EXHIBIT 4.5
HOMEBASE, INC.
53% CONVERTIBLE SUBORDINATED NOTES DUE NOVEMBER 1, 2004
REGISTRATION RIGHTS AGREEMENT
November 10, 1997
Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
HomeBase, Inc., a Delaware corporation (the "Company"), proposes to issue
and sell to the Purchaser (as defined herein), upon the terms set forth in a
purchase agreement dated November 10, 1997 (the "Purchase Agreement") between
the Purchaser and the Company, its ___% Convertible Subordinated Notes Due
November 1, 2004 (the "Securities"). As an inducement to the Purchaser to enter
into the Purchase Agreement and in satisfaction of a condition to the
obligations of the Purchaser thereunder, the Company agrees with the Purchaser,
(i) for the benefit of the Purchaser and (ii) for the benefit of the holders (as
defined herein) from time to time of the Securities and the Common Stock, par
value $1.00 per share (the "Common Stock"), of the Company issuable upon
conversion of the Securities (collectively, the "Registrable Securities"),
including the Purchaser, as follows:
1. Definitions. (a) Capitalized terms used herein without definition
shall have their respective meanings set forth in or pursuant to the Purchase
Agreement or the Offering Circular, dated November 10, 1997, in respect of the
Securities. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" or "Securities Act" means the United States Securities Act of 1933,
as amended.
"Affiliate" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with such specified person. For purposes of this definition, control of a
person means the power, direct or indirect, to direct or cause the direction of
the management and policies of such person whether by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Commission" means the United States Securities and Exchange Commission.
"Common Stock" means the Common Stock, par value $.01 per share, of the
Company.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning set forth in Section 2(b) hereof.
"Effective Time" means the date on which the Commission declares the Shelf
Registration Statement effective or on which the Shelf Registration Statement
otherwise becomes effective.
"Electing Holder" has the meaning set forth in Section 3(a)(3) hereof.
"Exchange Act" means the United States Securities and Exchange Act of 1934,
as amended.
The term "holder" means, when used with respect to any Security, the holder
(as defined in the Indenture) and, with respect to any Common Stock, the record
holder of such Common Stock.
"Indenture" means the Indenture, dated as of November 10, 1997, between the
Company and State Street Bank and Trust Company of California, N.A., as amended
and supplemented from time to time in accordance with its terms.
"Managing Underwriters" means the investment banker or investment bankers
and manager or managers that shall administer an underwritten offering, if any,
as set forth in Section 6 hereof.
"NASD" means the National Association of Securities Dealers, Inc.
"NASD Rules" means the Rules of the NASD, as amended from time to time.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, any preliminary prospectus, any
final prospectus and any
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prospectus that discloses information previously omitted from a prospectus filed
as part of an effective registration statement in reliance upon Rule 430A under
the Act), as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Registrable Securities
covered by the Shelf Registration Statement and by all other amendments and
supplements to such prospectus, including all material incorporated by reference
in such prospectus and all documents filed after the date of such prospectus by
the Company under the Exchange Act and incorporated by reference therein.
"Purchaser" means Prudential Securities Incorporated.
"Purchase Agreement" means the Purchase Agreement, dated November 10, 1997,
between the Purchaser and the Company.
"Registrable Securities" means all or any portion of the Securities issued
from time to time under the Indenture in registered form and the shares of
Common Stock issuable upon conversion of such Securities, including any
Securities initially issued in bearer form and constituting the unsold allotment
of a distributor (within the meaning of Regulation S under the Securities Act)
of such Securities and later exchanged for Securities in registered form;
provided, however, that a security ceases to be a Registrable Security when it
is no longer a Restricted Security.
"Restricted Security" means any Security or share of Common Stock issuable
upon conversion thereof except any such Security or share of Common Stock which
(i) has been effectively registered under the Securities Act and sold in a
manner contemplated by the Shelf Registration Statement, (ii) has been
transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto) or is transferable pursuant to paragraph (k) of
such Rule 144 (or any successor provision thereto), (iii) has been sold in
compliance with Regulation S under the Securities Act (or any successor thereto)
and does not constitute the unsold allotment of a distributor within the meaning
of Regulation S under the Securities Act, or (iv) has otherwise been transferred
and a new Security or share of Common Stock not subject to transfer restrictions
under the Securities Act has been delivered by or on behalf of the Company in
accordance with Section 3.5 of the Indenture.
"Shelf Registration" means a registration effected pursuant to Section 2
hereof.
"Shelf Registration Statement" means a shelf registration statement of the
Company pursuant to the provisions of Section 2 hereof filed with the Commission
which covers some or all of the Registrable Securities, as applicable, on an
appropriate form under Rule 415 under the Act, or any similar rule that may be
adopted by the Commission, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
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"Suspension Event" shall have the meaning set forth in Section 3(j).
"Trust Indenture Act" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
as the same shall be amended from time to time.
"underwriter" means any underwriter of Registrable Securities in connection
with an offering thereof under a Shelf Registration Statement.
(b) Wherever there is a reference in this Agreement to a percentage of
the "principal amount" of Registrable Securities or to a percentage of
Registrable Securities, Common Stock shall be treated as representing the
principal amount of Securities which was surrendered for conversion or exchange
in order to receive such number of shares of Common Stock.
2. Shelf Registration. (a) The Company shall, within 90 calendar days
following the Firm Closing Date (as defined in the Purchase Agreement ), file
with the Commission a Shelf Registration Statement relating to the offer and
sale of the Registrable Securities by the holders from time to time in
accordance with the methods of distribution elected by such holders and set
forth in such Shelf Registration Statement and, thereafter, shall use its best
efforts to cause such Shelf Registration Statement to be declared effective
under the Act by the Commission as promptly as practicable but no later than 180
calendar days after the Firm Closing Date; provided, however, that no holder
shall be entitled to have the Registrable Securities held by it covered by such
Shelf Registration unless such holder is an Electing Holder.
(b) The Company shall use its best efforts:
(i) To keep the Shelf Registration Statement continuously effective in
order to permit the Prospectus forming part thereof to be usable by holders
for a period of two years from the Effective Time of the Shelf Registration
Statement or, if shorter, the period that will terminate when there are no
Registrable Securities outstanding (in either case, such period being
referred to herein as the "Effectiveness Period");
(ii) After the Effective Time of the Shelf Registration Statement,
promptly upon the request of any holder of Registrable Securities that is
not then an Electing Holder, to take any action reasonably necessary to
enable such holder to use the Prospectus forming a part thereof for resales
of Registrable Securities, including, without limitation, any action
necessary to identify such holder as a selling securityholder in the Shelf
Registration Statement; provided, however, that nothing in this
subparagraph shall relieve such holder of the obligation to return a
completed and signed Notice and Questionnaire to the Company in accordance
with Section 3(a)(2) hereof; and
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(iii) If at any time the Securities, pursuant to Article XIII of the
Indenture, are convertible into securities other than Common Stock, to
cause such securities to be included in the Shelf Registration Statement no
later than the date on which the Securities may then be convertible into
such securities.
The Company shall be deemed not to have used its best efforts (within the
meaning of Section 11.12 of the Indenture) to keep the Shelf Registration
Statement effective during the Effectiveness Period if the Company voluntarily
takes any action that would result in any Electing Holders not being able to
offer and sell any such Registrable Securities during such period unless such
(i) action is required by applicable law or (ii) a Suspension Event occurs and
the Company complies with Section 3(j).
3. Registration Procedures. In connection with any Shelf Registration
Statement, the following provisions shall apply:
(a) (1) Not less than 30 calendar days prior to the Effective Time of
the Shelf Registration Statement, the Company shall mail the Notice and
Questionnaire to the holders of Registrable 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 Registrable 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 Registrable Securities shall have at
least 28 calendar 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.
(2) After the Effective Time of the Shelf Registration Statement, the
Company shall, upon the request of any holder of Registrable Securities
that is not then an Electing Holder, promptly send a Notice and
Questionnaire to such holder. 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 Registrable Securities until such
holder has returned a completed and signed Notice and Questionnaire to the
Company.
(3) The term "Electing Holder" shall mean any holder of Registrable
Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(a)(1) or 3(a)(2)
hereof.
(b) The Company shall furnish to each Electing Holder, prior to the
Effective Time, a copy of any Shelf Registration Statement initially filed
with the Commission, and shall furnish to such holders, prior to the filing
thereof with the Commission,
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copies of each amendment thereto and each amendment or supplement, if any,
to the Prospectus included therein and shall use its best efforts to
reflect in each such document, when so filed with the Commission, such
comments as the holders and their respective counsel reasonably may propose
(which comments shall be delivered to the Company within three Business
Days after receipt of any Shelf Registration Statement, each amendment
thereto or any amendment or supplement to the Prospectus).
(c) Subject to Section 3(j), the Company shall promptly take such action
as may be necessary so that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any amendment
or supplement thereto (and each report or other document incorporated
therein by reference in each case) complies in all material respects with
the Securities Act and the Exchange Act and the respective rules and
regulations thereunder, (ii) any Shelf 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 Shelf Registration
Statement, and any amendment or supplement to such Prospectus, does not at
any time during the Effectiveness Period include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements, in the light of the circumstances under which they were
made, not misleading.
(d) The Company shall promptly advise each Electing Holder and shall
confirm such advice in writing if so requested by any such holder:
(i) when a Shelf Registration Statement and any amendment thereto
has been filed with the Commission and when the Shelf Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for amendments or supplements
to the Shelf Registration Statement or the Prospectus included therein
or for additional information;
(iii) the issuance by the Commission of any stop order suspending
effectiveness of the Shelf Registration Statement or the initiation of
any proceedings for such purpose;
(iv) the receipt by the Company of any notification with respect to
the suspension of the qualification of the securities included in the
Shelf Registration Statement for sale in any jurisdiction or the
initiation of any proceeding for such purpose; and
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(v) the happening of any event or the existence of any state of
facts that requires the making of any changes in the Shelf
Registration Statement or the Prospectus so that, as of such date, the
Shelf Registration Statement and the Prospectus do not contain an
untrue statement of a material fact and do not 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 (which advice
shall be accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made).
(e) The Company shall use its best efforts to prevent the issuance, and
if issued to obtain the withdrawal, of any order suspending the
effectiveness of any Shelf Registration Statement at the earliest possible
time.
(f) The Company shall furnish to each Electing Holder, without charge,
at least one copy of such Shelf Registration Statement and any post-
effective amendment thereto, including financial statements and schedules,
and, if such holder so requests in writing, all reports and exhibits
(including those incorporated by reference).
(g) The Company shall, during the Effectiveness Period, deliver to each
Electing Holder, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such holder may
reasonably request; and the Company consents (except during the continuance
of any event described in Section 3(d)(v)) to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Electing Holders
in connection with the offering and sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement thereto during the
Effectiveness Period.
(h) Prior to any offering of Registrable Securities pursuant to any
Shelf Registration Statement, the Company shall (i) register or qualify or
cooperate with the Electing Holders and their respective counsel in
connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions within the United States as any Electing Holder may
reasonably request, (ii) keep such registrations or qualifications in
effect and comply with such laws so as to permit the continuance of offers
and sales in such jurisdictions for so long as may be necessary to enable
any Electing Holder or underwriter, if any, to complete its distribution of
Registrable Securities pursuant to the Shelf Registration Statement and
(iii) take any and all other actions necessary or advisable to enable the
offer and sale in such jurisdictions of the Registrable Securities covered
by such Shelf Registration Statement; provided, however, that in no event
shall the Company be obligated to (i) qualify as a foreign corporation or
as a dealer in securities in any
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jurisdiction where it would not otherwise be required to so qualify but for
this Section 3(h) or (ii) file any general consent to service of process in
any jurisdiction where it is not as of the date hereof then so subject.
(i) Unless any Registrable Securities shall be in book-entry only form,
the Company shall cooperate with the Electing Holders to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold pursuant to any Shelf Registration Statement which
certificates, if so required by any securities exchange upon which any
Registrable Securities are listed, shall be penned, lithographed or
engraved, or produced by any combination of such methods, on steel engraved
borders, and which certificates shall be free of any restrictive legends
and in such permitted denominations and registered in such names as holders
may request in connection with the sale of Registrable Securities pursuant
to such Shelf Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(d)(v)
above, the Company shall promptly prepare a post-effective amendment to any
Shelf Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as thereafter
delivered to Purchaser of the Registrable Securities included therein, the
Prospectus will not include an 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.
Notwithstanding the foregoing, the Company may postpone, for a period not
to exceed 30 days, supplementing or amending the Shelf Registration
Statement if (i) the Company is in possession of material non-public
information related to a proposed financing, recapitalization, acquisition,
business combination or other material transaction and the Board of
Directors of the Company determines (in good faith in a written resolution)
that disclosure of such information would have a material adverse effect on
the business or operations of the Company and its subsidiaries and
disclosure of such information is not otherwise required by law and (ii)
the Company delivers notice (which shall include a copy of the resolution
of the Board of Directors with respect to such determination) to the
Electing Holders and any placement agent or underwriter as contemplated by
Section 3(d)(v) to the effect that Electing Holders may not make offers or
sales under the Shelf Registration Statement (a "Suspension Event");
provided, however, that the Company may deliver only two such notices
within any 12-month period. Promptly upon the earlier of (x) public
disclosure of such material non-public information, (y) the date on which
such non-public information is no longer material and (z) 30 days after the
date notice is given by the Company pursuant to clause (ii) above, the
Company shall supplement or amend the Shelf Registration Statement as
required by the immediately preceding sentence and give notice to the
Electing Holders that offers and sales under the Shelf Registration
Statement may be resumed. If the Company notifies the Electing Holders of
the
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occurrence of any event contemplated by paragraph 3(d)(v) above, each
Electing Holder agrees, as a consequence of the inclusion of any of such
holder's Registrable Securities in the Shelf Registration Statement, to
suspend the use of the Prospectus until the requisite changes to the
Prospectus have been made.
(k) Not later than the Effective Time of any Shelf Registration
Statement hereunder, the Company shall provide a CUSIP number for the
Securities registered under such Shelf Registration Statement.
(l) The Company shall use its best efforts to comply with all applicable
rules and regulations of the Commission and shall make generally available
to their securityholders or otherwise provide in accordance with Section
11(a) of the Securities Act as soon as practicable, but in any event not
later than eighteen months after (i) the effective date of the applicable
Shelf Registration Statement, (ii) the effective date (as defined in Rule
158(c) under the Securities Act of each post-effective amendment to the
Shelf Registration Statement, and (iii) the date of each filing by the
Company with the Commission of an Annual Report on Form 10-K that is
incorporated by reference in the Shelf Registration Statement, an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act
and the rules and regulations of the Commission thereunder (including, at
the option of the Company, Rule 158).
(m) Not later than the Effective Time of the Shelf Registration
Statement, the Company shall cause the Indenture and the Securities to be
qualified under the Trust Indenture Act in a timely manner and, in
connection with such qualification, the Company shall cooperate with the
Trustee under the Indenture and the Holders (as defined in the Indenture)
to effect such changes to the Indenture as may be required for such
Indenture to be so qualified in accordance with the terms of the Trust
Indenture Act; and the Company shall execute, and shall use all reasonable
efforts to cause the Trustee to execute, all documents that may be required
to effect such changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so qualified in a
timely manner. In the event that any such amendment or modification
referred to in this Section 3(m) involves 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 Registrable Securities to be
sold pursuant to any Shelf Registration Statement to furnish to the Company
such information regarding the holder and the distribution of such
Registrable Securities as may be required by applicable law or regulation
for inclusion in such Shelf Registration Statement and the Company may
exclude from such registration the Registrable Securities of any holder
that fails to furnish such information within a reasonable time after
receiving such request.
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(o) The Company shall, if requested, promptly include or incorporate in
a Prospectus supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Managing Underwriters reasonably agree
should be included therein and to which the Company does not reasonably
object and shall make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after they are notified of
the matters to be included or incorporated in such Prospectus supplement or
post-effective amendment.
(p) The Company shall enter into such customary agreements (including
underwriting agreements in customary form) and take all other appropriate
actions in order to expedite or facilitate the registration or the
disposition of the Registrable Securities, and in connection therewith, if
an underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures substantially identical to those
set forth in Section 5 (or such other provisions and procedures acceptable
to the Managing Underwriters, if any) with respect to all parties to be
indemnified pursuant to Section 5.
(q) The Company shall:
(i) make reasonably available for inspection by the Electing
Holders, any underwriter participating in any disposition pursuant to
such Shelf Registration Statement, and any attorney, accountant or
other agent retained by such holders or any such underwriter all
relevant financial and other records, pertinent corporate documents
and properties of the Company and its subsidiaries;
(ii) in connection with any underwritten offering conducted pursuant
to Section 6 hereof, cause the Company's officers, directors and
employees to supply all information reasonably requested by such
holders or any such underwriter, attorney, accountant or agent in
connection with any such Shelf Registration Statement, in each case,
as is customary for similar due diligence examinations; provided,
however, that any information that is designated in writing by the
Company, in good faith, as confidential at the time of delivery of
such information shall be kept confidential by such holders or any
such underwriter, attorney, accountant or agent, unless such
disclosure is made in connection with a court proceeding or required
by law, or such information becomes available to the public generally
or through a third party without an accompanying obligation of
confidentiality; and provided further that, if the foregoing
inspection and information gathering would otherwise disrupt the
Company's conduct of business, such inspection and information
gathering shall, to the greatest extent possible, be coordinated on
behalf of the Electing Holders and the other parties entitled thereto
by one counsel designated by and on behalf of such Electing Holders
and other parties;
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(iii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, make such representations and warranties
to the Electing Holders registered thereunder and to the Managing
Underwriters, in form, substance and scope as are customarily made by
the Company to underwriters in primary underwritten offerings and
covering matters including, but not limited to, those set forth in the
Purchase Agreement;
(iv) in connection with any underwritten offering conducted pursuant
to Section 6 hereof, obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Managing
Underwriters) addressed to each selling holder and the underwriters
covering such matters as are customarily covered in opinions requested
in primary underwritten offerings of equity and convertible debt
securities and such other matters as may be reasonably requested by
such holders and underwriters (it being agreed that the matters to be
covered by such opinion or written statement by such counsel delivered
in connection with such opinions shall include, without limitation, 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, including the 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);
(v) in connection with any underwritten offering conducted pursuant
to Section 6 hereof, obtain "cold comfort" letters and updates thereof
from the independent public accountants of the Company (and, if
necessary, any other independent public accountants of any subsidiary
of the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be,
included in the Shelf Registration Statement), addressed to each
selling holder and the underwriters in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings;
(vi) in connection with any underwritten offering conducted pursuant
to Section 6 hereof, deliver such documents and certificates as may be
reasonably requested by any such holders participating in such
underwritten offering and the Managing Underwriters, including those
to evidence compliance with Section 3(i) and with any customary
conditions contained in the underwriting agreement or other agreement
entered into by the Company.
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The foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of
this Section 3(q) shall be performed at each closing under any underwritten
offering to the extent required thereunder.
(r) The Company will use its best efforts to cause the Common Stock
issuable upon conversion of the Securities to be listed on the New York
Stock Exchange or other stock exchange or trading system on which the
Common Stock primarily trades on or prior to the Effective Time of any
Shelf Registration Statement hereunder.
(s) In the event that any broker-dealer registered under the Exchange
Act shall be an "affiliate " (as defined in Rule 2720(b)(1) of the NASD
Rules (or any successor provision thereto)) of the Company or has a
"conflict of interest" ( as defined in Rule 2720(b)(7) of the NASD Rules
(or any successor provision thereto)) and such broker-dealer shall
underwrite any Registrable Securities or participate as a member of an
underwriting syndicate or selling group or assist in the distribution
thereof, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, the Company shall assist such broker-dealer in
complying with the requirements of the NASD Rules, including, without
limitation, by (A) engaging a "qualified independent underwriter" (as
defined in Rule 2720(b)(15) of the NASD Rules (or any successor provision
thereto)) to participate in the preparation of the Shelf Registration
Statement relating to such Registrable Securities, to exercise usual
standards of due diligence in respect thereto, and to recommend the public
offering price of such Registrable Securities, (B) indemnifying any such
qualified independent underwriter to the extent of the indemnification of
underwriters provided in Section 5 hereof and (C) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the NASD Rules.
(t) The Company shall use its best efforts to take all other steps
necessary to effect the registration, offering and sale of the Registrable
Securities covered by the Shelf Registration Statement contemplated hereby.
4. Registration Expenses. The Company shall bear all fees and expenses
incurred in connection with the performance of its obligations under Sections 2,
3 and 6 hereof. In addition, in the event of an underwritten offering of
Registrable Securities conducted pursuant to Section 6 hereof, or if in any
other event the Company requires that inspection and information gathering be
coordinated by counsel for the Electing Holders as provided in Section 3(q)(i)
hereof, the Company shall pay the fees and expenses of a single counsel selected
by the Electing Holders of not less than 25% of the Registrable Securities
covered by the Shelf Registration Statement to act as counsel therefor in
connection therewith. The Electing Holders participating in such offering (or,
in any such other event, participating in such inspection and information
gathering) shall be responsible, on a pro rata basis based on
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the respective amount of their Registrable Securities included in such offering,
for all fees and expenses of such counsel in excess of $50,000.
5. Indemnification and Contribution.
(a) Indemnification by the Company. Upon the registration of the
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Registrable Securities pursuant to Section 2 hereof, the Company shall indemnify
and hold harmless each Electing Holder and each underwriter, selling agent or
other securities professional, if any, which facilitates the disposition of
Registrable Securities, and each of their respective officers and directors and
each person who controls such Electing Holder, underwriter, selling agent or
other securities professional within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (each such person being sometimes referred
to as an "Indemnified Person") against any losses, claims, damages or
liabilities, joint or several, to which such Indemnified Person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Shelf Registration Statement under which such Registrable
Securities are to be registered under the Securities Act, or any Prospectus
contained therein or furnished by the Company to any Indemnified Person, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and the
Company hereby agrees to reimburse such Indemnified Person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
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however, that the Company shall not be liable to any such Indemnified Person in
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any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such Shelf Registration Statement or
Prospectus, or amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by such Indemnified Person
expressly for use therein.
(b) Indemnification by the Holders and any Agents and Underwriters. Each
--------------------------------------------------------------
Electing Holder agrees, as a consequence of the inclusion of any of such
holder's Registrable Securities in such Shelf Registration Statement, and each
underwriter, selling agent or other securities professional, if any, which
facilitates the disposition of Registrable Securities shall agree (or the
Electing Holder shall cause to agree), as a consequence of facilitating such
disposition of Registrable Securities, severally and not jointly, to (i)
indemnify and hold harmless the Company, its directors, officers who sign any
Shelf Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, against any losses, claims, damages or liabilities to which
the Company or such other persons may become subject, under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material
13
fact contained in such Shelf Registration Statement or Prospectus, or any
amendment or supplement, 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, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such holder,
underwriter, selling agent or other securities professional expressly for use
therein, and (ii) reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party
----------------------
under subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party under this Section 5, notify such indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 5. In case any such
action shall be brought against any indemnified party and it shall notify an
indemnifying party of the commencement thereof, such indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided however,
-------- -------
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it and/or other
indemnified parties with are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by such indemnified party
of counsel appointed to defend such action, the indemnifying party will not be
liable to such indemnified party under this Section 5 for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred by
such indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in any
one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
representing the indemnified parties under such paragraph (a) who are parties
to such action or actions) or (ii) the indemnifying party does not promptly
retain counsel satisfactory to the indemnified party or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. After such notice from the indemnifying
party to such indemnified party, the indemnifying party will not be liable for
the costs and expenses of any
14
settlement of such action effected by such indemnified party without the consent
of the indemnifying party. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim 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) Contribution. If the indemnification provided for in this Section 5 is
------------
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which 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 such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 5(d) were determined by
pro rata allocation (even if the Electing Holders or any underwriters, selling
agents or other securities professionals or all of them were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this Section 5(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. 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. The obligations of the Electing Holders and any
underwriters, selling agents or other securities professionals in this Section
5(d) to contribute shall be several in proportion to the percentage of principal
amount of Registrable Securities registered or underwritten, as the case may be,
by them and not joint.
(e) Notwithstanding any other provision of this Section 5, in no event will
any (i) Electing Holder be required to undertake liability to any person under
this Section 5 for any
15
amounts in excess of the dollar amount of the proceeds to be received by such
holder from the sale of such holder's Registrable Securities (after deducting
any fees, discounts and commissions applicable thereto) pursuant to any Shelf
Registration Statement under which such Registrable Securities are to be
registered under the Securities Act and (ii) underwriter, selling agent or other
securities professional be required to undertake liability to any person
hereunder for any amounts in excess of the discount, commission or other
compensation payable to such underwriter, selling agent or other securities
professional with respect to the Registrable Securities underwritten by it and
distributed to the public.
(f) The obligations of the Company under this Section 5 shall be in
addition to any liability which the Company may otherwise have to any
Indemnified Person and the obligations of any Indemnified Person under this
Section 5 shall be in addition to any liability which such Indemnified Person
may otherwise have to the Company. The remedies provided in this Section 5 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to an indemnified party at law or in equity.
6. Underwritten Offering. Any holder of Registrable Securities covered by
the Shelf Registration Statement who desires to do so may sell such Registrable
Securities in an underwritten offering. In any such underwritten offering, the
investment banker or bankers and manager or managers that will administer the
offering will be selected by, and the underwriting arrangements with respect
thereto will be approved by the holders of a majority of the Registrable
Securities to be included in such offering; provided, however, that (i) such
investment bankers and managers and underwriting arrangements must be reasonably
satisfactory to the Company and (ii) the Company shall not be obligated to
arrange for more than one underwritten offering during the Effectiveness Period.
No holder may participate in any underwritten offering contemplated hereby
unless such holder (a) agrees to sell such holder's Registrable Securities in
accordance with any approved underwriting arrangements, (b) completes and
executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such approved underwriting arrangements and (c) at least 20% of the
outstanding Registrable Securities are included in such underwritten offering.
The holders participating in any underwritten offering shall be responsible for
any expenses customarily borne by selling securityholders, including
underwriting discounts and commissions and fees and expenses of counsel to the
selling securityholders and shall reimburse the Company for the fees and
disbursements of their counsel, their independent public accountants and any
printing expenses incurred in connection with such underwritten offerings.
7. Miscellaneous.
(a) Other Registration Rights. The Company may grant registration rights
that would permit any Person that is a third party the right to piggy-back on
any Shelf Registration Statement, provided that if the Managing Underwriter, if
any, of such offering delivers an
16
opinion to the Electing Holders that the total amount of securities which they
and the holders of such piggy-back rights intend to include in any Shelf
Registration Statement is so large as to materially adversely affect the success
of such offering (including the price at which such securities can be sold),
then only the amount, the number or kind of securities to be offered for the
account of holders of such piggy-back rights will be reduced to the extent
necessary to reduce the total amount of securities to be included in such
offering to the amount, number or kind recommended by the Managing Underwriter
prior to any reduction in the amount of Registrable Securities to be included.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
holders of a majority in aggregate principal amount of Registrable Securities
then outstanding. Each holder of Registrable Securities outstanding at the time
of any such amendment, waiver or consent or thereafter shall be bound by any
amendment, waiver or consent effected pursuant to this Section 7(b), whether or
not any notice, writing or marking indicating such amendment, waiver or consent
appears on the Registrable Securities or is deliverable to such holder.
(c) Notices. All notices and other communications provided for or permitted
hereunder shall be given as provided for in the Indenture.
The Purchaser or the Company by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(d) Parties in Interest; Successors and Assigns. The parties to this
Agreement intend that all holders of Registrable Securities shall be entitled to
receive the benefits of this Agreement by reason of such election with respect
to the Registrable Securities which are included in a Shelf Registration
Statement. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties and the holders, including,
without the need for an express assignment or any consent by the Company
thereto, subsequent holders of Registrable Securities. The Company hereby
agrees to extend the benefits of this Agreement to any holder of Registrable
Securities and any such holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
(e) Counterparts. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
17
(g) Governing Law. This agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
provisions relating to conflicts of laws.
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(i) Survival. The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made pursuant
hereto shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any
Electing Holder, any director, officer or partner of such holder, any agent or
underwriter, any director, officer or partner of such agent or underwriter, or
any controlling person of any of the foregoing, and shall survive the transfer
and registration of the Registrable Securities of such holder.
18
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
HOMEBASE, INC.
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Name:
Title:
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Xxxx-Xxxxxx Canfin
-------------------------------
Name: XXXX-XXXXXX CANFIN
Title: MANAGING DIRECTOR
19
Exhibit A
HOMEBASE, INC.
INSTRUCTION TO DTC PARTICIPANTS
-------------------------------
____________ __, 199_
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: ___________ _, 199_
-----------------------
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in HomeBase, Inc. (the "Company")
53% Convertible Subordinated Notes due November 1, 2004 (the "Securities") are
held.
The Company is in the process of registering the Securities under the
Securities Act of 1933 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 Notice of Registration Statement and
Selling Securityholder 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 ________ __, 199_. 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 HomeBase, Inc.,
0000 Xxxxxxxxx Xxxxx, Xxxxxx, XX 00000, Telephone: 000.000.0000.
HOMEBASE, INC.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
------------------------------------
________ __, 199_
Reference is hereby made to the Registration Rights Agreement (the
"Registration Rights Agreement") between HomeBase, Inc. (the "Company") and the
Purchaser named therein. Pursuant to the Registration Rights Agreement, the
Company has filed with the United States Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "Securities Act"), of the Company's 53% Convertible
Subordinated Notes due November 1, 2004 (the "Securities") and the shares of
common stock, par value $1.00 per share (the "Common Stock"), issuable upon
conversion thereof. A copy of the Registration Rights Agreement is attached
hereto. All capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is
entitled to have the Registrable Securities beneficially owned by it included in
the Shelf Registration Statement. In order to have Registrable Securities
included in the Shelf Registration Statement, this Notice of Registration
Statement and Selling Securityholder Questionnaire ("Notice and Questionnaire")
must be completed, executed and delivered to the Company's counsel at the
address set forth herein for receipt on or before ________ __, 199_. Beneficial
owners of Registrable Securities who do not complete, execute and return this
Notice and Questionnaire by such date (i) will not be named as selling
securityholders in the Shelf Registration Statement and (ii) may not use the
Prospectus forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and 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 and related Prospectus.
A-2
The term "Registrable Securities" is defined in the Registration Rights
----------------------
Agreement to mean all or any portion of the Securities issued from time to time
under the Indenture in registered form and the shares of Common Stock issuable
upon conversion of such Securities, including any Securities initially issued in
bearer form and constituting the unsold allotment of a distributor (within the
meaning of Regulation S under the Securities Act) of such Securities and later
exchanged for Securities in registered form; provided, however, that a security
ceases to be a Registrable Security when it is no longer a Restricted Security.
The term "Restricted Security" is defined in the Registration Rights
-------------------
Agreement to mean any Security or share of Common Stock issuable upon conversion
thereof except any such Security or share of Common Stock which (i) has been
effectively registered under the Securities Act and sold in a manner
contemplated by the Shelf Registration Statement, (ii) has been transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or is transferable pursuant to paragraph (k) of such Rule 144 (or any
successor provision thereto), (iii) has been sold in compliance with Regulation
S under the Securities Act (or any successor thereto) and does not constitute
the unsold allotment of a distributor within the meaning of Regulation S under
the Securities Act, or (iv) has otherwise been transferred and a new Security or
share of Common Stock not subject to transfer restrictions under the Securities
Act has been delivered by or on behalf of the Company in accordance with Section
3.5 of the Indenture.
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3).
The undersigned, by signing and returning this Notice and Questionnaire, agrees
to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement, including, without limitation, Section 5 of the Registration Rights
Agreement, as if the undersigned Selling Securityholder were an original party
thereto.(1)
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company and Trustee the Notice of Transfer set forth in Appendix A to the
Prospectus. This Notice of Transfer is set forth as Exhibit A to the
Prospectus.
The Selling Securityholder hereby provides the following information to
the Company and represents and warrants that such information is accurate and
complete:
A-3
QUESTIONNAIRE
(i) (i) Full Legal Name of Selling Securityholder:
----------------------------------------------------------------------
(ii) Full Legal Name of Registered Holder (if not the same as in (a) above)
of Registrable Securities Listed in (3) below:
----------------------------------------------------------------------
(iii) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) Through Which Registrable Securities Listed in (3) below
are Held:
----------------------------------------------------------------------
A-4
(j) Address for Notices to Selling Securityholder:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Telephone:
----------------------
Fax:
----------------------
Contact Person:
----------------------
(k) Beneficial Ownership of Securities and shares of Common Stock issued upon
conversion of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities or shares of Common Stock issued upon conversion
of any Securities.
(i) Principal amount of Registrable Securities (as defined in the
Registration Rights Agreement) beneficially owned: _________________
CUSIP No(s). of such Registrable Securities:________________________
Number of shares of Common Stock (if any) issued upon conversion of
such Registrable Securities:________________________________________
(ii) Principal amount of Securities other than Registrable Securities
beneficially owned:
CUSIP No(s). of such other Securities:______________________________
Number of shares of Common Stock (if any) issued upon conversion of
such other Securities:______________________________________________
(iii) Principal amount of Registrable Securities which the undersigned
wishes to be included in the Shelf Registration Statement:__________
CUSIP No(s). of such Registrable Securities to be included in the
Shelf Registration Statement:_______________________________________
A-5
Number of shares of Common Stock (if any) issued upon conversion of
Registrable Securities which are to be included in the Shelf
Registration Statement:_____________________________________________
(l) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any shares of Common
Stock or any other securities of the Company, other than the Securities and
shares of Common Stock listed above in Item (3).
State any exceptions here:
(m) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, directors or principal equity holders (5% or more) has
held any position or office or has had any other material relationship with the
Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
(n) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item (3) only
as follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Securityholder or, alternatively,
through underwriters, broker-dealers or agents. Such Registrable Securities may
be sold in one or more transactions at fixed prices, at 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 crosses or block transactions) (i) on any national securities exchange
or quotation service on which the Registered Securities may be listed or quoted
at the time of sale, (ii) in the over-the-counter market, (iii) in transactions
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
A-6
Registrable Securities or otherwise, the Selling Securityholder may enter into
hedging transactions with broker-dealers, which may in turn engage in short
sales of the Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable Securities short
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:
Note: In no event may such method(s) of distribution take the form of an
underwritten offering of the Registrable Securities without the prior agreement
of the Company.
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder.
In the event that the Selling Securityholder transfers all or any portion
of the Registrable Securities listed in Item (3) above after the date on which
such information is provided to the Company, the Selling Securityholder agrees
to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
By signing below, the Selling Securityholder consents to the disclosure of
the information contained herein in its answers to Items (1) through (6) above
and the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Company in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section
3(a) of the Registration Rights Agreement to provide such information as may be
required by law for inclusion in the Shelf Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which
A-7
may occur subsequent to the date hereof at any time while the Shelf Registration
Statement remains in effect. All notices hereunder and pursuant to the
Registration Rights Agreement shall be made in writing, by hand-delivery, first-
class mail, or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
HomeBase, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Chief Financial Officer
(ii) With a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Attn: Xxxxxxxx X. Xxxxx
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in Item
(3) above. This Agreement shall be governed in all respects by the laws of the
State of New York.
A-8
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.
Dated: ________________
_____________________________________________________
Selling Securityholder
(Print/type full legal name of beneficial
owner of Registrable Securities)
By:__________________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE ___________ __, 199_ TO THE COMPANY'S COUNSEL AT:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Attn: Xxxxxxxx X. Xxxxx
A-9
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
[Name of Trustee]
HomeBase, Inc.
[Address of Trustee]
Attention: [Corporate Trust Services]
Re: HomeBase, Inc. (the "Company")
53% Convertible Subordinated Notes due November 1, 2004 (the
------------------------------------------------------------
"Notes")
--------
Dear Sirs:
Please be advised that _____________________ has transferred
$___________ aggregate principal amount of the above-referenced Notes pursuant
to an effective Registration Statement on Form S-3 (File No. 333-____) filed by
the Company.
We hereby certify that the prospectus delivery requirements, if any, of
the Securities Act of 1933, as amended, have been satisfied and that the above-
named beneficial owner of the Notes is named as a "Selling Holder" in the
Prospectus dated ___________, 199_ or in supplements thereto, and that the
aggregate principal amount of the Notes transferred are the Notes listed in such
Prospectus opposite such owner's name.
Dated:
Very truly yours,
________________________
(Name)
By:________________________
(Authorized Signature)
A-10
