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Exhibit 99.05
Canadian Imperial Bank of Commerce
Xxxxxxxx Xxxxx Xxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Dear Sirs:
Re: Registration Rights
------------------------
Reference is made to a registration rights undertaking made by Xxxxxxxxx
Inc. in favour of Canadian Imperial Bank of Commerce ("CIBC") dated October 13,
1995 (the "1995 Agreement") and attached hereto as Schedule A and a
registration rights undertaking dated February 29, 1996 (the "1996 Agreement")
made by Xxxxxxxxx Inc. and 1159670 Ontario Limited ("Ontario") in favour of
CIBC, The Toronto-Dominion Bank and the Bank of Nova Scotia and attached hereto
as Schedule B.
Each of the undersigned agree that the 1995 Agreement is hereby amended as
follows:
(i) Clause (i), (ii) and (iii) of the first full paragraph of page 2 shall
be deleted and the following substituted therefor:
"(i) Xxxxxxxxx or Ontario or the U.S. Subsidiary is in default under
any present or future indebtedness or liabilities to the Bank secured
by the Pledged Securities, (ii) you have or intend to effect
foreclosure upon the Pledged Securities in accordance with your rights
under any applicable security documents or to exercise your power of
sale rights under any applicable security documents, as follows:".
(ii) The fourth line of page 2 shall be amended by adding immediately after
the word "Xxxxxxxxx" the following ", the U.S. Subsidiary or 1159670
Ontario Limited ("Ontario").
(iii) The last full paragraph of the 1995 Agreement shall be deleted in its
entirety.
Each of the undersigned agree that the 1996 Agreement is hereby amended
vis-a-vis the undersigned and CIBC as follows:
(i) The definition of "Pledged Shares" shall be amended to include 7,539,028
shares of Class A Common Stock pledged by 3184081 Canada Limited
("Canada") to CIBC
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- 2 -
pursuant to a securities pledge agreement dated on or about the date
hereof, such shares having been transferred directly or indirectly, by
Xxxxxxxxx to Canada subject to the 1995 Pledge (as defined in the 1996
Agreement).
(ii) All references to "Xxxxxxxxx and Ontario" shall be deemed to be
references to "Xxxxxxxxx, Ontario, Canada and the U.S. Subsidiary".
(iii) All references to "Xxxxxxxxx Inc. or its subsidiaries" shall be
deemed to be references to "Xxxxxxxxx, Ontario, Canada and the U.S.
Subsidiary or their respective subsidiaries".
(iv) All references to the "Banks" shall be deemed to be references to the
"Banks (including CIBC)".
(v) The last full paragraph of page 2 shall be amended by inserting
immediately after the "," in the second line, the following: "and the
U.S. Subsidiary agrees to effect".
(vi) The registration referred to in the last full paragraph of page 2 and
the last full paragraph of page 3 shall be effected no later that 90
days following the 29th day of February, 1996 provided that any
amendment to such registration required to effect a registration which
extends to the 7,539,028 shares of Class A Common Stock pledged by
Canada as referred to above shall be effected within 60 days of the date
hereof.
(vii) The last paragraph of the 1996 Agreement shall be amended by (1) adding
"and the pledge by Ontario of 14,990,000 shares of Class B Common Stock
to the Bank pursuant to a securities pledge agreement made by Ontario on
or about the date hereof" immediately after the "," in the third line,
(2) adding "as amended by this Agreement" after "1995" in the third
line; and (3) by deleting the reference to Xxxxxxxxx in the first line
on page 5 and substituting therefore "Xxxxxxxxx, Ontario and the U.S.
subsidiary".
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DATED May 24, 1996
XXXXXXXXX INC. XXXXXXXXX INTERNATIONAL INC.
By: /s/ X.X. XXXXX By: /s/ X.X. XXXXX
------------------------ -------------------------
1159670 ONTARIO LIMITED 3184081 CANADA LIMITED
By: /s/ X.X. XXXXX By: /s/ X.X. XXXXX
------------------------ -------------------------
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Schedule A
Xxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
October 13, 1995
Canadian Imperial Bank of Commerce
Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxx X0X 0X0
Re: Registration Rights Undertaking
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Gentlemen:
Upon consummation of the transactions contemplated by the Share Exchange
Agreement dated as of July 19, 1995 ("Share Exchange Agreement") between
Xxxxxxxxx Inc. ("Xxxxxxxxx") and Xxxxxxxxx International Inc., a Delaware
corporation formerly named American Publishing Company (the "U.S. Subsidiary"),
Xxxxxxxxx owns, as of the date hereof, the following securities issued by the
U.S. Subsidiary:
(i) 33, 610, 754 shares of Class A Common Stock, par value $.01 per
share ("Class A Common Stock");
(ii) 14,990,000 shares of Class B Common Stock, par value $.01 per share
("Class B Common Stock"); and
(iii) 739,500 shares of non-voting Series A Redeemable Convertible
Preferred Stock, par value $.01 per share ("Series A Preferred Stock").
This is to confirm our understanding and agreement with respect to certain
registration rights relating to the above shares of Class A Common Stock, the
above shares of Class B Common Stock (and the shares of Class A Common Stock
into which the Class B Common Stock is automatically convertible upon transfer
of such shares to you pursuant to the terms of the Restated Certificate of
Incorporation, as amended, of the U.S.
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Canadian Imperial Bank of Commerce
October 13, 1995
Page 2
Subsidiary), and the shares of Class A Common Stock into which the above shares
of Series A Preferred Stock are convertible (collectively, the "Pledged
Securities"), which have been pledged to you to secure indebtedness of
Xxxxxxxxx and certain affiliated companies now or hereafter outstanding under
existing agreements or arrangements. The Pledged Securities are "restricted
securities" within the meaning of the U.S. Securities Act of 1933, as amended
(the "Securities Act"), and may not be sold, transferred or disposed of in the
absence of registration under the Securities Act or an exemption thereunder.
Accordingly, Xxxxxxxxx, intending to be legally bound, agrees, if but only
if (i) Xxxxxxxxx is in default on indebtedness now or hereafter outstanding
under existing agreements or arrangements and secured by the Pledged
Securities, (ii) you have effected foreclosure upon the Pledged Securities in
accordance with applicable law, and (iii) as a result you have duly become the
record owner of the Pledged Securities, as follows: upon written request from
you, Xxxxxxxxx agrees to use its reasonable best efforts to cause the U.S.
Subsidiary to effect, at the earliest possible date, the registration under the
Securities Act of all or part of the Pledged Securities (but not less than
5,000,000 shares of Class A Common Stock of the U.S. Subsidiary); provided,
however, that if the transaction to sell Pledged Securities referred to in your
written request may be accomplished pursuant to an applicable exemption from
registration under the Securities Act, Xxxxxxxxx shall not be required to cause
the U.S. Subsidiary to effect the registration of such Pledged Securities.
Registration shall be on such appropriate form of the Securities Exchange
Commission as shall be reasonably selected by the U.S. Subsidiary.
Registration may be effected, if requested, by means of a "shelf registration"
pursuant to Rule 415 under the Securities Act (but only if the U.S. Subsidiary
is then eligible to use a shelf registration and the appropriate registration
form is then available to the U.S. Subsidiary). Xxxxxxxxx will pay all
registration expenses (other than any underwriting discounts or commissions) in
connection with a registration requested hereunder.
It is understood and agreed that this undertaking by Xxxxxxxxx to use its
reasonable best efforts to cause the registration of the Pledged Securities by
the U.S. Subsidiary is subject to (i) compliance by Xxxxxxxxx with its
obligations under the Share Exchange Agreement (including without limitation
Sections 5(h) and 5(i) thereof), and (ii) such other terms,
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Canadian Imperial Bank of Commerce
October 13, 1995
Page 3
provisions and procedures which would customarily be contained in a standard
registration rights agreement.
Very truly yours,
Xxxxxxxxx Inc.
/s/ XXXXXXX X. XXXXX
Acknowledged and agreed to this ------------------------
13th day of October, 1995. Vice-President &
Secretary
CANADIAN IMPERIAL BANK OF COMMERCE
By /s/ XXXXXX XXXXXXX
--------------------------------
Title Director
--------------------------------
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Schedule B
XXXXXXXXX INC.
February 29, 1996
Canadian Imperial Bank of Commerce
Xxxxxxxx Xxxxx Xxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxx X0X 0X0
The Toronto-Dominion Bank
00 Xxxx Xxxxxx Xxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxx X0X 0X0
The Bank of Nova Scotia
00 Xxxx Xxxxxx Xxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxx X0X 0X0
Re: Registration Rights
-------------------
Gentlemen:
Xxxxxxxxx Inc. and certain of its subsidiaries ("Xxxxxxxxx") own, as of the
date hereof, the following securities issued by Xxxxxxxxx International Inc., a
Delaware corporation (the "U.S. Subsidiary"):
(i) 33,610,754 shares of Class A Common Stock, par value $.01 per share
("Class A Common Stock");
(ii) 14,900,000 shares of Class B Common Stock, par value $.01 per share
("Class B Common Stock"); and
(iii) 739,500 shares of non-voting Series A Redeemable Convertible
Preferred Stock, par value $.01 per share ("Series A Preferred Stock").
All the foregoing securities are currently pledged to Canadian Imperial Bank
of Commerce ("CIBC") pursuant to a Hypothecation of Specific Securities dated
October 13, 1995 made by Xxxxxxxxx in favor of CIBC (the "1995 Pledge") to
secure obligations of Xxxxxxxxx Inc. to CIBC, subject to the following actions
which are effective as of the date hereof:
(x) Xxxxxxxxx Inc. and CIBC have agreed, in connection with the
execution and delivery of a new bank credit facility in the amount of
Cdn.$90 million ("New Bank Facility"), to permit the transfer of up to
16,000,000 shares of Class A Common Stock and 14,990,000 shares of Class B
Common Stock
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Canadian Imperial Bank of Commerce
The Toronto-Dominion Bank
The Bank of Nova Scotia
February 29, 1996
Page 2
owned by Xxxxxxxxx Inc. to 0000000 Ontario Limited ("Ontario"), a wholly-
owned subsidiary of Xxxxxxxxx Inc., subject to the 1995 Pledge, and to cause
Ontario to pledge up to 16,000,000 shares of Class A Common Stock to CIBC as
Agent for itself and The Toronto-Dominion Bank and Bank of Nova Scotia
(collectively, the "Banks") to secure Ontario's obligations under the New
Bank Facility;
(y) All remaining outstanding shares of Class A Common Stock
owned by Xxxxxxxxx Inc., together with the Series A Preferred Stock owned by
Xxxxxxxxx Inc., will continue to be subject to pledge to CIBC pursuant to
the 1995 Pledge.
All shares of Class A Common Stock owned by Xxxxxxxxx Inc. or Ontario or
3184081 Canada Limited and subject to pledge are hereinafter called the
"Pledged Shares".
This is to confirm our understanding and agreement with respect to certain
registration rights relating to the Pledged Shares. The Pledged Shares are
"restricted securities " within the meaning of the U.S. Securities Act of 1933,
as amended (the "Securities Act"), and may not be sold, transferred or disposed
of in the absence of registration under the Securities Act or an exemption
thereunder. The Banks acknowledge that they do not possess the Pledged Shares
with a view to any sale or distribution thereof within the meaning of the
Securities Act and the rules and regulations thereunder.
The Banks confirm that they have had access to all information concerning
the business and financial condition of the U.S. Subsidiary that each of the
Banks requires. Without limiting the foregoing, the Banks have been provided
copies of the principal organizational documents of the U.S. Subsidiary,
including the Restated Certificate of Incorporation, as filed on May 10, 1994
with the Secretary of State of Delaware, the Certificate of Amendment of
Restated Certificate of Incorporation as filed on October 13, 1995.
Accordingly, each of Xxxxxxxxx and Ontario, intending to be legally bound,
agrees to use its reasonable best efforts to cause the U.S. Subsidiary to effect,
at the earliest possible date (but in any case not later than 90 days
following the date of this agreement) the registration under the Securities Act
of all of the Pledged Shares. Registration shall be effected by means of a
"shelf registration" pursuant to Rule 415 under the Securities Act. Xxxxxxxxx
will pay all registration expenses (other than any underwriting discounts or
commissions) in connection with the registration requested hereunder. All
selling expenses related to the Pledged Shares, including reasonable internal
costs and expenses incurred by each of you, shall be borne by Xxxxxxxxx and
Ontario.
The U.S. Subsidiary may terminate such registration (x) 30 days after the
date the Banks no longer hold shares of Class A Common Stock exceeding in the
aggregate one percent
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Canadian Imperial Bank of Commerce
The Toronto-Dominion Bank
The Bank of Nova Scotia
February 29, 1996
Page 3
of the outstanding shares of Class A Common Stock (and securities convertible
into Class A Common Stock) or (y) such earlier date which concludes the holding
period for Class A Common Stock held by persons that are not deemed to be
"affiliates" of the U.S. Subsidiary as specified in Rule 144 promulgated by the
U.S. Securities and Exchange Commission ("Commission") as then in effect. In
addition, upon the payment or satisfaction in full of the obligations of
Xxxxxxxxx Inc. or its subsidiaries, as the case may be, to the Banks under all
credit arrangements secured by the Pledged Shares and the termination of such
credit arrangements, the U.S. Subsidiary may terminate such registration.
In connection with the registration and any subsequent offers and sales of
the Pledged Shares pursuant thereto, each of you shall furnish to the U.S.
Subsidiary such information regarding the Pledged Shares to be owned by you
after default by Xxxxxxxxx under the obligations secured by such shares, the
lending arrangements and other circumstances related to the Pledged Shares, the
distribution proposed by you and other related matters as the U.S. Subsidiary
may request and as shall be required in connection with the registration,
qualification or compliance with the Securities Act and applicable state
securities laws.
Each of you covenants that you will comply with the prospectus delivery
requirements of the Securities Act with respect to the registration statement
to be filed pursuant to this letter agreement. Furthermore, each of you agrees
to make customary representations and warranties to Xxxxxxxxx and the U.S.
Subsidiary and the underwriters, agents, or distributors, if any, in form,
substance and scope as are customarily made as to ownership of stock by selling
stockholders in underwritten public offerings, but you shall not be required to
make any representation or warranty as to the accuracy or completeness of the
registration statement (except for written information furnished to the U.S.
Subsidiary expressly for use therein). In addition, each of you agrees that
you will refrain from offering for sale or selling any Pledged Shares if you
are not notified by Xxxxxxxxx or the U.S. Subsidiary that the registration
statement is not accurate or is not complete in all material respects, and
Xxxxxxxxx shall notify you of any material fact or change which results in the
registration statement not being accurate or complete in all material respects
from time to time as any such fact or change occurs. You may make sales of the
Pledged Shares after notification by the U.S. Subsidiary that the registration
statement is current or, based on an opinion of counsel for the U.S.
Subsidiary, that the Pledged Shares could be sold in compliance with the
Securities Act and the Securities Exchange Act of 1934, as amended, without
disclosure of any nonpublic information which may be the subject of the
notification.
With respect to the Class B Common Stock and the Series A Preferred Stock of
the U.S. Subsidiary owned by Xxxxxxxxx or Ontario which are subject to the 1995
Pledge, the registration rights undertaking by Xxxxxxxxx dated October 13, 1995
shall
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Canadian Imperial Bank of Commerce
The Toronto-Dominion Bank
The Bank of Nova Scotia
February 29, 1996
Page 4
remain in full force and effect and Xxxxxxxxx and CIBC agree to remain
bound by its terms.
Very truly yours,
XXXXXXXXX INC.
By /s/ XXXXX X. XXXXXXXX
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1159670 ONTARIO LIMITED
By /s/ XXXXX X. XXXXXXXX
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Acknowledged and agreed to this
29th day of February, 1996.
CANADIAN IMPERIAL BANK OF COMMERCE
By /s/ XXXXXX XXXXXX
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Title
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THE TORONTO-DOMINION BANK
By /s/ XXXXXXX XXXXXXX
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/s/ XXXX XXXXXX
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Title
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THE BANK OF NOVA SCOTIA
By /s/ XXX XXXXXX
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Title
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