EXECUTION COPY
EXHIBIT 4.2
THE MEN'S WEARHOUSE, INC.
$130,000,000
3.125% CONVERTIBLE SENIOR NOTES DUE 2023
REGISTRATION RIGHTS AGREEMENT
October 21, 2003
The Men's Wearhouse, Inc., a Texas corporation (the "Company"),
proposes to issue and sell to the initial purchasers named in the purchase
agreement (the "Initial Purchasers"), upon the terms set forth in such purchase
agreement, dated October 15, 2003, (the "Purchase Agreement"), $130,000,000
aggregate principal amount (including an additional $20,000,000 principal amount
pursuant to an option granted thereunder) of its 3.125% Convertible Senior Notes
due 2023 (the "Securities"). The Securities will be convertible into fully paid,
nonassessable shares of Common Stock, par value $0.01 per share, of the Company
(the "Common Stock"), on the terms, and subject to the conditions, set forth in
the Indenture (as defined herein).
As a condition to the Initial Purchasers' obligation to purchase the
Securities pursuant to the Purchase Agreement, the Company agrees with the
Initial Purchasers for the benefit of Holders (as defined herein) from time to
time of the Registrable Securities (as defined herein) as follows:
1. Definitions.
(a) Capitalized terms used herein without definition shall
have the meanings ascribed to them in the Purchase Agreement. As used in this
Agreement, the following defined terms shall have the following meanings:
"Additional Interest" has the meaning assigned thereto in Section 7(a)
hereof.
"Additional Shares" has the meaning assigned thereto in Section 7(a)
hereof.
"Affiliate" has the meaning assigned thereto in Rule 405 under the
Securities Act.
"Agreement" means this Registration Rights Agreement, as amended,
modified or otherwise supplemented from time to time in accordance with the
terms hereof.
"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, regulation or executive order to close.
"Commission" means the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
"Common Stock" has the meaning assigned thereto in the preamble hereto.
"Company" has the meaning assigned thereto in the preamble hereto.
"Conversion Price" has the meaning assigned thereto in Section 1.1 of
the Indenture.
"Default Period" has the meaning assigned thereto in Section 7(a)
hereof.
"Effective Time" means the time at which the Commission declares any
Shelf Registration Statement effective or at which any Shelf Registration
Statement otherwise becomes effective.
"Effectiveness Period" has the meaning assigned thereto in Section
2(b)(i) hereof.
"Effectiveness Target Date" has the meaning assigned thereto in Section
2(a) hereof.
"Election and Questionnaire" means a Notice of Registration Statement
and Selling Securityholder Election and Questionnaire, which shall be
substantially in the form of Appendix A hereto.
"Election Holder" has the meaning assigned thereto in Section 3(a)(i)
hereof.
"Exchange Act" means the United States Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Holder" means any person who owns, beneficially or otherwise, any
Registrable Security.
"Indenture" means the Indenture, dated as of October 21, 2003, between
the Company and JPMorgan Chase Bank, as trustee (the "Trustee"), pursuant to
which the Securities are to be issued, and as such Indenture is amended,
modified or supplemented from time to time in accordance with the terms thereof.
"Initial Purchasers" has the meaning assigned thereto in the preamble
hereto.
"Interest Payment Date" has the meaning assigned thereto in Section 1.1
of the Indenture.
"Issue Date" means the first date of original issuance of the
Securities.
"Majority of Election Holders" has the meaning assigned thereto in
Section 3(p) hereof.
"Majority of Holders" means Holders holding more than 50% of the
aggregate principal amount of Securities outstanding; provided, that, for
purpose of this definition, a Holder of shares of Common Stock that constitute
Registrable Securities shall be deemed to hold an aggregate principal amount of
Securities (in addition to the principal amount of Securities held by such
Holder, if any) equal to the product of (x) the number of such shares of Common
Stock that constitute Registrable Securities held by such Holder and (y) the
Conversion Price in effect at the time of such calculation as determined in
accordance with the Indenture.
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"Person" means 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, as amended or supplemented by any prospectus supplement and by all
other amendments to such prospectus, including all material incorporated by
reference in such prospectus and all documents filed after the date of such
prospectus by the Company under the Exchange Act and incorporated by reference
therein.
"Purchase Agreement" has the meaning assigned thereto in the preamble
hereto.
"Registrable Securities" means all or any portion of the Securities
issued from time to time under the Indenture and all of the shares of Common
Stock issued upon conversion of such Securities until, in the case of any such
securities, the earliest of:
(x) the date on which such security has been registered under
the Securities Act and disposed of pursuant to an effective
registration statement; provided that, if such security is a share of
Common Stock issued upon conversion of a Security that has been so
registered and disposed of, the date on which the Security that was
converted was registered and disposed of;
(y) the date on which such security is distributed to the
public pursuant to Rule 144 under the Securities Act or may be sold or
transferred by a person who is not an Affiliate of the Company pursuant
to Rule 144 under the Securities Act (or any other similar provision
then in force) without any volume or manner of sale restrictions
thereunder; provided that, if such security is a share of Common Stock
issued upon conversion of a Security that has been so registered and
disposed of, the date on which the Security that was converted was
registered and disposed of; and
(z) the date on which such Securities cease to be outstanding
(whether as a result of repurchase and cancellation, conversion or
otherwise).
"Registration Default" has the meaning assigned thereto in Section 7(a)
hereof.
"Securities" has the meaning assigned thereto in the preamble hereto.
"Securities Act" means the United States Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Shelf Filing Deadline" has the meaning assigned thereto in Section
2(a) hereof.
"Shelf Registration" means a registration effected pursuant to Section
2 hereof.
"Shelf Registration Statement" means a registration statement filed (i)
under the Securities Act providing for the registration of, and the sale on a
continuous or delayed basis pursuant to Rule 415 under the Securities Act and/or
any similar rule that may be adopted by the Commission by the Holders of, all of
the Registrable Securities for which Holders have
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completed, executed and delivered to the Company an Election and Questionnaire
and (ii) by the Company pursuant to the provisions of Section 2 hereof,
including the Prospectus contained therein, any amendments and supplements to
such registration statement, including post-effective amendments, and all
exhibits and all material incorporated by reference in such registration
statement, and any additional registration statements filed under the Securities
Act to permit the registration and sale of Registrable Securities pursuant to
Section 3(a)(ii) hereof.
"Suspension Period" has the meaning assigned thereto in Section 2(c)
hereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, or any successor thereto, and the rules, regulations and forms of the
Commission promulgated thereunder, as in effect on the date the Indenture is
qualified thereunder.
"Underwriting Majority" means on any date, Holders holding at least 66
2/3% of the aggregate principal amount of the Securities outstanding on such
date; provided, that for the purpose of this definition, a Holder of shares of
Common Stock that constitute Registrable Securities shall be deemed to hold an
aggregate principal amount of Securities (in addition to the principal amount of
Securities held by such Holder, if any) equal to the product of (x) the number
of such shares of Common Stock that constitute Registrable Securities held by
such Holder and (y) the Conversion Price in effect at the time of such
calculation as determined in accordance with the Indenture.
"Underwritten Offering" means an offering in which securities of the
Company are sold to one or more underwriters for reoffering to the public.
2. Shelf Registration.
(a) The Company shall, no later than 90 calendar days
following the Issue Date (the "Shelf Filing Deadline"), file with the Commission
a Shelf Registration Statement relating to the offer and sale of the Registrable
Securities by the Holders from time to time in accordance with the methods of
distribution elected by such Holders and, thereafter, shall use its reasonable
best efforts to cause such initial Shelf Registration Statement to be declared
effective under the Securities Act no later than 180 calendar days following the
Issue Date (the "Effectiveness Target Date"); provided, however, that no Holder
shall be entitled to be named as a selling securityholder in any Shelf
Registration Statement as of the date it is declared effective or to use the
Prospectus forming a part thereof for offers and resales of Registrable
Securities unless such Holder is an Election Holder.
(b) Subject to Section 2(c) hereof, the Company shall use its
reasonable best efforts:
(i) to keep any Shelf Registration Statement continuously
effective, supplemented and amended as required by the provisions of
Section 3(j) hereof, in order to permit the Prospectus forming a part
thereof to be usable by Holders until the earlier of: (1) two years
from the last date of original issuance of any Securities or (2) such
shorter period ending on the date that (x) all of the Holders of
Registrable Securities are able to sell all Registrable Securities
immediately without restriction pursuant to Rule 144(k) under the
Securities Act or any successor rule thereto, (y) all Registrable
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Securities registered under the Shelf Registration Statements have been
sold or (z) all Registrable Securities have ceased to be outstanding
(such period being referred to herein as the "Effectiveness Period");
and
(ii) after the Effective Time of the initial Shelf
Registration Statement, after the receipt of a completed and signed
Election and Questionnaire from any Holder of Registrable Securities
that is not then an Election Holder, to take the actions provided for
in Section 3(a)(ii) hereof.
The Company shall be deemed not to have used its reasonable best
efforts to keep any Shelf Registration Statement effective during the
Effectiveness Period if the Company voluntarily takes any action that would
result in Holders of Registrable Securities covered thereby not being able to
offer and sell any of such Registrable Securities under such Shelf Registration
Statement during that period, unless such action is (A) required by applicable
law and the Company thereafter promptly complies with the requirements of
Section 3(j) below or (B) permitted pursuant to Section 2(c) below.
(c) After the Effective Time of the initial Shelf Registration
Statement, the Company may suspend the use of any Prospectus by written notice
to the Election Holders for a period not to exceed an aggregate of 30 calendar
days in any 90-calendar day period (each such period, a "Suspension Period") if:
(i) an event has occurred and is continuing as a result of
which the Shelf Registration Statement would, in the Company's
judgment, 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
(ii) the Company determines in good faith that the disclosure
of such event at such time would have a material adverse effect on the
Company and its subsidiaries taken as a whole;
provided, that in the event the disclosure relates to a previously undisclosed
proposed or pending material business transaction, the disclosure of which would
impede the Company's ability to consummate such transaction, the Company may
extend a Suspension Period from 30 calendar days to 45 calendar days; provided,
however, that Suspension Periods (including, without limitation, any such
extension of a Suspension Period) shall not exceed an aggregate of 120 calendar
days in any 360-calendar day period.
3. Registration Procedures.
In connection with the Shelf Registration Statements, the following
provisions shall apply:
(a) (i) Not less than 30 calendar days prior to the intended
Effective Time of the initial Shelf Registration Statement, the Company shall
distribute the Election and Questionnaire to the Holders of Registrable
Securities. The Company shall take action to name as a selling securityholder in
the initial Shelf Registration Statement at the time of its effectiveness each
Holder that completes, executes and delivers an Election and Questionnaire to
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the Company at the address set forth in the Election and Questionnaire (an
"Election Holder") prior to or on the 20th calendar day after such Holder's
receipt thereof so that such Holder is permitted to deliver the Prospectus
forming a part thereof as of such time to purchasers of such Holder's
Registrable Securities in accordance with applicable law. The Company shall not
be required to take any action to name any Holder as a selling securityholder in
the initial Shelf Registration Statement at the time of its effectiveness or to
enable any Holder to use the Prospectus forming a part thereof for resales of
Registrable Securities unless such Holder has returned a completed and signed
Election and Questionnaire to the Company in a timely manner.
(ii) After the Effective Time of the initial Shelf
Registration Statement, the Company shall, upon the request of any
Holder of Registrable Securities that is not then an Election Holder,
promptly send an Election and Questionnaire to such Holder. After the
Effective Time of the initial Shelf Registration Statement, the Company
shall (A) after the date a completed and signed Election and
Questionnaire is delivered to the Company, prepare and file with the
Commission (x) a supplement to the Prospectus as promptly as
practicable or, if required by applicable law, a post-effective
amendment to the Shelf Registration Statement or an additional Shelf
Registration Statement as promptly as practicable after the end of each
fiscal quarter and (y) any other document required by applicable law,
so that the Holder delivering such Election and Questionnaire is named
as a selling securityholder in a Shelf Registration Statement and is
permitted to deliver the Prospectus to purchasers of such Holder's
Registrable Securities in accordance with applicable law, and (B) if
the Company shall file a post-effective amendment to the Shelf
Registration Statement, or an additional Shelf Registration Statement,
use its reasonable best efforts to cause such post-effective amendment
or such additional Shelf Registration Statement to become effective
under the Securities Act as promptly as is practicable; provided,
however, that if an Election and -------- ------- Questionnaire is
delivered to the Company during a Suspension Period, the Company shall
not be obligated to take the actions set forth in this clause (ii)
until the termination of such Suspension Period.
(b) Before filing any Shelf Registration Statement or
Prospectus or any amendments or supplements (other than supplements solely for
the purpose of naming one or more Election Holders as selling securityholders)
thereto with the Commission, furnish to the Initial Purchasers copies of all
such documents proposed to be filed and use reasonable best efforts to reflect
in each such document when so filed with the Commission such comments as the
Initial Purchasers reasonably shall propose within five Business Days of the
delivery of such copies to the Initial Purchasers.
(c) The Company shall promptly take such action as may be
necessary so that (i) each of the Shelf Registration Statements and any
amendment thereto and the Prospectus forming a 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, as in effect at any relevant time, (ii) each of the
Shelf Registration Statements 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) each of the Prospectus forming a
part of any Shelf Registration Statement, and any amendment or supplement to
such
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Prospectus, in the form delivered to purchasers of the Registrable Securities
during the Effectiveness Period does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(d) The Company shall promptly give written notice to, in the
case of clauses (i) and (ii), the Initial Purchasers, and, in the case of clause
(ii) and the remaining clauses, each Election Holder (which written notice
pursuant to clauses (iv)-(vii) hereof shall be accompanied by an instruction to
such Election Holders to suspend the use of the Prospectus until the requisite
changes have been made, which written notice need not specify the nature of the
event giving rise to such suspension):
(i) when the initial Shelf Registration Statement has been
filed with the Commission;
(ii) when the initial Shelf Registration Statement has become
effective;
(iii) when any Prospectus supplement, Shelf Registration
Statement or post-effective amendment to a Shelf Registration Statement
has been filed with the Commission and, with respect to a Shelf
Registration Statement or any post-effective amendment, when the same
has been declared effective by the Commission;
(iv) of any request by the Commission for amendments or
supplements to any Shelf Registration Statement or the Prospectus
included therein or for additional information;
(v) of the issuance by the Commission of any stop order
suspending the effectiveness of any Shelf Registration Statement under
the Securities Act or the initiation of any proceedings for such
purpose;
(vi) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included in any Shelf Registration Statement for sale in any
jurisdiction or the initiation of any proceeding for such purpose; and
(vii) of the occurrence of any event or any state of facts
that requires the making of any changes in any Shelf Registration
Statement or the Prospectus included therein so that, as of such date,
such Shelf Registration Statement and 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.
(e) The Company shall use its reasonable best efforts to
prevent the issuance, and, if issued, to obtain the withdrawal at the earliest
possible time, of any order suspending the effectiveness of any Shelf
Registration Statement.
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(f) As promptly as reasonably practicable furnish to the Initial
Purchasers and to each Election Holder, upon their request and without charge,
at least one conformed copy of the applicable Shelf Registration Statement and
any post-effective amendment thereto, including financial statements and
schedules but excluding all documents incorporated or deemed to be incorporated
therein by reference and all exhibits (unless requested in writing to the
Company by the Initial Purchasers or such Election Holder, as the case may be).
(g) The Company shall, during the Effectiveness Period, deliver to each
Election Holder, without charge, as many copies of each Prospectus in which the
Election Holder is listed as a selling securityholder included in the applicable
Shelf Registration Statement and any amendment or supplement thereto as such
Election Holder may reasonably request; and the Company consents (except during
a Suspension Period or during the continuance of any event described in Section
3(d)(iv)-(vii) above) to the use of the Prospectus and any amendment or
supplement thereto by each of the Election Holders in connection with the
offering and sale of the Registrable Securities covered by the Prospectus and
any amendment or supplement thereto during the Effectiveness Period.
(h) Prior to any offering of Registrable Securities pursuant
to a Shelf Registration Statement, the Company shall:
(i) register or qualify or cooperate with the Election Holders
or underwriter, if any, and their respective counsel in connection with
the registration or qualification of such Registrable Securities for
offer and sale under the securities or "blue sky" laws of such
jurisdictions within the United States as any Election Holder may
reasonably request;
(ii) keep such registrations or qualifications in effect and
comply with such laws so as to permit the continuance of offers and
sales in such jurisdictions for so long as may be necessary to enable
any Election Holder or underwriter, if any, to complete its
distribution of Registrable Securities pursuant to such Shelf
Registration Statement; and
(iii) take any and all other actions necessary or advisable to
enable the offer and sale in such jurisdictions of such Registrable
Securities;
provided, however, that in no event shall the Company be obligated to (A)
register or qualify as a foreign corporation or as a dealer of securities in any
jurisdiction where it would not otherwise be required to so qualify but for this
Section 3(h) or (B) subject itself to general or unlimited service of process or
to taxation in any such jurisdiction if it is not now so subject.
(i) Unless the Registrable Securities shall be in book-entry only form,
the Company shall cooperate with the Election Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold pursuant to any Shelf Registration Statement, which certificates, if so
required by any securities market or exchange upon which any Registrable
Securities are listed or quoted, shall be penned, lithographed or engraved, or
produced by any combination of such methods, on steel engraved borders, and
which certificates shall be free of any restrictive legends and in such
permitted denominations
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and registered in such names as Election Holders may request in connection with
the sale of Registrable Securities pursuant to such Shelf Registration
Statement.
(j) During the Effectiveness Period, upon the occurrence of any fact or
event contemplated by Sections 3(d)(iv)-(vii) above, subject to Section 2(c)
hereof, the Company shall promptly prepare and file within five Business Days
following such occurrence, and, in the case of a post-effective amendment, use
reasonable best efforts to have declared effective a post-effective amendment to
any Shelf Registration Statement, a supplement to the related Prospectus
included therein or a report with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act so that, as thereafter delivered to
Election Holders or purchasers of the Registrable Securities, the Prospectus
will not contain 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, and will otherwise be
effective and usable for resale of Registrable Securities during the
Effectiveness Period. If the Company notifies the Election Holders of the
occurrence of any fact or event contemplated by Section 3(d)(iv)-(vii) above,
the Election Holders shall suspend the use of the Prospectus until the requisite
changes to the Prospectus have been made.
(k) Not later than the Effective Time of a Shelf Registration
Statement, the Company shall obtain a CUSIP number for the Securities to be sold
pursuant to a Shelf Registration Statement, and provide the Trustee with printed
certificates for the Securities in a form eligible for deposit with The
Depository Trust Company.
(l) The Company shall comply with the Securities Act and the Exchange
Act, as in effect at any relevant time, and make generally available to its
securityholders earnings statements satisfying the provisions of Section 11(a)
of the Securities Act and Rule 158 thereunder (or any similar rule promulgated
under the Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period is a
fiscal year), or such shorter period as required by the Securities Act and the
Exchange Act, as in effect at any relevant time, commencing on the first day of
the first fiscal quarter of the Company commencing after (i) the Effective Time
of a Shelf Registration Statement, (ii) the effective date of each
post-effective amendment to such Shelf Registration Statement, or (iii) the date
of each filing by the Company with the Commission of an Annual Report on Form
10-K that is incorporated by reference in such Shelf Registration Statement,
which statements shall cover such 12-month periods.
(m) Not later than the Effective Time of the initial Shelf Registration
Statement, the Company shall cause the Indenture to be qualified under the Trust
Indenture Act; in connection with such qualification, the Company shall
cooperate with the Trustee and the Holders (as defined in the Indenture) of the
Securities to effect such changes to the Indenture as may be required for such
Indenture to be so qualified in accordance with the terms of the Trust Indenture
Act; and the Company shall execute, and shall use its reasonable best efforts to
cause the Trustee to execute, all documents that may be required to effect such
changes and all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely manner. In
the event that any such amendment or modification referred to in this Section
3(m) involves the appointment of a new trustee under the Indenture, the Company
shall appoint a new trustee thereunder pursuant to the applicable provisions of
the Indenture.
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(n) The Company shall enter into such customary agreements (including,
if requested, an underwriting agreement) and take all such other actions, if
any, reasonably requested in connection therewith in order to expedite or
facilitate disposition of such Registrable Securities.
(o) If an underwriting agreement is entered into and the offering is an
Underwritten Offering, the Company shall:
(i) upon request, furnish to each underwriter, in such
substance and scope as they may reasonably request and as are
customarily made by issuers to underwriters in primary underwritten
offerings, upon the date of closing of any sale of Registrable
Securities in an Underwritten Offering:
(A) a certificate, dated the date of such closing,
signed by (x) the Chief Executive Officer or Executive Vice
President and (y) the Chief Financial Officer of the Company
confirming, as of the date thereof, such matters as such
parties may reasonably request;
(B) opinions, each dated the date of such closing, of
counsel to the Company covering such matters as are
customarily covered in legal opinions to underwriters in
connection with primary underwritten offerings of securities;
and
(C) customary comfort letter(s), dated the date of
such closing, from the Company's independent accountants and
from any other accountants whose report is contained or
incorporated by reference in the Shelf Registration Statement,
in the customary form and covering matters of the type
customarily covered in comfort letters to underwriters in
connection with primary underwritten offerings of securities;
(ii) set forth in full in the underwriting agreement, if any,
indemnification provisions and procedures which provide rights no less
protective than those set forth in Section 5 hereof with respect to all
parties to be indemnified; and
(iii) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with clause
(i) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Election
Holders pursuant to this subsection (o).
(p) The Company shall make (i) reasonably available for inspection by
one or more representatives of the selling Holders, designated in writing by a
Majority of Holders whose Registrable Securities are included in a Shelf
Registration Statement (the "Majority of Election Holders"), any underwriter
participating in any disposition pursuant to any Shelf Registration Statement,
and any attorney, accountant or other agent retained by such Election Holders or
any such underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries, and (ii)
cause the Company's officers, directors, employees and auditors to supply all
relevant information reasonably requested by such Majority of Election Holders
or any such underwriter, attorney, accountant or
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other agent in connection with such Shelf Registration Statement, in each case,
as is reasonably necessary to enable such persons to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act; provided,
however, that such persons shall, at the Company's request, first agree in
writing with the Company that any information that is reasonably and in good
faith designated by the Company in writing as confidential at the time of
delivery of such information shall be kept confidential by such persons and
shall be used solely for the purposes of exercising rights under this Agreement,
unless such disclosure is required by law (including, without limitation, in
connection with the disposition of Registrable Securities pursuant to a Shelf
Registration Statement) or is made in connection with a court proceeding, or
such records, information or documents become available to the public generally
or through a third party without an accompanying obligation of confidentiality;
and provided, further, that, if the foregoing inspection and information
gathering would otherwise disrupt the Company's conduct of its business, such
inspection and information gathering shall, to the greatest extent possible, be
coordinated on behalf of the Election Holders and the other parties entitled
thereto by one counsel designated by such Majority of Election Holders and on
behalf of the Election Holders and the other parties.
(q) If requested by the underwriters in an Underwritten Offering, make
appropriate officers of the Company reasonably available to the underwriters for
meetings with prospective purchasers of the Registrable Securities and prepare
and present to potential investors customary "road show" material in a manner
consistent with other new issuances of other securities similar to the
Registrable Securities.
(r) The Company will use its reasonable best efforts to cause the
Common Stock issuable upon conversion of the Securities to be listed on the New
York Stock Exchange or listed or quoted on the other market or stock exchange on
which the Common Stock primarily trades on or prior to the Effective Time of
each Shelf Registration Statement hereunder.
(s) The Company will cooperate and assist in any filings or by taking
any other actions required to be made or taken with or by National Association
of Securities Dealers, Inc.
(t) The Company shall use its reasonable best efforts to take all other
steps necessary to effect the registration, offering and sale of the Registrable
Securities covered by each Shelf Registration Statement contemplated hereby.
4. Registration Expenses.
The Company shall bear all fees and expenses incurred in connection
with the performance by the Company of its obligations under Sections 2 and 3 of
this Agreement, whether or not any Shelf Registration Statement is declared
effective. Such fees and expenses shall include, without limitation:
(i) all registration and filing fees and expenses (including,
without limitation, fees and expenses (x) with respect to filings
required to be made with the National Association of Securities
Dealers, Inc. and (y) of compliance with federal and state securities
or Blue Sky laws to the extent such filings or compliance are required
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pursuant to this Agreement (including, without limitation, reasonable
fees and disbursements of the counsel specified in the next sentence in
connection with Blue Sky qualifications of the Registrable Securities
under the laws of such jurisdictions as the Majority of Election
Holders may designate));
(ii) all expenses of printing (including, without limitation,
expenses of printing certificates for Registrable Securities in a form
eligible for deposit with The Depository Trust Company), duplication
relating to copies of any Shelf Registration Statement or Prospectus
delivered to any Holders hereunder, messenger and delivery services and
telephone;
(iii) all fees and expenses incurred in connection with the
listing of the Common Stock issuable upon conversion of the Securities
or any securities exchange on which similar securities of the Company
are then listed;
(iv) all fees and disbursements of counsel for the Company;
(v) all fees and disbursements of independent certified public
accounts or auditors of the Company (including the expenses of any
special audit and comfort letters required by or incident to such
performance); and
(vi) all reasonable fees and disbursements of the Trustee and
its counsel and of the registrar and transfer agent for the Common
Stock.
In addition, the Company shall bear or reimburse the Election Holders
for the reasonable fees and disbursements of one counsel for the Holders, which
shall initially be counsel to the Initial Purchasers, but which may, upon the
written consent of the Company (which shall not be unreasonably withheld), be
another nationally recognized law firm experienced in securities law matters
designated by the Initial Purchasers.
In addition, the Company shall pay the internal expenses of the Company
(including, without limitation, all salaries and expenses of officers and
employees performing legal or accounting duties), the expense of any annual
audit and the fees and expenses of any person, including special experts,
retained by the Company.
5. Indemnification and Contribution.
(a) Indemnification by the Company. The Company shall
indemnify and hold harmless each Holder, such Holder's officers, directors,
partners and employees and each person, if any, who controls any such Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages, liabilities
and expenses whatsoever as incurred (including, but not limited to, reasonable
attorneys' fees and any and all reasonable expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim made whatsoever, and any and all amounts paid in
settlement of any claim or litigation), joint or several, to which they or any
of them may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities, expenses (or
actions in respect thereof) arise out of, or are based upon:
12
(i) any untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement or any
amendment thereto or any related preliminary prospectus or the
Prospectus or any amendment thereto of supplement thereof; or
(ii) the omission or alleged omission to state in the Shelf
Registration Statement or any amendment thereto or any related
preliminary prospectus or the Prospectus or any amendment thereto of
supplement thereof any material fact required to be stated therein or
necessary to make the statements therein (in the case of any related
preliminary prospectus or the Prospectus, in light of the circumstances
under which they were made) not misleading;
provided, however, that the Company shall not be liable to any such indemnified
party in any such case to the extent, but only to the extent, that any such
loss, claim, damage, liability or expense arises out of, or is based upon, any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such indemnified party
expressly for use therein; and provided, further, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Holder who failed to deliver a Prospectus (as then amended or
supplemented, provided by the Company to the Holders in the requisite quantity
and on a timely basis to permit proper delivery on or prior to resale) to the
person asserting any loss, claim, damage, liability or expense caused by the
untrue statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, if such material
misstatement or omission or alleged material misstatement or omission was cured,
as determined by a court of competent jurisdiction in a decision not subject to
further appeal, in such Prospectus and such Prospectus was required by law to be
delivered at or prior to the written confirmation of the resale of such
Securities to such person. The foregoing indemnity agreement is in addition to
any liability that the Company may otherwise have to any indemnified party. The
Company also shall indemnify underwriters, their directors and officers and each
person who controls such underwriters within the meaning of the Securities Act
or Exchange Act to the same extent as provided above with respect to the
indemnification of Holders if requested by such Holders.
(b) Indemnification by the Holders. Each Holder, severally and not
jointly, shall indemnify and hold harmless the Company, its officers, directors
and employees and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities and expenses
whatsoever as incurred (including, but not limited to, reasonable attorneys'
fees and any and all reasonable expenses whatsoever incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or any
claim made whatsoever, and any and all amounts paid in settlement of any claim
or litigation), joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or action in respect thereof)
arise out of, or are based upon:
13
(i) any untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement or any
amendment thereto or any related preliminary prospectus or the
Prospectus or any amendment thereto of supplement thereof; or
(ii) the omission or alleged omission to state in the Shelf
Registration Statement or any amendment thereto or any related
preliminary prospectus or the Prospectus or any amendment thereto of
supplement thereof any material fact required to be stated therein or
necessary to make the statements therein (in the case of any related
preliminary prospectus or the Prospectus, in light of the circumstances
under which they were made) not misleading,
in each case to the extent, but only to the extent, that any such loss, claim,
damage, liability or expense arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made therein was
made in reliance upon and in conformity with written information pertaining to
such Holder and furnished to the Company by or on behalf of such Holder
expressly for use therein. The foregoing indemnity agreement is in addition to
any liability that any Holder may otherwise have to any indemnified party.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of any claim or the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the claim or the commencement of
that action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability that it may have under this
Section 5, except to the extent, but only to the extent, that it has been
materially prejudiced (including the forfeiture of important rights and
defenses). If any such claim or action is brought against any indemnified party,
and it notifies the indemnifying party thereof, the indemnifying party will be
entitled to participate, at its own expense in the defense of such action, and
to the extent it may elect by written notice delivered to such indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party; provided, however, that counsel to the indemnifying party
shall not (except with the written consent of the indemnified party) also be
counsel to the indemnified party. Notwithstanding the foregoing, the indemnified
party or parties shall have the right to employ its or their own counsel (but,
in any case, only one counsel for all indemnified parties) in any such case, but
the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (1) the employment of such counsel has been
authorized in writing by the indemnifying party, or (2) such indemnifying party
shall not have employed counsel to take charge of the defense of such action
within a reasonable time after notice thereof, (3) the indemnifying party does
not diligently defend the action after assumption of the defense or (4) such
indemnified party shall have reasonably concluded that the representation of
such indemnified party by the same counsel representing the indemnifying party
would be inappropriate under applicable standards of professional conduct due to
actual or potential differing interests between them or where there may be one
or more defenses available to them that are different from, additional to or in
conflict with those available to the indemnifying party, and in any such event
the fees and expenses of such separate counsel shall be paid by the indemnifying
party as incurred. No indemnifying party shall, without the prior written
consent
14
of the indemnified parties (which consent shall not be unreasonably withheld or
delayed), effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened claim, investigation, action
or proceeding in respect of which indemnity or contribution may be or could have
been sought by an indemnified party under this Section 5 (whether or not the
indemnified party or parties are actual or potential parties thereto) unless (x)
such settlement, compromise or judgment (i) includes an unconditional release of
such indemnified party from all liability arising out of such claim, action,
suit or proceeding and (ii) does not include a statement as to or an admission
of fault, culpability or any unlawful failure to act by or on behalf of any
indemnified party and (y) the indemnifying party confirms in writing its
indemnification obligations hereunder with respect to such settlement,
compromise or judgment.
(d) Contribution. If the indemnification provided for in this Section 5
is unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in subsection (a) or (b)
above:
(i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties, on the
one hand, and the indemnified party, on the other hand, from the
registration and sale of the Registrable Securities pursuant to the
Shelf Registration; or
(ii) if the allocation provided by the foregoing clause (i) 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 party or parties
on the one hand and the indemnified party on the other in connection
with the statements or omissions that resulted in such losses, claims,
damages, liabilities or expenses as well as any other relevant
equitable considerations.
The relative benefits received by the Company, on the one hand, and a Holder, on
the other hand, shall be deemed to be in the same proportion as (i) the total
net proceeds from the offering of the Securities purchased under the Purchase
Agreement (before deducting expenses) received by the Company bear to (ii) the
excess of the gross proceeds received by such Holder with respect to its sale of
Registrable Securities over the price paid by such Holder in its purchase of
such Registrable Securities. The relative fault of the Company, on the one hand,
and of a Holder, 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 or such Holder and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Holders agree that it would not
be just and equitable if contribution pursuant to this Section 5(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 above. The
aggregate amount paid as a result of the losses, claims, damages, liabilities or
expenses incurred by an indemnified party and referred to in the first sentence
of this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating,
preparing or defending against any action or
15
claim which is the subject of this subsection (d). Notwithstanding any other
provision of this Section 5(d), (i) in no case shall any Holder be required to
contribute any amount in excess of the amount by which the gross proceeds
received by such Holder from its sale of Registrable Securities pursuant to the
Shelf Registration Statement exceeds the amount of damages which such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission and (ii) 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. For purposes of this Section 5(d),
each person, if any, who controls such indemnified party within the meaning of
the Securities Act or the Exchange Act shall have the same rights to
contribution as such indemnified party and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act shall have
the same rights to contribution as the Company. The Holders' respective
obligations to contribute pursuant to this Section 5 are several in proportion
to the respective amount of Registrable Securities they have sold pursuant to a
Registration Statement and not joint. The remedies provided for in this Section
5 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(e) The indemnity and contribution provisions contained in
this Section 5 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, or (ii) any investigation made by or on
behalf of any indemnified party.
6. Holder's Obligations.
Each Holder agrees, by acquisition of the Registrable Securities, that
no Holder of Registrable Securities shall be entitled to sell any of such
Registrable Securities pursuant to a Shelf Registration Statement or to receive
a Prospectus relating thereto, unless such Holder has furnished the Company with
a completed and signed Election and Questionnaire (including the information
required to be included in such Election and Questionnaire) and the information
set forth in the next sentence. Each Election Holder agrees promptly to furnish
to the Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Election Holder not
misleading and any other information regarding such Election Holder and the
distribution of such Registrable Securities as the Company may from time to time
reasonably request. Any sale of any Registrable Securities by any Election
Holder shall constitute a representation and warranty by such Election Holder
that (x) the information relating to such Election Holder and its plan of
distribution is as set forth in the Prospectus delivered by such Election Holder
in connection with such disposition, (y) such Prospectus does not as of the time
of such sale contain any untrue statement of a material fact relating to or
provided by such Election Holder or its plan of distribution and (z) such
Prospectus does not as of the time of such sale omit to state any material fact
relating to or provided by such Election Holder or its plan of distribution
necessary in order to make the statements in such Prospectus, in light of the
circumstances under which they were made, not misleading.
7. Additional Interest.
(a) If:
16
(i) on or prior to the Shelf Filing Deadline, a Shelf
Registration Statement has not been filed with the Commission;
(ii) on or prior to the Effectiveness Target Date, the initial
Shelf Registration Statement has not been declared effective by the
Commission (and includes, without limitation, any information with
respect to an Election Holder that has properly completed, executed and
delivered an Election and Questionnaire prior to or on the 20th
calendar day after such Holder's receipt thereof that is required so
that such Holder is named as a selling securityholder in the initial
Shelf Registration Statement and is permitted to deliver the Prospectus
forming a part thereof to purchasers of such Holder's Registrable
Securities);
(iii) after the Effective Time of any Shelf Registration
Statement, such Shelf Registration Statement ceases to be effective or
usable for the offer and sale of Registrable Securities (other than due
to a Suspension Period), and the Company fails to file and, in the case
of a post-effective amendment, have declared effective, within five
Business Days, a post-effective amendment to such Shelf Registration
Statement, a supplement to the Prospectus contained therein or a report
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act to make such Shelf Registration Statement effective or
such Prospectus usable;
(iv) prior to or on the 30th calendar day or 45th calendar
day, as the case may be, of any Suspension Period, such suspension has
not been terminated, or Suspension Periods exceed an aggregate of 120
calendar days in any 360-calendar day period; or
(v) the Company shall have failed to timely comply with any of
its obligations set forth in Section 3(a)(ii) hereof
(each such event referred to in clauses (i) through (v), a "Registration
Default"), the Company shall be required to pay additional interest ("Additional
Interest"), from and including the day following such Registration Default to
but excluding the earlier of (x) the day on which such Registration Default is
cured or (y) the date the Shelf Registration Statement is no longer required to
be kept effective (the "Default Period"), at a rate per annum equal to an
additional one-quarter of one percent (0.25%) of the principal amount of the
Registrable Securities that are Securities to and including the 90th calendar
day following such Registration Default, and one-half of one percent (0.5%)
thereof from and after the 91st calendar day following such Registration
Default. In the event any Registrable Securities that are Securities are
converted into Common Stock during a Default Period, in lieu of Additional
Interest, the Company will deliver to the each Holder converting during the
Default Period 103% of the number of shares of Common Stock the Holder would
have otherwise received upon conversion ("Additional Shares").
(b) Any amounts to be paid as Additional Interest pursuant to Section
7(a) hereof shall be paid in cash semi-annually in arrears, with the first
semi-annual payment due on the first Interest Payment Date following the date on
which such Additional Interest began to accrue, to the Holders in whose name the
Securities are registered at the close of business on
17
October 1 or April 1 , whether or not a Business Day, immediately preceding the
relevant Interest Payment Date.
(c) Except as provided in Section 10(a) hereof, the Additional Interest
or Additional Shares, as the case may be, as set forth in this Section 7 shall
be the exclusive remedy available to the Holders of Registrable Securities for
such Registration Default. In no event shall the Company be required to pay
Additional Interest in excess of a rate per annum equal to one-quarter of one
percent (0.25%) of the principal amount of the Registrable Securities that are
Securities to and including the 90th calendar day following such Registration
Default, and a rate per annum equal to one-half of one percent (0.5%) thereof
from and after the 91st calendar day following such Registration Default, as set
forth in Section 7(a), regardless of whether one or multiple Registration
Defaults exist. All obligations of the Company set forth in this Section 7 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 Registrable Security shall have been
satisfied in full. Each of the Registration Defaults will constitute a
Registration Default whatever the reason for any such event and whether it is
voluntary or involuntary or is beyond the control of the Company or pursuant to
operation of law or as a result of any action or inaction by the Commission.
8. Rule 144A.
In the event the Company is not subject to Section 13 or 15(d) of the
Exchange Act, the Company hereby agrees with each Holder, for so long as any
Registrable Securities remain outstanding, to make available to any Holder in
connection with any sale thereof and any prospective purchaser of such
Registrable Securities from such Holder, the information required by Rule
144A(d)(4) under the Securities Act in order to permit resales of such
Registrable Securities pursuant to Rule 144A.
9. Underwritten Offerings.
(a) The Underwriting Majority may, by written notice to the Company,
sell its Registrable Securities in an Underwritten Offering pursuant to any
Shelf Registration Statement.
(b) No Holder may participate in any Underwritten Offering hereunder
unless such Holder:
(i) 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
(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
underwriting arrangements.
(c) In any such Underwritten Offering, the investment banker or
investment bankers and manager or managers that will administer the offering
will be selected by a majority in aggregate principal amount of Registrable
Securities to be included in such Underwriting
18
Offering; provided, that such investment bankers and managers must be reasonably
satisfactory to the Company.
10. Miscellaneous.
(a) Specific Performance. The parties hereto acknowledge that
there would be no adequate remedy at law if the Company fails to perform any of
its obligations hereunder and that the Initial Purchasers and the Holders from
time to time may be irreparably harmed by any such failure, and accordingly
agree that the Initial Purchasers and such Holders, in addition to any other
remedy to which they may be entitled at law or in equity and without limiting
the remedies available to the Election Holders under Section 7 hereof, shall be
entitled to compel specific performance of the obligations of the Company under
this Agreement in accordance with the terms and conditions of this Agreement, in
any court of the United States or any State thereof having jurisdiction.
(b) Amendments and Waivers. Except as provided in the next two
sentences, this Agreement, including this Section 10(b), may be amended,
modified or supplemented and waivers or consents to departures from the
provisions hereof may be given, only by a written instrument duly executed by
the Company and a Majority of Holders. In the event of a merger or consolidation
or sale, assignment, conveyance, transfer, lease or other disposition of all or
substantially all of the properties and assets of the Company and its
Subsidiaries on a consolidated basis, the Company shall procure the assumption
of its obligations under this Agreement by the Person (if other than the
Company) formed by such consolidation or into which the Company is merged or the
Person who acquires by sale, assignment, conveyance, transfer, lease or other
disposition all or substantially all of the properties and assets of the Company
and its Subsidiaries on a consolidated basis and this Agreement may be amended,
modified or supplemented without the consent of any Holders to provide for such
assumption of the Company's obligations hereunder. Without the consent of the
Holder of each Security, no amendment or modification may change the provisions
relating to the payment of Additional Interest.
Each Holder of Registrable Securities outstanding at the time of any
amendment, modification, supplement, waiver or consent or thereafter shall be
bound by any amendment, modification, supplement, waiver or consent effected
pursuant to this Section 10(b), whether or not any notice, writing or marking
indicating such amendment, modification, supplement, waiver or consent appears
on the Registrable Securities or is delivered to such Holder.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, by telecopier,
by courier guaranteeing overnight delivery or by first-class mail, return
receipt requested, and shall be deemed given (i) when made, if made by hand
delivery, (ii) upon confirmation, if made by telecopier, (iii) one Business Day
after being deposited with such courier, if made by overnight courier or (iv) on
the date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:
(x) if to a Holder of Registrable Securities, at the most
current address given by such Holder to the Company;
19
(y) if to the Company, to:
The Men's Wearhouse, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
(z) if to the Initial Purchasers, to:
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Parish
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
Wachovia Capital Markets, LLC
One Wachovia Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
or to such other address as such person may have furnished to the other persons
identified in this Section 10(c) in writing in accordance herewith.
(d) Parties in Interest. The parties to this Agreement intend that all
Holders of Registrable Securities shall be entitled to receive the benefits of
this Agreement and that any Election Holder shall be bound by the terms and
provisions of this Agreement by reason of such election with respect to the
Registrable Securities which are included in a Shelf Registration Statement. All
the terms and provisions of this Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the respective successors and assigns
of the parties hereto and any Holder from time to time of the Registrable
Securities to the aforesaid extent. In the event that any transferee of any
Holder of Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be entitled
to receive the benefits of and, if an Election Holder, be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement to the aforesaid extent.
(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.
20
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
(i) Survival. The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made pursuant
hereto shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any
Election Holder, any director, officer or partner of such Election Holder, any
agent or underwriter, any director, officer or partner of such agent or
underwriter, or any controlling person of any of the foregoing, and shall
survive the transfer and registration of the Registrable Securities of such
Election Holder.
(j) Securities Held by the Company. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Securities is required
hereunder, Securities held by the Company or its Affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
21
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
THE MEN'S WEARHOUSE, INC.
By: /s/ NEILL ▇. ▇▇▇▇▇
--------------------------------
Name: Neill ▇. ▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
Accepted as of the date hereof:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By: /s/ ▇▇▇▇▇▇▇ PARISH
------------------
Name: ▇▇▇▇▇▇▇ Parish
Title: Senior Managing Director
WACHOVIA CAPITAL MARKETS, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
▇.▇. ▇▇▇▇▇▇ SECURITIES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
FLEET SECURITIES, INC.
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
APPENDIX A
THE MEN'S WEARHOUSE, INC.
FORM OF NOTICE OF REGISTRATION STATEMENT AND
SELLING SECURITYHOLDER ELECTION AND QUESTIONNAIRE
NOTICE
The Men's Wearhouse, 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 3.125% Convertible Senior Notes due 2023 (CUSIP No. 587 118 AB6) (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 October 21, 2003 (the "Registration Rights Agreement"), between the
Company and the Initial Purchasers. A copy of the Registration Rights Agreement
is available from the Company. All capitalized terms not otherwise defined
herein have the meanings 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 (as defined below) 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 the 20th calendar day from
the receipt hereof (the "Election and Questionnaire Deadline"). Beneficial
Owners that do not complete this Election and Questionnaire and deliver it to
the Company prior to the Election and Questionnaire Deadline as provided below
will not be named as Selling Securityholders in the Shelf Registration Statement
at the time it is declared effective and, therefore, will not be permitted to
sell any Transfer Restricted Securities pursuant to the Shelf Registration
Statement until we prepare and file a prospectus supplement or, if required, a
post-effective amendment to the Shelf Registration Statement or additional 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.
Upon the initial sale of Transfer Restricted Securities, the Selling
Securityholder agrees to deliver a notice of such sale, in substantially the
form attached as Exhibit 1 hereto.
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ELECTION
The undersigned holder (the "Selling Securityholder") of Transfer
Restricted Securities hereby elects to include in the Prospectus forming a part
of the Shelf Registration Statement the Transfer Restricted Securities
beneficially owned by it and listed below in Item III (unless otherwise
specified under Item III). 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 Initial Purchasers,
the Company and 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, representatives and
agents, from and against certain losses arising in connection with statements
concerning the Selling Securityholder made in the Shelf Registration Statement
or the related Prospectus, or any amendment or supplement thereto or any state
securities or "Blue Sky" application 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
I. A. Full Legal Name of Selling Securityholder:
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B. Full legal name of registered holder (if not the same as (A) above) through
which Transfer Restricted Securities listed in (C) below are held:
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C. Full legal name of DTC participant (if applicable and if not the same as (B)
above) through which Transfer Restricted Securities listed in Item III are held:
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II. Address for notices to Selling Securityholders:
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Telephone:
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Fax:
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A-2
Contact Person:
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Electronic Mail (Email) Address:
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III. 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:
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B. CUSIP No(s). of such Transfer Restricted Securities beneficially owned:
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IV. Beneficial ownership of the Company's securities owned by the Selling
Securityholder:
EXCEPT AS SET FORTH BELOW IN THIS ITEM IV, 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 III ("Other Securities").
A. Type and amount of Other Securities beneficially owned by the Selling
Securityholder:
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B. CUSIP No(s). of such Other Securities beneficially owned:
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V. 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 exception here:
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VI. 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
III 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
A-3
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):
1. on any national securities exchange or quotation service on which the
Transfer Restricted Securities may be listed or quoted at the time of
sale;
2. in the over-the-counter market;
3. in transactions otherwise than on such exchanges or services or in the
over-the-counter market; or
4. 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:
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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
prospectus delivery requirements and other provisions of the Securities Act and
the 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 III 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 I through VI above
and the inclusion of such information in the Shelf Registration Statement, the
related Prospectus and any state securities or "Blue Sky" applications. 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, the related Prospectus and any state securities or "Blue
Sky" applications.
A-4
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 or the related Prospectus,
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
III above. This Election and Questionnaire 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 THE 20TH CALENDAR DAY FROM RECEIPT HEREOF to The Men's
Wearhouse, Inc. at:
The Men's Wearhouse, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
A-5
EXHIBIT 1 TO APPENDIX A
NOTICE OF TRANSFER PURSUANT
TO REGISTRATION STATEMENT
The Men's Wearhouse, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Re: The Men's Wearhouse, Inc. (the "Company")
3.125% Convertible Senior Notes due 2023 (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 of Notes, pursuant to the
Registration Statement on Form S-3 (File No. 333- o) 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 o,
2003 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] [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:
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