Exhibit 10.13
FORM OF REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of this ____ day of May, 2005, by and between Citi Trends, Inc.,
a Delaware corporation (the "Company") and Hampshire Equity Partners II, L.P., a
Delaware limited partnership ("Hampshire").
WHEREAS, as set forth in this Agreement, the Company has agreed to
grant to Hampshire certain registration rights with respect to the shares of the
Company's common stock, par value $0.01 per share (the "Common Stock"), owned by
Hampshire as of the date hereof, as more fully set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and considerations herein set forth, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following meanings:
"Affiliate" as applied to any Person, shall mean any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise, and, in addition to
the foregoing, a Person shall be deemed to control another Person if the
controlling Person owns 15% or more of any class of voting securities (or other
ownership interest) of the controlled Person.
"Agreement" shall have the meaning set forth in the Preamble.
"Business Day" shall mean a day, other than a Saturday or Sunday, on
which banks in New York City are open for the general transaction of business.
"Common Stock" shall have the meaning set forth in the Preamble.
"Company" shall have the meaning set forth in the Preamble.
"Form S-1" means such form under the Securities Act as in effect on the
date hereof or any registration form under the Securities Act subsequently
adopted by the SEC used for the initial public offering of securities.
"Form S-3" means such form under the Securities Act as in effect on the
date hereof or any registration form under the Securities Act subsequently
adopted by the SEC which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
"Hampshire" shall have the meaning set forth in the Preamble and shall
include any permitted transferee thereof who is a subsequent holder of the
Registrable Securities pursuant to the terms hereof.
"Holder" shall mean any Person owning or having the right to acquire
Registrable Securities, or any assignee thereof in accordance with the terms
hereof. If the Company receives
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conflicting instructions, notices or elections from two or more Persons with
respect to the same Registrable Securities, the Company may act upon the basis
of the instructions, notice or election received from the registered owner of
such Registrable Securities.
"NASD" shall mean the National Association of Securities Dealers.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder, all as the same shall be
in effect at the time.
"Person" shall mean any individual, partnership, corporation, joint
venture, limited liability company, association, trust, unincorporated
organization, or government or agency or political subdivision thereof or any
other entity of whatever nature.
"Prospectus" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
"Register," "registered" and "registration" refer to a registration
made by preparing and filing a Registration Statement or similar document in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such Registration Statement or document by the SEC.
"Registrable Securities" means (a) the shares of Common Stock held by
Hampshire as of the date hereof; (b) any shares of Common Stock hereafter
distributed by the Company as a result of a stock dividend, stock split,
reclassification, recapitalization or otherwise by virtue of the ownership of
shares of Common Stock; and (c) any other security issued as a dividend or other
distribution with respect to, in exchange for, in replacement or redemption of,
or in reduction of the liquidation value of, any of the securities referred to
in the preceding clauses; provided, however, that any such securities shall
cease to be Registrable Securities when (A) such securities shall have been
registered under the Securities Act, the registration statement with respect to
the sale of such securities shall have become effective under the Securities Act
and such securities shall have been disposed of pursuant to such effective
registration statement; (B) such securities shall have been otherwise
transferred, if new certificates or other evidences of ownership for them not
bearing a legend restricting further transfer and not subject to any stop
transfer order or other restrictions on transfer shall have been delivered by
the Company and subsequent disposition of such securities shall not require
registration or qualification of such securities under the Securities Act or any
state securities law then in force; (C) such securities shall cease to be
outstanding; (D) the holding period that would be applicable under Rule 144(k)
of the Securities Act expires, such securities are freely tradable by Hampshire
thereof under Rule 144(k) without regard to volume limitations or other
restrictions and the Company shall have removed any restrictive legends and stop
transfer restrictions with respect to such securities; or (E) such securities
are sold to the public pursuant to Rule 144 (or any similar provision then in
force, but not Rule 144A) under the Securities Act.
"Registration Statement" shall mean any registration statement of the
Company filed under the Securities Act that covers the resale of any of the
Registrable Securities pursuant to the provisions of this Agreement, amendments
and supplements to such Registration Statement,
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including post-effective amendments, and all exhibits and all material
incorporated by reference in such Registration Statement.
"Rule 144" means Rule 144 under the Securities Act, as such rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"Rule 144A" means Rule 144A under the Securities Act, as such rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"SEC" shall mean the U.S. Securities and Exchange Commission or any
other Federal agency at the time administering the Securities Act.
"Securities Act" shall mean the Securities Act of 1933 as amended, or
any similar federal statute and the rules and regulations promulgated
thereunder, all as the same shall be in effect at the time.
2. Registration.
(a) Piggy-Back Registrations. If (but without any obligation
to do so) the Company proposes to register (including for this purpose a
registration effected by the Company for stockholders other than Hampshire) any
of its stock or other securities under the Securities Act in connection with the
public offering of such securities solely for cash (other than a registration on
Form S-8 (or similar or successor form) relating solely to the sale of
securities to participants in a Company stock option, stock purchase or other
stock-based compensation arrangement to the extent includable on Form S-8 (or
similar or successor form), or a registration relating solely to a transaction
under Rule 145 of the Securities Act on Form S-4 (or similar or successor form)
or a registration in which the only Common Stock being registered is Common
Stock issuable upon conversion of debt securities or Common Stock comprising
part of a unit or otherwise sold in connection with the issuance or sale of debt
securities which are also being registered) (each such registration not
withdrawn or abandoned prior to the effective date thereof being herein called a
"Piggy-back Registration"), the Company shall, at such time, promptly give
Hampshire written notice of such registration not later than forty-five (45)
days prior to the anticipated filing date of such Piggy-back Registration. Upon
the written request of Hampshire given within twenty (20) days after the
delivery of such notice by the Company in accordance with Section 8(c), the
Company shall use commercially reasonable efforts to cause to be registered
under the Securities Act all of the Registrable Securities that Hampshire has
requested to be registered. The Company shall have no obligation under this
Section 2(a) to make any offering of its securities, or to complete an offering
of its securities that it proposes to make. Hampshire shall be permitted to
withdraw all or any part of its Registrable Securities from any Piggy-back
Registration at any time prior to the effective date of such Piggy-back
Registration.
(b) Demand Registration.
(i) Request by Hampshire. If, at any time following
the initial public offering of securities of the Company, the Company receives a
written request from Hampshire to file a Registration Statement under the
Securities Act on Form S-1 or such other form as Hampshire may reasonably
request covering the registration of Registrable Securities, then the Company
shall, within ten (10) business days of the receipt of such written request,
give written
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notice of such request ("Request Notice") to Hampshire, and use commercially
reasonable efforts to effect, as soon as practicable, the registration under the
Securities Act of all Registrable Securities that Hampshire requests to be
registered and included in such registration by written notice given by
Hampshire to the Company within twenty (20) days after receipt of the Request
Notice; provided, that Hampshire shall no longer have such right once its
beneficial ownership of the Common Stock is less than 10% on a fully-diluted
basis. If requested by Hampshire, the Company shall register such Registrable
Securities on Form S-1 or any successor registration form.
(ii) Underwriting. If Hampshire intends to
distribute the Registrable Securities covered by its request pursuant to Section
2(b) by means of an underwriting, then it shall so advise the Company as a part
of its request, and the Company shall include such information in the written
notice referred to in Section 2(b)(i). In such event, the right of any Holder to
include its Registrable Securities in such registration shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting. All Holders proposing to
distribute their securities through such underwriting shall enter into an
underwriting agreement in customary form with the managing underwriter or
underwriters selected for such underwriting by the Holders of a majority of the
Registrable Securities being registered and reasonably acceptable to the Company
(including a market stand-off agreement of up to ninety (90) days if required by
such underwriters). Notwithstanding any other provision of this Section 2(b), if
the underwriter(s) advise(s) the Company in writing that marketing factors
require a limitation of the number of securities to be underwritten then the
Company shall so advise all Holders of Registrable Securities that would
otherwise be registered and underwritten pursuant hereto, and the number of
Registrable Securities that may be included in the underwriting shall be reduced
as required by the underwriter(s) and allocated among the Holders of Registrable
Securities on a pro rata basis according to the number of Registrable Securities
then outstanding held by each Holder requesting registration; provided, however,
that the number of shares of Registrable Securities to be included in such
underwriting and registration shall not be reduced unless all other securities
of the Company and any selling securityholder other than the Holders are first
entirely excluded from the underwriting and registration. Any Registrable
Securities excluded and withdrawn from such underwriting shall be withdrawn from
the registration.
(iii) Maximum Number of Demand Registrations. The
Company shall not be obligated to effect in the case of a demand request in
accordance with the provisions of Section 2(b), more than two (2) registrations,
provided, however, that once the Company has satisfied the requirements to file
a Form S-3 there shall be no limit on the number of demand requests made by
Hampshire; provided, that Hampshire shall no longer have such right once its
beneficial ownership of the Common Stock is less than 10% on a fully-diluted
basis. In order to count as one of the demand registrations pursuant to Section
2(b), the Registration Statement in respect thereof must have not been withdrawn
and all Registrable Securities which Hampshire requested to be registered
pursuant to it must have been so included and sold pursuant to an effective
Registration Statement.
(iv) Deferral. Notwithstanding the foregoing, if the
Company shall furnish to Hampshire, a certificate signed by the Chief Executive
Officer of the Company stating
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that in the good faith judgment of the Board of Directors, it would be
materially detrimental to the Company and its stockholders for such Registration
Statement to be filed, then the Company shall have the right to defer such
filing for a period of not more than sixty (60) days after receipt of the
request of Hampshire; provided, however, that the Company may not utilize this
right more than once in any twelve (12) month period.
(v) Expenses. All expenses incurred in connection with any
registration pursuant to this Section 2(b), including all federal and Blue Sky
registration, filing and qualification fees, printer's and accounting fees, and
fees and disbursements of counsel for the Company (but excluding underwriters'
discounts and commissions relating to shares sold by Hampshire and any fees and
disbursements of counsel to Hampshire), shall be borne by the Company. Hampshire
shall bear its proportionate share (based on the total number of shares sold in
such registration other than for the account of the Company) of all discounts,
commissions or other amounts payable to underwriters or brokers in connection
with such offering by Hampshire. Notwithstanding the foregoing, the Company
shall not be required to pay for any expenses of any registration proceeding
begun pursuant to this Section 2(b) if the registration request is subsequently
withdrawn at the request of Hampshire, unless Hampshire agrees that such
registration constitutes the use by Hampshire of one (1) demand registration
pursuant to this Section 2(b); provided further, however, that if at the time of
such withdrawal, Hampshire has learned of a material adverse change relating to
the business or operations of the Company not known to Hampshire at the time of
its request for such registration and has withdrawn its request for registration
after learning of such material adverse change, then Hampshire shall not be
required to pay any of such expenses and such registration shall not constitute
the use of a demand registration pursuant to this Section 2(b).
(c) Failure to File Registration Statement and Other Events.
The Company and Hampshire agree that Hampshire will suffer damages if the
Registration Statement is not filed and maintained in the manner contemplated
herein during the Effectiveness Period (as defined below). The Company and
Hampshire further agree that it would not be feasible to ascertain the extent of
such damages with precision. Accordingly, if (i) the Company fails to file with
the SEC a request for acceleration in accordance with Rule 461 promulgated under
the Securities Act within five (5) Business Days of the date that the Company is
notified (orally or in writing, whichever is earlier) by the SEC that a
Registration Statement will not be "reviewed," or not subject to further review,
or (ii) the Registration Statement is filed with and declared effective by the
SEC but thereafter ceases to be effective as to all Registrable Securities at
any time prior to the expiration of the Effectiveness Period, without being
succeeded immediately by a subsequent Registration Statement filed with the SEC,
except as otherwise permitted by this Agreement (any such failure or breach
being referred to as an "Event"), the Company will make payments to Hampshire in
an amount equal to 1.0% of the aggregate amount invested by Hampshire for each
twenty (20)-day period or pro rata for any portion thereof following the date on
which the Event occurred. Such payments shall be in partial compensation to
Hampshire and shall not constitute Hampshire's exclusive remedy for such Events.
Such payments shall be made to Hampshire in cash. The amounts payable pursuant
to this paragraph shall be payable in lawful money of the United States within
two (2) Business Days of the last day of each such twenty (20)-day period during
which the Registration Statement should have been filed for which no
Registration Statement was filed with respect to the Registrable Securities.
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Notwithstanding the foregoing, the Company shall remain obligated to cure the
breach or correct the condition that caused such Event, and Hampshire shall have
the right to take any action necessary or desirable to enforce such obligation.
(d) 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 the Registration Statement is filed or becomes
effective and whether or not any Registrable Securities are sold pursuant to the
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 each securities exchange, quotation system, market or
over-the-counter bulletin board on which Registrable Securities are required
hereunder to be listed, (B) with respect to filings required to be made with the
SEC, and (C) in compliance with state securities or Blue Sky laws, (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities and of printing or photocopying Prospectuses), (iii)
messenger, telephone and delivery expenses, (iv) Securities Act liability
insurance, if the Company so desires such insurance and (v) fees and expenses of
all other Persons retained by the Company in connection with the consummation of
the transactions contemplated by this Agreement, including, without limitation,
the Company's independent public accountants (including, in the case of an
underwritten offering, the expenses of any comfort letters or costs associated
with the delivery by independent public accountants of a comfort letter or
comfort letters) and legal counsel. In addition, each of Hampshire and the
Company shall be responsible for all of their respective internal expenses
incurred in connection with the consummation of the transactions contemplated by
this Agreement (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit and the fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange as required
hereunder. Notwithstanding the preceding, the Company shall have no obligation
to pay any underwriting discounts or selling commission attributable to the
Registrable Securities being sold by Hampshire and any fees and disbursement of
counsel to Hampshire, which such amounts shall be borne by Hampshire.
(e) Effectiveness.
(i) The Company shall use reasonable best efforts to
have the Registration Statement declared effective not later than the earlier to
occur of (y) sixty (60) days after the date of filing of such Registration
Statement, or (z) five (5) Business Days following the Company's receipt of oral
or written (whichever is first) notice from the SEC that the Registration
Statement will not be "reviewed" or not be subject to further review; provided,
however, if the Registration Statement is not declared effective within the time
period set forth above, the Company shall continue to use its reasonable best
efforts to have the Registration Statement declared effective as soon as
possible thereafter.
(ii) For not more than thirty (30) consecutive days
or for a total of not more than sixty (60) days in any twelve (12) month period,
the Company may delay the disclosure of material non-public information
concerning the Company, which the Company is not otherwise required to disclose,
by terminating or suspending effectiveness of any registration contemplated by
this Section 2, if the disclosure of such material non-public information would
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be required by such registration and at the time is not, in the reasonable
determination of the Company's Board of Directors, in the best interests of the
Company (an "Allowed Delay"); provided, that the Company shall promptly (a)
notify Hampshire in writing of the existence of (but in no event shall the
Company be required to disclose to Hampshire any of the facts or circumstances
regarding) material non-public information giving rise to an Allowed Delay, and
(b) advise Hampshire in writing to cease all sales under the Registration
Statement until the end of the Allowed Delay.
(f) Notice of Effectiveness. Within three (3) Business Days
after the Registration Statement which includes the Registrable Securities is
ordered effective by the SEC, the Company shall deliver, and shall cause legal
counsel for the Company to deliver, to the transfer agent for such Registrable
Securities (with copies to Hampshire) confirmation that the Registration
Statement has been declared effective by the SEC.
(g) Underwritten Offering. If any offering pursuant to a
Registration Statement involves an underwritten offering, the Company shall
have the right to select an investment banker and manager to administer the
offering, which investment banker or manager shall be reasonably satisfactory
to Hampshire.
3. Company Obligations. The Company will use its reasonable best
efforts to effect the registration of the Registrable Securities in accordance
with the terms hereof, and pursuant thereto the Company will, as expeditiously
as possible:
(a) use its reasonable best efforts to cause such Registration
Statement to become effective and to remain continuously effective for a period
that will terminate upon the earlier of (x) the date when all Registrable
Securities covered by such Registration Statement have been sold, or (y) with
respect to Hampshire, such time as all Registrable Securities held by Hampshire
may be sold without any restriction pursuant to Rule 144(k) (the "Effectiveness
Period");
(b) (i) prepare and file with the SEC such amendments and
post-effective supplements to the Registration Statement as may be necessary to
keep the Registration Statement effective with respect to all Registrable
Securities for the Effectiveness Period; (ii) cause the related Prospectus to be
amended or supplemented by any required Prospectus supplement, and as so
supplemented or amended to be filed pursuant to Rule 424 (or any similar
provisions then in force) promulgated under the Securities Act; (iii) respond as
promptly as possible, and in no event later than fifteen (15) Business Days to
the first set of comments and ten (10) Business Days to each set of comments
thereafter received from the SEC with respect to the Registration Statement or
any amendment thereto and as promptly as reasonably possible provide Hampshire
true and complete copies of all correspondence from and to the SEC relating to
the Registration Statement; and (iv) comply in all material respects with the
provisions of the Securities Act and the 1934 Act with respect to the
disposition of all Registrable Securities covered by the Registration Statement
during the applicable period in accordance with the intended methods of
disposition by Hampshire thereof set forth in the Registration Statement as so
amended or in such Prospectus as so supplemented;
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(c) notify Hampshire of Registrable Securities to be sold as
promptly as possible (i) when a Prospectus or any Prospectus supplement or
post-effective amendment to the Registration Statement is proposed to be filed
(but in no event in the case of this subparagraph (i), less than five (5)
Business Days prior to date of such filing); (ii) when the SEC notifies the
Company whether there will be a "review" of such Registration Statement and
whenever the SEC comments in writing on such Registration Statement; and (iii)
with respect to the Registration Statement or any post-effective amendment,
when the same has become effective, and after the effectiveness thereof: (A) of
any request by the SEC or any other Federal or state governmental authority for
amendments or supplements to the Registration Statement or Prospectus or for
additional information; (B) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement covering any or all
of the Registrable Securities or the initiation of any suit, action or
proceeding for that purpose; (C) 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 Registrable Securities for sale in any
jurisdiction, or the initiation or threatening of any suit, action or
proceeding for such purpose; and (D) if the financial statements included in
the Registration Statement become ineligible for inclusion therein or of the
occurrence of any event that makes any statement made in the Registration
Statement or Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires any revisions to the Registration Statement, Prospectus or other
documents so that, in the case of the Registration Statement or the Prospectus,
as the case may be, 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 the light of the circumstances under which
they were made, not misleading. Without limitation to any remedies to which
Hampshire may be entitled under this Agreement, if any of the events described
in Section 3(c)(iii)(A), 3(c)(iii)(B) and 3(c)(iii)(C) occur, the Company shall
use its best efforts to respond to and correct the event;
(d) furnish to Hampshire such number of copies of a
Prospectus, including a preliminary prospectus, and all amendments and
supplements thereto and such other documents as Hampshire may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by Hampshire;
(e) if requested by Hampshire, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment to the Registration Statement
such information as the Company reasonably agrees should be included therein and
(ii) make all required filings of such Prospectus supplement or such
post-effective amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(f) in the event the Company selects an underwriter for the
public offering, the Company shall enter into and perform its reasonable
obligations under an underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and contribution
obligations, with the underwriter of such offering;
(g) if required by the underwriter, the Company shall furnish,
on the effective date of the Registration Statement (i) an opinion, dated as of
such date, from independent legal counsel representing the Company for purposes
of such Registration Statement, in form, scope
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and substance as is customarily given in an underwritten public offering,
addressed to the underwriter and (ii) a letter, dated such date, from the
Company's independent certified public accountants in form and substance as is
customarily given by independent certified public accountants to underwriters in
an underwritten public offering, addressed to the underwriter;
(h) use its reasonable best efforts to (i) prevent the
issuance of any stop order or other suspension of effectiveness and, if such
order is issued, obtain the withdrawal of any such order at the earliest
possible moment or (ii) any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest practicable time;
(i) prior to any public offering of Registrable Securities,
use its reasonable best efforts to register or qualify or cooperate with
Hampshire and its counsel in connection with the registration or qualification
of such Registrable Securities for offer and sale under the state securities or
Blue Sky laws of such jurisdictions reasonably requested by Hampshire and do any
and all other reasonable acts or things necessary or advisable to enable the
distribution in such jurisdictions of the Registrable Securities covered by the
Registration Statement; provided, that, the Company shall not for any purpose be
required to qualify to do business as a foreign corporation in any jurisdiction
wherein it is not so qualified or execute a general consent to service of
process in any jurisdiction;
(j) cause all Registrable Securities covered by a Registration
Statement to be listed on each securities exchange, interdealer quotation
system, market or over-the-counter bulletin board on which similar securities
issued by the Company are then listed or, if no such listing then exists, as
reasonably determined by the Company;
(k) following the occurrence of any event contemplated by
Section 3(c)(iii)(D), as promptly as possible, prepare a supplement or
amendment, including a post-effective amendment, to the 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, neither the Registration Statement nor such
Prospectus will 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 the light of the circumstances under which they were
made, not misleading;
(l) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC under the Securities Act and the
1934 Act and take such other actions as may be reasonably necessary to
facilitate the registration of the Registrable Securities hereunder; and make
available to its security holders, as soon as reasonably practicable, but not
later than the Availability Date (as defined below), an earnings statement
covering a period of at least twelve (12) months, beginning after the effective
date of each Registration Statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act (for the purpose of this
subsection 3(l), "Availability Date" means the 45th day following the end of the
fourth fiscal quarter that includes the effective date of such Registration
Statement, except that, if such fourth fiscal quarter is the last quarter of the
Company's fiscal year, "Availability Date" means the 90th day after the end of
such fourth fiscal quarter);
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(m) provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration and provide the transfer agent with printed certificates for
Registrable Securities in a form eligible for deposit with The Depositary Trust
Company; and
(n) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter" that is required
to be retained in accordance with the rules and regulations of the NASD).
4. Due Diligence Review; Information. The Company shall make available,
during normal business hours, for reasonable inspection and review by Hampshire,
advisors to and representatives of Hampshire (who may or may not be affiliated
with Hampshire), and any underwriter participating in any disposition of Common
Stock on behalf of Hampshire pursuant to a Registration Statement or amendments
or supplements thereto or any Blue Sky, NASD or other filing, all financial and
other records, and all other corporate documents and properties of the Company
as may be reasonably necessary for the purpose of such review, and cause the
Company's officers, directors and employees, within a reasonable time period, to
supply all such information reasonably requested by Hampshire or any such
representative, advisor or underwriter in connection with such Registration
Statement (including, without limitation, in response to all questions and other
inquiries reasonably made or submitted by any of them), prior to and from time
to time after the filing and effectiveness of the Registration Statement for the
sole purpose of enabling Hampshire and such representatives, advisors and
underwriters and its accountants and attorneys to conduct initial and ongoing
due diligence with respect to the Company and the accuracy of such Registration
Statement.
Notwithstanding the foregoing, the Company shall not disclose
material non-public information to Hampshire, or to advisors to or
representatives of Hampshire, unless prior to disclosure of such information the
Company identifies such information as being material non-public information and
provides Hampshire, such advisors and representatives with the opportunity to
accept or refuse to accept such material non-public information for review.
5. Obligations of Hampshire.
(a) Hampshire shall furnish in writing to the Company such
information regarding itself, the Registrable Securities held by it and the
intended method of disposition of the Registrable Securities held by it, as
shall be reasonably required to effect the registration of such Registrable
Securities and shall execute such documents in connection with such registration
as the Company may reasonably request. At least fifteen (15) Business Days prior
to the first anticipated filing date of any Registration Statement, the Company
shall notify Hampshire of the information the Company requires from Hampshire if
Hampshire elects to have any of the Registrable Securities included in the
Registration Statement. Hampshire shall provide such information to the Company
at least ten (10) Business Days prior to the first anticipated filing date of
such Registration Statement if Hampshire elects to have any of the Registrable
Securities included in the Registration Statement.
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(b) Hampshire, by its acceptance of the Registrable
Securities, agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of a Registration
Statement hereunder, unless Hampshire has notified the Company in writing of its
election to exclude all of its Registrable Securities from such Registration
Statement.
(c) In the event the Company determines to engage the services
of an underwriter, Hampshire agrees to enter into and perform its obligations
under an underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
managing underwriter of such offering and take such other actions as are
reasonably required in order to expedite or facilitate the dispositions of the
Registrable Securities.
(d) Hampshire agrees that, upon receipt of any notice from the
Company of the happening of any event rendering a Registration Statement no
longer effective, Hampshire will immediately discontinue disposition of
Registrable Securities pursuant to the Registration Statement covering such
Registrable Securities, until Hampshire's receipt of copies of the supplemented
or amended Prospectus filed with the SEC and declared effective and, if so
directed by the Company, Hampshire shall deliver to the Company (at the expense
of the Company) or destroy (and deliver to the Company a certificate of
destruction) all copies in Hampshire's possession of the Prospectus covering the
Registrable Securities current at the time of receipt of such notice.
(e) Hampshire may not participate in any third party
underwritten registration hereunder unless it (i) agrees to sell the Registrable
Securities on the basis provided in any underwriting arrangements in usual and
customary form entered into by the Company, (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements and (iii) agrees to pay its pro rata share of all underwriting
discounts and commissions. Notwithstanding the foregoing, Hampshire shall not be
required to make any representations to such underwriter, other than those with
respect to itself and the Registrable Securities owned by it, including its
right to sell the Registrable Securities, and any indemnification in favor of
the underwriter by Hampshire shall be limited to the net proceeds received by
Hampshire from the sale of its Registrable Securities. The scope of any such
indemnification in favor of an underwriter shall be limited to the same extent
as the indemnity provided in Section 6(b) hereof.
6. Indemnification.
(a) Indemnification by the Company. The Company will indemnify
and hold harmless Hampshire and its respective Affiliates, officers, directors,
members, employees and agents, successors and assigns, against any losses,
claims, damages or liabilities, joint or several, to which Hampshire, such
Affiliate, officer, director, member, employee, agent, successor or assign 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: (i) any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, prospectus or preliminary
prospectus or any omission or alleged omission to state
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therein a material fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus or preliminary prospectus, in
the light of the circumstances under which they were made) not misleading; (ii)
any Blue Sky application or other document executed by the Company specifically
for Blue Sky compliance or based upon written information furnished by the
Company filed in any state or other jurisdiction in order to qualify any or all
of the Registrable Securities under the securities laws thereof (any such
application, document or information herein called a "Blue Sky Application");
(iii) any violation by the Company, or its directors, officers, employees or
agents of any rule or regulation promulgated under the Securities Act or the
1934 Act or any state securities laws relating to action or inaction required of
the Company or any of them in connection with such registration; or (iv) any
failure to use its best efforts to register or qualify the Registrable
Securities included in any such Registration Statement in any state where the
Company or its agents has affirmatively undertaken or agreed in writing that the
Company will undertake such registration or qualification on Hampshire's behalf
(the undertaking of any underwriter chosen by the Company being attributed to
the Company) and will reimburse Hampshire, and each such officer, director or
member 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 to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
allegedly untrue statement or omission or alleged omission made in conformity
with information furnished in writing by Hampshire or any such controlling
person specifically for use in such Registration Statement or Prospectus.
(b) Indemnification by Hampshire. In connection with any
Registration Statement pursuant to the terms of this Agreement, Hampshire will
furnish to the Company in writing such information as the Company reasonably
requests concerning Hampshire or the proposed manner of Hampshire's distribution
for use in connection with any Registration Statement or Prospectus and agrees,
severally but not jointly, to indemnify and hold harmless, to the fullest extent
permitted by law, the Company and its directors, officers, employees,
shareholders and each person who controls the Company (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities and expenses
(including reasonable attorney fees) resulting from any untrue statement of a
material fact or any omission of a material fact required to be stated in the
Registration Statement or Prospectus or preliminary prospectus or amendment or
supplement thereto or necessary to make the statements therein not misleading,
to the extent, but only to the extent that such untrue statement or omission is
contained in any information furnished in writing by Hampshire to the Company
specifically for inclusion in such Registration Statement or Prospectus or
amendment or supplement thereto. In no event shall the liability of Hampshire be
greater in amount than the aggregate dollar amount of the proceeds received by
Hampshire upon the sale of the Registrable Securities included in the
Registration Statement giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. Any person
entitled to indemnification hereunder shall (i) give prompt notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party; provided that any
person entitled to indemnification hereunder shall have the right to employ
separate counsel and to participate in the defense of such claim, but the fees
and expenses of
12
such counsel shall be at the expense of such person unless (a) the indemnifying
party has agreed to pay such fees or expenses, or (b) the indemnifying party
shall have failed to assume the defense of such claim and employ counsel
reasonably satisfactory to such person or (c) in the reasonable judgment of any
such person, based upon advice of its counsel, a conflict of interest exists
between such person and the indemnifying party with respect to such claims (in
which case, if the person notifies the indemnifying party in writing that such
person elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such claim on behalf of such person); and provided, further, that the failure of
any indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations hereunder, except to the extent that such
failure to give notice shall materially adversely affect the indemnifying party
in the defense of any such claim or litigation. It is understood that the
indemnifying party shall not, in connection with any proceeding in the same
jurisdiction, be liable for fees or expenses of more than one separate firm of
attorneys at any time for all such indemnified parties. No indemnifying party
will, except with the consent of the indemnified party, consent to entry of any
judgment or enter into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect of such claim or litigation.
(d) Contribution. If for any reason the indemnification
provided for in the preceding paragraphs (a) and (b) is unavailable to an
indemnified party or insufficient to hold it completely harmless, other than as
expressly specified therein, then the indemnifying party shall contribute to the
amount paid or payable by the indemnified party as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect the relative
fault of the indemnified party and the indemnifying party, as well as any other
relevant equitable considerations. 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 not guilty of such fraudulent
misrepresentation. In no event shall the contribution obligation of Hampshire be
greater in amount than the aggregate dollar amount of the proceeds received by
it upon the sale of the Registrable Securities giving rise to such contribution
obligation.
7. Rule 144. As long as Hampshire owns Common Stock, if the Company is
required to file reports pursuant to Section 13(a) or 15(d) of the 1934 Act, it
will prepare and make publicly available in accordance with Rule 144(c)
promulgated under the Securities Act annual and quarterly financial statements,
together with a discussion and analysis of such financial statements in form and
substance substantially similar to those that would otherwise be required to be
included in reports required by Section 13(a) or 15(d) of the 1934 Act, as well
as any other information required thereby, in the time period that such filings
would have been required to have been made under the 1934 Act. The Company
further covenants that it will take such further action as Hampshire may
reasonably request, all to the extent required from time to time to enable such
Person to sell shares of Common Stock without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 promulgated
under the Securities Act. Upon the request of Hampshire, the Company shall
deliver to Hampshire a written certification of a duly authorized officer as to
whether it has complied with such requirements.
8. Miscellaneous.
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(a) Remedies. In the event of a breach by the Company or
Hampshire, of any of their obligations under this Agreement, Hampshire or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law and under this Agreement, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement. The
Company and Hampshire agree that monetary damages would not provide adequate
compensation for any losses incurred by reason of a breach by it of any of the
provisions of this Agreement and 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) Amendments and Waivers. This Agreement may be amended only
by a writing signed by the then current parties hereto. The Company may take any
action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company shall have obtained the written consent to
such amendment, action or omission to act, of Hampshire.
(c) Notices. Any notice or other communication in connection
with this Agreement or the shares of Common Stock shall be deemed to be
delivered and received if in writing (or in the form of a telex or telecopy)
addressed as provided below (i) when actually delivered, in person, (ii) if
telexed or telecopied to said address, when electronically confirmed, (iii) when
delivered if delivered by overnight courier or (iv) in the case of delivery by
mail, five (5) business days shall have elapsed after the same shall have been
deposited in the United States mails, postage prepaid and registered or
certified:
If to the Company, to:
Citi Trends, Inc.
102 Fahm Street
Savannah, Georgia 31401
Attention: R. Edward Anderson
Facsimile: (912) 443-3674
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
75 East 55th Street
New York, New York 10022
Attention: William F. Schwitter, Esq.
Facsimile: (212) 319-4090
If to Hampshire, to:
Hampshire Equity Partners II, L.P.
520 Madison Avenue, 33rd Floor
New York, New York 10022
Attention: Laurens M. Goff
Facsimile: (415) 362-1192
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(d) Assignments and Transfers by Hampshire. The provisions of
this Agreement shall be binding upon and inure to the benefit of Hampshire and
its respective successors and assigns. Hampshire may transfer or assign, in
whole or from time to time in part, to one or more persons its rights hereunder
in connection with the transfer of Registrable Securities by Hampshire to such
person, provided, that, Hampshire complies with all applicable laws thereto and
provides written notice of assignment to the Company promptly after such
assignment is effected.
(f) Assignments and Transfers by the Company. This Agreement
shall not be assigned by the Company without the prior written consent of
Hampshire, except that without the prior written consent of Hampshire, but after
notice duly given, the Company shall assign its rights and delegate its duties
hereunder to any successor-in-interest corporation, and such
successor-in-interest shall assume such rights and duties, in the event of a
merger or consolidation of the Company with or into another corporation or the
sale of all or substantially all of the Company's assets.
(g) Benefits of the Agreement. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective
permitted successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
(h) Counterparts; Signatures by Facsimile. This Agreement may
be executed in one or more counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same agreement and shall
become effective when counterparts have been signed by each party and delivered
to the other party. This Agreement, once executed by a party, may be delivered
to the other party hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
(i) Headings. The headings of this Agreement are for
convenience of reference only and shall not form part of, or affect the
interpretation of, this Agreement.
(j) Severability. In the event that any provision of this
Agreement is invalid or enforceable under any applicable statute or rule of law,
then such provision shall be deemed inoperative to the extent that it may
conflict therewith and shall be deemed modified to conform with such statute or
rule of law. Any provision hereof which may prove invalid or unenforceable under
any law shall not affect the validity or enforceability of any other provision
hereof.
(k) Further Assurances. Each party shall do and perform, or
cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry out the
intent and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
15
(l) Entire Agreement. This 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. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
(m) Specific Enforcement; Governing Law; Consent to
Jurisdiction. The Company and Hampshire acknowledge and agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent or cure breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof, this
being in addition to any other remedy to which any of them may be entitled by
law or equity. This Agreement shall be enforced, governed by and construed in
accordance with, the internal laws of the State of New York without regard to
the choice of law principles thereof. The parties hereto hereby agree that any
suit or proceeding arising directly and/or indirectly pursuant to or under this
instrument or the consummation of the transactions contemplated hereby, shall be
brought solely in a federal or state court located in the City, County and State
of New York. By its execution hereof, the parties hereby covenant and
irrevocably submit to the in personam jurisdiction of the federal and state
courts located in the City, County and State of New York and agree that any
process in any such action may be served upon any of them personally, or by
certified mail or registered mail upon them or their agent, return receipt
requested, with the same full force and effect as if personally served upon them
in New York City. The parties hereto waive any claim that any such jurisdiction
is not a convenient forum for any such suit or proceeding and any defense or
lack of in personam jurisdiction with respect thereto. In the event of any such
action or proceeding, the party prevailing therein shall be entitled to payment
from the other party hereto of its reasonable counsel fees and disbursements in
an amount judicially determined.
[Signature Pages Follow]
16
[COMPANY SIGNATURE PAGE]
IN WITNESS WHEREOF, the Company has caused its duly authorized officer
to execute this Registration Rights Agreement as of the date first above
written.
The Company: CITI TRENDS, INC.
By:_________________________
Name: R. Edward Anderson
Title: Chief Executive Officer
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[HAMPSHIRE SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned has caused its duly authorized
officer to execute this Registration Rights Agreement as of the date first above
written.
Hampshire: HAMPSHIRE EQUITY PARTNERS II, L.P.
By: Lexington Equity Partners II, L.P.,
its General Partner
By: Lexington Equity Partners Inc., its
General Partner
By:________________________________
Name:
Title:
Address:
____________________________________
____________________________________
____________________________________
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