Exhibit 4.02
ANNTAYLOR STORES CORPORATION
$180,975,000
CONVERTIBLE SUBORDINATED DEBENTURES DUE 2019
REGISTRATION RIGHTS AGREEMENT
June 18, 1999
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
BANC OF AMERICA SECURITIES LLC
x/x XXXXXXX XXXXX & XX.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
AnnTaylor Stores Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), and the Banc of America
Securities LLC (together with Xxxxxxx Xxxxx, the "Initial Purchasers"),
upon the terms set forth in the Purchase Agreement dated June 14, 1999 (the
"Purchase Agreement") among the Company, AnnTaylor, Inc., a Delaware
corporation and a wholly owned subsidiary of the Company (the "AnnTaylor"),
and the Initial Purchasers, Convertible Subordinated Debentures due 2019
(the "Debentures"). As an inducement to the Initial Purchasers to enter
into the Purchase Agreement and in satisfaction of a condition to the
obligations of the Initial Purchasers thereunder, the Company and AnnTaylor
agree with you, (i) for the benefit of the Initial Purchasers and (ii) for
the benefit of the holders from time to time of the Debentures and the
holders from time to time of the Common Stock, par value $0.0068 per share
(the "Common Stock"), of the Company initially issuable upon conversion of
the Debentures (each of the foregoing, a "Holder" and, together, the
"Holders"), as follows:
Section 1. Definitions. Capitalized terms used in this
Agreement without definition shall have their respective meanings set forth
in the Purchase Agreement. All references to Sections herein are to
Sections of this Agreement unless otherwise indicated. As used in this
Agreement, the following capitalized defined terms shall have the following
meanings:
"Act" or "Securities Act" means the Securities Act of 1933, as
amended.
"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.
"Applicable Conversion Price" as of any date of determination
means the Applicable Principal Amount per $1,000 principal amount at
maturity of Debentures as of such date of determination divided by
the Conversion Rate in effect as of such date of determination or, if
no Debentures are then outstanding, the Conversion Rate that would be
in effect were Debentures then outstanding.
"Applicable Principal Amount" as of any date of determination,
with respect to each $1,000 principal amount at maturity of
Debentures means the sum of the initial issue price of such Debenture
($552.56) plus accrued original issue discount with respect to such
Debenture through such date of determination or, if no Debentures are
then outstanding, such sum calculated as if such Debentures were then
outstanding.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in The
City of New York are authorized or obligated by law or executive
order to close.
"Commission" means the Securities and Exchange Commission.
"Company Offering" means the sale of Common Stock pursuant to a
registration statement filed by the Company under the Act (other than
(i) a registration statement filed on Form S-4 or any successor form
or (ii) a registration statement filed on Form S-8 or any successor
form) respecting an underwritten offering, whether primary or
secondary, that is declared effective by the Commission.
"Conversion Rate" means the term "Conversion Rate" as defined in
the Indenture.
"Damages Payment Date" means each June 18 and December 18 in
the case of Debentures and the Common Stock.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning set forth in Section 2(b).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Indenture" means the Indenture dated as of the date hereof
among the Company, AnnTaylor and The Bank of New York, as trustee,
pursuant to which the Debentures are being issued.
"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.
"Notice and Questionnaire" means a written notice delivered to
the Company containing substantially the information called for by
the Form of Selling Securityholder Notice and Questionnaire attached
as Appendix B to the Offering Memorandum of the Company dated June
14, 1999 relating to the Debentures.
"Notice Holder" means, on any date, any Holder that has
delivered a Notice and Questionnaire to the Company on or prior to
such date.
"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, a 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.
"Record Holder" means, with respect to any Damages Payment Date
relating to any Debenture or Common Stock as to which any Liquidated
Damages Amount has accrued, the registered holder of such Debenture
or Common Stock, as the case may be, 15 days prior to the next
succeeding Damages Payment Date.
"Registrable Securities" means the Debentures and the shares of
Common Stock issuable upon conversion of the Debentures, until such
securities have been converted or exchanged, and, at all times
subsequent to any such conversion or exchange, any securities into or
for which such securities have been converted or exchanged, and any
security issued with respect thereto upon any stock dividend, split
or similar event until, in the case of any such security, the
earliest of (i) its effective registration under the Securities Act
and resale in accordance with the Registration Statement covering it,
(ii) expiration of the holding period that would be applicable
thereto under Rule 144(k) were it not held by an Affiliate of the
Company or (iii) its sale to the public pursuant to Rule 144.
"Shelf Registration" means a registration effected pursuant to
Section 2.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company and AnnTaylor pursuant to the provisions of
Section 2 filed with the Commission which covers some or 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.
"Trustee" means The Bank of New York (or any successor entity),
the trustee under the Indenture.
"Underwriter" means any underwriter of Registrable Securities
in connection with an offering thereof under a Shelf Registration
Statement.
Section 2. Shelf Registration. (a) The Company and AnnTaylor
shall prepare and file or cause to be prepared and filed with the
Commission, as soon as practicable, but in any event, no later than the
date (the "Filing Deadline Date") that is 90 days after the date of
original issuance (the "Issue Date") of the Debentures, 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 each use their best efforts
to cause such Shelf Registration Statement to be declared effective under
the Act no later than the date (the "Effectiveness Deadline Date") that is
180 days following the Issue Date; provided, however, that no Holder shall
be entitled to have the Registrable Securities held by it covered by such
Shelf Registration unless such Holder shall have provided a Notice and
Questionnaire in accordance with Section 2(c) and is in compliance with
Section 3(m). None of the Company's securityholders (other than the Holders
of Registrable Securities) shall have the right to include any of the
Company's securities in the Shelf Registration Statement.
(b) The Company and AnnTaylor shall each use its best
efforts 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 date the Shelf Registration Statement is
declared effective or such shorter period that will terminate upon the
earliest of the following: (A) when all the Debentures covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement, (B) when all shares of Common Stock issued upon conversion of
any such Debentures that had not been sold pursuant to the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement and (C) when, in the written opinion of counsel to the Company
and AnnTaylor, all outstanding Registrable Securities held by persons which
are not affiliates of the Company or AnnTaylor may be resold without
registration under the Act pursuant to Rule 144(k) under the Act or any
successor provision thereto (in any such case, such period being called the
"Effectiveness Period").
(c) Each Holder of Registrable Securities wishing to sell
Registrable Securities pursuant to a Shelf Registration Statement and
related Prospectus agrees to deliver a Notice and Questionnaire to the
Company at least three (3) Business Days prior to any intended distribution
of Registrable Securities under the Shelf Registration Statement. From and
after the date the Shelf Registration Statement is declared effective, the
Company and AnnTaylor shall, as promptly as is practicable after the date a
Notice and Questionnaire and such other information as the Company and Xxx
Xxxxxx may reasonably require pursuant to Section 3(m) is delivered, and in
any event within five (5) Business Days after such date, (i) if required by
applicable law, file with the Commission a post-effective amendment to the
Shelf Registration Statement or prepare and, if required by applicable law,
file a supplement to the related Prospectus or a supplement or amendment to
any document incorporated therein by reference or file any other required
document so that the Holder delivering such Notice and Questionnaire is
named as a selling securityholder in the Shelf Registration Statement and
the related Prospectus in such a manner as to permit such Holder to deliver
such Prospectus to purchasers of the Registrable Securities in accordance
with applicable law and, if the Company and AnnTaylor shall file a
post-effective amendment to the Shelf Registration Statement, use their
best efforts to cause such post-effective amendment to be declared
effective under the Securities Act as promptly as is practicable, but in
any event by the date (the "Amendment Effectiveness Deadline Date") that is
forty-five (45) days after the date such post-effective amendment is
required by this clause to be filed; (ii) provide such Holder copies of any
documents filed pursuant to Section 2(c)(i); and (iii) notify such Holder
as promptly as practicable after the effectiveness under the Securities Act
of any post-effective amendment filed pursuant to Section 2(c)(i);
provided, that if such Notice and Questionnaire is delivered during a
Deferral Period, the Company shall so inform the Holder delivering such
Notice and Questionnaire and shall take the actions set forth in clauses
(i), (ii) and (iii) above upon expiration of the Deferral Period in
accordance with Section 2(d), provided, further, that if under applicable
law the Company or AnnTaylor has more than one option as to the type or
manner of making any such filing, it will make the required filing or
filings in the manner or of a type that is reasonably expected to result in
the earliest availability of the Prospectus for effecting resales of
Registrable Securities. Notwithstanding anything contained herein to the
contrary, neither the Company nor AnnTaylor shall be under any obligation
to name any Holder that is not a Notice Holder as a selling securityholder
in the Shelf Registration Statement or related Prospectus; provided,
however, that any Holder that becomes a Notice Holder pursuant to the
provisions of Section 2(c) of this Agreement (whether or not such Holder
was a Notice Holder at the time the Shelf Registration Statement was
declared effective) shall be named as a selling securityholder in the Shelf
Registration Statement or related Prospectus in accordance with the
requirements of this Section 2(c).
(d) The Company and AnnTaylor shall be deemed not to have
used their best efforts to keep the Shelf Registration Statement effective
during the requisite period if either the Company or AnnTaylor voluntarily
takes any action that would result in Holders of Registrable Securities
covered thereby not being able to offer and sell any such Registrable
Securities during that period, unless (i) such action is required by
applicable law, (ii) upon the occurrence of any event contemplated by
paragraph 3(c)(2)(iii) below, and such action is taken by the Company or
AnnTaylor in good faith and for valid business reasons or (iii) the
continued effectiveness of the Shelf Registration Statement would require
the Company or AnnTaylor to disclose a material financing, acquisition or
other corporate development, and the proper officers of the Company shall
have determined in good faith that such disclosure is not in the best
interests of the Company and its stockholders, and, in the case of clause
(ii) above, the Company and AnnTaylor thereafter promptly comply with the
requirements of Section 3(i) below. The duration of all periods during
which the availability of the Shelf Registration Statement and the
Prospectus is suspended in accordance with clauses (i) through (iii) of the
preceding sentence (each such period of suspension being referred to herein
as a "Deferral Period") shall, without the Company or AnnTaylor incurring
any obligation to pay liquidated damages pursuant to Section 2(e), not, in
the aggregate, exceed 45 days in any three-month period or 90 days in any
12-month period.
(e) The parties hereto agree that the Holders of
Registrable Securities will suffer damages, and that it would not be
feasible to ascertain the extent of such damages with precision, if (i) the
Shelf Registration Statement has not been filed on or prior to the Filing
Deadline Date, (ii) the Shelf Registration Statement has not been declared
effective under the Securities Act on or prior to the Effectiveness
Deadline Date, (iii) either the Company or AnnTaylor has failed to perform
its obligations set forth in Section 2(c) within the time period require
therein or (iv) the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted in respect of such period pursuant to
Section 2(d) hereof (each of the events of a type described in any of the
foregoing clauses (i) through (iv) are individually referred to herein as
an "Event," and the Filing Deadline Date in the case of clause (i), the
Effectiveness Deadline Date in the case of clause (ii), the date by which
each of the Company and AnnTaylor is required to perform its obligations
set forth in Section 2(c) in the case of clause (iii) (including the filing
of any post-effective amendment prior to the Amendment Effectiveness
Deadline Date) and the date on which the aggregate duration of Deferral
Periods in any period exceeds the number of days permitted by Section 2(d)
hereof in the case of clause (iv), being referred to herein as an "Event
Date"). Events shall be deemed to continue until the "Event Termination
Date," which shall be the following dates with respect to the respective
types of Events: the date the Shelf Registration Statement is filed in the
case of an Event of the type described in clause (i), the date the Shelf
Registration Statement is declared effective under the Securities Act in
the case of an Event of the type described in clause (ii), the latest date
on which the Company and AnnTaylor perform their obligations set forth in
Section 2(c) in the case of an Event of the type described in clause (iii)
(including, without limitation, the date the relevant post-effective
amendment to the Shelf Registration Statement is declared effective under
the Securities Act), and termination of the Deferral Period that caused the
limit on the aggregate duration of Deferral Periods in a period set forth
in Section 2(d) to be exceeded in the case of the commencement of an Event
of the type described in clause (iv).
Accordingly, commencing on (and including) any Event Date and
ending on (but excluding) the next date on which there are no Events that
have occurred and are continuing (a "Damages Accrual Period"), the Company
and AnnTaylor agree to pay, as liquidated damages and not as a penalty, an
amount (the "Liquidated Damages Amount"), payable on the Damages Payment
Dates to Record Holders of then outstanding Debentures that are Registrable
Securities and of then outstanding shares of Common Stock issued upon
conversion of Debentures that are Registrable Securities, as the case may
be, accruing, for each portion of such Damages Accrual Period beginning on
and including a Damages Payment Date (or, in respect of the first time that
the Liquidation Damages Amount is to be paid to Holders on a Damages
Payment Date as a result of the occurrence of any particular Event, from
the Event Date) and ending on but excluding the first to occur of (A) the
date of the end of the Damages Accrual Period or (B) the next Damages
Payment Date, at a rate per annum equal to one-quarter of one percent
(.25%) for the first 90-day period from the Event Date and thereafter at a
rate per annum equal to one-half of one percent (.5%) of the aggregate
Applicable Principal Amount of such Debentures and the Applicable
Conversion Price of such shares of Common Stock, as the case may be, in
each case determined as of the Business Day immediately preceding the next
Damages Payment Date; provided, that in the case of a Damages Accrual
Period that is in effect solely as a result of an Event of the type
described in clause (iii) of the immediately preceding Paragraph, such
Liquidated Damages Amount shall be paid only to the Holders that have
delivered Notice and Questionnaires that caused the Company and AnnTaylor
to incur the obligations set forth in Section 2(c) the non-performance of
which is the basis of such Event; provided further, that any Liquidated
Damages Amount accrued with respect to any Debenture or portion thereof
called for redemption on a redemption date or converted into Common Stock
on a conversion date prior to the Damages Payment Date, shall, in any such
event, be paid instead to the Holder who submitted such Debenture or
portion thereof for redemption or conversion on the applicable redemption
date or conversion date, as the case may be, on such date (or promptly
following the conversion date, in the case of conversion). Notwithstanding
the foregoing, no Liquidated Damages Amounts shall accrue as to any
Registrable Security from and after the earlier of (x) the date such
security is no longer a Registrable Security and (y) termination of the
Effectiveness Period pursuant to Section 2(b). The rate of accrual of the
Liquidated Damages Amount with respect to any period shall not exceed the
rate provided for in this paragraph notwithstanding the occurrence of
multiple concurrent Events. Following the cure of all Events requiring the
payment by the Company and AnnTaylor of Liquidated Damages Amounts to the
Holders of Registrable Securities pursuant to this Section, the accrual of
Liquidated Damages Amounts will cease (without in any way limiting the
effect of any subsequent Event requiring the payment of Liquidated Damages
Amount by the Company and AnnTaylor).
The Trustee shall be entitled, on behalf of Holders of
Debentures or Common Stock issued upon conversion of Debentures, to seek
any available remedy for the enforcement of this Agreement, including for
the payment of any Liquidated Damages Amount. Notwithstanding the
foregoing, the parties agree that the sole damages payable for a violation
of the terms of this Agreement with respect to which liquidated damages are
expressly provided shall be such liquidated damages. Nothing shall preclude
a Notice Holder or Holder of Registrable Securities from pursuing or
obtaining specific performance or other equitable relief with respect to
this Agreement.
All of the Company's and AnnTaylor's obligations set forth in
this Section 2(e) that are outstanding with respect to any Registrable
Security at the time such security ceases to be a Registrable Security
shall survive until such time as all such obligations with respect to such
security have been satisfied in full.
The parties hereto agree that the liquidated damages provided
for in this Section 2(e) constitute a reasonable estimate of the damages
that may be incurred by Holders of Registrable Securities by reason of the
failure of the Shelf Registration Statement to be filed or declared
effective or available for effecting resales of Registrable Securities in
accordance with the provisions hereof.
Section 3. Registration Procedures. In connection with any
Shelf Registration Statement, the following provisions shall apply:
(a) The Company and AnnTaylor shall furnish to the
Initial Purchasers, prior to the filing thereof with the Commission,
a copy of any Shelf Registration Statement, and each amendment
thereof and each amendment or supplement, if any, to the Prospectus
included therein and shall each use its best efforts to reflect in
each such document, when so filed with the Commission, such comments
as the Initial Purchasers reasonably may propose.
(b) The Company and AnnTaylor shall 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 Prospectus, does not 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.
(c) (1) AnnTaylor shall advise the Initial Purchasers
and, in the case of clause (i), the Holders and, if requested by the
Initial Purchasers or any such Holder, confirm such advice in
writing:
(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;
and
(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.
(2) AnnTaylor shall advise the Initial Purchasers and the
Holders and, if requested by the Initial Purchasers or any such
Holder, confirm such advice in writing of:
(i) the issuance by the Commission of any stop
order suspending effectiveness of the Shelf Registration
Statement or the initiation of any proceedings for that
purpose;
(ii) the receipt by the Company or AnnTaylor of any
notification with respect to the suspension of the
qualification of the securities included therein for sale
in any jurisdiction or the initiation of any proceeding
for such purpose; and
(iii) the happening of any event 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 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).
(d) AnnTaylor 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.
(e) The Company and AnnTaylor shall furnish to each
Holder of Registrable Securities included within the coverage of any
Shelf Registration Statement, without charge, at least one copy of
such Shelf Registration Statement and any post-effective amendments
thereto, including financial statements and schedules, and, if the
Holder so requests in writing, all reports and other documents
incorporated by reference in the Shelf Registration Statement and
exhibits (including those incorporated by reference).
(f) The Company and AnnTaylor shall, during the
Effectiveness Period, deliver to each Holder of Registrable
Securities included within the coverage of any Shelf Registration
Statement, 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 each of the Company and
AnnTaylor consents (except upon and during the continuance of any
event described in paragraphs 2(d) or 3(c)(2)(iii) above or Section
6(e)) to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Registrable Securities in
connection with the offering and sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement thereto
during the Shelf Registration Period.
(g) Prior to any offering of Registrable Securities
pursuant to any Shelf Registration Statement, the Company and
AnnTaylor shall register or qualify or cooperate with the Holders of
Registrable Securities included therein 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 in the United States as any such
Holders reasonably request in writing and do any and all other acts
or things 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 or AnnTaylor be obligated to (i) qualify generally to do
business or 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(g), (ii) file any general consent to
service of process in any jurisdiction where it is not as of the date
hereof then so subject or (iii) subject itself to taxation in any
such jurisdiction if it is not so subject.
(h) Unless any Registrable Securities shall be in
book-entry only form, the Company and AnnTaylor shall cooperate with
the Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold pursuant to any Shelf Registration Statement
free of any restrictive legends and in such permitted denominations
and registered in such names as Holders may request in connection
with the sale of Registrable Securities pursuant to such Shelf
Registration Statement.
(i) Upon the occurrence of any event contemplated by
paragraph 3(c)(2)(iii) above, the Company and AnnTaylor 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 (except, in each case, for an untrue statement
of a material fact or omission of a material fact made in reliance on
and in conformity with written information furnished to AnnTaylor or
the Company by or on behalf of Holders specifically for use therein).
The Company and AnnTaylor agree to notify the Holders to suspend use
of the Prospectus, and the Holders shall suspend use of the
Prospectus, and not communicate such material non-public information
to any third party, and not sell or purchase, or offer to sell or
purchase, any securities of the Company or AnnTaylor, until the
Company or AnnTaylor has amended or supplemented the Prospectus so it
does not contain any such misstatement or omission. Subject to
Section 2(d), at such time as such public disclosure is otherwise
made or the Company and AnnTaylor determine in good faith that such
disclosure is not necessary, the Company and AnnTaylor agree to
notify the Holders of such determination and to amend or supplement
the Prospectus if necessary, so it does not contain any such untrue
statement or omission therein and to furnish the Holders such numbers
of copies of the Prospectus as so amended or supplemented as the
Holders may reasonably request.
(j) Not later than the effective date of any Shelf
Registration Statement hereunder, the Company and AnnTaylor shall
provide a CUSIP number for all Registrable Securities covered by any
Shelf Registration Statement and provide the Trustee with
certificates for the Debentures that are in a form eligible for
deposit with DTC.
(k) The Company and AnnTaylor shall use their 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 after the effective date
of the applicable Shelf Registration Statement an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act.
(l) The Company and AnnTaylor shall use their reasonable
best efforts to cause the Indenture to be qualified under the Trust
Indenture Act in a timely manner.
(m) The Company and AnnTaylor may require each Holder of
Registrable Securities to be sold pursuant to any Shelf Registration
Statement to furnish to the Company and AnnTaylor such information
regarding the Holder and the distribution of such Registrable
Securities as the Company and AnnTaylor may from time to time
reasonably require for inclusion in such Shelf Registration Statement
and AnnTaylor 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.
(n) The Company and AnnTaylor will each use their
reasonable best efforts to cause the Common Stock issuable upon
conversion of the Debentures to be listed on the New York Stock
Exchange on or prior to the effective date of any Shelf Registration
Statement hereunder.
(o) Upon (i) the filing of any Shelf Registration
Statement and (ii) the effectiveness of any Shelf Registration
Statement, the Company shall announce the same, in each case by
release to Reuters Economic Services and Bloomberg Business News (or
any successor thereto).
(p) The Company and AnnTaylor shall use their reasonable
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.
Section 4. Registration Expenses. Except as otherwise provided
in Section 6, the Company and AnnTaylor shall bear all fees and expenses
incurred in connection with the performance of their obligations under
Sections 2 and 3 and shall bear or reimburse the Holders for the reasonable
fees and disbursements of one firm of counsel designated by the Company and
reasonably acceptable to the Holders of a majority of the Registrable
Securities covered by the Shelf Registration Statement to act as counsel
therefor in connection therewith.
Section 5. Indemnification and Contribution. (a) In connection
with any Shelf Registration Statement, the Company and AnnTaylor, jointly
and severally, shall indemnify and hold harmless the Initial Purchasers,
each Holder, each underwriter who participates in an offering of
Registrable Securities, each person, if any, who controls any of such
parties within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act and each of their respective directors, officers,
employees, trustees and agents, as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
any Shelf Registration Statement (or any amendment thereto) covering
Registrable Securities, including all documents incorporated therein
by reference, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
any Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company and AnnTaylor; and
(iii) against any and all expenses whatsoever, as incurred
(including reasonable fees and disbursements of counsel chosen by the
Holders, such Holder or any underwriter (except to the extent
otherwise expressly provided in Section 5(c))), reasonably incurred
in investigating, preparing or defending against any litigation, or
any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) of this Section 5(a);
provided that this indemnity shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission (i) made in reliance upon
and in conformity with written information furnished to the Company or
AnnTaylor by the Initial Purchasers, such Holder or any underwriter in
writing expressly for use in the Shelf Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement
thereto) or (ii) contained in any preliminary prospectus if the Initial
Purchasers, such Holder or such underwriter failed to send or deliver a
copy of the Prospectus (or any amendment or supplement thereto) to the
Person asserting such losses, claims, damages or liabilities on or prior to
the delivery of written confirmation of any sale of securities covered
thereby to such Person in any case where such Prospectus (or any amendment
or supplement thereto) corrected such untrue statement or omission. Any
amounts advanced by the Company or AnnTaylor to an indemnified party
pursuant to this Section 5 as a result of such losses shall be returned to
AnnTaylor if it shall be finally determined by such a court in a judgment
not subject to appeal or final review that such indemnified party was not
entitled to indemnification by the Company or AnnTaylor.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, AnnTaylor, the Initial Purchasers,
each underwriter who participates in an offering of Registrable Securities
and the other selling Holders and each of their respective directors,
officers (including each officer of the Company who signed the Shelf
Registration Statement), employees, trustees and agents and each Person, if
any, who controls the Company, AnnTaylor, the Initial Purchasers, any
underwriter or any other selling Holder within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and against any
and all loss, liability, claim, damage and expense whatsoever described in
the indemnity contained in Section 5(a), as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Shelf Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company or AnnTaylor by such selling Holder expressly for use in the Shelf
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto); provided, however, that no such Holder
shall be liable for any claims hereunder in excess of the amount of net
proceeds received by such Holder from the sale of Registrable Securities
pursuant to the Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in respect of
which indemnity may be sought hereunder, enclosing a copy of all papers
served on such indemnified party, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it
may have other than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of any such action.
If an indemnifying party so elects within a reasonable time after receipt
of such notice, such indemnifying party, jointly with any other
indemnifying party, may assume the defense of such action with counsel
chosen by it and approved by the indemnified party or parties defendant in
such action; provided that if any such indemnified party reasonably
determines that there may be legal defenses available to such indemnified
party which are different from or in addition to those available to such
indemnifying party or that representation of such indemnifying party and
any indemnified party by the same counsel would present a conflict of
interest, then such indemnifying party or parties shall not be entitled to
assume such defense. If an indemnifying party is not entitled to assume the
defense of such action as a result of the proviso to the preceding
sentence, counsel for such indemnifying party shall be entitled to conduct
the defense of such indemnifying party and counsel for each indemnified
party or parties shall be entitled to conduct the defense of such
indemnified party or parties. If an indemnifying party assumes the defense
of an action in accordance with and as permitted by the provisions of this
paragraph, such indemnifying party shall not be liable for any fees and
expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. In no event shall the indemnifying party or
parties be liable for the fees and expenses of more than one counsel (in
addition to any local counsel) separate from its own counsel for all
indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnity provision agreement
provided for in this Section 5 is for any reason held to be unavailable to
the indemnified parties although applicable in accordance with its terms,
the Company, AnnTaylor, the Initial Purchasers and the Holders shall
contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by
the Company, AnnTaylor, the Initial Purchasers and the Holders, as
incurred; provided that no Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person that was not guilty of such
fraudulent misrepresentation. As between the Company, AnnTaylor, the
Initial Purchasers and the Holders, such parties shall contribute to such
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement in such proportion as shall be
appropriate to reflect the relative fault of the Company and AnnTaylor, on
the one hand, and the Initial Purchasers and the Holders, on the other
hand, with respect to the statements or omissions which resulted in such
loss, liability, claim, damage or expense, or action in respect thereof, as
well as any other relevant equitable considerations. The relative fault of
the Company and AnnTaylor, on the one hand, and of the Initial Purchasers
and the Holders, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and AnnTaylor, on the one
hand, or by or on behalf of the Initial Purchasers or the Holders, on the
other, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Company, AnnTaylor, the Initial Purchasers and the Holders of the
Registrable Securities agree that it would not be just and equitable if
contributions pursuant to this Section 5 were to be determined by pro rata
allocation or by any other method of allocation that does not take into
account the relevant equitable considerations. For purposes of this Section
5(d), each director, officer, employee, trustee, agent and Person, if any,
who controls an Initial Purchaser or Holder within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the
same rights to contribution as such Initial Purchaser or Holder, and each
director, officer, employee, trustee and agent of the Company and
AnnTaylor, and each Person, if any, who controls the Company or AnnTaylor
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the Company and
AnnTaylor. No party shall be liable for contribution with respect to any
action, suit, proceeding or claim settled without its written consent.
Section 6. Underwritten Offering.
(a) The Holders of Registrable Securities covered by the
Shelf Registration Statement who desire to do so may sell such Registrable
Securities in an underwritten offering in accordance with the conditions
set forth below. 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 offering; provided, however, that (i) such investment
bankers and managers and underwriting arrangements must be reasonably
satisfactory to the Company and AnnTaylor and (ii) neither the Company nor
AnnTaylor shall 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 (i) agrees to
sell such Holder's Registrable Securities in accordance with any approved
underwriting arrangements, (ii) 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 (iii) at least 30% of the
outstanding Registrable Securities are 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 fees and expenses of
counsel to the selling securityholders and shall reimburse the Company and
AnnTaylor for the fees and disbursements of their counsel, their
independent public accountants and any printing expenses incurred in
connection with such underwritten offering. Notwithstanding the foregoing,
upon receipt of a request from the Managing Underwriter or a representative
of Holders of a majority of the Registrable Securities outstanding to
prepare and file an amendment or supplement to the Shelf Registration
Statement and Prospectus in connection with an underwritten offering, the
Company and AnnTaylor may delay the filing of any such amendment or
supplement for up to 90 days if the Company and AnnTaylor in good faith
have a valid business reason for such delay.
(b) The Company and AnnTaylor shall enter into such
customary agreements (including underwriting agreements in customary form)
which are reasonably acceptable to the Company and AnnTaylor, and take all
other reasonably requested 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.
(c) The Company and AnnTaylor shall (i) make reasonably
available for inspection by the Holders of Registrable Securities to be
registered thereunder, 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 AnnTaylor and its subsidiaries; (ii) cause
the Company's and AnnTaylor's officers, directors and employees to make
reasonably available for inspection all relevant 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
and AnnTaylor, 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 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 the foregoing inspection and information gathering shall, to
the greatest extent possible, be coordinated on behalf of the Holders and
the other parties entitled thereto by one counsel designated by and on
behalf of such Holders and other parties reasonably acceptable to the
Company and AnnTaylor; (iii) make such representations and warranties to
the Holders of Registrable Securities registered thereunder and the
underwriters, if any, in form, substance and scope as are customarily made
by the Company and AnnTaylor to underwriters in primary underwritten
offerings and covering matters including, but not limited to, those set
forth in the Purchase Agreement; (iv) obtain opinions of counsel to the
Company and AnnTaylor (who may be the general counsel of the Company and/or
AnnTaylor) and updates thereof (which counsel and opinions (in form, scope
and substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) in customary form addressed to each selling Holder
and the underwriters, if any, covering such matters as are customarily
covered in opinions requested in underwritten offerings 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 a 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 not misleading); (v) obtain "comfort letters" and
updates thereof from the independent public accountants of the Company and
AnnTaylor (and, if necessary, any other independent public accountants of
any subsidiary of the Company or AnnTaylor or of any business acquired by
the Company or AnnTaylor for which financial statements and financial data
are, or are required to be, included in the Shelf Registration Statement),
addressed to each such Holder of Registrable Securities registered
thereunder and the underwriters, if any, in customary form and covering
matters of the type customarily covered in "comfort letters" in connection
with primary underwritten offerings; and (vi) deliver such other customary
documents and certificates as may be reasonably requested by any such
Holders and the Managing Underwriters, if any, 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
and AnnTaylor. The foregoing actions set forth in clauses (iii), (iv), (v)
and (vi) of this Section 6(c) shall be performed at each closing under any
underwritten offering to the extent required thereunder.
(d) Upon the request of the Company, the Holders agree
not to effect any public sale or distribution (including sales pursuant to
Rule 144) of Registrable Securities during the 10-day period prior to the
date that the Company has notified the Holders that it intends to commence
a Company Offering through the 120-day period immediately following the
closing date of such Company Offering; provided, however, that (i) the
Holders shall not be obligated to comply with this Section 6(d) until the
first anniversary of the date of this Agreement and (ii) the Holders shall
not be obligated to comply with this Section 6(d) on more than one occasion
in any 12-month period.
Section 7. Miscellaneous.
(a) No Conflicting Agreements. Neither the Company nor
AnnTaylor is, as of the date hereof, a party to, nor shall it, on or after
the date of this Agreement, enter into, any agreement with respect to its
securities that conflicts with the rights granted to the Holders of
Registrable Securities in this Agreement. Each of the Company and AnnTaylor
represents and warrants that the rights granted to the Holders of
Registrable Securities hereunder do not in any way conflict with the rights
granted to the holders of the Company's or AnnTaylor's securities under any
other agreements.
(b) Amendments and Waivers. The provision 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 and
AnnTaylor have obtained the written consent of the Initial Purchasers.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, first-class mail, telex, telecopier, or air courier
guaranteeing overnight delivery:
1. if to a Holder, at the most current address
given by such Holder to the Company or AnnTaylor in
accordance with the provisions of this Section 6(c);
2. if to the Initial Purchasers, initially at the
address set forth in the Purchase Agreement; and
3. if to the Company or AnnTaylor, initially at
its address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have duly given when
received.
The Initial Purchasers or the Company and AnnTaylor by notice to the
other may designate additional or different addresses for subsequent
notices or communications.
(d) Successors and Assigns. 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 or AnnTaylor thereto, subsequent
Holders of Registrable Securities. The Company and AnnTaylor hereby agree
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
THE LAWS OF THE STATE OF NEW YORK.
(h) Severability. In the event that any one of 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.
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Please confirm that the foregoing correctly sets forth the
agreement among AnnTaylor, the Company and you.
Very truly yours,
ANNTAYLOR STORES CORPORATION
By: /s/ Xxxxx Xxxxx
__________________________
Name: Xxxxx Xxxxx
Title: Executive Vice President - CFO
ANNTAYLOR, INC.
By: /s/ Xxxxx Xxxxx
__________________________
Name: Xxxxx Xxxxx
Title: Executive Vice President - CFO
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
The foregoing Registration Rights Agreement is hereby confirmed and
accepted as of the date first above written.
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
BANC OF AMERICA SECURITIES LLC
By: XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: /s/ Xxxxxxx Xxxxx
______________________________________
Name: Xxxxxxx Xxxxx
Title: Vice President
