EXHIBIT 04.05
REGISTRATION RIGHTS AGREEMENT
May 21, 1999
To the several persons named
at the foot hereof
Dear Sirs:
This will confirm that in consideration of the purchase by the
persons and entities listed in Schedule I of the Securities Purchase Agreement,
dated as of May 19, 1999 (the "Securities Purchase Agreement") among J. Baker,
Inc., a Massachusetts corporation (the "Company"), JBI, Inc., a Massachusetts
corporation, JBI Apparel, Inc., a Massachusetts corporation and the other
parties listed in Schedule I thereto (such persons and entities being
hereinafter collectively called the "Purchasers"), on the date hereof, of stock
purchase warrants (the "Warrants") to purchase up to an aggregate 1,200,000
shares of Common Stock, and as an inducement to the Purchasers to consummate the
transactions contemplated by the Securities Purchase Agreement, the Company
hereby covenants and agrees with each of you, and with each subsequent holder of
Restricted Stock (as such term is defined herein), as follows:
1. Certain Definitions. In addition to terms defined
elsewhere herein, as used herein, the following terms shall have the following
respective meanings:
"Closing Date" shall mean the closing of the transactions
contemplated by the Securities Purchase Agreement.
"Commission" shall mean the Securities and Exchange
Commission, or any other federal agency at the time administering the
Securities Act.
"Common Stock" shall mean shares of the common stock, par
value $.50 per share, of the Company, as constituted as of the date of
this Agreement, subject to adjustment pursuant to the provisions of
Section 8 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934
or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Registration Expenses" shall mean the expenses so described
in Section 6 hereof.
"Securities Act" shall mean the Securities Act of 1933 or any
similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in
Section 6 hereof.
"Warrant Shares" shall mean shares of Common Stock issued upon
exercise of the Warrants.
2. Restrictive Legend. Each certificate representing the
Warrants and upon exercise of the Warrants in accordance with the terms thereof,
the Warrant Shares, and each certificate issued upon exchange or transfer of the
Warrants or the Warrant Shares, as the case may be, other than in a public sale
or as otherwise permitted by the last paragraph of paragraph 3 hereof shall be
stamped or otherwise imprinted with a legend substantially in the following
form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES LAWS. NEITHER THE SECURITIES EVIDENCED
HEREBY, NOR ANY INTEREST THEREIN, MAY BE OFFERED, SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS EITHER (i) THERE
IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT AND LAWS
RELATING THERETO OR (ii) THE COMPANY HAS RECEIVED AN OPINION
OF COUNSEL, REASONABLY SATISFACTORY IN FORM AND SUBSTANCE TO
THE COMPANY, STATING THAT SUCH REGISTRATION IS NOT REQUIRED."
3. Notice of Proposed Transfer. Prior to any proposed transfer
of any Warrants or Warrant Shares, as the case may be, (other than under the
circumstances described in Section 4 hereof), the holder thereof shall give
written notice to the Company of its intention to effect such transfer. Each
such notice shall describe the manner of the proposed transfer and, if requested
by the Company, shall be accompanied by an opinion of counsel reasonably
satisfactory to the Company to the effect that the proposed transfer of the
Warrants or Warrant Shares, as the case may be, may be effected without
registration under the Securities Act, whereupon the holder of such Warrants or
Warrant Shares, as the case may be, shall be entitled to transfer such Warrants
or Warrant Shares, as the case may be, in accordance with the terms of its
notice; provided, however, that no such opinion or other documentation shall be
required if such notice shall cover a distribution by any Purchaser that is a
partnership to its partners. Each certificate for Warrants or Warrant Shares, as
the case may be, transferred as above provided shall bear the legend set forth
in Section 2, unless (i) such transfer is in accordance with the provisions of
Rule 144 (or any other rule permitting public sale without registration under
the Securities Act) or (ii) the opinion of counsel referred to above is to the
further effect that the transferee and any subsequent transferee (other than an
affiliate of the Company) would be entitled to transfer such securities in a
public sale without registration under the Securities Act.
The foregoing restrictions on transferability of the Warrants
and Warrant Shares shall terminate as to any particular Warrants or Warrant
Shares when such shares shall have been effectively registered under the
Securities Act and sold or otherwise disposed of in accordance with the intended
method of disposition by the seller or sellers thereof set forth in the
registration statement concerning such shares. Whenever a holder of a Warrant or
Warrant Shares is able to demonstrate to the Company (and its counsel) that the
provisions of Rule 144(k) of the Securities Act (or any successor rule) are
available to such holder without limitation, such holder of a Warrant or Warrant
Shares shall be entitled to receive from the Company, without expense, a new
certificate not bearing the restrictive legend set forth in Section 2.
4. Shelf Registration.
(a) As soon as practicable after the Closing Date, but in no
event later than 90 days after the Closing Date, the Company shall
cause to be filed a shelf registration statement pursuant to Rule 415
of the Securities Act (the "Shelf Registration Statement"). The Company
shall use its reasonable best efforts to cause the Shelf Registration
Statement become effective as soon as practicable after the date of
filing the Shelf Registration Statement, but in no event later than 180
days after the Closing Date. The Company shall use its reasonable best
efforts to keep such Shelf Registration Statement continuously
effective, supplemented and amended as required by the provisions of
Section 7 hereof to the extent necessary to ensure that it is available
for resales of the Warrant Shares by the holders thereof entitled to
benefit from this Section 4(a), and to ensure that it conforms to the
requirements of this Agreement, the Securities Act and the policies,
rules and regulations of the Commission as announced from time to time,
for a continuous period until all of the Warrant Shares held holders
entitled to benefit from this Section 4(a), following the date on which
such Shelf Registration Statement becomes effective under the
Securities Act.
(b) No Holder of Warrant Shares may include any of its Warrant
Shares in any Shelf Registration Statement pursuant to this Agreement
unless and until such holder furnishes to the Company in writing,
within 15 days after receipt of a request therefor, such information as
the Company may reasonably request for use in connection with any Shelf
Registration Statement. Each such Holder agrees to notify the Company
as promptly as practicable of any inaccuracy or change in information
previously furnished by such holder to the Company or of the occurrence
of any event in either case as a result of which any prospectus
relating to such registration contains or would contain an untrue
statement of a material fact regarding such holder or such holder's
intended method of distribution of such Warrant Share or omits to state
any material fact regarding such holder or such holder's intended
method of distribution of such Warrant Share required to be stated
therein or necessary to make the statements therein not misleading in
light of the circumstances then existing, and promptly to furnish to
the Company any additional information required so that such prospectus
shall not, with respect to such holder or such holder's intended method
of distribution of such Warrant Shares, 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 in
light of the circumstances then existing.
(c) Notwithstanding anything to the contrary contained herein,
the Board shall be entitled to postpone the filing period (or suspend
the effectiveness)of any registration of the Warrant Shares pursuant to
this Section 4 for a reasonable period of time not in excess of 90
calendar days on each occasion, if the Board determines, in its
reasonable business judgement, that such registration and offering
could materially interfere with bona fide financing, acquisition or
disposition plans of the Company and would require disclosure of
information, the premature disclosure of which could, in the Board's
reasonable business judgment, materially and adversely affect the
Company. If the Board postpones the filing of a registration statement
pursuant to this Section 4(c), it shall promptly notify, in writing,
the holders of Warrant Shares when the events or circumstances
permitting such postponement or suspension have ended.
5. Registration Procedures and Expenses. If and whenever the
Company is required by the provisions of Section 4 hereof to use its reasonable
best efforts to effect the registration of any of the Warrant Shares under the
Securities Act, the Company will, as promptly as possible:
(a) prepare (and afford one counsel for the selling holders
(as designated by a majority in interest of the selling holders)
reasonable opportunity to review and comment thereon) and file with the
Commission a registration statement (which shall be on an appropriate
form under the Securities Act, which form shall be available for sale
of the Warrant Shares in accordance with the intended method or methods
of distribution thereof) with respect to such securities and use its
best efforts to cause such registration statement to become and remain
effective for the period of the distribution contemplated thereby
(determined as hereinafter provided);
(b) prepare (and afford the selected counsel for the selling
holders reasonable opportunity to review and comment thereon) and file
with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for
the period specified in paragraph (a) above and as comply with the
provisions of the Securities Act with respect to the disposition of all
Warrant Shares covered by such registration statement in accordance
with the sellers' intended method of disposition set forth in such
registration statement for such period;
(c) furnish to each seller and to each underwriter such number
of copies of the registration statement and the prospectus included
therein (including each preliminary prospectus) as such persons may
reasonably request in order to facilitate the public sale or other
disposition of the Warrant Shares covered by such registration
statement;
(d) register or qualify the Warrant Shares covered by such
registration statement under the securities or blue sky laws of such
jurisdictions as the sellers of the Warrant Shares or, in the case of
an underwritten public offering, the managing underwriter, shall
reasonably request (provided that the Company will not be required to
(i) qualify generally to do business in any jurisdiction where it would
not otherwise be required to qualify but for this paragraph (d), (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any jurisdiction);
(e) promptly notify each seller under such registration
statement and each underwriter, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus contained in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;
(f) if the offering is underwritten, to furnish, at the
request of any seller, on the date that the Warrant Shares is delivered
to the underwriters for sale pursuant to such registration: (i) an
opinion dated such date of counsel representing the Company for the
purposes of such registration, addressed to the underwriters and to
such seller, stating that such registration statement has become
effective under the Securities Act and that (A) to the best knowledge
of such counsel, no stop order suspending the effectiveness thereof has
been issued and no proceedings for that purpose have been instituted or
are pending or contemplated under the Securities Act, (B) the
registration statement, the related prospectus, and each amendment or
supplement thereof, comply as to form in all material respects with the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder (except that such counsel need
express no opinion as to financial statements, the notes thereto, and
the financial schedules and other financial and statistical data
contained therein) and (C) to such other effects as may reasonably be
requested by counsel for the underwriters or by such seller or its
counsel, and (ii) a letter dated such date from the independent public
accountants retained by the Company, addressed to the underwriters,
stating that they are independent public accountants within the meaning
of the Securities Act and that, in the opinion of such accountants, the
financial statements of the Company included in the registration
statement or the prospectus, or any amendment or supplement thereof,
comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information
as to the period ending no more than five business days prior to the
date of such letter) with respect to the registration in respect of
which such letter is being given as such underwriters or seller may
reasonably request; and
(g) make available for inspection by each seller, any
underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other agent
retained by such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company,
and cause the Company's officers, directors and employees to supply all
information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration
statement and permit such seller, attorney, accountant or agent to
participate in the preparation of such registration statement.
For purposes of paragraphs (a) and (b) above, the period of distribution of
Warrant Shares in a firm commitment underwritten public offering shall be deemed
to extend until each underwriter has completed the distribution of all
securities purchased by it, and the period of distribution of Warrant Shares in
any other registration shall be deemed to extend until the earlier of the sale
of all Warrant Shares covered thereby or six months after the effective date
thereof.
In connection with each registration hereunder, the selling
holders of the Warrant Shares, if applicable, will furnish to the Company in
writing such information with respect to themselves and the proposed
distribution by them as shall be reasonably necessary in order to assure
compliance with federal and applicable state securities laws.
In connection with each registration pursuant to Section 4
hereof covering an underwritten public offering, the Company and any selling
holder of Warrant Shares agree to enter into a written agreement with the
managing underwriter selected in the manner herein provided in such form and
containing such provisions as are customary in the securities business for such
an arrangement between major underwriters and companies of the Company's size
and investment stature, provided, however, that such agreement shall not contain
any such provision applicable to the Company or such selling holders which is
inconsistent with the provisions hereof and provided, further, however, that the
time and place of the closing under said agreement shall be as mutually agreed
upon among the Company, such managing underwriter and the selling holders of
Warrants and Warrant Shares, if applicable.
Notwithstanding anything to the contrary set forth herein, the
Company is not required to participate in any fashion in any underwritten public
offering. If any holder of Warrant Shares seeks to dispose of such holder's
Warrant Shares pursuant to an underwritten public offering, it shall so notify
the Company and the Company may refuse, in its sole discretion, to authorize
such underwritten public offering.
6. Expenses. All expenses incurred by the Company in complying
with Section 4 hereof, including, without limitation, all registration and
filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees of the National Association
of Securities Dealers, Inc., transfer taxes, fees of transfer agents and
registrars and fees and expenses of one counsel for the sellers of Warrant
Shares but excluding any Selling Expenses, are herein called "Registration
Expenses". All underwriting discounts and selling commissions applicable to the
sale of Warrant Shares are herein called "Selling Expenses".
The Company will pay all Registration Expenses in connection
with each registration statement filed pursuant to Section 4 hereof. All Selling
Expenses in connection with any registration statement filed pursuant to Section
4 hereof shall be borne by the participating sellers in proportion to the number
of shares sold by each, or by such persons other than the Company (except to the
extent the Company shall be a seller) as they may agree.
7. Indemnification. In the event of a registration of any of
the Warrant Shares under the Securities Act pursuant to Section 4 hereof, the
Company will indemnify and hold harmless each seller of such Warrant Shares
thereunder and each underwriter of Warrant Shares thereunder and each other
person, if any, who controls such seller or underwriter within the meaning of
the Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such seller or underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such Warrant Shares was
registered under the Securities Act pursuant to Section 4, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each such seller, each
such underwriter and each such controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case if and to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished by such seller, such underwriter
or such controlling person in writing specifically for use in such registration
statement or prospectus.
In the event of a registration of any of the Warrant Shares
under the Securities Act pursuant to Section 4 hereof, each seller of such
Warrant Shares thereunder, severally and not jointly, will indemnify and hold
harmless the Company and each person, if any, who controls the Company within
the meaning of the Securities Act, each officer of the Company who signs the
registration statement, each director of the Company, each underwriter and each
person who controls any underwriter within the meaning of the Securities Act,
against all losses, claims, damages or liabilities, joint or several, to which
the Company or such officer or director or underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the registration statement under which such Warrant Shares was
registered under the Securities Act pursuant to Section 4, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse the Company and each
such officer, director, underwriter and controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that such seller will be liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information pertaining to
such seller, as such, furnished in writing to the Company by such seller
specifically for use in such registration statement or prospectus; provided,
further, however, that the liability of each seller hereunder shall be limited
to the proportion of any such loss, claim, damage, liability or expense which is
equal to the proportion that the public offering price of shares sold by such
seller under such registration statement bears to the total public offering
price of all securities sold thereunder, but not to exceed the proceeds (net of
underwriting discounts and commissions) received by such seller from the sale of
Warrant Shares covered by such registration statement.
Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to any indemnified party other than under this Section 6. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel satisfactory to such indemnified
party, and, after notice from the indemnifying party to such indemnified party
of its election so to assume and undertake the defense thereof, the indemnifying
party shall not be liable to such indemnified party under this Section 6 for any
legal expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation and of
liaison with counsel so selected; provided, however, that, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that the interests of
the indemnified party reasonably may be deemed to conflict with the interests of
the indemnifying party, the indemnified party shall have the right to select a
separate counsel and to assume such legal defenses and otherwise to participate
in the defense of such action, with the expenses and fees of such separate
counsel and other expenses related to such participation to be reimbursed by the
indemnifying party as incurred; provided, further, however, that in no event
shall the indemnified parties collectively be entitled to have the Company
indemnify them for the fees and expenses of more than one counsel.
Notwithstanding the foregoing, any indemnified party shall
have the right to retain its own counsel in any such action, but the fees and
disbursements of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party shall have failed to retain counsel for the
indemnified person as aforesaid or (ii) the indemnifying party and such
indemnified party shall have mutually agreed to the retention of such counsel.
It is understood that the indemnifying party shall not, in connection with any
action or related actions in the same jurisdiction, be liable for the fees and
disbursements of more than one separate firm qualified in such jurisdiction to
act as counsel for the indemnified party. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in the first two
paragraphs of this Section 6 is unavailable or insufficient to hold harmless an
indemnified party under such paragraphs in respect of any losses, claims,
damages or liabilities or actions in respect thereof referred to therein, then
each indemnifying party shall in lieu of indemnifying such indemnified party
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or actions in such proportion as
appropriate to reflect the relative fault of the Company, on the one hand, and
the underwriters and the sellers of such Warrant Shares on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or actions as well as any other relevant equitable
considerations, including the failure to give any notice under the third
paragraph of this Section 6. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact relates to information supplied by the Company, on the one hand,
or the underwriters and the sellers of such Warrant Shares on the other, and to
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and each selling
holder of Warrant Shares agree that it would not be just and equitable if
contributions pursuant to this paragraph were determined by pro rata allocation
(even if all of the sellers of such Warrant Shares were treated as one entity
for such purpose) or by any other method of allocation which did not take
account of the equitable considerations referred to above in this paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or action in respect thereof, referred to above in
this paragraph, shall be deemed to include 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
paragraph, the sellers of such Warrant Shares shall not be required to
contribute any amount in excess of the amount, if any, by which the total price
at which the Common Stock sold by each of them was offered to the public exceeds
the amount of any damages which they would have otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission. No person
guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of
the Securities Act), shall be entitled to contribution from any person who is
not guilty of such fraudulent misrepresentation.
The indemnification of underwriters provided for in this
Section 6 shall be on such other terms and conditions as are at the time
customary and reasonably required by such underwriters. In that event the
indemnification of the sellers of Warrant Shares in such underwriting shall at
the sellers' request be modified to conform to such terms and conditions.
8. Changes in Common Stock. If, and as often as, there are any
changes in the Common Stock by way of stock split, stock dividend, combination
or reclassification, or through merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof, as may be required, so that the rights and privileges
granted hereby shall continue with respect to the Common Stock as so changed.
9. Representations and Warranties of the Company. The Company
represents and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement
by the Company have been duly authorized by all requisite corporate
action and will not violate any provision of law, any order of any
court or other agency of government, the Certificate of Incorporation
or Bylaws of the Company, or any provision of any indenture, agreement
or other instrument to which it or any of its properties or assets is
bound, or conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture,
agreement or other instrument, or result in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever upon any of
the properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms, subject to
considerations of public policy in the case of the indemnification
provisions hereof.
10. Rule 144 Reporting. The Company agrees with you as
follows:
(a) The Company shall use its reasonable best efforts to make
and keep public information available, as those terms are understood
and defined in Rule 144 under the Securities Act, at all times from and
after the date it is first required to do so.
(b) The Company shall use its reasonable best efforts to file
with the Commission in a timely manner all reports and other documents
as the Commission may prescribe under Section 13(a) or 15(d) of the
Exchange Act at any time after the Company has become subject to such
reporting requirements of the Exchange Act.
(c) The Company shall furnish to such holder of Warrants or
Warrant Shares forthwith upon request (i) a written statement by the
Company as to whether it is in compliance with the reporting
requirements of Rule 144 (at any time from and after the date it first
becomes subject to such reporting requirements, and of the Securities
Act and the Exchange Act (at any time after it has become subject to
such reporting requirements), (ii) a copy of the most recent annual or
quarterly report of the Company filed with the Commission, and (iii)
such other reports and documents so filed as a holder may reasonably
request to avail itself of any rule or regulation of the Commission
allowing a holder of Warrants or Warrant Shares to sell any such
securities without registration.
11. Miscellaneous.
(a) All covenants and agreements contained in this Agreement
by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties
hereto whether so expressed or not. Without limiting the generality of
the foregoing, the registration rights conferred herein on the holders
of Warrants and Warrant Shares shall inure to the benefit of any and
all subsequent holders from time to time of the Warrants and Warrant
Shares for so long as the certificates representing the Warrants or
Warrant Shares, as the case may be, shall be required to bear the
legend specified in Section 2 hereof.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by first class
registered mail, postage prepaid, addressed as follows:
if to the Company, to it at:
J. Baker, Inc.
555 Turnpike Street
Canton, Massachusetts 02021
Telecopy Number: (781) 828-9300
Attention: Chief Financial Officer
with a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 02109
Telecopy Number: (617) 523-1231
Attention: Raymond C. Zemlin, P.C.
if to any holder of Warrants or Warrant Shares, at their
addresses as set forth in Schedule I hereto with a copy to:
Reboul, MacMurray, Hewitt, Maynard & Kristol
45 Rockefeller Plaza
New York, New York 10111
Telecopy Number: (212) 841-5725
Attention: Othon A. Prounis
if to any subsequent holder of Warrants or Warrant Shares to
it at such address as may have been furnished to the Company in writing
by such holder;
or, in any case, at such other address or addresses as shall have been
furnished in writing to the Company (in the case of a holder of
Warrants or Warrant Shares) or to the holders of Warrants or Warrant
Shares (in the case of the Company).
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(d) This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof and may not be
modified or amended except in writing with the consent of at least a
majority of the holders of Warrant Shares (treating the holders of the
Warrants as the holders of Warrant Shares for such purpose).
(e) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
Please indicate your acceptance of the foregoing by signing
and returning the enclosed counterpart of this letter, whereupon this letter
(herein sometimes called "this Agreement") shall be a binding agreement between
the Company and each of you.
Very truly yours,
J. BAKER, INC.
By:/s/Philip Rosenberg
Name: Philip Rosenberg
Title: Executive Vice President
AGREED TO AND ACCEPTED
as of the date first
above written.
DLJ FUND INVESTMENT PARTNERS II, L.P.
By: DLJ LBO Plans Management Corporation
By:/s/Ivy Dodes
Name: Ivy Dodes
Title: Vice President
DLJ PRIVATE EQUITY EMPLOYEES FUND, L.P.
By: DLJ LBO Plans Management Corporation
By:/s/Ivy Dodes
Name: Ivy Dodes
Title: Vice President
DLJ PRIVATE EQUITY PARTNERS, L.P.
By: WSW Capital, Inc.
By:/s/Ivy Dodes
Name: Ivy Dodes
Title: Vice President
/s/Nicole Arnaboldi
Nicole Arnaboldi
/s/Christine Chen
Christine Chen
/s/Glen Dershowitz
Glen Dershowitz
/s/Steven G. Puccinelli
Steven G. Puccinelli
/s/Peter Schaeffer
Peter Schaeffer
/s/Shelley Wong
Shelley Wong
CORNERSTONE CAPITAL, INC.
By:/s/David Pulver
Name: David Pulver
Title: President
GB INVESTMENT, LLC
By:
By:/s/Alan R. Goldstein
Name: Alan R. Goldstein
Title: Manger and Chief Financial Officer
MJ WHITMAN PILOT FISH OPPORTUNITY FUND, L.P.
By: MJ Whitman Pilot Fish Opportunity Fund, Inc.,
general partner
By:/s/Ian M. Kirschner
Name: Ian M. Kirschner
Title: Secretary
SCHEDULE I
Purchasers
Name and Address
of Purchaser
DLJ Fund Investment Partners II, L.P.,
DLJ Private Equity Employees Fund, L.P. and
DLJ Private Equity Partners Fund, L.P.,
Nicole Arnaboldi,
Christine Chen,
Glen Dershowitz,
Steven G. Puccinelli,
Peter Schaeffer, and
Shelley Wong at
Donaldson, Lufkin & Jenrette
277 Park Avenue
New York, New York 10172
Telecopy Number: (212)
Attention: Julio Garcia
Cornerstone Capital, Inc.
16 Cobblefield Drive
Mendham, NJ 07945
Telecopy Number: (908) 221-1711
Attention: David Pulver
GB Investment, LLC
40 Broad Street, 11th Floor
Boston, MA 02109
Telecopy Number: (617) 210-7141
Attention: Matthew Kahn