REGISTRATION RIGHTS AGREEMENT
Dated as of June 8, 2001
By and Among
VENATOR GROUP, INC.,
as Issuer
and
J.P. MORGAN SECURITIES INC.,
BANC OF AMERICA SECURITIES LLC,
BNY CAPITAL MARKETS, INC.,
FIRST UNION SECURITIES, INC.
SCOTIA CAPITAL (USA) INC.,
and
FLEET SECURITIES, INC.,
as Initial Purchasers
5.50% Convertible Subordinated Notes Due 2008
TABLE OF CONTENTS
Page
1. Definitions..........................................................1
2. Shelf Registration...................................................4
3. Liquidated Damages...................................................6
4. Registration Procedures..............................................7
5. Registration Expenses...............................................14
6. Indemnification.....................................................15
7. Rules 144 and 144A..................................................18
8. Underwritten Registrations..........................................18
9. Miscellaneous.......................................................19
(a) No Inconsistent Agreements...................................19
(b) Adjustments Affecting Registrable Securities.................19
(c) Amendments and Waivers.......................................19
(d) Notices......................................................19
(e) Successors and Assigns.......................................21
(f) Counterparts.................................................21
(g) Headings.....................................................21
(h) Governing Law................................................21
(i) Severability.................................................21
(j) Securities Held by the Company or Its Affiliates.............21
(k) Third Party Beneficiaries....................................22
(l) Entire Agreement.............................................22
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as
of June 8, 2001, by and among VENATOR GROUP, INC., a New York corporation
(the "Company"), J.P. MORGAN SECURITIES INC., BANC OF AMERICA SECURITIES
LLC, BNY CAPITAL MARKETS, INC., FIRST UNION SECURITIES, INC., SCOTIA
CAPITAL (USA) INC. and FLEET SECURITIES, INC. (individually, an "Initial
Purchaser" and, together, the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated June 4, 2001 (the "Purchase Agreement"), by and among the
Company and the Initial Purchasers, which provides for the sale by the
Company to the Initial Purchasers of $125,000,000 aggregate principal
amount of the Company's 5.50% Convertible Subordinated Notes Due 2008 (the
"Firm Notes"), which are convertible into Common Stock of the Company, par
value $.01 per share (the "Underlying Shares"), plus up to an additional
$25,000,000 aggregate principal amount of the same that the Initial
Purchasers may subsequently elect to purchase pursuant to the terms of the
Purchase Agreement (the "Additional Notes" and, together with the Firm
Notes, the "Convertible Notes"). The Convertible Notes are being issued
pursuant to an indenture dated as of the date hereof (the "Indenture")
between the Company and The Bank of New York, as Trustee.
In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Company has agreed to provide the registration
rights set forth in this Agreement for the benefit of the Initial
Purchasers and any subsequent holder or holders of the Convertible Notes or
Underlying Shares. The execution and delivery of this Agreement is a
condition to the Initial Purchasers' obligation to purchase the Firm Notes
under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions.
As used in this Agreement, the following terms shall have the
following meanings:
Agreement: See the first introductory paragraph hereto.
Amount of Registrable Securities: (a) With respect to Convertible
Notes constituting Registrable Securities, the aggregate principal amount
of all such Convertible Notes outstanding, (b) with respect to Underlying
Shares constituting Registrable Securities, the aggregate number of such
Underlying Shares outstanding multiplied by the Conversion Price (as
defined in the Indenture relating to the Convertible Notes upon the
conversion of which such Underlying Shares were issued) in effect at the
time of computing the Amount of Registrable Securities or, if no such
Convertible Notes are then outstanding, the last Conversion Price that was
in effect under such Indenture when any such Convertible Notes were last
outstanding, and (c) with respect to combinations thereof, the sum of (a)
and (b) for the relevant Registrable Securities.
Business Day: Any day that is not a Saturday, Sunday or a day on
which banking institutions in New York are authorized or required by law to
be closed.
Closing Date: June 8, 2001.
Company: See the first introductory paragraph hereto.
Convertible Notes: See the second introductory paragraph hereto.
Damages Payment Date: See Section 3(c) hereof.
Depositary: The Depository Trust Company until a successor is
appointed by the Company.
Effectiveness Date: The 180th day after the Closing Date.
Effectiveness Period: See Section 2 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Filing Date: The 90th day after the Closing Date.
Holder: Any holder of Registrable Securities.
Indemnified Holder: See Section 6 hereof.
Indemnified Person: See Section 6 hereof.
Indemnifying Person: See Section 6 hereof.
Indenture: See the second introductory paragraph hereto.
Initial Purchasers: See the first introductory paragraph hereto.
Initial Shelf Registration: See Section 2(a) hereof.
Inspectors: See Section 4(n) hereof.
Liquidated Damages: See Section 3(a) hereof.
NASD: See Section 4(q) hereof.
Person: An individual, partnership, corporation, limited liability
company, unincorporated association, trust or joint venture, or a
governmental agency or political subdivision thereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance
upon Rule 430A promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by
reference in such Prospectus.
Purchase Agreement: See the second introductory paragraph hereto.
QIU: See Section 4(q) hereof.
Questionnaire Deadline: See Section 2(d) hereof.
Records: See Section 4(n) hereof.
Registrable Securities: All Convertible Notes and all Underlying
Shares upon original issuance thereof and at all times subsequent thereto
until the earliest to occur of (i) a Registration Statement covering such
Convertible Notes and Underlying Shares having been declared effective by
the SEC and such Convertible Notes and Underlying Shares have been disposed
of in accordance with such effective Registration Statement, (ii) such
Convertible Notes and Underlying Shares having been sold in compliance with
Rule 144 or could (except with respect to affiliates of the Company within
the meaning of the Securities Act) be sold in compliance with Rule 144(k)
and (iii) such Convertible Notes and any Underlying Shares cease to be
outstanding.
Registration Default: See Section 3(a) hereof.
Registration Statement: Any registration statement of the Company
filed with the SEC pursuant to the provisions of this Agreement, including
the Prospectus, amendments and supplements to such registration statement,
including post-effective amendments, all exhibits and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and
sales of securities made in compliance therewith resulting in offers and
sales by subsequent holders that are not affiliates of an issuer of such
securities being free of the registration and prospectus delivery
requirements of the Securities Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Shelf Registration: See Section 2(b) hereof.
Shelf Registration Statement: See Section 2(b) hereof.
Subsequent Shelf Registration: See Section 2(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Trustee: The Trustee under the Indenture.
Underlying Shares: See the second introductory paragraph hereto.
Underwritten registration or underwritten offering: A registration
in which securities of the Company are sold to an underwriter for
reoffering to the public.
2. Shelf Registration.
(a) Shelf Registration. The Company shall file with the SEC a
Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering all of the Registrable Securities (the
"Initial Shelf Registration") on or prior to the Filing Date. The Initial
Shelf Registration shall be on Form S-3 or another appropriate form
permitting registration of such Registrable Securities for resale by
Holders in the manner or manners designated by them (including, without
limitation, one or more underwritten offerings). The Company shall not
permit any securities other than the Registrable Securities to be included
in the Initial Shelf Registration or any Subsequent Shelf Registration (as
defined below).
The Company shall use its reasonable best efforts to cause the
Initial Shelf Registration to be declared effective under the Securities
Act on or prior to the Effectiveness Date and to keep such Initial Shelf
Registration continuously effective under the Securities Act until the date
that is two years from the Closing Date (as it may be shortened pursuant to
clause (i) or clause (ii) immediately following, the "Effectiveness
Period"), or such shorter period ending when (i) all the Registrable
Securities covered by the Initial Shelf Registration have been sold in the
manner set forth and as contemplated in the Initial Shelf Registration,
(ii) the date on which all the Registrable Securities (x) held by Persons
who are not affiliates of the Company may be resold pursuant to Rule 144(k)
under the Securities Act or (y) cease to be outstanding or (iii) a
Subsequent Shelf Registration covering all of the Registrable Securities
has been declared effective under the Securities Act.
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be effective
for any reason at any time during the Effectiveness Period (other than
because of the sale of all of the securities registered thereunder), the
Company shall use its reasonable best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any
event shall within 45 days of such cessation of effectiveness amend the
Initial Shelf Registration or any subsequent Shelf Registration, as the
case may be, in a manner to obtain the withdrawal of the order suspending
the effectiveness thereof, or file an additional "shelf" Registration
Statement pursuant to Rule 415 covering all of the Registrable Securities
(a "Subsequent Shelf Registration"). If a Subsequent Shelf Registration is
filed, the Company shall use its reasonable best efforts to cause the
Subsequent Shelf Registration to be declared effective under the Securities
Act as soon as practicable after such filing and to keep such Registration
Statement continuously effective for a period equal to the number of days
in the Effectiveness Period less the aggregate number of days during which
the Initial Shelf Registration or any Subsequent Shelf Registration was
previously continuously effective. As used herein the term "Shelf
Registration" means the Initial Shelf Registration and any Subsequent Shelf
Registration and the term "Shelf Registration Statement" means any
Registration Statement filed in connection with a Shelf Registration.
(c) Supplements and Amendments. The Company shall promptly
supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for
such Shelf Registration, if required by the Securities Act, or if
reasonably requested by the Holders of the majority in Amount of
Registrable Securities covered by such Registration Statement or by any
underwriter of such Registrable Securities.
(d) Information from Holders. No Holder of Registrable Securities
may include any of its Registrable Securities in the Shelf Registration
Statement pursuant to this Agreement unless such Holder furnishes to the
Company in writing, prior to or on the 25th Business Day after receipt of a
request therefor (the "Questionnaire Deadline"), such information as the
Company may reasonably request for use in connection with the Shelf
Registration Statement or Prospectus or preliminary Prospectus included
therein and in any application to be filed with or under state securities
laws. In connection with all such requests for information from Holders of
Registrable Securities, the Company shall notify such Holders of the
requirements set forth in the preceding sentence. No Holder of Registrable
Securities shall be entitled to Liquidated Damages pursuant to Section 3
hereof unless such Holder shall have provided all such reasonably requested
information prior to or on the Questionnaire Deadline. Each Holder as to
which the Shelf Registration Statement is being effected agrees to furnish
promptly to the Company all information required to be disclosed in order
to make information previously furnished to the Company by such Holder not
materially misleading.
3. Liquidated Damages.
(a) The Company and the Initial Purchasers agree that the Holders
of Registrable Securities will suffer damages if the Company fails to
fulfill its obligations under Section 2 hereof and that it would not be
feasible to ascertain the extent of such damages with precision.
Accordingly, the Company agrees to pay liquidated damages on the
Registrable Securities ("Liquidated Damages") under the circumstances and
to the extent set forth below (each of which shall be given independent
effect; each a "Registration Default"):
(i) if the Initial Shelf Registration is not filed on or prior to
the Filing Date, then commencing on the day after the Filing Date,
Liquidated Damages shall accrue on the Registrable Securities at a
rate of 0.25% per annum on the Amount of Registrable Securities for
the first 90 days immediately following the Filing Date, such
Liquidated Damages increasing by an additional 0.25% per annum at the
beginning of each subsequent 90-day period;
(ii) if the Initial Shelf Registration is not declared effective
by the SEC on or prior to the Effectiveness Date, then commencing on
day after the Effectiveness Date, Liquidated Damages shall accrue on
the Registrable Securities at a rate of 0.25% per annum on the Amount
of Registrable Securities for the first 90 days immediately following
the day after such Effectiveness Date, such Liquidated Damages
increasing by an additional 0.25% per annum at the beginning of each
subsequent 90-day period; and
(iii) if a Shelf Registration has been declared effective and such
Shelf Registration ceases to be effective at any time during the
Effectiveness Period (other than as permitted under Section 3(b)),
Liquidated Damages shall accrue on the Registrable Securities at a
rate of 0.25% per annum on the Amount of Registrable Securities for
the first 90 days commencing on the day such Shelf Registration ceases
to be effective, such Liquidated Damages increasing by an additional
0.25% per annum at the beginning of each such subsequent 90-day
period;
provided, however, that Liquidated Damages on the Registrable Securities
may not accrue under more than one of the foregoing clauses (i), (ii) or
(iii) at any one time and at no time shall the aggregate amount of
Liquidated Damages accruing exceed in the aggregate 0.50% per annum of the
Amount of Registrable Securities; provided, further, however, that (1) upon
the filing of the Shelf Registration as required hereunder (in the case of
clause (a)(i) of this Section 3), (2) upon the effectiveness of the Shelf
Registration as required hereunder (in the case of clause (a)(ii) of this
Section 3) or (3) upon the effectiveness of a Shelf Registration which had
ceased to remain effective (in the case of (a)(iii) of this Section 3),
Liquidated Damages on the Registrable Securities as a result of such clause
(or the relevant subclause thereof), as the case may be, shall cease to
accrue. It is understood and agreed that, notwithstanding any provision to
the contrary, (i) so long as any Registrable Security is then covered by an
effective Shelf Registration Statement, no Liquidated Damages shall accrue
on such Registrable Security.
(b) Notwithstanding paragraph (a) of this Section 3, the Company
shall be permitted to suspend the effectiveness of a Shelf Registration for
up to 45 consecutive days in any 90-day period, for a total of not more
than 90 days in any 365-day period, without paying Liquidated Damages.
(c) So long as Convertible Notes remain outstanding, the Company
shall notify the Trustee within two Business Days after each and every date
on which an event occurs in respect of which Liquidated Damages is required
to be paid. Any amounts of Liquidated Damages due pursuant to (a)(i),
(a)(ii) or (a)(iii) of this Section 3 will be payable in cash semi-annually
on each June 1 and December 1 (each a "Damages Payment Date"), commencing
with the first such date occurring after any such Liquidated Damages
commences to accrue, to Holders to whom regular interest is payable on such
Damages Payment Date with respect to Convertible Notes that are Registrable
Securities and to Persons that are registered Holders 15 days prior to such
Damages Payment Date with respect to Underlying Shares that are Registrable
Securities. The amount of Liquidated Damages for Registrable Securities
will be determined by multiplying the applicable rate of Liquidated Damages
by the Amount of Registrable Securities outstanding on the Damages Payment
Date following such Registration Default in the case of the first such
payment of Liquidated Damages with respect to a Registration Default (and
thereafter at the next succeeding Damages Payment Date until the cure of
such Registration Default), multiplied by a fraction, the numerator of
which is the number of days such Liquidated Damages rate was applicable
during such period (determined on the basis of a 360-day year comprised of
twelve 30-day months and, in the case of a partial month, the actual number
of days elapsed), and the denominator of which is 360.
4. Registration Procedures.
In connection with the filing of any Registration Statement
pursuant to Section 2 hereof, the Company shall effect such registrations
to permit the resale of the securities covered thereby in accordance with
the intended method or methods of disposition thereof, and pursuant thereto
and in connection with any Registration Statement filed by the Company
hereunder the Company shall:
(a) Prepare and file with the SEC prior to the Filing Date, a
Registration Statement or Registration Statements as prescribed by
Section 2 hereof, and use its reasonable best efforts to cause each
such Registration Statement to become effective and remain effective
as provided herein; provided, however, that before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto, the Company shall furnish to and afford the Holders of the
Registrable Securities covered by such Registration Statement, a
single counsel to such Holders (chosen in accordance with Section
5(b)) and the managing underwriters, if any, a reasonable opportunity
to review copies of all such documents proposed to be filed (in each
case, where possible, at least four Business Days prior to such
filing, or such date as is reasonable under the circumstances). The
Company shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto if the Holders of a majority in
Amount of Registrable Securities covered by such Registration
Statement, 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 Shelf Registration as may be
necessary to keep such Registration Statement continuously effective
for the Effectiveness Period; cause the related Prospectus to be
supplemented by any Prospectus supplement required by applicable law,
and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) promulgated under the Securities
Act; and use all reasonable best efforts to comply with the provisions
of the Securities Act and the Exchange Act applicable to it with
respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so
supplemented. The Company shall be deemed not to have used its
reasonable best efforts to keep a Registration Statement effective
during the Effectiveness Period if it voluntarily takes any action
that would result in selling Holders of the Registrable Securities
covered thereby not being able to sell such Registrable Securities
during that period unless such action is required by applicable law or
unless the Company complies with this Agreement, including, without
limitation, the provisions of Sections 3(b) and 4(k) hereof.
(c) Notify the selling Holders of Registrable Securities, a single
counsel to such Holders (chosen in accordance with Section 5(b)) and
the managing underwriters, if any, promptly (but in any event within
two Business Days) and, confirm such notice in writing, (i) when a
Prospectus or any prospectus supplement or post-effective amendment
has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act (including in such notice a written statement that any
Holder may, upon request, obtain, at the sole expense of the Company,
one conformed copy of such Registration Statement or post-effective
amendment including financial statements and schedules, documents
incorporated or deemed to be incorporated by reference and exhibits),
(ii) of the issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement or of any order preventing
or suspending the use of any preliminary prospectus or the initiation
of any proceedings for that purpose, (iii) of the happening of any
event, the existence of any condition or any information becoming
known that makes any statement made in such Registration Statement or
related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or
that requires the making of any changes in or amendments or
supplements to such Registration Statement, Prospectus or documents so
that, in the case of the Registration Statement, it will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading and (iv) of the Company's
determination that a post-effective amendment to a Registration
Statement would be appropriate.
(d) Use its reasonable best efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of a Prospectus and, if any
such order is issued, to use its reasonable best efforts to obtain the
withdrawal of any such order at the earliest possible moment.
(e) If requested by the managing underwriter or underwriters, if
any, or the Holders of the majority in Amount of Registrable
Securities being sold in connection with an underwritten offering (i)
promptly incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriter or
underwriters, if any, such Holders or counsel for any of them
reasonably determine is necessary to be included therein, (ii) make
all required filings of such prospectus supplement of such
post-effective amendment as soon as reasonably practicable after the
Company has received notification of the matters to be incorporated in
such prospectus supplement or post-effective amendment and (iii)
supplement or make amendment to such Registration Statement.
(f) Furnish to each selling Holder of Registrable Securities, a
single counsel to such Holders (chosen in accordance with Section
5(b)) and each managing underwriter, if any, at the sole expense of
the Company, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto,
including financial statements but excluding schedules, all documents
incorporated or deemed to be incorporated therein by reference and all
exhibits (unless requested in writing to the Company by such Holder of
Registrable Securities or managing underwriter, as the case may be).
(g) Deliver to each selling Holder of Registrable Securities, a
single counsel to such Holders (chosen in accordance with Section
5(b)) and the underwriters, if any, at the sole expense of the
Company, as many copies of the Prospectus (including each form of
preliminary prospectus) and each amendment or supplement thereto and
any documents incorporated by reference therein as such Persons may
reasonably request; and, subject to the second paragraph of Section
4(s) hereof, the Company hereby consents to the use of such Prospectus
and each amendment or supplement thereto by each of the selling
Holders of Registrable Securities and the underwriters or agents, if
any, and dealers (if any), in connection with the offering and sale of
the Registrable Securities covered by such Prospectus and any
amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, to use
its reasonable best efforts to register or qualify, to the extent
required by applicable law, and to cooperate with the selling Holders
of Registrable Securities, the managing underwriter or underwriters,
if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities or offer and sale under
the securities or Blue Sky laws of such jurisdictions within the
United States as any selling Holder, or the managing underwriter or
underwriters, if any, reasonably request; provided, however, that
where Registrable Securities are offered other than through an
underwritten offering, the Company agrees to cause the Company's
counsel to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 4(h);
keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to
be kept effective and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions
of the Registrable Securities covered by the applicable Registration
Statement; provided, however, that the Company shall not be required
to (A) qualify generally to do business in any jurisdiction where it
is not then so qualified, (B) take any action that would subject it to
general service of process in any such where it is not then so subject
or (C) subject itself to taxation in excess of a nominal dollar amount
in any such jurisdiction where it is not then so subject.
(i) Cooperate with the selling Holders of Registrable Securities
and the managing underwriter or underwriters, if any, to facilitate
the timely preparation and delivery of certificates representing
shares of Registrable Securities to be sold, which certificates shall
not bear any restrictive legends and shall be in a form eligible for
deposit with The Depository Trust Company; and enable such shares of
Registrable Securities to be in such denominations and registered in
such names as the managing underwriter or underwriters, if any, or
Holders may reasonably request.
(j) Use its reasonable best efforts to cause the Registrable
Securities covered by any Shelf Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be reasonably necessary to enable the seller or
sellers thereof or the underwriter or underwriters, if any, to
consummate the disposition of such Registrable Securities, except as
may be required solely as a consequence of the nature of such selling
Holder's business, in which case the Company will cooperate in all
reasonable respects with the filing of such Registration Statement and
the granting of such approvals.
(k) Upon the occurrence of any event contemplated by paragraph
4(c)(ii), 4(c)(iii) or 4(c)(iv) hereof, as promptly as practicable
prepare and (subject to Section 4(a) hereof) file with the SEC, at the
sole expense of the Company, a supplement or post-effective amendment
to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Securities
being sold thereunder, any such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(l) Prior to the effective date of the first Registration
Statement relating to the Registrable Securities, (i) provide the
Trustee with certificates for the Registrable Securities in a form
eligible for deposit with The Depository Trust Company and (ii)
provide required CUSIP numbers for the Registrable Securities.
(m) In connection with any underwritten offering of Registrable
Securities pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten offerings of
securities similar to the Registrable Securities and take all such
other actions as are reasonably requested by the managing underwriter
or underwriters 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, and
covenants with, the underwriters with respect to the business of the
Company and its subsidiaries (including any acquired business,
properties or entity, if applicable) 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 of
securities similar to the Registrable Securities and confirm the same
in writing if and when requested; (ii) obtain the written opinion of
counsel to the Company and written updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters
customarily covered in opinions requested in underwritten offerings of
securities similar to the Registrable Securities and such other
matters as may be reasonably requested by the managing underwriter or
underwriters; and (iii) obtain "cold comfort" letters and updates
thereof in form, scope and substance reasonably satisfactory to the
managing underwriter or underwriters from the independent certified
public accountants of the Company (and, if necessary, any other
independent certified 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 or
incorporated by reference in the Registration Statement), addressed to
each of the underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings of securities
similar to the Registrable Securities and such other matters as
reasonably requested by the managing underwriter or underwriters as
permitted by the Statement on Auditing Standards No. 72. The above
shall be done as and to the extent required by such underwriting
agreement.
(n) Make available for inspection by any selling Holder of such
Registrable Securities being sold, any underwriter participating in
any such disposition of Registrable Securities, if any, and any
attorney, accountant or other agent retained by any such selling
Holder, or underwriter (collectively, the "Inspectors"), at the
offices where normally kept, during reasonable business hours at such
time or times as shall be mutually convenient for the Company and the
Inspectors as a group, all financial and other records, pertinent
corporate documents and instruments of the Company and its
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 Company and its subsidiaries to supply all information reasonably
requested by any such Inspector in connection with such Registration
Statement. Records that the Company determines, in good faith, to be
confidential and any Records that it notifies the Inspectors are
confidential shall not be disclosed by any Inspector unless (i) the
disclosure of such Records is necessary to avoid or correct a material
misstatement or material 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, (iii) disclosure of such
information is, in the opinion of counsel for any Inspector, necessary
or advisable in connection with any action, claim, suit or proceeding
directly involving or potentially involving such Inspector and arising
out of, based upon, relating to, or involving this Agreement or any
transactions contemplated hereby or arising hereunder, (iv) the
information in such Records has been made generally available to the
public other than through the acts of such Inspector; provided,
however, that prior notice shall be provided as soon as practicable to
the Company of the potential disclosure of any information by such
Inspector pursuant to clause (ii) or (iii) of this sentence to permit
the Company to obtain a protective order (or waive the provisions of
this paragraph (n)) and that such Inspector shall take such actions as
are reasonably necessary to protect the confidentiality of such
information (if practicable) to the extent such action is otherwise
not inconsistent with, an impairment of or in derogation of the rights
and interests of any Holder or Inspector or (v) the information in
such Records has been made generally available to the public other
than as a result of a breach of this Agreement.
(o) Provide (i) the Holders of the Registrable Securities to be
included in such Registration Statement and not more than one counsel
for all the Holders of such Registrable Securities, (ii) the
underwriters (which term, for purposes of this Registration Rights
Agreement, shall include a Person deemed to be an underwriter within
the meaning of Section 2(11) of the Securities Act), if any, thereof,
(iii) the sales or placement agent, if any, thereof, and (iv) one
counsel for such underwriters or agents, reasonable opportunity to
participate in the preparation of such Registration Statement, each
prospectus included therein or filed with the SEC, and each amendment
or supplement thereto.
(p) Comply with all applicable rules and regulations of the SEC
and make generally available to its securityholders earning 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 Company after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods.
(q) Cooperate with each seller of Registrable Securities covered
by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be
made with the National Association of Securities Dealers, Inc. (the
"NASD"), including, if the Conduct Rules of the NASD or any successor
thereto as amended from time to time so require, engaging a "qualified
independent underwriter" ("QIU") as contemplated therein and making
Records available to such QIU as though it were a participating
underwriter for the purposes of Section 4(n) and otherwise applying
the provisions of this Agreement to such QIU (including
indemnification) as though it were a participating underwriter.
(r) Cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement relating
to the Registrable Securities; and in connection therewith, cooperate
with the Trustee and the Holders of the Registrable Securities 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 its reasonable 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.
(s) Use its reasonable best efforts to take all other steps
necessary or advisable to effect the registration of the Registrable
Securities covered by a Registration Statement contemplated hereby.
Each Holder who intends to be named as a selling Holder in the
Shelf Registration Statement shall furnish to the Company in writing,
within 25 Business Days after receipt of a request therefor as set forth in
a questionnaire in the form attached hereto as Annex A, such information
regarding such Holder and the proposed distribution by such Holder of its
Registrable Securities as the Company may reasonably request for use in
connection with the Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. Holders that do not complete the
questionnaire and deliver it to the Company shall not be named as selling
securityholders in the Prospectus or preliminary Prospectus included in the
Shelf Registration Statement and therefore shall not be permitted to sell
any Registrable Securities pursuant to the Shelf Registration Statement.
Each Holder who intends to be named as a selling Holder in the Shelf
Registration Statement shall promptly furnish to the Company in writing
such other information as the Issuer may from time to time reasonably
request in writing. Each seller as to which any Shelf Registration is being
effected agrees to furnish promptly to the Company all information required
to be disclosed so that the information previously furnished to the Company
by such seller is not materially misleading and does not omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which
they were made.
Each Holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon actual receipt of any notice from
the Company of the happening of any event of the kind described in Section
4(c)(ii), 4(c)(iii) or 4(c)(iv) hereof, such Holder will forthwith
discontinue disposition of such Registrable Securities covered by such
Registration Statement or Prospectus until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section
4(k) hereof, or until it is advised in writing by the Company that the use
of the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto.
5. Registration Expenses.
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the
Company, including, without limitation, (i) all registration and filing
fees (including, without limitation, (A) fees with respect to filings
required to be made with the NASD in connection with an underwritten
offering and (B) fees and expenses of compliance with state securities or
Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Securities and determination of the eligibility of the
Registrable Securities for investment under the laws of such jurisdictions
as provided in Section 4(h) hereof), (ii) printing expenses, including,
without limitation, expenses of printing certificates for Registrable
Securities in a form eligible for deposit with The Depository Trust Company
and of printing prospectuses if the printing of prospectuses is requested
by the managing underwriter or underwriters, if any, or by the Holders of
the majority in Amount of Registrable Securities included in any
Registration Statement, (iii) messenger, telephone and delivery expenses,
(iv) fees and disbursements of counsel for the Company and reasonable fees
and disbursements of a single counsel (chosen in accordance with Section
5(b)) for the sellers of Registrable Securities (subject to the provisions
of Section 5(b) hereof), (v) fees and disbursements of all independent
certified public accountants referred to in Section 4(m)(iii) hereof
(including, without limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such performance), (vi)
Securities Act liability insurance, if the Company desires such insurance,
(vii) fees and expenses of all other Persons retained by the Company,
(viii) internal expenses of the Company (including, without limitation, all
salaries and expenses of officers and employees of the Company performing
legal or accounting duties), (ix) the expense of any annual audit, (x) the
fees and expenses incurred in connection with the listing of the securities
to be registered on any securities exchange, if applicable, and (xi) the
expenses relating to printing, word processing and distributing all
Registration Statements, underwriting agreements, securities sales
agreements and any other documents necessary in order to comply with this
Agreement. Notwithstanding anything in this Agreement to the contrary, each
Holder shall pay all underwriting discounts and brokerage commissions with
respect to any Registrable Securities sold by it.
(b) The Company shall reimburse the Holders of the Registrable
Securities being registered in a Shelf Registration for the reasonable fees
and disbursements of not more than one counsel chosen by the Holders of a
majority in Amount of Registrable Securities to be included in such
Registration Statement.
6. Indemnification.
The Company agrees to indemnify and hold harmless (i) each Initial
Purchaser, (ii) each Holder, (iii) each Person, if any, who controls
(within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act) any of the foregoing (any of the Persons referred
to in this clause (iii) being hereinafter referred to as a "controlling
person"), (iv) the respective officers, directors, partners, employees,
representatives and agents of the Initial Purchasers, the Holders
(including predecessor Holders) or any controlling person (any person
referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred
to as an "Indemnified Holder"), from and against any and all losses,
claims, damages, liabilities and judgments (including, without limitation,
reasonable legal fees and other expenses incurred in connection with any
suit, action or proceeding or any claim asserted) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus, or any amendment or supplement
thereto or any related preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with information relating to any Holder
furnished to the Company in writing by such Holder expressly for use in
therein; provided, however, that the Company shall not be liable to any
Indemnified Holder under the indemnity agreement of this paragraph with
respect to any preliminary prospectus to the extent that any such loss,
claim, damage, liability, judgment or expense of such Indemnified Holder
results from the fact that such Indemnified Holder sold Registrable
Securities under a Registration Statement to a Person as to whom it shall
be established that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (or of the preliminary
prospectus as then amended or supplemented if the Company shall have
furnished such Indemnified Holder with such amendment or supplement thereto
on a timely basis) and the loss, claim, damage, liability or expense of
such Indemnified Holder results from an untrue statement or omission of a
material fact contained in the preliminary prospectus which was corrected
in the Prospectus (or in the preliminary prospectus as then amended or
supplemented if the Company shall have furnished such Indemnified Holder
with such amendment or supplement thereto, as the case may be, on a timely
basis). The Company shall notify Indemnified Holder promptly of the
institution, threat or assertion of any claim, proceeding (including any
governmental investigation) or litigation in connection with the matters
addressed by this Agreement which involves the Company or such Indemnified
Holder.
Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, officers and each
Person who controls the Company within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to each Holder, but only with
reference to such losses, claims, damages or liabilities which are caused
by any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with information relating to a
Holder furnished to the Company in writing by such Holder expressly for use
in any Registration Statement or Prospectus, or any amendment or supplement
thereto or any related preliminary prospectus.
If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought
or asserted against any Person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such Person (the
"Indemnified Person") shall promptly notify the Person or Persons against
whom such indemnity may be sought (each an "Indemnifying Person") in
writing, and such Indemnifying Person, upon request of the Indemnified
Person, shall retain counsel reasonably satisfactory to the Indemnified
Person to represent the Indemnified Person and any others entitled to
indemnification pursuant to this Section 6 that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such
counsel related to such proceeding. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) such Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) such Indemnifying Person has failed
within a reasonable time to retain counsel reasonably satisfactory to such
Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include an Indemnifying Person and an
Indemnified Person and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests
between them. It is understood that an Indemnifying Person shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Indemnified Persons, and
that all such fees and expenses shall be reimbursed as they are incurred.
Any such separate firm for the Indemnified Holders shall be designated in
writing by the Holders of the majority in Amount of Registrable Securities,
and any such separate firm for the Company, its directors, respective
officers and such control Persons of the Company shall be designated in
writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the
plaintiff, such Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement
or judgment. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or
could have been a party and indemnity could have been sought hereunder by
such Indemnified Person, unless such settlement (i) includes an
unconditional release of such Indemnified Person from all liability on
claims that are the subject matter of such proceeding 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 Person.
If the indemnification provided for in the first and
second paragraphs of this Section 6 is unavailable to an Indemnified Person
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraph, in
lieu of indemnifying such Indemnified Person thereunder, shall contribute
to the amount paid or payable by such Indemnified Person as a result of
such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Indemnifying
Person on the one hand, and the Indemnified Person on the other hand,
pursuant to the Purchase Agreement or from the offering of the Registrable
Securities pursuant to any Shelf Registration or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Indemnifying Person on the one hand, and the Indemnified Person on the
other, in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand, and any Indemnified Holder on the other, shall be deemed to
be in the same proportion as the total net proceeds from the initial
offering and sale of Convertible Notes (before deducting expenses) received
by the Company bear to the total net proceeds received by such Indemnified
Holder from sales of Registrable Securities giving rise to such
obligations. The relative fault of the parties 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 Company or such
Indemnified Holder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
Each of the Company and the Initial Purchasers agrees
that it would not be just and equitable if contribution pursuant to this
Section 6 were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages
and liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, in no event shall any Holder be required to
contribute any amount in excess of the amount by which the net proceeds
received by such Holder from the sale of the Registrable Securities
pursuant to a Shelf Registration Statement exceeds the amount of damages
which such Holder would have otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
The remedies provided for in this Section 6 are not
exclusive and shall not limit any rights or remedies that may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution agreements contained in
this Section 6 shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation
made by or on behalf of any Holder or any Person controlling any Holder or
by or on behalf of the Company, its officers or directors or any other
Person controlling any of the Company and (iii) acceptance of and payment
for any of the Registrable Securities.
7. Rules 144 and 144A.
The Company covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder in a timely
manner in accordance with the requirements of the Securities Act and the
Exchange Act and, for so long as any Registrable Securities remain
outstanding, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder or beneficial owner of
Registrable Securities, make available such information necessary to permit
sales pursuant to Rule 144A under the Securities Act. The Company further
covenants that, for so long as any Registrable Securities remain
outstanding, it will use its reasonable best efforts to take such further
action as any Holder of Registrable Securities may reasonably request, all
to the extent required from time to time to enable such holder to sell
Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by (a) Rule 144(k) and Rule 144A
under the Securities Act, as such rules may be amended from time to time,
or (b) any similar rule or regulation hereafter adopted by the SEC.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its securities pursuant to the
Exchange Act.
8. Underwritten Registrations.
If any of the Registrable Securities covered by any Shelf
Registration are to be sold in an underwritten offering, the investment
banker or investment bankers and manager or managers that will manage the
offering will be selected by the Holders of the majority in Amount of
Registrable Securities to be included in such offering and will be
reasonably acceptable to the Company.
No Holder of Registrable Securities may participate in
any underwritten registration hereunder unless such Holder (a) agrees to
sell such Holder's Registrable Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents reasonably required under the terms of such
underwriting arrangements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as of the
date hereof, and the Company shall not, after the date of this Agreement,
enter into any agreement with respect to any of its securities that is
inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions
hereof. The Company has not entered and will not enter into any agreement
with respect to any of its securities that will grant to any Person
piggyback registration rights with respect to a Registration Statement,
except to the extent any existing right has heretofore been waived.
(b) Adjustments Affecting Registrable Securities. The Company
shall not, directly or indirectly, take any action with respect to the
Registrable Securities as a class that would adversely affect the ability
of the Holders of Registrable Securities to include such Registrable
Securities in a registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement 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 Company and the Holders of not less than
the majority in Amount of Registrable Securities; provided, however, that
Section 6 and this Section 9(c) may not be amended, modified or
supplemented without the prior written consent of the Company and each
Holder (including, in the case of an amendment, modification or supplement
of Section 6, any Person who was a Holder of Registrable Securities
disposed of pursuant to any Registration Statement). Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders of
Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect,
impair, limit or compromise the rights of other Holders of Registrable
Securities may be given by Holders of at least a majority in Amount of the
Registrable Securities being sold by such Holders pursuant to such
Registration Statement.
(d) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee)
provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, next-day air courier or
facsimile:
(1) if to a Holder of the Registrable Securities, at the most current
address of such Holder set forth on the records of the registrar
under the Indenture, in the case of Holders of Convertible Notes,
and the stock ledger of the Company, in the case of Holders of
common stock of the Company.
(2) if to the Initial Purchasers:
J.P. MORGAN SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
BNY CAPITAL MARKETS, INC.
FIRST UNION SECURITIES, INC.
SCOTIA CAPITAL (USA) INC.
FLEET SECURITIES, INC.
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Attention: Syndicate Department
with copies to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Facsimile No.: (212) 269-5420
Attention: Gerald Tanenbaum, Esq.
(3) if to the Company, at the addresses as follows:
Venator Group, Inc.
112 West 34th Street
New York, New York 10120
Facsimile No.: (212) 720-3643
Attention: Gary Bahler, General Counsel
with copies to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Facsimile No.: (212) 735-2000
Attention: David Goldschmidt, Esq.
All such notices and communications shall be deemed to
have been duly given: when delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if
mailed; one Business Day after being timely delivered to a next-day air
courier; and when receipt is acknowledged by the addressee, if sent by
facsimile.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties hereto, including the Holders; provided, however, that this
Agreement shall not inure to the benefit of or be binding upon a succssor
or assign of a Holder unless and except to the extent such successor or
assign holds Registrable Securities.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning
hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES
HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE FEDERAL AND NEW YORK
STATE COURTS SITTING IN MANHATTAN, NEW YORK CITY, THE STATE OF NEW YORK, IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their best efforts to find
and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of
the parties that they would have executed the remaining terms, provisions,
covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage in Amount of
Registrable Securities is required hereunder, Registrable Securities held
by the Company or its 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.
(k) Third Party Beneficiaries. Holders of Registrable Securities
are intended third party beneficiaries of this Agreement and this Agreement
may be enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein and therein and
any and all prior oral or written agreements, representations, or
warranties, contracts, understandings, correspondence, conversations and
memoranda between the Initial Purchasers on the one hand, and the Company
on the other, or between or among any agents, representatives, parents,
subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged
herein and replaced hereby.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
VENATOR GROUP, INC.
By: /s/ John Cannon
--------------------------------------
Name: John Cannon
Title: Vice President and Treasurer
J.P. MORGAN SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
BNY CAPITAL MARKETS, INC.
FIRST UNION SECURITIES, INC.
SCOTIA CAPITAL (USA) INC.
FLEET SECURITIES, INC.
By: J.P. MORGAN SECURITIES INC.
By: /s/ Paul A. O'Hearn
---------------------------------
Name: Paul A. O'Hearn
Title: Vice President
ANNEX A
VENATOR GROUP, INC.
NOTICE OF REGISTRATION STATEMENT AND
SELLING SECURITYHOLDER ELECTION AND QUESTIONNAIRE
NOTICE
Venator Group, Inc. (the "Company") has filed, or intends
shortly to file, with the Securities and Exchange Commission (the
"Commission"), a registration statement on Form S-3 or such other Form as
may be available (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 Convertible Subordinated Notes due 2008
(CUSIP No. ) (the "Notes"), and common stock, par value $0.01 per share,
issuable upon conversion thereof (the "Shares" and, together with the
Notes, the "Transfer Restricted Securities") in accordance with the terms
of the Registration Rights Agreement, dated as of June 8, 2001 (the
"Registration Rights Agreement"), between the Company and J.P. MORGAN
SECURITIES INC., BANC OF AMERICA SECURITIES LLC, BNY CAPITAL MARKETS, INC.,
FIRST UNION SECURITIES, INC., SCOTIA CAPITAL (USA) INC. and FLEET
SECURITIES, INC. A copy of the Registration Rights Agreement is available
from the Company. All capitalized terms not otherwise defined herein have
the meaning ascribed thereto in the Registration Rights Agreement.
To sell or otherwise dispose of any Transfer Restricted
Securities pursuant to the Shelf Registration Statement, a beneficial owner
of Transfer Restricted Securities generally will be required to be named as
a selling securityholder in the related Prospectus, deliver a Prospectus to
purchasers of Transfer Restricted Securities, be subject to certain civil
liability provisions of the Securities Act and be bound by those provisions
of the Registration Rights Agreement applicable to such beneficial owner
(including certain indemnification rights and obligations, as described
below). To be included in the Shelf Registration Statement, this Election
and Questionnaire must be completed, executed and delivered to the Company
at the address set forth herein for receipt PRIOR TO OR ON [insert date
that is 25 business days from the notice date] (the "Election and
Questionnaire Deadline"). Beneficial owners that do not complete and return
this Election and Questionnaire prior to the Election and Questionnaire
Deadline and deliver it to the Company as provided below will not be named
as selling securityholders in the prospectus and therefore will not be
permitted to sell any Transfer Restricted Securities pursuant to the Shelf
Registration Statement.
Certain legal consequences arise from being named as a
selling securityholder in the Shelf Registration Statement and the related
Prospectus. Accordingly, holders and beneficial owners of Transfer
Restricted 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 the related
Prospectus.
ELECTION
The undersigned holder (the "Selling Securityholder") of
Transfer Restricted Securities hereby elects to include in the Shelf
Registration Statement the Transfer Restricted Securities beneficially
owned by it and listed below in Item 3 (unless otherwise specified under
Item 3). The undersigned, by signing and returning this Election and
Questionnaire, understands that it will be bound with respect to such
Transfer Restricted Securities by the terms and conditions of this Election
and Questionnaire and the Registration Rights Agreement.
Pursuant to the Registration Rights Agreement, the
Selling Securityholder has agreed to indemnify and hold harmless the
Company, the Company's directors, the Company's officers, employees,
representatives and agents 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, from and against certain losses arising in
connection with statements concerning the Selling Securityholder made in
the Shelf Registration Statement or the related Prospectus in reliance upon
the information provided in this Election and Questionnaire.
The Selling Securityholder hereby provides the following
information to the Company and represents and warrants that such
information is accurate and complete:
QUESTIONNAIRE
1. (a) Full legal name of Selling Securityholder:
____________________________________________________________
(b) Full legal name of registered holder (if not the same as
(a) above) through which Transfer Restricted Securities
listed in (3) below are held:
____________________________________________________________
(c) Full legal name of DTC participant (if applicable and if
not the same as (b) above) through which Transfer
Restricted Securities listed in (3) are held:
____________________________________________________________
2. Address for notices to Selling Securityholders:
Telephone:
---------------------------------------------------------
Fax:
---------------------------------------------------------------
Contact Person:
----------------------------------------------------
3. Beneficial ownership of Transfer Restricted Securities:
(a) Type of Transfer Restricted Securities beneficially
owned, and principal amount of Notes or number of shares
of Common Stock, as the case may be, beneficially owned:
____________________________________________________________
(b) CUSIP No(s). of such Transfer Restricted Securities
beneficially owned:
____________________________________________________________
4. Beneficial ownership of the Company's securities owned by the Selling
Securityholder:
Except as set forth below in this Item (4), the undersigned is not
the beneficial or registered owner of any securities of the
Company other than the Transfer Restricted Securities listed above
in Item (3) ("Other Securities").
(a) Type and amount of Other Securities beneficially owned by
the Selling Securityholder:
____________________________________________________________
(b) CUSIP No(s). of such Other Securities beneficially owned:
____________________________________________________________
5. Relationship with the Company:
Except as set forth below, neither the undersigned 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 their predecessors or
affiliates) during the past three years.
State any exceptions here:
_____________________________________________________________________
_____________________________________________________________________
6. Plan of Distribution:
Except as set forth below, the undersigned (including its donees
or pledgees) intends to distribute the Transfer Restricted
Securities listed above in Item (3) pursuant to the Shelf
Registration Statement only as follows (if at all). Such Transfer
Restricted Securities may be sold from time to time directly by
the undersigned or, alternatively, through underwriters,
broker-dealers or agents. If the Transfer Restricted Securities
are sold through underwriters or broker-dealers, the Selling
Securityholder will be responsible for underwriting discounts or
commissions or agent's commissions. Such Transfer Restricted
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 Transfer Restricted
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 Transfer Restricted Securities or
otherwise, the undersigned may enter into hedging transactions
with broker-dealers, which may in turn engage in short sales of
the Transfer Restricted Securities and deliver Transfer Restricted
Securities to close out such short positions, or loan or pledge
Transfer Restricted Securities to broker-dealers that in turn may
sell such securities.
State any exceptions here:
_____________________________________________________________________
_____________________________________________________________________
Note: In no event will such method(s) of distribution take the
form of an underwritten offering of the Transfer Restricted
Securities without the prior agreement of the Company.
By signing below, the Selling Securityholder acknowledges
that it understands its obligation to comply, and agrees it will comply,
with the provisions of the prospectus delivery and other provisions of the
Securities Act and Exchange Act and the respective rules and regulations
promulgated thereunder, particularly Regulation M thereunder (or any
successor rules or regulations), in connection with any offering of
Transfer Restricted Securities pursuant to the Shelf Registration
Statement.
If the Selling Securityholder transfers all or any
portion of the Transfer Restricted 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 Election 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 the related Prospectus. The Selling
Securityholder understands that such information will be relied upon by the
Company in connection with the preparation or amendment of the Shelf
Registration Statement and the related Prospectus.
In accordance with the Selling Securityholder's
obligation under 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 that may occur subsequent to the date hereof at any time
while the Shelf Registration Statement remains effective. All notices
hereunder and pursuant to the Registration Rights Agreement shall be made
in writing at the address set forth below.
Once this Election and Questionnaire is executed by the
Selling Securityholders and received by the Company, the terms of this
Election 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 Transfer Restricted Securities beneficially owned by such Selling
Securityholder and listed in Item (3) above. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
IN WITNESS WHEREOF, the undersigned, by authority duly
given, has caused this Election and Questionnaire to be executed and
delivered either in person or by its authorized agent.
Dated:
Beneficial Owner
By: ________________________________
Name:
Title:
Please return the completed and executed Election and Questionnaire for receipt
prior to or on [deadline for response] to Venator Group, Inc. at:
Venator Group, Inc.
112 W. 34th Street
New York, NY 10120
Attention: Treasurer
EXHIBIT 1 TO ANNEX A
NOTICE TO TRANSFER PURSUANT
TO REGISTRATION STATEMENT
Venator Group, Inc.
112 W. 34th Street
New York, NY 10120
Attention: Treasurer
The Bank of New York
101 Barclay Street
New York, NY 10286
Attention: ______________
Re: Venator Group, Inc.'s
5.50% Convertible Subordinated
Notes due 2008 (the "Notes")
Dear Sirs:
Please be advised that has transferred $ aggregate
principal amount of the above-referenced Notes or shares of the Company's
Common Stock issued on conversion or repurchase of the Notes, pursuant to
the Registration Statement on Form 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 with respect to the transfer described above and that the
above-named beneficial owner of the Notes or Common Stock is named as a
selling securityholder in the Prospectus dated , or in amendments or
supplements thereto, and that the aggregate principal amount of the Notes
or number of shares of Common Stock transferred are [all or a portion of]
the Notes or Common Stock listed in such Prospectus, as amended or
supplemented, opposite such owner's name.
Very truly yours,
[NAME]
By:
------------------------------------
(Authorized Signature)
Dated: