NOTE RESALE REGISTRATION RIGHTS AGREEMENT
Dated as of June 26, 1996
by and among
NINE WEST GROUP INC.
and
THE PURCHASERS NAMED HEREIN
This Note Resale Registration Rights Agreement (this "Agreement") is
made and entered into as of June 26, 1996 by and among NINE WEST GROUP INC., a
Delaware corporation (the "Company"), and BEAR, STEARNS & CO. INC. and MORGAN
STANLEY & CO. INCORPORATED (collectively, the "Purchasers"), which the
Purchasers have agreed to purchase from the Company up to $175,000,000
($201,250,000 if the Purchasers exercise the over-allotment option in full),
principal amount of 5-1/2% Convertible Subordinated Notes due 2003 (the "Notes")
pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated June
20, 1996 (the "Purchase Agreement"), by and among the Company and the
Purchasers. In order to induce the Purchasers to purchase the Notes, the
Company has agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is provided for in the
Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Agreement: As defined in the preamble hereto.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: A day other than a Saturday, a Sunday, a day on which the
banking institutions in the State and City of New York are authorized or
obligated by law or executive order to close or a day that is declared a
national or New York state holiday.
Closing Date: The date of this Agreement.
Commission: Securities and Exchange Commission.
Common Stock: Common Stock of the Company, par value $.01 per share,
issuable upon conversion of the Notes.
Company: As defined in the preamble hereto.
Consummate: An Exchange Offer shall be deemed "Consummated" for purposes
of this Agreement upon (i) the filing and effectiveness under the Securities Act
of the Exchange Offer Registration Statement relating to the New Notes to be
issued in the Exchange Offer, (ii) the maintenance of such Exchange Offer
Registration Statement continuously effective and the keeping of the Exchange
Offer open for a period of not less than the minimum period required under
applicable federal and state securities laws to consummate the Exchange Offer,
and (iii) the delivery by the Company to the registrar under the Indenture of
New Notes in the same aggregate principal amount as the aggregate principal
amount of Notes that were tendered by Holders thereof pursuant to the Exchange
Offer.
Effectiveness Target Date: As defined in Section 3(a) hereof.
Exchange Act: Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.
Exchange Offer: The registration by the Company under the Securities Act
of the New Notes pursuant to the Exchange Offer Registration Statement through
which the Company offers the Holders of all outstanding Transfer Restricted
Securities the opportunity to exchange all such outstanding Transfer Restricted
Securities held by such Holders for New Notes in an aggregate principal amount
equal to the aggregate principal amount of the Transfer Restricted Securities
tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: As defined in Section 3(b).
Holder: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 6(a) hereof.
Indenture: The Indenture, dated as of June 26, 1996, by and between the
Company and Chemical Bank, as trustee (the "Trustee"), pursuant to which the
Notes are to be issued, as such Indenture is amended, modified or supplemented
from time to time in accordance with the terms thereof.
NASD: National Association of Securities Dealers, Inc.
New Notes: As defined in Section 3(b) hereof.
Notes: As defined in the preamble hereto.
Person: A corporation, an association, a partnership, an individual, a
joint venture, a joint stock company, a trust, an unincorporated organization or
a government or an agency or political subdivision thereof.
Prospectus: The prospectus included in any Registration Statement, as
amended or supplemented including without limitation by any post-effective
amendments thereto, and all material incorporated by reference into such
prospectus.
Purchase Agreement: As defined in the preamble hereto.
Purchasers: As defined in the preamble hereto.
Registration Statement: The Shelf Registration Statement or the Exchange
Offer Registration Statement of the Company that is filed pursuant to the
provisions of Section 3 hereof, including the Prospectus included therein, all
amendments and supplements thereto (including any post-effective amendments) and
all exhibits and material incorporated by reference therein.
Securities Act: Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 3(a) hereof.
Shelf Registration Statement: As defined in Section 3(a) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb), as
amended and in effect on the date of the Indenture.
Transfer Restricted Securities: Each Note, (other than any Note
represented by the Regulation S Global Note or any definitive Note not bearing
the legend required by Section 2.3 of the Indenture) and any Common Stock issued
upon conversion of any such Note, until the earliest to occur of (i) the date on
which such Note or Common Stock, as the case may be, has been effectively
registered under the Securities Act and disposed of in accordance with an
effective Shelf Registration Statement, (ii) the date on which such Note is
exchanged for a New Note in the Exchange Offer and entitled to be resold to the
public by the Holder thereof without complying with the prospectus delivery
requirements of the Securities Act and (iii) the date on which such Note or
Common Stock, as the case may be, is distributed to the public pursuant to Rule
144 under the Securities Act or by a Broker-Dealer pursuant to the "Plan of
Distribution" contemplated by the Exchange Offer Registration Statement
(including delivery of the Prospectus contained therein).
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be a
holder of Transfer Restricted Securities (each, a "Holder") whenever such Person
owns Transfer Restricted Securities of record.
3. REGISTRATION
(a) Shelf Registration. The Company hereby agrees to:
(i) use its best efforts to file or cause to be filed a continuous
registration statement pursuant to Rule 415 under the Securities Act (together
with the Prospectus included therein, all amendments and supplements thereto
(including post-effective amendments) and all exhibits and materials
incorporated by reference therein, the "Shelf Registration Statement") on or
prior to the 90th day after the Closing Date (the "Shelf Filing Deadline"),
which Shelf Registration Statement shall provide for resales of all Transfer
Restricted Securities, provided that the Holders thereof shall have provided the
information required pursuant to Section 3(b) hereof; and
(ii) use all reasonable efforts to cause the Shelf Registration
Statement to be declared effective by the Commission as promptly as practicable
after the Closing Date (the "Effectiveness Target Date").
Subject to any notice by the Company in accordance with Section 4(b) hereof of
the existence of any fact or event of the kind described in Section 4(b)(iii)(D)
hereof, the Company shall use all reasonable efforts to keep the Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 4(a) and (b) hereof to the extent
necessary to ensure that it is available for resales of Transfer Restricted
Securities by the Holders of Transfer Restricted Securities entitled to the
benefit of this Section 3(a) and to ensure that the Shelf Registration Statement
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
thereunder for a period of at least three years following the Closing Date,
provided that the Company shall not be obligated to keep the Shelf Registration
Statement effective, if it has received an opinion from its outside counsel,
Simpson, Thacher & Bartlett, or other counsel reasonably acceptable to the
Purchasers ("Company Counsel"), to the effect that the Restricted Transfer
Securities can be freely tradable without the continued effectiveness of the
Shelf Registration Statement.
(b) Certified Securities; Provision by Holders of Certain
Information in Connection with the Shelf Registration Statement. No Holder of
Transfer Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this Agreement until
such Holder furnishes to the Company in writing, within 20 business days after
receipt of a request therefor, such information as the Company may reasonably
request for use in connection with the Shelf Registration Statement or any
Prospectus or preliminary Prospectus included therein. In connection with all
such requests for information from Holders of Transfer Restricted Securities,
the Company shall notify such Holders of the requirements set forth in the
preceding sentence. Each Holder 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.
(c) Registered Exchange Offer. If, based upon a written opinion of
Company Counsel addressed and delivered to the Holders, the Company determines
that it is permissible under applicable law and Commission policy to Consummate
an Exchange Offer, the Company may at its election Consummate an Exchange Offer
in lieu of filing and maintaining the Shelf Registration Statement described
herein. If the Company elects to Consummate an Exchange Offer in accordance
with the provisions hereof, the Company shall (i) cause to be filed with the
Commission no later than the Shelf Filing Deadline (or later if the Company has
filed and maintained a Shelf Registration Statement pursuant to this Agreement),
a Registration Statement (the "Exchange Offer Registration Statement") under the
Securities Act relating to (A) a new issue of notes identical in all material
respects to the Notes except as to transfer restrictions (the "New Notes") and
(B) the shares of Common Stock issuable upon conversion of such New Notes, (ii)
use all reasonable efforts to cause such Registration Statement to become
effective no later than the Effectiveness Target Date, (iii) in connection with
the foregoing, file (A) all pre-effective amendments to such Registration
Statement as may be necessary in order to cause such Registration Statement to
become effective, (B) if applicable, a post-effective amendment to such
Registration Statement pursuant to Rule 430A under the Securities Act and (C)
cause all necessary filings in connection with the registration and
qualification of the New Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer and
(iv) upon the effectiveness of the Registration Statement, commence the Exchange
Offer. The Company shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the New Notes (and
the shares of Common Stock issuable upon conversion of such New Notes) shall be
included in the Exchange Offer Registration Statement. The Company shall use
all reasonable efforts to cause the Exchange Offer to be Consummated on the
earliest practicable date after the Exchange Offer Registration Statement has
become effective, but in no event later than 30 Business Days after such
effectiveness. The Exchange Offer shall be on the appropriate form permitting
registration of the New Notes to be offered in exchange for the Notes and to
permit resales of New Notes and shares of Common Stock received by
Broker-Dealers in the Exchange Offer by delivering the Prospectus contained in
the Exchange Offer Registration Statement. The "Plan of Distribution" section
in the Prospectus contained in the Exchange Offer Registration Statement shall
not name any such Broker-Dealer or disclose the amount of Notes held by any such
Broker-Dealer except to the extent required by Commission policy. The Company
shall use its best efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented and amended to the extent necessary to
ensure that it is available for resales of New Notes acquired by Broker-Dealers
for their own accounts as a result of market-making activities or other trading
activities, and to ensure that it conforms with 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 period of one year from the
date on which the Exchange Offer Registration Statement is declared effective.
The Company shall provide sufficient copies of the latest version of such
Prospectus to Broker-Dealers promptly upon request at any time during such
one-year period in order to facilitate such resales. Notwithstanding anything
herein to the contrary, despite the Consummation of an Exchange Offer, the
Company shall be required to file the Shelf Registration Statement in accordance
with Section 3(a) hereof if any Holder of Transfer Restricted Securities shall
notify the Company within 20 Business Days of the Consummation of the Exchange
Offer (x) that such Holder is prohibited by applicable law or Commission policy
from participating in the Exchange Offer, (y) that such Holder may not resell
the New Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus and that the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such
Holder or (z) that such Holder is a Broker-Dealer and holds Notes acquired
directly from the Company or one of its affiliates.
4. REGISTRATION PROCEDURES
(a) In connection with any Shelf Registration Statement, the Company
shall comply with all the provisions of Section 4(b) below and shall use all
reasonable efforts to effect such registration to permit the resale of the
Transfer Restricted Securities being sold in accordance with the intended method
or methods of distribution thereof. The parties hereto agree that the Transfer
Restricted Securities shall not be sold in any Underwritten Offering and the
Company shall in no event be required to cooperate with or pay for any
Underwritten Offering.
(b) In connection with any Registration Statement and any Prospectus
required by this Agreement, the Company shall:
(i) subject to any notice by the Company in accordance with
this Section 4(b) of the existence of any fact or event of the kind described in
Section 4(b)(iii)(D) hereof, use all reasonable efforts to cause to become
effective and to keep such Registration Statement continuously effective and
provide all requisite financial statements for the period specified in Section 3
of this Agreement; upon the occurrence of any event that would cause such
Registration Statement or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not to be effective and usable for
resales of Transfer Restricted Securities during the period required by this
Agreement, the Company shall file promptly an appropriate amendment to such
Registration Statement correcting any such misstatement or omission, and, in the
case of either clause (A) or reasonable efforts to cause such amendment to be
declared effective and such Registration Statement and the related Prospectus to
become usable for their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to such Registration Statement as may be necessary to
keep such Registration Statement effective for the applicable period set forth
in Section 3 hereof, or such shorter period as shall terminate when all Transfer
Restricted Securities covered by such Registration Statement have been sold;
cause the Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented, cause the Prospectus to be filed pursuant to Rule 424
under the Securities Act and to comply fully with the applicable provisions of
Rules 424 and 430A under the Securities Act in a timely manner; and comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement to the
Prospectus;
(iii) advise the selling Holders promptly and, if requested by
such Persons, to confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment to any Registration Statement
has been filed, and, with respect to any Registration Statement or any
post-effective amendment thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the Securities
Act or of the suspension by any state securities commission of the qualification
of the Transfer Restricted Securities for offering or sale in any jurisdiction
or of the initiation of any proceeding for any of the preceding purposes or (D)
of the existence of any fact or the happening of any event (including without
limitation pending negotiations relating to, or the consummation of, a
transaction or the occurrence of any event that would require additional
disclosure of material, non-public information by the Company in the
Registration Statement as to which the Company has a bona fide business purpose
for preserving confidentiality or that renders the Company unable to comply with
Commission requirements) that makes untrue any statement of a material fact made
in the Registration Statement, the Prospectus, any amendment or supplement
thereto or any document incorporated by reference therein, or that requires the
making of any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading. If at any
time the Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities under state
securities or Blue Sky laws, the Company shall use its best efforts to obtain
the withdrawal or lifting of such order at the earliest possible time;
(iv) furnish to each of the selling Holders, upon request,
before filing with the Commission, copies of any Registration Statement or any
Prospectus included therein and any amendments or supplements thereto (including
all documents incorporated by reference prior to the effectiveness of such
Registration Statement), which documents, other than documents incorporated by
reference, shall be subject to the review of such Holders for a period of at
least 5 Business Days, and the Company shall not file any such Registration
Statement or Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus to which a selling Holder of Transfer Restricted
Securities covered by such Registration Statement shall reasonably object within
5 Business Days after the receipt thereof; a selling Holder or shall be deemed
to have reasonably objected to such filing only if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be filed,
contains a material misstatement or omission;
(v) if practicable, promptly prior to the filing of any
document that is to be incorporated by reference into a Registration Statement
or Prospectus subsequent to the effectiveness thereof, and in any event no later
than the date such document is filed with the Commission, provide copies of such
document to the selling Holders, if requested, make representatives of the
Company available in person or by conference call for discussion of such
document and other customary due diligence matters, and include such information
in such document prior to the filing thereof as such selling Holders reasonably
may request;
(vi) subject to having received reasonable assurances of
confidentiality from any such selling Holders, attorneys or accountants, make
available at reasonable times for inspection by the selling Holders, and any
attorney or accountant retained by such selling Holders all financial and other
records, pertinent corporate documents and properties of the Company and cause
the officers, directors and employees of the Company to supply all information
reasonably requested by any such selling Holder, attorney or accountant in
connection with such Registration Statement subsequent to the filing thereof and
prior to its effectiveness;
(vii) if requested by any selling Holder promptly incorporate
in any Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such selling Holders
may reasonably request to have included therein, the purchase price being paid
therefor and any other terms of the offering of the Transfer Restricted
Securities or New Notes to be sold in such offering; and make all required
filings of any such Prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be incorporated in
such Prospectus supplement or post-effective amendment;
(viii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating
agencies, if so requested by the Holders of a majority in aggregate principal
amount of Notes or New Notes covered thereby;
(ix) Upon any selling Holder's written request, furnish to
such selling Holder without charge, at least one copy of the Registration
Statement, as first filed with the Commission, and of each amendment thereto,
including all documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
(x) deliver to each selling Holder without charge, as many
copies of the Prospectus (including each preliminary prospectus intended for
public distribution) and any amendment or supplement thereto as such selling
Holder reasonably may request; subject to any notice by the Company in
accordance with this Section 4(b) of the existence of any fact or event of the
kind described in Section 4(b)(iii)(D) hereof, the Company hereby consents to
the use of the Prospectus and any amendment or supplement thereto by each of the
selling Holders in connection with the offering and the sale of the Transfer
Restricted Securities or New Notes covered by the Prospectus or any amendment or
supplement thereto;
(xi) subject to any notice by the Company in accordance with
this Section 4(b) of the existence of any fact or event of the kinds described
in Section 4(b)(iii)(D) hereof, take all such other customary actions in
connection therewith in order to expedite or facilitate the disposition of the
Transfer Restricted Securities or New Notes pursuant to any Registration
Statement contemplated by this Agreement, all to such extent as may be requested
by any Purchaser or by any Holder of Transfer Restricted Securities in
connection with any sale or resale pursuant to any Registration Statement
contemplated by this Agreement, and the Company shall:
(A) furnish to each Purchaser and each selling Holder,
upon the date of the effectiveness of the Shelf Registration Statement, and, to
the extent applicable, upon the Consummation of the Exchange Offer copies of the
following:
(1) a certificate, dated the date of effectiveness
of the Shelf Registration Statement (or, to the extent applicable, dated the
date of Consummation of the Exchange Offer) signed by (y) the president or chief
executive officer of the Company and (z) the chief financial officer or the
principal financial or accounting officer of the Company, confirming, as of the
date thereof, the matters set forth in Section 6(c)(i) and (iii) of the Purchase
Agreement and such other matters as such parties reasonably requested at the
time of effectiveness of the Shelf Registration Statement;
(2) opinions, dated the date of effectiveness of
the Shelf Registration Statement (or, to the extent applicable, dated the date
of Consummation of the Exchange Offer) of Company Counsel, covering the matters
set forth in Section 6(a) of the Purchase Agreement and addressed to all
Purchasers and selling Holders; and
(3) a customary comfort letter, dated as of the
date of effectiveness of the Shelf Registration Statement (and, to the extent
applicable, as of the date of Consummation of the Exchange Offer) from the
independent certified public accountants of the Company, in the customary form,
addressed to all Purchasers and selling Holders, and addressing the matters set
forth in the comfort letters delivered pursuant to Section 6(d) of the Purchase
Agreement, without exception;
(B) deliver such other documents and certificates as
were reasonably requested at the time of effectiveness of the Shelf Registration
Statement by such parties to evidence compliance with clause (A) above.
If at any time the representations and warranties of the Company
indirectly referenced in clause (A)(1) above cease to be true and correct, the
Company shall so advise the Purchasers and each selling Holder promptly and, if
requested by such Persons, shall confirm such advice in writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, and their respective counsel in
connection with the registration and qualification of the Transfer Restricted
Securities under the securities or Blue Sky laws of such domestic jurisdictions
as the selling Holders may request; and do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the Shelf
Registration Statement; provided that the Company shall not be required to
register or qualify as a foreign corporation where it is not now so qualified or
to take any action that would subject it to service of process in suits or to
taxation, other than as to matters and transactions relating to the Registration
Statement, in any domestic jurisdiction where it is not now so subject;
(xiii) cooperate with the selling Holders to facilitate the
timely preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and enable such
Transfer Restricted Securities to be in such denominations and registered in
such names as the selling Holders may request at least two Business Days prior
to any sale of Transfer Restricted Securities;
(xiv) use all reasonable efforts to cause the Transfer
Restricted Securities covered by the Registration Statement to be registered
with or approved by such other domestic governmental agencies or authorities as
may be necessary to enable the selling Holder(s) thereof to consummate the
disposition of such Transfer Restricted Securities, subject to the proviso
contained in clause (xii) above;
(xv) as soon as reasonably practicable after the occurrence of
any fact or event of the kind described in Section 4(b)(iii)(D) above, prepare a
supplement or post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus shall not contain an untrue statement of a
material fact or omit to state any material fact necessary, in light of the
circumstances in which it was made, to make the statements therein not
misleading, provided that notwithstanding anything to the contrary herein, the
Company shall not be required to prepare and file such a supplement or
post-effective amendment or document if the fact no longer exists; and provided,
further, that, in the event of a material business transaction (including
without limitation pending negotiations relating to such a transaction) that,
based upon the advice of the Company Counsel, would require disclosure by the
Company in the Registration Statement of material, nonpublic information that
the Company has a bona fide business purpose for not disclosing, then for so
long as such circumstances and such business purpose continue to exist, the
Company shall not be required to prepare and file a supplement or post-effective
amendment hereunder;
(xvi) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration Statement and
provide the Trustee under the Indenture with certificates for the Notes or New
Notes, as the case may be, that are in a form eligible for deposit with The
Depository Trust Company;
(xvii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally available
to its security holders, in a regular filing on Form 10-Q or Form 10-K, a
consolidated earnings statement meeting the requirements of Rule 158 (which need
not be audited) for the twelve-month period beginning with the Company's first
fiscal quarter commencing after the effective date of the Registration
Statement;
(xviii) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement required to be
filed by this Agreement, and, in connection therewith, cooperate with the
Trustee and the Holders of Notes to effect such changes to the Indenture as may
be required for such Indenture to be so qualified in accordance with the terms
of the TIA, and execute, and use all reasonable efforts to cause the Trustee to
execute, all documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner;
(xix) cause all Transfer Restricted Securities covered by the
Registration Statement to be listed on each securities exchange on which similar
securities issued by the Company are then listed if requested by the Holders of
a majority in aggregate principal amount of Transfer Restricted Securities; and
(xx) provide promptly to each Holder upon request any document
filed with the Commission pursuant to the requirements of Section 13 and Section
15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company of the existence of any fact
or event of the kind described in Section 4(b)(iii)(D) hereof, such Holder
shall: (i) keep the fact of such notice confidential and (ii) forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the copies of a
supplemented or amended Prospectus as contemplated by Section 4(b)(xv) hereof,
or until it receives advice in writing (the "Advice") from the Company that the
use of the Prospectus may be resumed, and has received copies of any additional
or supplemental filings that are incorporated by reference in the Prospectus.
If so directed by the Company, each Holder shall deliver to the Company (at the
expense of the Company) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice. In the event
the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 hereof shall
be extended by the number of days during the period from and including the date
of the giving of such notice pursuant to Section 4(b)(iii)(D) hereof to and
including the date when each selling Holder covered by such Registration
Statement shall have received the copies of the supplemented or amended
prospectus contemplated by Section 4(b)(xv) hereof or shall have received the
Advice, provided that the time period regarding the effectiveness of such
Registration Statement set forth in Section 3 hereof shall not be extended, if
the Company has received an opinion from Company Counsel to the effect that the
Restricted Transfer Securities can be freely tradable without the continued
effectiveness of the Shelf Registration Statement.
(c) In connection with the Exchange Offer, the Company shall comply
with all of the provisions of Section 4(b) (other than those that are not
applicable) and shall use its best efforts to effect such exchange to permit the
sale of Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof. In addition, prior to
effectiveness of the Exchange Offer Registration Statement, the Company shall
provide a supplemental letter to the Commission (i) stating that they are
registering the Exchange Offer in reliance on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available May 13, 1988),
Morgan Stanley and Co., Inc. (available June 5, 1991) and, if applicable, any
no-action letter obtained by the Company and (ii) including a representation
that the Company has not entered into any arrangement or understanding with any
Person to distribute the New Notes to be received in the Exchange Offer and
that, to the best of the Company's information and belief, each Holder
participating in the Exchange Offer is acquiring the New Notes in its ordinary
course of business and has no arrangement or understanding with any Person to
participate in the distribution of the New Notes received in the Exchange Offer.
As a condition to its participation in the Exchange Offer pursuant to the terms
of this Agreement, each Holder of Transfer Restricted Securities shall furnish,
upon the request of the Company, prior to the Consummation thereof, a written
representation to the Company (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Company, (B) it is not engaged in
and does not intend to engage in and has no arrangement or understanding with
any person to participate in, a distribution of the New Notes to be issued in
the Exchange Offer and (C) it is acquiring the New Notes in its ordinary course
of business. In addition, all such Holders of Transfer Restricted Securities
shall otherwise cooperate in the Company's preparations for the Exchange Offer.
Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such
Holder using the Exchange Offer to participate in a distribution of the
securities to be acquired in the Exchange Offer (1) could not under Commission
policy as in effect on the date of this Agreement rely on the position of the
Commission enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991)
and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted
in the Commission's letter to Shearman & Sterling dated July 2, 1993, and
similar no-action letters and (2) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with a
secondary resale transaction and that such a secondary resale transaction should
be covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as applicable, of
Regulation S-K if the resales are of New Notes obtained by such Holder in
exchange for Notes acquired by such Holder directly from the Company.
5. REGISTRATION EXPENSES
The following expenses incident to the Company's performance of or
compliance with this Agreement shall be borne by the Company regardless of
whether a Registration Statement becomes effective, including, without
limitation: (i) all registration and filing fees and expenses (including
filings made by any Purchaser or Holder with the NASD); (ii) all fees and
expenses associated with compliance with federal securities and state Blue Sky
or securities laws including, with respect to such state Blue Sky or securities
laws only, the legal fees of Latham & Watkins or such other single counsel as
may be chosen by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration Statement is being
prepared; (iii) all expenses of printing or copying (including printing of any
certificates evidencing the Notes and printing or copying of Prospectuses),
messenger and delivery services and telephone; (iv) all fees and disbursements
of counsel for the Company; (v) all application and filing fees in connection
with listing any securities on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and (vi) all fees and
disbursements of independent certified public accountants of the Company
(including the expenses of any special audit and comfort letters required by or
incident to such performance).
The Company shall, in any event, bear its own internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company.
6. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless (i) each
Holder and (ii) each person, if any, who controls (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) any Holder (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 any Holder or any controlling person
(any person referred to in clause (i), (ii) or (iii) may hereinafter be referred
to as an "Indemnified Holder"), to the fullest extent lawful, from and against
any and all losses, claims, damages, liabilities, judgments, costs and expenses
("Losses") (including, without limitation and as incurred, reimbursement of all
costs of investigating, preparing, pursuing or defending any claim or action, or
any investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel to any
Indemnified Holder) directly or indirectly caused by, related to, based upon,
arising out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus (or any amendment or supplement thereto) or 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 light of the circumstances
under which they were made, not misleading, except (as to any Holder) insofar as
such Losses are caused by an untrue statement or omission or alleged untrue
statement or omission that is made in reliance upon and in conformity with
information relating to such Holder furnished in writing to the Company by such
Holder for use therein. The Company shall notify the Holders promptly of the
institution, threat or assertion of any claim, proceeding (including any
governmental investigation) or litigation in connection with the matters
addressed by this Agreement that involves the Company or any Indemnified Holder.
(b) In case any action or proceeding (including, without limitation,
any governmental or regulatory investigation or proceeding) shall be brought or
asserted against any of the Indemnified Holders with respect to which indemnity
may be sought against the Company, such Indemnified Holder (or the Indemnified
Holder controlled by such controlling person) shall promptly notify the Company
in writing (provided that the failure to give such notice shall not relieve the
Company of its obligations pursuant to this Agreement). Any Indemnified Holder
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 Holder, provided that the fees and
expenses of such counsel shall be at the expense of the Company if (i) the
Company has failed to assume the defense and employ counsel reasonably
satisfactory to the Holders or (ii) the named parties to any such action
(including any impleaded parties) include such indemnified Holder and the
Company and such Indemnified Holder shall have reasonably concluded that there
may be one or more legal defenses available to it that are different from or in
addition to those available to the Company; provided, further, that the Company
shall not in such event be responsible hereunder for the fees and expenses of
more than one firm of separate counsel, which firm shall be designated by the
Holders and shall be subject to the Company's approval, not to be unreasonably
withheld, in connection with any one such action or separate but similar related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, in addition to any local counsel. The Company shall not be
liable for any settlement of any such action or proceeding effected without its
prior written consent, which consent shall not be unreasonably withheld or
delayed, and the Company agrees to indemnify and hold harmless any Indemnified
Holder from and against any Loss by reason of any settlement of any action
effected with its written consent. The Company shall not, without the prior
written consent of each Indemnified Holder, settle or compromise or consent to
the entry of a judgment in or otherwise seek to terminate any pending or
threatened action, claim, litigation or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not any
Indemnified Holder is a party thereto), unless such settlement, compromise,
consent or termination includes a release of each Indemnified Holder from all
liability arising out of such action, claim, litigation or proceeding.
(c) Each Holder of Transfer Restricted Securities agrees, severally
and not jointly, to indemnify and hold harmless the Company, its directors, its
officers, and any person controlling (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) the Company, and the
respective officers, directors, partners, employees, representatives and agents
of each such person, to the same extent as the foregoing indemnity from the
Company to each of the Indemnified Holders, but only with respect to claims and
actions based on information relating to such Holder furnished in writing by
such Holder for use in any Registration Statement or Prospectus. In case any
action or proceeding shall be brought against any of Company or its directors or
officers or any such controlling person in respect of which indemnity may be
sought against a Holder of Transfer Restricted Securities, such Holder shall
have the rights and duties given the Company, and each of the Company or its
directors or officers of such controlling person shall have the rights and
duties given to each Holder by the proceeding paragraph. In no event shall the
liability of any selling Holder hereunder be greater in amount than the dollar
amount of the proceeds received by such Holder upon the sale of the securities
registered pursuant to provisions hereof giving rise to such indemnification
obligation.
(d) If the indemnification provided for in this Section 6 is
unavailable to a party entitled to indemnification in respect of any Losses
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 (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Holders on the other hand from their sale of Transfer Restricted
Securities or (ii) if such allocation is not permitted by applicable law, the
relative fault of the Company on the one hand and of the Indemnified Holder on
the other in connection with the statements or omissions that resulted in such
Losses as well as any other relevant equitable considerations. The relative
fault of the Company on the one hand and of the Indemnified Holder on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or by
the Indemnified Holder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The indemnity and contribution obligations of each indemnifying party set forth
herein shall be in addition to any liability or obligation such indemnifying
party may otherwise have to any indemnified party, including under this
Agreement.
The Company and each Holder of Transfer Restricted Securities agree
that it would not be just and equitable if contribution pursuant to this Section
6(d) were determined by pro rata allocation (even if the Holders 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 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 6, none of the Holders (and their related Indemnified
Holders) shall be required to contribute, in the aggregate, any amount in excess
of the amount by which the total proceeds received by such Holder with respect
to the Notes exceeds the amount of any damages which such Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 6(d) are several in proportion to the respective principal amount of
Notes held by each of the Holders hereunder and not joint.
7. RULE 144A
The Company hereby agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchase of such Transfer Restricted
Securities from such Holder or beneficial owner, any information required to be
supplied to a Holder by Rule 144A(d)(4) under the Securities Act in order to
permit offers and sales of such Transfer Restricted Securities pursuant to Rule
144A.
8. MISCELLANEOUS
(a) Remedies. Each party agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by such party
of the provisions of this Agreement and hereby agrees to waive the defense in
any action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company shall not, on or after
the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder are not inconsistent with the rights granted to the
holders of the Company's securities under any agreement in effect on the date
hereof.
(c) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given, unless the Company has
obtained the written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return-receipt requested), telecopier or courier
guaranteeing overnight delivery;
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company:
Nine West Group Inc.
9 West Broad Street
Stamford, CT 06902
Telecopier: (203)978-6020
Attention: Joel K. Bedol, Esq.
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017
Telecopier (212)455-2502
Attention: Andrew R. Keller, Esq.
All such notices and communications shall be deemed to have been duly
given at the time delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to a courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAW RULES THEREOF.
(i) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and the remaining
provisions contained herein shall not be affected or impaired thereby.
(j) Entire Agreement. This Agreement, together with the other
Transaction Agreements (as defined in the Purchase Agreement), is intended by
the parties as a final expression of their agreement and 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 Transfer Restricted Securities. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
NINE WEST GROUP INC.
By:
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Name:
Title:
BEAR, STEARNS & CO. INC.
As representative for the
Purchasers named above
By:
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Name:
Title: