**Exhibit 10.2**

 

REGISTRATION RIGHTSAGREEMENT

 

This Registration Rights Agreement (this “Agreement”)is made and entered into as of this 19th day of July, 2005, by andbetween New York & Company, Inc., a Delaware corporation (the “Company”)and Luciano Manganella (“Manganella”).

 

RECITALS

 

A.            WHEREAS,Manganella and Lerner New York, Inc., a subsidiary of the Company, areparties to that certain Stock Purchase Agreement, dated the date hereof (the “PurchaseAgreement”);

 

B.            WHEREAS,pursuant to the terms of the Purchase Agreement, the Company has issued toManganella, and has agreed, subject to certain conditions, to issue toManganella in the future, shares of common stock, par value $0.01 per share, ofthe Company (“Common Stock”); and

 

C.            WHEREAS,pursuant to the Purchase Agreement, the Company hereby grants Manganellacertain registration rights with respect to the Registrable Securities.

 

NOW, THEREFORE, in consideration of the mutualrepresentations, covenants and agreements contained herein, the parties heretoagree as follows:

 

# SECTION 1.                                                        DEFINITIONS.

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For purposes of this Agreement, the followingdefinitions shall apply:

 

## (a)           “BusinessDay” shall mean any day on which commercial banks are not authorized orrequired to close in the United States.

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## (b)           “Holder”means Manganella.

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## (c)           The terms “Register,”and “Registration” refer to registration under the Securities Act of1933, as amended (the “Act”), effected by preparing and filing aregistration statement in compliance with the Act, and the declaration orordering of effectiveness of such registration statement or amendment thereto.

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## (d)           “PermittedTransfer” means a transfer by Manganella to a member of Manganella’simmediate family and any transfer to a trust, family limited partnership orsimilar entity for estate planning purposes.

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## (e)           “RegistrableSecurities” means (i) the 350,000 shares of Common Stock issued toManganella pursuant to Section 1.2(A)(3) ofthe Purchase Agreement, (ii) shares of Common Stock issued to Manganellapursuant to Section 1.2(B) of the Purchase Agreement, and (iii) anyshares of Common Stock issued in respect of the Common Stock described inclause (i) or (ii) above by way of stock split, stock dividend orother similar transaction. As to any such shares of Common Stock, they shallcease to be Registrable Securities when (A) they have been acquired by theCompany or any of its subsidiaries, (B) they have been Transferred to anyPerson (other than in a Permitted Transfer), or (C) the occurrence of theRestriction Termination Date therefor.

 

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## (f)            “RestrictionTermination Date” means as to any Registrable Securities, the first dateafter such Registrable Securities are issued to a Holder when all of them maylawfully be sold in a Rule 144 Sale in a single transaction.

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## (g)           “Rule 144Sale” means a sale of Common Stock to the public through a broker, dealeror market-maker pursuant to Rule 144 under the Act (or any successor rule orregulation).

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## (h)           “Transfer”means any direct or indirect sale, transfer, assignment, pledge, encumbrance orother disposition (whether with or without consideration and whethervoluntarily or involuntarily or by operation of law) including any derivativetransaction that has the effect of changing materially the economic benefitsand risks of ownership.

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# SECTION 2.                                                        REGISTRATION RIGHTS.

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## (a)           At anytime and from time to time after the date hereof and, with respect to anyparticular Registrable Securities, prior to the related Restriction TerminationDate, so long as the Company then is eligible to register securities on Form S-3,or any successor form prescribed by the United States Securities and ExchangeCommission (the “SEC”), the Holder may request that the Company effect aregistration of all (but not less than all) of the Holder’s Registrable Securities.  Upon such request, the Company shall filewith the SEC a registration statement under the Act on Form S-3 pursuantto Rule 415 under the Act (a “Required Registration”)with respectto the resale by the Holder of such Registrable Securities and shall usecommercially reasonable efforts to cause such registration statement to becomeeffective under the Act as expeditiously as reasonably possible; *provided, however*, that the Holder maypermit the Company to withdraw any registration statement at any time prior tothe effective date of such registration statement.

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## (b)           Notwithstandinganything contained herein, (i) upon the occurrence or existence of anypending corporate development or the occurrence of any event or the existenceof any fact that would cause the registration statement (the “RegistrationStatement”) to contain any untrue statement of a material fact or omit tostate any material fact required to be stated therein or necessary to make thestatements therein not misleading, or cause the prospectus to contain anyuntrue statement of a material fact or omit to state any material fact requiredto be stated therein or necessary to make the statements therein, in the lightof the circumstances under which they were made, not misleading, or (ii) ifthe sale of Registrable Securities would cause a violation of applicable law,that, in each case, in the sole judgment of the Company, makes it appropriateto suspend the availability of the Registration Statement and the prospectus,the Company shall give notice (without notice of the nature or details of suchevents) to the Holder that the availability of the Registration Statement andthe prospectus is suspended (a “Deferral Notice”) and, upon receipt ofany Deferral Notice, the Holder agrees not to offer or sell any RegistrableSecurities pursuant to the Registration Statement until the Holder is advisedin writing by the Company that the prospectus may be used.  The period(s) during which the availabilityof the Registration Statement and any prospectus is suspended (each, a “No-SalePeriod”) shall not exceed ninety (90) days in the aggregate in any twelve(12) consecutive month period.

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## (c)           Wheneverrequired under this Section 2 to effect theregistration of any Registrable Securities, the Company shall, as expeditiouslyas reasonably possible:

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### (i)            Prepareand file with the SEC a Registration Statement with respect to such RegistrableSecurities and use its commercially reasonable efforts to cause suchregistration to become effective as provided in Section 2(a) above,and keep such Registration Statement effective until the earliest of (A) allsuch Registrable Securities have been disposed of pursuant to an effectiveregistration statement, (B) all such Registrable Securities have been soldin a transaction exempt from the registration

 

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### and prospectus delivery requirements of the Act so that all transferrestriction and restrictive legends with respect thereto are removed upon theconsummation of such sale, or (C) the Registrable Securities have beendistributed to the public pursuant to a Rule 144 Sale or (D) theoccurrence of the Restriction Termination Date with respect to the RegistrableSecurities covered thereby.

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### (ii)           Subject toSection 2(b) hereof, prepare and file with the SEC such amendmentsand supplements to such Registration Statement and the prospectus used inconnection with such Registration Statement as may be necessary to comply withthe provisions of the Act with respect to the disposition of all securitiescovered by such Registration Statement and notify the Holder of the filing andeffectiveness of such Registration Statement and any amendments or supplements.

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### (iii)          Furnishto the Holder such number of copies of a current prospectus conforming with therequirements of the Act, copies of the Registration Statement, any amendment orsupplement thereto and any documents incorporated by reference therein and suchother documents as the Holder may reasonably require in order to facilitate thedisposition of Registrable Securities owned by the Holder.

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### (iv)          Usecommercially reasonable efforts to register and qualify the securities coveredby such Registration Statement under such securities or “Blue Sky” laws of suchjurisdictions in the United States as shall be reasonably requested by theHolder and keep such registration or qualification effective as long asrequired to permit sale of Registrable Securities thereunder; *provided* that the Company shall not berequired in connection therewith or as a condition thereto to qualify to dobusiness or to file a general consent to service of process in any such statesor jurisdictions.

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### (v)           Notify theHolder immediately of the happening of any event as a result of which theprospectus included in such Registration Statement, as then in effect, includesan untrue statement of material fact or omits to state a material fact requiredto be stated therein or necessary to make the statements therein not misleadingin light of the circumstances then existing, and, subject to Section 2(b),use commercially reasonable efforts to promptly update or correct suchprospectus.

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### (vi)          Listthe Registrable Securities covered by such Registration Statement on anysecurities exchange or national market in the United States on which theRegistrable Securities are then listed.

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# SECTION 3.                                                        SALE OR DISTRIBUTION OF SECURITIES.

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The sale of the Registrable Securities must beconducted by the Holder through a securities broker (the “Broker”) and effected over The New York Stock Exchange, if the CommonStock is then listed on The New York Stock Exchange.  Notwithstanding anything contained herein,the aggregate number of shares of Company Stock that may be sold by the Holdershall not exceed an aggregate of 1% of the then issued and outstanding sharesof Common Stock during any ninety (90) day period.

 

# SECTION 4.                                                        INFORMATION.

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The Holder will furnish to the Company in connectionwith any registration under this Agreement such information regarding theHolder, the number of shares of Registrable Securities owned by the Holder andthe number of shares to be registered, the number of shares or amount of othersecurities of the Company held by the Holder, and the intended method ofdisposition of such Registrable Securities as shall be reasonably required toeffect the registration of the Registrable Securities held by such holder ofRegistrable Securities.

 

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# SECTION 5.                                                        INDEMNIFICATION

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## (a)           TheCompany shall indemnify, defend and hold harmless the Holder (for the purposesof this Section 5(a), the “indemnified party”) from and against,and shall reimburse such indemnified party with respect to, any and all claims,suits, demands, causes of action, losses, damages, liabilities, costs orexpenses (“Liabilities”) to which such indemnified party may becomesubject under the Act or otherwise, arising from or relating to (i) anyuntrue statement or alleged untrue statement of any material fact contained insuch Registration Statement, any prospectus contained therein or any amendmentor supplement thereto, or (ii) the omission or alleged omission to statetherein a material fact required to be stated therein or necessary to make thestatements therein, in light of the circumstances in which they were made, notmisleading; *provided*, *first*, that the Company shall not beliable in any such case to the extent that any such Liability arises out of oris based upon an untrue statement or omission so made in conformity withinformation furnished by such indemnified party in writing specifically for usein the Registration Statement; *provided,second,*that the Company shall not be liable in any such case to theextent that any Liability arises out of or results from any offer or sale ofRegistrable Securities during the No-Sale Period if the Holder has received aDeferral Notice from the Company as to such No-Sale Period; and *provided, third*, that the Company shallnot be liable in any such case to the extent that any Liability arises out ofor is based upon an untrue statement or alleged untrue statement or omission oralleged omission in the prospectus, if such untrue statement or alleged untruestatement, omission or alleged omission is corrected in an amendment orsupplement to the prospectus and such amendment or supplement is filed with theSEC pursuant to Rule 424(b) of the Act prior to or concurrently withthe sale of Registrable Securities to the person asserting such Liability whopurchased such Registrable Securities which are the subject thereof from theHolder.

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## (b)           The Holdershall indemnify, defend and hold harmless the Company, and its officers,directors, employees, agents, partners, or controlling persons (within themeaning of the Act) (for purposes of this Section 5(b), each, an “indemnifiedparty”) from and against, and shall reimburse such indemnified party withrespect to, any and all Liabilities to which such indemnified party may becomesubject under the Act or otherwise, arising from or relating to (i) anyuntrue statement or alleged untrue statement of any material fact contained insuch Registration Statement, any prospectus contained therein or any amendmentor supplement thereto, or (ii) the omission or alleged omission to statetherein a material fact required to be stated therein or necessary to make thestatements therein, in light of the circumstances in which they were made, notmisleading; *provided*, that theHolder will be liable in any such case to the extent, and only to the extent,that any such Liability arises out of or is based upon an untrue statement oralleged untrue statement or omission or alleged omission made in suchRegistration Statement, prospectus or amendment or supplement thereto (A) forany offer or sale made during the No-Sale Period as to which the Holder hasreceived a Deferral Notice from the Company, or (B) in reliance uponinformation furnished by the Holder to the Company in writing specifically foruse in the Registration Statement.

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## (c)           Promptlyafter receipt by any indemnified party of notice of the commencement of anyaction, such indemnified party shall, if a claim in respect thereof is to bemade against another party (for purposes of this Section 5(c) the “IndemnifyingParty”) hereunder, notify such party in writing thereof, but the omission soto notify shall not relieve the indemnifying party from any Liability which itmay have to the indemnified party other than under this section and shallonly relieve it from any Liability which it may have to the indemnified partyunder this section if and to the extent it is actually prejudiced by suchomission. In case any such action shall be brought against any indemnifiedparty and such indemnified party shall notify the indemnifying party of thecommencement thereof, the indemnifying party shall be entitled to participatein and, to the extent it shall wish, to assume and undertake the defensethereof with counsel reasonably satisfactory to such indemnified party, and,after notice from the indemnifying party to the indemnified party of itselection so to assume and undertake the defense

 

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## thereof, the indemnifying party shall not be liable to the indemnifiedparty under this section for any legal expenses subsequently incurred bythe indemnified party in connection with the defense thereof other thanreasonable costs of investigation and of liaison with counsel so selected; *provided*, that if the defendants in anysuch action include both the indemnifying party and such indemnified party andthe indemnified party shall have reasonably concluded based upon a writtenopinion of counsel that there may be reasonable defenses available to it whichare different from those available to the indemnifying party or if theinterests of the indemnified party reasonably may be deemed to conflict withthe interests of the indemnifying party, the indemnified party shall have theright to select a separate counsel and to assume such legal defenses andotherwise to participate in the defense of such action, with (subject to thefollowing sentence) the reasonable expenses and fees of such separate counseland other reasonable expenses related to such participation to be reimbursed bythe indemnifying party as incurred. If the Company is the indemnifying party itshall pay the reasonable expenses and fees of only one separate counsel whoseselection is approved by the largest group of similarly situated indemnifiedparties as measured by the aggregate value of securities registered by suchgroup. Any indemnified party who chooses not to be represented by the foregoingseparate counsel shall be entitled, at its own expense, to be represented bycounsel of its own selection.

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# SECTION 6.                                                        REGISTRATION EXPENSES.

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All fees and expenses incident to the performance ofor compliance with this Agreement by the Company shall be borne by the Company,whether or not any Registration Statement is filed or becomes effective,including all registration and filing fees, and fees and expenses of compliancewith state securities or “blue sky” laws, printing expenses, messenger,telephone and delivery expenses, fees and disbursements of custodians, fees andexpenses of counsel and accountants for the Company, Securities Act liabilityinsurance, if the Company so desires such insurance, internal expenses of theCompany, the expense of any annual audit or interim review, the fees andexpenses incurred in connection with the listing of the securities to beregistered on any securities exchange, and the fees and expenses of any Person,including special experts, retained by the Company.  The Holder of the Registrable Securitiesbeing registered in such registration shall be responsible for its own expensesin connection with such Required Registration, including for the reasonablefees and expenses of any counsel retained by Holder in connection with suchregistration, and all discounts, commissions and fees of the Broker.

 

# SECTION 7.                                                        MISCELLANEOUS.

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## (a)           Notices.

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### (i)            Allnotices, requests, demands, or other communications required or permittedhereunder shall be in writing and shall be deemed to have been duly given uponactual receipt, or upon the expiration of four days after the date of mailing,fully pre-paid, certified, return receipt requested, to the parties at thefollowing addresses:

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| If to the Company:                                   |
|------------------------------------------------------|
|                                                 |
| NY &  Co. Group, Inc.                  |
| 450 West 33rd  Street                                |
| New York, New  York 10001                            |
| Attention: Chief  Executive Officer                  |
| Tel.:                                                |   | (212) 884-2010 |
| Fax:                                                 |   | (212) 884-2399 |
|                                                 |   |   |
| With copies,  which shall not constitute notice, to: |

 

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| Kirkland &  Ellis LLP |
|--------------------------------|
| 153 East 53rd  Street          |
| Citigroup Center               |
| New York, NY  10022            |
| Attention:                     | Michael T.  Edsall |
|                           | Christian O.  Nagler |
| Tel.:                          |   | (212) 446-4800 |
| Fax:                           |   | (212) 446-4900 |
|                                |  |  |  |

 

If toManganella:

 

 

With a copy, which shall not constitute notice, to:

 

 

### (ii)           Any partymay change the address to which notices, requests, demands or othercommunications to such party shall be delivered or mailed by giving noticethereof to the other parties hereto in the manner provided herein.

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## (b)           Counterparts.This Agreement may be executed in any number of counterparts, each of whichshall be deemed an original, and all of which shall constitute one and the sameinstrument.

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## (c)           EntireAgreement. This Agreement supersedes all prior discussions and agreements betweenthe parties with respect to the subject matter hereof, and this Agreementcontains the sole and entire agreement among the parties with respect to thematters covered hereby.

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## (d)           Amendment.  This Agreement shall not be altered oramended except by an instrument in writing signed by or on behalf of theCompany and the Holder.

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## (e)           Interpretation.  No ambiguity in any provision hereof shall beconstrued against a party by reason of the fact it was drafted by such party orits counsel. For purposes of this Agreement: “herein”, “hereby”, “hereunder”, “herewith”and “hereinafter” refer to this Agreement in its entirety, and not to anyparticular subsection or paragraph. References to “including” meansincluding without limiting the generality of any description precedingsuch term. Nothing expressed or implied in this Agreement is intended, or shallbe construed, to confer upon or give any person other than the parties heretoany rights or remedies under or by reason of this Agreement.

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## (f)            GoverningLaw; Jurisdiction. The corporate law of the State of Delaware shall governall issues and questions concerning the relative rights of the Company and itsstockholders.  All other issues andquestions concerning the construction, validity, interpretation and enforceabilityof this Agreement and the exhibits and schedules hereto shall be governed by,and construed in accordance with, the laws of the State of New York, withoutgiving effect to any choice of law or conflict of law rules or provisions(whether of the State of New York or any other jurisdiction) that would causethe application of the laws of any jurisdiction other than the State of NewYork.  The parties hereto herebyirrevocably and unconditionally submit to the exclusive jurisdiction of anyState or Federal court sitting in New York, New York over any suit, action orproceeding arising out of or relating to this Agreement.  The parties hereby agree that service of anyprocess, summons, notice or document by U.S. registered mail addressed to anysuch party shall be effective service of process for any action, suit orproceeding brought against a

 

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## party in any such court.  The parties hereto hereby irrevocably andunconditionally waive any objection to the laying of venue of any such suit,action or proceeding brought in any such court and any claim that any suchsuit, action or proceeding brought in any such court has been brought in aninconvenient forum.  The parties heretoagree that a final judgment in any such suit, action or proceeding brought inany such court shall be conclusive and binding upon any party and may beenforced in any other courts to whose jurisdiction any party is or may besubject, by suit upon such judgment.

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## (g)           Waiverof Jury Trial.  EACH OF THE PARTIESHERETO WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANYLITIGATION BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENTOR ANY COURSE OF CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN STATEMENT OR ACTIONOF ANY PARTY HERETO.

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## (h)           Successorsand Assigns; Assignment. This Agreement shall be binding upon and shallinure to the benefit of the parties hereto and their respective heirs,executors, legal representatives, and successors; *provided*, however, that no party may assign this Agreementor any rights hereunder, in whole or in part, without the consent of the otherparty.

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## (i)            PartialInvalidity and Severability. All rights and restrictions contained hereinmay be exercised and shall be applicable and binding only to the extent thatthey do not violate any applicable laws and are intended to be limited to theextent necessary to render this Agreement legal, valid and enforceable. If anyterms of this Agreement not essential to the commercial purpose of thisAgreement shall be held to be illegal, invalid or unenforceable by a court ofcompetent jurisdiction, it is the intention of the parties that the remainingterms hereof shall constitute their agreement with respect to the subjectmatter hereof and all such remaining terms shall remain in full force andeffect. To the extent legally permissible, any illegal, invalid orunenforceable provision of this Agreement shall be replaced by a validprovision which will implement the commercial purpose of the illegal, invalidor unenforceable provision.

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## (j)            Waiver.Any term or condition of this Agreement may be waived at any time by the partywhich is entitled to the benefit thereof, but only if such waiver is evidencedby a writing signed by such party. No failure on thepart of a party hereto to exercise, and no delay in exercising, any right,power or remedy created hereunder, shall operate as a waiver thereof, nor shallany single or partial exercise of any right, power or remedy by any such partypreclude any other future exercise thereof or the exercise of any other right,power or remedy. No waiver by any party hereto to any breach of or default inany term or condition of this Agreement shall constitute a waiver of or assentto any succeeding breach of or default in the same or any other term orcondition hereof.

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## (k)           Headings.The headings as to contents of particular paragraphs of this Agreement areinserted for convenience only and shall not be construed as a part of thisAgreement or as a limitation on the scope of any terms or provisions of thisAgreement.

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## (l)            Expenses.Except as otherwise expressly provided herein, all legal andother costs and expenses incurred in connection with this Agreement and thetransactions contemplated hereby shall be paid by the parties as each partyincurs such expenses.

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## (m)          Gender.Where the context requires, the use of the singular form herein shall includethe plural, the use of the plural shall include the singular, and the use ofany gender shall include any and all genders.

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**[SIGNATUREPAGE FOLLOWS]**

 

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IN WITNESS WHEREOF, the parties have executed thisAgreement or caused this Agreement to be duly executed by their duly authorizedofficers as of the day and year first above written.

 
|   | NEW  YORK & COMPANY, INC. |
|--------|------------------------------------|
|   |                               |
|   |                               |
|   | By:                                | /s/ RONALD  W. RISTAU |   |
|   |                               | Name: | Ronald  W. Ristau |
|   |                               | Title: | *Chief Operating Officer and* |
|   |                               |   | *Chief Financial Officer* |
|   |                               |
|   |                               |
|   |                               | /s/LUCIANO  MANGANELLA |   |
|   |                               | Luciano  Manganella |
|        |                                    |  |  |  |  |

 

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