Exhibit 4.3
U.S. INDUSTRIES, INC.
USI AMERICAN HOLDINGS, INC.
$250,000,000 7 1/8% SENIOR NOTES DUE 2003
REGISTRATION RIGHTS AGREEMENT
-----------------------------
October 22, 1998
Credit Suisse First Boston Corporation
BT Alex. Xxxxx Incorporated
NationsBanc Xxxxxxxxxx Securities LLC
c/o Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
U.S. Industries, Inc., a Delaware corporation ("USI"), and USI American
Holdings, Inc., a Delaware corporation and an indirect wholly-owned subsidiary
of USI ("USIAH", and together with USI, the "Companies"), propose to issue and
sell, on a joint and several basis to the several initial purchasers named in
Schedule A to the purchase agreement (the "Initial Purchasers"), dated of even
date herewith (the "Purchase Agreement"), upon the terms set forth in the
Purchase Agreement, $250,000,000 aggregate principal amount of their 7 1/8%
Senior Notes due 2003 (the "Initial Securities") to be unconditionally
guaranteed (the "Guarantee") by USI Atlantic Corp., a Delaware corporation and a
direct wholly-owned subsidiary of USI (the "Guarantor"). The Initial Securities
will be issued and the Guarantee will be entered into pursuant to an Indenture,
dated as of October 27, 1998 (the "Indenture"), among the Companies, the
Guarantor and The First National Bank of Chicago (the "Trustee"). As an
inducement to the Initial Purchasers, the Companies and the Guarantor agree with
the Initial Purchasers, for the benefit of the holders (collectively, the
"Holders") of the Initial Securities (including, without limitation, the Initial
Purchasers), the Exchange Securities and the Private Exchange Securities (as
defined below), as follows:
1. Registered Exchange Offer. The Companies and the Guarantor shall, at
their own cost, prepare and, not later than 90 days after (or if the 90th day is
not a business day, the first business day thereafter) the date of original
issue of the Initial Securities (the "Issue Date"), file with the Securities and
Exchange Commission (the "Commission") a registration statement (the
NYDOCS01/426551 6
"Exchange Offer Registration Statement") on an appropriate form under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to a
proposed offer (the "Registered Exchange Offer") to the Holders of Transfer
Restricted Securities (as defined in Section 6 hereof), who are not prohibited
by any law or policy of the Commission from participating in the Registered
Exchange Offer, to issue and deliver to such Holders, in exchange for the
Initial Securities, a like aggregate principal amount of debt securities (the
"Exchange Securities") of the Companies issued under the Indenture and identical
in all material respects to the Initial Securities (except that the Exchange
Securities will not contain terms relating to transfer restrictions and the
matters described in Section 6 hereof) that would be registered under the
Securities Act. Each of the Companies and the Guarantor shall use its best
efforts to cause such Exchange Offer Registration Statement to become effective
under the Securities Act within 180 days (or if the 180th day is not a business
day, the first business day thereafter) after the Issue Date of the Initial
Securities and shall keep the Exchange Offer Registration Statement effective
for not less than 20 business days (or longer, if required by applicable law)
after the date notice of the Registered Exchange Offer is mailed to the Holders
(such period being called the "Exchange Offer Registration Period").
If the Companies effect the Registered Exchange Offer, the Companies and
the Guarantor will be entitled to close the Registered Exchange Offer 20
business days after the commencement thereof provided that the Companies have
accepted all the Initial Securities theretofore validly tendered in accordance
with the terms of the Registered Exchange Offer. The Companies and the Guarantor
will use their best efforts to consummate the Exchange Offer within 210 days
after the Issue Date.
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Companies and the Guarantor shall promptly commence
the Registered Exchange Offer, it being the objective of such Registered
Exchange Offer to enable each Holder of Transfer Restricted Securities electing
to exchange the Initial Securities for Exchange Securities (assuming that such
Holder is not an affiliate of the Companies or the Guarantor within the meaning
of the Securities Act, is not a broker-dealer tendering Initial Securities
acquired directly from the Issuers for its own account, acquires the Exchange
Securities in the ordinary course of such Holder's business, has no arrangements
with any person to participate in the distribution of the Exchange Securities
and is not prohibited by any law or policy of the Commission from participating
in the Registered Exchange Offer) to trade such Exchange Securities from and
after their receipt without any limitations or restrictions under the Securities
Act and without material restrictions under the securities laws of a material
portion of the several states of the United States.
The Companies and the Guarantor acknowledge that, pursuant to current
interpretations by the Staff of Section 5 of the Securities Act, in the absence
of an applicable exemption therefrom, (i) each Holder which is a broker-dealer
electing to exchange Securities, acquired for their own account as a result of
market making activities or other trading activities, for Exchange Securities
(an "Exchanging Dealer"), is required to deliver a prospectus containing the
information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in
the "Exchange Offer
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Procedures" section and the "Purpose of the Exchange Offer" section, and (c)
Annex C hereto in the "Plan of Distribution" section of such prospectus in
connection with a sale of any such Exchange Securities received by such
Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial
Purchaser that elects to sell Exchange Securities acquired in exchange for
Securities constituting any portion of an unsold allotment is required to
deliver a prospectus containing the information required by Items 507 or 508 of
Regulation S-K under the Securities Act, as applicable, in connection with such
sale.
Each of the Companies and the Guarantor shall use its 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 Securities;
provided, however, that the Companies shall not be required to maintain the
effectiveness of the Exchange Offer Registration Statement for more than 60 days
following consummation of the Exchange Offer unless the Companies have been
notified in writing on or prior to the 60th day following the consummation of
the Exchange Offer by one or more Exchanging Dealers that such Holder has
received Exchange Notes as to which it will be required to deliver a prospectus
upon resale; provided further, however, that in any event, the Companies shall
not be required to maintain the effectiveness of the Exchange Offer Registration
Statement for more than 180 days.
If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Initial Securities acquired by it as part of their initial
distribution, the Companies, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue and deliver to
such Initial Purchaser upon the written request of such Initial Purchaser, in
exchange (the "Private Exchange") for the Initial Securities held by such
Initial Purchaser, a like principal amount of debt securities of the Companies
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, but excluding
provisions relating to the matters described in Section 6 hereof) to the Initial
Securities (the "Private Exchange Securities"). The Initial Securities, the
Exchange Securities and the Private Exchange Securities are herein collectively
called the "Securities".
In connection with the Registered Exchange Offer, the Companies and the
Guarantor 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 Registered Exchange Offer open for not less than 20
business days (or longer, if required by applicable law) after the date
notice thereof is mailed to the Holders;
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(c) utilize the services of a depositary for the Registered 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 Securities at any time prior
to the close of business, New York time, on the last business day on which
the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all laws applicable to the Registered
Exchange Offer.
As soon as practicable after the close of the Registered Exchange Offer or
the Private Exchange, as the case may be, the Companies and the Guarantor shall:
(x) accept for exchange all the Securities validly tendered and not
withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(y) deliver to the Trustee for cancellation all the Initial
Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each
Holder of the Initial Securities, Exchange Securities or Private Exchange
Securities, as the case may be, equal in principal amount to the Initial
Securities of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities will not be
subject to the transfer restrictions set forth in the Indenture and that all the
Securities will vote and consent together on all matters as one class and that
none of the Securities will have the right to vote or consent as a class
separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security issued
pursuant to the Registered Exchange Offer and in the Private Exchange will
accrue from the last interest payment date on which interest was paid on the
Initial Securities surrendered in exchange therefor or, if no interest has been
paid on the Initial Securities, from the Issue Date.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Companies that at the time of the consummation of
the Registered Exchange Offer (i) any Exchange Securities received by such
Holder will be acquired in the ordinary course of business, (ii) such Holder
will have no arrangements or understanding with any person to participate in the
distribution of the Securities or the Exchange Securities 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 Companies or if it is 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, the
distribution of the Exchange Securities and (v) if such Holder is a
broker-dealer, that it will receive Exchange
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Securities for their own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities and
that it will be required to acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities.
The Companies and the Guarantor represent and warrant to, and agree with,
each of the Initial Purchasers and the Holders of any Transfer Restricted
Securities that (i) any Exchange Offer Registration Statement and any amendment
thereto and any prospectus forming part thereof and any supplement thereto, when
it becomes effective or is filed with the Commission, will comply 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, at all times when a prospectus would be required to be
delivered under the Securities Act, 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; provided, however,
that the foregoing representation, warranty and agreement shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Companies and the Guarantor by a Holder of Transfer
Restricted Securities expressly for use herein.
2. Shelf Registration. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the Companies
and the Guarantor determine upon the advice of outside counsel that they are not
permitted to effect a Registered Exchange Offer, as contemplated by Section 1
hereof, (ii) for any reason other than that specified in clause (i) above, the
Registered Exchange Offer is not consummated within 210 days of the Issue Date,
(iii) any Initial Purchaser so requests with respect to the Initial Securities
(or the Private Exchange Securities) not eligible to be exchanged for Exchange
Securities in the Registered Exchange Offer and held by it following
consummation of the Registered Exchange Offer or (iv) any Holder (other than an
Exchanging Dealer or an Initial Purchaser) is not eligible to participate in the
Registered Exchange Offer or, in the case of any Holder (other than an
Exchanging Dealer or an Initial Purchaser) that participates in the Registered
Exchange Offer, such Holder does not receive freely tradeable Exchange
Securities on the date of the exchange, the Companies and the Guarantor shall
take the following actions:
(a) The Companies and the Guarantor shall, at their cost, as
promptly as practicable (but in no event more than 30 days after so
required or requested pursuant to this Section 2) file with the Commission
and thereafter shall use their best efforts to cause to be declared
effective a registration statement (the "Shelf Registration Statement"
and, together with the Exchange Offer Registration Statement, a
"Registration Statement") on an appropriate form under the Securities Act
relating to the offer and sale of the Transfer Restricted Securities (as
defined in Section 6 hereof) by the Holders thereof from time to time in
accordance with the methods of distribution set forth in the Shelf
Registration
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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 Securities 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 Companies and the Guarantor shall use their 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 Securities, for a period of two years from the
date of their effectiveness (or until one year after such date of
effectiveness if such Shelf Registration Statement is filed at the request
of the Initial Purchaser or such shorter period that will terminate when
all the Securities covered by the Shelf Registration Statement (i) have
been sold pursuant thereto or (ii) are no longer restricted securities (as
defined in Rule 144 under the Securities Act, or any successor rule
thereof).
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Companies and the Guarantor shall use their best efforts to
ensure that 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) complies in all
material respects with the applicable requirements of the Securities Act
and the rules and regulations of the Commission and (ii) does not 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 light of the circumstances under which they were made, not
misleading; provided, however, that the foregoing representation, warranty
and agreement shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing to
the Companies and the Guarantor by a Holder of Transfer Restricted
Securities expressly for use therein.
3. Registration Procedures. In connection with any Shelf Registration
contemplated by Section 2 hereof and, to the extent applicable, any Registered
Exchange Offer contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Companies and the Guarantor 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 Registered
Exchange Offer or the Shelf Registration Statement, the Companies and the
Guarantor shall use their best efforts to reflect in each such document,
when so filed with the Commission, such comments as such Initial Purchaser
reasonably may propose; (ii) include the information set forth in Annex A
hereto on the cover, in Annex B hereto in the "Exchange Offer
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Procedures" section and the "Purpose of the Exchange Offer" section and in
Annex C hereto in the "Plan of Distribution" section of the prospectus
forming a part of the Exchange Offer Registration Statement and include
the information set forth in Annex D hereto in the Letter of Transmittal
delivered pursuant to the Registered Exchange Offer; (iii) if requested by
an Initial Purchaser, include the information required by Items 507 or 508
of Regulation S-K under the Securities Act, as applicable, in the
prospectus forming a part of the Exchange Offer Registration Statement;
(iv) include within the prospectus contained in the Exchange Offer
Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchasers, which shall contain a
summary statement of the positions taken or policies made by the Staff
with respect to the potential "underwriter" status of any broker-dealer
that is the beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
Exchange Securities received by such broker-dealer in the Registered
Exchange Offer (a "Participating Broker-Dealer"), whether such positions
or policies have been publicly disseminated by the Staff or such positions
or policies, in the reasonable judgment of the Initial Purchasers based
upon advice of counsel (which may be in-house counsel), represent the
prevailing views of the Staff; and (v) in the case of a Shelf Registration
Statement, include the names of the Holders, who propose to sell
Securities pursuant to the Shelf Registration Statement, as selling
securityholders.
(b) The Companies and the Guarantor shall promptly provide written
notification to the Initial Purchasers, the Holders of the Securities and
any Participating Broker-Dealer from whom the Companies have received
prior written notice that it will be a Participating Broker-Dealer in the
Registered 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 the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Companies or the Guarantor or their
legal counsel of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose;
and
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(v) of the happening of any event that requires the Companies
or the Guarantor to make changes in the Registration Statement or
the prospectus in order that, as of such date, 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 Companies and the Guarantor 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 Companies or the Guarantor shall furnish to each Holder of
Securities included within the coverage of the Shelf Registration, without
charge, at least one copy of the 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 Companies and the Guarantor shall deliver to each Exchanging
Dealer and each Initial Purchaser, and to any other Holder who so
requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if any Initial Purchaser or any
such Holder requests, all exhibits thereto (including those incorporated
by reference).
(f) The Companies and the Guarantor shall, during the Shelf
Registration Period, deliver to each Holder of Securities included within
the coverage of the Shelf Registration, without 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 Companies and the Guarantor
consent, 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 Securities in connection with the offering and sale of the
Securities covered by the prospectus, or any amendment or supplement
thereto, included in the Shelf Registration Statement.
(g) The Companies and the Guarantor shall deliver to each Initial
Purchaser, any Exchanging Dealer, any Participating Broker-Dealer and such
other persons required to deliver a prospectus following the Registered
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 Companies
and the Guarantor consent, subject to the provisions of this Agreement, to
the use of the prospectus or any amendment or supplement thereto by any
Initial Purchaser, if necessary, any Participating Broker-Dealer and such
other persons required to deliver
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a prospectus following the Registered Exchange Offer in connection with
the offering and sale of the Exchange Securities 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 Securities, pursuant to any
Registration Statement, the Companies and the Guarantor shall register or
qualify or cooperate with the Holders of the Securities included therein
and their respective counsel in connection with the registration or
qualification of the Securities for offer and sale under the securities or
"blue sky" laws of such states of the United States as any Holder of the
Securities 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 Securities covered by such Registration Statement;
provided, however, that the Companies and the Guarantor shall not be
required to (i) qualify generally to do business or as a dealer in
securities 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.
(i) The Companies and the Guarantor shall cooperate with the Holders
of the Securities to facilitate the timely preparation and delivery of
certificates representing the Securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations consistent with the terms of the Indenture and registered in
such names as the Holders may request a reasonable period of time prior to
sales of the Securities 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
Companies and the Guarantor are required to maintain an effective
Registration Statement, the Companies and the Guarantor 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 Securities or
purchasers of Securities, 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
Companies and the Guarantor notify the Initial Purchasers, the Holders of
the Securities 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 Purchasers, the Holders of the Securities and any
such Participating Broker-Dealers shall suspend use of such prospectus,
and the period of effectiveness of the Shelf Registration Statement
provided for in Section 2(b) above and the Exchange Offer Registration
Statement provided for in Section 1 above shall each 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 Purchasers, the Holders of the
Securities and any known Participating Broker-Dealer shall have received
such amended or supplemented
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prospectus pursuant to this Section 3(j). Notwithstanding the foregoing,
the Companies and the Guarantor shall not be required to amend or
supplement a Shelf Registration Statement, any related prospectus or any
document incorporated therein by reference, for a period not to exceed an
aggregate of 60 days in any calendar year, if (i) an event occurs and is
continuing as a result of which the Shelf Registration would, in the
Companies' good faith judgment, contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading and (ii) the Companies determine in their good
faith judgment that the disclosure of such event at such time would have a
material adverse effect on the business, operations or prospects of the
Companies or the disclosure otherwise relates to a pending material
business transaction that has not yet been publicly disclosed.
(k) Not later than the effective date of the applicable Registration
Statement, the Companies and the Guarantor will provide a CUSIP number for
the Initial Securities, the Exchange Securities or the Private Exchange
Securities, as the case may be, and provide the applicable trustee with
printed certificates for the Initial Securities, the Exchange Securities
or the Private Exchange Securities, as the case may be, in a form eligible
for deposit with The Depository Trust Company.
(l) Each of the Companies and the Guarantor will comply with all
rules and regulations of the Commission to the extent and so long as they
are applicable to the Registered Exchange Offer or the Shelf Registration
and will make generally available to their security holders (or otherwise
provide in accordance with Section 11(a) of the Securities Act) an
earnings statement of USI and for its affiliates, to the extent required
by the Staff, covering at least 12 months satisfying the provisions of
Section 11(a) of the Securities Act.
(m) The Companies and the Guarantor 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 Companies and the
Guarantor shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(n) The Companies and the Guarantor may require each Holder of
Securities to be sold pursuant to the Shelf Registration Statement to
furnish to the Companies and the Guarantor such information regarding the
Holder and the distribution of the Securities as the Companies and the
Guarantor may from time to time reasonably require for inclusion in the
Shelf Registration Statement, and the Companies and the Guarantor may
exclude from such registration the Securities of any Holder that
unreasonably fails to furnish such information within a reasonable time
after receiving such request.
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(o) Each of the Companies and the Guarantor 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 Securities shall reasonably request in order to facilitate the
disposition of the Securities pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, the Companies and the
Guarantor shall (i) make reasonably available for inspection by the
Holders of the Securities, 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 Securities or any
such underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Companies and the Guarantor and
(ii) cause the Companies' and the Guarantor's officers, directors,
employees, accountants and auditors to supply all relevant information
reasonably requested by the Holders of the Securities 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 Purchasers 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 Companies and the
Guarantor, if requested by any Holder of Securities covered thereby, shall
cause (i) their counsel to deliver an opinion and updates thereof relating
to the Securities in customary form, scope and substance addressed to such
Holders and the managing underwriters, if any, thereof and dated, in the
case of the initial opinion, the effective date of such Shelf Registration
Statement (it being agreed that the matters to be covered by such opinion
shall include, without limitation, the due incorporation and good standing
of each of the Companies and their subsidiaries; the qualification of each
of the Companies and their 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 Securities; the absence of material
legal or governmental proceedings involving each of the Companies and
their subsidiaries; the absence of governmental approvals required to be
obtained in connection with the Shelf Registration Statement, the offering
and sale of the applicable Securities, 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 amendment thereto, as the case may be, 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
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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); (ii) their officers to execute and deliver all
customary documents and certificates and updates thereof requested by the
managing underwriters of the applicable Securities; and (iii) their
independent public accountants (and the independent public accountants
with respect to any other entity for which financial information is
provided in the Shelf Registration Statement) to provide to the selling
Holders of the applicable Securities (to the extent consistent with
Statement on Auditing Standards No. 72 of the American Institute of
Certified Public Accountants) 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.
(r) In the case of the Registered Exchange Offer, if requested by
any Initial Purchaser or any known Participating Broker-Dealer, the
Companies and the Guarantor shall cause (i) their counsel to deliver to
such Initial Purchaser or such Participating Broker-Dealer a signed
opinion in the form set forth in Section 6(c) of the Purchase Agreement
with such changes as are customary in connection with the preparation of a
Registration Statement and (ii) their 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 6(a) of the Purchase Agreement,
with appropriate date changes.
(s) If a Registered Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Initial Securities by Holders to the
Companies (or to such other Person as directed by the Companies) in
exchange for the Exchange Securities or the Private Exchange Securities,
as the case may be, the Companies shall xxxx, or caused to be marked, on
the Initial Securities so exchanged that such Initial Securities are being
canceled in exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be; in no event shall the Initial Securities
be marked as paid or otherwise satisfied.
(t) The Companies and the Guarantor will use their best efforts to
confirm that the rating of the Initial Securities will apply to the
Securities covered by a Registration Statement, if so requested by Holders
of a majority in aggregate principal amount of Securities 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 Securities or participate as a member of
an underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Conduct Rules (the "Rules") of the National
Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a
Holder of such Securities or as an underwriter, a placement or sales agent
or
12
a broker or dealer in respect thereof, or otherwise, the Companies and the
Guarantor will assist such broker-dealer in complying with the
requirements of such Rules, including, without limitation, by (i) if such
Rules, including Rule 2720, 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 Securities, 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 Securities, (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 Rules.
4. Registration Expenses. The Companies and the Guarantor, on a joint and
several basis, shall bear all fees and expenses incurred in connection with the
performance of their obligations under Sections 1 through 3 hereof (including
the reasonable fees and expenses, if any, of Shearman & Sterling, counsel for
the Initial Purchasers, incurred in connection with the Registered Exchange
Offer), whether or not the Registered 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 Securities 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 Initial Securities covered
thereby to act as counsel for the Holders of the Initial Securities in
connection therewith.
5. Indemnification. (a) The Companies, on a joint and several basis, agree
to indemnify and hold harmless each Holder of the Securities, any Participating
Broker-Dealer and each person, if any, who controls such Holder or such
Participating Broker-Dealer within the meaning of the Securities Act or 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, but not limited to, any losses, claims,
damages, liabilities or actions relating to purchases and sales of the
Securities) 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 furnished pursuant to this Agreement or any prospectus
contained therein or in any amendment or supplement thereto, 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 (without duplication), 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
Companies 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 furnished pursuant to this Agreement or any prospectus
contained
13
therein or in any amendment or supplement thereto in reliance upon and in
conformity with written information pertaining to such Holder and furnished to
the Companies by or on behalf of such Holder specifically for inclusion therein
and (ii) the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Holder or Participating Broker-Dealer from whom the
person asserting any such losses, claims, damages or liabilities purchased the
Securities concerned, to the extent that a prospectus relating to such
Securities 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 Securities
to such person, a copy of the final prospectus if the Companies had previously
furnished copies thereof to such Holder or Participating Broker-Dealer; provided
further, however, that this indemnity agreement will be in addition to any
liability which the Companies may otherwise have to such Indemnified Party. The
Companies, on a joint and several basis, 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
Securities if requested by such Holders.
(b) Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Companies, the Guarantor and each person, if
any, who controls the Companies and the Guarantor within the meaning of the
Securities Act or the Exchange Act from and against any losses, claims, damages
or liabilities or any actions in respect thereof, to which the Companies, the
Guarantor 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 furnished pursuant to this Agreement or any prospectus included
therein or in any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact necessary
to make the statements 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 Companies 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
Companies and the Guarantor for any legal or other expenses reasonably incurred
by the Companies, the Guarantor 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 Companies, the Guarantor or any of
their 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, notify the
indemnifying party of the commencement thereof; but the omission so to notify
the indemnifying party will not, in any event, relieve the indemnifying party
from any
14
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of their election
so to assume the defense thereof the indemnifying party will not be liable to
such indemnified party under this Section 5 for any legal or other expenses,
other than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
(d) If the indemnification provided for in this Section 5 is unavailable
or insufficient to hold harmless an indemnified party under subsections (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the exchange of the Securities, pursuant to
the Registered Exchange Offer, or (ii) if the allocation provided by the
foregoing clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the indemnifying party or parties on
the one hand and the indemnified party on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Companies on the one hand
or such Holder or such other indemnified party, as the case may be, on the
other, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding any other provision of this
Section 5(d), the Holders of the Securities shall not be required to contribute
any amount in excess of the amount by which the net proceeds received by such
Holders from the sale of the Securities pursuant to a Registration Statement
exceeds the amount of damages which such Holders have otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent
15
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 paragraph (d), each person,
if any, who controls such indemnified party within the meaning of the Securities
Act or the Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Companies within the
meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as the Companies.
(e) The agreements contained in this Section 5 shall survive the sale of
the Securities 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. Additional Interest Under Certain Circumstances. (a) Additional
interest (the "Additional Interest") with respect to the Initial Securities
shall be assessed as follows if any of the following events occur (each such
event in clauses (i) through (iii) below a "Registration Default":
(i) If by January 25, 1999, the Exchange Offer Registration
Statement nor a Shelf Registration Statement has not been filed with the
Commission;
(ii) If by April 25, 1999, the Exchange Offer Registration Statement
is not declared effective by the Commission;
(iii) If by May 25, 1999, the Exchange Offer is not consummated or,
if required, a Shelf Registration Statement is not declared effective; or
(iv) If after either the Exchange Offer Registration Statement or
the Shelf Registration Statement is declared effective but thereafter
ceases to be effective or usable (except as permitted in paragraph (b)) in
connection with resales of Transfer Restricted Securities 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 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.
Additional Interest shall accrue on the Initial Securities over and above the
interest set forth in the title of the Securities 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 rate of 0.50% per
annum.
16
(b) A Registration Default referred to in Section 6(a)(iii)(B) hereof
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
financial information with respect to the Companies where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related prospectus or (y) other material events, with respect
to the Companies that would need to be described in such Shelf Registration
Statement or the related prospectus and (ii) in the case of clause (y), the
Companies are 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 60 days, Additional Interest 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 Additional Interest due pursuant to clause (i), (ii) or
(iii) of Section 6(a) above will be payable in cash on the regular interest
payment dates with respect to the Initial Securities. The amount of Additional
Interest will be determined by multiplying the applicable Additional Interest
rate by the principal amount of the Initial Securities, multiplied by a
fraction, the numerator of which is the number of days such Additional Interest
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 Securities" means each Security until (i) the
date on which such Transfer Restricted Security has been exchanged by a person
other than a broker-dealer for a freely transferable Exchange Security in the
Registered Exchange Offer, (ii) following the exchange by a broker-dealer in the
Registered Exchange Offer of a Initial Security 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 Initial Security 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 Initial Securities is distributed to the public pursuant to
Rule 144 under the Securities Act or is saleable pursuant to Rule 144(k) under
the Securities Act.
7. Rules 144 and 144A. Each of the Companies 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 Companies are not
required to file such reports, it will, upon the request of any Holder of
Initial Securities, make publicly available other information so long as
necessary to permit sales of their securities pursuant to Rules 144 and 144A.
Each of the Companies covenants that it will take such further action as any
Holder of Initial Securities may reasonably request, all to the extent required
from time to time to enable such Holder to sell Initial Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rules 144 and 144A (including the requirements of Rule 144A(d)(4)).
The Companies will
17
provide a copy of this Agreement to prospective purchasers of Initial Securities
identified to the Companies by the Initial Purchasers upon request. Upon the
request of any Holder of Initial Securities, the Companies 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 Companies to register any of their securities pursuant to the
Exchange Act.
8. Underwritten Registrations. If any of the Transfer Restricted
Securities 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 Securities 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
Securities 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 Companies and the written
consent of the Holders of a majority in principal amount of the Securities
affected by such amendment, modification, supplement, waiver 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 Securities, at the most current address
given by such Holder to the Companies.
(2) if to the Initial Purchasers:
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Transactions Advisory Group
18
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxxx, Esq.
(3) if to the Companies or the Guarantor or USI, at its address as
follows:
U.S. Industries, Inc.
000 Xxxx Xxxxxx Xxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Fax No.: (000) 000-0000
Attention: General Counsel
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three 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. Neither of the Companies nor the Guarantor
has, as of the date hereof, entered into, nor shall it, on or after the date
hereof, enter into, any agreement with respect to their 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 be binding upon each of
the Companies, the Guarantor and their successors and assigns.
(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.
19
(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) Securities Held by the Companies. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Securities is required
hereunder, Securities held by the Companies or their affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Issuer a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the several Initial Purchasers, the Companies and the Guarantor in
accordance with their terms.
Very truly yours,
U.S. INDUSTRIES, INC., as Issuer
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Treasurer
USI AMERICAN HOLDINGS, INC., as Issuer
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Treasurer
20
USI ATLANTIC CORP., as Guarantor
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Treasurer
The foregoing Registration Rights
Agreement is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
BT ALEX. XXXXX INCORPORATED
NATIONSBANC XXXXXXXXXX SECURITIES LLC
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title:Director
21
ANNEX A
Each broker-dealer that receives Exchange Securities for their own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Initial Securities
where such Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Companies have agreed
that, for a period of 180 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Securities for their own account
in exchange for Securities, where such Initial Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for their own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired as a
result of market-making activities or other trading activities. The Companies
have agreed that, for a period of 180 days after the Expiration Date, it will
make this prospectus, as amended or supplemented, available to any broker-dealer
for use in connection with any such resale. In addition, until , 1998,
all dealers effecting transactions in the Exchange Securities may be required
to deliver a prospectus.(1)
The Companies will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Securities. Any broker-dealer that resells Exchange Securities that were
received by it for their own account pursuant to the Exchange Offer and any
broker or dealer that participates in a distribution of such Exchange Securities
may be deemed to be an "underwriter" within the meaning of the Securities Act
and any profit on any such resale of Exchange Securities and any commission or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that, by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For a period of 180 days after the Expiration Date, the Companies will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Companies have
--------------------------
1 In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
agreed to pay all expenses incident to the Exchange Offer (including the
expenses of one counsel for the Holders of the Securities) other than
commissions or concessions of any brokers or dealers and will indemnify the
Holders of the Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS
OR SUPPLEMENTS THERETO.
Name:
---------------------------------
Address:
---------------------------------
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
