Exhibit 4.2
EXECUTION VERSION
LIMITED BRANDS,
INC.
$500,000,000
8.50% Senior Notes due
2019
EXCHANGE AND REGISTRATION RIGHTS
AGREEMENT
New York, New York
June 19, 2009
J.P. Morgan Securities
Inc.
As Representative of the Initial
Purchasers
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Limited Brands, Inc., a corporation
organized under the laws of Delaware (the “Company”),
proposes to issue and sell to certain purchasers (the
“Initial Purchasers”), upon the terms set forth in a
terms agreement dated as of June 16, 2009 (including the
provisions in Annex A attached thereto, the “Terms
Agreement”), $500,000,000 aggregate principal amount of its
8.50% Senior Notes due 2019 (the “Notes”) relating to
the initial placement of the of the Notes (the “Initial
Placement”). As of the date hereof, the Company’s
obligations under the Notes will be guaranteed (the
“Guarantees”) by each of the guarantors listed on the
signature page to the Terms Agreement (collectively, the
“Guarantors”). References herein to the
“Securities” refer to the Notes and the Guarantees,
collectively. To induce the Initial Purchasers to enter into the
Terms Agreement and to satisfy a condition of your obligations
thereunder, the Company and the Guarantors jointly and severally
agree with you for your benefit and the benefit of the holders from
time to time of the Securities (including the Initial Purchasers)
(each a “Holder” and, collectively, the
“Holders”), as follows:
1. Definitions . Capitalized
terms used herein without definition shall have their respective
meanings set forth in the Terms Agreement. As used in this
Agreement, the following capitalized defined terms shall have the
following meanings:
“Act” shall mean the
Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Affiliate” of any
specified Person shall mean any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common
control with, such specified Person. For purposes of this
definition, control of a Person shall mean the power, direct or
indirect, to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise; and the
terms “controlling” and “controlled” shall
have meanings correlative to the foregoing.
“Broker-Dealer” shall
mean any broker or dealer registered as such under the Exchange
Act.
“Business Day” shall
mean any day other than a Saturday, a Sunday or a legal holiday or
a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York
City.
“Commission” shall mean
the Securities and Exchange Commission.
“Company” shall have the
meaning set forth in the preamble hereto.
“Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated
thereunder.
“Exchange Offer Registration
Period” shall mean the six-month period following the
consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending
the effectiveness of the Exchange Offer Registration
Statement.
“Exchange Offer Registration
Statement” shall mean a registration statement of the Company
and the Guarantors on an appropriate form under the Act with
respect to the Registered Exchange Offer, all amendments and
supplements to such registration statement, including
post-effective amendments thereto, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
“Exchanging Dealer”
shall mean any Holder (which may include any Initial Purchaser)
that is a Broker-Dealer and elects to exchange for New Securities
any Securities that it acquired for its own account as a result of
market-making activities or other trading activities (but not
directly from the Company or any Affiliate of the Company) for New
Securities.
“Final Memorandum” shall
mean the Offering Memorandum, dated as of June 16, 2009,
relating to the Securities.
“Guarantee” shall have
the meaning set forth in the preamble hereto.
“Guarantors” shall have
the meaning set forth in the preamble hereto and shall include any
additional Subsidiaries of the Company that become
“Guarantors” under the Indenture prior to the date that
all Securities have either been exchanged for New Securities
pursuant to a Registered Exchange Offer or sold pursuant to a Shelf
Registration Statement.
“Holder” shall have the
meaning set forth in the preamble hereto.
“Indenture” shall mean
the Indenture relating to the Securities to be dated as of June
, 2009, among the Company, the Guarantors
and The Bank of New York Mellon Trust Company, N.A., as trustee, as
the same may be amended from time to time in accordance with the
terms thereof.
“Initial Placement”
shall have the meaning set forth in the preamble hereto.
“Initial Purchaser”
shall have the meaning set forth in the preamble hereto.
“Losses” shall have the
meaning set forth in Section 6(d) hereof.
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“Majority Holders” shall
mean the Holders of a majority of the aggregate principal amount of
Securities registered under a Registration Statement.
“Managing Underwriters”
shall mean the investment banker or investment bankers and manager
or managers who shall administer an underwritten
offering.
“New Securities” shall
mean debt securities of the Company and Guarantees by the
Guarantors, in each case identical in all material respects to the
Securities (except that the cash interest and interest rate step-up
provisions and the transfer restrictions shall be modified or
eliminated, as appropriate) and to be issued under the Indenture or
the New Securities Indenture.
“New Securities
Indenture” shall mean an indenture between the Company, the
Guarantors and the New Securities Trustee, identical in all
material respects to the Indenture (except that the cash interest
and interest rate step-up provisions and transfer restrictions will
be modified or eliminated, as appropriate).
“New Securities Trustee”
shall mean a bank or trust company reasonably satisfactory to the
Initial Purchasers, as trustee with respect to the New Securities
under the New Securities Indenture.
“Notes” shall have the
meaning set forth in the preamble hereto.
“Prospectus” shall mean
the prospectus included in any Registration Statement (including,
without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act),
as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the
Securities or the New Securities covered by such Registration
Statement, and all amendments and supplements thereto and all
material incorporated by reference therein.
“Registered Exchange
Offer” shall mean the proposed offer of the Company and the
Guarantors to issue and deliver to the Holders of the Securities
that are not prohibited by any law or policy of the Commission from
participating in such offer, in exchange for the Securities, a like
aggregate principal amount of the New Securities.
“Registration Statement”
shall mean any Exchange Offer Registration Statement or Shelf
Registration Statement that covers any of the Securities or the New
Securities pursuant to the provisions of this Agreement, any
amendments and supplements to such registration statement,
including post-effective amendments (in each case including the
Prospectus contained therein), all exhibits thereto and all
material incorporated by reference therein.
“Securities” shall have
the meaning set forth in the preamble hereto.
“Shelf Registration”
shall mean a registration effected pursuant to Section 3
hereof.
“Shelf Registration
Period” shall have the meaning set forth in Section 3(b)
hereof.
“Shelf Registration
Statement” shall mean a “shelf” registration
statement of the Company and the Guarantors pursuant to the
provisions of Section 3 hereof which covers some or all of the
Securities or New Securities, as applicable, on an appropriate form
under Rule 415 under the Act, or any similar rule that may be
adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in
each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference
therein.
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“Terms Agreement” shall
have the meaning set forth in the preamble hereto.
“Trustee” shall mean the
trustee with respect to the Securities under the
Indenture.
“underwriter” shall mean
any underwriter of Securities in connection with an offering
thereof under a Shelf Registration Statement.
2. Registered Exchange Offer
.
(a) The Company and the Guarantors
shall use their reasonable best efforts to cause the Registered
Exchange Offer to be completed under the Act within 270 days of the
Closing Date.
(b) Upon the effectiveness of the
Exchange Offer Registration Statement, the Company and the
Guarantors shall promptly commence the Registered Exchange Offer,
it being the objective of such Registered Exchange Offer to enable
each Holder electing to exchange Securities for New Securities
(assuming that such Holder is not an Affiliate of the Company,
acquires the New Securities in the ordinary course of such
Holder’s business, has no arrangements with any Person to
participate in the distribution of the New Securities and is not
prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer) to trade such New
Securities from and after their receipt without any limitations or
restrictions under the Act and without material restrictions under
the securities laws of a substantial proportion of the several
states of the United States.
(c) In connection with the
Registered Exchange Offer, the Company and the Guarantors
shall:
(i) mail to each Holder a copy of
the Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal and
related documents;
(ii) keep the Registered Exchange
Offer open for not less than 20 Business Days after the date notice
thereof is mailed to the Holders (or longer if required by
applicable law);
(iii) use their reasonable best
efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented and amended as required under
the Act to ensure that it is available for sales of New Securities
by Exchanging Dealers during the Exchange Offer Registration
Period;
(iv) utilize the services of a
depositary for the Registered Exchange Offer with an address in the
Borough of Manhattan in New York City, which may be the Trustee,
the New Securities Trustee or an Affiliate of either of
them;
(v) permit Holders to withdraw
tendered Securities at any time prior to the close of business, New
York time, on the last Business Day on which the Registered
Exchange Offer is open; and
(vi) comply in all respects with all
applicable laws.
(d) As soon as practicable after the
close of the Registered Exchange Offer, the Company and the
Guarantors shall:
(i) accept for exchange all
Securities tendered and not validly withdrawn pursuant to the
Registered Exchange Offer;
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(ii) deliver to the Trustee for
cancellation all Securities so accepted for exchange;
and
(iii) cause the New Securities
Trustee promptly to authenticate and deliver to each Holder of
Securities a principal amount of New Securities equal to the
principal amount of the Securities of such Holder so accepted for
exchange.
(e) Each Holder hereby acknowledges
and agrees that any Broker-Dealer and any such Holder using the
Registered Exchange Offer to participate in a distribution of the
New Securities (x) could not under Commission policy as in
effect on the date of this Agreement rely on the position of the
Commission in Morgan Stanley and Co., Inc. (pub. avail.
June 5, 1991) and Exxon Capital Holdings Corporation
(pub. avail. May 13, 1988), as interpreted in the
Commission’s letter to Shearman & Sterling dated
July 2, 1993 and similar no-action letters; and (y) must
comply with the registration and prospectus delivery requirements
of the Act in connection with any secondary resale transaction and
must be covered by an effective registration statement containing
the selling security holder information required by Item 507
or 508, as applicable, of Regulation S-K under the Act if the
resales are of New Securities obtained by such Holder in exchange
for Securities acquired by such Holder directly from the Company or
one of its Affiliates. Accordingly, each Holder participating in
the Registered Exchange Offer shall be required to represent to the
Company that, at the time of the consummation of the Registered
Exchange Offer:
(i) any New Securities received by
such Holder will be acquired in the ordinary course of
business;
(ii) such Holder will have no
arrangement or understanding with any Person to participate in the
distribution of the Securities or the New Securities within the
meaning of the Act; and
(iii) such Holder is not an
Affiliate of the Company or any Guarantor.
(f) If any Initial Purchaser
determines that it is not eligible to participate in the Registered
Exchange Offer with respect to the exchange of Securities
constituting any portion of an unsold allotment, at the request of
such Initial Purchaser, the Company and the Guarantors shall issue
and deliver to such Initial Purchaser or the Person purchasing New
Securities registered under a Shelf Registration Statement as
contemplated by Section 3 hereof from such Initial Purchaser,
in exchange for such Securities, a like principal amount of New
Securities. The Company and the Guarantors shall use their
reasonable best efforts to cause the CUSIP Service Bureau to issue
the same CUSIP number and International Securities Identification
Number (“ISIN”) for such New Securities as for New
Securities issued pursuant to the Registered Exchange
Offer.
3. Shelf
Registration.
(a) If (i) due to any change in
law or applicable interpretations thereof by the Commission’s
staff, the Company and the Guarantors determine upon advice of
their outside counsel that they are not permitted to effect the
Registered Exchange Offer as contemplated by Section 2 hereof;
(ii) for any other reason the Registered Exchange Offer is not
consummated within 270 days of the date hereof; (iii) any
Initial Purchaser so requests with respect to Securities that are
not eligible to be exchanged for New Securities in the Registered
Exchange Offer and that are held by it following consummation of
the Registered Exchange Offer; (iv) any Holder (other than an
Initial Purchaser) is not eligible to participate in the Registered
Exchange Offer; or (v) in the case of any Initial Purchaser
that participates in the Registered Exchange Offer or acquires New
Securities pursuant to Section 2(f) hereof, such Initial
Purchaser does not receive freely tradeable New Securities in
exchange for Securities constituting any
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portion of an unsold allotment (it being
understood that (x) the requirement that an Initial Purchaser
deliver a Prospectus containing the information required by
Item 507 or 508 of Regulation S-K under the Act in connection
with sales of New Securities acquired in exchange for such
Securities shall not result in such New Securities being not
“freely tradeable”; and (y) the requirement that
an Exchanging Dealer deliver a Prospectus in connection with sales
of New Securities acquired in the Registered Exchange Offer in
exchange for Securities acquired as a result of market-making
activities or other trading activities shall not result in such New
Securities being not “freely tradeable”), the Company
and the Guarantors shall effect a Shelf Registration Statement in
accordance with subsection (b) below.
(b) (i) The Company and the
Guarantors shall as promptly as practicable, file with the
Commission and thereafter shall use its reasonable best efforts to
cause to be declared effective under the Act, within 180 days of
the date the Company is required to make such filing in accordance
with subsection (a) above, a Shelf Registration Statement
relating to the offer and sale of the Securities or the New
Securities, as applicable, by the Holders thereof from time to time
in accordance with the methods of distribution elected by such
Holders and set forth in such Shelf Registration Statement;
provided , however , that no Holder (other than an
Initial Purchaser) shall be entitled to have the Securities held by
it covered by such Shelf Registration Statement unless such Holder
agrees in writing to be bound by all of the provisions of this
Agreement applicable to such Holder; and provided
further , that with respect to New Securities received by an
Initial Purchaser in exchange for Securities constituting any
portion of an unsold allotment, the Company and the Guarantors may,
if permitted by current interpretations by the Commission’s
staff, file a post-effective amendment to the Exchange Offer
Registration Statement containing the information required by
Item 507 or 508 of Regulation S-K, as applicable, in
satisfaction of their obligations under this subsection with
respect thereto, and any such Exchange Offer Registration
Statement, as so amended, shall be referred to herein as, and
governed by the provisions herein applicable to, a Shelf
Registration Statement.
(ii) The Company and the Guarantors
shall use their reasonable best efforts to keep the Shelf
Registration Statement continuously effective, supplemented and
amended as required by the Act, in order to permit the Prospectus
forming part thereof to be usable by Holders for a period from the
date the Shelf Registration Statement is declared effective by the
Commission until the earliest of (A) the second anniversary of
the Closing Date and (B) the date upon which all the
Securities or New Securities, as applicable, covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement (in any such case, such period being called
the “Shelf Registration Period”). The Company and the
Guarantors shall be deemed not to have used their reasonable best
efforts to keep the Shelf Registration Statement effective during
the requisite period if they voluntarily take any action that would
result in Holders of Securities covered thereby not being able to
offer and sell such Securities during that period, unless
(A) such action is required by applicable law; or
(B) such action is taken by the Company or the Guarantors in
good faith and for valid business reasons (not including avoidance
of the their obligations hereunder), including the acquisition or
divestiture of assets, so long as the Company and the Guarantors
promptly thereafter comply with the requirements of
Section 4(k) hereof, if applicable.
(iii) The Company and the Guarantors
shall cause the Shelf Registration Statement and the related
Prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement or such
amendment or supplement, (A) to comply in all material
respects with the applicable requirements of the Act and the rules
and regulations of the Commission; and (B) not to contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
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4. Additional Registration
Procedures . In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall
apply:
(a) The Company and the Guarantors
shall:
(i) furnish to you, not less than
five Business Days prior to the filing thereof with the Commission,
a copy of any Exchange Offer Registration Statement and any Shelf
Registration Statement, and each amendment thereof and each
amendment or supplement, if any, to the Prospectus included therein
(including all documents incorporated by reference therein after
the initial filing) and shall use its reasonable best efforts to
reflect in each such document, when so filed with the Commission,
such comments as you reasonably propose;
(ii) include the information set
forth in Annex A hereto on the facing page of the Prospectus
contained in the Exchange Offer Registration Statement, in Annex B
hereto in the forepart of the Prospectus contained in the Exchange
Offer Registration Statement in a section setting forth details of
the Exchange Offer, in Annex C hereto in the underwriting or plan
of distribution section of the Prospectus contained in the Exchange
Offer Registration Statement, and in Annex D hereto in the letter
of transmittal delivered pursuant to the Registered Exchange
Offer;
(iii) if requested by an Initial
Purchaser, include the information required by Item 507 or 508
of Regulation S-K, as applicable, in the Prospectus contained in
the Exchange Offer Registration Statement; and
(iv) in the case of a Shelf
Registration Statement, include the names of the Holders that
propose to sell Securities pursuant to the Shelf Registration
Statement as selling security holders.
(b) The Company and the Guarantors
shall ensure that:
(i) any Registration Statement and
any amendment thereto and any Prospectus forming part thereof and
any amendment or supplement thereto complies in all material
respects with the Act and the rules and regulations thereunder;
and
(ii) any Registration Statement and
any amendment thereto does not, when it becomes effective, contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading.
(c) The Company and the Guarantors
shall advise you, the Holders of Securities covered by any Shelf
Registration Statement and any Exchanging Dealer under any Exchange
Offer Registration Statement that has provided in writing to the
Company a telephone or facsimile number and address for notices,
and, if requested by you or any such Holder or Exchanging Dealer,
shall confirm such advice in writing (which notice pursuant to
clauses (ii)-(v) hereof shall be accompanied by an instruction
to suspend the use of the Prospectus until the Company shall have
remedied the basis for such suspension):
(i) when a Registration Statement
and any amendment thereto has been filed with the Commission and
when the Registration Statement or any post-effective amendment
thereto has become effective;
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(ii) of any request by the
Commission for any amendment or supplement to the Registration
Statement or the Prospectus or for additional
information;
(iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for
that purpose;
(iv) of the receipt by the Company
of any notification with respect to the suspension of the
qualification of the securities included therein for sale in any
jurisdiction or the initiation of any proceeding for such purpose;
and
(v) of the happening of any event
that requires any change in the Registration Statement or the
Prospectus so that, as of such date, the statements therein are not
misleading 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 the light of the circumstances under
which they were made) not misleading.
(d) The Company and the Guarantors
shall use their reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of any Registration
Statement or the qualification of the securities therein for sale
in any jurisdiction at the earliest possible time.
(e) The Company and the Guarantors
shall furnish to each Holder of Securities covered by any Shelf
Registration Statement, without charge, at least one copy of such
Shelf Registration Statement and any post-effective amendment
thereto, including all material incorporated therein by reference,
and, if the Holder so requests in writing, all exhibits thereto
(including exhibits incorporated by reference therein).
(f) The Company and the Guarantors
shall, during the Shelf Registration Period, deliver to each Holder
of Securities covered by any Shelf Registration Statement, without
charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder
may reasonably request. The Company and the Guarantors consent to
the use of the Prospectus or any amendment or supplement thereto by
each of the selling Holders of securities in connection with the
offering and sale of the securities covered by the Prospectus, or
any amendment or supplement thereto, included in the Shelf
Registration Statement.
(g) The Company and the Guarantors
shall furnish to each Exchanging Dealer which so requests, without
charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including all
material incorporated by reference therein, and, if the Exchanging
Dealer so requests in writing, all exhibits thereto (including
exhibits incorporated by reference therein).
(h) The Company and the Guarantors
shall promptly deliver to each Initial Purchaser, each Exchanging
Dealer and each other Person required to deliver a Prospectus
during the Exchange Offer Registration Period, without charge, as
many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement
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thereto as any such Person may
reasonably request. The Company and the Guarantors consent to the
use of the Prospectus or any amendment or supplement thereto by any
Initial Purchaser, any Exchanging Dealer and any such other Person
that may be required to deliver a Prospectus following the
Registered Exchange Offer in connection with the offering and sale
of the New Securities
