EXHIBIT 4.2(v)
BIG FLOWER TRUST I
2,300,000
6% Convertible Quarterly Income Preferred Securities ("QUIPS(SM)*")
(Liquidation Amount $50 Per Preferred Security)
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October 20, 1997
Registration Rights Agreement
Xxxxxxx, Xxxxx & Co.,
Bear, Xxxxxxx & Co. Inc.
BT Xxxx. Xxxxx Incorporated
Credit Suisse First Boston Corporation
X.X. Xxxxxx Securities Inc.
Ladies and Gentlemen:
Big Flower Trust I, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), and Big Flower Holdings, Inc., a Delaware
corporation, as depositor of the Trust and as guarantor (the "Company"),
proposes to issue and sell to the Purchasers (as defined herein), upon the terms
set forth in the Purchase Agreement (as defined herein) an aggregate of
2,300,000 shares of 6% Convertible Quarterly Income Preferred Securities
(liquida tion amount $50 per preferred security) (the "Preferred Securities") of
the Trust. The Preferred Securities are guaranteed on a subordinated basis by
the Company as to the payment of distributions, and as to payments on
liquidation or redemption, to the extent set forth in a guarantee agreement (the
"Guarantee") between the Company and The Bank of New York, as trustee, and may
be converted or exchanged under certain circumstances into the 6% Convertible
Subordinated Debentures due 2027 of the Company (the "Debentures") held by the
Trust and then into common stock, $.01 par value per share ("Common Stock"), of
the Company. The Preferred Securities, the Debentures, the Guarantee and the
Common Stock issuable upon conversion or exchange of the Preferred Securities
and/or the Debentures are referred to collectively as the "Securities." As an
inducement to the Purchasers to enter into the Purchase Agreement and in
satisfaction of a condition to the obligations of the Purchasers thereunder, the
Trust and the Company each agree with the Purchasers for the benefit of Holders
(as defined herein) from time to time of the Registrable Securities (as defined
herein) as follows:
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*QUIPS is a servicemark of Xxxxxxx, Xxxxx & Co.
1. Definitions. (a) Capitalized terms used herein without definition
shall have the meanings ascribed thereto in the Purchase Agreement. As used in
this Registration Rights Agreement, the following defined terms shall have the
following meanings:
"Act" or "Securities Act" means the 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 Securities and Exchange Commission.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning assigned thereto in Section
2(b)(i) 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 assigned thereto in Section 3(a)(3)
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"First Time of Delivery" has the meaning assigned thereto in the
Purchase Agreement.
"Holder" means, when used with respect to any Security, the holder of
such Security. For all purposes of this Agreement, the Company shall be entitled
to treat the record owner of a Security as the beneficial owner of such Security
unless the Company has been given written notice of the existence and identity
of a different beneficial owner.
"Indenture" means the Indenture, dated as of October 20, 1997, between
the Company and The Bank of New York, as indenture trustee, 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, conducted pursuant to Section 6 hereof.
"NASD Rules" means the Rules of the National Association of Securities
Dealers, Inc., as amended.
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"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Annex A
hereto, including the Notice of Transfer attached as Appendix 1 thereto.
"Person" means an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" means the prospectus (including, without limitation, any
preliminary prospectus, any final prospectus and any 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) included in the
Shelf Registration Statement, 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.
"Purchase Agreement" means the purchase agreement dated October 14, 1997
among the Purchasers, the Trust and the Company.
"Purchasers" means the Purchasers named in Schedule I to the Purchase
Agreement.
"Registrable Securities" means all or any portion of the Securities
issued from time to time; provided, however, that a security ceases to be a
Registrable Security when it is no longer a Restricted Security.
"Restricted Security" means any Security except any such Security 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 not subject to transfer restrictions under the Securities Act
has been delivered by or on behalf of the Company in accordance with the terms
of the Trust Agreement or the Indenture, as the case may be.
"Rules and Regulations" means the published rules and regulations of the
Commission promulgated under the Securities Act or the Exchange Act, as in
effect at any relevant time.
"Securities" has the meaning assigned thereto in the first paragraph
hereof.
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"Shelf Registration" means a registration effected pursuant to Section 2
hereof.
"Shelf Registration Statement" means a "shelf" registration statement
filed under the Securities Act providing for the registration of, and the resale
on a continuous or delayed basis by the Holders of, all of the Registrable
Securities pursuant to Rule 415 under the Securities Act and/or any similar rule
that may be adopted by the Commission, filed by the Company and the Trust
pursuant to the provisions of Section 2 hereof, including the Prospectus
contained therein, any amendments and supplements to such registration
statement, including post-effective amendments, and all exhibits and all
material incorporated by reference in such registration statement.
"Trust Agreement" means the Amended and Restated Trust Agreement, dated
as of October 14, 1997, among Big Flower Holdings, Inc. as Depositor, The Bank
of New York, as Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee and the Administrative Trustees named therein, relating, among other
things, to the Preferred Securities, as amended and supplemented from time to
time in accordance with its terms.
"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.
"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, the Preferred Securities and the Debentures issuable
upon conversion or exchange of the Preferred Securities will be treated as the
same class of Securities and Common Stock shall be treated as representing the
liquidation amount of Preferred Securities or the principal amount of Debentures
which was surrendered for conversion or exchange in order to receive such number
of shares of Common Stock.
2. Shelf Registration. (a) The Company and the Trust shall, within 90
calendar days following the First Time of Delivery (as defined in the Purchase
Agreement), file with the Commission a Shelf Registration Statement on such form
as the Company deems appropriate covering the resale of the Registrable
Securities and, thereafter, shall use their reasonable best efforts to cause
such Shelf Registration Statement to be declared effective under the Act within
180 calendar days after the First Time of Delivery; provided, however, that no
Holder shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement or to use the Prospectus forming a part thereof for
resales of Registrable Securities unless such Holder is an Electing Holder.
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(b) The Company and the Trust shall each use its best efforts:
(i) To keep the Shelf Registration Statement continuously
effective (subject to any Suspension Period (as defined below)) in order
to permit the Prospectus forming a part thereof to be usable by Electing
Holders for resales of Registrable Securities for a period of two years
from the First Time of Delivery, or such shorter period that will
terminate upon the earliest of the following: (A) when all the Preferred
Securities covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement; (B) when all Debentures
issued to Holders in respect of Preferred Securities that had not been
sold pursuant to the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement; (C) when all shares of
Common Stock issued upon conversion of any such Preferred Securities or
any such Debentures that have not been sold pursuant to the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement; and (D) when all outstanding Registrable Securities held by
persons which are not affiliates of the Trust or the Company may be
resold without registration under the Act pursuant to Rule 144(k) under
the Act or any successor provision thereto (in any such case, such
period being called the "Effectiveness Period").
(ii) After the Effective Time of the Shelf Registration
Statement, as promptly as practicable upon the request of any Holder
that is not then an Electing Holder identified as a selling
securityholder in the Prospectus at the Effective Time, 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 and the Trust in accordance with Section 3(a)(2) hereof
and to provide to the Trust and the Company, in writing, any information
with respect to such Holder or the Registrable Securities held by such
Holder as is, in the reasonable opinion of counsel to the Trust or the
Company, required under applicable law to enable such Holder to use such
Prospectus for resales of such Registrable Securities; and
(iii) If at any time prior to the end of the Effectiveness
Period, the Preferred Securities are convertible into securities other
than Common Stock, the Company and the Trust shall, or shall cause any
successor under the Trust Agreement to, use its reasonable best efforts
to cause such securities to be included in the Shelf Registration
Statement as promptly as practicable.
(c) If (i) on or prior to the date 90 days after the First Time of
Delivery a Shelf Registration Statement has not been filed with the Commission
or (ii) on or prior to the date 180 days after the First Time of Delivery such
Shelf Registration Statement has not been declared
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effective (each such event, a "Registration Default"), additional interest
("Liquidated Damages") will accrue on the Debentures, and, accordingly,
additional distributions will accrue on the Preferred Securities, from and
including the day following such Registration Default until such date as the
Shelf Registration Statement is filed or declared effective, as the case may be.
Liquidated Damages will be paid quarterly in arrears (subject to the Company's
right to defer the payment of Liquidated Damages during any Extension Period (as
defined in the Indenture)), with the first quarterly payment due on the first
interest or distribution payment date, as applicable, following the date on
which such Liquidated Damages begin to accrue, and will accrue at a rate per
annum equal to an additional one-quarter of one percent (0.25%) of the principal
amount or liquidation amount, as applicable, to and including the 90th day
following such Registration Default and one-half of one percent (0.50%) thereof
from and after the 91st day following such Registration Default. In the event
that the Shelf Registration Statement ceases to be effective during the
Effectiveness Period for more than 90 days, whether or not consecutive, during
any 12-month period, then the interest rate borne by the Debentures and the
distribution rate borne by the Preferred Securities will each increase by an
additional one-half of one percent (0.50%) per annum from the 91st day of the
applicable 12-month period such Shelf Registration Statement ceases to be
effective until such time as the earlier to occur of the Shelf Registration
Statement again becoming effective and the end of the Effectiveness Period.
(d) The Company and the Trust shall each be deemed not to have used its
best efforts to keep the Shelf Registration Statement effective during the
Effectiveness Period if either the Trust or the Company voluntarily takes any
action that would result in Electing Holders not being able to offer and sell
any of their Registrable Securities during such period, unless (i) such action
is required by applicable law, (ii) upon the occurrence of any event
contemplated by paragraph 3(d)(2)(iii) below, and such action is taken by the
Trust or the Company in good faith and for valid business reasons or (iii) the
continued effectiveness of the Shelf Registration Statement would require the
Trust to disclose a material financing, acquisition or other corporate
development, and the proper officers of the Company shall have determined in
good faith that such disclosure is not in the best interest of the Company and,
in the case of clause (ii) above, the Company and the Trust thereafter as
promptly as practicable comply with the requirements of paragraph 3(j) below.
Any such period during which the Company and the Trust are permitted to suspend
the effectiveness of the Shelf Registration Statement is referred to herein as
the "Suspension Period."
3. Registration Procedures. In connection with the Shelf Registration
Statement, the following provisions shall apply:
(a) (1) The Company shall not be required to take any action to
name any 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 Xxxxxx has
returned a completed and signed Notice and Questionnaire to the
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Company and the Trust and provided to the Trust and the Company such
information with respect to such Holder or the Registrable Securities
held by such Holder as is, in the reasonable opinion of counsel to the
Trust or the Company, required to enable such Holder to use the
Prospectus for resales of Registrable Securities.
(2) Not less than 30 calendar days prior to the Effective Time of
the Shelf Registration Statement, the Company or the Trust shall mail
the Notice and Questionnaire to each Holder. 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 Xxxxxx has returned a completed and
signed Notice and Questionnaire to the Company and the Trust and
provided to the Trust and the Company such information with respect to
such Holder of the Registrable Securities held by such Holder as is, in
the reasonable opinion of counsel to the Trust or the Company, required
to enable such Holder to use the Prospectus for resales of Registrable
Securities provided, however, that only Holders who have completed and
returned the Notice and Questionnaire and any such additional
information requested of such Holder to the Company on or before the day
that is ten days prior to the Effective Time shall be entitled to be
named as a selling securityholder in the Shelf Registration Statement as
of the Effective Time.
(3) The term "Electing Holder" shall mean any Holder that has
returned a completed and signed Notice and Questionnaire to the Company
and the Trust in accordance with Section 3(a)(1) or 3(a)(2) hereof and
provided to the Trust and the Company such information with respect to
such Holder or the Registrable Securities held by such Holder as is, in
the reasonable opinion of counsel to the Trust or the Company, required
to enable such Holder to use the Prospectus for resales of Registrable
Securities.
(b) The Company and the Trust shall furnish to each Electing
Holder, prior to the Effective Time, a copy of the Shelf Registration
Statement initially filed with the Commission, and shall reasonably
promptly furnish to such Holders copies of each amendment thereto and
each amendment or supplement, if any, to the Prospectus included
therein, and shall consider in good faith for inclusion in each such
document, at the Effective Time such comments as such Holders or their
counsel reasonably may propose, provided, however, that the Company's
obligations set forth in this Section 3(b) shall not require the Company
to delay or postpone the Effective Time or prevent the Company from
otherwise requesting the acceleration of the effectiveness of the Shelf
Registration Statement.
(c) The Company and the Trust shall as promptly as practicable
take such action as may reasonably be necessary so that (i) each of the
Shelf Registration Statement and any amendment thereto and the
Prospectus forming part thereof and any amendment
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or supplement thereto (and each report or other document incorporated
therein by reference in each case) complies as to form in all material
respects with the Securities Act and the rules and regulations
thereunder, (ii) each of the 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) each of the Prospectus forming part of the 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 therein, in the light of the
circumstances under which they were made, not misleading.
(d) (1) The Company shall as promptly as practicable advise the
Purchasers and, in the case of clause (i), the Electing Holders and, if
requested by the Purchasers or any such Electing Holder, confirm such
advice in writing:
(i) when the 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; and
(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.
(2) The Company shall as promptly as practicable advise each
Electing Holder of:
(i) the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement
or the initiation of any proceedings for such purpose;
(ii) the receipt by the Company or the Trust 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
(iii) the happening of any event that requires the making
of any changes in the Shelf Registration Statement or the
Prospectus included therein so that, as of such date, such Shelf
Registration Statement and 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
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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 and the Trust shall each use its reasonable best
efforts to prevent the issuance, and if issued to obtain the withdrawal,
of any order suspending the effectiveness of the Shelf Registration
Statement at the earliest possible time.
(f) The Company and the Trust shall furnish to each Electing
Holder, without charge, at least one copy of the Shelf Registration
Statement and all post-effective amendments thereto, including financial
statements and schedules, and, if such Holder so requests in writing,
all reports, other documents and exhibits that are filed with or
incorporated by reference in the Shelf Registration Statement.
(g) The Company and the Trust shall, during the Effectiveness
Period, deliver to each Electing Holder, 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 Electing Holder may reasonably request; and the Company and the
Trust each consents (except during the continuance of any event
described in Section 3(d)(2)(iii) above or during any Suspension Period)
to the use of the Prospectus and any amendment or supplement thereto by
each of the Electing Holders in connection with the resale of the
Registrable Securities covered by the Prospectus and any amendment or
supplement thereto during the Effectiveness Period.
(h) Prior to any offering of Registrable Securities pursuant to
the Shelf Registration Statement, the Company and the Trust shall use
its reasonable best efforts to (1) 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 resale
under the securities or "blue sky" laws of such jurisdictions within the
United States as any Electing Holder may reasonably request, (2) keep
such registrations or qualifications in effect (subject to any
Suspension Period) 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 (3) take any and all other actions
necessary or advisable to enable the disposition in such jurisdictions
of such Registrable Securities; provided, however, that in no event
shall the Company or the Trust be obligated to (i) qualify generally to
do business or as a foreign corporation or as a dealer in securities in
any jurisdiction where each would not otherwise be required to so
qualify but for this Section 3(h), (ii) file any general consent to
service of process in any jurisdiction where it is not as of the date
hereof so subject or (iii) subject itself to taxation in any
jurisdiction where it is not otherwise so subject.
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(i) Unless any Registrable Securities shall be in book-entry only
form, the Company and the Trust shall cooperate with the Electing
Holders to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold pursuant to
the Shelf Registration Statement free of any restrictive legends and in
such permitted denominations and registered in such names as Electing
Holders may reasonably request in connection with the resale of
Registrable Securities pursuant to the Shelf Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraph
3(d)(2)(iii) above, the Company and the Trust shall as promptly as
practicable prepare a post-effective amendment or supplement to the
Shelf Registration Statement or the Prospectus, or any document
incorporated therein by reference, or file any other required document
so that, as thereafter delivered to purchasers 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 (except, in
each case, for an untrue statement of a material fact or omission of a
material fact made in reliance on and in conformity with written
information furnished to the Trust or the Company by or on behalf of any
Electing Holders); provided, however, if the proper officers of the
Company determine in good faith that disclosure in the Shelf
Registration Statement of a material financing, acquisition or other
corporate transaction would not be in the best interests of the Company,
the Company and the Trust shall not be required to prepare and file such
amendment, supplement or document for such period as such officers shall
have determined in good faith is in the best interests of the Company.
Upon receipt of written notice from the Company or the Trust of the
occurrence of any event contemplated by paragraph 3(d)(2)(iii) above or
of any Suspension Period, each Holder shall forthwith discontinue
disposition of Registrable Securities until such Holder has received
copies of the supplemental or amended Prospectus required by this
paragraph 3(j), or until such Holder is advised by the Company or the
Trust that the use of the Prospectus may be resumed and, if so directed
by the Company, such Holder shall deliver to the Company (at the
Company's expense) all copies then in such Xxxxxx's possession of the
Prospectus covering such Registrable Securities current at the time of
such notice.
(k) Not later than the Effective Time of any Shelf Registration
Statement hereunder, the Company and the Trust shall each provide a
CUSIP number for the Preferred Securities registered under such Shelf
Registration Statement; in the event of and at the time of any
distribution of the Debentures to Holders, the Company and the Trust
shall provide a CUSIP number for the Debentures and provide the
applicable trustee with certificates for such Registrable Securities, in
a form eligible for deposit with DTC.
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(l) The Company and the Trust shall each use its reasonable best
efforts to comply with all applicable Rules and Regulations, and to make
generally available to its securityholders as soon as practicable, but
in any event not later than 18 months after (i) the effective date (as
defined in Rule 158(c) under the Securities Act) of the Shelf
Registration Statement, (ii) the effective date 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 of the Company and its subsidiaries
complying with Section 11 (a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule 158).
(m) The Company and the Trust shall each use its reasonable best
efforts to cause the Indenture, the Trust Agreement and the Guarantee to
be qualified under the Trust Indenture Act in a timely manner.
(n) In the event of an underwritten offering conducted pursuant
to Section 6 hereof, the Company and the Trust shall, if requested, as
promptly as practicable include or incorporate in a Prospectus
supplement or post-effective amendment to the 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 it is notified
of the matters to be included or incorporated in such Prospectus
supplement or post-effective amendment.
(o) The Company and the Trust shall enter into such customary
agreements (including an underwriting agreement in customary form in the
event of an underwritten offering conducted pursuant to Section 6
hereof) and take all other appropriate action in order to expedite and
facilitate the registration and 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 reasonably similar to those set forth in Section 5 hereof
with respect to all parties to be indemnified pursuant to Section 5
hereof.
(p) The Company and the Trust shall:
(i) (A) make reasonably available for inspection by
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 or other documents and properties of the
Company, its subsidiaries and the Trust, and (B) cause the
officers, directors, employees, trustees and agents of the
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Company and the Trust to supply all information reasonably
requested by such Holders or any such underwriter, attorney,
accountant or agent in connection with the Shelf Registration
Statement, in each case, as is customary for similar due
diligence examinations; provided, however, that each Electing
Holder and its representatives and agents shall execute an
agreement (in form reasonably acceptable to the Company)
providing that all records, information and documents that are
designated in writing by the Company and the Trust, in good
faith, as confidential shall be kept confidential by such Holders
and any such underwriter, attorney, accountant or agent, unless
such disclosure is made in connection with a court proceeding or
required by law, or such records, information or documents become
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, in the Company's reasonable
judgment, disrupt the Company's conduct of its business, such
inspection and information gathering shall be coordinated on
behalf of the Electing Holders and the other parties entitled
thereto by one counsel designated by and on behalf of Electing
Holders and other parties;
(ii) in connection with any underwritten offering
conducted pursuant to Section 6 hereof, make such representations
and warranties to the Holders participating in such underwritten
offering and to the Managing Underwriters, in form, substance and
scope as are customarily made by the Company and the Trust to
underwriters in primary underwritten offerings of equity and
convertible preferred and debt securities and covering matters
substantially similar to those set forth in the Purchase
Agreement;
(iii) in connection with any underwritten offering
conducted pursuant to Section 6 hereof, obtain opinions of
counsel (which counsel may be an employee of the Company) to the
Company and the Trust (which counsel and opinions (in form, scope
and substance) shall be reasonably satisfactory to the Managing
Underwriters) addressed to each Holder participating in such
underwritten offering and the underwriters, covering such matters
as are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested
by such Holders and underwriters substantially similar to those
covered in the Purchase Agreement (it being agreed that the
matters to be covered by such opinions shall include, without
limitation, as of the date of the opinion and as of the Effective
Time of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, the absence
from the Shelf Registration Statement and the Prospectus,
including the documents incorporated by reference therein, of an
untrue statement of a material fact or the omission of a material
fact
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required to be stated therein or necessary to make the
statements therein not misleading;
(iv) 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 the Trust, addressed to each
Holder participating in such underwritten offering (if such
Holder has provided such letter, representations or
documentation, if any, required for such "cold comfort" letter to
be so addressed) and the underwriters, in customary form and
covering matters of the type customarily covered in "cold
comfort" letters in connection with primary underwritten
offerings substantially similar to those covered pursuant to the
Purchase Agreement; and
(v) deliver such documents and certificates as may be
reasonably requested by any Holders participating in such
underwritten offering and the Managing Underwriters, if any,
including, without limitation, certificates to evidence
compliance with Section 3(j) hereof and with any conditions
contained in the underwriting agreement or other agreements
entered into by the Company and the Trust.
(q) The Company and the Trust shall each use its reasonable best
efforts to cause the Common Stock issuable upon conversion of the
Preferred Securities to be listed for quotation 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 the Shelf
Registration Statement hereunder.
(r) The Company and the Trust shall each use reasonable best
efforts to take all other steps reasonably necessary to effect the
registration, offering and resale of the Registrable Securities covered
by the Shelf Registration Statement contemplated hereby.
(s) Upon receipt of written notice from the Company that a
Suspension Period is in effect, each Holder shall forthwith discontinue
disposition of Registrable Securities until such Holder has received
copies of the supplemental or amended Prospectus required by Section
3(j) hereof, or until such Holder is advised in writing by the Company
that the use of the Prospectus may be resumed, and, if so directed by
the Company, such Holder shall deliver to the Company (at the Company's
expense) all copies then in such Xxxxxx's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of
such notice.
4. Registration Expenses. The Company and the Trust shall each bear all
reasonable fees and expenses customarily borne by issuers in a non-underwritten
secondary
13
offering by selling securityholders or in an underwritten offering, as the case
may be, 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(p)(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 to be included in such underwritten offering (or, in any such other
event, included in the Shelf Registration Statement) to represent them.
5. Indemnification and Contribution.
(a) Indemnification by the Company. Upon the registration of the
Registrable Securities pursuant to Section 2 hereof, and in consideration of the
agreements of the Electing Holders and any underwriters, selling agents or other
securities professionals contained in Section 5(b) hereof, the Company and the
Trust jointly and severally shall indemnify and hold harmless each Electing
Holder and each underwriter, selling agent or other securities professional, if
any, which participates in the disposition of Registrable Securities against any
losses, claims, damages or liabilities, joint or several, to which such 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 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, subject to Section 5(d) below, shall reimburse such
person for any expenses reasonably incurred by them in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that neither the Company nor the Trust shall be
liable in 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 any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company or the Trust
by such 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
participates in the disposition of Registrable Securities shall, as a
consequence of participating in such disposition of Registrable Securities,
severally and not jointly, (i) indemnify and hold harmless the Company and the
Trust against any losses, claims, damages or liabilities to which the Company
and the Trust may become subject, under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in
14
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material 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 in such
Registration Statement or Prospectus, or any amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Company and the Trust by such Xxxxxx, underwriter, selling agent or other
securities professional expressly for use therein, and (ii) shall reimburse the
Company and the Trust for any legal or other expenses reasonably incurred by the
Company and the Trust 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 Section 5(a) or 5 (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 the indemnifying party under such subsection, notify the
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 such subsection. In
case any action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent it shall 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 shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation, provided,
however, that the indemnifying parties shall not, in connection with any one
such proceeding or separate but substantially similar actions or proceedings
arising out of the same general allegations, be liable for the fees and expenses
of more than one separate firm of attorneys at any time for all indemnified
parties, except to the extent that local counsel, in addition to its regular
counsel, is required in order to effectively defend against such action or
proceeding. 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 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.
15
(d) Contribution. If the indemnification provided for in this Section 5
is unavailable to 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
parties on the one hand and the indemnified parties on the other 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 a 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 the Trust and the Company on the one hand or
by such Xxxxxx, underwriter,, selling agent or other securities professional on
the other, 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 in this Section 5(d) 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. 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. 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.
(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 amounts in excess of the dollar amount of the
proceeds to be received by such Holder from the resale 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
total price at which Registrable Securities underwritten by it and distributed
to the public were offered to the public.
(f) The obligations of the Company and the Trust under this Section 5
shall be in addition to any liability which the Company and the Trust may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Holder or any
16
underwriter, selling agent or other securities professional within the meaning
of the Securities Act; and the obligations of any Holder or any underwriter,
selling agent or other securities professional under this Section 5 shall be in
addition to any other liability which the respective person may otherwise have
and shall extend, upon the same terms and conditions, to each director of the
Company, each officer of the Company and Administrative Trustee of the Trust who
signs the Shelf Registration Statement and to each person, if any, who controls
the Trust and the Company within the meaning of the Securities Act.
6. Underwritten Offering. Any Electing Holder of Registrable Securities
who desires to do so may sell Registrable Securities (in whole or in part) in an
underwritten offering; provided that (i) the Holders of at least a majority in
aggregate principal amount of the outstanding Registrable Securities shall
request such an offering and (ii) at least such aggregate principal amount of
such Registrable Securities shall be included in such offering; and provided
further that the Company shall not be obligated to cooperate with more than one
underwritten offering during the Effectiveness Period. Upon receipt of such a
request, the Company and the Trust shall provide all Holders of Registrable
Securities written notice of the request, which notice shall inform such Holders
that they have the opportunity to participate in the 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 (including, subject to clause (ii) above, the
size of the offering) will be approved by the Holders of a majority of the
Registrable Securities to be included in such offering; provided, however, that
such investment bankers and managers and underwriting arrangements must be
reasonably satisfactory to the Company and the Trust. No Holder may participate
in any underwritten offering contemplated hereby unless (a) such Holder agrees
to sell such Xxxxxx's Registrable Securities to be included in the underwritten
offering in accordance with any approved underwriting arrangements, (b) such
Holder 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) if
such Holder is not then an Electing Holder, such Xxxxxx returns a completed and
signed Notice and Questionnaire to the Company and the Trust in accordance with
Section 3(a)(2) hereof (but in no event later than 10 days prior to commencement
of the underwritten offering) and provides to the Trust and the Company, in
writing, any information with respect to such Holder or the Registrable
Securities held by such Holder as is, in the reasonable opinion of counsel to
the Trust or the Company, required under applicable law to enable such Holder to
use such Prospectus for resales of such Registrable Securities, each within a
reasonable amount of time before such underwritten offering. The Holders
participating in any underwritten offering shall be responsible for any
underwriting discounts and commissions. The Company and the Trust shall pay all
expenses customarily borne by issuers, including but not limited to filing fees,
the fees and disbursements of its counsel and independent public accountants and
any printing expenses incurred in connection with such underwritten offering.
Notwithstanding the foregoing or the provisions of Section 3(n) hereof, upon
receipt of a request from the Managing Underwriter or a representative of
Holders
17
of a majority of the Registrable Securities to be included in an underwritten
offering to prepare and file an amendment or supplement to the Shelf
Registration Statement and Prospectus in connection with an underwritten
offering, the Company and the Trust may delay the filing of any such amendment
or supplement for up to 90 days if the Company shall have determined in good
faith that the Company has a bona fide business reason for such delay.
7. Miscellaneous.
(a) Other Registration Rights. The Company has granted and may grant
registration rights that would permit any Person that is a third party the right
to piggyback on any Shelf Registration Statement, provided that if the Managing
Underwriter of any underwritten offering conducted pursuant to Section 6 hereof
notifies the Company and the Electing Holders that the total amount of
securities which the Electing Holders and the holders of such piggyback rights
intend to include in any Shelf Registration Statement is such as to materially
and adversely affect the success of such offering, then the amount, number or
kind of securities to be offered for the account of Holders (other than holders
of registration rights under agreements outstanding on the date of this
Agreement whose rights shall be as set forth in such agreements) or such other
holders (in the case of registration rights granted after the date hereof) will
be reduced to the extent necessary to reduce the total amount of securities to
be included in such offering to the amount, number and kind recommended by the
Managing Underwriter, provided that no such reduction shall otherwise affect the
right of such Holders to sell Registrable Securities in non-underwritten
offerings.
(b) Amendments and Waivers. This Agreement, including this Section 7(b),
may be amended, and waivers or consents to departures from the provisions hereof
may be given, only by a written instrument duly executed by the Company, the
Trust and 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 delivered to such
Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at such address set forth on the record
books of the Company or the Trust, as the case may be;
(ii) if to the Purchasers, initially at the address set forth in
the Purchase Agreement; and
18
(iii) if to the Company or the Trust, initially at its address
set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have duly given when
received.
The Purchasers or the Company and the Trust by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(d) Parties in Interest. The parties to this Registration Rights
Agreement intend that only Holders of Registrable Securities from time to time
shall be entitled to receive the benefits of this Registration Rights Agreement
and that any Electing Holder shall be bound by the terms and provisions of this
Registration Rights Agreement by reason of such election with respect to the
Registrable Securities which are included in a Shelf Registration Statement. All
the terms and provisions of this Registration Rights Agreement shall be binding
upon, shall inure to the benefit of and shall be enforceable by the respective
successors and assigns of the parties hereto and any Holder from time to time of
the Registrable Securities to the aforesaid extent. In the event that any
transferee of any Holder of Registrable Securities shall acquire Registrable
Securities, in any manner, whether by gift, bequest, purchase, operation of law
or otherwise, such transferee shall, without any further writing or action of
any kind, be entitled to receive the benefits of and, if an Electing Holder, be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Registration Rights Agreement to the aforesaid
extent.
(e) Counterparts. This Registration Rights 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 Registration Rights Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This Registration Rights 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
hereto shall be enforceable to the fullest extent permitted by law.
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Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Trust and you.
Very truly yours,
Big Flower Trust I
By:
----------------------------------
Name:
Title:
Big Flower Holdings, Inc.
By:
----------------------------------
Name:
Title:
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
Xxxxxxx, Xxxxx & Co.
Bear, Xxxxxxx & Co. Inc.
BT Xxxx Xxxxx Incorporated
Credit Suisse First Boston Corporation
X.X. Xxxxxx Securities Inc.
By:
------------------------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Purchasers
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