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EXHIBIT 4.13
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of November 18, 1998
(this"Agreement"), is entered into by and among THE MEN'S WEARHOUSE, INC., a
Texas corporation (the "Company"), and MARPRO HOLDINGS, INC., MGB LIMITED
PARTNERSHIP, CAPITAL D'AMERIQUE CDPQ INC., CERBERUS INTERNATIONAL, LTD., ULTRA
CERBERUS FUND, LTD., STYX INTERNATIONAL LTD, THE LONG HORIZONS OVERSEAS FUND
LTD., THE LONG HORIZONS FUND, L.P. AND STYX PARTNERS, L.P. (collectively, the
"Shareholders" and each a "Shareholder").
RECITALS
WHEREAS, the Company, Golden Moores Company, a Nova Scotia unlimited
liability company, Xxxxxx Retail Group Inc. ("MG") and the Shareholders have
entered into a Combination Agreement, dated November 18, 1998 (the "Combination
Agreement"), providing that, among other things, each issued and outstanding
Common Share, Class B Share, Class C Share and Class D Share of MG (a "MG
Share") and each option to purchase MG Shares shall be exchanged for issued and
outstanding Exchangeable Shares of MG (the "Exchangeable Shares") which shall
have the rights, privileges, restrictions and conditions described in the
Exchangeable Share Provisions (as defined in the Share Restructuring Plan); and
WHEREAS, this Agreement is being entered into simultaneously with the
execution of the Combination Agreement;
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants, representations, warranties and agreements herein contained, the
parties hereto agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms shall
have the following respective meanings:
a. "Closing Date" shall mean the Effective Date of the Share
Restructuring Plan as defined in the Combination Agreement.
b. "Commission" shall mean the Securities and Exchange Commission, or
any other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
c. "Common Stock" means the Common Stock, par value $.01 per share, of
the Company, and any other securities of the Company or any successor which may
be issuable upon conversion of the Exchangeable Shares pursuant to the Share
Restructuring Plan and Exchangeable Share Provisions.
d. "Effective Time" shall mean the date on which the Commission
declares the Registration Statement effective or on which the Registration
Statement otherwise becomes effective.
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e. "Effectiveness Period" shall have the meaning assigned thereto in
Section 2 of this Agreement.
f. "Exchange Act" shall mean the Securities Exchange Act of 1934, or
any successor thereto, as the same shall be amended from time to time.
g. "Exchangeable Shares" shall have the meaning assigned to such term
in the Recitals to this Agreement.
h. The term "holder" shall mean any person that is the record owner of
Registrable Securities or any person that has a beneficial interest in an
Exchangeable Share convertible into Registrable Securities or any person who
shall, on the Closing Date, have a beneficial interest in an Exchangeable Share
convertible into Registrable Securities.
i. The term "managing underwriter or underwriters" shall mean the
person or persons selected pursuant to Section 7(a) of this Agreement to manage
an underwritten offering of Registrable Securities.
j. The term "person" shall include an individual, body corporate,
partnership, company, limited liability company, limited liability partnership,
unincorporated syndicate or organization, trust, trustee, executor,
administrator or other legal representative.
k. "Prospectus" shall mean the prospectus (including any preliminary
prospectus and any final prospectus) included in any Registration Statement, as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by the
Registration Statement and by all other amendments and supplements to such
prospectus, including all material incorporated by reference in such prospectus
and all documents filed after the date of such prospectus by the Company under
the Exchange Act and incorporated by reference therein.
l. "Registrable Securities" shall mean all or any portion of the Common
Stock issuable upon exchange of the Exchangeable Shares; provided, however, that
a security ceases to be a Registrable Security when it is no longer a Restricted
Security.
m. "Registration Expenses" shall have the meaning assigned thereto in
Section 4 of this Agreement.
n. "Registration Statement" shall mean a "shelf" registration statement
filed under the Securities Act providing for the registration of, and the sale
on a continuous or delayed basis by the holders of, all of the Registrable
Securities pursuant to Rule 415 under the Securities Act and/or any similar rule
that may be adopted by the Commission, filed by the Company pursuant to the
provisions of Section 2 of this Agreement, including the Prospectus contained
therein, any amendments and
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supplements to such registration statement, including post-effective amendments,
and all exhibits and all material incorporated by reference in such registration
statement.
o. "Restricted Security" shall mean any security or share of Common
Stock issuable upon conversion or exchange thereof unless or until (i) it has
been effectively registered under the Securities Act and sold in a manner
contemplated by the Registration Statement or (ii) it has been transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto).
p. "Rules and Regulations" shall mean the published rules and
regulations of the Commission promulgated under the Securities Act or the
Exchange Act, as in effect at any relevant time.
q. "Securities Act" shall mean the Securities Act of 1933, as amended,
or any successor thereto, as the same shall be amended from time to time.
r. "Share Restructuring Plan" shall have the meaning assigned to such
term in Section 1.1 of the Combination Agreement.
s. The term "underwriter" shall hereinafter mean any underwriter of an
underwritten offering of Registrable Securities.
2. REGISTRATION UNDER THE SECURITIES ACT.
a. The Company shall, at its expense, subject to Sections 5.3(k) and
5.3(v) of the Combination Agreement, within 15 business days of the date upon
which the Company receives the Revised MG Disclosure Letter (as defined in the
Combination Agreement), file with the Commission a Registration Statement with
respect to the Registrable Securities and thereafter shall use its reasonable
best efforts to cause such Registration Statement to be declared effective by
the Commission under the Securities Act prior to the Closing Date.
b. Subject to Section 2(c) hereof, the Company shall use its reasonable
best efforts, and will file such supplements or amendments to the Registration
Statement as may be necessary or appropriate, to keep the Registration Statement
continuously effective under the Securities Act and usable by holders for
resales of Registrable Securities for so long as any of the Exchangeable Shares
remain outstanding and not owned by the Company or any affiliate of the Company
or, such shorter period that will terminate when, in the written opinion of
Fulbright & Xxxxxxxx L.L.P. or other independent counsel to the Company
addressed to and delivered to the holders of Registrable Securities, all
outstanding Registrable Securities may be sold without registration pursuant to
Rules 144 and 145 under the Securities Act without regard to the volume
limitations contained in Rules 144 and 145 (the "Effectiveness Period").
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c. i. If the Company determines in its good faith judgment that the
filing of any supplement or amendment to the Registration Statement to
keep such Registration Statement continuously effective under the
Securities Act during the Effectiveness Period and usable by holders
for resales of Registrable Securities, would require the disclosure of
material information that the Company has a bona fide business purpose
for preserving as confidential or the disclosure of which would
materially adversely affect the Company's ability to consummate a
significant transaction, upon written notice of such determination by
the Company to the holders of the Registrable Securities, the
obligation of the Company to supplement or amend the Registration
Statement (including any action contemplated by Section 3 hereof) will
be suspended until the Company notifies the holders in writing that the
reasons for suspension of such obligations on the part of the Company
as set forth in this Section 2(c)(i) no longer exist; provided,
however, that no such suspension shall be called by the Company during
the 30 days following the publication of the consolidated results of
operations of TMW, the TMW Subsidiaries, MG and the MG Subsidiaries as
provided in Section 8.3(c) of the Combination Agreement nor shall any
suspension last more than 45 consecutive days. If the Company calls a
suspension, the Company shall not call another suspension for at least
45 days after the date on which the Company notifies the holders in
writing as provided in the previous sentence that the reasons for the
prior suspension no longer exist.
ii. If the Company initiates and is in good faith pursuing an
underwritten primary offering of equity securities (as defined in Rule
405 under the Securities Act) (which primary offering may also include
secondary sales of securities of the Company) on a registration
statement (other than any registration by the Company on Form S-8, or a
successor or substantially similar form, of an employee stock option,
stock purchase or compensation plan or of securities issued or issuable
pursuant to any such plan), upon written notice thereof by the Company
to the holders the obligation of the Company to supplement or amend the
Registration Statement shall be suspended during the period commencing
on the effective date of the registration statement relating to such
underwritten primary offering and ending 90 days thereafter; provided,
however, that the Company agrees that it shall not cause any such
registration statement to become effective prior to or during the 30
days following the publication of the consolidated results of
operations of the Company, the TMW Subsidiaries (as defined in the
Combination Agreement), MG and the MG Subsidiaries (as defined in the
Combination Agreement) as provided in Section 8.3(c) of the Combination
Agreement.
d. Notwithstanding the provisions of Section 2(c) hereof, the aggregate
number of days (whether or not consecutive) during which the Company may delay
the filing of any such supplement or amendment shall in no event exceed 90 days
during any period of 12 consecutive months.
3. REGISTRATION PROCEDURES.
a. In connection with the Company's obligations with respect to the
Registration Statement, the Company shall use its reasonable best efforts to
effect or cause the Registration
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Statement to permit the sale of the Registrable Securities by the holders
thereof in accordance with the intended method or methods of distribution
thereof described in the Registration Statement; provided, however, that such
method or methods of distribution may take the form of an underwritten offering
of the Registrable Securities only as provided in Section 7 hereof. In
connection therewith, the Company shall, as promptly as practicable:
i. before filing a Registration Statement or Prospectus or any
amendments or supplements thereto, including documents incorporated by
reference in the Registration Statement, provide to the holders of the
Registrable Securities covered by such Registration Statement and the
managing underwriter or underwriters, if any, of Registrable Securities
being sold in an underwritten offering copies of all such documents
proposed to be filed, together with copies of documents previously
filed with the Commission and proposed to be incorporated by reference
in the Registration Statement, which Registration Statement or
Prospectus or any supplement or amendment thereto (but not any document
incorporated by reference therein) will be subject to the review of
such holders and managing underwriter or underwriters, and the Company
will not file the Registration Statement or any amendment thereto or
any Prospectus or any supplement thereto (including documents filed
with the Commission under the Exchange Act after the initial filing of
the Registration Statement and incorporated by reference in the
Registration Statement) to which any of the Shareholders or, if none of
the Shareholders is a selling holder, the holders of at least 20% of
the Registrable Securities covered by such Registration Statement or
the managing underwriter or underwriters, if any, shall reasonably
object; provided, however, that the Company may assume, for the
purposes of this subparagraph (i), that objections to the inclusion of
information specifically requested to be included in the Registration
Statement or other documents by the staff of the Commission, or in the
opinion of counsel to the Company required to be in the Registration
Statement or other documents, or specifically required by the
Securities Act or the Rules and Regulations, shall not be deemed to be
reasonable;
ii. for a reasonable period prior to the filing of the
Registration Statement and throughout the period specified in Section
2(b) hereof, make available for inspection (solely for the purpose of
verifying the accuracy of information contained in the Registration
Statement) by a representative or representatives of the Shareholders
or, if none of the Shareholders is then a holder, the holders of not
less than 20% of the Registrable Securities, any underwriter
participating in any disposition pursuant to a Registration Statement,
and any attorney or accountant retained by any of the Shareholders or
such selling holders or underwriter, all relevant financial and other
records, pertinent corporate documents and properties of the Company,
and cause the Company's officers, directors, employees and agents,
including independent public accounts and counsel, to supply all
information reasonably requested by any such representative,
underwriter, attorney or accountant in connection with such
Registration Statement; provided, however, that any records,
information or documents that are designated by the Company in writing
as confidential shall be kept confidential by such persons unless
disclosure of such records, information or documents is required by
court or administrative order;
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iii. subject to the provisions of Section 2(c) above, prepare
and file with the Commission such amendments and post-effective
amendments to the Registration Statement, and such supplements to the
Prospectus, as may be required by the Rules and Regulations or the
instructions applicable to the registration form utilized by the
Company or by the Securities Act or otherwise necessary to keep the
Registration Statement effective for the period specified in Section
2(b) and cause the Prospectus as so supplemented to be filed pursuant
to Rule 424 under the Securities Act; and comply with the provisions of
the Securities Act with respect to the disposition of all Registrable
Securities covered by such Registration Statement during the period
specified in Section 2(b) in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
iv. notify the selling holders of Registrable Securities and
the managing underwriter or underwriters, if any, promptly, and confirm
such advice in writing,
(1) when the Registration Statement, any
pre-effective amendment thereto, the Prospectus or any
prospectus supplement or post-effective amendment to the
Registration Statement has been filed, and, with respect to
the Registration Statement or any post-effective amendment,
when the same has become effective,
(2) of any comments by the Commission or the "Blue
Sky" or securities commissioners or regulator of any State
with respect to the Registration Statement, the Prospectus or
any prospectus supplement or any request by the Commission or
any securities commissioner or regulator for amendments or
supplements to the Registration Statement, the Prospectus or
any prospectus supplement or for additional information,
(3) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the initiation or threatening of any proceedings
for that purpose,
(4) if at any time the representations and warranties
of the Company contemplated by subparagraph (xiv) below or
Section 5 hereof cease to be true and correct,
(5) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the
Registrable Securities for sale under the securities or "Blue
Sky" laws of any jurisdiction or the initiation or threatening
of any proceeding for such purpose, and
(6) of the existence of any fact or the happening of
any event during the period (other than any suspension period
referred to in Section 2(c) hereof) during which the
Registration Statement is required hereunder to be effective
as a result of
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which the Registration Statement, any amendment or
post-effective amendment thereto, the Prospectus, any
prospectus supplement, or any document incorporated therein by
reference contains an untrue statement of material fact or
omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading;
v. use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of the Registration Statement at
the earliest possible moment;
vi. if requested by any managing underwriter or underwriters
or any holder of Registrable Securities being sold pursuant to an
underwritten offering, as soon as practicable incorporate in a
prospectus supplement or post-effective amendment to the Registration
Statement such information as is required by the applicable Rules and
Regulations and as the managing underwriter or underwriters or such
holder specifies should be included therein relating to the terms of
the sale of the Registrable Securities, including, without limitation,
information with respect to the principal amount or number of shares of
Registrable Securities being sold by such holder to any underwriter or
underwriters, the name and description of such holder or underwriter,
the offering price of such Registrable Securities and any discount,
commission or other compensation payable in respect thereof, the
purchase price being paid therefor by such underwriter or underwriters
and with respect to any other terms of the underwritten offering
(including whether such underwriting commitment is on a firm commitment
or best efforts basis) of the Registrable Securities to be sold in such
offering; and make all required filings of such prospectus supplement
or post-effective amendment promptly after being notified of the
matters to be incorporated in such prospectus supplement or
post-effective amendment;
vii. furnish to each selling holder of Registrable Securities
and each managing underwriter, if any, without charge, an executed copy
of the Registration Statement, each amendment and supplement thereto
(in each case including all exhibits thereto and documents incorporated
by reference therein) and such number of copies of the Registration
Statement (including exhibits thereto and documents incorporated by
reference therein) as such persons may reasonably request in order to
facilitate the offering and disposition of the Registrable Securities;
viii. deliver to each selling holder of Registrable Securities
and each managing underwriter, if any, without charge, as many copies
of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto, and such other documents, as such
persons may reasonably request in order to facilitate the offering and
disposition of the Registrable Securities and to permit any of such
persons to satisfy the prospectus delivery requirements of the
Securities Act; the Company hereby consents to the use of the
Prospectus or any amendment or supplement thereto by each of the
selling holders of Registrable Securities and by each underwriter
thereof, if any, in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment
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or supplement thereto; and as promptly as practicable after the filing
with the Commission of any document which is incorporated by reference
in the Prospectus (including each preliminary prospectus and any
amendment or supplement thereto) deliver a copy of such document to
each holder of Registrable Securities covered by the Registration
Statement who requests such documents in writing from the Company;
ix. prior to any public offering of Registrable Securities,
use reasonable efforts to (1) register or qualify the Registrable
Securities covered by the Registration Statement for offer and sale
under the securities or "Blue Sky" laws of such jurisdictions as any
selling holder or underwriter reasonably shall request, (2) keep such
registrations or qualifications in effect and comply with such laws so
as to permit the continuance of offers, sales and dealings therein in
such jurisdictions for so long as may be necessary (but not to exceed
the Effectiveness Period required by Section 2(b)) to enable any such
holder or underwriter to complete its distribution of Registrable
Securities pursuant to the Registration Statement and (3) take any and
all other actions as may be reasonably necessary or advisable to enable
the disposition in such jurisdictions of such Registrable Securities;
provided, however, that the Company shall not be required for any such
purpose to qualify as a foreign corporation in any jurisdiction wherein
it would not otherwise be required to qualify but for the requirements
of this Section 3(a)(ix) or consent to general service of process in
any such jurisdiction;
x. cooperate with the selling holders of Registrable
Securities and the managing underwriter or underwriters, if any, to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold, which certificates
shall not bear any restrictive legends and which, if so required by any
securities exchange upon which any Registrable Securities are listed,
shall be penned, lithographed or engraved, or produced by any
combination of such methods, on steel engraved borders; and enable such
Registrable Securities to be in such denominations and registered in
such names as the selling holder or the managing underwriter or
underwriters, if any, may request at least two business days prior to
any delivery of Registrable Securities;
xi. use reasonable efforts to cause the Registrable Securities
covered by the Registration Statement to be registered with or approved
by such other governmental agencies or authorities (federal, state and
local) as may be necessary to enable the seller or sellers thereof or
the underwriter or underwriters, if any, to consummate the disposition
of such Registrable Securities;
xii. if any fact or event contemplated by subparagraph (iv)(6)
above shall exist or occur, prepare as promptly as practicable a
post-effective amendment or supplement to the Registration Statement or
the related Prospectus or any document incorporated therein by
reference or file any other required document so that the Prospectus,
as thereafter delivered to the Shareholders of the Registrable
Securities, will not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading;
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xiii. use its reasonable best efforts to cause the shares of
Common Stock constituting Registrable Securities covered by the
Registration Statement to be quoted on the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") or, if the
Common Stock is not then quoted on NASDAQ, to be listed on such
securities exchanges as the Common Stock of the Company is then listed,
upon effectiveness of the Registration Statement;
xiv. enter into such customary agreements (including a
customary underwriting agreement with the underwriter or underwriters,
if any, which shall include only such "lock-up arrangements", if any,
as shall be agreeable to the Company and the underwriter or
underwriters) and take all such other actions reasonably necessary in
connection therewith in order to expedite or facilitate the disposition
of any Registrable Securities and, in such connection, whether or not
an underwriting agreement is entered into and whether or not the
Registrable Securities are to be sold in an underwritten offering:
(1) make such representations and warranties to the
holders of such Registrable Securities and the underwriter or
underwriters, if any, in form, substance and scope as are
customarily made in connection with primary underwritten
offerings of equity or convertible debt securities;
(2) cause to be delivered to the sellers of
Registrable Securities and the underwriter or underwriters, if
any, opinions of counsel to the Company, dated the effective
date of the Registration Statement and, in the case of an
underwritten offering, the date of delivery of any Registrable
Securities sold pursuant thereto (which counsel and opinions
(in form, scope and substance) shall be reasonably
satisfactory to the managing underwriter or underwriters, if
any, and the appointed representative of or counsel to the
holders of at least 50% of the Registrable Securities being
registered (or, in the case of an underwritten offering,
sold)), addressed to each selling holder and each underwriter,
if any, covering the matters customarily covered in opinions
requested in primary underwritten offerings of equity and
convertible debt securities;
(3) cause to be delivered on the effective date of
the Registration Statement, the date of the Prospectus and the
effective date of the most recent post-effective amendment to
the Registration Statement, and at the time of the signing of
the underwriting or purchase agreement and at the time of
delivery of any Registrable Securities sold pursuant thereto,
letters from the Company's independent public accountants
addressed to each selling holder and each underwriter stating
that such accountants are independent public accountants
within the meaning of the Securities Act and the applicable
published Rules and Regulations thereunder, and otherwise in
customary form and covering such financial and accounting
matters as are customarily covered by letters of independent
certified public accountants
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delivered in connection with primary underwritten public
offerings of convertible securities;
(4) if an underwriting agreement is entered into,
cause the same to set forth in full the indemnification
provisions and procedures of Section 6 hereof (or such other
provisions and procedures satisfactory to the managing
underwriter or underwriters and the Company) with respect to
all parties to be indemnified pursuant to said Section;
(5) deliver such documents and certificates as may be
reasonably requested by any holder of Registrable Securities
being sold or the managing underwriter or underwriters, if
any, to evidence the accuracy of the representations
contemplated by clause (1) above and compliance with any
customary conditions contained in the underwriting agreement
or other agreement entered into by the Company in connection
with such offering;
xv. otherwise use its reasonable best efforts to comply with
all applicable Rules and Regulations, and make generally available to
its security holders earnings statements satisfying the provisions of
Section 11(a) of the Securities Act no later than 45 days after the end
of any 12-month period (or 90 days, if such period is a fiscal year)
(A) commencing at the end of any fiscal quarter in which the
Registrable Securities are sold in an underwritten offering, or, if not
sold in such an offering, (B) commencing with the first month of the
Company's first fiscal quarter commencing after the effective date of
the Registration Statement, which statements shall cover said 12-month
periods;
xvi. notify in writing each holder of Registrable Securities
of any proposal by the Company to amend or waive any provision of this
Agreement pursuant to Section 9(h) hereof and of any amendment or
waiver effected pursuant thereto, each of which notices shall contain
the text of the amendment or waiver proposed or effected, as the case
may be; and
xvii. in the event that any broker-dealer registered under the
Exchange Act shall be an "Affiliate" (as defined in Schedule E to the
By-Laws of the National Association of Securities Dealers, Inc.
("NASD")) of the Company or has a "Conflict of Interest" (as defined in
such Schedule) and such broker-dealer shall underwrite, participate as
a member of an underwriting syndicate or selling group or "assist in
the distribution" (within the meaning of such Schedule) of any
Registrable Securities, whether as a holder of such Registrable
Securities or as an underwriter, a placement or sales agent or a broker
or dealer in respect thereof, or otherwise, assist such broker-dealer
in complying with the requirements of such Schedule, including, without
limitation, by (1) engaging a "qualified independent underwriter" (as
defined in such Schedule) to participate in the preparation of the
registration statement relating to such Registrable Securities, to
exercise usual standards of due diligence in respect thereto and to
recommend the public offering price of such Registrable Securities, (2)
indemnifying such qualified independent underwriter to the extent of
the indemnification of
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underwriters provided in Section 6 hereof, and (3) providing such
information within the possession of the Company to such broker-dealer
as may be reasonably required in order for such broker-dealer to comply
with the requirements of the Rules of Fair Practice of the NASD.
b. The Company may require each selling holder of Registrable
Securities as to which any registration is being effected to furnish to the
Company such information regarding such holder, the Registrable Securities held
by such holder, and the distribution of such Registrable Securities as the
Company may from time to time request in writing, but only to the extent that
such information shall be required by law or by the Commission in connection
with any registration. Each such holder agrees, by the acquisition of
Registrable Securities, to notify the Company as promptly as practicable of any
inaccuracy or change in information previously furnished by such holder to the
Company or of the occurrence of any event in either case as a result of which
any Prospectus relating to such registration contains or would contain an untrue
statement of a material fact regarding such holder or such holder's intended
method of distribution of such Registrable Securities or omits to state any
material fact regarding such holder or such holder's intended method of
distribution of such Registrable Securities necessary to make the statements
therein, in light of the circumstances then existing, not misleading and
promptly to furnish to the Company any additional information required to
correct and update any previously furnished information or required so that such
Prospectus shall not contain, with respect to such holder or the distribution of
such Registrable Securities, an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances then existing, not misleading.
c. Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(a)(iv)(6) hereof or of
the commencement of any suspension period referred to in Section 2(c) hereof,
such holder will forthwith discontinue disposition of Registrable Securities
pursuant to the Registration Statement until such holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 3(a)(xii)
hereof, or until it is advised in writing by the Company that the use of the
Prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in the Prospectus, and,
if so directed by the Company, such holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in such
holder's possession of the Prospectus covering such Registrable Securities at
the time of receipt of such notice.
4. REGISTRATION EXPENSES. The Company agrees to bear and to pay or cause to be
paid promptly upon request being made therefor all expenses incident to the
Company's performance of or compliance with this Agreement, including, without
limitation, (a) all Commission and any NASD registration and filing fees and
expenses, (b) all fees and expenses in connection with the registration or
qualification of the Registrable Securities for offering and sale under the
State securities and blue sky laws referred to in Section 3(a)(ix) hereof and
determines their eligibility for investment under the laws of such jurisdiction
as the managing underwriter or underwriters, if any, or the holders of such
Registrable Securities may designate, including reasonable fees and
disbursements, if any, of
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counsel for the selling holders or underwriters in connection with such
registrations or qualifications and determinations, (c) all expenses relating to
the preparation, printing, distribution and reproduction of the Registration
Statement required to be filed hereunder, each prospectus included therein or
prepared for distribution pursuant hereto, each amendment or supplement to the
foregoing, the expenses of preparing the Registrable Securities for delivery and
the expenses of reproducing any underwriting agreement(s), agreement(s) among
underwriters and "Blue Sky" memoranda, any selling agreements and all other
documents in connection with the offering, sale or delivery of Registrable
Securities to be disposed of, (d) fees and expenses of any Transfer Agent and
Registrar with respect to the Registrable Securities and any escrow agent or
custodian, (e) internal expenses of the Company (including, without limitation,
all salaries and expenses of the Company's officers and employees performing
legal or accounting duties), (f) fees, disbursements and expenses of counsel and
independent certified public accountants of the Company (including the expenses
of any opinions or "cold comfort" letters required by or incident to such
performance and compliance), (g) fees, disbursements and expenses of one counsel
for the holders of Registrable Securities retained in connection with such
registration, as selected by the holders of at least 50% of the outstanding
Registrable Securities being registered, (h) fees, expenses and disbursements of
any other persons, including special experts, retained by the Company in
connection with such registration, (i) disbursements of any managing underwriter
or underwriters in connection with the offering and sale of Registrable
Securities under the Registration Statement (excluding commissions or fees of
underwriters, selling brokers, dealer managers or similar securities industry
professionals) and (j) all fees and expenses incurred in connection with the
qualification of the Registrable Securities for trading on NASDAQ, or the
listing of such shares on any other securities exchange, pursuant to Section
3(a)(xiii) (collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of Registrable
Securities or any underwriter thereof, the Company shall reimburse such person
for the full amount of the Registration Expenses so incurred, assumed or paid
promptly after receipt of a request therefor. Notwithstanding the foregoing, the
holders of the Registrable Securities being registered shall pay all agency fees
and commissions and underwriting discounts and commissions attributable to the
sale of such Registrable Securities and the fees and disbursements of any
counsel or other advisors or experts retained by such holders (severally or
jointly), other than the counsel and experts specifically referred to above, and
all fees, disbursements and expenses of any "qualified independent underwriters"
engaged pursuant to Section 3(a)(xvii).
5. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to, and
agrees with, the Shareholders and each of the holders from time to time of
Registrable Securities that:
a. Each Registration Statement and each Prospectus contained therein or
furnished pursuant to Sections 3(a)(vii) and 3(a)(viii) hereof and any further
amendments or supplements to any such Registration Statement or Prospectus, when
it becomes effective or is filed with the Commission, as the case may be, and,
in the case of an underwritten offering of Registrable Securities, at the time
of the closing under the underwriting agreement relating thereto, will conform
in all material respects to the requirements of the Securities Act and will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary
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to make the statements therein not misleading; and at all times subsequent to
the Effective Time when a prospectus would be required to be delivered under the
Securities Act, other than from (i) such time as a notice has been given to
holders of Registrable Securities pursuant to Section 3(a)(iv)(6) hereof until
(ii) such time as the Company furnishes an amended or supplemented prospectus
pursuant to Section 3(a)(xii) hereof, the Registration Statement, and the
Prospectus (including any summary prospectus) contained therein or furnished
pursuant to Section 3(a)(vii) or 3(a)(viii) hereof, as then amended or
supplemented, will conform in all material respects to the requirements of the
Securities Act and will not contain an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in light
of the circumstances then existing, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by an underwriter in connection with an offering or a holder of
Registrable Securities expressly for use therein.
b. Any documents incorporated by reference in any Prospectus referred
to in Section 5(a) hereof, when they become or became effective or are or were
filed with the Commission, as the case may be, will conform or conformed in all
material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading.
c. The compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any
subsidiary thereof is a party or by which the Company or any subsidiary thereof
is bound or to which any of the property or assets of the Company or any
subsidiary thereof is subject, nor will such action result in any violation of
the provisions of the Restated Articles of Incorporation, as amended and
restated, or the Bylaws, as amended, of the Company or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any subsidiary thereof or any of their
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by the Company of the transactions contemplated by
this Agreement, except the registration under the Securities Act of the
Registrable Securities and such consents, approvals, authorizations,
registrations or qualifications as may be required under State securities or
"Blue Sky" laws or foreign laws in connection with the offering and distribution
of the Registrable Securities.
d. This Agreement has been duly authorized, executed and delivered by
the Company and, when duly authorized, executed and delivered by the other
parties hereto, will constitute a valid and legally binding obligation of the
Company enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
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6. INDEMNIFICATION.
a. Indemnification by the Company. Upon the registration of the
Registrable Securities pursuant to Section 2 hereof, and in consideration of the
agreements of the Shareholders contained herein and in the Combination
Agreement, and as an inducement to the Shareholders to enter into such
Agreements, the Company shall, and it hereby agrees to, indemnify and hold
harmless each of the holders of Registrable Securities to be included in such
registration, each underwriter, selling agent or placement agent with respect to
the Registrable Securities and each of their respective officers, directors,
employees and agents and each person who controls such holder or underwriter,
selling agent or placement agent within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (each such person being
sometimes referred to as an "Indemnified Person") against any losses, claims,
damages or liabilities, joint or several, to which such Indemnified Person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement under which such Registrable
Securities were registered under the Securities Act, or any Prospectus contained
therein or furnished by the Company to any Indemnified Person, or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company shall,
and it hereby agrees to, reimburse such Indemnified Person for any reasonable
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such action or claim; provided, however, that the
Company shall not be liable to any such Indemnified Person in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration furnished to the Company by or on
behalf of such Indemnified Person expressly for use therein.
b. Indemnification by the Holders and any Agents and Underwriters. The
Company may require, as a condition to including any Registrable Securities in
any Registration Statement filed pursuant to this Agreement and to entering into
any underwriting agreement with respect thereto, that the Company shall have
received an undertaking reasonably satisfactory to it from the holder of such
Registrable Securities and from each underwriter named in any such underwriting
agreement, severally and not jointly, to (i) indemnify and hold harmless the
Company, its directors, officers who sign any Registration Statement and each
person, if any, who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities to which the Company or such other persons may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in such Registration Statement, or any Prospectus contained
therein or furnished by the Company to any such holder or underwriter, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein
14
15
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished in writing to the Company by or on behalf of such holder
or underwriter expressly for use therein, and (ii) reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim.
c. Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 6, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party other than under the indemnification provisions of or
contemplated by Section 6(a) or 6(b) hereof but only to the extent that the
indemnifying party is actually prejudiced in connection with the defense of such
action. In case any such action shall be brought against any indemnified party
and it shall notify an indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, such indemnifying party shall not be liable to such indemnified
party for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection with the
defense thereof unless, in such indemnified party's reasonable judgment based
upon written advice of counsel, a copy of which shall be provided to the
indemnifying party, a conflict of interest between such indemnified party and
the indemnifying party shall exist or arise in respect of the claim after the
assumption thereof which conflict renders the indemnifying party unable to
defend the interests of the indemnified party. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any indemnified party.
d. Contribution. Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 6(a) or Section 6(b) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions which
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16
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact
relates to information supplied by such indemnifying party or by such
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 6(d) were determined by pro rata allocation (even if
the holders or any agents or underwriters or all of them were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this Section 6(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The holders' and any underwriters' obligations in this
Section 6(d) to contribute shall be several in proportion to the percentage of
principal amount of Registrable Securities registered or underwritten, as the
case may be, by them and not joint.
e. Notwithstanding any other provision of this Section 6, in no event
will any (i) holder be required to undertake liability to any person under this
Section 6 for any amounts in excess of the dollar amount of the proceeds to be
received by such holder from the sale of such holder's Registrable Securities
(after deducting any fees, discounts and commissions applicable thereto)
pursuant to such registration and (ii) underwriter be required to undertake
liability to any person hereunder for any amounts in excess of the discount,
commission or other compensation payable to such underwriter with respect to the
Registrable Securities underwritten by it and distributed to the public pursuant
to any such underwriting agreement.
f. The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have to any
Indemnified Person.
7. UNDERWRITTEN OFFERINGS.
a. Right to Effect Underwritten Offering. The holders of Registrable
Securities covered by the Registration Statement may sell such Registrable
Securities in an underwritten offering, provided that the holders of at least
20% of the Registrable Securities initially outstanding elect to participate in
such an offering and except that any such underwritten offering shall be
suspended during the periods specified in Section 2(c) hereof.
b. Selection of Underwriters. If any of the Registrable Securities
covered by the Registration Statement are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be designated
by the holders of at least 50% of the outstanding
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Registrable Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are reasonably acceptable
to the Company.
c. Participation by Holders. Each holder of Registrable Securities
hereby agrees with the Company and each other such holder that no such holder
may participate in any underwritten offering hereunder unless such holder (i)
agrees to sell such holder's Registrable Securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. RULE 144. The Company covenants to the holders of Registrable Securities that
to the extent it shall be required to do so under the Exchange Act, the Company
shall timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including, but not limited to, the reports under Sections
13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144
under the Securities Act) and the Rules and Regulations, and shall take such
further action as shall be necessary to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitations
of the exemption provided by Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission. Upon the request of any holder of Registrable
Securities, the Company shall deliver to such holder a written statement as to
whether it has complied with such requirements.
9. MISCELLANEOUS.
a. No Inconsistent Agreements. The Company will not on or after the
date of this Agreement grant registration rights with respect to Registrable
Securities or any other securities, or enter into any agreement with respect to
its securities, which prevents the exercise of or otherwise conflicts with the
provisions hereof.
b. Specific Performance. The parties hereto acknowledge that there may
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any such
failure, and accordingly agree that each party, in addition to any other remedy
to which it may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of any other party under this Agreement
in accordance with the terms and conditions of this Agreement, in any court of
the United States or any State thereof having jurisdiction.
c. Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be given in the manner provided for in the
Indenture.
d. Parties in Interest. All the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be enforceable by
the respective successors and assigns
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of the parties hereto. In the event that any transferee of any holder of
Registrable Securities shall acquire Registrable Securities, in any manner,
whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be deemed a
party hereto for all purposes and such Registrable Securities shall be held
subject to all of the terms of this Agreement, and by taking and holding such
Registrable Securities such transferee shall be entitled to receive the benefits
of and be conclusively deemed to have agreed to be bound by and to perform all
of the terms and provisions of this Agreement. If the Company shall so request,
any such successor, assign or transferee shall agree in writing to acquire and
hold the Registrable Securities subject to all of the terms hereof.
e. Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made pursuant
hereto shall remain in full force and effect regardless of any investigation (or
statement as to the results thereof) made by or on behalf of any holder of
Registrable Securities, any director, officer or partner of such holder, any
agent or underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery of and
payment for the Registrable Securities pursuant to the Combination Agreement and
the transfer and registration of Registrable Securities by such holder.
f. LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
g. Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
h. Amendments and Waivers. This Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by a written
instrument duly executed by the Company and the holders of at least 75% of the
Registrable Securities at the time outstanding. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any amendment
or waiver effected pursuant to this Section 9(h), whether or not any notice,
writing or marking indicating such amendment or waiver appears on such
Registrable Securities or is delivered to such holder.
i. Inspection. For so long as this Agreement shall be in effect, this
Agreement and a complete list of the names and addresses of all the holders of
Registrable Securities shall be made available upon reasonable prior written
notice for inspection and copying on any business day by any holder of
Registrable Securities at the offices of the Company at the address set forth in
the Combination Agreement.
j. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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k. Termination. This Agreement shall terminate automatically and be of
no further force or effect when all Registrable Securities are no longer
Restricted Securities.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed as of the date first written above.
THE MEN'S WEARHOUSE, INC.
By /s/ XXXXX X. XXXXX
-------------------------------------------
Name: Xxxxx X. Xxxxx
Title: President
THE SHAREHOLDERS
MARPRO HOLDINGS, INC.
By /s/ XXXXXX XXXXXXXXXX
-------------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: President
MGB LIMITED PARTNERSHIP
By /s/ XXXXXX XXXXXX
-------------------------------------------
Name: Xxxxxx Xxxxxx
Title: President
CAPITAL D'AMERIQUE CDPQ INC.
By /s/ XXX XXXXX
-------------------------------------------
Name: Xxx Xxxxx
Title: Vice-President
By /s/ XXXXXXX XXXXXXX
-------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
-20-
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CERBERUS INTERNATIONAL, LTD.
By: Xxxxxxxxx Xxxx Overseas Management Ltd.
(Investment Manager)
By /s/ XXXXX XXXXX
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Attorney-in-Fact
ULTRA CERBERUS FUND, LTD.
By: Xxxxxxxxx Hill Overseas Management Ltd.
(Investment Manager)
By /s/ XXXXX XXXXX
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Attorney-in-Fact
STYX INTERNATIONAL LTD.
By: Xxxxxxxxx Xxxx Overseas Management Ltd.
(Investment Manager)
By /s/ XXXXX XXXXX
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Attorney-in-Fact
THE LONG HORIZONS OVERSEAS FUND LTD.
By: Old Stand Management L.L.C.
(Investment Manager)
By /s/ XXXXX XXXXX
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Attorney-in-Fact
-21-
22
THE LONG HORIZONS FUND, L.P.
By: Old Stand Associates L.L.C.
By /s/ XXXXX XXXXX
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Attorney-in-Fact
STYX PARTNERS, L.P.
By: Styx Associates, L.L.C.
By /s/ XXXXX XXXXX
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Attorney-in-Fact
-22-
