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EXHIBIT 4.5
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REGISTRATION RIGHTS AGREEMENT
Dated as of May 21, 1997
by and among
PROFFITT'S, INC.
and
THE SUBSIDIARY GUARANTORS
listed herein
and
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED,
GOLDMAN, SACHS & CO.
and
SMITH BARNEY INC.,
as Initial Purchasers
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of May 21, 1997 by and among PROFFITT'S, INC., a Tennessee
corporation (the "Company"), the SUBSIDIARY GUARANTORS (together with the
Company, the "Issuers"), and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
("Merrill Lynch"), GOLDMAN, SACHS & CO. ("Goldman") and SMITH BARNEY INC.
("Smith Barney" and, together with Merrill Lynch and Goldman, the "Initial
Purchasers").
This Agreement is made pursuant to the Purchase Agreement
dated as of May 15, 1997 by and among the Company, the Subsidiary Guarantors
and the Initial Purchasers (the "Purchase Agreement"), which provides for,
among other things, the sale by the Company to the Initial Purchasers of an
aggregate of $125,000,000 principal amount of the Company's 8 1/8% Senior Notes
due 2004 (the "Notes") and the Guarantees thereof by the Subsidiary Guarantors
(the "Guarantees" and, together with the Notes, the "Securities"). In order to
induce the Initial Purchasers to enter into the Purchase Agreement, the Issuers
have agreed to provide to the Initial Purchasers and their direct and indirect
transferees the registration rights set forth in this Agreement. The execution
and delivery of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree
as follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"Additional Interest" shall have the meaning set forth in
Section 2(e) hereof.
"Advice" shall have the meaning set forth in the last
paragraph of Section 3 hereof.
"Applicable Period" shall have the meaning set forth in
Section 3(t) hereof.
"Business Day" shall mean a day that is not a Saturday, a
Sunday, or a day on which banking institutions in Charlotte, North
Carolina or New York, New York are required to be closed.
"Closing Time" shall mean the Closing Time as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble to
this Agreement and also includes the Company's successors and
permitted assigns.
"Depositary" shall mean The Depository Trust Company, or any
other depositary appointed by the Issuers; provided, however, that
such depositary must have an address in the Borough of Manhattan, in
The City of New York.
"Effectiveness Period" shall have the meaning set forth in
Section 2(b) hereof.
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"Effectiveness Target Date" shall have the meaning set forth
in Section 2(e) hereof.
"Event Date" shall have the meaning set forth in Section 2(e)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"Exchange Offer" shall mean the exchange offer by the Company
of Exchange Securities for Securities pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under
the Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an
exchange offer registration statement on Form S-1, S-3 or S-4 (or, if
applicable, on another appropriate form), and all amendments and
supplements to such registration statement, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section
2(a) hereof.
"Exchange Securities" shall mean the 8 1/8% Senior Notes due
2004, issued by the Company and guaranteed by the Subsidiary
Guarantors on a senior basis under the Indenture containing terms
identical to the Securities (except that (i) interest thereon shall
accrue from the last date on which interest was paid on the Securities
or, if no such interest has been paid, from May 21, 1997 (ii) the
transfer restrictions thereon and all registration rights in respect
thereof shall be eliminated and (iii) the provisions relating to
Additional Interest shall be eliminated) to be offered to Holders of
Securities in exchange for Securities pursuant to the Exchange Offer.
"Guarantees" shall have the meaning set forth in the preamble
to this Agreement.
"Holders" shall mean the Initial Purchasers, for so long as
they own any Registrable Securities, each of their direct and indirect
successors, assigns and transferees who become registered owners of
Registrable Securities under the Indenture and each Participating
Broker-Dealer that holds Exchange Securities for so long as such
Participating Broker-Dealer is required to deliver a prospectus
meeting the requirements of the Securities Act in connection with any
resale of such Exchange Securities.
"Indenture" shall mean the Indenture relating to the
Securities dated as of May 21, 1997 among the Issuers, the Subsidiary
Guarantors and The First National Bank of Chicago, as trustee, as the
same may be amended from time to time in accordance with the terms
thereof.
"Initial Purchasers" shall have the meaning set forth in the
preamble to this Agreement.
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"Inspectors" shall have the meaning set forth in Section 3(n)
hereof.
"Issue Date" shall mean the date on which the Notes are
originally issued.
"Issuers" shall have the meaning set forth in the preamble to
this Agreement.
"Majority Holders" shall mean the Holders of a majority of
the aggregate principal amount of outstanding Registrable Securities.
"Notes" shall have the meaning set forth in the preamble of
this Agreement.
"Participating Broker-Dealer" shall have the meaning set
forth in Section 3(s) hereof.
"Person" shall mean an individual, partnership, corporation,
trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Private Exchange" shall have the meaning set forth in
Section 2(a) hereof.
"Private Exchange Securities" shall have the meaning set
forth in Section 2(a) hereof.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Securities
covered by a Shelf Registration Statement, and by all other amendments
and supplements to a prospectus, including post-effective amendments,
and in each case including all material incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble to this Agreement.
"Records" shall have the meaning set forth in Section 3(n)
hereof.
"Registrable Securities" shall mean each Security and, if
issued, each Private Exchange Security until (i) the date on which
such Security has been exchanged by a person other than a
Participating Broker-Dealer for an Exchange Security in the Exchange
Offer, (ii) following the exchange by a Participating Broker-Dealer in
the Exchange Offer of a Security for an Exchange Security, the date on
which such Exchange Security is sold to a purchaser who receives from
such broker-dealer on or prior to the date of such sale a copy of the
prospectus contained in the Exchange Offer Registration Statement, as
amended or supplemented, (iii) the date on which such Security has
been effectively registered under the Securities Act and disposed of
in accordance with the Shelf Registration Statement, (iv) the date on
which such Security is distributed to the public pursuant to Rule 144
under the Securities Act (or any similar provision then in force, but
not Rule 144A under the Securities Act), (v) such Security shall have
been otherwise
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transferred by the holder thereof and a new Security not bearing a
legend restricting further transfer shall have been delivered by the
Company and subsequent disposition of such Security shall not require
registration or qualification under the Securities Act or any similar
state law then in force or (vi) such Security ceases to be
outstanding.
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Issuers with this
Agreement, including without limitation: (i) all applicable SEC, stock
exchange or National Association of Securities Dealers, Inc. (the
"NASD") registration and filing fees, (ii) all fees and expenses
incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of one counsel
for Holders that are Initial Purchasers in connection with blue sky
qualification of any of the Exchange Securities or Registrable
Securities) and compliance with the rules of the NASD, (iii) all
applicable expenses incurred by the Issuers in preparing or assisting
in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus and any amendments or
supplements thereto, and in preparing or assisting in preparing any
other documents relating to the performance of and compliance with
this Agreement, (iv) all rating agency fees, if any, (v) the fees and
disbursements of counsel for the Issuers, (vii) all fees and expenses
incurred in connection with the listing, if any, of any of the
Registrable Securities on any securities exchange or exchanges, if the
Issuer, in its discretion, elects to make any such listing; but
excluding fees of counsel to the Holders and underwriting discounts
and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder.
"Registration Statement" shall mean any registration
statement (including, without limitation, the Exchange Offer
Registration Statement and the Shelf Registration Statement) of the
Issuers and the Subsidiary Guarantors which covers any of the Exchange
Securities or Registrable Securities pursuant to the provisions of
this Agreement, and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble
to this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Issuers pursuant to the provisions of
Section 2(b) hereof which covers all of the Registrable Securities or
all of the Private Exchange Securities, as the case may be, on an
appropriate form under Rule 415 under the Securities Act, or any
similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement,
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including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Subsidiary Guarantors" shall mean each of the Company's
subsidiaries listed on the signature pages hereto and each of the
Company's future subsidiaries that has executed a supplemental
indenture pursuant to the Indenture guaranteeing the Notes.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
2. Registration Under the Securities Act.
(A) Exchange Offer. To the extent not prohibited by any
applicable law or applicable interpretation of the staff of the SEC, the
Issuers shall, for the benefit of the Holders, at the Issuers' cost, use their
best efforts to (i) cause to be filed with the SEC within 45 days after the
Closing Time an Exchange Offer Registration Statement on an appropriate form
under the Securities Act covering the offer by the Issuers to the Holders to
exchange all of the Registrable Securities (other than Private Exchange
Securities) for a like principal amount of Exchange Securities, (ii) have such
Exchange Offer Registration Statement declared effective under the Securities
Act by the SEC not later than the date which is 120 days after the Closing
Time, (iii) have such Registration Statement remain effective until the closing
of the Exchange Offer and (iv) cause the Exchange Offer to be consummated
following the effectiveness of the Exchange Offer Registration Statement and
use its best efforts to issue, on or prior to 30 Business Days after the date
on which the Exchange Offer Registration Statement was declared effective by
the SEC, Exchange Securities in exchange for all Securities properly tendered
prior thereto in the Exchange Offer. Upon the effectiveness of the Exchange
Offer Registration Statement, the Issuers shall promptly commence the Exchange
Offer, it being the objective of such Exchange Offer to enable each Holder
eligible and electing to exchange Registrable Securities for Exchange
Securities (assuming that such Holder is not an affiliate of the Issuers within
the meaning of Rule 405 under the Securities Act and is not a broker-dealer
tendering Registrable Securities acquired directly from the Issuers for its own
account, acquires the Exchange Securities in the ordinary course of such
Holder's business and has no arrangements or understandings with any Person to
participate in the Exchange Offer for the purpose of distributing (within the
meaning of the Securities Act) the Exchange Securities) and to transfer such
Exchange Securities from and after their receipt without any limitations or
restrictions under the Securities Act and under state securities or blue sky
laws.
In connection with the Exchange Offer, the Issuers shall:
(I) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
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(II) keep the Exchange Offer open for acceptance for a period
of not less than 20 Business Days after the date notice thereof is
mailed to the Holders (or longer if required by applicable law) (such
period referred to herein as the "Exchange Period");
(III) utilize the services of the Depositary for the Exchange
Offer;
(IV) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York time, on the last
Business Day of the Exchange Period, by sending to the institution
specified in the notice, a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the principal amount of
Securities delivered for exchange, and a statement that such Holder is
withdrawing his election to have such Securities exchanged; and
(V) otherwise comply in all material respects with all
applicable laws relating to the Exchange Offer.
If, prior to consummation of the Exchange Offer the Initial
Purchasers hold any Securities acquired by them and having the status of an
unsold allotment in the initial distribution, the Issuers upon the request of
any Initial Purchaser shall, simultaneously with the delivery of the Exchange
Securities in the Exchange Offer, issue and deliver to such Initial Purchaser
in exchange (the "Private Exchange") for the Securities held by such Initial
Purchaser, a like principal amount of debt securities of the Company,
Guaranteed by the Subsidiary Guarantors on a senior basis, that are identical
(except that such securities shall bear appropriate transfer restrictions) to
the Exchange Securities (the "Private Exchange Securities").
The Exchange Securities and the Private Exchange Securities
shall be issued under (i) the Indenture or (ii) an indenture identical to all
material respects to the Indenture and which, in either case, has been
qualified under the TIA or is exempt from such qualification and shall provide
that the Exchange Securities shall not be subject to the transfer restrictions
set forth in the Indenture. The Indenture or such indenture shall provide that
the Exchange Securities, the Private Exchange Securities and the Securities
shall vote and consent together on all matters as one class and that none of
the Exchange Securities, the Private Exchange Securities or the Securities will
have the right to vote or consent as a separate class on any matter. The
Private Exchange Securities shall be of the same series as and the Issuers
shall use all commercially reasonable efforts to have the Private Exchange
Securities bear the same CUSIP number as the Exchange Securities. Neither the
Company nor any of its Subsidiaries shall have any liability under this
Agreement solely as a result of such Private Exchange Securities not bearing
the same CUSIP number as the Exchange Securities.
The Exchange Offer and the Private Exchange shall not be
subject to any conditions, other than that (i) the Exchange Offer or Private
Exchange, as the case may be, does not violate applicable law or any applicable
interpretation of the staff of the SEC (ii) no action or proceeding shall have
been instituted or threatened in any court or by any governmental agency which
might materially impair the ability of the Issuer to proceed with the Exchange
Offer or the Private Exchange, and no material adverse development shall have
occurred in any existing action or proceeding with respect to the Issuer and
(iii) all governmental approvals shall have been
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obtained, which approvals the Issuer deems necessary for the consummation of
the Exchange Offer or Private Exchange. As soon as practicable after the close
of the Exchange Offer and/or the Private Exchange, as the case may be, the
Issuers shall:
(i) accept for exchange all Registrable Securities or
portions thereof properly tendered and not validly withdrawn pursuant
to the Exchange Offer in accordance with the terms of the Exchange
Offer Registration Statement and the letter of transmittal which is an
exhibit thereto;
(ii) accept for exchange all Securities properly tendered
pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so
accepted for exchange by the Issuers, and issue, and cause the Trustee
under the Indenture to promptly authenticate and deliver to each
Holder, a new Exchange Security or Private Exchange Security, as the
case may be, equal in principal amount to the principal amount of the
Registrable Securities surrendered by such Holder and accepted for
exchange.
To the extent not prohibited by any law or applicable
interpretation of the staff of the SEC, the Issuers shall use their best
efforts to complete the Exchange Offer as provided above, and shall comply with
the applicable requirements of the Securities Act, the Exchange Act and other
applicable laws in connection with the Exchange Offer. The Exchange Offer shall
not be subject to any conditions, other than those set forth in the immediately
preceding paragraph. Each Holder of Registrable Securities who wishes to
exchange such Registrable Securities for Exchange Securities in the Exchange
Offer will be required to make certain customary representations in connection
therewith, including representations that such Holder is not an affiliate of
the Issuers within the meaning of Rule 405 under the Securities Act, that any
Exchange Securities to be received by it will be acquired in the ordinary
course of business and that at the time of the commencement of the Exchange
Offer it has no arrangement with any Person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Securities. The
Issuers shall inform the Initial Purchasers of the names and addresses of the
Holders to whom the Exchange Offer is made, and the Initial Purchasers shall
have the right to contact such Holders and otherwise facilitate the tender of
Registrable Securities in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with
this Section 2(a), the provisions of this Agreement shall continue to apply,
mutatis mutandis, solely with respect to Registrable Securities that are
Private Exchange Securities and Exchange Securities held by Participating
Broker-Dealers, and the Issuers shall have no further obligation to register
Registrable Securities (other than Private Exchange Securities) pursuant to
Section 2(b) hereof.
(B) Shelf Registration. In the event that (i) the Company is
not permitted to file the Exchange Offer Registration Statement or to
consummate the Exchange Offer because the Exchange Offer is not permitted by
applicable law or Commission policy, (ii) the Exchange Offer is not for any
other reason consummated within 150 days after the Issue Date, (iii) any holder
of
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Securities notifies the Company within 20 Business Days after the
commencement of the Exchange Offer that (a) due to a change in law or policy it
is not entitled to participate in the Exchange Offer, (b) due to a change in
law or policy it may not resell the Exchange Securities acquired by it in the
Exchange Offer to the public without delivering a prospectus and the prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such holder or (c) it is a broker-dealer and owns
Securities acquired directly from the Company or an affiliate of the Company or
(iv) the holders of a majority of the Securities may not resell the Exchange
Securities acquired by them in the Exchange Offer to the public without
restriction under the Securities Act (other than the delivery of the prospectus
included in the Exchange Offer Registration Statement, then the Issuers shall,
at their cost, use their best efforts to cause to be filed as promptly as
practicable after such determination or date, as the case may be, and, in any
event, prior to the later of (A) 150 days after the Issue Date or (B) 30 days
after such filing obligation arises and use its best efforts to cause the Shelf
Registration Statement to be declared effective by the SEC on or prior to 90
days after such obligation arises; provided, however, that if the Company has
not consummated the Exchange Offer within 150 days of the Issue Date, then the
Issuers will file the Shelf Registration Statement with the SEC on or prior to
the 165th day after the Issue Date, a Shelf Registration Statement providing
for the sale by the Holders of all of the Registrable Securities, and shall use
their best efforts to have such Shelf Registration Statement declared effective
by the SEC as soon as practicable. No Holder of Registrable Securities may
include any of its Registrable Securities in any Shelf Registration pursuant to
this Agreement unless and until such Holder furnishes to the Issuers in
writing, within 15 days after receipt of a request therefor, such information
as the Issuers may, after conferring with counsel with regard to information
relating to Holders that would be required by the SEC to be included in such
Shelf Registration Statement or Prospectus included therein, reasonably request
for inclusion in any Shelf Registration Statement or Prospectus included
therein. Each Holder as to which any Shelf Registration is being effected
agrees to furnish to the Issuers all information with respect to such Holder
necessary to make any information previously furnished to the Issuers by such
Holder not materially misleading.
The Issuers agree to use their best efforts to keep the Shelf
Registration Statement continuously effective for a period of two years from
the Issue Date (subject to extension pursuant to the last paragraph of Section
3 hereof) (or such shorter period that will terminate when all of the
Registrable Securities covered by such Shelf Registration Statement have been
sold pursuant thereto) or cease to be outstanding (the "Effectiveness Period");
provided, however, that the Effectiveness Period in respect of the Shelf
Registration Statement shall be extended to the extent required to permit
dealers to comply with the applicable prospectus delivery requirements of Rule
174 under the Securities Act and as otherwise provided herein; provided,
further, however, that if such Shelf Registration Statement has been filed
solely at the request of any Initial Purchaser pursuant to clause (iv) above,
the Issuers shall only be required to use their best efforts to keep such Shelf
Registration Statement continuously effective for a period of one year from the
Issue Date (subject to extension pursuant to the last paragraph of Section 3
hereof) or for such shorter period which will terminate when all of the
Registrable Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement or cease to be outstanding.
The Issuers shall not permit any securities other than Registrable Securities
to be included in the Shelf Registration. The Issuers further agree, if
necessary, to
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supplement or amend the Shelf Registration Statement, if required
by the rules, regulations or instructions applicable to the registration form
used by the Issuers for such Shelf Registration Statement or by the Securities
Act or by any other rules and regulations thereunder for shelf registrations,
and the Issuers agree to furnish to the Holders of Registrable Securities
copies of any such supplement or amendment promptly after its being used or
filed with the SEC.
(C) Expenses. The Issuers shall pay all Registration Expenses
in connection with the registration pursuant to Section 2(a) or 2(b) hereof and
the reasonable fees and expenses of one counsel, if any, designated in writing
by the Majority Holders to act as counsel for the Holders of the Registrable
Securities in connection with a Shelf Registration Statement. Except as
provided in the preceding sentence, each Holder shall pay all expenses of its
counsel, underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Shelf Registration Statement.
(D) Effective Registration Statement. An Exchange Offer
Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration
Statement pursuant to Section 2(b) hereof will not be deemed to have become
effective unless it has been declared effective by the SEC; provided, however,
that if, after it has been declared effective, the offering of Registrable
Securities pursuant to a Shelf Registration Statement is interfered with by any
stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement will be deemed not to
have been effective during the period of such interference, until the offering
of Registrable Securities may legally resume. The Issuers will be deemed not to
have used their best efforts to cause the Exchange Offer Registration Statement
or the Shelf Registration Statement, as the case may be, to become, or to
remain, effective during the requisite period if they voluntarily take any
action that would result in any such Registration Statement not being declared
effective or in the Holders of Registrable Securities covered thereby not being
able to exchange or offer and sell such Registrable Securities during that
period, unless such action is required by applicable law and except as
otherwise provided in the second paragraph of Section 2(e) below.
(E) Additional Interest. In the event that (i) the applicable
Registration Statement is not filed with the SEC on or prior to the date
specified herein for such filing, (ii) the applicable Registration Statement is
not declared effective on or prior to the date specified herein for such
effectiveness after such obligation arises (the "Effectiveness Target Date"),
(iii) if the Exchange Offer is required to be consummated hereunder, the
Company fails to consummate the Exchange Offer within 30 Business Days of the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (iv) the applicable Registration Statement is filed and declared
effective during the period effectiveness is required by Section 2(e) and 3(a)
but shall thereafter cease to be effective or usable without being succeeded
immediately by an additional Registration Statement covering the Registrable
Securities which has been filed and declared effective (each such event
referred to in clauses (i) through (iv), a "Registration Default"), then the
interest rate on the Registrable Securities as to which such Registration
Default relates will increase ("Additional Interest"), with respect to the
first 90-day period (or portion thereof) while a Registration Default is
continuing immediately following the occurrence of such Registration Default in
an amount equal to 0.25% per annum of the principal amount of the Securities.
The rate of additional Interest will increase by an additional 0.25% per annum
of the principal amount
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of the Securities for each subsequent 90-day period (or
portion thereof) while a Registration Default is continuing until all
Registration Defaults have been cured, up to a maximum amount of 1.00% of the
principal amount of the Securities. Additional Interest shall be computed based
on the actual number of days elapsed during which any such Registration
Defaults exist. Following the cure of a Registration Default, the accrual of
Additional Interest with respect to such Registration Default will cease.
If the Company issues a notice that the Shelf Registration
Statement is unusable due to the pendency of an announcement of a material
corporate transaction, or such notice is required under applicable securities
laws to be issued by the Company, and the aggregate number of days in any
consecutive twelve-month period for which the Shelf Registration Statement
shall not be usable due to all such notices issued or required to be issued
exceeds 30 days in the aggregate, then the interest rate borne by the
Securities will be increased by 0.25% per annum of the principal amount of the
Securities for the first 90-day period (or portion thereof) beginning on the
31st such date that such Shelf Registration Statement ceases to be usable,
which rate shall be increased by an additional 0.25% per annum of the principal
amount of the Securities at the beginning of each subsequent 90-day period, up
to a maximum amount of 1.00% of the principal amount of the Securities. Upon
the Shelf Registration Statement once again becoming usable, the interest rate
borne by the Securities will be reduced to the original interest rate if the
Company is otherwise in compliance with this Agreement at such time. Additional
Interest shall be computed based on the actual number of days elapsed in each
90-day period in which the Shelf Registration Statement is unusable.
The Issuers shall notify the Trustee within three Business
Days after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Additional
Interest shall be paid by depositing with the Trustee, in trust, for the
benefit of the Holders of Registrable Securities, on or before the applicable
semiannual interest payment date, immediately available funds in sums
sufficient to pay the Additional Interest then due. The Additional Interest due
shall be payable on each interest payment date to the record Holder of
Securities entitled to receive the interest payment to be paid on such date as
set forth in the Indenture. Each obligation to pay Additional Interest shall be
deemed to accrue from and including the day following the applicable Event
Date.
(F) Specific Enforcement. Without limiting the remedies
available to the Initial Purchasers and the Holders, the Issuers acknowledge
that any failure by the Issuers to comply with their obligations under Section
2(a) and Section 2(b) 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 would 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
Issuers' obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations of the
Issuers with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Issuers shall:
(A) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof within
the relevant time period
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specified in Section 2 hereof on the appropriate form under the Securities Act,
which form (i) shall be selected by the Issuers, (ii) shall, in the case of a
Shelf Registration, be available for the sale of the Registrable Securities by
the selling Holders thereof and (iii) shall comply as to form in all material
respects with the requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith; and use their best
efforts to cause such Registration Statement to become effective and remain
effective in accordance with Section 2 hereof. The Issuers shall not file any
Registration Statement or Prospectus or any amendments or supplements thereto
in respect of which the Holders must provide information for inclusion therein
without being afforded an opportunity to review such documentation a reasonable
time prior to the filing of such document if the Majority Holders or such
Participating Broker-Dealer, as the case may be, their counsel or the managing
underwriters, if any, shall reasonably object;
(B) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
Effectiveness Period or the Applicable Period, as the case may be; and
cause each Prospectus to be supplemented by any required prospectus
supplement and as so supplemented to be filed pursuant to Rule 424 (or
any similar provision then in force) under the Securities Act, and
comply with the provisions of the Securities Act, the Exchange Act and
the rules and regulations promulgated thereunder applicable to it with
respect to the disposition of all securities covered by each
Registration Statement during the Effectiveness Period or the
Applicable Period, as the case may be, in accordance with the intended
method or methods of distribution by the selling Holders thereof
described in this Agreement (including sales by any Participating
Broker-Dealer);
(C) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities, at least three Business Days prior
to filing, that a Shelf Registration Statement with respect to the
Registrable Securities is being filed and advising such Holder that
the distribution of Registrable Securities will be made in accordance
with the method selected by the Majority Holders; and (ii) furnish to
each Holder of Registrable Securities, without charge, as many copies
of each Prospectus, and any amendment or supplement thereto and such
other documents as such Holder may reasonably request, in order to
facilitate the disposition of the Registrable Securities; and (iii)
subject to the last paragraph of Section 3 hereof, hereby consent to
the use of the Prospectus or any amendment or supplement thereto by
each of the selling Holders of Registrable Securities in connection
with the offering and sale of the Registrable Securities covered by
such Prospectus or any amendment or supplement thereto subject to the
limitations on the use thereof provided in Sections 2(b) and 2(c);
(D) in the case of a Shelf Registration, use their best
efforts to register or qualify, as may be required by applicable law,
the Registrable Securities under all applicable state securities or
"blue sky" laws of such jurisdictions by the time the applicable
Registration Statement is declared effective by the SEC as any Holder
of Registrable Securities covered by a Registration Statement shall
reasonably request in advance of such date of effectiveness, and do
any and all other acts and things which may
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be reasonably necessary or advisable to enable such Holder to
consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; provided, however, that
the Issuers shall not be required to (i) qualify as a foreign
corporation or as a broker or dealer in securities in any jurisdiction
where it would not otherwise be required to qualify but for this
Section 3(d), (ii) file any general consent to service of process or
(iii) subject itself to taxation in any such jurisdiction if it is not
so subject;
(E) in the case of (1) a Shelf Registration or (2)
Participating Broker-Dealers who have notified the Issuers that they
will be utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(t) hereof, notify each
Holder of Registrable Securities, or such Participating
Broker-Dealers, as the case may be, their counsel, if any, promptly
and confirm such notice in writing (i) when a Registration Statement
has become effective and when any post-effective amendments and
supplements thereto become effective, (ii) of any request by the SEC
or any state securities authority for amendments and supplements to a
Registration Statement or Prospectus or for additional information
after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) if the Issuers
receive any notification with respect to the suspension of the
qualification of the Registrable Securities or the Exchange Securities
to be sold by any Participating Broker-Dealer for offer or sale in any
jurisdiction or the initiation of any proceeding for such purpose, (v)
of the happening of any event or the failure of any event to occur or
the discovery of any facts or otherwise, during the period a Shelf
Registration Statement is effective which makes any statement made in
such Registration Statement or the related Prospectus untrue in any
material respect or which causes such Registration Statement or
Prospectus to omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading and (vi) the Company's reasonable
determination that a post-effective amendment to the Registration
Statement would be appropriate;
(F) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement
as soon as practicable;
(G) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, without charge, at least one
conformed copy of each Registration Statement relating to such Shelf
Registration and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto,
unless requested);
(H) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates not bearing any restrictive
legends representing Securities covered by such Shelf Registration to
be sold and relating to the subsequent transfer of such Securities;
and cause such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and registered in
such names as the selling Holders may reasonably request at least two
Business Days prior to the closing of any sale of Registrable
Securities;
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(I) in the case of a Shelf Registration or an Exchange
Offer Registration, upon the occurrence of any circumstance
contemplated by Section 3(e)(ii), 3(e)(iii), 3(e)(iv), 3(e)(v) or
3(e)(vi) hereof, use their best efforts to prepare a supplement or
post-effective amendment to a Registration Statement or the related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of the 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 the light
of the circumstances under which they were made, not misleading; and
to notify each Holder to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and each Holder
hereby agrees to suspend use of the Prospectus until the Issuers have
amended or supplemented the Prospectus to correct such misstatement or
omission;
(J) obtain a CUSIP number for all Exchange Securities or
Registrable Securities, as the case may be, not later than the
effective date of a Registration Statement, and provide the Trustee
with certificates for the Exchange Securities or the Registrable
Securities, as the case may be, in a form eligible for deposit with
the Depositary;
(K) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended, (the "TIA") in connection with the
registration of the Exchange Securities or Registrable Securities, as
the case may be, cooperate with the Trustee and the Holders to effect
such changes to the Indenture as may be required for the Indenture to
be so qualified in accordance with the terms of the TIA and execute,
and use their best efforts to cause the Trustee to execute, all
documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable the
Indenture to be so qualified in a timely manner;
(L) in the case of a Shelf Registration, enter into such
agreements and take all such other appropriate actions as are
reasonably requested in order to expedite or facilitate the
registration or the disposition of such Registrable Securities, and in
such connection, (i) make such representations and warranties to
Holders of such Registrable Securities with respect to the business of
the Issuers and their subsidiaries as then conducted and the
Registration Statement, Prospectus and documents, if any, incorporated
or deemed to be incorporated by reference therein, in each case, as
are customarily made by issuers to underwriters in underwritten
offerings, and confirm the same if and when requested; (ii) obtain
opinions of counsel to the Issuers and updates thereof in form and
substance reasonably satisfactory to the Holders of a majority in
principal amount of the Registrable Securities being sold, addressed
to each selling Holder covering the matters customarily covered in
opinions requested in underwritten offerings and such other matters as
may be reasonably requested by such Holders; (iii) obtain "cold
comfort" letters and updates thereof from the independent certified
public accountants of the Issuers (and, if necessary, any other
independent certified public accountants of any subsidiary of the
Issuers or of any business acquired by the Issuers for which financial
statements and financial data are, or are required to be, included in
the Registration Statement but excluding any statements of the Issuers
audited by Deloitte & Touche LLP prior to the date hereof), addressed
to the selling Holders of Registrable Securities (other than
Participating Broker-Dealers,
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unless such Participating Broker-Dealers would be deemed to be
"underwriters" as a result of the sale of Securities covered by such
Shelf Registration Statement), such letters to be in customary form
and covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings and such other
matters as reasonably requested by such selling Holders; and (iv) if
an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those
set forth in Section 4 hereof (or such other provisions and procedures
acceptable to the Issuers and the Holders of a majority in aggregate
principal amount of Registrable Securities covered by such
Registration with respect to all parties to be indemnified pursuant to
said Section (including, without limitation, such selling Holders).
The above shall be done at each closing in respect of the sale of
Registrable Securities, or as and to the extent required thereunder;
(M) if (1) a Shelf Registration is filed pursuant to
Section 2(b) or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2(a) is required to
be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Securities during the
applicable period, make available for inspection by each such person
who would be an "underwriter" as a result of either (i) the sale by
such person of Securities covered by such Shelf Registration Statement
or (ii) the sale during the Applicable Period by a Participating
Broker-Dealer of Exchange Securities (provided that a Participating
Broker-Dealer shall not be deemed to be an underwriter solely as a
result of it being required to deliver a prospectus in connection with
any resale of Exchange Securities) and any attorney, accountant or
other agent retained by any such person (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable
business hours, all financial and other records, pertinent corporate
documents and properties of the Issuers and their subsidiaries
(collectively, the "Records") as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the Issuers and
their subsidiaries to supply all information in each case reasonably
requested by any such Inspector in connection with such Registration
Statement. Records which the Issuers determine, in good faith, to be
confidential and any Records which they notify the Inspectors are
confidential shall not be disclosed by the Inspectors unless (i) the
disclosure of such Records is necessary to avoid or correct a material
misstatement or omission in such Registration Statement, (ii) the
release of such Records is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction or (iii) the information
in such Records has been made generally available to the public. Each
selling Holder of such Registrable Securities and each such
Participating Broker-Dealer will be required to agree that information
obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Issuers unless and until such is
made generally available to the public. Each selling Holder of such
Registrable Securities and each such Participating Broker-Dealer will
be required to further agree that it will, upon learning that
disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Issuers and allow the Issuers at
their expense to undertake appropriate action to prevent disclosure of
the Records deemed confidential;
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16
(N) comply with all applicable rules and regulations of the
SEC and make generally available to their securityholders earnings
statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the
end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of
any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Issuers
after the effective date of a Registration Statement, which statements
shall cover said 12-month periods;
(O) upon consummation of an Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Issuers addressed to the
Trustee for the benefit of all Holders of Registrable Securities
participating in the Exchange Offer or the Private Exchange, as the
case may be, and which includes an opinion that (i) the Issuers have
duly authorized, executed and delivered the Exchange Securities and
Private Exchange Securities, and (ii) each of the Exchange Securities
or the Private Exchange Securities, as the case may be, constitute a
legal, valid and binding obligation of the Issuers, enforceable
against the Issuers in accordance with its respective terms (in each
case, with customary exceptions);
(P) if an Exchange Offer or a Private Exchange is to be
consummated, upon proper delivery of the Registrable Securities by
Holders to the Issuers (or to such other Person as directed by the
Issuers) in exchange for the Exchange Securities or the Private
Exchange Securities, as the case may be, the Issuers shall mark, or
cause to be marked, on such Registrable Securities and on the books of
the Trustee, the Transfer Agent, the Registrar and the Depositary
delivered by such Holders that such Registrable Securities are being
canceled in exchange for the Exchange Securities or the Private
Exchange Securities, as the case may be; but in no event shall such
Registrable Securities be marked as paid or otherwise satisfied solely
as a result of being exchanged for Exchange Securities or Private
Exchange Securities in the Exchange Offer or the Private Exchange, as
the case may be;
(Q) cooperate with each seller of Registrable Securities
covered by any Registration Statement participating in the disposition
of such Registrable Securities and one counsel acting on behalf of all
such sellers in connection with the filings, if any, required to be
made with the NASD;
(R) use their best efforts to take all other steps
necessary to effect the registration of the Registrable Securities
covered by a Registration Statement contemplated hereby; and
(S) (A) in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration Statement a
section entitled "Plan of Distribution," which section shall be
reasonably acceptable to Merrill Lynch, as representative of the
Initial Purchasers, and which shall contain a summary statement of the
positions taken or policies made by the staff of the SEC with respect
to the potential "underwriter" status of any
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broker-dealer (a "Participating Broker-Dealer") that holds Registrable
Securities acquired for its own account as a result of market-making
activities or other trading activities and that will be the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Securities to be received by such broker-dealer in the Exchange Offer,
whether such positions or policies have been publicly disseminated by
the staff of the SEC or such positions or policies, in the reasonable
judgment of Merrill Lynch, as representative of the Initial Purchasers
or such other representative, represent the prevailing views of the
staff of the SEC, including a statement that any such broker-dealer
who receives Exchange Securities for Registrable Securities pursuant
to the Exchange Offer may be deemed a statutory underwriter and must
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Securities, (ii) furnish
to each Participating Broker-Dealer who has delivered to the Issuers
the notice referred to in Section 3(e), without charge, as many copies
of each Prospectus included in the Exchange Offer Registration
Statement, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request; (iii) hereby
consent to the use of the Prospectus forming part of the Exchange
Offer Registration Statement or any amendment or supplement thereto,
by any Person subject to the prospectus delivery requirements of the
SEC, including all Participating Broker-Dealers, in connection with
the sale or transfer of the Exchange Securities covered by the
Prospectus or any amendment or supplement thereto, (iv) use their best
efforts to keep the Exchange Offer Registration Statement effective
and to amend and supplement the Prospectus contained therein in order
to permit such Prospectus to be lawfully delivered by all Persons
subject to the prospectus delivery requirements of the Securities Act
for such period of time as such Persons must comply with such
requirements in order to resell the Exchange Securities; provided,
however, that such period shall not be required to exceed 90 days (or
such longer period if extended pursuant to the last sentence of
Section 3 hereof) (the "Applicable Period"), and (iv) include in the
transmittal letter or similar documentation to be executed by an
exchange offeree in order to participate in the Exchange Offer (x) the
following provision:
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a
result of market-making activities or other trading
activities, it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any
resale of Exchange Securities received in respect of such
Registrable Securities pursuant to the Exchange Offer";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus
in connection with the exchange of Registrable Securities, such
broker-dealer will not be deemed to admit that it is an underwriter
within the meaning of the Securities Act; and
(B) in the case of any Exchange Offer Registration Statement, the
Issuers agree to deliver, upon request, to the Trustee or to
Participating Broker-Dealers upon consummation of the Exchange Offer
(i) an opinion of counsel substantially in the form attached hereto as
Exhibit A, and (ii) an officers' certificate containing certifications
substantially similar to those set forth in Section 7(c) of the
Purchase Agreement.
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The Issuers may require each seller of Registrable Securities
as to which any registration is being effected to furnish to the Issuers such
information regarding such seller and the proposed distribution of such
Registrable Securities, as the Issuers may from time to time reasonably request
in writing. The Issuers may exclude from such registration the Registrable
Securities of any seller who fails to furnish such information within a
reasonable time (not to exceed 10 Business Days) after receiving such request
and shall be under no obligation to compensate any such seller for any lost
income, interest or other opportunity forgone, or any liability incurred, as a
result of the Issuers' decision to exclude such seller.
In the case of (1) a Shelf Registration Statement or (2)
Participating Broker-Dealers who have notified the Issuers that they will be
utilizing the Prospectus contained in the Exchange Offer Registration Statement
as provided in Section 3(t) hereof, that are seeking to sell Exchange
Securities and are required to deliver Prospectuses, each Holder agrees that,
upon receipt of any notice from the Issuers of the happening of any event of
the kind described in Section 3(e)(ii), 3(e)(iii), 3(e)(v), 3(e)(vi) or
3(e)(vii) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(i) hereof or until it is advised in writing (the "Advice") by the
Issuers that the use of the applicable Prospectus may be resumed, and, if so
directed by the Issuers, such Holder will deliver to the Issuers (at the
Issuers' expense) all copies in such Holder's possession, other than permanent
file copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities or Exchange Securities, as the case may be, current at
the time of receipt of such notice. If the Issuers shall give any such notice
to suspend the disposition of Registrable Securities or Exchange Securities, as
the case may be, pursuant to a Registration Statement, the Issuers shall use
their best efforts to file and have declared effective (if an amendment) as
soon as practicable an amendment or supplement to the Registration Statement
and, in the case of an amendment, have such amendment declared effective as
soon as practicable and shall extend the period during which such Registration
Statement shall be maintained effective pursuant to this Agreement by the
number of days in the period from and including the date of the giving of such
notice to and including the date when the Issuers shall have made available to
the Holders (x) copies of the supplemented or amended Prospectus necessary to
resume such dispositions or (y) the Advice.
4. Indemnification and Contribution. (A) The Issuers shall,
jointly and severally, indemnify and hold harmless each Initial Purchaser, each
Holder, each Participating Broker-Dealer, each underwriter who participates in
an offering of Registrable Securities, their respective affiliates, each
Person, if any, who controls any of such parties within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(I) against any and all loss, liability, claim, damage and
expense whatsoever, joint or several, as incurred, arising out of any
untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment or
supplement thereto), covering Registrable Securities or Exchange
Securities, including all documents incorporated therein by reference,
or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged untrue
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statement of a material fact contained in any Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(II) against any and all loss, liability, claim, damage and
expense whatsoever, joint or several, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any court or governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Sections 4(c) and
4(d) below) any such settlement is effected with the prior written
consent of the Company; and
(III) against any and all expenses whatsoever, as incurred
(including reasonable fees and disbursements of one counsel (in
addition to any local counsel) chosen by Merrill Lynch, such Holder,
such Participating Broker-Dealer or any underwriter (except to the
extent otherwise expressly provided in Section 4(c) hereof)),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any court or
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii) of this Section
4(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission (i) made in reliance upon and
in conformity with written information furnished in writing to the Issuers by
or on behalf of such Initial Purchaser, such Holder, such Participating
Broker-Dealer or any underwriter with respect to such Initial Purchaser,
Holder, Participating Broker-Dealer or underwriter, as the case may be,
expressly for use in the Registration Statement (or any amendment or supplement
thereto) or any Prospectus (or any amendment or supplement thereto) or (ii)
contained in any preliminary prospectus if such Initial Purchaser, such Holder,
such Participating Broker-Dealer or such underwriter failed to send or deliver
a copy of the Prospectus (in the form it was first provided to such parties for
confirmation of sales) to the Person asserting such losses, claims, damages or
liabilities on or prior to the delivery of written confirmation of any sale of
securities covered thereby to such Person in any case where the Issuers shall
have previously furnished copies thereof to such Initial Purchaser, such
Holder, such Participating Broker-Dealer or such underwriter, as the case may
be, in accordance with this Agreement, at or prior to the written confirmation
of the sale of such Securities to such Person and the untrue statement
contained in or the omission from the preliminary prospectus was corrected in
the Final Prospectus (or any amendment or supplement thereto). Any amounts
advanced by the Issuers to an indemnified party pursuant to this Section 4 as a
result of such losses shall be returned to the Issuers if it shall be finally
determined by a court of competent jurisdiction in a judgment not subject to
appeal or final review that such indemnified party was not entitled to
indemnification by the Issuers.
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(B) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Issuers, each Initial Purchaser, each
underwriter who participates in an offering of registrable Securities and the
other selling Holders and each of their respective directors and each Person,
if any, who controls any of the Issuers, any Initial Purchaser, any underwriter
or any other selling Holder within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, against any and all loss, liability, claim,
damage and expense whatsoever described in the indemnity contained in Section
4(a) hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment or supplement thereto) or any Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Issuers by or on behalf of such selling
Holder with respect to such Holder expressly for use in the Registration
Statement (or any supplement thereto), or any such Prospectus (or any amendment
thereto); provided, however, that, in the case of the Shelf Registration
Statement, no such Holder shall be liable for any claims hereunder in excess of
the amount of net proceeds received by such Holder from the sale of Registrable
Securities pursuant to the Shelf Registration Statement; provided, further,
however, that for purposes of Section 4(a)(iii), such counsel shall (subject to
Section 4(c) hereof) be chosen by the Company.
(C) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which
it may have otherwise than on account of this indemnity agreement. In the case
of parties indemnified pursuant to Section 4(a) above, one counsel to all the
indemnified parties shall be selected by Merrill Lynch, and, in the case of
parties indemnified pursuant to Section 4(b) above, counsel to all the
indemnified parties shall be selected by the Issuers. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party.
Notwithstanding the foregoing, if it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the indemnified parties
defendant in such action (which approval shall not be unreasonably withheld),
unless such indemnified parties reasonably object to such assumption on the
ground that there may be legal defenses available to them which are different
from or in addition to those available to such indemnifying party. If an
indemnifying party assumes the defense of such action, the indemnifying parties
shall not be liable for any fees and expenses of counsel for the indemnified
parties incurred thereafter in connection with such action. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under
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this Section 4 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes a full and unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim
and the offer and sale of any Securities and (ii) 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.
(D) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for reasonable fees
and expenses of counsel pursuant to Section 4(a)(iii) above, then such
indemnifying party agrees that it shall liable for any settlement of the nature
contemplated by Section 4(a)(ii) 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 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
(E) In order to provide for just and equitable contribution
in circumstances under which any of the indemnity provisions set forth in this
Section 4 is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, the Issuers, the Initial
Purchasers and the Holders, as applicable, shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
such indemnity agreement incurred by the Issuers, the Initial Purchasers and
the Holders; provided, however, that 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 that was not guilty of such
fraudulent misrepresentation. As between the Issuers and the Initial Purchasers
and the Holders, such parties shall contribute to such aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement in such proportion as shall be appropriate to reflect the
relative fault of the Issuers on the one hand and of the Holder of Registrable
Securities, the Participating Broker-Dealer or Initial Purchaser, as the case
may be, on the other hand in connection with the statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations.
The relative fault of the Issuers on the one hand and the
Holder of Registrable Securities, the Participating Broker-Dealer or the
Initial Purchasers, as the case may be, on the other hand shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Issuers, or by the Holder
of Registrable Securities, the Participating Broker-Dealer or the Initial
Purchasers, as the case may be, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Issuers and the Holders of the Registrable Securities and
the Initial Purchasers agree that it would not be just and equitable if
contribution pursuant to this Section 4 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 4.
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For purposes of this Section 4, each affiliate of any Person,
if any, who controls a Holder of Registrable Securities, a Initial Purchaser or
a Participating Broker-Dealer within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such other Person, and each director of the Issuers, each
affiliate of the Issuers, each executive officer of the Issuers who signed the
Registration Statement, and each Person, if any, who controls any Issuer within
the meaning of Section 15 of the Securities act or Section 20 of the Exchange
Act shall have the same rights to contribution as the Issuers.
5. [Intentionally Omitted]
6. [Intentionally Omitted]
7. Miscellaneous.
(A) Rule 144 and Rule 144A. For so long as the Issuers are
subject to the reporting requirements of Section 13 or 15 of the Exchange Act
and any Registrable Securities remain outstanding, the Issuers covenant that
they will file the reports required to be filed by them under the Securities
Act and Section 13(a) or 15(d) of the Exchange Act and the rules and
regulations adopted by the SEC thereunder, that if they cease to be so required
to file such reports, they will upon the request of any Holder of Registrable
Securities (a) make publicly available such information as is necessary to
permit sales pursuant to Rule 144 under the Securities Act, (b) deliver such
information to a prospective purchaser as is necessary to permit sales pursuant
to Rule 144A under the Securities Act and they will take such further action as
any Holder of Registrable Securities may reasonably request, and (c) take such
further action, if any, that is reasonable in the circumstances, in each case,
to the extent required from time to time to enable such Holder to sell its
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (i) Rule 144 under the Securities Act,
as such rule may be amended from time to time, (ii) Rule 144A under the
Securities Act, as such rule may be amended from time to time, or (iii) any
similar rules or regulations hereafter adopted by the SEC. Upon the reasonable
request of any Holder of Registrable Securities, the Issuers will deliver to
such Holder a written statement as to whether they have complied with such
requirements.
(B) No Inconsistent Agreements. The rights granted to the
Holders hereunder do not, and will not for the term of this Agreement in any
way conflict with and are not, and will not during the term of this Agreement
be inconsistent with the rights granted to the holders of the Issuers' other
issued and outstanding securities under any other agreements entered into by
any of the Issuers.
(C) Amendments and Waivers. The provisions of this Agreement,
including provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, otherwise than with the prior written consent of the Issuers
and the Majority Holders; provided, however, that no amendment, modification,
or supplement or waiver or consent to the departure with respect to the
provisions of Section 4 hereof shall be effective as against any Holder of
Registrable Securities or any Issuer
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unless consented to in writing by such Holder of Registrable Securities or any
Issuer, as the case may be.
(D) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, telecopier, or any courier guaranteeing
overnight delivery (i) if to a Holder, at the most current address given by
such Holder to the Issuers by means of a notice given in accordance with the
provisions of this Section 7(d), which address initially is, with respect to
the Initial Purchasers, the address set forth in the Purchase Agreement; and
(ii) if to the Issuers, initially at the Issuers' address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 7(d).
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 is acknowledged, if telecopied;
and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the Person giving the same to the Trustee,
at the address specified in the Indenture.
(E) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of the
Initial Purchasers, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Purchase Agreement or
the Indenture. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all
of the terms and provisions of this Agreement and such Person shall be entitled
to receive the benefits hereof.
(F) Third Party Beneficiary. Each of the Initial Purchasers
and each Holder shall be a third party beneficiary of the agreements made
hereunder between the Issuers, on the one hand, and the Initial Purchasers, on
the other hand, and shall have the right to enforce such agreements directly to
the extent it deems such enforcement necessary or advisable to protect its
rights or the rights of Holders hereunder.
(G) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
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(H) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(I) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. Specified
times of day refer to New York City time.
(J) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(K) Securities Held by the Issuers or any of their
Affiliates. Whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable
Securities held by the Issuers or any of their affiliates (as such term is
defined in Rule 405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
PROFFITT'S, INC.
By:
----------------------------
Name:
Title:
G.R. HERBERGER'S, INC.
By:
----------------------------
Name:
Title:
PARISIAN, INC.
By:
----------------------------
Name:
Title:
MCRAE'S, INC.
By:
----------------------------
Name:
Title:
MCRAE'S STORES PARTNERSHIP
By:McRae's, Inc., as managing general partner
By:
----------------------------
Name:
Title:
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MCRAE'S OF ALABAMA, INC.
By:
----------------------------
Name:
Title:
Confirmed and accepted as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
-----------------------
Name:
Title:
GOLDMAN, SACHS & CO.
By:
-----------------------
(Goldman, Sachs & Co)
SMITH BARNEY INC.
By:
-----------------------
Name:
Title:
-25-
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Exhibit A
Form of Opinion of Counsel
1. Each of the Exchange Offer Registration Statement and the
Prospectus (other than the financial statements, notes or schedules thereto and
other financial and statistical information and supplemental schedules included
or referred to therein or omitted therefrom and the Form T-1, as to which such
counsel need express no opinion), complies as to form in all material respects
with the applicable requirements of the Securities Act and the applicable rules
and regulations promulgated under the Securities Act.
2. In the course of such counsel's review and discussion of
the contents of the Exchange Offer Registration Statement and the Prospectus
with certain officers and other representatives of the Issuers and
representatives of the independent certified public accountants of the Issuers,
but without independent check or verification or responsibility for the
accuracy, completeness or fairness of the statements contained therein, on the
basis of the foregoing (relying as to materiality to a large extent upon
representations and opinions of officers and other representatives of the
Issuers), no facts have come to such counsel's attention which cause such
counsel to believe that the Exchange Offer Registration Statement (other than
the financial statements, notes and schedules thereto and other financial and
statistical information contained or referred to therein and the Form T-1, as
to which such counsel need express no belief), at the time the Exchange Offer
Registration Statement became effective and at the time of the consummation of
the Exchange Offer, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements contained therein not misleading, or that the Prospectus (other than
the financial statements, notes and schedules thereto and other financial and
statistical information contained or referred to therein, as to which such
counsel need express no belief) contains any untrue statement of a material
fact or omits to state a material fact necessary to make the statements
contained therein, in the light of the circumstances under which they were
made, not misleading.