REGISTRATION RIGHTS AGREEMENT
Dated as of October 7, 1996
by
BROWN GROUP, INC.
and
SMITH BARNEY INC.,
FIRST CHICAGO CAPITAL MARKETS, INC.
and
DILLON, READ & CO. INC.
(as Initial Purchasers)
$100,000,000
9-1/2% SENIOR NOTES DUE 2006
This Registration Rights Agreement is dated as of
October 7, 1996, by and among Brown Group, Inc., a New York
corporation (the "Company"), and Smith Barney Inc., First
Chicago Capital Markets, Inc. and Dillon, Read & Co. Inc.
(collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase
Agreement, dated October 1, 1996, among the Company and the
Initial Purchasers (the "Purchase Agreement"). In order to
induce the Initial Purchasers to enter into the Purchase
Agreement, the Company has agreed to provide the
registration rights provided for in this Agreement to the
Initial Purchasers and their direct and indirect transferees
and assigns. The execution and delivery of this Agreement
is a condition to the closing of the transactions
contemplated by the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms
shall have the following meanings:
Additional Interest: As defined in Section 4(a)
hereof.
Affiliate: With respect to any specified person,
"Affiliate" shall mean any other person directly or
indirectly controlling or controlled by or under direct or
indirect common control with such specified person. For the
purposes of this definition, "control," when used with
respect to any person, means the power to direct the
management and policies of such person, directly or
indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms
"affiliated," "controlling" and "controlled" have meanings
correlative to the foregoing.
Agreement: This Registration Rights Agreement, as
the same may be amended, supplemented or modified from time
to time in accordance with the terms hereof.
Business Day: Any day except a Saturday, a Sunday
or a day on which banking institutions in New York, New York
generally are required or authorized by law or other
government action to be closed.
Company: As defined in the preamble hereof.
Company Indemnified Persons: As defined in
Section 7(c) hereof.
Consummate or consummate: When used to qualify
the term "Exchange Offer," shall mean validly and lawfully
to issue and deliver the Exchange Notes pursuant to the
Exchange Offer for all Notes validly tendered and not
validly withdrawn pursuant thereto in accordance with the
terms of this Agreement.
Consummation Date: The date that is 25 Business
Days immediately following the date that the Exchange
Registration Statement shall have been declared effective by
the SEC.
Effectiveness Period: As defined in Section 3(a)
hereof.
Exchange Act: The Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated
by the SEC pursuant thereto.
Exchange Date: As defined in Section 2(d) hereof.
Exchange Notes: The 9-1/2% Senior Notes due 2006 of
the Company, that are identical to the Notes in all material
respects, except that the provisions regarding restrictions
on transfer shall be modified, as provided in the Indenture
(or the indenture pursuant to which the Exchange Notes are
issued), and the issuance thereof pursuant to the Exchange
Offer shall have been registered pursuant to an effective
Registration Statement in compliance with the Securities
Act.
Exchange Offer: An offer to issue, in exchange
for any and all of the Notes validly tendered, a like
aggregate principal amount of Exchange Notes, which offer
shall be made by the Company pursuant to Section 2 hereof.
Exchange Registration Statement: As defined in
Section 2(a) hereof.
Indemnified Holder: As defined in Section 7(a)
hereof.
Indemnified Person: As defined in Section 7(a)
hereof.
Indenture: The Indenture, dated as of October 1,
1996, between the Company and State Street Bank and Trust,
as trustee thereunder, pursuant to which the Notes are
issued, as amended or supplemented from time to time in
accordance with the terms thereof.
Initial Purchasers: As defined in the preamble
hereof.
Issue Date: As defined in Section 2(a).
Notes: The 9-1/2% Senior Notes due 2006 of the
Company, issued pursuant to the Indenture.
Participating Broker-Dealer: As defined in
Section 2(e) hereof.
Private Exchange: As defined in Section 2(c)
hereof.
Private Exchange Notes: As defined in Section
2(c) hereof.
Prospectus: The prospectus included in any
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 promulgated pursuant to
the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the
offering of any portion of the Notes, Exchange Notes or
Private Exchange Notes covered by such Registration
Statement, and all other amendments and supplements to any
such prospectus, including post-effective amendments, and
all material incorporated by reference or deemed to be
incorporated by reference, if any, in such prospectus.
Registration Default: As defined in Section 4(a)
hereof.
Registration Statement: Any registration
statement of the Company that covers any of the Notes,
Exchange Notes or Private Exchange Notes pursuant to the
provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration statement or
Prospectus, including pre- and post-effective amendments,
all exhibits thereto, and all material incorporated by
reference or deemed to be incorporated by reference, if any,
in such registration statement.
Requesting Participating Broker-Dealer: As
defined in Section 2(e) hereof.
Rule 144(k): Rule 144(k) promulgated by the SEC
pursuant to the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation
hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 144A: Rule 144A promulgated by the SEC
pursuant to the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation
hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 158: Rule 158 promulgated by the SEC
pursuant to the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation
hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 174: Rule 174 promulgated by the SEC
pursuant to the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation
hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 415: Rule 415 promulgated by the SEC
pursuant to the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation
hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 424: Rule 424 promulgated by the SEC
pursuant to the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation
hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as
amended, and the rules and regulations promulgated by the
SEC thereunder.
Shelf Blackout Period: As defined in Section 3(a)
hereof.
Shelf Filing Event: As defined in Section 3(a)
hereof.
Shelf Registration: As defined in Section 3(a)
hereof.
Shelf Registration Statement: As defined in
Section 3(a) hereof.
Special Counsel: Chadbourne & Parke LLP, special
counsel to the holders of Transfer Restricted Notes, or such
other counsel as shall be agreed upon by the Company and
holders of a majority in aggregate principal amount of
Transfer Restricted Notes, the reasonable expenses of which
holders of Transfer Restricted Notes will be reimbursed by
the Company pursuant to Section 6 hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Note: Each Note, upon
original issuance thereof, and at all times subsequent
thereto, each Exchange Note as to which Section 3(a)(ii)
hereof is applicable upon original issuance and at all times
subsequent thereto and each Private Exchange Note upon
original issuance thereof and at all times subsequent
thereto, until in the case of any such Note, Exchange Note
or Private Exchange Note, as the case may be, the earliest
to occur of (i) the date on which any such Note has been
exchanged by a person other than a Participating Broker-
Dealer for an Exchange Note (other than with respect to an
Exchange Note as to which Section 3(a)(ii) hereof applies)
pursuant to the Exchange Offer, (ii) with respect to
Exchange Notes received by Participating Broker-Dealers in
the Exchange Offer, the date on which such Exchange Note has
been sold by such Participating Broker-Dealer by means of
the Prospectus contained in the Exchange Registration
Statement, (iii) a Shelf Registration Statement covering
such Note, Exchange Note or Private Exchange Note has been
declared effective by the SEC and such Note, Exchange Note
or Private Exchange Note, as the case may be, has been
disposed of in accordance with such effective Shelf
Registration Statement, (iv) the date on which such Note,
Exchange Note or Private Exchange Note, as the case may be,
is eligible for distribution to the public without volume or
manner of sale restrictions pursuant to Rule 144(k) or (v)
the date on which such Note, Exchange Note or Private
Exchange Note, as the case may be, ceases to be outstanding
for purposes of the Indenture or any other indenture under
which such Exchange Note or Private Exchange Note was
issued.
Trustee: The trustee under the Indenture.
Underwritten registration or underwritten
offering: A registration in connection with which
securities are sold to an underwriter for reoffering to the
public pursuant to an effective Registration Statement.
2. Exchange Offer
(a) To the extent not prohibited by any
applicable law or applicable interpretation of the staff of
the SEC, the Company shall (A) use its reasonable best
efforts to prepare and, on or prior to 45 days after the
date of original issuance of the Notes (the "Issue Date"),
file with the SEC a Registration Statement under the
Securities Act with respect to an offer by the Company to
the holders of the Notes to issue and deliver to such
holders, in exchange for Notes, a like principal amount of
Exchange Notes, (B) use its reasonable best efforts to cause
the Registration Statement relating to the Exchange Offer to
be declared effective by the SEC under the Securities Act on
or prior to 90 days after the Issue Date, and (C) promptly
following the declaration of the effectiveness of the
Exchange Registration Statement, commence the Exchange Offer
and use its reasonable best efforts to issue, on or prior to
the Consummation Date, the Exchange Notes in exchange for
all Notes tendered prior thereto into the Exchange Offer.
The offer and sale of the Exchange Notes pursuant to the
Exchange Offer shall be registered pursuant to the
Securities Act on an appropriate form (the "Exchange
Registration Statement") and duly registered or qualified
under all applicable state-securities or Blue Sky laws and
will comply with all applicable tender offer rules and
regulations under the Exchange Act and state securities or
Blue Sky laws. The Exchange Offer shall not be subject to
any condition, other than that the Exchange Offer does not
violate any applicable law or interpretation of the staff of
the SEC. No securities shall be included in the Exchange
Registration Statement other than the Exchange Notes.
(b) The Company may require each holder of Notes,
as a condition to its participation in the Exchange Offer,
to represent and warrant to the Company and its counsel in
writing (which may be contained in the applicable letter of
transmittal) that at the time of the consummation of the
Exchange Offer (i) any Exchange Notes received by such
holder will be acquired in the ordinary course of its
business, (ii) such holder will have no arrangement or
understanding with any person to participate in the
distribution (within the meaning of the Securities Act) of
the Exchange Notes, (iii) such holder is not an Affiliate of
the Company, or if it is an Affiliate of the Company, it
will comply with the registration and prospectus delivery
requirements of the Securities Act, to the extent applicable
and such holder has full power and authority to tender,
sell, assign and transfer the Notes and that upon
consummation of the Exchange Offer the Company will acquire
good, marketable and unencumbered title to the Notes, free
and clear of all security interests, liens, restrictions,
charges, encumbrances, conditional sales agreements or other
obligations relating to the sale or transfer of the Notes.
(c) If, prior to consummation of the Exchange
Offer, any Initial Purchaser holds any Notes acquired by it
and having, or which are reasonably likely to be determined
to have, based on the written advice of Special Counsel, the
status of an unsold allotment in the initial distribution,
or any other holder of Notes is not entitled, as a matter of
law or based on an interpretation or position of the staff
of the SEC, to participate in the Exchange Offer, the
Company, upon the request of such Initial Purchaser or any
such holder, shall, simultaneously with the delivery of the
Exchange Notes in the Exchange Offer, issue and deliver to
such Initial Purchaser and any such holder, in exchange (the
"Private Exchange") for such Notes held by such Initial
Purchaser and any such holder, a like principal amount of
debt securities of the Company that are identical in all
material respects to the Exchange Notes (the "Private
Exchange Notes") (and which are issued pursuant to the same
indenture as the Exchange Notes). The Private Exchange
Notes shall bear the same CUSIP number as the Exchange
Notes.
(d) Unless the Exchange Offer would not be
permitted by any applicable law or interpretation thereof of
the staff of the SEC, the Company shall deliver, or cause to
be delivered, the Exchange Offer Prospectus and appropriate
accompanying documents, including appropriate letters of
transmittal, to each holder of Notes providing, in addition
to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made
pursuant to this Agreement and that all Notes validly
tendered will be accepted for exchange;
(ii) the date of acceptance for exchange (the
"Exchange Date"), which date shall in no event be later
than the Consummation Date (unless otherwise required
by applicable law);
(iii) that a holder of a Note electing to have a
Note exchanged pursuant to the Exchange Offer will be
required to surrender such Note, together with the
enclosed letters of transmittal, to the institution and
at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice prior to
the close of business on the Exchange Date; and
(iv) that holders of Notes that do not validly
tender all such securities pursuant to the Exchange
Offer may no longer have any registration rights
hereunder with respect to Notes not validly tendered.
Promptly after the Exchange Date, the Company
shall:
(i) accept for exchange all Notes or portions
thereof validly tendered and not validly withdrawn
pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the
Trustee for cancellation all Notes or portions thereof
so accepted for exchange by the Company, and issue,
cause the Trustee under the Indenture (or the indenture
pursuant to which the Exchange Notes are issued) to
authenticate, and deliver, or cause to be delivered, to
each holder of Notes, Exchange Notes equal in principal
amount to the principal amount of the Notes surrendered
by such holder.
(e) The Company and the Initial Purchasers
acknowledge that the staff of the SEC has taken the position
that any broker-dealer that elects to exchange Notes that
were acquired by such broker-dealer for its own account as a
result of market-making or other trading activities for
Exchange Notes in the Exchange Offer (a "Participating
Broker-Dealer") may be deemed to be an "underwriter", within
the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes (other
than a resale of an unsold allotment resulting from the
original offering of the Notes).
The Company and the Initial Purchasers also
acknowledge that it is the SEC staff's position that if the
Prospectus contained in the Exchange Registration Statement
includes a plan of distribution containing a statement to
the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Notes, without naming
the Participating Broker-Dealers or specifying the amount of
Exchange Notes owned by them, such Prospectus may be
delivered by Participating Broker-Dealers to satisfy their
prospectus delivery obligations under the Securities Act in
connection with resales of Exchange Notes for their own
accounts, so long as the Prospectus otherwise meets the
requirements of the Securities Act.
In light of the foregoing, if requested by a
Participating Broker-Dealer (a "Requesting Participating
Broker-Dealer"), the Company agrees (x) to use its
reasonable best efforts to keep the Exchange Registration
Statement continuously effective for a period of up to 90
days after the Consummation Date or such earlier date as
each Requesting Participating Broker-Dealer shall have
notified the Company in writing that such Requesting
Participating Broker-Dealer has resold all Exchange Notes
acquired in the Exchange Offer and (y) to comply with the
provisions of Section 5 of this Agreement, as they relate to
the Exchange Offer and the Exchange Registration Statement.
(f) The Initial Purchasers shall have no
liability to any Requesting Participating Broker-Dealer with
respect to any request made pursuant to Section 2(e).
(g) Interest on the Exchange Notes and the
Private Exchange Notes will accrue from the last interest
payment date on which interest was paid on the Notes
surrendered in exchange therefor or, if no interest has been
paid on the Notes, from the Issue Date.
(h) The Exchange Notes and the Private Exchange
Notes may be issued under (i) the Indenture or (ii) an
indenture identical in all material respects to the
Indenture, which in either event shall provide that the
Exchange Notes shall not be subject to the transfer
restrictions set forth in the Indenture. The Indenture or
such indenture shall provide that the Exchange Notes, the
Private Exchange Notes and the Notes shall vote and consent
together on all matters as one class and that neither the
Exchange Notes, the Private Exchange Notes nor the Notes
will have the right to vote or consent as a separate class
on any matter.
3. Shelf Registration
(a) If (i) the Company is not permitted to file
the Exchange Offer Registration Statement or to consummate
the Exchange Offer because the Exchange Offer is not
permitted by any applicable law or applicable interpretation
thereof by the staff of the SEC or (ii) any holder of a Note
notifies the Company on or prior to the Consummation Date
that (A) due to a change in law or applicable interpretation
thereof by the Staff of the SEC it is not entitled to
participate in the Exchange Offer, (B) due to a change in
law or applicable interpretation thereof by the Staff of the
SEC it may not resell Exchange Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus
and the Prospectus contained in the Exchange Registration
Statement is not appropriate or available for such resales
by such holder or (C) it is a broker-dealer and owns Notes
(including the Initial Purchasers with respect to Notes that
may be deemed to be a part of an unsold allotment from the
original offering of the Notes) acquired directly from the
Company or an Affiliate of the Company or (iii) any holder
of Private Exchange Notes so requests after the consummation
of the Private Exchange or (iv) the Company has not
consummated the Exchange Offer by the within 130 days of the
Issue Date and holders of a majority in principal amount of
Notes outstanding so request (each such event referred to in
clauses (i) through (iv), a "Shelf Filing Event"), the
Company shall cause to be filed with the SEC pursuant to
Rule 415 a shelf registration statement (the "Shelf
Registration Statement") prior to the later of (x) 60 days
after the Issue Date or (y) 30 days after the occurrence of
such Shelf Filing Event, relating to all Transfer Restricted
Notes (the "Shelf Registration") the holders of which have
provided the information required pursuant to Section 3(b)
hereof, and shall use its reasonable best efforts to have
the Shelf Registration Statement declared effective by the
SEC as promptly as possible, but no later than 90 days after
such Shelf Filing Event. In such circumstances, the Company
shall use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective under the
Securities Act, until (A) 36 months following the Issue Date
or (B) if sooner, the date immediately following the date
that all Transfer Restricted Notes covered by the Shelf
Registration Statement have been sold pursuant thereto or
otherwise cease to be Transfer Restricted Notes (the
"Effectiveness Period"); provided that the Effectiveness
Period shall be extended to the extent required to permit
dealers to comply with the applicable prospectus delivery
requirements of Rule 174; provided, further, that the
Company may suspend the effectiveness of a Shelf
Registration Statement, in the event that, and for a period
not to exceed 45 days in any calendar year (a "Shelf
Blackout Period") if, (a) (i) an event occurs and is
continuing as a result of which the Shelf Registration
Statement would, in the Company's good faith judgment,
contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements therein not misleading and (ii) if the Company
determines in good faith that the disclosure of such event
at such time would have a material adverse effect on the
business, operations or prospects of the Company or (b) the
disclosure otherwise relates to a pending material business
transaction which has not yet been publicly disclosed.
(b) No holder of Transfer Restricted Notes may
include any of its Transfer Restricted Notes in any Shelf
Registration Statement pursuant to Section 3(a) of this
Agreement unless and until such holder furnishes to the
Company in writing, within 7 days after receipt of a request
therefor, such information as the Company may reasonably
request for use in connection with any Shelf Registration
Statement or Prospectus or preliminary prospectus included
therein. No holder of Transfer Restricted Notes shall be
entitled to Additional Interest pursuant to Section 4 hereof
unless and until such holder shall have provided all such
reasonably requested information within the time periods set
forth herein. Each holder of Transfer Restricted Notes as
to which any Shelf Registration Statement is being effected
agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information
previously furnished to the Company by such holder not
materially misleading.
4. Additional Interest
(a) The parties hereto agree that the holders of
Transfer Restricted Notes will suffer damages if the Company
fails to fulfill its obligations pursuant to Section 2 or
Section 3, as applicable, and that it would not be feasible
to ascertain the extent of such damages. Accordingly, in
the event that (i) the applicable Registration Statement is
not filed with the SEC on or prior to the date specified
herein for such filing, (ii) the applicable Registration
Statement has not been declared effective by the SEC on or
prior to the date specified herein for such effectiveness
after such obligation arises, (iii) if the Exchange Offer is
required to be consummated hereunder, the Company has not
exchanged Exchange Notes for all Notes validly tendered and
not validly withdrawn in accordance with the terms of the
Exchange Offer by or on the Consummation Date or (iv) except
during a Shelf Blackout Period, the applicable Registration
Statement is filed and declared effective but shall
thereafter cease to be effective or usable in connection
with the Exchange Offer or resales of Transfer Restricted
Notes during a period in which it is required to be
effective hereunder (each such event referred to in clauses
(i) through (iv), a "Registration Default"), then the
interest rate on Transfer Restricted Notes will increase
("Additional Interest"), with respect to the first 90-day
period immediately following the occurrence of such
Registration Default, by 0.25% per annum and will increase
by an additional 0.25% per annum with respect to each
subsequent 90-day period until such Registration Default has
been cured, up to a maximum amount of 1.5% per annum with
respect to all Registration Defaults. Following the cure of
a Registration Default, the accrual of Additional Interest
with respect to such Registration Default will cease and
upon the cure of all Registration Defaults the interest rate
will revert to the original rate.
(b) The Company shall notify the Trustee and
paying agent under the Indenture (or the trustee and paying
agent under such other indenture under which any Transfer
Restricted Notes are issued) immediately upon the happening
of each and every Registration Default. The Company shall
pay the Additional Interest due on the Transfer Restricted
Notes by depositing with the paying agent (which shall not
be the Company for these purposes) for the Transfer
Restricted Notes, in trust, for the benefit of the holders
thereof, prior to 11:00 A.M. on the next interest payment
date specified by the Indenture (or such other indenture),
sums sufficient to pay the Additional Interest then due.
The Additional Interest due shall be payable on each
interest payment date specified by the Indenture (or such
other indenture) to the record holders entitled to receive
the interest payment to be made on such date. Each
obligation to pay Additional Interest shall be deemed to
accrue from and including the applicable Registration
Default.
(c) The parties hereto agree that the Additional
Interest provided for in this Section 4 constitutes a
reasonable estimate of the damages that will be suffered by
holders of Transfer Restricted Notes by reason of the
happening of any Registration Default.
5. Registration Procedures
In connection with the Company's registration
obligations hereunder, the Company shall effect such
registrations on the appropriate form available for the sale
of the Notes, the Exchange Notes or Private Exchange Notes,
as applicable, to (i) in the case of the Exchange Offer,
permit the exchange of Exchange Notes for Notes in the
Exchange Offer and, if applicable, resales of Exchange Notes
by Participating Broker-Dealers and (ii) in the case of a
Shelf Registration, permit the sale of the applicable
Transfer Restricted Notes in accordance with the method or
methods of disposition thereof specified by the holders of
such Transfer Restricted Notes, and pursuant thereto the
Company shall as expeditiously as reasonably possible:
(a) Furnish to the Initial Purchasers, and with
respect to any Shelf Registration Statement the holders
of the Transferred Restricted Notes included therein,
prior to the filing thereof with the SEC, a copy of a
draft of the Registration Statement and each amendment
thereto and each supplement, if any, to the prospectus
included therein and, in the event that the Initial
Purchasers (with respect to any portion of an unsold
allotment from the original offering) are participating
in the Exchange Offer or the Shelf Registration, shall
use reasonable efforts to reflect in each such
document, when so filed with the SEC, such comments as
the Initial Purchasers or their Special Counsel
reasonably may propose;
(b) Prepare and file with the SEC such
amendments, including post-effective amendments, to
each Registration Statement as may be necessary to keep
such Registration Statement continuously effective for
the applicable time period required hereunder; cause
the related Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424; and comply with the
provisions of the Securities Act and the Exchange Act
with respect to the disposition of all securities
covered by such Registration Statement during such
period in accordance with the intended methods of
disposition by the sellers thereof set forth in such
Registration Statement as so amended or in such
Prospectus as so supplemented;
(c) Notify the holders of Transfer Restricted
Notes to be sold or, in the case of an Exchange Offer,
tendered for, through their Special Counsel and the
managing underwriters, if any, promptly, and (if
requested by any such person), confirm such notice in
writing, (i)(A) when a Prospectus or any Prospectus
supplement or post-effective amendment is proposed to
be filed, and (B) with respect to a Registration
Statement or any post-effective amendment, when the
same has become effective, (ii) of any request by the
SEC or any other Federal or state governmental
authority for amendments or supplements to a
Registration Statement or related Prospectus or for
additional information, (iii) of the issuance by the
SEC, any state securities commission, any other
governmental agency or any court of any stop order or
injunction suspending or enjoining the use of a
Prospectus or the effectiveness of a Registration
Statement or the initiation 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 any of
the Notes, Exchange Notes or Private Exchange Notes for
sale in any jurisdiction, or the initiation or, to the
knowledge of the Company, threatening of any proceeding
for such purpose, and (v) of the happening of any event
or information becoming known to the Company that makes
any statement made in a Registration Statement or
related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of
any changes in such Registration Statement, Prospectus
or documents so that it will not contain any 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, and that in the case of a Prospectus, it
will not contain any 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, in light of the circumstances under which they
were made, not misleading;
(d) Use its best efforts to avoid the issuance of
or, if issued, obtain the withdrawal of any order
enjoining or suspending the use of a Prospectus or the
effectiveness of a Registration Statement or the
lifting of any suspension of the qualification (or
exemption from qualification) of any of the Notes,
Exchange Notes or Private Exchange Notes for sale in
any jurisdiction, at the earliest practicable moment;
(e) If a Shelf Registration Statement is filed
pursuant to Section 3 hereof and if requested by the
managing underwriters, if any, or the holders of a
majority in aggregate principal amount of the Transfer
Restricted Notes being sold pursuant to such Shelf
Registration Statement, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such
information as the managing underwriters, if any, and
such holders reasonably believe should be included
therein based on written advice of counsel to such
managing underwriter, if any, and/or Special Counsel,
and (ii) make all required filings of such Prospectus
supplement or such post-effective amendment under the
Securities Act as soon as practicable after the Company
has received notification of the matters to be
incorporated in such Prospectus supplement or post-
effective amendment; provided, however, that the
Company shall not be required to take any action
pursuant to this Section 5(e) that would, in the
opinion of counsel for the Company, violate applicable
law;
(f) Upon written request to the Company by a
holder of Notes, Exchange Notes or Private Exchange
Notes to be exchanged or sold pursuant to a
Registration Statement, their Special Counsel and each
managing underwriter, if any, without charge, furnish
at least one conformed copy of such Registration
Statement and each amendment thereto, including
financial statements and schedules, all documents
incorporated or deemed to be incorporated therein by
reference, and all exhibits to the extent requested
(including those previously furnished or incorporated
by reference) as soon as reasonably practicable after
the filing of such documents with the SEC;
(g) Deliver to each holder of Notes, Exchange
Notes or Private Exchange Notes to be exchanged or sold
pursuant to a Registration Statement, their Special
Counsel, and the underwriters, if any, without charge,
as many copies of the Prospectus (including each form
of prospectus) and each amendment or supplement thereto
as such persons reasonably request; and the Company
hereby consents to the use of such Prospectus and each
amendment or supplement thereto by each of the selling
holders of Transfer Restricted Notes and the
underwriters, if any, in connection with the offering
and sale of the Transfer Restricted Notes covered
thereby in accordance with the terms thereof and with
U.S. Federal securities laws and Blue Sky laws covered
by such Prospectus and any amendment or supplement
thereto;
(h) Prior to any public offering of Notes,
Exchange Notes or Private Exchange Notes, use its best
efforts to register or qualify or cooperate with the
holders of Notes, Exchange Notes or Private Exchange
Notes to be sold or tendered for, the underwriters, if
any, and their respective counsel in connection with
the registration or qualification (or exemption from
such registration or qualification) of such Notes,
Exchange Notes or Private Exchange Notes for offer and
sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any such
holder or underwriter reasonably requests in writing;
keep each such registration or qualification (or
exemption therefrom) effective during the period such
Registration Statement is required to be kept effective
hereunder and do any and all other acts or things
necessary or advisable to enable the disposition in
such jurisdictions of the Notes, Exchange Notes or
Private Exchange Notes covered by the applicable
Registration Statement; provided, however, that the
Company shall not be required to (i) qualify generally
to do business in any jurisdiction where it is not then
so qualified or (ii) take any action which would
subject it to general service of process or to taxation
in any jurisdiction where it is not so subject;
(i) In connection with any sale or transfer of
Transfer Restricted Notes that will result in such
securities no longer being Transfer Restricted Notes,
cooperate with the holders thereof and the managing
underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing
Transfer Restricted Notes to be sold, which
certificates shall not bear any restrictive legends and
shall be in a form eligible for deposit with The
Depository Trust Company and to enable such Transfer
Restricted Notes to be in such denominations and
registered in such names as the managing underwriters,
if any, or such holders may request at least two
Business Days prior to any sale of Transfer Restricted
Notes;
(j) Upon the occurrence of any event contemplated
by Section 5(c)(v), as promptly as practicable, prepare
a supplement or amendment, including, if appropriate, a
post-effective amendment, to each Registration
Statement or a supplement to the related Prospectus or
any document incorporated or deemed to be incorporated
therein by reference, and file any other required
document so that, as thereafter delivered, such
Prospectus will not 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, in light of the circumstances under
which they were made, not misleading;
(k) Prior to the effective date of the Exchange
Registration Statement, to provide a CUSIP number for
the Exchange Notes (and, as promptly as practicable,
the Private Exchange Notes, if applicable);
(l) In connection with a Shelf Registration
Statement filed pursuant to Section 3 hereof, use its
best efforts to enter into such agreements (including
an underwriting agreement in form, scope and substance
as is customary in underwritten offerings) and take all
such other reasonable actions in connection therewith
(including those reasonably requested by the managing
underwriters, if any, or the holders of a majority in
aggregate principal amount of the Transfer Restricted
Notes being sold) in order to expedite or facilitate
the disposition of such Transfer Restricted Notes, and,
whether or not an underwriting agreement is entered
into and whether or not the registration is an
underwritten registration, (i) make such
representations and warranties to the holders of such
Transfer Restricted Notes and the underwriters, if any,
with respect to the business of the Company and its
subsidiaries (including with respect to businesses or
assets acquired or to be acquired by any of them), and
the Shelf Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, in
form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings, and
confirm the same if and when customarily requested;
(ii) use its best efforts to obtain opinions of counsel
to the Company and updates thereof relating to the
applicable Registration Statement and the Notes,
Exchange Notes or Private Exchange Notes covered
thereby in customary form (which counsel and opinions
(in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and
Special Counsel to the holders of the Transfer
Restricted Notes being sold), addressed to each selling
holder of Transfer Restricted Notes and each of the
underwriters, if any, covering the matters customarily
covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested
by such Special Counsel and the managing underwriters,
if any; (iii) use its best efforts to obtain customary
"cold comfort" letters and updates thereof from the
independent certified public accountants of the Company
(and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or
of any business acquired by the Company or any such
subsidiary for which financial statements and financial
data is, or is required to be, included in the Shelf
Registration Statement), addressed (where reasonably
possible) to each selling holder of Transfer Restricted
Notes and each of the underwriters, if any, such
letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters
in connection with underwritten offerings; (iv) if an
underwriting agreement is entered into, the same shall
contain customary indemnification provisions and
procedures (or such other provisions and procedures
acceptable to holders of a majority in aggregate
principal amount of Transfer Restricted Notes covered
by such Shelf Registration Statement and the managing
underwriters, if any); and (v) deliver such documents
and certificates as may be reasonably requested by the
holders of a majority in aggregate principal amount of
the Transfer Restricted Notes being sold, their Special
Counsel and the managing underwriters, if any, to
evidence the continued validity of the representations
and warranties made pursuant to clause (i) above and to
evidence compliance with any customary conditions
contained in the underwriting agreement or other
agreement entered into by the Company;
(m) In the case of a Shelf Registration, make
available for inspection by a representative of the
holders of Transfer Restricted Notes being sold, any
underwriter participating in any such disposition of
Transfer Restricted Notes, and any attorney, consultant
or accountant acting for the holders of a majority in
aggregate principal amount of such Transfer Restricted
Notes or such underwriter, at the offices where
normally kept, during reasonable business hours, all
relevant financial and other records, pertinent
corporate documents and properties of the Company and
their subsidiaries (including with respect to
businesses and assets acquired or to be acquired to the
extent that such information is available to the
Company), and cause the officers, directors, agents and
employees of the Company and their subsidiaries
(including with respect to businesses and assets
acquired or to be acquired to the extent that such
information is available to the Company) to supply all
information in each case reasonably requested by any
such representative, underwriter, attorney, consultant
or accountant in connection with such Shelf
Registration; provided, however, that such persons
shall first agree in writing with the Company that any
information that is reasonably and in good faith
designated by the Company in writing as confidential at
the time of delivery of such information shall be kept
confidential by such persons, unless and to the extent
that (i) disclosure of such information is required by
court or administrative order or is necessary to
respond to inquiries of regulatory authorities, (ii)
disclosure of such information is required by law
(including any disclosure requirements pursuant to
Federal securities laws in connection with the filing
of the Shelf Registration Statement or the use of any
Prospectus), (iii) such information becomes generally
available to the public other than as a result of a
disclosure or failure to safeguard such information by
such person or (iv) such information becomes available
to such person from a source other than the Company and
its subsidiaries and such source is not bound by a
confidentiality agreement;
(n) Provide an indenture trustee for the Notes
and/or the Exchange Notes and Private Exchange Notes,
as the case may be, and cause an indenture to be
qualified under the TIA not later than the effective
date of the first Registration Statement relating to
the Notes and/or the Exchange Notes and Private
Exchange Notes, as the case may be; and if such
indenture shall be the Indenture, in connection
therewith, cooperate with the Trustee and the holders
of the Notes and/or the Exchange Notes and Private
Exchange Notes, to effect such changes to the
Indenture, if any, as may be required for the Indenture
to be so qualified in accordance with the terms of the
TIA; and execute, and use its reasonable efforts to
cause the Trustee to execute, all customary documents
as may be required to effect such changes, and all
other forms and documents required to be filed with the
SEC to enable the Indenture to be so qualified in a
timely manner;
(o) Comply with all applicable rules and
regulations of the SEC and make generally available to
their securityholders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and
Rule 158, no later than 45 days after the end of any
12-month period (or 90 days after the end of any 12-
month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which
Transfer Restricted Notes are sold to underwriters in a
firm commitment or reasonable efforts underwritten
offering and (ii) if not sold to underwriters in such
an offering, commencing on the first day of the first
fiscal quarter after the effective date of a
Registration Statement, which statement shall cover
said period, consistent with the requirements of Rule
158; and
(p) Cooperate with each seller of Transfer
Restricted Notes covered by any Registration Statement
and each underwriter, if any, participating in the
disposition of such Transfer Restricted Notes and their
respective counsel in connection with any filings
required to be made with the National Association of
Securities Dealers, Inc.
The Company may require a holder of Transfer
Restricted Notes to be included in a Registration Statement
to furnish to the Company such information regarding the
distribution of such Transfer Restricted Notes as is
required by law to be disclosed in such Registration
Statement and the Company may exclude from such Registration
Statement the Transfer Restricted Notes of any holder who
unreasonably fails to furnish such information within a
reasonable time after receiving such request.
If any such Registration Statement refers to any
holder by name or otherwise as the holder of any securities
of the Company, then such holder shall have the right to (i)
require the insertion therein of language, in form and
substance reasonably satisfactory to such holder, to the
effect that the holding by such holder of such securities is
not to be construed as a recommendation by such holder of
the investment quality of the Company's securities covered
thereby and that such holding does not imply that such
holder will assist in meeting any future financial
requirements of the Company, or (ii) in the event that such
reference to such holder by name or otherwise is not
required by the Securities Act, the deletion of the
reference to such holder in any amendment or supplement to
the Registration Statement filed or prepared subsequent to
the time that such reference ceases to be required.
In the case of a Shelf Registration pursuant to
Section 3 hereof, each holder of Transfer Restricted Notes
agrees by acquisition of such Transfer Restricted Notes
that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section
5(c)(ii), 5(c)(iii), 5(c)(iv) or 5(c)(v) hereof, such holder
will forthwith discontinue disposition of such Transfer
Restricted Notes covered by such Registration Statement or
Prospectus until such holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section
5(j) hereof, or until it is advised in writing by the
Company that the use of the applicable Prospectus may be
resumed, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or
deemed to be incorporated by reference in such Prospectus.
6. Registration Expenses
All fees and expenses incident to the performance
of or compliance with this Agreement by the Company shall be
borne by the Company whether or not any Registration
Statement is filed or becomes effective and whether or not
any Notes, Exchange Notes or Private Exchange Notes are
issued or sold pursuant to any Registration Statement. The
fees and expenses referred to in the foregoing sentence
shall include, without limitation, (i) all registration and
filing fees (including, without limitation, fees and
expenses (A) with respect to filings required to be made
with the National Association of Securities Dealers, Inc.
and (B) in compliance with securities or Blue Sky laws),
(ii) printing expenses (including, without limitation,
expenses of printing certificates for Notes, Exchange Notes
and Private Exchange Notes in a form eligible for deposit
with The Depository Trust Company and of printing
Prospectuses), (iii) reasonable fees and disbursements of
counsel for the Company and the Special Counsel, (iv) fees
and disbursements of all independent certified public
accountants referred to in Section 2(e) and Section
5(1)(iii) hereof (including, without limitation, the
expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (v) if
required, the reasonable fees and expenses of any "qualified
independent underwriter" and its counsel as may be required
by the rules and regulations of the National Association of
Securities Dealers, Inc., and (vi) fees and expenses of all
other persons retained by the Company. In addition, the
Company shall pay its internal expenses (including, without
limitation, all salaries and expenses of its respective
officers and employees performing legal or accounting
duties) and the expense of any annual audit.
Notwithstanding the foregoing or anything in this Agreement
to the contrary, each holder of Transfer Restricted Notes
shall pay all underwriting discounts and commissions of any
underwriters with respect to any Notes, Exchange Notes or
Private Exchange Notes sold by or on behalf of it.
7. Indemnification
(a) The Company agrees to indemnify and hold
harmless (i) each Initial Purchaser, each holder of Notes,
Exchange Notes and Private Exchange Notes and each
Participating Broker-Dealer (each such person, an
"Indemnified Holder"), (ii) each person, if any, who
controls (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) any of the foregoing (any of
the persons referred to in this clause (ii) being
hereinafter referred to as a "controlling person"), and
(iii) the respective officers, directors, partners,
employees, representatives and agents of each Initial
Purchaser, each holder of Notes, Exchange Notes and Private
Exchange Notes, each Participating Broker-Dealer and any
controlling person (any person referred to in clause (i),
(ii) or (iii) may hereinafter be referred to as an
"Indemnified Person"), from and against any and all losses,
claims, damages, liabilities and judgments arising out of or
relating to any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement,
Prospectus or preliminary prospectus or in any amendment or
supplement thereto, or arising out of or relating to any
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus or
preliminary prospectus or supplement thereto, in light of
the circumstances under which they were made) not
misleading, except insofar as such losses, claims, damages,
liabilities or judgments are caused by or arise out of any
untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Indemnified
Person furnished in writing to the Company by or on behalf
of such Indemnified Person expressly for use therein;
provided that the foregoing indemnity with respect to any
preliminary prospectus shall not inure to the benefit of any
Indemnified Person from whom the person asserting such
losses, claims, damages, liabilities and judgments purchased
securities if such untrue statement or omission or alleged
untrue statement or omission made in such preliminary
prospectus is eliminated or remedied in the Prospectus and a
copy of the Prospectus shall not have been furnished to such
person in a timely manner due to the wrongful action or
wrongful inaction of such Indemnified Person.
(b) In case any action shall be brought against
any Indemnified Person, based upon any Registration
Statement or any such Prospectus or preliminary prospectus
or any amendment or supplement thereto and with respect to
which indemnity may be sought against the Company hereunder,
such Indemnified Person shall promptly notify the Company in
writing and the Company shall assume the defense thereof,
including the employment of counsel reasonably satisfactory
to such Indemnified Person and payment of all fees and
expenses incurred by the Company in the assumption of such
defense. Any Indemnified Person shall have the right to
employ separate counsel in any such action and participate
in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person,
unless (i) the employment of such counsel shall have been
specifically authorized in writing by the Company, (ii) the
Company shall have failed to assume the defense and employ
counsel or pay all such fees and expenses of the assumption
of such defense or (iii) the named parties to any such
action (including any impleaded parties) include both such
Indemnified Person and the Company and such Indemnified
Person shall have been advised by counsel that there may be
one or more legal defenses available to it which are
different from or additional to those available to the
Company (in which case the Company shall not have the right
to assume the defense of such action on behalf of such
Indemnified Person, it being understood, however, that the
Company shall not, in connection with any one such action or
separate but substantially similar or related actions in the
same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for all such
Indemnified Persons, which firm shall be designated in
writing by such Indemnified Persons, and that all such
reasonable fees and expenses shall be reimbursed as they are
incurred upon presentation to the Company of invoices
setting forth and describing such fees and expenses in
reasonable detail). The Company shall not be liable for any
settlement of any such action effected without its written
consent but if settled with the written consent of the
Company, the Company agrees to indemnify and hold harmless
each Indemnified Person from and against any loss or
liability by reason of such settlement. The Company shall
not, without the prior written consent of each Indemnified
Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is 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.
(c) In connection with any Registration Statement
pursuant to which an Indemnified Holder offers or sells
Transfer Restricted Notes, such Indemnified Holder agrees,
severally and not jointly, to indemnify and hold harmless
(i) the Company, (ii) its directors and officers and (iii)
any person controlling the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the
Exchange Act (the persons referred to in clauses (i), (ii)
and (iii) hereinafter referred to as "Company Indemnified
Persons") from and against any and all losses, claims,
damages, liabilities and judgments arising out of or
relating to any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement,
Prospectus or preliminary prospectus or in any amendment or
supplement thereto, or arising out of or relating to any
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statement therein (in the case of any Prospectus or
preliminary prospectus or supplement thereto, in light of
the circumstances under which they were made) not
misleading, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions made in
a Registration Statement, Prospectus or preliminary
prospectus or in any amendment or supplement thereto in
reliance on and in conformity with written information
furnished to the Company by such Indemnified Holder
expressly for use in such Registration Statement, Prospectus
or preliminary prospectus or in any amendment or supplement
thereto. In any such case in which any action shall be
brought against the Company Indemnified Person based on such
Registration Statement, Prospectus or preliminary prospectus
or in any amendment or supplement thereto and in respect of
which indemnity may be sought against an Indemnified Holder,
such Indemnified Holder shall have the rights and duties
given to the Company (except that if the Company shall have
assumed the defense thereof, such Indemnified Holder shall
not be required to do so, but may employ separate counsel
therein and participate in the defense thereof but the fees
and expenses of such counsel shall be at the expense of such
Indemnified Holder), and the Company Indemnified Persons
shall have the rights and duties given to the Indemnified
Persons by Section 7(b) hereof.
(d) If the indemnification provided for in this
Section 7 is unavailable to an indemnified party in respect
of any losses, claims, damages, liabilities or judgments
referred to herein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments
(i) in such proportion as is appropriate to reflect the
relative benefits received by each indemnifying party on the
one hand and the indemnified party on the other hand from
the offering of the Notes, the Exchange Notes or the Private
Exchange Notes, as the case may be (it being expressly
understood and agreed that the relative benefits received by
the Company from the offering of the Notes, Exchange Notes
or Private Exchange Notes, as the case may be, shall be the
amount of the net proceeds received by the Company from the
sale of the Notes to the Initial Purchasers), 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 each indemnifying
party on the one hand and the indemnified party on the other
hand in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable
considerations. The relative fault of each indemnifying
party on the one hand and the indemnified party on the other
hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact
relates to information supplied by an indemnifying party or
such indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct
or prevent such statement or omission.
The Company and the Initial Purchasers agree that
it would not be just and equitable if contribution pursuant
to this Section 7(d) were determined by pro rata allocation
(even if all Indemnified Persons were treated as one entity
for such purpose) or by any other method of allocation which
does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result
of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Indemnified Person shall be
required to contribute any amount in excess of the amount by
which the net proceeds received by it in connection with the
sale of the Notes, Exchange Notes or Private Exchange Notes
contemplated by this Agreement (or, in the case of an
underwriter that is an Indemnified Person, the total
underwriting discounts received by such underwriter) exceeds
the amount of any damages which such Indemnified Person has
otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Indemnified
Person's obligations to contribute pursuant to this Section
7(d) are several in proportion to the respective amount of
Notes, Exchange Notes or Private Exchange Notes included in
any such Registration Statement by each Indemnified Person
and not joint.
8. Rule 144A
The Company shall use its best efforts to file the
reports required to be filed by it under the Securities Act
and the Exchange Act in a timely manner and, if at any time
it is not required to file such reports but in the past had
been required to or did file such reports, it will, upon the
request of any holder of Transfer Restricted Notes, make
available other information as required by, and so long as
necessary to permit sales of Transfer Restricted Notes
pursuant to Rule 144A.
9. Underwritten Registrations
If any of the Transfer Restricted Notes covered by
any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and
manager or managers that will administer the offering will
be selected by the holders of a majority in aggregate
principal amount of the Transfer Restricted Notes included
in such offering, subject to the consent of the Company
(which will not be unreasonably withheld or delayed).
No person may participate in any underwritten
registration hereunder unless such person (i) agrees to sell
such Transfer Restricted Notes on the basis reasonably
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 required under the terms of such underwriting
arrangements.
10. Miscellaneous
(a) Remedies. In the event of a breach by the
Company or by a holder of Notes, Exchange Notes or Private
Exchange Notes of any of its obligations under this
Agreement, each holder of Notes, Exchange Notes or Private
Exchange Notes and the Company, in addition to being
entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific
performance of its rights under this Agreement.
Notwithstanding the provisions of Section 4 hereof, the
Company and each holder of Notes, Exchange Notes and Private
Exchange Notes agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a
breach of any of the provisions of this Agreement and each
hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall
waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will
not enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the holders
of Notes, Exchange Notes and Private Exchange Notes and
Indemnified Persons in this Agreement or otherwise conflicts
with the provisions hereof. Without the written consent of
the holders of a majority in aggregate principal amount of
the outstanding Transfer Restricted Notes, the Company shall
not grant to any person any rights which conflict with or
are inconsistent with the provisions of this Agreement.
(c) No Piggyback on Registrations. The Company
shall not grant to any of its securityholders (other than
the holders of Transfer Restricted Notes in such capacity)
the right to include any of their securities in any
Registration Statement other than Transfer Restricted Notes.
(d) Amendments and Waivers. The provisions of
this Agreement, including the provisions of this sentence,
may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be
given, otherwise than with the prior written consent of the
holders of not less than a majority of the then outstanding
aggregate principal amount of Transfer Restricted Notes;
provided, however, that, for the purposes of this Agreement,
Transfer Restricted Notes that are owned, directly or
indirectly, by the Company or any of its Affiliates are not
deemed outstanding. Notwithstanding the foregoing, a waiver
or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of
holders of Transfer Restricted Notes whose securities are
being sold or tendered pursuant to a Registration Statement
and that does not directly or indirectly affect the rights
of other holders of Transfer Restricted Notes may be given
by holders of a majority in aggregate principal amount of
the Transfer Restricted Notes being sold or tendered by such
holders pursuant to such Registration Statement; provided,
however, that the provisions of this sentence may not be
amended, modified or supplemented except in accordance with
the provisions of the immediately preceding sentence.
Notwithstanding the foregoing, no amendment, modification,
supplement, waiver or consent with respect to Section 7
shall be made or given otherwise than with the prior written
consent of each Indemnified Person affected thereby.
(e) Notices. All notices and other
communications provided for herein shall be made in writing
by hand-delivery, next-day air courier, certified first-\
class mail, return receipt requested, telex or telecopier:
(i) if to the Company, as provided in the
Purchase Agreement,
(ii) if to the Initial Purchasers, as provided in
the Purchase Agreement, or
(iii) if to any other person who is then the
registered holder of Notes, Exchange Notes or Private
Exchange Notes, to the address of such holder as it
appears in the register therefor of the Company.
Except as otherwise provided in this Agreement,
all such communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one
Business Day after being timely delivered to a next-day air
courier; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when answered back, if
telexed; and when receipt is acknowledged by the recipient's
telecopier machine, if telecopied.
(f) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors
and permitted assigns of each of the parties and shall inure
to the benefit of each holder of Notes, Exchange Notes and
Private Exchange Notes and each Indemnified Person. The
Company may not assign any of their rights or obligations
hereunder without the prior written consent of each holder
of Transfer Restricted Notes and each Indemnified Person.
Notwithstanding the foregoing, no successor or assignee of
the Company shall have any of the rights granted under this
Agreement until such person shall acknowledge its rights and
obligations hereunder by a signed written statement of such
person's acceptance of such rights and obligations.
(g) 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.
(h) Governing Law, Submission to Jurisdiction.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF
NEW YORK. THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW
YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT, AND EACH IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.
(i) Severability. The remedies provided herein
are cumulative and not exclusive of any remedies provided by
law. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set
forth herein shall remain in full force and effect and shall
in no way be affected, impaired or invalidated, and the
parties hereto shall use their reasonable efforts to find
and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties
that they would have executed the remaining terms,
provisions, covenants and restrictions without including any
of such that may be hereafter declared invalid, illegal,
void or unenforceable.
(j) Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or
otherwise affect the meaning hereof. All references made in
this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly
stated otherwise.
(k) This Agreement is intended by the parties as
a final expression of their agreement and is intended to be
a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the
subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration
rights granted by the Company with respect to the Notes, the
Exchange Notes and the Private Exchange Notes. This
Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties have caused this
Registration Rights Agreement to be duly executed as of the
date first written above.
THE COMPANY:
BROWN GROUP, INC.
By:
Name:
Title:
THE INITIAL PURCHASERS:
SMITH BARNEY INC.
FIRST CHICAGO CAPITAL MARKETS, INC.
DILLON, READ & CO. INC.
BY: SMITH BARNEY INC.
By:
Name:
Title: