EXHIBIT 4.2
MAAX Holdings, Inc.
11.25% Senior Discount Notes due 2012
Exchange and Registration Rights Agreement
December 10, 2004
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
World Financial Center - North Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
MAAX Holdings, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated (collectively, the "Purchaser") upon the terms set forth in the
Purchase Agreement (as defined herein) $170,689,000 aggregate principal amount
at maturity of 11.25% Senior Discount Notes due 2012 of the Company. As an
inducement to the Purchaser to enter into the Purchase Agreement and in
satisfaction of a condition to the obligations of the Purchaser thereunder, the
Company agrees with the Purchaser for the benefit of holders (as defined herein)
from time to time of the Registrable Securities (as defined herein) as follows:
1. Certain Definitions. For purposes of this Exchange and Registration
Rights Agreement, the following terms shall have the following respective
meanings:
"Accreted Value" shall have the meaning assigned thereto in the
Indenture (as defined herein).
"Base Interest" shall mean the interest that would otherwise accrue on
the Securities under the terms thereof and the Indenture, without giving effect
to the provisions of this Exchange and Registration Rights Agreement.
The term "broker-dealer" shall mean any broker or dealer registered as
such under the Exchange Act.
"Canadian Securities Laws" shall mean the securities laws, rules,
regulations and policies applicable in the provinces and territories of Canada.
"Closing Date" shall mean the date on which the Securities are
initially issued.
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"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
"Effective Time," in the case of (a) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (b) a Shelf Registration, shall mean
the time and date as of which the Commission declares the Shelf Registration
Statement effective or as of which the Shelf Registration Statement otherwise
becomes effective.
"Electing Holder" shall mean any holder of Registrable Securities that
has returned a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, and the rules and regulations of the Commission promulgated
thereunder, all as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof.
"Exchange Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
"Full Accretion Date" shall have the meaning assigned thereto in the
Indenture.
The term "holder" shall mean the Purchaser and other persons who
acquire Registrable Securities from time to time (including any successors or
assigns), in each case for so long as such person owns any Registrable
Securities.
"Indenture" shall mean the Indenture, dated as of December 10, 2004,
between the Company and U.S. Bank Trust, N.A., as trustee (the "Trustee"), as
the same shall be amended from time to time.
"Notice and Questionnaire" means a Notice of Registration Statement
and Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
The term "person" shall mean any individual, corporation, association,
partnership, limited liability company, unlimited company, trust or
unincorporated organization, business, individual, government or political
subdivision thereof or governmental agency.
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"Purchase Agreement" shall mean the Purchase Agreement, dated as of
December 3, 2004 between the Purchaser and the Company relating to the
Securities.
"Registrable Securities" shall mean each Security until the earlier to
occur of: (a) the date on which such Security has been exchanged by a person
other than a broker-dealer for an Exchange Security in the Exchange Offer; (b)
following the exchange by a broker-dealer in the Exchange Offer of a Security
for an Exchange Security, the date on which such Exchange Security is sold to a
purchaser who receives from such broker-dealer on or prior to the date of such
sale a copy of the prospectus contained in the Exchange Registration Statement;
(c) the date on which such Security has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement; or (d) the date on which such Security is distributed to the public
pursuant to Rule 144.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section
2(a) hereof.
"Restricted Holder" shall mean (a) a holder that is an affiliate of
the Company within the meaning of Rule 405, (b) a holder who acquires Exchange
Securities outside the ordinary course of such holder's business, (c) a holder
who has arrangements or understandings with any person to participate in the
Exchange Offer for the purpose of distributing Exchange Securities and (d) a
holder that is a broker-dealer, but only with respect to Exchange Securities
received by such broker-dealer pursuant to an Exchange Offer in exchange for
Registrable Securities acquired by the broker-dealer directly from the Company.
"Rule 144," "Rule 144A," "Rule 405" and "Rule 415" shall mean, in each
case, such rule promulgated under the Securities Act (or any successor
provision), as the same shall be amended from time to time.
"Securities" shall mean, collectively, the 11.25% Senior Discount
Notes due 2012 of the Company to be issued and sold to the Purchaser, and notes
of the Company issued in exchange therefor or in lieu thereof pursuant to the
Indenture and this Exchange and Registration Rights Agreement.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, and the rules and regulations of the Commission promulgated
thereunder, all as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in
Section 2(b) hereof.
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"Shelf Registration Statement" shall have the meaning assigned thereto
in Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in Section
2(c) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees to
file under the Securities Act, as soon as practicable, but no later than 180
days after the Closing Date, a registration statement relating to an offer to
exchange (such registration statement, the "Exchange Registration Statement",
and such offer, the "Exchange Offer") any and all of the Registrable Securities
for a like Accreted Value and aggregate principal amount at maturity of debt
securities issued by the Company, which debt securities will have terms
identical in all respects and will evidence the same indebtedness of the Company
as the Securities (and are entitled to the benefits of a trust indenture which
is substantially identical to the Indenture or is the Indenture and which has
been qualified under the Trust Indenture Act) (other than such changes to the
Indenture or any such trust indenture as are necessary to comply with any
requirements of the Commission to effect or maintain the qualification thereof
under the Trust Indenture Act or which eliminate the transfer restrictions on
the Securities or provisions for the payment of additional interest contemplated
in Section 2(c) below), except that they have been registered pursuant to an
effective registration statement under the Securities Act and do not contain a
restrictive legend or provisions for the additional interest contemplated in
Section 2(c) below (such new debt securities hereinafter called "Exchange
Securities"). The Company agrees to use its commercially reasonable efforts to
cause the Exchange Registration Statement to become effective under the
Securities Act as soon as practicable, but no later than 240 days after the
Closing Date. The Exchange Offer will be registered under the Securities Act on
the appropriate form and will comply with all applicable tender offer rules and
regulations under the Exchange Act. The Company further agrees to (A) complete
the Exchange Offer promptly, but no later than 30 days after such Exchange
Registration Statement has become effective, or such later date as is required
by the Securities Act, (B) hold the Exchange Offer open for at least 20 Business
Days (as defined in the Indenture) and (C) exchange Exchange Securities for all
Registrable Securities that have been properly tendered and not withdrawn on or
prior to the expiration of the Exchange Offer. The Exchange Offer will be deemed
to have been "completed" only if the debt securities received by holders other
than Restricted Holders in the Exchange Offer for Registrable Securities are,
upon receipt, transferable by each such holder without restriction under the
Securities Act and the Exchange Act and without material restrictions under the
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blue sky or securities laws of a substantial majority of the States of the
United States of America. Subject to the preceding sentence, the Exchange Offer
shall be deemed to have been completed upon the earlier to occur of (i) the
Company having exchanged the Exchange Securities for all outstanding Registrable
Securities pursuant to the Exchange Offer and (ii) the Company having exchanged,
pursuant to the Exchange Offer, Exchange Securities for all Registrable
Securities that have been properly tendered and not withdrawn before the
expiration of the Exchange Offer. Each holder who participates in the Exchange
Offer will be required to represent (i) that any Exchange Securities received by
it will be acquired in the ordinary course of its business, (ii) that at the
time of the consummation of the Exchange Offer, such holder will have no
arrangement or understanding with any Person to participate in the distribution
of the Exchange Securities, (iii) that such holder is not an affiliate of the
Company within the meaning of the Securities Act, and (iv) any additional
representations that in the written opinion of counsel to the Company are
necessary under then-existing rules or regulations (or interpretations thereof)
of the Commission in order for the Exchange Registration Statement to be
declared effective. The Company agrees (x) to include in the Exchange
Registration Statement a prospectus for use in any resales by any holder of
Exchange Securities that is a broker-dealer and (y) to use its commercially
reasonable efforts to keep such Exchange Registration Statement effective for a
period (the "Resale Period") beginning when Exchange Securities are first issued
in the Exchange Offer and ending upon the earlier of the expiration of the 180th
day after the Exchange Offer has been completed or such time as such
broker-dealers are no longer required to comply with the prospectus delivery
requirements in connection with offers and sales of the Exchange Securities.
With respect to such Exchange Registration Statement, such holders shall have
the benefit of the rights of indemnification and contribution set forth in
Sections 6(a), (c), (d) and (e) hereof.
(b) If (i) the Company is not permitted to consummate the Exchange
Offer because the Exchange Offer is not permitted by applicable law or
Commission policy or (ii) any holder of Registrable Securities notifies the
Company prior to the 20th day following consummation of the Exchange Offer that:
(a) it is prohibited by applicable law in the United States or policy of the
Commission from participating in the Exchange Offer; (b) it may not resell the
Exchange Securities acquired by it in the Exchange Offer to the public without
delivering a prospectus and the prospectus contained in the Exchange
Registration Statement is not appropriate or available for such resales or (c)
it is a broker-dealer and owns Exchange Securities acquired directly from the
Company or an affiliate of the Company, the Company shall, in lieu of (or, in
the case of clause (ii), in addition to) conducting the Exchange Offer
contemplated by Section 2(a) hereof, file under the Securities Act as soon as
practicable, but no later than the later of 180 days after the time such
obligation to file arises, a "shelf" registration statement providing for the
registration of, and the sale on a continuous or delayed basis by the holders
of, all applicable Registrable Securities, pursuant to Rule 415 or any similar
rule that may be adopted by the Commission (such filing, the "Shelf
Registration" and such registration statement, the "Shelf Registration
Statement"). The Company agrees to use its commercially reasonable efforts (x)
to cause the Shelf Registration Statement to become or be declared effective no
later than 240 days after such obligation arises and to keep such Shelf
Registration Statement continuously effective for a period ending on the earlier
of the second anniversary of the Effective Time or such time as there are no
longer any applicable Registrable Securities outstanding, 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, and
(y) on no more than one occasion after the Effective Time of the Shelf
Registration Statement, promptly upon the request of any holder of Registrable
Securities that is not then an Electing Holder (1) mail the Notice and
Questionnaire to all holders of Registrable Securities that are not then
Electing Holders and (2) not more than 60 nor less than 45 days after mailing
the Notice and Questionnaire, take any action reasonably necessary to enable any
such holders providing a completed and signed Notice and Questionnaire to the
Company to use the prospectus forming a part of the Shelf Registration Statement
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for resales of Registrable Securities, including, without limitation, any action
necessary to identify such holder as a selling security holder in the Shelf
Registration Statement, provided, however, that nothing in this clause (y) shall
relieve any such holder of the obligation to return a completed and signed
Notice and Questionnaire to the Company in accordance with Section 3(d)(iii)
hereof; provided, further, that the failure of a Shelf Registration Statement to
remain effective due to the filing of any amendment to such Shelf Registration
Statement pursuant to this clause (y) shall not constitute a Registration
Default (as defined below) or a breach of this Exchange and Registration Rights
Agreement, so long as the Company uses its commercially reasonable efforts to
cause such Shelf Registration Statement, as so amended, to be declared effective
as soon as reasonably practicable. The Company further agrees to supplement or
make amendments to the Shelf Registration Statement, as and when required by the
rules, regulations or instructions applicable to the registration form used by
the Company for such Shelf Registration Statement or by the Securities Act for
shelf registration, and the Company agrees to furnish to each Electing Holder
copies of any such supplement or amendment prior to its being used or promptly
following its filing with the Commission.
(c) In the event that (i) the Company has not filed the Exchange
Registration Statement or Shelf Registration Statement on or before the date on
which such registration statement is required to be filed pursuant to Section
2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or
Shelf Registration Statement has not become effective or been declared effective
by the Commission on or before the date on which such registration statement is
required to become or be declared effective pursuant to Section 2(a) or 2(b),
respectively, or (iii) the Exchange Offer has not been consummated within 30
days after the initial effective date of the Exchange Registration Statement
relating to the Exchange Offer (if the Exchange Offer is then required to be
made) or (iv) any Exchange Registration Statement or Shelf Registration
Statement required by Section 2(a) or 2(b) hereof is filed and declared
effective but shall thereafter either be withdrawn by the Company or shall
become subject to an effective stop order issued pursuant to Section 8(d) of the
Securities Act suspending the effectiveness of such registration statement
(except as specifically permitted herein) without being succeeded immediately by
an additional registration statement filed and declared effective (each such
event referred to in clauses (i) through (iv), a "Registration Default" and each
period during which a Registration Default has occurred and is continuing, a
"Registration Default Period"), then, as liquidated damages for such
Registration Default, subject to the provisions of Section 9(b), special
interest ("Special Interest"), in addition to the Base Interest, shall accrue at
a rate of 0.25% per annum of the average Accreted Value (during such 90-day
period) for the first 90 days of the Registration Default Period, increasing by
0.25% per annum of the average Accreted Value (during such 90-day period) for
each successive 90 days of the Registration Default Period, to a maximum Special
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Interest rate of 2.0% per annum of the average Accreted Value for the remaining
portion of the Registration Default Period. Holders of Registrable Securities
who are not entitled to the benefits of the Shelf Registration Statement (for
example, a holder that has not elected to provide required information) shall
not be entitled to Special Interest with respect to a Registration Default that
pertains to the Shelf Registration Statement. Notwithstanding anything to the
contrary set forth herein, (w) upon filing of the Exchange Registration
Statement or the Shelf Registration Statement, as the case may be, in the case
of clause (i) above, (x) upon the effectiveness of the Exchange Registration
Statement or the Shelf Registration Statement, as the case may be, in the case
of clause (ii) above, (y) upon consummation of the Exchange Offer, in the case
of clause (iii) above, or (z) upon the occurrence of any event (including the
filing of an appropriate amendment to the relevant Registration Statement, the
declaring effective of another Registration Statement or the taking of other
appropriate action) that causes the Exchange Registration Statement or the Shelf
Registration Statement, as the case may be, to again be declared effective or
made usable in the case of clause (iv) above, the Special Interest payable as a
result of such clause (i), (ii), (iii) or (iv), as applicable, shall cease to
accrue. Any amounts of Special Interest due pursuant to this Section 2(c) shall
be (i) if such Special Interest accrued on or prior to the Full Accretion Date,
added to the Accreted Value of each applicable Security and (ii) if after the
Full Accretion Date, paid in cash on the interest payment dates specified in the
relevant Securities, in each case, payable by the Company to the Trustee, on
behalf of the holders of the relevant Securities, commencing with the first such
interest payment date occurring after any such Special Interest commences to
accrue. The amount of Special Interest will be determined by multiplying the
applicable Special Interest rate by the Accreted Value of the Registrable
Securities, multiplied by a fraction, the numerator of which is the number of
days such Special Interest were applicable during such period (determined on the
basis of a 360 day year comprised of twelve 30 day months and, in the case of a
partial month, the actual number of days elapsed), and the denominator of which
is 360. The Special Interest provided for in this Section 2(c) shall be the
exclusive monetary remedy available to holders of Securities for Registration
Defaults.
(d) The Company shall use its commercially reasonable efforts to take
all actions reasonably necessary or advisable to be taken by it to ensure that
the transactions contemplated herein are effected as so contemplated.
(e) Any reference herein to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference herein to
any post-effective amendment to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time.
3. Registration Procedures. If the Company files a registration
statement pursuant to Section 2(a) or 2(b) hereof, the following provisions
shall apply:
(a) At or before the Effective Time of the Exchange Registration
Statement or the Shelf Registration Statement, as the case may be, the
Company shall qualify either the Indenture or such other substantially
identical indenture under the Trust Indenture Act.
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(b) In the event that such qualification would require the appointment
of a new trustee under either the Indenture or such other substantially
identical indenture, the Company shall appoint a new trustee thereunder
pursuant to the applicable provisions of either the Indenture or such other
substantially identical indenture.
(c) In connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Company shall, as soon as
practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable
but no later than 180 days after the Closing Date, an Exchange
Registration Statement on any form which may be utilized by the
Company, and, if a prospectus contained in an Exchange Registration
Statement is required to be delivered under the Securities Act by any
broker-dealer who seeks to sell Exchange Securities during the Resale
Period and has advised the Company of such fact before the filing of
any Exchange Registration Statement, which shall permit the Exchange
Offer and resales of Exchange Securities by broker-dealers during the
Resale Period to be effected as contemplated by Section 2(a), and use
its commercially reasonable efforts to cause such Exchange
Registration Statement to become effective as soon as practicable
thereafter, but no later than 240 days after the Closing Date;
(ii) prepare and file with the Commission such amendments and
supplements to such Exchange Registration Statement and the prospectus
included therein as may be necessary to effect and maintain the
effectiveness of such Exchange Registration Statement for the periods
and purposes contemplated in Section 2(a) hereof and as may be
required by the applicable rules and regulations of the Commission and
the instructions applicable to the form of such Exchange Registration
Statement, and promptly provide each broker-dealer holding Exchange
Securities with such number of copies of the prospectus included
therein (as then amended or supplemented, if applicable), in
conformity in all material respects with the requirements of the
Securities Act and the Trust Indenture Act, (and in the case of
holders in Canada, the Canadian wrapper (if the delivery of one is
required by Canadian Securities Laws) used in connection with the
private placement of the Exchange Securities in Canada), as such
broker-dealer reasonably may request prior to the expiration of the
Resale Period, for use in connection with resales of Exchange
Securities;
(iii) promptly notify each broker-dealer holding Exchange
Securities that has requested copies of the prospectus included in
such Exchange Registration Statement, and confirm such advice in
writing, (A) when such Exchange Registration Statement or the
prospectus included therein or any prospectus amendment or supplement
or post-effective amendment has been filed, and, with respect to such
Exchange Registration Statement or any post-effective amendment, when
the same has become effective, (B) of any request by the Commission
for amendments or supplements to such Exchange Registration Statement
or
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prospectus, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of such Exchange Registration Statement
or the initiation or threatening of any proceedings for that purpose,
(D) if at any time the representations and warranties of the Company
contemplated by Section 5 cease to be true and correct in all material
respects, (E) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Exchange
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (F) at any time
during the Resale Period when a prospectus is required to be delivered
under the Securities Act, that such Exchange Registration Statement,
prospectus, prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act or
contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
(iv) in the event that the Company would be required, pursuant to
Section 3(c)(iii)(F) above, to notify any broker-dealers holding
Exchange Securities, without delay prepare and furnish to each such
broker-dealer a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers
of such Exchange Securities during the Resale Period, such prospectus
shall conform in all material respects to the applicable requirements
of the Securities Act and the Trust Indenture Act and shall not
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 in light of the circumstances then
existing;
(v) use its commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such Exchange
Registration Statement or any post-effective amendment thereto at the
earliest practicable date;
(vi) use its commercially reasonable efforts to (A) register or
qualify the Exchange Securities under the securities laws or blue sky
laws of such jurisdictions as are contemplated by Section 2(a) and
comply with any requirements under Canadian Securities Laws in respect
of the exchange and distribution of Exchange Securities to be received
by holders in Canada no later than the commencement of the Exchange
Offer, (B) keep such registrations or qualifications in effect and
comply with such laws so as to permit the continuance of offers, sales
and dealings therein in such jurisdictions until the expiration of the
Resale Period and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each broker-dealer holding
Exchange Securities to consummate the disposition thereof in such
jurisdictions; provided, however, that the Company shall not be
required for any such purpose to (1) qualify as a foreign corporation
in any jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(c)(vi), (2) consent
to general service of process
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in any such jurisdiction, (3) take any other action that would subject
it to general service of process or to taxation in excess of a nominal
amount in respect of doing business in any jurisdiction in which it is
not otherwise subject or (4) make any changes to its organizational
documents or any agreement between it and its equityholders;
(vii) use its commercially reasonable efforts to obtain the
consent or approval of each governmental agency or authority, whether
federal, state, provincial or local, which may be required to effect
the Exchange Registration, the Exchange Offer and the offering and
sale of Exchange Securities by broker-dealers during the Resale
Period;
(viii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time; and
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as
soon as practicable but no later than eighteen months after the
effective date of such Exchange Registration Statement, an earning
statement of the Company and its subsidiaries complying with Section
11(a) of the Securities Act (including, at the option of the Company,
Rule 158 thereunder).
(d) In connection with the Company's obligations with respect to the
Shelf Registration, if applicable, the Company shall, as soon as
practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable
but in any case within the time periods specified in Section 2(b), a
Shelf Registration Statement on any form which may be utilized by the
Company and which shall register all of the applicable Registrable
Securities for resale by the holders thereof in accordance with such
method or methods of disposition as may be specified by such of the
holders as, from time to time, may be Electing Holders and use its
commercially reasonable efforts to cause such Shelf Registration
Statement to become effective as soon as practicable but in any case
within the time periods specified in Section 2(b);
(ii) not less than 30 calendar days prior to the Effective Time
of the Shelf Registration Statement, mail the Notice and Questionnaire
to the holders of Registrable Securities; no holder shall be entitled
to be named as a selling securityholder in the Shelf Registration
Statement as of the Effective Time, and no holder shall be entitled to
use the prospectus forming a part thereof for resales of Registrable
Securities at any time, unless such holder has returned a completed
and signed Notice and Questionnaire to the Company by the deadline for
response set forth therein; provided, however, holders of Registrable
Securities shall have at least 28 calendar days from the date on which
the Notice and Questionnaire is
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first mailed to such holders to return a completed and signed Notice
and Questionnaire to the Company;
(iii) on no more than one occasion after the Effective Time of
the Shelf Registration Statement, upon the request of any holder of
Registrable Securities that is not then an Electing Holder, promptly
send a Notice and Questionnaire to all remaining holders of
Registrable Securities that are not then Electing Holders; provided
that the Company shall not be required to take any action to name any
such holder as a selling securityholder in the Shelf Registration
Statement or to enable any such holder to use the prospectus forming a
part thereof for resales of Registrable Securities until any such
holder has returned a completed and signed Notice and Questionnaire to
the Company;
(iv) as soon as practicable prepare and file with the Commission
such amendments and supplements to such Shelf Registration Statement
and the prospectus included therein as may be necessary to effect and
maintain the effectiveness of such Shelf Registration Statement for
the period specified in Section 2(b) hereof and as may be required by
the applicable rules and regulations of the Commission and the
instructions applicable to the form of such Shelf Registration
Statement, and promptly furnish to each Electing Holder who so
requests one copy of any such supplement or amendment; provided,
however, that notwithstanding the foregoing, the Company may allow any
such Shelf Registration Statement to cease to become effective and
usable for no more than 90 days in any 360 day period if (A) the Board
of Directors of the Company determines in good faith that such action
would impede, delay or otherwise interfere with any proposed or
pending material corporate transaction involving the Company or that
such action would require the disclosure of material non-public
information, the disclosure of which at such time would not be in the
best interests of the Company or its stockholders, and the Company
notifies the holders within two business days after the Board of
Directors makes such determination or (B) the prospectus contained in
any such Shelf Registration Statement contains an untrue statement of
a material fact or omits to state a material fact necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided that the periods
referred to in Section 2(b) hereof during which such Shelf
Registration Statement is required to be effective and usable shall be
extended by the number of days during which such Shelf Registration
Statement was not effective or usable pursuant to the foregoing
provisions (but in no event past the second anniversary of the
Effective Time);
(v) provide (A) the underwriters (which term, for purposes of
this Exchange and Registration Rights Agreement, shall include a
person deemed to be an underwriter within the meaning of Section
2(a)(11) of the Securities Act), if any, thereof, (B) any sales or
placement agent therefor and (C) counsel for any such underwriter or
agent the opportunity to participate in the preparation of such
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Shelf Registration Statement, each prospectus included therein or
filed with the Commission and each amendment or supplement thereto;
(vi) for a reasonable period prior to the filing of such Shelf
Registration Statement, and throughout the period specified in Section
2(b), make available at reasonable times at the Company's principal
place of business or such other reasonable place for inspection,
during reasonable business hours, by the persons referred to in
Section 3(d)(v) who shall certify to the Company that they have a
current intention to sell the Registrable Securities pursuant to the
Shelf Registration such financial and other information and pertinent
corporate books and records of the Company, and cause the officers,
employees, counsel and independent certified public accountants of the
Company to respond to such inquiries, as shall be reasonably
necessary, in the judgment of the respective counsel referred to in
such Section, to conduct a reasonable investigation within the meaning
of Section 11 of the Securities Act; provided, however, that each such
party shall be required to maintain in confidence and not to disclose
to any other person any information or records reasonably designated
by the Company as being confidential, until such time as (A) such
information becomes a matter of public record other than as a result
of a disclosure or failure to safeguard by any such party, or (B) such
person shall be required so to disclose such information pursuant to a
subpoena or order of any court or other governmental agency or body
having jurisdiction over the matter (subject to the requirements of
such order, and only after such person shall have given the Company
prompt prior written notice of such requirement and allowed the
Company to undertake appropriate action to obtain a protective order
or otherwise prevent disclosure of the information at its expense), or
(C) such information is required to be set forth in such Shelf
Registration Statement or the prospectus included therein or in an
amendment to such Shelf Registration Statement or an amendment or
supplement to such prospectus in order that such Shelf Registration
Statement, prospectus, amendment or supplement, as the case may be,
complies with applicable requirements of the United States federal
securities laws and the rules and regulations of the Commission and
does not contain an untrue statement of a material fact or omit to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances then existing;
(vii) promptly notify each of the Electing Holders, any sales or
placement agent therefor and any underwriter thereof (which
notification may be made through any managing underwriter that is a
representative of such underwriter for such purpose) and confirm such
advice in writing, (A) when such Shelf Registration Statement or the
prospectus included therein or any prospectus amendment or supplement
or post-effective amendment has been filed, and, with respect to such
Shelf Registration Statement or any post-effective amendment, when the
same has become effective, (B) of any request by the Commission for
amendments or supplements to such Shelf Registration Statement or
prospectus, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of such Shelf
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Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the representations
and warranties of the Company contemplated by Section 3(d)(xvi) or
Section 5 cease to be true and correct in all material respects, (E)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose, or (F) if at any time when a prospectus is required
to be delivered under the Securities Act, that such Shelf Registration
Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to
the applicable requirements of the Securities Act and the Trust
Indenture Act or contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances then existing;
(viii) use its commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such Shelf
Registration Statement or any post-effective amendment thereto at the
earliest practicable date;
(ix) if requested by any managing underwriter or underwriters,
any placement or sales agent or any Electing Holder, promptly
incorporate in a prospectus supplement or post-effective amendment
such information as is required by the applicable rules and
regulations of the Commission and as such managing underwriter or
underwriters, such agent or such Electing Holder specifies should be
included therein relating to the terms of the sale of such Registrable
Securities, including information with respect to the Accreted Value
and principal amount at maturity of Registrable Securities being sold
by such Electing Holder or agent or to any underwriters, the name and
description of such Electing Holder, agent or underwriter, the
offering price of such Registrable Securities and any discount,
commission or other compensation payable in respect thereof, the
purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable
Securities to be sold by such Electing Holder or agent or to such
underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification of
the matters to be incorporated in such prospectus supplement or
post-effective amendment;
(x) furnish to each Electing Holder, each placement or sales
agent, if any, therefor, each underwriter, if any, thereof and the
respective counsel referred to in Section 3(d)(v), upon request, an
executed copy (or, in the case of an Electing Holder, a conformed
copy) of such Shelf Registration Statement, each such amendment and
supplement thereto (in each case including all exhibits thereto (in
the case of an Electing Holder of Registrable Securities, upon
request) and documents incorporated by reference therein to the extent
such exhibits or documents are not available on the Commission's ▇▇▇▇▇
system) and such number of copies of such Shelf Registration Statement
(excluding exhibits thereto and documents incorporated by reference
therein unless specifically so requested by such
-14-
Electing Holder, agent or underwriter, as the case may be, and in such
cases only to the extent such exhibits or documents are not available
on the Commission's ▇▇▇▇▇ system) and of the prospectus included in
such Shelf Registration Statement (including each preliminary
prospectus and any summary prospectus), in conformity in all material
respects with the applicable requirements of the Securities Act and
the Trust Indenture Act, and such other documents, as such Electing
Holder, agent, if any, and underwriter, if any, may reasonably request
in order to facilitate the offering and disposition of the Registrable
Securities owned by such Electing Holder, offered or sold by such
agent or underwritten by such underwriter and to permit such Electing
Holder, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and the Company hereby consents to
the use of such prospectus (including such preliminary and summary
prospectus) and any amendment or supplement thereto by each such
Electing Holder and by any such agent and underwriter, in each case in
the form most recently provided to such person by the Company, in
connection with the offering and sale of the Registrable Securities
covered by the prospectus (including such preliminary and summary
prospectus) or any supplement or amendment thereto;
(xi) use its commercially reasonable efforts to (A) register or
qualify the Registrable Securities to be included in such Shelf
Registration Statement under such securities laws or blue sky laws of
such jurisdictions as any Electing Holder and each placement or sales
agent, if any, therefor and underwriter, if any, thereof shall
reasonably request in writing; provided that where Securities are
offered pursuant to an underwritten offering, counsel to the
underwriters shall, at the cost and expense of the Company, perform
Blue Sky investigations and file registrations and qualifications
required to be filed pursuant to this Section 3(d)(xi), prior to any
public offering of Registrable Securities or any delivery of a
prospectus contained in the Shelf Registration Statement, if so
required, (B) keep such registrations or qualifications in effect and
comply with such laws so as to permit the continuance of offers, sales
and dealings therein in such jurisdictions during the period the Shelf
Registration is required to remain effective under Section 2(b) above
and for so long as may be necessary to enable any such Electing
Holder, agent or underwriter to complete its distribution of
Securities pursuant to such Shelf Registration Statement and (C) take
any and all other actions as may be reasonably necessary or advisable
to enable each such Electing Holder, agent, if any, and underwriter,
if any, to consummate the disposition in such jurisdictions of such
Registrable Securities; provided, however, that the Company shall not
be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section 3(d)(xi),
(2) consent to general service of process in any such jurisdiction,
(3) take any other action that would subject it to general service of
process or to taxation in excess of a nominal amount in respect of
doing business in any jurisdiction in which it is not otherwise
subject or (4) make any changes to its organizational documents or any
agreement between it and its equityholders;
-15-
(xii) use its commercially reasonable efforts to obtain the
consent or approval of each governmental agency or authority, whether
federal, state or local, which may be required to effect the Shelf
Registration or the offering or sale in connection therewith or to
enable the selling holder or holders to offer, or to consummate the
disposition of, their Registrable Securities;
(xiii) unless any Registrable Securities shall be in book-entry
only form, cooperate with the Electing Holders and the managing
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be
sold, which certificates, if so required by any securities exchange
upon which any Registrable Securities are listed, shall be penned,
lithographed or engraved, or produced by any combination of such
methods, on steel engraved borders, and which certificates shall not
bear any restrictive legends; and, in the case of an underwritten
offering, enable such Registrable Securities to be in such
denominations and registered in such names as the managing
underwriters may request at least two business days prior to any sale
of the Registrable Securities;
(xiv) provide a CUSIP number for all Registrable Securities, not
later than the applicable Effective Time;
(xv) enter into one or more underwriting agreements, engagement
letters, agency agreements, "best efforts" underwriting agreements or
similar agreements as are customary in underwritten offerings of debt
securities similar to the Securities, as appropriate, including
customary provisions relating to indemnification and contribution, and
take such other actions in connection therewith as any Electing
Holders aggregating at least 25% in aggregate principal amount at
maturity of the Registrable Securities at the time outstanding shall
request in order to expedite or facilitate the disposition of such
Registrable Securities;
(xvi) if an agreement of the type referred to in Section 3(d)(xv)
hereof is entered into, (A) make such representations and warranties
to the Electing Holders and the placement or sales agent, if any,
therefor and the underwriters, if any, thereof in form, substance and
scope as are customarily made in connection with an offering of debt
securities pursuant to any appropriate agreement or to a registration
statement filed on the form applicable to the Shelf Registration; (B)
obtain an opinion of counsel to the Company in customary form and
covering such matters, of the type customarily covered by such an
opinion, as the managing underwriters, if any, or as any Electing
Holders of at least 25% in aggregate principal amount at maturity of
the Registrable Securities at the time outstanding may reasonably
request, addressed to such Electing Holder or Electing Holders and the
placement or sales agent, if any, therefor and the underwriters, if
any, thereof and dated the effective date of such Shelf Registration
Statement covering such matters customarily covered in opinions
requested in underwritten offerings of debt securities similar to the
Securities (and if such Shelf Registration Statement contemplates an
underwritten offering of a part or all of the Registrable Securities,
dated the date of the closing under the underwriting agreement
relating thereto);
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(C) obtain a "cold comfort" letter or letters from the independent
certified public accountants of the Company addressed to the selling
Electing Holders, the placement or sales agent, if any, therefor or
the underwriters, if any, thereof, dated (i) the effective date of
such Shelf Registration Statement and (ii) the effective date of any
prospectus supplement to the prospectus included in such Shelf
Registration Statement or post-effective amendment to such Shelf
Registration Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the
latest such statements included in such prospectus (and, if such Shelf
Registration Statement contemplates an underwritten offering pursuant
to any prospectus supplement to the prospectus included in such Shelf
Registration Statement or post-effective amendment to such Shelf
Registration Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the
latest such statements included in such prospectus, dated the date of
the closing under the underwriting agreement relating thereto), such
letter or letters to be in customary form and covering such matters of
the type customarily covered by letters of such type; (D) deliver such
documents and certificates, including officers' certificates, as may
be reasonably requested by any Electing Holders of at least 25% in
aggregate principal amount at maturity of the Registrable Securities
at the time outstanding or the placement or sales agent, if any,
therefor and the managing underwriters, if any, thereof to evidence
the accuracy of the representations and warranties made pursuant to
clause (A) above or those contained in Section 5(a) hereof and the
compliance with or satisfaction of any agreements or conditions
contained in the underwriting agreement or other agreement entered
into by the Company; and (E) undertake such obligations relating to
expense reimbursement, indemnification and contribution as are
provided in Section 6 hereof;
(xvii) notify in writing each holder of Registrable Securities of
any proposal by the Company to amend or waive any provision of this
Exchange and Registration Rights Agreement pursuant to Section 9(h)
hereof and of any amendment or waiver effected pursuant thereto, each
of which notices shall contain the text of the amendment or waiver
proposed or effected, as the case may be;
(xviii) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or
participate as a member of an underwriting syndicate or selling group
or "assist in the distribution" (within the meaning of the Conduct
Rules (the "Conduct Rules") of the National Association of Securities
Dealers, Inc. ("NASD") or any successor thereto, as amended from time
to time) thereof, whether as a holder of such Registrable Securities
or as an underwriter, a placement or sales agent or a broker or dealer
in respect thereof, or otherwise, assist such broker-dealer in
complying with the requirements of such Conduct Rules, including by
(A) if such Conduct Rules shall so require, engaging a "qualified
independent underwriter" (as defined in such Conduct Rules) to
participate in the preparation of the Shelf Registration Statement
relating to such Registrable Securities, to exercise usual standards
of due diligence in respect
-17-
thereto and, if any portion of the offering contemplated by such Shelf
Registration Statement is an underwritten offering or is made through
a placement or sales agent, to recommend the yield of such Registrable
Securities, (B) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters
provided in Section 6 hereof (or to such other customary extent as may
be requested by such underwriter), and (C) providing such information
to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Conduct Rules;
and
(xix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as
soon as practicable but in any event not later than eighteen months
after the effective date of such Shelf Registration Statement, an
earning statement of the Company and its subsidiaries complying with
Section 11(a) of the Securities Act (including, at the option of the
Company, Rule 158 thereunder).
(e) In the event that the Company would be required, pursuant to
Section 3(d)(vii)(F) above, to notify the Electing Holders, the placement
or sales agent, if any, therefor and the managing underwriters, if any,
thereof, the Company shall without delay prepare and furnish to each of the
Electing Holders, to each placement or sales agent, if any, and to each
such underwriter, if any, in each case, upon request, a reasonable number
of copies of a prospectus supplemented or amended so that, as thereafter
delivered to purchasers of Registrable Securities, such prospectus shall
conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and shall not 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 in light of the circumstances then existing. Each Electing
Holder agrees, by acquisition of Securities, that upon receipt of any
notice from the Company pursuant to Section 3(d)(vii)(C), 3(d)(vii)(E) or
3(d)(vii)(F) hereof, such Electing Holder shall forthwith discontinue the
disposition of Registrable Securities pursuant to the Shelf Registration
Statement applicable to such Registrable Securities until such Electing
Holder is advised in writing by the Company that the disposition of
Registrable Securities pursuant to the Shelf Registration Statement may be
resumed, and has received copies of such amended or supplemented
prospectus, and if so directed by the Company, such Electing Holder shall
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Electing Holder's possession of the
prospectus covering such Registrable Securities at the time of receipt of
such notice.
(f) In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in its Notice
and Questionnaire, the Company may require such Electing Holder to furnish
to the Company such additional information regarding such Electing Holder
and such Electing Holder's intended method of distribution of Registrable
Securities as the Company may reasonably request in order to comply with
the Securities Act. Each such Electing Holder agrees to notify the Company
as promptly as practicable of any inaccuracy or change in information
previously furnished
-18-
by such Electing Holder to the Company or of the occurrence of any event in
either case as a result of which any prospectus relating to such Shelf
Registration contains or would contain an untrue statement of a material
fact regarding such Electing Holder or such Electing Holder's intended
method of disposition of such Registrable Securities or omits to state any
material fact regarding such Electing Holder or such Electing Holder's
intended method of disposition of such Registrable Securities required to
be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and promptly to
furnish to the Company any additional information required to correct and
update any previously furnished information or required so that such
prospectus shall not contain, with respect to such Electing Holder or the
disposition of such Registrable Securities, 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 in light
of the circumstances then existing. The Company may exclude from such
registration the Registrable Securities of any seller who fails to furnish
such information within a reasonable time after receiving such request.
4. Registration Expenses. The Company agrees to bear and to pay or
cause to be paid promptly all expenses incident to the Company's performance of
or compliance with this Exchange and Registration Rights Agreement, including
(a) all Commission and any NASD registration, filing and review fees and
expenses including reasonable fees and disbursements of counsel for the
placement or sales agent or underwriters in connection with such registration,
filing and review, (b) all fees and expenses in connection with the
qualification of the Securities for offering and sale under the State securities
and blue sky laws and compliance with the other requirements referred to in
Sections 3(c)(vi) and 3(d)(xi) hereof and determination of their eligibility for
investment under the laws of such jurisdictions as any managing underwriters or
the Electing Holders may designate, including any reasonable fees and
disbursements of counsel for the Electing Holders or underwriters in connection
with such qualification and determination, (c) all filing fees in respect of any
initial trade in Exchange Securities by way of a private placement in Canada,
(d) all expenses relating to the preparation, printing, production, distribution
and reproduction of each registration statement required to be filed hereunder,
each prospectus included therein or prepared for distribution pursuant hereto,
each amendment or supplement to the foregoing (including, without limitation,
any Canadian wrapper), the expenses of preparing the Securities for delivery and
the expenses of printing or producing any underwriting agreements, agreements
among underwriters, selling agreements and blue sky or legal investment
memoranda and all other documents in connection with the offering, sale or
delivery of Securities to be disposed of (including certificates representing
the Securities), (e) messenger, telephone and delivery expenses relating to the
offering, sale or delivery of Securities and the preparation of documents
referred in clause (d) above, (f) fees and expenses of the Trustee under the
Indenture, any agent of the Trustee and any counsel for the Trustee and of any
collateral agent or custodian, (g) internal expenses (including all salaries and
expenses of the Company's officers and employees performing legal or accounting
duties), (h) fees, disbursements and expenses of counsel and independent
certified public accountants of the Company (including the expenses of any
opinions or "cold comfort" letters required by or incident to such performance
and compliance), (i) fees, disbursements and expenses of any "qualified
independent underwriter" engaged pursuant to Section 3(d)(xviii) hereof, (j)
fees, disbursements and expenses of one counsel for the Electing
-19-
Holders retained in connection with a Shelf Registration, as selected by the
Electing Holders of at least a majority in aggregate principal amount at
maturity of the Registrable Securities held by Electing Holders (which counsel
shall be reasonably satisfactory to the Company), (k) any fees charged by
securities rating services for rating the Securities, and (l) fees, expenses and
disbursements of any other persons, including special experts, retained by the
Company in connection with such registration (collectively, the "Registration
Expenses"). To the extent that any Registration Expenses are incurred, assumed
or paid by any holder of Registrable Securities or any placement or sales agent
therefor or underwriter thereof, the Company shall reimburse such person for the
full amount of the Registration Expenses so incurred, assumed or paid promptly
after receipt of a request therefor. Notwithstanding the foregoing, the holders
of the Registrable Securities being registered shall pay all agency fees and
commissions and underwriting discounts and commissions and transfer taxes
attributable to the sale of such Registrable Securities and the fees and
disbursements of any counsel or other advisors or experts retained by such
holders (severally or jointly), other than the counsel and experts specifically
referred to above.
5. Representations and Warranties. The Company represents and warrants
to, and agrees with, the Purchaser and each of the holders from time to time of
Registrable Securities that:
(a) Each registration statement covering Registrable Securities and
each prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(d) or Section 3(c) hereof and
any further amendments or supplements to any such registration statement or
prospectus, when it becomes effective or is filed with the Commission, as
the case may be, and, in the case of an underwritten offering of
Registrable Securities, at the time of the closing under the underwriting
agreement relating thereto, will conform in all material respects to the
requirements of the Securities Act and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and at all times
subsequent to the Effective Time when a prospectus would be required to be
delivered under the Securities Act, other than from (i) such time as a
notice has been given to holders of Registrable Securities pursuant to
Section 3(c)(iii)(C), 3(c)(iii)(E) or 3(c)(iii)(F) or Section 3(d)(vii)(C),
3(d)(vii)(E), 3(d)(vii)(F) hereof until (ii) such time as the Company
furnishes an amended or supplemented prospectus pursuant to Section 3(e) or
Section 3(c)(iv) hereof, each such registration statement, and each
prospectus (including any summary prospectus) contained therein or
furnished pursuant to Section 3(d) or Section 3(c) hereof, as then amended
or supplemented, will conform in all material respects to the requirements
of the Securities Act and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading in the light of
the circumstances then existing; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by a holder of Registrable Securities or by a
broker-dealer, agent or underwriter expressly for use therein.
-20-
(b) Any documents incorporated by reference in any prospectus referred
to in Section 5(a) hereof, when they become or became effective or are or
were filed with the Commission, as the case may be, will conform or
conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and none of such documents will
contain or contained an untrue statement of a material fact or will omit or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by a holder of Registrable Securities or by a
broker-dealer, agent or underwriter expressly for use therein.
(c) The compliance by the Company with all of the provisions of this
Exchange and Registration Rights Agreement and the consummation of the
transactions herein contemplated will not (i) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any subsidiaries of
the Company are a party or by which the Company or any subsidiaries of the
Company are bound or to which any of the property or assets of the Company
or any subsidiaries of the Company are subject, (ii) result in any
violation of the provisions of the organizational documents of the Company
or any subsidiaries of the Company, (iii) (assuming compliance with all
applicable state securities or "Blue Sky" laws) result in any violation of
the provisions of any law or statute or any order, rule, regulation,
judgment or decree of any court or governmental agency or body having
jurisdiction over the Company or any subsidiaries of the Company or any of
their properties or assets, except in the case of clauses (i) and (iii) for
such conflicts, breaches, violations, defaults or liens that, individually
or in the aggregate, would not reasonably be expected to have a material
adverse effect on the current or future business management, financial
position, shareholders' equity or results of operations of the Company,
taken as a whole; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the consummation by the Company of the
transactions contemplated by this Exchange and Registration Rights
Agreement, except the registration under the Securities Act of the
Securities, qualification of the Indenture under the Trust Indenture Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under State securities or blue sky laws
in connection with the offering and distribution of the Securities.
(d) This Exchange and Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and constitutes a valid
and legally binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights or limiting the
availability of, and public policy against, indemnification and
contribution and to general equity principles.
-21-
6. Indemnification.
(a) Indemnification by the Company. The Company will indemnify and
hold harmless each of the holders of Registrable Securities included in an
Exchange Registration Statement and each of the Electing Holders of Registrable
Securities included in a Shelf Registration Statement against any losses,
claims, damages or liabilities, joint or several, to which such holder 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 Exchange Registration Statement or Shelf Registration
Statement, as the case may be, under which such Registrable Securities were
registered under the Securities Act, or any preliminary, final or summary
prospectus contained therein or furnished by the Company to any such holder or
Electing Holder or any amendment or supplement thereto if the Company shall have
furnished any amendments or supplements 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, in light of
the circumstances under which they were made, not misleading, and will reimburse
such holder and such Electing Holder for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that the Company
shall not be liable to any such person 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 of
material fact made in such registration statement, or preliminary, final or
summary prospectus, or amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by such person
expressly for use therein.
(b) Indemnification by the Holders and any Agents and Underwriters.
The Company may require, as a condition to including any Registrable Securities
in any registration statement filed pursuant to Section 2(b) hereof and to
entering into any underwriting agreement with respect thereto, that the Company
shall have received an undertaking reasonably satisfactory to it from the
Electing Holder of such Registrable Securities and from each underwriter named
in any such underwriting agreement, severally and not jointly, to (i) indemnify
and hold harmless the Company, and all other holders of Registrable Securities,
against any losses, claims, damages or liabilities to which the Company, or such
other holders of Registrable Securities 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 such registration
statement, or any preliminary, final or summary prospectus contained therein or
furnished by the Company to any such Electing Holder, agent or underwriter, 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, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Electing Holder or underwriter expressly for use therein, and (ii) reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are
-22-
incurred; provided, however, that no such Electing Holder shall be required to
undertake liability to any person under this Section 6(b) for any amounts in
excess of the dollar amount of the proceeds to be received by such Electing
Holder from the sale of such Electing Holder's Registrable Securities pursuant
to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 6, notify such indemnifying party in writing of
the commencement of such action; 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 the indemnification provisions of or
contemplated by Section 6(a) or 6(b) hereof. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel 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, such indemnifying party shall
not be liable to such indemnified party 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. No indemnifying party shall, without the written consent of the
indemnified party (which consent shall not be unreasonably withheld or delayed),
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and
-23-
equitable if contributions pursuant to this Section 6(d) were determined by
pro rata allocation (even if the holders or any agents or underwriters 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 6(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds
received by such holder from the sale of any Registrable Securities (after
deducting any fees, discounts (other than original issue discount, which shall
not constitute a discount for such purposes) and commissions applicable thereto)
exceeds the amount of any damages which such holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission, and no underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the Registrable
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such underwriter has otherwise
been required to pay by reason of such 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 any person who was not guilty of such fraudulent
misrepresentation. The holders' and any underwriters' obligations in this
Section 6(d) to contribute shall be several in proportion to the principal
amount at maturity of Registrable Securities registered or underwritten, as the
case may be, by them and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director and partner of
each holder, agent and underwriter and each person, if any, who controls any
holder, agent or underwriter within the meaning of the Securities Act; and the
obligations of the holders and any agents or underwriters contemplated by this
Section 6 shall be in addition to any liability which the respective holder,
agent or underwriter may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company (including any
person who, with his consent, is named in any registration statement as about to
become a director of the Company and to each person, if any, who controls the
Company within the meaning of the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities
covered by the Shelf Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be designated
by Electing Holders holding at least a majority in aggregate principal amount at
maturity of the Registrable Securities to be included in such offering, provided
that such designated managing underwriter or underwriters is or are reasonably
acceptable to the Company.
(b) Participation by Holders. Each holder of Registrable Securities,
by acceptance of Registrable Securities, agrees with each other such holder that
no such holder may
-24-
participate in any underwritten offering hereunder unless such holder (i) agrees
to sell such holder's Registrable Securities on the basis 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.
8. Rule 144.
The Company covenants to the holders of Registrable Securities that it
shall comply with the reporting and information covenant in the Indenture. Upon
the request of any holder of Registrable Securities in connection with that
holder's sale pursuant to Rule 144, the Company shall deliver to such holder a
written statement as to whether it has complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant, registration
rights with respect to Registrable Securities or any other securities which
would be inconsistent with the terms contained in this Exchange and Registration
Rights Agreement.
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if the Company fails to perform any of its
obligations hereunder and that the Purchaser and the holders from time to time
of the Registrable Securities may be irreparably harmed by any such failure, and
accordingly agree that the Purchaser and such holders, in addition to any other
remedy to which they may be entitled at law or in equity, shall be entitled to
compel specific performance of the obligations of the Company under this
Exchange and Registration Rights Agreement in accordance with the terms and
conditions of this Exchange and Registration Rights Agreement, in any court of
the United States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested), or when sent by a nationally
recognized overnight courier service guaranteeing delivery on the next business
day as follows: If to the Company, at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ West, Office 1610,
Montreal (Quebec), Canada H3A 2R7, Attention: ▇▇▇▇▇ ▇▇▇▇▇ with a copy to ▇▇▇▇
▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
and if to a holder, to the address of such holder set forth in the security
register or other records of the Company, or to such other address as the
Company or any such holder may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
(d) Parties in Interest. All the terms and provisions of this Exchange
and Registration Rights Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the parties hereto and the holders from
time to time of the Registrable Securities and
-25-
the respective successors and assigns of the parties hereto and such holders. 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 deemed a beneficiary hereof for all
purposes and such Registrable Securities shall be held subject to all of the
terms of this Exchange and Registration Rights Agreement, and by taking and
holding such Registrable Securities such transferee shall be entitled to receive
the benefits of, and be conclusively deemed to have agreed to be bound by all of
the applicable terms and provisions of this Exchange and Registration Rights
Agreement. By taking and holding Registrable Securities, any such successor,
assign or transferee shall be conclusively deemed to agree to acquire and hold
the Registrable Securities subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and Registration
Rights Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made by
or on behalf of any holder of Registrable Securities, any director, officer or
partner of such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Securities pursuant to the
Purchase Agreement and the transfer and registration of Registrable Securities
by such holder and the consummation of an Exchange Offer.
(f) GOVERNING LAW. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Exchange and Registration
Rights Agreement and shall not affect in any way the meaning or interpretation
of this Exchange and Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and Registration
Rights Agreement and the other writings referred to herein (including the
Indenture, the Purchase Agreement and the form of Securities) or delivered
pursuant hereto which form a part hereof (i) contain the entire understanding of
the parties with respect to its subject matter, and (ii) supersede all prior
agreements and understandings between the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement may be amended and the
observance of any term of this Exchange and Registration Rights Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company and the
holders of at least a majority in aggregate principal amount at maturity of the
Registrable Securities at the time outstanding. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any amendment
or waiver effected pursuant to this Section 9(h), whether or not any notice,
writing or marking indicating such amendment or waiver appears on such
Registrable Securities or is delivered to such holder.
-26-
(i) Inspection. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights Agreement
and a complete list of the names and addresses of all the holders of Registrable
Securities shall be made available for inspection and copying on any business
day, during normal business hours, by any holder of Registrable Securities for
proper purposes only (which shall include any purpose related to the rights of
the holders of Registrable Securities under the Securities, the Indenture and
this Agreement) at the offices of the Company at the address thereof set forth
in Section 9(c) above and at the office of the Trustee under the Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
-27-
If the foregoing is in accordance with your understanding, please sign
and return to us seven counterparts hereof, and upon the acceptance hereof by
you, this letter and such acceptance hereof shall constitute a binding agreement
among the Purchaser and the Company.
Very truly yours,
MAAX HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President & CFO
Accepted as of the date hereof:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ Uday Malhatra
---------------------------------
Authorized Signatory
EXHIBIT A
MAAX HOLDINGS, INC.
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]*
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in MAAX Holdings, Inc. (the
"Company") 11.25% Senior Discount Notes due 2012 (the "Securities") are held.
The Company is in the process of registering the Securities under the
Securities Act of 1933 for resale by the beneficial owners thereof. In order to
have their Securities included in the registration statement, beneficial owners
must complete and return the enclosed Notice of Registration Statement and
Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a
copy of the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by [Deadline For Response]. Please forward a copy
of the enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact MAAX Holdings,
Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ West, Office 1610, Montreal (Quebec), Canada H3A
2R7, Attention: ▇▇▇▇▇ ▇▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇.(1)
----------
(1) Not less than 28 calendar days from date of mailing.
A-1
MAAX HOLDINGS, INC.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Exchange and Registration Rights
Agreement (the "Exchange and Registration Rights Agreement") between MAAX
Holdings, Inc. (the "Company") and the Purchaser named therein. Pursuant to the
Exchange and Registration Rights Agreement, the Company intends to file or have
filed with the United States Securities and Exchange Commission (the
"Commission") a registration statement on Form [__] (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "Securities Act"), of the Company's 11.25% Senior
Discount Notes due 2012 (the "Securities"). A copy of the Exchange and
Registration Rights Agreement is attached hereto. All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the
Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is
entitled to have the Registrable Securities beneficially owned by it included in
the Shelf Registration Statement. In order to have Registrable Securities
included in the Shelf Registration Statement, this Notice of Registration
Statement and Selling Securityholder Questionnaire ("Notice and Questionnaire")
must be completed, executed and delivered to the Company's counsel at the
address set forth herein for receipt ON OR BEFORE [Deadline for Response].
Beneficial owners of Registrable Securities who do not complete, execute and
return this Notice and Questionnaire by such date (i) will not be named as
selling securityholders in the Shelf Registration Statement and (ii) may not use
the Prospectus forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
The term "Registrable Securities" is defined in the Exchange and
Registration Rights Agreement.
A-2
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3).
The undersigned, by signing and returning this Notice and Questionnaire, agrees
to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Exchange and Registration
Rights Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company and Trustee the Notice of Transfer set forth as Exhibit B to the
Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information
to the Company and represents and warrants that such information is accurate and
complete:
A-3
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as in
(a) above) of Registrable Securities Listed in Item (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not
the same as (b) above) Through Which Registrable Securities Listed in Item (3)
below are Held:
(2) Address for Notices to Selling Securityholder:
TELEPHONE:
FAX:
CONTACT PERSON:
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially
owned:
CUSIP NO(S). OF SUCH REGISTRABLE SECURITIES:
A-4
(b) Principal amount of Securities other than Registrable
Securities beneficially owned:
CUSIP No(s). of such other Securities:
(c) Principal amount of Registrable Securities which the
undersigned wishes to be included in the Shelf Registration Statement:
CUSIP No(s). of such Registrable Securities to be included in the
Shelf Registration Statement:
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other securities
of the Company, other than the Securities listed above in Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5% or more)
has held any position or office or has had any other material relationship with
the Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
A-5
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item (3) only
as follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Securityholder or, alternatively,
through underwriters, broker-dealers or agents. Such Registrable Securities may
be sold in one or more transactions at fixed prices, at prevailing market prices
at the time of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which may involve
crosses or block transactions) (i) on any national securities exchange or
quotation service on which the Registered Securities may be listed or quoted at
the time of sale, (ii) in the over-the-counter market, (iii) in transactions
otherwise than on such exchanges or services or in the over-the-counter market,
or (iv) through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the Selling Securityholder may enter into
hedging transactions with broker-dealers, which may in turn engage in short
sales of the Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable Securities short
and deliver Registrable Securities to close out such short positions, or loan or
pledge Registrable Securities to broker-dealers that in turn may sell such
securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder,
particularly Regulation M.
In the event that the Selling Securityholder transfers all or any
portion of the Registrable Securities listed in Item (3) above after the date on
which such information is provided to the Company, the Selling Securityholder
agrees to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the
disclosure of the information contained herein in its answers to Items (1)
through (6) above and the inclusion of such information in the Shelf
Registration Statement and related Prospectus. The Selling Securityholder
understands that such information will be relied upon by the Company in
connection with the preparation of the Shelf Registration Statement and related
Prospectus.
In accordance with the Selling Securityholder's obligation under
Section 3(d) of the Exchange and Registration Rights Agreement to provide such
information as may be required by law for inclusion in the Shelf Registration
Statement, the Selling Securityholder agrees to promptly notify the Company of
any inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration Statement
remains in effect. All notices hereunder and pursuant to the Exchange and
Registration Rights Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:
A-6
(i) To the Company:
MAAX HOLDINGS, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ West, Office 1610
Montreal (Quebec)
Canada H3A 2R7
Attention: ▇▇▇▇▇ ▇▇▇▇▇
(ii) With a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in Item
(3) above. This Agreement shall be governed in all respects by the laws of the
State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
------------------------------
Selling Securityholder
(Print/type full legal name of
beneficial owner of Registrable
Securities)
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR
RECEIPT ON OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
MAAX HOLDINGS, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇)
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
A-7
With a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
A-8
EXHIBIT B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
U.S. Bank Trust National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Re: MAAX Holdings, Inc. (the "Company")
11.25% Senior Discount Notes due 2012
Dear Sirs:
Please be advised that [__________] has transferred $[__________]
aggregate principal amount at maturity of the above-referenced Notes pursuant to
an effective Registration Statement on Form [____] (File No. 333-____) filed by
the Company. We hereby certify that the prospectus delivery requirements, if
any, of the Securities Act of 1933, as amended, have been satisfied and that the
above-named beneficial owner of the Notes is named as a "Selling Holder" in the
Prospectus dated [date] or in supplements thereto, and that the aggregate
principal amount at maturity of the Notes transferred are the Notes listed in
such Prospectus opposite such owner's name.
Dated:
------------------------------
Very truly yours,
(Name)
By:
------------------------------------
(Authorized Signature)
B-1