Exhibit 10.7
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REGISTRATION RIGHTS AGREEMENT
Dated as of February 12, 2003
by and among Phillips-Van Heusen Corporation and
the Other Signatories Hereto
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS...................................................1
SECTION 1.1 Definitions.................................................1
ARTICLE II REGISTRATION RIGHTS...........................................4
SECTION 2.1 Shelf Registration..........................................4
SECTION 2.2 Demand Registration.........................................6
SECTION 2.3 Piggy-Back Registration.....................................8
SECTION 2.4 Registration Expenses......................................10
SECTION 2.5 Registration Procedures....................................10
ARTICLE III INDEMNIFICATION..............................................14
SECTION 3.1 ...........................................................14
ARTICLE IV OTHER REGISTRATION RIGHTS....................................16
SECTION 4.1 Best Registration Rights...................................16
SECTION 4.2 Assignment of Registration Rights..........................16
ARTICLE V MISCELLANEOUS................................................17
SECTION 5.1 Rule 144 Reporting.........................................17
SECTION 5.2 Holdback Agreement.........................................17
SECTION 5.3 Termination of Registration Rights.........................17
SECTION 5.4 Amendment and Modification.................................17
SECTION 5.5 Limitations on the CK Sellers..............................17
SECTION 5.6 Binding Effect; Entire Agreement...........................18
SECTION 5.7 Severability...............................................18
SECTION 5.8 Notices and Addresses......................................18
SECTION 5.9 Governing Law..............................................19
SECTION 5.10 Headings...................................................19
SECTION 5.11 Counterparts...............................................20
SECTION 5.12 Further Assurances.........................................20
SECTION 5.13 Remedies...................................................20
SECTION 5.14 Pronouns...................................................20
SECTION 5.15 Jurisdiction...............................................20
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of February 12, 2003 (this
"Agreement"), by and among Phillips-Van Heusen Corporation, a Delaware
corporation (the "Company"), Calvin Klein 2001 Revocable Trust (the "Klein
Revocable Trust"), Barry Schwartz ("Mr. Schwartz"), Trust for the Benefit of the
Issue of Calvin Klein (the "Klein Trust"), Trust for the Benefit of the Issue of
Barry Schwartz (the "Schwartz Trust"), Stephanie Schwartz-Ferdman
("Schwartz-Ferdman"), Jonathan Schwartz ("J. Schwartz" and, together with the
Klein Revocable Trust, Mr. Schwartz, the Klein Trust, the Schwartz Trust and
Schwartz-Ferdman, and their transferees, heirs, successors and assigns,
collectively the "CK Sellers"), and each of the Investors that signs a signature
page annexed hereto (referred to hereinafter collectively as the "Investors" and
individually as an "Investor").
RECITALS:
A. The Investors and the Company have entered into that certain Securities
Purchase Agreement, dated as of December 16, 2002 (the "Purchase Agreement"), by
and among the Company and the Investors pursuant to which the Investors will
purchase, contemporaneously with the execution and delivery of this Agreement,
10,000 shares of Series B Convertible Preferred Stock of the Company (the
"Series B Stock"), which will constitute all of the issued and outstanding
shares of Series B Stock.
B. It is a condition precedent to the purchase of such Series B Stock that
the Company grant to the Investors registration rights with respect to the
shares of Common Stock of the Company issuable on the conversion of the Series B
Stock.
C. The CK Sellers and the Company have entered into that certain Securities
Purchase Agreement, dated as of December 17, 2002 (the "CK Purchase Agreement"),
pursuant to which, among other things, the CK Sellers will acquire the PVH
Shares.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements contained herein and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
intending to be legally bound, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
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SECTION 1.1 Definitions. The following terms shall have the meanings
ascribed to them below:
"Affiliate" has the meaning set forth in the Investors' Rights Agreement.
"Agreement" means this Agreement, as amended, modified or supplemented from
time to time, in accordance with the terms hereof, together with any exhibits,
schedules or other attachments thereto.
"Board" or "Board of Directors" shall mean the Board of Directors of the
Company.
"CK Registrable Securities" means the PVH Shares and any additional shares
of Common Stock acquired by a CK Seller by way of a dividend, stock split,
preemptive rights, recapitalization or other distribution in respect of the PVH
Shares. As to any particular CK Registrable Securities, such securities shall
cease to be CK Registrable Securities when (i) a Registration Statement with
respect to the sale of such shares of Common Stock has been declared effective
by the Commission and such shares of Common Stock have been disposed of pursuant
to such effective Registration Statement, (ii) such shares of Common Stock shall
have been or could be sold under circumstances in which all of the applicable
conditions of Rule 144(k) (or any similar provisions then in force) under the
Securities Act are met, (iii) such shares of Common Stock have been otherwise
transferred and the Company has delivered a new certificate or other evidence of
ownership for such Common Stock not bearing a restrictive legend and not subject
to any stop order and such Common Stock may be publicly resold by the Person
receiving such certificate without complying with the registration requirements
of the Securities Act, or (iv) such shares of Common Stock shall have ceased to
be outstanding.
"CK Purchase Agreement" has the meaning set forth in the recitals.
"CK Sellers" has the meaning set forth in the preamble to this Agreement.
"Commission" means the United States Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
"Common Stock" means the common stock, par value $1.00 per share, of the
Company or other publicly traded securities into which the Series B Stock is now
or hereafter convertible.
"Company" has the meaning set forth in the preamble to this Agreement.
"Demand Period" means the period commencing on the date hereof and ending
on the date on which each of the Holders no longer owns Registrable Securities;
provided, that during the Shelf Effective Period, the Company shall be obligated
to effect an underwritten Demand Registration only if the managing underwriters
of the Registrable Securities sought to be included in the Demand Registration
are not willing to manage an underwritten offering of the Registrable Securities
pursuant to the Shelf Registration Statement.
"Demand Registration" has the meaning set forth in Section 2.2(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
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"Holder" has the meaning set forth in the Investors' Rights Agreement.
"Holders' Counsel" has the meaning set forth in Section 2.4.
"Indemnified Party" has the meaning set forth in Section 3.1(c).
"Indemnifying Party" has the meaning set forth in Section 3.1(c).
"Institutional Investor" has the meaning set forth in the Investors' Rights
Agreement.
"Investor" has the meaning set forth in the preamble of this Agreement.
"Investors' Rights Agreement" shall mean that certain Investors' Rights
Agreement, dated as of the date hereof, by and among the Company and the
Investors.
"J. Schwartz" has the meaning set forth in the preamble to this Agreement.
"Klein Revocable Trust" has the meaning set forth in the preamble to this
Agreement.
"Klein Trust" has the meaning set forth in the preamble to this Agreement.
"Mr. Schwartz" has the meaning set forth in the preamble to this Agreement.
"Other Transferee" has the meaning set forth in the Investors' Rights
Agreement.
"Person" means any natural person, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof.
"Piggy-Back Registration" has the meaning set forth in Section 2.3(a).
"Purchase Agreement" has the meaning set forth in the recitals.
"PVH Holders" means each of the Holders and CK Sellers.
"PVH Securities" means each of the Registrable Securities and CK
Registrable Securities.
"PVH Shares" has the meaning set forth in the CK Purchase Agreement.
"Registration Expenses" has the meaning set forth in Section 3.2.
"Registrable Securities" means the shares of Common Stock into which the
Series B Stock (now owned or hereafter acquired) are convertible and any
additional shares of Common Stock acquired by a Holder of Series B Stock by way
of a dividend, stock split, preemptive rights, recapitalization or other
distribution in respect of the Series B Stock. As to any particular Registrable
Securities, once issued such securities shall cease to be Registrable Securities
when (i) a
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Registration Statement with respect to the sale of such shares of Common Stock
has been declared effective by the Commission and such shares of Common Stock
have been disposed of pursuant to such effective Registration Statement, (ii)
such shares of Common Stock shall have been or could be sold under circumstances
in which all of the applicable conditions of Rule 144(k) (or any similar
provisions then in force) under the Securities Act are met, (iii) such shares of
Common Stock have been otherwise transferred and the Company has delivered a new
certificate or other evidence of ownership for such Common Stock not bearing a
restrictive legend and not subject to any stop order and such Common Stock may
be publicly resold by the Person receiving such certificate without complying
with the registration requirements of the Securities Act, or (iv) such shares of
Common Stock shall have ceased to be outstanding.
"Registration Statement" means any registration statement of the Company
which covers any of the PVH Securities pursuant to the provisions of this
Agreement, including the prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, all exhibits and
all material incorporated by reference in such Registration Statement.
"Schwartz-Ferdman" has the meaning set forth in the preamble to this
Agreement.
"Schwartz Trust" has the meaning set forth in the preamble to this
Agreement.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder, all as the same
shall be in effect at the time.
"Selling Holder" means a Holder who is selling Registrable Securities
pursuant to a Registration Statement under the Securities Act and, as
applicable, any CK Seller who is selling CK Registrable Securities pursuant to a
Registration Statement under the Securities Act.
"Series B Stock" has the meaning set forth in the recitals.
"Shelf Effective Period" has the meaning set forth in Section 2.1.
"Shelf Registration Statement" has the meaning set forth in Section 2.1.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal in an underwritten offering and not as part of such
dealer's market-making activities.
"Violation" has the meaning set forth in Section 3.1(a).
ARTICLE II
REGISTRATION RIGHTS
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SECTION 2.1 Shelf Registration.
(a) Shelf Registration. On or prior to the 90th day following the date
hereof, the Company shall prepare and file with the Commission a Registration
Statement for an offering to be made on a continuous basis pursuant to Rule 415
under the Securities Act, as such rule
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may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission, covering all of the PVH Securities held by each of
the PVH Holders (the "Shelf Registration Statement"). The Shelf Registration
Statement shall be on Form S-3 (or any successor form then in effect) under the
Securities Act (or another appropriate form reasonably acceptable to the
Holders) permitting registration of such PVH Securities for resale by each of
the PVH Holders in the manner or manners designated by them; provided, however
that the CK Sellers shall not have the right to participate in any underwritten
offering of Registrable Securities pursuant to Section 2.1(b) below. In no event
shall the Company's obligation to effect an underwriting offering pursuant to
Section 2.1(b) below reduce or relieve the Company of any obligation to effect
and maintain the Shelf Registration Statement for the benefit of the other PVH
Holders. The Company shall use its commercially reasonable efforts to effect
such registration (including, without limitation, appropriate qualification
under applicable blue sky or other state securities laws and appropriate
compliance with applicable regulations issued under the Securities Act and any
other governmental requirements or regulations) as promptly as possible after
the filing thereof, but in any event prior to the 180th day following the date
hereof, and shall use its commercially reasonable efforts to keep such Shelf
Registration Statement continuously effective under the Securities Act until
such time as when all of the PVH Securities covered by such Shelf Registration
Statement have been sold or may be sold without volume restrictions pursuant to
Rule 144(k) as determined by counsel to the Company pursuant to a written
opinion letter to such effect, addressed and acceptable to the Company's
transfer agent and each of the affected PVH Holders (the "Shelf Effective
Period").
(b) Underwriting. If, from time to time, the Holders owning Registrable
Securities equal to at least 25% of the originally issued Series B Stock so
elect, the prospectus relating to such Shelf Registration Statement shall be
supplemented so that the offering of all or part of the Registrable Securities
included therein shall be in the form of an underwritten public offering. Upon
receipt of the request to supplement the prospectus relating to such Shelf
Registration Statement, the Company will promptly give written notice of such
underwritten offering to all other Holders holding Registrable Securities
included in such Shelf Registration Statement. The right of any Holder to
include Registrable Securities in such underwritten registration shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting to the
extent provided herein. The Company shall (together with all Holders proposing
to distribute their securities through such underwriting) enter into an
underwriting agreement in customary form with the managing Underwriter selected
for such underwriting by the Company and reasonably acceptable to a majority of
the Holders proposing to distribute their securities through such underwriting.
Notwithstanding any other provision of this Section 2.1, if the managing
Underwriter advises the Company in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the Company shall so
advise all Holders of Registrable Securities to be included in such underwritten
offering and the Company shall include in such underwritten offering only the
aggregate amount of Registrable Securities that the Underwriter believes may be
sold and shall reduce the amount of Registrable Securities held by the Holders
to be included in such underwritten offering pro rata based on the Registrable
Securities held by such Holders at the time of filing such supplement to the
prospectus relating to the Shelf Registration Statement. The Registrable
Securities excluded from, or not included in, such underwritten offering shall
remain available for resale pursuant to such Shelf Registration Statement.
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(c) Limitations. No securities other than the PVH Securities shall be
included among the securities covered by the Shelf Registration Statement unless
all of the Holders of Registrable Securities covered by such Shelf Registration
Statement shall have consented in writing to the inclusion of securities to be
issued by the Company or securities held by other stockholders of the Company.
SECTION 2.2 Demand Registration.
(a) Demand Registration. At any time during the Demand Period, the
Holders shall have the right to require the Company to file a Registration
Statement under the Securities Act (a "Demand Registration") covering all or any
part of their respective Registrable Securities by delivering a written request
therefor to the Company specifying the number of Registrable Securities to be
included in such registration by such Holder or Holders and the intended method
of distribution thereof. In no event shall the Company's obligation to effect a
Demand Registration reduce or relieve the Company of any obligation to effect
and maintain the Shelf Registration Statement for the benefit of the other PVH
Holders. Upon the receipt of such demand, the Company will (i) within ten days,
give written notice of the Demand Registration to all other Holders and (ii) as
soon as practicable, use its commercially reasonable efforts to effect such
registration (including, without limitation, appropriate qualification under
applicable blue sky or other state securities laws and appropriate compliance
with applicable regulations issued under the Securities Act and any other
governmental requirements or regulations) of the Registrable Securities which
the Company has been so requested to register, for distribution in accordance
with such intended method of distribution, together with all or such portion of
the Registrable Securities of any Holder or Holders joining in such request as
are specified in a written request received by the Company within 20 days after
receipt of such written notice from the Company; provided, however, that the
Company shall not be obligated to take any action to effect any such Demand
Registration, pursuant to this Section 2.2(a):
(i) after the Company has effected three Demand Registrations
pursuant to this Section 2.2(a), which registrations are deemed effective
pursuant to Section 2.2(d) hereof;
(ii) if Registrable Securities equal to at least 25% of the
originally issued Series B Stock or having an aggregate market value of at least
$25,000,000 (which market value shall be determined by multiplying the number of
Registrable Securities to be included in the Demand Registration by the proposed
per share offering price) are not included in such Demand Registration;
(iii) if the Company shall have furnished to the Holders
requesting a registration pursuant to this Section 2.2(a) a certificate signed
by the Chairman of the Board of Directors or President of the Company stating
that in the good faith judgment of the Board of Directors it would be
detrimental to the Company and its stockholders for such registration statement
to be filed at such time, then the Company's obligation to make such filing
shall be deferred for a period not to exceed 180 days from the date of receipt
of written request in respect of such Demand
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Registration; provided, however, that the Company shall not exercise such right
more than once in any 12-month period;
(iv) during the period of time starting with the date 60 days
immediately prior to the Company's estimated date of filing of, and ending on
the date 90 days (or 180 days in the case of an underwritten public offering)
immediately following the effective date of any registration statement
pertaining to securities issued for the account of the Company (other than a
registration of securities in a Rule 145 transaction or with respect to an
employee benefit plan); provided that the Company is actively employing in good
faith all reasonable efforts to cause such registration statement to become
effective; provided, further, that the Company shall not exercise such right
more than once in any 12-month period; or
(v) of any Registrable Securities if such Registrable Securities
are then covered by an effective Registration Statement.
(b) Limitations. Except as provided in Section 2.2 (c)(i) below,
whenever the Company shall effect a Demand Registration pursuant to Section
2.2(a), no securities other than the Registrable Securities requested to be
included shall be included among the securities covered by such registration
unless all Holders of Registrable Securities to be covered by such registration
shall have consented in writing to the inclusion of securities to be issued by
the Company or securities held by other stockholders of the Company.
(c) Underwriting. If Holders of a majority of the Registrable
Securities to be included in such Demand Registration so elect, the offering of
the Registrable Securities pursuant to such Demand Registration shall be in the
form of an underwritten public offering and the Company shall so advise the
other Holders as part of the notice given pursuant to Section 2.2(a) hereof. In
such event, the right of any Holder to include 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 to the extent provided herein. The Company shall (together with all
Holders proposing to distribute their securities through such underwriting)
enter into an underwriting agreement in customary form with the managing
Underwriter selected for such underwriting by the Company and reasonably
acceptable to a majority of the Holders proposing to distribute their securities
through such underwriting.
(i) Right to Include Additional Shares in an Underwritten Demand
Registration. The Company, subject to this Section 2.2(c), may elect to include
in any Demand Registration in the form of an underwritten public offering,
securities of the Company for its own account and/or any other shares of Common
Stock which are requested to be included in such registration pursuant to the
exercise of piggyback registration rights granted by the Company after the date
hereof in accordance with the terms of this Agreement; provided, however, that
such inclusion shall be permitted only to the extent that it is pursuant to and
subject to the terms of the underwriting agreement or arrangements, if any,
entered into by the Holder or Holders making underwritten such Demand
Registration.
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(ii) Reduction. Notwithstanding any other provision of this
Section 2.2, if the managing Underwriter advises the Company in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Company shall so advise all Holders of Registrable
Securities to be included in such Demand Registration and the Company shall
include in such registration only the aggregate amount of Registrable Securities
that the Underwriter believes may be sold and shall reduce the amount of
securities to be included in such registration, (i) first by eliminating those
securities of any holders exercising piggyback registration rights granted by
the Company after the date hereof in accordance with the terms of this
Agreement, (ii) second by eliminating securities offered by the Company, and
(iii) third, by eliminating Registrable Securities, pro rata based on the
Registrable Securities held by such Holders at the time of filing the
Registration Statement
(d) Effective Registration. A registration will not be deemed to have
been effected as a Demand Registration unless it has been declared effective by
the Commission and the Company has complied in all material respects with its
obligations under this Agreement with respect thereto; provided that if, after
it has become effective, such registration or the related, offer, sale or
distribution of Registrable Securities thereunder is or becomes the subject of
any stop order, injunction or other order or requirement of the Commission or
any other governmental or administrative agency, or if any court prevents or
otherwise limits the sale of the Registrable Securities pursuant to the
registration, and, as a result thereof, two-thirds of the Registrable Securities
covered thereby have not been sold, then such registration will be deemed not to
have been effected. If (i) a registration requested pursuant to this Section 2.2
is deemed not to have been effected or (ii) the registration requested pursuant
to this Section 2.2 does not remain effective until such time as when two-thirds
of the Registrable Securities covered thereby have been sold or, with respect to
an underwritten offering of Registrable Securities, until 45 days after the
commencement of the distribution by the Holders of the Registrable Securities
included in such Registration Statement, then the Company shall continue to be
obligated to effect such registration pursuant to this Section 2.2 without
giving effect to such requested registration. Each Holder of Registrable
Securities shall be permitted to withdraw all or any part of its Registrable
Securities from a Demand Registration at any time prior to the effective date of
such Demand Registration, provided that such registration shall nonetheless
count as a Demand Registration under Section 2.2(a) hereof unless such
withdrawing Holder(s) agree(s) to be responsible for all reasonable fees and
expenses (including reasonable fees and expenses of counsel) incurred by the
Company prior to such withdrawal.
(e) Withdrawal. The Company agrees to supplement the prospectus
relating to the Shelf Registration Statement to withdraw any shares of the
Registrable Securities on the Shelf Registration Statement in the event that
such shares are to be sold pursuant to a Demand Registration.
SECTION 2.3 Piggy-Back Registration.
(a) Notice of Registration. If at any time the Company proposes to file
a registration statement under the Securities Act with respect to an offering by
the Company for its own account (other than a registration statement on Form S-4
or S-8 (or any substitute form that may
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be adopted by the Commission)) or for the account of any of its security
holders, the Company will give to each PVH Holder written notice of such filing
at least 20 days prior to filing such registration statement and such notice
shall offer the PVH Holders the opportunity to register the number of PVH
Securities as each such PVH Holder may request in writing. Upon the written
request of such PVH Holder made within ten days after receipt of such notice by
the Company (which request shall specify the PVH Securities intended to be
disposed of by such PVH Holder), the Company shall include in such registration
all of the PVH Securities specified in such request or requests in accordance
with the provisions of this Section 2.3 (a "Piggy-Back Registration").
(b) Underwriting. If the registration of which the Company gives notice
is for a registered public offering involving an underwriting, the Company shall
so advise the PVH Holders as a part of the written notice given pursuant to
Section 2.3(a) hereof. In such event, the right of any PVH Holder to
registration pursuant to Section 2.3(a) hereof shall be conditioned upon such
PVH Holder's participation in such underwriting and the inclusion of PVH
Securities in the underwriting to the extent provided herein. All PVH Holders
proposing to distribute their securities through such underwriting shall
(together with the Company) enter into an underwriting agreement in customary
form with the managing Underwriter selected for such underwriting by the
Company. The Company shall use its commercially reasonable efforts to cause the
managing Underwriter to permit the PVH Securities requested to be included in a
Piggy-Back Registration to be included on the same terms and conditions as any
similar securities of the Company (whether sold by the Company or a security
holder other than a PVH Holder) included therein and to permit the sale or other
disposition of such PVH Securities in accordance with the intended method of
distribution thereof. Notwithstanding anything to the contrary contained herein,
if the managing underwriter advises the Company in writing that in its
reasonable opinion the number of equity securities requested to be included in
such Piggy-Back Registration exceeds the number which can be sold in such
offering, the Company will include in such Piggy-Back Registration: (i) first,
the number of shares to be offered by the Company; (ii) second, the number of
shares of Common Stock requested to be included by the security holders of the
Company exercising their demand registration rights; and (iii) third, that
number of other shares of Common Stock proposed to be included in such
Piggy-Back Registration, pro rata among all other security holders of the
Company (including the PVH Holders) exercising their respective piggy-back
registration rights thereof based upon the aggregate number which such holders
(including the PVH Holders) propose to include in such Piggy-Back Registration;
and the Company shall so advise all Holders and CK Sellers of such limitation
(or exclusion, if applicable).
(c) Right to Terminate Registration.
(i) The Company shall have the right to terminate or withdraw any
registration initiated by it under this Section 2.3 prior to the effectiveness
of the related Registration Statement and shall have no obligation to register
any PVH Securities in connection with such registration, except to the extent
provided herein. The Registration Expenses of such withdrawn Piggy-Back
Registration shall be borne by the Company in accordance with Section 2.4
hereof.
(ii) Any PVH Holder shall have the right to withdraw its request
for inclusion of its PVH Securities in any Piggy-Back Registration by giving
written notice to the
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Company of its request to withdraw prior to the planned effective date of the
related Registration Statement.
(d) Failure to Effect. No registration effected under this
Section 2.3, and no failure to effect a registration under this Section 2.3,
shall relieve the Company of its obligation to effect and maintain a Demand
Registration upon the request of Holders pursuant to Section 2.2 hereof or the
Shelf Registration pursuant to Section 2.1 hereof, and no failure to effect a
registration under this Section 2.3 and to complete the sale of the PVH
Securities in connection therewith, shall relieve the Company of any other
obligation under this Agreement (including, without limitation, the Company's
obligations under Sections 2.4 and 3.1).
SECTION 2.4 Registration Expenses. In connection with registrations
pursuant to Sections 2.1, 2.2 and 2.3 hereof, the Company shall pay all of the
registration expenses incurred in connection with the registration thereunder
(the "Registration Expenses"), including, without limitation, all: (i)
reasonable registration and filing fees, (ii) reasonable fees and expenses of
compliance with securities or blue sky laws (including reasonable fees and
disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities and the CK Registrable Securities, as applicable), (iii)
reasonable processing, duplicating and printing expenses, (iv) of the Company's
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), (v) fees and
expenses incurred in connection with the listing of the Registrable Securities
and the CK Registrable Securities, as applicable, (vi) fees and disbursements of
counsel for the Company and fees and expenses for independent certified public
accountants retained by the Company (including the expenses of any comfort
letters or costs associated with the delivery by independent certified public
accountants of a comfort letter or comfort letters requested but not the cost of
any audit other than a year end audit), (vii) fees and expenses of any special
experts retained by the Company in connection with such registration, and (viii)
reasonable fees and expenses of one firm of counsel for the Holders to be
selected by the Holders of a majority of the Registrable Securities to be
included in such registration ("Holders' Counsel"). Notwithstanding the
foregoing, each Selling Holder shall be responsible for any underwriting fees,
discounts or commissions attributable to the sale of Registrable Securities of
such Selling Holder.
SECTION 2.5 Registration Procedures. In the case of each registration
effected by the Company pursuant to this Agreement, the Company will keep each
PVH Holder who is entitled to registration rights hereunder advised in writing
as to the initiation of each registration and as to the completion thereof. In
connection with any such registration:
(a) The Company will promptly prepare and file with the Commission a
Registration Statement on Form S-3 (or any successor form then in effect) under
the Securities Act (or another appropriate form reasonably acceptable to the
Holders) and use its commercially reasonable efforts to cause such Registration
Statement to become and remain effective until the completion of the
distribution contemplated thereby; provided, however, the Company shall not be
required to keep such Registration Statement effective for more than (i) 180
days in the case of registrations effected pursuant to Sections 2.2 and 2.3
hereof (or such shorter period which will
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terminate when all Registrable Securities covered by such Registration Statement
have been sold, or (ii) the Shelf Effective Period in the case of a Shelf
Registration Statement.
(b) The Company will promptly prepare and file with the Commission such
amendments and post-effective amendments to each Registration Statement as may
be necessary to keep such Registration Statement effective for as long as such
registration is required to remain effective pursuant to the terms hereof; cause
the prospectus to be supplemented by any required prospectus supplement, and, as
so supplemented, to be filed pursuant to Rule 424 under the Securities Act; and
comply with the provisions of the Securities Act applicable to it with respect
to the disposition of all Registrable Securities covered by such Registration
Statement during the applicable period in accordance with the intended methods
of disposition by the Selling Holders set forth in such Registration Statement
or supplement to the prospectus.
(c) The Company, at least 10 days prior to filing a Registration
Statement or at least five days prior to filing a prospectus or any amendment or
supplement to such Registration Statement or prospectus, will furnish to (i)
each Selling Holder, (ii) Holders' Counsel and (iii) each Underwriter, if any,
of the Registrable Securities covered by such Registration Statement copies of
such Registration Statement and each amendment or supplement as proposed to be
filed, together with exhibits thereto, which documents will be subject to
reasonable review and approval (which approval may not be unreasonably withheld)
by each of the foregoing within five days after delivery (except that such
review and approval of any prospectus or any amendment or supplement to such
Registration Statement or prospectus must be within three days), and thereafter,
furnish to such Selling Holders, Holders' Counsel and Underwriters, if any, such
number of copies of such Registration Statement, each amendment and supplement
thereto (in each case including all exhibits thereto and documents incorporated
by reference therein), the prospectus included in such Registration Statement
(including each preliminary prospectus) and such other documents or information
as such Selling Holders, Holders' Counsel or Underwriters may reasonably request
in order to facilitate the disposition of the Registrable Securities and/or CK
Registrable Securities (as applicable); provided, however, that notwithstanding
the foregoing, if the Company intends to file any prospectus, prospectus
supplement or prospectus sticker which does not make any material changes in the
documents already filed (including, without limitation, any prospectus under
Rule 430A or 424(b)), then Holders' Counsel will be afforded such opportunity to
review such documents prior to filing consistent with the time constraints
involved in filing such document, but in any event no less than one day.
(d) The Company will promptly notify each Selling Holder of any stop
order issued or threatened by the Commission and take all reasonable actions
required to prevent the entry of such stop order or to remove it at the earliest
possible moment if entered.
(e) On or prior to the date on which the Registration Statement is
declared effective by the Commission, the Company will use all commercially
reasonable efforts to (i) register or qualify the Registrable Securities and/or
CK Registrable Securities (as applicable) under such other securities or blue
sky laws of such jurisdictions in the United States as any Selling Holder
reasonably (in light of such Selling Holder's intended plan of distribution)
requests, and (ii) file all of the documents required to register such
Registrable Securities and/or CK Registrable Securities (as
-11-
applicable) with or approved by such other governmental agencies or authorities
in the United States as may be necessary by virtue of the business and
operations of the Company and do any and all other acts and things that may be
reasonably necessary or advisable to enable such Selling Holder to consummate
the disposition of the Registrable Securities and/or CK Registrable Securities
(as applicable) owned by such Selling Holder; provided that the Company will not
be required to (A) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this paragraph (e), (B)
subject itself to taxation in any such jurisdiction or (C) consent to general
service of process in any such jurisdiction.
(f) The Company will notify each Selling Holder, Holders' Counsel and
any Underwriter promptly and (if requested by any such Person) confirm such
notice in writing, (i) when a prospectus or any prospectus supplement or
post-effective amendment has been filed and, with respect to a Registration
Statement or any post-effective amendment, when the same has become effective,
(ii) of any request by the Commission or any other federal or state governmental
authority for amendments or supplements to a Registration Statement or
prospectus or for additional information to be included in any Registration
Statement or prospectus or otherwise, (iii) of the issuance by any state
securities commission or other regulatory authority of any order suspending the
qualification or exemption from qualification of any of the Registrable
Securities and/or CK Registrable Securities (as applicable) under state
securities or "blue sky" laws or the initiation of any proceedings for that
purpose, and (iv) of the happening of any event which makes any statement made
in a Registration Statement or related prospectus or any document incorporated
or deemed to be incorporated by reference therein untrue or which requires the
making of any changes in such Registration Statement, prospectus or documents so
that they 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 in the Registration Statement and prospectus not misleading in light
of the circumstances in which they were made; and, as promptly as practicable
thereafter, prepare and file with the Commission and furnish a supplement or
amendment to such prospectus so that, as thereafter deliverable to the
purchasers of such Registrable Securities and/or CK Registrable Securities, such
prospectus will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Each Selling Holder
hereby agrees to keep any disclosures under subsection (v) above confidential
until such time as a supplement or amendment is filed.
(g) The Company will make generally available an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act no later than
90 days after the end of the 12-month period beginning with the first day of the
Company's first fiscal quarter commencing after the effective date of a
Registration Statement, which earnings statement shall cover said 12-month
period, and which requirement will be deemed to be satisfied if the Company
timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under
the Exchange Act and otherwise complies with Rule 158 under the Securities Act.
(h) The Company will enter into customary agreements reasonably
satisfactory to the Company (including, if applicable, an underwriting agreement
in customary form and which is reasonably satisfactory to the Company) and take
such other actions as are reasonably
-12-
required in order to expedite or facilitate the disposition of such Registrable
Securities and/or CK Registrable Securities.
(i) The Company, during the period when the prospectus is required to
be delivered under the Securities Act, promptly will file all documents required
to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act.
(j) The Company will furnish to each Selling Holder a signed
counterpart, addressed to such Selling Holder, of (i) an opinion of counsel for
the Company, dated the effective date of the Registration Statement, and (ii)
"comfort" letters signed by the Company's independent public accountants who
have examined and reported on the Company's financial statements included in the
Registration Statement, covering substantially the same matters with respect to
the Registration Statement (and the prospectus included therein) and (in the
case of the accountants' "comfort" letters, with respect to events subsequent to
the date of the financial statements), in each case as are customarily covered
in opinions of issuer's counsel and in accountants' "comfort" letters delivered
to the Underwriters in underwritten public offerings of securities.
(k) The Company shall cause all such Registrable Securities and/or CK
Registrable Securities (as applicable) registered pursuant hereunder to be
listed on each securities exchange on which similar securities of the same class
issued by the Company are then listed.
(l) The Company shall otherwise comply with all applicable rules and
regulations of the Commission.
The Company may require each Selling Holder to promptly furnish in writing
to the Company such information regarding the distribution of such Person's PVH
Securities as the Company may from time to time reasonably request and such
other information as may be legally required in connection with such
registration including, without limitation, all such information as may be
requested by the Commission. The Company may exclude from such Registration
Statement any Selling Holder who fails to provide such information.
Each Selling Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 2.5(f)
hereof, such Selling Holder will forthwith discontinue the disposition of such
Person's PVH Securities pursuant to the Registration Statement covering such PVH
Securities until such Selling Holder's receipt of the copies of the supplemented
or amended prospectus contemplated by Section 2.5(f) hereof, and, if so directed
by the Company, such Selling Holder will deliver to the Company all copies,
other than permanent file copies then in such Selling Holder's possession, of
the most recent prospectus covering such Person's PVH Securities at the time of
receipt of such notice. In the event the Company shall give such notice, the
Company shall extend the period during which such Registration Statement shall
be maintained effective (including the period referred to in Section 2.5(a)
hereof) by the number of days during the period from and including the date of
the giving of notice pursuant to Section 2.5(f) hereof to the date when the
Company shall make available to the Selling Holders covered by such Registration
Statement a prospectus supplemented or amended to conform with the requirements
of Section 2.5(f) hereof.
-13-
ARTICLE III
INDEMNIFICATION
---------------
SECTION 3.1 In the event any PVH Securities are included in a Registration
Statement under Article II:
(a) The Company will indemnify and hold harmless each Selling Holder,
each of its officers, directors, partners and trustees, and each person
controlling such Selling Holder within the meaning of Section 15 of the
Securities Act, with respect to which registration, qualification or compliance
has been effected pursuant to Article II, and each Underwriter, if any, and each
Person who controls such Underwriter within the meaning of Section 15 of the
Securities Act, against all expenses (including reasonable costs of
investigation), claims, losses, damages or liabilities, or actions in respect
thereof, including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
Registration Statement, prospectus, or any amendment or supplement thereto, or
based on any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, or any
violation or alleged violation by the Company of the Securities Act, the
Exchange Act or any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law in
connection with any such registration, qualification or compliance
("Violation"), and the Company will reimburse each such Selling Holder, each of
its officers, directors, and partners and each Person controlling such Selling
Holder, each such Underwriter and each Person who controls any such Underwriter,
for any legal and any other expenses (as such legal or other expenses are
incurred) reasonably incurred in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action, provided that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement or omission or alleged untrue statement or omission, made in reliance
upon and in conformity with written information furnished to the Company by an
instrument duly executed by such Selling Holder, controlling Person or
Underwriter and stated to be specifically for use therein and provided further
that the Company will not be liable for the failure of any Selling Holder to
send a copy of a final prospectus, amendment or supplement to the claimant if
copies of such final prospectus, amendment or supplement were made available to
the Selling Holder by the Company and the claim would not have arisen if the
final prospectus, amendment or supplement had been delivered to the claimant.
(b) Each Selling Holder will, if such Person's PVH Securities are
included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers, each Underwriter, if any, of the Company's securities covered by such
a Registration Statement, each Person who controls the Company or such
Underwriter within the meaning of Section 15 of the Securities Act, and each
other Selling Holder, each of its officers, directors and partners and each
Person controlling such Selling Holder within the meaning of Section 15 of the
Securities Act, against all expenses (including reasonable costs of
investigation), claims, losses, damages or liabilities, or actions in respect
thereof, arising out of or based on any Violation, and will reimburse the
Company, such other Selling
-14-
Holders, such directors, officers, Persons, Underwriters or control Persons for
any legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action, in
each case to the extent, but only to the extent, that such Violation is made in
such Registration Statement, prospectus, amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by an
instrument duly executed by such Selling Holder and stated to be specifically
for use therein. A Selling Holder will not be required to enter into any
agreement or undertaking in connection with any registration under Article II
providing for any indemnification or contribution on the part of such Selling
Holder greater than the Selling Holder's obligations under this Section 3.1(b).
Notwithstanding anything in this Section 3.1(b), the aggregate amount which may
be recovered from any Selling Holder pursuant to the indemnification provided
for in this Section 3.1(b) shall be limited to the total proceeds received by
such Selling Holder from the sale of such Selling Holder's PVH Securities (net
of underwriting discounts and commissions) and the obligations of each Selling
Holder pursuant to this Section 3.1 shall be individual and not several or joint
and several.
(c) Each party entitled to indemnification under this Article III (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claims as to which indemnity may be sought and the
Indemnifying Party shall assume the defense thereof, including the employment of
counsel and payment of all fees and expenses. The failure of any Indemnified
Party to give notice as provided herein shall not relieve the Indemnifying Party
of its obligations under this Section 3.1, except to the extent that the
Indemnifying Party is actually prejudiced by such failure to give notice. Such
Indemnified Party shall have the right to retain separate counsel with respect
to the defense of a claim, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party unless (i) the Indemnifying Party has
agreed in writing to pay such fees and expenses, (ii) the Indemnifying Party has
failed to assume the defense and retain counsel within a reasonable time after
notice of such claim, or (iii) the Indemnified Party shall have reasonably
concluded that a conflict of interest between such Indemnified Party and
Indemnifying Party may exist in respect of such claim. It is understood,
however, that the Company shall, in connection with any one such claim, be
liable for the fees and expenses of only one separate firm of attorneys (in
addition to local counsel) at any time for all such Selling Holders not having
actual or potential differing interests, which firm shall be designated in
writing by a majority of the Selling Holders, and all such fees and expenses
shall be reimbursed within 30 days after such fees and expenses are incurred.
The Indemnifying Party will not, without the prior written consent of each
Indemnified Party, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action, suit or proceeding in respect of
which indemnification may be sought hereunder (whether or not such Indemnified
Party or any Person who controls such Indemnified Party is a party to such
claim, action, suit or proceeding), if such settlement, compromise or consent
(i) does not include an unconditional release of such Indemnified Party from all
liability arising out of such claim, action, suit or proceeding or (ii) requires
anything from the Indemnified Party other than the payment of money damages
which the Indemnifying Party has agreed to pay in full.
(d) If the indemnification provided for in this Section 3.1 is held by
a court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any losses,
-15-
claims, damages or liabilities referred to herein, the Indemnifying Party, in
lieu of indemnifying such Indemnified Party thereunder, shall to the extent
permitted by applicable law contribute to the amount paid or payable by such
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 Indemnifying
Party on the one hand and of the Indemnified Party on the other in connection
with the Violation(s) that resulted in such loss, claim, damage or liability, as
well as any other relevant equitable considerations. The relative fault of the
Indemnifying Party and of the Indemnified Party shall be determined by a court
of law by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the Indemnifying Party or by the Indemnified Party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. Notwithstanding anything in
this Section 3.1(d), the aggregate amount which may be recovered from any
Selling Holder pursuant to the contribution provided for in this Section 3.1(d)
shall be limited to the total proceeds received by such Selling Holder from the
sale of such Selling Holder's PVH Securities (net of underwriting discounts and
commissions), less any amounts recovered from such Selling Holder under Section
3.1(b).
ARTICLE IV
OTHER REGISTRATION RIGHTS
-------------------------
SECTION 4.1 Best Registration Rights. The Company shall not in the future
grant to any owner or purchaser of shares of capital stock of the Company
registration rights that would provide for terms that are in any manner more
favorable to the holder of such registration rights than the terms granted to
the PVH Holders herein other than the number of demand registrations or the
minimum amount of shares required to exercise demand registration rights (and
the Company shall not amend or waive any provision of any agreement providing
registration rights to others or take any other action whatsoever to provide for
terms that are more favorable to other holders than the terms granted to the PVH
Holders herein other than the number of demand registrations or the minimum
amount of shares required to exercise demand registration rights).
SECTION 4.2 Assignment of Registration Rights. Each Investor may assign its
rights, interests and obligations under this Agreement to any: (i) direct or
indirect partner, investor or participant of such Investor; (ii) other Investor;
(iii) Institutional Investor; (iv) Other Transferee; or (v) Affiliate of such
Investor, in connection with a transfer of shares of Series B Stock and/or
Common Stock to such Person in accordance with the Investors' Rights Agreement;
provided, that in the event of such assignment, the assignee shall agree in
writing to be bound by the provisions of this Agreement. The CK Sellers may not
assign their rights, interests and obligations under this Agreement without the
prior written consent of the Company and a majority of the Holders; provided,
that, notwithstanding the foregoing, the CK Sellers shall be allowed to assign
their rights, interests and obligations under this Agreement to family members,
entities either controlled by or under common control with such CK Seller,
financial institutions or institutional investors.
-16-
ARTICLE V
MISCELLANEOUS
-------------
SECTION 5.1 Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the PVH Securities to the public without registration,
the Company agrees, so long as there are outstanding PVH Securities, to use its
commercially reasonable efforts to:
(a) to file with the Commission in a timely manner all reports and
other documents as the Commission may prescribe under Section 13(a) or 15(d) of
the Exchange Act at any time while the Company is subject to such reporting
requirements of the Exchange Act; and
(b) furnish to the Holders forthwith upon a reasonable request a
written statement by the Company as to its compliance with the reporting
requirements of Rule 144 and of the Securities Act and the Exchange Act.
SECTION 5.2 Holdback Agreement. Subject to the provisions hereof, in the
event the Company proposes to enter into an underwritten public offering, each
Holder agrees to enter into a customary agreement with the managing Underwriters
not to effect any sale or distribution of equity securities of the Company, or
any securities convertible, exchangeable or exercisable for or into such
securities, during the period beginning on the date of such offering and
extending for up to 180 days if so requested by the Company and the
Underwriters; provided that such Holders shall not be so obligated unless the
Company and each other selling stockholder owning 5% or more of the Company's
outstanding Common Stock participating in such offering enter into the same or
comparable lock-up agreement for the same period and further shall not be so
obligated if such Holder then owns less than 5% of the outstanding Series B
Stock; provided, further, that the Holders shall not be obligated to enter into
more than one such agreement in any twelve-month period.
SECTION 5.3 Termination of Registration Rights. The rights granted under
this Agreement shall terminate, as to any Selling Holder, on the date on which
such Selling Holder no longer owns PVH Securities.
SECTION 5.4 Amendment and Modification. This Agreement may be amended,
modified and supplemented, and any of the provisions contained herein may be
waived, only by a written instrument signed by the Company and the Holders
holding a majority of the Registrable Securities; provided, that no amendment,
modification or supplement that adversely affects the rights of the CK Sellers
hereunder may be made without the consent of a majority of the CK Sellers. No
course of dealing between or among any Persons having any interest in this
Agreement will be deemed effective to modify, amend or discharge any part of
this Agreement or any rights or obligations of any Person under or by reason of
this Agreement.
SECTION 5.5 Limitations on the CK Sellers. In any three month period, the
CK Sellers shall only be permitted to sell in the aggregate, pursuant to the
Shelf Registration Statement, that number of shares of Common Stock equal to the
greater of: (i) 15% of the average reported
-17-
trading volume of the shares of Common Stock on the New York Stock Exchange
Composite Transaction Reporting System (if the Common Stock is not so listed on
any national securities exchange, on the Nasdaq National Market or the Nasdaq
SmallCap Market, then on the domestic over-the-counter market as reported by the
National Quotation Bureau Incorporated, or any similar successor organization)
as reported in the Wall Street Journal for the three month period immediately
preceding such sale or sales or (ii) the maximum such CK Seller would be
eligible to sell in accordance with Rule 144.
SECTION 5.6 Binding Effect; Entire Agreement. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns and executors, administrators
and heirs. This Agreement sets forth the entire agreement and understanding
between the parties as to the subject matter hereof and merges and supersedes
all prior discussions, agreements and understandings of any and every nature
among them.
SECTION 5.7 Severability. In the event that any provision of this Agreement
or the application of any provision hereof is declared to be illegal, invalid or
otherwise unenforceable by a court of competent jurisdiction, the remainder of
this Agreement shall not be affected except to the extent necessary to delete
such illegal, invalid or unenforceable provision unless that provision held
invalid shall substantially impair the benefits of the remaining portions of
this Agreement.
SECTION 5.8 Notices and Addresses. Any notice, demand, request, waiver, or
other communication under this Agreement shall be in writing and shall be deemed
to have been duly given on the date of service, if personally served or sent by
facsimile; on the business day after notice is delivered to a courier or mailed
by express mail, if sent by courier delivery service or express mail for next
day delivery; and on the third day after mailing, if mailed to the party to whom
notice is to be given, by first class mail, registered, return receipt
requested, postage prepaid and addressed as follows:
If to the Company:
Phillips-Van Heusen Corporation
200 Madison Avenue
New York, New York 10016
Attention: Vice President, General Counsel and Secretary
Facsimile: (212) 381-3970
Telephone: (212) 381-3509
with a copy (which shall not constitute notice) to:
Katten Muchin Zavis Rosenman
575 Madison Avenue
New York, New York 10022
Attention: David H. Landau, Esq.
Facsimile: (212) 940-8776
-18-
Telephone: (212) 940-8800
If to any Holder, at the most current address, and with a copy to be sent
to each additional address, given by such Holder to the Company in writing, and
copies (which shall not constitute notice) sent to:
Swidler Berlin Shereff Friedman, LLP
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
Attention: Morris Orens, Esq.
Fax: (212) 891-9598
If to any CK Seller
at the address set forth in the CK Purchase Agreement
with copies to:
Grubman, Indursky & Schindler, P.C.
152 West 57th Street
New York, New York 10019
Attention: Arthur Indursky, Esq.
Facsimile: (212) 554-0444
Telephone: (212) 554-0400
and
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
Attention: James H. Schwab, Esq.
Facsimile: (212) 757-3900
Telephone: (212) 373-3000
SECTION 5.9 Governing Law. This Agreement and (unless otherwise provided)
all amendments hereof and waivers and consents hereunder shall be governed by
the internal Laws of the State of New York, without regard to the conflicts of
Law principles thereof which would specify the application of the Law of another
jurisdiction.
SECTION 5.10 Headings. The headings in this Agreement are for convenience
of reference only and shall not constitute a part of this Agreement, nor shall
they affect their meaning, construction or effect.
-19-
SECTION 5.11 Counterparts. This Agreement may be executed via facsimile and
in any number of counterparts, each of which shall be deemed to be an original
instrument and all of which together shall constitute one and the same
instrument.
SECTION 5.12 Further Assurances. Each party shall cooperate and take such
action as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
SECTION 5.13 Remedies. In the event of a breach or a threatened breach by
any party to this Agreement of its obligations under this Agreement, any party
injured or to be injured by such breach will be entitled to specific performance
of its rights under this Agreement or to injunctive relief, in addition to being
entitled to exercise all rights provided in this Agreement and granted by law,
it being agreed by the parties that the remedy at law, inducing monetary
damages, for breach of any such provision will be inadequate compensation for
any loss and that any defense or objection in any action for specific
performance or injunctive relief that a remedy at law would be adequate is
waived.
SECTION 5.14 Pronouns. Whenever the context may require, any pronouns used
herein shall be deemed also to include the corresponding neuter, masculine or
feminine forms.
SECTION 5.15 Jurisdiction. Each of the PVH Holders and the Company (a)
hereby irrevocably and unconditionally submits to the exclusive jurisdiction of
any state or federal court sitting in New York County, New York for the purposes
of any suit, action or other proceeding arising out of this Agreement or the
subject matter hereof brought by the Company, or any PVH Holder and (b) hereby
waives and agrees not to assert, by way of motion, as a defense, or otherwise,
in any such suit, action or proceeding, any claim that it is not subject
personally to the jurisdiction of the above-named courts, that its property is
exempt or immune from attachment or execution, that the suit, action or
proceeding is brought in an inconvenient forum, that the venue of the suit,
action or proceeding is improper or that this Agreement or the subject matter
hereof may not be enforced in or by such court.
[Signature Pages Follow]
-20-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date and year first above written.
PHILLIPS-VAN HEUSEN CORPORATION
By: /s/ Mark D. Fischer
-------------------
Name: Mark D. Fischer
Title: Vice President, General Counsel,
Secretary
APAX EXCELSIOR VI, L.P.
By: Apax Excelsior VI Partners, L.P.,
Its General Partner
By: Apax Managers, Inc.
Its General Partner
By: /s/ David Landau
----------------
Name: David Landau
Title: Vice President
APAX EXCELSIOR VI-A C.V.
By: Apax Excelsior VI Partners, L.P.,
Its General Partner
By: Apax Managers, Inc.
Its General Partner
By: /s/ David Landau
----------------
Name: David Landau
Title: Vice President
APAX EXCELSIOR VI-B C.V.
By: Apax Excelsior VI Partners, L.P.,
Its General Partner
By: Apax Managers, Inc.
Its General Partner
By: /s/ David Landau
----------------
Name: David Landau
Title: Vice President
PATRICOF PRIVATE INVESTMENT CLUB III, L.P.
By: Apax Excelsior VI Partners, L.P.,
Its General Partner
By: Apax Managers, Inc.
Its General Partner
By: /s/ David Landau
----------------
Name: David Landau
Title: Vice President
APAX EUROPE V - A, L.P.
By: Apax Partners Europe Managers Ltd.
Its Investment Manager
By: /s/ Adrian Beecroft
-------------------
Name: Adrian Beecroft
Title: Managing Director
By: /s/ Clive Sherling
------------------
Name: Clive Sherling
Title: Managing Director
APAX EUROPE V - B, L.P.
By: Apax Partners Europe Managers Ltd.
Its Investment Manager
By: /s/ Adrian Beecroft
-------------------
Name: Adrian Beecroft
Title: Managing Director
By: /s/ Clive Sherling
------------------
Name: Clive Sherling
Title: Managing Director
APAX EUROPE V - C GmbH & Co. KG
By: Apax Partners Europe Managers Ltd.
Its Investment Manager
By: /s/ Adrian Beecroft
-------------------
Name: Adrian Beecroft
Title: Managing Director
By: /s/ Clive Sherling
------------------
Name: Clive Sherling
Title: Managing Director
APAX EUROPE V - D, L.P.
By: Apax Partners Europe Managers Ltd.
Its Investment Manager
By: /s/ Adrian Beecroft
-------------------
Name: Adrian Beecroft
Title: Managing Director
By: /s/ Clive Sherling
------------------
Name: Clive Sherling
Title: Managing Director
APAX EUROPE V - E, L.P.
By: Apax Partners Europe Managers Ltd.
Its Investment Manager
By: /s/ Adrian Beecroft
-------------------
Name: Adrian Beecroft
Title: Managing Director
By: /s/ Clive Sherling
------------------
Name: Clive Sherling
Title: Managing Director
APAX EUROPE V - F, C.V.
By: Apax Partners Europe Managers Ltd.
Its Investment Manager
By: /s/ Adrian Beecroft
-------------------
Name: Adrian Beecroft
Title: Managing Director
By: /s/ Clive Sherling
------------------
Name: Clive Sherling
Title: Managing Director
APAX EUROPE V - G, C.V.
By: Apax Partners Europe Managers Ltd.
Its Investment Manager
By: /s/ Adrian Beecroft
-------------------
Name: Adrian Beecroft
Title: Managing Director
By: /s/ Clive Sherling
------------------
Name: Clive Sherling
Title: Managing Director
APAX EUROPE V - 1, L.P.
By: Apax Partners Europe Managers Ltd.
Its Investment Manager
By: /s/ Adrian Beecroft
-------------------
Name: Adrian Beecroft
Title: Managing Director
By: /s/ Clive Sherling
------------------
Name: Clive Sherling
Title: Managing Director
APAX EUROPE V - 2, L.P.
By: Apax Partners Europe Managers Ltd.
Its Investment Manager
By: /s/ Adrian Beecroft
-------------------
Name: Adrian Beecroft
Title: Managing Director
By: /s/ Clive Sherling
------------------
Name: Clive Sherling
Title: Managing Director
By: /s/ Barry Schwartz
------------------
Barry Schwartz
By: /s/ Stephanie-Schwartz-Ferdman
------------------------------
Stephanie Schwartz-Ferdman
By: /s/ Jonathan Schwartz
---------------------
Jonathan Schwartz
CALVIN KLEIN 2001 REVOCABLE TRUST
By: /s/ Calvin Klein
-----------------
Calvin Klein, as trustee
TRUST F/B/O ISSUE OF CALVIN KLEIN
By: /s/ Richard E. Norton Jr.
-------------------------
Richard E. Norton Jr., as trustee
By: /s/ Paul Forte
--------------
Paul Forte, as trustee
TRUST F/B/O ISSUE OF BARRY SCHWARTZ
By: /s/ Sheryl Rona Schwartz
------------------------
Sheryl Rona Schwartz, as trustee