Exhibit 4.1
$
13% SENIOR SECURED DISCOUNT DEBENTURES DUE 2009
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REGISTRATION RIGHTS AGREEMENT
Dated as of June 11, 1999
Among
SFAC NEW HOLDINGS, INC.
and
Holders of the 13% Senior Secured Discount Debentures due 2009
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TABLE OF CONTENTS
Page
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1. Registered Exchange Offer..............................................1
2. Shelf Registration.....................................................4
3. Liquidated Damages.....................................................6
4. Hold-Back Agreements...................................................7
5. Registration Procedures................................................7
6. Registration Expenses.................................................12
7. Indemnification.......................................................12
8. Contribution..........................................................15
9. Rules 144 and 144A....................................................16
10. Underwritten Registrations............................................16
11. Miscellaneous.........................................................16
(a) Amendments and Waivers.........................................16
(b) Notices........................................................17
(c) Successors and Assigns.........................................17
(d) Counterparts...................................................17
(e) Definition of Terms............................................17
(f) Headings.......................................................17
(g) Governing Law..................................................18
(h) No Inconsistent Agreements.....................................18
(i) No Piggyback on Registrations..................................18
(j) Severability...................................................18
(k) Entire Agreement...............................................18
(l) Attorneys' Fees................................................18
(m) Securities Held by the Company or its Affiliates...............19
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of June 11, 1999 (this
"Agreement"), by and among SFAC New Holdings, Inc., a Delaware corporation (the
"Company") and the Holders of Securities (as defined herein) who have received
Securities pursuant to the Initial Exchange Offer (as defined herein) or in any
subsequent exchange offer (the "Holders").
The Company proposes to exchange (i) its 13% Senior Secured Discount
Debentures due 2009 (collectively, the "Securities" and each a "Security") and
(ii) an aggregate of up to 31,925 shares of common stock, no par value (the
"Debentureholder Common Stock"), of the Company for all outstanding 13% Senior
Secured Discount Debentures due 2005 issued by Specialty Foods Acquisition
Corporation (the "SFAC Debentures") (such offer is referred to as the "Initial
Exchange Offer"), upon the terms and subject to the conditions set forth in the
Offer to Exchange and Consent Solicitation dated May 10, 1999 of the Company
(the "Offering Circular").
The Securities and the Debentureholder Common Stock are being offered
exclusively to holders of the SFAC Debentures who are institutional investors
who meet the definition of "Accredited Investor" under Rule 501(a)(1), (a)(2) or
(a)(3) of Regulation D under the Securities Act of 1933, as amended (the
"Securities Act").
As an inducement to the holders of the SFAC Debentures to tender their
SFAC Debentures pursuant to the Initial Exchange Offer, the Company has
undertaken to register Exchange Securities (as defined herein) under the
Securities Act and to take certain other actions with respect to the Exchange
Securities.
Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Offering Circular.
In consideration of the premises and the mutual agreements set forth
herein, the parties hereto hereby agree as follows:
1. Registered Exchange Offer. The Company shall (i) prepare and, promptly,
but in any event, not later than 120 days following the date of original
issuance of the Securities (the "Original Issue Date"), file with the Securities
and Exchange Commission (the "Commission") a registration statement (the
"Exchange Offer Registration Statement") on an appropriate form under the
Securities Act with respect to a proposed offer to the Holders of the Securities
(the "Registered Exchange Offer") to issue and deliver to such Holders of the
Securities, in exchange for the Securities, a like aggregate principal amount of
debt securities of the Company (collectively, the "Exchange Securities" and
individually an "Exchange Security") that are identical in all material respects
to the Securities, except for the transfer
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restrictions relating to the Securities, (ii) use its reasonable best efforts to
cause the Exchange Offer Registration Statement to become effective under the
Securities Act as promptly as practicable after the filing thereof, but in no
event later than 180 days after the Original Issue Date and the Registered
Exchange Offer to be consummated no later than 195 days after the Original Issue
Date and (iii) keep the Exchange Offer Registration Statement effective for not
less than 30 days (or longer, if required by applicable law) after the date on
which notice of the Registered Exchange Offer is mailed to the Holders (such
period being called the "Exchange Offer Registration Period"). The Exchange
Securities will be issued under the Indenture or an indenture (the "Exchange
Securities Indenture") between the Company and the Trustee, as trustee (the
"Exchange Securities Trustee"), such indenture to be identical in all material
respects to the Indenture, except for the transfer restrictions relating to the
Securities (as described above). The Registered Exchange Offer shall not be
subject to any conditions, other than that the Registered Exchange Offer does
not violate applicable law or any applicable interpretation of the staff of the
Commission.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Registered Exchange Offer, it
being the objective of such Registered Exchange Offer to enable each Holder
electing to exchange Securities for Exchange Securities (assuming that such
Holder (a) is not an affiliate of the Company or an Exchanging Dealer (as
defined herein) not complying with the requirements of the next sentence, (b)
acquires the Exchange Securities in the ordinary course of such ▇▇▇▇▇▇'s
business and (c) has no arrangements or understandings with any person to
participate in the distribution of the Exchange Securities) to trade such
Exchange Securities from and after their receipt without any limitations or
restrictions under the Securities Act and without material restrictions under
the securities laws of the several states of the United States. The Company, the
Holders and each Exchanging Dealer acknowledge that, pursuant to current
interpretations by the Commission's staff of Section 5 of the Securities Act,
each Holder that is a broker-dealer electing to exchange Securities, acquired
for its own account as a result of market-making activities or other trading
activities, for Exchange Securities (an "Exchanging Dealer"), is required to
deliver a prospectus containing substantially the information set forth in Annex
A hereto on the cover, in Annex B hereto in the "Exchange Offer Procedures"
section and the "Purpose of the Exchange Offer" section and in Annex C hereto in
the "Plan of Distribution" section of such prospectus in connection with a sale
of any such Exchange Securities received by such Exchanging Dealer pursuant to
the Registered Exchange Offer.
(c) In connection with the Registered Exchange Offer, the Company
shall:
(i) mail to each Holder a copy of the prospectus forming part
of the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
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(ii) keep the Registered Exchange Offer open for not less than
30 days (or longer, if required by applicable law) after the date on which
notice of the Registered Exchange Offer is mailed to the Holders;
(iii) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of
New York;
(iv) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York City time, on the last
business day on which the Registered Exchange Offer shall remain open; and
(v) otherwise comply in all respects with all laws that are
applicable to the Registered Exchange Offer.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Company shall:
(i) accept for exchange all Securities validly tendered and
not properly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all Securities so
accepted for exchange; and
(iii) cause the Trustee or the Exchange Securities Trustee, as
the case may be, promptly to authenticate and deliver to each Holder,
Exchange Securities equal in principal amount to the Securities of such
Holder so accepted for exchange.
(e) The Company shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
prospectus contained therein in order to permit such prospectus to be used by
all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Exchange Securities; provided that (i) in the case where
such prospectus and any amendment or supplement thereto must be delivered by an
Exchanging Dealer, such period shall be the lesser of 180 days and the date on
which all Exchanging Dealers have sold all Exchange Securities held by them and
(ii) the Company shall make such prospectus and any amendment or supplement
thereto available to any broker-dealer for use in connection with any resale of
any Exchange Securities for a period of not less than 90 days after the
consummation of the Registered Exchange Offer.
(f) The Indenture or the Exchange Securities Indenture, as the case
may be, shall provide that the Securities and the Exchange Securities shall vote
and consent together on all matters as one class and that none of the Securities
or
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the Exchange Securities will have the right to vote or consent as a separate
class on any matter.
(g) Interest on each Exchange Security issued pursuant to the
Registered Exchange Offer will accrue from the last interest payment date on
which interest was paid on the Securities surrendered in exchange therefor or,
if no interest has been paid on the Securities, from the Original Issue Date.
(h) Each Holder participating in the Registered Exchange Offer may
be required to represent to the Company that at the time of the consummation of
the Registered Exchange Offer (i) any Exchange Securities received by such
Holder in the Exchange Offer will be acquired in the ordinary course of
business, (ii) such Holder will have no arrangements or understanding with any
person to participate in the distribution of the Securities or the Exchange
Securities within the meaning of the Securities Act and (iii) such Holder is not
an affiliate of the Company or, if it is such affiliate, such Holder will comply
with the registration and prospectus delivery requirements of the Securities Act
to the extent applicable.
(i) Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Exchange Offer Registration Statement and any amendment
thereto and any prospectus forming part thereof and any supplement thereto
complies in all material respects with the Securities Act and the rules and
regulations of the Commission thereunder, (ii) any Exchange Offer Registration
Statement and any amendment thereto does not, when it becomes effective, contain
an untrue statement of a material fact or fail to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
and (iii) any prospectus forming part of any Exchange Offer Registration
Statement, and any supplement to such prospectus, does not, as of the
consummation of the Registered Exchange Offer, 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.
2. Shelf Registration. If (i) because of any change in law or applicable
interpretations thereof by the Commission's staff the Company is not permitted
to effect the Registered Exchange Offer as contemplated by Section 1 hereof, or
(ii) the Exchange Offer Registration Statement is not declared effective within
180 days following the Original Issue Date, or (iii) for any other reason the
Registered Exchange Offer is not consummated within 195 days after the Original
Issue Date, or (iv) any Holder so requests with respect to Securities not
eligible to be exchanged for Exchange Securities in the Registered Exchange
Offer and held by it following the consummation of the Registered Exchange
Offer, or (v) any applicable law or interpretations do not permit any Holder to
participate in the Registered Exchange Offer, or (vi) any Holder that
participates in the Registered Exchange Offer does not receive freely
transferrable Exchange Securities in exchange for tendered Securities, then the
following provisions shall apply:
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(a) The Company shall use its reasonable best efforts to file as
promptly as practicable (but in no event more than 45 days after so required or
requested pursuant to this Section 2) with the Commission, and thereafter shall
use its reasonable best efforts to cause to be declared effective, a shelf
registration statement on an appropriate form under the Securities Act relating
to the offer and sale of the Registrable Securities (as defined herein) by the
Holders thereof from time to time in accordance with the methods of distribution
set forth in such registration statement (hereafter, a "Shelf Registration
Statement") and, together with any Exchange Offer Registration Statement, a
"Registration Statement").
(b) The Company shall use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective in order to permit the
prospectus forming part thereof to be used by Holders of Registrable Securities
for a period of two years from the Original Issue Date or such shorter period
that will terminate when all the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant thereto (in any such case, such
period being called the "Shelf Registration Period"). The Company shall be
deemed not to have used its reasonable best efforts to keep the Shelf
Registration Statement effective during the requisite period if it voluntarily
takes any action that would result in Holders of Registrable Securities covered
thereby not being able to offer and sell such Registrable Securities during that
period. The Company shall not permit any securities other than the Exchange
Securities to be included in the Shelf Registration Statement.
(c) Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Shelf Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder, (ii) any Shelf Registration Statement and any amendment
thereto (in either case, other than with respect to information included therein
in reliance upon or in conformity with written information furnished to the
Company by or on behalf of any Holder specifically for use therein (the
"Holders' Information")) 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
supplement to such prospectus (in either case, other than with respect to
Holders' Information), does not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
3. Liquidated Damages. (a) The parties hereto agree that the Holders of
Registrable Securities will suffer damages if the Company fails to fulfill its
obligations under Section 1 or Section 2, as applicable, and that it would not
be feasible to ascertain the extent of such damages. Accordingly, if (i) the
applicable
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Registration Statement is not filed with the Commission on or prior to 120 days
after the Original Issue Date, (ii) the Exchange Offer Registration Statement or
the Shelf Registration Statement, as the case may be, is not declared effective
within 180 days after the Original Issue Date (or in the case of a Shelf
Registration Statement required to be filed in response to a change in law or
the applicable interpretations of the Commission's staff, if later, within 30
days after publication of the change in law or interpretation), (iii) the
Registered Exchange Offer is not consummated on or prior to 195 days after the
Original Issue Date, or (iv) the Shelf Registration Statement is filed and
declared effective within 120 days after the Original Issue Date or in the case
of a Shelf Registration Statement required to be filed in response to a change
in law or the applicable interpretations of Commission's staff, if later, within
30 days after publication of the change in law or interpretation) but shall
thereafter cease to be effective (at any time that the Company is obligated to
maintain the effectiveness thereof) without being succeeded within 30 days by an
additional Registration Statement filed and declared effective (each such event
referred to in clauses (i) through (iv), a "Registration Default"), the Company
will be obligated to pay, or cause to be paid, in addition to amounts otherwise
due under the Indenture and the Exchange Securities, as liquidated damages, and
not as a penalty, to each Holder of Registrable Securities, an additional amount
during the first 90-day period immediately following the occurrence of one or
more such Registration Defaults, in an amount equal to $0.05 per week per $1,000
Accreted Value of Registrable Securities held by such Holder. The amount of the
liquidated damages thereafter will increase each week by an additional $0.05 per
$1,000 Accreted Value of Registrable Securities, up to a maximum amount of
liquidated damages of $0.30 per week per $1,000 Accreted Value of Registrable
Securities, until (i) the applicable Registration Statement is filed, (ii) the
Exchange Offer Registration Statement is declared effective and the Registered
Exchange Offer is consummated with respect to all validly tendered Securities,
(iii) the Shelf Registration Statement is declared effective or (iv) the Shelf
Registration Statement again becomes effective, as the case may be. Following
the cure of all Registration Defaults, the accrual of liquidated damages will
cease. As used herein, the term "Registrable Securities" means (i) each Security
until the date on which such Security has been exchanged for a freely
transferable Exchange Security in the Registered Exchange Offer, (ii) each
Security until the date on which it has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement or (iii) each Security until the date on which it is distributed to
the public pursuant to Rule 144 under the Securities Act or is saleable pursuant
to Rule 144(k) under the Securities Act. Notwithstanding anything to the
contrary in this Section 3(a), the Company shall not be required to pay
liquidated damages to a Holder of Registrable Securities if such Holder failed
to comply with its obligations to make the representations set forth in the
second to last paragraph of Section 1 or failed to provide the information
required to be provided by it, if any, pursuant to Section 5(n) upon the
Company's request.
(b) The Company shall notify the Trustee and the Paying Agent under
the Indenture immediately upon the happening of each and every
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Registration Default. The Company shall pay the liquidated damages due on the
Registrable Securities by depositing with the Paying Agent (which may not be the
Company for these purposes), in trust, for the benefit of the Holders thereof,
prior to 10:00 a.m., New York City time, on or before the next interest payment
date specified by the Indenture and the Securities, immediately available funds
in sums sufficient to pay the liquidated damages then due. The liquidated
damages due shall be payable on each interest payment date specified by the
Indenture and the Securities to the record holder entitled to receive the
interest payment to be made on such date. Each obligation to pay liquidated
damages shall be deemed to accrue from and including the date of the applicable
Registration Default.
(c) The parties hereto agree that the liquidated damages provided
for in this Section 3 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by Holders of Registrable
Securities by reason of the failure of (i) the Shelf Registration Statement or
the Exchange Offer Registration Statement to be filed, (ii) the Shelf
Registration Statement to remain effective or (iii) the Exchange Offer
Registration Statement to be declared effective and the Registered Exchange
Offer to be consummated, in each case to the extent required by this Agreement.
4. Hold-Back Agreements. The Company agrees without the prior written
consent of the Holders of a majority of the aggregate principal amount of the
then outstanding Registrable Securities, not to effect any public or private
sale or distribution (including a sale pursuant to Regulation D under the
Securities Act) of any securities the same as or similar to those covered by a
Registration Statement filed pursuant to Section 1 or 2 hereof, or any
securities convertible into or exchangeable or exercisable for such securities,
during the 10 days prior to, and during the 30-day period beginning on, (A) the
effective date of any Registration Statement filed pursuant to Sections 1 and 2
hereof unless the Holders of a majority in principal amount of Registrable
Securities to be included in such Registration Statement consent or (B) the
commencement of an underwritten public distribution of Registrable Securities,
where the managing underwriter so requests.
5. Registration Procedures. In connection with any Registration Statement,
the following provisions shall apply:
(a) The Company shall (i) include the information set forth in Annex
A hereto on the cover, in Annex B hereto in the "Exchange Offer Procedures"
section and the "Purpose of the Exchange Offer" section and in Annex C hereto in
the "Plan of Distribution" section of the prospectus forming a part of the
Exchange Offer Registration Statement, and include the information set forth in
Annex D hereto in the Letter of Transmittal delivered pursuant to the Registered
Exchange Offer and (ii) if requested by the Holders, include the information
required by Items 507 or 508 of Regulation S-K, as applicable, in the prospectus
forming a part of the Exchange Offer Registration Statement.
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(b) The Company shall advise each Exchanging Dealer and the Holders
(if applicable) and, if requested by any such person, confirm such advice in
writing (which advice pursuant to clauses (ii) - (v) hereof shall be accompanied
by an instruction to suspend the use of the prospectus until the requisite
changes have been made):
(i) when any Registration Statement and any amendment thereto
has been filed with the Commission and when such Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments,
supplements to any Registration Statement or the prospectus included
therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of any Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities or the
Exchange Securities for sale in any jurisdiction or the initiation
threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the making of
any changes in any Registration Statement or the prospectus included
therein in order that the statements therein are not misleading and do not
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading.
(c) The Company will use its best efforts to prevent the issuance of
any order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of a prospectus or suspending the
qualification (or exemption from qualification) of any of the Securities for
sale in any jurisdiction, and if any such order is issued, and will use its
reasonable best efforts to obtain the withdrawal at the earliest possible time
of any order suspending the effectiveness of any Registration Statement.
(d) The Company will furnish to each Holder of Registrable
Securities included within the coverage of any Shelf Registration Statement,
without charge, at least one conformed copy of such Shelf Registration Statement
and any post-effective amendment thereto, including financial statements and
schedules and, if any such Holder so requests in writing, all exhibits thereto
(including those, if any, incorporated by reference).
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(e) The Company will, during the Shelf Registration Period, promptly
deliver to each Holder of Registrable Securities included within the coverage of
any Shelf Registration Statement, 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 to the use of such prospectus
or any amendment or supplement thereto by each of the selling Holders of
Registrable Securities in connection with the offer and sale of the Registrable
Securities covered by such prospectus or any amendment or supplement thereto.
(f) The Company will furnish to each Exchanging Dealer, and to any
Holder who so requests, without charge, at least one conformed copy of the
Exchange Offer Registration Statement and any post-effective amendment thereto,
including financial statements and schedules and, if any Exchanging Dealer or
any Holder requests in writing, all exhibits thereto (including those, if any,
incorporated by reference).
(g) The Company will, during the Exchange Offer Registration Period
or the Shelf Registration Period, as applicable, promptly deliver to each
Exchanging Dealer and such other persons that are required to deliver a
prospectus following the Registered Exchange Offer, without charge, as many
copies of the final prospectus included in the Exchange Offer Registration
Statement or the Shelf Registration Statement and any amendment or supplement
thereto as such Exchanging Dealer or other persons may reasonably request; and
the Company consents to the use of such prospectus or any amendment or
supplement thereto by any such Exchanging Dealer or other persons, as
applicable, as aforesaid.
(h) Prior to the effective date of any Registration Statement, the
Company will use its reasonable best efforts to register or qualify, or
cooperate with the Holders of Securities or Exchange Securities included therein
and their respective counsel in connection with the registration or
qualification of, such Securities or Exchange Securities for offer and sale
under the securities or blue sky laws of such jurisdictions as any such Holder
reasonably requests in writing and do any and all other acts or things necessary
or advisable to enable the offer and sale in such jurisdictions of the
Securities or Exchange Securities covered by such Registration Statement;
provided that the Company will not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to take any
action which would subject it to general service of process or to taxation in
any such jurisdiction where it is not then so subject.
(i) The Company will cooperate with the Holders of Securities or
Exchange Securities to facilitate the timely preparation and delivery of
certificates representing Securities or Exchange Securities to be sold pursuant
to any Registration Statement free of any restrictive legends and in such
denominations and
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registered in such names as the Holders thereof may request in writing prior to
sales of Securities or Exchange Securities pursuant to such Registration
Statement.
(j) If any event contemplated by Section 5(b)(ii) through (v) occurs
during the period for which the Company is required to maintain an effective
Registration Statement, the Company will promptly prepare and file with the
Commission a post-effective amendment to the Registration Statement or a
supplement to the related prospectus or file any other required document so
that, as thereafter delivered to purchasers of the Securities or Exchange
Securities from a Holder, the prospectus will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(k) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Securities and the
Exchange Securities, as the case may be, and provide the applicable trustee with
printed certificates for the Securities or the Exchange Securities, as the case
may be, in a form eligible for deposit with The Depository Trust Company.
(l) The Company will comply with all applicable rules and
regulations of the Commission and will make generally available to its security
holders as soon as practicable after the effective date of the applicable
Registration Statement an earning statement satisfying the provisions of Section
11(a) of the Securities Act; provided that in no event shall such earning
statement be delivered later than 45 days after the end of a 12 month period (or
90 days, if such period is a fiscal year) beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of the
applicable Registration Statement, which statement shall cover such 12-month
period.
(m) The Company will cause the Indenture or the Exchange Securities
Indenture, as the case may be, to be qualified under the Trust Indenture Act as
required by applicable law in a timely manner.
(n) The Company may require each Holder of Registrable Securities to
be registered pursuant to any Shelf Registration Statement to furnish to the
Company such information concerning the Holder and the distribution of such
Registrable Securities as the Company may from time to time reasonably require
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.
(o) In the case of a Shelf Registration Statement, each Holder of
Registrable Securities to be registered pursuant thereto agrees by acquisition
of such Registrable Securities that, upon receipt of any notice from the Company
pursuant to Section 5(b)(ii) through (v), such Holder will discontinue
disposition of
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such Registrable Securities until such ▇▇▇▇▇▇'s receipt of copies of the
supplemental or amended prospectus contemplated by Section 5(j) or until advised
in writing (the "Advice") by the Company that the use of the applicable
prospectus may be resumed. If the Company shall give any notice under Section
5(b)(ii) through (v) during the period that the Company is required to maintain
an effective Registration Statement (the "Effectiveness Period"), such
Effectiveness Period shall be extended by the number of days during such period
from and including the date of the giving of such notice to and including the
date when each seller of Registrable Securities covered by such Registration
Statement shall have received (x) the copies of the supplemental or amended
prospectus contemplated by Section 5(j) (if an amended or supplemental
prospectus is required) or (y) the Advice (if no amended or supplemental
prospectus is required).
(p) In the case of a Shelf Registration Statement, the Company shall
enter into such customary agreements (including, if requested, an underwriting
agreement in customary form) and take all such other action, if any, as Holders
of a majority in aggregate principal amount of the Securities and Exchange
Securities being sold or the managing underwriters (if any) shall reasonably
request in order to facilitate any disposition of Securities or Exchange
Securities pursuant to such Shelf Registration Statement.
(q) In the case of a Shelf Registration Statement, the Company shall
(i) make reasonably available for inspection by a representative of, and Special
Counsel (as defined below) acting for, Holders of a majority in aggregate
principal amount of the Securities and Exchange Securities being sold and any
underwriter participating in any disposition of Securities and Exchange
Securities pursuant to such Shelf Registration Statement, all relevant financial
and other records, pertinent corporate documents and properties of the Company
and it subsidiaries and (ii) use its reasonable best efforts to have its
officers, directors, employees, accountants and counsel supply all relevant
information reasonably requested by such representative, Special Counsel or any
such underwriter (an "Inspector") in connection with such Shelf Registration
Statement.
(r) In the case of a Shelf Registration Statement, the Company
shall, if requested by Holders of a majority in aggregate principal amount of
the Securities and Exchange Securities being sold, their Special Counsel, or the
managing underwriters (if any) in connection with such Shelf Registration
Statement, use its reasonable best efforts to cause (i) its counsel to deliver
an opinion relating to the Shelf Registration Statement and the Securities and
Exchange Securities, as applicable, in customary form, (ii) its officers to
execute and deliver all customary documents and certificates requested by
Holders of a majority in aggregate principal amount of the Securities and
Exchange Securities being sold, their Special Counsel or the managing
underwriters (if any) and (iii) its independent public accountants to provide a
comfort letter in customary form subject to receipt of appropriate
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documentation as contemplated, and only if permitted, by Statement of Auditing
Standards No. 72.
6. Registration Expenses. The Company will bear all fees and expenses
incurred in connection with the performance of its obligations under Sections 1,
2, 3, 4 and 5 and the Company will reimburse the Holders for the reasonable fees
and disbursements of one firm of attorneys in addition to any local counsel)
chosen by the Holders of a majority in aggregate principal amount of the
Securities and Exchange Securities to be sold pursuant to each Registration
Statement or Shelf Registration Statement (including, without limitation, any
underwritten registrations) (the "Special Counsel") acting for the Holders in
connection therewith and other reasonable and necessary out-of-pocket expenses
of the Holders incurred in connection with the registration of Exchange
Securities. The Company shall pay all documentary, stamp, transfer or other
transactional taxes attributable to the issuance or delivery of the Exchange
Securities in exchange for the Securities; provided that the Company shall not
be required to pay taxes payable in respect of any transfer involved in the
issuance or delivery of any Exchange Security in a name other than that of the
holder of the Securities in respect of which such Exchange Security is being
issued.
7. Indemnification. (a) In the event of a Shelf Registration Statement or
in connection with any prospectus delivery pursuant to an Exchange Offer
Registration Statement by an Exchanging Dealer, as applicable, the Company shall
indemnify and hold harmless each Holder (including, without limitation, any such
Exchanging Dealer), its affiliates, their respective officers, directors,
employees, representatives and agents, and each person, if any, who controls
such Holder within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 7 and Section 8 as a
Holder) from and against any loss, claim, damage or liability, joint or several,
or any action in respect thereof (including, without limitation, any loss,
claim, damage, liability or action relating to purchases and sales of Securities
or Exchange Securities), to which that Holder may become subject, whether
commenced or threatened, under the Securities Act, the Exchange Act, any other
federal or state statutory law or regulation, at common law or otherwise as
incurred, insofar as such loss, claim, damage, liability or action, directly or
indirectly, arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any such Registration Statement
or any prospectus forming part thereof or in any amendment or supplement thereto
or (ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and shall reimburse each Holder promptly upon demand for any legal
or other expenses reasonably incurred by that Holder in connection with
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action (including, without limitation, reasonable costs and expenses incurred
in connection with investigating, preparing,
13
pursing or defending against any of the foregoing) as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in
conformity with any Holders' Information; and provided, further, that with
respect to any such untrue statement in or omission from any related preliminary
prospectus, the indemnity agreement contained in this Section 7(a) shall not
inure to the benefit of any Holder from whom the person asserting any such loss,
claims, damage, liability or action received Securities or Exchange Securities
to the extent that such loss, claim, damage, liability or action of or with
respect to such Holder results from the fact that (A) a copy of the final
prospectus was not sent or given to such person at or prior to the written
confirmation of the sale of such Securities or Exchange Securities to such
person and (B) the untrue statement in or omission from the related preliminary
prospectus was corrected in the final prospectus unless, in either case, such
failure to deliver the final prospectus was a result of non-compliance by the
Company with Section 5(d), 5(e) or 5(g).
(b) In the event of a Shelf Registration Statement, each Holder
shall indemnify and hold harmless the Company, its affiliates, their respective
officers, directors, employees, representatives and agents, each person, if any,
who controls the Company within the meaning of the Securities Act or the
Exchange Act (collectively referred to for purposes of this Section 7(b) and
Section 8 as the Company), from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company may become subject, whether commenced or threatened, under the
Securities Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any such Registration
Statement or any prospectus forming part thereof or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, in the light of the circumstances
under which they were made, not misleading, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with any Holders'
Information furnished to the Company by such Holder, and shall reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending or preparing to defend against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that no such Holder shall be liable for any indemnity claims hereunder in excess
of the amount of net proceeds received by such Holder from the sale of
Securities or Exchange Securities pursuant to such Shelf Registration Statement.
14
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 7(a) or 7(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 7 except to the extent
(but only to the extent) that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have to an indemnified party otherwise than
under this Section 7. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party
within 20 business days after receipt of written notice from such indemnified
party of such claim or action, to assume, at its expense, the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than the reasonable costs of investigation; provided, however,
that an indemnified party shall have the right to retain its own counsel in any
such action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expenses of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party, (3)
a conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 7(a) and 7(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably
15
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party (which consent shall
not be unreasonably withheld), effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding (whether or not any indemnified party is a party thereto).
8. Contribution. If the indemnification provided for in Section 7 is
unavailable or insufficient to hold harmless an indemnified party under Section
7(a) or 7(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, shall have a joint and several obligation to contribute to
the amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the Company
from the offering and sale of the Securities, on the one hand, and a Holder with
respect to the sale by such Holder of Securities or Exchange Securities, on the
other, or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and such Holder on the other with respect to the
statements or omissions that resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and a Holder on the other with respect to such offering and such sale shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Securities (before deducting expenses) received by or on behalf of the
Company as set forth in the table on the cover of the Offering Circular, on the
one hand, bear to the total proceeds received by such Holder with respect to its
sale of Securities or Exchange Securities, on the other. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to the Company or information supplied by the
Company on the one hand or to any Holders' Information supplied by such Holder
on the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 8 were to be determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of loss, claim, damage or liability, or action
in respect thereof, referred to above in this Section 8 shall be deemed to
include, for purposes of this Section 8, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
or preparing to defend any such
16
action or claim to the extent such party would have been indemnified for such
fees. Notwithstanding the provisions of this Section 8, an indemnifying party
that is a Holder of Securities or Exchange Securities shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Securities or Exchange Securities sold by such indemnifying party to any
purchaser exceeds the amount of any damages which such indemnifying party has
otherwise paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from a person who was not guilty of such
misrepresentation. The indemnity and contribution agreements contained in this
Section 8 are in addition to any liability that the indemnifying parties may
have to the indemnified parties.
9. Rules 144 and 144A. The Company covenants that it shall file the
reports required to be filed by it under the Securities Act and the Exchange Act
in a timely manner and, if at any time the Company is not required to file such
reports, it will, upon the written request of any Holder of Registrable
Securities, make publicly available other information so long as necessary to
permit sales of such Holder's securities pursuant to Rules 144 and 144A. The
Company covenants that it will take such further action as any Holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rules 144 and 144A (including, without limitation, the requirements
of Rule 144(d)(4)). Upon the written request of any Holder of Registrable
Securities, the Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements. Notwithstanding the foregoing,
nothing in this Section 9 shall be deemed to require the Company to register any
of its securities pursuant to the Exchange Act.
10. Underwritten Registrations. If any of the Registrable Securities
covered by any Shelf Registration Statement are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Holders of a majority
in aggregate principal amount of such Registrable Securities included in such
offering, subject to the consent of the Company (which shall not be unreasonably
withheld or delayed). No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Registrable
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements; provided that the provisions of this sentence
may not be amended, modified or supplemented except in accordance with the
provisions of the first sentence of this paragraph.
17
11. Miscellaneous. (a) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, unless the Company
has obtained the written consent of Holders of a majority in aggregate principal
amount of the Securities or Exchange Securities, taken as a single class.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders whose Securities or Exchange Securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of a majority in aggregate
principal amount of the Securities or Exchange Securities being sold by such
Holders pursuant to such Registration Statement; provided, that Section 1(a), 3
and 7 shall not be amended, modified or supplemented, and waivers or consents to
departures from this proviso may not be given, unless the Company has obtained
the written consent of each Holder.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, certified
first-class mail, telecopier or air courier guaranteeing next-day delivery:
(i) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section
11(b), which address initially is, with respect to each Holder, the
address of such Holder maintained by the Registrar under the Indenture;
and
(ii) if to the Company, initially at the address of the
Company set forth in the Offering Circular.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being delivered to a next-day air courier; five business days after being
deposited in the mail postage prepaid; and when receipt is acknowledged by the
recipient's telecopier machine, if sent by telecopier.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(c) Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopier) 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.
18
(e) Definition of Terms. For purposes of this Agreement, (a) the
term "business day" means any day on which the New York Stock Exchange, Inc. is
open for trading, (b) the term "subsidiary" has the meaning set forth in Rule
405 under the Securities Act and (c) except where otherwise expressly provided,
the term "affiliate" has the meaning set forth in Rule 405 under the Securities
Act.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning thereof.
(g) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New York.
(h) No Inconsistent Agreements. The Company represents, warrants and
agrees that (i) it has not entered into, shall not, on or after the date of this
Agreement, enter into any agreement that is inconsistent with the rights granted
to the Holders in this Agreement or otherwise conflicts with the provisions
hereof, (ii) it has not previously entered into any agreement which remains in
effect granting any registration rights with respect to any of its debt
securities to any person and (iii) without limiting the generality of the
foregoing, without the written consent of the Holders of a majority in aggregate
principal amount of the then outstanding Registrable Securities, it shall not
grant to any person the right to request the Company to register any debt
securities of the Company under the Securities Act unless the rights so granted
are not in conflict or inconsistent with the provisions of this Agreement.
(i) No Piggyback on Registrations. Neither the Company nor any of
its security holders (other than the Holders of Registrable Securities in such
capacity) shall have the right to include any securities of the Company in any
Shelf Registration or Registered Exchange Offer other than Registrable
Securities.
(j) Severability. The remedies provided herein are cumulative and
not exclusive of any remedies provided by law. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their reasonable best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
19
(k) Entire Agreement. This Agreement contains the entire agreement
among the parties hereto with respect to the transactions contemplated herein
and supersedes all prior agreements, negotiations, or understandings between the
parties with respect to such subject matter.
(l) Attorneys' Fees. In any proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the prevailing party, as determined by the courts, shall be
entitled to recover reasonable attorney's fees in addition to its costs and
expenses and any other available remedy.
(m) Securities Held by the Company or its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
its affiliates (as such term is defined in Rule 405 under the Securities Act)
(other than Holders deemed to be such affiliates solely by reason of their
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the holders of such required
percentage.
20
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
SFAC NEW HOLDINGS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Treasurer
and Assistant Secretary
HOLDERS:
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter"within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Securities where such Securities were acquired by such broker-dealer as a result
of market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Securities where such Securities were acquired as a
result of market-making activities or other trading activities. The Company has
agreed that, for a period of 180 days after the Expiration Date, it will make
this prospectus, as amended or supplemented, available to any broker-dealer for
use in connection with any such resale. In addition, until __________, __, all
dealers effecting transactions in the Exchange Securities may be required to
deliver a prospectus.1/
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Registered Exchange Offer may be sold from
time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer or the
purchasers of any such Exchange Securities. Any broker-dealer that resells
Exchange Securities that were received by it for its own account pursuant to the
Registered Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Securities may be deemed to be an "underwriter"
within the meaning of the Securities Act and any profit on any such resale of
Exchange Securities and any commission or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities Act.
The Letter of Transmittal states that, by acknowledging that it will deliver and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Registered Exchange Offer (including the expenses of one counsel
for the Holders of the Securities) other than commissions or concessions of any
broker-dealers and will
--------
1/ In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Registered Exchange Offer prospectus.
2
indemnify the Holders of the Securities (including any broker-dealers) against
certain liabilities, including under the Securities Act.
ANNEX D
|_| CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name: ____________________________________
Address: _________________________________
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Securities that were acquired as
a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.