EXHIBIT 4.2
$150,000,000
BRAND SERVICES, INC.
12% SENIOR SUBORDINATED NOTES DUE 2012
REGISTRATION RIGHTS AGREEMENT
October 16, 2002
Credit Suisse First Boston Corporation
X.X. Xxxxxx Securities Inc.
c/o Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Brand Services, Inc., a Delaware corporation (the "ISSUER"), proposes
to issue and sell to Credit Suisse First Boston Corporation ("CSFB") and X.X.
Xxxxxx Securities Inc. ("JPMORGAN" and collectively with CSFB, the "INITIAL
PURCHASERS"), upon the terms set forth in a purchase agreement of even date
herewith (the "PURCHASE AGREEMENT"), $150,000,000 aggregate principal amount of
its 12% Senior Subordinated Notes due 2012 (the "INITIAL SECURITIES") to be
guaranteed (the "GUARANTIES") by Brand Intermediate Holdings, Inc. (the "PARENT
GUARANTOR") and the guarantors listed on the signature page hereto (together
with the Parent Guarantor, the "GUARANTORS," and, collectively with the Issuer,
the "COMPANY"). The Initial Securities will be issued pursuant to an Indenture,
dated as of October 16, 2002 (the "INDENTURE"), among the Company, the
Guarantors named therein and The Bank of New York Trust Company of Florida,
N.A., as trustee (the "TRUSTEE"). As an inducement to the Initial Purchasers to
enter into the Purchase Agreement, the Company agrees with the Initial
Purchasers, for the benefit of the Initial Purchasers, the holders of the
Securities (as defined below) (collectively the "HOLDERS") and the Market-Maker
(as defined below) as follows:
1. Registered Exchange Offer. Unless not permitted by applicable law or
any applicable interpretation by the staff of the Securities and Exchange
Commission (the "COMMISSION") (after the Company has complied with the ultimate
paragraph of this Section 1), the Company shall prepare and, not later than 90
days (such 90th day being an "EXCHANGE OFFER FILING DEADLINE") after the date on
which the Initial Purchasers purchase the Initial Securities pursuant to the
Purchase Agreement (the "CLOSING DATE"), file with the Commission a registration
statement (the "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 7 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 of
the Company issued under the Indenture, identical in all material respects to
the Initial Securities and registered under the Securities Act (the "EXCHANGE
SECURITIES"). The Company shall use its reasonable best efforts to (i) cause
such Exchange Offer Registration Statement to become effective under the
Securities Act within 180 days after the Closing Date (such 180th day being the
"EXCHANGE OFFER EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer
Registration Statement effective for not less than 30 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 Company commences the Registered Exchange Offer, the Company (i)
shall be entitled to consummate the Registered Exchange Offer 30 days after such
commencement (provided, however, that the Company has accepted all the Initial
Securities theretofore validly tendered in accordance with the terms of the
Registered Exchange Offer) and (ii) shall be required to consummate the
Registered Exchange Offer no later than 40 days after the date on which the
Exchange Offer Registration Statement is declared effective (such 40th day being
the "CONSUMMATION DEADLINE").
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such
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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 Company within the meaning
of the Securities Act, acquires the Exchange Securities in the ordinary course
of such Holder's business and 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 the several states of the United
States.
The Company acknowledges that, pursuant to current interpretations by
the Commission's 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 Initial Securities, acquired for its 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 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
Securities (as defined below) acquired in exchange for Initial 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. All
references in this Agreement to "prospectus" shall, except when the context
otherwise requires, include any prospectus (or amendment or supplement thereto)
filed with the Commission pursuant to Section 4 of this Agreement.
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 Securities; provided, however, that
(i) in the case where such prospectus and any amendment or supplement thereto
must be delivered by an Exchanging Dealer or an Initial Purchaser, such period
shall be the lesser of 180 days and the date on which all Exchanging Dealers and
the Initial Purchasers have sold all Exchange Securities held by them (unless
such period is extended pursuant to Section 3(j) below) and (ii) the Company
shall make such prospectus and any amendment or supplement thereto available to
any broker-dealer for use in connection with any resale of any Exchange
Securities for a period of not less than 180-days after the consummation of the
Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Initial Securities acquired by it as part of its initial
distribution, the Company, 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 Company
issued under the Indenture and identical in all material respects 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 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 Registered Exchange Offer open for not less than
30 days (or longer, if required by applicable law) after the date
notice thereof is mailed to the Holders;
(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 applicable laws.
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As soon as practicable after the close of the Registered Exchange Offer
or the Private Exchange, as the case may be, the Company 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 date of original issue of the Initial
Securities.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of the
Registered Exchange Offer (i) any 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 Company 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 Securities for its 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.
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.
If following the date hereof there has been announced a change in
Commission policy with respect to exchange offers that in the reasonable opinion
of counsel to the Company raises a substantial question as to whether the
Registered Exchange Offer is permitted by applicable federal law, the Company
will seek a no-action letter or other favorable decision from the Commission
allowing the Company to consummate the Registered Exchange Offer. The Company
will pursue the issuance of such a decision to the Commission staff level. In
connection with the foregoing, the Company will take all such other actions as
may be requested by the Commission or otherwise required in connection with the
issuance of such decision, including without limitation (i) participating in
telephonic conferences with the Commission, (ii) delivering to the Commission
staff an analysis prepared by counsel to the Company setting forth the legal
bases, if any, upon which such counsel has concluded that the Registered
Exchange Offer should be permitted and (iii) diligently pursuing a resolution
(which need not be favorable) by the Commission staff.
2. Shelf Registration. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the Company
is not permitted to effect a Registered Exchange Offer, as contemplated by
Section 1 hereof, (ii) the Registered Exchange Offer is not consummated by the
220th day after the Closing 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
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Exchange Offer and held by it following consummation of the Registered Exchange
Offer or (iv) any Holder (other than an Exchanging Dealer) is not eligible to
participate in the Registered Exchange Offer or, in the case of any Holder
(other than an Exchanging Dealer) that participates in the Registered Exchange
Offer, such Holder does not receive freely tradeable Exchange Securities on the
date of the exchange and any such Holder so requests, the Company shall take the
following actions (the date on which any of the conditions described in the
foregoing clauses (i) through (iv) occur, including in the case of clauses (iii)
or (iv) the receipt of the required notice, being a "TRIGGER DATE"):
(a) The Company shall promptly (but in no event more than 45
days after the Trigger Date (such 45th day being the "SHELF FILING
DEADLINE" and, together with the Exchange Offer Filing Deadline, the
"FILING DEADLINE")) file with the Commission and (x) in the case of
clause (i) above, thereafter use its reasonable best efforts to cause
to be declared effective no later than the Exchange Offer Effectiveness
Deadline and (y) in the case of clauses (ii) through (iv) above,
thereafter use its reasonable best efforts to cause to be declared
effective no later than the 60th day after the Shelf Filing Deadline
(such 60th day being the "SHELF REGISTRATION STATEMENT EFFECTIVENESS
DEADLINE" and, together with the Exchange Offer Effectiveness Deadline,
an "EFFECTIVENESS DEADLINE"), a registration statement, including any
amendment (pre- or post-effective) or supplement thereto (the "SHELF
REGISTRATION STATEMENT" and, together with the Exchange Offer
Registration Statement and any Market-Making Registration Statement (as
defined below), a "REGISTRATION STATEMENT") on an appropriate form
under the Securities Act relating to the offer and sale of the Transfer
Restricted Securities 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
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) Not less than 30 days prior to the Effective Time, mail
the Notice and Questionnaire to the holders of Transfer Restricted
Securities; no Holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement as of the Effective
Time, and no Holder shall be entitled to use the prospectus forming a
part thereof for resales of Transfer Restricted Securities at any time,
unless such Holder has returned a completed and signed Notice and
Questionnaire to the Company by the deadline for response set forth
therein; provided, however, Holders of Transfer Restricted Securities
shall have at least 28 days from the date on which the Notice and
Questionnaire is first mailed to such Holders to return a completed and
signed Notice and Questionnaire to the Company.
(c) After the Effective Time, upon the request of any Holder
of Transfer Restricted Securities that is not then an Electing Holder,
promptly send a Notice and Questionnaire to such Holder; provided,
however, that the Company shall not be required to take any action to
name such Holder as a selling securityholder in the Shelf Registration
Statement or to enable such Holder to use the prospectus forming a part
thereof for resales of Transfer Restricted Securities until such Holder
has returned a completed and signed Notice and Questionnaire to the
Company.
(d) As soon as practicable prepare and file with the
Commission such amendments and supplements to such Shelf Registration
Statement and the prospectus included therein as may be reasonably
necessary to effect and maintain the effectiveness of such Shelf
Registration Statement for the benefit of all Electing Holders for the
period specified in Section 2(e) hereof and as may be required by the
applicable rules and regulations of the Commission and the instructions
to the form of such Shelf Registration Statement, and, if required,
cause any such amendments to be declared effective by the Commission,
and furnish to each of the Electing Holders such copies as each
Electing Holder may reasonably request of any such supplement or
amendment simultaneously with or prior to its being used or filed with
the Commission.
(e) 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 Securities, for a period of two years (or for
such longer period if extended pursuant to Section 3(j) below) from the
date of its effectiveness 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). 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
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of Securities covered thereby not being able to offer and sell such
Securities during that period, unless such action is required by
applicable law.
(f) 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 each 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 light of the circumstances under which they were made, not
misleading.
(g) For purposes of this Agreement, the following terms shall
have following respective meanings:
"Effective Time" with respect to a Shelf Registration
Statement shall mean the time and date as of which the Commission
declares the Shelf Registration Statement effective or as of which the
Shelf Registration Statement otherwise become effective.
"Electing Holder" shall mean any Holder of Transfer Restricted
Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Section 2(b) hereof.
"Notice and Questionnaire" means a Selling Securityholder
Notice and Questionnaire substantially in the form of Exhibit A
attached hereto.
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 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 Registered Exchange
Offer or the Shelf Registration Statement, the Company shall use its
reasonable 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 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
of the Commission 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 of the Commission 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 of the Commission; (v) in the case of a Shelf Registration
Statement, include the names of the Electing Holders who propose to
sell Securities pursuant to the Shelf Registration Statement as selling
securityholders; and (vi) in the event the Company receives a Notice
and Questionnaire from an Electing Holder after the Effective Time,
promptly take all necessary actions to name such Electing Holder as a
selling securityholder in the Shelf Registration Statement and, in the
event a post-effective amendment to the Shelf Registration Statement is
required, cause such amendment to be declared effective within 20
business days of receipt of such Notice and Questionnaire.
(b) The Company shall give written notice to the Initial
Purchasers, the Holders of the Securities and any Participating
Broker-Dealer from whom the Company has received prior
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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 Company or its 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
(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, upon request, 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), unless such exhibits are otherwise publicly available.
(e) The Company 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 Company 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 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
Securities in connection with the offering and sale of the Securities
covered by the prospectus, or any amendment or supplement thereto,
included in the Shelf Registration Statement.
(g) The Company 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
Company consents, 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 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 Company 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
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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 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.
(i) The Company 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 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 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 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 Company notifies 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(e) 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 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
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) The Company 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 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 45 days after the end of a 12-month period (or 90
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 Securities to be
sold pursuant to the Shelf Registration Statement to furnish to the
Company such information regarding the Holder and the distribution of
the Securities 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 Securities 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
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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 Company 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 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 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 5 hereof.
(q) In the case of any Shelf Registration, the Company, if
requested by any Holder of Securities covered thereby, shall cause (i)
its counsel to deliver an opinion and updates thereof relating to the
Securities in customary form 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
the Company and its subsidiaries; the qualification of the Company 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 Securities; the absence of material
legal or governmental proceedings involving the Company 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 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 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)
its officers to execute and deliver all customary documents and
certificates and updates thereof requested by any underwriters of the
applicable Securities and (iii) its 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 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 Registered Exchange Offer, if requested
by any Initial Purchaser or any known Participating Broker-Dealer, the
Company shall cause (i) its 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) its independent public accountants and
the independent public accountants with respect to any other entity for
which financial information is provided in the Registration Statement
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)
and (f) 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 Company (or to such other Person as directed by the Company) in
exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, the Company shall xxxx, or caused to be
marked, on the Initial Securities so
9
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 Company will use its reasonable best efforts to (a) if
the Initial Securities have been rated prior to the initial sale of
such Initial Securities, confirm such ratings will apply to the
Securities covered by a Registration Statement, or (b) if the Initial
Securities were not previously rated, cause the Securities 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 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 a broker or dealer in respect thereof, or
otherwise, the Company 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 6 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.
(v) The Company shall use its reasonable best efforts to take
all other steps necessary to effect the registration of the Securities
covered by a Registration Statement contemplated hereby.
4. Market-Making. (a) For so long as any of the Initial Securities,
Exchange Securities or Private Exchange Securities are outstanding and JPMorgan
(in such capacity, the "Market-Maker") or any of its affiliates (as defined in
the rules and regulations of the Commission) owns any equity securities of the
Company, the Guarantors or any of their affiliates and proposes to make a market
in the Initial Securities, Exchange Securities or Private Exchange Securities as
part of its business in the ordinary course, the following provisions shall
apply for the sole benefit of the Market Maker:
(i) The Company and the Guarantors shall (A) on the date that
the Exchange Offer Registration Statement is filed with the Commission,
file a registration statement (the "Market-Making Registration
Statement") (which may be the Exchange Offer Registration Statement or
the Shelf Registration Statement if permitted by the rules and
regulations of the Commission) and use their best efforts to cause such
Market-Making Registration Statement to be declared effective by the
Commission on or prior to the consummation of the Exchange Offer; (B)
periodically amend such Market-Making Registration Statement so that
the information contained therein complies with the requirements of
Section 10(a) under the Securities Act; (C) amend the Market-Making
Registration Statement or supplement the related prospectus when
necessary to reflect any material changes in the information provided
therein; and (D) amend the Market-Making Registration Statement when
required to do so in order to comply with Section 10(a)(3) of the
Securities Act; provided, however, that (1) prior to filing the
Market-Making Registration Statement, any amendment thereto or any
supplement to the related prospectus, the Company will furnish to the
Market-Maker copies of all such documents proposed to be filed, which
documents will be subject to the review of the Market-Maker and its
counsel, (2) the Company and the Guarantors will not file the
Market-Making Registration Statement, any amendment thereto or any
supplement to the related prospectus to which the Market-Maker and its
counsel shall reasonably object unless the Company is advised by
counsel that such Market-Making Registration Statement, amendment or
supplement is required to be filed and (3) the Company will provide the
Market-Maker and its counsel with copies of the Market-Making
Registration Statement and each amendment and supplement filed.
(ii) The Company shall notify the Market-Maker and, if
requested by the Market-Maker, confirm such advice in writing, (A) when
any post-effective amendment to the Market-Making Registration
Statement or any amendment or supplement to the related prospectus has
been filed, and, with respect to any post-effective amendment, when the
same has become effective; (B) of any request by the Commission for any
post-effective amendment to the Market-Making
10
Registration Statement, any supplement or amendment to the related
prospectus or for additional information; (C) the issuance by the
Commission of any stop order suspending the effectiveness of the
Market-Making Registration Statement or the initiation of any
proceedings for that purpose; (D) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Initial Securities, Exchange Securities or Private Exchange Securities
for sale in any jurisdiction or the initiation or threatening of any
proceedings for such purpose; (E) of the happening of any event that
makes any statement made in the Market-Making Registration Statement,
the related prospectus or any amendment or supplement thereto untrue or
that requires the making of any changes in the Market-Making
Registration Statement, such prospectus or any amendment or supplement
thereto, in order to make the statements therein not misleading; and
(F) of any advice from a nationally recognized statistical rating
organization that such organization has placed the Company under
surveillance or review with negative implications or has determined to
downgrade the rating of the Initial Securities, Exchange Securities or
Private Exchange Securities or any other debt obligation of the Company
whether or not such downgrade shall have been publicly announced.
(iii) If any event contemplated by Section 4(a)(ii)(B) through
(E) occurs during the period for which the Company and the Guarantors
are required to maintain an effective Market-Making Registration
Statement, the Company and the Guarantors shall promptly prepare and
file with the Commission a post-effective amendment to the
Market-Making Registration Statement or a supplement to the related
prospectus or file any other required document so that the prospectus
will not include 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.
(iv) In the event of the issuance of any stop order suspending
the effectiveness of the Market-Making Registration Statement or of any
order suspending the qualification of the Initial Securities, Exchange
Securities or Private Exchange Securities for sale in any jurisdiction,
the Company and the Guarantors shall use promptly their reasonable best
efforts to obtain the withdrawal of such order and suspension.
(v) The Company and the Guarantors shall furnish to the
Market-Maker, without charge, (i) at least one conformed copy of the
Market-Making Registration Statement and any post-effective amendment
thereto; and (ii) as many copies of the related prospectus and any
amendment or supplement thereto as the Market-Maker may reasonably
request.
(vi) The Company and the Guarantors shall consent to the use
of the prospectus contained in the Market-Making Registration Statement
or any amendment or supplement thereto by the Market-Maker in
connection with its market making activities.
(vii) Notwithstanding the foregoing provisions of this Section
4, the Company and the Guarantors may for valid business reasons,
including without limitation, a potential acquisition, divestiture of
assets or other material corporate transaction, issue a notice that the
Market-Making Registration Statement is no longer effective or the
prospectus included therein is no longer usable for offers and sales of
Initial Securities, Exchange Securities or Private Exchange Securities
and may issue any notice suspending use of the Market-Making
Registration Statement required under applicable securities laws to be
issued; provided, however, that the use of the Market-Making
Registration Statement shall not be suspended for more than 60 days in
the aggregate in any consecutive 12 month period. The Market-Maker
agrees that upon receipt of any notice from the Company pursuant to
this Section 4(a)(vii), it will discontinue use of the Market-Making
Registration Statement until receipt of copies of the supplemented or
amended prospectus relating thereto or until advised in writing by the
Company that the use of the Market-Making Registration Statement may be
resumed.
(b) In connection with the Market-Making Registration
Statement, the Company shall (i) make reasonably available for inspection by a
representative of, and counsel acting for, the Market-Maker all relevant
financial and other records, pertinent corporate documents and properties of the
Company and its subsidiaries and (ii) use its reasonable best efforts to have
its officers, directors, employees, accountants and counsel supply all relevant
information reasonably requested by such representative or counsel or the
Market-Maker.
(c) Prior to the effective date of the Market-Making
Registration Statement, the Company and the Guarantors will use their reasonable
best efforts to register or qualify Securities for offer and sale under the
securities or blue sky laws of such jurisdictions as the Market-Maker reasonably
11
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 Initial
Securities, Exchange Securities or Private Exchange Securities covered by the
Market-Making Registration Statement; provided, however, that the Company and
the Guarantors will not be required to qualify generally to do business in any
jurisdiction where they are not then so qualified or to take any action which
would subject them to general service of process or to taxation in any such
jurisdiction where they are not then so subject.
(d) The Company and the Guarantors represent that the
Market-Making Registration Statement, any post-effective amendments thereto, any
amendments or supplements to the related prospectus and any documents filed by
them under the Exchange Act will, when they become effective or are filed with
the Commission, as the case may be, conform in all respects to the requirements
of the Securities Act and the Exchange Act and the rules and regulations of the
Commission thereunder and will not, as of the effective date of such
Market-Making Registration Statement or post-effective amendments and as of the
filing date of amendments or supplements to such prospectus or filings under the
Exchange Act, 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 in light of the circumstances under which they were made not misleading;
provided, however, that no representation or warranty is made as to information
contained in or omitted from the Market-Making Registration Statement or the
related prospectus in reliance upon and in conformity with written information
furnished to the Company by the Market-Maker specifically for inclusion therein,
which information the parties hereto agree will be limited to the statements
concerning the Market-Making activities of the Market-Maker to be set forth on
the cover page and in the "Plan of Distribution" section of the prospectus (the
"Market-Maker's Information").
(e) At the time of effectiveness of the Market-Making
Registration Statement (unless it is the same as the time of effectiveness of
the Exchange Offer Registration Statement) and concurrently with each time the
Market-Making Registration Statement or the related prospectus shall be amended
or such prospectus shall be supplemented, the Company shall (if requested in
writing by the Market-Maker) furnish the Market-Maker and its counsel with a
certificate of its Chairman of the Board of Directors or Chief Financial Officer
to the effect that:
(i) the Market-Making Registration Statement has been declared
effective; (ii) in the case of an amendment or supplement, such
amendment has become effective under the Securities Act as of the date
and time specified in such certificate, if applicable; if required,
such amendment or supplement to the prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b) under the
Securities Act specified in such certificate on the date specified
therein; (iii) to the knowledge of such officers, no stop order
suspending the effectiveness of the Market-Making Registration
Statement has been issued and no proceeding for that purpose is pending
or threatened by the Commission; (iv) such officers have carefully
examined the Market-Making Registration Statement and the prospectus
(and, in the case of an amendment or supplement, such amendment or
supplement) and as of the date of such Market-Making Registration
Statement, amendment or supplement, as applicable, the Market-Making
Registration Statement and the prospectus, as amended or supplemented,
if applicable, did not include any untrue statement of a material fact
and did not omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading.
(f) At the time of effectiveness of the Market-Making
Registration Statement (unless it is the same as the time of effectiveness of
the Exchange Offer Registration Statement) and concurrently with each time the
Market-Making Registration Statement or the related prospectus shall be amended
or such prospectus shall be supplemented, the Company shall (if requested in
writing by the Market-Maker) furnish the Market-Maker and its counsel with the
written opinion of counsel for the Company satisfactory to the Market-Maker to
the effect that:
(i) the Market-Making Registration Statement has been declared
effective; (ii) in the case of an amendment or supplement, such
amendment has become effective under the Securities Act as of the date
and time specified in such opinion, if applicable; if required, such
amendment or supplement to the prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) under the Securities Act
specified in such opinion on the date specified therein; (iii) to the
knowledge of such counsel, no stop order suspending the effectiveness
of the Market-Making Registration Statement has been issued and no
proceeding for that purpose is pending or threatened by the Commission;
and (iv) such counsel has reviewed the Market-Making Registration
Statement and the prospectus (and, in the case of an amendment or
supplement, such amendment or supplement)
12
and participated with officers of the Company and independent public
accountants for the Company in the preparation of such Market-Making
Registration Statement and prospectus (and, in the case of an amendment
or supplement, such amendment or supplement) and has no reason to
believe that (except for the financial statements and other financial
and statistical data contained therein as to which no belief is
required) as of the date of such Market-Making Registration Statement,
amendment or supplement, as applicable, the Market-Making Registration
Statement and the prospectus, as amended or supplemented, if
applicable, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(g) At the time of effectiveness of the Market-Making
Registration Statement (unless it is the same as the time of effectiveness of
the Exchange Offer Registration Statement) and concurrently with each time the
Market-Making Registration Statement or the related prospectus shall be amended
or such prospectus shall be supplemented to include audited annual financial
information, the Company shall (if requested in writing by the Market-Maker)
furnish the Market-Maker and its counsel with a letter of KPMG LLP (or other
independent public accountants for the Company or the Guarantors of nationally
recognized standing) in form satisfactory to the Market-Maker, addressed to the
Market-Maker and dated the date of delivery of such letter, (i) confirming that
they are independent public accountants within the meaning of the Securities Act
and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the Commission
and (ii) in all other respects substantially in the form of the letter delivered
to the Initial Purchasers pursuant to Section 6(a) of the Purchase Agreement
(after giving effect, if applicable, to any change in status of the Parent
Guarantor as a "public entity" within the meaning of Statement of Auditing
Standards No. 7) with, in the case of an amendment or supplement to include
audited financial information, such changes as may be necessary to reflect the
amended or supplemented financial information.
(h) The Company and the Guarantors, on the one hand, and the
Market-Maker, on the other hand, hereby agree to indemnify each other and, if
applicable, contribute to the other in accordance with Section 6 of this
Agreement.
(i) The Company will comply with the provisions of this
Section 4 at its own expense and will reimburse the Market-Maker for its
expenses associated with this Section 4 (including reasonable fees of counsel).
(j) The agreements contained in this Section 4 and the
representations, warranties and agreements contained in this Agreement shall
survive all offers and sales of the Securities 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.
(k) For purposes of this Section 4, any reference to the terms
"amend", "amendment" or "supplement" with respect to the Market-Making
Registration Statement or the prospectus contained therein shall be deemed to
refer to and include the filing under the Exchange Act of any document deemed to
be incorporated therein by reference.
5. Registration Expenses.
(a) All expenses incident to the Company's performance of and
compliance with this Agreement will be borne by the Company, regardless
of whether a Registration Statement is ever filed or becomes effective,
including without limitation;
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal
securities and state "blue sky" or securities laws;
(iii) all expenses of printing (including printing
certificates for the Securities to be issued in the Registered
Exchange Offer and the Private Exchange and printing of
Prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the
Company;
(v) all application and filing fees in connection
with listing the Exchange Securities on a national securities
exchange or automated quotation system pursuant to the
requirements hereof; and
13
(vi) all fees and disbursements of independent
certified public accountants of the Company (including the
expenses of any special audit and comfort letters required by
or incident to such performance).
The Company will bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any
annual audit and the fees and expenses of any person, including special
experts, retained by the Company.
(b) In connection with any Registration Statement required by
this Agreement, the Company will reimburse the Initial Purchasers and
the Holders of Transfer Restricted Securities who are tendering Initial
Securities in the Registered Exchange Offer and/or selling or reselling
Securities pursuant to the "Plan of Distribution" contained in the
Exchange Offer Registration Statement or the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements of
not more than one counsel, who shall be Cravath, Swaine & Xxxxx unless
another firm shall be chosen by the Holders of a majority in principal
amount of the Transfer Restricted Securities for whose benefit such
Registration Statement is being prepared.
6. Indemnification.
(a) The Company and the Guarantors jointly and severally agree
to indemnify and hold harmless (x) each Holder of the Securities
(including the Market-Maker), 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 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 and the Guarantors
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 thereto or in any preliminary prospectus relating to a Shelf
Registration in reliance upon and in conformity with written
information pertaining to such Holder or Market-Maker and furnished to
the Company by or on behalf of such Holder or Market-Maker, as may be
the case, 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 a Shelf
Registration Statement, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Holder (including
the Market-Maker) 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 Company had previously furnished copies thereof to
such Holder or Participating Broker-Dealer; and (y) the Market-Maker
from and against any and all losses, claims, damages and liabilities
(including, without limitation, legal fees and other expenses incurred
in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several
that arise out of, or are based upon, any breach of the Company or the
Guarantors of their representations, warranties and agreements
contained in Section 4 of this Agreement; 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 and the Guarantors jointly and severally shall also indemnify
underwriters, their officers and directors and each person who controls
such underwriters within the meaning of the Securities
14
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 (including the Market-Maker
in connection with any prospectus delivery by the Market-Maker),
severally and not jointly, will indemnify and hold harmless the Company
and each person, if any, who controls the Company 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 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 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 or Market-Maker and
furnished to the Company by or on behalf of such Holder or
Market-Maker, as the case may be, 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.
Notwithstanding any other provision of this Section 6(b), the Holders
of the Securities (including the Market-Maker) shall not be liable for
any indemnity claims hereunder 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 or prospectus 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, nor shall the Market-Maker be required to contribute
any amount of its commission from the market-making transactions at
issue. 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 6 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 6, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from any liability that it may have under
this Section 6 except to the extent it has been materially prejudiced
through the forfeiture of substantive rights and defenses by such
failure, provided that the failure to notify the indemnifying party
will not, in any event, relieve the indemnifying party from any
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 its
election so to assume the defense thereof the indemnifying party will
not be liable to such indemnified party under this Section 6 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the
defense thereof. In any such proceeding, any Indemnified Party shall
have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnifying Party unless
(i) the Indemnifying Party and the Indemnified Party shall have
mutually agreed to the contrary; (ii) the Indemnifying Party has failed
within a reasonable time to retain counsel reasonably satisfactory to
the Indemnified Party; (iii) the Indemnified Party shall have
reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the
Indemnifying Party; or (iv) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Party
and the Indemnified Party and representation of both parties by the
same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood and agreed that the
Indemnifying Party shall not, in connection with any proceeding or
related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Parties, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate
firm for any Purchaser, its affiliates, directors and officers and any
control persons of such Purchaser shall be designated in writing by
CSFB and any such separate
15
firm for the Company, the Guarantor and any control persons of the
Company and the Guarantor shall be designated in writing by the Company
and the Guarantor and any such separate firm for the Market Maker shall
be designated in writing by the Market Maker. 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 (i) includes an unconditional release of such indemnified
party from all liability on any claims that are the subject matter of
such action, and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 6 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 in such
proportion as is appropriate to reflect 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 Company
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 6(d), the Holders of the Securities
(including the Market-Maker) 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 or prospectus 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, nor shall the
Market-Maker be required to contribute any amount of its commission
from the market-making transactions at issue. 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 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 Company
within the meaning of the Securities Act or the Exchange Act shall have
the same rights to contribution as the Company.
(e) The agreements contained in this Section 6 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.
7. Additional Interest Under Certain Circumstances.
(a) Additional interest (the "ADDITIONAL INTEREST") with
respect to the Securities shall be assessed as follows if any of the
following events occur (each such event in clauses (i) through (iv)
below being herein called a "REGISTRATION DEFAULT"):
(i) any Registration Statement required by this
Agreement is not filed with the Commission on or prior to the
applicable Filing Deadline;
(ii) any Registration Statement required by this
Agreement is not declared effective by the Commission on or
prior to the applicable Effectiveness Deadline;
(iii) the Registered Exchange Offer has not been
consummated on or prior to the Consummation Deadline; or
(iv) any Registration Statement required by this
Agreement has been declared effective by the Commission but
(A) such Registration Statement thereafter ceases to be
effective or (B) such Registration Statement or the related
prospectus ceases to be usable
16
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 and, in the case of any such
amendments or supplements related solely to naming additional
Electing Holders as selling securityholders under a Shelf
Registration Statement, such amendments or supplements are not
filed and declared effective by the Commission within 20
business days of the Company's receipt of the applicable
Notice and Questionnaire.
Each of the foregoing will constitute a Registration Default
whatever the reason for any such event and whether it is voluntary or
involuntary or is beyond the control of the Company or pursuant to
operation of law or as a result of any action or inaction by the
Commission.
Additional Interest shall accrue on the 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 (the "ADDITIONAL INTEREST
RATE") for the first 90-day period immediately following the occurrence
of such Registration Default. The Additional Interest Rate shall
increase by an additional 0.50% per annum with respect to each
subsequent 90-day period until the date on which all Registration
Defaults have been cured, up to a maximum Additional Interest Rate of
1.0% per annum. Notwithstanding the foregoing, Additional Interest
shall not accrue on any Security that is no longer a Transfer
Restricted Security.
(b) A Registration Default referred to in Section 7(a)(iv)
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 Company 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 Company that would need to be described in such Shelf Registration
Statement or the related prospectus and (ii) in the case of clause (y),
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 30
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 Section
7(a) will be payable in cash on the regular interest payment dates with
respect to the Securities. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest Rate by
the principal amount of the Securities and further 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 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 an Initial Security
for an Exchange Security, the date on which such Exchange Security 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
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 Security 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.
8. Rules 144 and 144A. The Company shall use its reasonable 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
Securities or the Market-Maker, make publicly available other information so
long as necessary to permit sales of
17
their securities pursuant to Rules 144 and 144A. The Company covenants that it
will take such further action as any Holder of Securities or the Market-Maker
may reasonably request, all to the extent required from time to time to enable
such Holder or the Market-Maker to sell 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 Company will
provide a copy of this Agreement to prospective purchasers of Initial Securities
identified to the Company by the Initial Purchasers or the Market-Maker upon
request. Upon the request of any Holder of Initial Securities or the
Market-Maker, the Company shall deliver to such Holder or the Market-Maker, as
the case may be, a written statement as to whether it has complied with such
requirements. Notwithstanding the foregoing, nothing in this Section 8 shall be
deemed to require the Company to register any of its securities pursuant to the
Exchange Act.
9. 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.
10. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any
failure by the Company to comply with its obligations under Section 1
and 2 hereof may result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Sections 1 and 2
hereof. The Company further agrees to waive the defense in any action
for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not on or
after the date of this Agreement enter into any agreement with respect
to its securities that is inconsistent with the rights granted to the
Holders or the Market-Maker in this Agreement or otherwise conflicts
with the provisions hereof. The rights granted to the Holders hereunder
do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's securities or the
Market-Maker under any agreement in effect on the date hereof.
(c) 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 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 or, with respect to
Section 4, the written consent of the Market-Maker. Without the consent
of the Holder of each Security, however, no modification may change the
provisions relating to the payment of Additional Interest.
(d) 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 or the
Market-Maker, at the most current address given by such Holder
or the Market-Maker to the Company.
(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:
Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx III
(3) if to the Company, at its address as follows:
Brand Services, Inc.
00000 Xxxxx Xxxxx Xxxxxxx 00
Xxxxx 000
Xxxxxxxxxxxx, Xx. 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
with a copy to:
Mayer, Brown, Xxxx & Maw
0000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Xxxx Xxxxxxxxxxxxx
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.
(e) Third Party Beneficiaries. The Holders shall be third
party beneficiaries to the agreements made hereunder between the
Company, on the one hand, and the Initial Purchasers, on the other
hand, and shall have the right to enforce such agreements directly to
the extent they may deem such enforcement necessary or advisable to
protect their rights or the rights of Holders hereunder.
(f) Successors and Assigns. This Agreement shall be binding
upon the Company and its successors and assigns.
(g) 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.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(i) 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.
(j) 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.
(k) Securities Held by the Company. Whenever the consent or
approval of Holders of a specified percentage of principal amount of
Securities is required hereunder, Securities held by the Company or its
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.
19
(l) Submission to Jurisdiction; Waiver of Immunities. By the
execution and delivery of this Agreement, the Company submits to the
nonexclusive jurisdiction of any federal or state court in the State of
New York in any such suit or proceeding arising out of or relating to
this Agreement that may be instituted in any such court or brought
under federal or state securities laws. To the extent that the Company
may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service of notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, it hereby irrevocably waives such
immunity in respect of this Agreement, to the fullest extent permitted
by law.
20
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 Issuer, and the Guarantors in
accordance with its terms.
Very truly yours,
BRAND SERVICES, INC.
by
--------------------------------
Name:
Title:
BRAND ACQUISITION CORP.
by
--------------------------------
Name:
Title:
BRAND SCAFFOLD SERVICES, INC.,
by
--------------------------------
Name:
Title:
BRAND SCAFFOLD RENTAL &
ERECTION, INC.,
by
--------------------------------
Name:
Title:
BRAND SCAFFOLD BUILDERS, INC.,
by
--------------------------------
Name:
Title:
SCAFFOLD-JAX, INC.,
by
--------------------------------
Name:
Title:
21
BRAND SCAFFOLD ERECTORS, INC.,
by
--------------------------------
Name:
Title:
SCAFFOLD BUILDING SERVICES, INC.,
by
--------------------------------
Name:
Title:
BRAND SPECIAL EVENTS, INC.,
by
--------------------------------
Name:
Title:
XXXX XXXXX GRANDSTANDS, INC.,
by
--------------------------------
Name:
Title:
KWIKRIG, INC.,
by
--------------------------------
Name:
Title:
BRAND STAFFING SERVICES, INC.,
by
--------------------------------
Name:
Title:
SKYVIEW STAFFING, INC.,
by
--------------------------------
Name:
Title:
XXXXXXXXX STAFFING, INC.,
by
--------------------------------
Name:
Title:
22
BRANDCRAFT LABOR, INC.,
by
--------------------------------
Name:
Title:
SKYVIEW SAFETY SERVICES, INC.,
by
--------------------------------
Name:
Title:
23
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
X.X. XXXXXX SECURITIES INC.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
by
-----------------------------------
Name:
Title:
By: X.X. XXXXXX SECURITIES INC.
by
-----------------------------------
Name:
Title:
ANNEX A
Each broker-dealer that receives Exchange Securities for its 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 Company has agreed
that, for a period of 180 days after the consummation of the Registered Exchange
Offer (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 its own
account 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, 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 its 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 Company has
agreed that, for a period of 180 days after the consummation of the Registered
Exchange Offer, 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 , 200 , all dealers effecting transactions in the
Exchange Securities may be required to deliver a prospectus.(1)
The Company 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 its 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 consummation of the Registered
Exchange, the Company 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 Company has 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.
--------
(1) In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the inside front cover page of the Exchange Offer prospectus below the
Table of Contents.
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.
EXHIBIT A
BRAND SERVICES, INC.
FORM OF SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
(DATE OF MAILING)
URGENT: IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE:
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the 12% Senior Subordinated Notes due 2012
(the "Securities") of Brand Services, Inc. (the "Company") are held.
The Company is in the process of registering the Securities under the Securities
Act of 1933, as amended, for resale by the beneficial owners thereof. In order
to have their Securities included in the registration statement, beneficial
owners must complete and return the enclosed Selling Securityholder Notice and
Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the
enclosed materials as soon as possible as their rights to have the Securities
included in the registration statement depend upon their returning the Notice
and Questionnaire by . Please forward a copy of the enclosed documents
to each beneficial owner that holds interests in the Securities through you. If
you require more copies of the enclosed materials or have any questions
pertaining to this matter, please contact .
A-1
SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned holder (the "selling securityholder") of 12%
Senior Subordinated Notes Due 2012 (the "registrable securities") of Brand
Services, Inc. (the "Company"), understands that the Company, its parent company
and certain of its subsidiaries have filed or intend to file with the Securities
and Exchange Commission (the "SEC") a registration statement on an appropriate
form for the registration of the resale under Rule 415 of the Securities Act of
1933, as amended (the "Securities Act"), in accordance with the terms of the
Registration Rights Agreement dated as of the issue date of the registrable
securities, among the Company, the guarantors listed on the signature page
thereto and the initial purchasers party thereto (the "Registration Rights
Agreement"). A copy of the Registration Rights Agreement is available from the
Company upon request at the address set forth above.
Each beneficial owner of registrable securities is entitled to
the benefits of the Registration Rights Agreement. In order to sell or otherwise
dispose of any registrable securities pursuant to the shelf registration
statement (or any additional registration statement related thereto), a
beneficial owner of registrable securities generally will be required to be
named as a selling securityholder in the related prospectus, deliver a
prospectus to purchasers of registrable securities and be bound by those
provisions of the Registration Rights Agreement applicable to such beneficial
owner (including certain indemnification provisions, as described below).
Beneficial owners are encouraged to complete and deliver this Notice and
Questionnaire prior to the effectiveness of the shelf registration statement so
that such beneficial owners may be named as selling securityholders in the
related prospectus at the time of effectiveness. Any beneficial owner of
registrable securities wishing to include its registrable securities must
deliver to the Company a properly completed and signed copy of this Notice and
Questionnaire. The Company has agreed to pay additional interest pursuant to the
Registration Rights Agreement under certain circumstances as set forth therein.
Certain legal consequences arise from being named as a selling
securityholder in the shelf registration statement (or any additional
registration statement related thereto) and the related prospectus. Accordingly,
holders and beneficial owners of registrable securities are advised to consult
their own securities law counsel regarding the consequences of being named or
not being named as a selling securityholder in the shelf registration statement
(or any additional registration statement related thereto) and the related
prospectus.
NOTICE
The undersigned selling securityholder hereby gives notice to
the Company of its intention to sell or otherwise dispose of registrable
securities beneficially owned by it and listed below in Item 3 (unless otherwise
specified under Item 3) pursuant to the shelf registration statement (or any
additional registration statement related thereto). The undersigned, by signing
and returning this Notice and Questionnaire, understands and agrees that it will
be bound by the terms and conditions of this Notice and Questionnaire and the
Registration Rights Agreement.
The undersigned hereby provides the following information to
the Company and represents and warrants that such information is accurate and
complete.
A-2
QUESTIONNAIRE
1. (a) Full legal name of selling securityholder:
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(b) Full legal name of registered holder (if not the same as (a) above)
through which registrable securities listed in (3) below are held:
---------------------------------------------------------------------
---------------------------------------------------------------------
(c) Full legal name of The Depository Trust Company participant (if
applicable and if not the same as (b) above) through which
registrable securities listed in (3) below are held:
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2. Address for notices to selling securityholder:
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---------------------------------------------------------------------
---------------------------------------------------------------------
Telephone (including area code):
-------------------------------------
Fax (including area code):
-------------------------------------------
Contact Person:
------------------------------------------------------
3. Beneficial ownership of registrable securities:
(a) Type and Principal Amount of registrable securities beneficially
owned:
---------------------------------------------------------------------
---------------------------------------------------------------------
(b) CUSIP No(s). of such registrable securities beneficially owned:
---------------------------------------------------------------------
---------------------------------------------------------------------
4. Beneficial ownership of the securities of the Company owned by the
selling securityholder:
Except as set forth below in this Item (4); the undersigned is not
the beneficial or registered owner of any securities of the Company
other than registrable securities listed above in Item (3).
A-3
(a) Type and Amount of other securities of the Company beneficially owned
by the selling securityholder:
---------------------------------------------------------------------
---------------------------------------------------------------------
(b) CUSIP No(s). of such other securities of the Company beneficially
owned:
---------------------------------------------------------------------
---------------------------------------------------------------------
(c) The amount securities to be offered for the security holder's
account:
---------------------------------------------------------------------
---------------------------------------------------------------------
(d) The amount and (if one percent or more) the percentage of the class
to be owned by such selling securityholder after completion of the
offering:
---------------------------------------------------------------------
---------------------------------------------------------------------
5. RELATIONSHIP WITH THE COMPANY:
Except as set forth below, neither the undersigned nor any of its
affiliates (as defined below), officers, directors or principal
equity holders (5% or more) has held any position or office or has
had any other material relationship within the past 3 years with the
Company or any of its predecessors or affiliates.
State any exception here:
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---------------------------------------------------------------------
---------------------------------------------------------------------
6. Plan of distribution:
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the registrable securities listed
above in Item (3) pursuant to the shelf registration statement (or
any additional registration statement related thereto) only as
follows (if at all). Such registrable securities may be sold from
time to time directly by the undersigned or, alternatively, through
underwriters, in accordance with the Registration Rights Agreement,
broker-dealers or agents. If the registrable securities are sold
through underwriters or broker-dealers, the selling securityholder
will be responsible for underwriting discounts or commissions or
agent's commissions. Such registrable securities may be sold in one
or more transactions at fixed prices, at
A-4
prevailing market prices at the time of sale, at varying prices
determined at the time of sale, or at negotiated prices. Such sales
may be effected in transactions (which may involve block
transactions) (i) on any national securities exchange or quotation
service on which the registrable securities may be listed or quoted
at the time of sale, (ii) in the over-the-counter market, (iii)
otherwise than on such exchanges or services or in the
over-the-counter market, or (iv) through the writing of options. In
connection with sales of the registrable securities or otherwise, the
undersigned may enter into hedging transactions with broker-dealers,
which may in turn engage in short sales of the registrable securities
and deliver registrable securities to close out such short positions,
or loan or pledge registrable securities to broker-dealers that in
turn may sell such securities.
State any exceptions here:
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---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
7. NASD affiliates and Relationships with Broker-Dealers:
Except as set forth below, the undersigned is not a broker or dealer
(as such terms are defined in the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or an "affiliate" (see definition
above) of any broker or dealer.
State any exceptions here:
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If the undersigned is not a broker-dealer but is an affiliate of a
broker-dealer, please check the appropriate box next to each
statement if the following statements are true:
[ ] the undersigned has acquired the registrable
securities in the ordinary course of its business
[ ] the undersigned did not have any arrangement or
agreement with any person with respect to the
distribution of the registrable securities at the
time that it acquired the registrable securities
The undersigned acknowledges, agrees and understands that if (a) the
undersigned is a broker or dealer or (b) unless both of the above
boxes are checked, the undersigned is an affiliate of a broker or
dealer, the undersigned may need to be identified as an "underwriter"
in the shelf registration statement (or any additional registration
statement related thereto) and the related prospectus.
A-5
List the name and address of any NASD affiliate and briefly describe
the nature of the relationship and any arrangements relating to the
sale of any of the registrable securities:
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The undersigned acknowledges that it understands its
obligation to comply with the provisions of the Securities Act and the Exchange
Act and the rules thereunder relating to prospectus delivery requirements, stock
manipulation, particularly Regulation M thereunder (or any successor rules or
regulations), in connection with any offering of registrable securities pursuant
to the shelf registration statement, or fail to take such action. The
undersigned agrees that neither it nor any person acting on its behalf will
engage in any transaction, or fail to take such action, in violation of such
provisions.
The selling securityholder hereby acknowledges its obligations
under the Registration Rights Agreement to indemnify and hold harmless certain
persons as set forth therein.
Pursuant to the Registration Rights Agreement, the Company has
agreed under certain circumstances to indemnify the selling securityholders
against certain liabilities.
In accordance with the undersigned's obligation under the
Registration Rights Agreement to provide such information as may be required by
law for inclusion in the shelf registration statement (or any additional
registration statement related thereto) and the related prospectus, the
undersigned agrees to promptly notify the company of any inaccuracies or changes
in the information provided herein that may occur subsequent to the date hereof
at any time while the shelf registration statement (or any additional
registration statement related thereto) and the related prospectus remain
effective. All notices hereunder and pursuant to the registration rights
agreement shall be made in writing at the address set forth below.
A-6
By signing below, the undersigned consents to the disclosure
of the information contained herein in its answers to items (1) through (7)
above and the inclusion of such information in the shelf registration statement
(or any additional registration statement related thereto) and the related
prospectus. The undersigned understands that such information will be relied
upon by the Company in connection with the preparation or amendment of the shelf
registration statement (or any additional registration statement related
thereto) and the related prospectus.
IN WITNESS WHEREOF, the undersigned, by authority duly given,
has caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Beneficial Owner
By:
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Name:
Title:
Dated:
A-7
