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EXHIBIT 10
GENESCO INC.
$103,500,000
5 1/2% CONVERTIBLE SUBORDINATED NOTES DUE APRIL 15, 2005
REGISTRATION RIGHTS AGREEMENT
Dated as of
April 9, 1998
Goldman, Sachs & Co.
NationsBanc Montgomery Securities LLC
SBC Warburg Dillon Read Inc.
As representatives of the several
Purchasers named in Schedule I to
the Purchase Agreement
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Genesco Inc., a Tennessee corporation (the "Company"), proposes to
issue and sell to the Purchasers (as defined herein), upon the terms set forth
in a purchase agreement dated April 6, 1998 (the "Purchase Agreement") between
the Purchasers and the Company, its 5 1/2% Convertible Subordinated Notes Due
April 15, 2005 (the "Securities"). As an inducement to the Purchasers to enter
into the Purchase Agreement and in satisfaction of a condition to the
obligations of the Purchasers thereunder, the Company agrees with the
Purchasers, (i) for the benefit of the Purchasers and (ii) for the benefit of
the holders (as defined herein) from time to time of the Securities and the
Common Stock, par value $1.00 per share (the "Common Stock"), of the Company
issuable upon conversion of the Securities (collectively, the "Registrable
Securities"), including the Purchasers, as follows:
1. Definitions. (a) Capitalized terms used herein without definition
shall have their respective meanings set forth in or pursuant to the Purchase
Agreement or the Offering Circular, dated April 6, 1998, in respect of the
Securities. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" or "Securities Act" means the United States Securities Act of
1933, as amended.
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"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.
"Commission" means the United States Securities and Exchange
Commission.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning set forth in Section 2(b)
hereof.
"Effective Time" means the date on which the Commission declares the
Shelf Registration Statement effective or on which the Shelf Registration
Statement otherwise becomes effective.
"Electing Holder" has the meaning set forth in Section 3(a)(3) hereof.
"Exchange Act" means the United States Securities and Exchange Act of
1934, as amended.
The term "holder" means, when used with respect to any Security, the
holder (as defined in the Indenture) and, with respect to any Common Stock, the
record holder of such Common Stock.
"Indenture" means the Indenture, dated as of April 9, 1998, between the
Company and United States Trust Company of New York, as amended and supplemented
from time to time in accordance with its terms.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering,
if any, as set forth in Section 6 hereof.
"NASD" means the National Association of Securities Dealers, Inc.
"NASD Rules" means the Rules of the NASD, as amended from time to time.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
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"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, any preliminary prospectus, any final
prospectus and any prospectus that discloses information previously omitted from
a prospectus filed as part of an effective registration statement in reliance
upon Rule 430A under the Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of the
Registrable Securities covered by the Shelf Registration Statement and by all
other amendments and supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents filed after the
date of such prospectus by the Company under the Exchange Act and incorporated
by reference therein.
"Purchasers" means the Purchasers named in Schedule I to the Purchase
Agreement.
"Purchase Agreement" means the Purchase Agreement, dated April 6, 1998,
between the Purchasers and the Company.
"Registrable Securities" means all or any portion of the Securities
issued from time to time under the Indenture in registered form and the shares
of Common Stock issuable upon conversion of such Securities, including any
Securities initially issued in bearer form and constituting the unsold allotment
of a distributor (within the meaning of Regulation S under the Securities Act)
of such Securities and later exchanged for Securities in registered form;
provided, however, that a security ceases to be a Registrable Security when it
is no longer a Restricted Security.
"Restricted Security" means any Security or share of Common Stock
issuable upon conversion thereof except any such Security or share of Common
Stock which (i) has been effectively registered under the Securities Act and
sold in a manner contemplated by the Shelf Registration Statement, (ii) has been
transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto) or is transferable pursuant to paragraph (k) of
such Rule 144 (or any successor provision thereto), (iii) has been sold in
compliance with Regulation S under the Securities Act (or any successor thereto)
and does not constitute the unsold allotment of a distributor within the meaning
of Regulation S under the Securities Act, or (iv) has otherwise been transferred
and a new Security or share of Common Stock not subject to transfer restrictions
under the Securities Act has been delivered by or on behalf of the Company in
accordance with Section 3.5 of the Indenture.
"Shelf Registration" means a registration effected pursuant to Section
2 hereof.
"Shelf Registration Statement" means a shelf registration statement of
the Company pursuant to the provisions of Section 2 hereof filed with the
Commission which covers some or
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all of the Registrable Securities, as applicable, on an appropriate form under
Rule 415 under the Act, or any similar rule that may be adopted by the
Commission, amendments and supplements to 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.
"Suspension Event" shall mean either a Material Event Suspension Event
or a Report Suspension Event, each of which shall to have the meanings set forth
in Section 3(j).
"Trustee" shall mean United States Trust Company of New York or its
successor from time to time under the Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
as the same shall be amended from time to time.
"underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.
(b) Wherever there is a reference in this Agreement to a
percentage of the "principal amount" of Registrable Securities or to a
percentage of Registrable Securities, Common Stock shall be treated as
representing the principal amount of Securities which was surrendered for
conversion or exchange in order to receive such number of shares of Common
Stock.
2. Shelf Registration. (a) The Company shall, within 90 calendar days
following the First Time of Delivery (as defined in the Purchase Agreement ),
file with the Commission a Shelf Registration Statement relating to the offer
and sale of the Registrable Securities by the holders from time to time in
accordance with the methods of distribution elected by such holders and set
forth in such Shelf Registration Statement and, thereafter, shall use its best
efforts to cause such Shelf Registration Statement to be declared effective
under the Act by the Commission as promptly as practicable but no later than 270
calendar days after the First Time of Delivery; provided, however, that no
holder shall be entitled to have the Registrable Securities held by it covered
by such Shelf Registration unless such holder is an Electing Holder. If, at the
time the Company is required to file the Shelf Registration Statement pursuant
to this Section 2, the Company is not eligible to file a registration statement
on Form S-3 to register resales by securityholders, the Company shall initially
file a registration statement on Form S-1 and shall comply with the provisions
of the immediately preceding sentence. The Company shall, upon becoming eligible
to use Form S-3 to register resales by securityholders (whether pursuant to a
ruling or waiver from the Commission or otherwise), file as soon as practicable
a Shelf Registration Statement on Form S-3 or convert the existing Shelf
Registration Statement to Form S-3 relating to the offer and sale of the
Registrable Securities by the holders from time to time, but in no event shall
the Company file or convert such Shelf Registration Statement later than the
earlier of (i) 10 days after the date on which
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the Company becomes eligible to use Form S-3 and (ii) the date on which the
Company files its Annual Report on Form 10-K for its fiscal year ended January
30, 1999 provided that the Company is otherwise eligible to use Form S-3 to
register resales by securityholders on such date. Thereafter, the Company shall
use its best efforts to cause such new or amended Shelf Registration Statement
to be declared effective under the Act by the Commission as promptly as
practicable.
(b) The Company shall use its best efforts:
(i) To keep the Shelf Registration Statement continuously
effective in order to permit the Prospectus forming part thereof to be
usable by holders for a period of two years from the later of (x) the
Effective Time of the Shelf Registration Statement and (y) the last
Time of Delivery (as defined in the Purchase Agreement), or such
shorter period that will terminate when there are no Registrable
Securities outstanding (in either case, such period being referred to
herein as the ("Effectiveness Period");
(ii) After the Effective Time of the Shelf Registration
Statement, promptly upon the request of any holder of Registrable
Securities that is not then an Electing Holder, to take any action
reasonably necessary in such time period as is reasonably practicable
to enable such holder to use the Prospectus forming a part thereof for
resales of Registrable Securities, including, without limitation, any
action necessary to identify such holder as a selling securityholder in
the Shelf Registration Statement; provided, however, that nothing in
this subparagraph shall relieve such holder of the obligation to return
a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(a)(2) hereof; and
(iii) If at any time the Securities, pursuant to Article XIII of
the Indenture, are convertible into securities other than Common Stock,
to cause such other securities to be included in the Shelf Registration
Statement no later than the date on which the Securities may then be
convertible into such securities.
The Company shall be deemed not to have used its best efforts (within the
meaning of Section 11.12 of the Indenture) to keep the Shelf Registration
Statement effective during the Effectiveness Period if the Company voluntarily
takes any action that would result in any Electing Holders not being able to
offer and sell any such Registrable Securities during such period, unless (i)
such action is required by applicable law, or (ii) a Suspension Event occurs and
the Company complies with Section 3(j).
3. Registration Procedures. In connection with any Shelf Registration
Statement, the following provisions shall apply:
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(a) (1) Not less than 30 calendar days prior to the Effective
Time of the Shelf Registration Statement, the Company shall mail the
Notice and Questionnaire to the holders of Registrable Securities. No
holder shall be entitled to be named as a selling securityholder in the
Shelf Registration Statement as of the Effective Time, and no holder
shall be entitled to use the Prospectus forming a part thereof for
resales of Registrable Securities at any time, unless such holder has
returned a completed and signed Notice and Questionnaire to the Company
by the deadline for response set forth therein; provided, however,
holders of Registrable Securities shall have at least 28 calendar days
from the date on which the Notice and Questionnaire is first mailed by
the Company to return a completed and signed Notice and Questionnaire
to the Company.
(2) After the Effective Time of the Shelf Registration
Statement, the Company shall, upon the request of any holder of
Registrable Securities that is not then an Electing Holder, promptly
send a Notice and Questionnaire to such holder. The Company shall not
be required to take any action to name such holder as a selling
securityholder in the Shelf Registration Statement or to enable such
holder to use the Prospectus forming a part thereof for resales of
Registrable Securities until such holder has returned a completed and
signed Notice and Questionnaire to the Company.
(3) The term "Electing Holder" shall mean any holder of
Registrable Securities that has returned a completed and signed Notice
and Questionnaire to the Company in accordance with Section 3(a)(1) or
3(a)(2) hereof.
(b) The Company shall furnish to each Electing Holder under
Section 3(a)(1), prior to the Effective Time, a copy of any Shelf
Registration Statement initially filed with the Commission, and shall
furnish to all Electing Holders, prior to the filing thereof with the
Commission, copies of each amendment thereto and each amendment or
supplement, if any, to the Prospectus included therein and shall use
its best efforts to reflect in each such document, when so filed with
the Commission, such comments as the holders and their respective
counsel reasonably may propose.
(c) Subject to Section 3(j), the Company shall promptly take such
action as may be necessary so that (i) any Shelf Registration Statement
and any amendment thereto and any Prospectus forming part thereof and
any amendment or supplement thereto (and each report or other document
incorporated therein by reference in each case) complies in all
material respects with the Securities Act and the Exchange Act and the
respective rules and regulations thereunder, (ii) any Shelf
Registration Statement and any amendment thereto does not, when it
becomes effective, 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 (iii) any
Prospectus forming part of any Shelf Registration Statement, and any
amendment or supplement to such
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Prospectus, does not at any time during the Effectiveness Period
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements, in the light
of the circumstances under which they were made, not misleading.
(d) The Company shall promptly advise each Electing Holder and
shall confirm such advice in writing if so requested by any such
holder:
(i) when a Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto
has become effective;
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending effectiveness of the Shelf Registration Statement or
the initiation of any proceedings for such purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included in the Shelf Registration Statement for sale in any
jurisdiction or the initiation of any proceeding for such
purpose;
(v) of the happening of any event or the existence of any
state of facts that requires the making of any changes in the
Shelf Registration Statement or the Prospectus so that, as of
such date, the Shelf Registration Statement and the Prospectus
comply with the Securities Act and the Exchange Act and the rules
and regulations thereunder and otherwise do not contain an untrue
statement of a material fact and do not omit to state a material
fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of
the circumstances under which they were made) not misleading
(which advice shall be accompanied by an instruction to suspend
the use of the Prospectus until the requisite changes have been
made); and
(vi) of the occurrence of a Suspension Event.
(e) The Company shall use its best efforts to prevent the
issuance, and if issued to obtain the withdrawal, of any order
suspending the effectiveness of any Shelf Registration Statement at the
earliest possible time.
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(f) The Company shall furnish to each Electing Holder, without
charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if such holder so requests in writing, all reports,
other documents and exhibits included or incorporated by reference in
the Shelf Registration Statement.
(g) The Company shall, during the Effectiveness Period, deliver
to each Electing Holder, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such
Shelf Registration Statement and any amendment or supplement thereto as
such holder may reasonably request; and the Company consents (except
during the continuance of any event described in Section 3(d)(v) or
(vi)) to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Electing Holders in connection with the
offering and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto during the
Effectiveness Period.
(h) Prior to any offering of Registrable Securities pursuant to
any Shelf Registration Statement, the Company shall, if required by
applicable law, (i) register or qualify or cooperate with the Electing
Holders and their respective counsel in connection with the
registration or qualification of such Registrable Securities for offer
and sale under the securities or blue sky laws of such jurisdictions
within the United States as any Electing Holder may reasonably request,
(ii) keep such registrations or qualifications in effect and comply
with such laws so as to permit the continuance of offers and sales in
such jurisdictions for so long as may be necessary to enable any
Electing Holder or underwriter, if any, to complete its distribution of
Registrable Securities pursuant to the Shelf Registration Statement and
(iii) take any and all other actions necessary or advisable to enable
the offer and sale in such jurisdictions of the Registrable Securities
covered by such Shelf Registration Statement; provided, however, that
in no event shall the Company be obligated to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it
would not otherwise be required to so qualify but for this Section 3(h)
or (ii) file any general consent to service of process in any
jurisdiction where it is not as of the date hereof then so subject.
(i) Unless any Registrable Securities shall be in book-entry only
form, the Company shall cooperate with the Electing Holders to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold pursuant to any Shelf
Registration Statement which certificates, if so required by any
securities exchange upon which any Registrable Securities are listed,
shall be penned, lithographed or engraved, or produced by any
combination of such methods, on steel engraved borders, and which
certificates shall be free of any restrictive legends and in such
permitted denominations and registered in such names as holders may
request in
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connection with the sale of Registrable Securities pursuant to such
Shelf Registration Statement.
(j) Upon the occurrence of any event contemplated by Section
3(d)(v) above, the Company shall promptly prepare a post-effective
amendment to any Shelf Registration Statement or an amendment or
supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to purchasers of the
Registrable Securities included therein, the Prospectus will not
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
Notwithstanding the foregoing, the Company may postpone, for a period
not to exceed 30 days, supplementing or amending the Shelf Registration
Statement if (i) the Company is in possession of material non-public
information related to a proposed financing, recapitalization,
acquisition, business combination or other material transaction and the
Board of Directors of the Company determines (in good faith in a
written resolution) that disclosure of such information would have a
material adverse effect on the business or operations of the Company
and its subsidiaries and disclosure of such information, but for the
effectiveness of the Shelf Registration Statement is not otherwise
required by law and (ii) the Company delivers notice (which shall
include a statement to the effect that the Board of Directors has made
such determination and adopted such resolution) to the Electing Holders
and any placement agent or underwriter as contemplated by Section
3(d)(v) to the effect that Electing Holders may not make offers or
sales under the Shelf Registration Statement (a "Material Event
Suspension Event"); provided, however, that the Company may deliver
only two such notices within any 12-month period. Promptly upon the
earlier of (x) public disclosure of such material non-public
information, (y) the date on which such non-public information is no
longer material and (z) 30 days after the date notice is given by the
Company pursuant to clause (ii) above, the Company shall supplement or
amend the Shelf Registration Statement as required by the immediately
preceding sentence and give notice to the Electing Holders that offers
and sales under the Shelf Registration Statement may be resumed. In
addition, if the Shelf Registration Statement filed with the Commission
pursuant to Section 2 is on Form S-1, during the period commencing on
the date such Shelf Registration Statement on Form S-1 is declared
effective and ending on the date the Company is required pursuant to
Section 2 to file or convert a Shelf Registration Statement on Form
S-3, the Company may give notice to Electing Holders pursuant to
Section 3(d)(vi) that offers and sales under such Shelf Registration
Statement, and the use of the related Prospectus, are suspended during
the period commencing on (i) the date on which the Company files with
the Commission a Quarterly Report on Form 10-Q or an Annual Report on
Form 10-K or (ii) the date on which an event occurs requiring the
Company to file a Current Report on Form 8-K and, in each case, ending
on the date on which a post-effective amendment to the Shelf
Registration Statement updating the related Prospectus to reflect the
information
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contained in such Quarterly Report on Form 10-Q or Annual Report on
Form 10-K or the event reported by the Company in its Current Report on
Form 8-K (in any such case, an "Exchange Act Report") is declared
effective (a "Report Suspension Event"), provided, however, that the
Company shall file any such post-effective amendment to such Shelf
Registration Statement not later than the day on which it files any
such Exchange Act Report and shall use its best efforts to cause such
post-effective amendment to be declared effective as promptly as
practicable. If the Company notifies the Electing Holders of the
occurrence of any event contemplated by Section 3(d)(v) or 3(d)(vi),
each Electing Holder agrees, as a consequence of the inclusion of any
of such holder's Registrable Securities in the Shelf Registration
Statement, to suspend the use of the Prospectus until the requisite
changes to the Prospectus have been made.
(k) Not later than the Effective Time of any Shelf Registration
Statement hereunder, the Company shall provide a CUSIP number for the
Securities registered under such Shelf Registration Statement.
(l) The Company shall use its best efforts to comply with all
applicable rules and regulations of the Commission and shall make
generally available to their securityholders or otherwise provide in
accordance with Section 11(a) of the Securities Act as soon as
practicable, but in any event not later than eighteen months after (i)
the effective date of the applicable Shelf Registration Statement, (ii)
the effective date (as defined in Rule 158(c) under the Securities Act)
of each post-effective amendment to the Shelf Registration Statement,
and (iii) the date of each filing by the Company with the Commission of
an Annual Report on Form 10-K that is incorporated by reference in the
Shelf Registration Statement, an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder (including, at the option of
the Company, Rule 158).
(m) Not later than the Effective Time of the Shelf Registration
Statement, the Company shall cause the Indenture and the Securities to
be qualified under the Trust Indenture Act in a timely manner and, in
connection with such qualification, the Company shall cooperate with
the Trustee under the Indenture and the Holders (as defined in the
Indenture) 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 Trust Indenture Act; and the Company shall execute, and shall use
all reasonable efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner. In the event that any
such amendment or modification referred to in this Section 3(m)
involves the appointment of a new trustee under the Indenture, the
Company shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
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(n) The Company may require each holder of Registrable Securities
to be sold pursuant to any Shelf Registration Statement to furnish to
the Company such information regarding the holder and the distribution
of such Registrable Securities as may be required by applicable law or
regulation for inclusion in such Shelf Registration Statement and the
Company may exclude from such registration the Registrable Securities
of any holder that fails to furnish such information within a
reasonable time after receiving such request.
(o) The Company shall, if requested, promptly include or
incorporate in a Prospectus supplement or post-effective amendment to a
Shelf Registration Statement, such information as the Managing
Underwriters reasonably agree should be included therein and to which
the Company does not reasonably object and shall make all required
filings of such Prospectus supplement or post-effective amendment as
soon as practicable after they are notified of the matters to be
included or incorporated in such Prospectus supplement or
post-effective amendment.
(p) The Company shall enter into such customary agreements
(including underwriting agreements in customary form) and take all
other appropriate actions in order to expedite or facilitate the
registration or the disposition of the Registrable Securities, and in
connection therewith, if an underwriting agreement is entered into,
cause the same to contain indemnification provisions and procedures
substantially identical to those set forth in Section 5 (or such other
provisions and procedures acceptable to the Managing Underwriters, if
any) with respect to all parties to be indemnified pursuant to Section
5.
(q) The Company shall:
(i) make reasonably available for inspection by the Electing
Holders, any underwriter participating in any disposition
pursuant to such Shelf Registration Statement, and any attorney,
accountant or other agent retained by such holders or any such
underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and its
subsidiaries;
(ii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, cause the Company's officers,
directors and employees to supply all information reasonably
requested by such holders or any such underwriter, attorney,
accountant or agent in connection with any such Shelf
Registration Statement, in each case, as is customary for similar
due diligence examinations; provided, however, that any
information that is designated in writing by the Company, in good
faith, as confidential at the time of delivery of such
information shall be kept confidential by such holders or any
such underwriter, attorney, accountant or agent, unless such
disclosure is made in connection with a court
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proceeding or required by law, or such information becomes
available to the public generally or through a third party
without an accompanying obligation of confidentiality; and
provided further that, if the foregoing inspection and
information gathering would otherwise disrupt the Company's
conduct of business, such inspection and information gathering
shall, to the greatest extent possible, be coordinated on behalf
of the Electing Holders and the other parties entitled thereto by
one counsel designated by and on behalf of such Electing Holders
and other parties;
(iii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, make such representations and
warranties to the Electing Holders registered thereunder and to
the Managing Underwriters, in form, substance and scope as are
customarily made by the Company to underwriters in primary
underwritten offerings and covering matters including, but not
limited to, those set forth in the Purchase Agreement;
(iv) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain opinions of counsel to the
Company and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the
Managing Underwriters) addressed to each selling holder and the
underwriters covering such matters as are customarily covered in
opinions requested in primary underwritten offerings of equity
and convertible debt securities and such other matters as may be
reasonably requested by such holders and underwriters (it being
agreed that the matters to be covered by such opinion or written
statement by such counsel delivered in connection with such
opinions shall include, without limitation, as of the date of the
opinion and as of the effective date of the Shelf Registration
Statement or most recent post-effective amendment thereto, as the
case may be, the absence from such Shelf Registration Statement
and the Prospectus included therein, as then amended or
supplemented, including the documents incorporated by reference
therein, of an untrue statement of a material fact or the
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case
of a Prospectus, in light of the circumstances under which they
were made,) not misleading;
(v) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain "cold comfort" letters and
updates thereof from the independent public accountants of the
Company (and, if necessary, any other independent public
accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Shelf
Registration Statement), addressed to each selling holder and the
underwriters in customary form and covering matters
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of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings;
(vi) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, deliver such documents and
certificates as may be reasonably requested by any such holders
participating in such underwritten offering and the Managing
Underwriters, including those to evidence compliance with Section
3(i) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Company.
The foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of
this Section 3(q) shall be performed at each closing under any
underwritten offering to the extent required thereunder.
(r) The Company will use its best efforts to cause the Common
Stock issuable upon conversion of the Securities to be listed for
quotation on the New York Stock Exchange or other stock exchange or
trading system on which the Common Stock primarily trades on or prior
to the Effective Time of any Shelf Registration Statement hereunder.
(s) In the event that any broker-dealer registered under the
Exchange Act shall be an "affiliate" (as defined in Rule 2720(b)(1) of
the NASD Rules (or any successor provision thereto)) of the Company or
has a "conflict of interest" (as defined in Rule 2720(b)(7) of the NASD
Rules (or any successor provision thereto)) and such broker-dealer
shall underwrite any Registrable Securities or participate as a member
of an underwriting syndicate or selling group or assist in the
distribution thereof, whether as a holder of such Registrable
Securities or as an underwriter, a placement or sales agent or a broker
or dealer in respect thereof, or otherwise, the Company shall assist
such broker-dealer in complying with the requirements of the NASD
Rules, including, without limitation, by (A) engaging a "qualified
independent underwriter" (as defined in Rule 2720(b)(15) of the NASD
Rules (or any successor provision thereto)) to participate in the
preparation of the Shelf Registration Statement relating to such
Registrable Securities, to exercise usual standards of due diligence in
respect thereto, and to recommend the public offering price of such
Registrable Securities, (B) indemnifying any such qualified
independent underwriter to the extent of the indemnification of
underwriters provided in Section 5 hereof and (C) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the NASD Rules.
(t) The Company shall use its best efforts to take all other
steps necessary to effect the registration, offering and sale of the
Registrable Securities covered by the Shelf Registration Statement
contemplated hereby.
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4. Registration Expenses. The Company shall bear all fees and expenses
incurred in connection with the performance of its obligations under Sections 2,
3 and 6 hereof. In addition, in the event of an underwritten offering of
Registrable Securities conducted pursuant to Section 6 hereof, or if in any
other event the Company requires that inspection and information gathering be
coordinated by counsel for the Electing Holders as provided in Section 3(q)(ii)
hereof, the Company shall pay the reasonable fees and expenses of a single
counsel selected by the Electing Holders of not less than 25% of the Registrable
Securities covered by the Shelf Registration Statement to act as counsel
therefor in connection therewith. The Electing Holders participating in such
offering (or, in any such other event, participating in such inspection and
information gathering) shall be responsible, on a pro rata basis based on the
respective amount of their Registrable Securities included in such offering, for
all fees and expenses of such counsel in excess of $75,000. Except as set forth
herein, all fees and expenses of counsel to the Electing Holders shall be borne
by the Electing Holders.
5. Indemnification and Contribution.
(a) Indemnification by the Company. Upon the registration of the
Registrable Securities pursuant to Section 2 hereof, the Company shall indemnify
and hold harmless each Electing Holder and each underwriter, selling agent or
other securities professional, if any, which facilitates the disposition of
Registrable Securities, and each of their respective officers and directors and
each person who controls such Electing Holder, underwriter, selling agent or
other securities professional within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (each such person being sometimes referred
to as an "Indemnified Person") against any losses, claims, damages or
liabilities, joint or several, to which such Indemnified Person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Shelf Registration Statement under which such Registrable
Securities are to be registered under the Securities Act, or any Prospectus
contained therein or furnished by the Company to any Indemnified Person, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and the
Company hereby agrees to reimburse such Indemnified Person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable to any such Indemnified Person in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such Shelf Registration Statement or
Prospectus, or amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by such Indemnified Person
expressly for use therein.
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(b) Indemnification by the Holders and any Agents and Underwriters.
Each Electing Holder agrees, as a consequence of the inclusion of any of such
holder's Registrable Securities in such Shelf Registration Statement, and each
underwriter, selling agent or other securities professional, if any, which
facilitates the disposition of Registrable Securities shall agree, as a
consequence of facilitating such disposition of Registrable Securities,
severally and not jointly, to (i) indemnify and hold harmless the Company, its
directors, officers who sign any Shelf Registration Statement and each person,
if any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any losses, claims,
damages or liabilities to which the Company or such other persons may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in such Shelf Registration Statement or Prospectus, or any amendment
or supplement, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such holder,
underwriter, selling agent or other securities professional expressly for use
therein, and (ii) reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party under this Section 5, notify such
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under this Section 5. In
case any such action shall be brought against any indemnified party and it shall
notify an indemnifying party of the commencement thereof, such indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party under this
Section 5 for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or
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judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim 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) Contribution. If the indemnification provided for in this Section 5
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 5(d) were determined by
pro rata allocation (even if the Electing Holders or any underwriters, selling
agents or other securities professionals or all of them were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this Section 5(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. 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 obligations of the Electing Holders and any underwriters,
selling agents or other securities professionals in this Section 5(d) to
contribute shall be several in proportion to the percentage of principal amount
of Registrable Securities registered or underwritten, as the case may be, by
them and not joint.
(e) Notwithstanding any other provision of this Section 5, in no event
will any (i) Electing Holder be required to undertake liability to any person
under this Section 5 for any amounts in excess of the dollar amount of the
proceeds to be received by such holder from the sale of such holder's
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) pursuant to any Shelf Registration Statement under which
such Registrable Securities are to be registered under the Securities Act and
(ii) underwriter, selling agent or other securities professional be required to
undertake liability to any person hereunder for any amounts in excess of the
discount, commission or other compensation payable to such
16
17
underwriter, selling agent or other securities professional with respect to the
Registrable Securities underwritten by it and distributed to the public.
(f) The obligations of the Company under this Section 5 shall be in
addition to any liability which the Company may otherwise have to any
Indemnified Person and the obligations of any Indemnified Person under this
Section 5 shall be in addition to any liability which such Indemnified Person
may otherwise have to the Company. The remedies provided in this Section 5 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to an indemnified party at law or in equity.
6. Underwritten Offering. Any holder of Registrable Securities covered
by the Shelf Registration Statement who desires to do so may sell such
Registrable Securities in an underwritten offering. In any such underwritten
offering, the investment banker or bankers and manager or managers that will
administer the offering will be selected by, and the underwriting arrangements
with respect thereto will be approved by the holders of a majority of the
Registrable Securities to be included in such underwritten offering; provided,
however, that (i) such investment bankers and managers and underwriting
arrangements must be reasonably satisfactory to the Company and (ii) the Company
shall not be obligated to arrange for more than one underwritten offering during
the Effectiveness Period. No holder may participate in any underwritten offering
contemplated hereby unless such holder (a) agrees to sell such holder's
Registrable Securities in accordance with any approved underwriting
arrangements, (b) completes and executes all reasonable questionnaires, powers
of attorney, indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such approved underwriting arrangements
and (c) holders have requested that at least 20% of the outstanding Registrable
Securities be included in such underwritten offering. The holders participating
in any underwritten offering shall be responsible for any expenses customarily
borne by selling securityholders, including underwriting discounts and
commissions and, subject to Section 4, fees and expenses of counsel to the
selling securityholders. The Company shall pay all expenses customarily borne by
issuers, including but not limited to filing fees, the fees and disbursements of
its counsel and independent public accountants and any printing expenses
incurred in connection with such underwritten offering.
7. Miscellaneous.
(a) Other Registration Rights. The Company may grant registration
rights that would permit any Person that is a third party the right to
piggy-back on any Shelf Registration Statement, provided, however, that if the
Managing Underwriter, if any, of an underwritten offering conducted pursuant to
Section 6 hereof notifies the Company and the Electing Holders that the total
amount of securities which the Electing Holders and the holders of such
piggy-back rights intend to include in any Shelf Registration Statement is so
large as to materially adversely affect the success of such offering (including
the price at which such securities can be sold), then only the amount, the
number or kind of securities to be offered for
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the account of holders of such piggy-back rights will be reduced to the extent
necessary to reduce the total amount of securities to be included in such
offering to the amount, number or kind recommended by the Managing Underwriter
prior to any reduction in the amount of Registrable Securities to be included.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
holders of a majority in aggregate principal amount of Registrable Securities
then outstanding. Each holder of Registrable Securities outstanding at the time
of any such amendment, waiver or consent or thereafter shall be bound by any
amendment, waiver or consent effected pursuant to this Section 7(b), whether or
not any notice, writing or marking indicating such amendment, waiver or consent
appears on the Registrable Securities or is deliverable to such holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be given as provided for in the Indenture.
The Purchasers or the Company by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(d) Parties in Interest; Successors and Assigns. The parties to this
Agreement intend that all holders of Registrable Securities shall be entitled to
receive the benefits of this Agreement by reason of such election with respect
to the Registrable Securities which are included in a Shelf Registration
Statement. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties and the holders, including,
without the need for an express assignment or any consent by the Company
thereto, subsequent holders of Registrable Securities. The Company hereby agrees
to extend the benefits of this Agreement to any holder of Registrable Securities
and any such holder may specifically enforce the provisions of this Agreement as
if an original party hereto.
(e) 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.
(f) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) 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.
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(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(i) Survival. The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made pursuant
hereto shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any
Electing Holder, any director, officer or partner of such holder, any agent or
underwriter, any director, officer or partner of such agent or underwriter, or
any controlling person of any of the foregoing, and shall survive the transfer
and registration of the Registrable Securities of such holder.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
GENESCO INC.
By:
-------------------------------
Name:
Title:
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
Goldman, Sachs & Co.
NationsBanc Montgomery Securities LLC
SBC Warburg Dillon Read Inc.
- -------------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Purchasers
Listed in Schedule I to the Purchase Agreement
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Exhibit A
GENESCO INC.
INSTRUCTION TO DTC PARTICIPANTS
____________ __, 199__
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: _______ ___, 199__
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in Genesco Inc. (the "Company")
5 1/2% Convertible Subordinated Notes due April 15, 2005 (the "Securities") are
held.
The Company is in the process of registering the Securities under
the Securities Act of 1933 for resale by the beneficial owners thereof. In order
to have their Securities included in the registration statement, beneficial
owners must complete and return the enclosed Notice of Registration Statement
and Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive
a copy of the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by ________ __, 199_. Please forward a copy of the
enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact Roger G. Sission,
General Counsel, Genesco Inc., Genesco Park, 1415 Murfreesboro Road, Nashville,
Tennessee 37217-2895, Telephone No. (615) 367-7000.
22
GENESCO INC.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
________ __, 199_
Reference is hereby made to the Registration Rights Agreement
(the "Registration Rights Agreement") between Genesco Inc. (the "Company") and
the Purchasers named therein. Pursuant to the Registration Rights Agreement, the
Company has filed with the United States Securities and Exchange Commission (the
"Commission") a registration statement on Form S-___ (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "Securities Act"), of the Company's 5 1/2% Convertible
Subordinated Notes due April 15, 2005 (the "Securities") and the shares of
common stock, par value $1.00 per share (the "Common Stock"), issuable upon
conversion thereof. A copy of the Registration Rights Agreement is attached
hereto. All capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined
below) is entitled to have the Registrable Securities beneficially owned by it
included in the Shelf Registration Statement. In order to have Registrable
Securities included in the Shelf Registration Statement, this Notice of
Registration Statement and Selling Securityholder Questionnaire ("Notice and
Questionnaire") must be completed, executed and delivered to the Company's
counsel at the address set forth herein for receipt on or before _________ __,
199__. Beneficial owners of Registrable Securities who do not complete, execute
and return this Notice and Questionnaire by such date (i) will not be named as
selling securityholders in the Shelf Registration Statement and (ii) may not use
the Prospectus forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
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The term "Registrable Securities" is defined in the Registration
Rights Agreement to mean all or any portion of the Securities issued from time
to time under the Indenture in registered form and the shares of Common Stock
issuable upon conversion of such Securities, including any Securities initially
issued in bearer form and constituting the unsold allotment of a distributor
(within the meaning of Regulation S under the Securities Act) of such Securities
and later exchanged for Securities in registered form; provided, however, that a
security ceases to be a Registrable Security when it is no longer a Restricted
Security.
The term "Restricted Security" is defined in the Registration
Rights Agreement to mean any Security or share of Common Stock issuable upon
conversion thereof except any such Security or share of Common Stock which (i)
has been effectively registered under the Securities Act and sold in a manner
contemplated by the Shelf Registration Statement, (ii) has been transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or is transferable pursuant to paragraph (k) of such Rule 144 (or any
successor provision thereto), (iii) has been sold in compliance with Regulation
S under the Securities Act (or any successor thereto) and does not constitute
the unsold allotment of a distributor within the meaning of Regulation S under
the Securities Act, or (iv) has otherwise been transferred and a new Security or
share of Common Stock not subject to transfer restrictions under the Securities
Act has been delivered by or on behalf of the Company in accordance with Section
3.5 of the Indenture.
ELECTION
The undersigned holder (the "Selling Securityholder") of
Registrable Securities hereby elects to include in the Shelf Registration
Statement the Registrable Securities beneficially owned by it and listed below
in Item (3). The undersigned, by signing and returning this Notice and
Questionnaire, agrees to be bound with respect to such Registrable Securities by
the terms and conditions of this Notice and Questionnaire and the Registration
Rights Agreement, including, without limitation, Section 5 of the Registration
Rights Agreement, as if the undersigned Selling Securityholder were an original
party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company and Trustee the Notice of Transfer set forth in Appendix A to the
Prospectus. This Notice of Transfer is set forth as Exhibit B to the
Registration Rights Agreement.
The Selling Securityholder hereby provides the following
information to the Company and represents and warrants that such information is
accurate and complete:
A-3
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QUESTIONNAIRE
(i) (i) Full Legal Name of Selling Securityholder:
----------------------------------------------------------------
(ii) Full Legal Name of Registered Holder (if not the same as in (a)
above) of Registrable Securities Listed in (3) below:
----------------------------------------------------------------
(iii) Full Legal Name of DTC Participant (if applicable and if not the
same as (b) above) Through Which Registrable Securities Listed in
(3) below are Held:
----------------------------------------------------------------
A-4
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(j) Address for Notices to Selling Securityholder:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Telephone:
--------------
Fax:
--------------
Contact Person:
--------------
(k) Beneficial Ownership of Securities and shares of Common Stock issued
upon conversion of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities or shares of Common Stock issued upon conversion
of any Securities.
(i) Principal amount of Registrable Securities (as defined in the
Registration Rights Agreement) beneficially owned:______________
CUSIP No(s). of such Registrable Securities:____________________
Number of shares of Common Stock (if any) issued upon conversion
of such Registrable Securities:_________________________________
(ii) Principal amount of Securities other than Registrable Securities
beneficially owned:_____________________________________________
CUSIP No(s). of such other Securities:__________________________
Number of shares of Common Stock (if any) issued upon conversion
of such other Securities:_______________________________________
(iii) Principal amount of Registrable Securities which the undersigned
wishes to be included in the Shelf Registration Statement:
________________________________________________________________
CUSIP No(s). of such Registrable Securities to be included in
the Shelf Registration Statement:_______________________________
A-5
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Number of shares of Common Stock (if any) issued upon conversion
of Registrable Securities which are to be included in the Shelf
Registration Statement:_________________________________________
(l) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any shares of Common
Stock or any other securities of the Company, other than the Securities and
shares of Common Stock listed above in Item (3).
State any exceptions here:
(m) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5% or more)
has held any position or office or has had any other material relationship with
the Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
(n) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item (3) only
as follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Securityholder or, alternatively,
through underwriters, broker-dealers or agents. Such Registrable Securities may
be sold in one or more transactions at fixed prices, at prevailing market prices
at the time of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which may involve
crosses or block transactions) (i) on any national securities exchange or
quotation service on which the Registered Securities may be listed or quoted at
the time of sale, (ii) in the over-the-counter market, (iii) in transactions
otherwise than on such exchanges or services or in the over-the-counter market,
or (iv) through the writing of options. In connection with sales of the
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27
Registrable Securities or otherwise, the Selling Securityholder may enter into
hedging transactions with broker-dealers, which may in turn engage in short
sales of the Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable Securities short
and deliver Registrable Securities to close out such short positions, or loan or
pledge Registrable Securities to broker-dealers that in turn may sell such
securities.
State any exceptions here:
Note: In no event may such method(s) of distribution take the form of
an underwritten offering of the Registrable Securities without the prior
agreement of the Company.
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder,
particularly Rule 10b-6.
In the event that the Selling Securityholder transfers all or any
portion of the Registrable Securities listed in Item (3) above after the date on
which such information is provided to the Company, the Selling Securityholder
agrees to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
By signing below, the Selling Securityholder consents to the disclosure
of the information contained herein in its answers to Items (1) through (6)
above and the inclusion of such information in the Shelf Registration Statement
and related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Company in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under
Section 3(a) of the Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which
A-7
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may occur subsequent to the date hereof at any time while the Shelf Registration
Statement remains in effect. All notices hereunder and pursuant to the
Registration Rights Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
Genesco Inc.
Genesco Park
1415 Murfreesboro Road
Nashville, Tennessee 37217-2895
Attn: Roger G. Sisson, General Counsel
(ii) With a copy to:
Bass, Berry & Sims PLC
2700 First American Center
Nashville, Tennessee 37238-2700
Attn: J. Gentry Barden
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in Item
(3) above. This Agreement shall be governed in all respects by the laws of the
State of New York.
A-8
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IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
-----------------
-------------------------------------------------
Selling Securityholder
(Print/type full legal name of beneficial
owner of Registrable Securities)
By:
---------------------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND
QUESTIONNAIRE FOR RECEIPT ON OR BEFORE ___________ __, 199__ TO THE COMPANY'S
COUNSEL AT:
Bass, Berry & Sims PLC
2700 First American Center
Nashville, Tennessee 37238-2700
Attn: J. Gentry Barden
A-9
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Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
[Name of Trustee]
Genesco Inc.
[Address of Trustee]
Attention: [Corporate Trust Services]
Re: Genesco Inc. (the "Company")
5 1/2% Convertible Subordinated Notes due April 15, 2005 (the
"Notes")
Dear Sirs:
Please be advised that _____________________ has transferred
$___________ aggregate principal amount of the above-referenced Notes pursuant
to an effective Registration Statement on Form [S-1][S-3] (File No. 333-____)
filed by the Company.
We hereby certify that the prospectus delivery requirements, if
any, of the Securities Act of 1933, as amended, have been satisfied and that the
above-named beneficial owner of the Notes is named as a "Selling Holder" in the
Prospectus dated ___________, 199__ or in supplements thereto, and that the
aggregate principal amount of the Notes transferred are the Notes listed in such
Prospectus opposite such owner's name.
Dated:
Very truly yours,
----------------------------
(Name)
By:
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(Authorized Signature)