Exhibit 10.1
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (this "Agreement") is entered into as of
January __, 1999 by and between Bradlees, Inc., a Massachusetts corporation
("BI"), Bradlees Stores, Inc., a Massachusetts corporation ("BSI" and,
collectively with BI, the "Companies") and each of the parties executing a
signature page hereto (each a "Holder" and collectively the "Holders").
WHEREAS, the Holders are to receive a number of shares of common stock,
$.01 par value (together with any additional shares of Common Stock that may be
issued upon the conversion of the Notes (as defined below), the "Common Stock")
of BI and certain 9% Convertible Notes, due 2004, of BSI (the "Notes"), issued
in connection with the Plan of Reorganization of BI and BSI on the date
prescribed therein (the "Effective Date") without registration under the
Securities Act of 1933, as amended (the "Securities Act"), pursuant to the
exemption under Section 1145 of the Bankruptcy Code from the registration
requirements of Section 5 of the Securities Act.
WHEREAS, the Holders may, as a result of the amount of Common Stock and/or
Notes they hold, be restricted under applicable securities laws in their ability
to freely transfer or resell the shares of Common Stock or Notes held by them
absent the registration of such transfer or resale of such securities under the
Securities Act.
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Registration of Securities.
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(a) Filing of Registration Statement. As of or prior to the Effective
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Date, the Companies shall cause to be filed a registration statement (the
"Registration Statement") under Rule 415 promulgated under the Securities Act
relating to the sale by such Holders of their shares of Common Stock and their
Notes (the "Registered Securities") in accordance with the terms hereof.
Thereupon, the Companies shall use their best efforts to cause such Registration
Statement to be filed and declared effective by the Securities and Exchange
Commission (the "SEC") for all Registered Securities as soon as practicable
thereafter, but in any event prior to the Effective Date. The Companies agree,
subject to the provisions of Sections 2, 5, 6 and 7 hereof, to use reasonable
efforts to maintain the continuous effectiveness of the Registration Statement,
and to update and correct the information contained in the Registration
Statement, until the date on which no Holder holds 10% or more of the BI's
outstanding Common Stock, provided that if one or more Holders hold less than
10% of BI's outstanding Common Stock but greater than 5% of BI's outstanding
Common Stock, such Holder or Holders may request that the Companies continue to
attempt to maintain the effectiveness of the Registration Statement at the
expense of such Holder or Holders as provided in Section 3.
(b) Conditions to Companies' Obligations. The Companies shall have no
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obligation to a Holder under Section 1(a) unless such Holder provides to the
Companies all of the information regarding the Holders and their affiliates
required to be included in the Registration Statement for it to be complete.
2. Registration Procedures.
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(a) The Companies shall notify each Holder of the effectiveness of the
Registration Statement and shall furnish to each such Holder such number of
copies of the Registration Statement (including any amendments, supplements and
exhibits), the prospectus contained therein, any documents incorporated by
reference in the Registration Statement and such other documents as such Holder
may reasonably request in order to facilitate its sale of the Registered
Securities in the manner described in the Registration Statement.
(b) The Companies shall prepare and file with the SEC from time to
time such amendments and supplements to the Registration Statement and
prospectus used in connection therewith as may be necessary to keep the
Registration Statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all the Registered Securities
until the date on which the Registration Statement ceases to be effective in
accordance with the terms of Section 1. The Companies shall promptly respond to
all comments from the SEC regarding the Registration Statement and any
amendments and/or supplements thereto. Upon twenty (20) business days' written
notice from any Holder, the Companies shall file any supplement or post-
effective amendment to the Registration Statement with respect to such Holder's
interests in or plan of distribution of Registered Securities that is reasonably
necessary to permit the sale of the Holder's Registered Securities pursuant to
the Registration Statement. For so long as the Companies are obligated to
maintain the effectiveness of the Registration Statement with respect to
Registered Securities owned by any Holder under this Agreement, such Holder
shall be afforded a reasonable opportunity to review the Registration Statement
and any amendments and/or supplements thereto prior to filing.
(c) The Companies shall notify each Holder of any request by the SEC
for amendments or supplements to the Registration Statement or the prospectus
related thereto or for additional information. In addition, the Companies shall
notify each such Holder of the filing of the Registration Statement, any
prospectus supplement related thereto or any post-effective amendment to the
Registration Statement and the effectiveness of any post-effective amendment.
(d) For so long as the Registration Statement remains effective, the
Companies shall promptly notify each Holder 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 any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which
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they were made, not misleading. In such event and subject to Sections 2(b), 6
and 7 of this Agreement, the Companies shall prepare and furnish to each such
Holder a reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of Registered Securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading.
(e) Subject to the conditions set forth in this Agreement, the
Companies shall, upon the reasonable request of any Holder, file such documents
as may be necessary to register or qualify the Registered Securities under the
state securities or "Blue Sky" laws of such states as any Holder requesting
registration may reasonably request, and the Companies shall use reasonable
efforts to cause such filings to become qualified; provided, however, that
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neither of the Companies shall be obligated to qualify as a foreign corporation
to do business under the laws of any such state in which it is not then
qualified or to file any general consent to service of process in any such
state. Once qualified, the Companies shall use reasonable efforts to keep such
filings qualified until the earlier of (a) such time as all of the Registered
Securities have been disposed of in accordance with the intended methods of
disposition by the Holder as set forth in the Registration Statement, (b) in the
case of a particular state, a Holder has notified the Companies that it no
longer requires qualified filing in such state in accordance with its original
request for filing or (c) the date on which the Registration Statement ceases to
be effective with the SEC. The Companies shall promptly notify each Holder
requesting registration of, and confirm in writing, the receipt by the Companies
of any notification with respect to the suspension of the qualification of the
Registered Shares for sale under the securities or "Blue Sky" laws of any
jurisdiction or the initiation or threat of any proceeding for such purpose, and
shall use its reasonable efforts to cause the termination of any such suspension
or proceeding.
(f) BI will use its best efforts to cause the listing of the Common
Stock on the NASDAQ National Market System ("NASDAQ") and prepare any related
filings necessary to maintain such listing.
3. Expenses.
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(a) Subject to the provisions of Section 3(b), the Companies shall
bear all expenses incurred in connection with the registration of the Registered
Securities until such time as no Holder holds 10% or more of the outstanding
Common Stock of BI. Such expenses shall include, without limitation, all
printing, legal and accounting expenses incurred by the Companies and all
registration and filing fees imposed by the SEC or the principal national
securities exchange or national market system on which the Registered Securities
are then traded or quoted (the "Registration Expenses"). The Holders shall be
responsible for any brokerage or underwriting commissions and taxes of any kind
(including, without limitation, transfer taxes) with respect to any disposition,
sale or transfer of Registered Securities and for
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any legal, accounting and other expenses incurred by them in connection with the
Registration Statement.
(b) After such time as no Holder holds 10% or more of the outstanding
Common Stock of BI, in the event that one or more Holders hold less than 10% of
the BI's outstanding Common Stock but greater than 5% of the BI's outstanding
Common Stock, such Holder or Holders may request that the Companies continue to
maintain the effectiveness of the Registration Statement, provided that such
Holder or Holders bear all of the Registration Expenses associated with such
maintenance of the effectiveness of the Registration Statement.
(c) For the purposes of Section 1(a) and this Section 3, Holders that
would constitute a group for the purposes of Section 13(d) of the Securities
Exchange Act of l934, as amended, shall be aggregated to determine whether the
5% or 10% ownership levels referred therein are met.
4. Indemnification by the Companies. Each of the Companies jointly and
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severally agrees to indemnify each of the Holders and their respective officers,
directors, employees, agents, representatives, partners and affiliates, and each
person or entity, if any, that controls a Holder within the meaning of the
Securities Act, and each other person or entity, if any, subject to liability
because of his, her or its connection with a Holder, and any underwriter and any
person who controls the underwriter within the meaning of the Securities Act (an
"Indemnitee") against any and all losses, claims, damages, actions, liabilities,
costs and expenses (including without limitation reasonable attorneys' fees,
expenses and disbursements documented in writing), joint or several, arising out
of or based upon any untrue or alleged untrue statement of material fact
contained in the Registration Statement or any prospectus contained therein, or
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except insofar as and
to the extent that such statement or omission arose out of or was based upon
information regarding the Indemnitee or its plan of distribution which was
furnished to the Companies in writing by the Indemnitee for use therein,
provided, further that the Companies shall not be liable to any person who
participates as an underwriter in the offering or sale of Registered Securities
or any other person, if any, who controls such underwriter within the meaning of
the Securities Act, in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon (i) an untrue statement or alleged untrue statement or
omission or alleged omission made in such Registration Statement, final
prospectus, amendment or supplement in reliance upon and in conformity with
information furnished to the Companies for use in connection with the
Registration Statement or the prospectus contained therein by such Indemnitee or
(ii) such Indemnitee's failure to send or give a copy of the prospectus,
amendment or supplement furnished to it by the Companies at or prior to the time
such action is required by the Securities Act to the person claiming an untrue
statement or alleged untrue statement or omission or alleged omission if such
statement or omission was corrected in such prospectus, amendment or supplement.
The obligations of the Companies under this Section 4 shall survive the
completion of any offering of Registered
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Securities pursuant to the Registration Statement and shall survive the
termination of this Agreement.
5. Covenants of Holders. Each of the Holders hereby severally and not
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jointly agrees (a) to cooperate with the Companies and to furnish to the
Companies all such information in connection with the preparation of the
Registration Statement as the Companies may reasonably request, (b) to the
extent required by the Securities Act, to deliver or cause delivery of the
prospectus contained in the Registration Statement to any purchaser of the
securities covered by the Registration Statement from the Holder, (c) to
promptly notify the Companies of any sale of Registered Securities by such
Holder that results in such Holder holding less than either 10% or 5% of BI's
outstanding Common Stock and upon any change in the information regarding such
Holder in the Registration Statement that would require amendment of the
Registration Statement and (d) to indemnify the Companies, their respective
officers, directors, employees, agents, representatives and affiliates, and each
person, if any, who controls either of the Companies within the meaning of the
Securities Act, and each other person, if any, subject to liability because of
his connection with the Companies, against any and all losses, claims, damages,
actions, liabilities, costs and expenses arising out of or based upon (i) any
untrue statement or alleged untrue statement of material fact contained in
either the Registration Statement or the prospectus contained therein, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, if and to the extent
that such statement or omission was based upon information regarding the Holder
or its plan of distribution which was furnished to the Companies in writing by
the Holder for use therein, or (ii) the failure by the Holder to deliver or
cause to be delivered the prospectus contained in the Registration Statement (as
amended or supplemented, if applicable) furnished by the Companies to the Holder
to any purchaser of the Securities covered by the Registration Statement from
the Holder. Notwithstanding the foregoing, the total amount for which a Holder
shall be liable under this Section 5 shall not in any event exceed the aggregate
proceeds received by him or it from the sale of the Holder's Registered
Securities in such registration. The obligations of the Holders under this
Section 5 shall survive the completion of any offering of Registered Securities
pursuant to the Registration Statement and shall survive the termination of this
Agreement.
6. Suspension of Registration Requirement.
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(a) The Companies shall promptly notify each Holder requesting
registration of, and confirm in writing, the issuance by the SEC of any stop
order suspending the effectiveness of the Registration Statement or the threat
of or initiation of any proceedings for that purpose. The Companies shall use
their reasonable efforts to prevent the issuance of or to obtain the withdrawal
of any SEC order suspending the effectiveness of the Registration Statement the
earliest possible time.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Companies' obligation under this Agreement to use reasonable
efforts to amend or supplement
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the Registration Statement shall be suspended in the event of the occurrence of
an event that would require additional disclosure of material information by the
Companies in the Registration Statement and the Board of Directors of the
Companies in good faith determine that the disclosure relating to such event or
pending transaction would have a material adverse effect upon the Companies
(such circumstances being hereinafter referred to as a "Suspension Event"), but
such suspension shall continue only for so long as such event or pending
transaction is continuing and the Companies shall use reasonable efforts to
cause any such suspension to terminate at the earliest possible date. In any
event, the Companies agree not to exercise the rights set forth in this Section
7(b) more than three times in any twelve month period, one period which shall
not exceed forty-five (45) days, one period which shall not exceed twenty-five
(25) days, and one period which shall not exceed fifteen (15) days.
(c) Each holder of Registered Securities agrees if requested by the
managing underwriter or underwriters in a fixed price, firm commitment
underwritten offering by either of the Companies of any of its securities (an
"Offering"), not to effect any public sale or distribution of any of the
Registered Securities, during the 5-day period prior to, and during the 10-day
period (or such longer period as may be required by the managing underwriter or
underwriters) beginning on, the date of pricing of each Offering, to the extent
timely notified in writing by the Companies or the managing underwriters.
Furthermore, notwithstanding anything to the contrary set forth in this
Agreement, the Companies' obligation under this Agreement to amend or supplement
the Registration Statement shall be suspended in the event and during such
period as BI or BSI are proceeding with an Offering if the Companies are advised
by the underwriters that the sale of Registered Securities under the
Registration Statement would have a material adverse effect on the Offering.
7. Black-Out Period. Following the effectiveness of the Registration
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Statement, the Holders agree that they will not effect any sales of the
Registered Securities pursuant to the Registration Statement at any time after
they have received notice from the Companies to suspend sales (i) as a result of
the occurrence or existence of any Suspension Event, (ii) pursuant to Section
6(c) hereof as a result of any Offering, or (iii) so that the Companies may
correct or update the Registration Statement or such filing pursuant to Section
2(c) or 2(d) of this Agreement. The Holder may recommence effecting sales of
the Registered Securities pursuant to the Registration Statement following
further notice to such effect from the Companies as soon as practicable after
the conclusion of any such Suspension Event or Offering.
8. Remedies.
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(a) In the event that the Registration Statement has not been
declared effective prior to the Effective Date, then the Company shall pay in
cash to each Holder, on the request of such Holder, a default payment equal to
one percent (1%) for the first 30-day period or portion thereof and two percent
(2%) for each subsequent 30-day period or portion thereof, beginning on the 1st
day after the Effective Date, of (a) the Outstanding Principal Amount of the
Notes held by such Holder (the "Note Amount"); and (b) the Fair Market Value
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of the shares of Common Stock held by such Holder. The "Fair Market Value" shall
be (i) the average of the closing or last sale price of the Common Stock on
NASDAQ reported for the five immediately prior business days, or (ii) if the
Common Stock is not then traded on NASDAQ but is traded on the over-the-counter
market or other similar market, then the average of the closing bid and asked
prices on such market reported for the five immediately prior business days, or
(iii) if the Common Stock is not traded on either the NASDAQ or an over-the-
counter market, the price determined in good faith by the Company's Board of
Directors.
(b) In the event that, as a result of the willful breach or gross
negligence of the Company, the Company fails or refuses to cause the Registered
Securities covered by the Registration Statement to be listed on NASDAQ at all
times during the period ("Listing Period") from the Effective Date until the
date the Registration Statement is no longer required to be effective with
respect to such Holder's Registered Securities pursuant to Section 1(a) or 1(b)
hereunder, then the Company shall pay in cash to each Holder, at the request of
such Holder, a default payment at a rate equal to 1% for the first 30-day period
(or portion thereof), and equal to 2% for each 30-day period (or portion
thereof) thereafter during the Listing Period from and after such failure or
refusal to so list the Registered Securities until the Registered Securities are
so listed, of (a) as to the Notes held by such Holder, the Note Amount and of
(b) as to the shares of Common Stock held by such Holder, the Fair Market Value
of such shares.
(c) In the event that, as a result of the willful breach or gross
negligence of the Company, any Holder's ability to sell Registered Securities
under the Registration Statement is suspended more than three times in any
twelve month period, one period which shall not exceed forty-five (45) days, one
period which shall not exceed twenty-five (25) days, and one period which shall
not exceed fifteen (15) days (any such period, a "Suspension Grace Period"),
including without limitation by reason of a suspension of trading of the Common
Stock on NASDAQ, any suspension or stop order with respect to the Registration
Statement or the fact that an event has occurred as a result of which the
prospectus (including any supplements thereto) included in such Registration
Statement then in effect includes an untrue statement of material fact or omits
to state a material fact required to be stated therein or necessary to make the
statements therein no misleading in light of the circumstances then existing, or
is undeliverable for any other reason, then, commencing with the expiration of
the Suspension Grace Period, the Company shall pay in cash to each Holder a
default payment at a rate equal to one percent (1%) for the first 30-day period
or portion thereof and two percent (2%) for each subsequent 30-day period or
portion thereof, of the Note Amount for the Notes held by such Holder and of the
Fair Market Value of the shares of Common Stock held by such Holder.
(d) In the event that, as a result of the willful breach or gross
negligence of the Company, the Company does not have a sufficient number of
shares of Common Stock available to satisfy the Company's obligations to any
Holder upon receipt of a [Conversion Notice] (as defined in the Note) or is
otherwise unable or unwilling to issue such shares of
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Common Stock (each, a "Conversion Deficiency") in accordance with the terms of
the Note for any reason after receipt of a [Conversion Notice], then the Company
shall pay in cash to each Holder a default payment at a rate equal to one
percent (1%) for the first 30-day period or portion thereof and two percent (2%)
for each subsequent 30-day period or portion thereof, of the Note Amount for the
Notes held by such Holder, commencing on the date that the Company fails or
refuses to issue the shares of Common Stock in accordance with the Note.
(e) Notwithstanding the foregoing, in no event shall the Companies be
required to make any default payments under this Section 8 in excess of Two
Hundred Thousand Dollars ($200,000) in the aggregate.
(f) The Company acknowledges that any failure, refusal or inability by
the Company to perform the obligations described in the foregoing paragraphs (i)
through (iv) as a result of the willful breach or gross negligence of the
Company will cause the Holders to suffer damages in an amount that will be
difficult to ascertain, including without limitation damages resulting from the
loss of liquidity in the Registered Securities and the additional investment
risk in holding the Registered Securities. Accordingly, the parties agree,
after consulting with counsel, that it is appropriate to include in this
Agreement the foregoing provisions for default adjustments in order to
compensate the Holders for such damages. The parties acknowledge and agree that
the default adjustments set forth above represent the parties' good faith effort
to quantify such damages and, as such, agree that the form and amount of such
default adjustments are reasonable and will not constitute a penalty.
9. Contribution. If the indemnification provided for in Sections 4 and 5
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is unavailable to an indemnified party with respect to any losses, claims,
damages, actions, liabilities, costs or expenses referred to therein or is
insufficient to hold the indemnified party harmless as contemplated therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, actions, liabilities, costs or expenses
in such proportion as is appropriate to reflect the relative fault of the
Companies, on the one hand, and the Holder, on the other hand, in connection
with the statements or omissions which resulted in such losses, claims, damages,
actions, liabilities, costs or expenses as well as any other relevant equitable
considerations. The relative fault of the Companies, on the one hand, and of
the Holder, on the other hand, shall be determined by reference to, among other
factors, whether the untrue or alleged untrue statement of a material fact or
omission to state a material fact relates to information supplied by the
Companies or by the Holder and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission;
provided, however, that in no event shall the obligation of any indemnifying
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party to contribute under this Section 9 exceed the amount that such
indemnifying party would have been obligated to pay by way of indemnification if
the indemnification provided for under Sections 4 or 5 hereof had been available
under the circumstances.
The Companies and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 9 were determined by pro rata
allocation or by any other
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method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph.
No indemnified party guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any indemnifying party who was not guilty of such fraudulent
misrepresentation.
The obligation of the parties under this Section 9 shall survive the
completion of any offering of Registered Securities pursuant to the Registration
Statement and the termination of this Agreement.
10. Certificates. All certificates evidencing shares of Common Stock
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issued to the Holders shall be delivered free of any legends or stop transfer
restrictions unless required by Massachusetts law or the federal securities
laws.
11. Amendments and Waivers. The provisions of this Agreement may not be
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amended, modified or supplemented without the prior written consent of each of
the Companies and Holders holding in excess of 50% of the outstanding shares of
Common Stock and principal amount of the Notes, provided that each Holder shall
receive notice of such amendment or modification.
12. Notices. Except as set forth below, all notices and other
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communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by telex or
telecopier, registered or certified mail (return receipt requested), postage
prepaid or courier or overnight delivery service to the Companies at the
following addresses and to the Holder at the address set forth on his or her
signature page to this Agreement (or at such other address for any party as
shall be specified by like notice, provided that notices of a change of address
shall be effective only upon receipt thereof), and further provided that in case
of notifications to amend the Registration Statement pursuant to Section 2(b) or
2(e) or notifications pursuant to Section 5, the sender must confirm such notice
in writing by overnight express delivery:
If to BI or BSI: Bradlees, Inc.
Bradlees Stores, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Executive Officer
▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President and
General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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With a copy to:
▇▇▇▇▇▇▇, Procter & ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.C.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
13. Successors and Assigns. This Agreement shall be binding upon and
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inure to the benefit of the successors and assigns of the Companies. This
Agreement may not be assigned by any Holder other than as permitted by Section
16 and any attempted assignment hereof by any Holder other than as permitted by
Section 16 will be void and of no effect and shall terminate all obligations of
the Companies hereunder with respect to such Holder.
14. Information by Holders. Each Holder shall furnish to the Companies
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such information regarding such Holder and the distribution and/or sale proposed
by such Holder as the Companies may reasonably request in writing and as shall
be reasonably required in connection with any registration, qualification or
compliance referred to in this Agreement. If necessary for the Holder to effect
such disposition and/or sale covering the Registered Securities, the intended
method or methods of disposition and/or sale of such securities as so provided
by such Holder shall be included without alteration in the Registration
Statement and shall not be changed without written consent of such Holder.
15. Replacement Certificates. The certificate(s) representing the shares
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of Common Stock held by any Holder may be exchanged by such Holder at any time
and from time to time for certificates with different denominations representing
an equal aggregate number of shares of Common Stock, as reasonably requested by
such Holder upon surrendering the same. No service charge will be made for such
registration or transfer or exchange.
16. Transfer or Assignment. Except as otherwise provided herein, this
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Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. The rights granted to the Holders by
the Companies under this Agreement may only be transferred or assigned (in whole
or in part) to a transferee or assignee of Registered Securities that receives
an amount of Registered Securities equal to at least [50,000 shares of] Common
Stock of BI (or, in the case of Notes, which are convertible into at least
[50,000 shares of] Common Stock of BI); provided that the Companies must be
given written notice by such Holder at the time of or within a reasonable time
after said transfer or assignment, stating the name and address of said
transferee or assignee and identifying the securities with respect to which such
registration rights are being transferred or assigned; and provided further that
the transferee or assignee of such rights agrees in writing to be bound by the
registration provisions of this Agreement.
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17. Miscellaneous.
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(a) Remedies. The Companies and the Holders acknowledge and agree
that irreparable damage would occur in the event that any of the provisions
of this Agreement were not performed in accordance with their specific
terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent or
cure breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions thereof, in addition to any other
remedy to which any of them may be entitled by law or equity.
(b) Jurisdiction. The Companies and each of the Holders (i) hereby
irrevocably submit to the exclusive jurisdiction of the United States
District Court, the Massachusetts State Courts and other courts of the
United States sitting in Boston, Massachusetts for the purposes of any
suit, action or proceeding arising out of or relating to this Agreement and
(ii) hereby waive, and agree not to assert in any such suit action or
proceeding, any claim that it is not personally subject to the jurisdiction
of such court, suit, action or proceeding is brought in an inconvenient
forum or that the venue of the suit, action or proceeding is improper. The
Companies and each of the Holders consent to process being served in any
such suit, action or proceeding by mailing a copy thereof to such party at
the address in effect for notices to it under this Agreement and agree that
such service shall constitute good and sufficient serve of process and
notice thereof. Nothing in this paragraph shall affect or limit any right
to serve process in any other manner permitted by law.
(c) Waivers. No waiver by any party of any default with respect to
any provision, condition or requirement of this Agreement shall be deemed
to be a continuing waiver in the future or a waiver of any other provision,
condition or requirement hereof, nor shall any delay or omission of any
party to exercise any right hereunder in any manner impair the exercise of
any such right accruing to it thereafter.
(d) Severability. The parties acknowledge and agree that the Holders
are not agents, affiliates or partners of each other, that all
representations, warranties, covenants and agreements of the Holders
hereunder are several and not joint, that no Holder shall have any
responsibility or liability for the representations, warrants, agreements,
acts or omissions of any other Holder, and that any rights granted to
"Holders" hereunder shall be enforceable by each Holder hereunder.
(e) Titles. The titles used in this Agreement are for convenience
only and are not to be considered in construing or interpreting this
Agreement.
(f) No Strict Construction. The language used in this Agreement will
be deemed to be the language chose by the parties to express their mutual
intent, and no rule of strict consideration will be applied against any
party.
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(g) Jury Trial. Each party hereto waives the right to a trial by
jury.
18. Counterparts. This Agreement may be executed in any number of
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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.
19. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of The Commonwealth of Massachusetts applicable to
contracts made and to be performed wholly within said Commonwealth.
20. Severability. In the event that any one or more of the provisions
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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 contained herein shall not be in any way impaired
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.
21. Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to such subject matter. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
BRADLEES, INC.
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Name:
Title:
BRADLEES STORES, INC.
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Name:
Title:
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Registration Rights Agreement
Holder Signature Page
HOLDER
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Name:
Address for Notice:
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