As of June 7, 1999
Canadian Imperial Bank of Commerce, as Administrative Agent
Media & Telecommunications Group
BCE Place, 8th Floor,
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Dear Sirs:
Registration Rights Undertaking
Pursuant to the terms of the Amended and Restated Credit Agreement
made as of June 7, 1999, among Xxxxxxxxx Inc., 504468 N.B. Inc. and Sugra
Limited (each a "Borrower", and collectively the Borrowers) and each financial
institution which is a signatory thereto (each a "Lender", and collectively
the "Lenders", which term shall also include every other financial institution
which may from time to time become a party thereto), Canadian Imperial Bank of
Commerce, as Lead Arranger and Administrative Agent for the Lenders, The Bank
of Nova Scotia, as Syndication Agent, and The Toronto-Dominion Bank, as
Documentation Agent (the "Credit Agreement"), Xxxxxxxxx Inc. and 504468 N.B.
Inc. pledged certain shares of Class A Common Stock, Class B Common Stock and
Series C Preferred Shares of Xxxxxxxxx International Inc. ("HII"), for the
benefit of the Administrative Agent and the Lenders, as a continuing security
for the present and future obligations of the Borrowers to the Administrative
Agent and the Lenders under the Credit Documents (as defined in the Credit
Agreement).
A registration statement, including a prospectus, on Form S-3 (No.
333- 04697) was filed under the Securities Act of 1933, as amended (the
"Securities Act") with the Securities and Exchange Commission on May 29, 1996
and amended by Amendment No. 1 thereto filed on November 29, 1996 (the "Common
Shares Registration Statement") that relates to an aggregate of 48,600,754
shares (the "Common Shares") of Class A Common Stock of HII. The Common Shares
Registration Statement was declared effective by the Securities and Exchange
Commission on December 9, 1996. The Common Shares consist of 33,610,754
outstanding shares of Class A Common Stock (the "Outstanding Shares") and
14,990,000 other shares of Class A Common Stock (the "Conversion Shares", into
which all of the outstanding shares of Class B Common Stock of HII may be
converted in certain circumstances). No registration statement has been filed
as of the date hereof in respect of the shares of Class A Common Stock of HII
into which the pledged Series C Preferred Shares of HII may be converted in
certain circumstances (the "New Conversion Shares").
No offers or sales of the Common Shares may be made by the
Administrative Agent pursuant to the Common Shares Registration Statement, and
the prospectus included therein, unless appropriate post-effective amendments
or supplements are made to reflect facts or events arising after the effective
date of the
Common Shares Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Common Shares
Registration Statement and to include any material information with respect to
the plan of distribution not previously disclosed in the Common Shares
Registration Statement or any material change to such information in the
Common Shares Registration Statement.
No offers or sales of the New Conversion Shares may be made by the
Administrative Agent pursuant to the Series C Registration Statement (as
defined and provided for below), and the prospectus included therein, unless
appropriate post-effective amendments or supplements are made to reflect facts
or events arising after the effective date of the Series C Registration
Statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the
information set forth in the Series C Registration Statement and to include
any material information with respect to the plan of distribution not
previously disclosed in the Series C Registration Statement or any material
change to such information in the Series C Registration Statement.
This is to confirm our undertaking and agreement that if (i)
Xxxxxxxxx Inc. or 504468 N.B. Inc. is in default of its obligations under the
Credit Documents, and (ii) the Administrative Agent has or intends to exercise
its rights under the Credit Documents, upon written request from the
Administrative Agent, the undersigned shall expeditiously (subject to
compliance by the Administrative Agent with information requirements noted
below) take all further steps necessary, including filing the necessary
amendments or supplements to the Common Shares Registration Statement, and the
prospectus included therein, to permit the sale of such Common Shares as are
pledged under the Credit Documents from time to time pursuant to the
prospectus included in the Common Shares Registration Statement, as amended.
HII may require the Administrative Agent to furnish HII with such information
regarding each Lender and the distribution of the Common Shares as HII may
from time to time reasonably request in writing.
This is to confirm our undertaking and agreement that a registration
statement, including a prospectus, or an amendment to the Common Shares
Registration Statement (in either case, the "Series C Registration
Statement"), with respect to all of the pledged New Conversion Shares, shall
be filed under the Securities Act, forthwith upon request by the
Administrative Agent. This is to confirm our further undertaking and agreement
that if (i) Xxxxxxxxx Inc. or 504468 N.B. Inc. is in default of its
obligations under the Credit Documents, and (ii) the Administrative Agent has
or intends to exercise its rights under the Credit Documents, upon written
request from the Administrative Agent, the undersigned shall expeditiously
(subject to compliance by the Administrative Agent with the information
requirement noted below) take all further steps necessary,
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including filing the necessary amendments or supplements to the Series C
Registration Statement and the prospectus included therein, to permit the sale
of all of the New Conversion Shares pledged under the Credit Documents
pursuant to the prospectus included in such registration statement. HII may
require the Administrative Agent to furnish HII with such information
regarding each Lender and the distribution of the Series C Preferred Shares
and the New Conversion Shares as HII may from time to time reasonably request
in writing.
The Administrative Agent agrees that, upon receipt of any notice
from HII of the happening of any event as a result of which the prospectus
included in the Common Shares Registration Statement or the Series C
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, in the
light of the circumstances under which they were made, the Lenders will
forthwith discontinue their disposition of the Common Shares and the New
Conversion Shares, as the case may be, until they receive the copies of the
amended or supplemented Common Shares Registration Statement or Series C
Registration Statement (or the prospectus included therein), as the case may
be, contemplated by the preceding sentence of this letter agreement (which the
undersigned shall file as contemplated by the preceding sentence of this
Agreement).
Xxxxxxxxx Inc. and HII will pay all reasonable expenses incurred by
the Lenders in connection with the sale of the Common Shares and the New
Conversion Shares, including underwriting discounts or commission and
reasonable fees and disbursements of counsel to the Lenders.
This Agreement shall be construed and interpreted in accordance with
the laws of the Province of Ontario.
This Agreement may be executed in any number of counterparts and all
of such counterparts taken together shall be deemed to constitute one and the
same instrument and shall become effective on the date when each of the
parties hereto shall have signed a copy hereof (whether the same or different
copies) and shall have delivered the same to the Administrative Agent.
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This Agreement shall be binding upon and enure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Yours very truly,
XXXXXXXXX INC.
By: /s/ Xxxx Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxx Xxxxxx Xxxxxxxx
Title: Executive Vice-President and Chief
Financial Officer
XXXXXXXXX INTERNATIONAL INC.
By: /s/ Xxxx Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxx Xxxxxx Xxxxxxxx
Title: Executive Vice-President and Chief
Financial Officer
504468 N.B. INC.
By: /s/ Xxxx Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxx Xxxxxx Xxxxxxxx
Title: President
Acknowledged and agreed to as of June 7, 1999
Canadian Imperial Bank of Commerce,
As Administrative Agent
By: /s/ Xxxxx Xxxxxxxxx
-------------------
Name: Xxxxx Xxxxxxxxx
Title: Executive Director
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