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Exhibit 4.3
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is made and entered into as of this
21st day of August, 1995, by and among Hills Stores Company, a Delaware
corporation (the "Company"), and the investors listed on Schedule I hereto (the
"Investors").
WHEREAS, as a condition to their purchase of shares of the Company's
common stock, par value $.01 per share (including the associated preferred stock
purchase rights, the "Common Stock"), in a Stock Purchase and Exchange Agreement
dated as of August 21, 1995 (the "Purchase Agreement"), the Investors have
required that the Company execute this Agreement to provide the Investors rights
to register the Registrable Securities (as defined below);
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the Company and the Investors hereby agree as
follows:
1. DEFINITIONS. As used in this Agreement, the following terms
shall have the following meanings:
(a) "1933 Act" shall mean the Securities Act of 1933, as amended.
(b) "1934 Act" shall mean the Securities Exchange Act of 1934,
as amended.
(c) "Closing Date" shall mean the date on which the closing of the
transactions contemplated by the Purchase Agreement occurs.
(d) "Holder" shall mean (1) any Investor and (2) any other person
or entity holding Registrable Securities to whom the
registration rights granted in this Agreement have been
transferred pursuant to Section 8 hereof.
(e) "Person" shall mean any natural person, corporation, business
trust, joint venture, association, company or partnership.
(f) "Purchase Agreement" shall mean the Stock Purchase and Exchange
Agreement dated as of August 21, 1995 by and among the
Company and the Investors.
(g) "Register," "registered," and "registration" shall refer to a
registration effected by preparing and filing a registration
statement in compliance with the 1933 Act and the declaration
or ordering of effectiveness of such registration statement.
(h) "Registrable Securities" shall mean the Common Stock issued
pursuant to the Purchase Agreement and any Common Stock of
the Company issued as a dividend or other distribution with
respect to, or in exchange or in replacement of, the foregoing.
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2. REGISTRATION PROCEDURES. The Company shall, as expeditiously
as reasonably possible:
(a) As soon as practicable following the Closing Date but in no
event later than twenty (20) business days thereafter,
prepare and file with the Securities and Exchange Commission
(the "SEC") a registration statement on Form S-3 or any
comparable or successor form thereto for the registration and
sale of the Registrable Securities by the Holders from time to
time (the "Registration Statement").
(b) Use its best efforts, subject to receipt of necessary
information from the Holders, to cause the Registration
Statement to become effective as soon as practicable after it
has been filed with the SEC.
(c) Subject to receipt of necessary information from the Holders,
prepare and file with the SEC with all reasonable speed under
the circumstances such amendments and supplements to the
Registration Statement and the prospectus used in connection
therewith and such reports as may be required to be filed
pursuant to the 1934 Act to keep the Registration Statement
effective until the earlier of (i) the time all the
Registrable Securities have been sold pursuant thereto or
otherwise; or (ii) one year from the date on which the
Registration Statement becomes effective, subject to extension
pursuant to the last sentence of Section 3.
(d) Furnish to the Holders such numbers of copies of a prospectus
and, if applicable, a prospectus supplement or supplements, in
conformity with the requirements of the 1933 Act, and such
other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by
them.
(e) Use its best efforts to register and qualify the securities
covered by the Registration Statement under such other
securities or Blue Sky laws of such jurisdictions as shall
be reasonably appropriate for the distribution of the
Registrable Securities covered by the Registration Statement,
provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or
to file a general consent to service of process in any such
states or jurisdictions, and further provided that (anything in
this Agreement to the contrary notwithstanding with respect to
the bearing of expenses) if any jurisdiction in which the
securities shall be qualified shall require that expenses
incurred in connection with the qualifica tion of the securities
in that jurisdiction be borne by selling Holders, then such
expenses shall be payable by selling Holders in proportion to
the amount of Registrable Securities held by each such selling
Holder and included in such registration, to the extent required
by such jurisdiction.
(f) Notify each Holder of Registrable Securities covered by the
Registration Statement, at any time when a prospectus relating
thereto covered by the Registration Statement is required to be
delivered under the 1933 Act, of the happening of any event as a
result of which the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a
material fact or omits to state a
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material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the
circumstances then existing and promptly file such amendments
and supplements (or periodic or current reports pursuant to
Section 13 or 15(d) of the 0000 Xxx) which may be required
pursuant to subparagraph (c) of this Section 2 on account of
such event and, if applicable, use its best efforts to cause
each such amendment and supplement to become effective.
(g) Apply for listing and use its best efforts to list the
Registrable Securities being registered on any national
securities exchange on which a class of the Company's equity
securities is listed or, if the Company does not have a class of
equity securities listed on a national securities exchange,
apply for qualification and use its best efforts to qualify the
Registrable Securities being registered for inclusion on the
automated quotation system of the National Association of
Securities Dealers, Inc.
3. TRANSFER OF SHARES AFTER REGISTRATION. Each Holder agrees that it
will not effect any disposition of the Registrable Securities that would
constitute a sale within the meaning of the 1933 Act except in compliance with
the 1933 Act. In addition, each Holder hereby severally covenants with the
Company not to make any sale of the Registrable Securities without effectively
causing the prospectus delivery requirement under the 1933 Act to be satisfied
and to promptly advise the Company of any changes in the information concerning
the Holder contained in the Registration Statement. Each Holder acknowledges
that occasionally there may be times when the Company must suspend the use of
the prospectus forming a part of the Registration Statement until such time as
an amendment to the Registration Statement has been filed by the Company and
declared effective by the SEC, or until such time as the Company has filed an
appropriate periodic or current report with the SEC pursuant to the 1934 Act.
Each Holder hereby covenants that it will not offer or sell any Registrable
Securities pursuant to any prospectus during the period commencing at the time
at which the Company gives the Holder notice of the suspension of the use of
said prospectus and ending at the time the Company gives the Holder notice that
the Holder may thereafter effect sales pursuant to said prospectus. In the
event that any such period (a "Blackout Period") extends for more than 90 days,
the Company shall extend the one-year period of time referred to in Section
2(c)(ii) during which the Registration Statement shall remain effective by the
number of days in such Blackout Period.
4. FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement that
the Holders shall furnish to the Company such information regarding them, the
Registrable Securities held by them, and the intended method of disposition of
such securities as the Company shall reasonably request and as shall be required
in connection with the action to be taken by the Company.
5. REGISTRATION EXPENSES. All expenses (excluding underwriting
discounts and selling commissions and fees and expenses of any legal counsel for
the selling Holders) incurred in connection with the registration pursuant to
Section 2, including, without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel and independent public
accountants for the Company, fees and expenses (including counsel fees) incurred
in connection with complying with state securities or Blue Sky laws, fees of the
National
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Association of Securities Dealers, Inc., transfer taxes, fees of transfer agents
and registrars, costs of insurance and fees and any additional registration and
qualification fees shall be borne by the Company. All underwriting discounts
and selling commissions applicable to the sale of Registrable Securities shall
be borne by the selling Holders in proportion to the amount of Registrable
Securities held by each selling Holder and included in such registration.
6. DELAY OF REGISTRATION. No Holder shall have any right to take any
action to restrain, enjoin, or otherwise delay any registration as the result of
any controversy that might arise with respect to the interpretation or
implementation of this Agreement.
7. INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder (including its officers, directors,
affiliates and partners) joining in a registration, any
underwriter (as defined in the 0000 Xxx) for it or him, and each
person, if any, who controls such Holder, or such underwriter
within the meaning of the 1933 Act, against any losses, claims,
damages or liabilities, joint or several, to which they may
become subject under the 1933 Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based on any untrue or alleged
untrue statement of any material fact contained in such
registration statement, including, without limitation, any
preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, or arise out of or are
based upon the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to
make the statements therein not misleading, or arise out of any
violation by the Company of any rule or regulation promulgated
under the 1933 Act applicable to the Company and relating to
action or inaction required of the Company in connection with
any such registration; and will reimburse each such Holder
(including such officers, directors, affiliates and partners),
such underwriter, or controlling person for any legal or other
expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage,
liability, or action, provided, however, that the indemnity
agreement contained in this Section 7(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably
withheld or delayed) nor shall the Company be liable in any such
case for any such loss, claim, damage, liability or action to
the extent that it arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged
omission made in connection with such registration statement,
preliminary prospectus, final prospectus, or amendments or
supplements thereto, in reliance upon and in conformity with
written information furnished expressly for use in connection
with such registration by any such Holder (including such
officers, directors, affiliates and partners), underwriter or
controlling person.
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(b) To the extent permitted by law, each Holder joining in a
registration will indemnify and hold harmless the Company,
each of its directors, each of its officers who has signed the
registration statement, each Person, if any, who controls the
Company within the meaning of the 1933 Act, and any underwriter
for the Company (within the meaning of the 0000 Xxx) against any
losses, claims, damages or liabilities to which the Company or
any such director, officer, controlling person or underwriter
may become subject, under the 1933 Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact
contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, or arise out of or are
based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was
made in such registration statement, preliminary prospectus or
final prospectus, or amendments or supplements thereto, in
reliance upon and in conformity with written information
furnished by such Holder expressly for use in connection with
such registration; and will reimburse the Company or any such
director, officer, controlling Person or underwriter for any
legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the
indemnity agreement contained in this Section 7(b) shall not
apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected
without the consent of such Holder (which consent shall not be
unreasonably withheld) and provided further that no Holder shall
have any liability under this Section 7(b) in excess of the net
proceeds actually received by it or him in the relevant public
offering.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 7, notify
the indemnifying party in writing of the commencement thereof
and the indemnifying party shall have the right to participate
in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to
assume the defense thereof with counsel mutually satisfactory to
the parties; provided that, if and to the extent that a conflict
of interest exists between the indemnifying party and the
indemnified party, the indemnified party shall be permitted to
retain (at the indemnifying party's expense if such expense is
otherwise required to be assumed by it under this Section 7)
counsel of its choice with respect to such action. In no event
shall the indemnifying party be liable for the fees and expenses
of more than one 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 allegations or circumstances. The
failure to notify an indemnifying party promptly of the
commencement of any such action, to the extent prejudicial to
his ability to defend
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such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 7, but the
omission so to notify the indemnifying party will not relieve
such indemnifying party of any liability to any indemnified
party otherwise than under this Section 7.
(d) If the indemnification provided for in this Section 7 is
unavailable to a party that would have been an indemnified party
under such Section in respect of any losses, claims,
damages or liabilities (or actions or proceedings in respect
thereof) referred to therein, then each party that would have
been an indemnifying party thereunder shall, in lieu of
indemnifying such indemnified party and to the extent permitted
by law, contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in
such proportion as is appropriate to reflect the relative fault
of such indemnifying party on the one hand and such indemnified
party on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof). The
relative fault shall be determined by reference to, among other
things, whether the violation of law related to information
supplied by such indemnifying party or such indemnified party
and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such violation
of law. The parties agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to in the preceding sentence. The
amount paid or payable by a contributing party as a result of
the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to above in this
Section 7(d) shall include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigation or defending any such action or claim. No person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. The liability of any Holder of
Registrable Securities in respect of any contribution obligation
of such Holder (after deduction of all underwriters' discounts
and commissions and all other expenses paid by such Holder in
connection with the registration in question) arising under this
Section 7(d) shall not in any event exceed an amount equal to
the net proceeds to such Holder from the disposition of the
Registrable Securities disposed of by such Holder pursuant to
such registration.
8. TRANSFER OF REGISTRATION RIGHTS. The registration rights of any
Holder (and of any permitted transferee thereof or its permitted transferees)
under this Agreement with respect to any shares of Registrable Securities may be
transferred to any transferee who acquires (otherwise than in a registered
public offering) such shares of Registrable Securities, provided, however, that
the transferee acquires either (i) not less than 5,000 shares of Registrable
Securities or (ii) all of the Registrable Securities of (x) an Investor that
holds as of the date hereof less than 5,000 shares of Registrable Securities or
(y) a transferee of all of the Registrable Securities of such an Investor
holding less than 5,000 shares, and provided, further, that the Company is given
written
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notice by the Holder at the time of such transfer stating the name and address
of the transferee and identifying the securities with respect to which the
rights under this Agreement are being assigned.
9. MERGERS, ETC. The Company shall not, directly or indirectly,
enter into any merger, consolidation or reorganization in which the Company
shall not be the surviving corporation unless the proposed surviving corporation
shall, prior to such merger, consolidation or reorganization, agree in writing
to assume the obligations of the Company under this Agreement, and for that
purpose references hereunder to "Registrable Securities" shall be deemed to be
references to the securities which the Holders would be entitled to receive in
exchange for Registrable Securities under any such merger, consolidation or
reorganization; provided, however, that the provisions of this Agreement shall
not apply in the event of any merger, consolidation or reorganization in which
the Company is not the surviving corporation if the Holders of Registrable
Securities are entitled to receive in exchange therefor (i) cash, or (ii)
securities of the acquiring corporation which may be immediately sold to the
public without registration under the 1933 Act.
10. MISCELLANEOUS.
(a) This Agreement states the entire agreement of the parties
concerning the subject matter hereof, and supersedes all
prior agreements, written or oral, between or among them
concerning such subject matter.
(b) This Agreement may be amended and compliance and any provision
of this Agreement may be omitted or waived only by the
written agreement of (i) the Company and (ii) the Holders of at
least 80% of the Registrable Securities.
(c) This Agreement shall be governed by, and construed and enforced
in accordance with, the substantive laws of The Commonwealth of
Massachusetts without regard to its principles of conflicts of
laws. Each of the parties hereto agrees that any suit for the
enforcement of this Agreement may be brought in the courts
of The Commonwealth of Massachusetts or any Federal Court
sitting therein and consents to the nonexclusive jurisdiction of
such court and to service of process in any such suit be made
upon such party by mail, the address provided in accordance with
Section 10(d). Each party hereby waives any objection that it
may now or hereafter have to venue of any such suit or any such
court or that such suit was brought in an inconvenient court.
(d) All notices, requests, consents and other communications
hereunder shall be in writing and shall be delivered by hand or
mailed by certified or registered mail, return receipt
requested, postage prepaid, or by telecopier addressed as
follows:
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if to the Company: Hills Stores Company
00 Xxx Xxxx
Xxxxxx, XX 00000
Attention: Vice President-Secretary
Telecopier: (000) 000-0000
with a copy to: Xxxxx X. Xxxxx, Esq.
Xxxxx, Xxxx & Xxxxx
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier: (000) 000-0000
if to any Investor at the address set forth on Schedule I;
if to any subsequent Holder to it at such address as may
have been furnished to the Company in writing by such Holder;
or, in any case, at such other address or addresses as shall
have been furnished in writing to the Company (in the case of a
Holder of Registrable Securities) or to the Holders of
Registrable Securities (in the case of the Company) in
accordance with the provisions of this paragraph.
(e) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(f) If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall
not in any manner affect or render illegal, invalid or
unenforceable any other provision of this Agreement, and this
Agreement shall be carried out as if any such illegal, invalid
or unenforceable provision were not contained herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as an agreement under seal, as of the day and year first above
written.
THE COMPANY:
HILLS STORES COMPANY
[SEAL]
By: ____________________________________
Its
THE INVESTORS:
WESTINGHOUSE ELECTRIC CORPORATION
[SEAL]
By: ____________________________________
Its
XX-XXX ACQUISITION FUND II, L.P.
[SEAL]
By: ____________________________________
Its
XX-XXX ACQUISITION FUND (RETIREMENT
ACCOUNTS) II, L.P.
[SEAL]
By: ____________________________________
Its
KIMCO DEVELOPMENT CORPORATION
[SEAL]
By: ____________________________________
Its
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SCHEDULE OF INVESTORS
Investors Number of Registrable Securities
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WESTINGHOUSE ELECTRIC CORPORATION 99,013
Address: Westinghouse Electric Corporation
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xx. Xxxxxxxx Xxxx
Telecopier: (000) 000-0000
XX-XXX ACQUISITION FUND II, L.P. 62,616
Address: Xxxxxxx Xxxxx Xxxxxx Xxxxxx & Xxxxx
000 Xxxxxxx Xxxxxx
World Financial Center
Xxxxx Xxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xx. Xxxxxx X. Xxxxxx
Telecopier: (000) 000-0000
XX-XXX ACQUISITION FUND 33,427
(RETIREMENT ACCOUNTS) II, L.P.
Address: Xxxxxxx Xxxxx Xxxxxx Xxxxxx & Xxxxx
000 Xxxxxxx Xxxxxx
World Financial Center
Xxxxx Xxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xx. Xxxxxx X. Xxxxxx
Telecopier: (000) 000-0000
KIMCO DEVELOPMENT CORPORATION 2,970
Address: Kimco Realty Corporation
000 Xxx Xxxx Xxxx Xxxx
Xxxxx 000
Xxx Xxxx Park, New York 11042
Attention: Xx. Xxxxx X. Xxxxx
Telecopier: (000) 000-0000
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