EXHIBIT 4.4
EXECUTION COPY
KELLWOOD COMPANY
3.50% Convertible Senior Debentures due 2034
REGISTRATION RIGHTS AGREEMENT
June 22, 2004
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Representative of the Initial Purchasers
Ladies and Gentlemen:
Kellwood Company, a Delaware corporation (the "COMPANY"), proposes to
issue and sell (such issuance and sale, the "INITIAL PLACEMENT") to the Initial
Purchasers (as defined below), upon the terms set forth in a purchase agreement,
dated June 16, 2004 (the "PURCHASE AGREEMENT"), $180,000,000 aggregate original
principal amount of its 3.50% Convertible Senior Debentures due 2034 (the "FIRM
SECURITIES"). In addition, the Company has granted to the Initial Purchasers an
option to purchase up to an additional $20,000,000 aggregate original principal
amount of the Company's 3.50% Convertible Senior Debentures due 2034 (the
"ADDITIONAL SECURITIES" and, collectively with the Firm Securities, the
"SECURITIES"). The Securities will be convertible into shares of Common Stock
(as defined below), subject to the Company's ability to elect to deliver cash or
a combination of cash and its Common Stock in lieu of Common Stock. As an
inducement to you to enter into the Purchase Agreement and in satisfaction of a
condition to your obligations thereunder, the Company agrees with you, (i) for
your benefit and (ii) for the benefit of the Holders (as defined below) from
time to time of the Securities and the shares of Common Stock issuable upon
conversion of the Securities, as follows:
1. Definitions. Capitalized terms used herein without
definition shall have the respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized terms shall have
the following meanings:
"ADDITIONAL AMOUNTS" has the meaning set forth in Section 2(e) hereof.
"ADDITIONAL AMOUNTS PAYMENT DATE" means each June 15 and December 15.
"AFFILIATE" of any specified person means any other person directly or
indirectly controlling or controlled by or under common control with such
specified person. For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlling," "controlled by" and "under
common control with"), as used with respect to any
person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such person
whether through the ownership of voting securities or by agreement or otherwise.
"BUSINESS DAY" has the meaning set forth in the Indenture.
"CLOSING DATE" means June 22, 2004.
"COMMON STOCK" means the common stock, par value $0.01 per share, of
the Company, as it exists on the date of this Agreement and any other shares of
capital stock or other securities of the Company into which such Common Stock
may be reclassified or changed, together with any and all other securities which
may from time to time be issuable upon conversion of Securities.
"COMPANY" has the meaning set forth in the preamble hereto.
"DTC" has the meaning set forth in the Indenture.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"HOLDER" means a person who is a registered holder or beneficial owner
of any Transfer Restricted Securities (including the Initial Purchasers).
"HOLDER INFORMATION" with respect to any Holder means information with
respect to such Holder required to be included in any Shelf Registration
Statement or the related Prospectus pursuant to the Securities Act and which
information is included therein in reliance upon and in conformity with
information furnished to the Company in writing by such Holder for inclusion
therein.
"INDENTURE" means the Indenture relating to the Securities, dated June
22, 2004, between the Company and Union Bank of California, N.A., as trustee, as
the same may be amended from time to time in accordance with the terms thereof.
"INITIAL PLACEMENT" has the meaning set forth in the preamble hereto.
"INITIAL PURCHASERS" mean X.X. Xxxxxx Securities Inc. and the other
initial purchasers named in and a party to the Purchase Agreement.
"MAJORITY HOLDERS" means the Holders of a majority of the then
outstanding aggregate original principal amount of Securities being registered
under a Shelf Registration Statement; provided that Holders of shares of Common
Stock issued upon conversion of Securities shall be deemed to be Holders of the
aggregate original principal amount of Securities converted into such Common
Stock; and provided further, that Securities or shares of Common Stock which
have been sold or otherwise transferred pursuant to the Shelf Registration
Statement shall not be included in the calculation of Majority Holders.
"NASD" has the meaning set forth in Section 3(i) hereof.
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"NASD RULES" means the rules and regulation promulgated by the NASD.
"NOTICE AND QUESTIONNAIRE" means a Selling Securityholder Notice and
Questionnaire substantially in the form of Annex A to the Offering Memorandum.
"NOTICE HOLDER" shall mean, on any date, any Holder of Transfer
Restricted Securities that has delivered a completed and signed Notice and
Questionnaire to the Company on or prior to such date.
"OFFERING MEMORANDUM" means the Final Memorandum as defined in the
Purchase Agreement.
"PERSON" has the meaning set forth in the Indenture.
"PROSPECTUS" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities or shares of Common Stock
issuable upon conversion thereof covered by such Shelf Registration Statement,
including all documents incorporated or deemed to be incorporated by reference
in such prospectus.
"PURCHASE AGREEMENT" has the meaning set forth in the preamble hereto.
"RECORD HOLDER" means each person who is registered on the books of the
registrar as the holder of Securities at the close of business on the June 1 or
December 1 immediately preceding the relevant Additional Amounts Payment Date.
"REGISTRATION DEFAULT" has the meaning set forth in Section 2(e)
hereof.
"REPRESENTATIVE" means X.X. Xxxxxx Securities Inc., as representative
of the Initial Purchasers.
"RULE 144" means Rule 144 under the Securities Act (or any similar
provision then in force).
"RULE 144A" means Rule 144A under the Securities Act (or any successor
provision promulgated by the SEC).
"RULE 144(k)" means Rule 144(k) under the Securities Act (or any
successor provision promulgated by the SEC).
"RULE 415" means Rule 415 under the Securities Act (or any successor
provision promulgated by the SEC).
"SEC" means the Securities and Exchange Commission.
"SECURITIES" has the meaning set forth in the preamble hereto.
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"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"SELLER POST-EFFECTIVE AMENDMENT" has the meaning set forth in Section
2(b)(ii) hereof.
"SHELF REGISTRATION" means a registration effected pursuant to Section
2 hereof.
"SHELF REGISTRATION PERIOD" has the meaning set forth in Section 2(c)
hereof.
"SHELF REGISTRATION STATEMENT" means any "shelf" registration statement
of the Company filed pursuant to the provisions of Section 2 hereof which covers
the Transfer Restricted Securities on Form S-3 or on another appropriate form
(as determined by the Company) for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
documents incorporated or deemed to be incorporated by reference therein.
"SUSPENSION PERIOD" has the meaning set forth in Section 2(d) hereof.
"TRANSFER RESTRICTED SECURITIES" means each Security and each share of
Common Stock issuable upon conversion thereof until the earliest of the date on
which such Security or share of Common Stock, as the case may be, (i) has been
transferred pursuant to a Shelf Registration Statement or another registration
statement covering such Security or share of Common Stock which has been filed
with the SEC pursuant to the Securities Act, in either case after such
registration statement has become effective and while such registration
statement is effective under the Securities Act, (ii) has been transferred
pursuant to Rule 144 under circumstances in which any legend borne by such
Securities or shares of Common Stock relating to restrictions on transferability
thereof, under the Securities Act or otherwise, is removed, (iii) may be sold or
transferred pursuant to Rule 144(k) or (iv) the date on which such Security or
Common Stock ceases to be outstanding.
"TRUSTEE" means the trustee with respect to the Securities under the
Indenture.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included," or "stated" in the Shelf
Registration Statement, any preliminary Prospectus or Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information incorporated or deemed
to be incorporated by reference in such Shelf Registration Statement,
preliminary Prospectus or Prospectus, as the case may be; and all references in
this Agreement to amendments or supplements to the Shelf Registration Statement,
any preliminary Prospectus or Prospectus shall be deemed to mean and include any
document filed with the SEC under the Exchange Act, after the date of such Shelf
Registration Statement, preliminary Prospectus or Prospectus, as the case may
be, which is incorporated or deemed to be incorporated by reference therein
(which shall not include, unless incorporated therein, documents and information
furnished and not filed under applicable SEC rules).
2. Shelf Registration Statement.
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(a) The Company shall, at its expense, prepare and file
with the SEC within 90 days following the Closing Date a Shelf Registration
Statement with respect to resales of the Transfer Restricted Securities by each
Holder that is a Notice Holder from time to time on a delayed or continuous
basis pursuant to Rule 415 and in accordance with the methods of distribution
elected by such Notice Holders in a Notice and Questionnaire and thereafter
shall use its reasonable best efforts to cause such Shelf Registration Statement
to be declared effective under the Securities Act within 210 days after the
Closing Date; provided that if any Additional Securities are issued and the date
on which such Additional Securities are issued occurs after the Closing Date,
the Company will take such steps, prior to the effective date of the Shelf
Registration Statement, to ensure that such Additional Securities and the shares
of Common Stock issuable upon conversion thereof are included in the Shelf
Registration Statement on the same terms as the Securities issued on the Closing
Date. The Company shall supplement or amend the Shelf Registration Statement if
required by the rules, regulations or instructions applicable to the
registration form used by the Company for the Shelf Registration Statement, or
by the Securities Act, the Exchange Act or the SEC.
(b) (i) The Company shall take action to name each Holder
that is a Notice Holder as of the date that is 20 Business Days prior
to the effectiveness of the Shelf Registration Statement as a selling
securityholder in the Shelf Registration Statement at the time of its
effectiveness so that such Holder is permitted to deliver the
Prospectus forming a part thereof as of such time to purchasers of such
Holder's Transfer Restricted Securities in accordance with applicable
law. The Company shall be under no obligation to name any Holder that
is not a Notice Holder as a selling securityholder in the Shelf
Registration Statement.
(ii) (A) After the Shelf Registration Statement
has become effective, the Company shall, upon the request of any Holder
of Transfer Restricted Securities, promptly send a Notice and
Questionnaire to such Holder and the Company shall, as promptly as is
practicable after the date a completed and signed Notice and
Questionnaire is delivered to the Company, and in any event (subject to
clause (B) below) within 20 Business Days (excluding any days within a
Suspension Period) after such date, prepare and file with the SEC (x) a
supplement to the Prospectus or, if a post-effective amendment to the
Shelf Registration Statement is required by applicable law in order to
cause a Holder to be named as a selling securityholder in the Shelf
Registration Statement, a post-effective amendment to the Shelf
Registration Statement (a "SELLER POST-EFFECTIVE AMENDMENT") and (y)
any other document required by applicable law, so that the Holder
delivering such Notice and Questionnaire is named as a selling
securityholder in the Shelf Registration Statement and is permitted to
deliver the Prospectus to purchasers of such Holder's Transfer
Restricted Securities in accordance with applicable law. If the Company
files a Seller Post-Effective Amendment, it shall use its reasonable
best efforts to cause such post-effective amendment to become effective
under the Securities Act as promptly as is practicable and in any event
within 90 days (excluding any days within a Suspension Period) of such
filing.
(B) Notwithstanding the 20-Business-Day
requirement of clause (A) above, the Company shall not be
required to file more than one Seller Post-Effective Amendment
in any fiscal quarter, provided that this clause (B)
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shall not relieve the Company of any obligations under clause
(A) unless a Seller Post-Effective Amendment is required, as
determined by the Company's outside counsel, by applicable law
in order to cause a Holder to be named as a selling
securityholder in the Shelf Registration Statement.
(c) The Company shall use its reasonable best efforts to
keep the Shelf Registration Statement continuously effective, supplemented and
amended under the Securities Act in order to permit the Prospectus forming a
part thereof to be usable, subject to Sections 2(b)(ii) and 2(d), by all Notice
Holders until all Transfer Restricted Securities (A) have been transferred
pursuant to a Shelf Registration Statement or another registration statement
covering such Security or share of Common Stock which has been filed with the
SEC pursuant to the Securities Act, in either case after such registration
statement has become effective and while such registration statement is
effective under the Securities Act, (B) have been transferred pursuant to Rule
144 under circumstances in which any legend borne by such Securities or shares
of Common Stock relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed, (C) may be sold or transferred pursuant
to Rule 144(k) or (D) have ceased to be outstanding (in any such case, such
period being called the "SHELF REGISTRATION PERIOD"). The Company will, (x)
subject to Sections 2(b)(ii) and 2(d), use its reasonable best efforts to
prepare and file with the SEC such amendments and post-effective amendments to
the Shelf Registration Statement as may be necessary to keep the Shelf
Registration Statement continuously effective for the Shelf Registration Period,
(y) subject to Sections 2(b)(ii) and 2(d), cause the related Prospectus to be
supplemented by any required supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act and (z) comply in all material respects with the provisions of
the Securities Act with respect to the Shelf Registration Statement during the
Shelf Registration Period.
(d) The Company may suspend the availability of any Shelf
Registration Statement and the use of any Prospectus (the period during which
the availability of any Shelf Registration Statement and any Prospectus may be
suspended herein referred to as the "SUSPENSION PERIOD"), without incurring any
obligation to pay Additional Amounts pursuant to Section 2(e), for a period not
to exceed 120 days in the aggregate during any 12-month period for valid
business reasons, to be determined by the Company in its sole judgment (which
shall not include the avoidance of the Company's obligations hereunder),
including, without limitation, the acquisition or divestiture of assets, pending
corporate developments, events listed in Section 3(c), public filings with the
SEC and similar events; provided that the Company promptly thereafter complies
with the requirements of Section 3(j) hereof, if applicable, and provided
further that, if a Seller Post-Effective Amendment is required by applicable law
in order to cause a Holder to be named as a selling securityholder in the Shelf
Registration Statement, the period of time between the filing and effectiveness
of any Seller Post-Effective Amendment shall not be deemed to be a Suspension
Period hereunder.
(e) The Company and the Initial Purchasers agree that the
Holders of Transferred Restricted Securities will suffer damages, and it would
not be feasible to ascertain the extent of such damages with precision, if the
Company fails to fulfill its obligations under Section 2 hereof. Accordingly, if
(i) the Shelf Registration Statement is not filed with the SEC within 90 days
after the Closing Date, (ii) the Shelf Registration Statement has not been
declared effective by the SEC within 210 days after the Closing Date, (iii) the
Shelf Registration
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Statement is filed and declared effective but shall thereafter cease to be
effective (without being succeeded immediately by a replacement Shelf
Registration Statement filed and declared effective) or usable (including as a
result of a Suspension Period and excluding as a result of a Seller
Post-Effective Amendment that is required by applicable law in order to cause a
Notice Holder to be named as a selling securityholder therein) for the offer and
sale of Transfer Restricted Securities for a period of time (including any
Suspension Period and excluding, if a Seller Post-Effective Amendment is
required by applicable law in order to cause a Notice Holder to be named as a
selling securityholder in the Shelf Registration Statement, the period of time
between the filing and effectiveness of any Seller Post-Effective Amendment)
which exceeds 120 days in the aggregate in any 12-month period or (iv) the
Company fails to perform its obligations set forth in Section 2(b)(ii) within
the time periods required therein (each such event referred to in clauses (i)
through (iv), a "REGISTRATION DEFAULT"), the Company shall pay to each Notice
Holder of the Securities (who is also a Record Holder) (but only to each
affected Notice Holder under Section 2(b)(ii) in the case of clause (iv)) during
any period in which a Registration Default has occurred or is continuing an
amount (the "ADDITIONAL AMOUNTS") equal to (i) one-quarter of one percent (25
basis points) per annum of the outstanding original principal amount of
Securities constituting Transfer Restricted Securities held by such Holder for
the period up to and including the 90th day during which such Registration
Default has occurred and is continuing and (ii) one-half of one percent (50
basis points) per annum of the outstanding original principal amount of
Securities constituting Transfer Restricted Securities held by such Holder for
the period including and subsequent to the 91st day during which such
Registration Default has occurred and is continuing, it being understood that
all calculations pursuant to this sentence shall be carried out to five decimal
places. Following the cure of all Registration Defaults, Additional Amounts will
cease to accrue with respect to such Registration Defaults. All accrued
Additional Amounts shall be paid by the Company on each Additional Amounts
Payment Date in cash and Additional Amounts will be calculated on the basis of a
360-day year consisting of twelve 30-day months. The parties hereto agree that
the Additional Amounts provided for in this Section 2(e) constitute a reasonable
estimate of the damages that may be incurred by Notice Holders by reason of a
Registration Default and that such Additional Amounts are the only monetary
damages available to Notice Holders in the event of a Registration Default. No
Additional Amounts shall be payable to any Holder of shares of Common Stock
issued upon conversion of the Securities, or in respect of cash paid in lieu of
Common Stock upon conversion of the Securities.
(f) All of the Company's obligations (including, without
limitation, the obligation to pay Additional Amounts) set forth in the preceding
paragraph which are outstanding or exist with respect to any Transfer Restricted
Security at the time such security ceases to be a Transfer Restricted Security
shall survive until such time as all such obligations with respect to such
security shall have been satisfied in full. Notwithstanding the foregoing, no
Additional Amounts shall accrue as to any Transfer Restricted Security from and
after the date such security is no longer a Transfer Restricted Security.
Additional Amounts shall not accrue to more than one Holder with respect to a
Transfer Restricted Security at any one time.
(g) Immediately upon the occurrence or the cure of a
Registration Default, the Company shall give the Trustee, so long as the
Securities remain outstanding, notice of such commencement or termination of the
obligation to pay Additional Amounts with regard to the Securities, the amount
or applicable percentage thereof and the nature of the default giving rise
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to such commencement or the event giving rise to such termination, as the case
may be (such notice to be contained in an Officer's Certificate (as such term is
defined in the Indenture)), and, prior to receipt of such Officer's Certificate,
the Trustee shall be entitled to assume that no such commencement or termination
has occurred, as the case may be.
3. Registration Procedures. In connection with any Shelf
Registration Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to the Initial
Purchasers, within a reasonable period of time, but in any event within three
Business Days, prior to the filing thereof with the SEC to afford the Initial
Purchasers and their counsel a reasonable opportunity for review, a copy of each
Shelf Registration Statement, and each amendment thereof, and a copy of each
Prospectus, and each amendment or supplement thereto (excluding amendments
caused by the filing of a report under the Exchange Act), and shall reflect in
each such document, when so filed with the SEC, such comments as the Initial
Purchasers may reasonably propose, except to the extent the Company reasonably
determines, on the advice of counsel, it to be inadvisable or inappropriate to
reflect such comments therein, and (ii) include information regarding the Notice
Holders and the methods of distribution they have elected for their Transfer
Restricted Securities provided to the Company in Notice and Questionnaires as
necessary to permit such distribution by the methods specified therein. Each
Notice Holder who sells, transfers or disposes of Transfer Restricted Securities
pursuant to the Shelf Registration Statement shall, as a condition to the
obligations of the Company hereunder, do so only in accordance with the terms of
this Agreement, the methods of distribution elected by such Notice Holder, the
Securities Act and the Exchange Act.
(b) Subject to Sections 2(b)(ii) and 2(d), the Company
shall ensure that (i) any Shelf Registration Statement and any amendment thereto
and any Prospectus forming a part thereof and any amendment or supplement
thereto comply in all material respects with the Securities Act and the rules
and regulations thereunder, (ii) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any Prospectus forming a part of any Shelf Registration Statement, and any
amendment or supplement to such Prospectus, does not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading; provided that the Company makes no representation with
respect to any Holder Information.
(c) The Company, as promptly as reasonably practicable
(but in any event within two Business Days), shall notify the Initial Purchasers
and each Notice Holder and, if requested by you or any such Notice Holder,
confirm such notice in writing:
(i) when a Shelf Registration Statement or any
post-effective amendment thereto or any Prospectus or any amendment or
supplement thereto has been filed with the SEC and when the Shelf
Registration Statement or any post-effective amendment thereto has
become effective, which notice and confirmation may be made at
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the election of the Company by making a public announcement thereof by
a press release made through Reuters Economic Services or Bloomberg
Business News;
(ii) of any request, following effectiveness of
the Shelf Registration Statement under the Securities Act, by the SEC
or any other federal or state governmental authority for amendments or
supplements to the Shelf Registration Statement or the Prospectus or
for additional information (other than any such request relating to a
review of the Company's Exchange Act filings);
(iii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending
the effectiveness of the Shelf Registration Statement or of any order
preventing or suspending the use of any Prospectus or the initiation or
threat of any proceedings for that purpose;
(iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or
exemption from qualification of the Transfer Restricted Securities
included in any Shelf Registration Statement for sale in any
jurisdiction or the initiation or threat of any proceeding for that
purpose;
(v) of the occurrence of any event or the
existence of any condition or any information becoming known that
requires the making of any changes in the Shelf Registration Statement
or the Prospectus or any document incorporated by reference therein so
that, as of such date, the statements therein are not misleading and
the Shelf Registration Statement or the Prospectus or any document
incorporated by reference therein, as the case may be, does not include
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading;
(vi) of the Company's determination that a
post-effective amendment to the Shelf Registration Statement is
necessary; and
(vii) of the commencement (including as a result
of any of the events or circumstances described in paragraphs (ii)
through (vi) above) and termination of any Suspension Period; provided
that the Company's actions pursuant to Section 3(c)(vi) shall not
constitute a Suspension Period if taken pursuant to Section 2(b)(ii).
(d) The Company shall use its reasonable best efforts to
obtain (i) the withdrawal of any order suspending the effectiveness of any Shelf
Registration Statement and the use of any related Prospectus and (ii) the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Transfer Restricted Securities for offer or sale in any
jurisdiction in which they have been qualified for sale, in each case at the
earliest possible time, and shall provide notice to each Notice Holder and the
Initial Purchasers of the withdrawal of any such orders or suspensions.
(e) The Company shall promptly furnish to the Initial
Purchasers and each Notice Holder who so requests to the Company, without
charge, at least one copy of any Shelf Registration Statement and any
post-effective amendment thereto, excluding all documents
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incorporated or deemed to be incorporated therein by reference and all exhibits
thereto (unless requested by such Notice Holder).
(f) The Company shall, during the Shelf Registration
Period, promptly deliver to the Initial Purchasers, each Notice Holder and any
broker-dealers acting on their behalf, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in any Shelf
Registration Statement, and any amendment or supplement thereto, as such person
may reasonably request, except as provided in Sections 2(d) and 3(s) hereof; and
the Company hereby consents (except during a Suspension Period and during the
period of time between the filing and effectiveness of a Seller Post-Effective
Amendment filed pursuant to Section 2(b)(ii)) to the use of the Prospectus and
any amendment or supplement thereto by each of the selling Notice Holders in
connection with the offering and sale of the Transfer Restricted Securities
covered by the Prospectus or any amendment or supplement thereto in the manner
set forth therein.
(g) Prior to any offering of Transfer Restricted
Securities pursuant to any Shelf Registration Statement, the Company shall
register or qualify or cooperate with the Notice Holders and their respective
counsel in connection with the registration or qualification (or exemption from
such registration or qualification) of such Transfer Restricted Securities for
offer and sale, under the securities or blue sky laws of such jurisdictions
within the United States as any such Notice Holders reasonably request in
writing and shall maintain such qualification in effect so long as required
during the Shelf Registration Period and do any and all other acts or things
reasonably necessary or advisable to enable the offer and sale in such
jurisdictions of the Transfer Restricted Securities covered by such Shelf
Registration Statement; provided, however, that the Company will not be required
to (A) qualify generally to do business as a foreign corporation or as a dealer
in securities in any jurisdiction where it is not then so qualified or to (B)
take any action which would subject it to service of process or taxation in
excess of a nominal dollar amount in any such jurisdiction where it is not then
so subject.
(h) The Company shall cooperate with the Notice Holders
to facilitate the timely preparation and delivery of certificates representing
Transfer Restricted Securities (to the extent certificates for the Securities or
the Common Stock issued upon conversion of Securities are issuable under the
Indenture) sold pursuant to any Shelf Registration Statement free of any
restrictive legends and, with respect of any Securities, in such denominations
permitted by the Indenture and registered in such names as such Notice Holders
may request at least two Business Days prior to settlement of sales of Transfer
Restricted Securities pursuant to such Shelf Registration Statement.
(i) Subject to the exceptions contained in (A) and (B) of
Section 3(g) above, the Company shall use its reasonable best efforts to cause
the Transfer Restricted Securities covered by the applicable Shelf Registration
Statement to be registered with or approved by such other federal, state and
local governmental agencies or authorities, and self-regulatory organizations in
the United States as may be necessary to enable the Notice Holders to consummate
the disposition of such Transfer Restricted Securities as contemplated by the
Shelf Registration Statement; without limitation to the foregoing, the Company
shall provide all such information as may be required by the National
Association of Securities Dealers, Inc. (the "NASD") in connection with the
offering under the Shelf Registration Statement of the Transfer
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Restricted Securities (including, without limitation, such as may be required by
NASD Rule 2710 or 2720), and shall cooperate with each Holder in connection with
any filings required to be made with the NASD by such Holder in that regard.
(j) Upon the occurrence of any event described in Section
3(c)(v) or 3(c)(vi) hereof, the Company shall promptly prepare and file with the
SEC a post-effective amendment to any Shelf Registration Statement, or an
amendment or supplement to the related Prospectus, or any document incorporated
therein by reference, or file a document which is incorporated or deemed to be
incorporated by reference in such Shelf Registration Statement or Prospectus, as
the case may be, so that, as thereafter delivered to purchasers of the Transfer
Restricted Securities included therein, the Shelf Registration Statement and the
Prospectus, in each case as then amended or supplemented, will not include an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein (in
the case of the Prospectus, in light of the circumstances under which they were
made) not misleading and, in the case of a post-effective amendment, use its
reasonable best efforts to cause it to become effective as promptly as
practicable; provided that the Company's obligations under this paragraph (j)
shall be suspended if the Company has suspended the use of the Prospectus in
accordance with Section 2(d) hereof and given notice of such suspension to
Notice Holders, it being understood that the Company's obligations under this
Section 3(j) shall be automatically reinstated at the end of such Suspension
Period.
(k) The Company shall provide, prior to the effective
date of any Shelf Registration Statement hereunder (i) a CUSIP number for the
Transfer Restricted Securities registered under such Shelf Registration
Statement and (ii) global certificates for such Transfer Restricted Securities
to the Trustee, in a form eligible for deposit with DTC.
(l) The Company shall make generally available to its
security holders an earnings statement satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 promulgated by the SEC thereunder (or
any similar rule promulgated under the Securities Act) for a 12-month period
commencing on the first day of the first fiscal quarter of the Company
commencing after the effective date of any Shelf Registration Statement or each
post-effective amendment to any Shelf Registration Statement, which such
statements shall be made available no later than 45 days after the end of the
12-month period or 90 days after the end of the 12-month period, if the 12-month
period coincides with the fiscal year of the Company.
(m) The Company shall cause the Indenture to be qualified
under the TIA (as defined in the Indenture) not later than the effective date of
the first Shelf Registration Statement.
(n) The Company shall cause all shares of Common Stock
issuable upon conversion of the Securities to be approved for listing upon
official notice of issuance on each securities exchange or quotation system on
which the Common Stock is then listed no later than the date the applicable
Shelf Registration Statement is declared effective and, in connection therewith,
to make such filings as may be required under the Exchange Act and to have such
filings declared effective as and when required thereunder.
(o) The Company may require each Notice Holder of
Transfer Restricted Securities to be sold pursuant to any Shelf Registration
Statement to furnish to the Company
11
such information regarding the Notice Holder and the distribution of such
Transfer Restricted Securities sought by the Notice and Questionnaire and such
additional information as may, from time to time, be required by the Securities
Act and/or the SEC or any other federal or state governmental authority, and the
obligations of the Company to any Notice Holder under this Agreement shall be
expressly conditioned on the compliance of such Notice Holder with such request.
(p) The Company shall, if reasonably requested, promptly
incorporate in a Prospectus supplement or post-effective amendment to a Shelf
Registration Statement (i) such information as the Majority Holders provide and
(ii) such information as a Notice Holder may provide from time to time to the
Company in writing for inclusion in a Prospectus or any Shelf Registration
Statement concerning such Notice Holder and the distribution of such Holder's
Transfer Restricted Securities and, in either case, shall make all required
filings of such Prospectus supplement or post-effective amendment promptly after
being notified in writing of the matters to be incorporated in such Prospectus
supplement or post-effective amendment; provided that the Company shall not be
required to take any action under this Section 3(p) that is not, in the
reasonable opinion of counsel for the Company, in compliance with applicable
law.
(q) In the case of the underwritten offering provided by
Section 7 below, take all actions reasonably necessary, or reasonably requested
by the holders of a majority of the Transfer Restricted Securities being sold in
such underwritten offering, in order to expedite or facilitate disposition of
such Transfer Restricted Securities; provided that the Company shall not be
required to take any action in connection with the underwritten offering without
its consent.
(r) If reasonably requested in writing in connection with
any disposition of Transfer Restricted Securities pursuant to a Shelf
Registration Statement, make reasonably available for inspection during normal
business hours by a representative for the Notice Holders of such Transfer
Restricted Securities and any broker-dealers, attorneys and accountants retained
by such Notice Holders, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries, and
cause the appropriate executive officers, directors and designated employees of
the Company and its subsidiaries to make reasonably available for inspection
during normal business hours all relevant information reasonably requested by
such representative for the Notice Holders or any such broker-dealers, attorneys
or accountants in connection with such disposition, in each case as is customary
for similar "due diligence" examinations; provided, however, that any
information that is designated by the Company, in good faith, as confidential at
the time of delivery of such information shall be kept confidential by such
persons, unless disclosure thereof is made in connection with a court,
administrative or regulatory proceeding or required by law, or such information
has become available to the public generally through the Company or through a
third party without an accompanying obligation of confidentiality, and the
Company may, at its option, require all such Notice Holders and representatives
to sign a standard confidentiality agreement with respect thereto prior to
permitting access to such confidential information.
(s) Each Notice Holder agrees that, upon receipt of
notice of the happening of an event described in Sections 3(c)(ii) through and
including 3(c)(vii), such Notice Holder shall forthwith discontinue (and shall
cause its agents and representatives to discontinue) disposition of Transfer
Restricted Securities and will not resume disposition of Transfer Restricted
Securities
12
until such Notice Holder has received copies of an amended or supplemented
Prospectus contemplated by Section 3(j) hereof, or until such Holder is advised
in writing by the Company that the use of the Prospectus may be resumed or that
the relevant Suspension Period has been terminated, as the case may be, provided
that the foregoing shall not prevent the sale, transfer or other disposition of
Transfer Restricted Securities by a Notice Holder in a transaction which is
exempt from, or not subject to, the registration requirements of the Securities
Act, so long as such Notice Holder does not and is not required to deliver the
applicable Prospectus or Shelf Registration Statement in connection with such
sale, transfer or other disposition, as the case may be; and provided, further,
that the provisions of this Section 3(s) shall not prevent the occurrence of a
Registration Default or otherwise limit the obligation of the Company to pay
Additional Amounts.
(t) Each Notice Holder shall promptly notify the Company
of any inaccuracies or changes in the information provided in such Notice
Holder's Notice and Questionnaire that may occur subsequent to the date thereof
at any time while the Shelf Registration Statement remains effective. Upon any
sale of Registrable Securities pursuant to the Shelf Registration Statement or
otherwise, each Notice Holder hereby agrees to deliver to the Company and the
Trustee a duly completed and executed Notice of Transfer in substantially the
form set forth in Exhibit A hereto.
4. Registration Expenses. The Company shall bear all
fees and expenses incurred in connection with the performance of its obligations
under Sections 2 and 3 hereof. Such fees and expenses shall include, without
limitation: (i) all registration and filing fees and expenses (including filings
made with the NASD); (ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws; (iii) all expenses of printing
(including printing of Prospectuses and certificates for the Common Stock to be
issued upon conversion of the Securities) and the Company's expenses for
messenger and delivery services and telephone; (iv) all fees and disbursements
of counsel to the Company and, in the case of the Shelf Registration Statement,
and any amendment and supplement thereto, the fees and disbursements (not
exceeding $15,000 in the aggregate) of the counsel for the Initial Purchasers
and the Holders (which counsel shall initially be Xxxxx Xxxx & Xxxxxxxx until
such time as the Majority Holders shall have elected a different counsel); (v)
all application and filing fees in connection with listing (or authorizing for
quotation) the Common Stock on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and (vi) all fees and
disbursements of independent certified public accountants of the Company. The
Company shall bear its internal expenses (including, without limitation, all
salaries and expenses of their officers and employees performing legal,
accounting or other duties), the expenses of any annual audit and the fees and
expenses of any Person, including special experts, retained by the Company.
Notwithstanding the provisions of this Section 4, each Holder shall bear the
expense of any broker's commission, agency fee and underwriter's discount or
commission (including, without limitation, the expenses related to the
engagement of a "qualified independent underwriter"), if any, relating to the
sale or disposition of such Holder's Transfer Restricted Securities pursuant to
a Shelf Registration Statement.
5. Indemnity and Contribution.
13
(a) The Company agrees to indemnify and hold harmless
each Holder of Transfer Restricted Securities named in any Shelf Registration
Statement (including, without limitation, each Initial Purchaser), and each
person, if any, who controls any such Holder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively
referred to for purposes of this Section 5 as a "HOLDER"), from and against any
and all losses, claims, damages and liabilities (including without limitation
the reasonable legal fees and other expenses incurred in connection with any
suit, action or proceeding or any claim asserted) caused by any untrue statement
or alleged untrue statement of a material fact contained in the Shelf
Registration Statement, or in any Prospectus, or any amendment thereof or
supplement thereto, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Holder furnished to the Company in writing by such
Holder expressly for use therein; provided that the foregoing indemnity with
respect to any Shelf Registration Statement, or any Prospectus, shall not inure
to the benefit of any Holder (or the benefit of any person controlling such
Holder) from whom the person asserting any such losses, claims, damages or
liabilities purchased the securities concerned, to the extent that any such
loss, claim, damage or liability of the Holders occurs under the circumstance
where it shall have been established that (w) the Company had previously
furnished copies of the Prospectus, and any amendments and supplements thereto,
to the Holder (to the extent such Holder has previously requested such copies),
(x) delivery of the Prospectus, and any amendment or supplements thereto, was
required by the Securities Act to be made to such person, (y) the untrue
statement or omission of a material fact was corrected in the Prospectus or
amendments or supplements thereto, and (z) there was not sent or given to such
person, at or prior to the written confirmation of the sale of such securities
to such person, a copy of such Prospectus or amendments or supplements thereto.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers and each
person who controls the Company within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to the Holders, but only with reference to
information relating to such Holder furnished to the Company in writing by such
Holder expressly for use in the Shelf Registration Statement, or in any
Prospectus, or any amendment or supplement thereto.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnity may be sought pursuant
to either of the two preceding paragraphs, such person (the "INDEMNIFIED
PERSON") shall promptly notify the person against whom such indemnity may be
sought (the "INDEMNIFYING PERSON") in writing, and the Indemnifying Person, upon
request of the Indemnified Person, shall retain counsel reasonably satisfactory
to the Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding. In any
such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have
14
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Holders and
such control persons of the Holders shall be designated in writing by the
Representative and any such separate firm for the Company, its directors, its
officers and such control persons of the Company shall be designated in writing
by the Company. The Indemnifying Person shall not be liable for any settlement
of any pending or threatened proceeding effected without its prior written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify in accordance with
Section 5(a) or 5(b) above, as the case may be, any Indemnified Person from and
against any loss or liability by reason of such settlement or judgment. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending proceeding in respect of which any
Indemnified Person is a party or of any threatened proceeding in respect of
which any Indemnified Person could have been a party and indemnity could have
been sought hereunder by such Indemnified Person, unless such settlement
includes an unconditional release of such Indemnified Person from all liability
on claims that are the subject matter of such proceeding on terms reasonably
satisfactory to such Indemnified Person.
(d) If the indemnification provided for in paragraph (a)
or (b) of this Section 5 is unavailable to an Indemnified Person or insufficient
in respect of any losses, claims, damages or liabilities referred to therein,
then each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Holder on the other
hand with respect to the sale by such Holder of Securities or Common Stock or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and of such Holder on the other in connection with
the statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the Initial Placement (before deducting expenses). Benefits received by the
Initial Purchasers shall be deemed to be equal to the total purchase discounts
and commissions received by the Initial Purchasers in the Initial Placement, and
benefits received by any other Holders shall be deemed to be equal to the value
of receiving Securities registered under the Securities Act. Benefits received
by any underwriter shall be deemed to be equal to the total underwriting
discounts and commissions, as set forth on the cover page of the Prospectus
forming a part of the Shelf Registration Statement which resulted in such
losses, claims, damages or liabilities. The relative fault of the Company on the
one hand and such Holder on the other shall be determined by reference to, among
other things, whether any untrue or any alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information
15
supplied by the Company or by such Holder and the parties' relevant intent,
knowledge, information and opportunity to correct or prevent such statement or
omission.
(e) The Company and the Holders agree that it would not
be just and equitable if contribution pursuant to this Section 5 were determined
by pro rata allocation (even if the Holders were treated as one entity for such
purpose) or any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) of this Section 5. The
amount paid or payable by an Indemnified Person as a result of losses, claims,
damages and liabilities referred to in paragraph (d) of this Section 5 shall be
deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses incurred by such Indemnified Person not otherwise
reimbursed in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 5, in no event shall any
Holder be required to contribute any amount in excess of the amount by which the
total amount received by such Holder with respect to its sale of Transfer
Restricted Securities pursuant to a Shelf Registration Statement exceeds the
amount of any damages that such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(f) The remedies provided for in this Section 5 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any Indemnified Party at law or in equity.
(g) The indemnity and contribution agreements contained
in this Section 5 shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Holder or any person controlling any Holder or by or on behalf of
the Company, its officers or directors or any other person controlling the
Company and (iii) the sale by a Holder of Transfer Restricted Securities covered
by a Shelf Registration Statement.
6. Rules 144 and 144A. The Company covenants that it
shall file the reports required to be filed by it under the Securities Act and
the Exchange Act in a timely manner so long as the Transfer Restricted
Securities remain outstanding. If at any time the Company is not required to
file such reports, it will, upon request of any Holder or beneficial owner of
Transfer Restricted Securities, make available such information necessary to
permit sales pursuant to Rule 144A. The Company further covenants that, for as
long as any Transfer Restricted Securities remain outstanding, it will take such
further action as any Holder of Transfer Restricted Securities may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Transfer Restricted Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 and Rule 144A.
Upon the written request of any Holder of Transfer Restricted Securities, the
Company shall deliver to such Holder a written statement as to whether it has
complied with such requirements. Nothing in this Section 6 shall be deemed to
require the Company to register any of its securities under the Exchange Act.
16
7. Underwritten Offering.
(a) If any of the Transfer Restricted Securities covered
by any Shelf Registration Statement are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
administer the underwritten offering will be selected by the Majority Holders of
such Transfer Restricted Securities included in such underwritten offering,
subject to the consent of the Company (which shall not be unreasonably withheld
or delayed), and such Holders shall be responsible for all underwriting
commissions and discounts in connection therewith; provided, however, that
notwithstanding anything contained in this Agreement to the contrary, the
Company shall be under no obligation to participate in any underwritten offering
with respect to the Transfer Restricted Securities and no underwritten offering
shall be effected pursuant to this Agreement without the prior written consent
of the Company.
(b) No Holder may participate in any underwritten
offering hereunder unless such person (i) agrees to sell such Holder's Transfer
Restricted Securities on the basis reasonably provided in any underwriting
arrangements approved by the Holders 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. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as
of the date hereof, entered into nor shall it, on or after the date hereof,
enter into, any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders herein or otherwise conflicts with the
provisions hereof. In addition, the Company shall not grant to any of its
securityholders the right to include any of its securities in the Shelf
Registration Statement provided for in this Agreement other than the Transfer
Restricted Securities.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
qualified, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Company has obtained the
written consent of at least the majority of the Holders of the then outstanding
Transfer Restricted Securities; provided that with respect to any matter that
directly or indirectly affects the rights of the Initial Purchasers hereunder,
the Company shall obtain the written consent of the Initial Purchasers against
which such amendment, qualification, supplement, waiver or consent is to be
effective. Notwithstanding the foregoing (except the foregoing proviso), a
waiver or consent to departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose Transfer
Restricted Securities are being sold pursuant to a Shelf Registration Statement
and that does not directly or indirectly affect the rights of other Holders may
be given by the Majority Holders. Notwithstanding the foregoing, (i) this
Agreement may be amended by written agreement signed by the Company and the
Initial Purchasers, without the consent of the Holders of Transfer Restricted
Securities, to cure any ambiguity or to correct or supplement any provision
contained herein that may be defective or inconsistent with any other provision
contained herein, or to make such other provisions in regard to matters or
questions arising under this Agreement that shall not adversely
17
affect the interests of the Holders of Transfer Restricted Securities. Each
Holder of Transfer Restricted Securities outstanding at the time of any such
amendment, modification, supplement, waiver or consent or thereafter shall be
bound by any such amendment, modification, supplement, waiver or consent
effected pursuant to this Section 8(b), whether or not any notice, writing or
marking indicating such amendment, modification, supplement, waiver or consent
appears on the Transfer Restricted Securities or is delivered to such Holder.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telecopier, or air courier guaranteeing overnight delivery:
(i) if to the Initial Purchasers, initially at
their address set forth in the Purchase Agreement;
(ii) if to any other Holder, at the most current
address of such Holder maintained by the Registrar under the Indenture
or the registrar of the Common Stock (provided that while the
Securities or the Common Stock are in book-entry form, notice to the
Trustee or transfer and paying agent, as the case may be, shall serve
as notice to the Holders), or, in the case of the Notice Holder, the
address set forth in its Notice and Questionnaire; and
(iii) if to the Company, to:
Kellwood Company
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx
Facsimile: (000) 000-0000
Attn: Legal Department
With a copy to:
XxXxxxxxx, Will & Xxxxx
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxx Xxxxxx, Esquire
e-mail: xxxxxxx@xxx.xxx
All such notices and communications shall be deemed to have been duly
given when received, if delivered by hand or air courier, and when sent, if sent
by first-class mail or telecopier.
The Initial Purchasers or the Company by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company thereto, subsequent Holders. The
18
Company hereby agrees to extend the benefits of this Agreement to any Holder and
any such Holder may specifically enforce the provisions of this Agreement as if
an original party hereto. In the event that any other person shall succeed to
the Company under the Indenture, then such successor shall enter into an
agreement, in form and substance reasonably satisfactory to the Initial
Purchasers, whereby such successor shall assume all of the Company's obligations
under this Agreement.
(e) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF.
(h) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall not be in any way
impaired or affected thereby, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent permitted
by law.
(i) Securities Held by the Company, etc. Whenever the
consent or approval of Holders of a specified percentage of original principal
amount of Securities or the shares of Common Stock issuable upon conversion
thereof is required hereunder, Securities or the shares of Common Stock issued
upon conversion thereof held by the Company or its Affiliates (other than
subsequent Holders of Securities or the Common Stock issued upon conversion
thereof if such subsequent Holders are deemed to be Affiliates solely by reason
of their holdings of such Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(j) Termination. This Agreement and the obligations of
the parties hereunder shall terminate upon the end of the Shelf Registration
Period, except for any liabilities or obligations under Section 2(e), 4 or 5 to
the extent arising prior to the end of the Shelf Registration Period.
19
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
KELLWOOD COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President,
Secretary & General Counsel
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
X.X. XXXXXX SECURITIES INC.
Acting on behalf of itself and as Representative
of the Initial Purchasers
By: /s/ Xxxxxxx Xxxxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: Vice President
EXHIBIT A
FORM OF NOTICE OF TRANSFER
Kellwood Company
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: General Counsel
Re: Kellwood Company (the "Company") 3.50% Convertible Senior Debentures due
2034 (the "Debentures")
Ladies and Gentlemen:
Please be advised that __________________ has transferred $____________
aggregate original principal amount of the above_referenced Debentures or shares
of the Company's common stock issued upon conversion of Debentures, [pursuant to
an effective Registration Statement on Form [____] (File No. 333_______) filed
by the Company.] [pursuant to Rule 144A under the Securities Act of 1933, as
amended.]
[We hereby certified that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied with respect to the
transfer described above and that the above_named beneficial owner of the
Debentures or common stock is named as a selling securityholder in the
Prospectus dated ______________________, or in amendments or supplements
thereto, and that the aggregate original principal amount of the Debentures or
number of shares of common stock transferred are [a portion of] the Debentures
or shares of common stock listed in such Prospectus as amended or supplemented
opposite such owner's name.]
Dated:___________________
Very truly yours,
____________________________________
(Name of selling securityholder)
By: ________________________________
(Authorized Signature)
A-1
