which is underwritten unless such Person (a) 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 (b) completes and executes all customary questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably 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.
9. Rule 144 Reporting. With a view to making available to the holders of
Registrable Securities the benefits of certain rules and regulations of the SEC
which may permit the sale of the Registrable Securities to the public without
registration, the Company agrees to use its best efforts to:
(a) make and keep current public information available, within the
meaning of Rule 144 or any similar or analogous rule promulgated under the
Securities Act, at all times after it has become subject to the reporting
requirements of the Exchange Act;
(b) file with the SEC, in a timely manner, all reports and other
documents required of the Company under the Securities Act and Exchange Act
(after it has become subject to such reporting requirements); and
(c) so long as any party hereto owns any Registrable Securities,
furnish to such Person forthwith upon request, a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144
(at any time commencing 90 days after the effective date of the first
registration filed by the Company for an offering of its securities to the
general public), the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements); a copy of the most recent
annual or quarterly report of the Company; and such other reports and documents
as such Person may reasonably request in availing itself of any rule or
regulation of the SEC allowing it to sell any such securities without
registration.
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10. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered personally, mailed
by certified or registered mail, return receipt requested and postage prepaid,
or sent via a nationally recognized overnight courier, or sent via facsimile to
the recipient. Such notices, demands and other communications will be sent to
the address indicated below:
To the Company:
Gerber Childrenswear, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: President
Telecopy No.: (000) 000-0000
With a copy to:
Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Telecopy No.: (000) 000-0000
To CVC:
Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Telecopy No.: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
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To any of the Executive Officers:
c/o Gerber Childrenswear, Inc.
0000 Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [Executive Officer's Name]
Telecopy No.: (000) 000-0000
and to:
Gerber Childrenswear, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: [Executive Officer's Name]
Telecopy No.: (000) 000-0000
To any of the Individual Purchasers:
c/o Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [Individual Purchaser]
Telecopy No.: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
To CMP:
Citicorp Mezzanine Partners, L.P.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
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With a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx Xxxx, Esq.
Telecopy No.: (000) 000-0000
To CCT:
CCT III Partners, L.P.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxx
Telecopy No.: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
11. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not enter into any
agreement 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 will be entitled to enforce such rights specifically to recover
damages caused by reason of any 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 any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief 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
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the Company and holders of a majority of the Registrable Securities; provided,
that no amendment or waiver which adversely affects the holders of the CMP
Registrable Securities vis-a-vis the other holders of Registrable Securities
shall be effective without the prior written consent of the holders of a
majority of the CMP Registrable Securities. For avoidance of doubt, the addition
of a party to this Agreement shall not, in and of itself, be considered an
amendment which adversely affects the holders of the CMP Registrable Securities
vis-a-vis the other holders of Registrable Securities.
(d) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will 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 subsequent holder of Registrable Securities.
(e) Severability. Whenever possible, each provision of this
Agreement will 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 will 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, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together will constitute
one and the same Agreement.
(g) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(h) Governing Law. The corporate laws of the State of Delaware will
govern all questions concerning the relative rights of the Company and its
stockholders. All other questions concerning the construction, validity and
interpretation of this Agreement shall be governed by and construed in
accordance with the domestic laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of New York or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of New York.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Amended
and Restated Registration Rights Agreement as of the date first above written.
GCIH, INC.
By:
-------------------------------------
Name:
Title:
GERBER CHILDRENSWEAR, INC.
By:
-------------------------------------
Name:
Title:
CITICORP VENTURE CAPITAL, LTD.
By:
-------------------------------------
Name:
Title:
CITICORP MEZZANINE PARTNERS, L.P.
By: Citicorp Capital Investors, Ltd.
Its: General Partner
By:
-------------------------------------
Name:
Title:
CCT III PARTNERS, L.P.
By: CCT III Corporation
Its: General Partner
By:
-------------------------------------
Name:
Title:
