EXHIBIT 4.2
EXECUTION COPY
BANC OF AMERICA SECURITIES LLC
$75,000,000 AGGREGATE PRINCIPAL AMOUNT
GENESCO INC.
4.125% CONVERTIBLE SUBORDINATED DEBENTURES DUE 2023
REGISTRATION RIGHTS AGREEMENT
DATED JUNE 24, 2003
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REGISTRATION RIGHTS AGREEMENT, dated as of June 24, 2003, between
Genesco Inc., a Tennessee corporation (together with any successor entity,
herein referred to as the "COMPANY") and Banc of America Securities LLC as
representative of the several initial purchasers (the "INITIAL PURCHASERS")
under the Purchase Agreement (as defined below).
Pursuant to the Purchase Agreement, dated as of June 19, 2003, between
the Company and Banc of America Securities LLC as representative of the Initial
Purchasers (the "PURCHASE AGREEMENT"), the Initial Purchasers have agreed to
purchase from the Company $75,000,000 ($86,250,000 if the Initial Purchasers
exercise their option in full) aggregate principal amount of 4.125% Convertible
Subordinated Debentures Due 2023 (the "DEBENTURES"). The Debentures will be
convertible into fully paid, nonassessable shares of the Company's common stock,
par value $1.00 per share (the "COMMON STOCK") together with the rights (the
"RIGHTS") evidenced by such Common Stock to the extent provided in the Amended
and Restated Rights Agreement dated as of August 28, 2000 between the Company
and First Chicago Trust Company of New York (the "RIGHTS AGREEMENT"). The
Debentures will be convertible on the terms, and subject to the conditions, set
forth in the Indenture (as defined herein). To induce the Initial Purchasers to
purchase the Debentures, the Company has agreed to provide the registration
rights set forth in this Agreement pursuant to Section 5(j) of the Purchase
Agreement.
The parties hereby agree as follows:
1. Definitions. Capitalized terms used in this Agreement without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized terms shall have
the following meanings:
"AFFILIATE" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AGREEMENT" means this Registration Rights Agreement.
"AMENDMENT EFFECTIVENESS DEADLINE DATE" has the meaning set forth in
Section 2(e) hereof.
"BLUE SKY APPLICATION" has the meaning set forth in Section 6(a)(i)
hereof.
"BUSINESS DAY" has the meaning set forth in the Indenture.
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"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" has the meaning set forth in the preamble hereto.
"COMPANY" has the meaning set forth in the preamble hereto.
"DEBENTURES" has the meaning set forth in the preamble hereto.
"EFFECTIVENESS PERIOD" has the meaning set forth in Section 2(a)(iii)
hereof.
"EFFECTIVENESS TARGET DATE" has the meaning set forth in Section
2(a)(ii) hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"HOLDER" means any Person who owns, beneficially or otherwise, Transfer
Restricted Securities.
"INDEMNIFIED HOLDER" has the meaning set forth in Section 6(a) hereof.
"INDENTURE" means the Indenture, dated as of June 24, 2003 between the
Company and The Bank of New York, as trustee (the "TRUSTEE"), pursuant to which
the Debentures are to be issued, as such Indenture is amended, modified or
supplemented from time to time in accordance with the terms thereof.
"INITIAL PURCHASERS" has the meaning set forth in the preamble hereto.
"LIQUIDATED DAMAGES" has the meaning set forth in Section 3(a) hereof.
"LIQUIDATED DAMAGES PAYMENT DATE" means each June 30 and December 30.
"MAJORITY OF HOLDERS" means Holders holding over 50% of the aggregate
principal amount of Debentures outstanding; provided that, for the purpose of
this definition, a holder of shares of Common Stock which constitute Transfer
Restricted Securities and issued upon conversion, repurchase or redemption of
the Debentures shall be deemed to hold an aggregate principal amount at maturity
of Debentures (in addition to the principal amount at maturity of Debentures
held by such holder) equal to the quotient of (x) the number of such shares of
Common Stock held by such holder and (y) the conversion rate in effect at the
time of such conversion, repurchase or redemption as determined in accordance
with the Indenture.
"NASD" means the National Association of Securities Dealers, Inc.
"NOTICE AND QUESTIONNAIRE" means a written notice executed by the
respective Holder and delivered to the Company containing substantially the
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information called for by the Form of Selling Securityholder Notice and
Questionnaire attached as Annex A to the Offering Memorandum of the Company
issued June 19, 2003 relating to the Debentures.
"NOTICE HOLDER" has the meaning set forth in Section 2(b) hereof.
"PERSON" means any individual, partnership, corporation, company,
unincorporated organization, trust, joint venture or a government or agency or
political subdivision thereof.
"PURCHASE AGREEMENT" has the meaning set forth in the preamble hereto.
"PROSPECTUS" means the prospectus included in a Shelf Registration
Statement, as amended or supplemented by any prospectus supplement and by all
other amendments thereto, including post-effective amendments, and all material
incorporated by reference into such prospectus.
"RECORD HOLDER" means, with respect to any Liquidated Damages Payment
Date, each Person who is a Holder on the 15th day preceding the relevant
Liquidated Damages Payment Date. In the case of a Holder of shares of Common
Stock issued upon conversion, repurchase or redemption of the Debentures,
"Record Holder" shall mean each Person who is a Holder of shares of Common Stock
which constitute Transfer Restricted Securities on the 15th day preceding the
relevant Liquidated Damages Payment Date.
"REGISTRATION DEFAULT" has the meaning set forth in Section 3(a)
hereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHELF FILING DEADLINE" has the meaning set forth in Section 2(a)(i)
hereof.
"SHELF REGISTRATION STATEMENT" has the meaning set forth in Section
2(a)(i) hereof.
"SUBSEQUENT SHELF REGISTRATION STATEMENT" has the meaning set forth in
Section 2(c) hereof.
"SUSPENSION NOTICE" has the meaning set forth in Section 4(c) hereof.
"SUSPENSION PERIOD" has the meaning set forth in Section 4(c) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended, and the rules
and regulations of the Commission thereunder, in each case, as in effect on the
date the Indenture is qualified under the TIA.
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"TRANSFER RESTRICTED SECURITIES" means each Debenture and each share of
Common Stock issued upon conversion or repurchase of Debentures until the
earlier of:
(i) the date on which such Debenture or such share of
Common Stock issued upon conversion or repurchase of such
Debenture has been effectively registered under the Securities
Act and disposed of in accordance with the Shelf Registration
Statement;
(ii) the date on which such Debenture or such share
of Common Stock issued upon conversion or repurchase of such
Debenture is transferred in compliance with Rule 144 under the
Securities Act or may be sold or transferred by a person who
is not an affiliate of the Company pursuant to Rule 144(k)
under the Securities Act (or any other similar provision then
in force); or
(iii) the date on which such Debenture or such share
of Common Stock issued upon conversion or repurchase of such
Debenture ceases to be outstanding (whether as a result of
redemption, repurchase and cancellation, conversion or
otherwise).
"UNDERWRITTEN REGISTRATION" means a registration in which Debentures of
the Company are sold to an underwriter for reoffering to the public.
Unless the context otherwise requires, the singular includes the
plural, and words in the plural include the singular.
2. Shelf Registration.
(a) The Company shall:
(i) not later than 90 days after the date hereof (the
"SHELF FILING DEADLINE"), cause to be filed a registration
statement pursuant to Rule 415 under the Securities Act (the
"SHELF REGISTRATION STATEMENT"), which Shelf Registration
Statement shall provide for resales of all Transfer Restricted
Securities held by Holders that have provided the information
required pursuant to the terms of Section 2(b) hereof;
(ii) use its best efforts to cause the Shelf
Registration Statement to be declared effective by the
Commission as promptly as is practicable, but not later than
180 days after the date hereof (the "EFFECTIVENESS TARGET
DATE"); and
(iii) use its best efforts to keep the Shelf
Registration Statement continuously effective, supplemented
and amended as required by the provisions of Section 4(b)
hereof to the extent
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necessary to ensure that (A) it is available for resales by
the Holders of Transfer Restricted Securities entitled,
pursuant to Section 2(b) and Section 2(e) hereof, to the
benefit of this Agreement and (B) conforms with the
requirements of this Agreement and the Securities Act and the
rules and regulations of the Commission promulgated thereunder
as announced from time to time, for a period (the
"EFFECTIVENESS PERIOD") beginning on the date the Registration
Statement is declared effective by the Commission and ending
on the earliest to occur of:
(1) the date when all of the Transfer
Restricted Securities are disposed of pursuant to
Rule 144 under the Securities Act (or any other
similar provision then in effect);
(2) the date when all Holders of Transfer
Restricted Securities who are not affiliates of the
Company are able to sell all such Transfer Restricted
Securities immediately pursuant to Rule 144(k) under
the Securities Act (or any other similar provision
then in effect); or
(3) the date when all of the Transfer
Restricted Securities of those Holders that complete
and deliver the Notice and Questionnaire in a timely
manner are registered under the Shelf Registration
Statement and disposed of in accordance with the
Shelf Registration Statement.
(b) The Company shall furnish a written notice to each Holder
of the Transfer Restricted Securities at least 20 business days before
filing the Shelf Registration Statement and inform each Holder that to
have its Transfer Restricted Securities included in the Shelf
Registration Statement it must deliver a completed Notice and
Questionnaire to the Company. At the time the Shelf Registration
Statement is declared effective, each Holder that has delivered a
completed Notice and Questionnaire to the Company (a "NOTICE HOLDER")
on or prior to the date ten (10) Business Days prior to such time of
effectiveness shall be named as a selling securityholder in the Shelf
Registration Statement and the related Prospectus in such a manner as
to permit such Holder to deliver such Prospectus to purchasers of
Transfer Restricted Securities in accordance with applicable law. None
of the Company's securityholders (other than the Holders of Transfer
Restricted Securities) shall have the right to include any of the
Company's securities in the Shelf Registration Statement.
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(c) If the Shelf Registration Statement or any Subsequent
Shelf Registration Statement ceases to be effective or fails to be
usable for any reason at any time during the Effectiveness Period
(other than because all Transfer Restricted Securities registered
thereunder shall have been resold pursuant thereto or shall have
otherwise ceased to be Transfer Restricted Securities), the Company
shall use its best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within
sixty (60) days of such cessation of effectiveness amend the Shelf
Registration Statement in a manner reasonably expected to obtain the
withdrawal of the order suspending the effectiveness thereof, or file
an additional Shelf Registration Statement covering all of the
securities that as of the date of such filing are Transfer Restricted
Securities ( a "SUBSEQUENT SHELF REGISTRATION STATEMENT"). If a
Subsequent Shelf Registration Statement is filed, the Company shall use
its best efforts to cause the Subsequent Shelf Registration Statement
to become effective as promptly as is practicable after such filing and
to keep such Registration Statement (or subsequent Shelf Registration
Statement) continuously effective until the end of the Effectiveness
Period.
(d) The Company shall supplement and amend the Shelf
Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used by the Company
for such Shelf Registration Statement, if required by the Securities
Act or as reasonably requested by the Initial Purchasers or by the
Trustee on behalf of the Holders of the Transfer Restricted Securities
covered by such Shelf Registration Statement.
(e) Each Holder agrees that if such Holder wishes to sell
Transfer Restricted Securities pursuant to a Shelf Registration
Statement and related Prospectus, it will do so only in accordance with
this Section 2(e), and the procedures set forth in Section 4 hereof.
Each Holder wishing to sell Transfer Restricted Securities pursuant to
a Shelf Registration Statement and related Prospectus agrees to deliver
a Notice and Questionnaire to the Company at least three (3) Business
Days prior to any intended distribution of Transfer Restricted
Securities under the Shelf Registration Statement. From and after the
date the Shelf Registration Statement is declared effective the Company
shall, as promptly as practicable after the date a Notice and
Questionnaire is delivered, and in any event upon the later of (x)
fifteen (15) Business Days after such date (but no earlier than fifteen
(15) Business Days after effectiveness) or (y) fifteen (15) Business
Days after the expiration of any Suspension Period in effect when the
Notice and Questionnaire is delivered or put into effect within fifteen
(15) Business Days of such delivery date:
(i) if required by applicable law, file with the SEC
a post-effective amendment to the Shelf Registration Statement
or prepare and, if required by applicable law, file a
supplement to the related
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Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required
document so that the Holder delivering such Notice and
Questionnaire is named as a selling securityholder in the
Shelf Registration Statement and the related Prospectus in
such a manner as to permit such Holder to deliver such
Prospectus to purchasers of the Transfer Restricted Securities
in accordance with applicable law and, if the Company shall
file a post-effective amendment to the Shelf Registration
Statement, use its best efforts to cause such post-effective
amendment to be declared effective under the Securities Act as
promptly as is practicable, but in any event by the date (the
"AMENDMENT EFFECTIVENESS DEADLINE DATE") that is sixty (60)
days after the date such post-effective amendment is required
by this clause to be filed;
(ii) provide such Holder copies of any documents
filed pursuant to Section 2(e)(i); and
(iii) notify such Holder as promptly as practicable
after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to Section 2(e)(i);
provided that if such Notice and Questionnaire is delivered during a Suspension
Period, the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) above upon expiration of the Suspension Period in accordance with Section
4(b). Notwithstanding anything contained herein to the contrary, (i) the Company
shall be under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Registration Statement or related Prospectus and
(ii) the Amendment Effectiveness Deadline Date shall be extended by up to ten
(10) Business Days from the expiration of a Suspension Period (and the Company
shall incur no obligation to pay Liquidated Damages during such extension) if
such Suspension Period shall be in effect on the Amendment Effectiveness
Deadline Date.
3. Liquidated Damages.
(a) If:
(i) the Shelf Registration Statement is not filed
with the Commission prior to or on the Shelf Filing Deadline;
(ii) the Shelf Registration Statement has not been
declared effective by the Commission prior to or on the
Effectiveness Target Date;
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(iii) the Company has failed to perform its
obligations set forth in Section 2(e) within the time period
required therein;
(iv) any post-effective amendment to a Shelf
Registration filed pursuant to Section 2(e)(i) has not become
effective under the Securities Act on or prior to the
Amendment Effectiveness Deadline Date;
(v) except as provided in Section 4(b)(i) hereof, the
Shelf Registration Statement is filed and declared effective
but, during the Effectiveness Period, shall thereafter cease
to be effective or fail to be usable for its intended purpose
without being succeeded within ten Business Days by a
post-effective amendment to the Shelf Registration Statement,
a supplement to the Prospectus or a report filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act that cures such failure and, in the case of a
post-effective amendment, is itself immediately declared
effective; or
(vi) any Suspension Period exceeds 60 consecutive
days or Suspension Periods exceed an aggregate of 90 days in
any 360-day period,
(each such event referred to in foregoing clauses (i) through (vi), a
"REGISTRATION DEFAULT"), the Company hereby agrees to pay interest ("LIQUIDATED
DAMAGES") with respect to the Transfer Restricted Securities from and including
the day following the Registration Default to but excluding the earlier of (1)
the day on which the Registration Default has been cured and (2) the date the
Shelf Registration Statement is no longer required to be kept effective,
accruing at a rate:
(A) in respect of the Debentures, to each
holder of Debentures who has delivered a completed
Notice and Questionnaire to the Company, equal to
0.50% per annum of the aggregate principal amount of
a Debenture; provided that in no event shall
Liquidated Damages accrue at a rate per year
exceeding 0.50% of the aggregate principal amount of
a Debenture; and
(B) in respect of any shares of Common
Stock, to each holder of shares of Common Stock
issued upon conversion of Debentures who has
delivered a completed Notice and Questionnaire to the
Company, equal to 0.50% per annum of the aggregate
principal amount of each Debenture converted;
provided that in no event shall Liquidated Damages
accrue at a rate per year exceeding
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0.50% of the aggregate principal amount of the
converted Debentures.
(b) All accrued Liquidated Damages shall be paid semiannually
in arrears to Record Holders by the Company on each Liquidated Damages
Payment Date. Upon the cure of all Registration Defaults relating to
any particular Debenture or share of Common Stock, the accrual of
Liquidated Damages with respect to such Debenture or share of Common
Stock will cease.
All obligations of the Company set forth in this Section 3 that are
outstanding with respect to any Transfer Restricted Security at the time such
security ceases to be a Transfer Restricted Security shall survive until such
time as all such obligations with respect to such Transfer Restricted Security
shall have been satisfied in full.
The Liquidated Damages set forth above shall be the exclusive monetary
remedy available to the Holders of Transfer Restricted Securities for each
Registration Default.
4. Registration Procedures.
(a) In connection with the Shelf Registration Statement, the
Company shall comply with all the provisions of Section 4(b) hereof and
shall use its best efforts to effect such registration to permit the
sale of the Transfer Restricted Securities, and pursuant thereto, shall
as expeditiously as possible prepare and file with the Commission a
Shelf Registration Statement relating to the registration on any
appropriate form under the Securities Act.
(b) In connection with the Shelf Registration Statement and
any Prospectus required by this Agreement to permit the sale or resale
of Transfer Restricted Securities, the Company shall:
(i) Subject to any notice by the Company in
accordance with this Section 4(b) of the existence of any fact
or event of the kind described in Section 4(b)(iii)(D), use
its best efforts to keep the Shelf Registration Statement
continuously effective during the Effectiveness Period; upon
the occurrence of any event that would cause the Shelf
Registration Statement or the Prospectus contained therein (A)
to contain a material misstatement or omission or (B) not to
be effective and usable for resale of Transfer Restricted
Securities during the Effectiveness Period, the Company shall
file promptly an appropriate amendment to the Shelf
Registration Statement, a supplement to the Prospectus or a
report filed with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, in the case of clause
(A), correcting any such
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misstatement or omission, and, in the case of either clause
(A) or (B), use its best efforts to cause such amendment to be
declared effective and the Shelf Registration Statement and
the related Prospectus to become usable for their intended
purposes as soon as practicable thereafter. Notwithstanding
the foregoing, the Company may suspend the effectiveness of
the Shelf Registration Statement by written notice to the
Holders for a period not to exceed 60 consecutive days (each
such period, a "SUSPENSION PERIOD") or Suspension Periods
exceed an aggregate of 90 days in any 360-day period if:
(x) an event occurs and is continuing as a result of
which the Shelf Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated
by reference therein would, in the Company's judgment, contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading; and
(y) the Company determines in good faith that the
disclosure of such event at such time would be detrimental to
the Company and its subsidiaries.
The Company shall not be required to specify in the written notice to
the Holders the nature of the event giving rise to the Suspension
Period.
(ii) Prepare and file with the Commission such
amendments and post-effective amendments to the Shelf
Registration Statement as may be necessary to keep the Shelf
Registration Statement effective during the Effectiveness
Period; 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 to
comply fully with the applicable provisions of Rules 424 and
430A under the Securities Act in a timely manner; and comply
with the provisions of the Securities Act with respect to the
disposition of all Debentures covered by the Shelf
Registration Statement during the applicable period in
accordance with the intended method or methods of distribution
by the sellers thereof set forth in the Shelf Registration
Statement or supplement to the Prospectus.
(iii) Advise the selling Holders promptly and, if
requested by such selling Holders, to confirm such advice in
writing (subject to Section 4(c)):
(A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been
filed,
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and, with respect to the Shelf Registration Statement
or any post-effective amendment thereto, when the
same has become effective,
(B) of any request by the Commission for
amendments to the Shelf Registration Statement or
amendments or supplements to the Prospectus or for
additional information relating thereto,
(C) of the issuance by the Commission of any
stop order suspending the effectiveness of the Shelf
Registration Statement under the Securities Act or of
the suspension by any state securities commission of
the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction,
or the initiation of any proceeding for any of the
preceding purposes, or
(D) of the existence of any fact or the
happening of any event, during the Effectiveness
Period, that makes any statement of a material fact
made in the Shelf Registration Statement, the
Prospectus, any amendment or supplement thereto, or
any document incorporated by reference therein
untrue, or that requires the making of any additions
to or changes in the Shelf Registration Statement or
the Prospectus in order to make the statements
therein not misleading.
If at any time the Commission shall issue any stop order suspending the
effectiveness of the Shelf Registration Statement, or any state
securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification of
the Transfer Restricted Securities under state securities or Blue Sky
laws, the Company shall use its best efforts to obtain the withdrawal
or lifting of such order at the earliest possible time and will provide
to each Holder who is named in the Shelf Registration Statement prompt
notice of the withdrawal of any such order.
(iv) Make available at reasonable times for
inspection by one or more representatives of the selling
Holders, designated in writing by a Majority of Holders whose
Transfer Restricted Securities are included in the Shelf
Registration Statement, and any attorney or accountant
retained by such selling Holders, all financial and other
records, pertinent corporate documents and properties of the
Company as shall be reasonably necessary to enable them to
conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act, and cause the Company's
officers, directors, managers and employees to supply
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all information reasonably requested by any such
representative or representatives of the selling Holders,
attorney or accountant in connection therewith; provided,
however, that the Company shall have no obligation to deliver
information to any selling Holder or representative pursuant
to this Section 4(b)(iv) unless such selling Holder or
representative shall have executed and delivered a
confidentiality agreement in a form acceptable to the Company
relating to such information.
(v) If requested by any selling Holders, promptly
incorporate in the Shelf Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if
necessary, such information as such selling Holders may
reasonably request to have included therein, including,
without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities.
(vi) Furnish to each selling Holder upon their
request, without charge, at least one copy of the Shelf
Registration Statement, as first filed with the Commission,
and of each amendment thereto (and any documents incorporated
by reference therein or exhibits thereto (or exhibits
incorporated in such exhibits by reference) as such Person may
request).
(vii) Deliver to each selling Holder, without charge,
as many copies of the Prospectus (including each preliminary
Prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; subject to delivery and
continuing effectiveness of any Suspension Notice delivered
pursuant to Section 4(c), the Company hereby consents to the
use of the Prospectus and any amendment or supplement thereto
by each of the selling Holders in connection with the offering
and the sale of the Transfer Restricted Securities covered by
the Prospectus or any amendment or supplement thereto.
(viii) Before any public offering of Transfer
Restricted Securities, cooperate with the selling Holders and
their counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions in the
United States as the selling Holders may reasonably request
and do any and all other acts or things necessary or advisable
to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the Shelf
Registration Statement; provided, however, that the Company
shall not be required (A) to register or qualify as a foreign
corporation or a dealer of securities where it is not now so
qualified or to take any action that would subject it to the
service
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of process in any jurisdiction where it is not now so subject
or (B) to subject itself to general or unlimited service of
process or to taxation in any such jurisdiction if they are
not now so subject.
(ix) Cooperate with the selling Holders to facilitate
the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not
bearing any restrictive legends (unless required by applicable
securities laws); and enable such Transfer Restricted
Securities to be in such denominations and registered in such
names as the Holders may request at least two Business Days
before any sale of Transfer Restricted Securities.
(x) Use its best efforts to cause the Transfer
Restricted Securities covered by the Shelf Registration
Statement to be registered with or approved by such other U.S.
governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof to consummate the
disposition of such Transfer Restricted Securities.
(xi) Subject to Section 4(b)(i) hereof, if any fact
or event contemplated by Section 4(b)(iii)(D) hereof shall
exist or have occurred, use its best efforts to prepare a
supplement or post-effective amendment to the Shelf
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of
Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances in which they are made, not misleading.
(xii) Provide CUSIP numbers for all Transfer
Restricted Securities not later than the effective date of the
Shelf Registration Statement and provide the Trustee under the
Indenture with certificates for the Debentures that are in a
form eligible for deposit with The Depository Trust Company.
(xiii) 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 that is required to
be retained in accordance with the rules and regulations of
the NASD.
(xiv) Otherwise use its reasonable best efforts to
comply with all applicable rules and regulations of the
Commission and all reporting requirements under the rules and
regulations of the Exchange Act.
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(xv) Cause the Indenture to be qualified under the
TIA not later than the effective date of the Shelf
Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the
holders of Debentures to effect such changes to the Indenture
as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use its
best efforts to cause the Trustee thereunder to execute all
documents that may be required to effect such changes and all
other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a
timely manner.
(xvi) Cause all Common Stock covered by the Shelf
Registration Statement to be listed or quoted, as the case may
be, on each securities exchange or automated quotation system
on which Common Stock is then listed or quoted.
(xvii) Provide to each Holder upon written request
each document filed with the Commission pursuant to the
requirements of Section 13 and Section 15 of the Exchange Act
after the effective date of the Shelf Registration Statement,
unless such document is available through the Commission's
EDGAR system.
(c) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice (a "SUSPENSION NOTICE") from
the Company of the existence of any fact of the kind described in
Section 4(b)(iii)(D) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the Shelf
Registration Statement until:
(i) such Holder has received copies of the
supplemented or amended Prospectus contemplated by Section
4(b)(xi) hereof; or
(ii) such Holder is advised in writing by the Company
that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that
are incorporated by reference in the Prospectus.
If so directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice of suspension.
(d) Each Holder agrees by acquisition of the Transfer
Restricted Securities, that no Holder shall be entitled to sell any of
such Transfer Restricted Securities pursuant to a Registration
Statement, or to receive a Prospectus relating thereto, unless such
Holder has furnished the Company
15
with a Notice and Questionnaire as required pursuant to Section 2(e)
hereof (including the information required to be included in such
Notice and Questionnaire) and the information set forth in the next
sentence. Each Notice Holder agrees promptly to furnish to the Company
all information required to be disclosed in order to make the
information previously furnished to the Company by such Notice Holder
not misleading and any other information regarding such Notice Holder
and the distribution of such Transfer Restricted Securities as the
Company may from time to time reasonably request in writing. Any sale
of any Transfer Restricted Securities by any Holder shall constitute a
representation and warranty by such Holder that the information
relating to such Holder and its plan of distribution is as set forth in
the Prospectus delivered by such Holder in connection with such
disposition, that such Prospectus does not as of the time of such sale
contain any untrue statement of a material fact relating to or provided
by such Holder to its plan of distribution and that such Prospectus
does not as of the time of such sale omit to state any material fact
relating to or provided by such Holder or its plan of distribution
necessary to make the statements in such Prospectus, in the light of
the circumstances under which they were made not misleading.
5. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement shall be borne by the Company regardless
of whether a Shelf Registration Statement becomes effective, including,
without limitation:
(i) all registration and filing fees and expenses
(including filings made with the NASD);
(ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws;
(iii) all expenses of printing (including printing of
Prospectuses and certificates for the Common Stock to be
issued upon conversion of the Debentures) and the Company's
expenses for messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel to the
Company;
(v) all application and filing fees in connection
with listing (or authorizing for quotation) the Common Stock
on a national securities exchange or automated quotation
system pursuant to the requirements hereof; and
16
(vi) all fees and disbursements of independent
certified public accountants of the Company.
The Company shall bear its internal expenses (including, without
limitation, all salaries and expenses of their officers and employees performing
legal, accounting or other duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
(b) In connection with any Registration Statement required by
this Agreement (including, without limitation, the Shelf Registration
Statement), the Company will reimburse the Initial Purchasers and the
Holders of Transfer Restricted Securities being registered pursuant to
the Shelf Registration Statement for the reasonable fees and
disbursements of not more than one counsel who may be chosen by a
Majority of Holders for whose benefit such Registration Statement is
being prepared; provided that such expenses do not exceed $75,000, and
all expenses over that amount shall be borne by the Notice Holder.
Except as set forth herein, all fees and expenses of counsel to the
Notice Holders shall be borne by the Notice Holders.
6. Indemnification And Contribution.
(a) The Company agrees to indemnify and hold harmless each
Holder of Transfer Restricted Securities by the Shelf Registration
Statement (including each Initial Purchasers), its directors, officers,
and employees and each person, if any, who controls any such Holder
within the meaning of the Securities Act or the Exchange Act (each, an
"INDEMNIFIED HOLDER"), against any loss, claim, damage, liability or
expense, joint or several, or any action in respect thereof (including,
but not limited to, any loss, claim, damage, liability or action
relating to resales of the Transfer Restricted Securities), to which
such Indemnified Holder may become subject, insofar as any such loss,
claim, damage, liability or action arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement
of a material fact contained in (A) the Shelf Registration
Statement as originally filed or in any amendment thereof, in
any Prospectus, or in any amendment or supplement thereto or
(B) any blue sky application or other document or any
amendment or supplement thereto prepared or executed by the
Company (or based upon written information furnished by or on
behalf of the Company expressly for use in such blue sky
application or other document or amendment on supplement)
filed in any jurisdiction specifically for the purpose of
qualifying any or all of the Transfer Restricted Securities
under the securities law of any state or other jurisdiction
(such application or document being hereinafter called a "BLUE
SKY APPLICATION"); or
17
(ii) the omission or alleged omission to state
therein 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,
and agrees to reimburse each Indemnified Holder promptly upon demand for any
legal or other expenses reasonably incurred by such Indemnified Holder in
connection with investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or action; provided, however, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or expense arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information furnished to
the Company by or on behalf of such Holder (or its related Indemnified Holder)
specifically for use therein; provided, further, that the foregoing indemnity
agreement with respect to any prospectus shall not inure to the benefit of a
Holder who failed to deliver a prospectus, as then amended or supplemented (so
long as the prospectus and any amendment or supplement thereto was provided by
the Company to the Holder on a timely basis to permit proper delivery upon
confirmation of a sale), to the person asserting any losses, claims, damages,
liabilities or judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in any prospectus, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, if
such material misstatement or omission or alleged material misstatement or
omission was cured in the prospectus, as so amended or supplemented. The
foregoing indemnity agreement is in addition to any liability which the Company
may otherwise have.
(b) Each Holder, severally and not jointly, agrees to
indemnify and hold harmless the Company, its directors, officers and
employees and each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act to the same extent as
the foregoing indemnity from the Company to each such Holder, but only
with reference to written information relating to such Holder furnished
to the Company by or on behalf of such Holder specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement set forth in this Section shall be in addition to
any liabilities which any such Holder may otherwise have. In no event
shall any Holder, its directors, officers or any person who controls
such Holder be liable or responsible for any amount in excess of the
amount by which the total amount received by such Holder with respect
to its sale of Transfer Restricted Securities pursuant to a Shelf
Registration Statement exceeds (i) the amount paid by such Holder for
such Transfer Restricted Securities and (ii) the amount of any damages
that such Holder, its directors, officers or any person who controls
such Holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission.
18
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 6, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 6 except to the extent it has been materially prejudiced
by such failure and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 6. If
any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that
it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim
or action, the indemnifying party shall not be liable to the
indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that the indemnified party shall have the right to employ a
single counsel to represent jointly the indemnified party and its
officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be
sought against the indemnifying party under this Section 6 if the
indemnified party seeking indemnification shall have been advised by
legal counsel that there may be one or more legal defenses available to
such indemnified party and its respective officers, employees and
controlling persons that are different from or additional to those
available to the indemnifying party, and in that event, the fees and
expenses reasonably incurred of such separate counsel shall be paid by
the indemnifying party. No indemnifying party shall:
(i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably
withheld) settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such
claim or action), unless such settlement, compromise or
consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action,
suit or proceeding, or
(ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with its written
consent or if
19
there be a final judgment for the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss of
liability by reason of such settlement or judgment.
(d) The indemnifying party under this Section shall not be
liable for any settlement of any proceeding effected without its
written consent, which shall not be withheld unreasonably, but if
settled with such consent or if there is a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified
party against any loss, claim, damage, liability or expense by reason
of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by Section 6(c) hereof, the
indemnifying party agrees that it shall be liable for any settlement of
any proceeding effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at
least 45 days prior to such settlement being entered into and (iii)
such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement, compromise or consent to the
entry of judgment in any pending or threatened action, suit or
proceeding in respect of which any indemnified party is or could have
been a party and indemnity was or could have been sought hereunder by
such indemnified party, unless such settlement, compromise or consent
(x) includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such action,
suit or proceeding and (y) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(e) If the indemnification provided for in this Section 6
shall for any reason be unavailable or insufficient to hold harmless an
indemnified party under Section 6(a) or 6(b) in respect of any loss,
claim, damage or liability (or action in respect thereof) referred to
therein, each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability
(or action in respect thereof):
(i) in such proportion as is appropriate to reflect
the relative benefits received by the Company from the
offering and sale of the Transfer Restricted Securities on the
one hand and a Holder with respect to the sale by such Holder
of the Transfer Restricted Securities on the other, or
20
(ii) if the allocation provided by Section (6)(d)(i)
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred
to in Section 6(d)(i) but also the relative fault of the
Company on the one hand and the Holders on the other in
connection with the statements or omissions or alleged
statements or alleged omissions that resulted in such loss,
claim, damage or liability (or action in respect thereof), as
well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and a Holder on
the other with respect to such offering and such sale shall be deemed to be in
the same proportion as the total net proceeds from the offering of the
Debentures purchased under the Purchase Agreement (before deducting expenses)
received by the Company, on the one hand, bear to the total proceeds received by
such Holder with respect to its sale of Transfer Restricted Securities on the
other. The relative fault of the parties shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Holders on the other, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each Holder agree that it would not be just and equitable if the amount of
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the first sentence of this paragraph
(d).
The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 6 shall be deemed to include, for purposes of this Section
6, any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim.
Notwithstanding the provisions of this Section 6, no Holder shall be
required to contribute any amount in excess of the amount by which the total
price at which the Transfer Restricted Securities purchased by it were resold
exceeds the amount of any damages which such Holder has otherwise been required
to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute as provided in this
Section 6(d) are several and not joint.
(f) The provisions of this Section 6 shall remain in full
force and effect, regardless of any investigation made by or on behalf
of any Holder or the Company or any of the officers, directors or
controlling persons referred to in Section 6 hereof, and will survive
the sale by a Holder of Transfer Restricted Securities.
21
7. Rule 144A and Rule 144. The Company agrees with each Holder, for so
long as any Transfer Restricted Securities remain outstanding and during any
period in which the Company (i) is not subject to Section 13 or 15(d) of the
Exchange Act, to make available, upon request of any Holder, to such Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
designated by such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Securities Act in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144A, and (ii) is subject to Section 13
or 15 (d) of the Exchange Act, to use its best efforts to make all filings
required thereby in a timely manner in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144.
8. No Participation In Underwritten Registrations. No Holder may
participate in any Underwritten Registration hereunder.
9. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any
failure by the Company to comply with its obligations under Section 2
hereof may result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries
precisely, and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Section 2 hereof.
The Company further agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) Actions Affecting Transfer Restricted Securities. The
Company shall not, directly or indirectly, take any action with respect
to the Transfer Restricted Securities as a class that would adversely
affect the ability of the Holders of Transfer Restricted Securities to
include such Transfer Restricted Securities in a registration
undertaken pursuant to this Agreement.
(c) No Inconsistent Agreements. The Company has not, as of the
date hereof, entered into, nor shall it, on or after the date hereof,
enter into, any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement
or otherwise conflicts with the provisions hereof. In addition, the
Company shall not grant to any of its securityholders (other than the
Holders of Transfer Restricted Securities in such capacity) the right
to include any of its securities in the Shelf Registration Statement
provided for in this Agreement other than the Transfer Restricted
Securities.
22
(d) Amendments and Waivers. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given, unless the Company has obtained
the written consent of a Majority of Holders. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof,
with respect to a matter, which relates exclusively to the rights of
Holders whose securities are being sold pursuant to a Shelf
Registration Statement and does not directly or indirectly adversely
affect the rights of other Holders, may be given by the Majority
Holders, determined on the basis of Debentures being sold rather than
registered under such Shelf Registration Statement.
(e) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, first
class mail (registered or certified, return receipt requested), telex,
facsimile transmission, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the registrar under the Indenture or the transfer
agent of the Common Stock, as the case may be;
(ii) if to the Company, at its address set forth in
the Purchase Agreement; and
(iii) if to the Initial Purchasers, at the address
set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if transmitted by
facsimile; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
Any party hereto may change the address for receipt of communications
by giving written notice to the others.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of
the parties, including without limitation and without the need for an
express assignment, subsequent Holders of Transfer Restricted
Securities. The Company hereby agrees to extend the benefit of this
Agreement to any Holder and any such Holder may specifically enforce
the provisions of this Agreement as if an original party hereto.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts,
23
each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement.
(h) Debentures Held by the Company or Their Affiliates.
Whenever the consent or approval of Holders of a specified percentage
of Transfer Restricted Securities is required hereunder, Transfer
Restricted Securities held by the Company or its Affiliates (other than
subsequent Holders if such subsequent Holders are deemed to be
Affiliates solely by reason of their holding of such Debentures) shall
not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE CONFLICTS OF LAW RULES THEREOF.
(k) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby, it being intended that all of the rights and privileges of the
parties shall be enforceable to the fullest extent permitted by law.
(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.
There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein with respect to the
registration rights granted by the Company with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject
matter.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the date first above written.
Very truly yours,
GENESCO INC.
By: /s/ Hal N. Pennington
------------------------------------
Name: Hal N. Pennington
Title: President and Chief Executive
Officer
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
BANC OF AMERICA SECURITIES LLC
By: BANC OF AMERICA SECURITIES LLC
By: /s/ Trevor Ganshaw
---------------------------------
Name: Trevor Ganshaw
Title: Managing Director