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Exhibit 4.7
DECORA INDUSTRIES, INC.
$112,750,000
11% Senior Secured Notes due 2005
REGISTRATION RIGHTS AGREEMENT
April 29, 1998
Lazard Freres & Co. LLC
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Decora Industries, Inc., a Delaware corporation (the "Issuer"),
proposes to issue and sell to Lazard Freres & Co. LLC (the "Initial Purchaser"),
upon the terms set forth in a purchase agreement dated April 24, 1998 (the
"Purchase Agreement"), $112,750,000 aggregate principal amount of its 11% Senior
Secured Notes due 2005 (the "Notes") to be unconditionally guaranteed on a
senior basis by Decora, Incorporated, a Delaware corporation and a wholly owned
subsidiary of the Issuer (together with its successors, "Decora"), and any other
future guarantors of the Notes under the Indenture (as defined) (collectively,
the "Guarantors"). The Issuer and the Guarantors are collectively referred to
herein as the "Company," and the obligations of the Company in this Agreement
are joint and several obligations of the Issuer and the Guarantors. The Notes
will be issued pursuant to an Indenture, dated as of April 29, 1998 (the
"Indenture") among the Issuer, the Guarantors and United States Trust Company of
New York, as trustee (the "Trustee"). As an inducement to the Initial Purchaser,
the Company agrees with the Initial Purchaser, for the benefit of the holders of
the Notes (including the Initial Purchaser), the Exchange Notes (as defined
below) and the Private Exchange Notes (as defined below) (collectively, the
"Holders"), as follows:
1. Exchange Offers. The Company shall, at its cost, prepare and,
not later than 75 days after (or if the 75th
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day is not a business day, the first business day thereafter) the date of
original issue of the Notes (the "Issue Date"), file with the Securities and
Exchange Commission (the "Commission") a registration statement (the "Exchange
Offer Registration Statement") on Form S-4 or another appropriate form under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to a
proposed offer (the "Exchange Offer") to the Holders of Transfer Restricted
Notes (as defined in Section 6 hereof), who are not prohibited by any law or
public policy (including, without limitation, rules, regulations, pronouncements
and published interpretations of the Commission) from participating in the
Exchange Offer, to issue and deliver to such Holders, in exchange for the Notes,
a like aggregate principal amount of debt securities (the "Exchange Notes") of
the Issuer issued under the Indenture and identical in all material respects to
the Notes (except for the transfer restrictions and rights to future
registration under the Securities Act relating to the Notes). The Company shall
use its reasonable best efforts to cause such Exchange Offer Registration
Statement to become effective under the Securities Act within 150 days (or if
the 150th day is not a business day, the first business day thereafter) after
the Issue Date and shall keep the Exchange Offer open for not less than 20
business days (or longer, if required by applicable law) after the date notice
of the Exchange Offer is mailed to the Holders (such period being called the
"Exchange Offer Period").
The Company and the Initial Purchaser acknowledge that the staff
of the Commission has taken the position that any broker-dealer that elects to
exchange Notes that were acquired by such broker-dealer for its own account as a
result of market-making or other trading activities for Exchange Notes in the
Exchange Offer (a "Participating Broker-Dealer") may be deemed to be an
"underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Notes (other than a resale of an unsold allotment
resulting from the original offering of the Notes).
The Company and the Initial Purchaser also acknowledge that the
staff of the Commission has taken the position that if the Prospectus contained
in the Exchange Offer Registration Statement includes a plan of distribution
containing a statement to the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Notes, without naming the Participating
Broker-Dealers or specifying the amount of Exchange Notes owned by them, such
Prospectus may be delivered by Participating Broker-Dealers to satisfy their
pro-
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spectus delivery obligations under the Securities Act in connection with
resales of Exchange Notes for their own accounts, so long as the Prospectus
otherwise meets the requirements of the Securities Act.
In light of the foregoing, the Company shall use its reasonable
best efforts to keep the Exchange Offer Registration Statement effective and to
amend and supplement the prospectus contained therein, in order to permit such
prospectus to be lawfully delivered by all persons subject to the prospectus
delivery requirements of the Securities Act for such period of time as such
persons must comply with such requirements in order to resell the Exchange
Notes; provided, however, that such period shall end at the earlier of the first
anniversary of the consummation of the Exchange Offer and the date on which all
Participating Broker-Dealers and the Initial Purchaser have sold all Exchange
Notes held by them (unless such period is extended pursuant to Section 3(j)
below).
If, upon consummation of the Exchange Offer, the Initial
Purchaser holds Notes acquired by it as part of its initial distribution, the
Company, simultaneously with the delivery of the Exchange Notes pursuant to the
Exchange Offer, shall issue and deliver to the Initial Purchaser upon the
written request of such Initial Purchaser, in exchange (the "Private Exchange")
for the Notes held by the Initial Purchaser, a like principal amount of debt
securities of the Company issued under the Indenture and identical in all
material respects (including the existence of restrictions on transfer under the
Securities Act and the securities laws of the several states of the United
States) to the Notes (the "Private Exchange Notes"). The Notes, the Exchange
Notes and the Private Exchange Notes are hereinafter collectively called the
"Notes."
In connection with the Exchange Offer, the Company shall:
(a) 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;
(b) keep the Exchange Offer open for not less than 20
business days (or longer, if required by applicable law) after the date
notice of the commencement thereof is mailed to the Holders;
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(c) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last business day
on which the Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Exchange Offer or
the Private Exchange, as the case may be, the Company shall;
(x) accept for exchange all the Notes validly tendered and
not withdrawn pursuant to the Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Notes
so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly
to each Holder of the Notes in accordance with a letter of transmittal
received from each such Holder, Exchange Notes or Private Exchange
Notes, as the case may be, equal in principal amount to the Notes of
such Holder so accepted for exchange.
The Indenture will provide that the Exchange Notes will not be
subject to the transfer restrictions set forth in the Indenture and that all the
Notes will vote and consent together on all matters as one class (to the extent
such Notes are entitled to vote and consent) and that none of the Notes will
have the right to vote or consent as a class separate from one another on any
matter.
Interest on each Exchange Note and Private Exchange Note issued
pursuant to the Exchange Offer and in the Private Exchange will accrue from the
last interest payment date on which interest was paid on the Notes surrendered
in exchange therefor or, if no interest has been paid on the Notes, from the
date of original issue of the Notes.
Each Holder participating in the Exchange Offer shall be required
to represent to the Company in the letter of transmittal that at the time of the
consummation of the Exchange Of-
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fer (i) any Exchange Notes received by such Holder will be acquired in the
ordinary course of its business, (ii) such Holder will have no arrangements or
understanding with any person to participate in the distribution of the Notes or
the Exchange Notes within the meaning of the Securities Act, (iii) such Holder
is not an "affiliate," as defined in Rule 405 of the Securities Act, of the
Company or if it is such an affiliate, such Holder will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable, (iv) if such Holder is not a broker-dealer, that it is not
engaged in, and does not intend to engage in, directly or indirectly, the
distribution of the Exchange Notes and (v) if such Holder is a broker-dealer,
that it will receive Exchange Notes for its own account in exchange for Notes
that were acquired as a result of market-making activities or other trading
activities and that it will deliver a prospectus in connection with any resale
of such Exchange Notes.
Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Exchange Offer Registration Statement and any amendment
thereto and any prospectus forming part thereof and any supplement thereto
complies in all material respects with the Securities Act and the rules and
regulations thereunder, (ii) any Exchange Offer 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 and
(iii) any prospectus forming part of any Exchange Offer Registration Statement,
and any supplement to such prospectus, does not include an 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.
2. Shelf Registration. If, (i) because of any change in law or
public policy (including, without limitation, rules, regulations, pronouncements
and published interpretations by the Commission), the Company is not permitted
to effect the Exchange Offer, as contemplated by Section 1 hereof, (ii) the
Exchange Offer is not consummated within 180 days of the Issue Date, (iii) the
Initial Purchaser so requests with respect to Notes not eligible to be exchanged
by it for Exchange Notes in the Exchange Offer or with respect to the Private
Exchange Notes and, in each case, held by it following consummation of the
Exchange Offer or (iv) any Holder (other than a Participating Broker-Dealer or
an affiliate) is not eligible to participate in the Exchange Offer or, in the
case of
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any Holder (other than a Participating Broker-Dealer or an affiliate) that
participates in the Exchange Offer, such Holder does not receive freely tradable
Exchange Notes on the date of the exchange, the Company shall take the following
actions:
(a) The Company shall, at its cost, as promptly as
practicable file with the Commission and thereafter shall use its
reasonable best efforts to cause to be declared effective, not later
than the 90th day after the earliest of the events described in clauses
(i), (iii) or (iv) occurs and not later than the 30th day after the
event described in clause (ii) (such 90th day or 30th day the "Shelf
Effective Date")a registration statement (the "Shelf Registration
Statement" and, together with the Exchange Offer Registration
Statement, a "Registration Statement") on Form S-1 or another
appropriate form under the Securities Act relating to the offer and
sale of the Transfer Restricted Notes by the Holders thereof from time
to time in accordance with the methods of distribution set forth in the
Shelf Registration Statement and Rule 415 under the Securities Act
(hereinafter, the "Shelf Registration"); provided, however, that no
Holder (other than an Initial Purchaser) shall be entitled to have the
Notes held by it covered by such Shelf Registration Statement unless
such Holder agrees in writing to be bound by all the provisions of this
Agreement applicable to such Holder.
(b) The Company shall use its reasonable best efforts to
keep the Shelf Registration Statement continuously effective in order
to permit the prospectus included therein to be lawfully delivered by
the Holders of the relevant Notes, for a period of two years (or for
such longer period if extended pursuant to Section 3(j) below) from the
Issue Date or such shorter period that will terminate when all the
Notes covered by the Shelf Registration Statement (i) have been sold
pursuant thereto or (ii) are eligible for sale pursuant to Rule 144
without any limitations under clauses (c), (e), (f) and (h) of Rule 144
(or any successor provision) under the Securities Act. The Company
shall be deemed not to have used its reasonable best efforts to keep
the Shelf Registration Statement effective during the requisite period
if it voluntarily takes any action that would result in Holders of
Notes covered thereby not being able to offer and sell such Notes
during that period, unless such action is (i) required by applicable
law or (ii) pursuant to Section 2(c) hereof, and,
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in either case, so long as the Company promptly thereafter complies
with the requirements of Section 3(j) hereof, if applicable.
(c) The Company may suspend the use of the prospectus
related to the Shelf Registration Statement for a period not to exceed
45 days in any 90-day period or four periods not to exceed an aggregate
of 90 days in any 12-month period for valid business reasons (not
including avoidance of the Company's obligations hereunder), including
the acquisition or divestiture of assets, public filings with the
Commission, pending corporate developments and similar events.
(d) Notwithstanding any other provisions of this Agreement
to the contrary, the Company 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,
amendment or supplement, (i) to comply in all material respects with
the applicable requirements of the Securities Act and the rules and
regulations of the Commission and (ii) 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.
3. Registration Procedures. In connection with any Shelf Registration
contemplated by Section 2 hereof and, to the extent applicable, any Exchange
Offer contemplated by Section 1 hereof, the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial
Purchaser, prior to the filing thereof with the Commission, a copy of
the Registration Statement and each amendment thereof and each
supplement, if any, to the prospectus included therein and, in the
event that an Initial Purchaser (with respect to any portion of an
unsold allotment from the original offering) is participating in the
Exchange Offer or the Shelf Registration Statement, shall use its best
efforts to reflect in each such document, when so filed with the
Commission, such comments as such Initial Purchaser reasonably may
propose; (ii) if requested by an Initial Purchaser, include the
information required by Items 507 or 508 of Regulation S-K under the
Securities Act, as applicable, in the prospectus forming a part of the
Ex-
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change Offer Registration Statement; (iii) include within the
prospectus contained in the Exchange Offer Registration Statement a
section entitled "Plan of Distribution," reasonably acceptable to the
Initial Purchaser, which shall contain a summary statement of the
positions taken or policies made by the staff of the Commission with
respect to the potential "underwriter" status of a Participating
Broker-Dealer that is the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) of Exchange Notes received by such
Participating Broker-Dealer in the Exchange Offer, whether such
positions or policies have been publicly disseminated by the staff of
the Commission or such positions or policies, in the reasonable
judgment of the Initial Purchaser based upon advice of counsel (which
may be in-house counsel) and consultation with Company counsel,
represent the prevailing views of the staff of the Commission; and (iv)
in the case of a Shelf Registration Statement, include the names of the
Holders who propose to sell Notes pursuant to the Shelf Registration
Statement as selling securityholders, the amount of Notes owned by each
such Holder and the amount of Notes to be sold by each such Holder.
(b) The Company shall give written notice to the Initial
Purchaser, the Holders of the Notes and any Participating Broker-Dealer
from whom the Company (in the case of a Shelf Registration) has
received prior written notice that it will be a Participating
Broker-Dealer in the Exchange Offer (which notice pursuant to clauses
(ii)-(v) hereof shall be accompanied by an instruction to suspend the
use of the prospectus until the requisite changes have been made):
(i) when the Registration Statement or any
amendment thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective;
(ii) of any request by the Commission for
amendments or supplements to the Registration Statement or the
prospectus included therein or for additional information;
(iii) of the issuance by the Commission of any
stop order suspending the effectiveness of
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the Registration Statement or the initiation of any proceedings
for that purpose;
(iv) of the receipt by the Company or its legal
counsel of any notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires
the Company to make changes in the Registration Statement or the
prospectus in order that the Registration Statement or the
prospectus do not contain an untrue statement of a material fact
nor omit to state a material fact required to be stated therein
or necessary to make the statements therein (in the case of the
prospectus, in light of the circumstances under which they were
made) not misleading.
(c) The Company shall make every reasonable effort to obtain the
withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of Notes included
within the coverage of the Shelf Registration, without charge, at least
one copy of the effective Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits
thereto (including those, if any, incorporated by reference).
(e) The Company shall deliver to each Participating Broker-Dealer
and the Initial Purchaser, and to any other Holder who so requests,
without charge, at least one copy of the effective Exchange Offer
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Initial
Purchaser or any such Holder requests, all exhibits thereto (including
those incorporated by reference).
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Notes included within the coverage of the
Shelf Registration, without
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charge, as many copies of the prospectus (including each preliminary
prospectus) included in the Shelf Registration Statement and any
amendment or supplement thereto as such person may reasonably
request. The Company consents, subject to the provisions of this
Agreement, to the use of the prospectus or any amendment or supplement
thereto by each of the selling Holders of the Notes in connection with
the offering and sale of the Notes covered by the prospectus, or any
amendment or supplement thereto, included in the Shelf Registration
Statement.
(g) The Company shall deliver to the Initial Purchaser, any
Participating Broker-Dealer and such other persons required to deliver
a prospectus following the Exchange Offer, without charge, as many
copies of the final prospectus included in the Exchange Offer
Registration Statement and any amendment or supplement thereto as such
persons may reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by the Initial Purchaser, if necessary,
any Participating Broker-Dealer and such other persons required to
deliver a prospectus following the Exchange Offer in connection with
the offering and sale of the Exchange Notes covered by the prospectus,
or any amendment or supplement thereto, included in such Exchange Offer
Registration Statement.
(h) Prior to any public offering of the Notes pursuant to
any Registration Statement, the Company shall register or qualify or
cooperate with the Holders of the Notes included therein and their
respective counsel in connection with the registration or qualification
of the Notes for offer and sale under the securities or "blue sky" laws
of such states of the United States as any Holder of the Notes
reasonably requests in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such
jurisdictions of the Notes covered by such Registration Statement;
provided, however, that the Company shall not be required to (i)
qualify generally to do business in any jurisdiction where it is not
then so qualified or (ii) take any action which would subject it to
general service of process or to taxation in any jurisdiction where it
is not then so subject.
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(i) The Company shall cooperate with the Holders of the
Notes to facilitate the timely preparation and delivery of certificates
representing the Notes to be sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as the Holders may request a reasonable period
of time prior to confirmation of sales of the Notes pursuant to such
Registration Statement.
(j) Upon the occurrence of any event contemplated by
paragraphs (ii) through (v) of Section 3(b) above during the period for
which the Company is required to maintain an effective Registration
Statement, the Company shall promptly prepare and file a post-effective
amendment to the Registration Statement or a supplement to the related
prospectus and any other required document so that, as thereafter
delivered to Holders of the Notes or purchasers of Notes, the
prospectus will not contain an untrue statement of a material fact or
omit to state any 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 the Company notifies the
Initial Purchaser, the Holders of the Notes and any known Participating
Broker-Dealer in accordance with paragraphs (ii) through (v) of Section
3(b) above to suspend the use of the prospectus until the requisite
changes to the prospectus have been made, then the Initial Purchaser,
the Holders of the Notes and any such Participating Broker-Dealers
shall promptly suspend use of such prospectus, and the period of
effectiveness of the Exchange Offer Registration Statement provided for
in Section 1 above shall be extended by the number of days from and
including the date of the giving of such notice to and including the
date when the Initial Purchaser, the Holders of the Notes and any known
Participating Broker-Dealer shall have received such amended or
supplemented prospectus pursuant to this Section 3(j).
(k) Not later than the effective date of the applicable
Registration Statement, the Company will provide a CUSIP number for the
Notes, the Exchange Notes or the Private Exchange Notes, as the case
may be, and provide the applicable trustee with printed certificates
for the Notes, the Exchange Notes or the Private Exchange Notes, as the
case may be, in a form eligible for deposit with The Depository Trust
Company.
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(l) The Company will comply with all rules and regulations
of the Commission to the extent and so long as they are applicable to
the Exchange Offer or the Shelf Registration and will make generally
available to its security holders (or otherwise provide in accordance
with Section 11(a) of the Securities Act) an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act, no
later than 90 days after the end of a 12-month period (or 180 days, if
such period is a fiscal year) beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of
the Registration Statement, which statement shall cover such 12-month
period.
(m) The Company shall cause the Indenture to be qualified
under the Trust Indenture Act of 1939, as amended, in a timely manner
and containing such changes, if any, as shall be necessary for such
qualification. In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions
of the Indenture.
(n) The Company may require each Holder of Notes to be sold
pursuant to the Shelf Registration Statement to furnish to the Company
such information regarding the Holder and the distribution of the Notes
as the Company may from time to time reasonably require for inclusion
in the Shelf Registration Statement, and the Company may exclude from
such registration the Notes of any Holder that unreasonably fails to
furnish such information within a reasonable time after receiving such
request.
(o) The Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form)
and take all such other action, if any, as any Holder of the Notes
shall reasonably request in order to facilitate the disposition of the
Notes pursuant to any Shelf Registration.
(p) in the case of any Shelf Registration, the Company
shall (i) make reasonably available for inspection by the Holders of
the Notes, any underwriter participating in any disposition pursuant to
the Shelf Registration Statement and any attorney, accountant or other
agent retained by the Holders of the Notes or any
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such underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and (ii) cause the
Company's officers, directors, employees, accountants and auditors to
supply all relevant information reasonably requested by the Holders of
the Notes or any such underwriter, attorney, accountant or agent in
connection with the Shelf Registration Statement, in each case, as
shall be reasonably necessary to enable such persons to conduct a
reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Initial
Purchaser by you and on behalf of the other parties, by one counsel
designated by and on behalf of such other parties as described in
Section 4 hereof.
(q) In the case of any Shelf Registration, the Company, if
requested by any Holder of Notes covered thereby, shall cause (i) its
and its Subsidiaries' respective counsel to deliver opinions and
updates thereof relating to the Notes in customary form addressed to
such Holders and the managing underwriters, if any, thereof and dated
the effective date of such Shelf Registration Statement or of the most
recent post-effective amendment thereto (it being agreed that the
matters to be covered by such opinions shall include the due
incorporation and good standing of the Issuer and its Subsidiaries; the
qualification of the Issuer and its Subsidiaries to transact business
as foreign corporations; the due authorization, execution and delivery
of the relevant agreement of the type referred to in Section 3(o)
hereof; the due authorization, execution, authentication and issuance,
and the validity and enforceability, of the applicable Notes; the
absence of material legal or governmental proceedings involving the
Issuer and its Subsidiaries; the absence of governmental approvals
required to be obtained in connection with the Shelf Registration
Statement, the offering and sale of the applicable Notes, or any
agreement of the type referred to in Section 3(o) hereof; the
compliance as to form of such Shelf Registration Statement and any
documents incorporated by reference therein and of the Indenture with
the requirements of the Securities Act and the Trust Indenture Act,
respectively; and, as of the date of the opinion and as of the
effective date of the Shelf Registration Statement or most recent
post-effective
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amendment thereto, as the case may be, negative assurance as to the
absence from such Shelf Registration Statement and the prospectus
included therein, as then amended or supplemented, and from any
documents incorporated by reference therein of an untrue statement of a
material fact or the omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading (in the case of any such documents, in the light of the
circumstances existing at the time that such documents were filed with
the Commission under the Exchange Act) (such negative assurance to be
substantially in the form delivered to the Initial Purchaser in
connection with the original issuance and sale of the Notes)); (ii) its
officers to execute and deliver all customary documents and
certificates and updates thereof reasonably requested by any
underwriters of the applicable Notes and (iii) its independent public
accountants to provide to the selling Holders of the applicable Notes
and any underwriter therefor a comfort letter in customary form and
covering matters of the type customarily covered in comfort letters in
connection with primary underwritten offerings, subject to receipt of
appropriate documentation as contemplated, and only if permitted, by
Statement of Auditing Standards No. 72.
(r) In the case of the Exchange Offer, if requested by the
Initial Purchaser or any known Participating Broker-Dealer, the Company
shall, at the time of the consummation of such Exchange Offer, cause
(i) its counsel to deliver to the Initial Purchaser or such
Participating Broker-Dealer a signed opinion in the form set forth in
Section 7(a) of the Purchase Agreement with such changes as are
customary in connection with the preparation of a Registration
Statement and (ii) its independent public accountants to deliver to
such Initial Purchaser or such Participating Broker-Dealer a comfort
letter, in customary form, meeting the requirements as to the substance
thereof as set forth in Section 7(d) of the Purchase Agreement, with
appropriate date changes.
(s) If a Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Notes by Holders to the Company (or
to such other Person as directed by the Company) in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be, the
Company shall mark, or cause to be marked, on the Notes
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so exchanged that such Notes are being canceled in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be; in no
event shall the Notes be marked as paid or otherwise satisfied.
(t) The Company shall use its best efforts to (a) if the
Notes have theretofore been rated by a nationally recognized
statistical rating organization, confirm that the Notes covered by a
Registration Statement shall be so rated on the date such Registration
Statement becomes effective, or (b) if the Notes were not previously
rated, cause the Notes covered by a Registration Statement to be rated
with the appropriate rating agencies, if so requested by Holders of a
majority in aggregate principal amount of Notes covered by such
Registration Statement, or by the managing underwriters, if any.
(u) In the event that any broker-dealer registered under
the Exchange Act shall underwrite any Notes or participate as a member
of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules of the National
Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a
Holder of such Notes or as an underwriter, a placement or sales agent
or a broker or dealer in respect thereof, or otherwise, the Company
shall assist such broker-dealer in complying with the requirements of
such Rules, including (i) if Rule 2720 thereto shall so require,
engaging a "qualified independent underwriter" (as defined in Rule
2720) to participate in the preparation of the Registration Statement
relating to such Notes, to exercise usual standards of due diligence in
respect thereto and, if any portion of the offering contemplated by
such Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of such
Notes, (ii) indemnifying any such qualified independent underwriter to
the extent of the indemnification of underwriters provided in Section 5
hereof and (iii) providing such information to such broker-dealer as
may be required in order for such broker-dealer to comply with the
requirements of the Conduct Rules of the NASD.
(v) The Company shall use its best efforts to take all
other steps necessary to effect the registra-
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tion of the Notes covered by a Registration Statement contemplated
hereby.
4. Registration Expenses. The Company shall bear all fees and
expenses incurred in connection with the performance of its obligations under
Sections 1 through 3 hereof (including the reasonable fees and expenses, if any,
of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Initial Purchaser, incurred in
connection with the Exchange Offer), whether or not the Exchange Offer or a
Shelf Registration is filed or becomes effective, and, in the event of a Shelf
Registration, shall bear or reimburse the Holders of the Notes covered thereby
for the reasonable fees and disbursements of one firm of counsel designated by
the Holders of a majority in principal amount of the Notes covered thereby to
act as counsel for the Holders of the Notes in connection therewith.
5. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Holder of the Notes (including the Initial Purchaser), any
Participating Broker-Dealer and each person, if any, who controls such Holder or
such Participating Broker-Dealer within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (each Holder, any Participating
Broker-Dealer and such controlling persons are referred to collectively as the
"Indemnified Parties") from and against any losses, claims, damages or
liabilities, joint or several, or any actions in respect thereof (including any
losses, claims, damages, liabilities or actions relating to purchases and sales
of the Notes) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration, or arise out
of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse, as incurred, the Indemnified
Parties for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action in respect thereof; provided, however, that (i) the Company
shall not be liable in any such case to the extent that such loss, claim, damage
or liability arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in a Registration
Statement or prospectus or in any amendment or supplement
17
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thereto or in any preliminary prospectus relating to a Shelf Registration in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder specifically
for inclusion therein and (ii) with respect to any untrue statement or omission
or alleged untrue statement or omission made in any preliminary prospectus
relating to any Shelf Registration Statement, the indemnity agreement contained
in this subsection (a) shall not inure to the benefit of any Indemnified Party
from whom the person asserting any such losses, claims, damages or liabilities
purchased the Notes concerned, to the extent that a prospectus relating to such
Notes was required to be delivered by such Holder or Participating Broker-Dealer
under the Securities Act in connection with such purchase and any such loss,
claim, damage or liability of such Holder or Participating Broker-Dealer results
from the fact that there was not sent or given to such person, at or prior to
the written confirmation of the sale of such Notes to such person, a copy of the
final prospectus if the Issuer had previously furnished copies thereof to such
Indemnified Party and such final prospectus corrected such untrue statement or
omission; provided further, however, that this indemnity agreement will be in
addition to any liability which the Company may otherwise have to such
Indemnified Party. The Company shall also indemnify underwriters, their officers
and directors and each person who controls such underwriters within the meaning
of the Securities Act or the Exchange Act to the same extent as provided above
with respect to the indemnification of the Holders of the Notes and shall, if
requested by such Holders, enter into an underwriting agreement reflecting such
agreement, as provided in Section 3(o) hereof.
(b) Each Holder of the Notes, severally and not jointly, will
indemnify and hold harmless the Company and each person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act from and against any losses, claims, damages or liabilities
or any actions in respect thereof, to which the Company or any such controlling
person may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities or actions arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in a Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus relating to a
Shelf Registration, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
18
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therein not misleading, but in each case only to the extent that the untrue
statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder specifically
for inclusion therein; and, subject to the limitation set forth immediately
preceding this clause, shall reimburse, as incurred, the Company for any legal
or other expenses reasonably incurred by the Company or any such controlling
person in connection with investigating or defending any loss, claim, damage,
liability or action in respect thereof. This indemnity agreement will be in
addition to any liability which such Holder may otherwise have to the Company or
any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 5,
promptly notify the indemnifying party of the commencement thereof; but the
failure so to notify the indemnifying party will not, in any event, (i) relieve
the indemnifying party from liability under paragraph (a) or (b) above unless
and to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantive rights and
defenses and (ii) relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel (and local counsel) if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such
19
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action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 5 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the sale of the Notes pursuant
to the Purchase Agreement and the Shelf Registration Statement or Exchange Offer
Registration Statement, as the case may be, which resulted in such Losses;
provided, however, that in no case shall the Initial Purchaser or any subsequent
Holder of any Note be responsible, in the aggregate, for any amount in excess of
the purchase discount or commission applicable to such Note, as set forth in
Section 2 of the Purchase Agreement, nor shall any underwriter be responsible
for any amount in excess of the underwriting discount or commission applicable
to the securities purchased by such underwriter under the Shelf Registration
Statement or Exchange Offer Registration Statement, as the case may be, which
resulted in such Losses. If the alloca-
20
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tion provided by the immediately preceding sentence is unavailable for any
reason, the indemnifying party and the indemnified party shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the sale of the Notes pursuant to the Purchase
Agreement (before deducting expenses) as set forth in the "The Transactions and
Use of Proceeds" section of the Offering Memorandum dated the date of the
Purchase Agreement relating to the Notes. Benefits received by the Initial
Purchaser shall be deemed to be equal to the total purchase discounts and
commissions as set forth in Section 3 of the Purchase Agreement and any benefits
received by any other Holders shall be deemed to be equal to the value of the
Notes owned by such Holders and registered under the Securities Act. Benefits
received by any underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page of the
prospectus forming a part of the Shelf Registration Statement or Exchange Offer
Registration Statement, as the case may be, which resulted in such Losses.
Relative fault shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the indemnifying party,
on the one hand, or by the indemnified party, on the other hand. The parties
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 5, each person who
controls a Holder within the meaning of either the Securities Act or the
Exchange Act and each director, officer, employee and agent of such Holder shall
have the same rights to contribution as such Holder, and each person who
controls the Company within the meaning of either the Securities Act or the
Exchange Act, each officer of the Company who shall have signed the Shelf
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
21
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(e) The agreements contained in this Section 5 shall survive the
sale of the Notes pursuant to a Registration Statement and shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
6. Liquidated Damages Under Certain Circumstances. (a) Liquidated
Damages ("Liquidated Damages") with respect to the Notes shall be assessed as
follows if any of the following events occur (each such event in clauses (i)
through (iii) below a "Registration Default," and each period during which a
Registration Default has occurred and is continuing, a "Registration Default
Period"):
(i) If within 75 days of the Issue Date, the
Exchange Offer Registration Statement has not been filed with the
Commission;
(ii) If within 150 days after the Issue Date, the
Exchange Offer Registration Statement is not declared effective
under the Securities Act by the Commission;
(iii) If within 180 days of the Issue Date, the
Exchange Offer is not consummated and;
(iv) If the Shelf Registration Statement (if
required) has not been declared effective by the Shelf
Effectiveness Date;
(v) If after either the Exchange Offer
Registration Statement or the Shelf Registration Statement is
declared effective (A) such Registration Statement thereafter
ceases to be effective or (B) such Registration Statement or the
related prospectus ceases to be usable (except as permitted in
paragraph (b) of this Section 6) in connection with resales of
Transfer Restricted Notes during the periods specified herein
because either (1) any event occurs as a result of which the
related prospectus forming part of such Registration Statement
would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or (2) it shall be
22
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necessary to amend such Registration Statement or supplement the
related prospectus to comply with the Securities Act or the
Exchange Act or the respective rules thereunder.
Liquidated Damages shall accrue on the Transfer Restricted Notes over
and above the interest set forth in the title of the Transfer
Restricted Notes from and including the date on which any such
Registration Default shall occur to but excluding the date on which all
such Registration Defaults have been cured, at a per annum rate of
0.50% for the first 90 days of the Registration Default Period, at a
per annum rate of 1.00% for the second 90 days of the Registration
Default Period and at a per annum rate of 1.50% thereafter for the
remaining portion of the Registration Default Period. Notice of any
such Registration Default or its cure shall be given by the Issuer to
the Trustee as soon as practicable following the occurrence of any such
event. Liquidated Damages are payable in addition to any other interest
payable from time to time with respect to the Transfer Restricted
Notes.
(b) A Registration Default referred to in Section 6(a)(v)(B)
shall be deemed not to have occurred and be continuing in relation to a
Shelf Registration Statement or the related prospectus if (i) such
Registration Default has occurred solely as a result of (x) the filing
of a post-effective amendment to such Shelf Registration Statement to
incorporate annual audited or interim financial information with
respect to the Company where such post-effective amendment is not yet
effective and needs to be declared effective to permit Holders to use
the related prospectus, (y) the Company having issued information to
its shareholders, including financial statements or other information
not already contained in such Shelf Registration Statement, and as a
result being subject to Section 3-19(f) of Regulation S-X under the
Securities Act or (z) the existence or occurrence of other material
events with respect to the Company that would need to be described in
such Shelf Registration Statement or the related prospectus and (ii) in
the case of clause (y) or (z), the Company is proceeding promptly and
in good faith to amend or supplement such Shelf Registration Statement
and related prospectus to describe such events; provided, however, that
in any case if such Registration Default occurs for a continuous period
in excess of 45 days (or 10 business days in the event of a
Registration Default
23
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under clause (y)), Liquidated Damages shall be payable in accordance
with the above paragraph from the day such Registration Default occurs
until such Registration Default is cured.
(c) Any amounts of Liquidated Damages due pursuant to clause
(a)(i), (a)(ii), (a)(iii) or (a)(iv) of Section 6 above will be payable
in cash on the regular interest payment dates with respect to the
Transfer Restricted Notes. The amount of Liquidated Damages will be
determined by multiplying the Liquidated Damages rate by the principal
amount of the Transfer Restricted Notes, multiplied by a fraction, the
numerator of which is the number of days such Liquidated Damages rate
was applicable during such period (determined on the basis of a 360-day
year comprised of twelve 30-day months), and the denominator of which
is 360.
(d) "Transfer Restricted Notes" means each Note until (i) the
date on which such Note has been exchanged by a person other than a
broker-dealer for a freely transferable Exchange Note in the Exchange
Offer, (ii) following the exchange by a broker-dealer in the Exchange
Offer of such Note for an Exchange Note, the date on which such
Exchange Note is sold to a purchaser who receives from such
broker-dealer on or prior to the date of such sale a copy of the
prospectus contained in the Exchange Offer Registration Statement,
(iii) the date on which such Note has been effectively registered under
the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (iv) the date on which such Note is
distributed to the public pursuant to Rule 144 under the Securities Act
or is freely tradable pursuant to Rule 144(k) under the Securities Act.
7. Rules 144 and 144A. The Company shall use its best efforts to
file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the request of any Holder of Transfer
Restricted Notes, make publicly available other information so long as necessary
to permit sales of their securities pursuant to Rules 144 and 144A. The Company
covenants that it will take such further action as any Holder of Transfer
Restricted Notes may reasonably request, all to the extent required from time to
time to enable such Holder to sell Transfer Restricted Notes without
registration under the Securities Act within the limi-
24
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tation of the exemptions provided by Rules 144 and 144A (including the
requirements of Rule 144A(d)(4)). The Company will provide a copy of this
Agreement to prospective purchasers of Notes identified to the Company by the
Initial Purchaser upon request. Upon the request of any Holder of Transfer
Restricted Notes, the Company shall deliver to such Holder a written statement
as to whether it has complied with such requirements. Notwithstanding the
foregoing, nothing in this Section 7 shall be deemed to require the Company to
register any of its securities pursuant to the Exchange Act.
8. Underwritten Registrations. If any of the Transfer Restricted
Notes covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("Managing Underwriters") will be selected by
the Holders of a majority in aggregate principal amount of such Transfer
Restricted Notes to be included in such offering.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Notes on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
9. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, except by the Company, the Initial
Purchaser (if affected by such amendment, modification, supplement, waiver or
consents) and the written consent of the Holders at the time of a majority in
principal amount of the Notes affected by such amendment, modification,
supplement, waivers or consents.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Notes, at the most current address
given by such Holder to the Company in accordance with the provisions
of this Section 9(b), which address
25
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initially is, with respect to each Holder, the address of such Holder
to which confirmation of the sale of the Notes to such Holder was first
sent by the Initial Purchaser.
(2) if to the Initial Purchaser, at the following address:
Lazard Freres & Co. LLC
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
(3) if to the Company, at the address as follows:
Decora Industries, Inc.
0 Xxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxx 00000-1727
Attention: Xxxxxxx X. Xxxxxxx
with a copy to:
Xxxxxx & Xxxxxxx
0000 Xxxxxxx Xxxx Xxxx, Xxxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx Xxxxx, Esq.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged by recipient's facsimile machine operator, if sent
by facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(c) No Inconsistent Agreements. The Company has not, as of the
date hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders herein or otherwise conflicts with the provisions
hereof.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company thereto, subsequent Holders of Notes. The Company hereby agrees to
extend the benefits of this Agreement to any Holder of Notes and any such Holder
may specifically enforce
26
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the provisions of this Agreement as if an original party hereto.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED By, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
(h) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(i) Notes Held by the Company. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Notes is required
hereunder, Notes held by the Company or its affiliates (other than subsequent
Holders of Notes if such subsequent Holders are deemed to be affiliates solely
by reason of their holdings of such Notes) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(j) Submission to Jurisdiction. To the fullest extent permitted
by applicable law, the Company irrevocably submits to the jurisdiction of any
federal or state court in the City, County and State of New York, United States
of America, in any suit or proceeding based on or arising under this Agreement,
and irrevocably agrees that all claims in respect of such suit or proceeding may
be determined in any such court. The Company irrevocably and fully waives the
defense of an inconvenient forum to the maintenance of such suit or proceeding.
The Company agrees that service of process upon it by prepaid registered
first-class mail at its address set forth above for notices, shall be deemed in
every respect effective service of process upon the Company
27
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in any such suit or proceeding. Nothing herein shall affect the right of any
Holder or any person controlling such Holder to serve process in any other
manner permitted by law.
28
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Initial Purchaser and the Company in accordance with its terms.
Very truly yours,
DECORA INDUSTRIES, INC.
By:
--------------------------------------
Name:
Title:
DECORA, INCORPORATED
By:
--------------------------------------
Name:
Title:
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first above
written.
LAZARD FRERES & CO. LLC
By:
--------------------------------
Name:
Title:
